text:
    A01A0802.
    FORD v. SMITH et al.
    (546 SE2d 346)
   Eldridge, Judge.

This is an appeal from the Superior Court of Fulton County’s grant of summary judgment to plaintiffs Bryan Smith et al. (“appellees”) in their negligence suit against defendant Patrick J. Ford. For the reasons that follow, we reverse.

Viewing all facts and inferences in a light most favorable to the nonmovant, Ford, the record shows that the instant case stemmed from the actions of Alan Lloyd Schall, who established a group of companies, collectively “Ecotech,” in the fall of 1995. Schall promoted Ecotech as providing allegedly soon to be legally mandatory lead-based paint inspections prior to real estate purchases. Ecotech purportedly offered a “Safe Seal” certification of inspection that would, according to Schall, prove to be invaluable/necessary in the sale of environmentally safe homes.

In advancing the sale of licenses to conduct Ecotech inspections, Schall advertised nationally, sending out information packets containing, inter alia, brochures which made representations about the volume of Ecotech’s business; about the benefits of using “Safe Seal” to market environmentally sound homes; and about the extensive technical and marketing support that would be provided to license purchasers.

Appellant Ford is a bartender at Café 290, a restaurant that has a bar patronized frequently by Schall. Ford also worked a second job as a realtor in the Sandy Springs office of Prudential Realty of Georgia, Inc. (“Prudential”). Over the course of multiple conversations at the Café 290 bar, Schall told Ford about his Ecotech business, explaining the benefits of the “Safe Seal” certification in relation to lead-based paint contamination. Schall sent Ford his advertising packets touting Ecotech’s services. As a part-time realtor, Ford was aware of the controversy surrounding lead-based paint. He discussed the inspection company with colleagues in his Prudential office, showed them the advertising packets, and offered them the use of a limited number of free inspection coupons that Schall had given him. Ford also spoke with clients and “people at the bar” about Ecotech. He encouraged his clients to call Ecotech’s office for more information about its service.

Over the course of many conversations with Schall at Café 290, Ford decided that he wanted to be a part of Ecotech because, “wow, this thing is going to be hot.” Due to the lead paint contamination stories that were highlighting the news cycle at the time, Ford decided that Ecotech’s inspections would become legally mandatory and that Ecotech’s services would then be required; to Ford, Ecotech “looked like it could have been something that could have led to money in the future.” In his desire to affiliate himself with the potentially profitable Ecotech services, Ford agreed when Schall asked him to write a letter recommending the environmental inspection services offered by Ecotech:

I thought that it was a good service. I did not mind writing the letter. I did not mind helping Alan out. If this thing took off, and I did believe it took off, I did not have money to invest in it; and I don’t know if I believed in it enough to throw in [$] 50,000 or whatever, but I thought it was big. I thought it was going to be big enough that I wanted to keep my foot in the door.

On Prudential letterhead, Ford wrote a letter addressed to Schall and expressing his belief that Ecotech’s environmental inspection services were highly desirable in the marketing of homes:

Thank you for sending me the information packets on your new environmental inspection service. I have shared the information with my clients and with other Realtors in my office and the response has been impressive. You are undoubtedly aware of this from the many people I have had call your office for more information. Your service will fill a niche that has surprisingly been overlooked until now. Throughout our industry more laws are being passed to protect the Home Buyer with better representation of responsibility to the Home Buyer insuring that we will look out for their best interest. The Environmental Protection Agency is also playing a tougher role by enacting new laws requiring that homes meet even safer guidelines. Since I specialize in Buyer Agency, any service that exposes potential problems and certifies all safe areas is of enormous value to the continued success of my business. I am given the task of finding the perfect home for my clients. Beyond finding the right sized home in the right location for a good price, your inspections will guarantee that I cross more finish lines by detecting unseen hazardous conditions. These are real concerns that a growing number of home owners are becoming aware of, and I believe that these inspections will prove to be a part of all future home sales.

In addition, Schall asked Ford to provide a house or houses to use for demonstrations of Ecotech’s inspections to potential license buyers so that they could “learn how to do an inspection.” Schall told Ford that he would provide free inspections to the owners who allowed their homes to be used for demonstrations. As a favor to Schall, Ford agreed and arranged with several of his friends to use their homes for Ecotech demonstrations in exchange for a free inspection.

Thereafter, when potential license buyers came to Atlanta for training in Ecotech inspections, Ford was contacted; he met the potential license buyers and the inspection trainer at the Ecotech office; and, driving alone, Ford led the trainer and potential license buyers to a demonstration house so that the inspection techniques could be taught. Ford had little interaction with the prospective license purchasers, was not involved in the demonstration process, and made no representations about Ecotech as a license opportunity.

For his cooperation, Schall would leave large bar tips for Ford:

So when he would come and visit me in bartending, he would tip. A lot of times he would tip a lot of money. I was on the assumption that he did have a lot of money. ... It seemed to me like the guy had a lot of money. When he would come at the bar, he would have a couple of drinks. He would sometimes — it wouldn’t be odd for him to throw down a hundred dollar bill and say keep it. . . . So, in essence, it was a bar tip, but he was probably saying thanks for helping me out also.

Sometimes Schall, whom Ford described as a “horrible alcoholic,” would walk out on a Café 290 bar tab and pay Ford when Ford next saw him at the Ecotech office: “I went to see him the next day, and he said, ‘Oh, I owe you for a tab,’ and he went ahead and slid a couple hundreds my way.”

Additionally, Schall had previously told Ford that he would be in the market to buy a house in the near future. By doing favors for Schall, Ford hoped to act as Schall’s agent and obtain the commission for what Ford was sure would be an expensive new home purchase.

However, as it turned out and allegedly unbeknownst to Ford, Schall had removed Ford’s name from the letter Ford wrote and put the letter in his advertising packets, describing it as a recommendation from a Prudential agent who had actually used Ecotech and found that an Ecotech “Safe Seal” certification in fact boosted Prudential’s home sales significantly. Also allegedly unbeknownst to Ford, Schall told the visiting potential license purchasers that the houses to which Ford took them were actually listed for sale; that the home owners had actually purchased Ecotech’s inspection service; and that they were witnessing an actual, purchased Ecotech inspection.

As a result of these misrepresentations and others, many of the visiting potential license purchasers, i.e., appellees, bought Ecotech licenses and suffered money losses of various amounts when it became apparent that, contrary to Schall’s representations, Ecotech was an illusory company; there was no legal need or market for environmental inspection services; there was no technical or marketing support for Ecotech license purchasers; and, without explanation, Ecotech folded in early 1997.

Appellees filed suit against Schall and Ecotech for fraud and against Ford and Prudential for negligence. The case went to trial before a jury in January 1999. During trial, appellees introduced Ford’s letter to Schall, evidence that Schall gave Ford large “tips” for his cooperation, and evidence that Ford took appellees to various houses in order to witness inspections. A large portion of the evidence of Ford’s culpability came from a former Ecotech “employee,” Marc Glaser, who testified for appellees about Ford’s acceptance of money from Schall and Ford’s apparent knowledge of Schall’s activities.

At trial, Ford was called for cross-examination during the appellees’ case, and he also testified in his own behalf during the defense case. He offered explanation for the letter to Schall, claiming he did not know to what purpose Schall would put the letter:

You know, I never really thought of what he would be using it for, but at the time he was just starting the business, and I thought that he, that he wanted a letter just from a realtor saying that this was a good service. That’s as far as I thought in my head. It took no time to write the letter. He had told me about the business. What he was going to be doing. How people were being trained in Georgia Tech. When he said Georgia Tech, I was like, wow, this guy must be for real. When I started hearing things from lawyers saying that, you know, this [lead-based paint contamination] was going to be a big problem. You really have to watch out for it. I thought, wow, this sounds like a good idea. He asked me would you write me a letter. No problem. I will write you a letter. Took me about ten minutes, ten minutes to write. I did put it on Prudential stationery. I didn’t put it on Café 290 stationery. Maybe I should have, but I put it on Prudential stationery, and I gave it to him.

Ford testified that he believed that what he said in the letter was true:

When I was writing this letter, I did not make any intention of making any false statements. I would not have done that in reading, so I still do not believe that anything I have said in this thing is false or misleading. ... I had no idea whatsoever. If somebody was thinking that it might be a good service, I bought into it. I believed it, and I would have told. I stand — I stood behind it. . . . He had asked me to write a letter. As far as me thinking when I did that, I wrote a letter, and that was as far as I thought. I believed what I wrote. So that was it.

Ford testified that he thought the “inspections” were simply demonstrations for teaching purposes and he was not aware that Schall had told the appellees otherwise:

It was explained to me by Alan that he needed a house to use to teach people how to do inspections. It made sense to me. He was telling me that people were going to come in. They were thinking about getting into the business. So he was going to show them his operation. He was going to show them what his office was like, how they did everything in his office, and then he was going to teach them how, teach them how to do a demonstration or teach them how to do an inspection.

Ford testified that he had little contact or conversation with appellees and that they were mistaken if they believed Ford told them he actually used Ecotech or made representations about Ecotech, itself, as opposed to stating his belief in the type of environmental service Ecotech purported to offer. Ford testified that Glaser was “lying” about Ford’s involvement in and/or knowledge of Schall’s misrepresentations to appellees: “If you are [asking] if it was Marc telling the truth, I would think that everything that came out of the guy’s mouth was a lie.”

