text:
    A97A1419.
    ALEMAN v. THE STATE.
    (489 SE2d 867)
   Blackburn, Judge.

Mark Aleman appeals his conviction of armed robbery and aggravated assault in connection with the robbery at gunpoint of a pedestrian. Aleman presented a coercion defense at trial and now claims that the evidence adduced was insufficient to sustain the jury’s verdict. He also contends that the court erred in denying his motion for a continuance and alleges that he received ineffective assistance of counsel. For the reasons set forth below, we affirm the conviction.

1. The standard of review for a claim of insufficiency of the evidence is well established. “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). 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.” (Citation and punctuation omitted.) Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996).

Applying this standard to the facts of this case, the evidence shows that on April 3, 1995, the victim, Edward Myers, was walking toward a park in DeKalb County when a light blue Volkswagen drove by. After passing him, the car made a U-turn and came back to Myers. At this point, Aleman, who was driving the car, asked Myers if anyone was playing basketball in the park. As Myers responded, Aleman stopped the car, and a passenger jumped out and pulled a gun on Myers. Aleman remained in the car and watched while the gunman robbed Myers. After robbing him, the gunman told Myers to run and fired at him once. Myers testified that once the robbery was completed, Aleman drove off with the gunman. Aleman was apprehended alone a short time later..

Aleman contends this evidence is insufficient to support his conviction for armed robbery and aggraváted assault because he was coerced into committing these offenses. According to him, he was carjacked and robbed by the gunman, then forced at gunpoint to drive to the area where Myers was robbed. He testified that the gunman threatened to kill him if he did hot cooperate and therefore contends he could not have aided or abetted the gunman or been a party to the crimes committed.

OCGA § 16-3-26 precludes a person from being, guilty of any crime except murder “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” Coercion is an affirmative defense, see OCGA § 16-3-28, and the burden rests upon the State to disprove coercion beyond a reasonable doubt. See Hansen v. State, 205 Ga. App. 604, 607-608 (2) (423 SE2d 273) (1992).

To disprove Aleman’s coercion defense, the State elicited testimony from the victim, Myers, regarding Aleman’s demeanor during the robbery. According to Myers, had Aleman wanted to escape the situation, he had sufficient time to drive or run away from the robbery while the gunman was out of the car holding up Myers. However, Myers testified that Aleman made no attempt to drive or run away, but simply looked at Myers throughout the robbery. Myers testified that once the robbery was completed, Aleman looked back as if to say, “hurry up, let’s go” before driving off with the gunman. Myers also testified that Aleman in no way seemed to be an unwilling participant in the crimes which were committed.

The State also relied upon the testimony of the arresting officer, Larry Dodson, to disprove Aleman’s coercion defense. Dodson testified that immediately following the robbery, which Myers had quickly reported, Dodson was told to be on the lookout for the Volkswagen. He located the car and followed it and noted that it contained two individuals. When Dodson turned on his lights to pursue the car, it sped up. He lost sight of it briefly, during which time Aleman contends the gunman exited the car, and when Dodson located the car again, Aleman alone pulled into a motor repair shop. Upon exiting the car, Aleman did not report that he had just been carjacked, that the gunman had just robbed and shot at Myers, or that the gunman was in the area. Instead, he told Dodson that he was at the repair shop to get his car fixed. Upon searching his car, a loaded handgun and a cap pistol were discovered.

Although Aleman offered explanations for his behavior during and after the robbery, “ ‘the credibility of witnesses and the resolution of evidentiary conflicts are for the jury.’ ” (Citation omitted.) Price v. State, 223 Ga. App. 185, 190 (10) (477 SE2d 353) (1996). Whether or not a defendant is coerced into acting is a question for the trier of fact. See In the Interest of W. C. J., 218 Ga. App. 452, 454 (1) (462 SE2d 168) (1995). Also, “[cjoercion is a defense only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm. That question is for the jury.” (Citation omitted.) Stitt v. State, 190 Ga. App. 58, 59 (378 SE2d 168) (1989).

In this case, Aleman’s conduct both during and after the robbery authorized the jury’s finding beyond a reasonable doubt that he committed the offenses charged by being a party to these crimes. See Rhodes v. State, 239 Ga. 257, 259 (236 SE2d 609) (1977) (defendant’s conduct after arrest is relevant in considering a coercion defense). Although he contends that the circumstantial evidence .does not exclude every reasonable hypothesis save that of guilt, this argument does not warrant reversal on the facts of this case. “In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.” (Citations and punctuation omitted.) Jenkins v. State, 223 Ga. App. 446, 447 (1) (478 SE2d 143) (1996). “Whether this burden has been met is a question for the jury.” (Citation and punctuation omitted.) Harris v. State, 223 Ga. App. 661, 662 (478 SE2d 458) (1996). The jury resolved this issue against Aleman, and as its verdict meets the criteria of Jackson v. Virginia, supra, it will not be disturbed on appeal.

2. Aleman contends the trial court erred in failing to grant a continuance in order for his counsel to prepare for trial. He further alleges that as a result of the trial court’s denial of this motion, he received ineffective assistance of counsel.

(a) With respect to Aleman’s contention that the court erred in failing to grant a continuance, “[a] motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial court and a ruling denying such a motion will not be interfered with unless the court has abused its discretion in denying the motion.” (Citations and punctuation omitted.) Marion v. State, 224 Ga. App. 413, 414 (1) (480 SE2d 869) (1997).

The facts indicate that Aleman retained and discharged two sets of counsel prior to hiring the counsel who represented him at trial. Just prior to hiring his trial counsel, Aleman requested the court’s permission to discharge the second set of lawyers, as the case was already set for trial. The court acquiesced, but specifically told Aleman that if he sought new counsel, “inasmuch as we are at a trial calendar, whomever you hire must be ready to proceed to trial on this case ... no delays.” Aleman hired his trial counsel shortly thereafter, on May 27, 1996.

Trial was scheduled for June 3, 1996, and on this day, counsel requested a continuance in writing. No record of the court’s denial of this motion appears in the transcript, but trial counsel testified at the motion for new trial that the motion was denied. Nevertheless, Aleman’s counsel in effect received a one-week continuance, as the case was not called for trial until June 11, 1996.

On these facts, we find no abuse of discretion. “In these cases we have noted that the conduct of the party is a relevant and proper consideration of the court in the exercise of its discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic.” (Citations and punctuation omitted.) Marion, supra at 414 (1). The court informed Aleman after he discharged his second counsel that there would be no delays, and that whatever counsel he hired would have to be prepared to try the case. Trial counsel ended up having nearly two weeks to prepare the case, and the Supreme Court has held that “a two-week preparation period is not inadequate as a matter of law.” Roland v. State, 266 Ga. 545, 546 (3) (468 SE2d 378) (1996). Accordingly, we find no error in the trial court’s decision.

(b) Aleman also contends that as a result of the trial court’s denial of his motion for continuance to allow his counsel to prepare, he received ineffective assistance of counsel. “A defendant claiming ineffective assistance of counsel must show (1) that his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Stephens v. State, 224 Ga. App. 184, 185 (3) (480 SE2d 235) (1997).

Aleman’s trial counsel testified that in the two weeks he and his co-counsel had to prepare the case for trial, approximately 140 hours were spent preparing Aleman’s defense. Concerned about the short amount of time they had to prepare, his counsel hired an experienced public defender to help them prepare the case. Complete direct and cross-examinations of Aleman were conducted as practice, and Aleman “spent a great deal of time” in the office participating in the preparation of his defense. Trial counsel also visited the crime scene to help them visualize Aleman’s defense. Based upon this evidence, it cannot be said that by preparing the case for trial in this manner in two weeks time, counsel’s performance fell below an objective standard of reasonableness.

Nor has Aleman pointed to any specific instances at trial where he contends that, due to lack of preparation, his counsel’s performance fell below an objective standard of reasonableness. Besides his bare assertion that he received ineffective assistance due to the denial of his motion for continuance, he does not support his argument by pointing to even a single act or omission of his counsel at trial which he contends was deficient and resulted directly from the denial of his motion. No deficient performance having been shown, Aleman’s ineffective assistance claim must fail, and this enumeration is without merit.

3. In his third enumeration of error, Aleman alleges eight different reasons why he received ineffective assistance of counsel. The standard of review applicable to each reason is the same. “In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Furthermore, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996).

(a) Aleman claims his counsel was ineffective for failing to interview the State’s witnesses prior to trial. The State called only two witnesses, the victim, Myers, and Officer Dodson. Aleman’s counsel testified that he attempted to call Myers, but Myers never returned any of his calls. He also testified that although he attempted to talk to a different officer, he did not talk to Officer Dodson. Even presuming counsel should have interviewed these witnesses prior to trial, there is no indication that Aleman was harmed by his counsel’s failure such that the outcome of the trial would have been different had he conducted the interviews. See generally Mosier v. State, 218 Ga. App. 586, 590 (5) (a) (462 SE2d 643) (1995).

(b) Trial counsel failed to file a motion to suppress the “show-up lineup” of Aleman, and for this reason, Aleman contends he received ineffective assistance. The facts indicate that after Officer Dodson arrested Aleman following the robbery, the police brought Myers to the location where Aleman was arrested, and Myers identified Aleman, who was in handcuffs and the only suspect present, as one of the perpetrators.

