text:
    A95A0809.
    WALTON v. THE STATE.
    (459 SE2d 184)
   Ruffin, Judge.

James Walton was convicted of possession of cocaine with intent to distribute and possession of marijuana. He appeals from the judgment entered on his conviction and sentence, enumerating as error the general grounds and ineffective assistance of trial counsel.

Viewed in a light to support the verdict, the evidence shows that prior to executing a search warrant, police gave a marked $10 bill to a confidential informant and sent him to purchase crack cocaine at a duplex in which Walton and his co-defendant, Richard Slater, lived. After the informant returned with a $10 piece of crack cocaine, the police executed the search warrant for the residence.

One of the officers who executed the warrant testified that he went into the bathroom and saw Walton and Slater leaning over the commode. Slater was raking cocaine from a plate into the toilet where several bags of cocaine had already been thrown. Slater attempted to flush the toilet as the officer struggled to push him away. Another officer then came into the bathroom and saw Walton attempting to flush the toilet. Both men were eventually restrained and removed from the bathroom. The police retrieved the bags from inside the commode and bags discovered beside the commode on the floor.

When the police searched Walton, they recovered the marked $10 bill from his pocket. A search of Walton’s bedroom produced one piece of crack cocaine from the bed, a bag of marijuana from a dresser drawer, $570 in cash from the dresser, a nine-millimeter automatic gun, and bullets. There were 115 pieces of crack cocaine in the bags retrieved from the toilet and 24 pieces of crack cocaine in bags discovered on the floor, each piece packaged for sale.

1. Walton contends the evidence demonstrated that the contraband belonged exclusively to Slater, the leaseholder. For this proposition, Walton relies on his and Slater’s testimony that the contraband belonged only to Slater and that he disapproved of both the drugs and Slater’s enterprise, which was conducted from the duplex. Walton also denied any knowledge of the marked $10 bill. Slater testified that prior to the arrival of the police, he had been cutting the crack cocaine in Walton’s bedroom and that he placed the cash on the dresser.

There is a rebuttable presumption of possession against the owner or lessee of premises where contraband is found. Mobley v. State, 190 Ga. App. 771 (1) (380 SE2d 290) (1989). The presumption is rebutted by evidence that persons other than the owner or lessee had equal opportunity to commit the crime. Id. In the instant case, evidence showing Walton’s involvement in the sale and attempted disposal of the drugs as well as the presence of the drugs in his bedroom rebutted the presumption. See Pamplin v. State, 164 Ga. App. 610 (1) (298 SE2d 622) (1982). “[T]he totality of the evidence was such as to be inculpatory of [Walton] without being exculpatory of [Slater] because the jury was authorized to find that they had shared non-exclusive and joint possession of the drugs. . . .” Mobley, supra at 773. “The jury . . . had the task of evaluating the materially conflicting testimony. ‘We cannot say which evidence the jury believed and which evidence the jury rejected, nor will we now substitute our judgment because we did not have the opportunity to hear the witnesses and observe their demeanor. [Cits.] The verdict evinces that the jury chose to disbelieve the material parts of [Walton’s and Slater’s] testimony. [Cits.] We must view the evidence in a light most favorable to the verdict and, in doing so, we conclude that . . . any rational trier of fact could have found [Walton] guilty beyond a reasonable doubt. [Cits.]’ [Cit.]” Jackson v. State, 188 Ga. App. 834, 838 (4) (374 SE2d 777) (1988).

We also reject Walton’s contention that two other persons present and arrested at the time the police executed the search warrant had equal access to the duplex. One of the individuals was present to purchase cocaine. “[T]here is no evidence these persons had equal access to that area where . . . the drugs [were] seized. Merely being somewhere within the premises for a relatively short but unspecified time before drugs subsequently are found therein does not reasonably raise the defense of equal access.” Jones v. State, 200 Ga. App. 519, 520 (2b) (408 SE2d 823) (1991).

2. Walton contends he was denied effective assistance of counsel at trial. He argues that trial counsel’s performance was deficient because counsel did not challenge the search warrant by filing a motion to suppress and counsel failed to object to the trial court’s consideration of his National Crime Information Center (NCIC) printout in imposing his sentence.

“At the hearing on the motion for new trial, the burden was on [Walton] to establish that he received ineffective assistance of trial counsel. [Cit.] To meet this burden, [Walton] was required to show not only that trial counsel’s performance was deficient, but also that, absent trial counsel’s deficient performance, there is a reasonable likelihood that the outcome of the trial would have been different. [Cits.]” White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995).

(a) “When urging ineffective assistance of counsel on the basis of counsel’s failure to file a motion to suppress, appellant must ‘make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. [Cits.]’ [Cit.]” Ruffin v. State, 201 Ga. App. 792, 793 (2) (412 SE2d 850) (1991). Walton first contends, in essence, that the search warrant was ineffective as authority to search him and his property because the warrant was “aimed” at the leaseholder. This contention is without merit as the affidavit and warrant clearly show that the warrant was issued primarily to search the duplex and not Slater. The officer also testified that she arranged the drug purchase involving the informant with the marked $10 bill and observed that sale before executing the warrant. Thus, Walton has no basis for contending the evidence would have been suppressed had counsel challenged the sufficiency of the warrant.

(b) Walton contends that in sentencing him, the trial court improperly considered the convictions listed on his NCIC printout without objection by trial counsel. It does not appear likely, however, that Walton’s sentence would have been any different if defense counsel had objected to the NCIC printout.

First, the record reveals that on direct examination, Walton volunteered that he had a prior marijuana conviction. In addition, the record also shows that immediately after the jury returned the verdict, the trial court sentenced Walton, as a recidivist, to the maximum thirty years on the cocaine conviction and ten years on the marijuana conviction, to be served concurrently. The court then ordered a post-sentence investigation for the purpose of revealing factors which might support the probation of portions of the sentence. See OCGA § 17-10-1. At the sentencing hearing following that investigation, the State revealed to the trial court that it recently discovered Walton’s NCIC record which contained a number of prior convictions, including drug convictions. Walton contends that the State failed to give pretrial notice of these convictions as required by OCGA § 17-10-2 (a) and that the convictions likely influenced the trial court’s decision to maintain the maximum sentence. The record reflects, however, that the trial court specifically found that the post-sentence investigation failed to reveal anything which would support probating any of Walton’s sentence. Hence, Walton has no basis for arguing that the sentence would have been different but for counsel’s failure to object to the NCIC printout.

Decided July 10, 1995.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Laura D. Hogue, Assistant District Attorney, for appellee.

(c) Walton raises other “errors” allegedly committed by defense counsel. Sufficient evidence was introduced at the hearing, however, to permit the trial court to conclude that counsel’s performance was not deficient; thus, the court’s denial of Walton’s motion for new trial was not clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986). On the other hand, even if counsel’s performance is deemed deficient, the grant of a new trial was not required because “the trial court was also authorized to find that, absent trial counsel’s alleged deficient performance, there still was no reasonable likelihood that the outcome of the trial would have been any different.” White, supra at 23.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A0357.
    HARVEY v. THE STATE.
    (459 SE2d 433)
   Johnson, Judge.

On Tuesday, October 12, 1993, a Fulton County police officer was dispatched to a public housing project to investigate suspicious activity involving a described individual. The officer observed a man matching the description he had been given standing with two other men. He asked the men for identification, which they provided. Harvey was one of the three. The officer called in the names of the three to his dispatcher and requested a computer check of the names through the Georgia and National Crime Information Centers. The computer check revealed an outstanding bench warrant for Harvey which had been issued in Cobb County on September 3, 1993. The officer asked his dispatcher to confirm the status of the warrant. Through his dispatcher, he was assured by an officer of the Cobb County Sheriffs Department that computer records showed the bench warrant was still outstanding and valid. Harvey was placed under arrest pursuant to the bench warrant and was searched incident to his arrest. The officer found nine pieces of crack cocaine, a beeper, and an amount of cash in his possession. As a result, Harvey was indicted on the felony charge of possession of cocaine with intent to distribute.

It was later determined that the Superior Court of Cobb County had recalled the warrant in an order dated Thursday, October 7,1993, and entered with the Clerk at 2:56 p.m. on the afternoon of Friday, October 8, 1993. Harvey moved to suppress the evidence produced by the search on the ground that Harvey’s arrest was unlawful because the bench warrant had been recalled, and therefore, the search incident to his arrest was unlawful. It is from the denial of his motion to suppress the evidence that this appeal arises. Because the trial court’s denial of the motion was proper, though for different reasons than those upon which its order was based, we affirm.

In denying Harvey’s motion to suppress, the trial court correctly ruled that Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), holding that there is no “good faith” exception to the Georgia exclusionary rule, is limited to those cases arising pursuant to OCGA § 17-5-30. The trial court erroneously concluded, however, that OCGA § 17-5-30 only covers searches conducted pursuant to a search warrant. Both the Supreme Court and this court have consistently held that OCGA § 17-5-30 governs every case in which a defendant challenges a search and seizure, regardless of the grounds upon which the challenge is based. In short, we have held that OCGA § 17-5-30 is Georgia’s exclusionary rule. See State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984); see also Baez v. State, 206 Ga. App. 522, 526 (425 SE2d 885) (1992); King v. State, 211 Ga. App. 12, 13 (438 SE2d 93) (1993).

