author: Blackburn, Chief Judge.

text:
    A01A1245.
    HAEZEBROUCK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (555 SE2d 764)
   Blackburn, Chief Judge.

In this matter concerning a complaint brought by a third party against a liability insurer, Joseph V. Haezebrouck appeals the trial court’s grant of State Farm Mutual Automobile Insurance Company’s motion to dismiss, contending that the trial court erred by: (1) finding that he could not bring a direct action against State Farm; (2) failing to treat State Farm’s motion as a request for summary judgment; and (3) failing to consider the deposition of a particular expert. We affirm.

The record shows that Haezebrouck was involved in a car accident with Coleman Plemmons, who was insured by State Farm at the time. Haezebrouck subsequently brought suit against both Plemmons and State Farm. In his complaint, Haezebrouck argued that the accident was caused by Plemmons’ negligence. In addition, Haezebrouck argued that State Farm was responsible for compensating him for the damage to his recreational vehicle (“RV”), that State Farm failed to properly inspect his vehicle, that State Farm failed to properly adjust his claims, and that he was a third-party beneficiary of the insurance contract between Plemmons and State Farm. Haezebrouck’s claims against Plemmons and State Farm were subsequently bifurcated, and State Farm filed a motion to dismiss or, in the alternative, for summary judgment. The trial court granted State Farm’s motion to dismiss, finding that, as a third party not in privity of contract with State Farm, Haezebrouck could not directly sue the liability insurer under the facts of this case. Haezebrouck now appeals this decision.

1. Haezebrouck contends that the trial court erred by finding that he could not bring an action directly against State Farm. However, “[t]he general rule is that[, where] there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy.” Hartford Ins. Co. v. Henderson & Son, Inc. Here, neither prerequisite to the allowance of such a claim exists. No judgment has been levied against Plemmons, the insured, and Haezebrouck has cited no statute which would make his claims viable. Accordingly, the trial court did not err in dismissing Haezebrouck’s case.

2. (a) Haezebrouck contends that the trial court erred by failing to treat State Farm’s motion to dismiss his case as one for summary judgment, arguing that questions of fact remain whether State Farm competently inspected the damage to his vehicle. Haezebrouck, however, makes no argument supporting his contention. To the contrary, he merely states that the summary judgment standard should have been employed and argues about questions of fact concerning State Farm’s inspection. The record shows that State Farm filed a motion to dismiss or, in the alternative, for summary judgment. Haezebrouck has provided no case law or citations to the record to support his claim that the trial court was required to conduct a summary judgment hearing on the issues now raised in his appeal. As such, Haezebrouck has not preserved this argument for our review. See Court of Appeals Rule 27. Moreover, no transcript of the hearing on State Farm’s motion to dismiss has been provided to this Court, and in the absence thereof, we must assume that the trial court’s judgment is proper. See, e.g., Lambropoulous v. State.

(b) Although Haezebrouck argues at length in his brief that State Farm failed to properly inspect damage to his vehicle, we note that the record, as it stands before us, indicates that it was Haezebrouck and his counsel, not State Farm, who were unreasonable.

Following the accident, Haezebrouck had his RV towed to the dealer from whom he purchased it, and State Farm paid for the cost of towing. Haezebrouck’s dealer estimated that it would cost $632.42 to repair the RV, and, after a State Farm inspector met with the dealer’s service manager, State Farm paid to have Haezebrouck’s RV repaired. Over a month later, Haezebrouck presented State Farm with a three-page list of additional damage to his RV, contending that State Farm was required to compensate him further. At the same time, Haezebrouck demanded that State Farm reinspect his RV, despite the fact that he had it previously inspected by the dealer of his choice, and Haezebrouck insisted that he be present for this second inspection.

When State Farm did not immediately acquiesce in Haezebrouck’s request, Haezebrouck’s counsel sent numerous letters to State Farm, accusing representatives of the insurance company of intentionally misrepresenting the truth, being unable to understand English, and being untrustworthy and determined to commit fraud. At no point, however, did counsel cite any authority supporting his demand for a second inspection or his demand that Haezebrouck be present at such inspection.

Ultimately, State Farm performed the requested second inspection of Haezebrouck’s RV, though it did so in Haezebrouck’s absence. Following this inspection, State Farm concluded that any additional damage claimed by Haezebrouck had not been caused by the accident with Plemmons. In response, Haezebrouck’s counsel wrote a letter to State Farm stating that he considered the inspection “moot if not fraudulent” because it was conducted in his client’s absence. Again, no authority was provided for this claim.

Haezebrouck’s attorney now attempts to further his admittedly acrimonious crusade on appeal, and he continues to make sweeping accusations against State Farm without citation to proper authority, without a copy of the insurance contract under which he claims to be entitled to rights as a third-party beneficiary being entered into evidence, and without a transcript of the hearing of which he complains. Such invective in the absence of factual or legal support is both unprofessional in general and violative of this Court’s rules in particular.

While zealous representation of a client is required of every attorney, there was no basis for Haezebrouck’s counsel to think that he would obtain a favorable ruling at trial, or on appeal. The appeal in this case is frivolous. This Court hereby imposes a penalty against Haezebrouck and his counsel in the amount of $250 under the provisions of Court of Appeals Rule 15 (b) and (c). The imposition of this penalty shall constitute a money judgment in favor of State Farm against Haezebrouck and his counsel of record in this case. Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.

3. Haezebrouck also argues that the trial court failed to consider the deposition of a particular expert regarding State Farm’s inspection of his vehicle. This enumeration lacks merit for several reasons. First, this argument assumes that the trial court was required to consider State Farm’s motion as one for summary judgment, which, as discussed above, is erroneous. Second, Haezebrouck has provided no transcript of the hearing about which he now complains. And, third, even if Haezebrouck’s argument that State Farm improperly inspected his vehicle could be heard by this Court, the record contains no copy of the underlying insurance contract which would set the parameters for the inspection process. Griffin v. Travelers Ins. Co. Therefore, we affirm the trial court’s actions. Moreover, we have reviewed the deposition transcript about which Haezebrouck complains, and it provides no basis for the arguments he now raises.

Decided October 19, 2001

Reconsideration denied November 2, 2001

Michael J. Kramer, for appellant.

Downey & Cleveland, Y. Kevin Williams, for appellee.

Judgment affirmed.

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

        Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494 (371 SE2d 401) (1988).

        Lambropoulous v. State, 234 Ga. App. 625, 626 (2) (507 SE2d 225) (1998).

        Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0853.
    SAVAGE v. THE STATE.
    (556 SE2d 176)
   Blackburn, Chief Judge.

Following a jury trial, Mark Savage appeals his convictions of driving under the influence of drugs to the extent it was less safe to drive and driving with a controlled substance in his blood, in violation of OCGA § 40-6-391 (a) (2) and (6), arguing that the trial court erred by: (1) failing to direct a verdict in his favor on both DUI counts; (2) refusing to charge the jury on the defense of accident; (3) refusing to instruct the jury that the State must prove that he had actual physical control of his vehicle beyond a reasonable doubt; (4) failing to charge the jury on the elements of DUI, thereby improperly shifting the burden of proof to Savage; (5) failing to charge the jury on Savage’s theory of defense; (6) admitting evidence of Savage’s prior conviction for DUI; and (7) denying Savage’s pre-trial motion to suppress the evidence obtained from a search of his car and the results of a chemical test of his blood. For the following reasons, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.” Cox v. State. So viewed, the evidence shows that, at approximately 4:30 p.m. on December 21, 1999, Thomas Jones observed Savage in the parking lot of Manuel’s Tavern. Jones, who was entering the tavern, noticed Savage talking with someone in a car and acting “loud and boisterous.” Savage was not wearing a shirt or shoes, which seemed odd to Jones, because it was a cold and rainy December day.

At approximately 6:30 p.m., Jones left the tavern and noticed Savage attempting to break into a car in the tavern parking lot. Jones saw Savage get into the car and witnessed the car roll approximately 15 feet and strike a parked van. Jones did not see anyone else in the car and did not hear the engine running. According to Jones, Savage did not close the car door. Jones reported what he had witnessed to police officers who were in the tavern.

Officer Clark Combs of the Atlanta Police Department was called to the scene. When he arrived, at approximately 7:30 p.m., Officer Combs conferred with the other two officers in the parking lot and noticed that the car (which belonged to Savage) and the van were slightly damaged from the collision. Officer Combs spoke with Jones and then approached Savage. Savage was acting paranoid and irrational; he did not know where he was, could not respond to questions, and wanted to leave the scene. Officer Combs thought that Savage had taken drugs and called an ambulance because he was concerned for Savage’s safety.

When paramedics arrived, Savage was strapped to a gurney because of his combative behavior. Savage was arrested and taken to Grady Memorial Hospital, where Officer Combs read him his Miranda and implied consent rights. Savage submitted to a blood test which came back positive for cocaine metabolites. The State’s forensic scientist opined that Savage had ingested the cocaine six to twelve hours prior to the blood being drawn.

A search of Savage’s car produced a bottle of “Blue Nitro.” Testimony at trial established that Blue Nitro was an over-the-counter health and fitness product that converts into gamma-hydroxybutyric or GHB (commonly referred to as the “date rape drug”) when ingested. GHB is a central nervous system depressant and a very powerful intoxicant. Savage admitted to consuming “one small cap full” of Blue Nitro soon after arriving at the tavern that evening because he “heard it would make you hungry.” Savage also admitted to taking a decongestant and Nyquil that day.

1. Savage argues that the trial court erred in denying his motion for directed verdict of acquittal on both DUI counts because the State failed to offer any evidence that he drove or was in actual physical control of his vehicle, a prerequisite to establish a violation under OCGA § 40-6-391 (a) (2) and (6).

