text:
    A02A0265.
    WOODS v. THE STATE.
    (564 SE2d 853)
   Miller, Judge.

Derrick Woods was convicted of voluntary manslaughter based on evidence, supplied in part by his co-defendant, that Woods shot and killed a rival drug dealer. On appeal he claims three errors: (1) the court should have severed his co-defendant’s trial; (2) the court should have allowed him to cross-examine the co-defendant on a pending (though dead-docketed) drug charge; and (3) the court should have excluded out-of-court statements made by the State’s primary eyewitness. We affirm, holding: (1) the court did not abuse its discretion in not severing the trials, as Woods had the opportunity to cross-examine the co-defendant; (2) the alleged bias to be shown by the pending drug charge — namely that the co-defendant was testifying to curry the favor of the prosecution so as to avoid that charge — is nonsensical in light of the prosecution vigorously pursuing a murder charge against this same co-defendant in this very case in which he was testifying; and (3) the out-of-court statements were admissible as prior consistent statements and as part of the res gestae.

The eyewitness testified that without provocation, Woods and the co-defendant began shooting toward him and the victim as they were sitting on a porch. Two bullets struck the victim, who soon died. Within minutes of the shooting, the hysterical eyewitness told a local resident and police of this event and of the identity of the perpetrators. The co-defendant approached police the next day and admitted to being present at the scene, but claimed that only Woods fired a gun.

Both men were jointly indicted for murder, felony murder, and aggravated assault. The court denied their requests to sever the trials. At trial the co-defendant announced he intended to testify as part of his defense, and Woods again moved to sever, which was denied. Repeated motions to sever were denied throughout the trial. Following the State’s case, the co-defendant testified in his own defense, identifying Woods as the sole shooter and as acting without provocation. Woods also testified, describing this as a “drug turf” dispute and admitting he fired his gun but claiming self-defense. The jury acquitted the co-defendant on all counts but found Woods guilty of a lesser included charge of voluntary manslaughter and of aggravated assault and reckless conduct (which latter two counts the court merged into the manslaughter conviction). He appeals.

1. Woods contends that the court erred in not severing the trials. “The question of whether to grant a severance in a joint trial for a capital crime in which the death penalty is not sought is within the discretion of the trial court.” Green v. State, 274 Ga. 686, 687 (2) (558 SE2d 707) (2002); see OCGA § 17-8-4. The trial court considers three factors: (1) whether the number of defendants will confuse the jury regarding the evidence and law applicable to each defendant; (2) whether there is a danger that evidence admissible against one defendant will be improperly considered against another defendant (despite cautionary instructions); and (3) whether the defenses of the defendants are antagonistic to each other or to each other’s due process rights. Green, supra, 274 Ga. at 687-688 (2); see Adams v. State, 264 Ga. 71, 73 (3) (440 SE2d 639) (1994).

Woods does not argue that the first two factors weigh in favor of severance, but only the third. Absent a showing of harm, however, the mere existence of antagonistic defenses between two co-defendants will not require severance. Graham v. State, 266 Ga. 543, 544 (5) (468 SE2d 363) (1996). Woods points out that not only did the co-defendant provide crucial evidence that Woods as the shooter was unprovoked, but since the co-defendant was also on trial, Woods was harmed in that he was prohibited from using the co-defendant’s prior drug conviction to impeach his testimony. See OCGA § 24-9-20 (b).

The co-defendant’s testimony did not require a separate trial. “No prejudice amounting to a denial of appellant’s due process protection is demonstrated by the circumstance that an accomplice, who is subject to cross-examination, takes the stand and blames the appellant or attributes to him a greater degree of culpability than the accomplice himself bears.” Adams v. State, 271 Ga. 485, 486 (2) (521 SE2d 575) (1999), quoting Chandler v. State, 213 Ga. App. 46, 47 (1) (443 SE2d 679) (1994). This testimony would have been admissible even if Woods had been tried separately. Green, supra, 274 Ga. at 688 (2).

Nor did Woods carry his burden in clearly showing that he was prejudiced by his inability to impeach the co-defendant by use of a prior drug conviction. Beyond the fact that Woods failed to describe the conviction in detail and to proffer certified copies thereof, Woods only contends that he would have used the co-defendant’s prior conviction as a mere general attack on his credibility, which is insufficient to show clear prejudice. Adams, supra, 271 Ga. at 486 (2). Woods’s citation to Morris v. State, 204 Ga. App. 437 (1) (419 SE2d 733) (1992), is misguided, for in that case the “co-defendants were called as witnesses for the State.” (Emphasis in original.) Id. at 437 (1). York v. State, 242 Ga. App. 281, 287 (3) (a) (ii) (528 SE2d 823) (2000), distinguished Morris on this very ground.

Since evidence supported a finding that Woods did not carry his burden of showing clear prejudice, we will not overturn the trial court’s denial of severance. See Green, supra, 274 Ga. at 688 (2).

2. Woods argues that the court erred in precluding him from cross-examining the co-defendant on a pending drug charge that had been dead docketed. Citing Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982), Woods urges that he wanted to show that the co-defendant was shading his testimony in favor of the prosecution in an effort to please the prosecution so as to keep the drug charge dead docketed. This reasoning, however, makes no sense, for the prosecution was vigorously prosecuting the co-defendant for murder, felony murder, and aggravated assault in this very case in which the allegedly “shaded” testimony was being given. The court had ample grounds for finding that discussion of the pending “dead-docketed” drug charge would have had no impact on the credibility of the co-defendant’s testimony and would only have confused the jury or have prejudiced the co-defendant in his defense. We hold that the trial court did not abuse its discretion in restricting this portion of cross-examination. See Roberson v. State, 246 Ga. App. 534, 539 (3) (540 SE2d 688) (2000).

Decided May 6, 2002.

Culp & Smith, John C. Culp, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

3. Woods contends that the trial court erred in admitting two out-of-court statements made by the State’s eyewitness: one to a resident at the scene while awaiting the arrival of police, and one to an officer at the scene. During the 20 minutes before police arrived, the hysterical eyewitness told the resident that Woods and the co-defendant had shot the dying victim. Soon after police arrived, the eyewitness, who was still upset, told an officer that two men had fired on them without provocation. Finding the statements were either res gestae or prior consistent statements, the trial court allowed them in.

The trial court did not abuse its discretion. “[P]rior consistent statements are admissible . . . where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” (Punctuation omitted.) Armour v. State, 247 Ga. App. 592, 593 (2) (544 SE2d 516) (2001), quoting Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998). Here, before the statements were introduced, both defendants cross-examined and challenged the veracity of the eyewitness at trial. Moreover, the statements, which were made within minutes of the violent incident and while the eyewitness was still upset, were also admissible as part of the res gestae. See OCGA § 24-3-3; Espy v. State, 246 Ga. App. 1, 2 (2) (539 SE2d 513) (2000); Perkins v. State, 226 Ga. App. 613, 614 (1) (a) (487 SE2d 365) (1997).

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


source: Caselaw Access Project

author: Andrews, Presiding Judge. PHIPPS, Judge,

license: Public Domain

text:
    A02A0414.
    EDWARDS v. THE STATE.
    (565 SE2d 127)
   Andrews, Presiding Judge.

Reginald Edwards appeals his convictions after a bench trial of possession of cocaine (as a lesser included offense of possession with intent to distribute), interference with government property, tampering with evidence, obstruction of an officer, and misdemeanor possession of marijuana. He contends that the trial court erred in denying his motion to suppress evidence and that the evidence was insufficient. For the following reasons, we affirm.

Viewed in the light most favorable to the judgment, the record discloses that just before midnight on September 7, 2000, an on-duty police officer driving a patrol car observed a Volkswagen and a Ford Explorer stopped side by side facing the same direction and blocking the road. As the officer was approaching the cars, he observed the passage of what appeared to be money from a woman in the Volkswagen to Edwards in the Explorer and turned on his blue lights. He stopped his patrol car and continued to approach on foot, at which time Edwards started to drive off in the Explorer but stopped when the officer yelled for him to. The officer smelled a strong odor of burning marijuana; and, upon requesting the occupant of the front passenger seat of the Explorer to step out, he observed what appeared to be marijuana in plain view on the floor of the front on the passenger side.

The officer told Edwards he was going to search the Explorer, and Edwards replied that he should go ahead as Edwards had nothing to hide. The officer found marijuana on the floor of the front on the passenger side and $200 above the driver’s sun visor, which Edwards stated belonged to him. Under the edge of the driver’s seat he found $96 that Edwards testified he received from the woman in the Volkswagen and a bag containing one large rock and two small ones of suspected crack cocaine. The officer placed the bag on the dash and told Edwards he was under arrest.

At this point Edwards snatched the bag, struggled with the officer and got away from him, only to drop the bag upon running into the patrol car after he had run 15 or 20 feet. Edwards picked up the bag again, and another struggle ensued, during which he dropped the bag again. Edwards got away, leaving the bag. When the officer recovered the bag, it had a hole in it, apparently from having been bitten, and the large rock was missing. The officer then continued his search of the Explorer and found a partially smoked marijuana cigar in the rear that appeared to have just been thrown toward the back.

