text:
    A91A1535, A91A1536.
    ENGLISH et al. v. THE STATE.
    (415 SE2d 659)
   McMurray, Presiding Judge.

Defendant Wade. English and defendant Carol English were charged in a multi-count indictment for crimes stemming from the theft of property seized while defendant Wade English was performing his duties as a Camden County law enforcement officer. Defendant Wade English was charged in Counts 2 and 3 with theft by taking Camden County property, in Count 14 he was charged with theft of lost or mislaid property and in Count 18 defendant Wade English and Anthony (“Tony”) Floyd Basil were charged with conspiracy to defraud a state or political subdivision. Defendant Carol English was charged in Count 16 with theft by receiving stolen property.

Defendants Wade English and Carol English were jointly tried before a jury. The evidence revealed that defendant Wade English, while serving as a Camden County Sheriff’s deputy, and two other Camden County deputies misappropriated several thousand dollars in United States currency seized by the men while performing their duties as Camden County law enforcement officers. More specifically, Deputy Freddie L. Greene, Jr., testified that during the early months of 1988 defendant Wade English stopped a motorist on Interstate Highway 95; that while defendant Wade English was searching the stopped vehicle he discovered $4,000 in United States currency on the side of the road and that he and defendant Wade English split the money without reporting its discovery. Former Deputy Anthony Floyd Basil testified that on the night of October 18, 1988, defendant Wade English discovered $62,000 in United States currency while searching a stopped vehicle on Interstate Highway 95; that he and defendant Wade English split $12,000 of the money and that they falsely reported that $50,000 was seized from the stopped vehicle. Former Deputy Basil further testified that a similar incident occurred on January 29, 1989, when he and defendant Wade English split $50,000 in United States currency seized from a $250,000 stash found in the trunk of a vehicle officers had stopped on Interstate Highway 95. Former Deputy Basil testified that it was falsely reported that $200,000 was seized from the stopped vehicle. Former Deputy Basil testified that during the spring or late summer of 1989 he went to defendant Wade English’s home and discussed “how much [of the stolen] money ...” was left and that defendant Wade English turned to his wife, defendant Carol English, and stated, “ T believe we have about ten thousand left, don’t we?’ She acknowledged yes.”

Defendants Wade English and Carol English were found guilty on the above counts of the indictment. Their joint motion for new trial was denied and defendant Wade English appealed in Case No. A91A1535. Defendant Carol English filed an appeal in Case No. A91A1536. Held:

Case No. A91A1535

1. Defendant Wade English contends the offense of conspiracy to defraud a state or political subdivision merged with the offenses of theft by taking.

The Georgia Supreme Court has held that conspiracy to commit a crime under OCGA § 16-4-8 “ ‘ “clearly is merged into the greater crime where the evidence shows without dispute that the crime charged was actually committed. . . .” Crosby v. State, 232 Ga. 599, 602 (207 SE2d 515).’ Evans v. State, 161 Ga. App. 468, 470 (288 SE2d 726).” Meyers v. State, 174 Ga. App. 161, 163 (329 SEd 293). The Supreme Court reasoned “ ‘that it was the intent of the legislature to make conspiracy itself a separate crime only in cases where the crime conspired to be committed had not in fact been committed, that is, where the conspiracy had been, so to speak, “nipped in the bud.” . . .’ [Cit.]” Crosby v. State, 232 Ga. 599, 600 (3), 601 (207 SE2d 515). The same cannot be said about the legislature’s enactment of OCGA § 16-10-21.

OCGA § 16-10-21 (a) (to defraud the State) and (b) (to defraud a political subdivision) define conspiracy to defraud a state or political subdivision as a conspiracy or agreement to commit theft of government property. These Code subsections provide that “[t]he crime shall be complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the theft is consummated.” (Emphasis supplied.) OCGA § 16-10-21 (a) and (b). The emphasized language of these Code subsections makes clear the legislative intent to make conspiracy to defraud a state or political subdivision separate and distinct offenses, i.e., not subject to merger upon proof of the underlying criminal offenses. See Gordon v. State, 181 Ga. App. 391, 395 (2) (352 SE2d 582), reversed on other grounds at 257 Ga. 335 (359 SE2d 634). Consequently, there is no merger of Count 18, charging defendant Wade English with conspiracy to defraud a state or political subdivision, with Counts 2 and 3 charging him with theft of Camden County property.

2. Defendant Wade English challenges his convictions for theft by taking (Counts 2 and 3) and conspiracy to defraud a state or political subdivision (Count 18), arguing that there was no proof that the stolen money was taken from Camden County as alleged in Counts 2 and 3 of the indictment and that there was no evidence showing that a conspiracy existed to take money from a state or political subdivision. In this vein, it is argued that the stolen money was not the property of Camden County or any other state or political subdivision at the time of misappropriation because it had not then been forfeited under state law. This argument is without merit.

“All property declared to be forfeited under [OCGA § 16-13-49] vests in this state at the time of commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time.” OCGA § 16-13-49 (t) (1). In other words, “when property is subject to forfeiture for violation' of the law, title vests absolutely in the government on the date of the illegal act. Seizure and a subsequent decree of forfeiture merely confirms the forfeiture that has already taken place. United States v. Stowell, 133 U. S. 1, 10 S.Ct. 244, 33 L.Ed. 555 (1890); United States v. One 1967 Chris-Craft 27 Foot Fiber Glass Boat, 423 F.2d 1293 (5th Cir. 1970); Florida Dealers and Growers Bank v. United States, 279 F.2d 673 (5th Cir. 1960); U. S. v. One Piece of Real Estate, 571 F.Supp. 723 (W. D. Tex. 1983).” United States v. One Parcel of Real Estate Property, 660 FSupp. 483, 487 (1987), affirmed at 831 F2d 566 (1987).

In the case sub judice, the misappropriated money was seized by Camden County deputies pursuant to lawful police investigations and was therefore subject to forfeiture under OCGA § 16-13-49. Consequently, Camden County had a vested interest in the stolen money the moment the money was used during the commission of any underlying criminal acts. See OCGA § 16-13-49 (u) (4). This evidence, testimony that defendant Wade English and former Deputy Basil were required to turn in all money found or seized to the Camden County Sheriff and other evidence was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that defendant Wade English stole money belonging to Camden County and that he conspired with another law enforcement officer to defraud a state or political subdivision by taking government property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in refusing to direct verdicts of acquittal on Counts 2, 3 and 18 of the indictment.

3. In his third and fourth enumerations, defendant Wade English contends the evidence was insufficient to support his conviction for theft of lost or mislaid property, arguing there was no evidence that the $4,000 he split with Deputy Greene was lost or mislaid property.

“A person commits the offense of theft of lost or mislaid property when he comes into control of property that he knows or learns to have been lost or mislaid and appropriates the property to his own use without first taking reasonable measures to restore the property to the owner.” OCGA § 16-8-6.

Defendant Wade English split $4,000 with Deputy Greene knowing that the money was found on the roadside near a vehicle that had been stopped pursuant to a police investigation. However, defendant Wade English made no attempt to restore the money to its rightful owner and he made no attempt to determine whether the money was used for illegal activities. He simply took the money and did not report it to the Camden County Sheriff. This evidence and testimony that defendant Wade English and Deputy Greene were required to turn in all money found or seized to the Camden County Sheriff was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that defendant Wade English committed the offense of theft of lost or mislaid property. Jackson v. Virginia, 443 U. S. 307, supra.

4. Defendant Wade English contends in his fifth enumeration that “[t]he refusal by the trial court to give [his] requests to charge 19, 20 and 21 in connection with the offense of theft of lost or mislaid property was erroneous.”

There is no citation of authority or specific argument in support of this enumeration. It is simply asserted that: “(a) the State failed to prove that the money found by Mr. Greene was ‘lost or mislaid’; (b) the property had been abandoned by (or stolen from) its owner, since no one had reported the loss or filed a claim for any mislaid money; (c) the State failed to prove that [defendant Wade English] had knowledge or knowledge could be imputed to him that the money was ‘lost or mislaid’, even if it were assumed to have been ‘lost or mislaid’; and (d) assuming that [defendant Wade English] received the money with knowledge that it was ‘lost or mislaid’, that there was no ‘reasonable measures’ [he] could have taken to restore it to the owner without the ability to identify and locate the owner.”

“ ‘It is not necessary to give the precise language of a request to charge when the principles upon which the jury must make its decision are clearly explained. (Cits.)’ Jackson v. State, 249 Ga. 751 (2) (295 SE2d 53) (1982).” Curtis v. State, 182 Ga. App. 388, 389 (6) (355 SE2d 741). In the case sub judice, we have examined defendant Wade English’s requested charges numbered 19, 20 and 21, and we find no principle which would add to or clarify the trial court’s instructions relating to the crime, theft of lost or mislaid property. This enumeration is without merit.

5. In his final enumeration, defendant Wade English contends the trial court erred in denying a motion for mistrial “after a State’s witness' testified the [defendant Wade English] refused to make a statement to [the witness] in violation of [defendant Wade English’s] Fifth Amendment rights.”

Georgia Bureau of Investigation (“GBI”) Agent Joe Gregory testified that he advised defendant Wade English of his rights under Miranda v. Arizona, 384 U. S.,436 (86 SC 1602, 16 LE2d 694), and that the defendant “stated he did not wish to make any statements at that time —” defense counsel objected and moved for a mistrial. The trial court gave the following curative instruction:

“Members of the jury, with respect to the last statement made by the witness as to his, ‘no, that he did not wish to make a statement at that time,’ I instruct you that once a defendant has stated or a person who is in custody by a law enforcement agency has stated that he does not wish to make a statement, then that is his absolute right under the Constitution and under the laws of the State of Georgia and of the United States of America. Under our system of justice, it is up to the State to prove the guilt of the defendant beyond a reasonable doubt, and the defendant or suspect does not have to say anything or prove anything to the police or to a jury, and the fact that he does make such a comment or a statement is not to be construed by you as to the guilt of the defendant or the defendant having anything to hide or say or not to say. That’s an absolute right that all of us have under the laws and the Constitution, so you will not draw any inference harmful or hurtful to the defendant by any alleged statement if in fact you find that it was made.

