text:
    A95A0994.
    GRIER v. THE STATE.
    (463 SE2d 130)
   McMurray, Presiding Judge.

Defendant was charged in separate indictments with battery, terroristic threats, and false imprisonment. The evidence adduced at his jury trial showed that defendant is the father of the 18-year-old victim’s baby. On December 22, 1993, defendant came to the victim’s home and ordered her to get her “[expletive] together.” She was afraid if she did not comply, “he was going to jump on me there.” The victim told several of defendant’s cousins who were present “that [she] didn’t want to go with [him, . . . but they] didn’t [help or] say nothing [sic].” Defendant was angry because the victim had written him “a Dear John letter and he said before he let anybody have me, he said he would kill me.” Defendant took the victim and their baby to his mother’s house. There, he reviled her in a “[h]ateful tone.” In order to “[e]at or anything, use the bathroom[, . . . defendant] told [her that she] had to ask permission.” Defendant ordered the victim to bathe and made her sit in the tub for “four or five hours.” After defendant allowed the victim to dress, he ordered her up to the bedroom. The victim then explained: “That’s when all of it started. He started asking me questions and all that[, . . . such as] who all the men that I have while he was locked up. And if I didn’t answer, there was a lick, you know, he hit.” Defendant struck the victim repeatedly in the face and across the head with a wooden plank or paddle. The victim did not leave the house when left alone because she was “afraid that he was going to find me and going to kill me.” On December 27, 1993, the victim finally left the house with a friend who took her to the hospital. The victim confirmed that from December 22 to December 27, not “a day went by that [she was] not hit by [defendant].”

Susan Prather, the triage nurse at the hospital, recalled that the victim was trembling and shaking, and also “remember [ed] bruising on [the victim’s] forehead and her face.” Lieutenant Craig Treadwell of the Covington Police Department interviewed defendant and related the substance of defendant’s custodial statement. There, defendant agreed that he made the victim “apologize to his mother for disgracing his mother and him.” He denied striking the victim, explaining that “she fell trying to stay out of his way, that she knew to stay out of his way and she fell and hit her head on the bed and that’s how she sustained her injuries.”

The jury acquitted defendant of terroristic threats but found him guilty of both battery and false imprisonment. This direct appeal followed. Held:

1. In his first and third enumerations, defendant challenges the sufficiency of the evidence to sustain his conviction for false imprisonment. He argues that the victim’s testimony was repeatedly impeached and contradicted and is so “rife with inconsistencies that no reasonable jury should have believed the State had proven the elements of false imprisonment.”

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) 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). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). “Conflicts in the testimony of the witnesses, including the [S]tate’s witnesses, is a matter of credibility for the jury to resolve. [Cits.] As long as there is some [competent] evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld. [Cit.]” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).

“A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). In the case sub judice, the jury was authorized to conclude that defendant unlawfully detained the victim over five days during which period the victim’s will was overborne by her fear of the brutal beatings she sustained day and night at defendant’s hands. The evidence is sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of false imprisonment as alleged in the indictment. Grissom v. State, 187 Ga. App. 653 (1), 654 (371 SE2d 137). It follows that the trial court correctly denied defendant’s motion for directed verdict as to the charge of false imprisonment. McKenzie v. State, 187 Ga. App. 840 (1) (371 SE2d 869).

2. Defendant enumerates the admission of testimony by Sabrina Pridgett, defendant’s former girl friend, that defendant similarly beat her and held her in his apartment against her will in April 1989. He argues “the evidence did not sufficiently establish that [defendant] committed the independent act. Rather, [to defendant] it appears that the State’s witness fabricated the story about being held in [defendant’s] apartment to excuse her own conduct, [i.e.,] keeping [defendant’s] baby from law enforcement and social workers.”

Sabrina Pridgett testified that when she was approximately 18 years old, defendant took her and her baby (fathered by defendant) from the home of Sabrina Pridgett’s mother and brought them to his apartment, where they argued and fought “about three days.” Defendant hit Sabrina Pridgett in the eye “[w]ith his fist.” Sabrina Pridgett did not feel free to leave while defendant was awake “because we were fighting.” On April 18, 1989, Lt. Treadwell searched defendant’s apartment pursuant to a warrant and found Sabrina Pridgett and the child with defendant. “The Department of Family and Children Services removed the child. And [Lt. Treadwell] let Ms. Pridgett leave and go back to her mother’s. . . . She had an injury to the eye, [and] also she seemed to be glad to see us [the police], glad we were there to get her out of the apartment.”

“ ‘In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction. (Cit.)’ Tilley v. State, 197 Ga. App. 97, 98 (2) (397 SE2d 506) (1990).” Sartin v. State, 203 Ga. App. 293, 295 (3), 296 (3) (b) (416 SE2d 572). In the case sub judice, Sabrina Pridgett’s testimony was substantially corroborated by Lt. Treadwell and was sufficient to authorize the trial court’s determination that the proffered similar transaction in fact occurred and that defendant was the actor. The trial court did not err in admitting her evidence for the limited purpose of showing defendant’s course of conduct and bent of mind.

3. Defendant contends the trial court impermissibly commented on the evidence during a recharge to the jury on the definition of false imprisonment, by the following language: “I have just defined it for you. I mean that’s all I can do is define it for you and then you apply the facts to that law and you determine whether false imprisonment occurred. You find the facts as you find the evidence warrants. That’s the best I can do for you. The law is not going to change is what I’m saying. All the facts are there.” (Emphasis supplied.) Although error is assigned to the emphasized portion of the court’s explanation, we conclude that this ground for objection was not preserved for appellate review.

Decided October 3, 1995.

Steven A. Hathorn, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

“The present rule is that the question of whether OCGA § 17-8-57 has been violated is not reached unless an objection or motion for mistrial is made. In the case sub judice, defendant [reserved his exceptions to the substance of the recharge but] did not object or move for a mistrial when the trial court used the [explanatory terms complained of on appeal]. Consequently, defendant failed to preserve for appellate review any alleged violation of OCGA § 17-8-57.” (Citations and punctuation omitted.) Cornelius v. State, 213 Ga. App. 766, 770 (3) (445 SE2d 800).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1093.
    McCOY v. THE STATE.
    (462 SE2d 799)
   McMurray, Presiding Judge.

Defendant was indicted in seven counts for aggravated assault upon a peace officer. The evidence adduced at a jury trial reveals that defendant, along with at least two other accomplices, sprayed bullets at seven law enforcement officers who were attempting to subdue a suspect during a riot. Specifically, the State proved that one of the accomplices fired a pistol during the riot; that defendant followed up by firing several rounds at the officers from the same pistol; and that another accomplice fled with the offensive weapon after the shooting. One of the officers went down during the shooting. He was wounded in the thigh.

The jury found defendant guilty of six counts of aggravated assault upon a peace officer, but not guilty on the count charging defendant with aggravated assault upon the peace officer who was struck by a bullet. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant’s contention that the evidence was insufficient to support the jury’s verdicts is without merit. Three accomplices testified that defendant shot at a group of law enforcement officers who were attempting to subdue a suspect in their neighborhood. Five of the victims testified that they (along with the officer who did not testify) were the subject of gunfire while they were attempting to subdue a suspect during a riot. Defendant admitted that he was at the scene of the shooting but claimed that he had nothing to do with the gunfire. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of six counts of aggravated assault upon a peace officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Duitsman v. State, 212 Ga. App. 348 (1) (441 SE2d 888).

Decided October 3, 1995.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, Kathryn 0. Fallin, Assistant District Attorney, for appellee.

2. Defendant’s remaining enumerations of error are not supported by citation of authority or argument and are therefore deemed abandoned in accordance with Court of Appeals Rule 27 (c) (2). See Johnson v. State, 216 Ga. App. 858, 861 (5) (456 SE2d 251).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A95A1149.
    SORRELLS v. MILLER.
    (462 SE2d 793)
   Birdsong, Presiding Judge.

Jody Sorrells, a minor, by his father and next friend Raymond Sorrells, appeals the judgment based upon a jury verdict in favor of James William Miller on claims arising from a bicycle/automobile collision. The evidence shows that Jody Sorrells was injured when his bicycle collided with a car driven by James William Miller as Jody Sorrells attempted to cross U. S. Highway 29 near West Point, Georgia.

Sorrells contends the trial court erred by charging the jury that it was authorized to find that Jody Sorrells, who was ten years old at the time of the incident, could be guilty of contributory negligence per se. The trial court charged the jury that “the defendant contends that [Sorrells] violated certain laws or ordinances. Such violations are called negligence per se or negligence as a matter of law. It is your duty to decide whether such violations took place or not.” The trial court further charged the jury that Georgia law required “that every bicycle, when in use at nighttime, shall be equipped with a light on the front which shall [emit] a white light visible from a distance of 300 feet to the front and with a red reflector on the rear of a type approved by the Department of Public Safety which shall be visible from a distance of 300 feet to the rear when directly in front of lawful, upper beams of headlights on a motor vehicle. A light emitting a red light visible from a distance of 300 feet to the rear may be used in addition to the red reflector.

“Now, again, such violation may be called negligence per se, negligence as a matter of law, and it is again your duty to decide whether such violation took place or not.