In addition, during cross-examination of the appellees, Ford attempted to establish appellees’ failure to exercise due diligence in ascertaining the viability of Ecotech, such as requesting and reviewing financial statements, data, or tax returns; conducting a market analysis; or independently confirming the multiple representations made in the license advertising packets.

Ford’s defense was that he was a “pawn” who was taken in and used by Schall, just as the appellees were; that Ford had no legal duty to appellees that was violated by his unwitting, voluntary favors to Schall; and that Ford’s unwitting actions were not the proximate cause of appellees’ money loss; Schall’s misrepresentations as to Ford’s actions were. In addition, the trial court charged the jury on comparative negligence and contributory negligence.

The jury found for appellees as to their fraud claim against Schall and Ecotech. However, the jury found in favor of Ford and Prudential as to appellees’ negligence claim. The trial court granted appellees’ motion for new trial as to Ford only. Thereafter, the trial court granted appellees’ motion for summary judgment against Ford. In that regard, the trial court concluded that there was no material issue of fact for jury determination and that the previous jury verdiet, “inexplicably” in Ford’s favor, must have been the result of either confusion over the jury charge or emotion. Held:

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.

Notably, in this case the jury found for Ford. And while the trial court obviously disagreed with the jury’s verdict and granted appellees’ motion for new trial — an act which calls for a standard of review attributing deference to the trial court’s determination — that is not the posture in which this case comes to us. The trial court then went further and granted appellees’ motion for summary judgment, in essence directing a verdict for appellees. In both such instances, summary judgment and directed verdict, the evidence of record and all reasonable inferences drawn therefrom are viewed in favor of Ford.

Here, in so viewing the evidence, there are material issues of fact as to: (1) whether there existed a legal duty on Ford’s part toward appellees; (2) whether Ford’s belief in Ecotech’s services and his “favors” for Schall with regard thereto can be considered a deviation from a standard of ordinary care when appellees — one of whom was a licensed real estate agent, one of whom was married to a licensed real estate agent, and two of whom were employed in occupations associated with environmental inspections — allegedly exercised due diligence, yet failed to uncover Schall’s “Ecotech” scheme; and (3) whether Ford’s actions, when stripped of the misrepresentations allegedly placed on them by Schall, were the proximate cause of appellees’ injuries. The resolution of these issues turns on whether one believes Ford’s version of events or that of appellees. Under the facts of record, questions also arise as to how much responsibility appellees bear for their own predicament by the failure to exercise sufficient due diligence before investing in Ecotech, thereby making applicable a jury’s consideration of contributory negligence and comparative negligence. Clearly, regardless of the trial court’s speculation about the reasons for the jury’s verdict, the record — including the prior verdict — shows that “reasonable minds can differ” as to the conclusion that should be reached in this case. “On the record before us, it is for the jury to determine whether more credit is to be given to the [appellees’ evidence] than to appellant [’s]. Where a question of credibility arises as to a material issue, summary judgment should not be granted.”

Decided February 28, 2001

Owen, Gleaton, Egan, Jones & Sweeney, Philippa V. Tibbs, Goetz & Zahler, Charles M. Goetz, Jr., for appellant.

Austin & Sparks, John T. Sparks, Malcolm & Schroeder, John G. Malcolm, Robert F. Schroeder, for appellees.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       Joe Garrick, Gary Holst, William Holloway, Allan Maged, Waldo Gabaldon, Larry Bradley, Phil Walsh, James Wright, Joel Lowman, Timothy McDaniel, Jerry Fox, Robert Wager, Robby Cardwell, Rodger Fordham, Dean Spainhower, and Steven McKay.

        Jordan v. Atlanta Replex Corp., 228 Ga. App. 670, 672-673 (492 SE2d 536) (1997).

       Ecotech Environmental Inspectors, Inc.; Ecotech Environmental Inspectors Metro Atlanta, Inc.; and Safe Environment Certification Services, Inc.

       During the course of the trial, Schall — who was acting pro se — absented himself from the trial and was not seen again. In its order granting summary judgment to appellees, the trial court opined that the jury’s verdict may have been the result of their belief that Ford would have to pay the entire amount of damages if they found against him.

        Tuggle v. Helms, 231 Ga. App. 899, 901 (499 SE2d 365) (1998).

       (Citation and punctuation omitted.) Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

       OCGA § 5-5-50.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also K-Mart Corp. v. Jackson, 239 Ga. App. 176 (521 SE2d 93) (1999) (“In reviewing the trial court’s [grant] of a motion for directed verdict, we construe the evidence most favorably to the party opposing the motion, and we will. . . reverse the ruling unless the evidence and all reasonable deductions therefrom demand a particular verdict.”).

       (Citations and punctuation omitted.) Hill v. All Seasons Florist, 201 Ga. App. 870, 872 (412 SE2d 619) (1991).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A0854, A01A0863.
    COPELAND v. THE STATE (two cases).
    (546 SE2d 351)
   Eldridge, Judge.

Under indictment no. 99CR1657, Elmore Lamar Copeland was charged with two counts of first degree forgery for possessing (1) a Georgia State Department of Motor Vehicles (“DMV”) Limited Power of Attorney (“POA”) and (2) a DMV Title Application, both of which were purportedly made by the authority of Mirian Shepard. Similarly, under indictment no. 2000CR361, Copeland was charged with two counts of first degree forgery for possession of the same two types of DMV documents purportedly made by the authority of Theodore Primus. The indictments were joined for trial, and a jury found Copeland guilty as charged. He appeals, and upon review of the enumerated errors, we affirm Copeland’s convictions.

In a light most favorable to the jury’s verdict, the record shows that Shepard’s and Primus’ vehicles were stolen. In order to make the stolen vehicles appear legal, paperwork was needed; in order to get such paperwork, one would “go to Elmo,” i.e., Copeland who ran NW Tag & Title Service on Bankhead Highway in Fulton County. Herein, individually, Copeland was approached by two people who required this “service” with regard to Shepard’s and Primus’ stolen vehicles.

In furtherance of such, Copeland forged two DMV POA documents wherein Shepard and Primus ostensibly “gave” power of attorney to Copeland to sign their respective names in order to obtain a replacement title for each stolen vehicle. Thereafter, through the forged POA documents, Copeland filled out a DMV MV1Z Replacement Title Application on each stolen vehicle by signing Shepard’s and Primus’ names, respectively. On January 14, 1999, the two forged Primus documents were turned in to the DMV office on Trade-port Boulevard in Clayton County. On January 19, 1999, the two forged Shepard documents were turned in to the same DMV office. On the same respective days that the forged paperwork was turned in, Copeland personally picked up the “counter” replacement title for each stolen vehicle and signed his name as receiving such. “Counter” replacement titles are those that are issued over the counter, usually to dealers like Copeland, because the DMV attempts to “process paper quickly for folks like Mr. Copeland.” In each instance, the notation “counter” on the replacement title indicates that it was issued to the person who presented the paperwork: “Walk in, walk out, that’s what that means.”

Thereafter, on each replacement title, ownership of the stolen vehicle was transferred to the person whose name Copeland was given by the one seeking legal status for each vehicle. He then mailed each new title to the address he was given. Copeland charged approximately $400 for the performance of each such “service.”

Acting on information obtained from the new “owner” of Shepard’s vehicle, as well as other relevant information, Atlanta Police Special Investigator R. Straut went to the DMV and obtained a title history on both stolen vehicles, including the POA and Title Application on file. Believing Copeland might still be in possession of the replacement title on Shepard’s stolen vehicle, Straut sought a search warrant for Copeland’s office, stating in his affidavit that Copeland “presented documents that were forged in order to obtain a duplicate counter title in order to take possession of a motor vehicle that had been reported stolen.” The warrant was executed, and a return was filed on April 8, 1999. Held:

1. Because of a search warrant defect, the trial court suppressed all documents obtained during the investigating officer’s search of Copeland’s business. The court held as admissible any documents retrieved from public offices, since “[t]hey are public records and can be obtained by anyone.” In his first enumeration of error, Copeland challenges this second ruling, contending the trial court “erred in failing to suppress documents obtained from public records,” specifically State’s Exhibits 1-8: the forged Shepard POA and Title Application and the forged Primus POA and Title Application. However, at the time the trial court made its ruling, there was no objection thereto. And, during trial, there was no objection to the admission of State’s Exhibits 1-8. Copeland acquiesced in the trial court’s ruling, as well as to the admission of the documents in question. Absent a timely objection, nothing is presented for this Court’s review.

2. In a two-prong attack, Copeland contends the trial court erred in denying his plea in bar of former jeopardy. We disagree.

Copeland was indicted in Fulton County on April 30, 1999, for — inter alia — two counts of forgery for possessing a DMV POA and DMV Title Application purportedly made by the authority of Shepard. These counts were dead docketed by the Fulton County District Attorney’s Office on June 17, 1999. The Fulton County case was not “transferred” to Clayton County. Nor does the record show that the Clayton County charges arose in any relation to the Fulton County charges.

(a) First, Copeland argues that jeopardy attached when issue was joined in Fulton County and, thus, trial in Clayton County is barred by double jeopardy. But jeopardy attaches when the jury is sworn, and thus the denial of the plea in bar on this basis was not error.

