author: Birdsong, Presiding Judge.

text:
    A94A1335.
    THE STATE v. SAPP.
    (448 SE2d 3)
   Birdsong, Presiding Judge.

This is an appeal by the State of the trial court’s order granting appellee/defendant Lonnie L. Sapp’s motion to suppress a crack pipe and urinalysis results.

The police received a report from an unknown tipster who they assumed was a concerned citizen that there were “some guys” selling drugs in the Mud Puddle, a known drug area. When the police arrived at the scene, appellee was observed acting “very suspicious.” He was “standing around with a bunch of other guys talking.” When the police pulled up, appellee got nervous and “acted like he started to run,” but “he turned around and came back.” Appellee fit the description of “some of the guys” reported by the tipster as selling drugs at that location. However, the tipster merely identified the people involved as “just young black males.” No other description was given; the tipster did not identify the people either by physical characteristics or by their apparel. Appellee was asked certain routine identification questions, and the officer, based on prior knowledge, recognized appellee and knew he had “a previous record.” Appellee was directed to place his hands on the wall and was given a pat-down for any kind of weapons or contraband. Everyone on the corner was patted down. A crack pipe was found in appellee’s back pocket. At the committal hearing, the officer testified: “At that point, I pulled the pipe out of [appellee’s] pocket and just . . . asked him if he was on probation, he said yes.” Appellee was asked and admitted he was on probation; appellee was then placed under arrest. “At that time, [the officer] got to talking to [appellee] and he stated [the police would not] find any drugs on him because he was a crack head . . . every time he would get crack he would smoke it before anybody could ever find it”; appellee further stated the drugs were in him. Ap-pellee was taken to jail where a urinalysis test was performed which came back positive. A field test of the pipe showed positive for cocaine. No drugs, other than the residue in the pipe, were found on appellee’s person or anywhere in the vicinity of the incident. During the committal hearing, the arresting officer conceded that other than appellee standing on the corner with a group of people and the information from the alleged, unidentified concerned citizen, the police had no reason to stop or search appellee.

The record also contains the affidavit of the assistant district attorney purporting to establish the facts determined at an unreported suppression motion hearing. The contents of this affidavit contain certain information that is contradictory to the facts testified to by the arresting officer at the committal hearing, and no reasonable explanation is offered for this contradiction in fact. For example, the affidavit asserts that the “concerned citizen gave clothing descriptions” of the persons selling drugs at the Mud Puddle location. The arresting officer testified at the committal hearing that he put appel-lee under arrest and “at that time” began talking to appellee who made statements regarding his drug use; however, the affidavit implies that this conversation occurred before the arrest. (Whether a Miranda warning and waiver also was required depends on whether appellee was interrogated after he was in police custody.) The trial court resolved some of the conflict in the evidence by finding as fact that “the anonymous tipster did not identify the [appellee] in any way nor did he ... at any time specifically identify the [appellee] as being involved in any illegal activity.” The trial court also found that, although appellee initially attempted to leave the scene on the arrival of the police, he “returned” and was asked certain questions and then patted down “for any kind of weapons and any kind of contraband.” Held:

1. The findings of fact of the trial court are not clearly erroneous; accordingly, we accept those findings of fact and inherent determinations of witness credibility. See Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). “These same principles of law apply equally to trial court rulings that are in favor of the defendant.” Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646). Further, the trial court correctly concluded the caller was an anonymous tipster; the record contains no facts from which a reasonable inference could be drawn that the anonymous tipster was, in fact, a concerned citizen. See State v. Smalls, 203 Ga. App. 283, 285 (2) (416 SE2d 531), citing State v. Brown, 186 Ga. App. 155, 157 (366 SE2d 816).

2. The cases cited by the State are not controlling. In particular, we find the facts of this case substantially different from those of In the Interest of J. L. G., 209 Ga. App. 565 (434 SE2d 126) (unidentified caller reported dress of one suspect and that other was on bicycle and possibly possessing small handgun; defendant broke and ran from police and was tackled); State v. Ball, 207 Ga. App. 729, 733 (429 SE2d 258) (after an anonymous tip and prior to making the investigative stop, the arresting officer recognized appellant and his car as having been involved in a recent drug investigation); Harris v. State, 205 Ga. App. 813 (423 SE2d 723) (defendant voluntarily consented to removal of tissue from his pocket detected during a Terry stop and frisk); State v. Holton, 205 Ga. App. 434 (422 SE2d 295) (anonymous tipster predicted defendant’s future behavior in detail); Perry v. State, 204 Ga. App. 643 (419 SE2d 922); State v. Smalls, supra (some in group ran and appellant attempted to leave scene slowly but did not voluntarily return; brief pat-down for safety disclosed money which defendant then consented to let the police remove from his pocket; search and seizure not illegal since it was with effective consent).

The tipster gave only a general description of the suspected drug sellers; he identified them as young black males. The tipster gave no individual description of appellee whatever; he made no prediction about future behavior of appellee or of the group by which reliability could be tested. See generally Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301); compare Johnson v. State, 197 Ga. App. 538 (398 SE2d 826). Under the circumstances of this case, we find controlling Moreland v. State, 204 Ga. App. 218 (418 SE2d 788); Swanson v. State, 201 Ga. App. 896 (412 SE2d 630); and Johnson v. State, 197 Ga. App. 538 (398 SE2d 826). The initial stop of appellee was not valid because it was unreasonable under the circumstances; it does not qualify as a legitimate investigative stop, pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), not being grounded on a legitimate articulable suspicion. Moreland, supra; see Swanson, supra; Johnson, supra.

Further, the arresting officer testified and the trial court found, as fact, that the pat-down was conducted not only for weapons but to search for contraband of any kind. When, during the initial stages of a legitimate investigative stop nothing “serves to dispel [a police officer’s] reasonable fear for his own or others’ safety, [the officer] is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault [the officer].” (Emphasis supplied.) Terry, supra at 30. Terry does not authorize a general exploratory search for contraband merely incident to an investigative stop based on an articulable suspicion. See generally Terry at 29-30.

3. “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, supra at 16. As the initial stop of appellee was beyond the parameters authorized by Terry, supra, it constituted an illegal seizure of the person. Evidence may not be introduced if it was discovered by means of an unlawful search and seizure. See, e.g., Terry, supra at 29; compare State v. Stringer, 258 Ga. 605 (372 SE2d 426) (exclusionary rule applies where causal connection between illegal arrest and subsequent custodial statement). However, under certain circumstances, the effect of an unlawful arrest, seizure or search can be attenuated. See generally Stringer, supra at 607 and cases cited therein; King v. State, 211 Ga. App. 12, 13-14 (1) (438 SE2d 93); Ruffin v. State, 201 Ga. App. 792 (2) (412 SE2d 850) (police’s learning of outstanding arrest warrant during illegal Terry stop attenuated the temporary illegal detention of defendant arising from an illegal Terry stop; police could make a valid arrest, based on the warrant, and search defendant at the jail incident to his lawful arrest pursuant to the warrant); see Donner v. State, 191 Ga. App. 58 (380 SE2d 732).

We find that no attenuating circumstances exist as to the pat-down and seizure of the crack pipe; its seizure clearly was causally connected to the illegal investigative stop. The trial court did .not err in suppressing this evidence. However, attenuating factors may exist as to the subsequent search of appellee by means of urinalysis testing. Whether such attenuating circumstances exist depends upon certain facts which have not, as yet, been addressed by the trial court. Appel-lee was in a probation status; one of the special conditions of that probation was, inter alia: “Probationer shall submit to a search of his person . . . and/or effects, as these terms of the Fourth Amendment to the United States Constitution are defined by the Courts, any time of the day or night with or without a search warrant, whenever requested to do so by . . . any city, county or state law enforcement officer.”

By accepting this special condition of probation, and to the extent a search and seizure was not otherwise tainted without subsequent attenuation so as to compel invocation of the exclusionary rule, appellee waived his Fourth Amendment right. See Allen v. State, 258 Ga. 424 (369 SE2d 909); Nelson v. State, 199 Ga. App. 487, 488 (3) (405 SE2d 310). A search conducted pursuant to a special condition of probation need not be made as a routine incident of the probation supervision process. Hancock v. State, 205 Ga. App. 890, 891 (424 SE2d 77); State v. Bethune, 207 Ga. App. 340 (427 SE2d 795); but cf. Luke v. State, 178 Ga. App. 614, 616 (2) (344 SE2d 452). “ ‘ “The rule is that there must be some conduct reasonably suggestive of criminal activity to ‘trigger’ the search.” ’ ” Anderson v. State, 209 Ga. App. 676, 677 (434 SE2d 122). It can be “ ‘prompted by a good-faith suspicion, arising from routine police investigative work.’ ” Hancock, supra; accord Bethune, supra. Accordingly as a general rule, the police can search a probationer, who is subject to such a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer). Anderson, supra; Hancock, supra.

In this instance, it appears that the police did not become aware that appellee was on probation until after they had initiated the unauthorized Terry stop. Moreover, the evidence is conflicting and has not been resolved whether appellee stated he was on probation before or after he was placed under arrest. If the police learned of appellee’s probation status and subjected him to urinalysis because of a causal connection between the unauthorized Terry stop and his subsequent statement admitting his probation status, and no attenuating circumstances existed, the resulting search by means of urinalysis testing would be rendered inadmissible. See Stringer, supra.