Furthermore, the plain language of the statute shows that it covers all searches, not just those involving search warrants. OCGA § 17-5-30 (a) (1) expressly refers to cases where the defendant is alleging that a search and seizure conducted without a search warrant was illegal, while OCGA § 17-5-30 (a) (2) applies in situations where it is alleged that a search conducted pursuant to a search warrant was unlawful because the search warrant itself was either insufficient on its face, or was issued without probable cause, or was illegally executed.

In attempting to determine whether OCGA § 17-5-30 was limited to searches conducted pursuant to search warrants rather than searches conducted without a warrant, the trial court referred to the legislative history of that Code section, which was originally enacted as a part of Act No. 578, Ga. L. 1966, pp. 567-572. Section 1 of that Act specifically refers to searches incident to lawful arrests. Having considered the plain language of both the Code sections and the original Act, we cannot agree with the trial court’s apparent conclusion that this case is not governed by OCGA § 17-5-30 and that Gary, therefore, does not apply.

While the facts in Gary involve a search warrant, the holding is much broader. This court is bound by the Supreme Court’s holding in Gary, which turns on the fact that Georgia’s exclusionary rule was created by the legislature, not the judiciary. Gary holds that because the legislature did not include a “good faith” exception in the Georgia exclusionary rule, the courts are not free to do so, with the result that there is no “good faith” exception in Georgia unless and until the legislature sees fit to adopt one. The General Assembly has met in three regular sessions since Gary was decided, and, to date, no “good faith” exception has been added to the statutory scheme. Perhaps at some future time the legislature will consider that issue. Gary points out clearly that the United States Supreme Court’s decision in United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), which judicially creates a “good faith” exception to a judicially created exclusionary rule, does not apply in Georgia because Georgia’s exclusionary rule is legislatively created. Therefore, the trial court’s conclusion that the “good faith” exception carved out in Leon applies to this case is in error.

Notwithstanding the trial court’s erroneous reading of Gary and Leon, the motion to suppress in this case was properly denied because the search producing the evidence was a proper search incident to a lawful arrest. Contrary to Harvey’s contention, the question of whether the arrest was lawful turns upon the issue of probable cause, not upon the fact that the bench warrant had been recalled. Probable cause was established by the officer’s confirmation that a bench warrant for Harvey’s arrest was still valid. There are a number of decisions from the United States Supreme Court which have considered the issue of probable cause to arrest in situations where an officer relies upon government records which turn out to be incorrect. See Arizona v. Evans, 514 U. S._ (115 SC_, 131 LE2d 34) (1995); Whiteley v. Warden, 401 U. S. 560 (91 SC 1031, 28 LE2d 306) (1971); compare Hill v. California, 401 U. S. 797 (91 SC 1106, 28 LE2d 484) (1971). At the time the arresting officer in this case acted, he not only had probable cause to arrest based upon the information he had been given, he would have been derelict in his duty if he failed to arrest. This is not the sort of situation to which the exclusionary rule was intended to apply. The arrest was lawful, and therefore the search incident to the arrest was lawful.

The trial court concluded that the officer had acted in good faith, and that the search was properly to be upheld. We agree that the officer acted in good faith, but we emphasize that the question of whether the officer acted in good faith, or acted reasonably, does not even arise under the facts of the case. The officer relied upon a state computer record showing the existence of an outstanding bench warrant, recently issued. Furthermore, demonstrating good and proper police procedure, he even made a specific inquiry, through his dispatcher, with the sheriff’s office in the jurisdiction where the bench warrant was issued, and was assured that the bench warrant was still outstanding. More than this he could not be reasonably expected to do.

In making this determination, we are mindful of the Georgia Supreme Court’s decision in State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988). After analyzing the circumstances surrounding Stringer’s arrest, the Supreme Court found that law enforcement officers knew or should have known that a 21-month-old bench warrant had been recalled. Among other factors critical to that determination was that the arresting officer had the warrant in his possession for eight days before executing it, during which time he made no effort to verify its status. This amounts to the kind of police misconduct which the exclusionary rule was created to deter.

The exclusionary rule, whether enacted by the legislature as in Georgia, or created by the judiciary as in the federal system, though widely criticized, has not been replaced as a tool for deterring police misconduct. But, as with all rules of law, it must be applied in light of its purpose. Here, there was no police misconduct. Under facts such as these, there are two potential areas of police misconduct which are properly to be guarded against. The first is a situation as in Stringer, where the arresting officer did not even attempt to confirm the validity of the warrant despite being on notice of facts which called the validity of the warrant into serious question. The second area, alluded to but not present in Stringer, is presented where those law enforcement officials responsible for entering information regarding bench warrants in the computerized records either intentionally or negligently fail to promptly delete names from the list of outstanding warrants when the warrants had been recalled or otherwise cancelled. Such misconduct would not only subject any citizen to an arrest merely because he had once been legally subject to apprehension, but would improperly increase the number of persons subject to search and the consequent seizure of admissible evidence. This second type of police misconduct is also the kind of impermissible and unconstitutional conduct against which the exclusionary rule was expressly adopted to protect. There is no police misconduct of the second type in this case.

Decided June 20, 1995

Reconsideration denied July 11, 1995

Steven W. Reighard, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Penny A. Penn, Juliette O. W. Scales, Assistant District Attorneys, for appellee.

Because nothing in the record before us supports a conclusion that there was any police misconduct in this case, there is nothing here to which the exclusionary rule could be properly applied. Therefore, the trial court’s denial of Harvey’s motion to suppress was not error.

Judgment affirmed.

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

       The trial court’s order stated: “Gary v. State .. . does not apply because OCGA § 17-5-30 is limited in its application to search warrants and does not extend to searches incident to arrest under an arrest warrant.”

       The trial court’s order stated: “The ‘good faith exception’ to the exclusionary rule adopted by the U. S. Supreme Court in United States v. Leon . . . applies to these facts.”


text:
    A95A0366.
    ORMANDY v. ODOM.
    (459 SE2d 439)
   Johnson, Judge.

When the Ormandys divorced in 1989, the court awarded permanent custody of their two children to the father. In 1994, after learning that the father’s employer was transferring him to Illinois, the mother filed a petition for change of custody claiming there were material changes of conditions affecting the welfare of the children. The trial court granted her petition and we granted the father’s application for discretionary appeal.

1. In two enumerations of error, the father contends the trial court erred in finding a material change of condition impacting the welfare of the children and warranting a change of custody. The court based its decision on its findings that the children were closer emotionally to their mother, that the mother’s financial, social and emotional situation improved substantially since the divorce, and that the mother and the paternal grandparents, all residents of Wayne County, were the children’s primary source of nurture and security. The court concluded that moving the children to Illinois would cause them substantial distress and emotional trauma.

“In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. Hill v. Rivers, 200 Ga. 354 (37 SE2d 386) (1946). Ordinarily, the trial court should favor the parent having such a right. Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975). . . . What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. Bell v. Bell, 154 Ga. App. 290 (267 SE2d 894) (1980). It is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory. Dearman v. Rhoden, [235 Ga. 457 (219 SE2d 704) (1975)]; Bowen v. Bowen, 223 Ga. 800 (158 SE2d 233) (1967).” (Emphasis in original.) In re M. M. A., 166 Ga. App. 620, 625 (2) (305 SE2d 139) (1983). Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion. Bisno v. Bisno, 238 Ga. 328 (232 SE2d 921) (1977). We find that the trial court abused its discretion in this case and reverse.

The record in this case is completely devoid of evidence that the father is no longer able or suited to retain custody of the children. In fact, the court states in its order that the father is “responsible and caring” and that there is “no significant failure or culpability on his part in so far as the care of the children are concerned, [but that] there is a closer identity with the mother on an intimate, emotional level.” Nor is there any evidence that conditions surrounding the children have so changed that modifying the custody award would promote the children’s welfare. The only change in the conditions surrounding the children is that the father remarried in 1993 and moved out of state. Relocating and remarrying are not in and of themselves sufficient changes in conditions to authorize a change in custody. See Bisno, supra at 329; Stout v. Pate, 209 Ga. 786, 787 (1) (75 SE2d 748) (1953); compare Fortson v. Fortson, 152 Ga. App. 326, 327-328 (4) (262 SE2d 599) (1979).

Furthermore, there is no evidence in the record that the change is for the worse. The trial court states in its order that the children are closer emotionally to their mother, that she and the paternal grandparents are the primary source of nurture and security for the children and that removing the children from Wayne County has caused the children anxiety. Apart from testimony that the children spent half or more of their time with the grandparents before the father remarried, these conclusions have no support in the record. The information may have been gleaned from the court’s private interviews with the children. While the trial court was certainly authorized to interview the children, the interviews were not transcribed and any statements made therein cannot serve as a basis for upholding the trial court’s decision. Kohler v. Kromer, 234 Ga. 117, 118-119 (214 SE2d 551) (1975).

Decided June 23, 1995

Reconsideration denied July 11, 1995.

Child custody. Wayne Superior Court. Before Judge Tuten.

Leaphart & Johnson, J. Alvin Leaphart, for appellant.

