text:
    A00A1143.
    FRADY v. THE STATE.
    (538 SE2d 893)
   Miller, Judge.

A jury found Cheyenne Junior Frady guilty of child molestation. He appeals, citing several enumerations of error. Having examined each of these issues and finding no error, we affirm.

1. Frady contends that the evidence is insufficient to sustain the verdict and that the court erred in denying his motion for directed verdict. The test established in Jackson v. Virginia is the proper test when the sufficiency of the evidence is challenged, even when that challenge arises from the overruling of a motion for directed verdict.

(a) Frady first argues that the victim made no. outcry, that the victim was under duress when she gave her statement to authorities, and that she recanted her story. Viewed in the light most favorable to the verdict, the evidence showed that the victim was 14 years old at the time of the incident. Frady was a friend of the victim’s family and was at her home watching television when her other family members fell asleep. When the victim was in the kitchen, Frady grabbed her, started kissing her, and put his hands between her legs. Frady then “put his finger in [her] vagina ... for about five to ten minutes.”

Weeks later, the victim, upset and crying, told her mother that Frady had kissed her and touched her but did not go any further in her description of events until interviewed by a detective. The detective testified that the victim stated that she considered Frady to be her boyfriend and that he had kissed her and placed his finger inside her vagina.

Wanda Long, the victim’s sister and Frady’s girlfriend, took the victim to Frady’s attorney’s office where she was questioned by the attorney’s wife. There, the victim recanted her story and stated that nothing happened between her and Frady and signed an affidavit verifying the statement. The victim testified at trial that Long intimidated her into stating that nothing happened and that she was afraid.

Although there was no immediate outcry by the victim, this circumstance is not conclusive. And although the victim recanted her story, this does not render the evidence against Frady insufficient. It is for the jury and not this Court to resolve conflicts and to assess witness credibility. The victim’s trial testimony alone authorized a rational trier of fact to find Frady guilty beyond a reasonable doubt of child molestation.

(b) Frady argues that the incident could not have taken place between the dates alleged in the indictment due to the testimony of the victim’s mother. The indictment alleged that Frady committed the act of child molestation between the dates of May 21, 1997 and August 1, 1997. The victim’s mother testified that she kicked Frady out of her home around May 1, but that he still visited her house after that date and that on one occasion he stayed and watched television. The victim herself testified in court and in deposition that the incident occurred between May and August 1. Therefore, there is sufficient evidence that the incident occurred between the dates alleged in the indictment.

(c) Frady argues that the court erred in failing to direct a verdict in his favor when it was apparent that the State failed to “reveal the deals” between the prosecution and the victim and the prosecution and the victim’s mother. Both the victim and her mother testified that the State made them no deals for their cooperation or testimony. The State also explained that there were no deals made with the victim. In denying the motion for directed verdict, the trial court implicitly concluded that no such agreement existed. Thus, the court did not err in denying a directed verdict on this ground.

2. Frady complains that because the victim was 14 at the time of the incident, the victim’s mother and the detective should not have been allowed to testify to the victim’s statements over a hearsay objection. OCGA § 24-3-16 provides that

[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Here, although the victim was not under the age of 14 at the time the statements were made, this does not affect the admissibility of this testimony under Cuzzort v. State, which allows admission of a prior consistent statement where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. The victim’s veracity was placed in issue as she signed an affidavit recanting her original statement. She was present at trial and was thoroughly cross-examined about the truthfulness of her original statement.

3. In two enumerations Frady challenges the denial of his motion in limine and his motion to quash the indictment, contending (1) that the grand jury should not have been allowed to indict him based on the detective’s hearsay testimony, (2) that the victim herself should have testified before the grand jury, and (3) that the indictment prohibited him from presenting an alibi defense.

Pretermitting whether the motion to quash the indictment was timely, “the sufficiency of the legal evidence before a grand jury is not subject to inquiry.” And the finding of guilt beyond a reasonable doubt demonstrates that there was probable cause to charge Frady with the offense for which he was convicted, rendering any possible error harmless. Moreover, we find no authority that requires the victim to testify in grand jury proceedings.

Frady’s argument that the range of dates alleged in the indictment prohibited him from presenting an alibi defense is without merit. The exact date was not an essential element of the charged offense.

4. The State filed a notice of intent to present evidence of a similar transaction, and after a hearing the court allowed the evidence, concluding that it was being offered to prove bent of mind, course of conduct, and lustful disposition. Frady argues that the court erred in denying his motion in limine to exclude the similar transaction evidence. In addressing the merits of this enumeration, we will not disturb the trial court’s determination that similar transaction evidence is admissible absent an abuse of discretion.

In order for similar transaction evidence to be admissible, the State must show (1) that it seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some, appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility, (2) that there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

To show Frady’s bent of mind, course of conduct, and lustful disposition, the State sought to introduce evidence that Frady had also molested another 14-year-old girl. This other child testified that Frady had rubbed on her leg and outside her clothes on her “private area and then he started rubbing on [her] arm and he touched the side of [her] breast.” These acts are sufficiently similar to the acts alleged in the present case. Therefore, all three prongs of Williams are satisfied, and there was no abuse of discretion in admitting the similar transaction.

5. In one enumeration Frady contends that he was denied due process because (a) the court denied several motions as untimely, (b) a demonstrative tool inflamed the jury, and (c) the State did not follow Department of Family & Children Services protocol.

(a) The only motion that Frady addresses in this enumeration is the motion to quash the indictment. As we have held in Division 3 that the court did not err in denying the motion, the argument on untimeliness is moot.

(b) Frady argues that the use of a diagram of a small child, who allegedly appeared to be a four-year-old, was used to inflame the jury. We see no harm in the use of the diagram, as the victim, now 16 years old, was at trial where the jury could observe her size and could estimate her size at the age of 14.

(c) The sufficiency and admissibility of the evidence against Frady are independent of the child abuse protocol as outlined in OCGA § 19-15-3. Moreover, that statute protects the interests of the child, not the perpetrator.

6. Frady’s first enumeration of error is not supported in his brief by argument and is therefore deemed abandoned.

Judgment affirmed.

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

Decided September 8, 2000

William R. Hurst, for appellant.

Lydia J. Sartain, District Attorney, Lisa A. Jones, Assistant District Attorney, Scott A. Drake, for appellee.

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

        Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995).

        Brady v. State, 233 Ga. App. 287, 288 (1) (503 SE2d 906) (1998); see Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311) (1996) (no corroboration necessary to sustain molestation conviction).

       Id.; see Woodford v. State, 240 Ga. App. 875, 876 (525 SE2d 408) (1999).

       Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

       Frady concedes that evidence of an alleged “deal” between the father of the victim and the State is not supported by the record.

       See McWhorter v. State, 271 Ga. 461, 462-463 (3) (519 SE2d 903) (1999).

       (Emphasis supplied.)

       254 Ga. 745 (334 SE2d 661) (1985).

        Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998); see Pirkle v. State, 234 Ga. App. 23, 24 (2) (506 SE2d 186) (1998).

       (Citations and punctuation omitted.) Johnson v. State, 198 Ga. App. 520 (3) (402 SE2d 115) (1991); see Traylor v. State, 165 Ga. App. 226, 228 (2) (299 SE2d 911) (1983).

        Ferrell v. State, 203 Ga. App. 479, 480 (1) (416 SE2d 903) (1992); see also Johnson, supra, 198 Ga. App. at 520 (3).

       See Mikell v. State, 231 Ga. App. 85, 86 (2) (498 SE2d 531) (1998), rev’d on other grounds, 270 Ga. 467 (510 SE2d 523) (1999).

        Sweet v. State, 237 Ga. App. 613, 615 (2) (516 SE2d 317) (1999).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       See Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993) (“[s]exual molestation of young children, as well as teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible. [Cits.]”).

       See Court of Appeals Rule 27 (c) (2).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A00A1165.
    DIXON DAIRY FARMS, INC. v. CONAGRA FEED COMPANY.
    (538 SE2d 897)
   Miller, Judge.

Pursuant to an open account agreement, Conagra Feed Company sold cow feed to Dixon Dairy Farms, Inc. for a period of about two months. When Conagra sued for the outstanding invoice balance of $123,110.61, Dixon Dairy claimed an offset on the ground that Conagra’s feed was not fit for the ordinary purposes for which such feed is used and counterclaimed for breach of warranty and lost profits. The trial court granted Conagra summary judgment on both its suit on account and on Dixon Dairy’s counterclaim. Due to lack of competent evidence, we affirmed the grant of summary judgment to Conagra on Dixon Dairy’s claim for lost profits. But we reversed the summary judgment to Conagra on the account claim, reasoning that some evidence supported the offset defense that the feed was not fit for its ordinary intended purpose and thus was not merchantablé under OCGA § 11-2-314 (2) (c).

On remand, Conagra submitted opinion evidence that the value of the feed delivered equaled the purchase price invoiced to Dixon Dairy. Conagra again moved for summary judgment on all claims, arguing that the undisputed evidence demonstrated that Dixon Dairy could show no offset or warranty damages as defined in OCGA § 11-2-714 (2). Dixon Dairy responded with an affidavit from its general manager that, based on the performance of the dairy herd during the period it consumed .Conagra feed, it was his opinion “that the feed had no value.” Disregarding the affidavit as conclusory and as completely inconsistent with the undisputed fact that the herd had subsisted and produced milk while consuming the feed, the trial court granted Conagra summary judgment on all claims. Dixon Dairy appeals. We affirm, holding that Dixon Dairy was estopped from claiming the feed had no value and thus did not produce any competent evidence to contradict Conagra’s testimony of no warranty damages or offset.