1. Edwards moved to suppress the alleged controlled substances found by the officer on the ground that they had been found during an unreasonable search. After a pre-trial hearing, the court denied the motion. Edwards’ counsel, during his opening statement, reserved the unreasonable search issue. When the State tendered the controlled substances immediately prior to resting, however, and the court asked Edwards’ counsel whether there was any objection, the response was: “No, Your Honor. Other than as long as the state will stipulate that [the bag] contains three separate quantities, one was marijuana found in the floorboard of the passenger side and one in the rear of the vehicle and one quantity of cocaine that was found in the driver’s side of the vehicle.” “Failing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point.” (Punctuation and footnote omitted.) Mack v. State, 251 Ga. App. 407, 408 (1) (554 SE2d 542) (2001).

It is true that, at the beginning of closing argument, Edwards’ counsel stated that he “wanted to comment . . . about the stop to complete our record,” cited a case to support his argument that, in Edwards’ case, there was no articulable suspicion for the stop, and stated that “[w]e’re trying to preserve [the unreasonable search] issue.” We have been unable to find any authority, however, for the proposition that an objection, once waived, may be resuscitated in this — or any — manner. Accordingly, we hold that consideration of the unreasonable search claim is procedurally barred.

2. Edwards’ other contention is that the evidence was insufficient to convict him of the offenses of possession of cocaine, misdemeanor possession of marijuana, and interference with government property. With respect to the first two of these, he contends that the only connection between himself and the controlled substances was spatial proximity and that his passenger had equal access to the drugs.

[U]nder [the equal access] doctrine merely finding contraband in a car occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Conversely, if additional evidence exists of possession of contraband by the defendant, whether circumstantial or direct, . . . the [trier of fact] must determine guilt or innocence.

(Citation and punctuation omitted.) Washington v. State, 253 Ga. App. 611, 614 (1) (560 SE2d 80) (2002).

(a) Here, there was “additional evidence” of Edwards’ possession of the cocaine in the officer’s testimony that Edwards grabbed the bag containing the three rocks from the dash and began to run and that, when retrieved, a hole had apparently been bitten in the bag and the large rock was missing from it. This evidence was clearly sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Id. at 319 (III) (B).

(b) As to the marijuana, because Edwards was the driver, he is presumed to have had exclusive possession of the controlled substances found in the car. Warren v. State, 254 Ga. App. 52, 53 (1) (561 SE2d 190) (2002).

The [equal access] rule, ... in the automobile context, is . . . that evidence showing that a person . . . other than the . . . driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the . . . driver.

Id.

Here, the evidence showed that Edwards did have a passenger, but it also showed that the officer smelled a strong odor of burning marijuana as he approached the Explorer and that he found a partially smoked marijuana cigar that “appeared to have just been thrown toward the back.” Accordingly, while it is conceivable that Edwards was merely in proximity to the cigar — and he testified that he neither had nor saw any marijuana — we do not view the equal access evidence as strong enough to overcome the presumption of his possession. Warren u. State, supra. “In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses.” (Punctuation omitted.) Thomas v. State, 253 Ga. App. 866 (1) (560 SE2d 745) (2002).

Accordingly, we find the evidence sufficient with respect to the charge of possession of marijuana.

(c) Finally, with respect to Edwards’ conviction of interference with government property, we note that “[a] person commits the offense of interference with government property when he . . . damages . . . government property.” OCGA § 16-7-24 (a). Here, viewed in the light most favorable to the verdict, the record shows that Edwards broke the mirror on the patrol car upon running into it. Thus, this case is quite similar to Fields v. State, 167 Ga. App. 400, 401 (2) (306 SE2d 695) (1983), where evidence that a marked sheriff’s car suffered damage when it locked bumpers with the defendant’s car during a high-speed chase was found sufficient under Jackson v. Virginia, supra. Accordingly, we affirm this conviction as well.

Judgment affirmed.

Mikell, J., concurs. Phipps, J., concurs specially.

PHIPPS, Judge,

concurring specially. •

As recognized by the majority, the rule in this state is that “[flailing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point.” (Punctuation omitted.) Mack v. State, 251 Ga. App. 407, 408 (1) (554 SE2d 542) (2001). In Mack, defense counsel volunteered that there were no objections to the evidence without any comment having been made by the trial court. In this case, the trial court asked if there were any objections to the evidence, and defense counsel responded in the negative. In Dyer v. State, 233 Ga. App. 770 (505 SE2d 71) (1998), this court made clear that responding negatively to a question by the court whether there is an objection to the evidence constitutes an affirmative statement of no objection and waives the issue.

Under Dyer, however, it is misleading to state the general rule as being that “failing to object at trial is not a waiver of the motion to suppress grounds.” Instead, we should say that failure to object at trial is a waiver if the trial court asks whether there are any objections.

Decided May 6, 2002

Whitehurst, Blackburn, Warren & Kelley, Steven B. Kelley, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

The Georgia case law on waiver in this area thus constitutes a difficult maze through which to navigate. In this case, it has resulted in defense counsel’s (apparently unintentional) waiver of his client’s right to appeal the trial court’s denial of a motion to suppress. This case points out the need for defense counsel to be forever diligent during the course of a trial to avoid the kind of inadvertent waiver that apparently occurred here. Because consideration of the unreasonable search claim is procedurally barred by the waiver, I reluctantly concur in the majority’s affirmance of Edwards’s convictions.

       Edwards’ notice of appeal states simply that he is appealing from an order denying his motion to suppress evidence. Nonetheless, we deem the notice of appeal amended by the enumeration of errors in his brief. Cf. OCGA § 5-6-48 (d); Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999).

        Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       “[I]n reviewing the denial of a motion to suppress, this Court may consider both the transcript of the motion hearing and the trial transcript.” Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997); accord Goddard v. State, 244 Ga. App. 730, 731 (1) (536 SE2d 160) (2000).

       The officer testified that, in addition to charging Edwards with possession of marijuana, he charged the passenger with that offense as well. The passenger was not a party to the indictment, however, nor did he testify at trial.

       The officer also searched Edwards and found $500 or $600 in his pocket.

       He broke off a mirror in the process, which was the basis for the charge of interference with government property.

       He makes no argument that the evidence was insufficient to convict him of tampering with evidence or obstruction of an officer, and those points are thus deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

       And the other marijuana found on the floor of the front on the passenger side.


author: Andrews, Presiding Judge.

text:
    A02A0494.
    POWE v. JORDAN.
    (564 SE2d 858)
   Andrews, Presiding Judge.

When Bennie Earl Powe and Daina Elizabeth Jordan were divorced in February 1999, the trial court granted them joint custody of their two-year-old child with each parent having physical custody of the child for alternating six-month periods. In March 2001 the trial court granted Jordan’s petition to change custody and awarded custody of the now four-year-old child to Jordan. Powe appeals claiming there was no evidence of a change of conditions affecting the welfare of the child which could have supported a change of custody. We find there was sufficient evidence to support the change of custody and affirm.

Once a permanent child custody award has been entered, the test for use by the trial court in change of custody suits is whether there has been a change of conditions affecting the welfare of the child. Gazaway v. Brackett, 241 Ga. 127, 128 (244 SE2d 238) (1978); Arp v. Hammonds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991). Since potential change of custody is always considered in light of the best interests of the child, an order changing custody may be based on evidence of a positive or adverse change in the circumstances of either of the joint custodial parents, or any change in the circumstances of the child substantially affecting the welfare and best interests of the child. Robinson v. Ashmore, 232 Ga. 498, 501-502 (207 SE2d 484) (1974).

Decided May 6, 2002.

Culpepper & Horne, Robert Culpepper III, Melvin R. Horne, for appellant.

Porter, Lehman & Chason, Thomas L. Lehman, for appellee.

(Punctuation omitted.) In the Interest of S. D. J., 215 Ga. App. 779 (452 SE2d 155) (1994).

Although the evidence showed that Powe and Jordan were both fit parents who loved and provided for the child, there was also evidence that as the child advanced in age the change in physical custody every six months became a traumatic event for the child. This was reasonable evidence showing a change of conditions substantially affecting the welfare and best interest of the child and was sufficient to support the trial court’s order terminating joint custody and changing custody of the child to Jordan. In the Interest of S. D. J, supra; Blackburn v. Blackburn, 168 Ga. App. 66, 71 (308 SE2d 193) (1983).

Judgment affirmed.

Phipps and Mikell, JJ., concur.


author: Miller, Judge.

text:
    A02A0597.
    LANE v. THE STATE.
    (564 SE2d 857)
   Miller, Judge.

Gary Lane was convicted of armed robbery and of hijacking a motor vehicle based on evidence that he was found fleeing in the stolen car within minutes after the hijacking and that when brought to the scene of the arrest some minutes later, the victim positively identified Lane as the robber. He appeals, arguing the evidence did not suffice to sustain the conviction. We disagree and affirm.

Sometime after 2:00 a.m., the victim filled his car with gas and reentered his vehicle, only to have a man approach on the driver’s side and point a gun at his head. Standing within two feet of the victim, the man ordered the victim out of the car, and the victim complied. The robber entered the car and drove off.

The victim immediately called police, giving the direction of the vehicle and its license number as well as a description of the robber. Within minutes police spotted the stolen vehicle and attempted a stop, only to have the vehicle speed off. In the ensuing chase through a residential area, the vehicle reached speeds of seventy mph and ran four stop signs, finally hitting a mailbox and smashing into a telephone pole. Lane was the driver, and within minutes police brought the victim to the scene, who positively identified Lane as the gunman. A gun not belonging to the victim was found in the vehicle.

