author: Smith, Judge.

text:
    A96A0092.
    DeCASTRO v. THE STATE.
    (470 SE2d 748)
   Smith, Judge.

Victor Fidel DeCastro was indicted by a DeKalb County grand jury on four counts of molesting his thirteen-year-old stepdaughter. A jury found him guilty of three of the four counts, and he appeals from the judgment of conviction and sentence.

DeCastro’s three enumerations of error present a single issue: whether it was improper to require him to choose between the admission of a “mug shot” taken at the time of his arrest and the admission of a Polaroid photograph taken in the hallway of the sheriff’s department. He contends the photographs had no probative value and their prejudicial effect on the jury therefore clearly outweighed any basis for admission. Both photographs show him wearing disheveled attire, an unkempt beard, and a “dreadlocks” hairstyle. At some time during the 16 months intervening between his arrest and trial, he shaved off the beard and hair. At trial, he was clean-shaven and bald.

The photographs generated a lengthy colloquy between the trial court and counsel regarding their potential for prejudicial effect on the jury. The trial court noted that “in this picture [the mug shot] there is something suggestive and sinister about it and it has to do with — at least in some folks’ minds it has to do with the hairstyle,” and expressed concern that “the idea behind submitting that photograph is for the prejudicial value.” The prosecutor acknowledged that the photograph made DeCastro appear “ominous.” With respect to the Polaroid photograph, the trial court observed that the dreadlocks were even more prominent than in the first photograph, and that it gave DeCastro “a wiry, wild look.”

Defense counsel, concerned that the dreadlocks hairstyle would prejudice the jury because of its association with a religion or lifestyle that some might find offensive, chose the “mug shot,” with the understanding that “as long as the record reflects that I object to both of them . . . they are both bad, judge, and they just don’t prove anything.” The prosecutor did not publish the photograph during the trial, but displayed it to the jury for the first time at the conclusion of the State’s closing argument, saying, “His appearance before you today is a deception, just like all the other deceptions that he wants you to believe. When you go into the jury room, take a look at how he appeared ... to that child when he forced himself upon her.”

The rule in Georgia is well-established that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. However, such considerations are appropriately committed to the trial court’s sound exercise of discretion. . . .” (Citations and punctuation omitted.) Bell v. State, 203 Ga. App. 109, 110-111 (3) (416 SE2d 344) (1992). As noted in Bell, however, the evidence must be relevant to some issue being tried. We conclude that these photographs were irrelevant to any issue in the case, and therefore we must reverse.

The State provided three reasons for the relevance of the photographs. First, it contended they were relevant to show what DeCastro looked like at the time of the offense, to explain the victim’s fear of him. Although the trial court had rejected this basis, the State relied upon it in closing argument to the jury. The second argument was that the defendant had “cleaned up his act big time” and the jury was entitled to know that. The State’s final argument was that all circumstances surrounding an arrest are relevant for whatever value the jury may wish to place on them.

1. Addressing the State’s final argument first, “ ‘[s]urrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. (Cit.) Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae. ... In addition, all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. (Cits.)’ Fuqua v. State, 183 Ga. App. 414, 419-420 (1c) (359 SE2d 165) (1987).” Dean v. State, 211 Ga. App. 28, 31-32 (438 SE2d 380) (1993). “The facts and circumstances surrounding the arrest of a defendant have been held to be relevant and admissible during the trial of a criminal case. Since the statement explained the circumstances of the arrest it would meet the original evidence requirements of OCGA § 24-3-2.” (Citations and punctuation omitted.) Ivester v. State, 252 Ga. 333, 335 (2) (313 SE2d 674) (1984). Ivester, however, makes abundantly clear that the evidence must be otherwise relevant: “the conduct must involve matters concerning which the truth must be found (i.e. are relevant to the issues on trial).” (Citations and punctuation omitted.) Id. Moreover, this “does not overcome other objections such as impermissibly placing character in evidence.” Id.

Many, though not all, of the decisions admitting evidence of the circumstances of arrest involve the “res gestae,” where the arrest was “contemporaneous” or closely related in time to the offense and bore a “logical relation” to the offense. Terrell v. State, 138 Ga. App. 74 (1) (225 SE2d 470) (1976). See, e.g., Perry v. State, 214 Ga. App. 444 (448 SE2d 74) (1994) (officers arrested Perry shortly after observing his sale of drugs; their testimony that he “appeared to be in charge” of the sale admissible as part of the circumstances of arrest); Dean v. State, supra (defendant arrested immediately after commission of offense; similar transaction discovered through defendant’s incriminating statement made after arrest admitted as continuation of main offense and part of res gestae); Kirk v. State, 210 Ga. App. 440, 443 (436 SE2d 553) (1993) (arrest occurred within 45 minutes of offense and at end of pursuit which began “a short time” after offense, id. at 441); Fuqua v. State, supra (arrest occurred as Fuqua left “monitored” motel room shortly after commission of drug offense).

Since DeCastro was not arrested until more than a week after the underlying offense, a single incident, occurred, and the arrest was not logically related in time or circumstances to the offense, the “res gestae” rule does not apply. See Allen v. State, 174 Ga. App. 206, 207-208 (329 SE2d 586) (1985) (victim’s statements “some three days” or more after incident not part of res gestae); Scott v. State, 131 Ga. App. 655, 656 (1) (206 SE2d 558) (1974) (victim’s description of alleged crime to police officer three days after the occurrence not part of res gestae); Racquemore v. State, 204 Ga. App. 88, 89 (418 SE2d 448) (1992) (defendant’s statement made after he abandoned shoplifting attempt and entered store office for interview not part of res gestae).

Likewise, in decisions allowing the admission of “mug shots” the photographs typically were taken during an arrest at or near the time of the offense to show some circumstance relevant to the offense. For example, in Mattarochia v. State, 200 Ga. App. 681, 684 (4) (409 SE2d 546) (1991), the photograph showed intoxication still apparent at the time of an arrest for driving under the influence. No such issue is presented here. Neither are the photographs incriminating items found in defendant’s possession upon arrest, Gonzalez v. State, 213 Ga. App. 667, 668-669 (2) (445 SE2d 769) (1994), nor spontaneous statements made by the defendant at the time of arrest, Ellerbee v. State, 215 Ga. App. 102, 106 (8) (449 SE2d 874) (1994), but photographs taken by the police.

This case also does not involve any question of identity, thus distinguishing it from those cases where a booking photograph is admissible to show that the defendant’s appearance at the time of the crime matched an earlier description given by the victim, although his appearance had changed at the time of trial. See, e.g., Duckworth v. State, 246 Ga. 631, 635 (6) (272 SE2d 332) (1980) (photograph “crucial to the state’s proof”); O’Toole v. State, 258 Ga. 614, 615-616 (2) (373 SE2d 12) (1988) (photograph relevant to identify defendant whose appearance had changed since the crime).

None of these circumstances is present here: the officers discovered no relevant items or physical condition to be memorialized; identity was not an issue; and the arrest was not part of the res gestae of the offense. While the rule allowing the admission of circumstances surrounding an arrest has been steadily extended, these photographs do not meet any of the criteria established in prior decisions.

2. Despite the State’s argument that the jury was entitled to know how DeCastro appeared to the victim at the time of the offense, the photographs were not relevant to that issue, as they were taken some time after the offense. No testimony was elicited from any witness regarding DeCastro’s appearance at the time of the offense or whether it had changed at any time during the seven years he had lived with the victim. Moreover, the State presented no evidence from any witness that DeCastro’s appearance frightened or intimidated the victim. As the trial court correctly noted, this contention has no merit.

3. The State’s remaining argument for the admission of the photograph is the one the State employed in closing argument: that DeCastro has used “a series of deceptions” and is “cleaning up his act,” and that “his appearance before [the jury] is a deception, just like all the other deceptions that he wants you to believe.” This argument comes perilously close to introducing DeCastro’s character into evidence without his having “opened the door” to such testimony, see OCGA § 24-2-2 and annotations thereto, and DeCastro challenges it on that basis. While correctly noting that evidence does not become inadmissible merely because it may incidentally introduce the accused’s character or reputation, the State also acknowledges the evidence must first be “relevant and material to an issue in a criminal case.”

While we do not list exhaustively every possibility, a defendant’s appearance might become relevant and material through testimony that his appearance was frightening or intimidating, particularly if that is an element of the offense charged. See, e.g., Daniels v. State, 264 Ga. 460 (448 SE2d 185) (1994) (the Anti-Mask Act); Jackson v. State, 205 Ga. App. 827, 828 (1) (b) (424 SE2d 6) (1992) (reckless conduct); OCGA § 16-8-40 (a) (2) (robbery by intimidation). A defendant’s appearance or personal habits might also be relevant to motive or bent of mind in the commission of certain offenses. See, e.g., Wood v. State, 255 Ga. 697, 698 (4) (341 SE2d 442) (1986) (photographs of defendant wearing and displaying Nazi regalia relevant to motive and bent of mind in murder of Jewish victim). As noted above, circumstances of an arrest would also be relevant if probative of some aspect of the offense such as identity or a part of the res gestae. In all these cases, the trial court properly could exercise its sound discretion to conclude that the probative value of the evidence outweighed the danger of prejudice. See Bell v. State, supra, 203 Ga. App. at 110-111 (3).

Contrary to the State’s argument here, whether DeCastro acquired a suit, a shave, or a haircut before appearing at trial is irrelevant to any issue in this case. It is not part of the res gestae and does not explain a party’s or witness’s conduct. It does not show identity, an element of the offense, bent of mind, or any of the other possibilities of potential relevance we have considered. The photograph was “not material to or admissible on the issue of motive, intent and course of conduct,” nor was it admissible “for the purpose of explaining the circumstances surrounding the crime.” Racquemore v. State, supra, 204 Ga. App. at 89.