Trial counsel testified at the motion for new trial that no motion to suppress this identification was made because Aleman’s defense was not that he was absent when the robbery occurred, but that he was present and was a victim of the robbery. The identification was therefore consistent with Aleman’s defense, and the decision to forgo filing a motion to suppress the identification falls within the realm of trial strategy. “Trial strategy and tactics do not equate with ineffective assistance of counsel. . . . Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Powell v. State, 198 Ga. App. 509, 511-512 (1) (402 SE2d 108) (1991).

(c) Aleman contends that he received ineffective assistance because his trial counsel did not file a motion to suppress a statement made by Aleman following his arrest. As was the case with the showup identification, however, Aleman’s counsel testified at the motion for new trial that no motion to suppress was filed because the statement was consistent with Aleman’s defense in this case. Counsel also testified that he was convinced the statement was voluntarily made. For the same reasons set forth in subdivision (b), it cannot be said that the decision to forgo filing a motion to suppress Aleman’s statements was not trial strategy, and we thus cannot conclude that he received ineffective assistance of counsel. See Powell, supra.

(d) In violation of the court’s ruling, Officer Dodson testified that the police had received reports of several armed robberies that had occurred in the area involving a light blue car. Aleman contends that his counsel was ineffective for failing to move for a mistrial following this testimony.

According to trial counsel, who immediately objected when this testimony was given and approached the bench, no motion for mistrial was made because counsel did not wish to draw any juror attention to this testimony by making such a motion. Counsel also did not wish to have a curative instruction given, which he testified would prejudice Aleman by imbedding a negative thought in the jurors’ minds.

“[Aleman] failed to demonstrate any prejudice arising from counsel’s failure to . . . request a mistrial based on this issue: In addition, we cannot conclude that the failure to . . . move for a mistrial was not a matter of trial strategy. Trial counsel may have felt that... it was in [Aleman’s] best interest for the trial to go forward without any further mention of the incident to the jury.” Bradford v. State, 221 Ga. App. 232, 236 (3) (e) (471 SE2d 248) (1996).

(e) Aleman claims he received ineffective assistance because his counsel failed to object to his absence during the charge conference, which was held in the judge’s chambers. A charge conference, however, is optional and therefore is not one of those proceedings at which a defendant has an unequivocal right to be present. See McBride v. State, 213 Ga. App. 857, 861 (11) (446 SE2d 193) (1994). Aleman has failed to show-how he was harmed by his absence at this optional conference, and his argument is accordingly without merit.

(f) Aleman enumerates as error his trial counsel’s failure “to preserve objections as to the requests to charge” submitted to the court. It appears he is contending that his counsel was ineffective for failing to submit specially tailored charges to the court which closely fit the evidence. We find no error. Aleman’s counsel submitted 33 requests to charge, and the jury was fully and completely charged the pattern charges on mere presence, reasonable doubt, parties to a crime, and' the affirmative defense of coercion. Even assuming arguendo counsel’s performance was somehow deficient, because the jury was accurately charged on all the relevant principles of law, Aleman cannot show that but for his counsel’s deficiency the outcome of his trial would have been different.

(g) During the course of the trial, Aleman’s counsel witnessed a juror speak to an individual who was not on the jury, but who was present in the courtroom during proceedings which were conducted outside the presence of the jury. Aleman contends , his. counsel rendered deficient representation for failing to object to this possible juror misconduct.

The transcript indicates that Aleman’s counsel did bring the possible juror misconduct to the court’s attention and informed the court that he did not know what the conversation was about. The court offered to make inquiry of the juror, but counsel declined. At the motion for new trial, counsel testified that this decision was a strategic one, as both of Aleman’s trial counsel believed that he would be harmed by the court’s singling out a juror. Counsel was afraid this situation would lead to the creation of “an enemy in the jury box.”

As stated above, strategic decisions made during the course of a trial do not constitute ineffective assistance of counsel. See Powell, supra. As Aleman cannot show that the juror’s conversation with the individual was related to the case and that the conversation was harmful to him, he has not shown that his counsel was ineffective in this regard.

Decided July 25, 1997.

Pandie C. Engle, Paige A. Pastor, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Carol M. Kay ser, Assistant District Attorneys, for appellee.

(h) Aleman’s counsel did not request that the jurors be polled when the verdict was returned, and he asserts this failure resulted in ineffective assistance. “[Aleman] has cited us to no authority requiring trial counsel, in order to effectively represent his client, to poll the jury. . . . [W]e do not agree with appellate counsel that appellant’s trial counsel was ineffective.” Malerba v. State, 172 Ga. App. 457, 458 (1) (323 SE2d 666) (1984). This enumeration is therefore without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A1452.
    FERGUSON v. SCADRON.
    (489 SE2d 873)
   Judge Harold R. Banke.

In this premises liability case, Fred Scadron sued T. C. Ferguson d/b/a Georgia Hobby Center (“Hobby Center”) for personal injuries he suffered after falling through an opening in scaffolding. The jury awarded Scadron $25,000. Hobby Center appeals the denial of its motion for directed verdict, enumerating one error.

Scadron sustained the injuries at issue while participating in a radio-controlled miniature car race the Hobby Center sponsored on its premises, the Second Annual Southeast Gas Off-Road Championships. Hobby Center held its races on an oval dirt track. Contestants stood around the track or on two scaffolds standing approximately five feet off the ground next to the track. One of the scaffolds was a permanent wood structure used during Hobby Center’s weekly races. But Hobby Center rented the second, on which the injury at issue occurred, to accommodate the crowd of participants attending the Championships. The second scaffolding was metal and stood adjacent to the permanent structure. Hobby Center removed a plank from the rear of the metal scaffolding so participants could climb up from the back, rather than walking the length of the wood scaffolding to reach the metal structure. This left an opening seven feet long and sixteen inches wide at the rear of the platform on the metal scaffolding. It is undisputed that Hobby Center provided no warnings around this opening.

The Championships were Scadron’s first trip to Hobby Center and his first competition with a gas-powered car. After his arrival at the track, Scadron stárted his car and walked up a ramp onto the crowded wooden scaffolding, immersed in preventing his car from stalling out or injuring anyone. As he made his way through the crowd, which he likened to a corral of cows, he faced the track and stayed close to the railing on the front of the scaffolding to avoid losing eye contact with his car. Because the area was crowded, he walked down the stands to the end of the metal scaffolding. After his race ended, he concentrated on expeditiously moving his car from the track to avoid interference with his radio signals by other participants. In so doing, he took a step backward and fell through the opening where the plank had been removed. Held:

Unless no conflicts in the evidence as to any material issue exist and the evidence admitted, with all reasonable deductions therefrom, demands a certain verdict, a directed verdict is inappropriate. Fouts v. Builders Transport, 222 Ga. App. 568, 577 (9) (474 SE2d 746) (1996). In deciding whether a conflict exists, the evidence must be construed in the light most favorable to the nonmovant. Southern R. Co. v. Lawson, 256 Ga. 798, 799-800 (1) (a) (353 SE2d 491) (1987).

To preclude a directed verdict, Scadron had to present evidence that: (1) Hobby Center had actual or constructive knowledge of the hazard, and (2) he lacked knowledge of, or Hobby Center prevented him from discovering, the opening. Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981). The basis for a property owner’s liability to an invitee is a superior knowledge of the allegedly hazardous condition. Id. Property owners are under a duty to take reasonable precautions to protect invitees from dangers which are foreseeable from the arrangement and use of the premises. Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991). Invitees are entitled to expect that property owners will exercise reasonable care to make the premises safe. Id. Questions of ordinary care are generally left to the jury unless the plaintiff’s knowledge of the risk is clear and palpable. Id.; Sumner v. Ideal Steel Products, 222 Ga. App. 681, 683 (475 SE2d 708) (1996).

Although Scadron admitted that he was not looking behind him at the time he fell, he offered a specific reason for not doing so. See Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994). When he fell just after the race, Scadron was focused on getting his car safely and expeditiously off the track before the next heat began because he believed the cars created a hazard due to the volatility of their fuel and their potential for flying out of control and hitting spectators. Scadron also explained why he failed to see the opening as he mounted the scaffolding: it was crowded just prior to the race, and as he mounted the platform, he walked sideways, without taking his eyes off his car, working the trigger to his radio controls to bring it up to temperature and assure that it did not stall out. This testimony was sufficient to create a jury question. Id. at 225 (under some circumstances the exercise of reasonable care demands a focus away from the floor). In light of Scadron’s testimony about the crowd on the scaffolding and his unfamiliarity with the venue and the type of car and the facts that Hobby Center sponsored the race, procured the metal scaffolding to accommodate the expected crowd of participants, and knew or should have known that the participants would focus their attention on the competition five feet below, we cannot say as a matter of law that the opening was so obvious that Scadron’s failure to see it constituted a lack of reasonable care. Lawless, 200 Ga. App. at 399.

Decided July 25, 1997.

Bach & Hulsey, Robert J. Hulsey, for appellant.

Albert A. Mitchell, for appellee.

Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210 (335 SE2d 451) (1985) is distinguishable. First, there is no evidence that Scadron “took advantage of the opportunity to review the area where . . . the [opening] was situated for any possible hazards.” Id. at 211. As noted, whether he exercised reasonable care in focusing on his car while mounting the scaffolding rather than the area behind him was a question properly left to the jury. The fact that Hobby Center fully anticipated the bustling throng of participants in the area of the alleged hazard and set up the extra scaffolding to accommodate it also distinguishes Anderson. Under these circumstances, we cannot say the trial court erred in denying Hobby Center’s motion for directed verdict.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.


author: Blackburn, Judge.

text:
    A97A1669.
    NORRIS v. THE STATE.
    (489 SE2d 875)
   Blackburn, Judge.

Eric Scott Norris appeals his conviction of felony escape. Norris contends that the trial court erred in admitting evidence of his previous convictions, in allowing the State to cross-examine him regarding crimes for which he had not been convicted, and in improperly limiting his cross-examination of a State’s witness regarding pending charges against the witness. Norris also contends that the evidence was insufficient to support the verdict.

1. Norris asserts that the trial court committed reversible error when it allowed the State to introduce evidence of his prior convictions after he offered to stipulate that he had been convicted of a felony in Carroll County for which he was being lawfully held.

OCGA § 16-10-52 (a) provides that “[a] person commits the offense of escape when he: (1) [h]aving been convicted of a felony or misdemeanor . . . intentionally escapes from lawful custody or from any place of lawful confinement.” In Dixon v. State, 234 Ga. 157, 158 (1) (215 SE2d 5) (1975), the Supreme Court of Georgia determined that “[t]he lawful confinement of the appellant at the time of his escape was a necessary element of that offense and the fact that the appellant offered to stipulate that he was lawfully confined would not prevent the state from proving this element of the crime.” Therefore, Norris’ argument has been decided adversely to him.

Norris’ reliance on Fears v. State, 138 Ga. App. 885 (227 SE2d 785) (1976) is misplaced. In Fears, the defendant was convicted of misdemeanor escape. Therein we specifically distinguished felony escape and stated that “proof of the prior conviction is required in felony escape trials.” Id. at 887 (2). Norris’ enumeration of error is without merit.

2. In his second enumeration of error, Norris contends that the trial court improperly allowed the State to cross-examine him regarding crimes of which he had not been convicted.

The record reflects that when questioning Norris about the basis of his incarceration, the State asked if he was found guilty on a 13-count indictment. Norris answered that he was not convicted of all 13 crimes. When asked if he was convicted on numerous counts, Norris responded affirmatively. After the trial court overruled Norris’ counsel’s objection to mentioning the counts of which Norris had not been convicted, the State proceeded to list the charges of which Norris was convicted — several counts of cruelty to children and giving false statements. The State also listed the charges of which he was not convicted — kidnapping, battery, false imprisonment, and bigamy.

In Division 1, we determined that the State was allowed to introduce evidence of prior convictions to establish the elements of felony escape. However, allowing evidence of crimes charged for which the defendant was found not guilty does not establish any element of felony escape nor does it rebut Norris’ claim of coercion. Therefore, the introduction of this evidence was error. This finding, however, does not end our inquiry. We must now determine whether “it is highly probable that this error did not contribute to the jury’s verdict. See Pardo v. State, 215 Ga. App. 317, 318 (2) (450 SE2d 440) (1994).” Carlton v. State, 224 Ga. App. 315, 317 (2) (480 SE2d 336) (1997).

The evidence at trial established that Norris admitted escaping; however, he contended that he was coerced into escaping by another inmate. OCGA § 16-3-26 precludes a person from being guilty of any crime except murder “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” Coercion is an affirmative defense, see OCGA § 16-3-28, and therefore the burden rests upon the State to disprove coercion beyond a reasonable doubt. See Hansen v. State, 205 Ga. App. 604, 607-608 (2) (423 SE2d 273) (1992).

To disprove Norris’ coercion defense, the State elicited testimony from Edwin Thompson, a co-escapee, and Vicky Steed, an investigator with the Carroll County Sheriff’s Office. Thompson testified that several inmates were planning to escape, but only he and Norris crawled through a hole in the ceiling into vents which eventually led to the roof. They ran across the roof and dropped off the building to the ground outside the fence. Investigator Steed testified that upon arresting Norris for escape, he was taken to the hospital for a broken leg. A few days later Investigator Steed took Norris’ statement after informing him of his Miranda rights. Norris told Investigator Steed that he and Thompson crawled through a hole in Cell 33 and came out the air conditioning duct on top of the building. Norris stated that he broke his leg when he dropped off the building onto the ground. Thompson helped him, and they went to an apartment. Norris initially stated that Cathy Healy was waiting in a car at the highway, but later he agreed with Thompson that no one was waiting for them. Norris stated that he lied in order to get Healy in trouble because she had testified against him at the trial on his original conviction. Norris did not indicate to Investigator Steed that he had been threatened or coerced into escaping.

Based upon the evidence presented at trial, including Norris’ admission of his escape, his failure to tell his co-escapee or the investigator that he was coerced, and admissible evidence of previous convicted crimes, we find that it is highly probable that the introduction of the indictment containing crimes of which Norris was acquitted did not contribute to the jury’s verdict.

3. Norris contends that the trial court erred in restricting his cross-examination of the co-escapee, the State’s witness, regarding any pending charges against the witness. The record reflects that the court did not allow questions regarding a charge of statutory rape that was dropped by the prosecutor’s office over a month prior to the escape.

“A criminal defendant has the right to cross-examine a witness concerning pending criminal charges against the witness for purposes of exposing a witness’ motivation in testifying, e.g., bias, partiality, or agreement between the government and the witness. Davis v. Alaska, 415 U. S. 308, 316-317 (2) (94 SC 1105, 39 LE2d 347) (1974); Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982). At the same time, the extent of cross-examination is within the sound discretion of the trial court. Hines, supra at 260 (2).” Kennebrew v. State, 267 Ga. 400, 402-403 (3) (480 SE2d 1) (1996).

In the present case, the witness testified that he pled guilty to the escape charge and the State recommended that he receive a concurrent sentence. The witness was cross-examined regarding the reasons why he was in jail at the time of the escape. He was on parole for a burglary conviction, and his parole was revoked because of “dirty urine, moving without authorization, change of residence and failure to stay in substance abuse counseling.” Cross-examination was restricted by the court only when the defense attempted to question the witness regarding charges which were dropped prior to the escape.

Under such circumstances, the defense was allowed to question the witness regarding any pending criminal charges against him to expose his motivation to testify. We cannot say that the trial court abused its discretion by limiting the cross-examination to charges pending at the time of the escape.

Norris also contends that the trial court improperly invoked the Fifth Amendment for the witness. However, Norris failed to enumerate this as error. Therefore, we do not address it. “When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted in the single enumeration. (Cit.) Howard v. State, 220 Ga. App. 267, 271 (4) (469 SE2d 396) (1996).” (Punctuation omitted.) Quarterman v. State, 223 Ga. App. 566, 569 (5) (d) (479 SE2d 397) (1996).

4. In his final enumeration of error, Norris contends that the evidence was insufficient to support his conviction.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. . . . [Cit.] To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Punctuation omitted.) West v. State, 224 Ga. App. 190 (1) (480 SE2d 238) (1997).

Although Norris contended at trial that he was coerced into escaping, “the credibility of witnesses and the resolution of evidentiary conflicts are for the jury.” (Citations and punctuation omitted.) Price v. State, 223 Ga. App. 185, 190 (477 SE2d 353) (1996). Norris’ failure to tell Investigator Steed about any coercion is relevant to our consideration of his affirmative defense. See Rhodes v. State, 239 Ga. 257, 259 (236 SE2d 609) (1977). Whether a defendant is coerced into acting is a question for the trier of fact. See In the Interest of W. C. J., 218 Ga. App. 452, 454 (1) (462 SE2d 168) (1995). Also, “Coercion is a defense only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm. That question is for the jury.” (Citation omitted.) Stitt v. State, 190 Ga. App. 58, 59 (378 SE2d 168) (1989).

Decided July 25, 1997.

Thomason & Blackmon, Dennis T. Blackmon, for appellant.

Peter J. Skandalakis, District Attorney, Christopher J. Adams, Assistant District Attorney, for appellee.

Viewing the evidence in the light most favorable to the verdict, we find it sufficient to authorize the jury’s finding that Norris was guilty beyond a reasonable doubt of escape.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Beasley, Judge. Smith, Judge,

text:
    A97A0109.
    CORBIN et al. v. FARMEX, INC.
    (490 SE2d 395)
   Beasley, Judge.

During the course of his employment by Wainwright, Corbin was driving a rig consisting of a tractor and two trailers. One trailer came unhitched from the other and collided with an automobile driven by Black. To recover for injuries sustained, Black sued Wainwright, Corbin, and others. She asserted various acts of negligence, including the inadequate and improper attachment of the trailers to each other.