OCGA § 40-6-391 (a) provides in pertinent part:

A person shall not drive or be in actual physical control of any moving vehicle while ... (2) Under the influence of any drug to the extent that it is less safe for the person to drive . . . (6) . . . there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.

OCGA § 40-6-391 (a) (2), (6).

Specifically, Savage argues that the jury was not authorized to find that he drove or was in control of the car because he did not have the keys and the motor was not running;. “A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” (Punctuation omitted; emphasis in original.) Duckworth v. State.

We first address the question of what constitutes driving or being in actual physical control of a moving vehicle while under the influence, under OCGA § 40-6-391 (a). See Deering v. State. In Harris v. State, overruled on other grounds, Luke v. State, this court found an intoxicated defendant to be in actual physical control of his disabled vehicle when, after he was pushed into the street by another car, he steered his vehicle a short distance, even though his vehicle was unable to move under its own power. See also Luke, supra. It is not necessary to show that the defendant actually steered the vehicle to authorize a conviction. Accordingly, in Greene v. State, we found the defendant to be in actual physical control of a moving vehicle when, passed out at the wheel of his truck (which was idling and in reverse gear), the defendant was startled into consciousness by an officer, causing the truck to roll backward several inches. We held: “It was Greene’s own failure to maintain control of a vehicle that was running and in gear that caused it to move in the officer’s presence, and not a force totally beyond his control.” Id. at 665-666. It is not necessary that the engine be running in order to constitute a violation of OCGA § 40-6-391 (a). See Harris, supra; Luke, supra.

Here, the jury found that Savage was in actual physical control of his car in which the engine was not running. Savage admitted that no one else was in the car, that he caused the car to move, and that he was steering it. Savage could not recall why the car moved, but speculated that he knocked the car out of gear. Savage voluntarily placed himself behind the wheel of his car by breaking into it with a coat hanger and then caused it to roll downhill in the parking lot and collide with a van while he was under the influence of drugs. The car moved as a direct result of Savage’s actions in releasing the brake, causing the vehicle to shift from “park,” or otherwise effecting the movement of the parked vehicle. Savage’s argument that he was unable to steer the car because he had no keys is without merit. Ultimately, it was for the jury to decide whether Savage was in actual physical control of the car. See Virgil v. State. The trial court did not err by refusing to direct a verdict in favor of Savage on this issue.

2. Savage contends that the trial court erred in refusing to give his request to charge based on OCGA § 16-2-2, that one is not guilty of a crime if the act is committed by misfortune or accident. We disagree.

OCGA § 16-2-2 provides: “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears [that] there was no criminal scheme or undertaking, intention, or criminal negligence.” The defense of accident is an affirmative defense. Griffin v. State. “An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it.” (Punctuation omitted.) Kelley v. State. Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident. Id.; Virgil, supra at 98.

Here, Savage does not cite to any case law to support his argument. He cites to OCGA § 16-2-2. Savage merely asserts that he is innocent of the offenses charged. He does not, for example, assert that while he committed the acts which constitute the crimes, such commission was by misfortune or accident. Virgil, supra at 98. See Gann v. State overruled on other grounds, Brown v. State. Rather, Savage relies exclusively on his argument that the State failed to prove an essential element of the DUI offenses — that he drove or was in actual physical control of his car. See Virgil, supra at 98. It was Savage’s burden to produce evidence to support the accident defense; he did not. See Cheesman v. State. He therefore did not establish the evidentiary foundation necessary to authorize a charge on the defense of accident. See Gann, supra at 85; Kelley, supra at 179 (1). The trial court did not err in refusing to give an instruction on the defense of accident under the facts of this case.

3. Savage contends that the trial court erred in refusing to instruct the jury that the State must prove beyond a reasonable doubt that Savage had actual physical control of the vehicle. Savage did not request this charge in writing in the trial court. It is not generally reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party where the trial court otherwise gives all necessary charges. See Holt v. State. Here, the trial court appropriately charged the jury that the State must prove all elements of the crimes charged beyond a reasonable doubt. This necessarily included proving that Savage drove or was in actual physical control of the vehicle within the meaning of OCGA § 40-6-391 (a), as charged. See Downside Risk v. MARTA. We find no error here.

4. Savage claims that the trial court erred by failing to define for the jury the terms “actual physical control” and “driving,” which failure, together with the charge given, improperly relieved the State of its burden of proof. First, Savage did not request that the trial court specifically charge the jury on the terms “actual physical control” or “driving.” Ordinary words are given their ordinary meaning by juries, and it is not error for the court to fail to charge on such terms, absent a specific request. See Holt, supra at 344. The trial court’s charge on “actual physical control” properly explained that such issue was a factual question for the jury to resolve. See Deering, supra at 32.

Savage’s reliance on Virgil v. State, supra, to support his argument that the trial court relieved the State of its burden of proof is also without merit. In Virgil, the trial court improperly instructed the jury that it was irrelevant whether the defendant intended to move the vehicle as long as the vehicle moved as a result of her actions. Id. at 98-99. That charge had the effect of eliminating the jury’s consideration of the accused’s defense that she was not driving or in actual control of the car. Id. at 99 (3). Here, this defective instruction was not given. On the contrary, the trial court instructed the jury at length concerning the criminal intent required to find Savage guilty of the crimes charged as well as the need to find that Savage was in actual control of the car. The trial court did not erroneously charge the jury concerning the elements of DUI.

5. Savage generally claims that the trial court erred because its charge as a whole failed to present Savage’s theory of defense to the jury. However, Savage does not identify the defense to which , he is referring. In fact, Savage previously argues that both “accident” and the State’s inability to prove beyond a reasonable doubt that he had actual physical control of the car were each his only defense. The trial court did not err as contended. White v. Olderman Realty &c. Co. To the extent that Savage is attempting to raise a separate error through his objection to the charge as a whole, his objection lacks the specificity necessary for review. Id.

6. Savage contends that the trial court erred by admitting evidence of his prior DUI conviction. However, because Savage did not support this enumeration with citation to the record or to legal authority, it is deemed abandoned. Court of Appeals Rule 27 (c) (2); Hudson v. State. We note that “[t]he decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.” Enloe v. State. “Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.” Id. Here, Savage pled guilty to a “less safe” DUI charge, OCGA § 40-6-391 (a) (1), within one year of the conviction he now appeals. The trial court did not abuse its discretion by allowing the State to present evidence of Savage’s prior DUI conviction.

7. Savage claims that the trial court erred by denying his motion to suppress (a) evidence seized from his car after his arrest and (b) the results of a blood test which revealed the presence of cocaine metabolites. “Where the evidence on a motion to suppress is uncontroverted and credibility is not an issue, we review the evidence and the application of the law thereto de novo, construing all evidence in favor of the trial court’s judgment.” (Footnotes omitted.) Almond v. State.

(a) Because Savage fails to offer any argument as to why the search of his vehicle was unlawful, he abandons the claim of error. Court of Appeals Rule 27 (c) (2). In any event, we note that the search of Savage’s car was lawful as an inventory search prior to impounding the vehicle. See Martin v. State The circumstances here demonstrate that the decision to impound and inventory the car was reasonable. Savage’s car was on private property, he had been arrested and taken to the hospital, and there was no one to take charge of the vehicle. See Biggers v. State. The trial court did not err by refusing to suppress evidence seized from Savage’s car.

Decided November 2, 2001

Herbert Shafer, for appellant.

Joseph J. Drolet, Solicitor-General, Julie A. Kert, Assistant Solicitor-General, for appellee.

(b) Savage’s argument that the results of the blood test should have been suppressed because Savage was too impaired to understand his implied consent rights is without merit. It is true that “[t]o be ‘informed’ it is necessary that the driver understand the import and meaning of the police officer’s instructions to him.” Davis v. Pope However, where there is some evidence, even though slight, to authorize a finding that the driver was rational enough to be informed, we will not interfere. Id.

Here, Savage was irrational at the scene of the accident and appeared to be under the influence of drugs. Savage was transported to Grady Memorial Hospital. Officer Combs testified that Savage became more lucid and responsive at the hospital, during the approximately one hour that passed from the time of his first encounter with Savage. Officer Combs read Savage Miranda and implied consent warnings and asked Savage if he would agree to a blood test; Savage agreed. There was evidence from which the trial court could have found Savage to be rational enough to understand his rights. Construing the evidence in favor of the trial court’s ruling, the trial court did not err by refusing to suppress the results of the blood test.

Judgment affirmed.

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

        Cox v. State, 241 Ga. App. 388, 389 (526 SE2d 887) (1999).

       Savage testified that he broke into the car with a coat hanger that he found in the parking lot.

        Duckworth v. State, 223 Ga. App. 250, 254 (3) (477 SE2d 336) (1996).

        Deering v. State, 244 Ga. App. 30, 31 (1) (535 SE2d 4) (2000).

        Harris v. State, 97 Ga. App. 495 (103 SE2d 443) (1958). Harris was decided under former Code Ann. § 68-1625. However, the issue decided there, as in the present case, was whether the person was in actual physical control of a vehicle. Harris, supra at 496.

        Luke v. State, 177 Ga. App. 518 (340 SE2d 30) (1986).

        Greene v. State, 214 Ga. App. 664, 665-666 (448 SE2d 758) (1994).

       Savage concedes that he was a less safe driver.

        Virgil v. State, 227 Ga. App. 96, 99 (3) (488 SE2d 694) (1997) (physical precedent).

        Griffin v. State, 267 Ga. 586 (1) (481 SE2d 223) (1997).

        Kelley v. State, 235 Ga. App. 177, 179 (1) (509 SE2d 110) (1998).