“ ‘The grant or refusal of motions for mistrial is largely within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused; and, where the trial court immediately upon the happening of an irregularity gives cautionary instructions to the jury, this court will not disturb the trial court’s judgment refusing a motion for mistrial.’ Western &c. R. v. Hart, 95 Ga. App. 810 (1) (99 SE2d 302).” Cox v. State, 109 Ga. App. 797 (1), 798 (137 SE2d 516). In the case sub judice, we cannot say the trial court’s curative instructions were not effective in removing any harm injected by Agent Gregory’s statement that defendant “stated he did not wish to make any statements at that time —” Consequently, the trial court did not abuse its discretion in denying the motion for mistrial.

Case No. A91A1536

6. Defendant Carol English contends the trial court erred in denying her motion to sever.

“ ‘ “(W)here . . . the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying [a] motion for severance.” ’ Johnson v. State, 257 Ga. 731, 733 (2c) (363 SE2d 540) (1988).” Herring v. State, 191 Ga. App. 798 (1), 799 (383 SE2d 178). In the case sub judice, defendant Carol English was charged with theft by receiving money unlawfully taken by her husband, defendant Wade English. Consequently, evidence of the crimes against defendant Wade English would be admissible in a separate trial on the charge against Carol English. Under these circumstances, we cannot say the trial court erred in denying defendant Carol English’s motion for severance.

7. Defendant Carol English contends the evidence was insufficient to support a finding that she committed the offense, theft by receiving stolen property.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . . .” OCGA § 16-8-7 (a). “Unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property but guilt may be inferred from possession in conjunction with other evidence of knowledge. See James v. State, 150 Ga. App. 357 (1) (258 SE2d 40) (1979). ‘ “(G)uilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. (Cits.)” Watts v. State, 157 Ga. App. 214 (276 SE2d 884) (1981).’ Pruiett v. State, [159 Ga. App. 396 (1), 397 (283 SE2d 625)].” Abner v. State, 196 Ga. App. 752 (1), 753 (397 SE2d 36).

In the case sub judice, former Deputy Basil testified that during the spring or late summer of 1989 he went to defendant Wade English’s home and discussed “how much [of the stolen] money [was left]. . . .” Deputy Basil testified that defendant Wade English then turned to his wife, defendant Carol English, and stated, “ T believe we have about ten thousand left, don’t we?’ She acknowledged yes.” This testimony and evidence that defendant Carol English was aware that she and her husband were living thousands of dollars beyond their means was sufficient to authorize the jury’s finding that defendant Carol English was guilty, beyond a reasonable doubt, of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307, supra.

8. Defendant Carol English contends the trial court erred in denying motions for mistrial asserted during her former spouse’s testimony.

“Whether a mistrial is necessary to preserve the defendant’s right to a fair trial is a matter within the discretion of the trial judge. [Cit.]” Tyler v. State, 198 Ga. App. 685, 686 (1), 687 (402 SE2d 780). In the case sub judice, defense counsel twice moved for a mistrial during defendant Carol English’s former husband’s testimony.

(a) Defense counsel first objected and moved for a mistrial when the State’s attorney asked defendant Carol English’s former husband, Thomas A. Weaver, whether defendant Carol English offered Mr. Weaver $3,000 to relinquish his parental rights. The State’s attorney argued that the witness’ response was relevant to “the circumstances surrounding what happened to this money. . . .”

We fail to understand how Mr. Weaver’s response to the above inquiry is relevant to the charge that defendant Carol English committed theft by receiving stolen property. However, we cannot say that admission of this testimony denied defendant Carol English a fair trial. Consequently, the trial court did not abuse its discretion in denying the motion for mistrial.

(b) Defense counsel moved for a mistrial when Mr. Weaver experienced a “mild seizure” while on the witness stand. Defense counsel argued that “[t]he only purpose of having this individual up here is to elicit sympathy for him and to make my clients appear to be of poor reputation and character. I gather that now Mr. Weaver is suffering some sort of seizure, which is going to do nothing but invoke sympathy for him from the jury and direct ill feelings from the jury to my clients on things that are totally irrelevant to this case and are prejudicial. ...” The trial court denied the motion for mistrial.

We find no abuse of discretion in the denial of the motion for mistrial. A witness’ poor physical appearance provides no basis for a mistrial.

(c) Defendant Carol English contends other irrelevant testimony given by Mr. Weaver demanded a mistrial. However, there was no contemporaneous objection and motion for mistrial when this testimony was introduced into evidence. Consequently, these contentions present nothing for appellate review. Lewis v. State, 186 Ga. App. 349, 352 (6) (367 SE2d 123).

9. Defendant Carol English contends the trial court erred in failing to grant a mistrial after “a prosecution witness testified that [her] co-defendant exercised his Fifth Amendment rights.” The enumeration is without merit for the reasons stated in Division 5 of this opinion.

10. Defendant Carol English challenges the following jury instruction: “When a law enforcement officer seizes such money or contraband subject to forfeiture under the state or federal law, and the state, in an indictment for wrongful appropriation of such money, alleges the property is owned by Camden County, it is sufficient under the law of this state to allege ownership as being in Camden County, even though the courts have not condemned said money and transferred ownership thereto to Camden County.”

“ ‘ “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” ’ Williams v. State, 180 Ga. App. 854 (1) (350 SE2d 837).” Taylor v. State, 195 Ga. App. 314 (1), 315 (393 SE2d 690). In the case sub judice, we do not believe the above charge misled the jury. On the contrary, the court’s instruction appears to conform to the evidence adduced at trial and the charge seems to be in substantial compliance with our holding in Division 2 of this opinion.

11. Defendant Carol English contends the trial court erred in failing to suppress evidence seized during the search of her home, arguing that the affidavit supporting the search warrant contained “false testimony.”

GBI Agent Joe Gregory executed an affidavit for a search warrant for the defendants’ home and deposed, in pertinent part, as follows: “Basil also said that [defendant Wade] English had kepe [sic] money in a suitcase under his bed. Basil said further that English’s wife Carol Smith English had indicated in his presence that she knew her husband stole money and that she was spending stolen money.” Defendant Carol English contends Agent Gregory admitted during trial that these sworn statements were false and that this admission was fatal to the search warrant. This contention is not supported by the record.

Decided January 30, 1992

Reconsideration denied February 11, 1992.

M. Nelson Jones, for appellant (case no. A91A1535).

Martha F. Dekle, for appellant (case no. A91A1536).

W. Glenn Thomas, Jr., District Attorney, Christopher A. Frazier, John B. Johnson III, Assistant District Attorneys, for appellee.

At trial, Agent Gregory testified that the statement, “Basil also said that [defendant Wade] English had kepe [sic] money in a suitcase under his bed,” is inaccurate. However, Agent Gregory then explained: “That was my mistake. During the day that I obtained [the search warrant] and wrote this, I had spoken to two other people. Mr. Basil had told me that [defendant Wade English] and his wife kept money in a briefcase under his bed. I had spoken to a friend of his wife who had used the term ‘suitcase under the bed,’ and Tony [Basil] had also told me about money being kept in a — sometimes he would say suitcase, sometimes he would say gym bag, on a shelf in [defendant Wade English’s] closet. This was my mistake when I said a ‘suitcase under the bed.’ ”

“(W)here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. [Franks v. Delaware, 438 U. S. 154, 155-156 (98 SC 2674, 57 LE2d 667)].” Williams v. State, 251 Ga. 749, 790 (8), 796 (312 SE2d 40).

In the case sub judice, defendant Carol English’s allegations wholly fail to raise the issue of intentional or reckless falsehood. However, even disregarding the alleged misrepresentations, Agent Gregory’s affidavit was sufficient to establish probable cause. This cured any possible error. Williams v. State, 251 Ga. 749, 790 (8), 796, supra.

Judgments affirmed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Andrews, Judge,

license: Public Domain

text:
    A91A1606.
    BROOKINS v. THE STATE.
    (415 SE2d 674)
   McMurray, Presiding Judge.

Defendant Brookins, along with three co-defendants, was charged by indictment with the offense of trafficking in cocaine. A jury returned a verdict of guilty as to defendant Brookins and two of the co-defendants while the third co-defendant was acquitted. We are concerned only with the appeal by defendant Brookins of her conviction of trafficking in cocaine. Held:

Defendant enumerates as error the denial of her motion for directed verdict of acquittal made at the close of the State’s evidence. A directed verdict of acquittal is authorized where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. Leonard v. State, 197 Ga. App. 221, 223 (3) (398 SE2d 250). “On appellate review of the denial of a motion made at the close of the State’s case in chief, ‘the reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion.’ Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743) (1975); Hall v. State, 181 Ga. App. 697 (353 SE2d 614) (1987); Causey v. State, 154 Ga. App. 76 (267 SE2d 475) (1980).” Rose v. State, 195 Ga. App. 399, 400 (2) (393 SE2d 459).

Law enforcement officers obtained a search warrant for a house rented by Nannette Powell, one of the co-defendants. Upon entry, the officers found five persons present. Defendant Brookins was exiting the bathroom. A small quantity of marijuana was found in a plastic bag on the sink in the bathroom. In a suitcase in one of the bedrooms, 149.8 grams of cocaine were found concealed in a false-bottomed cookie can. An additional 12.4 grams of cocaine were found in an inside pouch of the suitcase. Scales, a handgun, and a large quantity of cash, including a $20 bill used by an informant to make a drug purchase at the house, were also found during the search.

