text:
    A96A1686.
    QUARTERMAN v. THE STATE.
    (479 SE2d 397)
   Judge Harold R. Banke.

Roger Quarterman was convicted of one count of sale of cocaine. On appeal, he enumerates five errors.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Three undercover agents of the Savannah-Chatham County Counter-Narcotics Team who were driving around midtown Savannah stopped Quarterman’s co-defendant, Ronald McDonald, and asked him for $50 worth of crack cocaine. McDonald told them to circle the block. After they circled several times, McDonald told them to park and took from one of the agents a $50 bill which previously had been photocopied to record its serial number. McDonald then walked over to Quarterman and exchanged the $50 for six pieces of crack cocaine. Moments later, Quarterman entered a Cadillac which pulled away. Agents followed and arrested Quarterman shortly thereafter. At the time of his arrest, Quarter-man was wearing a jeans outfit with dollar signs on it. Agents found the $50 bill exchanged for the cocaine in Quarterman’s front pants pocket. Held:

1. The admission of the photocopy of the $50 bill used to purchase the cocaine does not require reversal. First, it appears that the error, if any, was not properly preserved because Quarterman never presented any argument on this issue at trial. Furfano v. State, 212 Ga. App. 472, 473 (2) (442 SE2d 305) (1994). The State sought to admit a photocopy with a number of bills on it instead of just the one at issue, and Quarterman limited his objection to the relevance of the extraneous bills, not the best evidence and business records arguments he asserted on appeal. Second, any error would be harmless in light of the other evidence linking Quarterman to the sale, including the eyewitness testimony of three undercover agents who saw Quarterman give McDonald an object which subsequently tested positive for cocaine. McDonald then delivered the object to the agents, took their $50, and gave it to Quarterman. This evidence “otherwise fully and properly established” the fact sought to be shown, that McDonald gave Quarterman the $50 in exchange for the cocaine. Brewer v. Williams, 167 Ga. App. 151, 153 (6) (305 SE2d 891) (1983).

2. The State did not unconstitutionally inject Quarterman’s character into evidence by asking McDonald whether he had talked to Quarterman in lockup. Because “evidence that an accused has been confined in jail in connection with the case at issue does not place his character in evidence,” this enumeration lacks merit. (Citations and punctuation omitted.) Ferrell v. State, 198 Ga. App. 270, 272 (3) (401 SE2d 301) (1991). We reject Quarterman’s assertion that this rule is inapplicable because the State elicited the information. See id.

3. The trial court did not commit reversible error by informing Quarterman, in the context of discussing the State’s proposed sentence on a guilty plea, that if he was convicted, as a recidivist he would get the maximum punishment. Quarterman argues that by this statement, the court declined to exercise its discretion under OCGA § 17-10-7 (a) by considering probating a portion of his sentence.

At sentencing, the trial court inquired whether Quarterman had any evidence in mitigation, but he offered none. Knowing that OCGA § 17-10-7 (a) required it to impose the maximum sentence on Quarterman as a recidivist, “the trial court obviously would not have inquired about mitigating evidence unless it was prepared to consider that evidence in connection with probation or suspension of the maximum sentence.” (Citation and punctuation omitted.) Knight v. State, 221 Ga. App. 92, 93 (470 SE2d 486) (1996). On the record before us, we cannot assume the court failed to exercise the discretion allowed but not required by OCGA § 17-10-7 (a), particularly when the sentence is within the statutory limits. Stephenson v. State, 218 Ga. App. 613, 617 (4) (462 SE2d 767) (1995).

4. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crime of selling cocaine. Jackson v. Virginia, 443 U. S. at 319-320. We reject Quarterman’s contention that the State’s case relied entirely on circumstantial evidence in light of the three agents’ eyewitness testimony of the transaction. See Nebbitt v. State, 187 Ga. App. 265, 266 (1) (370 SE2d 1) (1988). Notwithstanding Quarterman’s argument to the contrary, reversal is not required by the fact that the agents were not close enough to identify as cocaine the small object which Quarterman gave to McDonald because when considered in context the evidence was sufficient to permit the jury to exclude every reasonable hypothesis save guilt. Id. at 267 (1).

5. To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990). We need not inquire into counsel’s alleged deficiency, absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

(a) The record belies Quarterman’s contention that counsel was ineffective for failing to interview witnesses before trial. Counsel testified that he interviewed Ronald McDonald before trial as well as Quarterman’s girl friend, the only two witnesses Quarterman named.

(b) We reject Quarterman’s argument that his counsel was ineffective for failing to move to suppress the marked $50 and his distinctive clothing based upon a lack of probable cause to arrest. A warrantless arrest, such as the arrest at issue here, is constitutionally permissible if, at the moment of arrest, “ ‘the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.’ [Cits.]” Hatcher v. State, 219 Ga. App. 82, 83-84 (464 SE2d 236) (1995). Here, three officers witnessed Quarterman exchange an object which appeared to be cocaine for the marked $50. This was sufficient probable cause to arrest to satisfy the Fourth Amendment. See Durden v. State, 250 Ga. 325, 326-327 (1) (297 SE2d 237) (1982). Having conducted a lawful arrest, the officers were entitied to search Quarterman. Mitchell v. State, 200 Ga. App. 146, 147-148 (1) (407 SE2d 115) (1991).

Decided November 15, 1996

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger, Assistant District Attorney, for appellee.

(c) Trial counsel was not ineffective for failing to assert a best evidence or business records objection to the photocopy of the $50. Had the photocopy been excluded we find no reasonable probability the result of the trial would have been different in light of the officers’ testimony that they saw McDonald give Quarterman the $50.

(d) “ ‘When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted in the single enumeration.’ . . . [Cit.]" Howard v. State, 220 Ga. App. 267, 271 (4) (469 SE2d 396) (1996). Because Quarterman failed to support the remainder of his ineffectiveness claims with argument or legal authority, we decline to reach them. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

       We observe with disappointment that the State inexplicably failed to address this enumeration.

       After entering a guilty plea, McDonald testified for the defense. At Quarterman’s insistence, his girl friend did not testify.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A96A1727.
    FIELDS v. THE STATE.
    (479 SE2d 393)
   Birdsong, Presiding Judge.

Larry Lane Fields appeals his DUI conviction. He enumerates three errors. Held:

1. Appellant first contends the trial court erred by not charging as to the limited purpose for which the jury was authorized to consider evidence of similar transactions in its general jury charge. The record before us reflects that appellant failed to request the trial court to charge the jury regarding similar transaction evidence. Also the record reveals that, based on the request of both the appellant and the State, the charging conference was not subject to court reporter take-down and therefore is not part of the appellate record. The absence of a transcript precludes this Court from determining whether appellant properly requested the similar transaction charge at the charge conference; accordingly, this question will be resolved against the appellant on appeal. See Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500).

The issue remains whether the trial court erred by failing to instruct the jury sua sponte during its general charge as asserted in appellant’s first enumeration of error. The record reflects that while no such instruction was contained within the trial court’s final jury charge, the trial court, immediately following the admission of the similar transaction evidence, expressly instructed the jury as to the limited purpose for which the evidence was admitted. The trial court instructed: “This testimony is to show the [appellant’s] bent of mind and course of conduct. It’s not for the truth of the statement, but to show that. So with that in mind, if you will continue.” Appellant neither objected to the substance of this instruction nor requested further clarification thereof. Thus, appellant acquiesced by silence in the limiting instruction as given. See State v. Pattee, 201 Ga. App. 690, 693 (411 SE2d 751), citing Horan v. Pirkle, 197 Ga. App. 151 (1) (397 SE2d 734). Moreover, in a subsequent colloquy between the trial court and counsel conducted in the presence of the jury, the trial court stated: “I have ruled that it is admissible just to show bent of mind and . . . common course of conduct.”

Under these circumstances we conclude that since appellant made no request to charge in proper form, he was not entitled to a limiting instruction either upon admission of the similar transaction evidence “or in the general charge.” Bell v. State, 219 Ga. App. 553, 554 (2) (466 SE2d 68); compare Farley v. State, 265 Ga. 622, 626 (3) (458 SE2d 643), where the trial court gave the standard charge but did not give a more detailed unrequested charge as to the limited admissibilty of other transaction evidence. The' case of Prickett v. State, 220 Ga. App. 244 (2) (469 SE2d 371), where the reported facts reflect that no limiting instruction of any type was given to the jury, is distinguishable and not controlling. Appellant’s first enumeration of error, as crafted, is without merit.

We do not here decide whether appellant adequately reserved his objection to the charges on appeal by merely responding when asked to state any exceptions thereto that “on behalf of the [appellant], we have none at this time.” We also do not reach a determination as to the content required in a general charge as to similar transaction evidence once a timely request therefor has been made in proper form. Compare Farley, supra, with Adams v. State, 208 Ga. App. 29, 37 (3) (e) (430 SE2d 35) (physical precedent only) and progeny.

2. Appellant contends the trial court erred in admitting similar transaction evidence sufficiently distinguishable from the offenses alleged so as to prejudice the jury against him. Unlike certain other criminal offenses, which can be committed under a variety of widely varying circumstances, “the crimes of driving after having been declared an habitual violator and driving under the influence are essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication[, or the location and manner of driving,] may vary, but it is the simple act of driving . . . while under the influence that establishes the commission of those crimes. A prior act of driving while having that status or while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct.” Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638).