Based on the state of the record, we cannot determine whether facts exist which would attenuate the effect of the unauthorized Terry stop. Accordingly, we remand this case to the trial court with direction to ascertain whether the causal connection above-addressed exists, and, if so, whether any attenuating circumstances exist, which would negate the effect of the unauthorized Terry stop as to the subsequent urinalysis test of appellee. Among those matters to be considered are: Was appellee’s statement regarding admitting his probation status made before or after his arrest? Was the statement spontaneous or was it obtained during the police’s questioning of appellee? If the statement was made after arrest and not spontaneously, was ap-pellee given a Miranda warning and did he waive his Miranda rights before the statement was obtained? Did the police learn by means independent of the Terry stop the existence of appellee’s probation status? If so, did they compel him to undergo urinalysis testing for legitimate reasons not causally related to his unauthorized Terry stop? Would the information regarding appellee’s status have been subject to inevitable discovery notwithstanding the unauthorized Terry stop?

Decided July 26, 1994

Reconsideration denied August 16, 1994.

Britt R. Priddy, District Attorney, Kenneth B. Hodges III, Assistant District Attorney, for appellant.

Farkas & Ledford, Thomas G. Ledford, for appellee.

Judgment affirmed in part and remanded with direction.

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

On Motion for Reconsideration.

Appellee Lonnie L. Sapp’s motion for reconsideration is denied. Appellee may assert the contentions made in his motion before the trial court, including his argument that the record contains no evidence of the special terms of his probation. The record contains as an exhibit the first page of final disposition, signed by the superior court judge on June 9, 1992; this document expressly refers to additional and special conditions of probation contained on page two thereof. The trial court should determine, inter alia, during the course of the hearing on remand whether the absence of page two of the final disposition from the record is due merely to clerical error or whether such evidence was never introduced. The trial court may correct any clerical or other administrative errors or omissions in the record. OCGA § 5-6-41; see also OCGA § 5-6-48 (d).

Motion for reconsideration denied.


source: Caselaw Access Project

license: Public Domain

text:
    A94A1653.
    KIRBY v. SPATE et al.
    (448 SE2d 7)
   Birdsong, Presiding Judge.

Appellant/plaintiff Joan Kirby appeals the order of the trial court granting summary judgment to appellees/defendants Robert and Verrill M. Spate d/b/a Liahona Charter Service.

Appellant filed suit for damages sustained in September 1987, while operating a 1972 model bus. This bus was used by appellee owners to transport children on an established school route. Appellant was driving the bus to demonstrate her proficiency while testing for employment as a bus driver; Robert Spate was in the bus as her evaluator. Going up an incline appellant shifted gears, perhaps stalling the bus; a loud pop was heard and the bus began to roll backward. The bus brakes failed; the bus hit a tree and appellant was injured. No problem had been noticed with the brakes earlier that day. There exists some evidence that the cause of brake failure was a defective diaphragm in the rear air chamber of the brake system which was “showing age.”

Appellees purchased the bus approximately a year and a half earlier at an auction. At the time of purchase no bus repair history or maintenance log was obtained from the sellers. Thereafter, appellees kept no formal maintenance log pertaining to the bus. Mr. Spate had no knowledge of how old the parts on the bus were or how many miles the bus had been driven without changing deteriorative parts. However, after auction, the bus was taken to Truck & Trailer Repair for major overhaul. Truck & Trailer made a complete check of everything on the bus, safety and mechanical, before it was placed in service.

In March 1987, Robert Spate took the bus to Wheels & Brakes, Inc. and obtained a brake job on the bus; the front diaphragms were replaced but not the back ones. Mr. Spate told Wheels & Brakes to do whatever it took to put the bus back “in A-l condition.” The diaphragms probably were replaced because they were leaking; it is not normal procedure to tear down a brake canister unless the diaphragms appear to.be leaking. The Wheels & Brakes shop foreman testified that once a canister seal is broken the diaphragm is replaced. Leaking diaphragms are replaced but unless a leak is found, the responsibility of diaphragm replacement rests upon the customer. While a physical inspection of the diaphragms is important, this is not a part of a complete brake inspection or overall brake repair job and must be requested by the customer. It is the owner or operator’s responsibility to insure work is done on a vehicle “on a normal basis.” Mr. Spate testified that the mechanics at Wheels & Brakes were told to “go through the whole thing and put the brakes in tiptop condition,” because the bus would be hauling school children. Spate was charged $910.06 for the brake work; a fee consistent with major repair of the bus’ braking system. When this service was accomplished, Spate “felt that everything was done [that] needed to be done.” However, the Wheels & Brakes shop foreman testified by deposition that service of the type requested by Spate would not include a visual inspection of the brake diaphragm, as such a procedure involves more labor. Diaphragms do not show their age or wear by any visible sign, such as discoloration, cracking, or similar symptom; the age of a diaphragm cannot be determined merely by looking at it installed on a system.

In June 1987, the bus was in a minor rear-end collision with another vehicle and the bus driver reported that something might be wrong with the brakes. Truck & Trailer Repair was hired to “check the thing over,” that is, to perform “an inspection of the braking system of the bus.” Mr. Beck, former owner of Truck & Trailer, testified by deposition that Truck & Trailer was only requested to check the brakes because they were fading, and had the authorization been to do whatever was necessary to repair the brakes, Beck would have repaired “everything we found wrong.” No physical check was made of the brake diaphragms. If a diaphragm had an air leak, a loss of air would occur when the brake lever was depressed; so the air cylinder would not be “physically” disassembled to inspect a diaphragm for air leaks. Had Beck been requested by anyone to check out the brakes and make sure they were in working condition, he would have completely gone through the entire brake system. Most owners, contractors and independents establish their own maintenance program and, although it is hard to determine, a diaphragm is good for at least 100,000 miles. Periodic replacement of a diaphragm is necessary as it will deteriorate over a period of time and become susceptible to rupture or it can also explode. Diaphragms can fail from normal wear and tear causing the whole brake system to fail in a bus with a system like that in appellant’s bus. Truck & Trailer found nothing wrong with the brakes on the bus. The diaphragm Beck was shown could have developed the type of damage it had from normal wear and tear. If a bus was found to have an oil or air leak in the brake system, or a bad compressor which pumped the cylinder full of oil, Beck would consider it necessary to inspect the diaphragms and would so recommend to the owner. He also would inspect the diaphragms if the vehicle had over 100,000 miles and the owner expressly requested such an inspection.

After Truck & Trailer Repair completed their brake system check, which included a test drive of the bus by Mr. Spate and Mr. Beck, Mr. Spate took the bus, which was an International Bus, to Heuer International Trucks, Inc. who reinspected the brake work on July 2, 1987. Mr. Spate did not ask Heuer International to do any work on the brakes, but to inspect it and advise him as to what was wrong with it. He remained on the premises while the inspection was being conducted. Heuer International, however, did not inspect the rear brake diaphragms. By affidavit, a Heuer mechanic stated that he was requested to check the brake system of the bus and advise the owner of any problems; he inspected the brake and air systems and installed a wet tank bleeder valve as requested. He detected no leaks in the system at that time and found it functioning normally. He further stated that a visual inspection of the diaphragms can only be done by disassembling the brake chambers; once a chamber is disassembled the diaphragms must be replaced. Thus, when performing an inspection of the air brake system, the diaphragms are not visually inspected; but if an air leak is detected or a chamber physically damaged, “and if the customer desires the diaphragms changed, then the chambers are disassembled.” Heuer’s service manager testified by deposition that, in the absence of an air leak, his company would not physically inspect a brake diaphragm without the owner’s request, as “you’re talking about a lot of money to tear . . . diaphragms down.” Under certain conditions, a visual inspection of a diaphragm could reveal deterioration. If an air leak had been detected, Spate would have been advised to replace the diaphragm. It was not Heuer’s practice to replace diaphragms periodically which did not leak or exhibit any visible problems. After inspection, the bus was road tested by Heuer’s mechanic.

The bus was taken to Truck & Trailer about once a month for regular servicing, which “usually” included brake inspections; Spate would take the bus in and tell Truck & Trailer to “check it over for me.” Drivers checked their buses daily for items such as lights and brakes by doing a “walk-around inspection” — they would not raise the hood. Mr. Spate also performed personal weekly inspections of each bus (which included test drives) to catch any items the drivers may not have noticed; however, he is not a mechanic and the only maintenance he performed was checking the oil, water and similar items. Shortly before the incident, Mr. Spate drove the bus; its foot and parking brakes were properly functioning.

Mr. Spate is not knowledgeable about brakes and diaphragms; not being a mechanic, he had to take the mechanics’ word that they did what he was paying them to do; he “trusted them to know what they were doing.” Mr. Spate conceded that it was his practice to ask that brake diaphragms be inspected “only if there is some other reason to suspect [a problem with the diaphragm], such as hearing an air leak or something like that.” Spate never had a discussion with any of the repair shops about a maintenance schedule for inspection of brake diaphragms, although he had arranged for a monthly inspection of the bus at Wheels & Brakes. He had no understanding whether the diaphragms would be inspected when the brakes were inspected. Held:

1. (a) The proper summary judgment standard where there is a movant/defendant is stated in Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).