        Gann v. State, 190 Ga. App. 82, 85 (2) (378 SE2d 369) (1989).

        Brown v. State, 274 Ga. 31 (549 SE2d 107) (2001).

        Cheesman v. State, 230 Ga. App. 525, 528 (6) (497 SE2d 40) (1998).

        Holt v. State, 244 Ga. App. 341, 344 (3) (535 SE2d 514) (2000).

        Downside Risk v. MARTA, 168 Ga. App. 202, 206 (5) (308 SE2d 547) (1983).

        White v. Olderman Realty &c. Co., 166 Ga. App. 179, 181 (3) (303 SE2d 517) (1983).

        Hudson v. State, 246 Ga. App. 335 (1) (539 SE2d 860) (2000).

        Enloe v. State, 239 Ga. App. 513, 514 (2) (520 SE2d 925) (1999).

        Almond v. State, 242 Ga. App. 650 (1) (530 SE2d 750) (2000).

        Martin v. State, 201 Ga. App. 716, 718 (1) (411 SE2d 910) (1991).

        Biggers v. State, 162 Ga. App. 163, 164-165 (1) (290 SE2d 159) (1982).

       We also note that the search of Savage’s car was lawful as incident to the DUI arrest. State v. Nichols, 225 Ga. App. 609, 612 (2) (484 SE2d 507) (1997).

        Davis v. Pope, 128 Ga. App. 791, 793 (4) (197 SE2d 861) (1973).


text:
    A01A0915.
    DUREN v. THE STATE.
    (555 SE2d 913)
   Blackburn, Chief Judge.

Following a jury tried, Curtis M. Duren was convicted of driving under the influence of alcohol to the extent that he was less safe to drive and for violation of the open container law by being in possession of an open container of alcoholic beverage while operating a motor vehicle. On appeal, Duren argues, as his sole enumeration of error, that the evidence was insufficient to support his DUI conviction because the State failed to present sufficient evidence that he was impaired.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Duren] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State. See Jackson v. Virginia.

So viewing the evidence, the facts show that on June 23, 2000, DeKalb County Police Officers Gary Thull and Jeffrey Rich were on patrol in a “high incident drug trafficking area.” At approximately 1:30 a.m., the officers spotted Duren’s vehicle, with a tag light out, driving east on Memorial Drive in DeKalb County. The officers stopped Duren for this tag light violation.

Officer Thull testified that as he talked to Duren, he detected a strong smell of an alcoholic beverage. Upon questioning, Duren admitted to having consumed alcohol, stating that he had consumed two beers prior to leaving work. Officer Thull was joined by Officer Rich, who also detected the smell of an alcoholic beverage coming from Duren. Officer Rich described Duren’s eyes as “watery.”

The officers continued the investigation, and Duren exited his vehicle. Officer Matthew Roe came upon the scene and stopped to assist the officers. Officer Roe also observed that Duren’s eyes were bloodshot. Because the roadway was on a slope, the only field sobriety tests administered were the horizontal gaze nystagmus (HGN) test and the breath evaluation.

In conducting the HGN test, Officer Roe observed four out of six possible “clues” for nystagmus, or involuntary jerking of the eyes. Officers Thull and Roe testified that during the alco-sensor evaluation they felt that Duren was attempting to give a false reading, or to avoid giving a reading at all, by placing his tongue in front of the mouthpiece. After two or three attempts, Duren finally completed the alco-sensor test which indicated a positive reading for alcohol. At that point, Duren was arrested and read the implied consent warnings.

Duren twice refused to take the State-administered breathalyzer test. A post-arrest inventory of Duren’s vehicle produced six bottles of beer, four full, one empty, and one half-empty. At the scene, the officers also discovered a beer bottle cap in Duren’s shirt pocket.

OCGA § 40-6-391 (a) (1) prohibits a person from driving a motor vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. Under this Code section, “impaired driving ability is an element of the crime that the state must prove to obtain a conviction.” Kevinezz v. State. It is well settled that police officers may offer opinion evidence concerning a driver’s impairment and whether he is less safe to drive. Waits v. State A police officer’s evaluation may be based on a number of different factors:

The results of field sobriety tests, in conjunction with other factors including the physical appearance of the driver, red or glassy eyes, an unsteady stance, the presence of the odor of alcohol, the existence of an accident, and any inculpatory statements made by the driver or witnesses, . . . may form an appropriate basis for an evaluation by an officer, and ultimately a jury, as to whether a driver was impaired by alcohol to the extent that it was less safe for him to drive.

Hawkins v. State.

Here, Officers Thull, Rich, and Roe collectively testified to the following concerning Duren: (1) a strong odor of alcohol; (2) bloodshot or watery eyes; (3) an admission of drinking two beers; (4) possession of six bottles of beer in his vehicle, two of which were open; (5) four out of six clues on the HGN test; (6) a positive alco-sensor test (after an apparent attempt to evade the test); (7) a beer bottle cap in his pocket at the scene; and (8) refusal to take the State-administered breathalyzer test. Based upon their observations, Officers Thull and Roe testified to their opinion that Duren was impaired and, therefore, a less safe driver.

Duren argues that the evidence presented at trial was insufficient to show that he was impaired and therefore a less safe driver, but only that he consumed alcoholic beverages and was in possession of it at the time of his arrest. Duren points to the fact that the officers did not observe any act of impaired driving by him.

To establish a violation of OCGA § 40-6-391 (a) (1), “[n]o requirement exists that the person actually commit an unsafe act.” Waits, supra at 358 (1). This argument is without merit. Moreover, no particular combination of factors or clues derived from a person’s appearance or demeanor is required to establish a violation of OCGA § 40-6-391 (a) (1). Here, Duren smelled strongly of an alcoholic beverage, had watery or bloodshot eyes, failed the HGN test, and was positive for alcohol on the alco-sensor test.

We have found the HGN test to be a reliable indicator of impairment in the context of DUI. Hawkins, supra. In that regard, in Sieveking v. State and Werner v. State we noted that testimony regarding the HGN is not limited to establishing the mere presence of alcohol, but can be offered to show level of impairment such that a driver is less safe within the meaning of OCGA § 40-6-391 (a) (1).

Officer Roe explained how he conducted the HGN evaluation, what he saw, and his final conclusion that Duren exhibited four of six “clues” of nystagmus impairment. Based upon the clues he observed during the administration of the HGN test, Officer Roe testified that Duren was under the influence of alcohol to the extent that he was a less safe driver. Officer Roe’s testimony constitutes evidence from which the jury could determine that Duren was impaired by alcohol to the extent that he was a less safe driver. “That these tests have no specific, quantitative value regarding the extent of a driver’s alcohol impairment would go to the weight to be given the tests and not their admissibility.” (Punctuation omitted.) Werner, supra at 679 (1). Also, Duren twice refused to take a breathalyzer test. Duren’s refusal to submit to the State breathalyzer test is circumstantial evidence of his intoxication. Lucas v. State.

The cases upon which Duren relies do not support his position. Duren argues that our holdings in Davis v. State, Groom v. State, and Clay v. State require reversal in the present case. However, these cases are distinguishable.

In Davis, the officer smelled the odor of alcohol in the defendant’s car, but could not determine the source. In addition, the defendant denied drinking and rebutted any circumstantial evidence of intoxication with a negative blood alcohol test. Davis, supra at 649 (1). In Groom, there was no testimony that the defendant was under the influénce of alcohol at any time, and no one observed him at the scene because he fled before the accident was discovered. Groom, supra at 400 (2). Finally, in Clay, the only evidence of intoxication was the odor of alcohol and red eyes. The defendant offered rebuttal witnesses who testified that he had not been drinking that morning and that his eyes were normally red. Clay, supra at 378. None of the cases cited by Duren involved evidence that the defendants had failed field sobriety tests.

Decided November 2, 2001

Head, Thomas, Webb & Willis, Robert R. Giannini, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Heather C. Waters, Assistant Solicitor-General, for appellee.

The evidence was sufficient to authorize a jury to find Duren guilty of being under the influence of alcohol to the extent he was a less safe driver and that he was in possession of an open container of alcoholic beverage, under the standard set forth in Jackson v. Virginia, supra.

Judgment affirmed.

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

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

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

        Kevinezz v. State, 265 Ga. 78, 79 (2) (454 SE2d 441) (1995).

        Waits v. State, 232 Ga. App. 357, 358 (1) (501 SE2d 870) (1998).

        Hawkins v. State, 223 Ga. App. 34, 39 (1) (476 SE2d 803) (1996).

        Sieveking v. State, 220 Ga. App. 218, 219 (1) (469 SE2d 235) (1996).

        Werner v. State, 246 Ga. App. 677, 678 (1) (538 SE2d 168) (2000).

        Lucas v. State, 234 Ga. App. 534, 535 (1) (507 SE2d 253) (1998).

        Davis v. State, 206 Ga. App. 647 (426 SE2d 267) (1992).

        Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988).

        Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989).


author: Andrews, Presiding Judge.

text:
    A01A0935.
    STEBBINS v. GEORGIA POWER COMPANY.
    (555 SE2d 906)
   Andrews, Presiding Judge.

Gail Duffie Stebbins, as guardian for her mother Eleanor Duffie, appeals from the trial court’s order granting summary judgment to Georgia Power Company. Stebbins sued Georgia Power to recover $11,163.03 paid out of her mother’s account with allegedly forged checks. The checks were used to pay the electric bills of two companies, Duffers Golf & Games and Carousel Child Care.

Stebbins claimed that Georgia Power wrongfully refused to return the $11,163.03 because it should have known her mother’s signature was forged and should have realized that something was wrong when checks from her mother’s account were used to pay the electric bills of two companies which were seriously in arrears.