(b) Next, Copeland argues that a speedy trial demand was filed in the Fulton County case and that, since it had run, Clayton County had no right to try him on the same charges. In that regard:

(i) Our review shows no evidence that a speedy trial demand pursuant to OCGA § 17-7-170 was filed on the Fulton County charges, and Copeland does not direct our attention to any such evidence in the record. The burden is on the appellant to show error affirmatively by the record. “[W]here the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.”

(ii) A speedy trial demand “shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant.” Here, the Fulton County charges were dead docketed, not transferred. A speedy trial demand filed in Fulton County does not impact on charges brought in Clayton County, and a Clayton County prosecutor cannot be held to have knowledge of a speedy trial demand filed in a separate case in Fulton County, even if the charges brought in both counties are similar. Accordingly, the trial court’s denial of Copeland’s plea in bar on this basis was not error.

3. Just prior to trial, the State made an oral motion to consolidate indictment nos. 99CR1657 and 2000CR361 for trial purposes. Over objection, the trial court granted the State’s motion. We find no abuse of the court’s discretion.

To avoid multiple or successive prosecutions, a prosecutor is required to try in a single prosecution all the crimes arising out of the same conduct within the jurisdiction of a single court, except the court, in the interest of justice, may order that one or more of such charges be tried separately. Severance (or joinder) in the interest of justice is discretionary. Where, as here, the evidence shows a continuous scheme or ongoing spree such that evidence of one incident would be admissible in the trial of the similar crimes [,] . . . the trial court did not abuse its discretion in granting the State’s motion to consolidate the indictments for trial.

Copeland also contends the trial court erred because he did not receive “formal notice,” i.e., written notice, of the State’s intent to join the cases together and that such requires reversal pursuant to Uniform Superior Court Rule 31.1. We do not agree.

The record shows that, prior to trial, the prosecutor had “spoken with Mr. Hibbert and Ms. Eaves [defense counsel] and discussed the fact that I would be moving for joinder in this case.” Defense attorney

Hibbert candidly conceded that the parties had “many, many informal conversations over these issues. . . . But nonetheless, we would object to the joinder issue.” In addition, the parties signed a consent agreement whereby all motions filed in one case were made applicable to the other. Also, the same evidence as to one case was going to be presented to the jury in the other case as similar transaction evidence, making meritless Copeland’s argument that joinder of the offenses would “create a very strong area of prejudice.”

Before this Court, appellate counsel contends that “[a]ppellant’s counsel in 2000-CR-00361-2 was forced to trial unprepared and without notice.” But there is absolutely no evidence of record in support of this assertion; the referenced trial counsel never made such assertion; and the record belies it. Considering that defense counsel had notice prior to trial that the cases would be joined and that evidence of both cases would go before the jury regardless of joinder, we do not find the lack of “formal,” written notice of joinder requires reversal of the jury’s verdict. Alleged error, to be reversible, must be harmful.

4. Copeland next challenges the sufficiency of the evidence as to each count of forgery and contends the trial court erred in denying his motion for directed verdict. We disagree.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Here, Copeland admits that the State proved that the DMV documents in question were forged. He also admits that “[ejvidence that Appellant picked up completed titles may be considered circumstantial evidence that the Appellant possessed and uttered the [forged] documents.” However, Copeland argues that such circumstantial evidence failed to exclude all reasonable hypotheses save his guilt.

Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused [ ] is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. Only where the evidence is insupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial.

In this case, it is undisputed that the vehicles in question were stolen. “Everyone” knew that Copeland was the one who could obtain a title for a stolen vehicle. Copeland signed his name to both the Shepard and Primus MV1Z Title Applications as “POA,” and he apparently filled out his name on the Shepard and Primus documents establishing his status as POA, since the handwriting appears the same on all. Copeland received a “counter” replacement title on each vehicle, indicating that he had “walked in” with the forged documents and “walked out” with the over the counter replacement titles in one visit. Notably, there is evidence that Copeland personally transacted business at the DMV office often enough to become “familiar” therein. And there is absolutely no evidence that anyone other than Copeland was involved in the performance of this “service” for which he had become so well recognized.

We find this evidence sufficient to allow the jury to conclude that Copeland possessed and submitted the forged documents as charged.

5. Copeland also contends that he received ineffective assistance of trial counsel, since his attorney failed to object to the admission of State’s Exhibits 1-8, the forged Shepard POA and Title Application and the forged Primus POA and Title Application. Copeland contends that these documents were tainted as the “fruit” of the illegal search of his office and, as such, were inadmissible.

To establish ineffectiveness of trial counsel under Strickland v. Washington, [Copeland] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

Decided February 28, 2001

Alfred L. King, Jr., for appellant.

The burden to establish ineffective assistance of counsel is a heavy one and requires Copeland to demonstrate both error and prejudice. Thus, Copeland is mistaken with regard to this enumeration of error when he asserts that the State failed to prove that the documents in question were NOT the fruit of the illegal search. In this ineffective assistance of counsel claim, it is Copeland’s burden to show that the documents were tainted by the illegal search and, thus, his attorneys were ineffective for failing to object thereto.

In light of the fact that (1) Copeland did not call his attorneys to testify at the motion for new trial hearing with regard to this claim of error; (2) the officer testified that the documents in question formed the probable cause to obtain the search warrant; (3) the affidavit in support of the search warrant references forged documents; and (4) Copeland’s trial attorneys — who prevailed in the motion to suppress and were keenly aware of the trial court’s ruling thereon — did not object to the admission of the documents at issue, we conclude that Copeland has not carried his burden to show State’s Exhibits 1-8 were the “fruit” of the illegal search of his office. Accordingly, no objection by trial counsel was warranted, and this enumeration of error is without merit.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

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

        Teat v. State, 237 Ga. App. 867, 868 (516 SE2d 794) (1999).

        Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998).

        State v. O’Quinn, 192 Ga. App. 359, 360 (1) (384 SE2d 888) (1989).

       (Punctuation omitted.) Clark v. State, 240 Ga. App. 303 (523 SE2d 388) (1999).

       OCGA § 17-7-170 (a).

       (Citations and punctuation omitted.) Moore v. State, 245 Ga. App. 641, 644 (3) (537 SE2d 764) (2000).

        Wakily v. State, 225 Ga. App. 56, 61 (10) (483 SE2d 313) (1997).

       Supra.

       (Citation and punctuation omitted.) Chambers v. State, 244 Ga. App. 138, 139 (534 SE2d 879) (2000).

       (Citations and punctuation omitted.) Lathan v. State, 241 Ga. App. 750, 751 (1) (526 SE2d 350) (1999).

        Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).

       See, e.g., Ruffin v. State, 201 Ga. App. 792, 793 (412 SE2d 850) (1991), quoting Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       (Citation and punctuation omitted.) Hamilton v. State, 238 Ga. App. 320, 322 (3) (517 SE2d 118) (1999).

        Wallace v. State, 272 Ga. 501, 504 (503 SE2d 721) (2000).


text:
    A00A1798.
    A00A1799.
    A00A1859.
    WILLIAMS v. THE STATE. EDWARDS v. THE STATE. BOULTON v. THE STATE.
    (545 SE2d 621)
   Eldridge, Judge.

Defendants appeal directly from the trial court’s denial of their motions to dismiss based on speedy trial concerns. We consolidate these appeals and affirm the trial court’s ruling.

A Fulton County grand jury returned an indictment charging Larry Boulton, George Williams, and Brandon Edwards jointly with two counts of rape, one count of kidnapping, and one count of aggravated assault for acts the three allegedly committed during the April 1998 Black College Spring Break a/k/a “Freaknik.” The men were arrested April 20, 1998; indicted on July 17, 1998; and bonded out on August 12,13, and 19, 1998, respectively. No motions for speedy trial were filed, under either statutory or constitutional grounds, by any of the appellants. The record reveals no efforts on the part of the appellants to bring the case to trial. The attorney for Boulton requested four leaves of absence encompassing prospective trial weeks. Neither Williams nor Edwards sought severance from Boulton. When the case was placed on the trial calendar for the week of February 14, 2000; the appellants filed motions seeking dismissal of the charges because their constitutional right to a speedy trial was allegedly violated by the 22-month delay between arrest and trial. Thereafter, Boulton’s attorney filed for another leave of absence encompassing the February 14, 2000 trial week.

The motions came up for a hearing, and no evidence was presented with regard to the claims contained therein. After hearing argument from the parties, the trial court denied the motions, finding no prejudice to the defense by the 22-month delay. Appellants filed direct appeals from the court’s order, thereby delaying trial further. Boulton, Williams, and Edwards remain out on bond. Held:

This claim must be examined under the test prescribed in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) [(1972)], which requires consideration of (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right and (4) the prejudice to the defendant. And while courts must undertake a difficult and sensitive balancing process in weighing these factors, we must affirm the trial court’s decision absent an abuse of discretion.

Applying the four Barker factors, the record reveals that although twenty-two months elapsed between arrest and trial creating a presumption of prejudice, the defense was clearly responsible for some of the delay. In this regard, the record reveals that Boulton repeatedly sought leaves of absence, including one after he filed the motion to dismiss due to an alleged lack of a speedy trial. Williams and Edwards never attempted to sever their case or otherwise protest these repeated absences, thereby impliedly acquiescing in the delay.

As to the third factor, none of the appellants filed a demand for speedy trial pursuant to OCGA § 17-7-170 (a) and did not otherwise invoke his speedy trial right until February 2, 2000, less than two weeks before trial. It appears that, once out of jail on bond, appellants had no interest in pursuing this case until forced to do so by its placement on the trial calendar.