Decided March 29, 1996.

The scope of closing argument is broad, and counsel certainly may rely on otherwise relevant, probative, and admissible evidence to argue that a party is not being truthful or is otherwise attempting to deceive the jury. Crowe v. State, 265 Ga. 582, 593 (18) (e) (458 SE2d 799) (1995). Once evidence is properly admitted, the State may use it as a basis from which to draw inferences or make deductions within the broad scope of closing argument. Green v. State, 209 Ga. App. 274, 275 (4) (433 SE2d 383) (1993). The photograph here, however, was relevant to no disputed issue and appears to have been displayed to the jury for the sole purpose of contrasting DeCastro’s “ominous” but non-probative physical appearance at an irrelevant past time with his dress and demeanor at trial, in order to draw the inference of a deceitful character. Under these circumstances, the potential dangers of unfair prejudice, confusion, and misleading of the jury are counterbalanced by no probative value whatever. We must conclude the trial court abused its discretion in admitting this evidence.

Finally, we do not conclude this error was harmless. The evidence was not overwhelming in support of the jury’s verdict. No physical evidence was presented; the State’s case consisted of the victim’s testimony and the testimony of a teacher, a friend, a physician, a DFACS worker and law enforcement personnel repeating the victim’s statements to them. DeCastro presented the testimony of several family members, including positive testimony that DeCastro did not enter the room where the victim stated the offense took place. He also pointed to inconsistencies in the victim’s story and to the victim’s pretrial, tape-recorded recantation, which she made in an unannounced appearance at his attorney’s office. DeCastro presented testimony that the victim falsely accused him because he refused to buy some shoes for her or because she sought to “spark an argument” between him and her mother. The jury deliberated for some time, and an Allen charge was given before a verdict was returned. Under these circumstances, we cannot conclude that the admission of the photograph did not affect the jury’s verdict.

Judgment reversed.

Pope, P. J., concurs. Andrews, J., concurs in the judgment only.

Mark J. Radish, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Conners, Robert M. Coker, Assistant District Attorneys, for appellee.

       DeCastro, however, did not object to this portion of the State’s closing argument, and we do not consider this as a ground for reversal. Rather, it demonstrates the basis on which the State urged admission of this evidence.

       Contrary to the State’s contention that identity in O’Toole was not an issue because the defendant claimed self-defense, the change in the defendant’s appearance remained relevant to corroborate witnesses who testified regarding the defendant’s earlier threats against the victim.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A95A0411.
    In the Interest of R. D. F., a child.
    (470 SE2d 818)
    Decided April 1, 1996.

      Lewis R. Slaton, District Attorney, Carl P. Greenberg, Bradley J. Boyd, Assistant District Attorneys, for appellant.

      Wilma E. Espy, for appellee.
   Andrews, Judge.

In In the Interest of R. D. F., 216 Ga. App. 563 (455 SE2d 77) (1995) , we affirmed the juvenile court’s dismissal of the delinquency petition. In In the Interest of R. D. F., 266 Ga. 294 (466 SE2d 572) (1996) , the Supreme Court reversed the judgment of this Court. Accordingly, our original judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the juvenile court’s judgment dismissing the delinquency petition is reversed.

Judgment reversed.

McMurray, R J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A96A0511.
    KNIGHT v. THE STATE.
    (470 SE2d 486)
   Johnson, Judge.

Gus Knight was convicted of selling cocaine. The trial judge sentenced Knight to the maximum term of 30 years imprisonment as authorized by OCGA § 16-13-30 (d). Knight appeals, arguing that the judge failed to exercise his discretion to probate part of the sentence and failed to give Knight an opportunity to present mitigating evidence as to why part of the sentence should be probated. These arguments are not supported by the record.

The trial transcript shows that after the jury returned its guilty verdict, the judge said he would hear any evidence in mitigation or aggravation of punishment. Rather than offering mitigating evidence as requested by the judge, Knight asked that the jury be polled, and the court granted that request. After the jury was polled, the State introduced evidence of Knight’s two prior felony convictions of theft by taking and burglary. At that point, Knight introduced no evidence and made no argument in mitigation of the sentence. The judge ruled that he must impose the full thirty-year sentence because Knight is a felony recidivist. Knight then asked the court to consider probating part of the sentence. The judge responded: “The Court will give that some consideration, but that’s what the law says.” The judge then informed Knight of his appeal rights, after which Knight again asked the court to consider probating part of the sentence. The judge stated: ‘Well, you gentlemen give that some consideration and get back to me on it if you care to.” There is no evidence in the record that Knight thereafter presented any proof or argument to the court that his sentence should be partially probated.

OCGA § 17-10-7 (a) provides that “any person convicted of a felony offense in this state . . . and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.” In the instant case, because Knight had two prior felony convictions, the trial court was required to sentence Knight to undergo the full thirty-year period prescribed for punishment of selling cocaine. Moreover, nothing in the record indicates that the judge did not exercise his discretion in considering whether to probate a portion of that maximum sentence. On the contrary, the transcript demonstrates that the judge asked Knight if he had any evidence in mitigation of the sentence and the judge said he would consider probating part of the sentence.

Decided April 1, 1996.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

“Knowing that it was required to impose the maximum sentence, the trial court obviously would not have inquired about mitigating evidence unless it was prepared to consider that evidence in connection with probation or suspension of the maximum sentence. It is only where the trial court has a legal discretion to exercise but fails to do so, instead resting the decision upon an erroneous point of law, that reversal must follow. In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing appellant’s sentence.” (Citations, punctuation and emphasis omitted.) Cox v. State, 205 Ga. App. 375, 376 (2) (422 SE2d 68) (1992). Because Knight has made no affirmative showing that the trial court failed to exercise its discretion or to give Knight a chance to present evidence in mitigation of the sentence, we must uphold the sentence. See Wallace v. State, 216 Ga. App. 718, 720-721 (5) (455 SE2d 615) (1995).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A96A0501.
    UNDERWOOD v. THE STATE.
    (470 SE2d 699)
   Blackburn, Judge.

Charlie Underwood appeals his conviction for burglarizing a house that formerly belonged to his father.

1. Underwood contends that the trial court erred in failing to direct a verdict on the burglary count as there was insufficient evidence that he actually entered the house. Viewing the evidence in the light most favorable to the verdict, in 1994 Underwood’s father was convicted of a drug crime, and in January 1995, several months prior to the burglary, the house was forfeited to the State pursuant to OCGA § 16-13-49. The order permitting the forfeiture gave Underwood’s father 30 days to make arrangements with the Sheriff of Meriwether County for the removal of all personal property in the house. After the forfeiture, Underwood was instructed not to go into his father’s former residence, and the locks securing the house were changed.

On April 30, 1995, a man who lived next door to the house saw Underwood and another man drive a white truck next to the house. The neighbor called the authorities to report the incident. At the same time, another neighbor who lived across the street also saw two men pull into the driveway. While at the house, she witnessed the two men load the white truck they were driving with a mattress and an air conditioner. Both neighbors testified that the two men hurriedly left the residence when a sheriff’s vehicle came into view. Underwood’s former boss testified that on the day in question, pursuant to Underwood’s request, he loaned Underwood a truck that met the description later provided by the two neighbors.

Agent Nash of the Coweta Judicial Circuit Drug Task Force arrived at the residence shortly after the incident was reported. He found the door closest to the carport standing open and signs of forced entry at a back window. All utilities to the house had been shut off, and water running from the hot water tank to the floor indicated that someone had recently been in the house. Agent Nash testified that various items were missing from the home, including a bed and a refrigerator. The refrigerator required two men to lift.

During the trial, Underwood testified that he went to the above residence on the date in question to check the mail. He found the door to the residence unlocked and sent the man who was accompanying him to check the inside of the house. Meanwhile Underwood looked around the outside yard. According to Underwood, his companion who was named “Chris” left the house with a bed that he loaded on the truck and then made a second trip inside the house whereupon he retrieved an air conditioner which Underwood helped load on the truck.

“To warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else. Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law. Even when the defendant is the sole eyewitness, the defendant’s explanation may be rejected by the jury where that explanation is inconsistent with other direct and circumstantial evidence.” (Citations and punctuation omitted.) Morris v. State, 202 Ga. App. 673, 674 (415 SE2d 485) (1992). In light of the above, we find the trial court did not err in failing to direct a verdict. See Tiller v. State, 218 Ga. App. 418, 419 (461 SE2d 572) (1995) (“A directed verdict is proper only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law”).

2. Underwood contends that his conviction should be reversed as the State failed to prove that the items inside the house were of any value such that Underwood may have had the intent to steal. It is not necessary to prove the exact value of the personal property found within the house in order for the burglary conviction to stand. Carroll v. State, 185 Ga. App. 857, 859 (366 SE2d 232) (1988). Rather, the State must offer evidence “ ‘sufficient to authorize a finding that such personalty had some value’ ” such that the jury can reasonably infer the intent to steal. Id. The testimony that the house contained furniture and appliances as well as the evidence that Underwood made special arrangements to drive a truck on the day in question would permit a jury to infer that Underwood had the intent to steal.

3. In his final enumeration of error, Underwood asserts that the intent to commit a felony or theft is a required element of a burglary and, because one cannot steal from one’s self, he lacked the requisite intent necessary for a burglary conviction. In particular, Underwood contends that all items remaining in the house belonged to him. These items, Underwood argues, were not specifically listed in the forfeiture petition as required by OCGA § 16-13-49 (o) (1), and thus were not forfeited to the State. See State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993) (civil forfeiture statute must be strictly construed). Thus, pursuant to the evidence, Underwood asserts that the most he would be guilty of was criminal trespass, not burglary.

