text:
    A94A1497.
    HEIGHT v. THE STATE.
    (448 SE2d 726)
   Beasley, Presiding Judge.

Following a jury trial, appellant Height was convicted of one count of simple assault (OCGA § 16-5-20), one count of rape (OCGA § 16-6-1), and four counts of battery (OCGA § 16-5-23.1).

The victim, Beverly Smith, testified that she and appellant had been living together for over four years. On the afternoon of October 18, 1991, he got off work and gave her money to pay utility bills and buy groceries, which she did. After coming in and out of the house several times, he asked her for the money. When she told him that she had used it to pay the bills and buy the groceries, he accused her of lying. He appeared to be under the influence of alcohol or drugs and began to beat her with his fists, slap her, and push her around. He left the house but came back. She hid in the closet and heard the sound of glass and other things breaking. When it became quiet, she tried to sneak out of the closet but he caught her from behind and began stomping her in the ribs and kicking her on the side and face with such force that he left a shoe print on her face.

Both he and the victim then left. She went to a neighbor’s house. Someone who had heard the noise called the victim’s family and the police. When the victim later returned to her house, both Police Sergeant Aikens and appellant were there. Appellant was asleep in a chair. The victim said she did not want to press charges. After Aikens left, members of the victim’s family arrived, and appellant left.

He returned while she was taking a bath, raped her several times at knifepoint throughout the course of the night, and threatened to kill her. When he allowed her to go to the bathroom, she sneaked out of the house and went to a neighbor. A few days later, she decided to press charges against appellant because she was afraid she might not survive if she did not do so.

Numerous witnesses testified that they observed the victim’s physical injuries. Upon his arrest, appellant denied that he had had sex with the victim within the last several weeks. DNA testing of sperm recovered from her vagina matched appellant’s DNA pattern. Appellant admitted at trial that he and the victim did have sex at the time in question but he stated it was consensual. In explanation of her physical injuries, he testified that they had gotten into a fight after drinking and smoking crack cocaine.

1. Appellant contends that the court erred in denying his request for a mistrial because evidence presented at trial impermissibly placed his character in evidence.

Appellant testified on cross-examination that “it wasn’t in my nature and desire to hurt [the victim] or anyone else.” In order to impeach this testimony, Sergeant Aikens testified that he had dealt with appellant two or three times, and one time it took four officers to control him and place him under arrest without their getting hurt or hurting him.

Although appellant did not place his character in issue within the meaning of OCGA § 24-9-20 (b), the State could introduce evidence reflecting negatively on his character insofar as that evidence proved the falsity of his specific testimony. Gaither v. State, 194 Ga. App. 213, 214 (1) (390 SE2d 113) (1990). To the extent that Aikens testified that on a prior occasion appellant had attempted to hurt someone else, such testimony was admissible to prove the falsity of appellant’s statement that it was not in his nature and desire to hurt anyone. Aikens’ testimony that he had dealt with appellant two or three times and that appellant had been placed under arrest did reflect negatively on his character without proving the falsity of his testimony and was thus improper. However, given the evidence of similar crimes properly admitted in evidence, as held in Division 5, infra, it is highly probable that any error in admission of the improper portion of Aikens’ testimony was harmless.

2. Appellant contends that the court erred in admitting certain hearsay evidence.

An emergency room physician testified that the victim Smith came to the hospital on the evening of October 21, 1991, and stated that she had been assaulted and raped by her boyfriend. The State asked the physician if Smith had related any further details of that incident, whereupon appellant raised a hearsay objection. The court overruled the objection on the ground that statements made for the purposes of medical diagnosis or treatment and describing medical history fall within an exception to the hearsay rule. See OCGA § 24-3-4. The physician then testified that Smith had stated that she had been hit with fists and kicked in various locations of her body before being forcibly raped.

In reliance upon Johnson v. State, 149 Ga. App. 544, 545 (5) (254 SE2d 757) (1979), appellant now argues that the victim’s out-of-court identification of him as the perpetrator was unnecessary to any legitimate purpose addressed in OCGA § 24-3-4 and the admission of that portion of her statement was error. He did not object to that portion of her statement at trial and therefore waived this objection. Thrasher v. State, 204 Ga. App. 413, 414 (4) (419 SE2d 516) (1992).

3. Appellant contends that the court’s instruction to the jury on moral and reasonable certainty violated the United States Constitution and denied him due process and equal protection of the laws, as guaranteed by the 1983 Georgia Constitution, Art. I, Sec. I, Pars. I and II.

The trial court’s reference to “moral and reasonable certainty” in this case was the same as that given in Lloyd v. State, 214 Ga. App. 564 (1) (449 SE2d 173) (1994), except that in this case the court mentioned it only once, whereas in Lloyd the court referred to it twice. Here and in Lloyd, the court instructed that each element of the crime must be proven “beyond a reasonable doubt and to a moral certainty.” In Lloyd, the court later added, as part of its explanation of the State’s burden, that “[m]oral and reasonable certainty is all that can be expected in a legal investigation.” This portion of the instruction was not given to appellant’s jury.

The court repeatedly charged that conviction required proof beyond a reasonable doubt. On the other hand, the one reference to a “moral and reasonable certainty” was given in the conjunctive, not the disjunctive. Thus it did not affect the proper standard. Whether it can be regarded as a higher or lower standard than “beyond a reasonable doubt” or as a subjective rather than an objective one is of no consequence in this case, because it was given as a separate, additional standard. If it was perceived by the jury as a lower standard, the jury had to find guilt at least beyond a reasonable doubt, so defendant was not harmed. In either event, it did not affect the traditional standard.

Consequently, we do not reach the state constitutional question not addressed in Lloyd but sought to be raised here. As given, the complained-of charge did not modify the “beyond a reasonable doubt” standard. If it had, then the issue of whether it reduced the standard required by the Georgia Constitution would be ripe.

As to the federal constitutional challenge, it fails on its merits for the additional reasons given in Lloyd.

4. Appellant contends that the court erred in refusing to instruct the jury regarding his inability to form criminal intent as a result of his intoxication.

With regard to his voluntary intoxication, appellant requested that the jury be instructed that if the influence of alcohol impairs a person’s mind to the extent that the person is not able to form an intent to do the act charged, that person would not be criminally responsible for the act. “Voluntary intoxication is not a defense to a crime unless such intoxication has resulted in the alteration of [the] brain function so as to negate intent. Even then, the brain function alteration must be more than temporary.” Horton v. State, 258 Ga. 489, 491 (8) (371 SE2d 384) (1988). The validity of appellant’s request to charge is limited to cases raising the issue of an inability to distinguish between right and wrong by virtue of mental impairment. McEver v. State, 258 Ga. 768, 769, n. 2 (373 SE2d 624) (1988). This case does not raise that issue.

5. Appellant contends that the court erred in allowing evidence of similar transactions to be admitted when the prejudicial effect outweighed the probative value.

Decided September 2, 1994.

Albert A. Myers III, for appellant.

Cheryl F. Custer, District Attorney, Richard R. Read, Assistant District Attorney, for appellee.

The similar transactions consisted of the following: (1) In February 1989, appellant had been drinking, got into an argument with the victim about whether she had been dating other men, slapped her and stabbed her with a knife, pled guilty to a charge of aggravated assault, and was put on probation. (2) In November 1989, appellant committed a battery on the victim by striking her, as a result of which a portion of his probation was revoked. (3) Between June and August 1991, appellant committed another battery on the victim by kicking her and breaking her arm. (4) In 1987, appellant struck the victim in the mouth and broke a plate of her false teeth. (5) Between June and August 1991, appellant punched the victim and struck her in the ribs. (6) Between March and August 1990, appellant beat the victim about the face, dragged her into the front yard, and urinated on her. The State sought to admit this evidence to show appellant’s bent of mind and modus operandi.

Appellant concedes that the first transaction is sufficiently connected to the case at bar to warrant its admission in evidence. He argues that the other five are not. Evidence of prior difficulties between an accused and a victim is admissible to illustrate the accused’s motive, intent, or bent of mind toward the victim. Alvin v. State, 253 Ga. 740, 743 (7) (325 SE2d 143) (1985). The prior difficulties here all took place within several years of the occurrences giving rise to the present charges. Some took place within several months. All involved either an assault or batteries committed by appellant upon the victim. These other transactions were all sufficiently similar to the crimes charged to warrant their admission under Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991).

6. Finally, appellant contends that the evidence does not support the verdict.

“[T]he credibility of witnesses and the resolution of [conflicts in the evidence] are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to [the] verdict. (Citation and punctuation omitted.) [Cits.]” Self v. State, 208 Ga. App. 447, 448 (3) (431 SE2d 126) (1993). The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses for which he was convicted and sentenced. Metts v. State, 210 Ga. App. 197 (1) (435 SE2d 525) (1993).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A1763.
    THE STATE v. WHITFIELD.
    (448 SE2d 492)
   Blackburn, Judge.

The State appeals the trial court’s order granting defendant Jimmy Dean Whitfield’s motion to suppress the results of the Intox-imeter 3000 test and the field sobriety tests administered to him.