Additionally, there can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. “[T]he issue of admissibility of extrinsic transactions has never been one of ‘mere similarity.’ It is, rather, ‘relevance to the issues in the trial of the case.’ ‘Depending upon the purpose for which the extrinsic offense is offered, [e.g., where similar transaction evidence is offered to prove identity,] the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.’ ” (Citations omitted; emphasis in original.) Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316). The State was admitting the similar transaction evidence to prove bent of mind and course of conduct. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. See Harris v. State, 222 Ga. App. 52, 53 (2) (473 SE2d 232). Similar transaction evidence can be introduced to prove bent of mind when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense. See Banks v. State, 216 Ga. App. 326, 327 (2) (454 SE2d 784). Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind “to get behind the wheel of a vehicle when it’s less safe for him to do so.” For each of the above reasons appellant’s contention is without merit.

3. Appellant’s final enumeration is that the trial court erred in allowing a videotape to be displayed to the jury and submitted in evidence, as there was a lack of proper foundation laid as to the chain of custody of the videotape. The video camera was mounted in the patrol car of the arresting officer and the tape included audio and visual recordings of the events occurring during the administration of sobriety tests to appellant; however, the tape apparently did not reveal appellant’s face during a significant portion of the incident. The arresting officer testified he had activated the video camera and that he had been trained and was competent to turn the camera on to record. The videotape remained in the VCR camera, located in the trunk of the patrol car, until it was completely filled up with traffic stop recordings; the arresting officer then personally removed the tape from the camera, labeled it, and placed it in the police evidence room until it was needed in court. The officer examined the videotape label bearing his handwriting and identified the videotape as the one taken during the incident. He testified that he had reviewed the tape during his lunch hour and had ascertained that there were no changes or deletions to the tape; “it’s the same as it was when it happened.” He also testified that the tape accurately depicts the event and any conversation that took place on that evening when he was with appellant.

Decided November 15, 1996.

Glyndon C. Pruitt, for appellant.

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, Richard E. Thomas, Assistant Solicitors, for appellee.

“A videotape, like an audiotape or a photograph, is a distinct recognizable physical object that can be identified upon observation.” Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313). “ ‘Distinct physical object(s) that can be identified and differentiated by the senses of observation’ are not ‘subject to the “chain of custody” requirement.’ [Cits.]” Id. “The chain of custody requirement does not apply to distinct and recognizable physical objects that can be identified upon observation, such as videotapes.” Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294), citing Gadson, supra.

Additionally, following the introduction of the tape over appellant’s objection as to lack of foundation showing an adequate chain of custody, appellant was provided with an opportunity to cross-examine the arresting officer at length regarding the contents of the tape and as to any perceived inconsistencies in his testimony earlier in the trial. Appellant has failed to show how the introduction of the videotape of his arrest prejudiced his right to a fair trial.

“Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal.” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901). Appellant has failed to meet either of these requirements. Appellant’s third enumeration of error, as crafted, is without merit.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.


author: Judge Harold R. Banke.

text:
    A96A2132.
    HOOD v. THE STATE.
    (479 SE2d 400)
    Decided November 15, 1996

      Paul R. Cadle, Jr., for appellant.
   Judge Harold R. Banke.

Seconda Diane Hood was charged via accusation with felony theft by shoplifting and the misdemeanor offenses of giving a false name and false date of birth. The accusation also included a recidivism count based upon Hood’s prior burglary conviction. After the jury returned a guilty verdict, the trial court sentenced Hood as a recidivist to ten years imprisonment on the shoplifting count. She received concurrent 12-month sentences on the misdemeanor counts. Held:

We reject Hood’s contention that the State’s use of an accusation rather than a grand jury indictment precluded the trial court from sentencing her as a felon. In enacting OCGA § 17-7-70.1, the legislature authorized the use of accusations rather than grand jury indictments for certain enumerated felonies, including OCGA § 16-8-14, the theft by shoplifting statute. Lamberson v. State, 265 Ga. 764 (1) (462 SE2d 706) (1995) (finding OCGA § 17-7-70.1 not violative of the Fifth and Fourteenth Amendments). On these offenses, the State may proceed to trial upon accusation without obtaining a waiver of indictment. Id. Individuals accused under § 17-7-70.1 must be tried “according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.” OCGA § 17-7-70.1 (a). Accordingly, the trial court was not required to sentence Hood as a misdemeanant simply because the State utilized an accusation rather than an indictment.

Further, notwithstanding Hood’s argument to the contrary, the fact that a grand jury did not consider her prior conviction did not prevent the trial court from sentencing her as a recidivist. The necessity for grand juries to consider a defendant’s prior convictions in imposing recidivist sentences ceased in 1974 when the legislature removed the responsibilities of sentencing from the juries’ purview and adopted court-imposed sentencing. Wainwright v. State, 208 Ga. App. 777, 778 (2) (a) (432 SE2d 555) (1993). The case on which Hood relies, Aldridge v. State, 158 Ga. App. 719, 721 (4) (282 SE2d 189) (1981), applied the earlier law to require grand jury consideration of prior convictions. Id. (relying on Riggins v. Stynchcombe, 231 Ga. 589, 592-593 (203 SE2d 208) (1974); see Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985)).

Judgment affirmed.

Birdsong, R J., and Blackburn, J., concur.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A96A1548.
    FURLONG v. CRYSTAL CHANDELIER, INC. et al.
    (478 SE2d 396)
   McMurray, Presiding Judge.

At about 7:00 in the evening on May 26, 1993, Lorraine Furlong went with some friends to a country/western bar and dance club known as the Crystal Chandelier. When the group entered the establishment, they selected seating overlooking the club’s sunken dance floor. Furlong sipped on a glass of wine during the next four hours and twice made her way down a dimly lighted stairway to the club’s dance floor. Furlong’s third trip down this unrailed stairway was not so easy. When her right foot touched the third or fourth step, she “felt something under [her] foot very hard . . .” and immediately noticed that she was stepping on “ice cubes.” Furlong’s “arms flared out trying to break the fall, [her] ankle flared fiercely out [and] snapped to [her] right, . . . directly behind [her].” Furlong “landed on the dance floor very, very hard.” The impact shattered several bones in her ankle. It soon swelled to an enlarged condition. “At this point, [Furlong] passed out.”

Furlong brought an action against the dance club’s owner, Crystal Chandelier, Inc. (“Crystal Chandelier”), and Crystal Chandelier’s manager, Larry Robinson, alleging that Crystal Chandelier failed to comply with its duty of preparing a safe place for her patronage and that Robinson compounded her injuries after the fall by recklessly manhandling her off the dance floor, ushering her out the club’s door and ignoring her pleas for emergency medical assistance. Crystal Chandelier and Robinson denied liability and filed a motion for summary judgment, claiming Furlong’s own carelessness is the sole proximate cause of her injuries. To this end, Crystal Chandelier and Robinson pointed out that Furlong successfully navigated the dance floor stairway twice during her four-hour stay at the Crystal Chandelier and that Furlong admitted during her deposition that she saw the ice cube hazard before her fall.

Furlong’s deposition testimony reveals that she did not see the “ice cubes” until her right foot hit “something very hard . . .” on her third or fourth step down the dance floor stairway. Furlong’s deposition also shows that this stairway was “extremely dimly lit”; that the ice cubes which caused her fall were small and partially melted; that the nearby dance floor was buzzing with dancers at the time she fell; that the dance floor stairway was constructed without handrails and that the Crystal Chandelier’s employees were serving drinks on the dance floor on the night Furlong fell.

The trial court granted defendants’ motion for summary judgment. This appeal followed. Held:

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). Furlong’s testimony in the case sub judice that she did not see the small ice cubes in the dimly illuminated dance hall until it was too late and that she was on her way to the dance floor, down an unrailed stairway, at the time she fell raises genuine issues of material fact as to the second prong of this test, i.e., whether Furlong exercised reasonable care for her own safety in approaching the dance floor. See Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485). Thus, the only question remaining is whether the proprietor had actual or constructive knowledge of the foreign substance.

Liability based on constructive knowledge may be established by showing that the proprietor failed to exercise reasonable care in inspecting the premises. Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 167 (2), 168 (424 SE2d 845). In the case sub judice, Larry Robinson deposed in his affidavit that he conducted a routine inspection of the premises five minutes before Furlong’s mishap and that he did not then notice ice or water on the dance floor stairway where Furlong fell. This explanation, however, does not irrefutably show that Robinson exercised the degree of care called for in conducting his purported examination of the dimly illuminated area where Furlong fell. Such “ ‘issues of diligence, negligence, and contributory negligence are issues for jury determination except in plain and indisputable cases. (Git.)’ Strickland [v. Howard, 214 Ga. App. 307 (1), 308 (447 SE2d 637)].” Brown v. Who’s Three, 217 Ga. App. 131, 136 (3), 137 (457 SE2d 186).

As to Crystal Chandelier’s superior knowledge of the ice hazard in the case sub judice and Crystal Chandelier’s responsibility to discover it, Crystal Chandelier knew that its employees routinely served iced beverages on and around the area where Furlong fell. Crystal Chandelier also knew that the stairway where Furlong fell was a busy thoroughfare for dance patrons and that, despite the increased spillage risk in this drinking area due to patrons or servants, the stairway was poorly illuminated and unprotected by handrails. With this knowledge, and without explanation as to the specific inspection procedures Robinson employed, we simply cannot “say that ‘ “ordinary diligence did not as a matter of law, under the facts (as shown), require an inspection (sufficient to reveal the defect).” ’ Lonard v. Cooper &c. Properties, 214 Ga. App. 862, 865 (449 SE2d 348) (1994).” Brown v. Who’s Three, 217 Ga. App. 131, 136 (3), 137, supra. This issue of ordinary care must be resolved by a jury.

Decided November 5, 1996

Reconsideration denied November 18, 1996

Paul T. Wright, Craig T. Jones, for appellant.

Lorraine Furlong, pro se.

Hawkins & Parnell, Prank C. Bedinger III, Kevin J. Bohr, Debra L. Dewar, for appellees.