In essence, Underwood asks us to find, as a matter of law, that the State had no ownership interest in the personal property found within the house. This we cannot do. Pretermitting the issue of whether the forfeiture of a residence extends to all items of personal property found within that residence is the evidence of abandonment. The order permitting the forfeiture provides: “[Underwood’s father] shall have thirty days to make arrangements with the Sheriff ... to remove all personal items now located within the residence and the property.” The evidence reflects that Underwood was aware of the forfeiture order and actively helped his father defend against it. The evidence also reflects that the majority of personal items found in the house were removed before the 30 days lapsed. Thus, the record would support a finding that the personal property located within the house on the date of the burglary was abandoned to the State. See Arlington Cemetery Corp. v. Bindig, 212 Ga. 698, 704 (95 SE2d 378) (1956) (abandonment of a property interest is a mixed question of law and fact, and the intent to abandon is “ ‘inferable from the acts of the parties, interpreted in the light of all the surroundings’ ”). We find the evidence sufficient to permit the jury’s inference that Underwood had the intent to steal.

Moreover, we disagree with Underwood’s contention that, at most, he should have been found guilty of criminal trespass. First, we note that Underwood did not require that the jury be instructed on the lesser included crime of criminal trespass, and even if he had, such a charge would not be merited. In previous burglary cases where the defendant has denied entering the burglarized premises, we have held that trespass instructions are not appropriate. Wyley v. State, 169 Ga. App. 106, 109 (311 SE2d 530) (1983); Johnson v. State, 164 Ga. App. 429, 430 (296 SE2d 775) (1982). We reasoned that the jury had the choice either to convict the defendant of burglary if it believed the State’s evidence or to acquit the defendant if the State did not meet its burden; however, the jury would not be permitted the compromise choice of disbelieving the defendant and “return[ing] a verdict of guilty on the lesser offense of criminal trespass, differing from burglary only in criminal intent.” Wyley, supra; compare Hambrick v. State, 190 Ga. App. 119 (378 SE2d 340) (1989) (charge on criminal trespass permitted where defendant admitted entering premises but asserted his intent was to scavenge for food and to get warm, not to steal).

Decided March 12, 1996

Reconsideration denied April 2, 1996.

Knight, Stemberger & Gomez, Mark A. Gomez, for appellant.

Peter J. Skandalakis, District Attorney, David S. McLaughlin, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A96A0265.
    FLOURNOY v. THE STATE.
    (470 SE2d 488)
   Birdsong, Presiding Judge.

John Flournoy, Jr., appeals his conviction for possession of cocaine with intent to distribute. Police on patrol in Moultrie, Georgia saw Flournoy and a woman standing behind a house engaged in what appeared to be a drug sale. As officers approached the house, one officer saw appellant throw down a brown pill bottle with a white cap. The bottle contained 46 rocks of crack cocaine weighing 5.6 grams. When Flournoy was taken into custody, he had $89 in his possession. Notice was given of the State’s intent to introduce evidence of similar transactions, and prior to trial the trial court determined two such transactions were admissible. In opening argument, the State’s attorney stated: KWe expect the other evidence to be presented that this isn’t the first time Mr. Flournoy was caught in that same area with the same, under the same circumstances.” Appellant’s counsel immediately objected and moved for a mistrial, which was denied. No curative instructions were given. Later, appellant’s counsel again objected to the evidence but did not specifically renew his motion for mistrial.

On appeal, appellant contends the State’s argument improperly placed appellant’s character in evidence prior to the admission of evidence of similar offenses to the jury, and that on this basis his motion for mistrial should have been granted. Held:

1. Once the three affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) have been met, evidence of similar transactions is admissible even though the defendant’s character is incidentally placed in evidence thereby (Obiozor v. State, 213 Ga. App. 523, 525 (3) (a) (445 SE2d 553); see Boyce v. State, 258 Ga. 171 (366 SE2d 684)), for the evidence then becomes material and admissible to prove the offense charged in the same manner as does other circumstantial evidence. “[M]aterial evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue.” Obiozor, supra; Greer v. State, 199 Ga. App. 106, 107 (403 SE2d 825).

Even assuming appellant properly preserved his motion for mistrial for appellate review (see State v. Willis, 218 Ga. App. 402, 404 (461 SE2d 576)), he cites no authority for his contention that a prosecutor may not refer in opening statement to similar transaction evidence which has already been ruled admissible. A prosecuting attorney in an opening statement may state what he expects in good faith the evidence will show during trial of the case. Burroughs v. State, 186 Ga. App. 40, 43 (366 SE2d 378). In Burroughs, the evidence referred to by the prosecuting attorney in opening statement was similar transaction evidence which the trial court had not yet ruled admissible but appellant was on notice that the State intended to introduce it as similar transaction evidence, and it was admissible as part of the res gestae. It was thus held that the prosecutor’s opening remarks as to that evidence did not constitute error.

In this case, the trial court had previously and properly ruled the similar transaction evidence to be admissible. Once such evidence is properly ruled admissible, it cannot be argued that the evidence improperly places appellant’s character in evidence, for the determination has already been made that it is admissible because its materiality outweighs any prejudice it may cause. Obiozor, supra at 526. The State’s reference to such evidence in opening statement does not improperly place appellant’s character in evidence before trial, for it does not improperly place appellant’s character in evidence at all.

2. We have reviewed the evidence, and we find it sufficient to enable a reasonable trier of fact to find appellant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs in judgment only.

Decided April 2, 1996.

James M. Bivins, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, A. Scott Gunn, Assistant District Attorneys, for appellee.


text:
    A96A0316.
    WILLIAMS v. THE STATE.
    (470 SE2d 489)
   Birdsong, Presiding Judge.

Richard Williams appeals the 20-year sentence imposed upon him after he was convicted of sale of cocaine. He contends the trial court erred by imposing the sentence under a mechanical sentencing formula.

The transcript shows that after the jury found Williams guilty, a sentencing hearing was conducted and no evidence either in aggravation or mitigation was introduced. The prosecution waived its argument on sentencing and Williams’ trial defense counsel argued that as this was Williams’ first conviction, the trial court should be as lenient as possible in passing sentence.

Apparently in response to this argument, the trial court advised Williams that a first conviction of sale of cocaine was a serious matter and that a second conviction was even more serious because the legislature made imposition of a life sentence mandatory upon a second conviction of sale of cocaine. The trial court stated that in the past the trial court had been lenient in sentencing those convicted for a first time sale of cocaine. Because so many first offenders were being again convicted of sale of cocaine and were receiving the mandatory life sentence, however, the trial court decided that a more severe sentence for the first offense was warranted. The trial court’s hope was that persons convicted and sentenced for their first offense of sale of cocaine would then realize the seriousness of their offense and the very serious consequences facing them upon their second conviction and would conform their conduct to the law and avoid the second offense. The trial court then imposed a 20-year sentence.

Williams contends on appeal that these comments show that he was sentenced pursuant to a mechanical sentencing policy. Held:

In Cottingham v. State, 206 Ga. App. 197, 199 (424 SE2d 794), this Court held “a trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” In this case, however, we do not find that the trial court employed a mechanical sentencing formula or policy. Here, the trial court’s comments do not show an inflexible policy or formula that would require imposition of a particular kind of punishment for a particular offense (see Walton v. State, 217 Ga. App. 11, 13 (456 SE2d 289)) or the rejection of an available sentencing option. See Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136). In effect, the trial court said that it would not be as-lenient in this case as it had been in the past because the trial court had attempted that and it had failed. Nothing in the trial court’s comments, however, can be interpreted as saying that it would invariably impose a 20-year sentence for all first convictions of sale of cocaine regardless of the evidence presented in mitigation.

Decided April 2, 1996.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Accordingly, we do not find that the trial court employed a fixed policy or sentence in imposing the sentence in this case. See Stinnett v. State, 214 Ga. App. 224 (447 SE2d 165).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A0120.
    TAYLOR et al. v. N. I. L., INC.
    (470 SE2d 491)
   Andrews, Judge.

After Ronald Steed was killed in an automobile accident, Taylor, the administratrix of Steed’s estate, and Steed’s parents sued N. I. L., Inc. (NIL), which did business as the Pic-Pac Package Store, claiming NIL is liable for Steed’s death under the provisions of OCGA § 51-1-40. The plaintiffs alleged that Steed was a passenger in a car driven by David Telenko, age 20 at the time of the accident, and that the fatal accident occurred because Telenko was driving while intoxicated from consuming alcoholic beverages sold or furnished to Telenko by the NIL package store knowing that he was not of lawful drinking age and that he would soon be driving a motor vehicle. The plaintiffs appeal from the trial court’s grant of summary judgment in favor of NIL.

The evidence, construed in favor of the plaintiffs as respondents to the motion for summary judgment, showed the following: It is undisputed that Telenko was 20 years old and therefore not of lawful drinking age on the date of the automobile accident. Telenko deposed that, a few hours prior to the accident, he drove to a friend’s house where Steed and others were present. Earlier in the day, Steed and a friend, neither of whom was of lawful drinking age, had driven to the NIL package store and purchased a case and a half of beer without showing any identification to verify their age. When Telenko arrived, Steed and others at the house were drinking the beer purchased from NIL. There was evidence that Telenko drank some of the beer purchased from NIL by Steed and his friend, drank three beers he purchased from another convenience store not a party to this appeal, and also drank some rum from a bottle.