Finally, as to the fourth factor, we find little merit to appellants’ claims they were prejudiced by the delay:

(a) In the court below, Boulton’s attorney claimed that Boulton’s memory of specific events was becoming less clear. What these “specific events” may be and how they relate to the defense were not mentioned. Further, Boulton did not testify, and there is no evidence in the record regarding Boulton’s fuzzy recall or the effect thereof.

Before this Court, Boulton claims that his ability to locate “potential alibi witnesses and other defense witnesses has been substantially impaired” by the 22-month delay between arrest and trial. However, Boulton has never identified such “potential” defense witnesses, either before this Court or in the court below, although he has had 22 months to do so. Accordingly, we conclude that the delay did not impair Boulton’s ability to locate witnesses he never identified to begin with.

(b) Williams and Edwards claim that an allegedly crucial witness, Diedre McConnell, may be “potentially” unavailable due to the passage of time; however, it was acknowledged at the hearing on the motions that Williams’ attorney “had been in contact with this woman periodically” and that a single attempt to reach her had been unsuccessful. Further, by brief it is acknowledged that the testimony sought from McConnell can be established by two other “guys” who were present when the victim met the appellants at the Freaknik celebration downtown and allegedly “voluntarily” left the area with them. Accordingly, such claim does not rise to the level of prejudice so as to warrant dismissal of rape charges.

Decided February 14, 2001

Reconsiderations denied February 27, 2001 and March 1,2001

Mark A. Scott, for appellant (case no. A00A1798).

Smith, White, Sharma & Halpern, Jonathan Goldberg, for appellant (case no. A00A1799).

Dwight L. Thomas, JoAnn C. Fields, for appellant (case no. A00A1859).

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

“We must keep in mind that juxtaposed against the defendant [s’] right to a speedy trial is society’s corresponding right to try the defendant [s].” Considering the record carefully, we find that the trial court did not abuse its discretion in denying appellants’ motions to dismiss for lack of a speedy trial.

Judgment affirmed.

Blackburn, C. J., and Barnes, J., concur.

       (Citations omitted.) Hall v. State, 240 Ga. App. 356, 357 (3) (523 SE2d 409) (1999).

        Johnson v. State, 271 Ga. 375, 377 (2) (519 SE2d 221) (1999).

       Id. at 378; Brown v. State, 264 Ga. 803 (2) (450 SE2d 821) (1994).

       Likewise, Edwards’ claim that the 22-month delay prejudiced his ability to obtain a college education is without an evidentiary basis. Moreover, the “prejudice” involved in a speedy trial analysis goes to the defense to the charges, Thomas v. State, 233 Ga. App. 224, 226 (504 SE2d 59) (1998), not the impact a properly returned true bill may have had on a defendant’s personal life. Notably, Edwards’ claims in this regard ring especially hollow since, once on bond, he made no effort to seek a speedy resolution to the charges against him.

        Jernigan v. State, 239 Ga. App. 65, 68 (517 SE2d 370) (1999).

        Jackson v. State, 231 Ga. App. 187, 190 (498 SE2d 780) (1998).


author: Ellington, Judge.

text:
    A00A1936.
    In re EARLE.
    (545 SE2d 405)
   Ellington, Judge.

Myrlin Earle, an assistant district attorney for the Fulton County District Attorney’s Office, appeals from the trial court’s denial of his motion to dismiss an order of civil contempt. Having reviewed the entire record, we find no error and affirm.

The record shows that on December 7, 1998, Judge Bensonetta Tipton Lane of the Fulton County Superior Court called for trial the case against Antonio Evans, which involved numerous violent offenses against three different victims. Evans had been incarcerated for two years, and his was one of the oldest cases on the trial calendar. Judge Lane reminded Earle that he previously had been ordered to strike a jury for the case that day or to dead docket it. Even so, Earle asked for a continuance of the trial so that he could secure an allegedly crucial prosecution witness who was incarcerated in a federal prison in Leavenworth, Kansas. Judge Lane reminded Earle that he had announced “ready” at the call of the trial calendar a week earlier, although Earle claimed that the announcement of ready was dependent upon his ability to secure the witness.

A long discussion ensued, during which Judge Lane confirmed that Earle previously stated at a status conference that he had initiated steps to have the witness transported from Leavenworth, but it would take 20 days due to federal “red tape.” Defense counsel then inteijected that the witness was not in Leavenworth, but was instead incarcerated less than two hours away in Jesup, Georgia. Judge Lane ascertained that Earle had never confirmed the witness’ location, did not complete any paperwork to secure the witness, and never interviewed this allegedly crucial prosecution witness. Judge Lane ordered Earle to dead docket Evans’ case or proceed to trial immediately. Earle repeatedly refused to comply with the trial court’s order. Judge Lane brought in a jury panel in order to begin the trial. In the jury’s presence, however, Earle abruptly left the courtroom with his case files.

Shortly thereafter, Earle returned to the courtroom, accompanied by a supervisor from the district attorney’s office. Judge Lane gave Earle an opportunity to explain why he should not be held in contempt of court. After allowing Earle to explain his conduct, Judge Lane found him in contempt and ordered him into custody. Judge Lane specifically found that Earle failed to make a legally sufficient effort to secure the witness, then intentionally misrepresented material facts regarding those efforts. She further ruled that Earle could purge himself of the contempt order only by trying or dead docketing the Evans case. This Court granted Earle’s extraordinary motion for supersedeas bond pending appeal and released Earle from custody later that day.

Evans moved to sever his offenses for trial, claiming that the charges involved different victims and circumstances. On January 28, 1999, Judge Lane granted Evans’ motion. The State, represented by another assistant district attorney, tried and convicted Evans on five of the eight indicted felony counts.

Earle moved to dismiss his contempt charge, and Senior Judge L. A. McConnell conducted a hearing on the motion. In a comprehensive order, Judge McConnell denied the motion, finding that Earle refused to comply with Judge Lane’s order to proceed to trial or dead docket the case and “was blatantly evasive and untruthful in the process.” As such, Judge McConnell found that there was “overwhelming evidence to justify” Earle’s incarceration. Further, Judge McConnell found that “even a cursory perusal of the record reveals sufficient notice and dialogue between Judge Lane and Mr. Earle to conclude that all of Mr. Earle’s rights were protected.”

Judge McConnell also found that Earle failed to comply with Judge Lane’s conditions for purging himself of the contempt order, because the fact that the State eventually tried Evans on five of eight counts did not satisfy the conditions. Judge McConnell ordered Earle into custody for 20 days, ruling that he could purge himself of the contempt order by issuing a public apology to Judge Lane “wherein [Earle] acknowledges his misconduct,” and by either dead docketing or trying the three remaining felony counts against Evans.

1. Earle contends on appeal that Judge McConnell abused his discretion in denying the motion to dismiss Judge Lane’s contempt order. He claims that, since Evans was eventually prosecuted and convicted, he had complied with Judge Lane’s order. Further, he asserts that he already apologized to Judge Lane. We are unmoved by these arguments.

(a) The record clearly demonstrates that Earle was not prepared to go to trial on the Evans case, despite announcing ready; he misrepresented his efforts to secure the incarcerated witness; he refused to comply with Judge Lane’s direct orders to proceed with or dead docket the case; and he interfered with the court proceedings by abruptly abandoning the courtroom in the jurors’ presence. A trial court’s determination that a party has wilfully disobeyed its order will be affirmed if there is any evidence in the record to support it. Torres v. Putnam County, 246 Ga. App. 544, 546 (541 SE2d 133) (2000). “The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” Id.

Contempt of court can be described as “disregard for or disobedience of the order or command of the court” and may also include “interruption of the proceedings.” In re Booker, 195 Ga. App. 561, 564 (4) (394 SE2d 791) (1990). In this case, the record before this Court demonstrates that there was sufficient evidence to find Earle in contempt of court under either a civil (preponderance) or criminal (beyond a reasonable doubt) standard. See id.

(b) We also find that Judge McConnell did not abuse his discretion in refusing to dismiss Judge Lane’s civil contempt order and in requiring Earle to try or dead docket the remaining charges against Evans in order to purge himself of Judge Lane’s contempt order.

When the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil. ... A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to [comply with the terms for release].

(Citations omitted.) Hughes v. Dept. of Human Resources, 269 Ga. 587 (1)-(2) (502 SE2d 233) (1998). See also Ensley v. Ensley, 239 Ga. 860, 861 (238 SE2d 920) (1977) (noting the difference between civil and criminal contempt). In this case, the record does not support Earle’s contention that the three remaining felony counts against Evans have been dead docketed or that he is otherwise unable to try Evans on these counts. Compare Hughes v. Dept. of Human Resources, 269 Ga. at 587-588 (2) (incarcerated person’s rights were violated when he was unable to purge himself due to impossibility). Therefore, there was no abuse of discretion.

2. Because Judge McConnell found that Earle failed to comply with Judge Lane’s conditions for purging the contempt charge, he had a basis for ordering that Earle be incarcerated pursuant to Judge Lane’s order. Accordingly, it is premature to decide whether Judge McConnell abused his discretion in ordering Earle to apologize to Judge Lane as an additional condition for purging the contempt order. We note, however, that there is nothing in the record to demonstrate that Earle has ever apologized to Judge Lane for the behavior at issue in this case, nor has he admitted to her that his refusal to comply with her orders or his courtroom misbehavior was contumacious or otherwise inappropriate. See footnote 5, supra.