Defendant Brookins argues that there was no evidence establishing her possession of the cocaine. Nannette Powell testified that shortly before the search two of her cousins, defendant Brookins and co-defendant Mack, arrived for a visit. Defendant Brookins and co-defendant Mack arrived together by automobile and each had a medium-sized suitcase which they carried into the children’s bedroom which had been designated for their use by Nannette Powell.

The evidence is conflicting and confused as to which bedroom was assigned to the visitors and which was retained by Nannette Powell. Construed to uphold the verdict, the evidence shows that Nannette Powell and her family did not own a suitcase and that the suitcase containing the cocaine was found in the bedroom assigned to defendant Brookins and co-defendant Mack. However, there were no clothes in the suitcase containing the cocaine and no other means provided by the evidence to determine the owner of that suitcase. While it may have been defendant Brookins’ suitcase, the evidence is equally consistent with a hypothesis that it belonged to and was within the sole possession of co-defendant Mack. “It long has been the law of this state that where the evidence tends equally to sustain two inconsistent propositions, neither can be said to have been established by legitimate proof and certainly not through the guise of circumstantial evidence.” In re B. J. S. & R. S., 174 Ga. App. 515, 517 (330 SE2d 186). Mere presence, association or suspicion, without any evidence to show further participation in the commission of the crime is insufficient to authorize a conviction. Mattox v. State, 196 Ga. App. 64, 66 (3) (395 SE2d 288). There was no basis upon which a rational trier of fact could determine beyond a reasonable doubt that defendant Brookins had possession or even any knowledge whatsoever of the cocaine. The evidence does not authorize the conviction of defendant Brookins of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216).

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., and Cooper, J., concur. Pope, Beasley, Andrews, JJ., and Judge Arnold Shulman dissent.

Andrews, Judge,

dissenting.

I respectfully dissent because I believe the evidence was sufficient to convict Brookins of trafficking in cocaine.

Construed to uphold the verdict, Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985), the evidence at trial showed that Brookins and Mack, cousins of Nannette Powell, who was renting the residence searched, had visited Powell in May 1990 and came again on Friday, September 29, to stay with her for several days. There were two bedrooms in the house, described by the officers as the west/ left and east/right bedrooms. Powell, who testified, stated that Brook-ins and Mack stayed in the children’s bedroom, which was the west/ left bedroom and contained a medium-sized bed and one small twin bed. She and occasionally her boyfriend stayed in the eást/right bedroom. Neither she nor her children, who were young, owned any suitcases.

On Saturday morning, September 30, Mack and Brookins brought in their luggage. Brookins had the larger suitcase and Mack had a smaller one and a hanging bag. The luggage was placed by them in the children’s room.

Between September 30 and October 2, a confidential informant contacted police and advised that drugs were being sold from the residence. Agents went with the informant who was searched, given a marked $20 bill, and observed going into the house where he remained two or three minutes before coming out and being searched again by the officers. The twenty was not on him but a rock of crack cocaine was. Based on that information, the officers obtained a search warrant on October 2.

Decided January 31, 1992

Reconsideration denied February 11, 1992.

Russell T. Duraski, for appellant.

Upon executing the warrant on Tuesday, October 2, the officers . observed Nannette Powell in the kitchen area, Brookins coming out of the bathroom, Tony Powell, Nannette’s brother, asleep on the living room floor, and Mack. Officer Williams searched the children’s bedroom, also described by the officer as the west bedroom, and found under the bed a suitcase which contained a cookie can with a false bottom. The bottom contained 149.8 grams of cocaine in “cookie” form. Also found in a side pouch of the suitcase were over 12 grams of cocaine.

A small quantity of marijuana was found on the sink in the bathroom. In the east bedroom were found a .38 pistol, over $1,800 in cash rolled up, including the marked twenty, and a set of scales of the type used for drug transactions. Powell said the money belonged to her boyfriend who was not present during the raid and was not charged.

The court fully instructed the jury on actual and constructive possesion, sole and joint possession, and parties to a crime. See Sanders v. State, 199 Ga. App. 671, 672 (2) 405 SE2d 727) (1991).

Considering all of this evidence as we may do in ruling on the denial of a motion for directed verdict at the close of the State’s case, Rose v. State, 195 Ga. App. 399, 400 (393 SE2d 459) (1990), the evidence did not mandate a directed verdict under OCGA § 17-9-1. While there may be some inconsistencies among the agents’ testimony regarding which bedroom was which, such conflicts in the evidence would alone not justify grant of such a motion. Resolution of those conflicts was solely for the jury. OCGA § 24-9-80. It is not the province of this court to reweigh that evidence, only to determine its legal sufficiency. Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991). Here, I find the evidence to be legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Sanders, supra; Holcomb, supra.

I am authorized to state that Judge Pope, Judge Beasley end Judge Arnold Shulman join in this dissent.

Douglas C. Pullen, District Attorney, Edward F. Berry, Assistant District Attorney, for appellee.

       Another individual, Hiram, was also present but was allowed to leave by the officers.


author: Birdsong, Presiding Judge.

text:
    A91A2132.
    BANNISTER v. THE STATE.
    (415 SE2d 912)
   Birdsong, Presiding Judge.

Charles Bannister appeals his judgment of conviction of sale of cocaine and sentence. He enumerates three errors. Held:

1. Appellant asserts the trial court erred by not holding an in camera inspection to determine the materiality of the confidential informant and by failing to reveal the identification of the informant. Pretermitting the question of in camera inspection is the question of whether the operative facts of this case show without the benefit of such inspection that the identification of the informant need not be revealed.

(a) Appellant timely filed a motion for in camera examination to determine materiality of the confidential informant and disclosure of the confidential informant. This motion inter alia asserts that “defendant believes the informant(s) may have seen or possess exculpatory information”; “defendant believes the testimony of the inform-antes) is relevant and would aid in defendant’s defense”; and, “defendant further relies on United States v. Roviaro, 353 U. S. 53 [77 SC 623, 1 LE2d 639] and Moore v. State, 187 Ga. App. 387 (370 SE2d 511).” Appellant also filed a timely motion to produce in which he moved inter alia to obtain access to or copies of “any and all evidence . . . which would tend either to negate [his] alleged guilt . . . as to the offenses charged, or which would tend to reduce the punishment. ...” The substance or function of these motions, which is controlling over nomenclature (State v. Allen, 192 Ga. App. 730, 734 (386 SE2d 394)), is to incorporate a Brady motion into the motion for in camera inspection and confidential informant identification disclosure. In Thornton v. State, 238 Ga. 160 (231 SE2d 729), cert. den. 434 U. S. 1073, “the disclosure was being sought pursuant to a Brady motion. In disposing of the issue, the Supreme Court first distinguished between a ‘decoy’ or ‘informer-participant’ (a person used to obtain evidence), and ‘informer-witness’ (a person used to establish facts upon which to base a prosecution), and a ‘mere tipster’ (one who provides information about criminal activity). [Cit.] After noting that both Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) and Roviaro had a common basis of ‘fundamental fairness to the accused,’ the court concluded that they must be read together where the question is disclosure of the identity of an informer-witness or informer-participant ‘if material to the defense on the issue of guilt or punishment.’ [Cit.] If such an informer’s identity is required to be disclosed under Brady, the trial court should then apply the Roviaro balancing test. [Cit.]” Moore, supra at 389, citing extensively Thornton, supra. The Roviaro balancing test as restated for clarity in Thornton, supra at 164 provides “that the due process concept of fundamental fairness require [s] that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself.” The court may consider any factor operative in the particular case before it which is relevant to the application of this balancing test, and all relevant evidence contained in any pretrial, trial and post-trial proceedings. Walton v. State, 194 Ga. App. 490, 491 (1) (390 SE2d 896) (can consider factor that a witness cannot reasonably be expected to appear in court and incriminate himself).

(b) In this case, the trial court initially ordered the State to have the confidential informant present for an in camera proceedings to determine the materiality of his testimony; however, the witness did not appear as scheduled. The trial court promptly conducted a full pretrial hearing during which law enforcement officials testified that they had made various attempts to contact the confidential informant but his whereabouts was unknown, and that he was believed to have left the area as a warrant for probation violation had been issued and was outstanding. The officers also testified that if the outstanding warrant problem could be solved the highly reliable informant was expected to continue to work for them so that it was necessary in their view to continue to protect his identity. The trial court denied appellant’s motion for a continuance to attempt to locate the informant and the case proceeded to trial. At trial the undercover officer testified that appellant sold him the cocaine. The officer further testified to his prior photographic line-up identification of appellant and made an in-court identification as well. Appellant asserts that the informant was the sole person who could support his defense of misidentification. Appellant argues that this defense was reasonably raised by attacking the validity of the undercover officer’s identification of appellant as the person who had sold the cocaine during cross-examination of State’s witnesses. Appellant did not testify in his own behalf and called no defense witnesses. After trial, a hearing was held on appellant’s motion for new trial. At this hearing the trial court expressed its concern as to the sufficiency of the procedure used and stated it was prepared to hold the record open until he found out the identity of the confidential informant, “where he was and if he’s in town, what happened and why he wasn’t here.” The State indicated it could provide this information if the court will hold the record open. The record does not reveal, as observed by the trial court, that the State engaged in any improper conduct regarding the appearance of the informant. (Nor do we find that the record reflects any improper conduct on the part of the police; rather the record uncontrovertedly reflects that notification of the informant of the outstanding warrant occurred one day before the detective was requested to produce the informant for the hearing.) Thereafter, the trial court modified its position at the motion for new trial hearing by stating it would just like the record to reflect why the informant decided to leave when he did “if not necessarily the name of the C. I.” The record was not further supplemented.