Later that evening Steed and Telenko left the house in Telenko’s car with Telenko driving. The accident occurred a short time later when the car went out of control and crashed into a utility pole while traveling at a high rate of speed. Steed was killed, and Telenko. was seriously injured. There was evidence, including blood alcohol tests, showing that Telenko was under the influence of alcohol at the time of the accident. Although there is a dispute as to whether Telenko or Steed was driving at the time of the accident, there was evidence supporting the plaintiffs’ claim that Telenko was the driver, so we assume for present purposes, without deciding, that Telenko was the driver.

The plaintiffs claim that NIL is liable for Steed’s death because, at the time of the fatal accident, Telenko was driving under the influence of alcohol sold or furnished to him by NIL in violation of OCGA § 51-1-40. They make this claim under two theories. First, they claim the rum Telenko was seen drinking was illegally purchased by Telenko from the NIL package store shortly before the accident. Second, they claim that Telenko drank beer that Steed and his friend had illegally purchased from the NIL package store earlier that day. We conclude the trial court properly granted summary judgment in favor of NIL under both of these theories.

We agree with the trial court that there was no evidence to support the contention that Telenko bought the rum he drank from the NIL package store. There was absolutely no evidence showing who bought the rum or where it was bought. Telenko testified he had no idea where it came from. Evidence that Telenko and others not of legal drinking age bought alcoholic beverages from the NIL package store on other occasions and that Telenko had not been to any other store which sold rum the day of the accident amounted to no more than pure speculation that Telenko may have purchased the rum from NIL. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. Brumbelow v. City of Rome, 215 Ga. App. 321, 322 (450 SE2d 345) (1994); Jiffy Store v. Bishop, 190 Ga. App. 716, 717 (379 SE2d 602) (1989).” Brown v. Amerson, 220 Ga. App. 318 (469 SE2d 723) (1996).

The trial court also correctly held that evidence that Telenko drank beer purchased earlier in the day by Steed and another under-aged friend from the NIL package store was insufficient, as a matter of law, to establish NIL’s liability under OCGA § 51-1-40. Under OCGA § 51-1-40 (b), “a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor . . . when the sale, furnishing, or serving is the proximate cause of such injury or damage.” Actual knowledge is not required under the statute. “If one in the exercise of reasonable care should have known that the recipient of the alcohol was a minor and would be driving soon, he or she will be deemed to have knowledge of that fact.” Riley v. H & H Operations, 263 Ga. 652, 655 (436 SE2d 659) (1993).

The plaintiffs contend that NIL is liable under the statute because it knew or should have known that the purchasers, Steed and his friend, were not of legal drinking age, and it was foreseeable they would later share the alcoholic beverages with others not of legal drinking age, like Telenko, who would soon drive a motor vehicle. It is undisputed that Telenko was not with Steed and his friend when they purchased the beer from the NIL package store, and there is no evidence otherwise connecting Telenko, directly or indirectly, to the actual purchase of the alcoholic beverages from NIL by Steed and his friend. Accordingly, there is no evidence that, when NIL sold the beer to Steed and his friend, it sold or furnished beer to Telenko knowing he was a person not of legal drinking age and knowing he would soon be driving a motor vehicle. Although there may be circumstances by which a person, by indirect means, knowingly sells, furnishes or serves alcoholic beverages to an underaged person knowing such person will soon be driving a motor vehicle in violation of OCGA § 51-1-40, this is not such a case. The statute requires that the seller have knowledge of the underaged person to whom the alcoholic beverages are sold, furnished or served and knowledge that such person will soon be driving a motor vehicle. Even if NIL sold the beer to Steed and his friend knowing they were not of lawful drinking age, there is no evidence that Telenko was connected to the sale in a manner such that NIL knew or should have known it was selling or furnishing beer to Telenko and knew he was not of lawful drinking age and would soon be driving a motor vehicle. Evidence showing only that Telenko later drank beer unlawfully sold by NIL to the other under-aged purchasers earlier in the day and then drove a motor vehicle in the fatal accident while under the influence of the beer is not suffh cient to establish NIL’s liability under OCGA § 51-1-40.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided April 3, 1996.

Phears & Moldovan, H. Wayne Phears, Albert L. Norton, Jr., Richard E. Harris, for appellants.

Butler & MacDougald, Daniel MacDougald III, for appellee.


author: Pope, Presiding Judge.

text:
    A96A0464.
    In the Interest of C. B., a child.
    (470 SE2d 493)
   Pope, Presiding Judge.

This minor was adjudicated delinquent after admitting to the charge of theft by receiving stolen property, a 1989 Ford Escort. OCGA § 16-8-7. In this appeal, C. B. challenges the court’s order requiring him to make restitution of $250 to the vehicle’s owner. We agree the juvenile court erred in basing its restitution order on improper grounds.

1. Under the restitution statutes, a court may order a defendant to reimburse the victim for “all damages which [the] victim could recover against an offender in a civil action.” OCGA § 17-14-2 (2). “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. As we have previously noted, one goal of this statutory scheme is to make the victim whole. Garrett v. State, 175 Ga. App. 400, 403 (2) (333 SE2d 432) (1985). Because theft by receiving is analogous to the civil tort of conversion, the court may award the victim of this crime the value of the property at the date it was converted plus the rental value of the vehicle from that date until the date of trial. Hodges v. State, 201 Ga. App. 729, 730 (2), 731 (411 SE2d 775) (1991); Lomax v. State, 200 Ga. App. 233, 234 (407 SE2d 462) (1991).

The transcript of the court’s restitution hearing in this case shows the court failed to use that measure of damages. Testimony showed only that the owner’s automobile insurer had paid her $2,847 for the car, which it considered “totalled.” She further testified the “deductible” on her insurance was $200 but did not specify whether that amount was deducted from the check she received. She purchased a replacement vehicle for $3,800, and the juvenile court ordered C. B. to make restitution based on a portion of the difference between the amount she received from her insurer and the price of her replacement vehicle, plus the deductible. This method of calculating restitution did not comply with the law. See, e.g., Lomax, 200 Ga. App. at 234-235.

2. Although the record before us does not support the trial court’s award, it appears restitution in some amount is appropriate here. In the Interest of J. C., 163 Ga. App. 822 (3), 823 (296 SE2d 117) (1982). We cannot determine that amount based on the insurance deductible, because the transcript does not reflect whether the owner was responsible for that deductible. See Sutton v. State, 190 Ga. App. 56, 57-58 (3) (378 SE2d 491) (1989). Neither is the record sufficient to support a finding that the value of the vehicle at the time of conversion was $2,847, although the victim received a check for that amount from her insurer. See Id. at 57 (1); In the Interest of M. D., 214 Ga. App. 380, 381 (2) (448 SE2d 43) (1994); and J. C., 163 Ga. App. at 822 (2), illustrating the evidence necessary to support such a finding. We note that in cases where insurers have paid for crime-related losses, the trial courts have authority to order restitution be paid to the insurer. See, e.g., Sutton, 190 Ga. App. at 57. As we did in J. C., 163 Ga. App. at 823 (3), and M. D., 214 Ga. App. at 382 (2), we remand this case to the juvenile court for a hearing to determine, based on competent evidence, an appropriate amount of restitution and the proper recipient or recipients of that restitution pursuant to the court’s authority under OCGA §§ 15-11-5 (a) (1) (F) and 17-14-5 (c).

Decided April 3, 1996.

Steven E. Phillips, for appellant.

Lewis R. Slaton, District Attorney, Sally A. G. Butler, Juliette O. W. Scales, Assistant District Attorneys, for appellee.

Judgment reversed and case remanded.

Andrews and Smith, JJ, concur.


text:
    A96A0629.
    ELLIS v. THE STATE.
    (470 SE2d 495)
   Andrews, Judge.

Charles Harvey Ellis challenges certain conditions imposed by the trial court on the probated portion of his sentence for the offense of child molestation.

1. In sentencing Ellis to probation, the trial court had broad discretion to impose conditions which were reasonably related to the nature and circumstances of the offense and to the rehabilitative goals of the probationary sentence. State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974); Land v. State, 262 Ga. 898, 901 (426 SE2d 370) (1993). The first objected-to condition of probation required that: “Probationer shall not linger, loiter, or spend time at locations where children under 18 are present or are likely to be present. Such locations include but are not limited to schools, parks, playgrounds, sporting events, school bus stops, public swimming pools, and arcades.” Another condition required that: “Probationer shall not work or volunteer for any business, organization, or activity that provides care to or services for children under the age of 18. Such businesses, organizations, and activities include but are not limited to schools (including driving a school bus), coaching sports/athletic teams, Girl or Boy Scouts, day care centers, Girls or Boys clubs, or churches.”

Given Ellis’s conviction for child molestation, it was reasonable for the trial court to regulate Ellis’s contact with children by imposing conditions prohibiting his association with groups dealing with children and prohibiting his presence at certain locations where children are present. See Potts v. State, 207 Ga. App. 863, 866 (429 SE2d 526) (1993). However, such conditions should be stated with reasonable specificity so that Ellis has notice of the groups and locations he must avoid and so that the conditions are not so broadly worded as to encompass groups and locations not rationally related to the purpose of the sentencing objective.

Both of the above conditions, which included but were not limited to the listed groups and locations used as examples, lack the required specificity. For example, the condition restricting Ellis from working for businesses providing services for children could be literally read to prohibit him from taking a job in any capacity with a company which provides any sort of service for children, even if the job would involve no contact with children. Similarly, the restriction against spending time at locations where children are present or likely to be present could be literally applied to prohibit Ellis from shopping at virtually any store.