“Further, ladies and gentlemen, I charge you that the driver of a vehicle about to enter or cross a roadway from any place other than another roadway, shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.

“I further charge you that for the purposes of this statute, a bicycle is considered to be a vehicle. And again, this violation may be called negligence per se or negligence as a matter of law. And it would be your duty as jurors to decide whether the violation took place or not.”

Under our law a ten-year-old child is held to the standard of “due care” set out in OCGA § 51-1-5: “The term ‘due care,’ when used in reference to a child of tender years, is such care as the child’s mental and physical capacities enable him to exercise in the actual circumstances of the occasion and situation under investigation.” Held-.

1. Although Miller contends the charging error was waived because Sorrells’ objections to the charge were not sufficient to preserve the objection for appellate review and did not encompass both charges on contributory negligence per se, given the nature of the issue and the possibility of prejudice, we will consider the charging error asserted because we find the error asserted is both substantial and harmful as a matter of law. OCGA § 5-5-24 (c); Foskey v. Foskey, 257 Ga. 736, 737 (363 SE2d 547).

2. In Georgia, children below the age of 13 are immune from tort liability. Horton v. Hinely, 261 Ga. 863, 864 (413 SE2d 199). Further, in Shirey v. Woods, 118 Ga. App. 851, 855-856 (165 SE2d 891), this Court held that children below the age of criminal responsibility are not capable of negligence per se because, under our law, such a child could not be guilty of violating criminal law. In this state the age of criminal responsibility is 13. OCGA § 16-3-1. As Jody Sorrells could not be guilty of violating the laws in question, the trial court erred by charging the jury that he could be guilty of contributory negligence per se. As we cannot say that this error was harmless, we must reverse the trial court.

3. This does not mean, however, that children below the age of 13 cannot be found to have engaged in contributory negligence. In Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736), our Supreme Court held that whether a child can be contributorily negligent depends upon each child’s mental and physical capabilities, and that question is one for the jury. Walt Disney Productions v. Shannon, 247 Ga. 402, 404, n. 3 (276 SE2d 580).

Decided October 3, 1995.

Grogan, Jones, Rumer & Gunby, Stephen G. Gunby, Johnson, Caldwell & McCoy, Claud E. McCoy, for appellant.

Tisinger, Tisinger, Vance & Greer, Douglas C. Vassy, for appel-

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A1268.
    THE STATE v. ANDERSON et al.
    (463 SE2d 34)
   Birdsong, Presiding Judge.

The State has taken a direct appeal under OCGA § 5-7-1 of the trial court’s order excluding evidence obtained by electronic surveillance because the evidence later was the subject of an unauthorized publication. Anderson and other co-defendants were allegedly involved in a bookmaking/gambling operation. The State properly obtained authorization to conduct electronic surveillance of the defendants’ telephones and allegedly obtained information showing that Anderson and the others were participating in unlawful gambling operations. During the investigation, a DeKalb County police officer requested the assistance of an IRS agent in analyzing the materials obtained during the electronic surveillance.

Subsequently, Anderson and the others moved to suppress the information obtained in the electronic surveillance because the information was improperly published to the IRS agent contrary to OCGA § 16-11-64 (b) (8). The trial court granted this motion because it found that the State allowed the IRS agent to listen to the tapes and the IRS agent then used the information obtained to prepare a separate, unrelated tax assessment against one of the co-defendants. The State then filed a direct appeal. Anderson and other defendants concerned with the appeal have filed a motion to dismiss the State’s appeal because they contend the ruling by the trial court is not subject to direct appeal. Held:

1. The initial consideration is this Court’s jurisdiction to consider the State’s appeal. Anderson and the co-defendants contend this Court is without jurisdiction because the State has filed an unauthorized direct appeal. The basis for the motion is that the trial court considered their motion to suppress as a motion in limine and granted it not because the evidence was improperly seized, but because the evidence was improperly disclosed. Consequently, they contend this case does not fall within the category of cases in which the State is authorized to file a direct appeal.

Under our law, the State is authorized to appeal in five specific instances; only one of those instances is applicable here. Under OCGA § 5-7-1 (4) the State is authorized to appeal an order, decision, or judgment sustaining a motion to suppress evidence that is illegally seized. Of course, our Supreme Court has construed this provision to allow the State to appeal the grant of a defendant’s pre-trial motion, whatever the name of the motion, to exclude evidence because it was obtained in violation of law. State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864). The purpose of this rule is to allow errors that might work miscarriages of justice to be corrected on appeal. Id.

In this appeal, however, Anderson contends that State v. Strickman is inapplicable because the trial court did not exclude the evidence because it was obtained in violation of the law. Instead, he maintains the appeal should be dismissed because the trial court excluded the evidence because it was disclosed in violation of the law. In the context of this appeal, however, we find this distinction without meaning. In an appeal concerning OCGA § 16-11-67 (admissibility of evidence obtained in violation of part), our Supreme Court held that “to protect against tampering, alteration, or destruction of evidence, and against allegations of such conduct, ‘obtained’ necessarily includes both the gathering and the safeguarding of the evidence.” Williams v. State, 265 Ga. 471 (457 SE2d 665).

We find no reason to treat “obtained” in State v. Strickman/ OCGA § 5-7-1 (4) differently from “obtained” in the OCGA § 16-11-64 (b)/OCGA § 16-11-67 context. The basis for excluding this wiretap evidence was that it was disclosed in violation of the law under which the evidence was obtained. In this sense, OCGA § 16-11-64 (b) authorizes the interception of wire or oral transmissions by law enforcement officers only under certain conditions. One of these conditions is that there shall be no publication of the information obtained “other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant.” OCGA § 16-11-64 (b) (8). Any violation of this non-publication rule renders the wiretap an invasion of privacy and causes the “evidence and information to be inadmissible in any criminal prosecution.” Id. Under these circumstances, a violation of this non-publication rule violates the conditions under which the wiretap was obtained and renders the information obtained in the wiretap inadmissible because it was illegally obtained insofar as the evidence or information that was illegally published is concerned. See Ledesma v. State, 251 Ga. 885, 889 (311 SE2d 427).

As this appeal requires the trial court to consider whether the evidence the defendants sought to exclude was obtained in accordance with the law under which it was obtained, it is not an appeal in which the State seeks to challenge the trial court’s exclusion of evidence under the general rules of evidence (see State v. Brown, 185 Ga. App. 701, 702 (365 SE2d 865)) nor a challenge to the trial court’s exercise of authority to preserve the integrity of the evidence. State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278). Therefore, we are satisfied that this appeal meets the criteria established in State v. Strickman and that we have jurisdiction to consider the merits of this appeal. State v. Peters, 213 Ga. App. 352, 354 (444 SE2d 609). Accordingly, the motion to dismiss the appeal is denied.

Decided October 3, 1995

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Assistant District Attorney, for appellant.

2. The State contends the trial court erred by granting Anderson’s motion in limine because there was no unauthorized disclosure. Here, the State maintains the IRS agent was really a State agent, who was assisting the State prosecution of these defendants. See Waller v. State, 251 Ga. 124 (303 SE2d 437), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31). Further, under our law disclosure of evidence by one law enforcement agency to another is permissible (King v. State, 200 Ga. App. 801 (409 SE2d 865), rev’d on other grounds 262 Ga. 147 (414 SE2d 206)), and in particular this Court has permitted disclosure of such information by state law enforcement officers to an agent of the IRS. Ayers v. State, 181 Ga. App. 244, 248 (351 SE2d 692). Appellees maintain, however, that the tax assessment shows that the IRS agent was not working as an agent of the State.

We find no support for appellees’ position. The evidence shows that the IRS agent was assisting state law enforcement officers in their investigation generally, and specifically assisted the State through listening to the tapes of intercepted conversations and identifying the voices of other bookmakers. Consequently, even though the agent may have acted solely as an IRS agent in preparing a tax assessment, at the time the wiretap evidence was disclosed to him he was acting as an agent of the State. Accordingly, we find that the trial court erred by holding that the IRS agent’s listening to the wiretaps was an unauthorized disclosure of the information. Thus, although we cannot reverse a trial court’s finding of fact unless it is clearly erroneous (Vansant v. State, 264 Ga. 319 (443 SE2d 474)), our decision in this case is a reversal of the trial court’s decision on the legal question whether allowing an IRS agent to listen to the tapes constitutes a violation of OCGA § 16-11-64 (b) (8).

The trial court’s order suppressing the information obtained in the wiretap is reversed.

Judgment reversed.

Johnson and Smith, JJ., concur.

Steven T. Maples, Victoria D. Little, for appellees.


text:
    A95A1325.
    PANKOWSKY et al. v. SASINE.
    (462 SE2d 791)
   Birdsong, Presiding Judge.

This is an appeal from the grant of summary judgment in a case asserting fraud in the sale of a home. Dan A. Pankowsky and Susan E. Pankowsky bought a home from Robert L. Sasine, and after a heavy rain in which certain rooms of the house flooded, the Pankowskys brought an action for fraud and negligence claiming that Sasine had not disclosed to them a latent defect in the property and that Sasine had negligently created the condition which caused flooding. In particular, the Pankowskys stated that Sasine did not tell them the house would flood if the grate over a drain in the backyard was not kept free of leaves and debris. In August 1993, during a very heavy rain storm, the grate became covered with debris and the house flooded until a neighbor cleared the grate.