Robert B. Smith, for appellee.

The tried court also erroneously considered an improvement in the mother’s situation in deciding to change custody. As stated above, the court should have focused its analysis on a worsening of conditions in the child’s present home environment rather than any purported change for the better in the non-custodial parent’s home environment. In re M. M. A., supra at 625 (2). The record in no way supports a finding that the environment in the father’s home has worsened.

While the evidence does not support a change in custody from the father to the mother, relocation of the children necessitates a modification of the mother’s visitation rights. On remand, the trial court is directed to hear testimony concerning this issue and to enter an order modifying visitation.

2. In light of the foregoing, we do not reach the father’s remaining enumerations of error.

Judgment reversed and case remanded with direction.

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


author: Blackburn, Judge.

text:
    A94A0660.
    ALLEN v. LEFKOFF, DUNCAN, GRIMES & DERMER, P.C. et al.
    (458 SE2d 503)
   Blackburn, Judge.

In Allen v. Lefkoff, Duncan, Grimes & Dermer, 212 Ga. App. 560 (442 SE2d 466) (1994), we affirmed the trial court’s disallowance of any evidence of, reference to, or jury instruction on the defendant attorneys allegedly having violated certain provisions of the Code of Professional Responsibility. The Supreme Court granted certiorari and reversed our decision in Allen v. Lefkoff, Duncan, Grimes & Dermer, 265 Ga. 374 (453 SE2d 719) (1995).

The Supreme Court held “that pertinent Bar Rules [were] relevant to the standard of care in a legal malpractice action.” Id. at 376. The Supreme Court clarified its holding by finding that “[i]n order to relate to the standard of care in a particular case, ... a Bar Rule must be intended to protect a person in the plaintiffs position or be addressed to the particular harm suffered by the plaintiff.” Id. at 377.

Decided July 11, 1995.

William R. Hurst, for appellant.

Freeman & Hawkins, H. Lane Young II, Christine L. Mast, Thomas F. Wamsley, Jr., for appellees.

The proper application of the Supreme Court’s decision requires that the trial court make certain mixed findings of fact and law. In the present case, the trial court has not had the opportunity to make these findings in light of the Supreme Court’s expansion of the applicable rule of law. Therefore, the judgment of the trial court is hereby vacated, and upon remand, the trial court is directed to hold a hearing relative to the use of Bar Rules in this case consistent with the Supreme Court’s holding herein. Such hearing should be treated as a motion for new trial entitling either party to appeal the trial court’s subsequent decision within 30 days of its entry.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.


author: Pope, Presiding Judge. Beasley, Chief Judge,

text:
    A95A0045.
    HOUSTON v. THE STATE.
    (459 SE2d 583)
   Pope, Presiding Judge.

Defendant, the owner of a video rental store, was convicted of knowingly distributing and circulating unauthorized copies of videotapes. See OCGA § 16-8-60. Concluding that defendant’s motion for acquittal should have been granted based on the State’s failure to comply with his speedy trial demand under OCGA § 17-7-170, we reverse the conviction.

Defendant was indicted in McIntosh County in October 1992, and he filed a demand for trial pursuant to OCGA § 17-7-170 in November 1992. Historically, McIntosh County had four terms of court, starting in February, May, September and December. Based on these four terms, defendant moved for acquittal on February 22,1993, arguing that his demand for trial was made in the September term, and jurors were impaneled and qualified to try him in both the September and December terms. The trial court denied defendant’s motion for acquittal, however, ruling that the legislature had changed the law in 1992 to provide that McIntosh County has only two terms of court, starting in May and December.

While acknowledging that the legislature purportedly amended the terms of court in McIntosh County in 1992 (Ga. L. 1992, p. 1205), defendant points out that the legislature again passed legislation amending the terms of court in McIntosh County in 1993 (Ga. L. 1993, p. 447). Because the amendment was not reflected in the Official Code of Georgia until after the 1993 legislative session, defendant argues that the amendment was not in effect during the period the State failed to bring him to trial — late 1992 and early 1993.

We agree with defendant that the amendment changing the terms of court from four to two had not gone into effect at that time. Our agreement that the 1992 amendment was not effective is based not on the reason suggested by the defendant — that the amendment was not yet reflected in the Official Code of Georgia — but on an error in the actual language of the 1992 amendment. Specifically, the 1992 amendment purported to amend Ga. L. 1945, p. 1022. But Ga. L. 1945, p. 1022 had already been repealed and replaced by OCGA § 15-6-3. The legislature apparently realized its mistake and reenacted the amendment the following year, correctly stating this time that it was amending OCGA § 15-6-3.

Although we previously affirmed the trial court’s denial of defendant’s motion for acquittal, see Houston v. State, 210 Ga. App. XXXI (1993), we did not have these facts before us and did not address this issue. Moreover, we have since decided McIver v. State, 212 Ga. App. 670 (442 SE2d 855) (1994), in which we held that the change from four to two terms in McIntosh County took effect July 1, 1993, and it would not seem fair to deprive defendant of the benefit of that holding.

For these reasons, we reverse the judgment of conviction and direct the trial court to enter a judgment of acquittal under OCGA § 17-7-170.

Judgment reversed. Ruffin, J., concurs.

Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I fully concur on the basis of the following legislative history.

The Official Code of Georgia Annotated became effective on November 1, 1982. OCGA § 1-1-9. The legislative intent on the adoption of the Code is stated in OCGA § 1-1-2: “The enactment of this Code is intended as a recodification, revision, modernization, and reenactment of the general laws of the State of Georgia which are currently of force. . . . Except as otherwise specifically provided by particular provisions of this Code, the enactment of this Code by the General Assembly is not intended to alter the substantive law in existence on the effective date of this Code.”

In keeping with the desire to revise and modernize the general laws, the General Assembly streamlined Ga. L. 1945, p. 1022, which established the four terms of McIntosh Superior Court and made it part of the 1982 Code as OCGA § 15-6-3 (a) (4) (E): “The terms of court for the superior courts for each of the judicial circuits shall commence as follows: . . . Atlantic Circuit . . . McIntosh County — Fourth Monday in February and May; second Monday in September; and first Monday in December.”

The 1945 statute had provided in section 2 “[tjhat the terms of said court shall begin and be held on the fourth Mondays in February, May [sic] and the second Monday in September and the first Monday in December of each year.” This was not part of the 1933 Code. That Code simply stated the general law: “The superior courts shall be held at the county site and courthouse (if any) in each county in the respective judicial circuits, or other places therein designated by law, not less than twice in each year, by one or more of the judges of the superior courts, at the several times prescribed by law” (Code Ann. § 24-3001); “The judges of the superior courts must hold the superior courts of each circuit at the county site and courthouse (if any) of each county, or other place therein designated by law, not less than twice each year, at such times as are prescribed by the General Assembly” (Code Ann. § 24-2609); “The regular terms of the superior and state courts shall continue until the commencement of the next regular term, at which time they shall stand adjourned” (Code Ann. § 24-3010). In order to find the terms of a particular court, one had to go to the statutes themselves. See, e.g., Grage v. Venable, 114 Ga. App. 570 (151 SE2d 926) (1966).

Collecting these statutes, as amended, into a comprehensive section of the Official Code was one of the services rendered by the Code Revision Commission. Enactment of the Official Code in 1982 gave it the effect of statute. OCGA § l-l-l. As a consequence, the terms of court of McIntosh County are officially in OCGA § 15-6-3, which in 1982 superseded Ga. L. 1945, p. 1022, as to the terms of court, by operation of law.

The 1945 statute was purportedly amended by local legislation in Ga. L. 1984, p. 4054. This amendment related to the drawing of grand juries and their terms, not to the terms of court; as to the latter, it only corrected the omission noted above by “sic,” by providing the obvious missing words so that it read “the fourth Monday in May.” But at least section 2 of that statute had already been superseded and the correction had been made by the Code Revision Commission, so the 1945 statute was of no effect. No conflict was created, however, because there were still four terms of court with the same designated starting times.

In 1992 an effort was made to change the court terms for McIntosh County by local legislation. The General Assembly sought to amend the Act of 1945, so as to change the terms from four to two and to delete the section on the selection of the grand jury. Ga. L. 1992, p. 1205. Again, this local legislation had no effect, because the act being amended had been dead for a decade. OCGA § 1-1-11 provided: “All laws and parts of laws in conflict with this Code are repealed.”

OCGA § 15-6-3 (a) (4) (E) had replaced at least section 2 of that 1945 statute, if not both sections 1 and 2. That is the section which should have been amended in 1992 when McIntosh County sought to amend its terms of court.

Apparently realizing the mistake, the Official Code was amended the next year, and the mission was accomplished. Ga. L. 1993, p. 447 struck the four-term mandate and inserted in lieu thereof the following: “(E) McIntosh County — Fourth Monday in May and first Monday in December.” This became effective July 1, 1993, as stated in McIver v. State, 212 Ga; App. 670 (442 SE2d 855) (1994), because no earlier date was specified. OCGA § 1-3-4 (a).