A year later at trial, the victim’s memory was insufficient to allow him to again identify the robber. He could only confirm that he was certain that he correctly identified the robber at the arrest scene. The court denied Lane’s motion to exclude the pre-trial identification. The jury found Lane guilty of armed robbery and of hijacking a motor vehicle. Citing the general grounds, he moved for a new trial, which was denied. He appeals on the same grounds.

Significantly, Lane does not enumerate as error the ruling on his motion to exclude the pre-trial identification, but challenges only the sufficiency of the evidence that was admitted. Accordingly, we do not consider the correctness of the unchallenged ruling. See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (“The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. [Cits.]”); William N. Robbins, P.C. v. Burns, 227 Ga. App. 262, 265 (2) (488 SE2d 760) (1997).

Regarding sufficiency of the evidence, the standard of review is clear:

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; 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[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. 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. The testimony of a single witness is generally sufficient to establish a fact.

(Footnotes omitted.) Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

Here Lane fled from police in a car hijacked only minutes earlier. See Shaheed v. State, 245 Ga. App. 754-755 (1) (538 SE2d 823) (2000) (possession of recently stolen car and flight are circumstantial evidence of guilt). A gun not belonging to the victim was found in the vehicle, and the victim was brought to the arrest scene and immediately identified Lane as the robber. Cf. Salazar v. State, 245 Ga. App. 878 (1) (539 SE2d 231) (2000) (showup identifications at scene are permissible). Lane’s attempt to show his innocence by relying on the circumstantial evidence rule of OCGA § 24-4-6 necessarily presumes that the evidence was entirely circumstantial (see Cunningham v. State, 240 Ga. App. 92, 99 (4) (b) (522 SE2d 684) (1999)), a presumption that fails in light of the direct evidence of the victim identifying him at the scene. See Gresham v. State, 246 Ga. App. 705, 707 (2) (541 SE2d 679) (2000). We hold that the evidence sufficed to sustain convictions for armed robbery and for hijacking a motor vehicle. See OCGA §§ 16-8-41 (a); 16-5-44.1 (b).

Decided May 6, 2002.

Richard O. Allen, for appellant.

Patrick H. Head, District Attorney, Rose L. Wing, Amy H. McChes-ney, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, C. J, and Johnson, P. J., concur.


author: Phipps, Judge.

text:
    A02A0988.
    SAYE v. KING.
    (564 SE2d 859)
   Phipps, Judge.

This is an action for domestication of a foreign judgment obtained against a Georgia corporation and an individual residing in Georgia. The question is whether the foreign court had personal jurisdiction over the individual judgment debtor. Answering this question in the negative, the trial court denied enforcement of the judgment against the individual judgment debtor (but allowed the judgment to be enforced against the corporate defendant). The judgment creditor appeals the court’s denial of enforcement of the judgment against the individual debtor. We find that the judgment creditor has negated the individual judgment debtor’s defense of lack of personal jurisdiction. Therefore, we reverse.

The judgment creditor, Homer Saye, is a Texas resident. The individual judgment debtor is James W. King, a Georgia resident who operates a firearms dealership in Georgia under the corporate name James W. King Firearms Auction, Inc. Through a newspaper circulated nationally, King advertised firearms auctions held in Georgia. In response to an ad, Saye telephoned King and purchased a cata-logue. After receiving the catalogue in the mail, Saye submitted absentee fax bids for an auction and was the highest bidder on two firearms. King thereupon informed Saye of his winning bids, Saye forwarded payment for the firearms to King, and King shipped the firearms to Saye.

Saye, however, was dissatisfied with one of the firearms and attempted to return it. A dispute arose as to the amount of money Saye owed King for the firearm. Saye eventually sued King in both his individual and corporate capacities in a county district court in Texas, seeking damages for violation of the Texas Deceptive Trade Practices Act. Neither defendant answered the suit, and a default judgment in excess of $50,000 was entered against them.

Saye brought this action to domesticate the Texas judgment to permit enforcement against King and his corporation. In response, King filed a motion to set aside the judgment on the ground that the Texas court lacked personal jurisdiction over him either individually or as agent for his company.

When suit is brought to domesticate a foreign judgment, the judgment may be attacked collaterally on the ground the foreign court lacked personal jurisdiction over the defendant. If the foreign judgment was obtained by default, no presumption of personal jurisdiction exists. The party seeking to domesticate the judgment bears the burden of negating the defense of lack of personal jurisdiction. [Cits.]

To accord the foreign judgment full faith and credit, personal jurisdiction over the judgment debtor must have been proper under the law of the state in which the judgment was rendered. For the state to acquire personal jurisdiction over the nonresident defendant, he must have had sufficient minimum contacts with the state. Whether sufficient minimum contacts exist is determined by examining the allegations of the pleadings and not the merits of the case.

As authority in support of his defense of lack of personal jurisdiction, King cited Georgia appellate court decisions exemplified by Beverage Mgmt. Solutions v. Yankee Spirits to the trial court. Under these decisions, mere telephone or mail contact with an out-of-state defendant is insufficient to establish the purposeful activity within Georgia required for the exercise of personal jurisdiction under our Long Arm Statute. We agree that the line of cases cited by King provides support, at least under Georgia law, for the claim that the Texas court lacked personal jurisdiction over him.

In opposition to King’s motion to set aside, however, Saye filed a notice of intent to rely on the law of Texas, thereby invoking his right to rely on the law of the state rendering the judgment sought to be domesticated. Saye argues that, under the decision of the Texas Court of Appeals in Mem. Hosp. System v. Fisher Ins. Agency, the Texas court had personal jurisdiction over King individually. Mem. Hosp. holds that the exercise of personal jurisdiction over a nonresident passes constitutional muster even where the nonresident’s sole contact with the state is to make a false representation in a single telephone call, where the recipient of the call suffers foreseeable economic injury in the forum state as a result of the misrepresentation.

Saye alleged in his Texas action that King made deceptive or fraudulent representations concerning one of the firearms he purchased. Such representations would have been made in a telephone call placed by Saye in Texas to King in Georgia in response to King’s newspaper ad in Texas, or in the catalogue King sent to Saye in Texas. Certainly, King could foresee that if he made misrepresentations concerning the firearms on which Saye was bidding, Saye would suffer economic damage in Texas. Therefore, under the Mem. Hosp. decision, the Texas court was authorized to exercise personal jurisdiction over King in Saye’s action.

At the hearing below, King’s argument was that the Texas court lacked personal jurisdiction over him individually because all actions he took were as an agent of his corporation. To rebut this argument, Saye relies on decisions of the Texas Supreme Court in Weitzel v. Barnes and Leyendecker & Assoc. v. Wechter. Weitzel holds that there can be individual liability on the part of a corporate agent for misrepresentations he made in violation of an act prohibiting deceptive trade practices. Leyendecker holds that a corporation’s employee is personally liable for tortious acts which he directs or participates in during his employment. We agree that the cases cited by Saye authorized the Texas court to exercise personal jurisdiction over King in his individual capacity.

Saye has thus carried his burden of negating King’s defense of lack of personal jurisdiction. Although there might be arguments King could advance in an attempt to resurrect his defense, he did not do so at the trial level and has not done so on appeal. In fact, he has not filed an appellate brief.

Decided May 6, 2002.

Watson, Spence, Lowe & Chambless, Joseph W. Dent, for appellant.

Collier & Gamble, Wilbur T. Gamble III, for appellee.

For these reasons, we conclude that the trial court erred in refusing to permit enforcement of the Texas judgment against King in his individual capacity.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

        Giarratano v. Glickman, 232 Ga. App. 75 (501 SE2d 266) (1998).

        Mem. Hosp. System v. Fisher Ins. Agency, 835 SW2d 645 (Tex. App. 1992).

        Aqua Sun Investments v. Kendrick, 240 Ga. App. 671, 673 (2) (524 SE2d 519) (1999).

       218 Ga. App. 95 (460 SE2d 564) (1995).

       See Aqua Sun Investments, supra; OCGA § 9-11-43 (c).

       Supra.

       691 SW2d 598 (Tex. 1985).

       683 SW2d 369 (Tex. 1984).

       691 SW2d at 601.

       683 SW2d at 375.


author: Smith, Presiding Judge.

text:
    A02A0254.
    JACKSON v. THE STATE.
    (564 SE2d 865)
   Smith, Presiding Judge.

John Matthew Jackson was.indicted by a Clayton County grand jury on one count of kidnapping with bodily harm, one count of false imprisonment, one count of simple battery, and one count of cruelty to children in the second degree. The jury acquitted him of false imprisonment and cruelty to children and convicted him of kidnapping with bodily harm and simple battery. He appeals, asserting five enumerations of error. Finding no error, we affirm.

1. In two enumerations of error, Jackson asserts the general grounds with respect to his conviction for kidnapping with bodily injury.

Construed to support the jury’s verdict, the evidence shows that a Clayton County 911 operator received a call from a young male child at 10:04 p.m. on October 8,1999. On the tape, which was played for the jury, the child stated that “[m]y dad is hitting my mama” and that his mother was outside in the front yard, screaming. An officer with the Clayton County Police Department answered the call to Jackson’s home in Riverdale at 10:05 and arrived at the home at 10:15. He found Jackson’s ten-year-old son standing screaming in the front yard with a butcher knife in his hand and Jackson’s thirteen-year-old son inside the house, holding a golf club and crying. The officer asked the younger child what had happened; he told the officer that his parents had been arguing and he heard his mother ask Jackson not to hit her again. Then his father put his mother in the car and drove away as she was pleading, “don’t make me go.” The older child told the officer that his mother was in her nightgown and that she told Jackson she did not want to leave with him. The children told the officer that Jackson forced their mother into the vehicle. According to the officer, the time elapsed between his arrival and his conversation with both children was “less than a minute.”

