text:
    A92A1540.
    COHILAS et al. v. CLAYTON COUNTY BOARD OF COMMISSIONERS et al.
    (424 SE2d 651)
   Pope, Judge.

The plaintiffs/appellants in this case are two public safety employees of Clayton County and two employee organizations. The two individual plaintiffs are civil service employees of Clayton County. The plaintiffs brought this action for declaratory and injunctive relief against the Clayton County Board of Commissioners and Clayton County (hereinafter collectively referred to as the “Commissioners”) challenging as unlawful the adoption by the Commissioners of certain amendments to the Rules and Regulations of the Clayton County Civil Service System (“Civil Service Rules”) concerning the promotion process for public safety employees. Specifically, plaintiffs challenge the authority of the Commissioners to amend the Civil Service Rules without first obtaining a recommendation from the Civil Service Board to so amend the Civil Service Rules. The Commissioners moved for summary judgment and the trial court granted that motion. Plaintiffs appeal.

1. We will consider plaintiffs’ first two enumerations of error together. Plaintiffs contend the trial court erred as a matter of law in holding that the Commissioners could unilaterally amend the County’s Civil Service Rules and by failing to grant the plaintiffs declaratory relief to the effect that the Commissioners could not lawfully amend the County’s Civil Service Rules without the recommendation of the Clayton County Civil Service Board.

Relying on Section 6 of the Act authorizing the creation of the Civil Service System in Clayton County, Ga. L. 1963, p. 2747, as amended, (the “Act”), plaintiffs argue the Clayton Civil Service Board must make recommendations to the Commissioners concerning amendments to the Civil Service Rules before the rules can validly be amended. In subparagraph (a) of Section 6 of the Act, the Civil Service Board is charged with the responsibility of holding public hearings regarding proposed rules and regulations for the Civil Service System and to “thereafter recommend to the governing authority of Clayton County the adoption of rules and regulations and standards effectuating the civil service system established under this Act.” The parties do not dispute that the Act contemplates a recommendation by the Civil Service Board to the Commissioners concerning the initial Civil Service Rules that were implemented when the Clayton County Civil Service System was established. Plaintiffs, however, argue that subparagraph (d) of Section 6 of the Act also contemplates that the Civil Service Board is required to make recommendations concerning amendments, additions to and changes to the Civil Service Rules. Subparagraph (d) provides: “Said board shall be authorized to make recommendations as to amendments, additions to, and changes in said rules and regulations from time to time and when said amendments, changes, or additions are adopted by the governing authority of Clayton County, said amendments shall have the force of law and be binding on all parties affected by said civil service system.” (Emphasis supplied.)

We hold the trial court correctly concluded the plaintiffs’ argument that the Civil Service Board must recommend amendments and changes to the Civil Service Rules before the rules can be amended by the Commissioners is without merit. Subparagraph (d) does not contain the mandatory language contained in subparagraph (a) of Section 6. The plain language of subparagraph (d) allows the Civil Service Board to make recommendations concerning changes and amendments, but does not require a recommendation from the Civil Service Board before the Commissioners can legally adopt amendments to the Civil Service Rules.

We are likewise not persuaded by plaintiffs’ argument that the previous course of conduct between the Civil Service Board and the Commissioners gives rise to a vested interest by plaintiffs in a certain procedure. Nor are we persuaded by plaintiffs’ policy arguments. We presume the Georgia legislature was familiar with the policies that gave rise to civil service systems, but in the enabling legislation allowing for the creation of the Civil Service Board, the Georgia legislature delegated only limited powers to effect personnel rules and regulations to the Civil Service Board. If the legislature’s intent had been to delegate to the Civil Service Board the broad powers advocated by plaintiffs, they would have included those powers in the Act.

2. Plaintiffs argue the trial court erred by refusing to find a breach of contract occurred when the Commissioners unilaterally amended the Civil Service Rules without the recommendation of the Civil Service Board. As the trial court correctly noted, any claim of breach of contract is premised on plaintiffs’ contention that the Commissioners lacked authority to amend the Civil Service Rules without a recommendation from the Civil Service Board. Because we hold the Commissioners had authority to amend the Civil Service Rules without a recommendation from the Civil Service Board, plaintiffs’ breach of contract claim also must fail.

3. In plaintiffs’ final enumeration of error they assert the trial court erred in determining that they did not possess a property interest in the Civil Service Rules. In analyzing this claim, it is important to note that plaintiffs are not asserting a claim in continued employment, as is typical of procedural due process claims arising from employment situations, but rather seek to establish a property interest in the Civil Service Rules, particularly those concerning promotions for public safety employees which were recently amended by the Commissioners. We hold plaintiffs have failed to state a substantive basis for their property interest claim. Plaintiffs fail to cite and we are aware of no authority which establishes a vested right to a promotion or to a certain promotion procedure. “[A] prospective promotion is not a property or liberty interest protected by the fourteenth amendment.” Wu v. Thomas, 847 F2d 1480, 1485 (11th Cir. 1988), cert. denied sub nom., Wu v. Board of Trustees of Univ. of Ala., 490 U. S. 1006 (109 SC 1641, 104 LE2d 156) (1989). Moreover, a civil service employee’s property rights are not violated when a governing authority acts within its power to amend civil service rules in a manner that is non-discriminatory in nature.

The cases relied upon by plaintiff are factually inapposite to this case. In Clark v. State Personnel Bd., 252 Ga. 548 (2) (314 SE2d 658) (1984), our Supreme Court was not faced with the issue of whether plaintiffs had a protected property interest. See Brown v. Ga. Dept. of Revenue, 881 F2d 1018, 1024 (11th Cir. 1989). However, as our Supreme Court recognized in Clark, merit systems of employment such as the Clayton County Civil Service System protect persons rather than positions. Clark, 252 Ga. at 550 (2) (b). Because plaintiffs did not show how they personally have been detrimentally effected by the change in the promotion process for public safety personnel, under the rationale of Clark they have failed to show how any property interest they may have in the Civil Service Rules has been violated.

The Brown decision, which is also relied upon by plaintiffs, is factually distinguishable from this case. In that case, the asserted property right was in plaintiff’s continued employment with the Georgia State Merit System. Plaintiff made a factual showing he had been dismissed without being afforded a hearing by the State Personnel Board and that the State Merit System required dismissal for cause. Brown, 881 F2d at 1024-1028. As is discussed fully in Division 1, plaintiffs have made no showing that the Commissioners are without power to amend the Civil Service Rules until they first receive the recommendation of the Civil Service Board to so amend the rules. Furthermore, plaintiffs do not allege any personal harm, e.g., that they have been denied a promotion under the promotion policies as amended by the Commissioners. Accordingly, plaintiffs’ reliance on Brown and Clark is misplaced.

Plaintiffs also rely upon McIntosh v. Weinberger, 810 F2d 1411 (8th Cir. 1987), vacated sub nom., Turner v. McIntosh, 487 U. S. 1212 (108 SC 2861, 101 LE2d 898) (1988), on remand, 861 F2d 524 (8th Cir. 1988), cert. denied sub nom., McIntosh v. Carlucci, 487 U. S. 1217 (108 SC 2870, 101 LE2d 905) (1988). In McIntosh, the plaintiffs brought suit alleging discrimination on the basis of race, national origin, and age in certain promotion actions of Automated Logistics Management Systems Activity, a branch of the United States Army. In addressing the plaintiffs’ procedural due process claim in that case, the Eighth Circuit Court of Appeals examined the argument within the context of whether a certain individual defendant was entitled to qualified immunity from plaintiffs’ constitutional tort claim against him. Although the Eighth Circuit Court of Appeals initially allowed plaintiffs’ claim against the individual defendant, the plaintiffs in this case failed to point out in its briefs to this court that the original appellate decision in McIntosh was vacated by the United States Supreme Court. Turner v. McIntosh, supra. On remand, the Eighth Circuit Court of Appeals reversed its position that plaintiffs had stated a constitutional tort claim against the individual defendant and adopted the rationale set forth in Spagnola v. Mathis, 859 F2d 223 (D. C. Cir. 1988) (per curiam) (en banc). McIntosh v. Turner, supra, cert. denied sub nom., McIntosh v. Carlucci, supra. Because the original decision by the Eighth Circuit Court of Appeals in Mein tosh has been vacated and that court later reversed its decision, the first appellate decision in that case does not offer support for plaintiffs’ contention that they have a property interest in the Civil Service Rules. We hold the trial court correctly concluded plaintiffs failed to establish a protected property interest under the facts of this case.

Decided November 2, 1992.

Kirwan, Goger, Chesin & Parks, A. Lee Parks, Harlan S. Miller III, W. Drummond Deveney, for appellants.