The conditions, as written, are susceptible of being read and applied in ways which are not reasonably related to the sentencing objectives. Accordingly, both of the above conditions of probation are vacated, and the case remanded to the trial court for resentencing as to the vacated conditions. Davis v. State, 172 Ga. App. 787, 790-791 (324 SE2d 767) (1984).

2. Ellis contends the condition requiring he submit to warrant-less searches at the request of a probation officer or any other peace officer violates his Fourth Amendment rights because it is not limited to probation officers, and it does not specifically state it is limited to reasonable circumstances.

There is no merit to these contentions. The condition allowing warrantless searches during probation without probable cause was valid and did not violate the Fourth Amendment. Anderson v. State, 209 Ga. App. 676, 677 (434 SE2d 122) (1993). Even if not specifically stated, the condition carried with it the implied requirement that there be at least reasonable grounds for any such search. Id. at 677. The condition need not be limited to searches by probation officers. Hancock v. State, 205 Ga. App. 890 (424 SE2d 77) (1992).

Decided April 3, 1996.

Nicholas Pagano, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Frank R. Cox, Assistant District Attorneys, for appellee.

3. The condition of probation that Ellis not possess “sexually explicit” material was related to the circumstances of the offense and the rehabilitative goals of probation and was not vague or overly broad, as contended. See OCGA § 16-12-100.

4. It was within the trial court’s discretion to impose the condition of probation prohibiting Ellis from consuming alcohol. Mock v. State, 156 Ga. App. 763 (275 SE2d 393) (1980); Inman v. State, 124 Ga. App. 190, 193-194 (183 SE2d 413) (1971).

Judgment affirmed in part and vacated and remanded in part.

Pope, P. J., and Smith, J., concur.


text:
    A96A0145.
    CAMPBELL v. THE STATE.
    (470 SE2d 503)
   Blackburn, Judge.

Gregory E. Campbell was found not guilty of driving under the influence and guilty of obstruction of justice following a jury trial. Campbell appeals his conviction of obstruction.

1. Campbell contends the trial court erred by allowing the introduction of his prior traffic convictions into evidence. The State maintains that Campbell’s prior convictions were admissible because he placed his character in issue. See OCGA § 24-9-20 (b).

During his direct examination by his counsel, Campbell testified that he was a volunteer for Hands on Atlanta acting as big brother to children without fathers. He further testified that he helps senior citizens, is involved with the Literacy Action program, and is about to start working with disadvantaged youth through his church. After this testimony, the State requested the trial court’s ruling on whether Campbell had put his character in issue. The trial court ruled that Campbell had placed his character in evidence and allowed the State to introduce Campbell’s prior traffic convictions.

In State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338) (1985), the Georgia Supreme Court held that “[cjonduct reveals character as accurately as reputation does.” Therein, the court determined that the defendant’s testimony that he was a church member, taught Sunday School, was an associate minister of youth at his church, and had never been charged with or convicted of a crime “was sufficient to raise the character issue.” (Emphasis in original.) Id. at 368. Compare Etienne v. State, 219 Ga. App. 95, 96-97 (464 SE2d 396) (1995) (defendant’s testimony that “he had a clean record” not sufficient to raise character issue).

Campbell argues that he did not intentionally place his character in evidence, citing Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). In Jones, the court held “that a defendant does not put his 'character in issue’ within the meaning of OCGA § 24-9-20 (b) by inadvertent statements regarding his own good conduct.” However, in the present case, Campbell’s statements can hardly be described as inadvertent. Indeed the testimony regarding his good deeds directly responded to his own counsel’s questions regarding whether he was involved in any organizations in the community and what type of work he did with these organizations. Although Campbell’s counsel argued that the testimony was not elicited as good character evidence, but “just to show [Campbell] was involved in the community,” we see no relevance to such testimony other than to show good character. A defendant cannot intentionally testify regarding his good acts and then argue that he did not intentionally put his character in issue. The trial court did not err by allowing the State to rebut Campbell’s good character evidence with evidence of his past traffic convictions.

2. In his second enumeration of error, Campbell contends the arresting officer did not have probable cause to arrest him for DUI so that he was justified in resisting because the officer was not in the lawful discharge of his duties. We cannot agree.

The evidence viewed in the light most favorable to support the verdict shows that the arresting officer pulled over the car driven by Campbell because when the car turned in front of the officer, the passenger leaned out the window waving his hand as if to flag down the officer. After stopping the car, Campbell got out and approached the officer. The officer noted that Campbell was jittery and that there was a odor of alcoholic beverages on his breath. Campbell admitted he had consumed a couple of beers, and said that he would let his passenger drive the car because he did not need a DUI. The officer administered a field sobriety test which Campbell did not successfully complete. As the officer attempted to administer a second test, a car struck his patrol car, knocking the patrol car’s doors off, and then drove away. While the officer was informing headquarters of the hit- and-run, Campbell ran to his car and told the passenger to “take off.” When the passenger did not take off, Campbell ran around to the driver’s side and told his passenger to get out. The officer then drew his weapon and ordered Campbell and the passenger to the ground. The passenger complied, but Campbell did not. Campbell picked up the car keys from the ground near the passenger and headed toward the car, as if to leave, whereupon the officer used his night stick to restrain Campbell.

Although Campbell’s testimony of his arrest contrasted with the officer’s, “it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. . . . Furthermore, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citations and punctuation omitted.) Clay v. State, 214 Ga. App. 160, 161 (447 SE2d 156) (1994).

The facts in Reagin v. State, 218 Ga. App. 733 (463 SE2d 39) (1995) are very similar to the instant case. Therein, the defendant was found not guilty of driving under the influence of alcohol or drugs and simple assault, but was convicted of obstruction of a law enforcement officer. The defendant appealed the obstruction conviction asserting that the officer did not have probable cause to arrest him for driving under the influence of alcohol. Id. at 734. We noted that “[a] warrantless arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense.” (Citations and punctuation omitted.) Id.

In the present case, the officer had smelled alcoholic beverages on Campbell’s breath, Campbell was jittery, he failed a field sobriety test, he continually commented that he did not need a DUI, and he attempted to flee. “By considering all the facts available to [the officer] and weighing the reasonableness and probabilities of the circumstances, the officer had the requisite probable cause to arrest. [Cit.] The same strictness of proof required for a finding of guilt is not necessary for probable cause. [Cit.] Therefore, it is immaterial to the legality of the arrest that [Campbell] was acquitted of the charge of driving under the influence. [Cit.] The evidence was sufficient to authorize a rational trier of fact to find [Campbell] guilty beyond a reasonable doubt of obstruction of a law enforcement officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]; Dozier v. State, 217 Ga. App. 835, 836 (1) (459 SE2d 463) [(1995)].” (Punctuation omitted.) Reagin v. State, supra at 735.

Judgment affirmed.

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

Decided April 4, 1996.

Thomas J. Thomas, for appellant.

Louise T Hornsby, Solicitor, Marcelle A. Castillo, Assistant Solicitor, for appellee.


text:
    A96A0203.
    P. G. L. & C. C. EMPLOYEES CREDIT UNION v. KIMBALL.
    (470 SE2d 501)
   Blackburn, Judge.

P G. L. & C. C. Employees Credit Union (the Credit Union) appeals the trial court’s order denying its motion to domesticate a foreign judgment. The Credit Union asserts that the trial court erred in requiring proof that the state in which its foreign judgment was entered had adopted the Uniform Enforcement of Foreign Judgments Act in substantially the same form as Georgia.

On February 27, 1995, the Credit Union filed with DeKalb County State Court its motion to domesticate a judgment rendered in its favor in Illinois. See OCGA § 9-12-130 et seq. OCGA § 9-12-138 provides that Georgia’s Uniform Enforcement of Foreign Judgments Law (UEFJL) “shall apply to foreign judgments of other states only if those states have adopted the ‘Uniform Enforcement of Foreign Judgments Act’ in substantially the same form as this article.” (Emphasis supplied.) “Where, as here, the language of a statute is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Samay v. Som, 213 Ga. App. 812 (1) (446 SE2d 230) (1994). By its clear and unambiguous terms, OCGA § 9-12-138 provides a prerequisite for the use of Georgia’s UEFJL. Therefore, we agree with the trial court that a determination as to whether Illinois had adopted the Uniform Enforcement of Foreign Judgments Act in substantially the same form as Georgia’s UEFJL was required.

The Credit Union next argues that the trial court should have taken judicial notice of Illinois’s UEFJL. In Samay, supra at 814, we construed the three Code sections, OCGA §§ 9-11-43 (c), 24-1-4, and 24-7-24, which pertain to the methods to judicially determine foreign law. Therein, we held “that notice of intent to rely on foreign law is required before a party can establish such law in accordance with any of the three statutory methods or place a duty on the trial court to judicially recognize foreign law as published by authority.” (Emphasis in original and supplied.) Id. at (2) (a). Our holding was consistent with the legislature’s goal of giving the opposing party and the court adequate time to prepare for litigation of a foreign law issue. Id. However, we went on to hold that under the facts of that case, OCGA § 9-10-94, pertaining to adequacy of service of long arm process, provided the requisite notice of intent to prove foreign law, because the plaintiff was aware of its reliance on foreign law and “[n]o issue of foreign law pertaining to sufficiency of long arm process service [would] arise . . . unless the defendant timely raise[d] such issue as prescribed by law. Thus, defendant will always have actual knowledge when an issue of foreign law,. . . will be litigated and will therefore have a reasonable opportunity to prepare for such litigation.” (Emphasis in original.) Id. at 815 (2) (c). Similarly, in the present case, we find that by the very nature of the action, domestication of a foreign judgment, all parties and the court had notice that foreign law would be relied upon. This interpretation is likewise consistent with the legislative intent of giving all parties adequate opportunity to prepare to litigate foreign law issues. Therefore, the Credit Union’s failure to file a notice of intent to rely on Illinois’s UEFJL is not fatal to its position.