Judgment affirmed.

Andrews, R J., and Ruffin, J., concur.

Decided February 7, 2001

Reconsideration denied March 1,2001

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Lawson & Thornton, George O. Lawson, Jr., for appellant.

       This Court notes that the task of reviewing the record was made significantly more difficult due to Earle’s consistent failure to support his allegations by citing to the record, in violation of Court of Appeals Rule 27 (a) (1) and (c) (3) (iii).

       Evans was indicted for murder, OCGA § 16-5-1 (a); two counts of felony murder, OCGA § 16-5-1 (c); three counts of aggravated assault, OCGA § 16-5-21 (a); armed robbery, OCGA § 16-8-41; and possession of a firearm by a convicted felon, OCGA § 16-11-131.

       The record on appeal contains no transcript of the hearing.

       Judge McConnell noted that, unless he required Earle to comply with Judge Lane’s instructions for purging the contempt order, Earle, “with complicity of others in the District Attorney's office [in trying Evans], would have defied and lied with impunity.”

       The apology to which Earle refers in his brief was, in fact, an apology to Judge Lane from a previous incident during a status conference in which Earle “became angry and left the courtroom [and] announced to court staff that [he] would not return.”

       Although Earle claims that he announced ready, subject to securing his witness, he refused to proceed with trial even after it was discovered that the witness might be local and available.


author: Blackburn, Chief Judge.

text:
    A01A0411.
    (545 SE2d 600)
    COCKRELL v. THE STATE.
   Blackburn, Chief Judge.

Following a jury trial, Victor Cockrell appeals his conviction for two counts of armed robbery, three counts of aggravated assault, and two counts of burglary, alleging that the evidence was insufficient to support the convictions. Cockrell also alleges that the indictment contained a fatal variance.

1. On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to support the verdict, and [Cockrell] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

(Punctuation omitted.) Lester v. State; see Jackson v. Virginia.

So viewing the evidence, on February 28, 1998, a home invasion took place at 1368 North Cliff Valley Way. The home was occupied by Carmen Juarez, Andres Montezuma, Alexander Montezuma, Jose Mexquitic, and Rosalito Mexquitic. The occupants had been playing cards that evening when someone knocked at the door and stated that it was the police. The occupants opened the door and, upon realizing that it was not the police, tried closing the door. Three black men and two black women pushed the door in and forced themselves into the apartment. Two of the men were carrying a gun, and the other was carrying a baseball bat. One of them stated, “[s]tay still, just give us some money.” The men then threw some of the occupants, including Juarez, to the floor and pistol whipped Jose Mexquitic. The men took all of the money that was on the card table. After Andres Montezuma and Rosalito Mexquitic attacked one of the men who were holding the guns, the men then left through the back door. The occupants of the house captured one of the women who had also entered the house. The black men then reentered the home through the front door and broke the glass in the front door with a baseball bat. Rosalito Mexquitic was shot at some point during the scuffle, and Andres Montezuma was cut on the cheek with a gun.

Esteban Perla, who lived in the apartment above, testified that he heard noises, followed by gunshots. He went to his window and saw three black men, one holding a gun, one holding a baseball bat, and two black women, one of whom was being held by the occupants of the apartment. Perla noticed a cream-colored Cadillac at the scene. Perla later identified Cockrell in a photographic lineup as one of the perpetrators, indicating that he was 95 percent positive about his identification.

The DeKalb County police were called to investigate the home invasion. A witness reported to the police that he observed a yellow or cream-colored Cadillac parked near the mailboxes in the apartment complex that evening. Outside the vehicle were three black males and two black females. The witness later saw the five people congregating near the home invaded. Shortly thereafter, the witness heard gunshots and observed two black males running out of the apartment, one with a handgun, the other with a baseball bat. The witness made a tentative partial identification of Cockrell in a photographic lineup as one of the perpetrators.

The following day, Cockrell and co-defendant Dwayne Jackson told Michael Lupoe that they had committed a robbery the night before. They told Lupoe that the Mexicans they were robbing captured Vaneesah Bahar in the apartment and that Cockrell “shot his way back in” to try to get her out, but was unsuccessful. Lupoe testified that the day before the incident, Cockrell and co-defendants Jackson, Roxanne Brown, Vaneesah Bahar, and Vashawn Bahar told him that they were going to rob some Mexicans and asked him to join them. Lupoe declined. Lupoe recalled that they were riding in a Cadillac.

(a) We find that the evidence was sufficient to support the convictions for armed robbery, which were against Juarez and Jose Mexquitic. The essential elements of ármed robbery are the intentional taking of the personal property belonging to another person from that person by use of an offensive weapon. OCGA § 16-8-41 (a).

Juarez testified that the home invaders, one of whom was later identified as Cockrell, “came in with a pistol in their hand [and told them], ‘[s]tay still, just give us some money.’” The gunmen then pushed her and the others on the floor and pointed a gun at Jose Mexquitic. They then took money from the card table.

Cockrell argues that the evidence regarding Jose Mexquitic was insufficient because Jose did not testify at trial. We previously stated, however, in Collier v. State, a case involving armed robbery and simple battery, that

(a) n alleged victim’s testimony is not required to convict (in homicide cases, for example, such testimony is never available), if there are other witnesses, as there were in this case, who can testify that defendant committed acts which establish the elements of the offense.

We find that Juarez’s testimony establishes that the evidence was sufficient for the armed robbery count involving Jose Mexquitic.

(b) We find that the evidence was sufficient to support the convictions for aggravated assault, which were against Juarez, Jose Mexquitic, and Rosalito Mexquitic.

The essential elements of aggravated assault are attempting to commit a violent injury or committing an act which places another in reasonable apprehension of immediately receiving a violent injury with intent to murder, rape, or rob. OCGA §§ 16-5-20; 16-5-21.

Rosalito’s testimony that he was hit with a bat and shot at with a gun dining the robbery established the elements of aggravated assault with respect to him. Likewise, Juarez’s testimony established the elements with respect to her and Jose Mexquitic. Cockrell argues that the evidence was insufficient with respect to Jose Mexquitic because no one else but Jose could testify about whether he had a reasonable apprehension of immediately receiving a violent injury. We disagree.

The state of mind of a victim may be proved by indirect or circumstantial evidence. Williams v. State. We find that Juarez’s testimony that one of the perpetrators held a gun to Jose’s head, considered against the backdrop of the ongoing home invasion, establishes this element.

(c) The remaining convictions are the two merged convictions for burglary, which were based on armed robbery and aggravated assault as the underlying felonies. The pertinent elements of burglary are entrance into the dwelling house of another, without authority, and with the intent to commit a felony or theft therein. OCGA § 16-7-1 (a). Already having found the evidence sufficient for the underlying felonies, and considering the facts already discussed, we find that there is ample evidence to support the burglary convictions.

2. Juarez made a statement to police regarding the incident that took place on February 28, 1998, at 1368 North Cliff Valley Way. The name she gave the police at the time was Carmelo Montezuma. When asked at trial to explain why she gave a different name, Juarez stated, “I was a little drunk that day.” Cockrell argues that a fatal variance exists between the indictment, which listed Carmelo Montezuma as one of the victims, and the evidence at trial, which was that the victim in question was actually named Carmen Juarez.

Decided February 9, 2001

Reconsideration denied March 1,2001.

Elliott A. Shoenthal, for appellant.

The determination of whether a variance in the indictment and the proof is fatal depends on whether the variance affects the substantial rights of the accused. Denson v. State Our Supreme Court in DePalma v. State, departed from overly technical interpretations with respect to variances. Since then, this Court has

emphasized that it is the underlying reasons for the [variance] rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.

Partridge v. State

In this regard,

a variance [that] exists between the victim’s name as alleged in the indictment and as proven at trial ... is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim.

Harrison v. State. Here, Juarez’s testimony establishes that the variance was attributable to her use of an alias. We therefore do not find that this variance was fatal.

Judgment affirmed.

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

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

        Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

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

        Collier v. State, 157 Ga. App. 109, 110 (2) (276 SE2d 262) (1981).

        Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993).

        Denson v. State, 212 Ga. App. 883, 884 (2) (443 SE2d 300) (1994).

        DePalma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969).

        Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988).

        Harrison v. State, 192 Ga. App. 690, 691 (1) (385 SE2d 774) (1989).


author: Pope, Presiding Judge.

text:
    A00A1842.
    FREEMAN v. THE STATE.
    (548 SE2d 616)
   Pope, Presiding Judge.

Melvin Freeman appeals from the denial of his motion for new trial and his conviction of burglary and a violation of the Georgia Controlled Substances Act, contending that the trial court erred in denying his motion to suppress and that the evidence was insufficient to support the verdict.

Construed in favor of the verdict, the evidence shows that at about 3:00 a.m. on February 22, 1999, John Folks, the manager of a video store, was in his office working when he heard a scraping noise followed by breaking glass located at the CVS store next door. Folks saw a car parked outside, called the police, told them that he thought there was a break-in, and gave a description of the car and the license tag number. While still on the phone, Folks saw a man get in the car and leave. He described the man to the police, including that he was wearing a brown jacket. Folks saw the car turn left on North Decatur Road and right onto Clairmont going toward Decatur.