1. The trial court determined the officer failed to read Whitfield his implied consent rights until 25 to 30 minutes after the officer first became aware of Whitfield’s condition, and that the officer’s explanation for this delay was inadequate. We cannot agree.

Two officers arrived at Whitfield’s residence in response to an aggravated domestic situation call. Upon Officer Simmons’ arrival, he saw Whitfield in a pickup truck attempting to pull away from the driveway. Officer Simmons testified that he and Officer Rollison restrained and arrested Whitfield after he attempted to strike Officer Rollison. Whitfield was arrested for obstruction of an officer at the scene; he was not arrested for DUI until he was at the police station. At that time, Whitfield was read his implied consent rights.

In Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983), our Supreme Court concluded “that where a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle under the influence of alcohol or drugs, and the officer arrests that person on this ground, OCGA § 40-6-392 (a) (4) . . . requires that the officer inform him at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood.” In the present case, it is uncontroverted that Whitfield was not arrested for DUI until after he was taken into custody and transported to the police station. Therefore, his implied consent rights were read to him at the time of his arrest for DUI.

2. In Reeve v. State, 208 Ga. App. 517, 518 (430 SE2d 873) (1993), we determined that an officer’s testimony regarding his authority to operate the Intoximeter 3000 was sufficient. Therefore, the trial court erred in granting Whitfield’s motion to suppress on this basis.

3. In its final enumeration of error, the State contends that the trial court erred in granting Whitfield’s motion to suppress evidence of the field sobriety test. The State argues that Whitfield was not in custody when these tests were administered. We cannot agree.

Officer Simmons testified that the field sobriety tests were not administered until Whitfield was taken to the police station. At the time the tests were given, Whitfield was in custody, under arrest, and had not been given his Miranda warnings. The trial court properly granted Whitfield’s motion to suppress with regard to the field sobriety tests administered when Whitfield was in custody and under arrest.

Decided September 2, 1994.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Susan C. Devane, Assistant Solicitors, for appellant.

Jeffrey R. Sliz, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A94A1050, A94A1091.
    LYKINS v. NATIONWIDE MUTUAL INSURANCE COMPANY et al.
    (448 SE2d 716)
   Judge Harold R. Banke.

The appellant, Dicie Lykins, commenced this action against the Nationwide Mutual Insurance Company (Nationwide) for breach of contract, fraud, and bad faith, and against Joe Taylor and Frank Voyles for tortious interference with her contract with Nationwide. These appeals follow the trial court’s grant of summary judgment for the defendants.

The appellant operated her own insurance agency for several years, and had contracted to sell insurance exclusively for Nationwide. Pursuant to that agreement, the appellant was entitled to extended earnings and deferred compensation upon the qualified termination of the contract. However, the appellant would forfeit her entitlement to those benefits in the event she induced or attempted to induce Nationwide policyholders to switch to another insurer, or failed to return all materials, records, and supplies furnished by Nationwide within ten days of the termination.

On October 5, 1990, the appellant submitted a letter of resignation to the appellee Taylor, Nationwide’s regional manager, in which she indicated that she intended to operate her agency utilizing other insurance carriers. Consequently, Taylor transferred the appellant’s book of business to the Nationwide agency operated by appellee Voyles in Toccoa, Georgia. On November 2, 1990, Taylor received another letter from the appellant, dated October 10, 1990, in which the appellant retracted her resignation and instead declared her retirement from the insurance industry. She also requested payment of deferred compensation and extended earnings as provided in the agent’s agreement. Nationwide began paying the appellant deferred compensation and extended earnings in December 1990 but terminated the benefits in May 1991 because of violations of the noncompetition provisions of the agent’s agreement indicated above.

The appellant continued to operate her insurance agency until December 1, 1990, at which time she sold her office equipment to the Appalachian Insurance Agency (Appalachian), which was established by the appellant’s daughter near where the appellant’s agency had been located. The appellant’s former office manager obtained the same position with Appalachian. In January 1991, the appellant received a check as a premium payment from a Nationwide policyholder, and she added her name as a payee and deposited the check into an Appalachian account. Eventually, Appalachian issued a check to the Nationwide subsidiary, but not before the policy had lapsed for nonpayment of premium.

Pursuant to the agent’s agreement, the appellant returned certain policyholder files and other documentary materials to Nationwide after the termination of that agreement, but it is uncontroverted that she retained possession of some of those items. When the appellant retired, she transferred 100 to 125 Nationwide and subsidiary policies to the nearest Nationwide agency; approximately 81 of those policyholders cancelled or did not renew their policies after the transfer, and several of those policyholders obtained insurance through Appalachian.

1. In Case No. A94A1091, the appellant contends that Nationwide breached the agent’s agreement by terminating payment of the security compensation benefits based on her alleged violations of the noncompetition provisions of that contract. However, regardless of any factual issues that may exist as to the possible violation of the other conditions to receipt of such benefits, it was uncontroverted that she failed to return all Nationwide materials, records, and supplies within ten days of the termination of the contract. That undisputed breach by the appellant authorized Nationwide to terminate the extended earnings and deferred compensation, and defeated the appellant’s breach of contract claim asserted against Nationwide. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. The basis for the appellant’s fraud claim appears to be that Nationwide persuaded her to retire instead of resign, so that it could apply the noncompetition provisions of the contract to terminate her entitlement to deferred compensation and extended earnings. However, the conditions to the receipt of that security compensation applied regardless of whether the termination of the contract occurred by resignation or by retirement.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” (Citations and punctuation omitted.) Coffee Butler Svc. v. Sacha, 208 Ga. App. 4 (1) (430 SE2d 149) (1993).

In her complaint, the appellant alleged that Nationwide had misrepresented to her that she had violated the covenants in the contract by having an agent’s license, being in the business of selling insurance, taking a company check, and possessing Nationwide materials and forms. Those allegations, which actually pertained to the issue of breach of contract, were incapable of supporting a fraud claim, as the specified representations were either true or, if false, surely known by the appellant to be false. Accordingly, the trial court also properly granted summary judgment for the appellees on this claim.

3. The appellant’s claims against Joe Taylor and Frank Voyles for tortious interference with her business relationship with Nationwide were based on their reporting to Nationwide the appellant’s possible violations of the noncompetition provisions of the agent’s agreement.

“ ‘To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury. . . .’ [Cit.]” Green v. Johnston Realty, 212 Ga. App. 656, 659-660 (442 SE2d 843) (1994).

In the instant case, as regional manager for Nationwide, Joe Taylor was responsible for reporting matters that affected Nationwide’s business interests, including the appellant’s possible violations of the covenants contained in the agent’s agreement at issue. With regard to the appellant’s complaint that Frank Voyles had falsely reported that she retained possession of Nationwide forms and materials, assuming that Voyles or his agent did report such, it was no falsehood and there was no impropriety in reporting the matter. Under these circumstances, the trial court properly granted summary judgment for the appellees on these claims.

4. In Case No. A94A1050, the appellant contends that the trial court erred in denying her motion to compel discovery and in assessing attorney fees and costs against her for an abuse of discovery process. During discovery, counsel for the appellant wrote a letter expressing dissatisfaction with the appellees’ responses and objections to various discovery requests. Nationwide’s attorney replied by letter, seeking clarification of the appellant’s concerns and suggesting that the matter could be resolved by good faith discussion. However, without further contact, the appellant filed her motion to compel discovery.

Decided August 22, 1994

Reconsideration denied September 6, 1994 —

L. B. Kent, Robert E. Richardson, for appellant.

Peyton S. Hawes, Jr., Alston & Bird, W. Scott Mayfield, Ronald L. Reid, Marilyn J. Thompson, for appellees.

Under Rule 6.4 of the Uniform Superior Court Rules, counsel for the party moving to compel must certify that he has conferred with opposing counsel in an effort to resolve the matter.- Fisher v. Bd. of Commrs. of Douglas County, 200 Ga. App. 353 (408 SE2d 120) (1991). It is undisputed that counsel for the appellant failed to satisfy that requirement, and the trial court thus did not abuse its discretion in denying the motion to compel and assessing reasonable expenses against the appellant. OCGA § 9-11-37, generally; Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 (359 SE2d 441) (1987).

Judgments affirmed.

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


author: Beasley, Presiding Judge.

text:
    A94A0981.
    BENTLEY v. THE STATE.
    (448 SE2d 479)
   Beasley, Presiding Judge.

Following the denial of his motion for new trial, appellant appeals his conviction of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). He contends that the court erred in denying his motion to suppress evidence.

At the hearing on the motion, City of Macon Police Officer Cotton testified that at approximately 4:00 p.m. on August 14, 1992, someone who had not provided information to him in the past informed him that a black male named Darrell Lamar and a second black male whose name was unknown were en route to the Westgate Mall in a blue Pontiac Bonneville; they were in possession of a large amount of crack cocaine; and they could be found in the parking lot of the mall.