Subsequently, Sasine moved for summary judgment asserting that there was no justifiable reliance because the Pankowskys had retained an inspector who examined the entire property, including the drain, and they relied upon his inspection and not anything said by Sasine. Further, Sasine stated he had informed the Pankowskys that they had to keep a drain in the backyard clear of leaves and trash. On the negligence claim, Sasine maintained that he could not be liable to the Pankowskys because he owed them no duty and because he was not a builder.

The record shows that before buying the house, the Pankowskys hired an independent house inspector to inspect the premises, including the drainage system. The Pankowskys testified at deposition that the inspector was hired so that they would know if the house was suitable for purchase, and that flooding was one thing which concerned them. The inspector found no defects, and told the Pankowskys that the house had an excellent drainage system. The record further shows that at the time the inspector made the comment about the drainage system, Sasine told the Pankowskys to keep the grate area clean after heavy rains. Later, Sasine volunteered to remove the grate over the drain. Susan Pankowsky, however, told him to leave the grate because she was worried that her young child might crawl into the drain.

After the trial court granted summary judgment on both counts of the complaint, this appeal followed. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. It is important to understand the exact nature of the defect the Pankowskys claim. This is not a case claiming a hidden defect within the drainage system; nor is it a case in which the drainage system was inadequate to drain the property. Instead, the defect claimed is that Sasine failed to disclose that unless the grate to the drain was kept free of debris the drain would not function properly. As this is a condition known to anyone familiar with any type drains, including those in bathtubs, showers, wash basins and sinks, it is hard to credit the Pankowskys’ assertion that they were unaware that debris on the grate could cause a flooding problem, and, thus, to believe reasonably that this defect was not apparent to them. See Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141), aff’d 239 Ga. 31 (235 SE2d 532).

Nevertheless, to establish a cause of action for fraud, the Pankowskys were required to establish five elements: (1) a false representation made by defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. Butler v. Terminix Intl., 175 Ga. App. 816, 817 (334 SE2d 865). For the Pankowskys to prevail on Sasine’s motion for summary judgment, the record must disclose evidence creating a genuine issue of fact on each of the elements stated above. Lau’s Corp. v. Haskins, supra.

Under the circumstances of this case, summary judgment was properly granted because the Pankowskys failed to show that genuine issues of fact existed on elements 1, 2, and 4 of the elements necessary to prove actionable fraud. There is no evidence that Sasine concealed or misrepresented a problem with the drain. When the Pankowskys’ inspector told them the property had an excellent drainage system, Sasine added advice that the grate must be cleared of debris after heavy rains. Although it is true that the property once flooded because the cover/grate on the drain at that time was inadequate, after that instance, Sasine put on a grate with wider openings and there is no evidence that Sasine knew the new grate was not adequate to prevent further flooding. Moreover, the record shows evidence that prior to the time Sasine moved out of the home he discussed the grate with Mrs. Pankowsky and offered to remove the grate, but Mrs. Pankowsky asked him not to do so because she was concerned that her child would fall into the drain. Additionally, we find no evidence that the Pankowskys relied upon any representation by Sasine. The record is clear that they hired an inspector to examine the property and report to them on its condition.

Accordingly, the trial court did not err by granting summary judgment to Sasine on this claim. Bennett v. Clark, 192 Ga. App. 698, 699 (385 SE2d 780).

3. We also find the trial court did not err by granting summary judgment to Sasine on the Pankowskys’ negligence claim. Sasine was not a builder/seller (see Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9); Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919)) and we do not find the additions Sasine made to the house sufficient to create liability under this theory. Swiedler v. Ferguson, 195 Ga. App. 364, 365 (393 SE2d 456).

Decided October 3, 1995.

Warren R. Hinds, for appellants.

Carol D. Sweet, Stephen J. Sasine, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1327.
    GREEN v. THE STATE.
    (463 SE2d 133)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with burglary, rape, kidnapping, aggravated sodomy, and aggravated assault. The evidence at his jury trial showed that on January 13, 1993, Sergeant M. L. Hendricks of the Atlanta Police Department was dispatched to the victim’s residence. There he found the victim in the company of her friend, Tammy Allen. The victim was “very nervous, very nervous, shaking and trembling, and when [Sergeant Hendricks] first said something to her she didn’t respond.” Sergeant Hendricks noticed that the bedroom was “in disarray, [. . . in that] the sheets were not on the bed [and] there were some clothes laying in the floor.” After a moment, the victim “took a deep breath and said, T can talk to you about it now.’ ” The victim is a “paraprofessional teacher [with the Atlanta Public Schools, working] with a program for exceptional children.” She had known defendant for about five years, but they never dated. On the evening of January 12, 1993, defendant saw the victim at Underground Atlanta and wanted her telephone number. She refused to give him her telephone number and address. Nevertheless, “that evening when [she] got home he called, and [she] said, ‘How did you get my phone number?’ ” Defendant called her again, at approximately 4:00 a.m. He offered her “$100 just to stay off work and spend some time ...” with him. The victim refused and hung up the telephone. Within seconds, defendant called back and the victim “hung up on him again.” “About 15 or 20 minutes [later],” defendant appeared at the victim’s front door. She told him that her fiance “ ‘Omar [Washington] is on his way here to get [four-year-old] Christa and I don’t have time to play with you.’ And [defendant] said, ‘Pm tired of you rejecting me. I’m tired of you acting like you don’t want to be with me.” Defendant “grabbed [the victim] around [her] neck and kicked back with his foot and closed the door.” Defendant “tried to kiss [her] and [she] kept turning to the side. [The victim] said, ‘Eric, I don’t want to kiss you. Please leave me alone.’ And then [defendant] pushed [her] down the hallway.” Awakened by the commotion, the victim’s four-year-old daughter “came out of [her bedroom] and said, ‘What’s wrong, Mommy?’ And [defendant] said, ‘You better not tell her something’s wrong or I’m going to hurt you. I’m going to kill you.’ ” Defendant pushed the victim down on the bed and told her she “better do what he told [her] to or he was going to hurt [her].” The victim was wearing “a blue dress, and [defendant] ripped the buttons off the bottom and ripped [her] underwear. . . .” While committing an act of oral sodomy on the victim, defendant also bit the victim on her genitals and her breasts. Defendant then had intercourse with the victim, who “kept fighting the whole time. . . .” While the defendant was in another room, the victim telephoned her close friend, Tammy Allen, who was then the “assistant manager of the complex.” Defendant testified that their sexual relations were consensual but that a fight subsequently ensued because defendant was unable to give the victim $100.

The jury found defendant guilty of sexual battery as a lesser offense included within the indicted offense of rape and acquitted him of all other charges. His motion for new trial was denied, and this appeal followed. Held:

1. Defendant enumerates the general grounds. The crime of sexual battery is committed when a person “intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.” OCGA § 16-6-22.1 (b). “Although the evidence was in conflict as to whether the prosecutrix voluntarily submitted to [any sexual contact, including] intercourse, it was for the jury to resolve such conflicts in the testimony. The jury resolved this conflict in favor of the [S]tate, and this [C]ourt will not substitute its judgment [as to witness credibility] for that of the jury. [Cits.]” Glover v. State, 237 Ga. 859 (1), 860 (230 SE2d 293). Thus, although defendant contends in the case sub judice that the victim lied, the evidence is nevertheless sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of sexual battery. Ochle v. State, 218 Ga. App. 69, 71 (1) (459 SE2d 560).

2. Next, defendant contends the trial court erred in “prohibiting [him] from presenting evidence of motive to the jury.” After the trial court sustained a relevancy objection by the State’s Attorney, defendant proffered the testimony of Lanira Davis, who would have testified that the victim told her “she would do anything to marry him [Omar Washington] because she was a single woman with two kids by two different fathers, and she wanted the kind of life her parents or anybody else expected from her, and what man would want her with two kids by two [fathers], and really no future for them. And that’s why she wanted Mr. Washington to stay around and be with her and marry her.” Lanira Davis speculated that defendant represented a threat to the victim’s relationship with Omar Washington. Defendant argues that “Lanira Davis’ testimony shows a possible motive of [the victim] to fabricate the charges.”

In our view, this evidence pointing to an inference of jealousy was entirely cumulative of the testimony of the victim herself, of the defendant himself, and of the self-described fiance, Omar Washington. It is not error to exclude otherwise relevant evidence if its probative value is substantially outweighed by considerations of avoiding the needless presentation of cumulative evidence from which the jury might or might not draw a certain inference. Deters v. State, 261 Ga. 186 (3) (b), 187 (402 SE2d 733). Compare Brinson v. State, 201 Ga. App. 80 (1), 81 (410 SE2d 50), where demonstrative evidence of that defendant’s visual impairment could “scarcely be deemed to be only cumulative of his merely oral testimony.” This enumeration is without merit.

3. Defendant’s final enumeration contends the trial court erred in overruling his motion for new trial on the ground that he received ineffective assistance of counsel. The specifications of alleged professional errors are that trial counsel “elicited evidence of [defendant’s] post-Miranda silence[; . . .] did not object to evidence of pre-trial negotiations between [defendant], the victim and counsel[; and . . . that] [c]ounsel failed to object to improper testimony from state witnesses.”