Foster & Foster, Larry A. Foster, for appellees.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

       Even if the original appellate opinion in McIntosh had not been vacated, the strong factual distinctions between this case and McIntosh make the original opinion in that case weak authority for plaintiffs’ position at best. In this case, the Commissioners have acted within their authority in amending the Civil Service Rules concerning promotions of public safety employees. In McIntosh, the promotion process was undermined when the true results of an investigation of the promotion system were subverted. McIntosh v. Weinberger, supra, 810 F2d at 1433. Also, in that case the evidence permitted the conclusion that if the official had reported the results of the promotion reconstruction investigation, which he concealed and destroyed, corrective action would have been taken and the plaintiffs would have received the promotions they sought. Id. at 1436. Plaintiffs in this case, however, have not alleged or shown personal injury.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A1568.
    SMITH v. THE STATE.
    (424 SE2d 371)
   Cooper, Judge.

Appellant was convicted by a jury of selling cocaine in violation of the Georgia Controlled Substances Act and appeals his conviction and sentence.

At appellant’s trial, a special agent for the Georgia Bureau of Investigation testified that he was working undercover with an informant, driving around town attempting to make cocaine purchases from street-level dealers, when he and the informant saw a group of three black males, including appellant, standing in front of a pool hall. One of the three (the agent could not say whether or not it was appellant) hollered and waved at the agent and informant as they drove by. The agent and informant then circled the block and pulled into a side street which appellant motioned them into. Appellant approached the undercover car and, after the informant initiated a conversation with him, asked the agent and informant what they needed. They responded that they wanted one rock of crack cocaine. Appellant asked if they were police, and the agent responded, “does this look like a police car to you?” After examining the car and tag, appellant came back to the window and said he was leaving but would be right back with the cocaine. Appellant did return and place the cocaine on an arm rest of the agent’s car, and the agent paid him $20. The agent and informant then drove on, and appellant walked away.

Appellant testified that he was not a drug dealer and was simply walking down the street when the agent and informant called him over to their car and asked him for drugs; that he explained to them that he did not sell drugs but that some guys around the corner probably had some; and that he then simply did them a favor by taking their $20 around the corner and returning with their drugs. He argued that he was entrapped into providing cocaine, pointing out that the agent and informant were purposefully driving around town attempting to purchase cocaine; that they initiated the conversation with appellant; that they first mentioned drugs; and that they told appellant what they wanted to buy. The trial court properly instructed the jury on entrapment, but the jury found appellant guilty.

In his only enumeration of error, appellant contends that the State’s evidence was insufficient to prove beyond a reasonable doubt that he was not entrapped. OCGA § 16-3-25 provides that “[a] person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime.” Under Georgia law, however, there is no entrapment if the defendant is predisposed to commit the crime. Keaton v. State, 253 Ga. 70 (316 SE2d 452) (1984). In this case, a government agent testified that appellant motioned to him to pull into the side street, approached his car, asked him and his companion what they wanted and then sold them drugs. “Under the agent’s testimony, he had merely afforded appellant the opportunity to commit the offense and appellant had readily availed himself of that opportunity. . . . Appellant’s version of the events differed from the agent’s and, as to his predisposition to commit the crime, was exculpatory. . . . ‘[Hjowever, the appellant’s testimony concerning his lack of predisposition hardly went uncontradicted.. . . The appellant’s testimony certainly raised the defense of entrapment, but it did not demand a finding of such. (Cits.)’ ” Lawson v. State, 184 Ga. App. 204 (361 SE2d 210) (1987); accord Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530) (1989). The trial court properly submitted the issue of an entrapment defense to the jury, and the jury rejected that defense. Viewing the evidence in this case in a light most favorable to the verdict, it is sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant had not been entrapped. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 2, 1992.

Timothy L. Lam, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Pope, Judge.

text:
    A92A1615.
    WINCHESTER v. SUN VALLEY-ATLANTA ASSOCIATES et al.
    (424 SE2d 85)
   Pope, Judge.

Plaintiff/appellant Lamarion Winchester, by his next friend Lajuan Winchester, brought suit against defendants/appellees, the owners and managers of Sun Valley Apartments, seeking to recover for personal injuries plaintiff sustained when he fell over a brick retaining wall located on defendants’ property. The trial court granted defendants’ motion for summary judgment, and plaintiff appeals.

The record shows that at the time of the accident plaintiff, who was five years old, and his mother were visiting a friend of his mother who lived at Sun Valley. Plaintiff and some other children were playing kickball in an open field which was surrounded by several apartment buildings including the building where the friend lived. A brick retaining wall was located at one end of the field. The field as well as the retaining wall were visible from the friend’s apartment. Plaintiff was running to retrieve a ball when he fell over the wall and onto the sidewalk below. The wall, which ran the entire length of one end of the field, extended anywhere from one inch to one-and-one-half feet above ground level.

1. Plaintiff first contends the trial court erred in granting defendants’ motion to strike plaintiff’s response to defendants’ motion for summary judgment. The record shows that defendants filed their motion for summary judgment and supporting documents on September 28,1990. On November 30,1990, plaintiff filed his response to defendants’ motion, his statement of genuine issues of fact to be tried, his brief in opposition to defendants’ motion and his first amended complaint. On December 5, 1990, plaintiff also filed the affidavit of Belinda Crumbley, a resident of Sun Valley at the time plaintiff was injured. Defendants then filed a motion to strike plaintiff’s response on the ground that it was not filed within 30 days as required by Uniform State Court Rule (USCR) 6.2.

The gist of plaintiff’s argument to this court in support of this enumeration is that because defendants requested a hearing on their summary judgment motion, then plaintiff, pursuant to OCGA § 9-11-56 (c) and notwithstanding the time requirements of USCR 6.2, was entitled to file his response to defendants’ summary judgment motion at any time prior to any hearing which might be set on that motion. However, OCGA § 9-11-56 (c) refers only to the filing of opposing affidavits prior to the day of hearing and thus provides no authority for other responsive materials to be filed outside the 30-day period prescribed in USCR 6.2. See Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64 (1) (374 SE2d 785) (1988) (in which this court held that the trial court should have considered the affidavit filed by appellant even though it had not been filed within 30 days of appellee’s summary judgment motion).

In this case, contrary to plaintiff’s contentions on appeal, defendants did not seek to strike plaintiff’s affidavit filed December 5. Although defendants argued in their brief in support of their motion to strike that plaintiff’s affidavit did not create a genuine issue of material fact so as to preclude the grant of summary judgment to defendants, and likewise argued that nothing contained in plaintiff’s amended complaint should so preclude judgment in their favor, defendants did not seek to “strike” these documents. Defendants’ motion clearly pertained only to those responsive materials plaintiff filed on November 30, 1990. Likewise, the trial court did not refer to the affidavit or amended complaint in its order granting defendants’ motion to strike. The trial court did not err in striking plaintiff’s untimely response to defendants’ motion for summary judgment.

2. Plaintiff also argues that, even assuming this court affirms that portion of the trial court’s order granting the motion to strike, the pleadings, deposition testimony and affidavits of the parties show genuine issues of material fact which remain for resolution by the jury.

As to the issue of the standard of care owed to plaintiff, we agree that plaintiff occupied the status of an invitee in this case. “ ‘A guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises.’ [Cit.]” Paul v. Sharpe, 181 Ga. App. 443, 444 (1) (352 SE2d 626) (1987). Consequently, “[t]he applicable standard of care is that prescribed by OCGA § 51-3-1.” Id. at 445. “The general rule, however, is ‘that a landowner is not liable for injuries to an invitee arising from a patent defect on the premises preexisting the arrival of the invitee and of which the invitee knew or had the means of knowing equal to the landowner. . . . The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted. (Cit.)’ [Cit.]” Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991). See also Emory Univ. v. Duncan, 182 Ga. App. 326, 328 (2) (355 SE2d 446) (1987). “The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. [Cits.] However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care. [Cits.]” Georgia Farmers’ Mkt. Auth. v. Dabbs, 150 Ga. App. 15, 16 (2) (256 SE2d 613) (1979). See also Golf Club Co. v. Rothstein, 97 Ga. App. 128, 132 (102 SE2d 654), aff’d, 214 Ga. 187 (104 SE2d 83) (1958).

According to the deposition testimony of plaintiff’s mother, the top of the brick retaining wall which plaintiff contends constituted a defective condition on the property was visible from at least the distance of her friend’s apartment which was located approximately 72 feet away from the wall. At no point was the top of the wall even with the ground and at some points the wall extended one-and-one-half feet above ground level. The far right portion of the wall descended in a stair-like fashion and was also clearly visible. Under these facts, we agree with defendants that the undisputed evidence in this case shows the allegedly defective condition to be open, obvious and in plain view.