Dixon Dairy agrees that the controlling legal issue is whether its evidence supported the measure of offset or damages for breach of warranty, which is described in OCGA § 11-2-714 (2):

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Under this language, a purchaser seeking to recover breach of warranty damages (or to offset a seller’s claim for the purchase price) must show two figures: the value of the goods in their defective condition, and the value of the goods had they been as warranted (e.g., the purchase price). If a purchaser shows only the purchase price and fails to present evidence of the goods’ value in their defective condition, then its claim fails.

Once Conagra in its summary judgment motion challenged the evidence of damages and submitted testimony that the value of the feed delivered equaled its purchase price, Dixon Dairy was obligated to put on its case in full and counteract that evidence by showing that the value of the “defective” feed was a figure less than its purchase price. Dixon Dairy first points to our earlier decision that evidence showed the feed was defective. But evidence that the goods were defective cannot alone establish evidence of damages.

Although Dixon Dairy next points to the affidavit of its general manager that the feed, as delivered, “had no value,” Dixon Dairy is estopped from taking this position. During the hearing on the first summary judgment motion, Dixon Dairy’s counsel stated in open court:

Decided September 8, 2000.

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

Chambless, Higdon & Carson, Brown W. Dennis, Jr., Marc T. Treadwell, for appellee.

Our basic position is . . . that the evidence would be sufficient for a jury to determine that the value of the feed was not what they were charged. No, we can’t say that it was worthless because yes, they did produce milk. All the cows didn’t die and dry up, so there was some value in the feed. We don’t deny that, can’t deny it.

A party is estopped from contradicting solemn admissions made in judicio. Statements made by a party’s counsel during a hearing on a motion for summary judgment are regarded as admissions in judicio and are binding on the party. The admissions may be considered conclusive for purposes of summary judgment and until withdrawn or amended estop the party from denying them or introducing any evidence to controvert them.

The court properly disregarded the affidavit of Dixon Dairy’s general manager that the feed had no value because it contradicted Dixon Dairy’s prior admissions in judicio and was thus insufficient to establish damages. In the absence of competent evidence to contradict Conagra’s unobjected-to opinion evidence of zero offset or warranty damages, the trial court correctly granted summary judgment in favor of Conagra on its account claim and on Dixon Dairy’s counterclaim.

Judgment affirmed.

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

       Dixon Dairy does not dispute the invoiced amount, but only the quality of the feed delivered.

        Dixon Dairy Farms v. Conagra Feed Co., 239 Ga. App. 233, 236-237 (2) (519 SE2d 729) (1999).

       Id. at 234-236 (1).

       Dixon Dairy did not object to the court considering this opinion evidence on summary judgment, and thus the trial court was free to consider it. Bell v. Sellers, 248 Ga. 424, 425-426 (1) (283 SE2d 877) (1981).

        Williams v. Dienes Apparatus, 200 Ga. App. 205, 207-208 (2) (a) (407 SE2d 408) (1991); accord Chrysler Corp. v. Marinari, 177 Ga. App. 304, 306-307 (2) (339 SE2d 343) (1985) (physical precedent only).

        Williams, supra, 200 Ga. App. at 208 (2) (a); Mumford v. Phillips, 195 Ga. App. 782, 783 (1) (395 SE2d 45) (1990); Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 115-116 (4) (363 SE2d 312) (1987); Chrysler Corp., supra, 177 Ga. App. at 306-307 (2).

       See generally Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 681 (2) (498 SE2d 748) (1998) (whole court).

        Williams, supra, 200 Ga. App. at 207-208 (2) (a); Mumford, supra, 195 Ga. App. at 783 (1).

       OCGA § 24-4-24 (a), (b) (7).

        State Farm &c. Ins. Co. v. Terry, 230 Ga. App. 12, 17 (4) (495 SE2d 66) (1997) (whole court), aff'd, 269 Ga. 777 (504 SE2d 194) (1998); see Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 588 (411 SE2d 527) (1991) (on motion for reconsideration) (“[a]n admission in open court is an admission in judicio; a judicial admission is conclusive. [Cits.]”).

       Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 839 (1) (520 SE2d 505) (1999).


author: Smith, Presiding Judge.

text:
    A00A1416, A00A1417.
    JOHNSON v. DEPARTMENT OF TRANSPORTATION (two cases).
    (538 SE2d 879)
   Smith, Presiding Judge.

James Leon Johnson and James Roy Johnson, cousins, brought these actions against the Georgia Department of Transportation and Pierce County for personal injuries arising out of a one-car accident on December 20, 1993. After discovery, the DOT filed identical motions for summary judgment in each case. The trial court, in a well-written and thorough order, granted the DOT’s motions, and the Johnsons appeal. Because the trial court correctly pinpointed and analyzed the fatal weakness in the Johnsons’ case — failure of proof of negligence and causation — we affirm.

Inexplicably, the Johnsons’ brief addresses first and at some length the issue of whether an expert witness affidavit was required under OCGA § 9-11-9.1 (a), even though the trial court ruled in the Johnsons’ favor on this issue. But the Johnsons’ argument, while misdirected, inadvertently points to the dispositive issue in this case. The problem is not that expert testimony is required by the malpractice affidavit statute. Instead, the state of this record required expert testimony to survive summary judgment because, as it stands, it is devoid of any evidence of either causation or negligence.

In order to demonstrate negligence, the Johnsons were required to show a breach of duty by the DOT. With respect to alleged defects in maintenance of the roadway, they were required to present evidence of the proper maintenance standard, the deviation from that standard, and the causal connection between the deviation and the collision. Dept. of Transp. v. Mikell, 229 Ga. App. 54, 59-60 (1) (c) (493 SE2d 219) (1997) (plaintiff alleging failure to trim bushes must show “how high the bushes were, how high they were allowed to be, how often they were supposed to be cut, or to what extent, if any, they interfered with visibility at the intersection, and how the overgrowth of bushes contributed to the incident”).

In order for the Johnsons to show negligent maintenance by the DOT, they could not testify merely that “ruts” and “water” were present in the roadway. As the DOT observes in its brief, the combination of asphalt surfacing, heavy trucks, and hot Georgia summers guarantees the presence of ruts to some degree on any roadway. Expert testimony, or the proper presentation of engineering standards or contractual requirements, was necessary to show both the criteria for determining when ruts in asphalt pose a hazard to traffic sufficient to require repaving, and also that these particular ruts met those criteria. The Johnsons presented no testimony whatsoever of the DOT’s standards or general engineering standards for inspecting and repairing ruts in pavement. They did not present any DOT records and did not depose any DOT official or supervisor regarding applicable inspection standards or procedures. Nor did they photograph the ruts or measure them so that the record would contain some evidence of the amount of deviation from any standard that exists.

Evidence of causation is also absent from the record. Neither of the Johnsons can recall anything about the incident. The record does not contain the testimony of the officer who investigated the incident or even a police report. The only other evidentiary items in the record are affidavits from the boys’ fathers and from others who knew of other accidents in the same general location. One witness, in an unnotarized statement, offered only that he had hydroplaned on the same curve approximately three years after the Johnsons’ incident.

None of these witnesses stated the necessary facts or had the required expertise to determine the manner in which the incident occurred, its cause, or whether that cause was attributable to a breach of duty on the part of the DOT. As the trial court observed:

While there may be evidence showing that there were ruts in the roadway of State route 32, there is no evidence showing that the vehicle in fact hydroplaned, that it hydroplaned at the place in the road where these ruts were, or that, at the time the vehicle went out of control, there was water standing on the road in these ruts. Consequently, there is simply no evidence upon which a jury could draw an inference that the vehicle went out of control as a result of hydroplaning due to standing water at a point some distance from where the vehicle came to rest.

The only testimony regarding the incident itself is that several witnesses observed ruts and water, some time after the incident, near where the vehicle left the roadway. As the trial court also observed, “whether there were ruts in the road at the site where the vehicle left the road is not material. The material inquiry is whether there were ruts in the road at the point where the vehicle first went out of control.” But no witness has ever established a precise location for any element of this incident or the position of the vehicle at any time, whether by photographs, diagrams, maps, measurements, or distance from mile markers. None of these appear anywhere in the record.

Decided September 8, 2000

Dillard, Bower & Crowley, Bryant H. Bower, Jr., E. Kontz Bennett, Jr., for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Casey, Gilson, Williams & Schingler, George P. Schingler, Mark A. Basurto, for appellee.