Wainwright and Corbin asserted as a defense that Black’s injuries were proximately caused by a defectively designed and manufactured hitch pin, which failed in its purpose of securing the connection and coupling between the trailers. Based on this, Wainwright and Corbin filed a third-party complaint against Farmex, Inc. For the purpose of resolving a motion for summary judgment filed by Farmex, the parties agreed that the hitch pin in question was designed and manufactured by an Ohio corporation known as JA-BIL, Inc., and that, after purchasing assets of JA-BIL, Farmex introduced the hitch pin into the stream of commerce in its capacity as a wholesale vendor to a distributor in Georgia. Wainwright and Corbin appeal the trial court’s grant of summary judgment to Farmex.

1. They contend that questions of fact exist as to whether Farmex can be held strictly liable in tort for a defect in the hitch pin.

“OCGA § 51-1-11 (b) (1) provides for strict liability with respect to the manufacturer of personal property sold as new.” (Emphasis in original.) Buford v. Toys R’ Us, 217 Ga. App. 565, 566 (1) (458 SE2d 373) (1995); Ream Tool Co. v. Newton, 209 Ga. App. 226, 227 (3) (a) (433 SE2d 67) (1993). “A mere ‘product seller’ is not a manufacturer, and is not liable as a manufacturer on grounds of strict liability. OCGA § 51-1-11.1.” Id. But when a corporation that has manufactured a product is purchased by another corporation, the purchaser may be held liable for the torts of the seller under certain circumstances.

Approximately two years before the collision in this case, Farmex and JA-BIL entered into an “Asset Purchase Agreement” under which Farmex purchased substantially all assets of JA-BIL “as a going concern” in order to engage in the continued conduct of JA-BIL’s business of manufacturing, warehousing, and selling hitch parts to the agricultural community and screw machine job shop. Farmex bought all the manufacturing equipment. The assets transferred expressly included all the assets “used or held for use in connection with the Business . . . and . . . the use of which is reasonably necessary for the performance of any contract to be assumed by Purchaser and the continued conduct of the Business as currently conducted.”

The agreement listed certain excluded assets and liabilities, of which the latter were much more extensive. The acquired assets, which included inventory, equipment, fixtures and goodwill, were valued at $867,106.54. Consideration for the purchase included Farmex’s assumption of various specified liabilities of JA-BIL in an equal amount. As between them, the assumed liabilities did not include any tort or product liability. As a condition precedent to completion of the asset purchase agreement, and for a separate monetary consideration in the amount of $323,810, JA-BIL, its president, and another individual signed a non-competition agreement of several years duration.

When one company sells its assets to another company, the purchaser does not acquire the liabilities of the seller merely because of its purchase of the seller’s assets. But, four exceptions have been recognized. As summarized in Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985), “[generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation. [Cit.]” Compare Restatement of the Law, Torts, Products Liability (adopted May 20, 1997), § 12, Liability of Successor for Harm Caused by Defective Products Sold Commercially by Predecessor. See Maleski, Ga. Products Liability (2d ed. 1993), p. 213, § 8-16. Wainwright and Corbin argue that the asset-purchase transaction between Farmex and JA-BIL was a de facto merger and that Farmex is a mere continuation of JA-BIL.

In Georgia, a transaction may be found to be a de facto merger only if there is, among other things, “a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.” (Citations omitted.) Howard v. APAC-Ga., 192 Ga. App. 49, 50 (383 SE2d 617) (1989). Similarly, “[i]n Georgia, the common law continuation theory has been applied where there was some identity of ownership. [Cits.]” Bullington, supra at 284.

Farmex did not pay for the assets it acquired from JA-BIL with shares of its own stock. None of the stockholders of either corporation was a stockholder of the other. There being no identity of ownership between the corporations, neither the de facto merger doctrine nor the continuation theory, as traditionally applied, fits. However, as recognized in Bullington, courts in other states have expanded successor liability in product liability cases based on the policy considerations underlying strict tort liability for defective products. The Supreme Court of Georgia has not yet decided a case with the operative facts which exist here.

“The purpose of the rule of strict tort liability ‘is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ ([Cit.])” Ray v. Alad Corp., 560 P2d 3, 8 (2) (Cal. 1977), cited approvingly in Bullington, supra at 285. “ ‘[T]he paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.’ [Cit.]” (Emphasis omitted.) Ray, supra. In Cyr v. B. Offen &c., 501 F2d 1145 (1st Cir. 1974), also cited in Bullington, supra at 284, the court identified four reasons for imposition of strict liability in tort: “(1) the manufacturer is better able to protect itself and bear the costs while the consumer is helpless; (2) it is the manufacturer which has launched the product [in question] into the channels of trade; (3) it is the manufacturer which has violated the representation of safety implicit in putting the product into the stream of commerce; and (4) the manufacturer is the instrumentality to look to for improvement of the product’s quality.” 501 F2d at 1154 (13).

The first and fourth reasons identified in Cyr apply where the successor in ownership continues to manufacture the same product line as its predecessor. See Cyr, supra; Dawejko v. Jorgensen Steel Co., 434 A2d 106, 109 (1) (Pa. 1981), also cited with approval in Bullington, supra at 285. Although Farmex has presented evidence that it has never designed or manufactured a hitch pin of the same type as the one in question, there is evidence in the record that it did continue to manufacture the same product line. This meets Cyr’s first and fourth reasons for imposition of strict tort liability. The second and third reasons likewise would apply because the purchaser has acquired the product in question from the seller and put it into the stream of commerce.

This distinguishes Bullington. On the facts of that case, the Court refused to expand the continuation exception so as to include continuation of manufacture. There, one corporation purchased the assets of another corporation but did not sell the product in question (a table saw) or continue to manufacture the same product line. The product was released into the stream of commerce by the predecessor manufacturer itself, prior to the transfer of assets, and the successor never sold or manufactured table saws. The Court in Bullington did not reject Cyr or Ray. It distinguished Cyr because the new corporation in Cyr continued to produce the same product. Ray was distinguished because in Ray, as here, the new corporation produced the same product line. The Court explained the rationale in Cyr: “[T]he successor was in a position to improve the quality of the product in question or to reflect the possible defects in the cost of the product.” Bullington, supra at 285. These circumstances do not preclude a finding that Farmex is a manufacturer for the purpose of strict liability.

Further, a jury could find on the present state of the record that the asset-purchase agreement between Farmex and JA-BIL left the latter company with substantial liabilities but insubstantial assets with which to satisfy them. Such a factor has been recognized as another exception to the general rule that a purchaser of corporate assets does not acquire the seller’s liabilities. See Ray, supra at 7; Dawejko, supra at 107.

Consequently, the court erred in granting Farmex’s motion for summary judgment on Wainwright and Corbin’s strict liability theory.

2. Wainwright and Corbin also contend that questions of fact exist as to whether Farmex is liable for its own negligence in failing to warn of foreseeable dangers from reasonable use.

“ An action in products liability may proceed on one or a combination of theories of negligence, strict liability, or breach of warranty. (Cits.)’ [Cit.]” Powell v. Harsco Corp., 209 Ga. App. 348, 349 (1) (433 SE2d 608) (1993). “The common-law duty imposed upon suppliers of chattels includes the duty to warn of foreseeable dangers arising from the reasonable use for which the product is intended and requires the exercise of reasonable care to inform third persons of the dangerous condition or of the facts which make the product likely to become dangerous. [Cit.]” Id. at 349-350 (2).

Decided June 27, 1997

Reconsideration denied July 28, 1997

Miller & Towson, Wallace Miller III, John D. Raines III, for appellants.

Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Adams, Barfield, Dunaway & Hankinson, David B. Dunaway, for appellee.

There is no evidence that Farmex knew or should have known of any defect in the product or of any prior claim that a failure of such product of this type or design resulted in property damage or personal injury. The danger being unforeseeable in a reasonable context, as a matter of law, Farmex cannot be held liable under a negligence theory. Hester v. Human, 211 Ga. App. 351, 353 (3) (439 SE2d 50) (1993). See Restatement of the Law, Torts, § 13, Liability of Successor for Harm Caused by Successor’s Own Post-Sale Failure to Warn.

The holding in Division 1 requires reversal of the judgment.

Judgment reversed.

McMurray, P. J., Ruffin and Eldridge, JJ, concur. Andrews, C. J, Birdsong, P. J., and Smithy J, dissent.

Smith, Judge,

dissenting.

Because we are bound by the Supreme Court of Georgia’s decision in Bullington v. Union Tool Corp., 254 Ga. 283 (328 SE2d 726) (1985), I must respectfully dissent. In Bullington, the Supreme Court weighed the same arguments raised by the majority here and held that the continuation exception did not apply “[s]ince the new corporation never produced the product.” (Emphasis supplied.) Id. at 285. The evidence here is uncontroverted that, while Farmex may have sold the hitch pin in question out of inventory acquired from its predecessor, it never produced the product. More importantly, the Supreme Court explicitly declined to expand the continuation exception in the manner proposed by the majority here, even though the new corporation continued a product line taken over from its predecessor. Id. However persuasive the arguments for expansion of that exception may be, it is for the Supreme Court, not this Court, to take that step.

For these reasons, I dissent.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.


author: Smith, Judge.

text:
    A97A0121.
    SCOTT v. THE STATE.
    (490 SE2d 104)
   Smith, Judge.

Linda Scott appeals her conviction by a jury in Colquitt State Court for misdemeanor obstruction of a police officer, OCGA § 16-10-24 (a).