As the record reflects that the confidential informant failed to appear for an in camera hearing through no fault of either the State or appellant, we elect in the interest of fundamental fairness to accept for purposes of this appeal that the testimony of the informant would have been material under Brady thereby requiring application of the Roviaro balancing test so as to weigh, using the above-discussed test, “the materiality of the informer’s identity to the defense against the state’s privilege not to disclose his name under Roviaro.” (Emphasis supplied.) Thornton, supra at 165 (2). Further, by conceding for purposes of this appeal that the informant’s testimony would meet the Brady materiality test, the issue of denial of an in camera hearing to establish this materiality issue is rendered moot.

We recognize that “[i]n most instances, where the information is material under Brady, it will also be required under Roviaro. But this may not always be so and to do otherwise is to abrogate entirely the stale’s privilege whenever a Brady issue is successfully raised by the defendant.” Thornton, supra. Thus, it becomes essential to preserve the distinction between Brady and Roviaro requirements.

“One of the factors important in [applying the Roviaro balancing test] will be the type of informer involved.” Thornton, supra at 165. The confidential informant was neither a “mere tipster” nor a “decoy” who acted to consummate the sale in lieu of the police. Neither, in the attendant circumstances, was he just an “informer-witness,” who was used only to introduce the officer to appellant and who thereafter remained passively present at the crime scene a mere witness to that which occurred. Rather the uncontroverted testimony by the police detective monitoring the radio transmissions of the incident establishes that informant actively participated in the sale to the extent that, at some point in time before the sale, he verbally requested the seller give them a 50, that is a $50 piece of cocaine. Accordingly, the informer was an “informer-participant” within the meaning of Thornton, as by his conduct, albeit slight, he actively assisted the undercover officer in soliciting the sale for purposes of obtaining evidence. Thornton, supra at 163. Thus on a spectrum, the informer’s conduct would fall somewhere between that of an “informer-witness” and that of a true “decoy.”

The factors favoring disclosure of identity include the concession that the evidence would have met the Brady materiality test; the informant technically qualifies as an “informer-participant” rather than a “mere tipster” or an “informer-witness”; the informer is not currently assisting the police by providing timely drug intelligence by virtue of his absence; besides the undercover agent and the seller, the informer was the only other witness who actually witnessed the physical transfer of the cocaine and money in consummation of the drug sale; the informant was physically present during and witnessed the entire incident; appellant cross-examined the State’s witnesses in an attempt to destroy their credibility regarding appellant’s identification as the seller; and the trial judge charged the court on identification. The factors favoring nondisclosure include that the testimony of the undercover agent was corroborated in many material respects, and in no material way was impeached by the pretrial hearing or trial testimony of the officer who monitored the radio transmissions of the sale. The monitoring agent overheard the informant introduce the seller to the undercover agent as “Charles.” Appellant’s name is “Charles Bannister.” Although the monitoring agent did not hear anything after the seller was asked if he had a “20,” he subsequently provided a description of the seller to the monitoring officer which matched the appearance of appellant. The monitoring officer had seen appellant numerous times before, including at the location where the sale occurred. Thus, the totality of the monitoring officer’s testimony also corroborated, albeit circumstantially, the testimony of the undercover agent that it was appellant who had sold the cocaine for $20. As a result, it is in essence only as to the circumstances surrounding the actual physical transfer of money and drugs that the informer would have been the sole witness in a position to amplify on or refute the testimony of the undercover officer. Appellant elected voluntarily not to testify at trial and called no witnesses in his behalf. Accordingly, the testimony of the informer could not amplify or refute the testimony of the accused or of any defense witness — there being none. Therefore, unlike the situation in Moore, supra, the informer is not “ ‘the only witness in a position to amplify or contradict the testimony’ of the appellant and the police officer.” (Emphasis supplied.) Moore, supra at 391. In fact the informer cannot in this instance amplify or contradict the testimony of the appellant at all, and the monitoring officer in fact “amplified” upon, through direct and circumstantial testimony, the testimony of the undercover officer, except as to those limited circumstances above discussed. Although at this point the interests of the State are very high, nevertheless if these were the only relevant factors operative in this case, we would be compelled by considerations of fundamental fairness to conclude that the results of the balancing test slightly favor disclosure of the identity of this “informer-participant.” However, there exists a pivotal factor in this case which causes the scales to weigh in final analysis in favor of nondisclosure. Although the concerns of the trial judge were well-founded that the evidence adduced at the hearing might not be thorough enough standing alone to support a genuine finding of fact that the informant was beyond the jurisdiction of the court, this issue must in this instance be resolved against appellant. It is well-established that a party to a trial may make admissions in judicio in their pleadings, motions, and briefs. Brownlow v. City of Calhoun, 198 Ga. App. 710, 711 (402 SE2d 788); Time Ins. Co. v. Lamar, 195 Ga. App. 452 (2) (393 SE2d 734); Summerlot v. Crain-Daly Volkswagen, 138 Ga. App. 839 (227 SE2d 463). When an admission is so made “it is a solemn admission in judicio. As such, it is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert the admission, even if it is untrue.” Green, Ga. Law of Evid. (3rd ed.), Admissions, § 233. The record establishes that in his motion for Continuance, appellant made the following factual admissions in judicio: “The in camera examination was not able to be conducted due to the Confidential Informant absencing himself from the jurisdiction of the Court. At this time no one is able to locate the Confidential Informant.” (Emphasis supplied.) A reasonable inference which can be drawn either from these admissions or independently from the testimony of the police at the pretrial hearing and at trial is that no one knows when or if the confidential informant will place himself within the jurisdiction of the court or make his whereabouts known. In fact, at trial in response to a question by appellant’s counsel, the monitoring officer testified affirmatively that the confidential informant right now is on the lam; he is on the run. When the factor of the informant’s absence from the jurisdiction and unknown whereabouts is considered in addition to and with all other relevant factors and evidence, the result of the Roviaro balancing test in this instance is to favor the government’s privilege of nondisclosure. Accordingly, we find that this enumeration of error is without merit.

Sowers v. State, 194 Ga. App. 205 (390 SE2d 110); Jones v. State, 192 Ga. App. 186 (384 SE2d 273); and Moore, supra, relied upon by appellant, are factually distinguishable from this case.

2. The decision whether to grant a mistrial lies within the sound discretion of the trial court and will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s rights to a fair trial. King v. State, 261 Ga. 534, 535 (2) (407 SE2d 733). We are satisfied from the posture of the record that the trial court did not abuse its discretion in refusing to grant defendant’s motion for mistrial where the bailiff threw a napkin at a person allegedly a member of the appellant’s family and yelled at her when she did not rise rapidly enough at the bailiff’s call. The record does not establish conclusively that the jury in fact saw or heard the incident, or that if they did they were aware that the lady was a member of appellant’s family. Appellant counsel’s professed belief that this particular incident was seen by the jury is insufficient to establish an abuse of discretion. Assuming arguendo the incident was seen and the jury was aware of the lady’s relationship to the accused this would not mandate a mistrial per se. Moreover, although no cautionary instruction was given none was timely requested. This enumeration is without merit.

3. Appellant asserts the trial court erred in denying its motion for directed verdict as the evidence was insufficient to authorize a verdict of guilty. The proper test when the sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436); Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, supra.

Judgment affirmed.

Pope and Cooper, JJ., concur.

On Motion for Reconsideration.

Appellant asserts that this court reached its decision to affirm based on two separate distinct reasons. However, the opinion on its face reflects the balancing test applied on appellate review and the numerous factors, weighing on both sides of the issue, that were considered by this court.

As stated in the opinion and as restated here for emphasis, during appellate review, this court may consider any factor in the case that is relevant to the application of the balancing test whether found in the pretrial, trial or post-trial proceedings of the case. Walton v. State, 194 Ga. App. 490, 491 (390 SE2d 896). And, we will not reverse the correct ruling of the trial court regardless of the reason given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268); Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

Appellant ingenuously argues that, had the informant’s name been released, he could have obtained informant’s criminal record pursuant to OCGA § 35-3-34, and used that information in cross-examination of State’s witnesses. However, the informant was not a State’s witness, and the appellant has not made any effort to show the relevance of informant’s criminal record (even assuming the existence of prior felony, drug-related, convictions of informant) during the cross-examination of the actual witnesses called by the State. It is not readily apparent how the prior criminal record of an informant would be relevant in the cross-examination of the State’s witnesses; for example, the record does not readily disclose that the question of the prior reliability of the informant was a contested issue in this case. Appellant has failed not only to demonstrate error, but also to demonstrate how he has been harmed merely by not having access to any criminal iecord of the informant. See Shorter v. State, 193 Ga. App. 217, 218 (3) (387 SE2d 427); cf. Dixon v. State, 144 Ga. App. 27, 28 (1) (240 SE2d 302).

Decided January 29, 1992

Reconsideration denied February 11, 1992

Sonya J. Calhoun, for appellant.

Edward D. Lukemire, District Attorney, P. Dee Brophy, Assistant District Attorney, for appellee.

Appellant asserts that had the informant’s identity been revealed there is a probability that appellant or his counsel would have been able to locate him and “use his testimony to impeach the testimony of the undercover agent.” (Emphasis supplied.) However, in addition to the speculativeness of appellant’s assertion regarding his ability to locate the informant, where the evidence sought from the unidentified source is required by the defendant on the mere possibility that the police might be impeached it is not enough to demand disclosure of the informant’s identity. Connally v. State, 237 Ga. 203, 208 (227 SE2d 352); Moore v. State, 187 Ga. App. 387 (370 SE2d 511); Gilmore v. State, 168 Ga. App. 76, 77 (308 SE2d 232).