The trial court erred in granting Crystal Chandelier and Robinson’s motion for summary judgment.

Judgment reversed.

Johnson and Ruffin, JJ, concur.

       Crystal Chandelier and Robinson’s motion for summary judgment speaks only to culpability based on Crystal Chandelier’s alleged failure to exercise ordinary care in keeping its premises safe. Thus, issues relating to culpability based on Larry Robinson’s alleged conscious indifference for Furlong’s well-being after the fall remain in the trial court.


text:
    A96A2148.
    KHAN et al. v. SANDERS.
    (478 SE2d 615)
   McMurray, Presiding Judge.

Plaintiffs Mohammed Khan and Dennis Rogers, doing business as M & R Construction, filed this breach of contract action against defendant John Sanders, doing business as Sanders Service Company, in the State Court of DeKalb County, Georgia. Plaintiffs sought reimbursement of unspecified “expenses for equipment costs not paid by Defendant, and to secure replacement services.” They also demanded “liquidated damages at $50.00 per day for [the 212] days the job remained undone after June 10, 1994.” Plaintiffs further interposed a claim of abusive litigation, alleging that, “more than three (3) months after the last item of work, and contrary to Georgia law[,] Defendant filed a Mechanic’s Lien on the property of the Meineke Muffler construction.”

Defendant admitted the written agreement but denied any breach thereof and alleged that his materialman’s lien was timely. He also counterclaimed in the principal amount of $7,260, alleging plaintiffs “failed and refused to pay the bill without legal justification, apparently due to the inability to get payment from the property owner. . . .”

Decided November 5, 1996

Reconsideration denied November 18, 1996

Gerard D. Hegstrom, for appellants.

Levy & Adams, D. Merrill Adams, for appellee.

On November 9, 1995, the State Court entered the following judgment for defendant: “The above action coming on regularly to be heard, Plaintiff having failed to properly respond upon the call of the case for trial, upon motion of Defendant pursuant to Uniform Court Rule 14, Plaintiff’s complaint is stricken and judgment hereby granted for Defendant on the counterclaim in the sum of $5,050.00 Principal, $833.25 Interest, $0 Attorney fees and cost of court, plus future interest on the judgment at 12% per annum.” Plaintiffs’ timely motion to set aside judgment, motion for new trial, and motion to open default judgment, based upon counsel’s scheduling “conflict through accidental and unforeseen circumstances,” were denied. This direct appeal followed. Held:

Appeals in all actions for damages in which the judgment is $10,000 or less shall be by application in the nature of a petition filed with the Clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of. OCGA § 5-6-35 (a) (6), (b), (d). In the case sub judice, a direct appeal is not authorized from the order denying plaintiffs’ motion for new trial, motion to set aside the judgment, and motion to reopen default, where the underlying judgment awarded defendant contractual damages in the principal sum of $5,050 plus $833.25 interest on his counterclaim. Consequently, this unauthorized direct appeal must be dismissed for plaintiffs’ failure to comply with the mandatory procedures for discretionary appeal. Hill v. Rose Elec. Co., 220 Ga. App. 603 (469 SE2d 844). Compare McClure v. Gower, 259 Ga. 678, 680 (2) (385 SE2d 271).

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


author: Ruffin, Judge.

text:
    A95A1747.
    WATSON et al. v. CITY OF ATLANTA.
    (478 SE2d 474)
   Ruffin, Judge.

In Watson v. City of Atlanta, 219 Ga. App. 704 (466 SE2d 229) (1995), we reversed the decision of the trial court. The Supreme Court reversed our decision in City of Atlanta v. Watson, 267 Ga. 185 (475 SE2d 896) (1996). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided November 18, 1996

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, David P. Thatcher, for appellants.

Charles G. Hicks, Clifford E. Hardwick IV, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A96A1243.
    O’DELL et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
    (478 SE2d 418)
   Smith, Judge.

This declaratory judgment action was filed by Daniel Lee O’Dell and two companies owned by him, DRACS Consulting Group, Inc. (DRACS) and Direct Recruiting Associates (DRA), against St. Paul Fire & Marine Insurance Company and Tracey Gilleland. O’Dell and his companies appeal from the trial court’s grant of St. Paul’s motion for summary judgment and its denial of their motion for summary judgment.

It is necessary to relate the pertinent facts regarding the underlying tort action from which this action arose. On September 16, 1994, Gilleland filed a complaint against O’Dell, DRACS, and DRA. She alleged that O’Dell sexually taunted and harassed her, with the knowledge of DRACS and DRA, during her employment as office manager by DRACS and DRA from October 1991 to March 26, 1993. The complaint described numerous crude sexual comments and lascivious gestures made by O’Dell specifically to and about Gilleland. For example, Gilleland alleged that O’Dell called her a “whore” and a “slut” and that when she “would walk into a room in front of O’Dell, he would say to the others present, £I could have that if I wanted it.’ ” Another allegation was that O’Dell used a stick to lift up Gilleland’s skirt and would hit the tops of her feet with the stick “in order to humiliate [her], in front of several employees.” He also allegedly entered Gilleland’s office on several occasions and made gestures as if he wished her to perform oral sodomy. When she protested and cried, he allegedly laughed. In fact, Gilleland alleged that ££[o]ne of . . . O’Dell’s favorite pastimes was to do whatever mean or harassing thing to [Gilleland] that he could think of in order to cause [her] to cry in her office and in front of people.” Based on these as well as several other factual allegations of outrageously crude and lascivious conduct, Gilleland sought damages for claims of assault, battery, intentional infliction of emotional distress, sexual harassment, and negligent retention of employment.

O’Dell sought coverage from St. Paul, the insurer who had issued commercial general liability coverage to O’Dell’s companies, under three successive policies. St. Paul refused to defend the lawsuit on the grounds that the damages sought by Gilleland were not covered and that certain exclusions precluded coverage. O’Dell filed this declaratory judgment action to determine the obligations of the parties with respect to the policies. O’Dell appeals the trial court’s ruling that St. Paul was not obligated to defend the lawsuit.

“An insurer’s duty to defend is determined by the insurance contract; and since the contract obligates the insurer to defend claims asserting liability under the policy, even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.” (Citations and punctuation omitted.) Brayman v. Allstate Ins. Co., 212 Ga. App. 96 (1) (441 SE2d 285) (1994). See also Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995). The critical issue is “whether the suit alleges a claim that is covered by the policy. [Cit.]” Cantrell v. Allstate Ins. Co., 202 Ga. App. 859, 860 (415 SE2d 711) (1992). We therefore must compare the terms of the insurance contract to the allegations in the complaint to determine whether the Gilleland lawsuit seeks damages for covered claims.

St. Paul’s duty to defend is described in the policies as follows: “Right and duty to defend. We’ll have the right and duty to defend any claim or suit for covered injury or damage made or brought against any protected person.” The policies recite that they cover four types of injuries: (1) bodily injury; (2) property damage; (3) personal injury; and (4) advertising injury. It appears to be undisputed that the claims for which O’Dell seeks coverage are Gilleland’s claims for bodily and personal injury.

1. Bodily injury. In the policies effective from March 15, 1991 through March 15, 1993, bodily injury is defined as “physical harm, including sickness or disease, to the health of others. It also includes death resulting at any time from such harm.” The successor policy, in effect eight days before Gilleland’s termination, defined bodily injury as “any physical harm, including sickness or disease, to the physical health of other persons. It includes any of the following that result at any time from such physical harm, sickness or disease: mental anguish injury or illness; emotional distress; care, loss of services, or death.” In Georgia, “used in an insurance policy, the term ‘bodily injury’ means just that — ‘bodily injury.’ It pertains to physical injury to the body. It does not include non-physical, emotional or mental harm. And it cannot be equated with a broader term ‘personal injury.’ ” (Citations and punctuation omitted.) Brayman, supra, 212 Ga. App. at 96-97 (1). Although Gilleland alleged emotional distress in her lawsuit, she did not allege that such distress resulted from physical harm or injury. Consequently, those allegations do not constitute bodily injury as defined by the policies. See Brayman, supra; Wilmington Island Constr. Co. v. Cincinnati Ins. Co., 179 Ga. App. 477, 479 (2) (347 SE2d 308) (1986).

Moreover, even assuming that Gilleland’s complaint alleged bodily injury as contemplated by the policies, all policies recite that coverage applies if bodily injury arises out of an “event.” They define event as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Emphasis supplied.) Although the policies do not define accident, “in Georgia an accident is defined as an event which takes place without one’s foresight or expectation or design. An accident refers to an unexpected happening rather than one occurring through intention or design. Acts could not be unexpected unless they were accidental.” (Citations and punctuation omitted.) Southern Guaranty Ins. Co. v. Phillips, 220 Ga. App. 461, 462 (1) (469 SE2d 227) (1996). See also Brayman, supra at 97 (1). Given the allegations that O’Dell committed sexual harassment and assault and battery, which are by their nature intentional, we cannot conclude that bodily injury, if any, was caused by an accident. See id.; Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 611 (373 SE2d 671) (1988). Consequently, the allegations of bodily injury do not fall within the policies’ definitions of “events” and are not covered.

O’Dell also claims that St. Paul must defend the lawsuit on behalf of DRACS and DRA because Gilleland alleged facts on which a cause of action for negligent retention of O’Dell could be based. We note initially that the policy does not recite that it covers losses due to negligent retention. But even if this were true, the complaint does not allege that Gilleland suffered bodily injuries, and even assuming she did suffer bodily injuries, she did not allege that those injuries were caused by an accident and thus were brought about by an “event.”