1. Scott raises the general grounds. The obstruction charge against Scott arose from events surrounding her arrest and trial in the city of Doerun, Georgia. Construed in favor of the jury’s verdict, the evidence shows that Scott was arrested for a traffic violation in the city. She was convicted after a bench trial in the Doerun City Court and was given an alternative sentence of a $150 fine or 15 days in jail. Scott stated in court that she wanted to pay the fine but did not have sufficient funds on her person. The presiding judge instructed her to arrange for payments with Officer Buckhalter, the officer charged with that duty and present in the courtroom for that purpose. City courts are authorized to “ ‘impose fines upon persons convicted of such offenses, with the alternative of other punishment allowed by law, in the event that such fines are not paid.’ [Cit.]” City of LaGrange v. Hatfield, 175 Ga. App. 697, 698 (1) (334 SE2d 25) (1985) (physical precedent only). The City of Doerun court is expressly authorized by its charter to impose such sentences. Ga. L. 1985, p. 4234.

The evidence presented at trial showed a standard procedure after the return of a guilty verdict and entry of a judgment of conviction in Doerun City Court: the officers assigned to the courtroom for that day’s proceedings are responsible for carrying out the sentences imposed, and an individual is not released from custody until arrangements are made for satisfaction of the judgment. Captain Michael Giles testified that he has the authority to arrange partial payment of fines up to 50 percent of the total amount. Other arrangements are at the discretion of the chief of police. If the chief is not in the office, defendants are placed in a cell to await his arrival.

Officer Buckhalter followed the standard procédure when Scott was instructed to make her payment arrangements. Buckhalter and Captain Giles accompanied Scott and another defendant, also convicted of a traffic offense, across the street to the police department and jail. Upon arriving, Giles began processing the other defendant, who paid half of her fine and made arrangements for payment of the remainder. Officer Buckhalter was simultaneously processing Scott. He requested that Scott pay her $150 fine. Scott was informed that she could pay half her fine and make arrangements for payment of the balance.

While Scott contends she told the officers that she could pay the! fine if she were allowed to write a check or use a local ATM, the; officers testified that Scott simply stated that she “had no money.” The other defendant testified that Scott “refused to pay” the fine. Buckhalter informed Scott that she would have to go to jail if she could not pay. Upon being told this, Scott responded, “I’m not your n____r and I’m not going to give you anything.” Buckhalter then requested that she hand over her purse and other belongings so that she could be placed in a cell. Scott resisted and was both physically and verbally abusive, kicking at and striking the officers in the process. Scott was ultimately restrained by both Officer Buckhalter and Captain Giles and placed in a cell.

A conviction for obstruction of a law enforcement officer is proper only when evidence is presented that a defendant “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” OCGA § 16-10-24 (a). Determining whether the actions of a defendant actually had the effect of hindering or impeding the officer is a decision for the trier of fact. Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986). Scott argues that the officers were acting outside the scope of their lawful duty when they incarcerated her. See Dixon v. State, 154 Ga. App. 828 (1) (269 SE2d 909) (1980). Scott apparently contends that despite evidence that she refused' to pay the fine, the officers were not authorized to carry out the alternative sentence of a jail term.

This contention is without merit. Upon an individual being found guilty of a misdemeanor that contemplates imprisonment, law enforcement officials possess the duty and power to contain that individual for the purposes of carrying out the sentence. “ ‘On the conviction and sentence of a person, it is the duty of the sheriff of the county where the judgment of conviction has been rendered to take such convicted person into custody, and to keep him in custody or dispose of him in accordance with the judgment of the court and the law.’ [Cits.]” Whiddon v. State, 160 Ga. App. 777, 783 (287 SE2d 114) (1982), overruled in part on other grounds, In re Irvin, 254 Ga. 251, 254 (1) (328 SE2d 215) (1985). The officers’ attempts to restrain Scott in this case were simply a function of their continuing duty to control a person arrested, tried, and sentenced under the law.

Scott contends that she was justified in resisting arrest under the authority of Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983). We do not agree. Bearden held that an indigent’s probation cannot be conditioned on payment of a fine. We do not reach the issue of whether that holding should be extended to alternative sentences of fine or imprisonment, for two reasons.

First, there is no evidence that Scott was indigent. On the contrary, she was able to pay the fine within a few minutes of her incarceration.

Second, and more important, a valid distinction exists between appealing an allegedly improper sentence, as Bearden did, and pleading an improper sentence as justification for obstruction of an officer under OCGA § 16-10-24. Like the defendant in Powell v. State, 192 Ga. App. 688 (385 SE2d 772) (1989), Scott was not an “unincarcerated citizen[ ] alleged to have obstructed law enforcement officers outside of a penal institution environment.” Id. at 689 (3). She was an individual already tried, convicted, and in the process of satisfying the court’s judgment. Moreover, Scott’s only contention is that she had a legal, rather than a factual, basis for resisting the officers. Obstruction of an officer of the court cannot be justified in such a situation any more than physical resistance in a courtroom can be justified, even to an illegally imposed ruling or sentence (such as a commitment for contempt). At that stage of the judicial process, the proper course of action is that taken by the defendant in Bearden: employment of the appeals process to correct the error rather than resort to physical resistance.

Upon Scott’s refusal to pay the fine, it was incumbent on the officers to restrain Scott and carry out the more restrictive alternative of her sentence. The evidence therefore supports the conclusion that the officers were acting pursuant to an official duty. “Whether or not the actions of appellant had the effect of hindering or impeding the officers in carrying out their assigned duties was for the jury to decide. The jury made its decision, obviously rejecting appellant’s version of what transpired, and we find that under the facts here any rational trier of fact could have found appellant guilty as charged beyond a reasonable doubt.” (Citations omitted.) Sapp v. State, supra at 615 (1).

2. Scott also enumerates as error the trial court’s refusal to give a requested jury instruction: “I charge you that it is unlawful to incarcerate a person who is financially unable to immediately pay a fine imposed by a judicial officer.” Scott argues that her sole defense in this matter is justification, and that the requested charge alone stated that defense to the jury. This contention is without merit.

Decided May 28, 1997

Reconsideration denied July 28, 1997

James N. Finkelstein, for appellant.

Keith F. Allen, Solicitor, for appellee.

Several well-settled rules govern the denial of requests to charge in Georgia. “ ‘A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.’ . . . [Cit.]” (Emphasis omitted.) Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867) (1994). A trial court does not commit error where it refuses to give a confusing or misleading instruction, Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991), or where the substance of the requested charge is covered in the instructions given by the trial court. Radford v. State, 202 Ga. App. 532, 534 (1) (415 SE2d 34) (1992).

It does not appear that the charge, as worded, was adjusted to the facts as shown in this case. The trial court fully charged the jury on mistake of fact, justification, the right to resist unlawful arrest, and self-defense. Moreover, in the charge conference, the trial court offered to accept a reworded charge, but Scott declined to present one for review. The trial court did not err in denying this request to charge.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur. McMurray, P. J., disqualified.

       We note that the State originally filed no brief despite the clear mandate in this Court’s rules that “a brief shall be filed by the appellee in all criminal appeals when the State is the appellee” and that failure to do so subjects the violator to contempt. Court of Appeals Rules 13 and 26 (b). After an order directing that the brief be filed within ten days, the State ultimately filed its brief over six months late and fifteen days after issuance of the order.

       The charter of the City of Doerun authorizes its law enforcement officers to perform these functions. Ga. L. 1975, p. 4697.


author: Eldridge, Judge. Ruffin, Judge,

text:
    A97A0432.
    GRAVES v. THE STATE.
    (490 SE2d 111)
   Eldridge, Judge.

Pursuant to a bench trial in the City of Atlanta Traffic Court, Fulton County, Raymond Graves was found guilty of driving with a suspended license, no proof of insurance, and improper U-turn. His sole enumeration of error is that the State failed to prove beyond a reasonable doubt that venue was proper in the City of Atlanta, Fulton County, as opposed to the City of Atlanta, DeKalb County.

This issue was not raised either before or during trial. Further, absolutely nothing in the record supports the notion that a challenge to venue was forthcoming in appellant’s motion for directed verdict so as to predicate an assumption, apparently made by the dissent, that appellant did not “voluntarily” waive such issue; even appellant does not contend that the trial court’s abrupt ruling on his motion for directed verdict cut short a venue challenge. Moreover, appellant has not and does not herein contend that venue was improper in Fulton County. Instead, appellant’s argument is that, while venue may very well have been proper in Fulton County, the State failed to prove it. Held:

Although appellant failed to preserve this issue by timely objection in the court below, this Court has, in the past, reached this issue through an analysis of the “sufficiency of the evidence” to support the verdict. While the propriety of such analysis as applied to a procedural evidentiary issue such as proof of venue may appear questionable, when a sufficiency analysis is employed, this Court examines the entire record in order to evaluate the sufficiency of the evidence to support the verdict. See Saldona v. State, 219 Ga. App. 762 (466 SE2d 655) (1996); Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 775 (479 SE2d 125) (1996); Morris v. State, 205 Ga. App. 650 (423 SE2d 54) (1992); Hunsucker v. State, 160 Ga. App. 846, 847 (2) (287 SE2d 689) (1982); Dukes v. State, 151 Ga. App. 312, 313 (259 SE2d 706) (1979); see also OCGA § 5-6-36 (a).