“In farther considering the applications of OCGA §§ 24-1-4 and 9-11-43 (c) in Swafford v. Globe American Cas. Co., 187 Ga. App. 730 (371 SE2d 180) (1988), this court noted that the historic basis for requiring proof or authentication of foreign law, i.e., the inaccessibility of published authority of such foreign law, no longer existed. We went on to hold that where a party gives reasonable notice of intent to rely on foreign law, the trial court has a duty, as well as the right, to refer to and consider the foreign law ‘as published by authority,’ whether or not the party produced it.” Meeker, supra at 704.

In the present case, we have determined that a plaintiff’s use of OCGA § 9-12-130 et seq. to domesticate a foreign judgment perforce provides the requisite notice of intent to rely on foreign law. We further find that “[u]nder OCGA § 24-1-4, a trial court has a duty to take judicial notice of foreign law if ‘published by authority,’ without ratroduction of any proof of that law.” (Emphasis supplied.) Id. Because the use of OCGA § 9-12-130 et seq. to domesticate a foreign judgment requires proof that the state in which the foreign judgment was entered adopted the Uniform Enforcement of Foreign Judgments Act in substantially the same form as Georgia, and such foreign law would be published by authority, it is the trial court’s duty to take judicial notice of it.

Decided April 4, 1996.

Robert A. Fierman, for appellant.

RobertL. Mack, Jr., for appellee.

This Court’s research indicates that Illinois has adopted a Uniform Enforcement of Foreign Judgments Act in substantially the same form as Georgia. See 111. Rev. Stat. 735-5/12-650 et seq. Therefore, the trial court erred in denying the Credit Union’s motion to domesticate its foreign judgment.

Judgment reversed.

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

       “OCGA § 24-7-24, dealing with the authentication of foreign laws or judicial records, provides perhaps the most certain method of producing admissible evidence of another state’s law. OCGA § 24-1-4 allows judicial cognizance, without the introduction of such proof, of the laws of other states ‘as published by authority.’ OCGA § 9-11-43 (c), the most recently enacted of the three statutes, requires reasonable notice by the party relying upon foreign law, and provides that ‘(t)he court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court’s determination shall be treated as'a ruling on a question of law.’ ” Meeker v. Eufaula Bank &c., 208 Ga. App. 702, 704 (431 SE2d 475) (1993).

       We note that the Credit Union diet file a notice of intent to plead and prove law of Illinois with regard to 111. Rev. Stat. § 735-5/2-101 (2) regarding venue; 111. Rev. Stat. § 735-5/2-301 (a) regarding special appearances; and 111. Rev. Stat. § 735-5/13-206 regarding statute of limitation.


author: Judge Harold R. Banke.

text:
    A96A0260.
    BARNES v. WHATLEY.
    (470 SE2d 498)
   Judge Harold R. Banke.

We granted this discretionary appeal to determine the liability of an allegedly defaulting purchaser for payment of a real estate broker’s commission. The trial court entered summary judgment, finding that James R. Barnes owed William T. Whatley, doing business as Whatley Realty, a real estate commission.

Viewed in a light most favorable to Barnes, the non-movant, the evidence was as follows. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The Peoples Bank (“Bank”) owned approximately 66 acres which it offered for sale through an oral nonexclusive listing. Hoping to obtain a real estate sales commission, Whatley, a licensed attorney and licensed real estate broker, advertised the property for sale. Whatley showed the property on only one occasion to Barnes who on that same day wrote a deposit check for $5,500, ten percent of the listed purchase price. Although Barnes signed the check, it was Whatley who filled out all the information including denoting the payee as “Whatley Realty Trust Account,” and making a notation on Barnes’ check: “Earnest money on 66.21 acres.” Whatley also created a receipt for the check as “Binder on 66.21 acres pending title clearance and 30 days to close.” Whatley held Barnes’ check and did not deposit it. The next day, Whatley drafted a real estate sales agreement dated June 26,1993, and mailed it to the Bank. The Bank’s vice president signed the agreement on June 29, 1993, and mailed it back to Whatley. The sales contract expressly obligated the Bank to pay Whatley a real estate commission “when the sale is consummated.” According to.the sales contract, “This instrument shall be regarded as an offer by the Purchaser or Seller, who first signs, as to the other and is open for acceptance by the other until 4:00 p.m. on the 7th day of July, 1993.”

It is undisputed that Barnes never signed the real estate sales contract and never accepted the Bank’s offer by July 7, 1993. Rather, on July 1,1993, Barnes stopped payment on his earnest money check and informed Whatley that he was withdrawing his offer to purchase the land. About six weeks later the Bank sold the land to another purchaser, and Whatley did not receive a commission on that sale. Whatley sued Barnes to recover $5,000, the amount of real estate commission to which he would have been entitled had the sale been effectuated. Whatley admitted that Barnes never agreed to pay him any fees or commissions and testified that he was the agent of the Bank. The trial court concluded that Whatley’s claim arose from the services he performed on behalf of Barnes and found a complete contract between the Bank and Barnes. The court also determined that because Whatley procured a purchaser (Barnes) ready, willing and able to pay the .price agreed upon by the owner (Bank), Barnes was obligated to pay the real estate commission. Held:

1. Because there was no contract, the trial court erred in finding that Barnes had to pay a real estate commission to Whatley.

To make the obligations of a contract for the sale of land binding on a promisor, OCGA § 13-5-30 (4) requires that the contract “must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him.” In this case, it is undisputed that Barnes did not sign a written contract. According to the express terms of the sales agreement, drafted by Whatley, the instrument was merely an offer of sale which Barnes chose not to accept. Because Barnes never signed the sales agreement, he was not obligated to abide by its terms.

Every essential element of a contract for the sale of land must be expressed in writing. Smith v. Wilkinson, 208 Ga. 489, 493 (2) (67 SE2d 698) (1951); accord Smith v. Cox, 247 Ga. 563 (277 SE2d 512) (1981). In this case, several essential elements are lacking including the purchase price, terms of sale, and legal description of the property. In order for a contract for the sale of land to be valid, binding and enforceable, the description must describe the property to be sold with the same degree of certainty as that required in a deed conveying realty. Smith v. Wilkinson, 208 Ga. at 493 (2). The notations on the check and receipt combined with the miscellaneous items Whatley presented are not legally sufficient to constitute a valid property description or to create a binding and enforceable contract.

Decided April 4, 1996.

Malcolm F. Bryant, Jr., for appellant.

William T. Whatley, pro se.

2. The trial court erred in finding there was an offer and acceptance between the parties for the purchase of the property which required Barnes to pay the broker’s commission. Having determined in Division 1 that there was no contract between Barnes and the Bank, it follows that Barnes incurred no obligation therefrom for the broker’s commission.

Whatley, nevertheless, asserts an entitlement to a broker’s commission under OCGA § 10-6-32, which provides: “The broker’s commissions are earned when, during the agency, he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.” Id.

OCGA § 10-6-32 contemplates a mutually binding and enforceable sales contract. Hawks v. Moore, 27 Ga. App. 555, 556 (109 SE 807) (1921). Although the actual closing of a sale is not a condition precedent to a broker’s right to a commission, securing a binding contract of sale is a prerequisite to recovery. Northside Realty Assocs. v. MPI Corp., 245 Ga. 321, 322 (265 SE2d 11) (1980). “In a suit for commissions the burden of showing all the requirements is on the broker. Phinizy v. Bush, 129 Ga. 479 (2) (59 SE 259) (1907). The sale need not actually occur if the parties entered into a binding and enforceable agreement. [Cit.]” Carroll v. Harry Norman, Inc., 198 Ga. App. 614, 615 (1) (402 SE2d 357) (1991). In this case, Whatley’s failure to obtain a fully executed binding sales agreement is fatal to his claim for a commission pursuant to OCGA § 10-6-32. Compare Mealor v. McNabb, 83 Ga. App. 432 (63 SE2d 702) (1951) (defaulting purchaser obligated by express contract terms for broker’s commission); and Parr Realty Co. v. Carroll, 131 Ga. App. 549, 550 (206 SE2d 550) (1974) (broker cannot make claim for services rendered where he failed to produce a valid and enforceable sales contract). Accordingly, we find as a matter of law, that Barnes had no obligation to pay a broker’s commission to Whatley.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       The record below shows that the issue of the statute of frauds’ writing requirement set forth in OCGA § 13-5-30 was sufficiently raised and discussed by the parties, even though on appeal, Barnes concentrates on subsection (2) rather than subsection (4).


text:
    A96A0369.
    WILKES v. KROGER COMPANY.
    (470 SE2d 506)
   Smith, Judge.

After purchasing groceries at Kroger, Rosie Lee Wilkes fell in the parking lot. She brought this action against Kroger, alleging that she fell on a granola bar wrapper, which, in the exercise of ordinary care, should have been discovered by Kroger. The trial court granted summary judgment to Kroger, and Wilkes appeals, raising eight enumerations of error. All enumerations involve a proprietor’s duty to its patrons, and we address them all together. We affirm.

Wilkes testified on deposition that while walking through the parking lot looking for traffic and heading for her car, her foot “went out from under [her] and there [she] sat.” She testified, “I don’t know how it happened.” She could surmise only that she slipped on a shiny aluminum granola bar wrapper, which her friend found nearby. Wilkes did not know how long the paper had been on the ground. She testified that a Kroger employee was approximately fifty feet away from her when she fell and was pushing a row of approximately ten grocery carts. Wilkes acknowledged that she did not know whether the employee could have seen the wrapper from where he was walking. She also acknowledged that she was not distracted, that she would have seen the wrapper had she been looking at the ground, and that if she had seen it, she would not have stepped on it. She did not know whether other employees knew of the presence of the wrapper, although she stated, “They had to have known it, because they were giving them out samples in there. . . . [T]hey had to . . . know they were going to throw them somewhere.”