2. Personal injury. The policies all recite that St. Paul will provide coverage for the following specific personal injuries that result from business activities: “false arrest, detention, or imprisonment; malicious prosecution; wrongful entry or wrongful eviction; libel or slander; written or spoken material made public which belittles the products or work of others; written or spoken material made public which violates an individual’s right of privacy.” Although Gilleland did not specifically make a claim that O’Dell committed any of these offenses, O’Dell argues that the lawsuit nevertheless alleged facts on which a cause of action for slander (which is a covered personal injury) could be based. According to O’Dell, “recovery [for slander] could have been possible under an unstated cause of action based on the facts that were alleged.”

We do not reach here the issue of whether an insurer is obligated to defend an as yet “unstated cause of action.” Even assuming that the complaint somehow provided notice to St. Paul that Gilleland raised a slander claim, Gilleland’s lawsuit was filed more than one year after her employment was terminated on March 23, 1993. An action for slander was therefore barred by the one year statute of limitation pursuant to OCGA § 9-3-33.

O’Dell argues that a statute of limitation defense is an affirmative defense and is waived if not raised in an answer. The defense is indeed affirmative in nature, OCGA § 9-11-8 (c), but St. Paul has not waived it. “The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver.” (Citations and punctuation omitted; emphasis supplied.) Brown v. Moseley, 175 Ga. App. 282, 283 (1) (333 SE2d 162) (1985). See also Fortier v. Ramsey, 136 Ga. App. 203, 206 (2) (220 SE2d 753) (1975) (statute of limitation can be raised in opposition to motion for summary judgment). St. Paul raised the statute of limitation defense at the first practical opportunity — in its response to O’Dell’s motion for summary judgment, in which O’Dell raised the issue that facts appeared in the Gilleland lawsuit supporting an action for slander. The slander issue was first actually raised by O’Dell in connection with the parties’ respective motions for summary judgment. Since St. Paul immediately responded to that issue after it was raised by O’Dell, O’Dell cannot claim that he was surprised, and the purpose behind the rule that affirmative defenses be pled was met. The lawsuit was filed after the statute of limitation ran on any slander claim, and St. Paul has no duty to defend against Gilleland’s lawsuit. Accordingly, the trial court did not err in granting St. Paul’s motion for summary judgment and denying O’Dell’s motion for summary judgment.

Judgment affirmed.

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

Decided November 18, 1996.

James E. Goodman, for appellants.

Tittsworth, Grabbe & Spillers, Jennie E. Rogers, Stokes, Lazarus & Carmichael, William K. Carmichael, Michael J. Ernst, for appellees.

       In the third policy, personal injury offenses are almost identically defined, except for the language describing the last two enumerated offenses. The third policy recites that personal injuries include “making known to any person or organization written or spoken material that belittles the products, work or completed work of others [and] making known to any person or organization written or spoken material that violates an individual’s right of privacy.”

       We note that in connection with this action for declaratory judgment, O’Dell requested that Gilleland’s lawsuit be enjoined. The trial court honored that request by enjoining Gilleland from further action in her lawsuit by order dated February 17, 1995.


text:
    A96A1517.
    SOUTHERN FIRE & CASUALTY COMPANY v. JAMERSON et al.
    (479 SE2d 404)
   Smith, Judge.

Five-year-old Matthew Shaun Mayhand was killed when a tractor owned by Earl Jamerson rolled over him. Matthew’s grandfather and legal guardian, Ronald Mayhand, filed an action for damages against Jamerson. Southern Fire & Casualty Company, who had issued a policy of homeowner’s insurance to Jamerson, filed this action seeking a declaration that it had no duty to defend or pay a judgment in the underlying action. The parties stipulated that the trial court would determine all issues of law and fact.

The parties stipulated the following facts. Matthew, Ronald Mayhand, and Brenda Sue Williams all resided with Jamerson and his wife, Gloria Jamerson, on the day Matthew died. Williams is the niece of Gloria Jamerson. The policy issued by Southern Fire includes the following exclusion of coverage for personal liability: “Personal liability [coverage] does not apply to . ... bodily injury to you or an insured within the meaning of part a. or b. of ‘insured’ as defined.” The policy defines “insured” as “you and residents of your household who are: a. your relatives; or b. other persons under the age of 21 and in the care of any person named above.”

For two general reasons, the trial court concluded that Matthew did not fall within the definition of “insured” and that the policy did not exclude bodily injury coverage for his death. First, the trial court concluded Matthew was not a relative of Jamerson by virtue of an alleged common law marriage relationship between Mayhand and Williams. Second, the trial court concluded that the definition of “insured” in subsection b. was vague and ambiguous. Specifically, the trial court concluded that the phrase “any person named above” in subsection b. was ambiguous because “it may refer to those persons meeting the criteria of paragraph 3 (a) of the insurance policy or it may refer to those persons who are actually named insured, i.e., Earl Jamerson.” Because we agree with Southern Fire that the definition of “insured” in 3 b. is not ambiguous and that it excludes liability coverage for Matthew’s death, we reverse.

1. “When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties. Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.” (Citations and punctuation omitted; emphasis supplied.) Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 422 (3) (454 SE2d 616) (1995). Similarly, “courts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insurer, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract.” (Citation and punctuation omitted.) Nalley v. Nationwide Mut. Fire Ins. Co., 221 Ga. App. 537, 538 (2) (472 SE2d 82) (1996).

When read in the context of the entire policy, the only reasonable construction of the phrase “any person named above” is that the phrase refers to Jamerson’s relatives. It immediately follows the definition of “insured” in subsection a. as “your relatives.” It is clear from language used elsewhere in the policy that when a provision refers only to Jamerson, he is referred to as “you.” Part b. of the definition of “insured,” on the other hand, does hot simply say “other persons under the age of 21 and in your care.” It uses the phrase “any person named above,” and that phrase must therefore have some meaning other than “you.” Under the trial court’s construction — and that urged by Jamerson — the language following the word “or” is rendered mere surplusage; it has no meaning. Such a construction is not favored by our law. See, e.g., Pounds v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 689, 694 (2) (382 SE2d 602) (1989). Given that the words of insurance policies are “to be construed in their ordinary meaning,” Nalley, supra at 538, and examining the four corners of the policy, it is clear that the phrase “in the care of any person named above” in subsection b. refers to that category of individuals identified in the subsection of the policy immediately preceding the language at issue — relatives. The phrase was not ambiguous, and the trial court’s strained construction otherwise was erroneous.

The parties stipulated that Matthew was under the supervision of Williams when he died and Williams was a resident relative of Jamerson’s wife. Consequently, Matthew was in the care of a resident relative of the Jamerson household and was an insured under the terms of the policy. Because Matthew was an insured, coverage did not extend to his death under the bodily injuries exclusion.

2. Southern Fire also complains of other rulings by the trial court, including the trial court’s determination that Mayhand and Williams were not common law spouses. Because of our holding in Division 1, these contentions are moot.

Decided November 18, 1996

Martin, Snow, Grant & Napier, Cubbedge Snow III, Wallace D. Bonner, Jr., for appellant.

Worthington & Flournoy, Samuel W. Worthington III, Cathey & Strain, Dennis T. Cathey, David A. Sleppy, Patrick J. Araguel, Jr., for appellees.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A96A1106.
    BEREZNAK v. THE STATE.
    (478 SE2d 386)
   Andrews, Judge.

Samuel Bereznak, Jr., appeals his conviction and sentence on charges of criminal damage to property in the second degree, OCGA § 16-7-23. Apparently angry at his wife, Bereznak damaged or destroyed some of her clothes, toiletries, and items of sentimental or emotional value. Pursuant to Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), we have reviewed the evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). We find the prosecution’s evidence insufficient to support the conviction and reverse.

1. To sustain this conviction for criminal damage to property in the second degree, the State was required to offer probative evidence which would sufficiently allow the jury to conclude Bereznak intentionally caused in excess of $500 damage to the property of another person without that person’s consent. OCGA § 16-7-23 (a) (1). Our cases detail several proper methods for proving the value of the damage. A lay witness may give her opinion as to that value so long as she states the facts on which she bases her opinion or otherwise shows she had the opportunity to form a correct opinion. Yarber v. State, 144 Ga. App. 781 (242 SE2d 372) (1978). The cost of an item, so long as it is coupled with other evidence of its condition before and after the damage, may allow the jury to determine the value of damage to everyday items. Id. Compare Pate v. State, 158 Ga. App. 395, 396 (2) (280 SE2d 414) (1981) (evidence of cost or purchase price alone is insufficient). Evidence of the cost to repair an item may also suffice. Holbrook v. State, 168 Ga. App. 380 (1), 381 (308 SE2d 869) (1983).

In this case, the State presented no competent evidence of damage in excess of $500. The victim identified a stone giraffe Bereznak broke and stated she purchased it “several years ago” for $170 or $175. Although the victim and her mother identified many items of damaged clothing, these witnesses assigned purchase prices to only six recently purchased items whose cost totaled approximately $263. These witnesses did present receipts showing they had spent thousands of dollars for clothing and accessories that were in the home at the time of Bereznak’s rampage. But other than the items mentioned above, no witness gave any evidence of the value of clothing damaged in Bereznak’s attack. Pretermitting whether this cost evidence presented was sufficient, that evidence does not show a value exceeding $500. The victim pointed out two broken bottles of perfume she purchased for $42 and $37, respectively, but she did not mention how much perfume remained in those bottles before they were broken. This testimony, unsupported by any evidence showing the condition of the perfume before Bereznak destroyed it, has no probative value. Pate, supra.

Decided October 29, 1996

Reconsideration denied November 19, 1996

Dyer & McElyea, Robert M. Dyer, for appellant.