(b) Appellant contends that, pursuant to OCGA § 46-9-1, the standard of care required of appellees, as a common carrier, is that of extraordinary diligence. We find, thereby pretermitting the issue whether appellant is a common carrier or merely a private carrier, that OCGA § 46-9-1, with certain limited exceptions not here applicable, “applies only to the carriage of goods.” Bricks v. Metro Ambulance Svc., 177 Ga. App. 62, 65 (1) (338 SE2d 438); see also Central R. Co. v. Hasselkus &c., 91 Ga. 382, 385 (3) (17 SE 838); Effort Enter prises v. Crosta, 194 Ga. App. 666 (1) (391 SE2d 477). Nor does a duty of extraordinary care arise under OCGA § 46-9-132, as appellant was not a “passenger” within the meaning of that Code section, there being, inter alia, no contract for the payment of a fare or its equivalent. OCGA § 46-1-1 (8); see generally 14 AmJur2d, Carriers, §§ 739-740, 770. The standard here is one of ordinary diligence: that degree of care which is exercised by ordinarily prudent persons under same or similar circumstances. OCGA § 51-1-2.

2. OCGA § 40-8-54 pertinently provides that “[a]ll brakes shall be maintained in good working order.” Gregory v. Ross, 214 Ga. 306, 311 (5) (104 SE2d 452) recognizes the statutory duty imposed upon an owner to keep a motor vehicle equipped with proper brakes, and states a general rule regarding the conditions under which an owner will be liable for allowing a vehicle with defective equipment to be driven by a third party. However, under certain circumstances, it may not be sufficient to escape liability for damages arising from a brake failure that an owner repeatedly had the brake system inspected for the purpose of detecting and repairing any existing brake defects. The brake defect which existed at the time of the accident (and was its proximate cause) must have occurred “wholly” without the fault of the owner. Johnson v. McAfee, 151 Ga. App. 774, 775 (2) (261 SE2d 708). Thus, when an owner is operating a used bus (particularly one whose past maintenance history is unknown) for the primary purpose of transporting school children — a venture in which the State has a special safety interest (see, e.g., OCGA § 40-8-220) — a genuine issue of material fact yet may remain whether the owner has exercised ordinary diligence if he fails to establish an effective maintenance program to replace periodically all deteriorative brake parts which, if allowed to deteriorate or otherwise become defective through ordinary wear and tear, could with reasonable foreseeability result in injury to bus passengers. Whether it complies with the requirements of ordinary diligence merely to inspect a bus (being used as a school bus) for existing brake defects and to replace deteriorative brake parts only after they have become defective, rather than establishing an ongoing maintenance program to replace periodically deteriorative brake parts before they fail and foreseeably cause a brake system failure, presents questions of fact for the jury. Cf. Lewis v. Harry White Ford, 129 Ga. App. 318 (2) (199 SE2d 599) (other factual considerations presented by record). Whether appellees were negligent, under the existing circumstances, and whether such negligence, if any, was a sole or concurring cause in appellant’s alleged injuries presents questions for the jury. See Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810).

Whether a statutory requirement should be enacted requiring owners to replace periodically air brake diaphragms and other safety-related deteriorative parts on buses routinely used to transport school children is a matter which should be addressed by the legislature.

Decided July 26, 1994

Reconsideration denied August 16, 1994

Cathey & Strain, Dennis T. Cathey, for appellant.

Smith, Gambrell & Russell, David A. Handley, Dana M. Rich-ens, for appellees.

Judgment reversed.

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


text:
    A94A1740.
    J & L FOODS et al. v. BROOKS.
    (448 SE2d 19)
   Birdsong, Presiding Judge.

J & L Foods d/b/a Huddle House and Insurance Company of North America (collectively “Huddle House”) appeal the judgment reversing and remanding the award of the State Board of Workers’ Compensation. Huddle House contends the trial court violated the “any evidence” rule by finding that there was no evidence to support the findings of the administrative law judge (ALJ) that were adopted by the full board.

Rachel Brooks was a short-order cook with Huddle House. She filed a workers’ compensation claim alleging that she became disabled as the result of a job-related carpal tunnel syndrome caused by an injury to her thumb or which developed over time. Huddle House contended, however, that the carpal tunnel syndrome did not arise during the course of her employment.

The ALJ found that, while Brooks may suffer from carpal tunnel syndrome, she was not disabled. The ALJ further found that Brooks failed to establish that the carpal tunnel syndrome was related to Brooks’ employment with Huddle House because her carpal tunnel syndrome is in her left hand, but Brooks is right-handed and the Huddle House kitchen is set up so that the repetitive motions are performed by the right hand. Moreover, the ALJ also found that at the time of Brooks’ injury she was working more than normal working hours in her own restaurant after she had ended her employment with Huddle House. Held:

This case is controlled by the “any evidence” rule. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65). Findings of fact by the State Board, when supported by any evidence, are conclusive and binding on reviewing courts and judges do not have authority to set aside an award based on findings of fact because judges disagree with the conclusions reached.

Decided July 29, 1994

Reconsideration denied August 16, 1994

Drew, Eckl & Farnham, Katherine D. Dixon, for appellants.

Friedman & Associates, Mark W. Wortham, for appellee.

The ALJ found as a matter of fact that Brooks did not establish by the preponderance of “competent and credible evidence” that her condition was related to her job at Huddle House. Implicit in this finding is the conclusion that Brooks was not a credible witness; her testimony was self-contradictory and at times inconsistent with her earlier deposition testimony.

Further, the ALJ’s finding is supported by evidence showing Brooks did not complain about her wrist before she cut her thumb, she was off work for weeks before complaining about her wrist, she complained to her physician about her wrist popping, her employer testified Brooks told him her wrist was hurt when it “popped” in physical therapy, she quit her job at Huddle House to work in a restaurant she co-owned and not because of her wrist, she worked preparing her restaurant before quitting Huddle House; and, Brooks worked long hours in her restaurant after she left Huddle House. Further, the one physician who related Brooks’ wrist condition to her work at Huddle House did so based upon Brooks’ complaints to him, but the ALJ’s conclusion regarding Brooks’ credibility, however, shows that no weight was given this evidence. Such a decision is within the authority of the ALJ and State Board. Howard Sheppard, Inc., supra. Moreover, medical evidence showed that Brooks’ wrist condition was not related to the cut on her thumb.

Since the findings of the ALJ, as adopted by the full board, are supported by evidence of record, the trial court erred by reversing the award of the full board.

Accordingly, the judgment of the superior court is reversed and the appeal is remanded to the superior court with direction to enter judgment affirming the award of the State Board of Workers’ Compensation.

Judgment reversed and remanded with direction.

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


text:
    A94A1792.
    In the Interest of A. F., a child.
    (448 SE2d 11)
   Birdsong, Presiding Judge.

This is an appeal from the order of the juvenile court which ordered transfer of A. F. to the superior court for trial as an adult offender. Following the discovery of a woman’s body, a suspect implicated A. F. in the criminal incident. Investigators determined that on the night of the criminal incident the suspect was accompanied by another adult and the juvenile A. F. Investigators were sent to interview appellant but found that he had been adjudged a delinquent by the local juvenile court that day for an apparently unrelated motor vehicle theft. Appellant A. F. was taken into custody and gave a statement to law enforcement officials.

Appellant was charged with the designated felonies of malice murder, felony murder, kidnapping with bodily injury, rape, armed robbery, and aggravated sodomy. He was also charged with one non-designated felony, burglary. The State filed a petition to transfer the case to the superior court to try A. F. as an adult; a bifurcated hearing was held.

During the hearing, certain State and defense witnesses opined, inter alia, that A. F. would be amenable to treatment within the juvenile court system; at least one State expert testified appellant was not a threat to society. However, an investigator testified that his investigation established that the two adult suspects and appellant A. F. (who was then age 15) went to the victim’s home to burglarize it. They wore ski masks and one of the adults was armed with a .22 cali-bre pistol when the burglary was committed. The victim was inside the residence with her two-month-old child. Appellant actively participated in the burglary by taking certain stolen items and hiding them in the bushes. Subsequently, appellant brought the three perpetrators’ car to the house and picked up his adult co-accomplices and the victim who was forced from the residence at gunpoint. The kidnapped victim subsequently was taken to a local motel where she was raped by all three perpetrators while held at gunpoint. One adult male on more than one occasion pointed the weapon at appellant who felt threatened. After leaving the motel with the victim, the perpetrators observed a man who appellant believed to be the victim’s father looking for her, so they returned to the motel. At this time the victim was forced at gunpoint to perform sodomy on all three perpetrators. The perpetrators then left the motel again and the victim was taken to the woods and shot by one of the armed adult males. Appellant admitted that he and the other adult male then got out of the vehicle and checked the victim, by shaking her, to see if she was still alive. She was dead. The perpetrators then departed the area and the masks and weapon were thrown away by the adult who had shot the victim.

A forensic psychiatrist testified for the State that he had conducted a mental evaluation of appellant and found that appellant was not suffering from any mental disease or defect at the time of the crime nor is appellant presently suffering from such disease or defect; further, appellant is not committable to an institution for the mentally ill or retarded.