Shortly thereafter, Decatur Police Officer Whidby received a call to be on the lookout for a 1988 blue Buick Century with the license tag number reported by Folks, and he learned that the car may have been involved in a burglary at the CVS. About 25 minutes later he saw a blue Buick Century turn left off Commerce Drive onto Church Street, heading away from Decatur. He followed the car into a motel parking lot, saw a man get out of the car, and confirmed that the license tag number matched the reported number. The man was wearing a leather jacket. Whidby ordered the man to stop, but the man ran up some stairs and said, “I have done nothing wrong,” and “Leave me alone.” The man went to the third floor, knocked on room 316, and said, “Let me in.” After he again pounded on the door, someone let him in the room.

When other officers arrived, they knocked on the door to the room and identified themselves. After about three minutes, a woman opened the door and “stepped to the side.” Neither she nor Freeman offered any objection to the officers’ entry. Whidby and another officer entered the room with guns drawn. Freeman was lying in bed, totally nude, and sweating profusely. For the purpose of safety, Whidby immediately handcuffed Freeman and the woman and called for backup. Whidby saw a leather jacket in plain view partially stuffed in an open drawer. At trial, Whidby identified Freeman as the man he saw get out of the Buick and enter the motel room.

Another officer asked Freeman if they could look around the room, and he said, “you can look all you want.” The officer then found drug paraphernalia, marijuana, and syringes. The room was also littered with cigarettes and lighters. At one point Freeman asked to put on his jacket. The officer asked him if the leather jacket was his, and Freeman said yes. The officer then searched the jacket and found a crack pipe and something that looked like crack cocaine in a plastic bag. Lab results confirmed the suspicion.

In the Buick the police found a crowbar on the floor, a radio encased in plastic, another radio, a compact disc player, a large garbage bag on the front seat, a can of Skoal tobacco, and some tools. The steering wheel had been broken so that the car could be started without the key.

The CVS store manager responded to an alarm and found the outside door had been pried open and the inner door glass was broken. The checkout counter was in disarray, and several items appeared to be missing, including a couple of CD players, small portable radios, cassette players, electric razors, and cameras. At trial, the manager was able to state that several of the items recovered were items that could come only from a CVS store, and some of them matched the items that he discovered were missing. Those items had been near the checkout counter prior to the burglary. And, for at least one of the CD players, the manager confirmed that it had not been sold before the burglary.

1. Freeman contends that the officers did not have probable cause to enter the motel room and arrest him and that they did not have valid consent to search the room because he was already handcuffed at the time.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996). See also State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998).

Here, there were conflicting facts, but there was evidence to support the trial court’s finding of probable cause. The information about the burglary, the specific identification of the car including the license tag, and the short lapse of time between the incident and locating the car were sufficient to give an articulable suspicion that Freeman committed a crime and therefore provided grounds for stopping Freeman to question him. See Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). Officer Whidby then ordered Freeman to stop, but Freeman refused to do so and he retreated upstairs and tried to enter room 316. “An individual’s flight upon seeing a police officer may be some evidence of guilt.” Harris v. State, 205 Ga. App. 813, 814 (1) (423 SE2d 723) (1992). And, “[f| light in connection with other circumstances [can be] sufficient to constitute probable cause for arrest without a warrant.” (Punctuation and emphasis omitted.) Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972). That is true here. Regardless of whether Whidby had probable cause to arrest Freeman when he initially approached him, after Freeman fled, there was sufficient evidence to support a finding of probable cause to arrest.

The next question is whether the officers were justified in entering the motel room. “The officer gains access justified by the Fourth Amendment by obtaining a warrant, obtaining consent, or by the existence of exigent circumstances which require the officer to act immediately without warrant or consent.” State v. David, 269 Ga. at 535-536 (2). The State contends that the woman gave permission to enter when she opened the door and stepped to the side. Whether there was consent to entry is a question of fact. State v. Floyd, 161 Ga. App. 49, 50 (2) (289 SE2d 8) (1982). In this case the evidence was that the woman who opened the door “stepped to the side” and that neither she nor Freeman objected to entry. Because this is some evidence of consent, we cannot say that the trial court’s conclusion that this constituted consent was clearly erroneous. Compare id.

The facts also support the conclusion that the evidence found in the room was properly admitted. The items in Freeman’s jacket pocket, which was in plain view, were found because he requested his jacket and the officer was justified in checking the pockets for weapons. OCGA § 17-5-1. The facts support the conclusion that the other objects found in the room were in plain view. See generally Pickens v. State, 225 Ga. App. 792, 794 (1) (b) (484 SE2d 731) (1997). Property that appeared to have come from CVS was found on the dresser. Cigarette lighters and syringes were also on the dresser. Freeman does not contest the search of the car.

The court did not err in denying the motion to suppress.

2. Viewed in the light most favorable to the prosecution, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence, although circumstantial, was sufficient to support a conviction for committing burglary and a violation of the Georgia Controlled Substances Act. The license tag number, the leather jacket, the crowbar, and the recovered CVS merchandise still in its packaging linked Freeman to the crime. Any issue of fact regarding the accuracy of Folks’ description of the burglar was for the jury to resolve.

Decided January 29, 2001

Reconsideration dismissed March 2,2001.

Juwayn N. Haddad, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Anne Long, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller and Mikell, JJ., concur.

       “The reasons justifying an investigatory stop need not rise to the level of probable cause, but must be more than a mere hunch and must not be arbitrary or harassing.” Sams v. State, 265 Ga. 534, 535 (1) (459 SE2d 551) (1995).


author: Andrews, Presiding Judge.

text:
    A00A1868.
    BROWNLOW v. THE STATE.
    (544 SE2d 472)
   Andrews, Presiding Judge.

A Floyd County jury convicted Herschell Ed Brownlow of two counts of child molestation and two counts of aggravated sexual battery. On appeal, Brownlow claims the verdict was inconsistent with the evidence and that the trial court erred (1) in allowing expert testimony that the alleged victims exhibited symptoms consistent with child sexual abuse accommodation syndrome and major depressive disorder consistent with children who have suffered child abuse, (2) in charging the jury on child molestation as a lesser offense of aggravated child molestation, and (3) in refusing to allow an evidentiary hearing regarding juror misconduct.

Brownlow’s two grandsons, C. M. and C. T., often stayed overnight in a camper parked in Brownlow’s yard. C. T. testified that at night in the camper Brownlow had “[s]tuck his finger up my privacy part in the back.” He also testified that Brownlow had bitten his “privacy part” in front and that Brownlow; had done the same to C. M. C. T. said that Brownlow had taken pictures of him while he was in the shower and had inserted pliers in his anus. The abuse allegedly occurred while C. T. was between three and six years of age. He was seven years old when he testified at trial.

C. M. also testified at Brownlow’s trial. C. M. was thirteen years old when he testified and, according to the indictment, between nine and twelve years old at the time of the alleged abuse. C. M. said that Brownlow had “touched my butt” with his hand on several occasions. C. M. had observed Brownlow touching C. T. on the butt and on his “ding-a-ling” both on top of and underneath C. T.’s clothing. C. M. had also touched C. T.’s penis at the direction of Brownlow.

1. Brownlow argues that the evidence presented at trial was not sufficient to authorize a jury to convict him of the offenses charged. In support of this claim, he points out that the testimony of C. T. and C. M. was contradictory and inconsistent. Nevertheless,

that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.

(Citations and punctuation omitted.) Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995). After a thorough review of the record, we find that the evidence was sufficient to authorize a rational trier of fact to find Brownlow guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. (a) Brownlow claims the trial court erred in allowing expert testimony that the children exhibited symptoms consistent with sexual abuse. A clinical psychologist interviewed C. M., and she also observed a police sergeant interview C. T. During these interviews, C. T. and C. M. denied being sexually abused. A few days after C. M. spoke with the clinical psychologist, C. M. told his parents that he had been sexually abused by Brownlow, causing C. M.’s parents to arrange for a second interview. During the second interview, C. M. reported that Brownlow had inserted a finger in his anus. Each of the above-mentioned interviews was videotaped, and the videotapes of the interviews were introduced into evidence and played for the jury.

The clinical psychologist testified as an expert witness. The prosecutor questioned her about sexual abuse accommodation syndrome, which the psychologist described as “a model for understanding the ways that children experience sexual abuse and how that impacts their disclosure process.” The State then questioned the psychologist:

Q Okay. I’ll ask you, in your expertise, do you have an opinion as to whether or not either [C. M.] or [C. T.] exhibit symptoms consistent with child sexu — sexual abuse accommodation syndrome? And again, the question is do they exhibit symptoms, char — consistent with the concept?
A Based on my understanding of the history of this case, as well as just this sample of the interviews that we saw, those behaviors of denying and then restating a disclosure are consistent with sexual abuse accommodation syndrome as I described it.

A psychiatrist also testified as an expert witness. She treated both C. T. and C. M. The psychiatrist diagnosed C. T. with a major depressive disorder. She also testified that C. T. manifested traits that were consistent with children that had alleged sexual abuse, including “excessive anxiety, inappropriate guilt, extreme irritability, and mood instability . . . [and] excessive nightmares.” The psychiatrist diagnosed C. M. with a depressive disorder, an adjustment disorder, and an adjustment disorder with anxiety.