In the absence of any recollection by the driver or passenger, the testimony of an eyewitness to the incident, or testimony from a police officer or other person with expertise in accident reconstruction, the Johnsons presented no evidence on the critical issue of causation. The recent decision of Mansfield v. Colwell Constr. Co., 242 Ga. App. 669 (530 SE2d 793) (2000), involved a similar situation. The plaintiffs’ decedent was killed in a one-car accident when the van in which he was riding plunged off a 200-foot cliff. Plaintiffs contended that the defendant was negligent in maintaining the cliff on its property and speculated that the rear wheels of the van had slipped off the edge as the driver attempted to turn around in a narrow roadway. Id. at 670. The surviving driver had no memory of the incident or events leading up to it, and “[n]o accident reconstruction evidence or expert testimony was offered to prove the actual cause of the van’s precipitous plunge off the bluff.” Id. at 673. We held that “[m]ere speculation” as to what might have caused the incident was insufficient to show proximate cause or to withstand summary judgment. Id.

It is unfortunate for the Johnsons that their case as presented to the trial court does not include sufficient evidence to survive summary judgment. But the record contains no testimony from a DOT witness or other qualified expert regarding the appropriate standards for roadway maintenance; no expert testimony as to how and why the incident occurred; and not even the most elementary factual information such as a police report, diagram, or eyewitness testimony establishing the location of the incident or the manner in which it occurred. Under these circumstances, the trial court’s grant of summary judgment to the DOT clearly was proper. No alternative was possible in the complete absence of the necessary elements of proof.

Judgment affirmed.

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

       The county later was dismissed from both suits without prejudice after it filed a motion for summary judgment based on lack of ownership, sovereign immunity, and failure to give ante litem notice.

       In fact, as the DOT points out, the Johnsons’ complaint places the site of the incident at a completely different location approximately six miles away.


author: Eldridge, Judge.

text:
    A00A1994.
    BALLEW v. THE STATE.
    (538 SE2d 902)
   Eldridge, Judge.

A Banks County jury convicted Harold Ray Ballew of a single count of obstruction of an officer. The superior court thereafter sentenced him to 12 months confinement to be served on probation. Defendant appeals from the superior court’s order denying his motion for new trial. Held:

Viewed in a light most favorable to the verdict, the evidence pertinently shows that in the early evening of August 23, 1998, Banks County Deputy Sheriff Richard Vickery was dispatched to a county residence located at 326 Rattle Trap Road upon a 911 call from area residents reporting a knife fight between two men. On his arrival, the residents told Deputy Vickery that one of the men in the fight had been severely cut and that both men had driven off toward the dead-end of Rattle Trap Road in a purple or burgundy car. On this information, Deputy Vickery proceeded to the end of Rattle Trap Road, stopping at defendant’s residence where he saw a burgundy, four-door Mercury. As he arrived, Deputy Vickery observed that the defendant and Donna Huntsinger, defendant’s common law wife were in the yard, arguing. The defendant was disheveled, appeared agitated, but did not appear to be wounded. Huntsinger held a bloody rag against her face.

Deputy Vickery explained that he was present to investigate the knife fight. For his part, defendant responded asking if there was a search warrant and by ordering Deputy Vickery off his property saying only, “You’re trespassing!;] this is a private matter[;] get off my property[;] you have no business here.” Deputy Vickery attempted to question defendant’s wife, but the defendant stepped between them, instructing her to go in the house and to lock the door. This, however, was not the basis of the charge of obstruction. After three to five minutes had elapsed, Sergeant Brian Hall arrived, and as Sergeant Hall attempted to question the defendant, Deputy Vickery looked around the residence. In doing so, he found blood leading to the steps, pools of blood on the front porch, and, though he did not go inside the Mercury, he observed what he believed were wet spots therein.

The defendant refused to answer Sergeant Hall’s questions, and before Sheriff Charles Chapman arrived on the scene some minutes later, Deputy Vickery and Sergeant Hall took the defendant into custody, placing him in handcuffs. Thereafter, the defendant’s wife consented to a search of the residence. No one was found, injured or otherwise. Later, defendant was charged by accusation with obstruction of an officer in that he “did unlawfully, knowingly and willfully obstruct and hinder [Sergeant Hall], a law enforcement officer in the lawful discharge of his duties by refusing to allow him to search his home for persons needing medical assistance. . . .”

1. Defendant contends that the superior court erred in denying his motion for directed verdict of acquittal for the failure of the evidence to show more than a verbal exchange not accompanied by verbal or physical threat of violence. We agree. “A mere verbal exchange with an officer accompanied by no verbal or physical threats of violence does not constitute violation of OCGA § 16-10-24. Moccia v. State, 174 Ga. App. 764, 765 (331 SE2d 99) (1985), [questioned on other grounds, Carter v. State, 222 Ga. App. 397, 398 (1) (474 SE2d 228) (1996), Larkin v. State, 230 Ga. App. 129, 130 (1) (495 SE2d 605) (1998) (violence no longer an element of misdemeanor obstruction)].” In re G. M. M., 179 Ga. App. 800, 802 (1) (348 SE2d 126) (1986). Certainly the assertion of one’s constitutional rights cannot be an obstruction of an officer, or every assertion of such rights would lead to obstruction charges.

On cross-examination, defendant’s counsel asked Sergeant Hall if the defendant had struck him, swung at him, pushed him, hit him, or threatened to injure him in any way. Sergeant Hall responded that the defendant had only ordered him off his property for trespassing and violating his “constitutional rights,” indicating that what had occurred was “a private matter,” i.e., the matters between Hunt-singer and her son. There is nothing to the contrary in the record. Defendant does not contend, nor do we find, that Sergeant. Hall was not in the lawful discharge of his duties when the defendant was stopped and later taken into custody. Further, that Sheriff Chapman testified that the defendant cursed Deputy Vickery and Sergeant Hall as the defendant asked them to leave his property is here insignificant. “For speech to rise to the level of obstruction, it must be reasonably interpreted to be a threat of violence to the officer, which would amount to obstruction or hindrance. [Cits.]” Woodward v. Gray, 241 Ga. App. 847, 849 (a) (527 SE2d 595) (2000).

Decided September 8, 2000

Harvey, McCormack & Free, Paula O. Free, Benjamin C. Free, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

[T]o argue with, curse loudly at, to verbally interrupt a police officer while making the arrest of another does not constitute obstruction of a police officer. See Moccia v. State, [supra at 764]; see also Statham v. State, 41 Ga. 507, 513 (3) (1871); McCook v. State, 145 Ga. App. 3, 5 (2) (243 SE2d 289) (1978).

Id.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Harvey v. State, 212 Ga. App. 632, 634 (442 SE2d 478) (1994).

Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996).

Because the evidence in the case shows only a verbal exchange without accompanying threats, Woodward v. Gray, supra; In re G. M. M., supra, the superior court erred in denying defendant’s motion for directed verdict of acquittal for want of evidence of the charged offense. See Cody v. State, supra.

2. In light of our disposition of Division 1, we need not address defendant’s remaining claims of error.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

       “An act directly tending to interfere with, interpose obstacles or impediments, hinder, impede, interrupt in any manner, or prevent or pervert the public administration of justice constitutes obstruction of the police in performing their lawful duty. See OCGA § 16-10-24; Baker v. State, 122 Ga. App. 587, 588-589 (1), (4) (178 SE2d 278) (1970).” Woodward v. Gray, 241 Ga. App. 847, 849 (a) (527 SE2d 595) (2000).

       At trial, defendant and Huntsinger testified, in substantial part, that Huntsinger and her son had argued; that the son struck her causing her facial injuries; that defendant cursed the son as he ran from the scene; that the son returned, striking defendant with a concrete block; and that the fight between the two then took place.

        Leckie v. State, 231 Ga. App. 760, 761 (500 SE2d 627) (1998) and Stepherson v. State, 225 Ga. App. 219, 221 (3) (483 SE2d 631) (1997), contain “dicta that verbal exchanges can constitute obstruction, but cite as authority for this Duke v. State, [205 Ga. App. 689 (423 SE2d 427) (1992)], which holds, instead, that lying to the police can constitute obstruction. In these cases, the basis for obstruction was physical resistance to an arrest for disorderly conduct.” Woodward v. Gray, supra at 849, n. 1.

       “A police officer ... is not discharging his or her lawful duty when [he or] she makes an arrest of an individual without reasonable and probable cause or stops an individual without specific articulable suspicion. . . . Wynn v. State, 236 Ga. App. 98, 99 (2) (511 SE2d 201) (1999); Brown v. State, 163 Ga. App. 209, 212 (4) (294 SE2d 305) (1982).” Woodward v. Gray, supra.


author: Barnes, Judge.

text:
    A00A1305.
    MULLIS et al. v. MULLIS.
    (539 SE2d 189)
   Barnes, Judge.

Doris Mullis sued her brother-in-law and his wife, R. M. and Anna Liza Mullis, seeking the return of 46.51 acres she deeded to them ten days after her husband died. After a trial at which neither R. M. nor Anna Liza Mullis testified, the jury found for Doris Mullis and ordered the return of the land, along with two vehicles and a riding lawnmower. R. M. Mullis appeals the judgment entered on the verdict. We affirm.