In addition to introducing evidence of appellant’s previous adjudication of delinquency for the offenses of escape, obstruction of an officer, two offenses of theft by taking, theft by taking of a motor vehicle and shoplifting, the State also introduced evidence that appellant currently was the subject of an unadjudicated case for allegedly pointing a firearm at another individual. Testimony from a representative of the Regional Youth Development Center relates that while detained in that facility appellant’s conduct had been disruptive and on one occasion he engaged in an act of oral sodomy.

At the close of the hearing the juvenile judge ordered A. F.’s transfer for trial in superior court. In so ruling, the juvenile judge held, inter alia, that: appellant is not committable to an institution for the mentally ill or mentally retarded; there is probable cause to believe appellant committed the offenses for which he was charged (including felony murder and malice murder) and that said acts would be punishable by loss of life or confinement for life in a penal institution; and the State presented evidence as to non-amenability to treatment and that the community interest in treating the juvenile as an adult outweighs the juvenile’s interest in being treated as a juvenile. The juvenile court further found that “because of said juvenile’s history with the juvenile court system, the evidence shows that [appellant] is not amenable to treatment, and the child’s interest in treatment in the juvenile system is minimized because of the treatment’s potential ineffectiveness and because of that ineffectiveness the community has an interest in treating the child as an adult. . . . Furthermore . . . the amenability factor is outweighed by the interest of the community in processing the child as an adult based on the severity and heinous nature of the offenses with which he is charged.” Held:

Appellant contends the juvenile court erred, as the ruling to transfer is contrary to the evidence, and that the court abused its discretion by ordering the juvenile A. F.’s transfer to superior court for trial as an adult offender.

1. A juvenile court does not abuse its broad discretion in ordering a transfer where there is evidence in support of the transfer. In the Interest of K. L. L., 204 Ga. App. 320, 321 (2) (419 SE2d 312). We therefore must examine the state of the evidence in light of the law applicable to such transfers.

2. OCGA § 15-11-39 (a) (3) (C), “ ‘the present transfer statute[,] now requires a juvenile court to determine, in its discretion, whether there are reasonable grounds to believe that: “The interests of the child and the community require that the child be placed under legal restraint and the transfer be made.” [Cit.]’ ” In the Interest of L. T. W., 211 Ga. App. 441, 442 (2) (439 SE2d 716). In State v. M. M., 259 Ga. 637, 639 (2) (a) (386 SE2d 35), it was held that “a child’s amenability or non-amenability to treatment [in the juvenile system] is but one factor to consider in determining the child’s and the community’s interests.”

Appellant contends that while the State does not have to prove the amenability of the treatment of the juvenile within the juvenile court system, the State must prove that the community’s interest in the incarceration of and prosecution of the juvenile, as an adult, within the superior court system, outweighs the amenability of treatment of the juvenile within the juvenile court system; appellant then argues that this showing was not made as the State produced no evidence to show that the juvenile is not amenable to treatment and that he is a danger to society. We find that appellant is attempting to overreach the scope of the holding in M. M., supra. In M. M., at 639 (2) (b), it was held that “if the [S]tate seeks a transfer based at least in part on the child’s non-amenability to treatment in the juvenile system, the [S]tate has the burden of proving the child is not amenable to treatment. Moreover, if the juvenile court relies in part on the child’s non-amenability to treatment in ordering the transfer, the transfer order, in performing the balancing test required by § 15-11-39 (a) (3) (C), must reflect why the child is not amenable to treatment.” The order in this case reflects why the juvenile court concluded the child is not amenable to treatment. The question then becomes whether that reason, being supported as it is by evidence of record, is sufficient to support the determination of non-amenability to treatment. We conclude that it is. Neither M. M., supra, nor its progeny, preclude the use of circumstantial evidence to establish non-amenability to treatment, and we decline to create such a rule. In fact, “[a] juvenile court may, but is not required, to consider the severity of the crimes committed when determining the weight to be given the community’s interest in trying a juvenile in superior court.” In the Interest of J. N. B., 263 Ga. 600, 601 (2) (436 SE2d 202). “The juvenile court properly relied on the heinous nature of the offense [s] in determining that the community’s interest in treating [appellant] as an adult outweighed [appellant’s] interest in being treated in the juvenile system.” In the Interest of J. H., 260 Ga. 447, 449 (1) (396 SE2d 885); M. M., supra at 640 (3). Moreover, we find that the juvenile court could properly rely on appellant’s past history with the juvenile system and his lack of rehabilitation thereby. The court also could consider the heinous nature of the currently charged offenses, any direct or circumstantial evidence of appellant’s in concert involvement in the crimes at issue with adult co-accomplices, and/or the scope and nature of appellant’s direct participation in those crimes in determining whether appellant is amenable or not to treatment in the juvenile system. Compare Waller v. State, 261 Ga. 830, 831 (2) (412 SE2d 531). As in Waller, supra, the juvenile court’s decision to transfer appellant was not based solely on the number and severity of the crimes at issue.

Decided July 28, 1994

Reconsideration denied August 16, 1994

Mullins & Whalen, Harold A. Sturdivant, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William T. Mc-Broom, Assistant District Attorney, for appellee.

Appellant’s various contentions in support of his two enumerations of error are without merit.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A94A1000.
    SIMS v. THE STATE.
    (448 SE2d 77)
   Judge Harold R. Banke.

The appellant was charged with the offense of driving under the influence of alcohol pursuant to OCGA § 40-6-391 (a) (4). Prior to tendering a plea of guilty, he filed a request for first offender treatment under OCGA § 42-8-60 et seq., asking the trial court to impose a fine and suspend sentence upon payment of the fine rather than placing him on probation. The trial court denied that request, on the ground that OCGA § 40-6-391 precluded first offender treatment in DUI cases, regardless of whether the imposed sentence was probated, suspended, or served. This appeal followed.

1. Initially, we note that the trial court’s order allowed the appellant to reserve the ruling denying first offender treatment for appeal after entry of the guilty plea. Appellate review of such conditional pleas was disapproved in Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836) (1994), but since the instant order was entered prior to the effective date of Hooten, this appeal will be considered.

2. OCGA § 42-8-60 (a) allows first offender treatment in appropriate situations both where the trial court places the defendant on probation and where the court sentences the defendant to a term of confinement. However, OCGA § 40-6-391 (f), in pertinent part, directs that “the provisions of Article 3 of Chapter 8 of Title 42 [OCGA § 42-8-60 et seq.], relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.”

Decided August 16, 1994.

Peters, Townsend, Wilson & Roberts, Douglas N. Peters, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

The phrase “relating to probation of first offenders” contained in OCGA § 40-6-391 (f) refers to the general title of Article 3 of Chapter 8 of Title 42, and does not purport to limit the prohibition of first offender treatment only to DUI cases where probation is imposed. “ ‘Though criminal statutes are to be construed strictly against the State, they are also to be construed so as to give legislative intent precedence over the literal import of words and to avoid unreasonable or illogical results. (Cits.)’ [Cit.]” Mays v. State, 200 Ga. App. 457, 460 (2) (408 SE2d 714) (1991). Accordingly, the trial court correctly concluded that first offender treatment was unavailable to the appellant.

Judgment affirmed.

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


text:
    A94A1020.
    PERRY v. THE STATE.
    (448 SE2d 74)
   Judge Harold R. Banke.

The appellant, Fred Perry, and several co-defendants were indicted and tried for trafficking in cocaine and possession of cocaine with the intent to distribute. The appellant was convicted of both offenses, but his co-defendants were only convicted of possession of cocaine. This appeal followed.

On March 3, 1992, two City of Atlanta police officers set up surveillance from a vacant apartment in Carver Homes and observed the appellant and five other individuals make several drug sales. During the transactions, the appellant’s co-defendants retrieved the cocaine from a paper bag hidden in some shrubbery and usually gave the appellant the money received from the customers. After observing this activity for approximately thirty minutes, the two officers left the apartment and arrested the appellant and his cohorts. The appellant had $900, but no drugs, on his person.

1. The appellant contends that the State improperly placed his character in issue several times during the trial. He first complains about the testimony of the arresting officers that the appellant appeared to be in charge of the drug trafficking they witnessed. However, “[i]t is well settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those which establish the commission of another criminal offense and bring into question his character. [Cits.]” Shakim v. State, 211 Ga. App. 199, 201 (2) (438 SE2d 673) (1993).

The officers further testified that they suspected the appellant was a “lieutenant” in the drug ring headed by an individual they described as “a killer, a terrorist,” because the drug dealing took place in the latter’s territory. The appellant now contends that this testimony also placed his character in issue, but at trial failed to specify that (or any other) basis for objecting to that testimony. Under these circumstances, the objection was waived. Hunter v. State, 202 Ga. App. 195 (3) (413 SE2d 526) (1991).

During cross-examination of one of the arresting officers, defense counsel asked if the area of the apartment complex where the arrests occurred was highly traveled. In responding negatively, the officer stated that the drug dealers were bullies and had scared the residents away from that area. Defense counsel then moved for mistrial on the grounds that the officer’s explanation placed the appellant’s character in issue. The trial court gave a curative instruction for the jury to disregard the reference to bullies, but denied the motion for mistrial.

The officer’s testimony was responsive to defense counsel’s questioning, although perhaps more responsive than desired. Further, the officer had testified earlier without objection that the drug dealers had so scared the residents that they stayed away from that area. Under these circumstances, the trial court did not abuse its discretion in denying the motion for mistrial.