It is axiomatic that a plaintiff in a negligence case can prevail only if she shows that a defendant’s negligence caused her injuries. See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). Wilkes failed to make such a showing. She could only speculate that the wrapper caused her to slip and fall because the wrapper allegedly was found on the ground near where she fell. Wilkes showed only that she was in Kroger’s parking lot and fell. This is insufficient to prove negligence on Kroger’s part; to hold otherwise would amount to making the proprietor an insurer of his customer’s safety. Perkins v. Peachtree Doors, 196 Ga. App. 878, 879 (397 SE2d 54) (1990).

Moreover, even assuming Wilkes slipped on the wrapper, the record is silent as to whether Kroger was aware of the existence of any hazardous condition. Nothing in the record shows the length of time the wrapper was on the ground so that any employee could have seen and removed it. Further, there is no evidence that an employee was in the immediate vicinity and could easily have seen and removed the alleged hazard. The only employee nearby was 50 feet away and was pushing several shopping carts. Wilkes admitted that she did not know whether the employee could see the wrapper. Wilkes’s speculation that Kroger employees “had to have known” that granola wrappers would be on the ground is not sufficient to raise a factual issue regarding constructive knowledge. Wilkes’s speculations, “taken in the light most favorable to her, are merely conclusions and are probative of nothing.” Alterman Foods, supra at 625. See also Brumbelow v. City of Rome, 215 Ga. App. 321, 322 (450 SE2d 345) (1994).

Decided April 4, 1996.

Peter M. Blackford, John E. Gilchrist, for appellant.

Webb, Carlock, Copeland, Semler & Stair, James R. Doyle II, Douglas A. Wilde, for appellee.

Finally, Wilkes testified that she would have seen the wrapper had she looked. A “customer must exercise ordinary care for his own safety. . . . He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). “Summary judgment is appropriate in situations where the hazardous condition was visible to the plaintiff, had the plaintiff looked.” J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994).

We cannot simply infer from the record before us that Kroger maintained a dangerous condition that caused Wilkes to fall. Further, the record shows that Wilkes failed to exercise ordinary care for her own safety. Each of these reasons standing alone would be sufficient to warrant summary judgment for Kroger.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


text:
    A96A0519.
    BELVIN v. THE STATE.
    (470 SE2d 497)
   Blackburn, Judge.

Scott Lee Belvin appeals his conviction asserting that the trial court erred in denying his general demurrer to his indictment. Both counts of the indictment alleged that Belvin, “while a Surveillance Officer working for the Clayton County Probation Office” did engage in sexual contact with a woman who “was a probationer (over whom) the accused had supervisory and disciplinary authority.”

In his demurrer Belvin contends the indictment failed to allege a recognized offense because surveillance officers are not within any of the classes of persons that OCGA § 16-6-5.1 prohibits from having sexual contact with someone on probation. After the trial court denied the demurrer, Belvin pled guilty to one count of the indictment and was sentenced to serve two years on probation.

Belvin’s guilty plea did not constitute a waiver of the defense raised in his demurrer. “A plea of guilty is a conviction of the highest order and waives all defenses other than that the indictment charges no crime.” (Citation and punctuation omitted; emphasis in original and supplied.) Williams v. State, 174 Ga. App. 506, 507 (330 SE2d 435) (1985); King v. State, 103 Ga. App. 272, 274-275 (119 SE2d 77) (1961).

OCGA § 16-6-5.1 (b) provides in pertinent part: “A probation or parole officer . . . commits sexual assault when he engages in sexual contact with another person who is a probationer or parolee under the supervision of said probation or parole officer.”

The critical issue on appeal is whether the wording of the indictment alleging that Belvin was a “Surveillance Officer working for the Clayton County Probation Office” who had “supervisory and disciplinary authority” over the probationer is sufficient to allege that Belvin was a “probation officer” within the meaning of OCGA § 16-6-5.1. We hold that it is.

“It is an elementary rule of statutory construction that, absent clear evidence to the contrary, words, should be assigned their ordinary, logical, and common meaning.” (Citations and punctuation omitted.) State v. Luster, 204 Ga. App. 156, 157 (419 SE2d 32) (1992). The ordinary, logical, and common meaning of the term “probation officer” would include a “Surveillance Officer working for the Clayton County Probation Office” who had “supervisory and disciplinary authority” over a probationer as the indictment in the instant case alleges.

Webster’s Third New International Dictionary defines “probation officer” as '“an officer appointed to keep under supervision and to report on a convicted offender who is free on probation.” Clearly a surveillance officer employed by the probation office and given the power to supervise and discipline probationers is a “probation officer” under this definition, as well as the common meaning of the term.

Although under Wood v. State, 219 Ga. 509, 513 (134 SE2d 8) (1963), courts must generally refrain from expanding the scope of penal statutes by implication, we believe that holding that the indictment in the instant case sufficiently alleges that Belvin was a probation officer is not a judicial expansion of the term “probation officer” beyond its ordinary, logical, and common meaning.

Judgment affirmed.

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

Decided April 4, 1996

Crumbley & Chafin, Wade M. Crumbley, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


text:
    A94A2185.
    DOWLING v. ATLANTA CITY SCHOOL DISTRICT et al.
    (470 SE2d 514)
    Decided April 5, 1996.

      McKee & Barge, R. Mason Barge, for appellant.

      Smith, Howard & Ajax, Bruce H. Beerman, for appellees.
   Pope, Presiding Judge.

In Dowling v. Atlanta City School Dist., 216 Ga. App. 688 (455 SE2d 399) (1995), we reversed the trial court’s dismissal of plaintiff’s claims for damages and attorney fees under 42 USC §§ 1983 and 1988. The Supreme Court granted certiorari and reversed our decision in Atlanta City School Dist. v. Dowling, 266 Ga. 217 (466 SE2d 588) (1996). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

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


text:
    A96A0036.
    WELLS v. L.W.A., INC. et al.
    (470 SE2d 510)
   Judge Harold R. Banke.

W. Howard Wells, Jr., a minority stockholder and former president of L.W.A., Inc. (“LWA”), brought this breach of contract and conspiracy action against LWA and its co-owners, Steve Luce, Joseph P. Luce, and Albert “Buddy” Luce, after being discharged. He appeals the trial court’s grant of defendants’ motion for summary judgment.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that Joseph Luce and Buddy Luce, owners of a large school bus manufacturing company, asked Wells, an accountant and independent business consultant, to provide business guidance to Steve Luce, Joseph Luce’s son. Subsequently, Wells and Steve Luce entered into an agreement to purchase LWA, with Buddy Luce and Joseph Luce involved as stockholders, members of the board of directors, and guarantors of a $1 million loan. Wells was appointed president and the corporation did poorly, kept afloat primarily on loans and guarantees from the Luces. Under the employment contract at issue, Wells was to receive an $8,333.33 monthly salary which was to continue for 12 months as severance pay if he was discharged without just cause. As LWA continued to lose money, Joseph Luce and Buddy Luce agreed to grant Wells an option to buy out their interest at $116.90 per share. Five months later, Buddy Luce and Joseph Luce agreed to a superseding option to permit Wells to buy their interest at $1 per share. After Wells failed to exercise the option and was discharged without cause, he filed this action, alleging he did not receive the post-employment benefits to which he was entitled and was prevented from exercising the option to purchase LWA. Held:

1. Because the superseding option contract expired before Wells satisfied its conditions, summary judgment was appropriate on the claim for breach of the option contract. The record shows that the final, superseding option contract expired on January 31, 1993. This contract required Wells to: (1) buy the Luces’ 29,334 shares of LWA stock at $1 per share; (2) arrange for LWA to repay several promissory notes to Joseph Luce and Steve Luce; and (3) use his best efforts to have Joseph Luce and Steve Luce released from their personal loan guarantees. It is undisputed that when the deadline passed, Wells had satisfied none of these conditions. See Barkley-Cupit Enterprises v. Equitable Life &c., 157 Ga. App. 138, 141 (2) (276 SE2d 650) (1981) (the law requires timely performance of all obligations under an option contract). Furthermore, Wells admitted that the Luces were under no legal obligation to extend the option. The record refutes Wells’ claim that the Luces thwarted his efforts at satisfying these conditions by refusing to approve a prospectus to solicit investors, showing that Wells himself made a motion to the LWA board of directors that the prospectus not be used for any purpose upon learning that the prospectus could expose LWA to liability.

2. The trial court properly granted summary judgment on Wells’ claim for the annual benefits he would have received under his employment contract had he not been discharged without good cause. It is undisputed that Wells received 12 months severance pay. The employment contract does not provide for the continued payment after discharge of the benefits at issue, which included payments for premiums on his health, life, and disability insurance policies and the rental of a corporate car. Thus, no breach of contract occurred.

Decided April 5, 1996.

Phillips & Phillips, Arthur L. Phillips, for appellant.

Sell & Melton, John D. Comer, Jeffrey B. Hanson, for appellees.