If one follows this tedious, halting journey carefully, one comes to the end of the road and reaches the inevitable conclusion that when Houston filed his demand for trial on November 13, 1992, there were still extant four terms of court in McIntosh County and the demand was made during the September term, the same term in which he was indicted. It then requires only a small step and the simplest of mathematics to arrive at the ultimate conclusion, which is that when Houston moved for acquittal on Monday, February 22, 1993, the first day of the February term, the trial court was bound to grant it. “If the person is not tried when the demand is made [September term] or at the next succeeding regular court term thereafter [December term], provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment. . . .” OCGA § 17-7-170. It is not disputed that jurors were available.

McIver v. State, supra, was correct in stating that “Until amended effective July 1, 1993, OCGA § 15-6-3 (4) (e) provided for four terms of court for McIntosh Superior Court. . ." McIver is a published opinion and thus precedential, which the first Houston opinion, supra, preceding McIver, is not. At least the three judges of this Court on that panel were unaware of the 1992 effort to change the terms by local legislation amending the 1945 law, and it would be engaging in fiction to impose notice of it on the general public, even if the effort had been otherwise effectual. As said so crystalline in Sirota v. Kay Homes, Inc., 208 Ga. 113, 114-115 (3) (65 SE2d 597) (1951), the legislative act in adopting a code has “the force and effect of enacting into one [law] all of the provisions of that code,” and “it must be given effect, not because of any power of legislation in the codifiers, but because of the adopting statute. [Cit.]” “[A] 11 matter contained [in such a codification] . . . has the effect of law, and prior conflicting ordinances are impliedly repealed thereby. ... If the rule respecting official codes were different, no one could with any degree of confidence and safety rely upon them and the codification of laws would, in that event, be only an idle gesture. ...” (Citations omitted.) Id. at 115.

Decided July 11, 1995.

Randall M. Clark, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

The 1982 Code had superseded the 1945 statute and it, not the statute, had to be amended so as to effect a change in the terms of court, not only because the 1945 statute was extinct but also to give proper notice of the change to the public. To create a law, the legislature must “enact and publish [it], and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply.” Texaco v. Short, 454 U. S. 516, 532 (102 SC 781, 70 LE2d 738) (1982). That was done, by amending the Code in 1993.

       “The statutory portion of the codification of Georgia laws prepared by the Code Revision Commission and the Michie Company pursuant to a contract entered into on June 19, 1978, is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia. . . .” Ga. L. 1982, p. 3, § 1.

       The 1985 edition of the Official Code of Georgia dropped the subdesignation (a) because it was no longer needed, since subdesignation (b) was subsumed into it.

        McIver was noticed by the Georgia Supreme Court in Henry v. James, 264 Ga. 527, 530 (1c) (449 SE2d 79) (1994). That Court did not challenge this statement.


text:
    A95A0111.
    ROBERTS v. FAUST et al.
    (459 SE2d 448)
   Pope, Presiding Judge.

On January 29, 1992, plaintiffs Linda and Larry Faust sued defendant Dr. Michael Roberts for medical malpractice and loss of consortium. Plaintiffs did not file an expert’s affidavit contemporaneously with their complaint as required by OCGA § 9-11-9.1 (a). But they did invoke OCGA § 9-11-9.1 (b) by alleging that the statute of limitation for their claims would expire within ten days, and that due to this time constraint an expert’s affidavit could not be prepared. Consequently, plaintiffs automatically received a 45-day filing extension. See OCGA § 9-11-9.1 (b). The trial court granted two additional extensions to plaintiffs, thereby allowing them until May 13, 1992, to file their expert’s affidavit. On that date, plaintiffs filed a facsimile of an affidavit from Dr. Burman. Approximately two weeks later they filed Burman’s original affidavit. Thereafter, defendant answered the complaint denying liability and asserted as a defense plaintiffs’ failure to comply with the requirements of OCGA § 9-11-9.1. Defendant then filed a motion to dismiss the complaint. On appeal, he contends that the trial court erred in denying his motion. We disagree and affirm.

Defendant argues that the trial court improperly considered the facsimile of Burman’s affidavit absent some showing that the original was in plaintiffs’ physical possession before they filed the facsimile, and that plaintiffs’ failure to file the original affidavit resulted from a mistake. We find no merit to this argument. Although OCGA § 9-11-9.1 contemplates that an original expert’s affidavit should be filed, when justice so requires, trial courts may consider facsimiles of affidavits that are available during the statutory grace period found in OCGA § 9-11-9.1 (b). Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256, 258 (2) (419 SE2d 36) (1992); see Reid v. Brazil, 193 Ga. App. 1, 2 (2) (387 SE2d 1) (1989).

Contrary to defendant’s assertion otherwise, an original affidavit does not have to be in a plaintiff’s physical possession in order for it to be considered “available” under our holding in Waldroup. Nor do we find in Waldroup or OCGA § 9-11-9.1 (b) any requirement that a plaintiff be able to demonstrate that the failure to file an original affidavit during the statutory grace period resulted from some mistake. Defendant’s reliance on Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994) in support of these arguments is misplaced because Brown clearly is distinguishable from both Waldroup and the case at bar.

Unlike the plaintiffs in Waldroup and this case, the plaintiff in Brown did not invoke the application of OCGA § 9-11-9.1 (b). Thus, when he failed to contemporaneously file an original affidavit with his complaint and subsequently allowed the statute of limitation to expire, he was forced to meet the stringent renewal requirements of OCGA § 9-11-9.1 (f). Under that Code section, the plaintiff in Brown had to demonstrate that an original affidavit was available at the time he filed his complaint and that his failure to file the affidavit was the result of a mistake. Because Brown dealt specifically with the application of OCGA § 9-11-9.1 (f), it is not controlling here. Consequently, we reject defendant’s contention that our holdings in Waldroup and Brown require a reversal of the trial court’s decision in this case.

Moreover, we note that this court recently has held that the existence of a facsimile of an expert’s affidavit establishes the existence and availability of the original affidavit. Sisk v. Patel, 217 Ga. App. 156, 158-159 (456 SE2d 718) (1995). In Sisk, we also held that a plaintiff should be allowed to file “a facsimile of a properly executed affidavit with a complaint in a professional malpractice action so as to avoid the running of the statute of limitation. Then the original should be allowed to be filed as a supplemental pleading. . . .” Id. at 159. Therefore, we conclude that the trial court did not err in considering the facsimile of Burman’s affidavit or in allowing plaintiffs to later supplement their complaint with the original affidavit.

We also reject defendant’s argument that the trial court should have granted his motion to dismiss because there are slight variances between the notary’s and affiant’s signatures on the facsimile and their corresponding signatures on the original expert’s affidavit. Defendant did not raise this argument below and thus has waived it for purposes of appeal. Moreover, we note that the content of the facsimile and the original affidavits is identical. The signatures found on the facsimile were clearly made by the same individuals who signed the original affidavit.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment because I am compelled to do so due to the whole court decision in Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995). However, a facsimile is not the equivalent of an affidavit, else why is it necessary to file the original affidavit after a facsimile is filed? In addition, the document initially filed in this case was not a facsimile of the affidavit subsequently filed after the twice-extended time had expired; the signatures differed.

By deciding that a timely filed facsimile fulfills the requirements of OCGA § 9-11-9.1 (b), the court avoids the applicability of subsection (e). That subsection, which accommodates inadvertent human error, permits late filing which is “the result of a mistake.” See St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989); cf. Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991); Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994). Plaintiffs show no such mistake here. They simply did not have the affidavit until about May 28, when they filed it. What they then filed was dated May 13, the last day of the extended time period. There is no explanation in the record why the plaintiffs could not obtain, for filing by May 13, 1992, or court extension, the affidavit of a physician to support their claim of negligence on January 30-31, 1990. Although their original counsel died sometime after filing the complaint, new counsel did not obtain any further extension to supplement the pleadings with the affidavit, after obtaining the first and second extensions with the consent of opposing counsel.

Decided July 11, 1995

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, for appellant.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, Jerry W. Brimberry, Jr., for appellees.

“[T]he legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.” Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963). This is our obligation even though OCGA § 9-11-9.1 is a tight and relatively inflexible control of the procedure for bringing malpractice actions to court. It is detailed and precise, yielding little discretion to trial judges to accommodate peculiar circumstances such as the use of faxed documents.

I am authorized to state that Judge Ruffin joins in this special concurrence.

       From the copy we have, it almost looks as though the affiant’s signature on the original document, of which the facsimile is a copy, was affixed by rubber stamp.


author: Ruffin, Judge.

text:
    A95A0154.
    THE STATE v. MOON.
    (459 SE2d 441)
   Ruffin, Judge.

Leland Ray Moon was indicted on three counts of possessing illegal drugs in violation of the Georgia Controlled Substances Act. He moved to suppress contraband seized from his car on the ground that the arresting officer lacked articulable suspicion or probable cause to detain him and conduct a warrantless search of his vehicle without his consent. The trial court granted the motion to suppress, and the State appealed.