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

As in Hildebrand v. State, 209 Ga. App. 507, 508 (433 SE2d 443) (1993), the State gave the jury no evidence of purchase price and no competent opinion testimony which jurors could use as a basis for applying their everyday experience and reaching a value for these items in excess of $500. Therefore, we find Bereznak’s conviction supported by insufficient evidence.

2. Because our opinion in Division 1 disposes of this case, we need not address Bereznak’s argument that the marital property he damaged cannot legally be considered the “property of another person.”

Judgment reversed.

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


text:
    A96A1351.
    RJV CORPORATION v. SUPERVALU, INC.
    (478 SE2d 592)
   Andrews, Judge.

RJV Corporation leased supermarket space to SuperValu, Inc., which SuperValu subleased to other tenants for subrents in excess of the rent owed by SuperValu under the original lease. RJV claims SuperValu breached an agreement to pay RJV a portion of the sub-rents paid to SuperValu in excess of the rent owed under the original lease. Both parties moved for summary judgment; the trial court granted summary judgment in favor of SuperValu, denied RJV’s motion for summary judgment, and RJV appeals.

The original 20-year lease beginning October 1, 1977, between the predecessors-in-interest of RJV (Landlord) and SuperValu (Tenant) provided for monthly base rent of $6,054 plus a rent amount calculated as a certain percentage of gross sales. The original lease provided that SuperValu would not sublease the premises without obtaining the written consent of RJV; that, if SuperValu sought to sublet the premises for a non-supermarket use, it must give prior written notice to RJV; and that RJV “shall have the option of either accepting said action or cancelling this lease and releasing [SuperValu] of further liability.”

The rent was paid under the original lease terms until September 1987 when SuperValu subleased the premises for the remaining term of the original lease through September 14, 1997, to Heritage Hardware, Inc. for a non-supermarket use. The sublease provided for monthly rental payments by Heritage to SuperValu in the amount of $9,375, over $3,000 more than the rent payable by SuperValu under the original lease. RJV consented to the Heritage sublease and agreed to modifications of the original lease in a document entitled “Consent to Sublease and Modification of Original Lease” (the consent agreement) executed by RJV, SuperValu, and Heritage. Under the consent agreement, RJV agreed that the provision in the original lease for payment of a percentage rent amount “is hereby deleted and is of no further force or effect.” The consent agreement further provided that RJV was entitled to receive, not only the monthly base rent due from SuperValu under the original lease, but also a portion of the subrents paid by Heritage to SuperValu in excess of SuperValu’s base rent under the original lease in the amount of $1,394.38 per month. The consent agreement also provided that “[SuperValu’s] liability to [RJV] is limited to amounts payable under the original lease. All additional amounts are payable only if [Heritage] makes such payments.”

Heritage ceased making rental payments under the sublease on March 1, 1990, when it defaulted on the sublease, went out of business, and vacated the premises. After Heritage defaulted, SuperValu continued to pay RJV the monthly base rent of $6,054 due under the original lease. On December 7, 1990, SuperValu filed suit against Heritage for breach of the sublease seeking the full monthly rental amount due during the term of the sublease. RJV was not a party to this suit. SuperValu eventually settled its suit in January 1992 for a cash payment from Heritage of $75,000 plus real property worth about $50,000, and terminated the sublease. None of the settlement amount was paid to RJV.

On or about April 3, 1992, RJV received notice in writing of SuperValu’s intention to sublease the premises to another non-supermarket subtenant, Atlanta Newspapers. RJV responded in a handwritten notation on the bottom of the notice that “[w]e will accept [Atlanta Newspapers] as a subtenant under the same rent and conditions as the Heritage sublease.” SuperValu subsequently wrote RJV a letter on June 16, 1992, which attached a copy of the proposed sublease with Atlanta Newspapers, requested that RJV consent to the sublease, and stated that, pursuant to the terms of the original lease, RJV had the “option of either accepting [the proposed sublease to a non-supermarket tenant] or cancelling this lease and releasing [SuperValu] of further liability.” After receiving no response to the letter from RJV, SuperValu subleased the premises to Atlanta Newspapers on June 29, 1992 through the end of the original lease term for subrent payments in excess of the base rent due by SuperValu under the original lease. On June 30, 1992, RJV, through its attorney, responded by letter to SuperValu stating that “[RJV] accepts your action to provide a subtenant for that premises for other than a Super Market use, and [RJV] does not release you from further liability under the [original] lease.” The June 30 letter further stated that it was RJV’s position that the consent agreement signed in 1987 in conjunction with the Heritage sublease, which obligated SuperValu to pay RJV a share of any subrents paid by Heritage in excess of the base rent due by SuperValu under the original lease, also obligated SuperValu to pay RJV a similar share of any subrents paid by Atlanta Newspapers in excess of the base rent. The letter concluded that “you may . . . sublease directly to the Atlanta newspapers at your own risk of liability [to RJV under the consent agreement], or, on the other hand, acknowledge your obligation to continue the sublease profit sharing arrangement.” After the sublease to Atlanta Newspapers, SuperValu continued to make the base rent payments due to RJV under the original lease, but made no payments to RJV of subrents paid in excess of the base rent.

RJV brought the present action against SuperValu claiming that SuperValu: (1) breached the original lease by failing to obtain RJV’s written consent for the Atlanta Newspapers sublease; (2) breached the original lease by entering into the Atlanta Newspapers sublease and failing to pay RJV the sum of $1,394 per month from subrents paid in excess of the base rent due under the original lease; (3) breached the consent agreement by failing to pay RJV $1,394 per month from the settlement of the lawsuit against Heritage; and (4) breached the consent agreement by terminating the Heritage sublease without RJV’s consent.

In the trial court, RJV sought to recover payments of $1,394.38 per month from the time Heritage defaulted on its sublease in March 1990 through the end of the original lease term in September 1997, representing a total amount of $125,494.20. RJV’s primary contention was that the terms of the original lease and the consent agreement were unambiguous and established that, in addition to the base rent of $6,054 per month, RJV was entitled to receive $1,394.38 per month from subrents in excess of the original lease rent paid by any subtenant during the term of the lease. Accordingly, RJV contended that the original lease and consent agreement required that SuperValu pay, not only the base rent of $6,054 per month for the lease term, but also $1,394.38 per month in excess subrents paid by Heritage and Atlanta Newspapers during the lease term. SuperValu, on the other hand, contended that the original lease and the consent agreement provided for payment of the $1,394.38 portion of monthly subrents only under the Heritage sublease and had no application to any other subtenant.

In granting summary judgment in favor of SuperValu and against RJV, the trial court found that: (1) RJV was not entitled to any portion of subrents paid by Atlanta Newspapers; (2) that SuperValu’s consent agreement to pay RJV a portion of subrents paid under the Heritage sublease did not obligate it to give RJV any portion of its subsequent settlement of litigation with Heritage; and (3) that SuperValu breached no duty to RJV by terminating the Heritage sublease and entering into the Atlanta Newspaper sublease. The trial court also granted summary judgment in favor of SuperValu on RJV’s claims for attorney fees, expenses of litigation, and prejudgment interest.

1. We agree that RJV is not entitled to any portion of subrents paid under the Atlanta Newspapers sublease because there is no evidence of an agreement between SuperValu and RJV for such payments. Where, as here, the contract terms are clear and unambiguous, the language of the contracts alone, governs the intention of the parties. Archer v. Carson, 213 Ga. App. 161, 164 (444 SE2d 82) (1994). Nothing in the original lease between RJV and SuperValu, or in the consent agreement executed by RJV, SrtperValu, and Heritage, or in the sublease between SuperValu and Heritage provides that the subrent payments to RJV under the Heritage sublease were to continue under subsequent subleases. To the contrary, these agreements deal exclusively with the Heritage sublease. Moreover, the consent agreement specifically provided that SuperValu’s liability to RJV was limited to the base rent amounts payable under the original lease and that any additional subrents were payable to RJV only if Heritage made the subrent payments. There is no evidence of any other agreement between RJV and SuperValu to share a portion of the sub-rents paid by Atlanta Newspapers. The trial court properly granted summary judgment in favor of SuperValu on this issue.

2. The trial court also properly granted summary judgment in favor of SuperValu on RJV’s claim that SuperValu breached its contractual obligation under the original lease to obtain written consent to sublease to Atlanta Newspapers. RJV received the required written notice that SuperValu proposed to sublease to Atlanta Newspapers and received a subsequent request from SuperValu to consent to the sublease. The original lease provided that, in response to SuperValu’s notice and proposed sublease to a non-supermarket use, RJV “shall have the option of either accepting said action or cancel-ling this lease and releasing [SuperValu] of further liability.”

In response, RJV elected not to cancel the original lease, accepted Atlanta Newspapers as a subtenant, but expressed disagreement with the terms of the proposed sublease. RJV took the position that the sublease was controlled by the earlier consent agreement executed in conjunction with the Heritage sublease and would require the same additional subrent payments to RJV along with the base rent. RJV told SuperValu that it could either “sublease directly to the Atlanta newspapers at your own risk of liability [to RJV under the consent agreement], or, on the other hand, acknowledge your obligation to continue the sublease profit sharing arrangement.” Thus, RJV gave SuperValu the choice of either agreeing to sublease on the conditions RJV insisted upon or subleasing without those conditions at its own risk. We need not speculate as to whether this constituted some form of consent. Clearly, the original lease provided that RJV’s options were to either accept the sublease or cancel the original lease. By electing not to cancel the original lease and taking this position, RJV acquiesced in SuperValu’s sublease to Atlanta Newspapers and is estopped to deny that it consented to the sublease. Since these facts unequivocally support application of the doctrine of estoppel, the trial court properly granted summary judgment on this basis. Eiberger v. West, 247 Ga. 767, 769-770 (281 SE2d 148) (1981).