Brownlow argues that the clinical psychologist and the psychiatrist impermissibly bolstered the credibility of C. T. and C. M. and spoke to the ultimate issue of whether the children were sexually abused. In considering a comparable issue in Odom v. State, 243 Ga. App. 227, 228 (1) (531 SE2d 207) (2000), we explained that:

What is forbidden is expert opinion testimony that “directly addresses the credibility of the victim,” i.e., “I believe the victim; I think the victim is telling the truth,” or expert opinion testimony that implicitly goes to the ultimate issue to be decided by tbe jury, when such issue is not beyond the “ken” of the average juror, i.e., “In my opinion, the victim was sexually abused.” Although the distinction may seem fine to a layman, there is a world of legal difference between expert testimony that “in my opinion, the victim’s psychological exam was consistent with sexual abuse,” and expert testimony that “in my opinion, the victim was sexually abused.” In tbe first situation, the expert leaves the ultimate issue/ conclusion for the jury to decide; in the second, the weight of the expert is put behind a factual conclusion which invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused?

(Citations omitted.)

Applying the foregoing principles, we find that the clinical psychologist did not give impermissible testimony when she gave her professional opinion that C. T. and C. M. exhibited symptoms “consistent” with sexual abuse accommodation syndrome. She did not testify that she believed C. T. or C. M. was telling the truth or that they were sexually abused. Similarly, the psychiatrist’s testimony that C. T. showed traits consistent with sexual abuse and that she initially diagnosed C. M. with a depressive disorder did not impermissibly address the ultimate issue before the jury or the credibility of the children.

(b) Brownlow also claims the trial court impermissibly allowed the clinical psychologist to opine indirectly that Brownlow had sexually abused C. T. and C. M. through the following testimony: “In a case such as this one, when a perpetrator is someone who is close to the child and someone that the child counts on for good things, for pro — .” This testimony was given as part of a lengthy response to a request by the State to explain the concept of child sexual abuse accommodation syndrome. In its context, given the question and the testimony both before and after the language at issue, the psychologist’s testimony is most fairly seen as an attempt to explain child abuse accommodation syndrome to the jury rather than an impermissible opinion on an ultimate issue.

3. (a) Brownlow claims the trial court abused its discretion when it instructed the jury, at the request of the State and over his objection, on child molestation as a lesser included charge of aggravated child molestation. The jury charge originally addressed aggravated child molestation. After a recharge on aggravated child molestation, the jury was returned to the jury room without a charge on the lesser count, but the trial court immediately brought the jury back into the courtroom and instructed them that child molestation was a lesser included offense of aggravated child molestation and that they were authorized to find Brownlow guilty of the lesser offense if they did not find him guilty of aggravated child molestation but found him to be guilty of child molestation beyond a reasonable doubt.

A trial court is authorized to charge the jury on a lesser included offense so long as the charge is supported by the evidence, see Gagnon v. State, 240 Ga. App. 754, 755-756 (1) (525 SE2d 127) (1999), and the indictment sufficiently places the defendant on notice of the crimes which he must defend. Heggs v. State, 246 Ga. App. 354 (540 SE2d 643) (2000). See also McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984).

Child molestation is necessarily a lesser included offense of aggravated child molestation. Wilson v. State, 230 Ga. App. 195, 197 (3) (496 SE2d 746) (1998); OCGA § 16-6-4. The difference between child molestation and aggravated child molestation is that aggravated child molestation includes an act of child molestation which injures the child or involves sodomy. OCGA § 16-6-4 (c). The indictment charges Brownlow with aggravated child molestation which includes the elements required to prove the lesser crime of child molestation. The indictment afforded Brownlow sufficient notice of the conduct which he must defend at trial.

The evidence supports a finding that Brownlow committed two counts of child molestation. C. T. testified that Brownlow “bit” C. T.’s “front privacy” while C. T.’s pants were on. C. T. also testified that Brownlow had placed his penis on his butt while C. T. was wearing boxer shorts. This testimony would support a finding of child molestation. See Knight v. State, 239 Ga. App. 710, 713 (3) (521 SE2d 851) (1999). And while this testimony would have also authorized the jury to find aggravated child molestation of C. T. by acts of molestation accompanied by sodomy, see Holland v. State, 209 Ga. App. 821, 823 (434 SE2d 808) (1993), the jury would not be precluded from finding that Brownlow molested C. T. on these occasions without having completed an act of sodomy.

The authorities cited by Brownlow, such as Bailey v. State, 209 Ga. App. 390, 395 (7) (433 SE2d 610) (1993), and Helton v. State, 217 Ga. App. 691, 694 (5) (458 SE2d 872) (1995), are distinguishable. In these decisions, the issue on appeal was the trial court’s refusal to charge on a lesser included offense rather than the trial court’s decision to give such a charge. And, unlike here, we found that the evidence did not authorize a finding of the lesser included offense.

(b) During the recharge, the court instructed the jury:
Now, if you should find the defendant guilty beyond a reasonable doubt of aggravated child molestation, the form of your verdict would be guilty. If you do not believe beyond a reasonable doubt that the defendant did commit the offense of child molestation by doing any immoral or indecent act to or in the presence of any child under the age of sixteen with the intent to arouse or satisfy the sexual desires of either the child, then it — you would — you could find him, if you find that beyond a reasonable doubt, guilty of the lesser offense.

While we would agree that the trial court made a “slip of the tongue” while giving this portion of the instruction, the charges to the jury on aggravated child molestation and child molestation are clear and correct when reviewed as a whole. See Turner v. State, 241 Ga. App. 431, 437 (6) (526 SE2d 95) (1999). A reversal is not required.

4. Brownlow claims that the trial court erred in refusing to allow an evidentiary hearing on his allegations of juror misconduct. At his motion for new trial, Brownlow introduced the affidavit of a third party stating that a juror was a close friend of a board member of Harbor House, a children’s advocacy center. A State witness, the clinical psychologist, was a director of Harbor House. Brownlow maintains that, because of the juror’s relationship with the Harbor House board member, the juror would be likely to resolve any conflicts in the evidence in favor of witnesses who were connected with Harbor House. He also claims that, had he known that the juror had been friends with a Harbor House director, he would have had a basis to strike her for cause. We find no merit in these arguments.

Decided January 8, 2001

Reconsideration denied March 2,2001

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

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Even if Brownlow’s proffer of third-party testimony was, upon the conduct of an evidentiary hearing, found to be true, the juror’s friendship with a Harbor House director would not disqualify her. The juror’s friend did not testify at trial, nor was he involved in or mentioned in the proceedings. Brownlow argues that an issue remains as to why the juror failed to disclose the relationship in voir dire and whether this relationship influenced her deliberations in the case. However, there were no questions asked in voir dire which would have required the juror to disclose a friendship with a Harbor House director. In particular, Brownlow complains of the juror’s failure to respond when the jury was asked: "Are any of you now serving on any committees or boards or advisory panels for any type of juvenile court matter or any type of — maybe even on the Harbor House board or anything like that involving — involving children?” Though in response to this question another member of the jury pool volunteered that her husband was a vice-president of Harbor House, we do not believe that the failure to respond on the part of the juror in question amounted to an untruthful answer. As the juror’s alleged friendship with a Harbor House director would not have established cause to grant Brownlow a new trial, the trial court was not required to hold a hearing to investigate the matter further.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       Count 1 of the indictment provided that, “The accused did place his penis in the anus of [C. TJ, to and in the presence of and with [C. TJ, a child under 16 years of age, with the intent to arouse and satisfy the sexual desires of said accused and said child, said act involving an act of sodomy. . . .” Count 2 of the indictment provides that, “The accused did place his mouth on the penis of [C. TJ, to and in the presence of and with [C. TJ, a child under 16 years of age, with the intent to arouse and satisfy the sexual desires of said accused and said child. . . .”


author: Miller, Judge.

text:
    A00A2036.
    HOLY FELLOWSHIP CHURCH OF GOD IN CHRIST v. FIRST COMMUNITY BANK OF HENRY COUNTY.
    (545 SE2d 164)
   Miller, Judge.

In this action to set aside a deed under power, the trial court dismissed the amended complaint “unless Plaintiff pays the indebtedness of $32,022.85 within forty-five (45) days into the registry of the Court. . . .” We treat this as the grant of summary judgment.

The following undisputed chronology is relevant: In September 1996, appellant-plaintiff Holy Fellowship Church of God in Christ purchased real property on which it operated worship services and church activities. The conveyance was financed by appelleedefendant First Community Bank of Henry County, which took back a deed to secure debt for the amount of $184,121.90. The Church expressly promised to pay the principal “ON DEMAND, BUT IF NO DEMAND IS MADE[,]” then the promissory note called for 34 installment payments of $2,003.46 followed by a balloon payment of $166,142.14. In August 1997, the Church entered into a renewal note with additional monies in the principal sum of $206,677.34 and modified the security deed to reflect this larger debt. The renewal note also was a demand note but in the absence of a demand contemplated 34 monthly payments of $2,317.79 commencing October 1, 1997, followed by a balloon payment of $186,815.59.

In a letter dated November 1, 1997, the Bank informed the Church that the balance of the renewal note would be accelerated unless the Church paid $10,034.34 to cover past due amounts. Specifically, this amount was needed to cover the nonpayment of the October and November 1997 installments and to make good a $5,398.76 check drawn August 29, 1997, which had been returned September 3 for insufficient funds. This letter of intent to accelerate gave the Church 30 days (i.e., until December 2) to pay the past due sums and to make good the insufficient funds check, but required that any such payment be by cashier check, money order, certified funds, or cash.