The record shows that the Duluth Police Department received an anonymous telephone tip from someone in a Waffle House who observed a possible drug transaction involving a white male and a white female in a blue Cadillac at an adjacent gas station. Officer Crispin Henry responded to the call within two minutes. As the officer approached the vehicle, he observed a white male cleaning the car’s windshield and a white female in the passenger seat placing something on the floor of the car. Henry walked up to the man, later identified as Moon, and advised him that he was investigating a possible drug transaction. Without being asked to do so, Moon gave Henry his driver’s license and vehicle registration. Henry asked Moon if he would consent to a search of the car, Moon refused, and Henry placed Moon in his patrol car. Officer Henry then went to the passenger side and asked the passenger if she would consent to a search of her bag on the floor of the car. She consented to the search, stepped out of the car, and emptied her bag onto the hood of the car. The bag contained suspected cocaine and marijuana, and Henry placed the woman under arrest. Henry then looked inside the car and spotted a black shaving bag in the middle of the front seat in which he discovered additional drugs and paraphernalia. Moon was then arrested.

The State contends the trial court erred in granting Moon’s motion to suppress because Officer Henry was acting upon a reasonable, articulable suspicion that Moon and his passenger were engaged in illegal activities.

In order “for an anonymous telephone tip to provide a basis for articulable suspicion for police to make an investigatory stop [cit.], the tip must provide some basis for predicting the future behavior of the subject of suspicion.” Johnson v. State, 197 Ga. App. 538, 539 (398 SE2d 826) (1990). The State concedes that the tip in the instant case failed to predict future behavior and that the information reported was relatively minimal. Nonetheless, it contends Officer Henry had articulable suspicion because the tipster accurately described the make and color of the Cadillac and its occupants and Officer Henry observed certain suspicious conduct by Moon and his passenger — that the passenger placed something on the floorboard and Moon handed Henry his license and registration before Henry requested it.

“This court is bound to review a trial court’s ruling on a motion to suppress most favorably to uphold its findings and will not disturb its findings unless clearly erroneous. [Cits.]” Bowen v. State, 210 Ga. App. 348, 350 (1) (436 SE2d 76) (1993). Viewing the evidence in this light, we find no error.

Neither the anonymous tip nor the conduct observed by Officer Henry would “ ‘warrant a man of reasonable caution in the belief that a stop was appropriate.’ [Cit.]” Johnson, supra at 539. Just as we found in Johnson, in the instant case, “the description of [Moon] was general and completely lacking in detail. The tip made no prediction about future behavior by which its reliability could be tested. The tip alone ‘provided virtually nothing from which one might conclude that the caller is either honest or his information reliable. . . .’” Id. The tip also failed to reveal any details about the alleged illegal activity. Id. “Although the tip certainly warranted police investigation, further observation and corroboration [were] required before a forcible stop was authorized.” Id. at 539-540. See also Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992). Accordingly, the trial court did not err in granting the motion to suppress.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.

Decided July 11, 1995.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellant.

Fletcher W. Griffin III, for appellee.


author: Andrews, Judge. Beasley, Chief Judge, McMurray, Presiding Judge,

text:
    A95A0268.
    ALPHARETTA, OLD MILTON COUNTY, GEORGIA HISTORICAL & GENEALOGICAL SOCIETY, INC. v. DOWDA.
    (459 SE2d 443)
   Andrews, Judge.

Alpharetta, Old Milton County, Georgia Historical & Genealogical Society, Inc. (the Society), appeals from the denial of its motion for new trial. The sole enumeration of error is that the court erred in not giving a jury charge on the defense of fraud to Dowda’s contract claim.

Dowda, d/b/a Dowda Enterprises, was a house mover. In 1989, he was contacted to move an old farmhouse (the Mansell house) by McLeash. McLeash, however, was unable to put together financing for his project, and this deal fell through. Dowda had already set the rigging on the Mansell house in anticipation of moving it before McLeash’s financing fell through. Thereafter, Dr. West contacted Dowda about the Mansell house and indicated the Society wanted it, but it needed to be moved to avoid impending demolition by Herman Miller, Inc., the developer of the land it was on.

Dowda prepared a presentation and went to a Society meeting where he explained his plan to move the house. On March 26, 1990, Blanton, Dowda’s attorney, faxed to Wall, the Society’s attorney, Dowda’s form house moving contract. On April 2, 1990, Wall mailed Blanton a proposed revised contract, bearing the signatures of the Society’s directors. Included with the proposed contract was the Society’s check for $9,500 to be released to Dowda upon his moving the house from the Miller property next door to another lot where it was to be temporarily stored until moved to Alpharetta. Because Wall’s version did not reflect Dowda and Blanton’s understanding of the terms, Blanton prepared another proposed contract and sent it to Wall on April 16, 1990, also stating that since the house had been moved next door by Dowda on April 9, he had released the $9,500 to Dowda.

Although a number of terms in the different proposals differ, all of the versions tendered at trial reflected a total price for the move to Alpharetta of $28,500. Dowda was unequivocal in his testimony that he and the Society were in agreement about what the total price for the move would be, including the temporary move, and where the house was to be finally placed. The only matter as to which there was dispute was “the way they were going to pay me and they said they didn’t have the money.” He was to be paid the initial $9,500, as was the industry custom, for putting his equipment on the job and loading the house. Then, after the temporary move, he was to get another $9,500 with the remaining $9,500 payable when the house was placed in its permanent location.

During the negotiations concerning the terms of the written contract, Blanton and Wall discussed Blanton’s proposal to remove the page containing the directors’ signatures from one proposed contract and add it to another. This was agreed to and accomplished as reflected in a letter from Blanton to Wall. Later, Dowda does not dispute that he signed his signature page and likewise attached it to the revision. As he testified, “I added my signature sheet after the other signature sheet was added, in good faith.” According to the Society, this substitution was the basis for its defense of fraud, asserted in an amendment to its answer.

The negotiations between the attorneys and parties continued for two years while the house sat on its temporary support. Eventually, the Society paid another house mover to make the final move to Alpharetta, after obtaining a state grant for the preservation.

Dowda sued, alleging breach of the written contract, breach of an oral contract, and quantum meruit. The jury awarded $9,500 on the breach of oral contract claim. The trial court granted the Society’s motion for directed verdict as to the existence of a valid written contract but allowed the issues of an oral contract and quantum meruit to go to the jury.

1. Although no motion was made by Dowda concerning the purported fraud defense, the court sua sponte stated that the only basis upon which fraud would be available as a defense would be if rescission were at issue, which it was not. Further, the court concluded no evidence of fraud had been admitted and directed that “fraud would not be involved in this case.”

Such a direction of verdict is appropriate when the standard for such a verdict is met, as it was here regarding fraud. Cannon v. Heard, 204 Ga. 891 (52 SE2d 459) (1949); Wade v. Polytech Indus., 202 Ga. App. 18, 25 (5) (413 SE2d 468) (1991); Star Mfg. v. Edenfield, 191 Ga. App. 665, 667 (3) (382 SE2d 706) (1989). We concur with the trial court that there was no evidence of fraud on Dowda’s part regarding the substitution of the signature page.

2. Although there is discussion in the record of the Society’s request to charge regarding unclean hands, the request is not contained in the record and we are unable to determine whether it was an accurate statement of the law or adjusted to the evidence. In any event, since the court concluded no such evidence was present, there was no basis upon which to give any such requested charge and no error in refusing to do so. Valdez v. Power Indus. &c., 215 Ga. App. 444, 447 (3) (451 SE2d 87) (1994).

3. There being no adequate legal basis upon which the Society could have anticipated that the judgment would be reversed, we must conclude that the appeal was for the purpose of delay only. We hereby direct the trial court to enter judgment in favor of Dowda for damages in the amount of ten percent of the judgment awarded, to be entered in the remittitur pursuant to OCGA § 5-6-6. Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274 (3) (441 SE2d 684) (1994).

Judgment affirmed with direction.

Birdsong, P. J., Johnson and Blackburn, JJ., concur. Beasley, C. J., Pope, P. J., Smith and Ruffin, JJ., concur specially. McMurray, P. J., dissents.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment and in the assessment of a penalty as provided by OCGA § 5-6-6, but we need not rule on the direction of a verdict on the fraud defense, as is done in Division 1, because appellant did not enumerate it as error. See Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70); Bryant v. BMC of Ga., 188 Ga. App. 124, 125 (2) (372 SE2d 280) (1988); see also the writer’s dissents in ITT Fin. Svcs. v. Gibson, 188 Ga. App. 188, 190 (372 SE2d 468) (1988); Taylor v. State, 186 Ga. App. 113, 115 (366 SE2d 422) (1988). The only enumeration of error is that the trial court erred in failing to charge the jury on the “defenses” of “fraud and unclean hands.” Not having challenged the direction of a verdict on fraud, which appellant acknowledges the court did at the conclusion of the evidence and before the proposed charges were discussed, that issue is not presented for our resolution.

What is more, it indicates the frivolous nature of the appeal, for it would be useless to reverse the judgment for the refusal to give the jury instruction when the directed verdict stands unassailed and unchanged.

Moreover, appellant did not properly preserve the objection to the refusal to give the requested charge, as it is not in the record as such. OCGA § 5-5-24 (b). Appellant does cite that portion of the trial transcript where it noted its objection to the court “not charging our request on five.” We can, it is true, glean its content. Immediately prior to this objection, when counsel asked the court if “number five” would be given, counsel described it as “That’s the clean hands. That relates to attaching the document to the court pleadings.” The court read aloud what apparently was requested: “Now, clean hands is a defense against a claim in equity.”