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [defendant] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443). “There is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance’ and that any challenged action ‘ “might be considered sound trial strategy.” ’ [Cit.] . . . In the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188). The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641).

Decided October 3, 1995.

Juwayn Haddad, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Herman L. Sloan, Assistant District Attorneys, for appellee.

(a) At the outset, we note that trial counsel secured acquittals of each felony charged in the indictment, i.e., burglary, rape, kidnapping, aggravated sodomy, and aggravated assault, with defendant’s sole conviction being for the misdemeanor of sexual battery. This circumstance strongly supports the conclusion that the assistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render. Johnson v. State, 214 Ga. App. 77 (1) , 79 (447 SE2d 74). Accord Bishop v. State, 155 Ga. App. 611, 614 (2) (a) (271 SE2d 743).

(b) Trial counsel was not called to explain his conduct and defendant adduced no expert testimony to show that the choices made during trial fell below the standard of reasonably effective assistance. “ ‘ “The decisions on which witnesses to call, whether and how to conduct cross(-)examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with [the] client.” [Cits.]’ [Cit.]” Johnson v. State, 214 Ga. App. 77 (1), 79, supra. In the case sub judice, defendant’s “trial counsel made [such decisions] and, that [he] did so, affords [defendant] no ground for a new trial. ‘If we continue to second guess trial counsel on strategy and tactics when counsel have faithfully and diligently performed their function, we would have a proliferation of appeals on the flimsiest of grounds. “It is important for appellate judges to remember that ‘(a) defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.’ (Cits.)” (Cit.)’ Stripling v. State, 155 Ga. App. 636, 637 (2) (271 SE2d 888) (1980).” Anderson v. State, 206 Ga. App. 354, 355 (2) (426 SE2d 6). In the case sub judice, it is “sufficient to note that ‘strategic choices (made) after thorough investigation . . . are virtually unchallengeable.’ Strickland, supra. . . . [Cit.] The trial court found, and the evidence supports the finding, that trial counsel thoroughly investigated the case and prepared for trial. [Defendant] has shown nothing that would [rebut the strong presumption] that his trial counsel . . . exercise [d] reasonable professional judgment in his handling of the case. See Ferrell v. State, 261 Ga. 115 (3) (401 SE2d 741) (1991).” Stephens v. State, 265 Ga. 120, 121 (2), 122, supra.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A95A1425.
    MERRITT et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (463 SE2d 42)
   Smith, Judge.

Mary Sue Merritt brought suit against Billy Jack Hutto and his daughter, alleging that Hutto “willfully, intentionally and without any justification or provocation shot and killed Raymond Merritt.” Merritt also sought to set aside as a fraudulent conveyance Hutto’s transfer of his real property to his daughter. After Hutto pleaded guilty but mentally ill to malice murder, State Farm Fire & Casualty Company brought this action seeking a declaration of no coverage under a homeowner’s insurance policy issued to Hutto. The policy language excludes coverage for “bodily injury or property damage . . . which is either expected or intended by an insured” or “to any person or property which is the result of willful and malicious acts of an insured.” The trial court granted State Farm’s motion for summary judgment, and Merritt and the Huttos appeal.

Hutto was charged with murder, felony murder, and three counts of aggravated assault. Ten days before his trial was scheduled to begin, Hutto moved to withdraw his plea of incompetency. He submitted to the trial court the opinions of a psychiatrist and a psychologist that he was competent to stand trial and to assist his attorneys. The trial court questioned Hutto extensively regarding his competence and concluded he was alert, responsive, and fully aware of his rights. Hutto then entered a plea of guilty but mentally ill to one count of murder, and the State expressed its intention to drop the felony murder and aggravated assault charges. Under oath, Hutto acknowledged to the trial court that the facts of the offense as recited by the district attorney were “close. Not exact, but it’s something close.” The trial court concluded there was a factual basis for the plea. After accepting Hutto’s plea of guilty but mentally ill, the trial court sentenced Hutto to life without parole.

In addition to evidence of Hutto’s guilty plea, State Farm presented testimony to the effect that the shooting was intentional. This testimony showed that Hutto had an altercation with his wife and daughter, “slugged” and “slapped the c—p out of” his wife, threatened his daughter with a pistol, and then retreated to an outbuilding with several firearms. Sheriff’s officers, including Raymond Merritt, were summoned, and Hutto threatened them with a shotgun and a pistol while expressing his intention to kill them in obscene and racially offensive terms. It appeared to the officers from his language that he knew that they were law enforcement personnel and that one of them was an African-American. He attempted to shoot several officers, but both the shotgun and pistol misfired when he pulled the trigger. Hutto then successfully fired his pistol, striking Merritt in the chest and killing him. He then leveled his weapon at Deputy Hill but was shot and subdued by several officers. As Hutto was being carried to the hospital, he stated, “I know I got one of them b-s,” and “I got one of them s_n of a b-s.”

The evidence on the record leaves little doubt that Hutto suffered from some form of mental illness at the time of the shooting. He believed, and apparently still believes, that the CIA and “CIA Auxiliary” implanted satellite transmitters in his ears to send him messages and control his thoughts. The CIA and CIA Auxiliary could also make people invisible or make them “turn to spots” so that they could not be seen. In his deposition testimony, Hutto’s recall of the shooting incident was vague, but he acknowledged he saw the “spots” and “pointed the gun at a spot and shot it,” and this made the spots go away.

Although he entered a plea of guilty but mentally ill to malice murder, Hutto contended at his deposition that he was insane at the time of the shooting and pleaded guilty because “they just told a bunch of lies, and I had to go along with it to keep myself out of the electric chair.” Hutto responded affirmatively to suggestions by his attorney that he did not know he was shooting at anyone, did not see anyone, and had no intent to shoot Raymond Merritt or any other human being. At another point, however, he claimed a loss of memory on the day of the incident and, for this reason, could not state that anything in the recitation of the facts on the date of his guilty plea was specifically false.

A plea of guilty but mentally ill under OCGA § 17-7-131 (g) is nonetheless a plea of guilty and has the same force and effect. Logan v. State, 256 Ga. 664, 665 (352 SE2d 567) (1987). Malice, whether express or implied, is a required element of the offense of murder, as opposed to felony murder. OCGA § 16-5-1 (a), (b); compare OCGA § 16-5-1 (c). The policy of insurance at issue here excludes coverage for “malicious” as well as intentional acts.

“A guilty plea is an admission against interest and prima facie evidence of the facts admitted.” (Citations and punctuation omitted.) State Farm Fire &c. Co. v. Moss, 212 Ga. App. 326, 327 (441 SE2d 809) (1994). In Moss, an insurer sought a declaration of no coverage for a shooting incident under the identical policy language at issue here, relying on evidence of the insured’s guilty plea to a charge of aggravated assault. The insured filed in opposition an affidavit and deposition testimony in which he contended that the shooting resulted from an accidental discharge of his pistol during “horseplaying” and that he did not intend to commit the assault. In resolving this inconsistency, this Court looked for guidance to the Georgia Supreme Court decision of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), holding that the contradictory testimony of a party-witness, unless reasonably explained, will be construed against him on summary judgment. Moss, supra at 327-328. To be reasonable, the explanation must show that “an honest mistake has been made in the first statement.” Prophecy Corp., supra at 30 (2). This Court reversed a denial of summary judgment to the insurer in Moss, holding that the insured failed to offer a reasonable explanation. “Moreover, the mere fact that the conflicting testimony arose from [Hutto’s testimony] in two separate proceedings does not prevent a Prophecy-type rule from being invoked; testimony is testimony. [Cit.]” Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 50 (2) (443 SE2d 871) (1994).

Hutto entered a plea of guilty to murder and thus acknowledged under oath that he acted with malice aforethought in shooting Raymond Merritt. After this declaratory judgment action was filed, however, Hutto testified on deposition that he did not voluntarily enter his plea of guilty and did not intentionally shoot anyone because he was insane. Despite this assertion, Hutto does not contend that there was an infirmity in the plea proceedings or that he was incompetent at the time the plea was entered. There is no evidence that he has ever sought to withdraw his guilty plea, and he continues to serve a life sentence.

In essence, Hutto contends he committed perjury in order to escape full criminal responsibility for his misdeeds. He now wishes to retract that perjury in order yet again to escape full responsibility and place it on the shoulders of another, while still retaining the benefits of his perjured testimony. This “explanation” is inherently unreasonable and cannot suffice to fulfill the requirements of Prophecy Corp. As in Moss, appellants’ brief on appeal makes no attempt to explain the contradiction between Hutto’s guilty plea and his later deposition, even though counsel who represented Hutto in the plea proceeding continue to represent him and his daughter. Moss, supra at 328. We therefore must reject Hutto’s contradictory and self-serving testimony with regard to his intent at the time of the shooting.