Meanwhile, at a shopping center across the nearby county line in Fulton County, two retired firemen saw a man and woman scuffling in a car; it appeared that the woman was trying to get out of the car and the man was trying to keep her inside. They followed the car and saw the woman “rolling, tumbling, in the street.” One testified that the car turned around and ran over the woman. Another witness was in the area at the same time and saw a car strike what he believed to be a deer, but he realized it was a woman when she sat up. The driver, who was identified in court as Jackson by this witness, turned around in the middle of the road, went back into the shopping center driveway, and ran over the woman again. He repeatedly turned around and ran over the woman a total of four times. As this witness and another man ran up to the car, Jackson got out near the woman and tried to get her into the car, yelling, “Get up, there’s nothing wrong with you.” The woman was badly injured, “split wide open from her stomach all the way down to her pelvis.” Jackson was very angry and said that he was not going to let his wife leave him and would rather kill her. A crowd gathered, and a state patrolman who witnessed the immediate aftermath of the incident took Jackson into custody to prevent the crowd from harming him. A Fulton County officer arrested Jackson and attempted to read him his Miranda warnings, but Jackson shouted at him, “I don’t need a lawyer, I’m guilty. . . . [I] t’s okay, I did this, I hurt my baby, I don’t want a lawyer.” The mother spent approximately four months in the hospital, and a nurse testified to the severity of her injuries.

The mother was called as a witness by Jackson and testified that she had been having an affair, and Jackson learned of it. He confronted her about it that night, they argued, and she attacked him. When he said he was going to leave and take the children, she pleaded with him not to go and followed him out of the house voluntarily because she wanted to talk to him. She denied that he dragged her into the car and testified that she entered the car of her own free will. She testified that she jumped out of the car in an attempt to commit suicide and that she remembered nothing after jumping from the car.

The children were called as witnesses by Jackson. The younger child testified that he called 911 but did not remember anything he told the 911 operator or the police officer other than telling the 911 operator that his father was hitting his mother. He denied telling the police officer that Jackson dragged his wife out of the house or forced her into the car. The older child also testified that he did not remember anything he told the police officer. Jackson testified, contending that he and his wife voluntarily left the house because they did not want to argue in front of the children, that she was the aggressor, that she kept trying to jump from the car and finally succeeded, and that he ran over her accidentally and only once. The State called an accident reconstruction expert on rebuttal, who testified from his examination of the scene and the distribution of flesh and body parts on the roadway that the victim was run over more than once.

Jackson argues that the State failed to prove the element of asportation against the will of the victim, contending that the only evidence that Jackson took the victim against her will was inadmissible hearsay introduced through the testimony of the children. This contention is incorrect, as discussed in Division 2, below. Moreover, other witnesses testified that they saw the victim attempting to jump from the car as Jackson attempted to hold her. Although the victim explained this by contending she was attempting to commit suicide and Jackson was trying to restrain her, the jury was entitled to reject that explanation and conclude that she was attempting to escape and that Jackson had taken her into the vehicle against her will. “Kidnapping is not a continuing offense, and only the slightest movement of the victim is required to establish the element of asportation.” (Citations omitted.) Burney v. State, 237 Ga. App. 765, 767 (2) (516 SE2d 802) (1999).

An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicting testimony is a matter of credibility for the jury to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict.

(Citations and punctuation omitted.) Wheeler v. State, 236 Ga. App. 197, 198 (1) (511 SE2d 564) (1999).

2. Jackson contends that the trial court erred in admitting the children’s statements to the police officer regarding what their mother said in violation of the hearsay rule, contending this was “double hearsay.” But the trial court correctly admitted these statements as part of the res gestae. Res gestae declarations are those “accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” OCGA § 24-3-3.

[W]hat the law altogether distrusts is not after-speech but afterthought. In cases when a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. If the declarations appear to spring out of the transaction — if they elucidate it — if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous. However, no precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed.

(Punctuation and footnote omitted.) Sims v. State, 234 Ga. App. 678, 682 (2) (507 SE2d 845) (1998). We will affirm a trial court’s decision to admit res gestae statements unless that decision is. clearly erroneous. Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94) (1990).

Here, the trial court correctly concluded that both the mother’s statements and the children’s later statements to the police officer were part of the res gestae. The mother’s statements were made while the incident was actually in progress and one of the children was on the telephone with the 911 operator recounting the altercation as it occurred. A policeman arrived ten minutes later to find the children obviously distraught, crying and screaming, holding makeshift weapons, and in separate locations on the property. He took their statements separately and immediately. Under these circumstances, the statements sprang out of the incident itself, were exclamatory rather than narrative, and were made without premeditation or afterthought.

Moreover, both the victim and the children testified at trial and were subject to cross-examination. They either gave testimony inconsistent with the earlier statements or testified that they could not recall them. “A party may introduce a prior consistent statement of a forgetful witness where the witness testifies at trial and is subject to cross-examination.” (Footnote omitted.) Manning v. State, 273 Ga. 744, 745 (3) (545 SE2d 914) (2001). The trial court did not err in admitting the witnesses’ statements.

3. Jackson complains of the number of witnesses called by the State to testify to the final events of the incident, which were not relevant to the charges against him because they occurred in Fulton County. Citing a definitional section of the evidence code, OCGA § 24-1-1, he contends that the trial court erred in allowing multiple witnesses to testify to his running over the victim with his car. He asserts that “[c]ase law in this area specifically states that any evidence that is cumulative in nature will be generally inadmissible as irrelevant,” but he cites no authority for this assertion, and we have found none. In contrast to Jackson’s assertion, the case law in this area typically considers cumulative evidence in a “harmless error” context. Properly admitted cumulative evidence will cause the erroneous admission of similar but inadmissible evidence to be treated as harmless error. See, e.g., Bellamy v. State, 272 Ga. 157, 161 (7) (527 SE2d 867) (2000). In the only decision we have found that is even remotely on point, this court affirmed the trial court’s exclusion of inadmissible evidence of a civil plaintiff’s arrest for a drug offense, noting that the evidence would have been cumulative of other evidence for any proper purpose the defendant had alleged, such as the plaintiff’s post-injury activities. Howard v. Harn, 163 Ga. App. 771, 772 (2) (295 SE2d 349) (1982).

More than one witness may testify to a fact, and more than one document may be introduced to prove a fact. Warren v. Gray, 90 Ga. App. 398, 402 (7) (83 SE2d 86) (1954). Even if the State presented multiple witnesses, “[t]he fact that their testimony was corroborative or cumulative to other evidence did not make it inadmissible.” Clark v. State, 138 Ga. App. 266, 273 (10) (226 SE2d 89) (1976). The testimony did, as Jackson concedes, prove the bodily injury component of the kidnapping charge. But Jackson is incorrect in his contention that this was the only legitimate purpose of the testimony and that the State’s sole motivation in calling multiple witnesses was to emphasize the gruesome nature of the attack and his wife’s injuries. The witnesses were present at different times and vantage points and testified to different facts, such as Jackson’s multiple statements at the scene. This testimony showed not only the victim’s injuries but also Jackson’s intent and state of mind during an ongoing incident that coincidentally crossed a nearby county line while “in continuous progress to its catastrophe.” (Citations and punctuation omitted.) Vick v. State, 211 Ga. App. 735, 737 (2) (440 SE2d 508) (1994). Moreover, the trial court repeatedly gave a cautionary instruction to the jury that it was not to consider this evidence with regard to “crimes, if any, that may have occurred in a different county.” These were matters properly to be considered by the jury, and the trial court did not err in allowing the witnesses to testify.

4. Finally, Jackson contends the trial court erred in allowing the State to call in rebuttal an accident investigator from Fulton County who investigated the collision at the shopping center and prepared diagrams of the scene. Jackson relies on Allison v. State, 256 Ga. 851, 853 (8) (353 SE2d 805) (1987), decided with reference to a repealed statute. He asserts that the witness was not on the State’s witness list and that he was not given sufficient notice of the testimony or time to review it. After reviewing the unique circumstances of this case, Thompson v. State, 237 Ga. App. 91, 93 (2) (514 SE2d 870) (1999), we disagree.

The prosecutor stated in her place that the Fulton County police officer who testified as one of the State’s witnesses had disclosed to her the existence of this accident reconstruction expert on the first day of trial and that she had not known of him or the documents he prepared before that time. The officer went to Atlanta, retrieved the diagram of the accident scene from the expert, and “brought it straight to the courtroom,” giving defense counsel an opportunity to examine it. The prosecutor further stated that she saw the evidence for the first time when defense counsel did. She also told defense counsel that she did not intend to use this evidence unless Jackson testified inconsistently with the facts revealed by the accident investigation. When Jackson insisted that he had run over the victim only once and that it was an accident, the State offered the testimony of the accident reconstruction expert to show that the victim was run over more than once.