Reapplying the balancing test, we adhere to our opinion.

Motion for reconsideration denied.


author: Pope, Judge.

text:
    A91A2256.
    In the Interest of M. A. L., a child.
    (415 SE2d 649)
   Pope, Judge.

Appellant, the mother of M. A. L., appeals the order of the Juvenile Court of Clayton County terminating her parental rights. Held: At the outset we must determine our jurisdiction to entertain this appeal, although this issue has not been raised by either party.

The record shows the trial court’s order terminating appellant’s parental rights was signed by the juvenile court judge on November 15, 1990, but that the order was not filed until January 28, 1991. Appellant filed a motion for new trial on January 9, 1991. It appears, therefore, that appellant’s motion for new trial was prematurely filed. However, and pretermitting the issue of the timeliness of appellant’s motion for new trial, we reiterate that a motion for new trial may not be used to attack an order of the juvenile court, inasmuch as a juvenile court has no authority to consider or grant new trials. See OCGA § 5-5-1; In the Interest of J. O., 191 Ga. App. 521 (1) (382 SE2d 214) (1989). Thus a motion for new trial, even when timely filed, will not “toll” the time for filing an appeal in a juvenile court case. See In the Interest of J. O., at (1).

A juvenile court order can be challenged, however, by the filing of a motion to modify or vacate pursuant to OCGA § 15-11-42. Id.; In re P. S. C., 143 Ga. App. 887 (240 SE2d 165) (1977). An order on such a motion filed within the statutory appeal period is appealable to this court, even if the order is rendered more than 30 days from the original order sought to be vacated or modified. In the Interest of J. O., at 522 (1).

In determining whether a motion filed within the 30-day statutory appeal period will be treated as a motion to vacate or modify pursuant to OCGA § 15-11-42, this court will look to the substance of the motion, not its nomenclature. Id. Here, the only motion filed within the 30-day statutory appeal period did nothing more than challenge the sufficiency of the evidence on which the juvenile court’s order was based and state that the juvenile court committed error requiring a new trial. The motion made no reference to any of the factors which would warrant the vacation or modification of the court’s order under OCGA § 15-11-42. Consequently, the motion in this case cannot be treated as a motion to modify or vacate pursuant to that section. Cf. id.

Although appellant did file a motion under OCGA § 15-11-42 several months later, this motion was well outside the statutory appeal period, which was not extended by the filing of the motion for new trial since, as stated above, such motions are without effect in a juvenile court case. Consequently the only appealable order in this case was the original order terminating appellant’s parental rights, filed on January 28, 1991. Appellant filed her notice of appeal on July 18, 1991. It follows that the notice of appeal was not timely filed in this case and we are without jurisdiction to entertain this appeal, which must, therefore, be dismissed.

Appeal dismissed.

Birdsong, P. J., and Cooper, J., concur.

Decided January 16, 1992

Reconsideration denied February 11, 1992

Randall L. Keen, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Foster & Foster, Michael D. Anderson, Lillian L. Neal, for appellee.


author: Sognier, Chief Judge.

text:
    A91A1635.
    HARTLEY v. GAGO et al.
    (415 SE2d 510)
   Sognier, Chief Judge.

Dr. Selwyn Hartley brought suit against a stockbroker, Lucian Gago; a brokerage firm, Hereth, Orr & Jones (HOJ); Energy Development Corporation (EDC); Bill Taylor, an EDC employee, and two other EDC employees or principals, alleging fraud and deceit and a conspiracy to defraud in connection with an investment Hartley made in EDC that was recommended to him by Gago while Gago was employed by HOJ. Appellant sought the return of his investment. At trial, at the close of Hartley’s evidence Gago and Taylor moved for a directed verdict and the trial court took the motion under advisement. After a jury rendered a verdict in favor of Hartley against all defendants in varying amounts, Gago and Taylor moved for judgment n.o.v. The trial court subsequently granted Gago and Taylor’s motions for directed verdict and j.n.o.v. and judgment was entered against the other defendants. Hartley appeals.

The evidence adduced at trial showed that appellant, an experienced investor, had been investing for approximately ten years when he became acquainted with Gago, who was an HOJ broker at the time, and in fall 1982, appellant asked Gago to research investments with greater potential tax writeoffs. Gago informed appellant of an investment that involved purchasing from EDC energy saving equipment qualifying for tax benefits and placing it in various locations, such as motels, under lease agreements. Appellant decided to invest after discussing the proposal in more detail with his attorney, Gago, and Taylor, who was an authorized representative of EDC, and in late December 1982 tendered his check.

Appellant testified that although he made no inquiries regarding whether the equipment had been purchased or installed, in early 1983 he became concerned because he had received no bill of sale or insurance certificate, and he contacted Gago to see whether the equipment had actually been installed. Appellant further testified that over the next five months Gago, although he was no longer employed by HOJ, continued to act as an intermediary between appellant and EDC regarding the investment, making inquiries and passing on information. Appellant testified that he had suspicions in 1983 about the investment and became convinced in 1984 that it was fraudulent. Nevertheless, he filed tax returns seeking the full tax benefit over the life of the investment, and these benefits were allowed by the Internal Revenue Service after audit.

1. In two enumerations, appellant contends the trial court erred by granting appellees’ motion for a directed verdict and j.n.o.v. Although the trial court granted appellees’ motions on three grounds we need address only the first, that appellant’s claim was barred by the statute of limitation, as it is dispositive.

OCGA § 9-3-31 provides that actions for injuries to personalty must be brought within four years after the right of action accrues. This statute applies to actions based on fraud. Shapiro v. Southern Can Co., 185 Ga. App. 677-678 (365 SE2d 518) (1988). The issue in the case sub judice, however, is when the statute of limitation began running.

Where actual fraud is the gravamen of an action, “the statute of limitations is tolled until the fraud is discovered or by reasonable diligence should have been discovered.” Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980). Although appellant, citing Brown v. Brown, 209 Ga. 620 (75 SE2d 13) (1953), maintains that because there are fact questions regarding fraud and the excuses for delay in discovering it, the question was properly for the jury, we note that in cases involving undisputed facts, this question becomes one of law to be decided by the court. Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (2) (327 SE2d 736) (1985).

It is uncontroverted that this action, begun in August 1987, was filed more than four years after appellant made the investment. Appellant admitted that he began to suspect fraud in January or February of 1983 when he did not receive bills of sale for the equipment, and further acknowledged that he made no inquiries of EDC or the motels proposed as installation sites but communicated only with Gago despite the fact that he had contracted with EDC. Our review of the evidence in this case reveals that appellant and appellees agree as to the sequence of events regarding the transaction, and we conclude that the facts were not in dispute.

Since we agree with the trial court’s finding that the facts necessary to determine when the statute of limitation began running were not in dispute, it follows that only the legal conclusions to be drawn from those facts remained. Such determinations are properly for the court and not the jury. Curlee, supra. “ ‘[I]n the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. [Cits.]’ [Cit.] There was no confidential relationship between [appellant] and [appellees] which would preclude the exercise of ordinary diligence on the part of [appellant].” United Fed. Savings &c. Assn. v. Eubank, 180 Ga. App. 402, 403 (349 SE2d 268) (1986). We find that the undisputed evidence supports the trial court’s determination that appellant either knew or with the exercise of ordinary diligence should have known of any fraud in early 1983.

Decided February 11, 1992.

McNeese & Associates, Lynn S. McNeese, for appellant.

Dailey & Groover, Lewis M. Groover, Jr., Bruce S. Harvey, for appellees.

Robert E. Carroll, pro se.

Marjori E. Carroll, pro se.

“If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). Based on the undisputed facts and the reasonable inferences therefrom, the trial court concluded that more than four years elapsed between the time appellant discovered or should have discovered the fraud and the time appellant filed this action. As appellant’s action was barred by the statute of limitation, the trial court correctly directed a verdict in favor of appellees. See generally Henderson v. Martin Burks Chevrolet, 183 Ga. App. 868, 870 (2) (360 SE2d 430) (1987).

2. The remaining bases for the trial court’s ruling granting j.n.o.v. as well as appellant’s remaining enumeration of error are rendered moot by our holding in Division 1.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Although at trial Taylor denied signing a letter to appellant dated March 1983 stating that the equipment had been installed by the end of December 1982 and appellant’s return on the investment would be forthcoming, the March letter is not material given appellant’s suspicion of fraud in January.


text:
    A91A1775.
    TUFF v. THE STATE.
    (415 SE2d 702)
   Birdsong, Presiding Judge.

John Junior Tuff appeals his conviction for violating the Georgia Controlled Substances Act by selling crack cocaine to an undercover police officer. Tuff contends the trial court erred by refusing to disclose the identity of a confidential informant. Held:

Decided February 11, 1992.

W. Dennis Mullís, for appellant.

James L. Wiggins, District Attorney, Cheryl L. Alford, Assistant District Attorney, for appellee.

After the undercover police officer testified that a confidential informant called Tuff to the car in which the officer, another undercover officer, and a confidential informant were riding and arranged the purchase of the cocaine from Tuff, Tuff’s counsel made the following motion: “We would like to be able to subpoena the confidential informant so as to better illustrate the truth of the matter. The State’s case rests upon the testimony of this officer and one other. They tell us there was another party present who apparently can testify as to what happened and who was involved. My client tells me that he . . . has no knowledge of these events, so that puts three people that they are saying had knowledge of these events, the two cops and the confidential informant. And we would like to be able to cross-examine that individual to get to the truth of the matter.” The trial court ruled that “under the circumstances and evidence presented before me at this time the law does not require the State to divulge the identity of the confidential informant. For that reason your motion is denied.” No further motion to disclose the identity of the confidential informant was made.