Hutto also maintains that his contention of insanity at the time of the offense requires a jury to determine the question of his intent within the meaning of the policy of insurance. This assertion is without merit. In State Automobile Mut. Ins. Co. v. Gross, 188 Ga. App. 542 (373 SE2d 789) (1988), an insured contended he shot and killed his neighbor as a result of mental illness and presented psychiatric testimony that he suffered from a delusional compulsion and was unable to distinguish between right and wrong. Testimony regarding delusion or inability to distinguish between right and wrong will not prevent summary judgment on the issue of coverage for intentional acts, however, if the insured makes an admission of intent or if the evidence otherwise demonstrates the insured intended or expected the harmful consequences of his act. Id. at 543. “([E]vidence establishing lack of criminal intent ‘does not necessarily demonstrate, in a civil case, that the act is not intentional.’)” Id. at 543-544. This Court reversed the trial court’s denial of summary judgment, noting the insured admitted under oath that he intended to shoot and kill his neighbor. Id. at 542.

Insureds who plead guilty to charges of child molestation have used similar contentions of insanity in an attempt to maintain coverage under homeowner’s policies for personal injury actions brought against them by their victims. In Roe v. State Farm Fire &c. Co., 259 Ga. 42 (376 SE2d 876) (1989), the offender testified that his behavior was caused by an obsessive compulsion and he did not intend to cause harm to the victim. The Supreme Court rejected this argument, holding that “intentional child molestation carries with it a presumption of intent to inflict injury. This presumption is not rebutted by the presentation of the insured’s own self-serving testimony.” Id. In Allstate Ins. Co. v. Jarvis, 195 Ga. App. 335 (393 SE2d 489) (1990) (Beasley, J., concurring specially), the offender presented expert testimony that he was suffering from the mental illness of pedophilia and that the compulsion of his mental illness was so overpowering as to eliminate any volition or intent to inflict injury upon the victim. For this reason, he contended, he did not fall within the intentional acts exclusion of his homeowner’s insurance policy. This court resoundingly rejected this argument, observing: “In other words, child molestation is one of those acts which is ‘so extreme that public policy does not permit them to be insured.’ [Cit.]” Id. at 337. If the offense of child molestation is too extreme to be insurable, the same certainly can be said of malice murder.

State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988), relied upon by appellants, is inapposite, because it does not consider the effect of admissions by the insured, whether in the form of res gestae statements, testimony, or a plea of guilty. The question raised in Morgan was not insanity, but whether the insured was so intoxicated at the time of shooting his victims as to render him incapable of forming intent. While in Morgan the Supreme Court found a jury issue as to whether such an act was intentional within the meaning of a homeowner’s insurance policy, there was no evidence of the participants’ state of mind before or during the shooting, and no plea or other admission was made by the insured because he killed himself immediately after shooting the victims.

Decided October 3, 1995.

Reinhardt, Whitley & Wilmot, Glenn Whitley, Edwards & Edwards, H. B. Edwards III, William R. Folsom, for appellants.

Sims, Fleming & Spurlin, John S. Sims, Jr., John C. Spurlin, for appellee.

While Morgan correctly holds that the standard for determining intent under the contract language of a policy of insurance is distinct from the rules governing intent for the purposes of criminal responsibility, it does not hold that evidence and testimony elicited during a criminal proceeding are irrelevant or inadmissible to show intent in a subsequent civil action growing out of the same facts. If that testimony contains admissions and creates a prima facie showing of malice or an intention to commit the act in question, it will suffice to support summary judgment on the issue of coverage under the exclusion at issue here. If the testimony of the party-witness in opposition to summary judgment is contradictory and is not satisfactorily explained, it must be construed against him under the rule established in Prophecy Corp. Moss, supra.

Under this rule, appellants have failed to offer a substantive explanation for the contradiction between Hutto’s prior admissions against interest and his later deposition. They therefore have failed to overcome the prima facie case established by State Farm, and the trial court properly granted State Farm’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Hutto transferred his residence by “deed of gift” to his daughter 13 days after the shooting. In interrogatory responses, Hutto claimed he did this because he had no funds to pay the mortgage, but on deposition, Hutto acknowledged he had made this transfer “because I was in trouble and all that stuff,” and further stated he had also transferred “the car, trucks, everything out of my name. Why don’t you all chase them down and get them back?”


text:
    A95A1457.
    MORRELL v. PEED BROTHERS, INC.
    (462 SE2d 798)
   McMurray, Presiding Judge.

On June 7, 1993, at approximately 8:55 p.m., Lonnie Edward Morrell III (plaintiff’s decedent) was riding a dirt bike on the real property of defendant Peed Brothers, Inc., when he encountered a steel cable across the path. The 29-year-old man was thrown from the bike and died at the scene of massive head injuries. In the ensuing wrongful death action, plaintiff Evelyn Morrell alleged that defendant was negligent “in securing the cable across the road, failing to properly mark the cable or otherwise make it visible, failing to warn of the hidden danger presented by the cable, and maintaining the hazard presented by the cable.”

After discovery, defendant moved for summary judgment, based upon the following undisputed evidence: Defendant had posted the land against trespassers and that plaintiff’s decedent had no express permission to enter the land. The cable, in place for three years, “was approximately one hundred yards from Highway 96 and several acres from the back boundary line of the property. When it was hung, the cable was marked with several reflectors and strands of reflective tape.” Edgar McGee, a neighbor who heard the crash and found plaintiff’s decedent, testified that, after the accident, “one reflector was still hanging on the cable.” Donald Morrell, the decedent’s brother, identified a photograph he took the day after the incident, showing “the cable across the road with a reflector on it.” The trial court granted defendant’s motion for summary judgment, and this appeal followed. Held:

Plaintiff enumerates the grant of summary judgment, contending that factual issues remain for jury determination on the issues of negligence, assumption of the risk, lack of care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, and related issues. It is our view, however, that this case is controlled by the decision of the Supreme Court of Georgia in Trammell v. Baird, 262 Ga. 124 (413 SE2d 445). There, on facts indistinguishable from those in the case sub judice, the Supreme Court reversed the trial court’s denial of summary judgment to the defendant landowner and held: “Consent to travel on the property [of another] cannot be implied even if the landowner has knowledge that others, on occasion, trespass on it. [Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 195 (1), 196 (150 SE2d 563)].” Trammell v. Baird, 262 Ga. 124, 125, supra. The Supreme Court concluded that a covered cable marked by black PVC pipe stretched across a private unpaved road constituted “no evidence of a mantrap. . . .” Id. at 125. Rather, such a covered cable constituted “a static condition on the premises. [Although the defendants in that case] owed [the trespasser] a duty not to wilfully or wantonly injure him[, the static condition represented by the covered cable across a private road] shows that [those defendants] did not breach this duty.” Id. at 126. In the case sub judice, the existence of a cable marked by reflectors stretched across an unpaved road on posted private property is not any evidence that the defendant landowner breached its duty to refrain from wilfully or wantonly inflicting injury on a trespasser. The trial court correctly granted defendant’s motion for summary judgment.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Decided October 3, 1995.

Ricky E. Jones, for appellant.

Self, Mullins, Robinson, Marchetti & Kamensky, Ronald W. Self, for appellee.


author: Blackburn, Judge.

text:
    A95A1871.
    In the Interest of M. W., a child.
    (462 SE2d 796)
   Blackburn, Judge.

M. W. seeks to reverse the Fulton County Juvenile Court’s determination that she committed the delinquent act of robbery, contending a fatal variance existed in the evidence introduced at the hearing and the allegation contained within her delinquency petition.

At a hearing by the juvenile court, the following facts were revealed. M. W. and her friend approached Vonyetta Hunter who was walking to a bus stop and asked for a dollar. Hunter gave M. W. the $1 bill she had in her hand. M. W. then asked Hunter for a $5 bill in exchange for some ones. Hunter had a $5 bill in her wallet which she retrieved from a book bag she was carrying on her back. She offered the $5 bill to M. W. who took it but then refused to give the $1 bills in exchange.

Some discussion ensued, but because Hunter did not want to miss the bus that was scheduled to arrive shortly, she told M. W. she “wasn’t going to worry about it” and continued walking toward the bus stop. M. W. and her friend then followed Hunter and tried to take the book bag off her back. In the struggle, Hunter was thrown or fell to the ground, and the girls dragged her by the straps of her bag down the street. M. W.’s friend told M. W. to hit Hunter with a tree limb that M. W. had picked up if Hunter did not release the book bag. Instead, M. W. bit Hunter to get her to let go of the bag. Shortly thereafter, a police car approached causing M. W. and her friend to flee, leaving Hunter and the bag.

A delinquency petition was filed in the Fulton County Juvenile Court alleging that M. W. committed robbery. Particularly, it alleged that M. W. took $5 in money from Vonyetta Hunter “by the use of force” in violation of OCGA § 16-8-40 (a) (1). According to the undisputed facts, force was not used to obtain the $5. The State admits that a variance existed in the evidence adduced at the hearing and the allegation but asserts that this variance is not fatal as delinquency petitions require less exactitude than criminal indictments. See T. L. T. v. State, 133 Ga. App. 895, 897 (212 SE2d 650) (1975). We disagree with the State’s conclusion. Although a delinquency petition need not contain the “technical terminology of an indictment,” it still “ ‘must set forth the alleged misconduct with particularity.’ ” Id.

Decided October 3, 1995.