Plaintiff argues that notwithstanding the obvious nature of the hazard in this case, application of the “distraction” doctrine prevents the grant of summary judgment to defendants. See Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978). However, there is no evidence in this case that the plaintiff was distracted by any act of the defendants or by anything placed on the premises by them. Rather, if plaintiff was distracted in this case, it was only because of his own activities in playing and chasing after the ball. Indeed plaintiff’s original complaint states that “[w]hile running, in an attempt to retrieve a ball, plaintiff failed to notice the drop at the edge of the property, thereby falling over the edge and sustaining severe injuries.” “If the plaintiff was distracted solely by his own activities, his failure to observe a potential danger is not excused.” Georgia Farmers’ Mkt. v. Dabbs, 150 Ga. App. at 18. See also Stenhouse, 147 Ga. App. at 475.

“ ‘(R)egardless of the age or capacity of the injured person, if there is no breach of any legal duty on the part of the defendant toward such person, there can be no legal liability.’ [Cit.]” Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 50 (183 SE2d 7) (1971). “The proof offered clearly puts this case within the line of cases involving the “plain view” doctrine and effectively eliminates any “distraction” theory.” (Citations and punctuation omitted.) Emory Univ. v. Duncan, 182 Ga. App. at 328-329. It follows that the trial court did not err by ruling that defendants were entitled to judgment as a matter of law in this case.

Decided November 2, 1992.

Walker & Associates, Betty B. Walker, Denise E. Whiting-Pack, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, S. Deeann Boatright, for appellees.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1632.
    PETERS v. THE STATE.
    (424 SE2d 372)
   Pope, Judge.

Defendant Joseph Peters appeals his conviction for two counts of child molestation and one count of enticing a child for indecent purposes.

1. In his sole enumeration of error, defendant argues the trial court committed reversible error by allowing a teenaged friend of the victim to testify regarding hearsay statements made to her by the victim. At trial defendant objected to the witness’ testimony on the basis that conversations or “secret telling” between two teenaged girls is inherently unreliable because they do not have the maturity to understand the serious implications of allegations of child molestation.

The Child Hearsay Rule, OCGA § 24-3-16, is an exception to the hearsay rule. It provides “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” In Gregg v. State, 201 Ga. App. 238, 240 (411 SE2d 65) (1991), we set forth certain factors the trial court should consider when deciding if statements should be admitted pursuant to OCGA § 24-3-16. The factors include: “(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.” (Emphasis omitted.) Id. at 240 (3) (b). Applying these factors to the facts of this case, we hold the trial court correctly admitted the testimony in question pursuant to OCGA § 24-3-16. At the time the victim related this story to the witness both young women were 13 years old. There was no evidence to suggest the victim had a tendency to exaggerate or falsify information. The victim’s friend testified that discussing the acts of molestation obviously upset the victim and she began to cry. All of the victim’s out-of-court statements and her in-court testimony were consistent. Also, the victim consistently stated that the reason she did not tell anyone about the acts of molestation until she was 13 was because the defendant, her stepfather, threatened to kill her mother and harm her if she told. No one was present at the time of the conversation between these young women to coach the victim in any manner. All circumstances indicate that the victim’s statement to her friend had a sufficient indicia of reliability to render it admissible pursuant to OCGA § 24-3-16.

We refuse to hold, as defendant urges, that in order for the statement of a child to be admissible under the Child Hearsay Rule the witness relating the statement must be an adult. There is nothing in the language of the statute to suggest that the Georgia legislature’s intent was that only adults could present testimony under the statute; instead, any competent person may present such testimony. See OCGA §§ 24-9-1 and 24-9-5. In this case, the trial court conducted a hearing to determine the competency of this witness and she was shown to be competent to testify. We find no error in the trial court’s admission of the testimony on the basis urged by defendant.

2. Defendant also argues that the admission of the testimony of the teenaged witness was error because it impermissibly placed his character in issue and related to an incident which allegedly occurred well before seven years prior to the return of the indictment. Our review of the record reveals that the only objection the defendant raised at trial to the testimony in question was the competency of the witness. It is well-settled that “ ‘[e] numerations of error which raise questions for the first time on appeal present nothing for decision.’ . . . Martin v. State, 196 Ga. App. 145, 148 (4) (395 SE2d 391) (1990) .” Miller v. State, 201 Ga. App. 374, 375 (2) (411 SE2d 112) (1991) .

Decided November 2, 1992.

Keith A. Pflepsen, for appellant.

David E. Perry, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

       Defendant urges us to hold that because the act of molestation the victim described to her friend allegedly occurred when she was seven years old and the victim was thirteen years old at the time she told her friend, the span of time between the alleged abuse and the statement renders the statement unreliable. However, the victim testified that the defendant continued to molest her until she was 12 years old. Thus, at most a few months expired between the last occurrence of molestation and her statement to her friend. See Gregg, 201 Ga. App. at 241 (3) (b); Newberry v. State, 184 Ga. App. 356, 358 (2) (361 SE2d 499) (1987). That the victim did not relate all of the incidents of abuse to her friend and did not tell her about the most recent molestation acts does not preclude a finding that the victim’s statement possessed sufficient indicia of reliability to render it admissible. From the victim’s testimony at trial, it is clear that the occurrence she told her friend about was the most serious of the alleged acts of molestation.


author: Johnson, Judge.

text:
    A92A1764.
    GUYTON v. THE STATE.
    (424 SE2d 87)
   Johnson, Judge.

Bud Guyton was convicted of two counts of sale of cocaine. Following the denial of a motion for new trial, he appeals his conviction.

1. Guyton contends that the trial court erred in allowing testimony regarding a previous incident in which he was involved in a sale of cocaine. He argues that the evidence was insufficient to establish that he was the perpetrator of the other crime and that there were insufficient similarities between the previous offense and the offenses charged to meet the test of State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). He also argues that the two-year interval of time between offenses diluted the evidence so that the former does not tend to prove the latter. We disagree.

The state made a proffer of the similar transaction evidence at a pre-trial hearing. A police officer testified that Guyton had sold him four rocks of crack cocaine outside of the Jack of Diamonds Club in June 1986. The offenses for which Guyton was being tried in this case involve the sale of rocks of crack cocaine in April and May 1988, outside the same club. On one occasion he sold a “fifty,” a fifty-dollar rock of cocaine, to two undercover agents, on the other occasion he sold two rocks of cocaine to a citizen cooperating with police in their investigation. All three identified Guyton as the person from whom they had purchased the drugs. The previous incident involved the sale of the same drug in the same location two years prior to the arrests for the crimes presently being tried. “Evidence of similar crimes (or transactions) is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime (or transaction). Second, there must be sufficient similarity or connection between the independent crime (or transaction) and the offense charged.” (Citations and punctuation omitted.) Gulley v. State, 197 Ga. App. 131, 132 (2) (397 SE2d 609) (1990). There is no requirement that the previous offense be absolutely identical to the one being prosecuted. Woolfolk v. State, 202 Ga. App. 59, 61 (4) (413 SE2d 242) (1991). Further, two years is not too remote to bar the otherwise admissible evidence. See Gilstrap v. State, 261 Ga. 798, 799 (1) (b) (410 SE2d 423) (1991). We find sufficient similarity between the similar transaction and the offenses charged. The trial court did not abuse its discretion in admitting the similar transaction evidence.

2. Guyton contends that the trial court erred in permitting, over objection, the prosecuting detective to be seated at the counsel table, and not requiring that he testify first. This court has repeatedly held that decisions regarding exceptions to the rule of sequestration in order to facilitate the orderly presentation of evidence is a matter within the discretion of the trial court. See Ryles v. State, 177 Ga. App. 537 (339 SE2d 792) (1986); Bell v. State, 168 Ga. App. 336 (2) (308 SE2d 853) (1983). We find no evidence of abuse of that discretion, and accordingly, no error.

3. In his third enumeration of error, Guyton alleges that the trial court erred in denying a motion for mistrial after his character had impermissibly been placed in evidence. The testimony about which Guyton complains is as follows: “Basically we’ve gone into an area where we know people are trafficking drugs, based upon information from a registered source, in this case, a source from the Jesup Police Department. ... We proceeded to an area where we identified and targeted numerous individuals, one of which was Mr. Guyton, sitting at the defendant’s table.” The colloquy was offered by the undercover agent in response to a question during direct examination regarding the nature of the investigation.

The statement could well be understood to imply that Guyton had been targeted as a drug trafficker. There is nothing in the statement to suggest, however, why Guyton was targeted, and one would need to make a giant leap to conclude that Guyton was targeted as the result of previous criminal conduct. Such a conclusion cannot logically be drawn from the testimony as offered. “Whether to grant a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. [Cit.]” Williams v. State, 202 Ga. App. 741 (415 SE2d 331) (1992). We find no abuse of discretion in the trial court’s refusal to grant a mistrial.