There was no error. Tuff’s motion was a general request for the identity of the informant without specifying the possible significance or need for the information which would be developed from the informant’s testimony. In particular, the motion did not assert that the informant was the sole and essential witness available to amplify or contradict the testimony of the government’s witnesses and the appellant. Thus, it appears the real basis of Tuff’s motion was the hope that through cross-examination of the witness some information might be developed which might impeach the testimony of the undercover officers. The mere possibility of impeachment, however, is not a sufficient basis to require the disclosure of a confidential informant. Connally v. State, 237 Ga. 203, 208 (227 SE2d 352); Moore v. State, 187 Ga. App. 387, 390 (370 SE2d 511). Moreover, we note the trial court’s denial of Tuff’s motion was based upon the circumstances and evidence then before the court, and that Tuff neither presented additional evidence bearing on this issue nor renewed his motion. Accordingly, there was no error.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1828, A91A1829.
    THE STATE v. FLEMING; and vice versa.
    (415 SE2d 513)
   Sognier, Chief Judge.

Linda Fleming was charged with driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), driving a vehicle with an unlawful blood alcohol level, OCGA § 40-6-391 (a) (4), and “the offense of 40-06[-]272 striking parked veh H&R Count 1 and did while operating a motor vehicle, fail to notify owner or person in charge upon striking an unattended vehicle.” The State and Fleming both appeal from the trial court’s order on Fleming’s motion to suppress.

At the hearing on the motion to suppress, evidence was adduced that Fleming backed her automobile into a parked truck owned by Robert Moore. The collision occurred in a trailer park parking lot. Although the State introduced the testimony of two witnesses who saw either the collision or its aftermath, it is uncontroverted neither witness spoke with the investigating officer. Moore testified that he heard a commotion and looked outside his trailer window to see a car, driven by a person he identified as Fleming, under the front end of his truck.. He went outside, spoke with Fleming, and smelled alcohol on her breath. He stated that Fleming accused him of backing into her car, that she then moved her car to another parking place, and that she subsequently left the scene. Moore stated he wrote down the car tag number and gave that information and a description of Fleming to the investigating officer. Moore testified that as a result of the accident his truck’s fog light was bent and the front bumper elevated.

Officer M. C. Cox testified that when he arrived at the trailer park, only Moore’s truck was at the scene. He inspected Moore’s truck and found minimal damage. Cox stated witnesses gave him the tag number, a description of Fleming and her car, and that witnesses, including Fleming’s ex-husband, told him where Fleming lived. He was also told that Fleming smelled like she had been drinking and was acting “like she was drunk.”

Cox testified he went to Fleming’s home intending to arrest her for leaving the scene of the accident and to determine if she had been driving under the influence of alcohol. When Fleming answered the door, Cox asked her to step outside. However, he testified that he did not arrest her then but instead talked with her for five minutes with the purpose of “getting an idea if she was at the scene, looking at her to see if she was at all intoxicated, trying to determine her actions at that time.” He testified she responded to his questions by stating she had been at the trailer park but left when she concluded the police were not going to show up. Cox recounted that he saw scratches on her car but no sign of serious damage. He also stated that Fleming told him she had had “one stiff drink” when she returned home because she was nervous. Cox testified that because Fleming had a strong odor of alcohol about her breath, “staggered somewhat” out in the yard, and did not “[snap] with the questions” he asked her, he concluded she was intoxicated, and he arrested her and took her into custody. Although Cox testified he “believed” he read the implied consent rights to Fleming at her home, he admitted he could not swear to it and that the earliest point he could swear that Fleming was informed of those rights was at the jail after her arrest.

Fleming moved to suppress “all evidence and observations of Defendant subsequent to her arrest” and the results of the intoximeter test to which she submitted at the jail. The trial court granted her motion insofar as the intoximeter test results and her post-arrest statements were concerned, but declined Fleming’s request to include in the suppression observations of Fleming made by the police after the arrest.

1. The State contends in Case No. A91A1828 that the trial court erred by granting the motion to suppress on the basis that Fleming was arrested at her home without a warrant when a warrant was required. We agree and reverse.

It is uncontroverted that when Cox left the accident scene and went to Fleming’s home, he intended to arrest Fleming. However, contrary to Fleming’s arguments, the fact that Cox failed to obtain a warrant despite having the intent to arrest her does not control the issue of the validity of the subsequent custodial arrest, given that Cox, who had reason to believe Fleming had been driving under the influence of alcohol and that her intoxication resulted in an accident with Moore’s truck, was authorized under OCGA § 17-4-23 (a) to “arrest a person accused of violating any law or ordinance governing the operation ... of motor vehicles by the issuance of a citation” (emphasis supplied) in situations “where the offense results in an accident” even though the offense did not occur in the presence of a law enforcement officer. Nothing in Cox’s testimony indicates whether at the time he left the accident scene he intended to arrest Fleming solely by means of a citation or whether he intended to effect a custodial arrest. Resolution of that question is immaterial, however, since we must hold pursuant to this court’s holding in Hall v. State, 200 Ga. App. 585, 586-587 (1) (409 SE2d 221) (1991), that Cox had probable cause to effect a custodial arrest of Fleming for driving under the influence of alcohol based on Cox’s own observations of appellant at her home and his investigation at the accident scene. Given Cox’s uncontroverted testimony that obtaining a warrant to arrest Fleming for driving under the influence would have required at least two hours, during which time physical evidence of Fleming’s alleged intoxication would dissipate, the warrantless arrest was proper under OCGA § 17-4-20 (a), which provides in pertinent part that “[a]n arrest for a crime may be made by a law enforcement officer . . . without a warrant if . . . there is likely to be failure of justice for want of a judicial officer to issue a warrant.”

Therefore, the trial court erred by granting Fleming’s motion to suppress regarding her post-arrest statements on the basis that Cox’s warrantless arrest was improper.

2. The State contends the trial court erred by granting Fleming’s motion to suppress the results of the intoximeter test on the ground that the implied consent warnings were not given to her contemporaneously with her arrest. “On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them.” (Punctuation and citations omitted.) Mann v. State, 196 Ga. App. 730, 731 (3) (397 SE2d 17) (1990).

OCGA § 40-6-392 (a) (4) mandates that an arrestee be advised of her implied consent rights at the time of arrest. “Under ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.” Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). There is no indication that Fleming was too intoxicated to understand the warnings, compare Rogers v. State, 163 Ga. App. 641, 643 (295 SE2d 140) (1982), or too emotionally distraught, compare Hadden v. State, 180 Ga. App. 496-497 (1) (349 SE2d 770) (1986), or that Cox was delayed by the exigencies of his duties, compare Mason v. State, 177 Ga. App. 184, 186 (2) (338 SE2d 706) (1985); Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986), or that Cox was unaware that Fleming would be charged with violating OCGA § 40-6-391. See generally Whittington v. State, 184 Ga. App. 282, 284 (361 SE2d 211) (1987). Rather, the evidence at the hearing authorized the trial court to conclude that no unusual circumstance existed to excuse Cox’s failure to inform Fleming of her implied consent rights at the time of her arrest. Accordingly, we affirm the trial court’s ruling in this regard.

3. Our holding in Division 1 is dispositive of the issue in Fleming’s appeal in Case No. A91A1829, and therefore we affirm the trial court’s denial of Fleming’s motion to suppress the evidence of the police officers’ own observations of Fleming’s post-arrest behavior.

Judgment affirmed in Case No. A91A1829. Judgment affirmed in part and reversed in part in Case No. A91A1828.

McMurray, P. J., and Andrews, J., concur.

Decided February 11, 1992.

Keith C. Martin, Solicitor, Kimberly C. Carr, Assistant Solicitor, for appellant.

Alfred L. King, Jr., for appellee.

       OCGA § 40-6-272 sets forth the duty of a motor vehicle driver who strikes a fixture legally upon or adjacent to a highway.


text:
    A91A1996, A91A1997.
    GEORGIA PORTS AUTHORITY v. SERVAC INTERNATIONAL; and vice versa.
    (415 SE2d 516)
   Sognier, Chief Judge.

Servac International brought suit against Georgia Ports Authority to recover damages arising out of an ammonia leak that contaminated portions of its cargo (frozen beef livers and chicken legs), which was stored in a GPA warehouse awaiting shipment to a purchaser in Egypt. After the trial court entered summary judgment in favor of Servac on GPA’s liability for the damage, an issue not contested on appeal, a bench trial was had on the issue of the amount of damages. Both parties appeal from the trial court’s judgment.

1. In Case No. A91A1996, GPA argues that the report of a survey conducted after the loss constituted a binding agreement between the parties that the invoice price of the damaged goods, as determined by that survey, reflected the total amount of damages to which Servac was legally entitled. The survey report, which was jointly conducted with GPA and representatives of Servac’s interest in the goods, provided that it was issued “without prejudice” and was undertaken “for the purpose of ascertaining the extent of damage alleged to have been sustained due to an ammonia leak in the cold storage warehouse.” The report set forth, inter alia, the results of the surveyor’s investigation into the cause of the damage; how the surveyor selected representative cartons for examination; the outcome of the examination; the invoice prices of the percentage of cartons determined to be damaged; and the salvage bids received and accepted for the damaged goods.

“The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3. “ ‘The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.’ [Cits.]” Goff v. Cooper, 110 Ga. App. 339, 343 (138 SE2d 449) (1964). “The language of the contract should be construed in its entirety, and should receive a reasonable construction, and not be extended beyond what is fairly within its terms. Where the language is unambiguous, and but one reasonable construction of the contract is possible, the court must expound it as made.” (Punctuation and citations omitted.) Cutledge v. Aetna Life Ins. Co., 53 Ga. App. 473, 475 (186 SE 208) (1936). The survey report contained no language expressly stating or implicitly indicating that it was the parties’ intent in conducting the survey that the survey figures would conclusively determine all damages to which Servac was legally entitled. Indeed, a contrary intent is indicated by the statement in the survey report that its figures did not reflect certain handling and storage charges incurred by the consignee. While it does appear that the parties to this appeal considered the amounts within the ambit of the survey report, i.e., invoice and salvage prices, to be determinative of those matters, we do not agree with GPA that the survey report is subject to interpretation as determinative of matters not within its ambit, such as whether a definite contract existed between Servac and its Egyptian customer so as to enable Servac to recover its lost profits as an item of damages.