3. The trial court erred in granting summary judgment in favor of SuperValu on RJV’s claim seeking a share of SuperValu’s settlement proceeds in the SuperValu-Heritage litigation. In this claim, RJV sought to recover from the settlement proceeds the portion of the defaulted Heritage subrents that it would have been entitled to receive from SuperValu under the consent agreement in the amount of $1,394.38 per month. The sublease provided that the subrent was payable by Heritage directly to SuperValu. Under the consent agreement, SuperValu was obligated to pay RJV a portion of the subrent it received from Heritage. Nothing in the sublease or the consent agreement gave RJV a basis for a cause of action against Heritage for failure to pay the subrent due to SuperValu under the sublease. The cause of action against Heritage for failure to pay the subrents belonged to SuperValu.

SuperValu sued Heritage for breach of the sublease seeking the full monthly subrents due during the term of the sublease. The amount sought included the sums SuperValu was obligated to pay to RJV from subrents paid by Heritage. SuperValu settled the suit against Heritage for approximately $125,000. In the settlement, SuperValu released all claims it had against Heritage under the sublease. SuperValu notified RJV of the action against Heritage and sent RJV a copy of the suit. RJV took no action to join in the litigation. Although an RJV representative testified that SuperValu indicated it would pay RJV from the money collected in the suit, RJV concedes there was no agreement or discussion as to the amount it would receive.

RJV had an interest in the action brought by SuperValu against Heritage to collect the subrents since it had a right to receive a portion of subrents paid by Heritage to SuperValu. The proper procedure to address and protect RJV’s interest in the action would have been to join RJV in the suit against Heritage as a plaintiff under OCGA § 9-11-19 (a) (2) (A), which provides that “[a] [corporate] person wh[ich] is subject to service of process shall be joined as a party in the action if . . . [it] claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may . . . [a]s a practical matter impair or impede [its] ability to protect that interest.” See OCGA §§ 1-2-1; 1-3-3 (14). In that manner, any dispute as to subrents due between SuperValu and RJV could have been resolved by a cross-claim in the action. See Dept. of Human Resources v. Bagley, 240 Ga. 306, 307 (240 SE2d 867) (1977). The prosecution and settlement of the suit and the release of Heritage by SuperValu, in the absence of any effort by SuperValu to seek joinder of RJV as a party under OCGA § 9-11-19, had the effect of destroying any ability RJV would have had to protect its interest in the litigation and left RJV without any legal avenue to present a claim against Heritage for the subrents. Under these circumstances, equity dictates that a factfinder now determine what portion, if any, of the settlement should be shared with RJV.

4. In light of the above rulings, we find no basis for imposition of attorney fees sought by RJV pursuant to OCGA § 13-1-11 for alleged breach of the original lease and the Heritage sublease and no basis for the award of pre-judgment interest. As to bad faith attorney fees and expenses sought by RJV pursuant to OCGA § 13-6-11, RJV points to no facts and provides no argument in support of this claim. Accordingly, the trial court properly granted summary judgment as to these claims.

Judgment affirmed in part and reversed in part.

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

Decided October 22, 1996

Reconsideration denied November 19, 1996.

Meadows, Ichter & Trigg, James D. Meadows, Rhett E. W. Marionneaux, Jr., for appellant.

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, John O. Sullivan, for appellee.


text:
    A96A0603.
    HENDERSON v. JUSTICE.
    (478 SE2d 434)
   Ruffin, Judge.

Regina Justice filed a petition in Floyd County, Georgia, to modify the child custody provisions of a divorce decree originally entered by the Circuit Court of Mobile County, Alabama. Because we conclude that the Superior Court of Floyd County erred in assuming jurisdiction over the petition without engaging in the appropriate jurisdictional factual analysis, we vacate and remand for further proceedings.

On December 8, 1992, the Mobile County Circuit Court entered a divorce decree dissolving the marriage between Gordon. Scott Henderson and Justice. The decree also established custodial parameters for the former couple’s two minor children. Although Justice was awarded physical custody, Henderson enjoyed reasonable visitation rights, including visits every other weekend and on certain holidays.

It appears that even before the divorce decree was entered, Justice and her children left Alabama and relocated to Rome, Floyd County, Georgia. Justice subsequently remarried and currently lives in Floyd County with the two children and her new husband. Henderson remains a resident of Mobile County, Alabama.

In February 1995, Justice petitioned the Floyd County Superior Court to modify the divorce decree. In the petition, Justice alleged that Henderson had engaged in illegal and dangerous conduct while with the children and requested that Henderson’s visitations be restricted and supervised. Henderson filed a verified answer and asserted a counterclaim, which he later voluntarily dismissed. At an evidentiary hearing on the modification petition, counsel for Henderson moved to dismiss Justice’s petition, arguing that the Superior Court of Floyd County lacked jurisdiction to modify the Alabama decree. He also contended that no domesticated decree was before the Floyd County Superior Court for modification. Rejecting Henderson’s arguments, the trial court modified the decree by limiting Henderson’s visitation privileges.

Henderson subsequently sought review of the superior court’s ruling through an application for discretionary appeal, which we granted. This appeal followed.

1. In his first enumeration of error, Henderson argues that the trial court inappropriately exercised subject matter jurisdiction over this custody dispute because, under the Parental Kidnapping Prevention Act, 28 USC § 1738A (“PKPA”), Alabama has continuing jurisdiction.

In 1994, the Georgia Supreme Court addressed whether Georgia courts must consider the requirements of the PKPA before modifying a child custody order entered by another state. Wilson v. Gouse, 263 Ga. 887 (441 SE2d 57) (1994). Answering the question in the affirmative, the Court held that the “PKPA applies in all interstate child custody disputes” and provides uniform guidelines for resolving such disputes. Id. at 889. As interpreted by the Supreme Court, the PKPA imposes a federal duty on all states “to give full faith and credit to a custody decree of a sister state.” Id.

As noted in Wilson, subsection (f) of the PKPA limits the conditions under which a state may modify another state’s custody order. Id. at 890. Under 28 USC § 1738A (f), one state may modify the custody decree of another only if “(1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” See also 28 USC § 1738A (a). (“The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another state.”) (Emphasis supplied.) To modify a foreign custody decree, therefore, a Georgia court must (1) determine that it has jurisdiction over the custody dispute, and (2) find that the state originating the decree has either lost or declined to exercise jurisdiction.

A Georgia court decides whether it has jurisdiction in an interstate child custody matter pursuant to the Uniform Child Custody Jurisdiction Act (“UCCJA”), OCGA § 19-9-40 et seq. Williams v. Goss, 211 Ga. App. 195, 197 (438 SE2d 670) (1993). Under the UCCJA, the Georgia court has jurisdiction over such custody cases in several different circumstances, including when Georgia “[i]s the home state of the child at the time of commencement of the [custody] proceeding.” OCGA § 19-9-43 (a) (1) (A). “Home state” is defined as “the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months.” OCGA § 19-9-42 (5).

In this case, the trial court found, supported by ample evidence in the record, that Georgia is the “home state” of the minor children. Henderson has admitted that the children lived in Floyd County, Georgia, for more than 12 months immediately preceding the date Justice filed her modification petition. Justice also testified that the children have lived with her since March 1992. Pursuant to the UCCJA, the trial court thus had jurisdiction over this custody dispute, thereby satisfying the first prong of the PKPA modification test. See OCGA § 19-9-43 (a) (1) (A).

The inquiry, however, does not end there. The Georgia court cannot modify the Alabama decree unless it also determines that the Mobile County, Alabama court that originally entered this decree has lost or declined to exercise jurisdiction. 28 USC § 1738A (f). In other words, if the Alabama court retains jurisdiction, a Georgia court cannot modify the decree. Id. The PKPA outlines the circumstances in which jurisdiction continues in a court after it enters a child custody order. Under the statute, the original court’s jurisdiction continues so long as state laws governing that court permit jurisdiction and the child or anyone claiming a visitation or custody right to the child resides in the state. 28 USC § 1738A (d); see also 28 USC § 1738A (b) (2).

Henderson’s verified “Answer and Counterclaim” establishes that he lives in Mobile County, Alabama. No evidence in the record challenges his Alabama residence. One continuing jurisdiction requirement, therefore, appears satisfied. Whether Alabama law permits continuing jurisdiction over the December 8, 1992 decree, however, is a fact question that must be resolved by the trial court. Garrett v. Garrett, 220 Ga. App. 172, 175 (469 SE2d 330) (1996).

The record reveals that the Superior Court of Floyd County failed to make the requisite factual findings before assuming jurisdiction over this matter. In its written order, the trial court concluded that because Georgia constitutes the children’s “home state,” jurisdiction to alter the decree rests in the Georgia courts under the UCCJA. The written order, however, presents no discussion of Alabama law concerning jurisdiction and the relevant facts. The trial court’s oral comments at the modification hearing similarly reveal no jurisdictional analysis under the PKPA. The trial judge focused only on the “home state” provisions of the UCCJA, despite the dictates of Wilson, supra.

The Floyd County Superior Court assumed jurisdiction over this child custody action and modified a foreign custody order without making the appropriate factual determinations under the PKPA. In particular, it failed to address whether the Alabama court that originally entered the decree had lost or declined to exercise jurisdiction. This Court, therefore, must vacate the superior court’s modification of the December 8, 1992 decree and remand for further factual findings consistent with this opinion.

Decided November 19, 1996.

James A. Robbins, Jr., for appellant.

Smith, Price & Wright, Charles G. Price, for appellee.