4. Guyton also asserts that the trial court erred in admitting testimony of the prosecuting officer over a hearsay objection. The officer, in explaining why the police allowed a citizen to participate in their investigation, testified that “Ms. Jackson said that she knew quite a few drug deal(ers). . . .” This hearsay testimony was improperly allowed to explain the conduct of the police in enlisting the services of Ms. Jackson. See Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984); OCGA § 24-3-2. Nonetheless, it is clear from a review of Ms. Jackson’s testimony that she did not know Guyton until the day of the drug transaction in issue in this case. The jury thus heard testimony which precluded the possibility that the inadmissible hearsay made any reference to Guyton. Therefore we find that the admission of the officer’s testimony did not contribute to the verdict.

5. We find no merit in Guyton’s fifth and sixth enumerations of error regarding the charges given the jury on the presumption of innocence and reasonable doubt. We have reviewed the charges given in this case and find that the trial court read the pattern instructions to the jury on reasonable doubt.. The trial court charged the jury that Guyton is “presumed innocent until proven guilty. No person shall be convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.” This is a complete and accurate statement of law. “It is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court.” (Citations and punctuation omitted.) Smarr v. State, 199 Ga. App. 572, 573 (3) (405 SE2d 561) (1991). The charges as given present no error.

6. In his seventh enumeration of error Guyton asserts that the trial court erred in failing to instruct the jury that the indictment was not evidence. The court instructed the jury that members of the grand jury had returned a two-count indictment and the defendant had entered a not guilty plea, and “this forms the issue which you have been empaneled to try.” Guyton did not submit a charge regarding the effect of the indictment. “[W]here there has been no written request to charge, failure to give the charge is not error.” (Citations and punctuation omitted.) Lamb v. State, 196 Ga. App. 665, 667 (3) (396 SE2d 497) (1990).

7. Guyton also asserts that the trial court’s failure to give instructions to the jury regarding the weight to be given to an expert’s testimony constitutes error. The court’s charge on credibility of witnesses generally addressed bias and interest in the outcome of the case. With respect to opinion evidence, the jury was instructed that “the weight to be given opinion evidence is for you, the jury to decide.” As in Division 6, Guyton did not submit a charge on the issue of expert witness testimony and therefore cannot be heard to complain on this issue. See Meyer v. State, 201 Ga. App. 756, 757 (2) (412 SE2d 575) (1991).

Decided November 2, 1992.

Robert B. Smith, for appellant.

W. Glenn Thomas, Jr., District Attorney, Gregory C. Perry, Assistant District Attorney, for appellee.

James T. Neal, amicus curiae.

8. Guyton’s ninth and tenth enumerations of error, that the trial court erred in charging the jury on similar transactions, and that the trial court erred in denying Guyton’s motion for new trial are unsupported by argument or citation of authority. They are therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A92A1146.
    MUMFORD v. DAVIS et al.
    (424 SE2d 306)
   Beasley, Judge.

The issue is the effect in a renewal action of admissions made by default under OCGA § 9-11-36 (b) in the original action.

Mumford originally filed suit, pursuant to state law and 42 USC § 1983, for the alleged wrongful death of her son. He was shot and killed by Davis, a Savannah police officer. Defendants were the mayor and aldermen of the City of Savannah in their official capacities (“City”), the mayor, the city manager, the chief of police, and Davis, individually and in his official capacity. Davis filed and served requests for admissions under OCGA § 9-11-36, which were not objected to or answered and thus became admissions by operation of law. The suit was voluntarily dismissed after the time for response to the requests passed.

Within six months, Mumford renewed the action, as permitted by OCGA § 9-2-61. The mayor, city manager and police chief were dismissed from it by order of the court, which is not appealed.

Officer Davis, both individually and in his official capacity, and the mayor and aldermen in their official capacities representing the city moved for summary judgment. They were granted summary judgment in their official capacities based on the finding that the 42 USC § 1983 claim was time-barred. This ruling is not pursued on appeal.

Davis was also granted summary judgment on the claims remaining against him individually. The court applied Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984), and concluded that it could take judicial notice of the entire record in the prior action, including the prior admissions which conclusively established that no material issues of fact existed as to Davis’ liability. On that basis, the court con-eluded that Davis was not liable as a matter of law.

Mumford contends that summary judgment on the state claims against Davis could not be based on the admissions in the prior proceeding.

The question involves the construction of OCGA § 9-11-36 (b), which provides in pertinent part: “Any admission made by a party under this Code section is for the purpose of the pending action only and is not an admission by him for any other purpose, nor may it be used against him in any other proceeding.”

The plain language of the statute confines the use of admissions made pursuant to this discovery tool to the action in which they are made and forbids their use in a subsequent or other action. “[A]n action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo.” Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987); see also Bell v. Figueredo, 190 Ga. App. 163, 164 (1) (378 SE2d 475) (1989), reversed on other grounds, 259 Ga. 321 (381 SE2d 29) (1989). It is not the same action as to one it succeeds, in the sense that it is not a continuation of the concluded action, although it must “be substantially the same both as to the cause of action and as to the essential parties.” (Emphasis supplied.) Sheldon & Co. v. Emory Univ., 184 Ga. 440 (1) (191 SE 497) (1937).

The statutory prohibition was recognized in ETI Corp. v. Hammett, 152 Ga. App. 1, 2 (262 SE2d 211) (1979), in which it was held that an appellant which had waived any challenge to appellee’s dismissal without prejudice of an earlier action could not use appellee’s failure to respond to request for admissions in that case against him in the succeeding one. Williams v. Coca-Cola Co., 158 Ga. App. 139, 140 (1) (279 SE2d 261) (1981), acknowledged the interpretation given the statute in ETI Corp. and noted the significant distinction in useability between admissions contained in depositions or answers to interrogatories and admissions made under OCGA § 9-11-36; the former are admissible in proceedings other than that in which they originated while the latter may not be used against the admitting party in any other proceeding.

Petkas does not change this. It recognizes that judicial notice relates to matters of fact, not law, that judicial notice is a substitute for conclusive evidence. See Stone v. Lenox Enterprises, 176 Ga. App. 696, 697 (1) (337 SE2d 451) (1985). Petkas approved the trial court’s taking judicial notice of “records on file in its own court,” that is, judicial notice of the “physical record in the first suit before the same court,” id. at 108, when determining if the action before the court complies with the renewal statute, OCGA § 9-2-61.

Nevertheless, it is precluded by OCGA § 9-11-36 (b) from according judicial notice to admissions in such other cases. Thus the court in this case could take judicial notice of the previous case for the purpose of establishing the current one as a timely renewal action, but the statute shields the admissions from judicial notice or cognizance just as it shields them from being introduced as evidence in this subsequent suit.

Decided October 23, 1992 —

Reconsideration denied November 3, 1992

Richard L. Roble, for appellant.

Oliver, Maner & Gray, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, Miriam D. Lancaster, for appellees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


author: Beasley, Judge. Birdsong, Presiding Judge,

text:
    A92A1195.
    SPRINGSTEEN v. THE STATE.
    (424 SE2d 832)
   Beasley, Judge.

Springsteen pled guilty to possession of cocaine (OCGA § 16-13-30) and was afforded first offender treatment by an order from which he appeals. Two issues are presented, and we rule as follows.

First, the appeal right was adequately preserved. Second, on the merits of whether the search of the person and the seizure of incriminating evidence violated the Fourth Amendment right, the officer’s action did not exceed his authority or the scope of the consent voluntarily given by defendant.

As to the right to appeal, the court sufficiently indicated its exercise of discretion to accept the guilty plea on condition that the appellate issues were preserved. The colloquy preceding the entry of the guilty plea was as follows. States counsel: “I believe that Mr. Springsteen wishes to enter a plea of guilty today under the First Offender Act, but he’s also wanting to keep open his option of appealing the Court’s ruling on the motion to suppress and we have no objection to that at all.” State’s counsel then stated its version of the facts and the terms of the plea agreement. Appellant’s counsel concurred, but expressly conditioned the guilty plea on his client’s right to appeal the Fourth Amendment issue: “That’s correct, Your Honor, and it’s understood that he has a right to preserve his right to appeal.” In response to the court’s expression of uncertainty concerning the mechanics for preserving the issue for appellate review, appellant’s counsel began to explain the case law on the subject. The court interrupted, indicating its approval of the reservation of right: “If you’re satisfied, I’m satisfied.”

This is clearly a conveyance of the court’s willingness to accept the plea on that basis. That having been settled, the court then proceeded straightaway to move into the precautions for assuring the plea was valid and to accept the plea.

It would be exalting form over substance for us to conclude that the court did not expressly approve the reservation of the issue. No particular language is required. Since the panel case of Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1991), however, the courts should precisely express on the record an approval of the reservation of appellate issues when exercising the discretion to accept the plea. In this case, the obvious fact that the plea was conditioned on the right to appeal the court’s search and seizure ruling and that the court agreed to such procedure appears on the record. Thus we address the issue which all parties on the trial level expect us to decide.