2. The appellant also contends that the trial court erred in denying his motion to sever based on antagonistic defenses asserted by the co-defendants. However, the existence of antagonistic defenses between co-defendants does not require separate trials, absent a showing of harm. Chapman v. State, 263 Ga. 393 (2) (435 SE2d 202) (1993); Kennedy v. State, 253 Ga. 132 (2) (317 SE2d 822) (1984). In the instant case, although remarks by counsel for the co-defendants may have singled out the appellant, the co-defendants testified and essentially denied any knowledge of or participation in drug trafficking by anyone, including the appellant. The appellant has shown no harm, and the trial court properly refused to sever the trial. Id.

3. Prior to the trial, defense counsel requested a continuance based on the appellant’s failure to keep scheduled appointments for trial preparation. The appellant had been incarcerated in the city jail under a different name for approximately one month before the trial. He had never contacted defense counsel to inform her of his whereabouts.

Decided August 16, 1994.

Debra B. Randall, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

The grant or denial of a motion for continuance lies within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Watkins v. State, 191 Ga. App. 87 (1) (381 SE2d 45) (1989). In the instant case, where the appellant was responsible for the lack of communication between himself and defense counsel, the trial court did not abuse its discretion in denying the motion for continuance. See Rivers v. State, 250 Ga. 303 (5) (298 SE2d 1) (1982).

4. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A94A1098.
    NIXON v. ROSENTHAL.
    (448 SE2d 45)
   McMurray, Presiding Judge.

Plaintiff Nixon filed this medical malpractice action against defendant Rosenthal. Following a verdict and judgment in favor of defendant, plaintiff appeals and raises several issues primarily related to the selection of the trial jury. Held:

1. In her first enumeration of error, plaintiff maintains that the trial court erred in denying her motion predicated on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), in that defendant had exercised his peremptory challenges in a racially discriminatory manner. However, “a challenge to the alleged use of racially discriminatory peremptory challenges in a civil trial under Edmonson [v. Leesville Concrete Co., 500 U. S. 614 (111 SC 2077, 114 LE2d 660)] should be raised no later than would preserve the opportunity to correct any violation without resetting the trial. In this case the latest time would have been before the jury selected and the jurors not selected were released.” Calhoun v. Purvis, 206 Ga. App. 565, 567 (2), 568 (425 SE2d 901). Although the trial court attempted to recall the released jurors, the attempt was not entirely successful and had the trial court found any violation of plaintiff’s rights the trial would have had to be reset. Under these circumstances, plaintiff’s motion was not timely and any Batson violation was waived.

Decided August 4, 1994

Reconsideration denied August 17, 1994

Don Smart, for appellant.

Beckmann & Pinson, William H. Pinson, Jr., Walter Ballew III, W. Richard Dekle, Falligant & Toporek, Robert E. Falligant, Jr., for appellee.

A related issue is raised by plaintiff’s third enumeration of error which alleges a separate Batson violation by defendant’s use of his peremptory strikes to exclude jurors because of their gender. See J. E. B. v. Alabama,_U. S._ (114 SC 1419, 128 LE2d 89). However, no motion or objection was raised before the trial court in connection with this issue which also must be deemed to have been waived. Ford v. State, 180 Ga. App. 807 (2), 808 (350 SE2d 816).

2. The trial court did not err in excusing for cause as a non-resident, juror Wright, who stated that she was not a resident of Chat-ham County, and that she was a full-time student and worked in Lowndes County. While some of the trial court’s remarks during colloquy with counsel did suggest a factual conclusion that the juror was a Chatham County resident and thus a proper juror for the case sub judice, the trial court also stated that: “Apparently, she feels that she’s domiciled in Lowndes County.” The plaintiff argues that the trial court has abused its discretion by striking a juror whom it has found to be a Chatham County resident. However, this position removes the trial court’s remarks from context. The limited evidence cast into serious doubt whether the juror was a resident of Chatham County, therefore we find no abuse of discretion in the trial court’s decision to grant defendant’s motion to strike this juror for cause. Garland v. State, 263 Ga. 495 (1), 496 (435 SE2d 431).

3. Plaintiff’s motion to supplement the record on appeal pursuant to OCGA § 5-6-41 (f) was properly denied by the trial court. The evidence which plaintiff sought to add to the record was not admitted at trial. “Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to OCGA § 5-6-41 (f). Ray v. Standard Fire Ins. Co. of Ala., 168 Ga. App. 116, 117 (1) (308 SE2d 221) (1983). That section is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Wigley v. State, 194 Ga. App. 7, 9 (7) (389 SE2d 769) (1989).” Harp v. State, 204 Ga. App. 527 (1) (420 SE2d 6). See also Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 311 (7) (381 SE2d 750).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A94A1848.
    ROGERS et al. v. FRED R. HILLER COMPANY OF GEORGIA, INC.
    (448 SE2d 46)
   Blackburn, Judge.

Stuart and Sheila Rogers appeal the trial court’s order granting defendant Fred R. Hiller Company of Georgia, Inc.’s (Hiller Company) motion for summary judgment. In their complaint, the Rogerses alleged the Hiller Company was responsible for personal injury damages resulting from the actions of its employee, Stuart Gal-lacher. On appeal, the Rogerses contend that the existence of genuine issues of material fact preclude the award of summary judgment.

1. In their first enumeration of error, the Rogerses assert that the trial court erred in determining that no issue of material fact remained as to whether Stuart Gallacher was acting within the scope of his employment when he physically assaulted Stuart Rogers. We cannot agree.

“The law provides that the master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will. While this legal principle may be simply stated, its application has proven to be problematic. It has been recognized that the cases involving the issue of an employer’s vicarious liability for the wilful torts of his employees, can only be reconciled by an approach which directs its inquiry, not to authority to commit the tort but to authority to accomplish a purpose in pursuance of which a wilful tort is committed. Thus, the test of liability is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.” (Citations and punctuation omitted.) (Emphasis supplied.) Smith v. Myrick, 205 Ga. App. 339, 340 (422 SE2d 236) (1992).

The record indicates that the physical altercation between Rogers and Gallacher was entirely disconnected from Gallacher’s position as a salesman for the Hiller Company. Rogers and Johnson worked for Western Waterproofing. The Hiller Company is one of Western Waterproofing’s suppliers. The altercation occurred as Rogers and Johnson conducted their daily production meeting. Although he had attended in the past, Gallacher’s presence at the production meetings was not requested or required. The Rogerses contend that Gallacher was present at the production meeting to determine who had been awarded certain projects in order to sell Hiller Company products. However, Johnson testified that Gallacher came into the meeting to settle a personal score.

Gallacher’s actions also indicate that his purpose was of a personal nature. Gallacher entered the office shared by Rogers and Johnson and stated that he had a score to settle with Johnson. Gallacher took off his jewelry and put it in a basket on Johnson’s desk. Johnson told Gallacher to calm down and that he was busy. Gallacher sat down in a chair.

Johnson and Rogers continued to discuss business while Gal-lacher interrupted with questions completely unrelated to business. Although Gallacher did inquire about two business projects, the record is clear that the majority of his participation centered on weight lifting and Gold’s Gym. At one point, Gallacher got onto the floor, simulated weight lifting, and said he could bench press 400 pounds. Rogers said, “It looks like the weight lifting really helped you maintain your shape throughout the years.” Thereafter, Gallacher picked up Rogers’ chair, with Rogers in it, and “crashed” it down into Johnson’s desk. A struggle ensued and Rogers attempted to extract himself from the situation by calming Gallacher. Gallacher then began to “shadowbox” with Rogers. Rogers decided to leave the office; however, Gallacher picked up Rogers and threw him toward the office door. Rogers’ arm went through the glass panel in the door, causing serious injury.

“The question whether or not the servant was at the time acting within the scope of his employment is generally one for the jury; but where, as here, under the evidence submitted on summary judgment no reasonable construction can be drawn except that the servant was not engaged in furtherance of his master’s business but was on a private enterprise of his own, the question must be decided by the court as a matter of law.” (Citations and punctuation omitted.) Jones v. Reserve Ins. Co., 149 Ga. App. 176, 178 (253 SE2d 849) (1979). Gallacher’s assault upon Rogers was not done in the line of his duty or in the prosecution of the Hiller Company’s business. The trial court did not err in granting the Hiller Company’s motion for summary judgment on the Rogerses’ respondeat superior claims.

2. The Rogerses assert that issues of material fact remain as to whether the Hiller Company was negligent in supervising Gallacher. In the Rogerses’ complaint, they allege that Gallacher consumed several alcoholic beverages at lunch with Western Waterproofing employees on the date of the altercation, and that the Hiller Company encouraged Gallacher to entertain customers and consume alcohol during business lunches as part of his overall duties as a salesman. However, Kenny Chaffins, corporate treasurer of the Hiller Company, deposed that the employee manual specifically precluded salesmen from consuming alcoholic beverages with customers. Furthermore, the Rogerses failed to produce any evidence supporting the allegations in their complaint that Gallacher consumed alcohol or that the Hiller Company encouraged such behavior. Therefore, the trial court correctly granted the Hiller Company’s motion for summary judgment on the Rogerses’ negligent supervision claim.

Decided August 4, 1994

Reconsideration denied August 17, 1994

Saveli & Williams, Robert E. Mulholland, Steven R. Thornton, for appellants.