The evidence showed that Doris Mullis, who was 83 years old as of the trial, was married to Wilbon Mullis in 1933. They bought approximately fifty acres of land, and Mr. Mullis deeded three-quarters of an acre to his brother, R. M. Mullis. The couple had no children. Mrs. Mullis testified that Wilbon died on February 1, 1997, although he actually died on February 1, 1998. He left all his property to his wife. Ten days after her husband died, R. M. and Anna Mullis took Doris Mullis to her bank, where she put their names on her checking account, and twice to a lawyer’s office, where she deeded to them the 46.51 acres she had inherited, along with a car, a truck, and a riding lawnmower. She also gave R. M. Mullis, who was 66 years old, a general power of attorney. R. M. Mullis bought a new car for $22,000 and a new air conditioner for almost $6,000, using funds from Doris Mullis’s bank account. She subsequently approved those expenditures, but then removed their names from her bank account.

Doris Mullis testified that she did not recall having gone to the lawyer’s office, did not give the defendants her house or vehicles, and did not know what it meant to probate a will or what a power of attorney was. When asked if she told the lawyer she wanted to give her house to the defendants, she replied, “No, ma’am. I’d been crazy to have done something like that.” The defendants did not testify, although they called as witnesses the lawyer who prepared the probate papers, deeds, and power of attorney, and the customer service employee at Doris Mullis’s bank who added and then removed them from Doris Mullis’s checking account. Both defense witnesses testified that R. M. and Anna Mullis brought Doris Mullis to the appointments and were present during the entire time. The bank employee noted that Doris Mullis was upset and cried when she talked of her husband’s recent death.

1. The appellants contend that the trial court erred in charging the jury under OCGA § 23-2-2 as follows: “I charge you that great inadequacy of consideration joined with great disparity of mental ability in contracting a bargain may justify equity in setting aside a deed or conveyance.” They argue that Doris Mullis presented no evidence showing a “disparity of mental ability,” and that a difference in age was insufficient, citing Godwin v. Godwin, 265 Ga. 891 (463 SE2d 685) (1995). In Godwin, the Supreme Court reversed a jury verdict setting aside a mother’s deed of property to a son, holding that

all evidence regarding the mother’s mental ability indicated that she was alert and competent to contract. In fact, when the attorney who drafted the 1986 deed testified as to her good health and mental alertness during that year, her counsel responded “she still is, isn’t she?”

Id. at 892 (1).

Unlike the situation in Godwin, however, evidence exists in this case showing a disparity in the mental ability of Doris Mullis, whose husband of 65 years had just died, and the mental ability of the appellants, who made the appointment with and took her to see the attorney who drafted the deed. While the attorney testified that he “felt like” he had his instructions from Doris Mullis about what she wanted done, his testimony revealed that he never spoke with his client alone. The bank employee who knew Doris Mullis testified that the widow was upset and crying about her husband’s death when she came to the bank around the same time she visited the lawyer. Mullis also testified that she had no recollection of having gone to the lawyer’s office or to the probate court, testimony the jury was entitled to consider in determining her mental ability when she deeded her entire estate to her brother-in-law and his wife.

Even slight evidence is sufficient to justify a charge. “The evidence necessary to justify a jury charge need only be enough to enable the trier of fact to carry on a legitimate process of reasoning.” Koritta v. State, 263 Ga. 703, 704-705 (438 SE2d 68) (1994). The trial court did not err in giving this charge.

2. The appellants also contend that the evidence “wholly fails to support the verdict rendered,” citing Dobbs v. Burnette, 250 Ga. 47 (295 SE2d 836) (1982), for support. However, the holding in Dobbs, as in Kendrick-Owens v. Clanton, 271 Ga. 731 (524 SE2d 237) (1999), also cited by appellants, is inapplicable to this case. Both of those cases involved the caveator to a will who presented no evidence that the beneficiary exerted undue influence on the testator at the time the will was made.

“Mental capacity to make a deed is a question of fact to be determined by the jury.” Fuller v. Stone, 207 Ga. 355, 356 (1) (61 SE2d 467) (1950). As discussed above, the trial court did not err in concluding that Doris Mullis presented sufficient evidence of inadequacy of consideration and disparity of mental ability to submit the issue to the jury for resolution.

Decided September 11, 2000.

W. Dennis Mullís, for appellants.

Harrison & Wall, Milton Harrison, Sarah F. Wall, for appellee.

Judgment affirmed.

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


text:
    A00A1346.
    DUNN v. THE STATE.
    (539 SE2d 198)
   Barnes, Judge.

Cleveland Dunn appeals his conviction of three counts of burglary (OCGA § 16-7-1). He contends that even though he may have been convicted as a party to a crime under OCGA § 16-2-20, the evidence is insufficient to sustain his conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We disagree and affirm.

The essence of Dunn’s appeal is that he cannot be convicted as a party to these burglaries because, at most, the evidence showed only that he received stolen property. See Crumpton v. State, 240 Ga. App. 422 (523 SE2d 624) (1999). Dunn relies on the testimony of two witnesses who earlier pled guilty to committing the burglaries of which Dunn was convicted. According to Dunn, these witnesses testified only that they committed the burglaries and then transferred to Dunn some of the items they stole from the houses they burglarized. Dunn never told them to go to any particular house, and they were not committing the burglaries for Dunn.

Dunn’s argument, however, overlooks certain other testimony that distinguishes this case from Crumpton v. State, supra. The witnesses were staying at Dunn’s house, Dunn told them he wanted certain items — including particular types of guns, and they knew that Dunn would give them money and drugs for the stolen goods. Dunn admitted that he knew the items he received from the others were stolen and also admitted supplying the two with drugs. This evidence is sufficient to sustain Dunn’s conviction as a party to these three burglaries.

Under OCGA § 16-2-20 (b) (4), a person who “intentionally advises, encourages, hires, counsels, or procures another to commit” a crime may be charged with and convicted of commission of the crime. Dunn’s conduct in this case is sufficient to satisfy the requirements of this Code section. When one counsels and encourages others to commit crimes by promising to buy the fruits of the crime, he is guilty as a principal. Grant v. State, 47 Ga. App. 234 (1) (170 SE 394) (1933). Although Dunn did not specifically select places to be burglarized, that fact is irrelevant. That he counseled and encouraged the others to commit burglaries to obtain the items that he wanted is sufficient to sustain his conviction. Todd v. State, 189 Ga. App. 538, 540 (2) (376 SE2d 917) (1988).

Decided September 11, 2000.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Blackburn, Presiding Judge.

text:
    A00A1586.
    MADGE v. THE STATE.
    (538 SE2d 907)
   Blackburn, Presiding Judge.

Following a jury trial, Elijah Madge appeals his convictions of selling marijuana and giving a false name to a police officer. Madge contends that the evidence was insufficient to support the convictions; that he received ineffective assistance of counsel; and that the trial court erred by denying his motion in limine to exclude an officer’s testimony regarding Madge’s identification. For the reasons set forth below, we affirm.

1. On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to support the verdict, and [Madge] 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 Officers Craig Dong and David Felker of the Marietta-Cobb-Smyma Narcotics Unit were conducting undercover drug transactions in the area of Delk Road and Interstate 75. They saw Madge sitting on the curb of a motel driveway and asked him if he knew “where [they] could get any smoke,” a street term for marijuana. Madge said he knew where they could get some. After getting in the truck, Madge directed the officers to an apartment complex on Franklin Road.

At the apartment complex, Madge got out of the truck and spoke with an individual. Returning to the truck, Madge told the officers that the marijuana would cost $60 and to wait there. While the officers waited in the truck, they observed Madge wave at and then approach two men walking through the complex. After a short conversation with the two men, Madge returned to the truck and told the officers that if the first man could not provide the marijuana, these two men could provide it. At this point, the officers, pretending to get a page, left the apartment complex to call for backup. They told Madge they would return shortly.

Returning to the apartment complex, the officers learned that the first man would not provide the marijuana, but that the other men would. Madge and the men got in the truck, and Madge directed the officers to another apartment complex. At the second complex, one of the men, Lopez, spoke to a man in a white truck and then brought back to the officers a sandwich bag containing what appeared to be marijuana. After arguing that the $50 price was too high because the marijuana was poor quality, to which Madge agreed, the officers purchased the bag.

The transaction completed, Madge stayed in the officers’ truck, having accepted their offer to join them in smoking the marijuana. Instead, however, the officers drove Madge to where uniformed officers were waiting to arrest him. After Madge had been arrested, Officer Dong asked Madge to identify himself. Madge gave his name as Jonathan Edward Young and gave his birth date as January 12, 1978. The officers later learned his true name and birth date.

With regard to his conviction of violation of the Georgia Controlled Substances Act, Madge contends that he was simply a bystander to the sale. Although mere presence in and of itself will not justify a conviction, the evidence here shows that Madge was more than just present. He procured the sale for the officers.

A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. [OCGA § 16-2-20] (b) (3) and (4).

Burks v. State. See Wyatt v. State. Thus, the evidence is sufficient to authorize the jury’s finding that Madge was guilty, beyond a reasonable doubt, of violating the Georgia Controlled Substances Act, being a party to the sale of marijuana. See Jackson, supra.

With regard to the false name conviction, “A person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.” OCGA § 16-10-25. Madge gave a false name and birth date to Officer Dong. This evidence is sufficient to support the conviction. See Jackson, supra.

2. Madge raises as error the trial court’s denial of his motion in limine to exclude the testimony of Officer Dong about Madge giving a false name. Madge erroneously contends that Officer Dong’s request for his name should be excluded because he had not been given his Miranda warnings. However, Miranda does not apply in this situation because Madge was not being interrogated.

The definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U. S. 291, 301-302 (100 SC 1682, 64 LE2d 297) (1980).

(Punctuation omitted.) Edwards v. State. Asking for a person’s name and birth date during the process of an arrest is not reasonably likely to elicit a response which incriminates one in the commission of a crime and, therefore, is not interrogation. Id.; Mincey v. State. The trial court properly denied the motion in limine.

3. In two separate enumerations of error, Madge contends that he received ineffective assistance of counsel because trial counsel failed to: (1) request funds to hire and failed to hire an expert witness to challenge the drug testing by the State and (2) submit a request to charge on the State’s drug testing. Ineffective assistance of counsel was raised by appellate counsel in an amended motion for new trial, and trial counsel testified at the hearing on the motion. The trial court found that Madge did not establish ineffective assistance of counsel. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Punctuation omitted.) Stephens v. State.

To establish ineffective assistance of counsel, Madge

must show both that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). To meet the first prong of this test, [Madge] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. Id. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. . . . The second prong requires that [Madge] show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.

(Punctuation omitted.) Brady v. State.

(a) At trial, Madge’s counsel cross-examined the State’s witness extensively concerning the reliability of the various tests used to identify the marijuana. Madge contends that, instead, trial counsel should have requested funds to hire an opposing expert to testify that the testing methods used by the State were unreliable. Madge, however, has not produced evidence of record that establishes the inadequacy of the State’s methods of testing drugs.

Madge cannot show, therefore, that there is a reasonable probability that, but for trial counsel’s failure to hire an expert witness, the outcome of the trial would have been different. Although there was general testimony at the hearing about the reliability of the tests, Madge has not shown what his expert’s testimony would have been in this case or how it would have affected the outcome of the trial. Absent a proffer of what the testimony of his expert would have been at trial, Madge cannot show that there is a reasonable probability that the outcome of the trial would have been different had his counsel taken the suggested course. Ross v. State; Adefenwa v. State; compare Curry v. Zant. Moreover, the record shows that the jury was made aware of the possibility that the testing methods used by the State were unreliable. In addition to his thorough cross-examination of the State’s witness, Madge’s counsel also pointed out the unreliability of the methods in his closing argument.

Furthermore, at the hearing on the motion for new trial, trial counsel testified that he had researched the types of testing used by the State and that he used this research as a basis for his cross-examination. Trial counsel further testified that, at the time, he knew he could request funds from the trial court to hire an expert witness. However, he thought he could handle the State’s witness’s testimony about identifying the marijuana. It is only in retrospect that he thinks it would have been better to hire an expert. We do not judge effectiveness of counsel by hindsight or by what present counsel would have done. Smith v. Francis.

Decided September 11, 2000.

Lauren L. Becker, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Maria B. Golick, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.

(b) Trial counsel’s failure to request a charge on the State’s testing of the marijuana also does not constitute ineffective assistance of counsel. Madge argues that trial counsel should have requested a charge “along the lines that the State’s evidence and testimony with regard to the conclusion that the substance involved was marijuana should be given less credibility because [the State’s witness] was not qualified as an expert.” However, since questions of weight and credibility of witness testimony are for the jury, such a charge would have been improper. Kimbrough v. State. Trial counsel did not render ineffective assistance by failing to request such a charge.

The trial court properly denied Madge’s motion for new trial based on ineffective assistance of counsel.

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).

        Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

        Wyatt v. State, 194 Ga. App. 159 (390 SE2d 85) (1990).

        Edwards v. State, 220 Ga. App. 74, 77 (2) (467 SE2d 379) (1996).

        Mincey v. State, 257 Ga. 500, 506 (10) (360 SE2d 578) (1987).

        Stephens v. State, 224 Ga. App. 184, 186 (3) (480 SE2d 235) (1997).

        Brady v. State, 270 Ga. 574, 576 (4) (513 SE2d 199) (1999).

        Ross v. State, 231 Ga. App. 793 (2)-(4) (499 SE2d 642) (1998).

        Adefenwa v. State, 221 Ga. App. 429 (3) (471 SE2d 900) (1996) (physical precedent only).

        Curry v. Zant, 258 Ga. 527 (371 SE2d 647) (1988).

        Smith v. Francis, 253 Ga. 782 (325 SE2d 362) (1985).

        Kimbrough v. State, 215 Ga. App. 303, 305 (3) (450 SE2d 457) (1994).


text:
    A00A2046.
    BAILEY v. THE STATE.
    (539 SE2d 191)
   Eldridge, Judge.

A Towns County jury found Larry Gene Bailey guilty of burglary. In two related enumerations of error, Bailey contends that the State’s evidence was insufficient to disprove his coercion defense and to establish his guilt. After reviewing the evidence, we affirm Bailey’s conviction.

Viewed to uphold the jury’s verdict, the evidence at trial showed that the door to the victim’s home was kicked open between the evening of November 14, 1997, and the morning of November 15, 1997. A single muddy footprint was found on the door. One set of muddy tennis shoe tracks went from the door through the house to a room containing a gun cabinet. The door of the gun cabinet was pried open, and numerous weapons were taken; jewelry was also removed from the house. The single set of muddy tracks then exited the house and disappeared into the construction gravel on the shoulder of Upper Bell Creek Road, Towns County, which ran next to the victim’s house. Pursuant to investigation, appellant Bailey was arrested for the burglary.

While incarcerated Bailey asked to speak to the investigating officer. After Miranda warnings were read to him, Bailey gave the investigator a statement in which he admitted the offense, but claimed that he kicked in the victim’s door because another man he was with at the time, J. G., forced him to at knifepoint and threatened to kill him if he did not cooperate in the burglary. Bailey claimed that J. G. and he both entered the victim’s home and took the guns and jewelry; Bailey claimed that, days later, J. G. and he took two of the weapons to a flea market, where they each sold one and retained the money; Bailey received $100 for the weapon he sold. Bailey told the investigator that “I never got any money except the $100.”

1. Bailey claims that the trial court erred in failing to grant his motion for directed verdict, since the State’s evidence showed that he was coerced to commit the crime at knifepoint under threats of death. However, we disagree with this evaluation of the State’s evidence and find sufficient evidence was adduced to permit the jury to disbelieve Bailey’s coercion defense.

The State’s evidence showed that only one set of muddy shoe tracks traversed through the victim’s home, thereby negating Bailey’s assertion that he and a second man entered the victim’s home to accomplish the taking. Further, even if a second man was involved in the burglary, in Bailey’s statement to the investigator it is clear that Bailey willingly — and with no coercion whatsoever — sold the victim’s weapon at a flea market and pocketed the $100, complaining that it was the only compensation he received. From such eager complicity in sharing the spoils of the burglary, the jury could easily conclude that Bailey’s professed reluctance to commit the crime was a sham. “The determination of whether the State has met its burden to disprove the affirmative defense is for the jury, and the jury’s determination in the present case that the burden was met was supported by the evidence.”

Decided September 11, 2000.

Sorgen & Schindelar, Lawrence S. Sorgen, for appellant.

N Stanley Gunter, District Attorney, William J. Langley, Assistant District Attorney, for appellee.

2. We find the State’s evidence sufficient to support the verdict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), in that a rational trier of fact could find beyond a reasonable doubt each of the essential elements of the crime of burglary for which Bailey was charged. Accordingly, the trial court did not err in denying Bailey’s motion for new trial on this basis.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

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

       The admissibility of Bailey’s statement is not at issue on appeal.

         OCGA § 16-3-26 precludes a person from being guilty of any crime except murder “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” Coercion is an affirmative defense, see OCGA § 16-3-28, and the burden rests upon the State to disprove coercion beyond a reasonable doubt. See Hansen v. State, 205 Ga. App. 604, 607-608 (2) (423 SE2d 273) (1992).

        Scott v. State, 190 Ga. App. 492, 493 (1) (379 SE2d 199) (1989).

       (Citation omitted.) Bentley v. State, 261 Ga. 229, 230 (2) (404 SE2d 101) (1991).


author: Phipps, Judge.

text:
    A00A1215.
    RUNION et al. v. HOFER et al.
    (538 SE2d 462)
   Phipps, Judge.

Dissatisfied with the construction of their new home, John and Carolyn Hofer sued the builders, Sherry Runion and Calvin Bill Runion. The Hofers asserted claims for breach of contract, breach of express and implied warranties, negligence, gross negligence, negligence per se, and fraud. They sought punitive damages, the costs of litigation, and damages for bad faith and stubborn litigiousness. The jury awarded the Hofers $18,000 in actual damages and $15,000 for attorney fees and expenses of litigation. In this appeal, the Runions contest only the latter award, claiming that evidence of bad faith was lacking and that the trial was impermissibly tainted by remarks improperly uttered during closing argument. We disagree and affirm.

1. The Runions contend that the trial court erred by denying their motion for directed verdict on the Hofers’ claim for attorney fees because no evidence was presented to support that claim. They claim that because a bona fide controversy between the parties existed and because the record “clearly demonstrated” that they acted in good faith, attorney fees could not be awarded.

When a defendant has acted in bad faith, a jury may award attorney fees under OCGA § 13-6-11. Attorney fees can be awarded on a claim for bad faith in the performance of a contract regardless of the existence of fraud. Bad faith may be found in a defendant’s execution of the provisions of a contract, “that is, in how [a] defendant acted in his dealing with the plaintiff.” An award of attorney fees supported by any evidence must be affirmed.