Steven E. Phillips, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

It has long been recognized that “there must be scrupulous adherence to due process requirements in juvenile court proceedings.” (Citations and punctuation omitted.) In the Interest of B. A. H., 198 Ga. App. 713, 714 (402 SE2d 791) (1991). Due process “does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice ... of the specific issues that they must meet.” (Emphasis in original.) D. P. v. State, 129 Ga. App. 680, 682 (200 SE2d 499) (1973). To fulfill the due process requirement, an allegation “must pass two tests: (1) it must contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) it must provide data adequate to enable the accused to prepare his defense.” T. L. T. v. State, supra at 897; see also Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995) (“This notice enables [the accused] to present their defense without surprise and to protect them against a second prosecution.”)

Clearly, the allegation did not describe M. W.’s offense with particularity so as to enable her to prepare an adequate defense. On the basis of the lone allegation, M. W. was prepared to defend that the $5 in question was given to her voluntarily and without force. She was not prepared to defend allegations concerning the book bag and the assault upon Hunter. In a similar case, this Court reversed a delinquency adjudication on the grounds that a fatal variance existed between the allegation of the petition and the proof presented to the juvenile court. In the Interest of C. C. B., 186 Ga. App. 50 (366 SE2d 387) (1988) (adjudication of delinquency for driving under the influence of alcohol reversed because the evidence indicated that juvenile had not been drinking but had traces of marijuana in his blood).

Without question, we find M. W.’s conduct to be deplorable. However, because the evidence offered against her materially varied from the allegations contained within the petition, we must reluctantly reverse the lower court’s determination of delinquency.

Judgment reversed.

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

       During the hearing, the juvenile court expressly stated the allegation that the $5 had been taken by force was “questionable.” In fact, the final order entered by the juvenile court found M. W. committed robbery by intimidation, a violation of OCGA § 16-8-40 (a) (2), a charge not contained within her petition.


text:
    A95A1875.
    RUCKSTUHL v. CORLEY.
    (462 SE2d 795)
   Blackburn, Judge.

Theressa Ruckstuhl appeals the trial court’s determination that personal jurisdiction over her was proper in the underlying action for contempt and modification of visitation rights brought by Thomas Garrett Corley.

The undisputed facts show that the parties are the natural biological parents of a minor female child, born on September 3, 1986. By virtue of a Judgment and Decree entered February 12, 1992, in the Superior Court of Chatham County, Ruckstuhl was awarded primary physical custody, and Corley was awarded visitation rights. On May 4, 1994, Corley filed the underlying action in Chatham County Superior Court. At that time, Ruckstuhl and the minor child were residents of New York. Ruckstuhl was served with a copy of Corley’s action by regular mail and by certified mail return receipt requested. Corley’s further attempt to perfect personal service upon Ruckstuhl was unsuccessful as Ruckstuhl resides on a restricted military post on Governor’s Island, New York.

This case is controlled by the Georgia Supreme Court’s decision in Ashburn v. Baker, 256 Ga. 507 (350 SE2d 437) (1986), which affirmed our decision in Baker v. Ashburn, 179 Ga. App. 757 (347 SE2d 660) (1986). On virtually indistinguishable facts, the Supreme Court reiterated the limited circumstances in which citizens of other states may be bound by a Georgia judgment. “[Although the superior court rendering a decree in a divorce action retains exclusive jurisdiction to enforce the provisions therein relating to custody of the minor children of the parties by attachment for contempt, even where subsequent to the rendition of the order the party sought to be adjudged in contempt has removed his or her residence to another jurisdiction, nevertheless, in order for the court to bind nonresidents by its judgments in personam there must be personal service or waiver of personal service upon such nonresidents. [Cits.] Although the cases requiring ‘personal service’ do not specify that this must be personal service within Georgia, a close inspection of these cases reveals this to be the case.” (Punctuation omitted; emphasis in original.) Ashburn, 256 Ga. at 509. The court held that personal service executed outside Georgia was not valid. Id. Therefore, in the present case, which concerns service outside Georgia by mail, the trial court erred in determining that service was proper.

Decided October 3, 1995.

Calhoun & Associates, Gregory N. Crawford, for appellant.

Robert S. Lanier, for appellee.

The trial court further erred in determining it could exercise jurisdiction over Corley’s request for modification of visitation. Although the court maintained jurisdiction over a contempt proceeding, see Daily v. Dombroski, 250 Ga. 236 (297 SE2d 246) (1982), pursuant to the “Uniform Child Custody Jurisdiction Act (UCCJA), OCGA § 19-9-40 et seq., jurisdiction for modification of child custody matters, which include visitation, is in the home state of the child.” Kemp v. Sharp, 261 Ga. 600, 601 (409 SE2d 204) (1991). Corley’s reliance upon this Court’s decision in Paul v. Paul, 184 Ga. App. 217 (361 SE2d 221) (1987) is misplaced because in Paul, the “home state” of the minor children was Georgia. In the present case, the “home state” of the minor child is New York. Therefore, pursuant to the UCCJA, New York would have jurisdiction over the portion of this action for modification of visitation.

Judgment reversed.

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

       In a case pursuant to OCGA § 9-10-91 (5), i.e., a proceeding for “alimony, child support, or division of property in connection with an action for divorce or with respect to an independent action for support of dependents,” OCGA § 9-10-94 provides for personal service outside of Georgia.


author: Beasley, Chief Judge.

text:
    A95A2001.
    CLEVELAND v. THE STATE.
    (463 SE2d 36)
   Beasley, Chief Judge.

Cleveland appeals his convictions of trafficking in cocaine (OCGA § 16-13-31), obstructing a law enforcement officer (OCGA § 16-10-24), fleeing or attempting to elude a police officer (OCGA § 40-6-395), and driving while license suspended or revoked (OCGA § 40-5-121).

The evidence showed that a Georgia State Patrol officer made a traffic stop of an automobile driven by Cheeks. Cleveland was sitting in the front seat, and Strickland was sitting in the back seat. Cheeks informed the officer that Cleveland owned the car. Cheeks then consented to being patted down by the officer and to sitting in the back of his patrol car.

The officer then questioned Cleveland. As Cleveland was removing vehicular documentation from the glove compartment at the officer’s request, the officer observed him reach down with his left hand and push an object wrapped in aluminum foil under the passenger seat. Cleveland consented to the officer’s patting him down, but as he began to do so, Cleveland hit him, got into his car, and fled.

The officer and other backup units pursued Cleveland to the parking lot of a gas station. As Cleveland exited his car, the officer observed him drop the foil-wrapped object and a white chalky-looking substance fall to the ground and break into pieces. Cleveland picked it up and ran into a wooded area, but he was arrested at a nearby restaurant. After his arrest, he made a statement to the police to the effect that he did not set up the deal. The aluminum foil and cocaine were found in the wooded area, and more cocaine was found in the parking lot of the gas station. The total weight was 58.8 grams with a purity of 47 percent.

Strickland testified that on the day in question Cheeks drove Cleveland’s car from Gainesville (where all three lived) to a housing project in Atlanta, left for about 30 minutes while Strickland and Cleveland remained in the car, returned with the object wrapped in aluminum foil, and instructed Cleveland to put it underneath his seat. According to Strickland, Cleveland took Cheeks to Atlanta because Cheeks was going to pay him $50. Strickland did not think Cleveland had knowledge of the fact that he was going to transport drugs, but he acknowledged that he and Cleveland could observe drug activity at the housing project.

Evidence was presented that approximately four months after Cleveland’s arrest, Cheeks was arrested for trafficking in cocaine after purchasing 2.9 ounces of cocaine in Atlanta and transporting it to Gainesville in a borrowed car with two other individuals who were never apprehended. There was also evidence that Cleveland had no prior narcotics arrests, convictions, or guilty pleas. Neither Strickland nor Cheeks was charged.

1. Cleveland contends that the court erred in refusing to charge the jury that OCGA § 16-13-31 (a) (1) requires the State to prove that defendant knew or should have known the cocaine he possessed weighed 28 grams or more.

OCGA § 16-13-31 (a) (1) provides, as charged by the court: “Any person who ... is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine. ...”

After the jury had begun deliberations, it asked the court whether, in order to be guilty of trafficking in cocaine, defendant must have known that he was in possession of 28 grams or more of cocaine. In response, the court re-charged the jury on the cocaine trafficking statute and on certain general principles. Cleveland maintains that the court erred in not giving an affirmative answer.

Under the cocaine trafficking statute, the State must show as an element the minimum amount of 28 grams, after which the quantity possessed bears only on punishment. Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988). The amount of 28 grams was designated by the legislature as the basis for distinguishing the crime of trafficking from the somewhat less serious crimes. Bassett v. Lemacks, 258 Ga. 367, 370 (2) (370 SE2d 146) (1988). The trafficking statute explicitly requires as the mens rea that defendant know he or she possesses the substance and know it is cocaine. See generally Tift v. State, 133 Ga. App. 455, 456 (2) (211 SE2d 409) (1974). The statute is not, however, reasonably subject to the construction urged, that defendant must know or should know the substance possessed weighs at least 28 grams. The court did not err in refusing to instruct the jury of such a requirement.