Georgia Power filed a motion for summary judgment, raising the defense that it took the checks as a holder in due course and, therefore, Stebbins could not recover on her claim for- the money credited to the accounts. The trial court granted the motion, and we affirm.

This case arose when Georgia Power received a check in August 1997, drawn on Duffie’s account, for $6,071. The check was received in payment for Duffers Golf & Games’s power bill. It received another check in October 1997, for $5,091, to pay the electric bill of Carousel Child Care.

Stebbins, Duffie’s daughter, was appointed legal guardian for her mother in January 1998. In April 1999, Stebbins filed the instant complaint alleging that the checks were forged and Georgia Power wrongfully refused to return the $11,163.03.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

We note first of all that Stebbins has attached as an exhibit to her brief on appeal a portion of her deposition. The deposition does not appear in the record. “Exhibits contained in an appellate brief which do not appear in the record or transcript cannot be considered by this court and afford no basis for reversal.” Strickland v. American Motorists Ins. Co., 149 Ga. App. 690, 691 (256 SE2d 92) (1979).

1. Georgia Power took the checks as a holder in due course. OCGA § 11-3-302 provides in pertinent part that a holder in due course is the holder of any instrument if:

(1) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and (2) The holder took the instrument: (i) For value; (ii) In good faith; (iii) Without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series; (iv) Without notice that the instrument contains an unauthorized signature or has been altered; (v) Without notice of any claim to the instrument described in Code Section 11-3-306; and (vi) Without notice that any party has a defense or claim in recoupment described in subsection (a) of Code Section 11-3-305.

“A payee may be a holder in due course, provided that it meets the requirements set out in the statute.” Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 343 (3) (514 SE2d 684) (1999). Accordingly, we analyze each of the applicable requirements in turn.

(a) Apparent evidence of forgery. Stebbins argues that Georgia Power should have been familiar with her mother’s signature because she had been writing checks to Georgia Power for many years. But she submits no evidence in support of this contention, nor does she cite to any authority. In support of its motion for summary judgment, Georgia Power submitted the affidavit of Carrie Williams, a customer service representative for Georgia Power. She states in the affidavit that she has reviewed the records of the two companies and the copies of the checks used to pay their power bills. She states that there was no apparent evidence of forgery or alteration which would call into question the checks’ authenticity.

The burden of production then shifted to Stebbins to come forward with some evidence of apparent forgery. She has not done so. Moreover, the copies of the checks submitted with the record on appeal are illegible. Even if the signature were clearly legible, there is no evidence in the record of the true signature of Duffie for purposes of comparison.

(b) For value. It is undisputed that Georgia Power took the checks as payment for amounts due on the companies’ accounts with Georgia Power. Accordingly, it took the checks for value. OCGA § 11-3-303.

(c) In good faith. Under the UCC definition, “ ‘[g]ood faith’ means honesty in fact and the observance of reasonable commercial standards of fair dealing.” OCGA § 11-3-103 (a) (4). Stebbins claims that Georgia Power should have been on notice that something was wrong when it received large checks, purportedly signed by Duffie, paying the electric bills of companies whose accounts were in arrears.

Williams stated in her affidavit that the checks were received in the ordinary course of business without notice of any irregularity, were accepted in good faith, and credited accordingly to the accounts indicated.

Once Georgia Power submitted this evidence to the court, the burden again shifted to Stebbins to point to specific evidence giving rise to a triable issue. Coastal Plains Trucking Co. v. Thomas County Fed. Sav. &c. Assn., 224 Ga. App. 885, 889 (482 SE2d 493) (1997).

In a summary judgment analysis, once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of [her] pleadings, but [her] response, by affidavits or as otherwise provided in OCGA § 9-11-56, must set forth specific facts showing that there is a genuine issue for trial.

Smalls v. Walker, 243 Ga. App. 453, 457 (2) (532 SE2d 420) (2000). In this case, Stebbins has failed to come forward with any evidence in support of her allegations. Accordingly, the trial court did not err in granting Georgia Power’s motion for summary judgment.

Decided November 2, 2001

Warlick, Tritt & Stebbins, Charles C. Stebbins III, Gail D. Stebbins, for appellant.

Glover & Blount, Percy J. Blount, for appellee.

2. Georgia Power having successfully raised the defense that it was a holder in due course of the checks, Stebbins is not entitled to recover from Georgia Power on her claim. See OCGA § 11-3-306.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       Although Fedeli was decided before the effective date of the 1996 amendments to Article 3 of the Uniform Commercial Code, it is still good law. OCGA § 11-3-302 (2), prior to its revision in 1996, specifically provided that a payee may be a holder in due course. In 1996, the General Assembly struck Article 3 of the UCC in its entirety and enacted revised Article 3. See Ga. L. 1996, p. 1306, § 4. Under this new Article, effective July 1,1996, OCGA § 11-3-302 no longer specifically provides that a payee may be a holder in due course. The reason for the omission was not to change the law, but because the provision was surplusage and could be misleading. The drafters of the revision determined that it was “no longer necessary to spell out the common-law rule that a payee could be a holder in due course.” 2 White & Summers, Uniform Commercial Code (4th ed. 1995), § 17-8, p. 177.


text:
    A01A1006.
    BELMAR v. THE STATE.
    (555 SE2d 902)
   Blackburn, Chief Judge.

Following a jury trial, Clifford Belmar appeals his convictions for armed robbery, aggravated battery, and aggravated assault, contending that the trial court erred by allowing the jury to hear certain hearsay testimony of his co-conspirators, Tyrone Arrington, Chauncey Brantley, and Antonio Thomas. Specifically, Belmar argues that these statements (1) were not admissible under the hearsay exception for statements of co-conspirators and (2) lacked indicia of reliability, thereby making their admission a violation of the Sixth Amendment. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, around 1:00 a.m. on March 25, 1998, Joe Perdue was leaving a neighbor’s apartment and returning to his own when he noticed a white Cutlass parked nearby. As Perdue passed the vehicle, he was able to observe its occupants because an overhead light was illuminating the interior. Moments later, one of the men sitting on the passenger’s side of the car followed Perdue to the landing outside his apartment, held a gun to Perdue’s head, attempted to break into Perdue’s apartment, and robbed Perdue. Then, a second man, also sitting on the passenger’s side of the car, came up to the landing and told the first man that he was taking too long and that he should just shoot Perdue. Thereafter, both assailants shot Perdue in the legs and fled with the other men waiting in the parked car. Perdue later identified Belmar as one of the men who shot him from a photographic lineup. Perdue again identified Belmar as one of his assailants during trial.

Several witnesses testified regarding the scheme devised between Belmar, Arrington, Brantley, and Thomas to rob and assault Perdue. Having subsequently pled guilty to the crimes involved, Thomas testified that, on the day of the shooting, he was picked up by Belmar, Arrington, and Brantley. At that time, Belmar, Arrington, and Brantley discussed their plans to rob Perdue and run him out of the apartment complex in order to have a monopoly on marijuana sales there. Thomas further testified that, later that night, Arrington drove to the apartment complex where Perdue lived, and Belmar and Brantley shot Perdue.

Eric Heard, a friend of Belmar and Arrington, testified that, sometime prior to the date of the crime, Belmar, Arrington, Brantley, and Thomas told him about their plans to rob Perdue. At that time, Heard, a resident of Perdue’s apartment complex, tried to talk the others out of going through with their plan. Also prior to the date of the crime, Heard was arrested and jailed for a probation violation, and after the crime against Perdue was committed, Arrington visited Heard at the jail. During this visit, Arrington described the robbery and shooting to Heard and informed him that Belmar, Brantley, and Thomas were involved.

Dorian Nassau, an acquaintance of Heard, testified that, when he visited the jail, Heard related to him that he had been told about Perdue’s robbery by Belmar, Arrington, Brantley, and Thomas prior to its occurrence. Heard also told Nassau that Arrington had visited him and told him that the robbery had been accomplished. A couple of days later, Heard called Nassau and, once again, described the robbery to him. Nassau subsequently relayed this information to the police.

In addition, after his arrest, Brantley made a recorded statement to police that he was present when Belmar, Arrington, and Thomas were planning the robbery of Perdue. This recorded statement was played for the jury at trial.

This evidence, including Perdue’s direct identification of Belmar as one of the men who shot him, was certainly sufficient to support his conviction. See Jackson v. Virginia.

1. Belmar, nonetheless, contends that, because the State could not prove the existence of a conspiracy without relying on testimony from his co-conspirators, the trial court erred by admitting this hearsay testimony pursuant to OCGA § 24-3-5.

OCGA § 24-3-5 provides: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”

Under OCGA § 24-3-5, the State must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirator [s], in order to admit [their] out-of-court declarations. The trial judge may admit testimony by co-conspirators before the conspiracy has been proved, provided its existence is ultimately shown at trial. Conduct which discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy.

(Citations and punctuation omitted.) Livingston v. State.

Here, the State provided testimony from Heard that he had been privy to the discussions of the co-conspirators about the robbery sometime in advance of its execution. Heard was present at trial, took the witness stand, was subject to. cross-examination, and was not a co-conspirator. Heard’s testimony regarding the planning of the robbery, in and of itself, provided evidence of the conspiracy from someone other than a co-conspirator.

“[Moreover], the State need not prove an express agreement between the parties in order to establish a conspiracy. The essence of conspiracy is a common design, and conduct which discloses a common design may give rise to an inference of conspiracy. Whether a conspiracy exists is a question for the jury to determine.” (Citations and punctuation omitted.) Freeman v. State. The evidence that Belmar, Arrington, Brantley, and Thomas drove to Perdue’s apartment, blew their horn for him to come outside, waited for him to approach, and followed him to his apartment, as well as the statement from the second shooter that the robbery was taking too long, provides some foundation on which the jury could determine that the robbery had been planned out and that a conspiracy existed.