In this case, keenly aware of the one-year warranty for their new home, the Hofers sought to have certain construction defects rectified. At trial, the Hofers presented evidence showing, among other things, that the home had been defectively constructed in that water gained entry through defective vinyl siding, that the garage slab was failing due to improper soil compaction, and that the Runions either refused to make the necessary repairs or did so superficially or improperly. Carolyn Hofer testified that despite notice to Sherry Runion that water was continually leaking into her daughter’s bedroom, the problem remained uncorrected for five years. She detailed numerous construction problems that the Runions failed to correct. The Hofers offered expert testimony about defects in the original construction and about cursory and inadequate repairs which deviated from industry standards and building codes.

Some of this evidence would have authorized the jury to find bad faith by the Runions in the performance of their contract with the Hofers, regardless of whether the jury decided that Sherry Runion had passively concealed certain construction defects. On a special verdict form that asked, “Do you, the Jury, find by a preponderance of the evidence presented in this trial that either or both of the Defendants have acted in bad faith in their transaction and dealings with Plaintiffs?”, the jury found bad faith on the part of both Runions. Because the record contains some evidence to support the jury’s explicit finding of bad faith, the attorney fees awarded on that basis must be affirmed.

2. The Runions contend that the trial court erred in denying their motion for mistrial after opposing counsel engaged in improper argument that inflamed the jury.

After the jury found for the Hofers on the issue of actual damages, the court permitted additional argument about attorney fees. During his closing, counsel for the Hofers argued:

And then after all of that was said and done, after they had gotten the expert’s report that showed things very specifically that were wrong with this house in June of 1996, to ignore that letter — that was not a letter saying “Send us money.” It was not a letter saying, “You owe us $60,000.00.” It was not asking for money. It was simply asking, “Let us know within ten days if you will come and fix this house. Otherwise you stand the risk of a lawsuit, and if we do that, we want you to know — I’m putting you on notice that if we have to go to that expense, we’re going to seek those expenses of litigation.” That letter was totally ignored, there was no response.

The Runions objected and moved for a mistrial, which was denied.

The Hofers’ counsel then urged, “[Bad faith] is what caused us to be here this week and for the Hofers to be involved in this litigation.” The Runions again objected and moved for a mistrial. The trial court immediately issued a curative instruction that, in essence, advised the jury that in the context of attorney fees, bad faith does not refer to one’s motive for defending a suit after a cause of action has already arisen. The court denied the Runions’ renewed motion for a mistrial.

The Runions correctly argue that “bad faith” within the meaning of OCGA § 13-6-11 does not encompass bad faith in defending or resisting a claim after the cause of action has already arisen. But, unlike in Stuckey, upon which they rely, here there is sufficient evidence of bad faith “connected with the transaction and dealings out of which the cause of action arose.”

A trial court’s ruling on a motion for mistrial will not be disturbed except when it is determined that the court manifestly abused its broad discretion. Moreover, “[u]nless it is apparent that a mistrial [was] essential to [the] preservation of the right [to a] fair trial, the discretion of the trial judge will not be interfered with.” Here, the trial court correctly stated the law to rectify immediately any potential misperception by the jury. In these circumstances, we cannot say that the trial court manifestly abused its discretion in denying the motion.

Decided August 15, 2000

Reconsideration denied September 12, 2000

R. Keith Prater, for appellants.

Charles F. Peebles, Lane R. Frostbaum, for appellees.

Judgment affirmed.

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

       Prior to jury deliberations, the fraud claim was dismissed except for a claim of passive concealment against Sherry Runion.

       In a consent order entered a few days before trial, the Hofers agreed to dismiss their claims for punitive damages.

        Parks v. Breedlove, 241 Ga. App. 72 (1) (526 SE2d 137) (1999).

        Hendon v. Superior Roofing Co., 242 Ga. App. 307, 308 (1) (528 SE2d 548) (2000).

       (Punctuation omitted.) Tattersall Club Corp. v. White, 232 Ga. App. 307, 312 (2) (501 SE2d 851) (1998).

        Baker v. Miller, 265 Ga. 486 (2) (458 SE2d 621) (1995).

       See Jennings v. Smith, 226 Ga. App. 765, 767 (2) (487 SE2d 362) (1997).

       The Runions did not object to this special verdict form during the charge conference. The complete jury instruction does not appear to have been included in the record. A failure to object to the verdict form waives any issue relating to it on appeal. KDS Properties v.

        Sims, 234 Ga. App. 395, 399-400 (4) (506 SE2d 903) (1998).

        Baker, supra, 265 Ga. at 486 (2).

        Smith v. Stuckey, 233 Ga. App. 103, 107 (3) (503 SE2d 284) (1998).

       (Punctuation omitted.) Compare id.

        Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 482 (9) (491 SE2d 909) (1997).

       (Punctuation omitted.) Stoner v. Eden, 199 Ga. App. 135, 137 (2) (404 SE2d 283) (1991).

       Id. at 137-138.


author: Johnson, Chief Judge.

text:
    A00A1280.
    ABERNATHY v. THE STATE.
    (539 SE2d 203)
   Johnson, Chief Judge.

After a jury trial, Ralph David Abernathy III was convicted of eighteen crimes, including five counts each of theft by taking, making a false statement, and violating an oath by a public officer, two counts of forgery, and one count of influencing a witness. The trial court sentenced Abernathy to serve four years in prison and six years on probation. Abernathy filed a motion for an appeal bond, but it was denied. He appeals from the trial court’s refusal to grant bond pending appeal. Because the trial court did not abuse its discretion in denying Abernathy’s motion for bond, we affirm the decision.

There is no constitutional right to bond pending appeal. The decision to grant or refuse to grant bail in noncapital felony cases after conviction is a matter which lies within the sound discretion of the trial court; we will not control that discretion unless it has been flagrantly abused.

In exercising its discretion, the trial court must answer four questions: (1) whether there is a substantial risk the defendant will flee; (2) whether there is a substantial risk the defendant will pose a danger to others in the community; (3) whether there is a substantial risk the defendant will intimidate witnesses or otherwise interfere with the administration of justice; and (4) whether it appears the appeal is frivolous or taken only for the purpose of delay. An affirmative answer to any one of these questions will support the trial court’s decision to deny an appeal bond. The defendant’s conviction rebuts the prior presumption of innocence and justifies requiring the defendant to bear the burden of convincing the court to grant an appeal bond. Thus, the trial court should not grant bond pending appeal unless the defendant presents sufficient information, evidence, or argument to convince the trial court that none of the four factors applies.

In this case, after a hearing on the motion for an appeal bond, the trial court found that there was no substantial risk that Abernathy would flee, no substantial risk that he would pose a danger to the community, and no substantial risk that he would intimidate witnesses or interfere with the administration of justice. The trial court found, however, that, based on his trial notes, his recollection of the trial, and the errors alleged by Abernathy, any appeal would be frivolous and intended only for delay.

1. Abernathy contends that the trial court, in reaching its decision, erroneously considered whether he demonstrated reversible error, rather than whether the appeal was frivolous or intended for delay. He argues that the law does not require a showing of reversible error, just that an appeal is not frivolous. To show that an appeal is not frivolous, he urges, he is only required to demonstrate that points raised in his appeal might arguably have merit. This argument presents no grounds for reversal.

During the hearing on the appeal bond motion the trial court mentioned that Abernathy failed to show reversible error. However, it also specifically discussed and applied each part of the required four-part test. The court considered Abernathy’s grounds for appeal and expressly found that any appeal on the bases asserted would be frivolous or interposed for delay. And, the trial court announced at the hearing that it was giving Abernathy’s trial counsel the opportunity to “point out, delineate for the court certain, at least arguably meritorious grounds for appeal.” Thus, the trial court utilized the proper standard in determining whether to grant bond.

2. The trial court did not abuse its discretion in concluding that Abernathy failed to show that the appeal would not be frivolous. Abernathy makes the following complaints about the trial:

Decided September 12, 2000.

Tony L. Axam, for appellant.

(a) Abernathy contends that no rational trier of fact could have found him guilty of influencing a witness as charged in Count 29 of the indictment, because the witness who he allegedly influenced testified that Abernathy “never offered her $2700 to lie to the GBF as charged in the indictment.

The trial transcript has apparently not yet been prepared, and the only “evidence” Abernathy submits in support of his contention that there is no evidence supporting the charge is his trial counsel’s testimony at the appeal bond hearing purporting to summarize the witness’ trial testimony. In response, the state claims that Abernathy has taken the witness’ statement out of context and that other evidence admitted at trial, specifically a tape recording of a conversation between Abernathy and the witness, shows that Abernathy offered the witness money and asked her to make false statements to the GBI. The trial court remarked at the bond hearing that it recalled the tape-recorded conversation and that a jury question was presented on this issue.

It was Abernathy’s burden to show that an appeal would not be frivolous. Given the absence of a trial transcript demonstrating that there was no evidence supporting the charge that he influenced a witness as charged in the indictment, Abernathy has not met his burden of showing that his challenge to the sufficiency of the evidence even arguably has merit.