The record in the case before us contains three Uniform Traffic Citations (“UTCs”) which were sworn to by the arresting officer and signed by him under oath before a magistrate on the incident date, July 11, 1996. The UTC is an affidavit that may serve as the formal prosecuting instrument for a misdemeanor traffic offense before the trier of fact, and the UTC “alone would suffice to prosecute a traffic violation.” Evans v. State, 168 Ga. App. 716, 717 (310 SE2d 3) (1983); McCann v. State, 158 Ga. App. 202 (279 SE2d 499) (1981). Although, for the sake of expediency, our legislature has provided that a UTC may serve the same function as an indictment or accusation, a UTC is not, as contended by the dissent, “like” either of these instruments of prosecution: an accusation or indictment is drawn by the solicitor or district attorney respectively, neither of whom is a witness to the incident in question so as to testify at trial regarding the facts thereof. See, e.g., Brown v. State, 82 Ga. App. 673, 676-677 (62 SE2d 732) (1950) (accusation founded upon affidavit of the prosecutor); Smith v. State, 138 Ga. App. 692 (227 SE2d 468) (1976) (traffic offense prosecuted upon the solicitor’s accusation); cf. State v. Doyal, 184 Ga. App. 126 (361 SE2d 17) (1987); Evans, supra at 717. A UTC, on the other hand, contains the sworn affidavit of the witness arresting officer and does not become “transformed” into an accusation or indictment when used as a vehicle for prosecution; its contents remain the same.

On the face of the UTCs in the case sub judice, the State’s witness, arresting officer Smail, “being duly sworn upon his oath, deposes and states that he has just and reasonable grounds to believe, and does believe,” that appellant committed the offense as set forth in the UTC in the City of Atlanta, Fulton County. The UTCs were then filed with the clerk of court the day after the incident, July 12, 1996. See Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995).

On September 5, 1996, the appellant opted for a bench trial in the City of Atlanta Traffic Court. The trial court heard evidence from Officer Smail, who testified that the offenses occurred in the City of Atlanta. Further, the trial court had the UTCs before it as a part of the court’s record; the UTCs established that the offenses occurred in Fulton County. Appellant made no objection to venue as being in Fulton County, and no conflicting evidence was presented at trial or is present in the record before us.

In a bench trial, certain evidentiary allowances are made that differ from a jury trial. For example, it is well settled that in a bench trial, the court has broader discretion in admitting evidence than in cases where a jury is involved. Davis v. State, 189 Ga. App. 412 (376 SE2d 421) (1988); Milner v. State, 163 Ga. App. 827 (296 SE2d 360) (1982). When the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence. Bailey v. State, 219 Ga. App. 258, 261 (465 SE2d 284) (1995). Further, and most importantly in the case sub judice, a trial court may take judicial notice of its own records for evidentiary purposes in a case, either civil or criminal, that is pending before it. OCGA § 24-1-4; Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984). From the trial court’s and the parties’ references to the contents of the UTCs and the judge’s signature on the backs thereof, it is apparent that such judicial notice was taken. In the Interest of G. G., 177 Ga. App. 639 (341 SE2d 13) (1986) (judicial notice need not be invoked or announced); see also Petkas, supra; Walker v. McLarty, 199 Ga. App. 460, 461 (405 SE2d 294) (1991). As such, evidence was before the trial court establishing venue in Fulton County, even if this evidence may be deemed “slight.” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988); Aldridge v. State, 236 Ga. 773, 774 (225 SE2d 421) (1976).

With regard to judicial notice of the UTCs, the dissent argues that “the mere fact that it [UTC] is in the court’s record does not mean the trial judge may use it as evidence at a bench trial.” This position is not well taken in light of the holding of the Supreme Court in Petkas v. Grizzard, supra. Contrary to the assertions of the dissent, in Petkas v. Grizzard, the trial court did not simply take judicial notice that “a pleading had been filed”-, in taking judicial notice of the-prior record, the content of the former pleadings, as well as the dispositions thereof, were necessarily considered by the trial court for a determination of the rights of the parties pursuant to the renewal statute, OCGA § 9-2-61. This Court reversed the trial court, espousing a position not unlike that of the dissent’s herein in which this Court held: “[T]he trial court may not take judicial notice of the record in another case in the same court, without its formal introduction in evidence. . . . [T]he trial judge may not take judicial notice of the prior case.” (Citations omitted; emphasis in original.) Grizzard v. Petkas, 167 Ga. App. 254, 256-257 (305 SE2d 861) (1983). The Supreme Court reversed this Court, finding “a trial court may take judicial notice of records in the same court.” Petkas v. Grizzard, supra at 108. Petkas “recognizes that judicial notice relates to matters of fact, not law, that judicial notice is a substitute for conclusive evidence.” Mumford v. Davis, 206 Ga. App. 148, 149 (424 SE2d 306) (1992). Even before Petkas, a trial court could substantively take judicial notice of the record in the immediate proceeding before it. State v. Brinson, 248 Ga. 380 (283 SE2d 463) (1981). Over the years, this principle has been applied repeatedly to cases, both criminal and civil, regarding the substance of the record before the trial court. Because the UTCs were part of the record before the'trial court in the case sub judice, judicial notice of the contents thereof was proper.

Further, the dissent expresses concern that, in taking judicial notice of the contents of a UTC, a “trial judge conducting a bench trial on a felony indictment need not hear any testimony; rather he may simply read the indictment to determine what crime the defendant has committed.” With respect, the dissent’s apprehension is simplistic. Taking judicial notice of the contents of a UTC in a bench trial will not be dispositive of all issues and will not enable the State to prosecute an accused without introducing the testimony of a police officer. This is so because a defendant’s plea of “not guilty” asserts the. presumption of innocence as to the charged offenses, thereby raising: contradictory assertions and conflicts as to the elements of those crimes asserted in the UTC. This gives rise to the State’s evidentiary burden and the necessity for sufficient proof thereon beyond a rea-: sonable doubt. However, a “not guilty” plea as to the crimes raises no such conflicts and concerns with regard to the procedural issue of venue. That is why “slight evidence” has always been sufficient as to venue where no contradictory evidence or assertions are presentj Again contrary to the position taken by the dissent, when taking judicial notice of a fact contained in the record, about which fact there is no controversy or contradiction, the trial court is not required to make “any judgment about the truth of the factual allegations contained in that pleading.” Accordingly, in the instant case, the affidavit containing the sworn testimony of the arresting officer in the UTCs, without contradiction or conflict, is sufficient “slight evidence” to prove the undisputed fact of venue contained therein.

In addressing additional concerns expressed by the dissent, it is argued that the UTCs were inadmissible as hearsay. A UTC is obviously not “hearsay” when the officer/affiant testifies at trial. The concerns of the rule against hearsay are satisfied where the witness whose veracity is at issue is present at trial, under oath, and subject to cross-exaniihation. Sanders v. State, 182 Ga. App. 581, 585 (5) (356 SE2d 537) (1987); see also White v. State, 213 Ga. App. 429 (445 SE2d 309) (1994). The. appellant had copies of the UTCs before him and was free to cross-examine Officer Smail on the contents thereof. See Miller v. State, 266 Ga. 850, 856 (7) (472 SE2d 74) (1996) (“ Affidavits of absent witnesses cannot be admitted in evidence at criminal trials because doing so violates the right of defendants to confront witnesses against.them.’ ” (Emphasis supplied)).

Further, it is argued that the UTCs were inadmissible as. improperly authenticated. The dissent contends that the UTCs were not “certified under seal” pursuant to OCGA § 24-7-21 and cites King v. State, 194 Ga. App. 69, 71 (5) (389 SE2d 500) (1989), for this view. This view is Wiong. In King, supra, the document at issue was a prior conviction for DUI, which had been certified by a notary public, not the court clerk as required by statute. The UTCs in this case came before the trial court within the court clerk’s file. It is hard to imagine how much more “under seal by the clerk” a document can get. See also Elliott v. State, 253 Ga. 417, 420 (3) (320 SE2d 361) (1984); Locklear v. State, 131 Ga. App. 536, 537 (6) (206 SE2d 527) (1974).

Next, the dissent contends that this Court cannot consider the UTCs as part of the “entire record” in a sufficiency of the evidence analysis because the UTCs were “never admitted into evidence.” However, the trial court took judicial notice of the UTCs, and neither a trial court nor this Court need take judicial notice of material which has been admitted into evidence in a case. Consideration of a fact “without the introduction of proof” is the whole point of taking judicial notice. OCGA § 24-1-4; see, e.g., Talley v. State, 200 Ga. App. 442, 443 (408 SE2d 463) (1991); Kelleher v. State, 187 Ga. App. 811 (371 SE2d 450) (1988) (Beasley, J., concurring). Moreover, regardless of whether material has been formally admitted into evidence or not, if such was considered by the trier of fact in reaching a decision as to a defendant’s guilt, the material is necessarily a part of this Court’s sufficiency of the evidence analysis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Finally, the dissent contends that, even if the UTCs were subject to judicial notice, they could not establish venue because the UTCs “do not clearly show in which county the offenses occurred.” The dissent points out that Officer Smail completely and totally encircled the word “Fulton” on each citation as the county in which the incident occurred; however, the officer’s freehand circle caught part of the “D” and a little of the “E” in the word “DeKalb,” which appeared as an option next to “Fulton.” The dissent refers to this as “vague and unexplained markings,” and claims a deprivation of due process in the inability to cross-examine Officer Smail on the true meaning thereof. We make two observations: (1) It is quite possible the dissent might be overestimating a trier of fact’s tolerance for cross-examinations of such painfully little merit, which cross-examinations may hurt more than help one’s cause, whether permitted by due process or not; and (2) the appellant could have cross-examined the officer on the contents of the UTCs, since the officer took the stand, and the record shows the appellant had the UTCs available. Due process “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense [or the dissent] might wish.” (Citations and punctuation omitted; emphasis supplied.) Price v. State, 223 Ga. App. 185, 189 (8) (477 SE2d 353) (1996). In the case sub judice, no cross-examination was attempted regarding venue, because venue was a given in the court below.