Decided July 11, 1995.

Wall & Noonan, W. Alford Wall, Thomas J. Hills, for appellant.

Clifford H. Hardwick, for appellee.

Even if this were regarded a sufficient record basis upon which this Court should rule on the merits of the charge, it certainly does not constitute a charge on fraud. And yet, in this Court, appellant claims the court erred in failing to charge on fraud as well as unclean hands. Such imprecision contributes to the conclusion that the appeal “was taken up for delay only.”

I am authorized to state that Presiding Judge Pope, Judge Smith and Judge Ruffin join in this special concurrence.

McMurray, Presiding Judge,

dissenting.

I, most respectfully, do not agree with the majority that this case should be affirmed. Moreover, I disagree with the majority’s imposition of a penalty against the appellant since the majority concludes appellant made the costly journey to this court “for the purpose of delay only.”

In my view, the judgment in this case should be reversed, and this case returned to the trial court for a new trial as the appellant is entitled to have its defenses considered and passed upon by the jury.

Under the particular facts and circumstances of the case sub judice, the trial court erred in directing that “ ‘fraud would not be involved in this case.’ ”

“Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” OCGA § 23-2-57. “[I]t is peculiarly the province of the jury to pass on these circumstances.” Johnson v. Renfroe & McCrary, 73 Ga. 138. See Wells v. Blitch, 182 Ga. 826 (187 SE 86).

Furthermore, it has not been established that this appeal is wholly frivolous.

This case must be returned to the trial court for a new trial.

       This process entailed disconnecting the house from its foundation, bracing the inner walls, and other preliminary steps to actually lifting the house off the foundation.

       The total judgment included $6,000 in attorney fees, making OCGA § 5-6-35 (a) (6) inapplicable.

       OCGA § 13-5-5; Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (2) (354 SE2d 210) (1987).


author: Birdsong, Presiding Judge.

text:
    A95A0596.
    COX et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (459 SE2d 446)
   Birdsong, Presiding Judge.

Lewis D. Cox and his wife Joanne Cox appeal the trial court’s grant of judgment notwithstanding a mistrial to State Farm in the Coxes’ action on their State Farm homeowner’s policy to recover for structural damage to their home allegedly caused by explosions in the vicinity of their property. At the conclusion of the Coxes’ case, State Farm’s motion for a directed verdict, based upon a provision in the policy excluding coverage for “earth movement,” was denied. The case was submitted to the jury, and when the jury was unable to reach a verdict and a mistrial was granted, State Farm moved for and was granted judgment notwithstanding the mistrial based upon the earth movement exclusion.

The issue in this appeal is whether application of the principle of ejusdem generis to the policy exclusion must limit the exclusion to earth movement resulting from natural causes. We find that it does and reverse. Held:

1. A motion for judgment notwithstanding a mistrial is analogous to a motion for a directed verdict and a motion for judgment notwithstanding the verdict in that the motion can be sustained only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions, demands a particular verdict. When applying this test, the evidence must be construed in favor of the party opposing the motion. Lolmaugh v. T. O. C. Retail, 210 Ga. App. 605, 606 (436 SE2d 708); Hogan v. Pony Express Courier Corp., 195 Ga. App. 592 (394 SE2d 391). As we find the evidence, at best, conflicting on the issue of causation for the earth movement, the issue is whether the exclusion precludes coverage for all earth movement.

2. The State Farm policy insured for accidental direct physical loss to the Coxes’ home except as excluded by the policy. The policy contained these exclusions: “1. We do not insure for any loss to the [covered property] which consists of, or is directly and immediately caused by, one or more of the perils listed . . . below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of . . . settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings. ... 2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these . . . b. Earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion. Earth movement also includes volcanic explosion or lava flow, except as specifically provided [in the policy]. We do insure for any direct loss by fire, explosion other than explosion of a volcano, theft, or breakage of glass or safety glazing materials which are part of the dwelling resulting from earth movement, provided the resulting loss is itself a loss insured.”

The question presented here is whether these exclusions prevent coverage for damage to the Coxes’ dwelling caused by vibrations resulting from explosions in the vicinity of their property. We hold that they do not. The policy plainly covers damages from explosions, and although the policy excludes damages resulting from earth movement, the examples given in the policy all arise from natural causes. “It is a well-recognized rule that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named; unless, of course, there is something to show a wider sense was intended.” (Citation and punctuation omitted.) Ga. Baptist Children’s Homes &c. v. Essex Ins. Co., 207 Ga. App. 346, 348 (427 SE2d 798). Because the items listed in these exclusions are all natural events, the scope of the exclusions is limited to earth movement arising from natural causes. Giving the terms in the policy their literal meaning (United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (355 SE2d 428)), these exclusions do not prohibit coverage for earth movement caused by explosions. Moreover, we do not find that the provision in the excluding coverage for loss that “arises from natural or external forces” shows that a wider sense was intended. Because “external” is not defined in the policy, we must give the word its usual and common meaning. OCGA § 13-2-2 (2). As we have found no definition of the word that means anything other than apart, beyond, exterior or connected to the outside (see Webster’s Third New International Dictionary), we cannot define the word to include a concept of non-natural or man-made forces as State Farm would have us do. Therefore, we must interpret this provision as excluding coverage arising from natural forces from beyond or outside the property. Consequently, even though this policy contains the “natural or external forces” provision that was not present in Peach State Uniform Svc. v. American Ins. Co., 507 F2d 996 (5th Cir. 1975), this addition is not significant.

Accordingly, the grant of the judgment notwithstanding the mistrial must be reversed and the case remanded to the trial court.

Decided July 11, 1995.

Hatcher, Johnson & Meaney, James A. Meaney III, for appellants.

Watson & Dana, Dennis D. Watson, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A0621.
    MOSLEY v. GEORGIA PEACE OFFICER STANDARDS & TRAINING COUNCIL.
    (458 SE2d 503)
    Decided July 11, 1995.

      Bauer & Deitch, George R. Ference, for appellant.

      Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, J. Philip Ferrero, Terry L. Long, Assistant Attorneys General, for appellee.
   Ruffin, Judge.

We granted Vincent Mosley’s application for discretionary appeal of the superior court’s order affirming the decision of the Georgia Peace Officer Standards & Training Council (“POST”) revoking his certification to practice as a peace officer. In his application for discretionary appeal, Mosley asserted that the license revocation action initiated by POST should have been barred by laches because witnesses and evidence have disappeared and memories have faded. However, upon consideration of the entire record, applicable case law and statutory provisions, it does not appear that Mosley was prejudiced or injured by the passage of time. See Black &c. Constr. Co. v. Bolden Contractors, 187 Ga. App. 805 (2a) (371 SE2d 421) (1988). Accordingly, this discretionary appeal is hereby dismissed as having been improvidently granted. See Vulcan Materials Co. v. Upshaw, 197 Ga. App. 604 (399 SE2d 584) (1990).

Appeal dismissed.

Beasley, C. J., and Pope, P. J., concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A0758.
    FLORENCE et al. v. KNIGHT et al.
    (459 SE2d 436)
   Andrews, Judge.

On May 12, 1993, Christy and Ronald Florence filed an action for personal injuries against Knight Development and against Gary and John Knight, individually and as partners of Knight Development. The complaint alleged that in March 1988, the Florences bought their residence, which was constructed by the defendants in August 1986. The complaint stated that though the defendants constructed the residence with the heating and air conditioning unit in the attic, they did not construct a solid flooring surface or passageway from the attic entrance to the HVAC unit. Moreover, they contended, the defendants covered the entire attic floor with “blown” insulation, which concealed the floor. The complaint also, charged that the defendants failed to install an electrical outlet or lighting fixture near the attic entrance. According to the plaintiffs, these design problems constituted a latent construction defect.

The complaint further stated that on May 14, 1991, Christy Florence, while trying to change the heating/air conditioning filter, stepped onto blown insulation and fell through the attic floor. The Florences claimed that the latent defects constituted negligence for which defendants were liable. Moreover, they claimed that the conditions violated the local county building codes and constituted negligence per se. The complaint also contained a count for gross negligence and a count, which was subsequently dismissed, for fraud and concealment.

Defendants/appellees filed a motion for summary judgment, arguing that the Florences had failed to establish a latent construction defect. They argued that the allegedly defective conditions on the property were not hidden and that the five-year period preceding Ms. Florence’s accident had passed without incident despite the fact that Mr. Florence had changed the filter. The defendants also argued that negligence in the context of construction defects is measured by a failure to adhere to the established and accepted standards of professional care in the community and that violation of the building codes did not constitute negligence per se.

With the motion, defendants filed the affidavit of John Perry Knight, which stated that Knight Development was unaware of any construction defects on the property. Knight also avowed that Knight Development sold the property to the Coopers and that no representations regarding the property were made to the Florences. The Florences responded to the motion, including a copy of the property inspection report and applicable sections of the building code which were allegedly violated.

The state court granted the motion, and this appeal followed. In two enumerations of error, the Florences claim that the court erred in granting the motion and in concluding that no factual issues remained. They argue that the attic concealed latent building construction defects of which they were unaware and that these defects were not discoverable in the exercise of ordinary care because of the fact that the “blown” insulation and lack of an electrical outlet made inspection difficult. The Florences also contend that the violations of the building code constituted negligence per se.