2. In his second enumeration of error, Henderson argues that the trial court also erred in modifying the December 8, 1992 decree because it was never “domesticated.” A foreign divorce decree must be domesticated before a Georgia court can modify the decree’s child visitation' provisions. Galvez v. Galvez, 221 Ga. App. 644, 645 (472 SE2d 492) (1996) (physical precedent only). This domestication requirement is met by filing a certified and exemplified copy of the foreign decree in the superior court clerk’s office. OCGA § 19-9-55 (a); Roehl v. O’Keefe, 243 Ga. 696, 697 (256 SE2d 375) (1979).

In this case, Justice filed a copy of the Alabama divorce decree as an attachment to her modification petition. The last page of the attachment bears both a stamp stating that the document is a true copy and a copy of the Mobile County Clerk’s signature. No original signature or court seal certifying the decree, however, is visible on the copy submitted with the record.

From the evidence in the record, this Court cannot determine that the decree filed with the Floyd County Clerk’s Office met the statutory requirements for domesticating a foreign custody decree. See OCGA §§ 19-9-55 (a); 24-7-24. Consequently, this proceeding must be remanded also for proper domestication of the Alabama decree.

Judgment vacated and case remanded with direction.

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

       The parties do not dispute that the Circuit Court of Mobile County, Alabama, had jurisdiction to enter this original decree.

       Justice argues that Alabama law does not permit the Mobile County Circuit Court to exercise continuing jurisdiction. This Court recently found, however, that Alabama law “allows the assertion of continuing jurisdiction” over a custody decree originally entered in Alabama. Garrett v. Garrett, supra at 174. Nevertheless, whether continuing jurisdiction exists in this case remains a fact question that the trial court must address.


text:
    A96A1148.
    PICKARD et al. v. COOK et al.
    (478 SE2d 432)
   Andrews, Judge.

The Pickards, on behalf of their son, Ronnie, appeal from the trial court’s grant of summary judgment to the Cooks on the Pickards’ claim that the Cooks were liable for injuries suffered when Boucher’s dog entered the fenced backyard of the Cooks during a birthday party and bit Ronnie. The basis for their claim is premises liability, i.e., that the Cooks “fail[ed] to exercise ordinary care in keeping their back yard safe.” The Pickards’ claim against Boucher, owner of the dog, is not involved in this appeal and remains pending below.

Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), with all inferences in favor of the Pickards, opponents of summary judgment, Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981), the undisputed facts are that the Cooks held a birthday party for their young daughter in their backyard, which is surrounded by a six-foot-high wooden privacy fence with a gate. Prior to the party, the Cooks secured their dog in an area inside the privacy fence, away from the festivities. Four-year-old Ronnie Pickard, accompanied by his mother, was one of the guests at the party. The Cooks had seen Boucher’s dog wandering the neighborhood without a leash and unaccompanied by his owner prior to this incident. They had occasionally fed the dog. During the party, the dog came into the backyard through the gate which had been left open by a guest. Ronnie, with his mother seated approximately ten feet away, attempted to pet the dog, which bit him on the face. Prior to this incident, to the Cooks’ knowledge, the dog had shown no vicious propensities nor had he growled at or attacked anyone. There was no evidence . that, prior to the bite, either of the Cooks was aware the Boucher dog had come inside the fence during the party.

The trial court granted summary judgment to the Cooks, concluding that Ronnie was a social guest, a licensee, Knisely v. Gasser, 198 Ga. App. 795, 797 (2) (403 SE2d 85) (1991), to whom the owner of premises is liable only for wilful or wanton misconduct, OCGA § 51-3-2, of which there was no evidence. We affirm, although on different grounds.

1. Both parties agree that a social guest is a licensee, not an invitee, although they disagree as to the nature of the duty owed to a licensee when an owner knows the licensee is on his premises. Pretermitting this issue, we assume without deciding that, for purposes of this opinion, the duty owed is that of ordinary care, as urged by the Pickards. See Trammell v. Baird, 262 Ga. 124, 125 (413 SE2d 445) (1992); Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992). The Cooks were still entitled to summary judgment.

Decided November 19, 1996.

Thompson, Price & Dozier, Dennis G. Dozier, for appellants.

2. “In order for plaintiff to recover on [his] negligence theory, there must have been a defective condition on defendants’] premises which was the cause of plaintiff’s injury and of which the defendants] ha[d] superior knowledge. It is only when the defective condition is known to the owner or occupant of the premises and not known to the person injured that a recovery may be permitted. Garnett v. Mathison, 179 Ga. App. 242 (2) (345 SE2d 919) [(1986)].” Foodmax of Ga. v. Fleming, 219 Ga. App. 469, 470 (465 SE2d 489) (1995).

“‘“The application of [OCGA § 51-3-1] cannot be restricted to purely physical defects in real property or personal property located thereon. It must be interpreted to include risks upon the premises in the nature of vicious animals or ill-tempered individuals likely to inflict harm upon invitees visiting upon the premises.” (Cits.) . . .’ [Cit.]” Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901) (1986) (swarming wasps causing fall from ladder — premises owner had no more knowledge of the likelihood of wasps’ propensity to swarm after being sprayed with insecticide than invitee doing the spraying).

Thus, even though this is not per se a “dog bite” case in that the claim against the Cooks is not premised on OCGA § 51-2-7, the Pickards were still required to come forward with evidence of the vicious propensity of the Boucher dog in order to show the dangerous condition of which the premises owner had superior knowledge. Stanger v. Cato, 182 Ga. App. 498, 499 (356 SE2d 97) (1987) (fall on owner’s premises caused by owner’s dog jumping on customer, no superior knowledge shown). See Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995); Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 444 (2) (382 SE2d 180) (1989); McCree v. Burks, 129 Ga. App. 678, 679 (200 SE2d 491) (1973).

The Pickards having failed to do so, the Cooks were entitled to summary judgment in their favor.

3. Additionally, Ronnie’s mother was present at the party and within ten feet of him when the dog approached. “Where parents are watching their child play on someone else’s land and the parents are aware of a dangerous condition, it is the parents’ duty, not that of the landowner, to ensure that the child avoids the danger. See Wren v. Harrison, 165 Ga. App. 847 (303 SE2d 67) (1983).” Scoggins v. Brown, 215 Ga. App. 601, 602 (2) (451 SE2d 478) (1994).

4. A grant of summary judgment must be affirmed if it is right for any reason. Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) (1994).

Judgment affirmed.

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

Karsman, Brooks & Callaway, Stanley Karsman, Timothy J. Haeussler, for appellees.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A1315.
    HARDY v. THE STATE.
    (478 SE2d 423)
   Blackburn, Judge.

Charles Hardy appeals his conviction on one count of theft by taking a motor vehicle, one count of criminal attempt to commit armed robbery, and two counts of armed robbery on the grounds that the trial court erred in admitting impermissible hearsay evidence and that the properly admitted evidence was insufficient to sustain a conviction.

This case concerns a string of three robberies that occurred in. the early morning hours of April 1,1994, at different apartment complexes located in Athens. In the first incident, shortly after Thomas W. Lynch parked his car near his apartment building, another car pulled up beside him. Two men exited the car. One of them was wielding a gun and demanded money. Lynch described the gunman as wearing a red baseball cap and dark, hooded top akin to a sweatshirt. The gunman took $15 in cash and a credit card from Lynch’s wallet.

In the second incident, shortly after Carl Bartholomaus and his wife parked their car in the lot of an apartment complex, a large, four-door vehicle pulled into the same lot. Three men were in the car, and two got out. One was carrying a gun and came towards the Bartholomauses’ vehicle. He banged on the window and commanded the couple to get out of the car. Bartholomaus was able to flee by placing the car in reverse. The gunman was described as wearing a dark, hooded jacket or sweatshirt. Bartholomaus subsequently identified Hardy as the gunman.

In the third incident, Vern Cresap was accosted by three men as he approached his apartment. The men were wearing red baseball caps and dark, hooded sweatshirts. One of the men was carrying a gun. They demanded money from Cresap and searched his pockets. Before leaving, they took Cresap’s keys and identification.

Later the same morning, a Winder police officer responded to a burglary call at a local pawn shop. Upon arriving, he found a blue Oldsmobile Delta Ninety-Eight occupied by David Burgess parked in front of the pawn shop. A revolver was also found in the automobile with one round of live ammunition. Hardy and another man were subsequently found hiding in the pawn shop. The three individuals found at the pawn shop were wearing dark jackets with hoods and red baseball caps. A credit card imprinted with Thomas Lynch’s name was found in Hardy’s pocket together with several rounds of ammunition that had been fired from a .357 revolver, the same type of gun found in the Oldsmobile. The Oldsmobile was being driven without a key. It had a broken steering column, a broken window, and a stolen tag. Subsequent investigation revealed that the car had been stolen from the Athens Auto Exchange either late in the evening of March 31, 1994, or early in the morning of April 1, 1994.

Upon learning the description of the suspects arrested in Winder, the Athens Police Department investigated to determine if the three men were involved in any of the aforementioned apartment robberies. Burgess confessed to an Athens police officer that he was present at each of the apartment robberies and implicated Hardy as also participating in these crimes. Burgess also indicated that Hardy had stolen the Oldsmobile that the trio had been traveling in at the time of their arrest. The officer from Athens wrote Burgess’ statement in her own handwriting and paraphrased what she remembered Burgess as saying about each of the apartment complex crimes.

Burgess refused to testify at trial, and his unredacted custodial statement, as transcribed by the Athens police officer, was read to the jury over Hardy’s hearsay objection.

1. Hardy argues that the trial court committed harmful error by admitting Burgess’ statement. The State offers no argument in support of the admission of the hearsay statement and in fact states that “admission of the hearsay testimony was likely improper.” While recognizing that the trial court erred in admitting the hearsay statement, the State argues that the error was harmless in light of the other evidence of Hardy’s guilt.