D. Jeffrey Grate, Mary P. Vilmos, for appellee.

3. The trial court did not err in granting the Hiller Company’s motion for summary judgment on Sheila Rogers’ claim for loss of consortium. Loss of consortium claims are derivative rather than direct. As the trial court correctly granted summary judgment on Stuart Rogers’ claims, Sheila Rogers’ claims were no longer properly supported and the trial court was correct in granting the Hiller Company’s motion for summary judgment.

Judgment affirmed.

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


text:
    A94A0993.
    ALLEN v. BLACK et al.
    (447 SE2d 718)
   McMurray, Presiding Judge.

Natalie P. Allen (plaintiff) brought this tort action against Lawrence Black and Katherine Black (defendants) to recover for personal injuries she sustained when, on September 14, 1991, she “fell down an embankment at the Oak View Lodge” in Scaly Mountain, North Carolina. Defendants answered, admitting that plaintiff fell at the premises of the Oak View Lodge, Scaly Mountain, North Carolina, but denied liability and asserted, among other defenses, that the State Court of Fulton County, Georgia, “does not have jurisdiction over the defendants.” After discovery, defendants moved for dismissal, contending that they were not subject to jurisdiction under the Georgia Long Arm Statute.

In support of their motion to dismiss, defendants each deposed that they “reside at 5307 Bay Street Road, Pammetto, Florida . . . and also . . . Scaly Mountain, North Carolina!; that they co-own] the property on which the Oak View [Lodge] is locatedf; and that they] make infrequent trips into the extreme northeast corner of Georgia to purchase certain personal and business items.” They are “out-of-state [members] of the Rabun County, State of Georgia, Chamber of Commerce.” They “advertised Oak View Lodge in the Sunday edition of The Atlanta Journal/Constitution for two 6-week periods in 1991.” These advertisements were placed “by calling the office of The Atlanta Journal/Constitution on the telephone from Oak View Lodge in North Carolina.” Neither defendant “[ever] visited the office of The Atlanta Journal/Constitution to transact any business.”

In reply, plaintiff argued that this same evidence establishes long arm jurisdiction because defendants were transacting business in Fulton County, Georgia, where plaintiff saw and responded to their advertisements in the newspaper. The trial court granted defendants’ motion and dismissed the complaint “without prejudice.” This appeal followed. Held:

In related enumerations, plaintiff contends the trial court erred in dismissing the complaint because defendants’ contract for newspaper advertisements with The Atlanta Journal/Constitution confers personal jurisdiction over her personal injury claim pursuant to OCGA § 9-10-91 (1). That Code section provides: “A court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of [Georgia], if in person or through an agent, he . . . [transacts any business within this state[.]”

This Court has “held ‘that [Code Ann.] § 24-113.1 (a) [now OCGA § 9-10-91 (1)] applies to matters in contract, not to those sounding in tort. . . . Other courts have so construed almost identical statutes. . . [.]’ ” Whitaker v. Krestmark of Alabama, 157 Ga. App. 536, 537 (1) (278 SE2d 116). In the case sub judice, the “litigation arises wholly from allegedly tortious conduct, which conduct and resulting injuries occurred entirely outside of this state [in Scaly Mountain, North Carolina]. No contractual issue is present whatsoever. [Plaintiff’s] assertion that the trial court had personal jurisdiction over [these North Carolina defendants] pursuant to Code [Ann.] § 24-113.1 (a) [now OCGA § 9-10-91 (1)] is therefore misplaced and without merit.” Whitaker v. Krestmark of Alabama, 157 Ga. App. 536, 537 (1), 538, supra. See also Lutz v. Chrysler Corp., 691 F2d 996 (11th Cir. 1982). Compare Dora-Clayton Agency v. Forjay Broadcasting Corp., 193 Ga. App. 340, 341 (1) (387 SE2d 617). Plaintiff’s reliance upon Porter v. Mid-State Homes, 133 Ga. App. 706 (213 SE2d 10) is misplaced. In Porter, this Court held that, in an action to recover money allegedly paid under duress, the non-resident assignee of a security deed to real property in DeKalb County, Georgia, was subject to personal jurisdiction because “the claim arose out of the defendant’s ownership of real property within Georgia.” Porter v. Mid- State Homes, 133 Ga. App. 706, 707 (1), supra. OCGA § 9-10-91 (4) provides a specific and separate jurisdictional basis over a non-resident who “[o]wns, uses, or possesses any real property situated within [Georgia].” Accordingly, Porter v. Mid-State Homes, 133 Ga. App. 706, supra, is not authority for the proposition that a single contract for in-state newspaper advertising authorizes the exercise of jurisdiction over non-resident defendants arising out of personal injuries received entirely out-of-state. In the case sub judice, the trial court correctly dismissed plaintiff’s personal injury complaint for lack of personal jurisdiction. OCGA § 9-11-12 (b) (2).

Decided August 17, 1994.

John H. Ridley, Jr., for appellant.

Saveli & Williams, Michael K. Jablonski, Steven R. Thornton, for appellees.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A94A1629.
    FINLEY v. THE STATE.
    (448 SE2d 78)
   Andrews, Judge.

Finley appeals from the judgment entered on his jury conviction for the offense of selling cocaine in violation of OCGA § 16-13-30 (b).

1. Finley claims the trial court erroneously denied his motion for a directed verdict of acquittal made after the close of evidence in the case on the basis that the State failed to rebut his prima facie showing of entrapment.

Under OCGA § 16-3-25 “[a] person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for the commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” A defendant presents a prima facie case of entrapment by admitting the commission of the crime and presenting evidence in support of three distinct elements: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.” Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984). “Once the defendant presents a prima facie case of entrapment, the burden shifts to the State to disprove entrapment beyond a reasonable doubt. [Cit.] That determination generally rests with the jury and only when there is no conflict in the evidence and all evidence demands a finding of entrapment must the trial judge direct a verdict of acquittal. [Cit.]” Gibson v. State, 212 Ga. App. 301, 302 (441 SE2d 803) (1994).

. The State presented evidence that as a result of a GBI undercover investigation and information obtained from a confidential informant, the GBI had reason to believe that Finley’s son was selling cocaine. Accompanied by an informant who knew Finley and his son, an undercover GBI agent went to Finley’s residence, where Finley’s son also resided. Upon their arrival, Finley told the informant that his son was not home. The GBI agent testified that the informant introduced him to Finley, who at the time was in the process of lighting a smoking device for use with cocaine. The agent testified that Finley asked him, “What are you looking for?” and the agent responded, “I’m looking for a couple of slabs,” which the agent testified was a slang term for crack cocaine. Finley said he did not have a couple of slabs but he produced a small plastic bag of cocaine. When the agent asked him if he would be willing to sell the bag of cocaine, Finley weighed it on scales located on a nearby coffee table and determined that the bag weighed 1.3 grams. The agent asked Finley how much he wanted for the cocaine and Finley replied that he wanted $110. The GBI agent testified that he offered $100 and Finley accepted and sold him the cocaine. The informant, who was also present during the sale, did not testify at the trial.

Finley testified and admitted possessing cocaine and selling it to the undercover agent. He testified that, although he used cocaine, he had never sold it before this incident. He claimed that the informant suggested he sell the cocaine in his possession and that, in response to this suggestion, he told the informant and the agent that he did not sell cocaine but only kept it for his own use. Finley further testified that the State’s informant, who had befriended him for several months and had purchased cocaine from his son, not only suggested the sale but also induced him by undue persuasion to sell the cocaine to the undercover agent.

Although Finley’s testimony provided evidence of entrapment, this evidence was rebutted by other evidence, including the testimony given by the GBI agent who purchased the cocaine, that Finley was predisposed to commit the crime and willingly cooperated in the sale. Although Finley contends that, without the testimony of the informant, the State failed to rebut the evidence of entrapment, there is no “per se rule that a defendant is entitled to a directed verdict where the informant is not called to rebut the defendant’s testimony of entrapment. A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in [OCGA § 17-9-1], would demand a finding of entrapment and,., therefore, a directed verdict of acquittal.” (Footnote omitted; emphasis supplied.) State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981); Timberlake v. State, 200 Ga. App. 64, 68 (406 SE2d 537) (1991). Since the evidence in this case did not demand a finding of entrapment, the trial court properly denied Finley’s motion for a directed verdict of acquittal and allowed the jury to resolve the issue. Gibson, supra at 302-303; Evans v. State, 209 Ga. App. 340, 341 (433 SE2d 426) (1993); Seabrooks v. State, 164 Ga. App. 747 (297 SE2d 745) (1982); compare Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350) (1992).

Decided August 17, 1994.

Anthony E. Cheatham, for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee.

2. The trial court gave the charge on entrapment contained in Vol. II, Suggested Pattern Jury Instructions published by the Council of Superior Court Judges and added two charges stating: “Repeated requests by an officer or agent for contraband goods does not constitute undue persuasion. Entrapment is seduction or improper inducement to commit a crime and is not merely testing by trap, trickiness, or deceit of one who is suspected.”

Finley contends that the first of the added charges, although a correct statement of law, was misleading and burden-shifting and that the second charge was misleading and inaccurate. The additional charges were correct legal statements (see Evans, supra at 341; Jordan v. State, 211 Ga. App. 86, 93 (438 SE2d 371) (1993)), and the charge on entrapment as a whole fully and accurately informed the jury of the elements of the entrapment defense. Id. at 93. There was no error.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A1721.
    TURNER v. THE STATE.
    (448 SE2d 82)
   Blackburn, Judge.