(b) Abernathy complains that during closing arguments, the prosecutor made a statement designed to appeal to the jurors’ economic stake in the outcome of the case. The trial court’s curative instructions, he says, were ineffective to prevent prejudice. Again, no trial transcript is included in the record. The transcript of the bond hearing includes no details as to either the prosecutor’s remarks or the curative instructions given by the trial court. Under the circumstances, Abernathy has not met his burden of presenting evidence, information, or argument showing that his appeal would not be frivolous. The trial court did not abuse its discretion in refusing to grant an appeal bond.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Paul L. Howard, Jr., District Attorney, Thurbert E. Baker, Attorney General, Michael E. Hobbs, Deputy Attorney General, for appellee.

        Wade v. State, 218 Ga. App. 377, 378 (2) (461 SE2d 314) (1995).

        Williams v. State, 228 Ga. App. 289, 290 (2) (491 SE2d 500) (1997).

        Knapp v. State, 223 Ga. App. 267, 268-269 (477 SE2d 621) (1996).

       Id. at 269; Casillas v. State, 229 Ga. App. 805, 806 (494 SE2d 760) (1997).

        Ayala v. State, 262 Ga. 704, 707 (2) (425 SE2d 282) (1993); Wade, supra.

        Casillas, supra.

       See Shaw v. State, 178 Ga. App. 67, 68 (341 SE2d 919) (1986) (physical precedent only).

       See generally id.

       See generally Williford v. State, 218 Ga. App. 522, 524 (462 SE2d 632) (1995); Parrish v. State, 182 Ga. App. 247, 251 (8) (355 SE2d 682) (1987).


text:
    A00A2026, A00A2027.
    In the Interest of J. L. K. et al., children (two cases).
    (539 SE2d 507)
   Phipps, Judge.

In 1993, the Georgia Department of Human Resources, acting through the Ware County Department of Family & Children Services (DFACS), instituted this proceeding to terminate the parental rights of the mother of J. L. K., J. P. M., and P. S. M. and the parental rights of the father of J. P. M. and P. S. M. In unappealed orders, the juvenile court found the children to be deprived. After attempts at parental reunification proved unsuccessful, the juvenile court terminated both parents’ rights to the children in 1999.

In Case No. A00A2026, the father appeals. He contends that the evidence is insufficient to show that the children are currently deprived or that, with respect to him, the cause of past deprivation is likely to continue. In Case No. A00A2027, the mother appeals. She contends that the evidence is insufficient to show a present lack of parental ability by her. We find the evidence sufficient as to both parents and affirm.

When DFACS initially took the children into custody, they were approximately three months, fourteen months, and three years old. They were removed from appellants’ home because they, were living in unsanitary conditions, and parental neglect caused the two younger children to suffer from malnutrition, dehydration, failure to thrive, and hypothermia. The youngest child was described as a “starvation baby,” whose condition was so severe that he might have died had he not received medical treatment the day he was taken into custody.

A psychologist who conducted a psychological examination of the mother in 1998 testified that she has the mental capacity of a ten-year-old, suffers from depression, and is incapable of functioning as a primary parent for her children. The father has an extended history of alcoholism and was blinded in an alcohol-related fight. His dependency on others continues unabated due to his unwillingness to learn handicap-coping skills. He acknowledged that if he were given custody of the children, he would have to rely on someone else to care for them, but he has not identified anyone to function in that capacity. He is divorcing his present wife and currently resides alone.

Evidence shows that neither parent satisfactorily complied with family reunification case plans. The father seldom visited the children, and he admitted that “he just hadn’t done” things he needed to do to be present for visitation sessions. Overnight visits by the children with the mother were terminated because of physical abuse, which resulted in her criminal conviction of cruelty to children.

Because of their early childhood neglect, the children now suffer from post-traumatic stress disorders and have other behavioral problems. As a result, they require caregivers with heightened parenting skills.

Determining whether parental rights should be terminated involves a two-step analysis. In the first step, the court must find parental misconduct or inability. That finding must be supported by clear and convincing evidence that: (i) the child is deprived; (ii) lack of proper parental care or control caused the deprivation; (iii) the cause of the deprivation is likely to continue; and (iv) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. [Cits.]

Grounds for termination of parental rights include a medically verifiable health deficiency which prevents the parent from adequately providing for the children’s needs, excessive use of intoxicating liquors with the effect of rendering the parent incapable of adequately providing for the children, and physical abuse or neglect of the children. Failure to comply with a family reunification case plan also supports termination of parental rights.

Where parental rights have been terminated, the standard of appellate review is whether after reviewing the evidence in the light most favorable to the Department of Human Resources, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. Viewed in accordance with these principles, the evidence in this case supports findings that both parents were, are, and will continue to be unable to care for the children and that the conditions of deprivation in existence when the children were in the parents’ care would likely continue if the children were reunited with either parent. The unappealed deprivation orders establish that the children are deprived. Thus, termination of appellants’ parental rights was warranted.

Decided September 12, 2000.

McGee & McGee, James B. McGee III, for appellant (case no. A00A2026).

William R. Little, for appellant (case no. A00A2027).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Charles R. Reddick, John C. Shelton, for appellee.

Judgments affirmed.

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

        In the Interest of C. P., 242 Ga. App. 698, 702 (1) (531 SE2d 117) (2000).

       OCGA § 15-11-94 (b) (4) (B); see In the Interest of K. M., 240 Ga. App. 67, 68 (522 SE2d 667) (1999); In the Interest of K. R. C., 235 Ga. App. 354, 355 (1) (510 SE2d 547) (1998).

        In the Interest of B. M. L., 239 Ga. App. 511, 512 (521 SE2d 448) (1999).

        In the Interest of K. W., 233 Ga. App. 140, 141 (2) (503 SE2d 394) (1998).

        In the Interest of K. R. C., 235 Ga. App. 354, 355 (1) (510 SE2d 547) (1998).


text:
    A00A2117.
    CHRISTOPHER et al. v. THE STATE.
    (539 SE2d 206)
   Eldridge, Judge.

John Henry Christopher and Faye Lambert Christopher were charged with the offenses of manufacturing marijuana (Count 1) and possession of marijuana with the intent to distribute (Count 2). Following a jury trial, the jury found John H. Christopher guilty of manufacturing marijuana and guilty of the lesser included offense of possession of marijuana. Faye L. Christopher was found not guilty of manufacturing marijuana and guilty of the lesser included offense of possession of marijuana. Defendants appeal from the judgment entered on the verdict. We find no error and affirm.

1. Defendants allege that the trial court erred in denying their motion to suppress because the search warrant affidavit contained insufficient facts and evidence to enable a neutral and detached magistrate to conclude there was sufficient probable cause to believe that marijuana would be located at defendants’ residence.

In determining [the sufficiency of an affidavit to support the] issuance of a [search] warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by the Georgia Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. Under that analysis, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. [Cit.]

Galvan v. State, 240 Ga. App. 608 (524 SE2d 297) (1999).

In this case, a search warrant was issued for the defendants’ house based on the affidavit of Officer Mark McClure, which was attached to the search warrant. The affidavit of McClure contains the following information: (1) the affiant had been employed by the Georgia Bureau of Investigation (“GBI”) for approximately twelve years and had conducted numerous investigations concerning the production, sale, and distribution of marijuana; (2) defendant John H. Christopher was observed by law enforcement personnel leaving a business known as Atlantis Hydroponics in Athens with a lighting device commonly known by law enforcement personnel to be used in marijuana cultivation; (3) defendants’ home had two electric meters connected to the residence, and the house appeared to be heated by propane gas; (4) the power bills for account number 03090007 in the name of John H. Christopher showed a lower kilowatt usage of electricity during the summer months (June through August 1997) than the fall and winter months (September 1997 through January 1998), and the average monthly kilowatt usage between June 1998 and January 1999 had increased by 354 percent when compared with the identical months in 1997. and 1998; (5) the power, bills for account number 03090005 in the name of John J. Christopher showed that between January 1998 and February 1998 the bill more than doubled; (6) an exaggerated increase in power usage is consistent with the enterprise of growing marijuana indoors due to the enormous amounts of energy used by indoor lighting equipment; (7) certain equipment commonly used in the indoor manufacturing of marijuana (PVC piping, water hoses running to the basement, a 75-gallon rusty compressed air tank with a valve on top and what appeared to be insulated copper tubing wrapped partway in duct tape coming out of the top of the tank and going into a small hole in a boarded-up basement window, and a crude ventilation system coming out of the same basement window) was observed at the defendants’ residence; (8) a forward-looking infrared (“FLIR”) aerial surveillance at night (when the temperature was approximately 60°F) of defendants’ home indicated an unusual heat source emanating from the basement line along the right side of the house and from a concrete retaining wall adjoining the left side of the basement, which was consistent with large amounts of energy being used by lighting equipment to cultivate the growth of marijuana (a comparison FLIR was conducted on a neighboring residence of similar size which did not show any unexplained or unusual heat patterns); (9) defendants, operated a landscaping business out of their home, but the business was unfamiliar to local law enforcement officers, Hoyt “Buddy” Henry who is the owner-manager of a local garden center, and the Department of Agriculture Plant Protection Division, which licenses businesses that grow and sell plants in Georgia; (10) the vehicles of two persons with a criminal history of marijuana use and distribution were observed at defendants’ home on numerous occasions; and (11) a “Ryder” truck was observed parked in the driveway of the residence. McClure further averred that he interviewed Henry, who had nine years of experience working at Conrad’s Garden Center and was a former law enforcement officer with twelve years experience in narcotics investigations. Henry advised McClure of the following: (1) it is not economically advantageous for a small company to raise bedding or vegetable plants using an indoor hydroponic system; (2) there is no professional or commercial use for a hydroponic system in a landscaping business; (3) although carbon dioxide is a plant growth stimulant, it is not economical for the commercial production of plants; (4) during his nine years in the nursery business, he had never seen a professional or commercial use for hydroponic equipment or carbon dioxide for a small plant production company; and (5) during his twelve years in law enforcement, the only use he had seen for hydroponic growth equipment and carbon dioxide was the indoor production and manufacture of marijuana.