In Allison, supra, the State was found to have engaged in misconduct by deliberately withholding the testimony of three expert witnesses who were properly part of the State’s case-in-chief. Here, in contrast, the State did not intend to use the testimony unless Jackson contradicted it. When Jackson testified that he ran over his wife unintentionally and only once, the State called the witness. “This is classic rebuttal evidence.” Thompson, supra at 94 (2). Moreover, the record does not affirmatively demonstrate that “the state withheld the identity of witnesses important to the state’s main case in order to lull [Jackson] into testifying or to deny him the opportunity of preparing a defense relative to such testimony.” Id.

Rebuttal testimony should not be excluded merely because the state could have introduced it during its main case. Each case must be decided on its own merits. It is the importance of the evidence to the state’s main case and whether the withholding was intended or designed to deny the defendant an opportunity to prepare his defense in relation to that evidence which will determine if reversible error has occurred. [CitJ

Id. at 93 (2).

Jackson also contends that the diagrams prepared by the accident reconstruction expert are “scientific reports” and could not be used absent disclosure, citing Wheeler v. State, 203 Ga. App. 831, 832 (418 SE2d 112) (1992). But in Wheeler, it was not disputed that the State had the report in its possession and never provided a copy to the defendant. Id. Here, the only evidence of record shows that the State disclosed the existence of the documents and provided them to Jackson’s counsel as soon as it learned of them. When, as here, the prosecution and defense both view the evidence for the first time simultaneously, the statute is not violated. Crawley v. State, 240 Ga. App. 891, 892 (1) (525 SE2d 739) (1999). Moreover, “when a written scientific report is furnished late, the appropriate remedy ‘perhaps’ is to grant a continuance or recess upon timely request by the defendant.” Wilburn v. State, 199 Ga. App. 667, 669 (3) (405 SE2d 889) (1991) (full concurrence as to Division 3). Once Jackson was aware of the documents, it was incumbent upon him to move for a continuance or recess if he required more time to examine them, and he failed to do so. The trial court therefore did not abuse its discretion in declining to exclude the accident scene diagrams or in allowing the State to present this evidence on rebuttal.

Decided May 7, 2002.

Stanley W. Schoolcraft III, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Ellington, JJ., concur.

       Jackson acknowledges that the trial court gave these limiting instructions, but contends they were given “in a flippant manner thus negating its effect.” But, as Jackson also acknowledges, this contention does not appear anywhere in the record, and Jackson did not interpose any objection to the trial court’s instructions. He therefore has waived his right to assert this objection on appeal. Williams v. State, 244 Ga. App. 26, 27 (2) (535 SE2d 8) (2000).


text:
    A02A0468.
    GUILD v. THE STATE.
    (564 SE2d 862)
   Miller, Judge.

Russell Robert Guild was convicted of armed robbery and possession of a firearm during the commission of a crime. He cites four enumerations of error, all of which lack merit. First, he challenges the sufficiency of the evidence, which challenge fails in light of the eyewitness testimony against him. Second, since Guild’s prior armed robbery is sufficiently similar to his current offense, the court did not abuse its discretion in admitting the similar transaction. Third, his Batson challenge fails in light of evidence supporting the trial court’s findings. Fourth, the court did not abuse its discretion in denying his motion for continuance, for two weeks may be sufficient to prepare and the short time period was caused by Guild’s own conduct. Accordingly, we affirm.

1. Regarding sufficiency of the evidence, the standard is clear:

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; 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[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. 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. The testimony of a single witness is generally sufficient to establish a fact.

(Footnotes omitted.) Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000); see OCGA § 24-4-8; Parker v. State, 244 Ga. App. 419, 420 (1) (535 SE2d 795) (2000).

Evidence showed that Guild had previously committed an armed robbery late at night by exiting a distinctive two-tone car and placing a gun to the head of the victim who was sitting in a car. In the present case, late one evening the victim saw the same distinctive two-tone car parked nearby just before she withdrew money from a drive-through automated teller machine (ATM) while she sat in her car. Before she was able to bring the cash through her car window, a man approached and placed a gun to her head. She forced the gun down, struggled with the perpetrator, dropped the money, and sped off. When police arrived at the scene, the money was gone. With 100 percent certainty, she positively identified Guild at trial as the robber.

Regardless of other inconsistent evidence, this evidence sufficed to sustain convictions for armed robbery and for possession of a gun while committing a crime against a person. See OCGA §§ 16-8-41 (a); 16-11-106 (b); see also Kemper v. State, 251 Ga. App. 665 (1) (555 SE2d 40) (2001). Moreover, the previous armed robbery was sufficiently similar that the trial court did not abuse its discretion in admitting it as a similar transaction to show identity and course of conduct. See Griggs v. State, 251 Ga. App. 430, 431 (1) (554 SE2d 569) (2001); Lowe v. State, 245 Ga. App. 659, 660 (2) (538 SE2d 552) (2000).

2. Guild challenges the court’s findings that he failed to show that the prosecution’s striking of three African-Americans in the jury pool was racially motivated. As evidence supported the court’s findings, we discern no error.

Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996), outlines the procedure for dealing with challenges to jury selection. See generally Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). First, the opponent of the strike must make a prima facie showing of racial discrimination; second, the proponent of the strike must set forth a race-neutral, case-related, clear and reasonable specific explanation for the exercise of its strike; and third, after giving the opponent of the strike the opportunity to make any further showings, the trial court must determine, considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent was motivated by discriminatory intent in the exercise of the strike. Turner, supra, 267 Ga. at 151 (2); Jeremiah v. State, 250 Ga. App. 397, 399-400 (1) (551 SE2d 819) (2001). “The trial court’s findings concerning whether the opponent of the strike has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous. [Cit.]” Turner, supra, 267 Ga. at 151 (2).

Here the court found that Guild showed a prima facie case of discrimination with regard to the State’s striking of three African-Americans, and for purposes of this opinion we assume the evidence sufficed on this point. But see Love v. State, 205 Ga. App. 27 (1) (421 SE2d 125) (1992) (“Colloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination.”) (citation and punctuation omitted). The State then articulated the following reasons for the strikes. Juror Butts lived in a housing project that was a possible basis for an alibi of Guild, and juror Leverette knew a prosecution witness. Juror Howard had previously used the same ATM, and the State feared outside evidence (Howard’s personal familiarity with that area and machine) would influence her decision. Evidence showed that even though another juror (race unidentified) had been struck for this same reason, a white juror who had used the ATM was nevertheless retained. The State showed that this latter juror was retained because she had law enforcement relatives. Guild made no further showings. Based on this record, we defer to the trial court’s finding that Guild did not carry his burden of showing discrimination.

3. Just before trial, Guild moved for a continuance on the ground that he had fired his previous attorney and that his current attorney had had only two weeks to prepare for trial. He enumerates as error the denial of that motion.

Under nearly identical circumstances, Cunningham v. State, 244 Ga. App. 231, 232 (1) (535 SE2d 262) (2000), held that the trial court did not abuse its discretion in denying a motion for continuance. In light of Guild’s actions and of the holding in Roland v. State, 266 Ga. 545, 546 (3) (468 SE2d 378) (1996), that a two-week preparation period may be adequate, we similarly see no reason to hold that the trial court abused its discretion here. See Massalene v. State, 224 Ga. App. 321, 322 (1) (480 SE2d 616) (1997) (conduct of party in discharging attorney may weigh against continuance).

Decided May 7, 2002.

Ellis R. Garnett, for appellant.

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

Judgment affirmed.

Blackburn, C. J., and Johnson, R J, concur.


author: Johnson, Presiding Judge.

text:
    A02A0063.
    DIAZ v. THE STATE.
    (564 SE2d 872)
   Johnson, Presiding Judge.

Jose Diaz was charged with kidnapping, three counts of aggravated assault, and possessing a firearm during the commission of a felony. He denied the charges and was tried before a jury. The jury found Diaz not guilty of kidnapping, but guilty of two counts of aggravated assault, one count of pointing a pistol at another as a lesser included offense of aggravated assault, and possessing a firearm during the commission of a felony. Diaz appeals, challenging the sufficiency of the evidence supporting the aggravated assault and firearm possession convictions, the testimony given by a juvenile court judge, and the jury charge on aggravated assault. The challenges are without merit, so we affirm Diaz’s convictions.

1. On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict and no longer presume that the appellant is innocent; moreover, we do not weigh the evidence or determine witness credibility, but only determine whether there is sufficient evidence from which the jury could have found guilt beyond a reasonable doubt.

Construed in the light most favorable to the verdict, the evidence shows that Diaz and Linda Sharpe had a child out of wedlock. On April 5, 1999, Sharpe dropped the year-and-a-half-old child off at her day-care center. At about 10:00 that morning, Diaz went to the center and asked to see his daughter. He went to the playground, picked up the girl, and told Faye Miles, the day-care owner, that he was going to take the girl with him.

Miles told Diaz he could not leave with the girl and reached for her. Diaz then pulled out a gun and pointed it at Miles and Brenda McKinney, a day-care employee. Diaz said he did not want to hurt anyone, but would do so if necessary.

As Diaz began to leave with his daughter, he encountered another day-care employee, Amy Ray, who told him he could not leave with his daughter. Diaz pointed his gun at Ray and told her to get out of the way. Ray complied, and Diaz then walked out of the center with the girl.

Diaz went to his mother’s house with the child. Police responded to the scene and negotiated with Diaz for two hours. Diaz finally walked out of the house, placed his gun on the porch railing, and surrendered to police.