Turning to the search and seizure, appellant raises the Fourth Amendment ground, so the search and seizure is measured by it. The evidence is as follows. Sergeant Medlock received a tip from a reliable confidential informant whom he had known for five or six years, and who in the past had always provided accurate information leading to arrests, search warrants, and convictions. The informant stated he had witnessed a black male inside the “Mr. Wonderful” club that night selling drugs at that location. He then provided a physical description of the person and his clothing.

Between ten and thirty minutes after receiving the tip, the police proceeded to the vicinity of the club. After seeing no one outside matching the description provided by informant, they entered the club. Appellant was inside sitting with two or three other males. He matched the description given by the informant and was wearing the clothing that had been described. Appellant agreed to accompany the officers outside where he was informed that the police had received a tip about an individual selling drugs, that appellant met the description provided, and that the police “needed to search him.” Appellant denied any knowledge about the sale of drugs.

Corporal Cone testified at the suppression hearing that he asked appellant if he could search him. Appellant shrugged his shoulders and said, “okay” in a very low voice, then turned around and voluntarily put his hands on the car in a search position. The officer conducted a pat-down type search and, although feeling no weapons, discovered a small, soft bulge in appellant’s left pocket. Suspecting that the bulge could be a small amount of drugs, he reached into appellant’s pocket and seized what was subsequently found to be two rocks of crack cocaine. At the time, the officer, by his own admission, was searching for drugs and not weapons; but he also was patting appellant down “for [his own] protection.” He knew the bulge in appellant’s pocket was not a weapon before he seized it, and that it posed no danger to him.

Pertinent here, the Fourth Amendment guarantees security against unreasonable state-initiated searches and seizures of the person. When the consent of the person to be searched is the authority for the action, the scope of the consent must be measured by all of the circumstances and not only what a person says in response to a request. The type, duration, and physical zone of intrusion is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Cits.]” Florida v. Jimeno, 500 U. S._(111 SC.1801, 114 LE2d 297, 302) (1991).

Consent may be as limited as the consenter wishes, and the search may not exceed the reasonably understood parameters. Defendant’s shrug of his shoulders, saying “okay,” and putting his hands on the police car out in the lane when asked if the officer could search him, could not reasonably be understood to allow search of all body cavities, for example, or even a removal of defendant’s clothing.

The suspect is not required to call a halt when the search has gone beyond the scope of consent given; the burden remains on the State to show that the scope of the officer’s search did not exceed the permission given.

In Amato v. State, 193 Ga. App. 459, 460 (2) (388 SE2d 54) (1989), the court held that the State failed to establish that the search did not exceed the scope of the consent given. The searches and seizures in State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989), and in State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991), were held to suffer the same infirmity. Compare Gossett v. State, 199 Ga. App. 286, 287 (1) (c) (404 SE2d 595) (1991), which facts are similar to those in Jimeno, supra, in that defendant’s knowledge of what the officer was looking for factored into the scope of the consent which was therefor given. Although all of these cases and Jimeno involve vehicle searches, the differences in the factual patterns between them and Springsteen’s case, involving search of the person, do not render the standard itself inapplicable.

Considering all of the circumstances, the search and seizure did not exceed the scope of the consent given.

Judgment affirmed.

Sognier, C. J., Carley, P. J., Pope, Cooper and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., and Andrews, J., dissent.

Birdsong, Presiding Judge,

concurring in part and dissenting in part.

Because I believe that the issue raised by appellant is not appeal-able and because it appears timely to define with greater precision the scope of Mims v. State, 201 Ga. App. 277 (410 SE2d 824), I dissent in part. However, I concur fully with the majority’s holding that the search and seizure was lawful and not in violation of appellant’s Fourth Amendment rights.

I also write because of my concern that the majority has so weakened the precedential value of Mims, by finding a tacit approval of a conditional plea to be tantamount to express approval, as to place primarily in the hands of attorneys the power to decide conclusively for this court the extent to which a plea of guilty or nolo contendere will serve to waive existing defenses. This matter, hopefully, will be addressed by the Supreme Court so that a definitive answer can be obtained regarding the effect, under existing Georgia law, of a purported conditional plea of guilty.

Appellant filed a motion to suppress certain evidence asserting it was obtained as the result of an illegal search conducted without probable cause. The trial court denied the motion. Subsequently, appellant pled guilty to the offense charged on condition that he be allowed to preserve a right to appeal the denial of the suppression motion. The State expressly agreed to the conditional plea on the record. However, the trial court, in my view, only tacitly approved the conditional guilty plea, and expressed a degree of uncertainty to appellant whether the right to appeal a suppression issue could be preserved, as revealed in the following colloquy: “[ASST. DA]: Okay. ... Is that your understanding of our plea agreement? [DEFENSE COUNSEL]: That’s correct, Your Honor, and it’s understood that he has a right to preserve his right to appeal. [THE COURT]: Well, to whatever extent this will preserve it. I don’t know that — [DEFENSE COUNSEL]: There’s a case, Your Honor. . . . [THE COURT]: If you’re satisfied, I’m satisfied.” (Emphasis supplied.) Thereafter, the plea providency inquiry continued without further reference or express acceptance by the court to the proposed condition, and notwithstanding the trial court’s earlier indication of uncertainty, appellant persisted in his plea and did not seek a clarification from the trial court as to whether his plea was being accepted conditionally or unconditionally. After the guilty plea providency inquiry was concluded and the trial court placed appellant on four years probation, under the First Offender Act, with certain terms and conditions of probation as stated in the record, neither the trial court nor defense counsel advised appellant on the record of any right of appeal or of the time limits pertaining thereto.

As a general rule, a plea of guilty unless properly accepted conditionally will waive any defenses or objections whether known or unknown, except an appellate issue of whether such plea was voluntarily made and accepted following proper inquiry by the trial court. Mims v. State, supra at 279 (1). There exists, however, the following strictly limited exception to this general rule. An appellant “may go behind the plea to show some supervening illegality of overwhelming proportions.” Addison v. State, 239 Ga. 622, 624 (238 SE2d 411). This exception concerns those cases where the error goes “ ‘to the very power of the state to bring the defendant into court to answer the charge brought against him.’ ” Id. As recognized in Blackledge v. Perry, 417 U. S. 21, 30 (94 SC 2098, 40 LE2d 628), an unconditional guilty plea does not preclude appeal of a claim of error grounded upon the “right not to be haled into court at all,” that is, jurisdictional and generally double jeopardy-type errors. Moreover, Blackledge, supra, re-affirms that other claims of error, including claims of “ ‘antecedent constitutional violations’ or of a ‘deprivation of constitutional rights that occurred prior to the entry of the guilty plea’ ” will not be appealable following acceptance of the unconditional guilty plea. Thus, it appears that while a claim of constitutional double jeopardy or lack of jurisdiction (and perhaps a claim of violation of Georgia’s procedural double jeopardy provisions) generally would survive an unconditional plea of guilty, Addison, supra, other non-jurisdictional defects in pretrial proceedings, whether or not of constitutional magnitude, could not be asserted on appeal. Blackledge, supra; Harris v. Hopper, 236 Ga. 389, 391 (224 SE2d 1); compare Fuller v. State, 182 Ga. App. 614 (356 SE2d 554). Accordingly, unless appellant’s conditional plea of guilty was properly accepted, his enumeration of error regarding the trial court’s failure to grant his suppression motion cannot be considered on appeal.

Decided November 3, 1992.

Stephen R. Yekel, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

In Mims, supra, we unequivocally held that “defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved; and an unconditional guilty plea will waive any defenses and objections.” (Emphasis supplied.) Even when the State expressly agrees with the proposed conditional guilty plea of defendant, as also required by Mims, supra at 278 (1), all defenses and objections, as above discussed (including those concerning the legality of searches and seizures) are waived and will not be considered on appeal unless the record reveals affirmatively that the remaining requirements of Mims, supra, also have been met, i.e., that the trial court expressly approves the proposed condition and unequivocally accepts the guilty plea with that condition. Thus, a proposed conditional guilty plea which has been accepted only tacitly by the trial court, such as occurred in this case, will not comply with the strict and bright line requirements of Mims.

Finally, I question whether an appellant who enters a so-called conditional guilty plea has taken the first genuine step toward rehabilitation. Rather than acknowledging criminal culpability and standing ready to accept lawful and adequate punishment, such an offender seeks to cloak himself in any protective sentencing mantel which a guilty plea affords without relinquishing any entitlement to the legal weapons at his disposal in his unabated quest to overturn the very conviction to which he has entered his plea of purported contrition.

As appellant’s sole enumeration of error is, “did the trial court commit error by denying appellant’s motion to suppress,” which is a nonappealable issue for reasons above discussed, this appeal should have been dismissed. Mims, supra.