Two checks for $2,352.79 each were subsequently delivered by the Church to and accepted by a Bank teller, one check on December 5 and the other on December 19. The Bank had no practice, once a loan was accelerated, to notify tellers to accept no further payments on the defaulted loan. The computers for the tellers would not indicate the status of a loan when a payment was accepted. These payments were credited to the Church’s loan and were not refunded by the Bank.

Meanwhile, on December 9, the Bank notified the Church that the debt was accelerated for failure to make payment as demanded. This letter directs that any payments be made directly to the attorneys for the Bank. After receiving the two December payments, the Bank directed its counsel to continue with the foreclosure as scheduled. As of the foreclosure date, the Church was in arrears for the December payment, the January payment, and the $5,398.76 for the ISF check. On January 6, 1998, the Bank as attorney-in-fact for the Church conveyed the property to itself via the deed under power of sale that the Church desires to set aside.

The Bank moved to dismiss the complaint as amended, and, after a hearing which was not recorded, this motion was granted in October 1998. On appeal, the Church contends there is evidence that the lender accepted the borrower’s repeated late, irregular payments, which is sufficient to create factual disputes whether the parties entered in a quasi-new agreement under OCGA § 13-4-4 and whether any anti-waiver provisions in the deed or promissory note were themselves waived. We affirm.

1. There is evidence that under the original note, the Bank accepted late payments and once accepted irregular payments. But “evidence of a departure from the terms of previous loans has no bearing upon the outcome of the case sub judice.”

2. Pretermitting whether proof that the Church made late regular payments that were not rejected and returned created a factual issue as to a mutual departure of the terms of the loan regarding regular payments, there is simply no evidence that the Bank consented to nonpayment of the $5,398.76 represented by the Church’s check returned for insufficient funds and never made good. “Before the provisions of [OCGA § 13-4-4] would apply to non-payment the evidence must establish a pattern or course of conduct evidencing an agreement or waiver of the provisions in the original contract relating to non-receipt of monthly payments.”

Since the Bank was authorized to foreclose due to the complete nonpayment of obligations under the renewal demand note, the arguable factual questions regarding acceptance of late regular payments ultimately are not material.

Decided February 12, 2001

Reconsideration denied March 2,2001

John A. Pickens, Newton H. Purvis, for appellant.

Thomas E. Baynham III, for appellee.

Judgment affirmed.

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

       No new money was extended, but the real estate loan was combined with two separate loans for the purchase of equipment.

       This amount would equal one month’s normal payment plus a $35 late fee.

       There is also uncontradicted evidence that, during the last week in November, Bank President Blackmon told the Church’s Reverend Paden the Bank was not in a position to accept any more partial payments and that Paden needed to talk with the Bank’s legal coun-

        See Baxter v. Ga. Fed. Sav. &c. Assn., 152 Ga. App. 753-754 (1) (264 SE2d 242) (1979). Accord Curl v. Fed. Sav. &c. Assn. of Gainesville, 241 Ga. 29 (244 SE2d 812) (1978).

        Minor v. C & S Nat. Bank, 177 Ga. App. 115, 118 (1) (338 SE2d 466) (1985).

        Newby v. Bank of Pinehurst, 159 Ga. App. 890, 891 (285 SE2d 605) (1981).

       See former OCGA § 11-3-122 (1) (b).


text:
    A00A1882.
    SOERRIES v. DANCAUSE.
    (546 SE2d 356)
   Ellington, Judge.

In this dram shop liability case, William A. Soerries appeals from a jury verdict that pierced the corporate veil and held him personally liable for damages. Because we find that the evidence presented supported the jury’s verdict, we affirm.

The facts, viewed in a light most favorable to the jury’s verdict, show that Soerries was the sole shareholder of Chickasaw Club, Inc., which operated a popular nightclub in Columbus for 23 years until it closed in 1999. At approximately 11:45 p.m. on July 31, 1996, 18-year-old Aubrey Lynn Pursley was intoxicated when she entered the Chickasaw Club. Although a Columbus ordinance prohibits individuals under 21 years old from entering nightclubs, it is undisputed that club employees did not check Pursley’s identification to establish her age. A friend testified that Pursley already was intoxicated when she arrived at the club. Even so, friends testified that Pursley drank additional alcohol at the club and was visibly intoxicated when she left at approximately 3:00 a.m. on August 1, 1996. Security videotapes showed that she left the club with a beer in her hand. Shortly thereafter, Pursley was killed when she lost control of her car and struck a tree.

Joseph Dancause, Pursley’s stepfather, sued Chickasaw Club, Inc. and Soerries individually for the cost of the car and for punitive damages. Following a trifurcated jury trial, the trial court entered judgment on the jury’s verdict, which pierced the corporate veil and found Soerries jointly liable with the corporation for $6,500 in compensatory damages and solely liable for $187,500 in punitive damages. Soerries appeals from this judgment.

Soerries argues that Dancause presented insufficient evidence to justify piercing the corporate veil. We disagree. As we have held:

The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. In deciding this enumeration of error, we are confronted with two maxims that sometimes conflict. On the one hand, we are mindful that great caution should be exercised by the court in disregarding the corporate entity. On the other, it is axiomatic that when litigated, the issue of piercing the corporate veil is for the jury, unless there is no evidence sufficient to justify disregarding the corporate form. disregarded the separateness of legal entities by commingling and confusion of properties, records, control, etc. It is obvious that if the individual who is the principal shareholder or owner of the corporation conducts his private and corporate business on an interchangeable or joint basis as if they were one, then he is without standing to complain when an injured party does the same. Under such circumstances, the court may disregard the corporate entity.

(Citations and punctuation omitted.) J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 460 (1) (462 SE2d 406) (1995). See also Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2) (a) (392 SE2d 37) (1990).

In this case, the jury heard testimony from Larry Jones, who managed the Chickasaw Club for 20 years. Jones testified that the club was open four nights a week and regularly admitted an average of 250 people who paid cover charges of $3 to $4 each. Additional patrons were also admitted, so that the club sometimes exceeded its capacity of 477 people. According to Jones, he and the other employees were paid each night in cash by Soerries out of the proceeds of the club. Although Jones testified that 1996 was a “bad year” for the corporation and that he was paid between $10,000 and $12,000, corporate payroll records reported his earnings as only $5,690. Jones admitted that Soerries sometimes paid him extra cash that was not reported to the club’s bookkeeper.

It is undisputed that Soerries paid his employees, suppliers, and entertainers in cash and not from existing corporate checking accounts. One employee admitted he was paid “under the table.” The employee never appeared on corporate payroll records, although Soerries admitted giving him money to help out around the club.

Corporate tax returns showed that, even though the Chickasaw Club was a busy nightclub, it regularly declared business losses. On cross-examination, Soerries failed to explain the substantial difference between reported income on corporate and individual tax returns and evidence regarding cash proceeds from cover charges and alcohol sales. When asked how the club paid its employees and other operating expenses while operating at a loss, Soerries explained that he often paid the corporate expenses out of his personal funds.

Soerries owned the property on which the Chickasaw Club was located and testified that he paid his $4,830 monthly mortgage note from the club’s cash proceeds. Although Soerries claimed that the club’s payments were rent that he then used to pay the note, personal tax returns showed that he received only $34,173 in rent in 1996, even though the corporation reported paying $43,000 in rent in its 1996 corporate tax return. Further, both figures are significantly less than the $57,960 in rent that would have been due from the corporation, based upon 12 months of $4,830 rental payments. Additional evidence showed that Soerries also owned other rental property in 1996 that would have paid $3,150 per month, making the disparity between his alleged rental earnings and his reported income even greater.

A jury could construe this evidence to demonstrate that Soerries commingled individual and corporate assets by personally assuming the corporation’s financial liabilities, waiving corporate rental payments, or using corporate funds to directly pay his personal mortgage notes and other expenses. See Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672, 673 (327 SE2d 751) (1985) (evidence that sole stockholder used corporate funds to pay personal expenses relevant to determination of whether he used the corporate entity as a mere instrumentality to conduct personal affairs); Sheppard v. Tribble Heating &c., 163 Ga. App. 732, 733 (1) (294 SE2d 572) (1982) (sole stockholder used corporate funds to pay personal loans, including mortgage); cf. Garrett v. Women's Health Care &c., 243 Ga. App. 53, 56 (532 SE2d 164) (2000) (although stockholder loaned the corporation money, there was no evidence that she disregarded the corporate form or treated it as her alter ego). As such, the totality of the evidence presented raised a jury issue on whether Soerries

Decided March 2, 2001

Grogan, Jones, Rumer & Gunby, Lee R. Grogan, Christopher J. McFadden, for appellant.

William J. Mason, for appellee.

(Citations and punctuation omitted.) Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. at 673 (2). See also Derbyshire v. United Builders Supplies, 194 Ga. App. at 844 (2) (a) (“[t]he law intervenes when the separate personalities of the corporation and its owner no longer exist. The question is whether the corporation serves as the alter ego or business conduit of its owner.”).

On appeal, we construe all the evidence most strongly in support of the verdict, and if there is evidence to sustain the verdict, we cannot disturb it. J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. at 461 (1). We find that the evidence presented was sufficient to support the jury’s decision to pierce the corporate veil.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

        J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 461 (1) (462 SE2d 406) (1995).

       The trial was divided as to liability for compensatory damages, the imposition of punitive damages, and the amount of punitive damages.

       Chickasaw Club, Inc. was dismissed from the lawsuit for the punitive damages stages of the trial.