Contrary to the claims of Diaz, there is sufficient evidence from which the jury could have found him guilty beyond a reasonable doubt of the aggravated assaults for threatening the day-care employees with his handgun and of possessing a firearm during the commission of those felonious assaults.

2. During the trial, the state called Juvenile Court Judge Robert Rodatus to testify that just a few days before the incident at the daycare center he presided over the hearing on a petition filed by Diaz to legitimate his and Sharpe’s child, that he denied the petition, and that he explained to Diaz that he had no rights to the child. The state claims that it introduced this testimony to support the kidnapping charge against Diaz by showing that he knew he had no right to remove his daughter from the day-care center.

Regardless of whether such evidence was necessary or appropriate, Diaz concedes, and the trial transcript reveals, that he did not object to any of the judge’s testimony. By failing to object at trial, Diaz has waived the right to appellate review of the testimony.

3. The trial judge charged the jury that a person commits the offense of aggravated assault when he assaults another person with a deadly weapon. Diaz argues that the charge was incomplete because it did not contain the phrase “when used offensively” as set forth in the statutory definition of the crime. Diaz’s argument, which misconstrues the statute, has previously been rejected by the following decision in the case of Green v. State:

Decided May 8, 2002.

Webb & Webb, Michael S. Webb, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

During the instructions to the jury the trial court defined aggravated assault as assault with a deadly weapon. That is the offense with which defendant was charged and the charge is accurate based on the definition of the offense contained in OCGA § 16-5-21 (a) (2). We reject defendant’s argument that the trial court erred in failing to use the phrase “when used offensively” in its definition of the crime. The phrase referred to by defendant is contained within the statutory definition of aggravated assault but describes an alternative method of committing the offense of aggravated assault by employing “any object . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Defendant was indicted specifically for using a handgun which is a deadly weapon as a matter of law. See Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981). Defendant was not charged with the alternative method of committing the crime and thus the language requested by defendant was inapplicable.

The instant case is identical to, and controlled by, Green. Diaz was indicted for aggravated assault by using a deadly weapon, a handgun; he was not charged with the alternative method of committing the crime. The trial court therefore properly charged the jury only on the method of aggravated assault alleged in the indictment, and not on the inapplicable alternative method.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hodges v. State, 248 Ga. App. 23 (1) (545 SE2d 157) (2001).

       See OCGA § 16-5-21 (a) (2) (person commits aggravated assault when he assaults with a deadly weapon).

       See OCGA § 16-11-106 (b) (1) (person who possesses a firearm during the commission of a crime against another person commits a felony).

       See Self v. State, 232 Ga. App. 735, 738 (5) (503 SE2d 625) (1998).

       209 Ga. App. 274 (433 SE2d 383) (1993).

       Id. at 274 (1).


author: Ellington, Judge.

text:
    A02A0196.
    ARRINGTON et al. v. REYNOLDS.
    (564 SE2d 870)
   Ellington, Judge.

Susan and Tommy Lee Arrington filed suit to set aside a foreclosure sale and deed under a power of sale on the ground that their lender failed to give them proper notice prior to selling the property to the defendant, Mack Reynolds. Reynolds counterclaimed for rent and sought expenses of litigation. Following a bench trial, the court ruled in favor of Reynolds, and the Arringtons appealed. Finding no error, we affirm.

The record reveals these relevant facts. The Arringtons were behind in their mortgage payments and in default under the terms of their mortgage. The lender, who was dismissed as a party to this suit, sent a certified letter of its intent to foreclose on the property to the Arringtons’ post office box address on file. This notice was mailed on July 20, 2000, more than 15 days before the September 5, 2000 foreclosure sale. Notice of the sale was also published in the local newspaper.

Although the Arringtons denied receiving the certified letter, it is undisputed that the letter arrived at Susan Arrington’s post office box, that the postal service twice notified her of the letter’s presence, and that the postal service returned the letter to the lender two weeks later as “unclaimed.” Susan Arrington, who was responsible for the mortgage payments, denied forwarding her mail to the post office box address and initially swore that she never had a post office box. However, the record reveals that Susan Arrington rented the post office box to which the notice was sent and that she signed an order forwarding her mail there. Susan Arrington also later opened a second post office box and forwarded mail from her old post office box to the new one. Further, Reynolds adduced evidence showing that Susan Arrington forged her husband’s name to a quitclaim deed, transferring the property to herself alone. Tommy Lee Arrington contended that his wife did this so that it would be easier for them to refinance the mortgage. She did this just months before she stopped making payments on the mortgage.

Reynolds bought the Arringtons’ property at the foreclosure sale. The deed stated that the lender had given notice “by registered or certified mail, return receipt requested to the property address, or to such other address as the debtor or other person may have designated by written notice” to the lender. The Arringtons stipulated that Reynolds was a bona fide purchaser in good faith. After Reynolds took title to the property, he obtained a writ of dispossession. The Arringtons did not appeal that final judgment. Nevertheless, they remained on the property for five months without paying rent.

Given this evidence, the trial court refused to set aside the foreclosure sale and deed. Further, the court found that Susan Arrington provided false and misleading information in her deposition, the Arringtons acted in bad faith by unreasonably and wilfully refusing to surrender the property, and they had been stubbornly litigious. The court awarded Reynolds $6,000 as the reasonable rental value of his property, plus $4,500 in attorney fees.

1. The trial court properly refused to set aside the foreclosure sale and deed under a power of sale on the basis that the lender failed to give the Arringtons the requisite 15-day notice under OCGA § 44-14-162.2. It was not necessary for Reynolds to show that the Arringtons actually received the certified letter. The failure to accept registered or certified mail is equivalent to receipt in this context, given proper addressing and mailing. See, e.g., McCollum v. Pope, 261 Ga. 835-836 (411 SE2d 874) (1992) (actual receipt of OCGA § 44-14-162.2 notice of initiation of proceedings to exercise the power of sale in a mortgage, security deed, or other lien contract is immaterial to right of grantee to sale under power). The record supports a finding that the certified letter was properly addressed and mailed. Moreover, because the deed in question contained the requisite recitals pertaining to the statutory 15-day notice, Reynolds is insulated from claims that the lender’s notice was insufficient. Such recitals in the deed pursuant to OCGA § 44-14-162.4 protect “the validity of the title of any subsequent purchaser in good faith other than the lender.” Id. See Abdalla v. Reagin Enterprises, 256 Ga. 279 (347 SE2d 585) (1986). Because Reynolds was such a purchaser, the Arringtons’ claim of insufficient notice is unavailing as to him.

2. The evidence supports the trial court’s award of $6,000 in rent. The record supports a finding that a reasonable rent for the property was $1,200 per month and that the Arringtons occupied it for five months after Reynolds was legally entitled to take possession. See Jefferson v. Kennedy, 41 Ga. App. 672 (2) (154 SE 378) (1930) (“A tenant at sufferance is liable for the reasonable rental value of the premises.”).

3. The trial court properly awarded Reynolds attorney fees under OCGA § 13-6-11 on his independent counterclaim for rent. The record reveals some evidence supporting the court’s finding that the Arringtons were stubbornly litigious and acted in bad faith. Witty v. McNeal Agency, 239 Ga. App. 554, 557 (1) (c) (521 SE2d 619) (1999).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

Decided May 8, 2002.

Jerry D. Sanders, for appellants.

Wood, Odom & Edge, Arthur B. Edge TV, for appellee.


text:
    A02A0492.
    SEGARS v. CLELAND et al.
    (564 SE2d 874)
   Ellington, Judge.

Gwinnett County homebuilder Terry Segars appeals from the judgment awarded upon a jury verdict in favor of homeowners Cathy Cleland and her neighbors, Kathy and Thomas Nesbitt. In this nuisance suit, Segars built the Nesbitts’ home in violation of county ordinances, infringing upon Cleland’s property rights. Cleland sued Segars and the Nesbitts for constructing a nuisance, and the Nes-bitts cross-claimed against Segars for fraud. The jury found in favor of Cleland on her claims and in favor of the Nesbitts on their cross-claim. For the reasons that follow, we affirm the judgment in favor of Cleland, but reverse the judgment as to the Nesbitts.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.

(Citations and punctuation omitted.) Kimball v. Perrier, 229 Ga. App. 30, 31 (1) (492 SE2d 913) (1997).

So viewed, the evidence showed that Segars built a house too close to Cleland’s home, in violation of Gwinnett County ordinances and subdivision requirements requiring a ten-foot distance between roof lines. In 1995, Segars, an experienced builder of over 100 houses, staked out the vacant lot next door to Cleland’s home in preparation for pouring a foundation for a new house. Cleland noticed that the stakes were too close to her home. She notified Segars immediately, before the foundation was poured, but he responded in a threatening, intimidating, and demeaning manner. He used profanity and called her a “troublemaker” who did not know anything about building. Cle-land asked Segars to confirm his plans to make sure they complied with county ordinances; however, he refused and persisted in building the house. In the meantime, Cleland called the county and confirmed that there was a requirement that houses be at least five feet from the lot lines and have at least ten feet between adjacent roof lines. Cleland obtained a stop work order from the county against Segars in August 1995.

Segars sought a variance from the county, admitting the distance between roof lines was 8.12 feet and stating that he had “forgotten” that there was a ten-foot roof line setback requirement. After pointing out that the ten-foot roof line requirement was recorded both as a general note and as an illustration on the subdivision plat, the county denied Segars’ request. On appeal to the county Zoning Board of Appeals (“board”), Segars admitted he “goofed up,” but complained that the house was now 60 percent complete. The board denied his request for a variance.