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

       In Ashley v. State, 261 Ga. 488 (405 SE2d 657) (1991), the reservation of a right to appeal was acted on by the Supreme Court on the following record. An “entry of guilty plea” form contained a handwritten statement that defendant “reserv[es] right to appeal order admitting his custodial statements.” Although signed by the prosecuting attorney, defense counsel and the defendant, and by the clerk as having been filed, no express acceptance by the court was shown on the face of that document or elsewhere. The record on appeal did not contain a transcript of the guilty plea proceeding.

        Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974), is explicitly based on the Due Process Clause of the Fourteenth Amendment and expressly not on the Double Jeopardy Clause. That is, North Carolina’s attempt to try Perry on a felony assault charge when he was entitled to a trial de novo on a misdemeanor assault charge violated due process because the state had first chosen the less serious charge and could not switch to a more serious charge in a higher court just because defendant elected to go there for trial of the lesser charge. The distinction the Court made is that “[t]he very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.” Supra at 30-31. In footnote 8 the Court refers to “the very institution of the felony indictment.”
      A federal double jeopardy claim was held to survive a guilty plea in Menna v. New York, 423 U. S. 61 (96 SC 241, 46 LE2d 195) (1975). The reason is that the United States Constitution precludes a state from “haling a defendant into court on a charge” for which he has already pleaded guilty and been punished. The court cautioned, however: “We do not hold that a double jeopardy claim may never be waived.” Id. at 63, fn. 2. In Georgia, double jeopardy concerns exceed those of the Fifth Amendment, and might be waived by the unconditional guilty plea, at least insofar as the federal constitution is concerned.


text:
    A92A1436.
    STEVEN E. MARSHALL, BUILDER, INC. v. SCHERER.
    (424 SE2d 841)
    Decided November 3, 1992.

      David N. Levine, for appellant.

      Lightmas & Delk, Glenn A. Delk, for appellee.
   Cooper, Judge.

We granted this discretionary appeal to consider whether the trial court erred in assessing attorney fees against Steven E. Marshall, individually, pursuant to OCGA § 9-15-14.

Appellant sued appellee for breach of a construction contract and conversion. At trial, the court directed a verdict in favor of appellant on the breach of contract claim and directed a verdict for appellee on the conversion claim. Appellee then moved the court for an award of attorney fees against appellant, appellant’s trial counsel and Steven E. Marshall (“Marshall”), individually, pursuant to OCGA § 9-15-14. The court granted appellee’s motion, assessing one-half of the award against Marshall and the other half against appellant’s counsel. Appellant enumerates as error the trial court’s award against Marshall, individually, because he was not a party or attorney in the case. Appellee contends that the findings of the trial court demonstrate that Marshall was directing appellant’s activities and that appellant was nothing more than Marshall’s alter ego. However, the trial court did not reach such a conclusion nor was the issue raised by appellee below.

OCGA § 9-15-14 authorizes an award of attorney fees against an attorney or party which the court finds brought or defended an action that lacked substantial justification or was interposed for delay or harassment. Although the trial court refers to Marshall individually in its findings, the record demonstrates that Marshall is not a party in the case; therefore, the court was without authority to impose fees against him under OCGA § 9-15-14. See Watkins v. M & M Clays, 199 Ga. App. 54 (3a) (404 SE2d 141) (1991).

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


author: Andrews, Judge.

text:
    A92A1443.
    ADAMAVAGE v. HOLLOWAY et al.
    (424 SE2d 837)
   Andrews, Judge.

Tammy Adamavage, the mother of the child, appeals the trial court’s order awarding paternity to Holloway and legitimating the child arising out of the following facts.

On September 5, 1991, Holloway filed a paternity action, alleging that he was the child’s father and seeking to have Adamavage submit to a blood test to resolve this issue. On September 23, 1991, the court ordered that both parties submit to blood testing in an effort to determine paternity.

Although the “temporary order” is not in the record, apparently on November 15, 1991, prior to Adamavage obtaining representation, the trial court held a hearing and entered a temporary order. That order found that the paternity of the child had been established by the results of blood tests and granted Holloway visitation rights and ordered him to pay child support.

On December 3, 1991, Adamavage filed an answer in which she admitted that Holloway was the biological father of the child, but she stated that her child was illegitimate and that Holloway therefore had no visiting or custody rights. She claimed that she had exclusive parental custody and control of the child. Thereafter, on December 5, 1991, Holloway filed an amendment to his petition in which he sought to legitimate the child. Adamavage filed an answer within 30 days to that pleading, in which she admitted that Holloway was the child’s father, but objected to Holloway’s attempted legitimation of the child. Thereafter she filed a pleading specifically objecting to the legitimation of the child.

On February 10, 1992, the case came for a hearing. During the hearing, the court ordered stricken Adamavage’s answer to the petition to establish paternity. The court also entered an order which legitimized the child, determined that Holloway was the father of the child, and set forth Holloway’s visitation and child support obligations. Adamavage filed an application for discretionary appeal in response to this order, which we granted.

1. Adamavage raises two enumerations of error. First, she contends that the trial court erred in refusing to allow her to present her objections regarding the legitimation. At the hearing in February, Adamavage attempted to present evidence regarding the best interests of the child. The transcript of the hearing establishes that the trial court did not allow the mother to present her objections to the legitimation.

“In deciding whether to grant or deny the legitimation petition, the court must consider the best interest of the child and is not bound by the desires and contentions of the parents. [Cit.] In making this determination, the court must examine the benefits that might flow to the child if she were legitimated and to consider the legal consequences of the grant of the petition.” In re Application of Ashmore, 163 Ga. App. 194, 195 (4) (293 SE2d 457) (1982). “We have long held that when a child is born or conceived in wedlock there is a presumption of legitimacy. The legislature has enacted a similar rule but has provided that the strong presumption of legitimacy may be disputed. To overcome the presumption, the proof must be ‘clear.’ OCGA § 19-7-20 (b).” In re White, 254 Ga. 678, 679 (1) (333 SE2d 588) (1985).

Decided November 3, 1992.

Keith A. Pflepsen, for appellant.

Robert H. Revell, Jr., for appellees.

The procedural requirements which the father must follow to legitimate a child are set forth in OCGA § 19-7-22, and the mother’s right to object to such proceedings has been clarified by various cases. “ ‘[T]he father’s right to legitimate is absolute subject only to the qualification that the natural mother may object and if she shows valid reasons why the petition should not be granted, the judge may deny it.’ ” Mabry v. Tadlock, 157 Ga. App. 257 (277 SE2d 688) (1981); In re Pickett, 131 Ga. App. 159, 161 (205 SE2d 522) (1974). In In re Application of Ashmore, supra, the court acknowledged that although the statute only provides for notice to the mother, “this court has found that this notice implies a right to file objections to the petition.” See also In the Matter of J. M. S., 257 Ga. 630 (362 SE2d 56) (1987).

Despite the discretionary nature of an order of legitimation, see Ashmore, supra, it is apparent here that Adamavage was never given a meaningful opportunity to present her objections to the petition and that the trial court interpreted Holloway’s right to legitimate the child as absolute. Accordingly, we must reverse the trial court’s order regarding legitimacy and remand for a hearing on that issue.

2. Adamavage’s second enumeration contends that the trial court erred in denying her request for a jury trial. Pretermitting the issue of whether her request for a jury trial in a lawsuit of this nature was proper, there was no error in the court below because she did not demand in writing a jury trial. See 1983 Ga. Const., Art. I, Sec. I, Par. XI.

Judgment reversed and remanded.

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

       Adamavage’s answer to Holloway’s petition of September 5, 1991, was not timely filed and was in default. Nevertheless, because the original petition did not address the legitimation issues, Adamavage’s default had no bearing on that issue. See generally Jones v. Cooke, 169 Ga. App. 516 (313 SE2d 773) (1984); see also OCGA § 9-11-54 (c) (1).


text:
    A92A1652.
    MARION v. THE STATE.
    (424 SE2d 838)
   Pope, Judge.

Defendant Anthony Tyrone Marion was convicted by a jury of two counts of child molestation. He appeals following the denial of his motion for new trial.

1. The record shows that at the commencement of the trial of this case the State made a motion in limine to preclude the introduction of evidence, “either through questions of the witnesses or through defendant’s own testimony” concerning the fact that the victim had beén molested by her father. During the argument on the motion in limine it was revealed that the victim had last been molested by her father in August 1990; the molestation by the defendant allegedly occurred in December 1990. The trial court, over the objection of the defendant, granted the State’s motion. The defendant argues that the effect of the grant of the motion in limine was to deny him his constitutional and statutory rights to confront and cross-examine the witnesses offered against him at trial. Specifically, defendant contends that he should have been allowed to cross-examine an expert witness for the State who gave certain testimony about the child sexual abuse accommodation syndrome. We agree and reverse.