We find no merit to these arguments for a number of reasons. First, it defies logic to argue that the lack of an electrical outlet is somehow a latent defect. Similarly, the presence of blown insulation on the attic floor was not, as plaintiffs contend, a signal to plaintiffs regarding the structure of the floor beneath. The fact that the attic was not “defective” is supported by the fact that no incidents had occurred in the attic for five years, although the filter had been changed several times. Moreover, a plaintiff may not recover for injuries caused by building construction defects which were discoverable upon reasonable inspection. See generally Derryberry v. Robinson, 154 Ga. App. 694 (2) (269 SE2d 525) (1980); Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) (1982). Ms. Florence had an obligation to exercise ordinary care for her own safety. Her failure to do so bars this action. See generally Sullivan v. Quise, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993).

Moreover, even assuming arguendo that the construction of the attic was defective, “a seller-builder of homes and other structures is not liable for damages resulting from negligent construction absent fraudulent concealment, not applicable here. [Cit.]” Joel Properties v. Reed, 203 Ga. App. 257, 259 (1) (416 SE2d 570) (1992). This rule would apply even more to this situation in which another party, the Coopers, originally bought the home from the defendants and later sold it to the Florences.

The dissent’s focus on the alleged violation of the local building code does not alter the analysis of this case. See generally Culberson v. Lanier, 216 Ga. App. 686 (1) (455 SE2d 385) (1995). Negligence per se is not liability per se. See generally Biggs v. Long, 212 Ga. App. 195, 199, n. 4 (441 SE2d 677) (1994). “Negligence, it should be remembered, is in itself [only] one of the essential elements prerequisite to a cause of action in a given case.” Platt v. Southern Photo Material Co., 4 Ga. App. 159, 163 (60 SE 1068) (1908). “Even if plaintiff[s] could show that the [lack of a walkway and accessible lighting in the attic] was negligence per se as a violation of the building code, [they] would nevertheless be precluded from recovering because of the equal knowledge rule.” Sullivan v. Quisc, Inc., supra at 116. Here the absence of the element of proximate cause, regardless of any building code infractions, is fatal to the Florences’ claims.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., and Pope, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent as I cannot concur in the majority’s assessment that defendants’ omissions were so benign, and that Christy Florence’s inadvertence so plain, palpable and undisputed that her actions in going to the attic to perform routine home maintenance were (as a matter of law) the sole proximate cause of her fall. Further, it is my view that the majority’s reference to builder’s liability for negligent construction has little (if anything) to do with the viability of the Florences’ claims against defendants. The thrust of the Florences’ complaint is not simply negligent construction, it is that defendants’ failure (either intentionally or otherwise) to build their home within municipally prescribed safety standards was a proximate cause of Christy Florence’s fall, i.e., negligence per se.

“ ‘In determining whether the violation of [a building code standard, as adopted by municipal] ordinance [,] is negligence per se as to a particular person, it is necessary to examine the purpose of the ordinance and decide (1) whether the injured person falls within the class of persons it was intended to protect, and (2) whether the harm complained of was the harm it was intended to guard against. (Cit.)’ Rhodes v. Baker, 116 Ga. App. 157, 160 (2b) (156 SE2d 545) (1967).” Montgomery Ward & Co. v. Cooper, 177 Ga. App. 540, 541 (1) (339 SE2d 755). See McLarty v. Shirley, 122 Ga. App. 786, 787 (2) (178 SE2d 753). In the case sub judice, the local building code standards defendants failed to follow require an unobstructed walkway to any “furnace” located in the attic of a home and accessible lighting within reach of the entrance to the attic. Considering the high likelihood that most “furnaces” require routine maintenance and the fact that most attics are shadowy places which often cast an appearance (at least to the untrained eye) that the ceilings below are strong enough to support great weight, it is obvious that the intended purpose of the building code provisions defendants violated is to protect homeowners such as the Florences against the type of occurrence which forms the basis of the case sub judice. See McLarty v. Shirley, supra at 787 (2). Indeed, I see no reason for Clayton County officials to adopt such specific building standards unless these flooring and lighting requirements were to protect homeowners from the risk of injury while performing routine home maintenance. The only question remaining is whether defendants’ omissions were a proximate cause of the Florences’ damages.

“[W]here the plaintiff relies for recovery on grounds of negligence per se[,] it is ordinarily a jury question as to whether or not [violation of an underlying ordinance, statute or governmental regulation] was the proximate cause of the injury. Lane v. Varner, 89 Ga. App. 47 (2b) (78 SE2d 528).” Buckhead Glass Co. v. Taylor, 226 Ga. 247, 249 (1) (174 SE2d 568). In fact, except in “plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury. [Cits.]” Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810). In the case sub judice, defendants not only failed to provide flooring and lighting as required by the local building code, these omissions were masked under piles of insulation and the cover of darkness. Further, contrary to the perception conveyed in the majority opinion, it is unrefuted that Christy Florence had never before been to the attic of her home to change the heating and air conditioning filter. In fact, there is no indication that Christy Florence was warned of dangers associated with changing the heating and air conditioning filter in her home and there is no proof that she was familiar with the structural frailty of the deceptively strong appearance of the unfloored dormer in her home. It is my view that these circumstances, along with other facts and inferences drawn from the record, raise genuine issues of material fact as to the proximate cause of the Florences’ damages. To say otherwise, not only ignores the venerable common law principle that matters of contributory negligence and proximate cause are almost always for the jury, Wade v. Mitchell, supra at 268 (4), but also fails to acknowledge that the policy behind the “superior knowledge” doctrine does not apply in cases where a third person creates a dangerous condition on the property of another. Girone v. City of Winder, 215 Ga. App. 822, 824 (2) (452 SE2d 794).

Decided June 21, 1995

Reconsideration denied July 12, 1995

Edward J. Bauer, Charles F. Peebles, for appellants.

Swift, Currie, McGhee & Hiers, Sybil C. Hadley, Jonathon E. White, for appellees.

I am authorized to state that Presiding Judge Pope joins in this dissent.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A0579.
    DECKER v. THE STATE.
    (459 SE2d 586)
   Blackburn, Judge.

David Decker was found guilty of failing to yield to a train in violation of OCGA § 40-6-140 (a) (3) and sentenced to pay a $250 fine. This appeal followed entry of judgment and conviction.

1. In his first and third enumerations Decker challenges the sufficiency of the evidence asserting that the trial court erred in refusing to grant his motion for directed verdict of acquittal and that the evidence was insufficient to support his conviction.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

On January 31, 1994, Decker, while operating a tractor-trailer, collided with a train when he traversed a railroad crossing in Way-cross, Georgia, without stopping. At trial, the engineer testified that the train could have been seen from the intersection for 600 to 700 feet; that he blew the train’s horn over the length of that distance; that the train’s single beam headlight was on full-bright and operational; and that Decker swerved left and then right before crossing the tracks. Further, while the traffic light immediately beyond the crossing was green at the time of the accident, Decker testified that he proceeded through the crossing only after looking and seeing neither vehicular traffic nor a train.

OCGA § 40-6-140 (a) (3) imposes “a duty to stop at crossings if the driver could have seen the approaching train regardless of whether or not he did in fact see it. Central of Ga. R. Co. v. Leonard, 49 Ga. App. 689, 701 (176 SE 137).” Atlanta &c. R. Co. v. Armstrong, 138 Ga. App. 577, 578 (227 SE2d 71) (1976). “On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). We conclude that the trial court properly denied Decker’s motion for directed verdict of acquittal, and the jury was authorized under the standard of Jackson, supra, to find the appellant guilty beyond a reasonable doubt of the offense charged.

2. Decker also enumerates as error the trial court’s failure to charge the jury that OCGA § 40-6-140 (a) (3) “puts a duty on the operator of a motor vehicle to look, but it puts no duty on him to listen and no duty to stop unless there is a signaling device or unless the train is ‘plainly visible[,]’” citing Atlantic Coast Line R. Co. v. Hall Livestock Co., 116 Ga. App. 227, 228 (156 SE2d 396) (1967), a civil action.

This enumeration is without merit because Decker agreed to the charge the court indicated it would give as to OCGA § 40-6-140 and which was in fact given. Decker’s charges were not timely given to the court pursuant to Uniform Superior Court Rule 10.3, and the requested charge, while appropriate in the civil action in which it was given, was not adjusted to the facts of this criminal case, as the trial court held. Walker v. State, 213 Ga. App. 407, 413 (444 SE2d 824) (1994).

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the evidence is insufficient to authorize a finding, beyond a reasonable doubt, that the train was “plainly visible” to defendant before he entered the railroad crossing. Specifically, the State’s case is based entirely on circumstantial proof which I do not believe excludes the reasonable hypothesis of defendant’s sole defense, i.e., the train was not “plainly visible” to defendant until he was already on the tracks. In fact, the State’s only eyewitness (the locomotive engineer who admittedly accelerated his train moments before ramming defendant’s tractor-trailer) affirmed on cross-examination “that [the] train . . . was not clearly visible from where [defendant] was ...” until the locomotive was “right near the edge of the crossing.”