Finally, we point out that, of Belmar’s co-conspirators, Arrington was the only one who did not testify at trial, and Brantley and Thomas took the witness stand and were subject to cross-examination.

2. Belmar also contends that the statements of his co-conspirators violated his rights under the Sixth Amendment because the State failed to show that these statements had sufficient indicia of reliability. We disagree.

Decided November 2, 2001.

Sara M. Yeager, for appellant.

[T]he statements were sufficiently reliable to warrant their admission, when assessed by circumstances recognized as indicia of reliability: the absence of an express assertion about a past fact; the declarant had personal knowledge of the identities and roles of the participants in the criminal undertaking so that cross-examination of the declarant .would not have shown that the declarant was unlikely to know whether the defendant was involved; the possibility that the declarant’s statement was founded on faulty recollection was remote; and the circumstances under which the declarant gave the statement suggest that the declarant did not misrepresent the defendant’s involvement in the crime.

Ottis v. State Of these indicia, only the first weighs against reliability because the declarants’ statements about the robbery concern past facts, “rather than circumstances from which the jury is invited to make its own inferences.” Id. On the other hand, it is unlikely that the declarants would easily forget the details of the robbery and shooting, and the declarants’ statements do not suggest that they were unfairly trying to implicate Belmar.

In addition, we note that two of the declarants, [Brantley and Thomas], testified at trial and were available for cross-examination by [Belmar]. Thus, the purpose behind the hearsay rule was satisfied with regard to their declarations. Abrams v. State; see Faircloth v. State (modern trend is to allow out-of-court declaration where declarant is present and may be cross-examined).

Quintanilla v. State.

The trial court did not err in admitting the statements of Belmar’s co-conspirators in this case.

Judgment affirmed.

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

J. Tom Morgan, District Attorney, Barbara B. Conroy, Sheila A. Connors, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

       Following his conviction, Belmar also pled guilty to possession of a firearm by a convicted felon.

       Heard recanted this testimony at trial and testified that he had fabricated his earlier statements to get favorable treatment from the State in his probation revocation hearing.

       Like Heard, Brantley recanted his earlier statements to police at trial.

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

        Livingston v. State, 271 Ga. 714, 719 (3) (524 SE2d 222) (1999).

        Freeman v. State, 273 Ga. 137, 139 (2) (a) (539 SE2d 127) (2000).

        Ottis v. State, 269 Ga. 151, 155 (3) (496 SE2d 264) (1998).

        Abrams a State, 229 Ga. App. 152, 153 (1) (493 SE2d 561) (1997).

        Faircloth v. State, 253 Ga. 67, 69 (316 SE2d 457) (1984).

        Quintanilla v. State, 273 Ga. 20, 23 (3) (a) (537 SE2d 352) (2000).


text:
    A01A1141.
    JACKSON v. THE STATE.
    (555 SE2d 908)
   Blackburn, Chief Judge.

Following a jury trial, Johnny Darlington Jackson appeals his conviction for two counts of selling cocaine and one count of possession of cocaine with intent to distribute, contending that (1) the evidence was insufficient to support the conviction; (2) the trial court erred by failing to suppress evidence seized during a search of Jackson’s hotel room; (3) the trial court erred by admitting similar transaction evidence; (4) the trial court erred by precluding a witness from testifying about a statement allegedly made by Jackson’s co-defendant; and (5) the trial court erred by refusing to charge the jury on a search warrant issue. For the reasons which follow, we affirm.

1. Jackson claims that the evidence was insufficient to support his convictions for the sale of cocaine and possession of cocaine with intent to distribute. We disagree.

On appeal from a criminal conviction, “the evidence must be viewed in the light most favorable to support the verdict, and [Jackson] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Punctuation omitted.) Lester v. State; see Jackson v. Virginia.

So viewed, the evidence shows that, during the evening of August 20, 1999, two narcotics agents drove to a motel with the intention of making undercover purchases of crack cocaine. There, the agents saw Jackson and co-defendant Zena Chisholm standing outside room 22. The agents asked Chisholm for $50 worth of crack cocaine. Chisholm replied, “okay,” and walked toward room 22, where Jackson had been residing for six months. Jackson walked into room 22 just ahead of Chisholm. Thereafter, Chisholm returned to the agents’ car with two pieces of crack cocaine.

Later that evening, the agents made a second purchase of crack cocaine from Chisholm, who returned directly to room 22 after the sale. The money used to purchase the drugs on both occasions was photocopied for later identification.

After obtaining a search warrant, agents searched room 22 the following morning, and they found Chisholm and Jackson, along with money (a portion of which was traced to the money utilized by the agents during the undercover operation), and a plate holding 12.3 grams of crack cocaine under the bed. Jackson told the agents that the money was obtained from selling cocaine, that he had received the seized cocaine in its “crack” condition, and that he had been involved in the sales of cocaine for one month (although he claimed he did not “personally” do the selling).

The evidence was sufficient to connect Jackson to the sale of the cocaine. Under OCGA § 16-2-20, a person is a party to a crime where he: “(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” The evidence demonstrates that during the first sale, Chisholm followed Jackson into room 22 to obtain the crack to sell to the agents. Thereafter, Chisholm walked out of room 22, armed with the crack cocaine to sell to the agents. After the second sale, Chisholm again walked directly into room 22.

Furthermore, Jackson was present in the room when the authorities found crack cocaine under the bed. Jackson admitted that he had been staying in room 22 for six months. He admitted to the officers that he had been involved with selling cocaine and that he received the cocaine in its “crack” condition. Jackson also admitted that the money in the room was connected with the cocaine sales. The evidence was sufficient to support Jackson’s convictions. It was for the jury to resolve any conflicts in the testimony and issues of credibility. See Sanders v. State Jackson presents nothing further for consideration in connection with his drug convictions.

2. Jackson claims that the trial court erred in refusing to suppress the evidence seized from his room during the execution of the search warrant. “This court’s responsibility in reviewing a trial court’s ruling on a motion to suppress is to assure there was a substantial basis for the decision, and the evidence is construed to uphold the findings and judgment of the trial court.” Claire v. State.

The requirements for suppressing evidence obtained during a search are as follows:

OCGA § 17-5-30 (b) provides: “The motion shall be in writing and state facts showing that the search and seizure were unlawful.” [Uniform Superior Court Rule] 31.1 regarding the filing of motions in criminal matters, states, “All motions . . . shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial.” This Court has held that both OCGA § 17-5-30 and USCR 31.1 require that a motion to suppress evidence seized in an allegedly unlawful search be filed before arraignment. Further, oral motions to suppress are procedurally defective under OCGA § 17-5-30 (b). Thus [defendant] failed to preserve his right to challenge the validity of the search. Further, he may not circumvent the requirement of a timely, written motion to suppress by couching his motion “in the alternative” as a motion in limine. “Motions in limine do not replace motions to suppress or other specific kinds of pre-trial hearings in criminal cases.”

(Footnotes omitted.) Copeland v. State.

It is undisputed that Jackson failed to timely file a written motion to suppress prior to arraignment. At trial, Jackson acknowledged his failure to properly file a motion to suppress, but contended he was entitled to have the search warrant itself excluded from evidence based upon an alleged discrepancy therein. The warrant reflected that it had been signed by the judge at 1:35 a.m. and that it had been executed by the police at 1:15 a.m. Officer Toth testified that the sequence of events was that the judge signed the warrant, he called the officers and advised them of such, and the officers then proceeded to execute the warrant, notwithstanding any error in the recording of the time. The trial court observed that in addition to Jackson’s failure to timely file a written motion to suppress, he also failed to seek any relief until after the trial had begun, even though he had access to the documents which he contends demonstrate an illegally executed warrant, long before trial. We also point out that Jackson’s argument ignores the possibility of a simple mistake in recording the time on the warrant. In light of Officer Toth’s testimony concerning the sequence of events, any conflict in the written times based on the documents was for the jury to resolve, which they did.

Jackson’s reliance on Reid v. State and Childers v. State is misplaced. Those cases address the requirements of preserving an appeal where a previous motion to suppress has been ruled upon, but issues related to the motion are thereafter raised at trial. Reid, supra at 662-663 (2) (c); Childers, supra at 556 (1). Neither case stands for the proposition that a defendant can wait until trial to object to the admission of the fruits of an allegedly improper search.

Jackson also seeks to suppress the evidence seized from his room because he allegedly never received a copy of the search warrant from the authorities as required by OCGA § 17-5-25. However, Jackson never raised this issue below and has, therefore, waived his right to assert this error on appeal. Miller v. State. Moreover, for the reasons outlined above, any attempt to move for suppression at trial on this ground would have been untimely. The trial court did not err in denying the motion to suppress.

3. Jackson argues that the trial court erred by admitting prior convictions as similar transaction evidence. We note that Jackson provides no citation to the record for this Court to even identify the evidence of which he complains, in violation of Court of Appeals Rule 27 (c) (3). “ We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.’ ” Chastain v. State.

However, we have reviewed the record and affirm the trial court’s ruling. The admission of similar transaction evidence will not be disturbed absent an abuse of discretion by the trial court. Brooks v. State. We have held that our Supreme Court’s decision in

“Williams v. State provides that before admission of similar transaction evidence, the State must affirmatively show that (1) it is introducing evidence of an independent offense or act for an appropriate purpose, (2) there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.”

Brooks, supra.