Cotton and other officers then went to the mall and found the described vehicle parked at the entrance. Cotton observed three black male subjects enter the vehicle. Cotton’s partner knew Darrell Lamar and identified him as one of the subjects. Lamar got into the front passenger’s seat, and appellant got into the driver’s seat. The officers stopped the vehicle before it exited the parking lot. They asked all three subjects to exit the vehicle and frisked each of them. As a safety precaution, Cotton asked whether they had any weapons. Appellant stated that he had a gun in the area of the front seat and pointed to its location. Lamar stated that he had a weapon in the same area. Cotton and Stone looked in the car in the area in which appellant and Lamar had pointed but could not see the weapons.

In searching for the weapons, Stone located a gun concealed in a towel between the front seats. He found another weapon underneath the driver’s seat. When the weapons were found, the three subjects were placed under arrest for carrying concealed weapons. Stone continued to search the vehicle and looked in a black bag on the front seat that could have been used as a receptacle for guns or knives. After unraveling some paper towels in the bag, he found 61 grams of crack cocaine.

In the order denying the motion to suppress, the court found that the police had obtained the information through a telephone call from a confidential informant. Citing Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990), the court concluded that the investigatory stop was legal because the officers had reasonable suspicion that the occupants of the blue Pontiac Bonneville were engaged in illegal activity. Citing Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983), the court concluded that the protective search of the black bag for weapons was appropriate and that, having found contraband other than weapons, the officers “clearly cannot be required to ignore the contraband.” Id. at 1050.

Appellant challenges the legality of the stop and search, as well as the court’s finding that the individual who called the police was a confidential informant.

1. Appellant argues that the caller was an anonymous tipster. However, the court’s contrary finding of fact must be accepted, as it is supported by the officer’s testimony and appellant has not demonstrated that it is clearly erroneous. See, e.g., Sampson v. State, 209 Ga. App. 213, 216 (2) (433 SE2d 136) (1993).

2. The investigatory stop was justified under Alabama v. White, supra. In that case, police received an anonymous tip that White would be leaving a certain apartment unit at a particular time in a described vehicle, that she would be going to a named motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. The police immediately proceeded to the apartment complex, saw the described vehicle in front of the building in which the unit was located, and observed White leave the building carrying nothing in her hands and enter the vehicle. They followed the vehicle as it took several turns and drove the most direct route to the motel. They stopped it just short of the motel. A consensual search of the vehicle revealed marijuana, and after White was arrested cocaine was found in her purse.

A majority of the Supreme Court held that the police had reasonable suspicion under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to justify the investigatory stop of the vehicle. It acknowledged that the anonymous tip, standing alone, would not have authorized the stop. However, of significance was that the tip did contain a range of details relating to future action of White ordinarily not easily predicted; by the time police stopped White’s vehicle, they had independently corroborated significant aspects of the caller’s predictions; and the caller had thus demonstrated to the police an ability to predict White’s future behavior through inside information concerning her affairs. The Court concluded that, because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely also to have access to reliable information about that individual’s illegal activities.

In this case, unlike White, the information was provided to the police but rather by a known albeit untested confidential informant, not by an anonymous tipster. The tip thus had more indicia of reliability than an anonymous tip. Burse v. State, 209 Ga. App. 276, 278 (433 SE2d 386) (1993). Moreover, like White, the police did not stop the vehicle until they had independently corroborated significant aspects of the informant’s predictions of Lamar’s future behavior and thus established that the informant was privy to inside information concerning Lamar’s affairs. Compare Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992), and cits. Applying the principles in White, the police were justified in making the investigatory stop of the vehicle based upon the reasonable suspicion that its occupants were in possession of a large amount of crack cocaine.

3. Once appellant and Lamar stated that there were weapons in the passenger compartment and the officers ascertained that such weapons were concealed, a search for weapons was justified based on probable cause to believe that the suspects had committed the criminal offense of carrying concealed weapons. See OCGA § 16-11-126.

After the weapons were found and the suspects were placed under arrest, the police were additionally authorized to continue the search of the passenger compartment and containers found within it as incident to a lawful custodial arrest. Davis v. State, 165 Ga. App. 231, 232 (299 SE2d 113) (1983) (citing New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981)).

Under Michigan v. Long, supra, where as here the police undertake a lawful investigatory stop of a vehicle because of reasonable suspicion that its occupants are in possession of a large amount of crack cocaine and the suspects admit that there are weapons concealed in the passenger compartment of the vehicle, a protective search of that area to uncover weapons is justified under Terry. See generally Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991).

Decided August 15, 1994

Reconsideration denied September 7, 1994.

Mathis, Jordan & Adams, Virgil L. Adams, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Kirby H. Wincey, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1119.
    DYKES et al. v. THE STATE.
    (448 SE2d 463)
   Beasley, Presiding Judge.

In March 1991, appellants Dykes and Patterson pled guilty to an indictment charging them with burglary of a dwelling. They were each given a four-year sentence under the First Offender Act, to serve five days in jail with the remainder on probation. Patterson was ordered to report to jail approximately two weeks after sentencing and Dykes was ordered to report to jail approximately two weeks later. A condition of their probation was to pay restitution to the victim, in an amount to be determined at a hearing.

In November 1991, the court vacated the sentences for violations of the terms of probation and appellants were adjudicated guilty. They were each sentenced to four years’ probation, with a condition of restitution to be determined later.

In August 1992, the court found that each appellant again had violated the terms of his probation, and each was ordered to complete intensive probation and 300 hours of community service. Patterson’s probation was revoked the following May after he tested positive for cocaine, and he was relegated, to a diversion center. Dykes’ intensive probation was terminated in June, and he was transferred to regular probation.

A few months later, the court entered an order prompted by the State without a hearing or notice to either appellant, stating that no restitution was being ordered in the case against them because attempts to contact the victim had proven unsuccessful, the home telephone number listed on the police reports had been disconnected, and the victim did not work at the place of employment listed on the report.

Then in November, the court required appellants to appear at a restitution hearing. At the hearing, the prosecuting attorney stated that although the attempts to telephone the victim had been unsuccessful because the numbers they had were no longer valid, the victim in fact had been contacting the district attorney’s office during the same time and was seeking restitution, unbeknownst to the attorney handling the case. The prosecuting attorney stated that, since the victim’s right to restitution had been erroneously foreclosed through the actions of the district attorney’s office, the State had sought the restitution hearing, at which the victim was present and ready to testify. Defense counsel objected, stating that the order eliminating restitution, entered at a prior term of court, could not be modified. The court observed that the case was not closed since appellants were on probation. After the prosecuting attorney noted that restitution was a condition of probation, the court agreed to set aside the previous order and hear evidence.

Following the hearing, the court ordered restitution in the amount of $8,500 against appellants jointly and severally. Each of them was required to pay $400 monthly, although Patterson was not required to begin making payments until after being released from custody. Appellants moved to set aside the restitution order, citing Harris v. State, 261 Ga. 859 (413 SE2d 439) (1992), and appeal from the denial of the motion.

In Harris, the victim failed to appear at the restitution hearing due to a miscommunication with the district attorney’s office. The trial court ordered restitution based on a stipulation between the State and Harris as to the amount of the victim’s loss based on personal property taken from a car she had rented. The victim moved to modify the restitution order so as to increase the amount of restitution after the rental car company sued her for damages to the automobile. The court granted the modification. See OCGA §§ 17-14-12; 17-14-2 (6).

The Supreme Court reversed, holding that since restitution is punishment when ordered as part of a criminal sentence, the trial court cannot increase the amount of restitution after the defendant begins serving a sentence, absent the defendant’s consent (although the court may defer the initial decision on the amount of restitution until a later hearing). The Court reasoned that an increase in the amount of restitution would constitute an increase in the sentence. As noted in Harris, the sentencing court cannot increase the sentence once the defendant begins serving it without violating the state and federal constitutional prohibitions against double jeopardy.

This case and Harris are distinguishable. In this case, the trial court entered an ex parte order as a result of which no restitution hearing was held. The order was entered because of misinformation mistakenly provided to the court by the district attorney’s office as to the then existing facts. When it was brought to the court’s attention that the information it had been provided was erroneous, it vacated the order, conducted a restitution hearing, and set the amount of restitution. There was no increase in the punishment but rather reinstatement of that part of the sentence which had been erroneously deleted due to the mistaken belief that it could not be affected. In Harris, double jeopardy prevented the trial court from increasing the amount of restitution after it had been set and thereby imposing more onerous punishment than originally set. The prohibition against double jeopardy did not prevent the court in this case from conducting the anticipated, required restitution hearing and setting an amount of restitution in the first instance after vacating the order it had erroneously entered. The evidence supports the trial court’s determination of appellants’ ability to pay the amount ordered.

Decided August 12, 1994

Reconsideration denied September 7, 1994

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellants.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Robert E. Statham III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1410.
    YOUNG v. THE STATE.
    (448 SE2d 477)
   Beasley, Presiding Judge.

Officer Billingslea was clearing cars illegally parked in a fire lane. Appellant, the driver of one of the cars, fled as Billingslea was determining that this car was stolen.