2. In view of our holding in Division 1, Cleveland’s second enumeration is moot.

3. The third enumeration points to the refusal to charge the jury, in accordance with Henderson v. State, 255 Ga. 687, 689 (1) (341 SE2d 439) (1986), that “evidence that someone other than the defendant committed the crimes may be enough to raise a reasonable doubt as to the defendant’s guilt even though the evidence would not be sufficient to convict someone else.”

“ ‘Though this language was taken from a decision by (the Georgia Supreme Court), the court properly refused to give it. It is not always proper for the court to charge the jury in language used in one of the decisions of the (appellate) court. Sometimes the language is argumentative. . . .’ [Cit.]” Ellerbee v. State, 215 Ga. App. 102, 105 (6) (449 SE2d 874) (1994). That statement fits here.

4. The last contention is that the court erred in replacing a juror with an alternate after deliberations had begun because it was not manifestly necessary to do so.

During jury deliberations, a note was sent out, and the court recalled the jury to the courtroom. The foreperson announced that the jury had reached a decision on some of the counts but was hung on others. The vote was eight to four on one and evenly divided on the other. The court advised that it would permit the jury to disperse for the day and commence again the next morning with a further charge. The foreperson asked for more time that day, the court gave an Allen charge, and the jury continued its deliberations. It did not reach a verdict but, when asked, advised the court it wished to recess until the next morning. Before the jurors left, one juror asked what role the alternates play and was advised by the court that they were used to replace ill jurors or in other emergencies. The court also responded to a question about work emergencies.

Shortly after the jury reconvened the next morning, one juror indicated that he had an emergency, in that he had a possibly cancerous growth on the back of his ear which was visible, the growth was getting larger and needed to be taken off as soon as possible, and an operation to remove it had been scheduled for that day. He provided documentation to substantiate his request. The court had the juror return to the jury room, announced that this constituted a medical emergency and the court would not make the juror stay, and asked if either party objected. The State did not, but defendant moved for a mistrial on the ground that it appeared, from the questions asked earlier and the new request of the juror, that the system was being manipulated to avoid deadlock. The court disagreed, found the request to be legitimate, and called the alternate, the foreperson, and the juror who asked to be excused. After the court announced that the juror would be replaced, the foreperson asked if the jury could continue deliberations because it was close to a decision. The court suggested that it could call the doctor and advise that the juror would be a little late, and the affected juror said that would be “just fine.”

On second thought, the court feared the legal ramifications of returning a juror after announcing he was excused, and since neither party suggested otherwise, the court replaced him. Defendant again sought a mistrial, which was denied, on the ground the system was tainted because the juror who was excused may have been favorable to him.

OCGA § 15-12-172 authorizes the trial court to replace a juror who “dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause. . . .” “The statute implicitly authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel.” Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989).

This case differs significantly from Stokes v. State, 204 Ga. App. 141, 142 (418 SE2d 419) (1992), in that no legal cause was shown for excusing the jurors who simply indicated they were not prepared to vote. No effort was made to resolve the problem so they could fulfill their duties. In Green v. Zant, 715 F2d 551 (11th Cir. 1983), and Peek v. Kemp, 746 F2d 672 (11th Cir. 1984), which are relied upon by Cleveland, the court dismissed jurors without questioning them based upon a misapprehension that they were ill. Here the juror had a scheduled surgery and obvious apprehension about his medical condition. Although the court may not have excused him had it first inquired and discovered that a verdict might be reachable without jeopardizing the scheduled surgery, it was not an abuse to do so. Hurrying to a verdict because of anxiety about keeping an important medical appointment relating to the juror’s own health could itself infect the verdict. Graham v. State, 171 Ga. App. 242, 249 (5) (319 SE2d 484) (1984), is another case in which illness authorized excusing a juror.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided October 3, 1995.

Scott C. Gladstone, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.


author: Johnson, Judge.

text:
    A95A1263.
    NATIONSBANK OF GEORGIA, N.A. v. GREEN.
    (462 SE2d 761)
   Johnson, Judge.

NationsBank of Georgia, N.A., brought suit to recover on an indebtedness allegedly owed by John R. Green d/b/a Green Development and Rebecca Richardson f/k/a Rebecca Green pursuant to certain promissory notes and security deeds executed in favor of Citizens & Southern Real Estate Services, Inc. (C & S), and certain note modification agreements executed in favor of NationsBank. Green counterclaimed and requested a setoff, alleging that NationsBank failed to pay the proceeds of a construction loan into escrow and negligently paid from the proceeds the cost of “developed” land to an insolvent developer despite having actual or constructive knowledge that the subject land had not been developed. NationsBank later dismissed all claims against Richardson. Following the denial of its motion for summary judgment on its claims and Green’s counterclaim, NationsBank filed this interlocutory appeal.

Both NationsBank and Green agree that Green executed the original notes and that the notes are in default. The four original notes executed in favor of C & S are: 1) a real estate note of January 4, 1991, in the original amount of $214,000; 2) a real estate note of January 4, 1991, in the original amount of $226,000; 3) a real estate note of January 4, 1991, in the original amount of $48,000 and 4) a real estate note of January 4, 1991, in the amount of $214,000. It is undisputed that Green executed with NationsBank eight note modification agreements relating to each of the four original notes and that each note modification agreement denotes NationsBank as the holder. Nevertheless, after hearing evidence, the trial court determined there was insufficient proof to establish that NationsBank was the holder of the original notes. The court denied summary judgment on the narrow ground that NationsBank had not met its evidentiary burden of showing it is the holder of the four notes on which Green acknowledged being in default. Because the court was not satisfied that NationsBank proved that C & S properly transferred the notes between Green and Citizens & Southern Real Estate Services, Inc. (not Citizens & Southern National Bank) to NationsBank, the court denied NationsBank’s motion for summary judgment on its claims and Green’s counterclaim.

1. NationsBank contends it was entitled to summary judgment on its claims as a matter of law and there are no genuine issues of material fact remaining to be tried. NationsBank argues it established an unrebutted prima facie case showing entitlement to judgment against Green and that Green then had the burden to rebut the evidence and establish an issue of fact. See Thompson v. Phelps Industries, 215 Ga. App. 128, 129 (449 SE2d 677) (1994).

In support of its case, NationsBank offered the affidavit of a NationsBank vice president who testified that NationsBank is indeed the owner of the notes, note modification agreements and security deeds that are at issue here. The affiant also identified NationsBank as the successor by merger to Citizens & Southern National Bank and stated he had been in charge of the subject accounts since December 1,1993. He also provided the trial court with the alleged total amount of Green’s indebtedness to NationsBank and testified NationsBank had expended $10,246.27 in appraisal fees, property taxes and force-placed insurance on the collateral. Because NationsBank considered itself the owner of the security deeds and notes, it acted to protect the collateral by obtaining insurance for five duplexes and by paying delinquent property taxes owed on some of the collateral.

NationsBank further offered evidence that each of the four notes Green originally had executed with C & S was subject to subsequent modification on eight different occasions between July 1991 and April 1993, with each modification identifying NationsBank as the holder. In addition, each of the 32-note modification agreements contains waiver and release language in favor of NationsBank as the holder.

NationsBank also offered evidence that Green implicitly admitted in the response to NationsBank’s interrogatories that Nations-Bank is, indeed, the holder of the original notes. NationsBank’s interrogatory six stated, “If you disagree with any amounts claimed due by NationsBank, state the amounts you contend are due.” Green’s verified response to interrogatory six was, “The amounts due [to Nations-Bank] are the amounts claimed less the amount of the judgment to be entered on the counterclaim.” Thus, in the responsive pleading, Green admitted owing certain amounts to NationsBank but proposed the total was subject to a setoff based on Green’s counterclaim.

In opposition to NationsBank’s summary judgment motion, Green offered no affidavits, depositions or other evidence and merely questioned whether the subject notes had been properly transferred from C & S to NationsBank. Thus, Green challenged NationsBank’s status as holder of the notes that form the basis of the lawsuit. Green contends the record is devoid of an assignment or transfer document establishing NationsBank as the holder of the original promissory notes. Green argues each note modification agreement provides, “[t]his agreement is a modification only and not a novation.” Accordingly, Green claims NationsBank had the burden to prove the negotiation and proper transfer of the promissory notes from C & S to NationsBank in order to prevail as the subsequent holder of the notes. Green argues that in a suit instituted by one claiming to be the owner and holder of a promissory note, for the purpose of recovering thereon against the maker, it is permissible to inquire into the plaintiff’s title to the note, for the defendant’s protection or to interpose any valid defense. See Austell Bank v. Nat. Bondholders Corp., 188 Ga. 757, 758 (2) (4 SE2d 913) (1939). Green further contends a defendant in a suit on a note should be protected against a subsequent action by the true owner entitled to recover. Green suggests that because Nations-Bank is not the real party in interest, Green could be subjected to multiple liability.