This is the second appearance of this case before us. In Turner v. State, 210 Ga. App. 328 (436 SE2d 66) (1993), we affirmed Turner’s conviction of one count of the sale of cocaine and remanded the case for consideration of Turner’s ineffective assistance of counsel claim. Turner now appeals the trial court’s denial of his ineffective assistance of counsel claim.

Decided August 17, 1994.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

“Defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel. A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Gibbs v. State, 213 Ga. App. 117, 118 (443 SE2d 708) (1994).

On appeal, Turner asserts his counsel was ineffective in that the fee arrangement entered into with his trial counsel was a contingent fee arrangement. The evidence indicates that Turner’s trial counsel was handling a civil case for Turner at the time of Turner’s arrest. Turner agreed to pay his counsel a $500 retainer and $100 per hour for counsel’s work on the criminal case. Turner’s counsel did not receive the retainer initially, but agreed to take his fee from the settlement money obtained in the civil matter.

This is not a contingent fee arrangement. Turner agreed to pay counsel’s hourly rate regardless of the outcome of the criminal matter. Furthermore, Turner has failed to satisfy his burden of showing that his counsel’s performance was deficient, and that he was prejudiced by such deficiencies. See id.

Judgment affirmed.

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


text:
    A94A1850.
    JOHNSON v. THE STATE.
    (448 SE2d 80)
   Andrews, Judge.

Robert Johnson was tried and convicted of one count of selling cocaine and appeals.

Evidence at trial was that Officer Piper of the Monroe County Sheriffs Department was assigned to assist Officer Williams of the Butts County Sheriff’s Department in an undercover drug investigation in Butts County. At about 5:00 p.m. on February 6, 1993, Piper, who was undercover, was driving in the area to which he had been assigned, when he observed a person waving his vehicle down. Piper rolled his window down and the person offered to sell Piper $20 in crack cocaine. Piper stated that the person leaned into his car to transact the sale and that Piper observed his appearance during the ten to fifteen second transaction.

Piper then went to a prearranged location to meet Williams. Piper’s written report from the undercover buy stated that the suspect was a black male, who was 5'8" to 5'10" tall and weighed 180 to 200 pounds, and that he was wearing a red cap, red button-up sweater, and a white Falcon tee-shirt with the words written in red letters. Piper gave Williams this description and Williams then went to tour the area from which the drugs had been bought. Williams ascertained the identity of the drug seller, returned to Piper, and showed him several photographs, from which Piper selected the photograph of Johnson. Piper positively identified Johnson at trial as the man from whom he bought the drugs.

Williams testified at trial that about 15 minutes after the buy, Piper told him that he had purchased suspected cocaine from a black male who was wearing a red baseball cap, a red and white long sleeved sweater with “Atlanta” on it, blue jeans, and white tennis shoes. Piper told him that the person had a goatee and a long chin, was between 5'8" to 5'10" in height and weighed 180 to 200 pounds. After Williams received this description, he rode in the vicinity of the drug purchase and saw a black male who fit the description given by Piper. Williams identified this person as Robert Johnson.

Williams testified that he then selected five to six photographs of individuals who fit Johnson’s description. Williams showed Piper the photographs about 30 minutes after the buy and Piper positively identified Johnson from the photographic line-up. On cross-examination, Williams admitted that at a hearing on August 13 (of which there is no transcript) the picture of Johnson which Piper selected was omitted.

1. In his first and second enumerations, Johnson claims that the court erred in denying his motion to suppress the pre-trial and in-court identification of him.

On September 2, 1993, the court held its hearing on the motion to suppress, at which Piper testified that he had purchased the drugs from a black male who was about 5'6" to 5'8'\ The remainder of Piper’s description was the same as that to which he testified at trial. At the hearing, Piper stated that he was about one foot away from the person who sold him the cocaine, that the area was light, and that he studied the person carefully during the buy. Piper recalled that he had no difficulty identifying Johnson’s photograph during the line-up and that there was nothing to make Johnson’s photograph stand out from the others. Piper identified Johnson at the hearing and stated that he could identify Johnson “without a doubt.” On cross-examination, Piper stated that he had reviewed the photographic line-up before the hearing and that he again had identified Johnson.

Officer Williams’ testimony at the hearing was quite similar to his trial testimony. Williams verified the pictures which he had shown Piper, and stated that he had kept all of them together in an envelope.

The court ruled that the pre-trial identification was admissible and that nothing had been done to taint the in-court identification. The court found that Piper had sufficient time to view the perpetrator at the time the transaction took place; that the transaction took place in good daylight; that Piper was a trained officer and had conducted many of these types of investigations; and that he had written down a detailed description.

Here, Johnson argues that the photographic line-up was imper-missibly suggestive and that there was a substantial likelihood of irreparable misidentification. He argues that the manner of selecting the photographs, the fact that the photographic array could not be reliably reconstructed and the absence of persons similar in appearance to him made the line-up impermissibly suggestive. Johnson argues that Piper had only a brief opportunity to view the accused, and that his degree of attention is suspect based on generalities, mistakes and inconsistencies in his description. Johnson argues that procedural irregularities, such as the fact that Williams could not satisfactorily explain why the photograph of Johnson was missing on August 13, 1993, should bar the pre-trial identification. Johnson also contends that the court erred in allowing the in-court identification, since there was no independent basis for that identification.

With regard to the photographic line-up, “[c]onviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Daniels v. State, 207 Ga. App. 689, 691 (4) (428 SE2d 820) (1993). “The test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the identification, and (e) the length of time between the crime and the identification.” (Citations and punctuation omitted.) Smith v. State, 209 Ga. App. 540, 543 (4) (433 SE2d 694) (1993). Despite Johnson’s arguments, we find no fatal irregularity in the fact that his photograph was allegedly missing from the assembled group on August 13. After reviewing the record, it does not appear that either the photographs or the procedures used were so impermissibly suggestive as to cause a very substantial likelihood of irreparable mis-identification. Accordingly, the trial court did not err in denying the motion to suppress the pretrial identification.

Decided August 17, 1994.

Hemmann & Hemmann, Paul E. Hemmann, for appellant.

Tommy K. Floyd, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

“Assuming arguendo that some taint occurred in the pretrial identification, a witness’ in-court identification may be admitted if it has an independent origin.” (Citations and punctuation omitted.) Smith, supra at 543. We find that Piper’s identification had an independent origin and thus, his in-court identification was properly allowed. Because of these findings, we reject Johnson’s argument that the trial court should have excluded the identification since his counsel was not present when Piper viewed Johnson in jail the morning of trial. See generally Foster v. State, 160 Ga. App. 326 (287 SE2d 323) (1981).

2. In his third and fourth enumerations, Johnson argues that the court erred in denying his motion for a directed verdict of acquittal and that the evidence was insufficient to convict.

For the reasons stated in Division 1 above, the identification testimony was properly admitted. There was no error in the denial of the motion for directed verdict. Reed v. State, 205 Ga. App. 209, 211-212 (4) (422 SE2d 15) (1992). Moreover, we find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A94A1004.
    A94A1005.
    POPE et al. v. THE STATE. BUNN et al. v. THE STATE.
    (448 SE2d 54)
   Smith, Judge.

Jessie L. Pope, Pope Brothers Logging Company, (“the Popes”), Frank L. Bunn, Frank Leslie Bunn, Jr., John Bunn, and Bunn Logging, Inc. (“the Bunns”) appeal the trial court’s denial of their motions to dismiss and pleas in bar pursuant to OCGA § 17-7-170.

On July 31, 1992, during the March 1992 term of court, appellants and others were indicted by the Upson County grand jury under the Georgia RICO statute, OCGA § 16-14-4. Appellants filed demands for trial on August 21,1992, during the August 1992 term. Appellants, among others, moved to quash the indictment. The Bunns were reindicted on March 26, 1993, and filed no additional demands for trial.

On October 26, 1992, still within the August 1992 term, the trial court entered an order granting the motions to suppress evidence and quash the indictments made by the defendants, including appellants, and the State appealed. In State v. Adams, 209 Ga. App. 141 (433 SE2d 355) (1993), a previous appearance of this matter, this court reversed the trial court’s order quashing the indictments and declined to consider the order suppressing evidence. The remittitur was made a judgment of the trial court on August 9, 1993, during the March 1993 term.

The August 1993 term began on August 16; the November 1993 term began on November 1. Appellants’ motions for discharge and acquittal were denied on January 6, 1994, during the November 1993 term.

1. Appellant John Bunn was not named in the first indictment. The record shows no demand for trial on his behalf on either indictment, and he was not a party to the Bunns’ motion for discharge and acquittal. Nor was he a party to the trial court’s order denying the motions to dismiss and pleas in bar. There is nothing presented for review with respect to this appellant.