We agree the admission of Burgess’ statement was error, as Burgess’ refusal to testify at trial deprived Hardy of his constitutional right to confront the witnesses against him. See Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968); Short v. State, 256 Ga. 165, 168 (5) (345 SE2d 340) (1986); Crawford v. State, 203 Ga. App. 215, 216 (2) (416 SE2d 820) (1992).

For Hardy’s conviction to stand despite this evidentiary error, we must determine that the error was harmless beyond a reasonable doubt. Short, supra at 168-169, citing Schneble v. Florida, 405 U. S. 427 (92 SC 1056, 31 LE2d 340) (1972). Burgess’ statement was, undoubtedly, a significant tool in the State’s case. It linked Hardy to each crime and explained the crimes as part of a “spree.” The evidence of Hardy’s guilt was not otherwise overwhelming, and we cannot say “the minds of an average jury would not have found the State’s case significantly less persuasive had the [confession] been excluded.” Crawford, supra at 216 (2). This error demands reversal.

2. Having excluded the inadmissible confession, however, we determine the evidence was otherwise sufficient to support each of Hardy’s convictions. We review the remaining evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with all evidence construed and all reasonable inferences drawn most strongly in favor of the verdict.

As to the attempted armed robbery of the Bartholomauses, the record reveals that within a few hours of the crime, Hardy was located wearing clothing similar to the gunman, he had access to a gun, he was found in a group of three men as described by the victim, he was traveling in a car similar to that described by the victim, and, foremost, he was identified by the victim.

As to the robbery of Lynch, at the time of his arrest, Hardy was carrying a credit card obtained in the robbery which had occurred only a few hours earlier. The recent unexplained possession of stolen goods may be sufficient to support a conviction when considered with other evidence. Slater v. State, 209 Ga. App. 723, 724 (434 SE2d 547) (1993). Other evidence showed that, shortly after the robbery, Hardy was found wearing clothing similar to Lynch’s armed assailant.

With regard to the Cresap robbery, admissible evidence tying Hardy to the crime was his dress, the dress of his two companions, the similarity of the car near which Hardy was found to the car used by Cresap’s robbers, and the string of similar robberies that occurred on April 1, 1994, for which Hardy stood accused. The circumstantial evidence showed the other crimes were committed using the same modus operandi as this one. Such evidence allowed the jury to infer that Hardy committed this crime and to exclude the possibility that anyone else committed it. See Shaw v. State, 211 Ga. App. 647, 648-649 (1) (440 SE2d 245) (1994).

With regard to Hardy’s conviction for theft of the Oldsmobile, a jury may infer participation in a crime by one’s conduct, companionship, demeanor and “all other circumstances connected with the act for which the accused is prosecuted.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (469 SE2d 214) (1996). While Hardy was not found in the automobile, the circumstances would enable a jury to reasonably infer that Hardy participated in its theft. It manifested many of the characteristics of a stolen vehicle such that he should have known that it was stolen. The jury could infer that Hardy had been riding in the vehicle prior to his arrest, as the car was similar to the vehicle used in the attempted robbery of the Bartholomauses for which Hardy was implicated. See Shaw, supra. Finally, Hardy was found hiding from the police in close proximity to the vehicle.

Although this evidence was sufficient to support the convictions, the erroneous admission of the confession requires a new trial.

Judgment reversed.

Birdsong, P. J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the conclusion that the admission into evidence, over objection, of the cohort’s inculpatory statement detailing the commission of the crimes at issue was error. As urged by Hardy at trial and in his appellate brief, it violated his Sixth Amendment right “to be confronted with the witnesses against him.” I reach this conclusion because of the high standard which must be applied in determining whether this was reversible error. In applying the standard required by the United States Supreme Court, it is clear that the convictions on all of the counts must be reversed and a new trial afforded. It must proceed either without cohort Burgess’ statement implicating Hardy as an active participant in the crimes, or with Burgess’ testimony, which will be subject to cross-examination. The analysis is as follows.

“On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the adjudication of guilt is supported by sufficient competent evidence. [Cit.]” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675) (1993). A jury is permitted to draw reasonable inferences from facts it finds. OCGA § 24-4-9; Farmer v. State, 208 Ga. App. 198, 199 (1) (430 SE2d 397) (1993). On appeal, we must accept that “the fact finders have been convinced beyond a reasonable doubt.” Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131) (1976).

In applying these principles in this case, we must exclude the inadmissible evidence of the co-defendant’s statement and test the evidence by an additional standard as well. Since a federal constitutional violation occurred, the applicable test is that required by the United States Supreme Court, not the Georgia Supreme Court. As recognized by the latter court in measuring the effect of a federal constitutional error, the standard found in Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967), must be applied. Vaughn v. State, 248 Ga. 127, 131 (2) (281 SE2d 594) (1981). The effect of non-constitutional errors was measured in Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), the case in which the Georgia Supreme Court established the “highly probable” test. That same test was applied to a nonconstitutional error in such cases as Barrett v. State, 263 Ga. 533, 535 (2) (436 SE2d 480) (1993); Teague v. State, 252 Ga. 534, 537 (2) (314 SE2d 910) (1984), and by this Court in Cobb v. State, 209 Ga. App. 708, 709 (434 SE2d 513) (1993).

“The correct inquiry is whether, assuming that the damaging potential of the cross-examination [was] fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U. S. 673, 684 (106 SC 1431, 89 LE2d 674) (1986). In that case, the court held that Confrontation Clause errors are subject to the harmless error analysis of Chapman, supra.

The proper analysis is explained in Chapman, supra at 24: “There is little, if any, difference,” the Supreme Court wrote, “between our statement in Fahy v. Connecticut[, 375 U. S. 85 (84 SC 229, 11 LE2d 171) (1963)] about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” As reiterated in that case, we may not “treat as harmless those constitutional errors that ‘affect substantial rights’ of a party.” Id. at 23.

In Harrington v. California, 395 U. S. 250 (89 SC 1726, 23 LE2d 284) (1969), which preceded Van Arsdall, the confessions of two co-defendants who did not testify were introduced. Even though there were limiting instructions that the jury was to consider each confession only against the confessor in the multi-defendant trial, the admission of the evidence constituted a Confrontation Clause violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). But the court concluded that under the particular circumstances of that case, including the nature of the confessions and of the other evidence, the lack of opportunity to cross-examine the two statement-making co-defendants constituted harmless error. This evidence was regarded as cumulative and the balance of the evidence as overwhelming, so that the violation “was harmless beyond a reasonable doubt.” Harrington, supra at 254.

As instructed in Harrington, “[o]ur judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the . . . [confession] on the minds of an average jury.” Id. I cannot conclude that the admission of Burgess’ statement was “ ‘harmless’ in terms of [its] effect on the factfinding process at trial.” Van Arsdall, supra at 681.

The factors which we must consider “include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted[ Van Arsdall involved impermissible limit on cross-examination of a witness], and, of course, the overall strength of the prosecution’s case.” Van Arsdall, supra at 684.

This was a circumstantial evidence case. None of the victims could positively identify Hardy as one of the robbers, although Bartholomaus said “I think” and “I believe” defendant was the gunman, based on his recollection at the trial twenty and one-half months after the incident, during which incident he saw one of the robbers pointing a gun at him through the window of his car. He said he focused on the gun, but that the gunman’s “face was only about twelve to eighteen inches behind the gun.”

Burgess’ statement was of critical importance to the State’s case, as is demonstrated by the vigorous effort expended by the State in achieving its admission. Burgess was called to testify but refused to do so, and the State wished to depend on the written statement taken while he was in custody instead. The statement, if Burgess was believed, left no doubt that Hardy was one of the three robbers. The quality of the statement was high, as it went into detail about the trio’s activities that night, and its credibility was confirmed by the testimony of the victims with respect to their respective experiences and by the circumstances of their apprehension at the pawn shop. The evidence did not contradict the statement on any material points; rather, the statement tied it together and contributed missing points. It spoke directly to the issue of identity, which was the primary disputed issue in the case.

Burgess’ statement was not cumulative; no one else testified who knew of the robbers’ spree and knew who they were. Its importance in eliminating any doubt is evidenced by the jury’s deliberations of only one hour before reaching a verdict, although the trial was held on two days.

Of significant importance in the analysis is “the overall strength of the prosecution’s case.” Van Arsdall, supra at 684. Particularly because of the distinctive clothing, the gun, the car, the proximity in time and location of the car theft and series of robberies and attempted robbery, the mode of operation, and the apprehension of the three perpetrators in the process of committing another crime involving the property of others, there is sufficient evidence to support the verdict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), when the impermissible evidence is removed. But it was not so “overwhelming” as in Harrington that the Sixth Amendment violation was harmless beyond a reasonable doubt.

Decided November 19, 1996.

Jimmie E. Baggett, Jr., for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

The same result was reached in Barksdale v. State, 265 Ga. 9, 13 (2) (c) (453 SE2d 2) (1995). Compare Byrd v. State, 262 Ga. 426, 427 (2) (420 SE2d 748) (1992); Wyatt v. State, 222 Ga. App. 604 (475 SE2d 651) (1996).

       While Hardy never demanded money or goods from the couple, the evidence permitted a jury to infer that Hardy had the intent to rob the Bartholomauses when he approached them with a gun in the early morning hours and demanded that they exit their car. See OCGA § 16-2-6. See also Murray v. State, 187 Ga. App. 747 (371 SE2d 272) (1988) (evidence sufficiently supported conviction for attempted burglary as the jury could infer defendant’s intent to commit burglary by his conduct); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981) (defendant’s attempt to commit bank robbery could be inferred by his conduct).