“ ‘Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than (the) accused, is inadmissible. (Cits.)’ Stancil v. State, 196 Ga. App. 530 (1) (396 SE2d 299) (1990). Moreover, ‘evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex. (Cit.)’ Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990).” Burris v. State, 204 Ga. App. 806, 809-810 (420 SE2d 582) (1992). However, this court also has held that when evidence of the child abuse accommodation syndrome is introduced at trial, evidence that the victim has been molested by someone other than the accused may be admissible to establish other possible causes for the behavioral symptoms exhibited by the child. Hall v. State, 196 Ga. App. 523 (2) (396 SE2d 271) (1990); Jimmerson v. State, 190 Ga. App. 759 (380 SE2d 65) (1989); see also Burris v. State, 204 Ga. App. at 809-810 (2).

The State seeks to distinguish the case at bar, however, on the basis that the witness in this case never testified that the victim “suffered from” the child abuse accommodation syndrome. Regarding this issue the record shows the defendant elicited questions from the witness about her familiarity and qualifications to testify about the syndrome, that the first question the State asked the witness following her qualification as an expert was to explain to the jury the syndrome and how she used the syndrome in her work, that in response to the State’s question the witness listed the five elements or indicators of the syndrome, that on several occasions the State requested that the witness evaluate certain behaviors of the victim “using the child abuse accommodation syndrome and the factors that you used” and that the witness also referred to certain behaviors of the victim in the context of the syndrome. The State clearly sought to inform the jury about the child abuse accommodation syndrome in this case, and elicited testimony from the witness about how the victim’s behavior was consistent with the elements of the syndrome.

“Testimony regarding the syndrome and all the child’s symptoms . . . having been properly admitted, the evidence regarding other possible causes of her behavior and injuries was necessary to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the . . . existence of behavior consistent with the child sexual abuse accommodation syndrome was that the victim had been molested by [defendant]. Moreover, a jury’s awareness that the victim had been molested previously could affect its judgment of the victim’s credibility, as the credibility of a young child’s report of an improper touching must necessarily be greater if the child has had no occasion to learn about such behavior from prior incidents.

“In light of . . . the fact that the evidence supporting the jury’s conviction of [defendant] [though clearly sufficient] was not overwhelming, but was largely dependent on the testimony of the victim (and that of others as to what she told them), the exclusion of this evidence was not harmless, as we cannot say that it is ‘ “highly probable that the error did not contribute to the judgment.” ’ Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Accordingly, [defendant] must be afforded a new trial.” Hall v. State, 196 Ga. App. at 525-526. Jimmerson v. State, 190 Ga. App. at 761 (1).

2. Defendant also contends that the trial court improperly intimated an opinion as to the evidence adduced at trial, in violation of OCGA § 17-8-57. Considering defendant’s arguments in support of this enumeration in reverse order, our review of the transcript shows that the trial court charged the jury they should acquit the defendant if they had a reasonable doubt as to his guilt, and that such charge immediately preceded the language defendant now complains of concerning the jury’s duty to convict. Taken in context, and considering the charge as a whole, we find no error.

Decided November 3, 1992.

Brian Steel, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Suzanne Wynn, Assistant District Attorneys, for appellee.

Lastly, we find it unlikely that upon retrial the court will repeat an allegedly improper statement made to the jury during the course of a discussion concerning certain evidence and thus find it unnecessary to address defendant’s remaining argument to this court.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.

       The State also argues in a footnote that the defendant failed to make a proffer of the evidence outside the presence of the jury as was done in Jimmerson, 190 Ga. App. at 760 (1). However, we reject any suggestion that defendant has waived his right to pursue the argument he now makes to this court. Pursuant to the ruling of the trial court on the motion in limine that defendant was prohibited from eliciting testimony concerning the prior molestation, and the State requested the court during trial to reiterate to defense counsel that he was prohibited from asking any question to any witness about the prior incident. The defendant sought permission to perfect the record concerning the prior molestation evidence during the testimony of the victim but the court refused defendant’s request. Finally, defendant made a motion for mistrial at the close of the case based on “misidentification in the sense that because of the child’s . . . prior history of molestation, that she may have been transferring her traumas onto the defendant. . . .”


text:
    A92A1201.
    PRICE v. THE STATE.
    (424 SE2d 841)
   Pope, Judge.

Defendant Emile Frank Price appeals from the denial of his Plea and Amended Plea of Former Jeopardy. We affirm.

The record shows that on January 5, 1991, the car defendant was driving struck three cars stopped at the stop light at the intersection of North Avenue and Piedmont Avenue in the City of Atlanta. Defendant did not stop at the scene of the accident and proceeded westbound on North Avenue. Defendant travelled approximately one-eighth of a mile and then struck another car at the intersection of North Avenue and Williams Street on the Georgia Tech campus, causing the car he struck to strike two parked cars. Defendant failed to stop following this second collision and proceeded until he ran up on a curb on the Georgia Tech campus. Defendant was arrested by Georgia Tech Police and issued citations for the offenses of DUI, leaving the scene of an accident, running a red light and failure to stop at an accident with injuries. Defendant was also charged with leaving the scene of the North Avenue and Piedmont Avenue collision by a City of Atlanta police officer who issued defendant a citation for that offense while he was in custody on the Georgia Tech campus.

On February 14, 1991, defendant appeared in the City Court of Atlanta in connection with the leaving the scene of the accident charge issued by the Atlanta police officer. On February 21, 1991, defendant again appeared in the City Court and entered a plea of nolo contendere to the charge of leaving the scene of the accident. On February 26, 1991, the uniform traffic citations issued by the Georgia Tech police officer were filed in the State Court of Fulton County. Defendant subsequently filed a Plea and Amended Plea of Former Jeopardy, urging that the prosecution in State Court was barred by the federal constitutional prohibitions against double jeopardy and by OCGA § 16-1-7 (b), the procedural aspect of double jeopardy. Held:

1. OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. ...” Pretermitting whether the crimes here arose from the same conduct, we hold that the trial court correctly held that defendant failed to meet his burden of showing that “the proper prosecuting officer” had knowledge of all the charges against defendant prior to the entry of his plea in traffic court. OCGA § 16-1-7 (b) applies “ ‘only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.’ ” (Citation omitted.) Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987). Although defendant presented evidence that the judge presiding over the city court proceedings and the City of Atlanta police officer who testified at the proceedings discussed the other charges against the defendant when defendant first appeared in that court on February 14, 1991, undisputed evidence was also presented that none of the assistant solicitors who routinely handle cases in that court was present on that date. It has been repeatedly held by this court that the “ ‘proper prosecuting officer’ as that phrase is used in OCGA § 16-1-7 means the prosecuting attorney for the State.” Zater v. State, 197 Ga. App. 648 (1) (399 SE2d 222) (1990). Furthermore, no evidence was presented that the prosecuting attorney was present when defendant entered his plea on February 21.

Defendant posits, however, that even if the prosecuting attorney was not present during the city court proceedings, other evidence was presented to establish the requisite knowledge on the part of the prosecuting attorney. In support of this contention defendant argues that the record shows that on February 14 defendant’s trial counsel served “opposing counsel” by hand delivery with a Motion for Discovery and Entry of Appearance. Defendant argues that “opposing counsel” could only refer to one of the solicitors who prosecute cases in city court, and if the solicitor had investigated the facts behind the documents then this unidentified solicitor would have discovered the other charges against defendant. This argument must fail for several reasons. First, assuming arguendo that these documents, which bear no notation that they were ever filed with the court and both of which were marked “Client’s Copy,” were in fact served on “opposing counsel,” there is no evidence that they were served on the prosecuting attorney actually handling defendant’s case. See Baker, 257 Ga. at 569. Moreover, although the prosecuting attorney’s actual knowledge may be shown by circumstances surrounding the proceedings, see Soule v. State, 184 Ga. App. 598 (362 SE2d 155) (1987), this court has consistently rejected a constructive knowledge or “should have known” standard. Baker, 257 Ga. at 569; Powe v. State, 257 Ga. 563 (361 SE2d 811) (1987); Zater, 197 Ga. App. at 649. Defendant has failed to establish that the solicitor or assistant solicitor had actual knowledge of the additional charges against defendant at the time he entered his plea of nolo contendere. Accordingly, the trial court properly denied defendant’s plea of former jeopardy under OCGA § 16-1-7 (b). Anderson v. State, 200 Ga. App. 530, 532 (408 SE2d 829) (1991).

Decided November 4, 1992.

H. Clay Collins, for appellant.

James L. Webb, Solicitor, Helen A. Roan, Denise A. Hinds, R. Lee O’Brien, Assistant Solicitors, for appellee.