Therefore, because the intention of the parties, as determined from the language of the entire contract, did not reflect that the survey report constituted a binding determination of all of Servac’s damages and the admiralty cases cited by GPA do not support its contention that survey reports in the maritime world are construed differently from other contracts, this argument presents no basis for reversing the trial court’s judgment.

2. GPA next argues that as a matter of law Servac, as bailor of the goods, was not entitled to recover its lost profits from GPA as a result of GPA’s breach of its duty to Servac. See OCGA §§ 11-7-204 (1), 44-12-43. This argument is based on GPA’s contention that the trial court included lost profits as part of the fair market value of the goods by looking to the port of destination, i.e., Egypt, where the sale of the goods to the purchaser would have been completed, rather than the value of the goods in Savannah, where at the time in issue GPA’s position was that of bailee, not carrier of the goods. However, the trial court in its order clearly stated that damages for lost profits were included in its calculations because the trial court found those damages were within the contemplation of the parties and flowed naturally from the breach of GPA’s duty to Servac. The record establishes that in determining the fair market value of the goods the trial court applied the proper measure of damages, see generally Harper Warehouse v. Henry Chanin Corp., 102 Ga. App. 489, 495-496 (11) (116 SE2d 641) (1960) (approving charge setting forth the proper measure), then added Servac’s lost profits into its calculations in the form of consequential damages, not as part of the fair market value of the goods in Egypt.

The question is thus whether lost profits as consequential damages can be recovered by Servac. Article 7 of the Uniform Commercial Code, OCGA § 11-7-101 et seq., did not repeal or affect Georgia bailment law. See A.A.A. Parking v. Bigger, 113 Ga. App. 578, 582 (2) (149 SE2d 255) (1966). While the applicability of OCGA § 44-12-43 to this bailment case is unchallenged, the applicability of Article 7 of the UCC, which addresses primarily the use of warehouse receipts, is more problematic since it is unclear whether warehouse receipts were issued in the case sub judice. However, OCGA § 11-7-204 (1) is not limited to situations where warehouse receipts were issued, but instead provides in general that “[a] warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances . . . .” Therefore, because OCGA § 11-7-204 (1) is not restricted to warehousemen who have issued warehouse receipts, we conclude that OCGA § 11-7-204 (1) is applicable in the case at bar.

No Georgia case has addressed the question whether lost profits as consequential damages can be recovered under OCGA § 11-7-204. We are persuaded by Uniform Commercial Code authorities James White and Robert Summers, as well as foreign authority following their position, Indemnity Marine Assur. Co. v. Lipin Robinson Warehouse Corp., 297 NW2d 846, 850-851 (Mich. App. 1980), that in appropriate cases OCGA § 11-7-204 (1) should be construed to cover lost profits as consequential damages. White & Summers, Uniform Commercial Code (3rd ed.), § 21-3, pp. 142-143. As reasoned in White & Summers, “[a] plaintiff may sustain two kinds of damage [to goods stored by a warehouseman]: direct damage in the form of loss or injury to the goods themselves and consequential damage, such as lost profits. A plaintiff may deposit goods in a warehouse expecting to resell them and, after contracting to resell at a profit, find that he cannot do so because of loss or damage to the goods due to the warehouseman’s negligence. ... A recovery limited by the language of section 7-204 (1) to merely [the market value of plaintiff’s goods] would not always make the plaintiff whole.”

The theory behind Georgia bailment law is in accord with this position. In Bennett v. Associated Food Stores, 118 Ga. App. 711, 715 (165 SE2d 581) (1968), a bailment case involving a contract for hire, in order to “ ‘[place the plaintiff] in the position he would have been in had the contract been performed,’ [cits.]” id., we authorized recovery of lost profits subject to the plaintiff adducing “evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages. [Cits.]” Id. at 716. Since bailment actions can be ex contractu or ex delicto, see A.A.A. Parking, supra at 580-581 (1), we note that the “reasonable certainty” requirement applies to plaintiffs seeking to recover lost future profits derived from a transaction that was never completed whether because of a contract breached by the defendant or a tort committed by him. See Bennett v. Smith, 245 Ga. 725, 726-727 (267 SE2d 19) (1980).

3. We now address GPA’s argument that Servac’s evidence regarding its lost profits was too conjectural and speculative to be the basis for recovery. While “[a]n allowance for damages cannot be based on guesswork[, and l]oss of anticipated profits which is completely conjectural is not recoverable,” (citations and punctuation omitted) Phoenix Airline Svcs. v. Metro Airlines, 194 Ga. App. 120, 126 (390 SE2d 219) (1989), rev’d on other grounds, 260 Ga. 584 (397 SE2d 699) (1990), “ ‘[t]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.’ [Cits.]” Farmers Mut. Exchange v. Dixon, 146 Ga. App. 663, 664-665 (5) (247 SE2d 124) (1978). In the present case there is no uncertainty that the cause of the damage to Servac’s goods was GPA’s negligence in allowing a gate valve to leak ammonia into the warehouse where Servac’s goods were stored. Servac’s general manager, A. M. Abdelkader, gave specific figures regarding the amount of goods damaged by the ammonia leak, testified that the damaged goods were part of a larger shipment that had been sold to an Egyptian purchaser, and testified regarding an invoice, admitted into evidence, which he stated served as the contract for the sale and which set forth the price negotiated for the entire shipment. His testimony that due to time constraints, Servac was not able to replace the damaged goods and thus was not able to ship to the Egyptian purchaser the entire amount of goods in the contract distinguishes the case sub judice from Caterpillar Overseas, S.A. v. Marine Transport, 900 F2d 714, 724-725 (VII) (4th Cir. 1990), cited by GPA, wherein lost profits were not allowed because the injured party was able to mitigate its lost profit damages by providing the overseas purchaser with a replacement for the damaged good. Abdelkader also testified that the Egyptian purchaser did not pay Servac for the missing percentage of goods.

In determining whether Servac met its burden of proof, we find that it proved the quantum of damages to a reasonable degree of certainty as provided in Farmers Mut. Exchange, supra. All of the facts were placed in evidence from which the trial court, as trier of fact, could make a reasonable calculation of Servac’s loss. See generally B & D Carpet Finishing Co. v. Gunny Corp., 158 Ga. App. 621, 622 (281 SE2d 354) (1981). Accordingly, the trial court did not err by including Servac’s lost profits in the amount awarded Servac in the judgment.

Decided February 11, 1992.

Brennan, Harris & Rominger, Edward T. Brennan, for appellant.

Clark & Clark, Fred S. Clark, for appellee.

4. The sole issue in Servac’s cross-appeal is whether the trial court erred by not including in its judgment an award of pre-judgment interest calculated from the date the goods sustained damage to the date judgment was entered. Servac contends its damages were liquidated and thus pre-judgment interest was required to be awarded. OCGA § 7-4-15.

“A liquidated demand is ‘an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; . . .’ [Cit.]” Gorlin v. Halpern, 184 Ga. App. 10, 12 (360 SE2d 729) (1987), rev’d on other grounds, Burgess v. Gorlin, 258 Ga. 127 (365 SE2d 405) (1988). “A debt is liquidated when it is certain what is due and how much is due .... [f] or although it may appear that something is due, if it does not also appear how much is due, the debt is not liquidated. An unliquidated claim is one which one of the parties to the contract cannot alone render certain.” Roberts v. Prior, 20 Ga. 561, 562 (1856).

At the time of the ammonia leak at the warehouse where Servac’s goods were stored, it was not certain whether any of the goods had sustained damage, what was the extent of the damage, or what was the value of the goods damaged. There is no evidence that the bailment agreement between the parties addressed these matters or otherwise required the parties to submit determination of such matters to a surveyor whose decision would then bind the parties. Contrary to Servac’s argument, the “certainty” regarding the damage sustained by Servac was not because the damage was liquidated but rather was because the parties apparently agreed after the injury occurred to have the damage surveyed and to consider determinative the results of that survey. See Division 1, supra. Given that the underlying damage to the goods was not liquidated, we do not agree with Servac that its lost profits were liquidated merely because recovery of consequential damages was within the contemplation of the parties.

Accordingly, the trial court properly did not award Servac prejudgment interest.

Judgments affirmed.

McMurray, P. J., and Andrews, J., concur.

       No question exists that GPA is a warehouseman as defined in OCGA § 11-7-102 (1) (h).


text:
    A91A2002.
    SMITHS’ PROPERTIES, INC. v. EDWARDS.
    Decided February 11, 1992.

      Mark A. Smith III, for appellant.

      David E. Danda, for appellee.
    (415 SE2d 520)
   Pope, Judge.

Plaintiff Charles Edwards brought a complaint to foreclose a materialman’s lien filed against certain property owned by defendant The Smiths’ Properties, Inc., for the amount owing on a contract to install carpet and cove base. Defendant answered and filed a counterclaim alleging, inter alia, slander of title. The trial court granted plaintiff’s motion for summary judgment on the complaint and defendant appeals.