He then sent a letter to the county, again admitting that the roof lines were only eight feet apart, but telling the county he had a plan to allegedly bring the home into compliance. Segars planned to cut a large “notch” from the portion of the roof closest to Cleland’s home and replace the shingles with siding. The county promptly notified Segars that his plan was not acceptable, reaffirming the roof line requirement is measured by running a line from front to back along each roof line and measuring the distance between houses at any point along that line. Segars appealed this administrative decision to the board. This time, Segars told the board that he had made a “mistake” in building the house too close to Cleland’s home, but complained that it would present a hardship to adjust or remove the house at this point, since it was almost complete. Instead of ruling that the adjustments to the roof line would bring the house into compliance with the distance requirements, the board granted Segars a hardship variance. Segars cut the notch out of the roof and sold the house to the Nesbitts.

Cleland appealed the board’s decision to the trial court, contending the decision was arbitrary and capricious and that her property values were diminished by the board’s arbitrary decision. As to Segars, Cleland claimed he wilfully and wantonly constructed a nuisance, and she requested compensatory damages, an injunction, attorney fees, and punitive damages. The trial court denied Segars’ motion for summary judgment, finding that the board’s decision should be reviewed for arbitrariness and that issues remained for jury determination as to the damages claims. In July 1999, the trial court reversed the board, specifically finding that the board’s decision to grant a hardship variance lacked any evidentiary or legal support and “fits the very definition of arbitrary and capricious in every respect.” (Emphasis in original.)

Cleland amended her suit to add claims against Gwinnett County, the Board of Commissioners, and the Zoning Board, alleging that the board violated her due process rights and that the board’s actions were sufficiently wilful and wanton as to entitle her to punitive damages. In February 2000, Cleland further amended her complaint to add the Nesbitts, who had purchased Segars’ house, contending they were put on notice of her claims through the filing of a notice of lis pendens on the property. The Nesbitts answered and denied notice of the lis pendens. They also filed a cross-claim for indemnity from the county and Segars, and against Segars for breach of warranty of title, fraud, attorney fees, and punitive damages.

On February 9, 2001, Cleland dismissed with prejudice her claims against Gwinnett County, the Board of Commissioners, and the Zoning Board after the parties reached a settlement. The remaining claims were tried by a jury, who awarded $30,000 in compensatory damages, $31,000 in attorney fees, and $81,742 in punitive damages on Cleland’s claims against Segars; awarded $1 in nominal damages on Cleland’s claims against the Nesbitts; and awarded $7,500 in compensatory damages and $8,200 in attorney fees on the Nesbitts’ cross-claims against Segars. Segars appeals.

1. Segars contends there was insufficient evidence to support the jury’s finding that a nuisance existed, as well as insufficient evidence to support the $30,000 in damages awarded to Cleland. Under OCGA § 41-1-1, “[a] nuisance is anything that causes hurt, inconvenience, or damage to another. . . . The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.”

In this case, the evidence supports a finding that Segars built the house in violation of Gwinnett County zoning requirements. This violation continues unabated, because simply cutting a notch from the roof did not bring the house into compliance with the county’s requirements. Cleland presented evidence that the house, with its noncomplying, notched-out roof, is unsightly; reduces the curb appeal of her property; reduces her privacy, light, and air; reduces her property value upon resale or refinancing by approximately $10,000; and, because of the noncompliance with zoning requirements, will produce “incredible” problems with lenders upon resale.

Under OCGA § 51-12-2 (a), general damages are those presumed to flow from a tortious act and may be recovered without specific proof of any amount. Pursuant to OCGA § 41-1-4, a plaintiff in an action for nuisance may recover for both personal injury and property damage. City of Atlanta u. Murphy, 194 Ga. App. 652, 653 (1) (391 SE2d 474) (1990). “Damages for discomfort and annoyance caused to the owner . . . are separate and distinct from damage to the value of the realty.” (Citation omitted.) Id. An award of damages for discomfort and annoyance is for the enlightened conscience of the jury and should not be disturbed if there is any evidence to support it. Id. at 654 (3); see also Nichols v. Main Street Homes, 244 Ga. App. 591, 595 (3) (536 SE2d 278) (2000); Woodmen of the World &c. v. Jordan, 231 Ga. App. 517, 519-520 (2) (499 SE2d 900) (1998). We find that there was evidence presented to support the jury’s finding that Segars constructed a nuisance and to support the award of damages to Cleland.

2. Segars claims that, if Cleland was not entitled to an award on her nuisance claim, then she is not entitled to an award of attorney fees and punitive damages as a matter of law. Pursuant to our decision in Division 1, supra, this contention is without merit.

3. Segars contends there was insufficient evidence to support the jury’s award of punitive damages to Cleland. Under OCGA § 51-12-5.1 (b), punitive damages may be awarded in a tort action if the plaintiff proves by clear and convincing evidence that “the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

The evidence showed that, when Cleland attempted to avoid this problem by immediately notifying Segars that the house was too close to hers, Segars responded with hostility, profanity, and threats. Instead of simply checking the subdivision plat and revising his plans, he proceeded to build the house, forcing Cleland to secure a stop work order. He then applied for a variance and, when that was denied, attempted to perform an end-run around zoning requirements of which he had early, clear notice. This evidence shows sufficient clear and convincing evidence of wilful misconduct, oppression, and conscious indifference to the consequences to support the jury’s award of punitive damages. OCGA § 51-12-5.1 (b); see Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501) (1991) (one purpose of punitive damages is to deter reprehensible conduct by the defendant).

Although Segars argues on appeal that punitive damages are inappropriate in this case because he complied with county ordinances, the evidence clearly showed that the house as built by Segars never complied with county zoning requirements. Accordingly, the cases he cites for this proposition are inapplicable herein.

4. Segars argues that the Nesbitts failed to present a prima facie claim of fraud and, also, that they failed to present any evidence of actual damages caused by the fraud. Having reviewed the evidence, we agree.

(a) In order to prove a fraud claim, a plaintiff must present evidence of an intentional misrepresentation of a material fact by the defendant upon which the plaintiff justifiably relied to his detriment. Lester v. Bird, 200 Ga. App. 335, 338 (1) (408 SE2d 147) (1991). In this case, the evidence showed that, when the Nesbitts looked at the house in January 1996, Mr. Nesbitt asked Segars why the roof was notched out. Segars told him that there had been a dispute about the placement of the house with the neighbor, but that it had been resolved. The Nesbitts signed a contract to purchase the house on January 8, 1996. On January 10, 1996, Cleland filed suit against Segars and the county. Cleland placed a notice of lis pendens on the property on February 14, 1996. The Nesbitts closed on the house the next day. Mr. Nesbitt testified that Segars never told them about the lawsuit and that they found out much later when Cleland mentioned it.

At trial, Mr. Nesbitt testified that they were seeking only nominal damages based upon Segars’ misrepresentations, as well as attorney fees. There was no testimony about the alleged breach of warranty of title. Although the Nesbitts argued that they might incur substantial damages in the future if the trial court ordered the house to be removed, the trial court chose not to do so. The Nesbitts presented no evidence to support a finding of actual damages incurred as a result of the misrepresentation. In an action for fraud, the measure of damages is the actual loss sustained, and “[t]he question of damages cannot be left to speculation, conjecture and guesswork.” (Citations and punctuation omitted.) Kimball v. Perrier, 229 Ga. App. at 33 (1). See also Stiefel v. Schick, 260 Ga. 638, 639 (2) (398 SE2d 194) (1990) (holding that nominal damages for fraud are improper, as the party must show that actual, not just nominal, damages flowed from the alleged fraud). Accordingly, the award of damages to the Nesbitts must be reversed.

(b) As the Nesbitts failed to establish any actual damages, their award of attorney fees also must be reversed. See Minter v. Powell, 152 Ga. App. 449, 452 (4) (263 SE2d 235) (1979).

5. Segars complains the trial court erred by denying his motion for mistrial based upon certain statements by the trial court, complaining that the trial court prejudiced the case. This enumeration lacks merit.

The trial court’s comments were made after Segars repeatedly suggested to the jury that the board had interpreted the zoning requirements in a way to find the house in compliance. The comments, which the record clearly shows were made outside the presence of the jury, reminded Segars that the trial court had already ruled that the board improperly granted a variance and that the board had not interpreted the zoning requirements at all or found Segars’ house to be in compliance. Segars failed to establish any error or that he was prejudiced by this restatement, out of the presence of the jury, of the trial court’s earlier ruling.

Further, there is no merit to Segars’ complaint that the trial court made a statement in front of the jury that his counsel misrepresented to the jury the actions of the Zoning Board of Appeals. The trial court’s statement was, in fact, true. Counsel initiated the discussion by stating in front of the jury that the board told Segars to “cut the roof off” and that this would solve the ordinance violation. The trial court stated that the board did not tell Segars to cut off the roof and immediately excused the jury and admonished counsel for his repeated, intentional misstatements. Having reviewed the context of the statements, we find no error.

6. Segars contends the trial court erred in failing to grant a directed verdict to him as a joint tortfeasor after Cleland dismissed her case against the county. We disagree.