At about 10:00 in the evening on January 31, 1994, defendant, while operating a “Freightliner [tractor with] a fifty-three foot trailer,” encountered a railroad crossing on a long bend of track near a business district in the City of Waycross, Georgia. Defendant slowed his rig, but did not observe any mechanical or electrical railroad warning signals. Instead, he observed a “green” traffic light on the other side of the tracks, causing him to proceed through the railroad crossing and over an intersecting road which closely (within a few yards) paralleled the opposite side of the railway. Without stopping, defendant proceeded onto the tracks and immediately encountered a train which was rounding the bend. Despite defendant’s attempts to avoid an encounter, the train struck the rear of the “fifty-three foot trailer.” The locomotive engineer did not see the truck until moments before the collision. In fact, he accelerated the locomotive just “three to four hundred feet . . .” before the collision.

OCGA § 40-6-140 (a) (3) requires the driver of a vehicle to stop within 50 but not less than 15 feet from the nearest rail of a railroad when a train is “plainly visible” and within hazardous proximity to the crossing. See Atlanta &c. R. Co. v. Armstrong, 138 Ga. App. 577 (1), 578 (227 SE2d 71). Of course, the State has the burden of proving, beyond a reasonable doubt, that an approaching train was “plainly visible” from the accused’s perspective (so as to reveal its “hazardous proximity” to the railroad crossing) at the time of the alleged violation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In the case sub judice, there was no direct proof that the advancing train was “plainly visible” from defendant’s perspective just before defendant entered the railroad crossing. Instead, the State presented proof that visibility from the railroad crossing and in the direction of the approaching train (at times other than the time of the collision) was at least 600 and maybe 700 feet and that the area near the railroad crossing was illuminated (on the night of the collision) via indirect lighting from surrounding street lamps and buildings. Under circumstances “ ‘involving [such] wholly circumstantial evidence, the law demands that “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Cit.)’ Howard v. State, 148 Ga. App. 598, 600 (5) (251 SE2d 829) (1979).” Reid v. State, 212 Ga. App. 787, 789 (442 SE2d 852).

In the case sub judice, defendant testified that the only thing he saw (in the direction of the advancing train) before he drove onto the railway were “lights” from nearby buildings and that he did not hear or see the oncoming train until the “cab” of his truck was on the railroad tracks. Further, the engineer of the locomotive that struck defendant’s “tractor-trailer” testified that the train was not equipped with modern lighting; that the only lighting on the train was a fixed headlamp at the front of the locomotive and that the beam of this headlamp was not directed at the point of collision (until the train entered the railroad crossing) due to the bend in the railway. The engineer also affirmed on cross-examination “that [his] train . . . was not clearly visible from where [defendant] was . . .” until the locomotive was “right near the edge of the crossing.” This evidence, unrefuted testimony that there was no direct lighting along the approaches of the railroad crossing and the engineer’s testimony that he began increasing the train’s speed immediately before the collision (300 to 400 feet before reaching the railroad crossing), casts serious doubt upon the State’s circumstantial proof that the train was “plainly visible” from defendant’s perspective at the time he encountered the railroad crossing on the night of the collision. Under these circumstances, I cannot go along with the majority in saying that the evidence is sufficient to authorize defendant’s conviction for violating OCGA § 40-6-140 (a) (3). See McKinney v. State, 204 Ga. App. 323, 324 (1), 325 (419 SE2d 339).

Decided July 12, 1995

E. Kontz Bennett, Jr., for appellant.

Douglas Gibson, Solicitor, Andrew C. Spivey, Assistant Solicitor, for appellee.


author: Beasley, Chief Judge.

text:
    A95A0680.
    HODGES v. THE STATE.
    (460 SE2d 89)
   Beasley, Chief Judge.

James Hodges appeals his judgment of conviction and sentence for possession of cocaine (OCGA § 16-13-30 (a)), after a bench trial at which evidence seized by an officer was admitted over objection. He enumerates as error the denial of his motion to suppress it, contending it was found when he was impermissibly detained and unlawfully searched.

An officer received information relayed to him from a 911 emergency call, some of which information was confirmed by his observation and hearing when he arrived at the designated scene. It was about 5:00 in the morning, when it was still dark. The officer knew the area as a public housing project known for the presence of guns and drugs, and he himself had previously responded to calls involving discharge of weapons and aggravated assaults. The information was that two males were being loud and boisterous in the area of Hull and 13th Streets, and one possessed narcotics. He heard the two males, who were distant from one another, as between the apartment buildings. He could see only one of the men, defendant, who was hollering and screaming across the apartment complex. In conducting his investigation, the officer called defendant to him, to check his identification and to find out why he was there, because no one was supposed to be out there at that time of night; even if it was a resident, the person was required to present a resident card. Defendant’s identification showed a different residence.

In order to assure his personal safety while investigating, the officer conducted a pat-down search, a frisk. He felt down the front of defendant’s pants and around the waistline and asked defendant to turn so he could check the back, doing so because he himself carried his weapon in his back when he was off duty in order to make it less visible. He was not able to actually pat him down in the back because defendant started up, as though to be aggressive or to leave, when the officer tried to place the back of his hand inside the beltline. He described the motion as being like a person tucking a shirt in.

The officer attempted to stop defendant, and another officer who had arrived on the scene helped subdue him and arrested him for obstructing the investigation of the disturbance. When defendant started to “buck up,” the officer’s suspicion was raised to thinking this was the person the caller said had drugs, and possibly a gun. A search of defendant’s pockets, made after the arrest, yielded drug paraphernalia and the drugs for which he was convicted.

As to the environment which the officer entered to investigate the complaint, the court found it to be a high crime, high drug, high violence area, based not only on the officer’s testimony but also on the court’s own experience in many prior cases as well as general community knowledge. The court concluded that the officer had a right to conduct a pat-down to protect himself because of the dangerous nature of the area he was in, the time of day, the fact he was alone, the fact there was another male involved in the disturbance whom he could not see, the confirmation of some of the anonymous information leading to a stronger belief that the other information, concerning drugs, was accurate. Also, the officer understood the men were not supposed to be out there and that defendant was not even a resident of the project, so as to be on his way to or from home there.

The court found that the officer’s actions as described and demonstrated to the court constituted a legitimate pat-down not extending beyond what was necessary to reveal the presence of a weapon by the officer. The Court stated “[It was] a pat-down of the exterior of the pants. And then he wanted to pat down the back belt-line area, and he wanted to draw his hands, his fingertips, as he showed it, under the belt-line area of the waistband of the defendant in order to see if there was anything under the belt-line.” The court found that the officer began to put the end of his fingers up under the beltline, on the exterior of the shirt, to feel if there was a weapon secured under the clothing by the belt. These findings are conclusive because there is evidence to support them. State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

1. The first issue is whether the defendant’s detention was authorized.

“According to the United States Supreme Court there are three levels of encounter between an individual and the police. The first involves the mere accosting by an officer usually requesting name and identification. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. The second is the ‘Terry type’ (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)) stop involving temporary restraint, a brief ‘seizure’ which must be supported by articulable suspicion. The third is an actual or de facto arrest. . . . [Cit.]” Exposito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412) (1989).

We find that the officer’s initial encounter with Hodges was justified as one of the “first type which needed no basis but was sustained by routine police work investigating [the 911 call and] possible . . . violations [of the housing authority’s curfew].” Id.

2. The second issue involves the frisks. We agree with the State that the officer was entitled to conduct a pat-down for weapons.

Under Terry, “a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. [Cit.]” Ybarra v. Illinois, 444 U. S. 85, 93 (100 SC 338, 62 LE2d 238) (1979). “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked. . . .” Id. at 93-94. “Before [an officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U. S. 40, 64 (88 SC 1889, 20 LE2d 917) (1968).

The Supreme Court reiterated in Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972), what it recognized in Terry, supra, “that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. . . . The purpose of this limited search is ... to allow the officer to pursue his investigation without fear of violence. ... So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.” Adams, supra at 146. The question is whether “a reasonably prudent man in the circumstances would be warranted in the belief that his safety . . . was in danger.” Terry, supra at 27. He is justified if, from the circumstances, he “reasonably inferred that the individual was armed and dangerous.” Sibron, supra at 64.

The trial court, as factfinder who observed the defendant and the officer and watched the officer’s demonstration of what he did, did not err as a matter of law in concluding that the circumstances in which the officer found himself in this case justified the belief that he was at risk, based on the suspicion that Hodges, who did not belong out in this high violence, high drug housing project at 5:00 a.m. at all and who was hollering to another unseen male, had a weapon. This is the test, as explained in Ybarra, supra.

Decided July 12, 1995

William F. Sparks, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

The final issue is whether the officer was justified in putting his fingers where he did, or whether this exceeded the limits of a frisk and constituted a search without probable cause.

Considering all the circumstances, as we must, we do not conclude that the actions of the officer exceeded the scope of the limited protective search or pat-down or frisk authorized for weapons in this instance. The protective measures taken were reasonable under the circumstances. Not all weapons or other instruments capable of inflicting harm and of being carried at one’s back, stuck in a readily retrievable but concealed spot, are detectible from touching a belt around a waist and the exterior of the clothing in the belt’s vicinity.

Judgment affirmed.

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