2. These appeals are controlled by our decision in Fletcher v. State, 213 Ga. App. 401 (445 SE2d 279) (1994), involving others under the same indictment. Appellants’ motions to quash the indictment tolled their trial demands in the same term during which they were filed. Six days remained in the March 1993 term on August 9, 1993, the date the remittitur was made the judgment of the trial court. However, that term did not constitute one of the two terms during which appellants were required to be tried under OCGA § 17-7-170, because the clerk of court testified that no juries were impanel-led and qualified to try appellants in the final six days of the term. Even if a special term of court were ordered, ten days would be required to prepare the summons and paperwork. The two terms during which appellants were required to be tried under OCGA § 17-7-170 had not elapsed, and the trial court did not err in denying appellants’ motions for discharge and acquittal.

Decided August 5, 1994

Reconsideration denied August 18, 1994

Haygood, Lynch, Harris & Melton, C. Robert Melton, for appellants.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, J. Philip Ferrero, Assistant Attorney General, Joe L. Chambers, Patrick D. Peering, for appellee.

Judgments affirmed.

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

       There are three terms of Superior Court in Upson County, beginning on the third Monday in March and August and the first Monday in November. OCGA § 15-6-3 (19) (D).

       Because appellants’ motions for discharge and acquittal were premature in any event, we need not reach the issue of whether the Bunns’ failure to refile a demand for trial upon reindictment rendered their demand ineffective as to the second indictment. See Dean v. State, 180 Ga. App. 770 (350 SE2d 489) (1986).


text:
    A94A1080.
    HEATON v. THE STATE.
    (448 SE2d 49)
   Blackburn, Judge.

Following a trial by jury, the appellant, Charles Edward Heaton, was convicted of two counts of aggravated assault and one count of terroristic threats. This appeal followed.

1. In his first three enumerations, which he argues collectively, Heaton contends that the trial court erred in denying his motions for a directed verdict and a new trial on the terroristic threats charge because of a fatal variance between the allegata and probata. Specifically, he maintains that there is no evidence that he threatened to assault Barbara Mitchell with a gun. Heaton asserts that the State’s evidence showed that he was not in possession of a gun at the time of their confrontation, and during his testimony, he denied that he was in possession of a gun at the time that he talked to Mitchell.

Heaton’s argument is without merit. Viewing the evidence in the light most favorable to the verdict, the jury could have found beyond a reasonable doubt that Heaton was in possession of a gun immediately before and during the confrontation with Mitchell. See Clemmons v. State, 210 Ga. App. 632 (437 SE2d 350) (1993); Hood v. State, 192 Ga. App. 150 (1) (384 SE2d 242) (1989). The indictment charged Heaton with the offense of terroristic threats and acts for threatening an aggravated assault against Mitchell with the purpose of terrorizing her. Both Mitchell and another witness who was present during the confrontation testified that Heaton went up to Mitchell and threatened to blow her head off after Mitchell questioned him concerning his assault of her son and another youth. Although there is evidence that Heaton gave the gun to a friend as he was approached by Mitchell, there is also evidence that the gun was returned to Hea-ton and was in Heaton’s possession during the confrontation. Accordingly, there is no fatal variance between the allegation and the proof. Clemmons, supra.

2. Next, Heaton maintains that the trial court erred in excluding the testimony of Tommy Lowe concerning prior bad acts committed by one of the assault victims, asserting that this testimony was admissible for impeachment purposes. Although OCGA § 24-9-84 provides that a witness may be impeached by a showing of general bad character, specific acts of bad character are not admissible. Gresham v. State, 169 Ga. App. 525 (2) (314 SE2d 111) (1984). The proffered testimony of Tommy Lowe related solely to specific bad acts and not to the general bad character of the victim. Therefore, the testimony was not admissible.

3. Relying on OCGA § 24-9-68, Heaton argues in his fifth enumeration of error that the trial court erred in denying him the right to examine certain witnesses to show their gang affiliations. Although the proffered testimony showed that a gang made threats against Heaton based upon his refusal to become a member, the testimony did not relate to the state of the victim’s feelings toward Heaton or the victim’s relationship with Heaton, and hence, was inadmissible under OCGA § 24-9-68. See Lott v. State, 206 Ga. App. 886 (2) (426 SE2d 667) (1992).

4. Next, Heaton argues that the trial court erred in excluding testimony offered by defense witnesses on the circumstances immediately surrounding the incident which would explain his subsequent conduct. However, any error in excluding this testimony was harmless since Heaton testified without objection on the circumstances which prompted his conduct. Hence, the testimony would have been cumulative. DeBerry v. State, 241 Ga. 204 (3) (243 SE2d 864) (1978).

5. Heaton further argues that the trial court erred in failing to charge the jury on justification and defense of others. However, because Heaton denied making any terroristic threats to Mitchell and denied assaulting the other victims, neither charge was authorized by the evidence. See McCranie v. State, 172 Ga. App. 188 (2) (322 SE2d 360) (1984).

6. Lastly, Heaton asserts that the trial court erred in charging the jury that “[m]oral and reasonable certainty is all that can be expected in a legal investigation.” Specifically, he maintains this charge was confusing and authorized the jury to apply a lesser standard of proof than guilt beyond a reasonable doubt. This language was specifically disapproved by the Supreme Court in Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992) and should not be used in the future. As in Vance, the court’s charge as a whole in the case sub judice repeatedly and accurately conveyed to the jury the concept of reasonable doubt. In light of the evidence against Heaton, the use of this prohibited language, when considered in the context of the entire charge, created no reversible error. Id. See Swayzer v. State, 263 Ga. 689 (2) (436 SE2d 652) (1993); Beck v. State, 211 Ga. App. 125 (3e) (438 SE2d 391) (1993).

Decided August 4, 1994

Reconsideration denied August 18, 1994.

Paul S. Weiner, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A1103.
    WATTS v. ALLSTATE INSURANCE COMPANY.
    (448 SE2d 55)
   Smith, Judge.

Ernestine Watts, a resident of Bibb County, brought suit against Ernestine Daniel, a California resident, in the State Court of Bibb County, seeking recovery for damages incurred in an automobile accident that occurred in California. Daniel was served by publication. Watts also served her uninsured motorist insurance carrier, Allstate Insurance Company, through its registered agent. Allstate answered in its own name, admitting that Watts was its insured, but denying the jurisdiction of the trial court. Allstate subsequently filed a motion to dismiss, which was granted.

Watts contends the trial court erred in granting Allstate’s motion to dismiss. She argues that service on Daniel by publication was proper because of certain language in OCGA § 33-7-11 (e) providing for service by publication upon out-of-state defendants. She further argues that under Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992) and Norman v. Daniels, 142 Ga. App. 456 (1) (236 SE2d 121) (1977), it was improper to dismiss the action when service had been perfected against the UM carrier.

Watts misunderstands the statute and the holdings in these cases. Subsection (e) of OCGA § 33-7-11 does not create new rights for plaintiffs to sue uninsured motorists; it merely provides procedures whereby plaintiffs may recover their losses from their own insurers subject to rights granted under other laws. Houston v. Doe, 136 Ga. App. 583, 584 (1) (222 SE2d 131) (1975). OCGA § 33-7-11 (e) provides that where .the owner or operator of a vehicle causing injury or damage is known but resides out of this state, a judge may grant an order for service by publication and a copy of the action shall be served upon the UM carrier. Implicit in this statute is that it applies only where jurisdiction is otherwise proper in Georgia.

Decided August 5, 1994

Reconsideration denied August 18, 1994

Dozier, Akin, Lee & Graham, L. Z. Dozier, Jr., for appellant.

Bonnie K. Cole, for appellee.

As pointed out by Allstate, ever since Pennoyer v. Neff, 95 U. S. 714 (24 LE 565) (1877), it has been axiomatic that plaintiffs are not free to bring suit wherever they choose. With the expansion of commerce in this country and the population’s increasing mobility, the states’ authority to exercise personal jurisdiction over nonresidents has been significantly expanded. Intl. Shoe Co. v. Washington, 326 U. S. 310 (66 SC 154, 90 LE 95) (1945); Marbury v. Marbury, 256 Ga. 651, 654-655 (352 SE2d 564) (1987). However, the power of state courts to exercise personal jurisdiction over defendants in civil actions must always be tested against the guarantees of fairness and justice embodied in the due process clauses of the federal and state constitutions. A defendant may not be called upon to defend himself in a foreign tribunal unless he has done some act by which he avails himself of the benefits and protections of that jurisdiction’s laws. Id.

Georgia courts may exercise jurisdiction over Georgia residents, of course. Their jurisdiction also extends to “[a] person who is not a citizen of this state, passing through or sojourning temporarily in the state.” OCGA § 9-10-33. Under our Long Arm Statute, OCGA § 9-10-90 et seq., Georgia courts also have authority to exercise jurisdiction over nonresident defendants based upon certain “minimum contacts” with the state, as set forth in OCGA § 9-10-91. Pursuant to the Nonresident Motorists Act, OCGA § 40-12-1 et seq., nonresidents who are involved in accidents occurring within this state may be sued in Georgia courts on the theory that by using our highways nonresidents consent to be sued in Georgia. OCGA § 40-12-1 (a).

Daniel is not a Georgia resident and she does not fall within any of the categories set forth in these statutes. She has not had even minimum contacts with this state and has not performed any act by which she availed herself of the benefits or protections of Georgia’s laws. It would, therefore, offend the constitutional guarantee of due process to allow Watts to bring suit against her in Georgia. The trial court did not err in dismissing Watts’ complaint.

Judgment affirmed. Pope, C. J., and McMurray, P. J., concur.