Billingslea obtained warrants against appellant in magistrate court for theft by receiving a motor vehicle stolen in another state, improper parking, and concealing the identity of a motor vehicle. That court dismissed the charges at the preliminary hearing because of Billingslea’s failure to timely appear. When Billingslea arrived late and discovered what had happened, he was informed that he could seek an indictment from the grand jury.

He obtained additional warrants charging appellant with giving a false name, giving a false address, obstruction of an officer, and driving on a suspended license. These charges were bound over to state court at the preliminary hearing on them, and appellant pled guilty.

The assistant solicitor, who was the prosecuting attorney in state court, was aware of the charges against appellant which had been dismissed by the magistrate court. She, as well as appellant and defense counsel, believed that Billingslea had brought the charges against appellant then pending in state court in lieu of seeking an indictment on the original charges. That belief was erroneous, in that a four-count indictment was subsequently returned against appellant in superior court, charging him with the offenses of theft by bringing stolen property into the state, theft by receiving stolen property in another state, concealing the identity of a motor vehicle, and improper parking.

Appellant filed a plea in bar in reliance on OCGA § 16-1-7 (b), which provides in pertinent part: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .”

Although the assistant district attorney conceded that the crimes charged in the indictment arise from the same conduct as those of which appellant was convicted in state court, the superior court ruled otherwise under the authority of Grant v. State, 180 Ga. App. 746, 747 (1) (350 SE2d 582) (1986). The court also ruled that since the assistant solicitor was not aware that an indictment would be returned against appellant on the charges dismissed by the magistrate court, the appellant had not carried his burden of proof on this issue. Accordingly, the court denied the plea in bar.

Under Grant, the offenses concerning theft and concealing the identity of the motor vehicle did not arise from the same conduct as the offenses of which appellant was convicted in state court. As in Grant, the former crimes constituted one set of offenses related to the theft of the car, and the latter crimes were unrelated and independent acts committed by appellant while in possession of it. The State’s concession to the contrary was not binding on the court. See Busbee v. State, 205 Ga. App. 533 (423 SE2d 3) (1992).

However, under Grant, as well as McCrary v. State, 171 Ga. App. 585 (320 SE2d 567) (1984), aff’d State v. McCrary, 253 Ga. 747 (325 SE2d 151) (1985), the offense of improper parking, a traffic offense, did arise from the same conduct as the offenses of which appellant was convicted in state court.

Thus, the court should have dismissed the count of the indictment charging appellant with improper parking, if this crime was actually known to the assistant solicitor. Anderson v. State, 200 Ga. App. 530 (408 SE2d 829) (1991). It is uncontested that it was. Under OCGA § 16-1-7 (b), her actual knowledge of the crime bars a subsequent prosecution. It is immaterial that she mistakenly thought that no indictment was being sought.

Decided August 15, 1994

Reconsideration denied September 7, 1994'—

Steven L. Harris, for appellant.

Robert E. Keller, District Attorney, Per B. Normark, Assistant District Attorney, for appellee.

The order of the superior court is affirmed insofar as it denied appellant’s motion to dismiss the counts charging him with the two theft offenses and concealing the identity of a motor vehicle, but the order is reversed insofar as it denied appellant’s motion to dismiss the count charging him with improper parking.

Judgment affirmed in part and reversed in part.

Andrews and Johnson, JJ., concur.


text:
    A94A1576.
    SIMPSON v. THE STATE.
    (448 SE2d 370)
   Blackburn, Judge.

Appellant, Darren Martin Simpson, was convicted of aggravated assault, possession of a firearm during the commission of certain crimes, and possession of a firearm by a first offender probationer.

1. On appeal, Simpson first enumerates as error that the trial court erred in allowing the State to lead its own witness. As Simpson presents no argument or citation of authority on this enumeration of error, it is deemed abandoned pursuant to Court of Appeals Rule 15 (c). See Brown v. City of Chamblee, 211 Ga. App. 145 (3) (438 SE2d 396) (1993).

In his brief, Simpson argues it was not the leading questions which caused the harm, but rather the comments of the State’s attorney in response to the objection made by Simpson’s attorney to the leading questions. This contention was not enumerated as error, and “[o]n appeal an enumeration of error cannot be enlarged by brief to give appellant viability to an issue not contained in the original enumeration.” (Citations and punctuation omitted.) Bridges v. State, 205 Ga. App. 664, 665 (1) (423 SE2d 293) (1992). Additionally, such an argument was not presented to and ruled upon by the trial court, and therefore, we will not consider it on appeal. See Dietz v. Becker, 209 Ga. App. 678, 679 (3) (434 SE2d 103) (1993); Jones v. State, 207 Ga. App. 46 (1), (4) (427 SE2d 40) (1993).

2. Simpson next contends the trial court erred in allowing the State’s attorney to make the following statement during closing argument: “Domestic violence is a very serious problem. Very often victims of domestic violence do not want to prosecute, for whatever reason. They want their husbands back; they love them; they miss them; they need them; they need their money; they want help with raising their children. For whatever reason, it’s very, very typical for a victim of a domestic violence case not to want to prosecute. That’s why the decision is left to the State of Georgia and the District Attorney’s office. Because if we left the decision of prosecuting domestic violence cases to the victim all the time we wouldn’t see any domestic violence cases being prosecuted. What you would see is people being hurt over and over again without anything being done about it. . . . It is our job through the District Attorney’s office to protect both society and the individual when we can. But in this particular case, the interests of society have to come before the interests of the victim.”

Decided August 4, 1994

Reconsideration denied September 7, 1994.

Stanley C. House, for appellant.

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

Simpson was accused of assaulting his long-time live-in girl friend and the mother of his children with a firearm. At trial, two eyewitnesses specifically testified that during an argument, Simpson pulled the gun from the back of his pants and shot the victim from close range (two to three feet away), while the victim was facing him. The victim admitted she was arguing with Simpson at the time she was shot, but testified that because she was intoxicated, she did not know who shot her. Additionally, the victim testified she wished Simpson could return home with her that day and that they could get back together.

“Because a crime is by definition a public wrong against the State, it is not usually an acceptable defense that the person wronged by a criminal has condoned the offense. [Cit.]” Pratt v. State, 167 Ga. App. 819, 820 (307 SE2d 714) (1983). Therefore, it was not error for the prosecutor to inform the jury that the victim’s desire that Simpson not be convicted of the crimes charged should have no effect on their duty to decide the case on the evidence presented. Chambers v. State, 134 Ga. App. 53, 54 (213 SE2d 158) (1975); see also Cooper v. State, 260 Ga. 549, 550 (3) (397 SE2d 705).

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A94A1027.
    JAFARI et al. v. SIMPSON ORGANIZATION.
    (448 SE2d 493)
   Ruffin, Judge.

The appellee sued the appellants, Jeffery Jafari and the Prad Group, Inc., for non-payment of rent. The appellants filed a counterclaim for the alleged conversion of personal property which was left on leased premises after termination of a lease. After a bench trial, the trial court entered judgment in favor of the appellee on both claims, and this appeal followed.

The appellants leased office space in a building owned by West Peachtree Partners under a lease which stipulated a term commencing July 1, 1988 until June 30, 1991 and an initial monthly rent of $3,682.47. The lease provided that the annual rental rate would increase each January 1 in accordance with the consumer price index. The lease also gave the appellants the option of early termination on June 30, 1990, provided the appellants were not in default under the terms and conditions of the lease; the appellants gave 90 days advance notice; and the appellants paid the unamortized portion of the buildout cost.

On January 30, 1990, the appellants notified the property manager for West Peachtree Partners of their intention to vacate the premises by June 30, 1990. The property manager responded on April 18, 1990, and informed the appellants that they were in default under the terms and conditions of the lease agreement because they failed to pay their rent for March and April and thus, forfeited their option to cancel the lease. The response also appears to confirm a prior telephone conversation in which the appellants indicated to the property manager that they no longer wanted to terminate the lease but instead were considering expanding their office space.

At trial, Jafari admitted that the appellants were in arrears on their lease payments at the time of the property manager’s letter, but he testified that they caught up on the rent and paid the unamortized cost under the lease such that by June 30, 1990, the lease was terminated. He also maintained that the appellants reached a subsequent agreement with the property manager that they would remain on the premises after June 30, 1990, on a month-to-month basis and pay the reduced rent of $3,000 per month. Jafari testified further that in February 1990, he learned of the appellee’s plans to purchase the premises and that in the ensuing months, he reached an agreement with one of the appellee’s partners, Nick Telesca, that the rent would be reduced further to $2,500 per month upon the appellee’s purchase of the property. Nick Telesca did not testify at trial; however, two other partners testified that neither the appellee nor West Peachtree Partners agreed to reduce the rent. No written evidence of such an agreement was introduced at trial.

In November 1990, the appellee purchased the building. In connection with the purchase, the appellee sent each tenant a copy of its lease and an estoppel certificate and requested that the tenants verify the material terms. The appellants’ estoppel certificate indicated a term commencing June 1, 1988 until June 30, 1991 and a monthly rental rate of $4,017.50, as of October 1990. Jafari made a “correction” in the margin of the certificate that the rent was $3,000 per month, and he attached a letter in which he explained the current status of the lease. In pertinent part, the letter indicated that the lease ended on June 30, 1990, and that the California office agreed to reduce the rent to $3,000, which the appellants were currently paying, having been denied their request of a reduction to $2,500 per month.