“[I]n reviewing on the general grounds, . . . evidence in the record is reviewed on appeal in the light most favorable to the state.” (Citations and punctuation omitted.) Gibbs v. State, 157 Ga. App. 530, 531 (278 SE2d 111) (1981). From a review of the entire record before us, we find the evidence of venue in the case sub judice, although slight, is sufficient. Davis v. State, 203 Ga. App. 106 (416 SE2d 375) (1992).

Judgment affirmed.

Andrews, C. J., Pope, P. J, and Johnson, J., concur. Birdsong, P. J., Blackburn and Ruffin, JJ, dissent.

Ruffin, Judge,

dissenting.

Because no admissible evidence in the record shows these offenses occurred in Fulton County, I would reverse Graves’ conviction and remand this matter for a new trial.

1. First, contrary to the majority’s opinion, the record does not show that Graves waived the right to challenge his conviction on grounds that the State failed to prove venue. The transcript reflects that Graves’ counsel attempted to move for a “directed verdict” at the close of the State’s case, and the trial court overruled the motion before Graves’ attorney stated his grounds for the motion. When Graves’ attorney then asked whether he would have an opportunity to argue his motion, the court replied, “I’m not sure why you want to, but you certainly may if you wish to.” Apparently realizing the futility of the effort, Graves’ counsel declined the opportunity. Under these circumstances, I would not find a voluntary waiver. The trial court’s comment showed it had no intention of considering the attorney’s arguments.

Moreover, Graves’ enumeration regarding the State’s failure to prove venue beyond a reasonable doubt attacks the sufficiency of the evidence. In criminal cases such as this, “[t]he proof of venue is an essential element in proving guilt in a criminal case. [Cit.] Like every other material allegation in the [accusation], it must be proved beyond a reasonable doubt. [Cit.] Where venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. [Cit.]” (Punctuation omitted.) Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988). A void judgment may be held to be such in any court. OCGA § 17-9-4. Therefore, Graves was not required to move for a directed verdict or take other measures to preserve this argument. See Lee, supra. Even where a challenge to venue has not been raised in the trial court, the Georgia authority relied upon by the majority still requires that venue be proved, even if by slight evidence. See Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988) (“when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. [Cit.]” (Emphasis supplied.)).

2. Here, no admissible evidence showed venue in Fulton County. The only venue testimony presented at trial showed the incident occurred at “Northside and Magnolia” in the City of Atlanta. We have previously rejected any notion that a court may take judicial notice that a specific street location in the City of Atlanta is in Fulton County. See Smith v. State, 138 Ga. App. 692 (1) (227 SE2d 468) (1976). The majority now finds evidence of venue in the “uniform traffic citations” (UTCs) contained in the file. These hearsay documents, which were never admitted in evidence at trial, are not sufficient to prove venue even under the “slight evidence” standard employed by the majority.

First, the UTCs in this case were employed by the State as substitutes for formal written accusations. This procedure is proper under OCGA § 40-13-1, which states that the UTC may serve as the “citation, summons, or other instrument of prosecution of the offense or offenses for which the accused is charged.” But like an accusation or indictment, the UTC is not evidence; it is merely a document outlining the charges against the defendant. See Crowe v. State, 265 Ga. 582, 591 (16) (458 SE2d 799) (1995) (indictment is not evidence); Perkins v. State, 151 Ga. App. 199, 206 (8) (259 SE2d 193) (1979) (accusation is not evidence).

Because the UTC is not evidence, the majority’s argument that the trial court could “take judicial notice of its own records for evidentiary purposes” is misplaced and meaningless. In Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984), cited by the majority, the trial court took judicial notice that a pleading had been filed. There is nothing in Petkas indicating the court made any judgment about the truth of the factual allegations contained in that pleading. Applying the majority’s rationale, a trial judge conducting a bench trial on a felony indictment need not hear any testimony; rather, he may simply read the indictment to determine what crime the defendant has committed. Similarly, the affidavit attached to a search warrant, like this UTC, is a sworn statement often found in the trial court’s record but usually not admissible as evidence at trial. See, e.g., Reed v. State, 150 Ga. App. 312, 314 (2) (257 SE2d 380) (1979). The mere fact that it is in the court’s record does not mean the trial judge may use it as evidence at a bench trial. This holding violates Graves’ due process rights by dispensing with the requirement that the State present evidence proving every material allegation of the offense beyond a reasonable doubt. See Postell v. State, 200 Ga. App. 208, 210 (2) (407 SE2d 412) (1991), rev’d on other grounds, 261 Ga. 842 (412 SE2d 831) (1992).

To justify its evidentiary reliance on the UTCs, the majority cites the oft-repeated principle that this Court searches the “entire record” when it reviews the sufficiency of the evidence. This principle, however, has no application to the present case. Almost every record in every criminal case before this Court contains material which, for one reason or another, was never admitted into evidence. Although the information in these UTCs was “sworn to” by the officer, they constituted “ex parte affidavits” which were not tendered as business records or admitted under any other exception to the hearsay rule. See Miller v. State, 266 Ga. 850, 856 (7) (472 SE2d 74) (1996). The majority opinion refers to the admissibility of “exemplified” public records, OCGA § 24-7-21; even if this statute applied, at the time the trial court heard this matter these UTCs were not “certified under seal” as the statute requires. See King v. State, 194 Ga. App. 69, 71 (5) (389 SE2d 500) (1989). Therefore, the UTCs were not admissible evidence. This Court certainly does not review inadmissible evidence when determining the sufficiency of the evidence. See Shaver v. State, 199 Ga. App. 428, 430 (1) (405 SE2d 281) (1991). Information contained in these hearsay documents cannot be used to sustain Graves’ convictions.

Finally, even if this Court could use information contained in the UTCs to find the State had proven venue, the UTCs do not clearly show in which county the offenses occurred. In the section of each UTC marked “location” is the statement: “In the City of Atlanta, County of Fulton/Dekalb,” followed by a blank for the street or address. On each citation, the arresting officer circled “Fulton,” but in each case the circle also encompasses part of “Dekalb.” Despite the, fact that we have no. testimony from the officer explaining his marks or specifying which county he intended to circle, the majority opinion concludes the officer intended to circle only “Fulton.” To rely on these vague and unexplained markings, which Graves had no ability to cross-examine, deprives Graves of due process. See Miller, supra.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this dissent.

Decided July 10, 1997

Reconsideration denied July 28, 1997

Patterson & Patterson, Jackie G. Patterson, Yasma M. Patterson, for appellant.

June D. Green, Solicitor, Steven E. Rosenberg, Assistant Solicitor, for appellee.

       The appellant “withdrew” his motion for directed verdict. The dissent opines that such withdrawal was motivated by the “futility” of the motion and, based thereon, excuses appellant’s failure to raise any issue regarding venue. However, the futility of a motion for directed verdict does not relieve a party from preserving an issue thereby for appellate purposes, the identification of which issue makes the motion a far from “futile” act. To find otherwise would be to invite a whole new basis upon which to argue against the waiver of issues that were not raised or, as in the instant case, even alluded to in the court below.

       As alternatively recognized by the dissent, the affidavit in a UTC makes a UTC more analogous to an arrest warrant or search warrant than it is to an accusation or indictment. Accordingly, those cases which hold that an accusation or indictment is not evidence are simply inapplicable.

       See also.Dept. of Revenue v. McCray, 215 Ga. 678 (113 SE2d 132) (1960); Baker v. City of Atlanta, 211 Ga. 34, 35 (3) (83 SE2d 682) (1954); Woodruff v. Balkcom, 205 Ga. 445, 447 (2) (53 SE2d 680) (1949); Roberts v. Roberts, 201 Ga. 357 (39 SE2d 749) (1946); Branch v. Branch, 194 Ga. 575, 577 (22 SE2d 124) (1942); Frank v. State, 142 Ga. 741, 761 (83 SE 645) (1914); see also OCGA § 24-7-21; Johnson v. State, 204 Ga. App. 453 (419 SE2d 741) (1992).

       It should be noted that appellant himself does not raise any issues regarding cross-examination, inadmissible evidence, hearsay, “vague and unexplained markings,” or deprivation of due process; the dissent raises these issues on appellant’s behalf.