Defendant does not deny that plaintiff performed under the contract but argues the contract contains a provision making it an installment contract payable with interest over two years from the date payment is presently due and therefore denying that payment in full on the contract is due and payable. The provision referred to states that in the event the amount due under the contract is not fully paid at the time payment is due, the “balance shall be assigned to a financial company or bank under their standard contract at 1.5% interest with payments in equal installments over 24 months unless otherwise arranged.” The record shows plaintiff never assigned the account but made repeated demands upon defendant for payment and that defendant has made no payment whatsoever on the contract. We agree with the trial court that under these circumstances the amount due on the account is immediately due to plaintiff, and the defendant may not further delay payment by claiming he owes only monthly payments to an unidentified finance company.

Judgment affirmed. Appellant’s motion to dismiss appeal and motion for sanctions are denied.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A92A2102.
    NORWOOD v. THE STATE.
    (415 SE2d 521)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of burglary. He was granted an out-of-time appeal and, in Norwood v. State, 199 Ga. App. 536 (405 SE2d 526) (1991), we remanded for an evidentiary hearing on the issue of the effectiveness of his trial counsel. Thereafter, the hearing was held and the trial court found no violation of appellant’s Sixth Amendment rights. It is from the order refusing to grant appellant a new trial on the ground of ineffective assistance of trial counsel that the instant appeal is brought.

Decided February 11, 1992.

Shandor Badaruddin, for appellant.

According to appellant’s trial counsel, appellant had insisted on testifying in his own defense. Thus, there certainly is no cause for complaint that an objection was not raised when appellant was subjected to a thorough and sifting cross-examination by the State. Likewise, appellant’s trial counsel was clearly not ineffective because he failed to object to the State’s attempt to impeach appellant by showing that his testimony was not truthful. The defendant in a criminal case who elects to take the stand in his own defense is subject to cross-examination and impeachment pursuant to OCGA § 24-9-82. Williams v. State, 171 Ga. App. 927, 928 (2) (321 SE2d 423) (1984). See also Jones v. State, 257 Ga. 753, 759 (1a, 1b) (363 SE2d 529) (1988).

Error, if any, in the trial court’s charge on the principles of impeachment was harmless. Scarboro v. State, 24 Ga. App. 27, 28 (2) (99 SE 637) (1919). Accordingly, the failure of appellant’s trial counsel to object to this charge clearly does not demonstrate his ineffectiveness.

In his direct examination, appellant testified that he had given the police a post-arrest exculpatory statement. Thus, the State was authorized to cross-examine appellant concerning his statement and, in doing so, there was no violation of his constitutional right to remain silent. Overcash v. State, 239 Ga. 499 (1) (238 SE2d 50) (1977); Wilson v. State, 145 Ga. App. 315, 323 (5) (244 SE2d 355) (1978). It follows that the failure to object to the State’s cross-examination of appellant on this issue does not demonstrate that his trial counsel was ineffective.

Appellant’s remaining contentions regarding the purported ineffectiveness of his trial counsel have been considered and found to be without merit. “Simply because other lawyers might have exercised different judgments and conducted [appellant’s] defense in a different manner does not require a finding that defense counsel’s representation of [appellant] was so inadequate as to amount to a denial of effective assistance of counsel. [Cit.]” Austin v. Carter, 248 Ga. 775, 779 (2c) (285 SE2d 542) (1982). It follows that the trial court correctly denied appellant’s motion for new trial on the ground of ineffective assistance of counsel.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.


text:
    A91A2172.
    DAVIS v. BEARD.
    (415 SE2d 522)
   Carley, Presiding Judge.

Mr. John Florence owned property upon which a dam and lake were situated. In the late 1970s, Florence had the height of the dam raised, with the result that a portion of his property thereafter became flooded during periods of heavy rainfall. Subsequently, Florence’s property was subdivided and appellant-plaintiff eventually became the owner of that portion which was subject to flooding and appellee-defendant eventually became the owner of that portion upon which the dam was situated. After his property was flooded, appellant brought suit to recover damages from appellee. The case was tried before the trial court sitting without a jury and a finding in favor of appellee was returned. Appellant appeals from the judgment entered on the trial court’s finding and he enumerates only the general grounds.

It is undisputed that appellee herself has done nothing to change the configuration of the dam and that the flooding dates from the time that Florence originally raised the height of the dam. Accordingly, appellant has no viable claim based upon the theory that appellee herself committed a trespass or created any nuisance. Appellant’s recovery can be based only on the theory that appellee is vicariously liable in trespass for the flooding which results from Florence’s act of raising the height of the dam or that she is directly liable in nuisance for her continuing maintenance of the dam at the height to which it was raised by Florence.

■ Florence is merely appellee’s predecessor in title, not her agent, and appellee clearly cannot be held vicariously liable for the consequence of past acts performed by Florence in his capacity as owner of the property. Moreover, at the time that Florence raised the height of the dam there was no tortious trespass, since the property which thereafter became subject to flooding was his own.

Insofar as appellee’s liability under a nuisance theory is concerned, OCGA § 41-1-5 (a) does provide that “[t]he alienee of a person owning property injured may maintain an action for continuance of the nuisance, for which the alienee of the property causing the nuisance is responsible.” However, in order to recover under this theory, appellant must prove that there was an original nuisance created by Florence. “If there was no original nuisance, there could be no continuing nuisance. [Cits.]” Southern R. Co. v. Leonard, 58 Ga. App. 574, 582 (199 SE 433) (1938). See also Atkinson v. City of Atlanta, 81 Ga. 625, 627 (7 SE 692) (1888); Sheppard v. Georgia R. & Power Co., 31 Ga. App. 653 (1) (121 SE 868) (1924). Obviously, there was no original nuisance created by Florence, since the increased height of the dam resulted in the flooding of his own property and did not cause “hurt, inconvenience, or damage to another. . . .” OCGA § 41-1-1.

Decided February 11, 1992.

Worthy & Associates, Jerry L. Worthy, Jr., James E. Seay, for appellant.

Vinson, Osborne, Talley & Richardson, James R. Osborne, for appellee.

Since the evidence demanded a finding in favor of appellee, the trial court certainly did not err in so finding. If appellant has any viable claim at all, it would be against his vendor based upon any actionable failure to disclose to him that the property was subject to flooding.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A2251.
    OWENS v. THE STATE.
    (415 SE2d 704)
   Sognier, Chief Judge.

Henry Owens was convicted of possession of marijuana and cocaine and possession of a firearm by a convicted felon. He appeals from the denial of his motion for new trial.

1. Appellant first enumerates as error the denial of his motion to suppress the cocaine found in his car. On the night of October 21, 1988, officers of the Grovetown police department went to appellant’s home to execute a probation revocation arrest warrant issued by Chatham County. When they arrived at appellant’s home, he requested permission to dress before leaving with the officers. They agreed, and entered the residence to wait, where they observed marijuana and a gun in plain view. The officers immediately obtained and executed a search warrant authorizing a search of “the premises of 107 Fisk St. ... a one story double wide trailer . . . with a chain link fence surrounding it.” One officer searched appellant’s unlocked car, which was parked in the yard inside the fence, and discovered a plastic bag containing a substance that proved to be 2.7 grams of crack cocaine.

Our courts have held that the issuance of a search warrant for a certain address authorizes a search of anything within the curtilage of the described premises — i.e., the yards, grounds, gardens, barns, and buildings of an address. E.g., Bellamy v. State, 134 Ga. App. 340 (214 SE2d 383) (1975). See Landers v. State, 250 Ga. 808 (301 SE2d 633) (1983), in which the Supreme Court expressly approved of the rationale and holding in Bellamy. Vehicles parked in the driveway or elsewhere on the premises have been found to be within the curtilage. Bellamy, supra (truck parked in driveway); Norman v. State, 134 Ga. App. 767, 768 (1) (216 SE2d 644) (1975) (truck parked in field within 200 feet from residence). We decline appellant’s invitation to overrule this well-established principle of law.

2. Appellant also challenges the sufficiency of the evidence proffered to support his convictions for possession of the guns and cocaine, contending that the State did not rebut his defense of equal access. The arresting officers testified that they found four guns inside appellant’s residence, and that they saw no clothing or personal items in the other bedrooms or any other evidence to suggest that anyone else lived there. The officer who searched appellant’s unlocked car testified that he found the package of cocaine inside a driving glove tucked into the pocket of the driver’s door. Appellant testified that the guns belonged to a man who boarded with him several days a week, and also stated that a woman he dated sometimes drove the car. He denied having either the cocaine or the guns in his possession.

“In the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of premises, an automobile, or other property that the owner is in control and possession of contraband found therein. [Cits.]” (Punctuation and emphasis omitted.) Fears v. State, 169 Ga. App. 172, 173 (312 SE2d 174) (1983). As to automobiles, if the only evidence of possession of contraband found therein is that the defendant is the owner, and there is evidence of prior use of or equal access to the vehicle by other parties in the recent past, then a directed verdict is demanded. Id. “However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the jury.” Id. at 174 (1).

With regard to the cocaine charge, although appellant testified that his friend sometimes drove his car, there was no evidence that she or anyone else had been in possession of the car at any time close to the time the contraband was discovered. Accordingly, the cocaine possession charge was properly submitted to the jury and the evidence was sufficient to authorize the verdict. See Cochran v. State, 190 Ga. App. 884, 885 (380 SE2d 319) (1989) (to make a showing of equal access, it must be shown not that others could have had access but that they did have access in fact). Similarly, testimony of the arresting officers that some of the guns were found in common areas of the residence, which was owned by appellant, authorized the submission of the gun possession charge to the jury, and the officers’ testimony that they found no evidence indicating that anyone other than appellant lived in the residence was sufficient to authorize the jury’s rejection of appellant’s claim that the guns belonged to his boarder. Accordingly, we find the evidence as to both charges met the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See McDade v. State, 175 Ga. App. 204, 205 (332 SE2d 672) (1985).

Decided February 11, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.