The record of the appellants’ account with the appellee shows that as of December 1990, the appellee’s first full month of ownership, the appellants were billed the monthly rental rate of $4,017.50, in accordance with the lease, and that the appellee continued to bill the appellants in full until the appellants vacated the premises, at which time the rent had increased to $4,262.57 per month. The appellants’ payment history dating back to December 1990 reveals a pattern of late payments, sometimes as late as two or three months, partial payments and the tender of lump sums after months of arrearages. Total payments per month never exceeded $2,500. Jafari testified that based on the agreement reached with Nick Telesca, the appellants’ rent was $2,500 per month. However, monthly invoices billed the full payment due under the lease and displayed the cumulative total past due.

Correspondence between the parties from March 4, 1991 until March 4, 1992, demonstrates the appellee’s efforts to collect past due rent, its willingness to accept less rent to satisfy arrearages and the parties’ continuing efforts to agree on a new lease with a reduced rent. Mark Taylor, one of the appellee’s partners, testified that the appel-lee was willing to allow the appellants to remain on the premises after expiration of the lease on June 30, 1991, and was willing to reduce the rent but only in exchange for a three-year extension of the lease. Taylor’s telephone log of his conversations with Jafari from June 14, 1991 until January 29, 1992, shows numerous discussions regarding the appellants’ missed payments, the appellee’s attempts to collect full payment and the parties’ continuing efforts to agree on a new lease.

By March 4, 1992, the parties could not agree on a rental amount and lease extension. The appellants notified the appellee that they intended to vacate the premises by April 1, 1992. They also tendered a “final” check for past due February and March rent totalling $5,000. Upon receipt of the appellants’ notice of termination, the ap-pellee demanded the payment of $20,650.84, in satisfaction of all of the appellants’ outstanding claims, by March 23, 1992. The appellee advised the appellants that the contract ran from June 1, 1988 until June 30, 1991; that the rent as of January 1,1991, was $4,262.57; that from the appellee’s purchase of the building in November 1990 until May 1991, the appellants’ account was seriously delinquent; that on May 1,1991, the appellee accepted a lump sum as a compromise of all outstanding claims at that time; that, nonetheless, the delinquency continued every month; that under paragraph 16 of the lease, a lessee who remains on the premises after expiration of the term of the lease, without any express agreement between the parties, is a tenant at will at a rental rate equal to one-and-one-half times the rental rate in effect at the end of the lease; and that under other lease provisions, the appellee was also entitled to collect attorney fees and a five percent charge on the outstanding balance. When the appellants failed to make payment by April 1,1992, the appellee changed the locks on the appellants’ office, thus preventing the appellants from moving their personal property from the premises. The appellee then filed the instant action and the counterclaim followed. The court entered a judgment for the appellee in the amount of $20,650.84 plus interest and attorney fees.

At trial, the appellee introduced evidence that despite payment of rent in the amount of $44,000, the appellants’ total delinquency under the lease (including rent at the hold-over rate from July 1991) from November 1990 until April 1992 was $52,119.61. However, Mark Taylor testified that they opted not to enforce the hold-over provision or the 1992 consumer price index increase to which they were entitled and that the $20,650.84 figure represented the difference between the lease obligation ($42,625.70) and the sum already paid by the appellants ($21,974.86) from June 1, 1991 until March 1, 1992.

1. In their first enumeration of error, the appellants contend the evidence did not support the judgment because the appellee failed to refute the termination of the original lease and the establishment of a month-to-month tenancy. The appellants also contend the specific amount awarded by the trial court was not supported by the evidence. We disagree.

“In bench trials, the trial judge sits as the trier of fact and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. [Cit.] Further, under OCGA § 9-11-52 (a) the findings of the trial court in these cases ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.’ As the clearly erroneous test has the same effect as the any evidence rule, we will not disturb the findings of fact in this case if there is any evidence to sustain them. [Cit.]” Taylor & Rozier v. Anderson, 211 Ga. App. 897, 898 (440 SE2d 767) (1994).

The evidence demonstrates, notwithstanding the negotiations for a new lease at a lower rental rate, that throughout the appellants’ tenancy, the parties were governed by the original lease; that the ap-pellee continually asserted its right, under the lease, to full payment of rent; and that the appellants’ payment and the appellee’s receipt of less than the total amount of rent due did not constitute a mutual departure from the lease or an accord and satisfaction. See Minor v. C & S Nat. Bank, 177 Ga. App. 115 (338 SE2d 466) (1985). Compare Mobley v. Fulton Roofing Co., 173 Ga. App. 563 (1) (327 SE2d 540) (1985). Moreover, there was no documentary evidence of termination of the lease during West Peachtree Partners’ ownership of the building nor was there any such evidence of agreements with West Peach-tree Partners or the appellee to a month-to-month tenancy commencing in 1990 at a lower rental rate. The only evidence which arguably supports the termination of the lease and the establishment of a month-to-month tenancy in 1990 is Jeffery Jafari’s in-court testimony which the trial court, as trier of fact, was entitled to disbelieve.

Decided September 7, 1994.

Glaze, Glaze & Fincher, Thomas M. Conway, for appellants.

The record also supports the amount awarded the appellee by the trial court based on the appellants’ default due to their failure to pay the full amount of rent due and owing each month after expiration of the lease in 1991.

2. The appellants also enumerate as error the admission of a series of letters written during the appellants’ tenancy under West Peachtree Partners’ ownership by West Peachtree Partners’ property manager notifying the appellants they were in default of the lease agreement due to untimely payment of rent and demanding full and immediate payment in accordance with the lease. The appellants contend the letters were improperly admitted as business records without proper foundation. Assuming a proper foundation was not presented for introduction of the letters, such error was harmless. Since the April 18, 1990 demand letter from the property manager, which was admitted without objection, demonstrated that the appellants were in default in April 1990, and there was extensive evidence of the appellants’ defaults after the appellee assumed ownership of the building, the letters were merely cumulative evidence of the likelihood that the lease was not terminated in June 1990 due to the appellants’ practice of defaulting on the lease. See Ansley v. State, 198 Ga. App. 452 (402 SE2d 73) (1991). Furthermore, “it is presumed in a nonjury trial that in his consideration of evidence the judge will sift the wheat from the chaff and select only the legal evidence. [Cit.]” Dawley v. Butts County &c. Svcs., 148 Ga. App. 815 (2) (253 SE2d 235) (1979).

Judgment affirmed.

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

Schwall & Schwall, Craig L. Schwall, Thomas E. Austin, Jr., for appellee.


text:
    A94A1113.
    THE STATE v. JONES.
    (448 SE2d 496)
   Ruffin, Judge.

Richard Monroe Jones was charged with the offenses of DUI, OCGA § 40-6-391; and turning without a signal, OCGA § 40-6-123. The State appeals from the grant of Jones’ motion to suppress evidence.

The evidence presented at the hearing on the motion to suppress reveals that in the early morning hours of May 29, 1993, Officer. Par-rott and another officer of the Cobb County Police Department were sitting in a parked patrol car with its blue lights activated on Bank-head Highway just inside Cobb County when they observed a vehicle driven by the appellee approach from Fulton County and, without giving a signal, execute a wide U-turn in the mouth of Riverview Road and head back toward Atlanta on Bankhead Highway. No other vehicles were on the road at the time. Officer Parrott testified that in his experience many people for various reasons attempt to turn back when they see police vehicles or blue lights. He explained that he stopped the appellee for failing to signal his turn. When he approached and asked to see the appellee’s license and proof of insurance, the officer detected an odor of alcohol on the appellee’s person. He asked that the appellee step out and to the rear of the vehicle, where he failed to pass several field sobriety tests. The appellee was cited for DUI and later was also charged with making an improper turn.

The trial court found the initial stop was not justified by an ar-ticulable suspicion of criminal conduct because the appellee violated no law by failing to signal his turn when there were no other drivers on the roadway. Accordingly, the court granted the appellee’s motion to suppress evidence concerning the field sobriety tests.

The State contends that the initial stop was not rendered invalid because the appellee’s failure to signal was later determined not to be illegal. We cannot agree.

“This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. [Cit.] We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous. [Cits.]” Chastain v. State, 196 Ga. App. 50, 51 (1) (395 SE2d 570) (1990). “Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. . . . This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).

Decided September 8, 1994.

Ben Smith, Solicitor, Aurieanne Sneed, Barry E. Morgan, Mark A. Basurto, Assistant Solicitors, for appellant.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellee.