We find no error in the issuance of a search warrant based upon this affidavit. Although defendants argue that none of the facts averred to in the affidavit demonstrated any illegal activity by the defendants, the officer clearly averred that in his training and experience as a GBI agent such facts were indicative of the indoor production and manufacture of marijuana. Hence, the affidavit presented to the issuing magistrate provided a substantial basis for concluding that probable cause existed that contraband would be found in the place to be searched.

2. Defendants further allege that the trial court erred by denying their motion for mistrial. Prior to opening statements, the trial court instructed the jury as follows:

Decided September 12, 2000.

Germano & Kimmey, C. David Turk III, Summer & Summer, Daniel A. Summer, for appellants.

N. Stanley Gunter, District Attorney, Gerald W. Bruce, Assistant District Attorney, for appellee.

Trials are not like Perry Mason. The trial will be the following: First you will hear an opening statement from the [s]tate. An opening statement, my best analogy, is like the top of a jigsaw puzzle box. They’re going to pour out a bunch of pieces during the trial of the case and those pieces will come to you from oral testimony and documents and other things. Now, I’m going to give you a hint. That 1,000 piece puzzle and all those pieces are not there. Nobody can recreate each and every aspect of something that happened in the past. In fact, if every aspect was here clearly developed, we probably wouldn’t be here if each and every aspect were here.

Defendants argued at trial and on appeal that such statement by the trial court relieved the state of its burden of proving each and every essential element of the offense charged beyond a reasonable doubt. We disagree.

Viewing the court’s preliminary instructions as a whole, it is a correct statement of the law and explains that the defendants’ guilt may be proved by both direct and circumstantial evidence. Moreover, the charge given by the trial court at the end of the evidentiary phase of the case clearly informed the jury of the state’s burden to prove every material allegation of the indictment and to prove every essential element of the crimes charged beyond a reasonable doubt and defined reasonable doubt. The trial court, also, properly charged the jury on direct and circumstantial evidence. Therefore, error, if any, in the trial court’s preliminary instructions was corrected and was harmless. See Cochran v. State, 256 Ga. 113, 115 (8) (344 SE2d 402) (1986).

Judgment affirmed.

Blackburn, P. J., and Barnes, J, concur.

       Appellants’ reliance on Kelleher v. State, 185 Ga. App. 774 (365 SE2d 889) (1988), is unfounded. This two-judge case is not binding precedent and is also distinguishable on the facts. In Kelleher, this court found that there was “nothing in the affidavit to suggest that the house was being utilized as a base of operations for the actual distribution of drugs.” Id. at 777. However, in this case, the officer specifically averred to facts that he observed which in his training and experience indicated that marijuana was being grown within the house of defendants.


text:
    A00A2139.
    RAGSDALE HEATING & AIR CONDITIONING, INC. v. TERRELL et al.
    (539 SE2d 199)
   Eldridge, Judge.

We granted appellant-defendant Ragsdale Heating & Air Conditioning, Inc.’s (“Ragsdale”) application for interlocutory appeal in this premises liability case to review the superior court’s denial of Rags-dale’s motion for summary judgment. Having done so, we conclude that the superior court properly denied Ragsdale’s motion and affirm.

Appellees-plaintifis Lyndon and Sharon Terrell brought suit against Ragsdale and defendants Concept Homes Unlimited, Inc. (“Concept Homes”), Premier Properties, Inc. (“Premier Properties”), and Terry L. Cox seeking money damages for injuries to Mr. Terrell’s lower back arising out of a job site step and fall accident and for lost consortium in her husband suffered by Mrs. Terrell.

The record reflects that Concept Homes employed Ragsdale and Mr. Terrell as subcontractors to install heating and air conditioning and Sheetrock, respectively, in a home it was building. It is undisputed that Mr. Terrell stepped into a vent hole cut in the floor by Ragsdale’s job crew as a part of its “rough in” of the work site as he was installing Sheetrock in the home. That Mr. Terrell knew that vent holes were cut into the floor for the purpose of installing heating and air conditioning equipment is likewise undisputed.

Ragsdale contends that the superior court erred in denying its motion for summary judgment, arguing (a) that in the absence of its wilful or wanton negligence, Ragsdale owed Mr. Terrell no duty of care as a mere licensee in relation to it under Chambers v. Peacock Constr. Co., 115 Ga. App. 670 (155 SE2d 704), aff’d, Peacock Constr. Co. v. Chambers, 223 Ga. 515 (156 SE2d 348) (1967), and (b) that even in the event of negligence as alleged, it was entitled to summary judgment as a matter of law for Mr. Terrell’s admission that he had prior knowledge of the alleged hazard. Held:

In Doke v. Dover Elevator Co., 152 Ga. App. 434, 436 (263 SE2d 209) (1979), we concluded that Chambers was inapposite in circumstances where, as here, one or more subcontractors are laboring contemporaneously toward a common end. In such a circumstance, we held that “ ‘it is the duty of each to the others engaged in the work to exercise the care and skill ordinarily employed by prudent men [or women] in similar circumstances.’ [Cit.]” Id. Citing Doke, we more particularly thereafter held that “[a] building contractor or subcontractor has a duty, in prosecuting his [or her] work, to use ordinary care not to cause injuries to others engaged in work on the same premises.” Soucy v. Alexander, 172 Ga. App. 501, 502 (323 SE2d 662) (1984). Inasmuch as Ragsdale and Mr. Terrell were subcontractors on the same job, Ragsdale owed Mr. Terrell the duty to exercise reasonable care to ensure his safety while working in the vicinity of the heating and air vents in issue. Id. “Whether [Ragsdale] was negligent in failing to secure the [vent] hole or take other action [is] a jury matter.” Doke v. Dover Elevator Co., supra at 437. Thus, the superior court did not err in denying Ragsdale summary judgment on its claim that Mr. Terrell’s negligence complaint fails as a matter of law for want of the duty element. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (A defendant may prevail at summary judgment by showing that “there is no evidence sufficient to create a jury issue as to any essential element of plaintiff’s claim. . . .”).

Neither is Ragsdale entitled to summary judgment upon the argument that Mr. Terrell had equal knowledge of the vent hole in issue and failed to exercise due diligence for his own safety in that he “unequivocally admits that he had prior knowledge” of the uncovered vent before he stepped into it. In this regard, “[although the issue of plaintiff’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. [Cits.]” Soucy v. Alexander, supra. However, Mr. Terrell’s deposition and his affidavit in opposition to Ragsdale’s motion for summary judgment do not reflect the admission which Ragsdale argues. Instead, they reflect the contrary. Asked on being deposed if he had seen the vent hole in which he put his foot before the accident, Mr. Terrell responded in the negative, “Didn’t notice it, no.” Further, though Mr. Terrell otherwise deposed that he felt that the vent hole had been in the home when he had been there previously “because they cut them before I come in there and [S]heetrock[,]” his affidavit in opposition to Ragsdale’s motion for summary judgment made clear that he based this testimony on what he assumed rather than on what he knew firsthand. There also was undisputed evidence which showed that the applicable industry standard was to cover all vent holes upon “roughing in” to ensure safety. Moreover, the evidence showed that Mr. Terrell had worked an entire day in the home before the accident, inclusive of the place where the accident occurred, without incident. Against this, it was undisputed that Ragsdale knew of the hole into which Mr. Terrell fell, having cut it into the floor. It was Ragsdale’s duty to make its work safe for other workers. Id.

Under these circumstances, it is not unreasonable to conclude that Ragsdale’s knowledge of the uncovered vent hole in the premises and the hazard it represented was clearly greater than that of Mr. Terrell. It follows that Mr. Terrell’s knowledge of the risk was not clear and palpable. Soucy v. Alexander, supra at 503. Accordingly, the superior court did not err in denying Ragsdale summary judgment on its claim that Mr. Terrell knew as much or more of the hazard than it did.

Decided September 12, 2000.

Downey & Cleveland, George L. Welborn, for appellant.

Hartley, Rowe & Fowler, Joseph H. Fowler, for appellees.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The superior court granted default judgment against Concept Homes as to all issues of liability. The Terrells then added defendants Premier Properties and Cox to their lawsuit by amended complaint. Thereafter, the superior court likewise granted the Terrells default judgment as to liability as to these parties and contemporaneously denied the joint motion of all the defaulted parties to open default.