       Of course, as we have previously noted, “[t]here is no verdict in a bench trial. [Cit.] The issue, then, is simply whether the evidence met the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Lee v. State, 201 Ga. App. 827, 828 (1) (412 SE2d 563) (1991).

       As I urged in Brinkworth v. State, 222 Ga. App. 288, 290-291 (474 SE2d 9) (1996) (Ruffin, J., dissenting), I question the appropriateness of a rule allowing “slight evidence” to prove venue. Such a rule abrogates the State’s burden of proving every element of the offense beyond a reasonable doubt. Even applying this rule, however, the State’s proof in this case was clearly insufficient to prove venue.

       Of course, nothing in the record indicates the trial court did, in fact, take judicial notice of the UTC.


author: Smith, Judge. Beasley, Judge,

text:
    A97A0704.
    CANAL INDEMNITY COMPANY v. BLACKSHEAR FARMERS TOBACCO WAREHOUSE, INC.
    (490 SE2d 129)
   Smith, Judge.

Blackshear Farmers Tobacco Warehouse (Blackshear) filed a complaint for damages against Rick Riner d/b/a Commercial Waterproofing Insulation, alleging that Riner negligently failed to repair the roof on Blackshear’s warehouse. Canal Indemnity Company, which had issued a comprehensive general liability policy to Riner, then initiated this action against Riner and Blackshear, seeking a declaration of its rights and obligations. The trial court granted summary judgment to Blackshear and denied summary judgment to Canal, concluding that Canal’s policy provided coverage for the work performed by Riner. This appeal by Canal ensued. We agree with Blackshear that coverage exists for property stored inside the warehouse damaged as a result of Riner’s alleged negligence. We do not agree, however, that coverage exists for damages for the work performed by Riner. We therefore affirm in part and reverse in part.

1. Canal first maintains that the policy does not provide coverage for Riner’s work. Riner testified during his deposition that he installed and repaired a portion of Blackshear’s wind-damaged roof; he described the process used as being a synthetic “insulated roofing system.” It is not disputed that Riner applied the roofing materials by using a technology involving mixing, heating, and spraying two chemical components onto the roof. According to Riner, he repaired only a section of the roof because Blackshear’s insurance company would not pay the full amount required to repair the entire roof. After Riner completed the repairs, the roof expanded and contracted, causing the repaired portion to open up and allow water into the warehouse. Blackshear’s complaint sought recovery from Riner for damage to both the roof and contents of the warehouse caused by the leakage.

Under the terms of Riner’s policy, covered hazards are described exactly as follows:

INSULATION — EXCLUDING ASBESTOS

INCLUDING COMPLETED OPERATION

PAINTING RESIDENTIAL AND

COMMERCIAL BUILDINGS — EXTERIOR

INCLUDING COMPLETED OPERATION

INCLUDING SPRAYING OPERATIONS

NO MORE THAN ONE STORY.

Canal contends that Riner’s work was not covered because the term “spraying operations” applies only to painting, not to insulation. We disagree.

It is not clear, as argued by Canal, that the term “including spraying operations no more than one story” applies only to painting. That phrase could modify painting operations, but it could also modify both spray painting and the spray application of insulation. When a provision of a policy is susceptible of more than one meaning, even if each meaning is logical and reasonable, that provision is ambiguous. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996). And we must construe such contracts against the insurer and in favor of the insured. Id. We conclude therefore that coverage was afforded for insulation involving spraying operations.

As for Canal’s argument that spraying operations are specifically excluded by a later endorsement, that endorsement recites: “It is hereby understood and agreed that this policy does not provide any insurance for any claims arising from spraying operations.” We do not agree, however, that the endorsement excludes coverage in this instance. Canal’s policy specifically provides coverage for “completed operations.” A “completed operations hazard” as defined by the policy “includes . . . property damage arising out of operations ... if the . . . property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured.” It is apparently undisputed that Riner repaired only a portion of the roof and completed his work before the damage occurred. Although the insurance policy clearly excludes all spraying operations from coverage, it covers completed operations. “Insurance in Georgia is a matter of contract and the parties to the contract of insurance are bound by its plain and unambiguous terms. [Cit.]” Hurst at 716 (4). Here, the “plain and unambiguous terms” of the contract clearly include completed operations. Although spraying operations are excluded from coverage, completed operations are not. Had the drafters wished to exclude completed spraying operations from coverage, they could have done so.

2. Canal also contends that coverage for the damages claimed by Blackshear is excluded by the following language in the policy: “This insurance does not apply ... to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of material, parts or equipment furnished in connection therewith.” We disagree, but only in part.

In Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga. App. 220 (355 SE2d 130) (1987), this Court adopted the majority view concerning interpretation of this language — that it excludes property damage for replacement and repair of a defective product, but not for property damage caused by the completed product. Id. at 223. “Rather than coverage and payment for building flaws or deficiencies, the policy instead covers damage caused by those flaws.” (Citation and punctuation omitted.) Id. at 224. In a comprehensive general liability policy, such exclusions from coverage for property damage “are generally referred to as ‘business risk’ exclusions, and are designed to exclude coverage for defective workmanship by the insured causing damage to the project itself.” Glens Falls Ins. Co. v. Donmac Golf Shaping Co., 203 Ga. App. 508, 511 (417 SE2d 197) (1992). The risk that defective or faulty workmanship will damage other property “is the type [of risk] for which [comprehensive general liability] coverage is contemplated. [Cit.]” Id.

Here, Blackshear sought coverage for two distinct types of property damage: (1) damage to the tobacco stored inside the warehouse; and (2) damage to the warehouse’s roof caused by improper repairs. Damage to the tobacco was that type of risk intended for coverage — damage to property caused by defective workmanship in repairing the roof. See Gary L. Shaw Builders, supra; Glens Falls Ins. Co., supra. The policy language excludes only property damage to the insured’s own work, not damage to other property arising from alleged improper work. Insofar as Blackshear sought coverage for damage to the tobacco stored inside the warehouse, Canal insured that risk.

The extent of coverage concerning the roof damage is less clear however. The entire roof was allegedly damaged. As for that portion of the roof repaired by Riner, Canal is not obligated to provide coverage. The policy clearly excludes coverage for “property damage to work performed by or on behalf of the named insured.” But damage caused by the work is not excluded. Thus, to the extent that Riner’s work caused additional damage to the remaining portions of Black-shear’s roof, Canal is obligated to cover that damage. Jury issues exist as to the amount of damage to the roof not repaired by Riner. The trial court’s order granting summary judgment to Blackshear must therefore be reversed.

3. Blackshear does not dispute that liability coverage for punitive damages is not provided by the policy. That portion of the trial court’s order denying summary judgment to Canal as to coverage for punitive damages must also be reversed.

Judgment affirmed in part and reversed in part.

Andrews, C. J., Birdsong, P. J., McMurray, P. J., Ruffin and Eldridge, JJ, concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in the opinion except for the holding, in Division 2, that “[a]s for that portion of the roof repaired by Riner, Canal is not obligated to provide coverage.”

Earlier in that division, the majority finds the policy’s intent is to provide coverage for “damage to property caused by defective workmanship in repairing the work” and to exclude “only property damage to the insured’s own work.” Blackshear’s underlying complaint alleges that Riner’s negligence caused “significant and substantial damages” to the roof of Blackshear’s tobacco warehouse. It alleges that flaws in the repair caused damages to the roof.

Riner repaired the roof, or attempted to do so, by spraying a urethane in liquid form on a section of the existing metal roof and on certain other spots where there were joints and seams. It was to insulate and seal the roof so it would no longer leak. The whole roof was not similarly covered with the urethane because of the limit on insurance funds available for the project. Riner testified that after he applied the urethane, the roof expanded and contracted and popped open one of the sections so water got in.

Griffis, one of the principals in Blackshear, testified that Black-shear had earlier installed the metal right over the old tar roof which was on the building when Blackshear bought it a few years earlier. Riner just covered the existing roof with the urethane to waterproof it.

Thus, to the extent the roof itself was damaged by work performed by Riner, whether that be portions of the roof underneath the urethane or portions of the roof not covered by the urethane, the policy would apply. The trial court’s order granting summáry judgment on this aspect of the case should be affirmed in that Blackshear does not seek recovery for damages to the insulation and sealant applied by Riner, that is, to his work product. The product produced was the .urethane cover, not the roof.

Decided July 11, 1997

Reconsideration denied July 28, 1997.

Alexander & Vann, William C. Sanders, Allen E. Lockerman IV, for appellant.

Kenneth E. Futch, Jr., for appellee.

As quoted in Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga. App. 220, 223 (355 SE2d 130) (1987), “ ‘[the] purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.’ [Cit.]” What is not covered are business risks; what is covered are occurrences giving rise to insurable liability. Id. at 224.

       The underlying complaint was stayed by the trial court pending resolution of the declaratory judgment action. Riner is not a party to this appeal; as noted by the trial court in its order staying the action for damages, Riner failed to answer the complaint for declaratory judgment.

       A jury must determine, for example, how much of the damage to the remainder of the roof was caused by Riner’s alleged negligence, which is covered by the insurance policy, and how much of the damage was not caused by Riner. In addition, the jury must determine which portion of the roof was repaired by Riner, and which portion was not.