OCGA § 40-6-123 provides, in pertinent part: “(a) No person shall . . . turn a vehicle from a direct course or change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section, (b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or the driver of a vehicle approaching from the opposite direction.” (Emphasis supplied.) Because no other drivers were on the road, the appellee was not required to signal his intention to turn. Clark v. State, 208 Ga. App. 896 (1) (432 SE2d 220) (1993). Compare McConnell v. State, 188 Ga. App. 653 (1) (374 SE2d 111) (1988). The officer’s stop of the appellee was not justified in that the officer did not observe him commit any crime before the stop, and the officer did not testify to any facts that would indicate the appellee was about to violate the law in any manner. The officer’s “hunch” that the appellee turned around to escape police detection of wrongdoing is an insufficient basis for an investigative stop. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968). Accordingly, the trial court correctly granted the appellee’s motion to suppress.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A94A1292, A94A1341.
    A94A1344.
    CLOUD et al. v. GEORGIA CENTRAL CREDIT UNION et al. (two cases). CLOUD et al. v. CHRYSLER FIRST BUSINESS CREDIT CORPORATION.
    (448 SE2d 913)
   Birdsong, Presiding Judge.

In these appeals Cynthia E. M. Cloud, Wilbert Cloud, and Diane M. Knapp appeal several rulings of the trial court in favor of Georgia Central Credit Union and Chrysler First Business Credit Corporation on claims arising from a foreclosure sale of property securing debts owed by appellants and the later dispossessory of appellants from the property that was sold pursuant to the foreclosure. Appellants contend that the foreclosure sale was unlawful, that the trial court improperly required a supersedeas bond, and that the trial court improperly granted the dispossessory.

The records show that Chrysler First obtained title to certain real property in Decatur, Georgia, pursuant to a non-judicial foreclosure sale conducted by Georgia Central. Subsequently, appellants challenged that action alleging that the foreclosure sale was unlawful. After the trial court ruled against appellants, they appealed.

Then, because appellants did not leave the property after the foreclosure sale, Chrysler First filed a dispossessory action under OCGA § 44-7-50. In this action appellants admitted that Georgia Central effected a non-judicial foreclosure sale of the property to Chrysler First, but maintained that appellees conspired to prevent them from asserting their rights. After the lower court ordered a writ of possession, appellants also appealed.

Then, after appellants filed their notice of appeal in the dispos-sessory, Chrysler First moved for and was granted a supersedeas bond under OCGA § 5-6-46. Appellants have also appealed that order.

Although these were separate actions below and separate appeals, the appeals are consolidated as they concern the same parties and arise from litigation concerning the same property. Held:

Case No. A94A1292

1. Appellants contend the trial court erred by granting Georgia Central’s and Chrysler First’s motion to dismiss and motion for summary judgment because appellants and Georgia Central mutually agreed to a departure from the contract terms; because genuine issues of material fact remain; because notice allegedly required by OCGA § 13-4-4 was not given; because issues of waiver and bad faith necessitated a jury trial; because DeKalb County was the proper venue for an action against Georgia Central; and because Georgia Central and Chrysler First acted in concert to oppress the plaintiffs.

The primary thrust of appellants’ arguments is that the trial court erred by granting summary judgment to Georgia Central because the foreclosure sale was unauthorized since Georgia Central had effected a departure from the terms of the note sufficient to authorize appellants’ failure to make payments on the debt. This argument is based on the contention that because Georgia Central earlier accepted late and irregular payments, Georgia Central somehow agreed that appellants would not be required to make payments under the mortgage. Compare Sandifer v. Long Investors, 211 Ga. App. 757 (2a) (440 SE2d 479).

While parties may agree to depart from the terms of a contract (see OCGA § 13-4-4; Smith v. General Finance Corp., 243 Ga. 500 (255 SE2d 14)) to support such a departure, there must be some evidence that an agreement to do so had been reached. In this appeal we find no evidence of the agreement appellants assert. Since at the time of the foreclosure appellants had not made a payment for over a year, for appellants to prevail on this claim there must have been some evidence that Georgia Central authorized this great deviation from the payment schedule. As nothing in this record shows that Georgia Central agreed to allow appellants, in effect, to cease making payments, appellants’ argument is without merit. See Duncan v. Lagunas, 253 Ga. 61, 62-63 (316 SE2d 747); Lewis v. C & S Nat. Bank, 174 Ga. App. 847, 848 (332 SE2d 11); Shalom Farms v. Columbus Bank &c. Co., 169 Ga. App. 145, 147-148 (312 SE2d 138). Further, since the evidence shows there was no deviation from the contract terms, notice under OCGA § 13-4-4 was not required.

2. Appellants’ argument that they should have been allowed to redeem the property is also based upon a premise that is not supported'by the evidence. Appellants contend that because Georgia Central’s agent sent them a notice stating that they could redeem the property by making a payment of the arrearages by a certain date, they were allowed to redeem the property. As review of the security deed, however, shows that it contains no right to redeem the property by reinstating the debt after foreclosure, appellants have no right to do so. Pretermitting whether the letter, apparently sent to appellants in error, had any force and effect, is the fact that appellants did not pay the arrearages by the date specified in the letter or later. Thus, appellants did not exercise the right of redemption they now claim.

3. Appellants further contend the lower court erred by granting summary judgment when genuine issues of material fact remained for trial on appellees’ bad faith. This argument too is without merit because appellants have produced no evidence creating a genuine issue on this claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). The record shows that when finally advised that one of the appellants had filed a bankruptcy petition months earlier, appellees, with the consent of the appellants concerned, took action to protect their financial interests by moving to vacate the automatic stay in bankruptcy as to this property. The record shows no evidence that appel-lees took this action in bad faith. Instead, the record shows that the foreclosure sale was conducted only after having been authorized by the U. S. Bankruptcy Court upon appellants’ consent to appellees’ motion. If appellants have a complaint with the actions of the bankruptcy court, they should have raised them in the proper forum in a timely manner. This is not the proper forum to challenge the decision of the U. S. Bankruptcy Court.

4. We find no error in the lower court’s dismissal of appellants’ claim against Georgia Central because the record shows that Georgia Central neither maintained an office nor transacted business in DeKalb County. OCGA § 14-2-510 (b); Hagood v. Garner, 159 Ga. App. 289 (283 SE2d 355). Appellants’ contention that Chrysler First and Georgia Central were joint actors in this matter is without factual support. Accordingly, appellants’ enumerations of error concerning Case No. A94A1292 are without merit.

Case No. A94A1341

5. In this appeal appellants contend the trial court erred by granting Chrysler First’s motion for a supersedeas bond since the order was contrary to OCGA § 5-6-46, the order was entered in violation of Uniform Superior Court Rule 6.2; and further that the trial court abused its discretion by fixing an amount for the bond as excessive, punitive, and contrary to law. Appellants’ primary argument is that OCGA § 5-6-46 does not authorize a supersedeas bond in this case because no money judgment was awarded against them. This argument, however, disregards the provision in the Code section that authorizes a supersedeas bond “[w]hen the judgment determines the disposition of the property in controversy as in real actions, trover, and actions to foreclose mortgages and other security instruments . . . the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.” OCGA § 5-6-46 (a). Therefore, a supersedeas bond was authorized in this case even though no money judgment was entered against appellants.

6. Further, appellants’ contention that the supersedeas bond was granted in violation of Uniform Superior Court Rule 6.2 is also without merit. Although the trial court, in fact, granted the bond within 30 days after Chrysler First moved for the bond, Uniform Superior Court Rule 6.2 does not apply to motions for supersedeas bonds. Since, by its terms, Uniform Superior Court Rule 6 applies to motions before trial, the rule does not govern post-trial motions for su-persedeas bonds under OCGA § 5-6-46. This enumeration is also without merit.

7. Finally, appellants contend the amount of the bond was excessive. Under OCGA § 5-6-46 the trial court has the discretion to fix the amount of the bond when a motion is filed requesting a superse-deas bond. Hyman v. Leathers, 168 Ga. App. 112, 115-116 (308 SE2d 388). After consideration of the record on appeal, including the amount of the debt secured by the property foreclosed upon and appellants’ actions in delaying the foreclosure sale by repeated bankruptcy filings as well as the filing of these appeals, we find that the trial court did not abuse its discretion by requiring appellants to post a supersedeas bond in the amount of $340,000. Id.

Decided September 8, 1994.

J. L. Jordan, for the Clouds.

Macey, Wilensky, Cohen, Whittner & Kessler, Susan L. Howick, for Georgia Central Credit Union.

Davis & Doster, Joseph G. Davis, Jr., Phillip L. Pleska, Charles Waters, Jr., for Chrysler First Business Credit Corp.

Accordingly the enumerations of error in Case No. A94A1341 are without merit.

Case No. A94A1344

8. Appellants contend in this appeal that the trial court erred by granting Chrysler First a dispossessory because the foreclosure sale upon which Chrysler First’s right of possession was based was void, contrary to equity, and was conducted in derogation of defendants’ rights to ownership of the premises and, further, that the disposses-sory was unlawful because appellants were not tenants at sufferance after the foreclosure but equity title holders since the foreclosure sale was unlawful.