3. Summary judgment was properly granted on Wells’ claims that LWA (1) issued an erroneous W-2 tax form which caused him to incur approximately $45,000 in tax liability by calculating as income payments it or the Luces paid on a loan to LWA and (2) failed to pay the full amount of Wells’ final severance pay checks. Neither of these contentions raises a genuine issue of fact. First, LWA was required to withhold taxes; any dispute regarding the amounts withheld may be presented to the Internal Revenue Service. See generally 26 USC § 3402. Second, although Wells’ affidavit states that LWA paid a portion of a note due to Trust Company Bank and then erroneously charged these sums to his income and set them off from his severance pay, his deposition testimony confutes this contention. Because Wells has offered no reasonable explanation for the divergence between his affidavit and his contradictory testimony, it must be construed against him. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). Accordingly, we find that the amount set off from Wells’ severance pay covered a personal loan Wells used to purchase LWA stock. In light of Wells’ own testimony and evidence offered by LWA and the Luces showing detailed calculations of Wells’ income and the amounts deducted from his severance pay to balance the amounts owed on the notes, Wells’ mere contention that unspecified amounts were improperly set off from his severance pay is insufficient to create a triable issue. Lau’s Corp., 261 Ga. at 491; Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (judgments right for any reason will be affirmed).

4. Having found that LWA and the Luces breached neither the option contract nor the employment contract, Wells’ claim that the Luces conspired to breach these contracts fails. See Green v. Sams, 209 Ga. App. 491, 498 (433 SE2d 678) (1993).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A96A0106.
    CHASTAIN et al. v. FAYETTE COUNTY.
    (470 SE2d 513)
   Andrews, Judge.

Pursuant to special master proceedings (OCGA § 22-2-100 et seq.), Fayette County filed a petition to condemn a portion of a 27-acre tract owned by Chastain and others for the purpose of creating a water reservoir for the county. The special master awarded the condemnees $54,741 as the value of the land taken and $6,250 as consequential damages to the remainder. The condemnees appealed to the superior court from the amount of the special master’s award. While the appeal was pending, the condemnees obtained a court order allowing them to withdraw the entire $60,991 award which had been paid by the county into the registry of the court. Subsequently, the case was tried before a jury which returned a verdict finding the value of the land taken to be $51,000 with no consequential damage to the remainder. The superior court entered a judgment providing that the county was entitled to recover the $9,991 difference between the special master’s award and the jury verdict.

The condemnees appeal claiming the trial court: (1) erroneously refused to strike testimony from the county’s expert appraiser calculating the value of the land taken on the basis of the per acre value of the whole tract, and (2) erred by entering a judgment in favor of the county for the difference between the special master’s award prepaid to the condemnees and the smaller jury verdict.

1. In calculating the value of the smaller tract taken from the larger whole, the county’s expert appraiser determined that the whole tract was worth $7,000 per acre and then used $7,000 per acre as the basis for calculating the value of the land taken. Calculating the value of the land taken as a pro rata amount of the whole from which it is taken is not necessarily erroneous. An appraiser may be able to show a basis for determining that the value per acre of the portion taken from the whole is equal to, more than, or less than the value per acre of the whole tract. However, as we noted in Bland v. Bulloch County, 205 Ga. App. 317, 320 (422 SE2d 223) (1992), “[i]n assessing the value of the land taken as part of the entire tract, it is not proper merely to compute the percentage value on the basis of an artificial- unit value for the entire tract, unless the actualities of the case accord with such an approach.” (Citations and punctuation omitted.)

Accordingly, an expert opinion valuing the land taken as a prorated amount of the value of the whole tract must be based on evidence supporting this conclusion. “Although an expert value witness may state his opinion of value without giving reasons therefor, where he does give reasons and those reasons appear to be wholly speculative or conjectural, his opinion is without foundation and without probative value.” Merritt v. Dept. of Transp., 147 Ga. App. 316, 320 (248 SE2d 689) (1978), rev’d on other grounds, 243 Ga. 52 (252 SE2d 508) (1979). An expert opinion valuing the part taken by applying the average per acre value of the entire tract has given a reason for the value opinion that is entirely speculative or conjectural in the absence of an evidentiary foundation for such a conclusion. See Bland, supra at 320; compare Dept. of Transp. v. Arnold, 154 Ga. App. 502, 503 (268 SE2d 775) (1980).

Decided April 5, 1996

Glaze, Glaze & Fincher, Steven M. Fincher, William A. Grabbe, for appellants.

McNally, Fox & Cameron, Philip P. Grant, for appellee.

We find a lack of any evidentiary foundation to support the opinion of the county’s expert in this case. Although the condemnees did not object to the expert’s testimony until moving to strike it after cross-examination, the pro rata basis of the valuation was not clearly apparent or acknowledged by the expert until he was cross-examined. Accordingly, the motion to strike the testimony after cross-examination was timely and sufficient to preserve the issue for appellate review. The trial court’s refusal to strike the testimony was harmful error under the circumstances of this case and requires a new trial.

2. Because the issue could arise again after a retrial, we address the condemnees’ claim that they were entitled to retain the entire amount of the prepaid special master’s award despite the jury verdict and judgment thereon for a smaller amount.

An appeal by either party from the award of the special master pursuant to OCGA § 22-2-112 is a de novo proceeding as to the issue of value which begins again the process of adjudication without regard to the amount awarded by the special master. Wrege v. Cobb County, 186 Ga. App. 512, 514-515 (367 SE2d 817) (1988); OCGA § 22-2-110 (d). After an appeal, the judgment on the jury verdict supplants the special master’s award. Accordingly, if the case is tried again and the jury again reaches a verdict smaller than the prepaid special master’s award, the county would be entitled to a judgment against the condemnees for the difference. Smith v. Ga. Power Co., 131 Ga. App. 380, 383 (205 SE2d 916) (1974); see 3 Nichols’ The Law of Eminent Domain § 8.10 [4] (rev. 3rd ed. 1994).

Judgment reversed.

Pope, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A96A0567.
    STRICKLAND v. THE STATE.
    (470 SE2d 508)
   Ruffin, Judge.

Following a bench trial, James Strickland was convicted of being an habitual violator, driving under the influence of alcohol, driving with an unlawful alcohol concentration, and violation of the open container law, OCGA § 40-6-253. Strickland appeals from the denial of his motion for new trial. For reasons which follow, we affirm.

The evidence showed that police officers William Leonard and Michael Snyder noticed the car Strickland was driving “weaving badly over the roadway.” Officer Leonard testified that he stopped Strickland because he was suspicious that Strickland was under the influence of alcohol. Officer Leonard noticed a strong alcoholic odor on Strickland’s breath, that his eyes were glassy and bloodshot, and that there was an open container of beer on the front seat of Strickland’s car. Strickland’s blood alcohol concentration was measured at .19 grams.

Prior to trial, Strickland filed a motion to suppress the evidence obtained after his car was stopped on the ground that the stop was illegal. Strickland waived a jury trial, stipulating that the ruling on his motion to suppress would be dispositive of his guilt or innocence. He further stipulated to the results of the blood alcohol test, the fact that he was intoxicated, and that he was an habitual violator. The trial court denied the motion.

1. Strickland asserts that he did not knowingly waive his right to a jury trial. “When the purported waiver of [the] right [to a jury trial] is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly. . . .” (Punctuation omitted.) Evans v. State, 216 Ga. App. 21, 24 (3) (453 SE2d 100) (1995). The State can meet this burden “by showing on the record that the defendant was cognizant of the right being waived. . . .” Id. Inasmuch as Strickland personally stated on the record that he did not want a jury trial and that he was waiving his right to a jury trial, the State met its burden in this case.

Furthermore, although Strickland argues in his brief that the trial court erred because he later withdrew his waiver, he failed to enumerate this as error. “It is the basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal. [Cit.] And, enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration. [Cit.]” Anfield v. State, 188 Ga. App. 345, 346 (2) (373 SE2d 51) (1988).

2. Strickland asserts that Officer Leonard lied during his testimony and that the trial court therefore erred in denying his motion to suppress. Strickland argues that when his car was stopped by the officer, he was having an ongoing dispute with another man, Ray Gordon. He contends that Gordon was Officer Leonard’s friend and that Officer Leonard pulled him over as a favor to Gordon.

“ When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.’ [Cit.]” Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995). Construed in this light, Officer Leonard’s testimony that he observed Strickland weaving several times over the roadway was sufficient to support the trial court’s denial of Strickland’s motion. See id. at 609-610.

3. Strickland asserts that the trial court erred in sustaining the State’s objection to a question he posed to one of his witnesses. The record shows that Strickland’s attorney asked the witness whether Gordon told her that “he knew people” and that he was going to have Strickland arrested. The State objected on the ground that the response being solicited was hearsay.

“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Here, the solicited response would not derive its value solely from the witness’s credibility, but would rest mainly on Gordon’s veracity and competency. Contrary to Strickland’s argument on appeal that he asked the question only to show that Gordon made the statement, the solicited response was offered as proof of the matter asserted; i.e., to prove that Gordon actually did seek to have a law enforcement acquaintance arrest Strickland. “Because the testimony was offered for the truth of the matter asserted therein, it [was] inadmissible hearsay. [Cit.]” Moclaire v. State, 215 Ga. App. 360, 363 (4) (451 SE2d 68) (1994). Thus, the trial court did not err in sustaining the State’s objection. Id.

4. Strickland asserts that the trial court erred in denying his request to continue the hearing to call other witnesses. However, “[e]ach of the requirements of OCGA § 17-8-25 must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon an absent witness. . . .” (Citation omitted.) Vaughan v. State, 210 Ga. App. 381 (1) (436 SE2d 19) (1993). Because Strickland did not make any of the showings required by OCGA § 17-8-25, this enumeration presents nothing for our review. Id.

5. The evidence was sufficient to enable the court, sitting as the trier of fact, to find Strickland guilty of the offenses charged. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Martin v. State, 216 Ga. App. 25 (453 SE2d 498) (1995).

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

Decided April 5, 1996.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.