The State met its burden in this case. At trial, the State introduced evidence of two 1999 guilty pleas, one involving possession of cocaine and the other involving possession with the intent to distribute cocaine. Through the documentation and the testimony of the arresting officers, Jackson was identified as the offender in each incident. The prior incidents each involved cocaine drug violations and occurred in the same area of town as the subject incident. One of the similar transactions occurred at the same hotel as this incident. The purpose of this evidence was to establish Jackson’s modus operandi and course of conduct. The State sufficiently established identity, legitimate purpose, and sufficient similarity for purposes of Williams, 261 Ga. 640. A contemporaneous limiting instruction was given to the jury. We find no abuse of discretion by the trial court in this ruling.

4. Jackson complains of the trial court’s refusal to allow a witness to testify that co-defendant Chisholm said that she would “say anything if she got a deal.” “ ‘The admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.’ ” Williams v. State.

Chisholm did not testify, and the alleged statement was hearsay. Jackson has not pointed to any exception to the hearsay rule which would authorize the admittance of such testimony. See Ekstedt v. Charter Med. Corp. ; Chafin v. Wesley Homes.

Although Jackson claims that the statement would have “buttressed his alibi,” inculpatory statements by co-defendants are generally inadmissible, in any event, and no exceptional circumstances have been shown. See Wilson v. State The record reveals no evidence of any Chisholm “statements” made to the police which in any way involved Jackson. Thus, the proffered testimony that Chisholm would “say anything to get a deal,” was simply irrelevant and had no probative value. As Chisholm did not testify, her credibility was not in issue. The trial court did not err in refusing to allow the subject testimony.

5. Jackson claims the trial court erred by failing to give his request for a charge related to the search warrant. Generally “[w]here there has been no written request to charge, failure to give the charge is not error.” (Punctuation omitted.) Bartel v. State; see Baker v. State. Jackson did not submit a written request to charge and states no exception to the general rule. Jackson never indicated what charge he was requesting. Therefore, the trial court did not err as contended. The validity of the search warrant and execution thereof were questions of law for the trial court and were properly ruled upon. See Landers v. State; Thomas v. State.

Decided November 2, 2001.

Burton F. Metzger, for appellant.

Spencer Lawton, Jr., District Attorney, lanR. Heap, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

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

       The record does not reveal the status of the case against Chisholm.

        Sanders v. State, 242 Ga. App. 487, 491 (530 SE2d 203) (2000).

        Claire v. State, 247 Ga. App. 648 (544 SE2d 537) (2001).

        Copeland, a State, 272 Ga. 816, 817-818 (2) (537 SE2d 78) (2000).

        Reid v. State, 129 Ga. App. 660 (200 SE2d 456) (1973).

        Childers v. State, 130 Ga. App. 555 (203 SE2d 874) (1974).

       Because Livingston v. State, 222 Ga. App. 298 (474 SE2d 1) (1996), involved the admissibility of a confession and not the fruits of a search conducted under a warrant, it is similarly inapplicable. See Reid, supra (discussing the distinction between the rules governing the preservation of objections to statements, confessions, and testimony versus the physical property seized pursuant to a search warrant — where the latter is subject to a motion to suppress, the former is not tested under such standards, but rather, by objections D33.(16 3.t trial)

        Miller V. State, 267 Ga. 92 (2) (475 SE2d 610) (1996).

        Chastain v. State, 237 Ga. App. 640 (516 SE2d 362) (1999).

        Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

        Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) (1991).

        Landers v. State, 164 Ga. App. 657, 660 (3) (297 SE2d 748) (1982), rev’d on other grounds, 250 Ga. 808 (301 SE2d 633) (1983).

        Thomas v. State, 173 Ga. App. 481, 484 (2) (326 SE2d 840) (1985).

        Williams v. State, 237 Ga. App. 814, 815 (2) (515 SE2d 875) (1999).

        Ekstedt v. Charter Med. Corp., 192 Ga. App. 248, 249 (2) (384 SE2d 276) (1989).

        Chafin v. Wesley Homes, 186 Ga. App. 403, 405 (3) (367 SE2d 236) (1988).

        Wilson v. State, 271 Ga. 811, 814-815 (4) (525 SE2d 339) (1999).

        Bartel v. State, 202 Ga. App. 458, 459 (3) (414 SE2d 689) (1992).

        Baker v. State, 238 Ga. App. 285, 288 (3) (518 SE2d 455) (1999).


text:
    A01A1168.
    PRICE v. THE STATE.
    (556 SE2d 168)
   Blackburn, Chief Judge.

Following a jury trial, William Price appeals his conviction for child molestation, arguing that: (1) the evidence was insufficient to support the jury’s verdict of acquittal; (2) the trial court erred by denying his motion for a directed verdict; and (3) the conviction was based on inadmissible evidence. For the reasons set forth below, we affirm.

1. Price claims that the evidence is insufficient to support his conviction for child molestation. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Price] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the t essential elements of the crime beyond a reasonable doubt.

Ryals v. State. See Jackson v. Virginia.

Viewed in this light, the evidence shows that Lisa White lived in a house with her four children and her roommate Ronald Bradshaw. On December 9, 1999, White left her ten-year-old daughter with Price (whom she knew as a friend) while she went out for the evening. Sometime after White left, Bradshaw came home and was joined by his brother and two friends. The men remained outside of the house, standing around and talking about work.

Bradshaw went inside to put some beer away in the refrigerator and noticed Price and the victim sitting on the couch next to each other listening to the radio. Feeling suspicious of Price’s behavior, Bradshaw adjusted the blinds in the kitchen before he rejoined his friends so that he could see Price and the victim from outside the house.

Soon thereafter, Bradshaw and his companions went to the window and looked through the blinds. The men saw Price sitting on the floor in front of the victim, with one arm around her cradling her buttocks and one of his hands on the victim’s inner thigh; Price was hugging and attempting to kiss the victim. When Price saw the men looking at him, he closed the kitchen blinds. The four men immediately ran inside, confronted Price, and told him to leave. Investigators later questioned the victim, and she told them that Price had hugged her and attempted to kiss her.

OCGA § 16-6-4 (a) provides: “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

When initially questioned, the victim denied that anything had happened; however, she then acknowledged that Price had touched her, hugged her, and attempted to kiss her on her mouth. There were four eyewitnesses who testified that they observed Price touching the victim’s inner thigh and buttocks area. The evidence was sufficient to support the jury’s verdict under the standard set forth in Jackson, supra.

Price contends that the evidence did not support his conviction because there was no evidence that the victim was hurt. Force or injury is not a necessary element of the crime of child molestation. House v. State. Therefore, the State had no duty to establish injury, and this enumeration is without merit.

2. Price enumerates as error the trial court’s denial of his motion for directed verdict of acquittal, arguing that the State failed to prove that Price engaged in any “immoral or indecent” act and that Price did not have the “intent to arouse” or satisfy sexual desires within the meaning of OCGA § 16-6-4 (a). Specifically, Price contends that there was no evidence that he touched any sexual body part of the minor child. Contrary to Price’s contentions, there was eyewitness testimony that he touched the ten-year-old victim’s inner thigh and buttocks area and that he hugged and attempted to kiss her. This evidence is sufficient to support the verdict, and his intent could have been inferred by the jury from his conduct.

Decided November 2, 2001.

John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Jennifer A. Green, Assistant District Attorney, for appellee.

The evidence was sufficient to support the trial court’s decision to allow the case to go to the jury. Whether Price’s actions constituted child molestation was a jury question, and the jury has answered it. Stroeining v. State; Grimsley v. State. The evidence supported the verdict, and the trial court did not err in its ruling.

In any event, “[a] directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” (Punctuation omitted; emphasis in original.) Duckworth v. State.

3. Finally, Price argues that the verdict was based upon “inadmissible hearsay, irrelevant evidence and emotion, rather than facts and law.” Specifically, Price claims that the admission of the following testimony from Christopher Hayes (a friend of Bradshaw’s) constitutes reversible error: “Q: I’m sorry. What did you say? A: I say, what I saw upset me. Q: And why did it upset you? A: You just don’t touch young’uns. You got to be sick if you do.” No objection was made to this testimony at trial, and the trial court was not called upon to rule on its admissibility. There is therefore nothing for this court to review. Murray v. State; Buice v. State; Hall v. State.

Judgment affirmed.

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

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

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

       Corroboration is not required for a conviction of child molestation. Sewell v. State, 244 Ga. App. 449, 451 (1) (c) (536 SE2d 173) (2000).

        House v. State, 236 Ga. App. 405, 410-411 (512 SE2d 287) (1999).

        Stroeining v. State, 226 Ga. App. 410, 412 (1) (486 SE2d 670) (1997).

        Grimsley v. State, 233 Ga. App. 781, 784 (1) (505 SE2d 522) (1998).

        Duckworth v. State, 223 Ga. App. 250, 254 (3) (477 SE2d 336) (1996).

        Murray v. State, 271 Ga. 504, 506 (5) (521 SE2d 564) (1999).

        Buice v. State, 239 Ga. App. 52, 56 (2) (520 SE2d 258) (1999).

        Hall v. State, 219 Ga. App. 871, 873 (2) (a) (467 SE2d 206) (1996).


text:
    A01A1369.
    SHERRILL v. STOCKEL.
    (557 SE2d 8)
   Blackburn, Chief Judge.

In this interlocutory appeal regarding a property dispute between neighbors, Edward Sherrill contends that the trial court erred by denying his motion for summary judgment on Chris Stockel’s claim of malicious prosecution. For the reasons which follow, we reverse.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins. A defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Id. Our review of a denial of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. McBride v. Brown.

Viewed in this light, the evidence shows that Stockel and Sherrill were neighbors and their relationship became strained due to a dispute involving dead trees on Sherrill’s property. Stockel’s fence and conduit encroached upon Sherrill’s property, and Stockel refused to correct the trespass.