Pretermitting appellants’ arguments concerning the validity of the foreclosure sale, these arguments cannot be used to contest the dispossessory. Roberts v. Collins, 199 Ga. App. 614 (405 SE2d 508); Cotton v. Fed. Land Bank, 171 Ga. App. 360, 361 (320 SE2d 235). Moreover, contrary to appellants’ assertions, as former owners remaining in possession after a foreclosure sale, they were tenants at sufferance subject to being dispossessed. Collins v. Administrator of Veterans Affairs, 156 Ga. App. 374, 375 (274 SE2d 760).

Judgments affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1260.
    JORDAN v. THE STATE.
    (448 SE2d 917)
   Beasley, Presiding Judge.

Appellant was convicted of two counts of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), one upon Rocky Wright and the other upon Wright’s two-year-old daughter Kenishia. The trial court denied appellant’s motion for new trial.

On June 27, 1992, appellant was a visitor at the residence of Veronica Colbert. They had dated for approximately 11 years but had just broken up. He is the father of one of her children. On the evening in question, she had a date with another man. When her date arrived at approximately 8:00 p.m., appellant followed her to the car and prevented her from leaving. He carried her to his apartment against her will, locked the door and refused to open it.

Wright, who was Veronica’s sister’s boyfriend, appeared at the screen door outside the kitchen and banged on the door. He was holding Kenishia in his arm on his right side. Appellant became upset because Wright was intervening in his personal affairs. He took a semi-automatic handgun and shot through the screen door.

Wright, who was declared a hostile State’s witness, testified that when appellant fired the gun, he was approximately one foot away from him, and he could see appellant through the screen although it was dark. When he saw appellant raise his hand with the gun pointed directly at his chest, he stepped back and turned to the right. The bullet entered his left arm, exited, entered his side or back and finally exited his body. Afterward, appellant told Wright that he did not mean to shoot him but was just trying to scare him.

In a statement to police and in his trial testimony, appellant maintained that he shot to the side of Wright, who jumped into the path of the bullet. Appellant also testified that he could see Wright standing outside the screen door but could not see Kenishia.

1. The first question is whether the evidence was sufficient as a matter of law to support a conviction of aggravated assault as to Rocky Wright.

“ ‘The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by (a) an intention to murder, rape, or to rob, or (b) use of a deadly weapon.’ [Cit.] OCGA § 16-5-20 states: (a) A person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Knox v. State, 261 Ga. 272, 274 (3) (404 SE2d 269) (1991). In this instance, the indictment expressly charges subsection (a) (2) of OCGA § 16-5-21, and it does not limit the manner of simple assault to either subsection (a) (1) or (a) (2) of OCGA § 16-5-20. The court charged both types of simple assault, in the alternative, and recharged the jury on this matter upon its request.

Under a subsection (a) (2) simple assault, “ ‘[i]ntent to injure is not an element of aggravated assault with a deadly weapon. In describing the distinction between the misdemeanor offense of pointing a firearm at another (OCGA § 16-11-102) and aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), the Georgia Supreme Court declared, “if the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.” [Cit.]’ ” Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993). See also Collins v. State, 199 Ga. App. 676, 677 (405 SE2d 892) (1991).

Appellant admitted that he saw Rocky Wright and discharged a firearm in his direction with the intent to scare him. Such an intent is not a defense. Wright saw the weapon in his hand, saw him raise it, and stepped back. The evidence authorized the jury to infer that appellant’s act placed Wright in reasonable apprehension of immediately receiving a violent injury. This apprehension was well-founded, as he immediately did receive a violent injury after taking evasive action to avoid being hit. See Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).

2. A separate question is whether the evidence was sufficient as a matter of law to support a conviction of aggravated assault upon Rocky Wright’s daughter Kenishia.

Although appellant testified that he did not see the child, the evidence was sufficient to authorize the jury to infer that he did. However, there was no testimony as to whether the child saw appellant pointing the gun in her direction and reacted to it or even understood its significance, or that as a result of the discharge she exhibited fear of becoming injured herself. In most instances, the victim’s testimony articulates this element. See, e.g., Collins, supra. In this case, however, the child was probably too young to testify at all, even without oath as permitted under OCGA § 24-9-5 (b). She was two years old at the time of the shooting and, although the record does not indicate, may have reached the age of three by the time of trial eleven months later. See Porter v. State, 237 Ga. 580, 581 (2) (229 SE2d 384) (1976) (age two years eleven months at incident, three years two months at trial). There is no evidence of whether she could have described her mental state or what she did in these circumstances. Nor was there any other evidence of her physical reaction to defendant’s menace or to the shooting. Even if she did not understand the threat initially, when the weapon was pointed, she may have exhibited instinctive fear of immediate harm to herself when defendant discharged the weapon. But no one described her physical or vocal reaction, and the evidence was that Wright walked to her grandmother’s house across the street, two houses up, with her still in his arm after he was shot.

The evidence cannot be supplied by conjecture. It is “an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U. S. 307, 316 (99 SC 2781, 61 LE2d 560) (1979). Our own statute requires “sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt.” OCGA § 24-4-5. The state of mind of the child was not proved, although it undoubtedly could have been proved by circumstantial evidence. Proof of “reasonable apprehension of immediately receiving a violent injury” is necessary to sustain a conviction under OCGA § 16-5-20 (a) (2). See, e.g., Williams v. State, 208 Ga. App. 12 (430 SE2d 157) (1993); Turner v. State, 205 Ga. App. 745 (423 SE2d 439) (1992). The State left a hole in drawing the circle of evidence and as in the circumstances in Emanuel v. State, 195 Ga. App. 302, 306 (393 SE2d 74) (1990), Pope, J., dissenting, adopted in 260 Ga. 425 (396 SE2d 225) (1990), “inferences and suggestion are not sufficient to meet the State’s burden. ...”

Now we reach the question of “whether the indictment could be construed to include an averment of a simple assault by an attempt to commit violent injury” under OCGA § 16-5-20 (a) (1), which question was avoided in Williams, supra at 13. Here the indictment alleged that defendant “did make an assault on the person of Kenishia Wright Colbert, with a handgun a deadly weapon.” This sufficiently charges an assault by way of either manner contained in the simple assault statute, and the court charged the jury on both. Thus we must determine whether, viewing the evidence in the light most favorable to the verdict, it supports a conviction under subsection (1) of OCGA § 16-5-20 (a).

We have found no case where evidence that an attempt to injure one person could sustain a conviction for attempt to injure another person in such close proximity as to be within the immediate range of injury. To attempt is “to make an effort to do, accomplish, solve, or effect.” Webster’s Third New Intl. Dictionary (Unabridged). Defendant’s unsuccessful effort was aimed at the father, according to the evidence, but the child could hardly be disassociated as a target of the attempt. Defendant was aiming at what amounted to both of them, and his deliberate act (attempt to injure, if the jury did not accept his statement that he meant only to scare) can be found to have included an intent to injure those at whom he aimed, even if in his anger he totally ignored the child’s presence in the line of fire. The attempt was general, not isolated. Defendant did not exclude the child from the range of fire. Firing a weapon at both of them constituted an. undifferentiated attempt to injure both, even if defendant’s intent was only to injure Wright. “ ‘There are wanton or reckless states of mind which are sometimes the equivalent of a specific intention to [injure], and which may and should be treated by the jury as amounting to such intention when productive of violence likely to result in the destruction of life, though not so resulting in the given instance.’ [Cits.]” Messer v. State, 120 Ga. App. 747, 748 (2) (172 SE2d 194) (1969). The requirement of criminal intent can be satisfied by a showing of criminal negligence on the part of the appellant. Lewis v. State, 180 Ga. App. 369, 371 (3) (349 SE2d 257) (1986). For, after all, it is elementary that “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. See Keye v. State, 136 Ga. App. 707 (1) (222 SE2d 172) (1975); Collins v. State, 66 Ga. App. 325, 326 (1) (18 SE2d 24) (1941).

Decided September 9, 1994.

William T. Hankins III, for appellant.

Jerry L. Jordan, pro se.

J. Tom Morgan, District Attorney, Robert E. Statham III, J. George Guise, Assistant District Attorneys, for appellee.

Within these parameters, then, and after viewing the evidence in the light most favorable to the jury’s determination of guilt, we conclude that any rational trier of fact could have found the essential elements of the crime (OCGA §§ 16-5-20 (a) (1) and 16-5-21 (a) (2)) beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1408.
    AVERY v. CHRYSLER MOTORS CORPORATION et al.
    (448 SE2d 737)
   Beasley, Presiding Judge.

Avery purchased a new 1987 Dodge Omni from Heritage Chrysler-Plymouth-Dodge. He experienced difficulties with the car that he attributed to a defective condition relating to carburetors, part of the method of fuel delivery used in Omni cars. He sued both Chrysler Motors Corporation and Heritage alleging fraud, product liability, and violation of the Georgia RICO (Racketeer Influenced & Corrupt Organizations) Act, OCGA § 16-14-1 et seq. Defendants’ motion for summary judgment was granted as to Heritage on the product liability claim and to both defendants on the RICO claim. The case was tried and, after judgment was entered on the jury verdict of $75,000, Avery appealed the elimination of the RICO claim.