On February 9, 2001, Cleland dismissed her appeal to the superior court as to defendants Gwinnett County, the Board of Commissioners of Gwinnett County, and the Zoning Board of Appeals of Gwinnett County. Segars contends that, pursuant to the dismissal of a joint tortfeasor, the trial court should have dismissed Cleland’s claims against him. Cleland argued the county and Segars were not sued as joint tortfeasors, as she had different claims against each party which were combined in one suit, and that she never intended to release Segars when she voluntarily dismissed the county. The record clearly shows that the dismissal applied only to Cleland’s claims against the county.

Unless a voluntary dismissal is based upon an adjudication on the merits, its effect “does not extend to any party not named therein.” Hedquist v. Merrill Lynch &c., 272 Ga. 209, 212 (2) (528 SE2d 508) (2000). See also Miller v. Grand Union Co., 270 Ga. 537, 538 (1) (512 SE2d 887) (1999) (“only those parties named in the release will be discharged by that instrument”) (citation and punctuation omitted; emphasis in original). The trial court properly determined that Cleland’s claims against Segars survived her voluntary dismissal of her claims against the county.

Decided May 8, 2002

Cert, applied for.

Webb, Tanner & Powell, Anthony O. Powell, Matthew P. Benson, for appellant.

Fowler, Hein & Kreimer, Stanley E. Kreimer, Jr., Lefco & Blu-menthal, Stanley M. Lefco, for appellees.

7. Pursuant to our decision in the preceding Divisions, Segars’ remaining enumeration is moot.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Eldridge, J., concur.

       Additional relevant facts regarding the procedural posture of this suit are presented in Cleland v. Gwinnett County, 226 Ga. App. 636 (487 SE2d 434) (1997).

       Although Segars relies on Oklejas v. Williams, 165 Ga. App. 585 (302 SE2d 110) (1983), for the proposition that the loss of aesthetic value alone cannot support a nuisance cause of action, that case is distinguishable. In Oklejas, the offending structure was legal and the plaintiff’s only complaint was its unsightly appearance.

       At most, the evidence shows that, after months of variance applications, denials, and appeals, Segars was given a hardship variance from the regulations, a variance which was later overturned on appeal as being an unauthorized, arbitrary, and capricious act of the board.

       We reject Segars’ argument that the dismissal of the Zoning Board as a party to the action effectively affirmed the Zoning Board’s decision granting a hardship variance. The trial court reversed the Zoning Board’s decision, and the trial court’s decision was not appealed. Further, this enumeration is unsupported by any citation to legal authority and, therefore, is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).


author: Ruffin, Judge.

text:
    A02A0051.
    RAINEY et al. v. 1600 PEACHTREE, LLC.
    (565 SE2d 517)
   Ruffin, Judge.

Eleanor Rainey was injured when she slipped and fell on an allegedly unsafe step while leaving a building at .1600 Peachtree Street. Rainey sued 1600 Peachtree, LLC for negligence, and her husband brought a loss of consortium claim. 1600 Peachtree moved for summary judgment, which the trial court granted. This appeal ensued. For reasons that follow, we affirm.

On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. So viewed, the record shows that Equifax hired contractors to construct three buildings at 1600 Peachtree Street. On March 11, 1994, 1600 Peachtree purchased the complex from Equifax. That same day, 1600 Peachtree leased the facilities back to Equifax. Under the terms of the lease, Equifax remained responsible for maintaining and repairing the premises.

On September 16, 1998, Rainey, an Equifax employee, left the building using an exit that she had never used before. When Rainey stepped out of the building, she fell on a step she described as “unsafe.” According to Rainey, the step was partially hidden and was not built in compliance with existing safety codes. Rainey retained an expert “accident construction and cause analysis engineer” who averred that “[t]he defect with the exit way was evident upon a rudimentary investigation.” Specifically, the expert stated that the steps “were unequal as to the height, length and width” and that the landing was not the same width as the door as required by the building code.

Rainey sued 1600 Peachtree, claiming that the landlord either knew or should have known about the defect, yet failed to warn of the defect or repair the step. 1600 Peachtree moved for summary judgment, asserting that, as an out-of-possession landlord, it could not be held liable for Rainey’s injuries. The trial court agreed and granted the motion.

Rainey contends that the trial court erred in granting summary judgment because issues of fact remain regarding whether 1600 Peachtree breached a duty of care it owed her under OCGA § 51-3-1 and/or § 44-7-14. We disagree.

It is undisputed that 1600 Peachtree is an out-of-possession landlord. Thus, OCGA § 51-3-1, which sets forth the general duties of an owner/occupier of land, does not apply. Rather, this case must be analyzed under OCGA § 44-7-14, which sets forth the obligations of a landlord. Under this Code section, an out-of-possession landlord is not liable to third persons for damages in tort unless it is shown that the damages resulted either from failure to repair the premises or faulty construction of the premises.

“The liability of an owner for failure to repair who . . . has fully parted with possession and the right of possession [ ] arises only in instances where there is a duty to repair and notice has been given of the defect.” However, nothing prohibits a landlord of commercial premises from assigning by contract its duty to repair and maintain the premises. Here, the contract between 1600 Peachtree and Equifax placed the duty to repair and maintain the premises squarely on Equifax. It follows that 1600 Peachtree cannot be held liable for breaching this duty.

Thus, 1600 Peachtree’s liability, if any, must be predicated upon the faulty construction of the premises. It is undisputed that 1600 Peachtree did not construct the premises, which, under the general rule of OCGA § 44-7-14, precludes liability. However, as Rainey points out, there is an exception to this general rule, which is found in Flagler Co. v. Savage, cited by Rainey.

In Flagler Co., the Supreme Court concluded that an out-of-possession landlord may be liable “[i]f a building were defectively constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created.” As the Supreme Court recently clarified, however, this is a “limited exception to the statutory limits of an out-of-possession landlord[ ].” Indeed, Georgia courts have generally applied the exception only in those cases involving egregious structural defects. And the exception is viable only in those cases in which a plaintiff can show “the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property.” According to the Supreme Court, “the reason to support the Flagler exception [to OCGA § 44-7-14]” is that, “[w]hen purchasing commercial or residential property, it is standard practice to engage in a thorough inspection of the property — including the integrity of any structures thereon.”

Accordingly, in keeping with the narrow exception of Flagler Co. and the Supreme Court’s most recent pronouncement upon the subject, an out-of-possession landlord of a property constructed by a predecessor in interest may be held liable only for those structural defects that would be discovered during a pre-purchase building inspection. Such out-of-possession landlord is not liable for all defects because

[o]rdinary care in the fulfillment of the landlord’s duty to keep the premises in repair does not embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein. This would be but to place upon the landlord an absolute duty to rent premises free from latent defects. It follows that a proper application of the landlord’s duty to [inspect premises] does not, under any theory, result in making the landlord liable for a latent defect in the premises, simply because it existed at the time of the lease.

Decided May 9, 2002

Peter M. Blackford, Peter M. Blackford, Jr., for appellants.

Cobb, Grabbe, Spillers & Irwin, Charles E. Johnson III, for appellee.

Thus, we must decide whether the alleged defect — the uneven steps and small landing — constitutes the type of structural defect that would be discovered during a pre-purchase building inspection or is simply a latent defect in existence at the time 1600 Peachtree purchased the property. We find it is the latter.

Although the expert retained by Rainey contends that the defect was evident upon a “rudimentary investigation” of the accident scene, it does not follow that the landlord had superior knowledge. The standard to which we hold the out-of-possession landlord is not what defect could have been discovered after a fall — with the benefit of hindsight and an examination of the specific scene — but what defect would have been discovered during a routine building inspection. Here, 1600 Peachtree Street is a complex of three separate buildings that occupies over six acres of land. Given the number of stairs and landings sure to exist in a complex of that size, we fail to see how ordinary care would require the measuring of each step and landing as part of a routine building inspection. Indeed, Rainey does not contend such is the case. Her expert, an “accident construction and cause analysis engineer,” does not purport to be a building inspector, and he provides no insight into inspection practices.

Under these circumstances, we find this case does not come within the narrow exception set forth in Flagler Co. It follows that the trial court properly granted 1600 Peachtree’s motion for summary judgment.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Jackson v. Ford, 252 Ga. App. 304 (1) (555 SE2d 143) (2001).

        See Martin a Johnson-Lemon, 271 Ga. 120, 122-123 (1) (516 SE2d 66) (1999).

       See id.

       See id. at 123 (2).

       (Punctuation and emphasis omitted.) Johnson v. Loy, 231 Ga. App. 431, 434 (2) (499 SE2d 140) (1998).

       See id. at 434-435; see also Groutas v. McCoy, 219 Ga. App. 252, 254 (1) (464 SE2d 657) (1995) (“the owner of property not used as a ‘dwelling place’. . . can contract to avoid the duties to repair and improve the property set forth in OCGA §§ 44-7-13 and 44-7-14”).

       See id.; Johnson, supra.

       258 Ga. 335 (368 SE2d 504) (1988).

       (Emphasis omitted.) Id. at 337 (2).

        Martin, supra at 126 (4), n. 16.

       See Flagler Co., supra (restaurant patron fell down 70-foot precipice adjacent to parking lot that was concealed by foliage and lacked a protective structure or warning signs); Spence v. C & S Nat. Bank, 195 Ga. App. 294 (393 SE2d 1) (1990) (employee fell through floor constructed of unreinforced pressboard).

       (Punctuation omitted.) Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991).

        Martin, supra.

       (Punctuation omitted.) Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 864 (449 SE2d 348) (1994).

       See Martin, supra.