We agree with Green’s fundamental proposition that every action shall be prosecuted in the name of the real party in interest. OCGA § 9-11-17 (a); see Allman v. Hope, 200 Ga. App. 137, 138 (1) (407 SE2d 107) (1991). But after examining the record, we find Nations-Bank satisfied its evidentiary burden to prove it is the real party in interest and holder of the notes and that Green failed to demonstrate the existence of any material disputed fact. In fact, it is likely Green waived his right to contest whether NationsBank is the holder of the four notes because of Green’s discovery admissions, the 32-note modification agreements Green signed with NationsBank which denote NationsBank as the holder and the waiver and release clause contained in each modification agreement. We find the bank has established a prima facie right to recover on the notes and Green has failed to produce evidence of a legally sufficient defense. Carrollton Car Center v. C. & S. Nat. Bank, 202 Ga. App. 429, 431 (3) (414 SE2d 674) (1992). For these reasons, we reverse the trial court’s denial of NationsBank’s motion for summary judgment on its claims against Green.

2. NationsBank also contends it is entitled to summary judgment as to Green’s counterclaim for a setoff. NationsBank claims it should prevail as a matter of law because of the waiver clause language contained in the note modification agreements, which provides: “The Maker [Green] hereby waives and releases the Holder [NationsBank] from any and all claims with respect to the Promissory Note and any and all documents, instruments, certificates, notes, bonds or other agreements executed therewith or herewith.” NationsBank points out that the April 1993 date on the note modification agreement is well past the date of any alleged wrongdoing by any alleged agent of NationsBank. Therefore, NationsBank argues the release/waiver language eliminated the possibility of a counterclaim.

One cannot merely stand on the pleadings to defeat a motion for summary judgment, so Green had the burden to produce evidence creating a genuine issue of material fact. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In Green’s two-page brief opposing NationsBank’s summary judgment motion, however, Green cited no evidence and offered none in support of the counterclaim. Nor did Green offer any evidence to contradict the content or existence of the releases.

Decided September 12, 1995

Reconsideration denied October 4, 1995.

Bisbee, Rickertsen & Herzog, Richard B. Herzog, Jr., William A. DuPre IV, David N. Stern, for appellant.

J. Hue Henry, for appellee.

Furthermore, as we held in Harrison v. Martin, 213 Ga. App. 337, 342 (1) (444 SE2d 618) (1994), the renewal of a note cuts off all defenses of which the maker then had knowledge. Green failed to offer any evidence that when Green renewed the notes in April 1993, he lacked knowledge regarding the information that comprises the factual basis for Green’s counterclaim — knowledge about the alleged negligent actions of the bank’s closing attorney and the alleged negligent disbursal of the escrow funds. Because of our holding in Harrison, supra, and because of the express waiver and release clause, we find Green is barred as a matter of law from bringing the counterclaim. We find NationsBank produced uncontradicted evidence that Green released NationsBank from all claims relating to the notes. Therefore, we reverse the trial court’s denial of NationsBank’s motion for summary judgment on Green’s counterclaim.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1513.
    A95A1514.
    MACON-BIBB COUNTY PLANNING & ZONING COMMISSION v. VINEVILLE NEIGHBORHOOD ASSOCIATION et al. RAMSBOTTOM COMPANY et al. v. VINEVILLE NEIGHBORHOOD ASSOCIATION et al.
    (462 SE2d 764)
   Blackburn, Judge.

These discretionary appeals are from the trial court’s order reversing three zoning decisions made by the Macon-Bibb County Zoning Commission (“Zoning Commission”). In Case No. A95A1513, the Zoning Commission appeals the trial court’s decision, and in Case No. A95A1514, the Ramsbottom Company (“Ramsbottom”) and the Kroger Company (“Kroger”) appeal the same decision.

After zoning hearings, the Zoning Commission approved Rams-bottom’s and Kroger’s request to rezone a piece of property owned by Atlantic Cotton Mills, Inc., allowing the construction of a shopping center thereon. A residential area in the City of Macon, known as Vineville, bordered the ten-acre proposed site to the north. A 75-year-old, fully operational cotton mill borders the east side of the site. Pio Nono Avenue, a four-lane road, runs along the property’s west side, and adjoining it to the south are the tracks of the Central of Georgia Railroad.

Upon petitions for certiorari, the superior court determined that plaintiffs, Vineville Neighborhood Association (“Association”), had standing to bring the underlying action as neighbors; found that the Zoning Commission had manifestly abused its discretion in approving a rezoning application, conditional use and certificate of appropriateness for Kroger; and enjoined Kroger from using the subject property “in any manner not authorized by the zoning regulations applicable to that property.”

1. Appellants enumerate that the trial court erred by finding that the Association, as neighbors, had standing to object to the Zoning Commission’s decisions in rezoning the property.

“It is important to keep in mind that the governing authority has approved the zoning change, thereby giving its permission to the landowner to use the property as the landowner desires. It is also important to keep in mind that we deal now with the right or power of neighbors to deny to the landowner the right to use the property as the landowner desires and as approved by the governing authority. Moreover, we deal here with the standing of neighbors to enjoin rezoning granted a property owner, not the standing of neighbors to be heard by a governing authority when considering a proposed zoning change.” (Footnote omitted.) Lindsey Creek Area Civic Assn. v. Consolidated Govt. of Columbus, 249 Ga. 488, 490 (292 SE2d 61) (1982).

“In order to challenge on the merits a decision of a governing authority to rezone, plaintiffs must show special damages under the substantial interest-aggrieved citizen test. Dunaway v. City of Marietta, 251 Ga. 727 (308 SE2d 823) (1983); Brock v. Hall County, 239 Ga. 160 (236 SE2d 90) (1977).” City of Marietta v. Traton Corp., 253 Ga. 64, 65 (316 SE2d 461) (1984). “[T]here [are] two steps to standing: First, that a person claiming to be aggrieved must have a substantial interest in the zoning decision, and second, that this interest be in danger of suffering some special damage or injury not common to all property owners similarly situated. By ‘similarly situated,’ we refer to persons in the general community who may merely suffer inconvenience and exclude those persons who stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it.” DeKalb County v. Wapensky, 253 Ga. 47, 48 (315 SE2d 873) (1984). To illustrate the foregoing rule, the Wapensky court cited Brand v. Wilson, 252 Ga. 416, 417 (314 SE2d 192) (1984). In Brand, the court found evidence given by an expert real estate appraiser indicating that an adjoining landowner would suffer a 15 percent to 20 percent decrease in the value of his property “sufficient evidence upon which a trial court might find substantial damage to a substantial interest.” Id. at 417.

In the present case, several residents of the Vineville area expressed concerns at the zoning hearings regarding increased traffic, noise, and crime and lower property values. Several people from the North Highland neighborhood spoke regarding the problems they have experienced with the Kroger store in their neighborhood. No expert real estate appraiser, traffic engineer, land planner, or other expert witness testified at the zoning hearing that any member of the Association, whether adjoining landowner or otherwise, would suffer any substantial damage to any substantial interest. In Lindsey Creek, supra at 492, we determined that neither the homeowners’ opinions that their property values would decrease nor their claims of nuisance met the substantial interest required to satisfy the aggrieved citizen test for standing.

Several people spoke at the hearings regarding their concern for the preservation of the historic nature of the Vineville area. However, despite a Kroger store in the North Highland community, the executive director of the Macon Heritage Foundation told the Zoning Commission that the North Highland community was “about to get on the National Register of Historic Districts.”

The appellants submitted a petition signed by 620 residents supporting the proposed rezoning, an overwhelming majority of the neighborhood inclusive of 264 names from a high rise apartment building for the elderly one block away. Eleven of the sixteen residents whose houses adjoin the site signed the petition in favor of the rezoning. Other testimony before the Zoning Commission indicated that projected traffic increases associated with the proposed zoning change would have only minimal impact on area traffic and required no change in the level of service required by the city. A representative of the Macon Police Department testified that department statistics suggested that the proposed Kroger superstore would not bring with it an identifiable pattern of violent or drug-related criminal activity. Furthermore, Kroger proposed plans to address the concerns of the Association with regard to problems raised by the North Highland Neighborhood Association.

“The mere increase in traffic congestion adjacent to one’s property as the result of improvements erected on nearby property and the attendant inconvenience resulting therefrom which are damages suffered alike by all property owners similarly situated, does not give to one individual such a substantial interest in the decision of the [Zoning Commission] permitting the improvement as to authorize an appeal therefrom. Such an inconvenience is a condition incident to urban living. It is merely the result of normal, urban growth and development. To hold that such an inconvenience would give to any resident or property holder of an urban area the right to override the decisions of boards of zoning appeals any time such property owner or resident disagreed with such decision would be a dangerous precedent to establish. It would result in materially slowing, if not completely stopping, the inevitable and necessary growth of large modern cities.” (Punctuation omitted.) Lindsey Creek, supra at 491-492.

Decided September 13, 1995

Reconsideration denied October 4, 1995

O. Hale Almand, Jr., Roy W. Griffis, Jr., for appellant (case no. A95A1513).

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, Charles M. Leverett, for appellants (case no. A95A1514).

James C. Marshall, for appellees.

Under these circumstances, the trial court’s finding that the Association had standing to challenge the decisions of the Zoning Commission upon evidence of substantial damage to a substantial interest was clearly erroneous. City of Marietta, supra at 65-66.

2. In light of the foregoing, the remaining enumerations of error are moot. The trial court’s decision reversing the Zoning Commission is reversed.

Judgments reversed.

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