1. The court granted summary judgment on the RICO claim based on Avery’s failure to establish a jury question on theft by deception, the predicate criminal offense alleged. OCGA § 16-8-3. Avery’s first three enumerations of error challenge each of the three consecutive legal sentences found in the court’s order ruling on the subject: “Jury issues as to civil fraud do not necessarily create jury issues as to the criminal offense of Theft by Deception. The elements of the civil cause of action for fraud are different from the elements of the felony offense of Theft by Deception. The definition of criminal intent under Georgia law is different from the scienter required for civil fraud.” The court found no evidence of criminal intent so as to create a jury issue.

Avery offers a single, three-step argument: 1) the court found evidence creating a jury issue on the count alleging civil fraud; 2) there is no difference between the evidence needed to demonstrate civil fraud and that needed to demonstrate theft by deception; and 3) given the first two premises, it was logically impossible for the court to rule that there was no evidence establishing the elements of the predicate act of theft by deception for the RICO claim.

Avery’s second premise is an incorrect statement of the law. Theft by deception and civil fraud have different elements and are not necessarily proved by the same evidence. See Robinson v. State, 198 Ga. App. 431, 433 (401 SE2d 621) (1991). Theft by deception is committed when a person “obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a). “A person deceives if he intentionally: (1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; [or] (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed. . . .” OCGA § 16-8-3 (b). Although OCGA § 16-8-3 (b) (2) does not specifically state that a deceiving person must “know[ ] or believe[ ]” an impression is false, that state of mind is implicit in the requirement of OCGA § 16-8-3 (b) (2) that a deceiving person “intentionally” fail to correct a false impression; without knowledge or belief that an impression is false, there can be no intentional failure to correct it. Deceit does “not, however, include . . . exaggeration by statements unlikely to deceive ordinary persons in the group addressed.” OCGA § 16-8-3 (c).

The tort of fraud requires a “[w]illful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury. . . .” OCGA § 51-6-2 (a); see also OCGA § 23-2-52. “In all cases of [fraud], knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false.” OCGA § 51-6-2 (b); see also OCGA §§ 23-2-52; 23-2-53. “A fraud may be committed by acts as well as words.” OCGA § 51-6-4 (a). It has often been stated that “ ‘ [t]he tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.’ ” Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994).

Avery urges us to equate the mens rea (general criminal intent) needed to prove a criminal case with the scienter (knowledge) needed to prove civil fraud. The statutory definitions of the necessary intent for the civil and criminal actions here are distinct. Scienter for fraud purposes may be shown by a fraudulent or reckless representation “even if the party making the representation does not know that such facts are false." (Emphasis supplied.) OCGA § 51-6-2 (b); see Lester v. Bird, 200 Ga. App. 335, 338 (1) (408 SE2d 147) (1991). Theft by deception requires that the person committing the crime does “know[ ] or believe[ ]” that the created impression (which itself must have been intentionally created or confirmed) is false. OCGA § 16-8-3 (b). Reckless disregard of the truth cannot be used to prove theft by deception; there must be knowledge, or at least belief, that an impression is false. Without that, there can be no intent to deceive.

The trial court was correct in concluding that civil fraud and theft by deception have different elements and that therefore showing that there are jury issues as to fraud does not necessarily show there are jury issues as to theft by deception. See Robinson, supra; Gordon v. State, 257 Ga. 335, 336 (359 SE2d 634) (1987); Elliott v. State, 149 Ga. App. 579, 582 (1) (254 SE2d 900) (1979). The predicate act for the RICO claim must stand or fall on its own. The court was also correct in concluding that a failure to show the level of intent needed for proving theft by deception would preclude a jury issue on that crime as a predicate act for RICO purposes, defeating the RICO claim.

The question remains whether the evidence showed the intent necessary to create a jury issue on theft by deception. “[I]n ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) [(1988)]. Nevertheless, a movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) [(1991)]. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the nonmoving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the nonmoving party’s case.” Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993).

We consider only the evidence before the court at the time of its ruling on the motion for summary judgment. Any evidence Avery may have produced at trial in the course of establishing his case on civil fraud that also might have shown theft by deception is not part of our review, as he was bound to produce it in response to the motion for summary judgment. “ ‘ “[A]ppellate courts will review only evidence presented to the trial court before its ruling on the motion. . . .” (Cit.)’ [Cit.]” Southern Dev. Co. v. ShepCo Paving, 206 Ga. App. 535 (1) (426 SE2d 234) (1992). The fact that a jury later found proof of civil fraud does not affect our examination of the trial court’s decision on RICO and theft by deception.

In their motion, defendants challenged the RICO count on the basis that, for one thing, there was no evidence of the intent necessary to establish theft by deception. The motion specified that the inability to show the necessary intent was evidenced in Avery’s deposition, that he relied on advertisement representations that the vehicle was covered by a good warranty, which was not false much less an intentional deception. In response, Avery did not make specific reference to where evidence showing the necessary criminal intent could be found, even circumstantially, but referred the court to his own prior motion for summary judgment and various documents in discovery, presumably in the belief that evidence on all issues raised by the defense motion could be found there and that the court would determine what evidence was to meet which issue.

To show that a jury issue on theft by deception was presented by the evidence, Avery would have to show that a false impression was created as to an existing fact, as well as show the defendants’ knowledge of its falsity. OCGA § 16-8-3 (b) (1), (2). Avery avers that television advertisements, his test drive of the car, and remarks of the salesman created the false impression that the car he purchased was reasonably suited as safe and dependable transportation, and that defendants both created this impression and failed to correct it. Although there may have been a false impression, there could be no theft by deception without defendants’ knowledge or belief that the impression was false. The whole purpose of the warranty was to correct any problems that arose in the future use of the vehicle.

Avery does not allege that the defendants created the impression that the car was perfect or free from defects, only that it was reasonably fit to serve as safe and dependable transportation. Avery does not aver that defendants created the impression that any Omni he might have purchased would be perfect. Rather the impression Avery avers he relied upon concerned the specific car he bought.

Avery attempts to show evidence of defendants’ criminal intent by his own affidavit, Chrysler’s technical service bulletins for the vehicle, and a recall of Omnis of model years other than that of Avery’s car. Evidence of any recall that does not affect Avery’s car does not demonstrate knowledge that Avery’s car was unfit to serve as safe and dependable transportation, the impression Avery claims was falsely created.

Defendants’ alleged knowledge that the car was not reasonable transportation could be rooted in either knowledge that all 1987 Omnis were defective, or in knowledge that the specific car purchased was defective. There is no evidence that defendants knew all 1987 Omnis were defective. Avery asserts that evidence of this knowledge can be inferred by the car’s being subject to technical service bulletins, that is, that it might experience certain problems that the technical service bulletins anticipated and instructed how to correct should they arise. The bulletins do not contain any statement that all cars covered by them are defective and will manifest the described symptoms; they do not contain any statement of how likely it is that such problems would occur, and do not give rise to any jury inference of knowledge or belief on the part of defendants that any such problem would occur with Avery’s car. They therefore cannot show that defendants had the requisite knowledge or belief that Avery’s car was one of a set of necessarily defective cars so as to support the crime of theft by deception. As in Robinson, supra, the facts here may give rise to civil suit, but do not support a criminal charge.

Nor is there any evidence suggesting that the defendants knew this specific car was defective; nowhere in the record is there any evidence from which a jury could conclude that defendants were aware that the vehicle in question would, or even probably would, prove to pose the problems Avery reported. Mere recognition that the problematic symptoms might arise in any vehicle in the model line Avery purchased, and preparation for repair of those symptoms, does not demonstrate that the defendants knew Avery’s vehicle would not serve as reasonable transportation. Without such evidence, no predicate act of theft by deception could be shown and no RICO count could be maintained. Compare Interagency, Inc. v. Danco Financial Corp., 203 Ga. App. 418 (417 SE2d 46) (1992) (facts did support conclusion of necessary intent for predicate act of theft by deception).

Decided September 9, 1994.

Edenfield, Stone & Cox, Ben Kirbo, Simpson, Gray & Carter, Ralph F. Simpson, for appellant.

Freeman & Hawkiris, Joanne B. Brown, Robert U. Wright, for appellees.

The intent necessary for the crime of theft by deception, as alleged by Avery and set forth in the statute, must be specific to the creation of a known false impression. There is no evidence that defendants knew any impression created about Avery’s car and relied upon by him was false, and no evidence of criminal intent to sell Avery a defective car so as to meet the statutory requirements of theft by deception.

2. Avery’s remaining enumeration is moot.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       Although Avery’s own motion for summary judgment referred to OCGA § 23-2-51, his complaint set out a claim for damages for the tort of fraud, rather than for equitable relief. See Bryson v. Button Gwinnett Savings Bank, 205 Ga. App. 668, 669 (1) (423 SE2d 691) (1992); Johnson Realty v. Hand, 189 Ga. App. 706, 711-712 (7) (377 SE2d 176) (1988).

       Had he relied upon any such impression, he probably would have run afoul of OCGA § 16-8-3 (c), as ordinary persons would not be likely to be deceived by such an exaggeration concerning machinery as complicated as an automobile.