Sherrill placed “no trespassing” signs in his yard. Thereafter, Stockel allegedly came onto Sherrill’s property, destroyed the “no trespassing” signs, cursed and used abusive language toward Sherrill, and threatened Sherrill and his family with bodily harm on July 6 and July 7, 1998. Sherrill took out warrants against Stockel for criminal trespass and disorderly conduct in the State Court of DeKalb County and the DeKalb Magistrate Court respectively. A hearing was scheduled for July 24, 1998, on the warrant for criminal trespass. Sherrill later swore that on July 11,1998, Stockel assaulted him by verbally stating, ‘You f— p — y.” “F— Moron, I will own your house.” On July 15,1998, Stockel was placed on a $1,000 bond, with a special condition that he stay away from Sherrill. Sherrill listed Norman and Mary Ann who lived across the street and Douglas Morrow as witnesses to the incidents.

After the warrants were issued, Stockel’s attorney communicated with Sherrill in an attempt to resolve the matter. The parties reached an agreement, and pursuant thereto, Sherrill agreed to seek dismissal of the criminal charges and Stockel agreed to remove his encroachment onto Sherrill’s property. Pursuant to this agreement, Sherrill signed the affidavit prepared by Stockel’s attorney. Any ambiguity in the language of this document must be construed against Stockel. See Smith v. Persichetti. The “Authorization to Dismiss Criminal Charges” affidavit provided, inter alia, that:

the basis for the issuance of said warrants and the request for the issuance of such warrants was largely due to a property line dispute and since the date of the alleged incidents, I have had my property surveyed. I have provided a copy of said survey to Mr. Stockel through his legal representative. . . . Mr. Stockel has agreed to remove any conduit on my property and has agreed to remove his chain link fence which is encroaching on my real property. Mr. Stockel has agreed to remove such items within 20 days of my return of this document. I believe that it would be in the best interests of myself, justice and Mr. Stockel . . . that the criminal charges be dropped pursuant to this agreement. Therefore, I direct that the current warrant application ... be dismissed and that the current charges against Mr. Stockel. . . be dismissed.

(Emphasis supplied.) Stockel’s attorney presented the affidavit to the magistrate court, which dismissed the warrant applications. The charges pending in state court were also dismissed. Thereafter, Stockel removed the encroaching fence and conduit from Sherrill’s property pursuant to the agreement. After the matter was resolved, Stockel then hired new counsel and filed this malicious prosecution action based upon the same incident.

Sherrill filed a motion for summary judgment averring the above facts. In response, Stockel submitted an affidavit averring that:

[m]y former attorney, Randall Rolader, received a call from Sherrill about dropping the charges. Concurrently with that conversation it was discovered that my fence was inadvertently on Sherrill’s property due to an inaccurate survey. Rolader said the fence would be moved. Sherrill said the warrants would be dropped. However, the fence location and survey dispute were not related to the criminal prosecution, and no agreement was reached with Sherrill pertaining to the incidents leading to the warrants. The fence was being moved after discovering the inaccurate survey, not being related to the prosecution whatsoever. I had every intention of filing suit due to my wrongful arrest, and had communicated this to my attorney, Randall Rolader.

Stockel’s affidavit was insufficient as a matter of law. Affidavits supporting and opposing summary judgment must be made on personal knowledge and must set forth such facts as would be admissible in the evidence. OCGA § 9-11-56 (e). “[A]ll hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.” Butler v. Bolton Road Partners. A self-serving, conclusory affidavit not supported by fact or circumstances is insufficient to raise a genuine issue of material fact. Brooks v. Boykin. Stockel’s affidavit, which relies on secondhand information and hearsay and is otherwise self-serving and conclusory, should have been deemed insufficient to demonstrate a triable issue under Lau’s Corp.

The trial court, however, denied defendant’s motion for summary judgment, holding that a factual question existed as to the agreement, because the record contained no affidavit or deposition from attorney Rolader. On appeal, Sherrill argues that because the criminal warrants were dismissed as a result of an agreement to dismiss prosecution, Stockel is precluded from sustaining an action for malicious prosecution, because he cannot establish an essential element of his claim. We agree.

OCGA § 51-7-40 provides that “[a] criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” To prevail on a claim of malicious prosecution, a plaintiff must demonstrate: “(1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff-, (4) malice; (5) want of probable cause; and (6) damage to the plaintiff.” (Emphasis supplied.) Medoc Corp. v. Keel The plaintiff in these cases has a heavy burden and may prevail only if each of the foregoing elements is met. Brooks v. H & H Creek. Malicious prosecution claims are not favored under Georgia law, since it is public policy to encourage citizens to bring to justice those who appear guilty. Desmond v. Troncalli Mitsubishi.

Decided November 2, 2001.

With respect to the third element, if the termination of the prosecution has been brought about by compromise and agreement of the parties, it has not terminated “in favor of the plaintiff,” and thus, an action for malicious prosecution will not lie. Laster v. Star Rental; Garner v. Heilig-Meyers Furniture Co. “The defendant, by consenting to a termination of the criminal action, precluded a resolution in [his] favor, which is an essential element of a malicious prosecution claim.” Gerry v. K-Mart.

In the trial court, Stockel disputed that there was an agreement between the parties, suggesting in his affidavit that Sherrill’s dismissal of the criminal charges was gratuitous and had nothing to do with Stockel’s willingness to remove the encroaching fence and conduit. On appeal, Stockel argues that the prosecution was terminated in his favor, because the subject matter of his agreement (to remove a fence and conduit) was unrelated to the subject matter of the criminal prosecution (trespass and disorderly conduct). The plain language of the authorization to dismiss criminal charges establishes a nexus between these matters, as Stockel was to remove the trespass within 20 days of receiving the authorization to dismiss the criminal charges. In any event, the trial court did not rule on this issue, and therefore, there is nothing for this court to review.

Here, Sherrill put forward evidence demonstrating an agreement between the parties to dismiss the criminal charges in exchange for Stockel moving the fence and conduit. The evidence of this agreement pierced an essential element of Stockel’s claim for malicious prosecution, that is, that the prosecution terminated in his favor. Where the plaintiff cannot establish an essential element of his claim, the defendant is entitled to summary judgment. The court erred in failing to grant summary judgment to Sherrill in the absence of an essential element of Stockel’s case. The trial court erred in denying Sherrill’s motion for summary judgment.

Judgment reversed.

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

Mumford, Myers & Mooney, Albert A. Myers III, for appellant. Bill W. Crecelius, Jr., for appellee.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        McBride v. Brown, 246 Ga. App. 149 (538 SE2d 863) (2000).

        Smith v. Persichetti, 245 Ga. App. 357 (537 SE2d 441) (2000).

       We note that there has been no criminal violation of OCGA § 16-10-90, compounding a crime by the receipt of something of value in exchange for not prosecuting the criminal case here. This is so, because Sherrill sought permission of the court for the dismissal of the criminal charges and received only the removal of the trespass and settlement of the matter. See State v. Reese, 184 Ga. App. 413, 414 (361 SE2d 507) (1987).

        Butler v. Bolton Road Partners, 222 Ga. App. 791, 794 (2) (476 SE2d 265) (1996).

        Brooks v. Boykin, 194 Ga. App. 854, 856 (3) (392 SE2d 46) (1990).

        Medoc Corp. v. Keel, 166 Ga. App. 615-616 (1) (305 SE2d 134) (1983).

        Brooks v. H & H Creek, 223 Ga. App. 635 (478 SE2d 451) (1996).

        Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 74 (2) (532 SE2d 463) (2000).

        Laster v. Star Rental, 181 Ga. App. 609, 610 (1) (353 SE2d 37) (1987).

        Garner v. Heilig-Meyers Furniture Co., 240 Ga. App. 780, 782 (2) (525 SE2d 145) (1999).

        Gerry v. K-Mart, 222 Ga. App. 364 (1) (474 SE2d 260) (1996).


text:
    A01A1397.
    WILLIAMS v. THE STATE.
    (556 SE2d 170)
   Blackburn, Chief Judge.

Following a jury trial, Joel R. Williams appeals his conviction for driving with a suspended license, driving without a valid license, driving without proof of insurance, fleeing and eluding police officers, reckless driving, criminal damage to property, and interference with government property. In his sole enumeration of error, Williams contends that the trial court failed to adequately charge the jury on the issue of intent. For the reasons set forth below, we affirm.

Although the record reveals that Williams made no written request to charge the jury regarding intent, OCGA § 5-5-24 (c) provides that “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made ... or not.” Moreover, “ ‘[i]t is the duty of the judge, with or without request, to give the jury an appropriate instruction on each substantive point of issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant.’ ” Moore v. State.

A review of the transcript reveals that the trial court adequately instructed the jury on intent in this case. The trial court charged the jury:

[A] crime is a violation of a statute of this state in which there shall be a union or joint operation of act or omission to act and intention or criminal negligence. I’ve stated to you that a crime is a violation of a statute, and that’s why I’m going to read these statutes to you. Now, some of these statutes require criminal intent and some of them criminal negligence. Basically, traffic violations require criminal negligence. And, intent, criminal intent is the intention to do the act that the statute says don’t do. A person will not be presumed to act with criminal intention, but the trier of facts; that is, the jury, may find such intention or you may find an absence of it upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.

Following these instructions, the trial court read the portion of the Georgia statute relating to each of the crimes with which Williams had been indicted. Although he reserved any objection to the charge, Williams made no requests at the time that it was given to modify the instructions regarding intent.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” Williams v. State. Moreover, even a misstatement of the law contained in jury instructions does not constitute reversible error if the charge “conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation.” (Punctuation omitted.) Ga. Kraft Co. &c. v. Laborers’ Intl. Union &c.

In this case, the trial court properly instructed the jury that, in order to convict Williams, a finding of intent was required. Following this general charge, the trial court then differentiated the types of intent involved and read the elements of each crime directly from the statutes for the jury’s consideration. As a whole, these instructions appropriately enabled the jury to judiciously determine the guilt or innocence of Williams.

Finally, Williams argues that, because the trial court charged the jury that “traffic violations [basically] require criminal negligence,” the jury may have thought that all of the crimes with which he was charged were traffic violations because they involved the use of an automobile. In other words, Williams argues that, due to a confusing charge, the jury may have inappropriately applied a criminal negligence standard to all of the crimes he was accused of committing, thereby lowering the necessary standard of conviction. The verdict, itself, however, proves this argument to be meritless. Although Williams was indicted for driving under the influence and aggravated assault along with the other crimes, the jury ultimately acquitted him on these charges. Clearly, the jury was able to employ, common sense and discern that, although the aggravated assault charges arose from improper use of an automobile, the aggravated assault was not a traffic violation involving criminal negligence. We must assume that the jury applied this same modicum of common sense to the remaining charges as well.

Judgment affirmed.

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

Decided November 2, 2001.

Jeffrey W. Cofer, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

       Although Williams was also indicted for driving under the influence and aggravated assault, the jury found him not guilty for these crimes.

        Moore v. State, 235 Ga. App. 175, 176 (509 SE2d 108) (1998).

        Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982).

        Ga. Kraft Co. &c. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 584 (3) (317 SE2d 602) (1984).


text:
    A01A1408.
    MATHIS v. CANNON.
    (556 SE2d 172)
   Blackburn, Chief Judge.

In this case involving libelous postings in an Internet chat room, Bruce Mathis appeals the trial court’s grant of summary judgment to the plaintiff, Thomas C. Cannon, contending that the trial court erred by: (1) finding that the Internet postings were libelous per se; (2) failing to find that the postings regarded a matter of public concern and Cannon is a limited purpose public figure, thereby requiring Cannon to prove actual malice; and (3) failing to find that Cannon’s failure to request a retraction on the Internet site in question precluded an award of punitive damages pursuant to OCGA §§ 51-5-11 and 51-5-12. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewing the evidence in this light, the record shows that, on November 4, 1999, Mathis, using the screen name “duelly41,” posted several messages in an Internet chat room regarding the handling and disposal of waste material in Crisp County. In these messages, Mathis criticized Cannon, an officer and director of Waste Industries, Inc., a company whose subsidiary, Trans Waste Services, Inc., had contracted with the Solid Waste Management Authority of Crisp County to haul waste products to a controversial disposal site.

The first message by Mathis, posted at 11:14 p.m., stated: “what u doing??? by: duelly41 does [Waste Industries] think they can take our county — stop the trash flow cannon we love u for it — our county not a dumping ground and sorry u and It governor are mad about it — but that is not going to float in Crisp County — so get out now u thief.” The second message, posted at 11:27 p.m., stated: “cannon a crook???? by: duelly41 explain to us why you got fired from the calton company please???? want hear your side of the story cannon!!!!!!!!” The third message, posted at 11:52, stated:

cannon a crook by: duelly 41 hey cannon why u got fired from calton company???? why does cannon and It governor mark taylor think that crisp county needs to be dumping ground of the south??? u be busted man crawl under a rock and hide cannon and poole!!! if u deal with cannon u a crook too!!!!!!! so stay out of crisp county and we thank u for it.

After being made aware of these messages, Cannon sued Mathis for libel per se and libel, requesting both general and punitive damages. Both sides requested summary judgment, and the trial court ultimately granted summary judgment to Cannon. Mathis now appeals this ruling.

1. Mathis contends that the trial court erred by finding that his criticisms of Cannon constituted libel per se. We disagree.

OCGA § 51-5-1 (a) provides: “A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” In turn, OCGA § 51-5-4 makes certain disparaging comments libelous per se. Included in this category are statements which “[impute] to another a crime punishable by law,” OCGA § 51-5-4 (a) (1), and “[make] charges against another in reference to his trade, office, or profession, calculated to injure him therein,” OCGA § 51-5-4 (a) (3).

In Mathis’ first e-mail posting, the statement that Cannon was a “thief” falls within the definition of libel per se, as theft is a crime punishable by law. See, e.g., Stone v. McMichen (accusation of theft constituted libel per se). “To impute the crime of theft to a person is actionable se without proof of special damages.” Melton v. Bow.

In Mathis’ second and third e-mail postings, the false statements about Cannon’s prior job history, which clearly imply that he was terminated for dishonest behavior, are libel per se under the aegis of OCGA § 51-5-4 (a) (3). See, e.g., Strange v. Henderson (“[a] false accusation that the owner of rental property failed to insure or pay property taxes on such property could reasonably be construed to refer to one’s ‘trade, profession, or business’ ”).

Mathis’ argument that he cannot be held liable for libel because his e-mail postings contained his opinions holds no merit.

[TJhere is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact. The pivotal questions are whether the challenged statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.

(Citation and punctuation omitted.) Jaillett v. Ga. Television Co. There is no question that Mathis’ postings state and imply defamatory facts about Cannon, namely that he was a thief and that he was fired from a former job for wrongdoing. It is equally clear that these defamatory assertions of fact may be proven false. As such, Mathis is not exempt from liability in this case as he contends.

2. Mathis contends that the trial court erred by finding that Cannon is not a limited purpose public figure. If Cannon did fit this category and the Internet postings regarded a matter of public concern, Cannon would have to prove that Mathis made the statements with actual malice in order to recover. See, e.g., New York Times Co. v. Sullivan. The facts of this case, however, do not support a finding that Cannon was a limited purpose public figure.

One may become a limited purpose public figure by thrusting himself to the forefront of a public controversy for the purpose of influencing the resolution of issues surrounding that controversy. Gertz v. Robert Welch, Inc. This issue may be analyzed by considering three questions: (1) Did the plaintiff voluntarily thrust himself into the vortex of a specific controversy? (2) What were the extent and nature of the plaintiff’s participation in the controversy? and (3) Did the plaintiff seek out the attention of the public in order to influence the resolution of the controversy? See Hemenway v. Blanchard.

The record shows that Trans Waste is a corporation which contracted with Crisp County to carry waste to and from a specific facility managed and maintained by the Crisp County Solid Waste Management Authority. Trans Waste, in turn, is a subsidiary of Waste Industries, of which Cannon is an officer and shareholder. The evidence supports the trial court’s findings that Cannon simply acted in this matter as a businessman looking out for his company’s financial well-being. Although Cannon attended meetings of the Solid Waste Management Authority, there is no evidence that he had control or that he sought to control the operation of the waste management facility in question. Moreover, the record does not support a finding that Cannon chose to voluntarily thrust himself to the forefront of the controversy. To the contrary, it appears that Cannon was involuntarily drawn into the controversy in his position as an officer of Waste Industries and Trans Waste. Cannon did not insert himself in the public controversy over Crisp County’s policies, and, as such, he was not a limited purpose public figure in this matter. See, e.g., Western Broadcasting of Augusta v. Wright.

3. Finally, Mathis contends that the trial court erred by not finding that Cannon’s failure to request a retraction on the Internet site where the messages were posted precluded an award of punitive damages. OCGA § 51-5-11 (b) (1) (B) provides, in pertinent part, that a plaintiff cannot receive punitive damages in a civil action for libel where

the defendant, in a regular issue of the newspaper or other publication in question, within seven days after receiving written demand, or in the next regular issue of the newspaper or other publication following receipt of .the demand if the next regular issue was not published within seven days after receiving the demand, corrected and retracted the allegedly libelous statement in as conspicuous and public a manner as that in which the alleged libelous statement was published.

OCGA § 51-5-12 applies a similar retraction rule to the visual or sound broadcast of a defamatory statement. Following the plain language of these statutory provisions, they would not appear to be applicable to Internet postings. See, e.g., Williamson v. Lucas (by its plain language OCGA § 51-5-11 meant to apply only to newspapers and other printed media). First, they contemplate actions between an aggrieved party and a newspaper, television station, or radio station. They do not appear to address actions between two individuals. Second, these statutes do not reach Internet media such as chat rooms. The statutes, to the contrary, address media which broadcast programs at specific times to specific audiences, whereby a retraction would likely be heard by the same audience hearing the original defamatory remarks. To the contrary, the audience in a chat room is in a constant state of flux, making the remedy envisioned by OCGA § 51-5-12 inapplicable. Accordingly, the trial court did not err in finding that these statutes did not preclude Cannon’s claim for punitive damages.

Decided November 2, 2001

James W. Hurt, for appellant.

Jones, Cork & Miller, Robert C. Norman, Jr., Hubert C. Lovein, Jr., for appellee.

Judgment affirmed.

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

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Cannon also served as president of Trans Waste.

        Stone v. McMichen, 186 Ga. App. 510, 511 (2) (367 SE2d 839) (1988).

        Melton v. Bow, 241 Ga. 629, 630-631 (247 SE2d 100) (1978).

        Strange v. Henderson, 223 Ga. App. 218, 220 (1) (477 SE2d 330) (1996).

        Jaillett v. Ga. Television Co., 238 Ga. App. 885, 890 (520 SE2d 721) (1999).

        New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964).

        Gertz v. Robert Welch, Inc., 418 U. S. 323 (94 SC 2997, 41 LE2d 789) (1974).

        Hemenway v. Blanchard, 163 Ga. App. 668, 671 (294 SE2d 603) (1982).

        Western Broadcasting of Augusta v. Wright, 182 Ga. App. 359 (356 SE2d 53) (1987).

        Williamson v. Lucas, 171 Ga. App. 695, 697 (4) (320 SE2d 800) (1984).