2. Citing Grady v. Corbin, 495 U. S. 508 (110 SC 2084, 109 LE2d 548) (1990), defendant also argues that the State, in violation of the federal constitutional prohibition against double jeopardy, will be required to prove conduct for which he has already been prosecuted in order to prove its case on the remaining charges stemming from the Georgia Tech citations. Pretermitting the issue of whether this argument was properly raised by defendant below, we find no merit to this contention. The remaining charges against defendant arose out of conduct which occurred at a separate location and involve separate facts and witnesses. The State would not be required to prove any conduct relating to the charge of leaving the scene of the first accident in order to prove the other charges against the defendant. Moreover, to the extent that this argument is premised solely on defendant’s speculation about what evidence the State will present at trial, it is premature and need not be addressed by the court. In sum, this enumeration is without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1342.
    MELLS v. THE STATE.
    (424 SE2d 844)
   Cooper, Judge.

Appellant was convicted in a jury trial of possession of marijuana and possession of cocaine with intent to distribute. This is the second appearance of appellant before this court. See Mells v. State, 197 Ga. App. 431 (398 SE2d 785) (1990). After the first appearance, on remand, the trial court determined that appellant did not waive his right to appellate counsel and that appellant was effectively represented at trial. The court then appointed counsel to represent appellant on appeal and granted appellant’s out-of-time appeal from the entry of judgment on the verdict and sentence.

1. Appellant enumerates as error the introduction of his 1987 conviction for possession of cocaine on the ground that the State failed to make the proper showing that the prior offense was similar to the crime with which he was charged in accordance with Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). “[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” Williams, supra at 642 (2b). Prior to trial, State notified appellant of its intention to introduce evidence of the 1987 conviction. However, at the 31.3 (B) hearing, the only showing made by the State prior to the introduction of the conviction was that the prior conviction for possession of cocaine involved 21 pieces of crack cocaine. The State did not demonstrate “how the conduct giving rise to the previous conviction was similar to the conduct alleged in the present case.” Id. at 643 (2d). Nor did the State “inform the trial court of the purpose for which the evidence was being offered and, therefore, it was impossible for the trial court to make the essential preliminary determination as to whether the state was introducing the evidence for an appropriate purpose.” Id. contrary to the State’s position, appellant’s objection to the evidence was properly preserved below; therefore, the conviction must be reversed.

2. Appellant contends the trial court also erred in allowing the State to elicit hearsay testimony from the arresting officer. At trial, the arresting officer was asked whether appellant’s girl friend ever told him the drugs seized from a search of appellant’s home were hers. Defense counsel objected, and the officer was permitted to answer. This clearly constituted hearsay testimony; however, any error in admitting the testimony was rendered harmless by the woman’s testimony to the same facts later in the trial. “Evidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence. [Cits.]” Lynn v. State, 181 Ga. App. 461, 464 (2) (352 SE2d 602) (1986).

Decided November 4, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, J. Wade Padgett, Assistant District Attorneys, for appellee.

Judgment of conviction reversed.

Sognier, C. J., and McMurray, P. J., concur.


author: Sognier, Chief Judge.

text:
    A92A1389.
    JACKSON v. WAL-MART STORES, INC. et al.
    (424 SE2d 845)
   Sognier, Chief Judge.

Beulah Jackson brought suit against Wal-Mart Stores, Inc. and Orkin Exterminating Company, Inc. seeking damages for injuries incurred when she allegedly slipped and fell on a pool of pesticide applied by Orkin at a Wal-Mart store in Vidalia. The trial court granted defendants’ motions for summary judgment, and Jackson appeals.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee Orkin. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The evidence in the record consists of depositions by Ray Taylor, the Orkin employee who sprayed pesticide at the Vidalia Wal-Mart store on the date in issue; Valinda Green Dixon, the Wal-Mart employee staffing the cafeteria where appellant fell; appellant; and appellant’s husband.

Appellant testified that as she entered the cafeteria around noon, she slipped and fell on something she could not see. She deposed that she did not know how long the slippery spot had been present on the floor and did not discover any stains or foreign residue on her clothing or shoes after the fall. Her husband deposed that after appellant fell and he had assisted her to a cafeteria booth, he looked back to the area of her fall and noticed there was a clear spot that appeared “real shiny” but that in order to see the spot “[y]ou really had to look for it. It wasn’t visible.”

Taylor deposed that he began spraying pesticide around 8:30 a.m. and completed the entire store in approximately an hour; that while he did spray pesticide in the cafeteria area, he did not spray the floor of the cafeteria where customers walked but instead sprayed only behind the counter where the food is processed; that the pesticide he used was applied so lightly it would not have formed a puddle; and that because the pesticide was water-based, not oil-based, it would not have left behind any slickness or stickiness and would have dried within an hour after its application. Wal-Mart’s employee, Dixon, deposed that she had seen the Orkin employee spraying pesticide shortly after 8:00 a.m. and confirmed that he did not spray in front of the counter. Although Dixon stated that after appellant’s fall she found a large slick spot on the aisle floor and in her deposition attributed the slickness to Orkin’s pesticide, she also deposed that she did not know the slickness was caused by the pesticide but instead explained she had surmised it was the pesticide because the Orkin employee was “the only one that was there” and that “anything that I would have spilt or a customer would have spilt would have shown. [The spot] was very invisible.”

We find no error in the trial court’s grant of summary judgment in favor of Orkin. “In order for a tort action in negligence to lie, there must be injury to the plaintiff resulting from the defendant’s negligence. [Cits.]” Church v. SMS Enterprises, 186 Ga. App. 791, 793 (368 SE2d 554) (1988). Pretermitting the question whether Orkin can be liable to appellant for work accepted by its employer, Wal-Mart, see generally Pennington v. Cecil N. Brown Co., 187 Ga. App. 621, 622 (371 SE2d 106) (1988), and on premises totally under the dominion and control of its employer, see generally Church, supra at 794, we agree with Orkin that in light of its burden as set forth in Lau’s Corp., supra, summary judgment in its favor was proper based on a total absence of any evidence indicating that the pesticide sprayed in the cafeteria by Orkin’s employee was the source of the slickness on the floor that caused appellant’s fall. Rather, the evidence is uncontroverted that the pesticide was not sprayed in the area where appellant slipped and that even had the pesticide spread by unknown means to that area, as Dixon opined, there is no evidence to rebut Taylor’s testimony that the pesticide residue would have been neither slick nor slippery.

Given that the record is devoid of any evidence that Orkin’s pesticide was a cause in fact of appellant’s fall, we do not agree with appellant that questions of fact exist for jury determination regarding Orkin’s alleged negligent breach of its duty to conduct an inspection of the area treated by its employee. Assuming, arguendo, that Orkin was under such a duty, “[b]efore any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon.” (Citations and punctuation omitted.) Sapp v. Effingham, County Bd. of Ed., 200 Ga. App. 695, 696 (1) (409 SE2d 89) (1991). Accordingly, the trial court properly granted summary judgment to Orkin. See generally Boyd v. Garden Center, 197 Ga. App. 198, 200-201 (3) (397 SE2d 626) (1990) (summary judgment to defendant proper in slip and fall case where plaintiff offered no probative evidence of a causal connection between her injuries and unsafe condition created by defendant).

2. As to appellee Wal-Mart, the evidence established that cafeteria patrons walk down an aisle with a counter on the left, where food displays and the cash register are located, and booths on the right. On the morning in issue, Dixon was the only Wal-Mart employee working in the cafeteria. Although the evidence is unclear precisely where in the aisle appellant allegedly fell, it appeared to have occurred near the entry area adjacent to a freezer but not in the vicinity of the drink dispenser or other consumables. Dixon deposed that after appellant informed her of the alleged fall, she found a slippery spot in the aisle where she understood from appellant the fall had occurred. She deposed that the slickness covered a one to two foot spot; that it was invisible; that she could feel it with her foot; and that when she realized it was slick, she contacted the store manager and together they scrubbed the floor until it was clean. She stated that none of the five to ten customers who had visited the cafeteria before appellant had reported any slippery areas in the aisle.

Dixon deposed that the floors are cleaned and mopped at night and that according to Wal-Mart policy or procedure, cafeteria employees “continuously watch for spills all through the day all over the snack bar.” However, according to Dixon, the aisle area where appellant allegedly fell was not visible to Dixon from her position behind the counter. She deposed that she did not leave her position behind the counter between 8:00 a.m. and 9:30 a.m. and that she had to come out from behind the counter to check the aisle after appellant’s fall. Dixon also deposed that no other Wal-Mart employee could have seen the aisle floor from their positions.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [s]he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

The evidence is uncontroverted that Wal-Mart had no actual knowledge of the slick spot in the aisle of the cafeteria. “ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity . . . and could easily have noticed and removed the hazard. (Cit.) Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ (Emphasis [deleted].) [Cit.]” Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988). See also Wiley v. Winn Dixie Stores, 204 Ga. App. 570, 571 (420 SE2d 20) (1992). The burden was upon Wal-Mart as movant for summary judgment to establish no genuine issue remained as to its lack of constructive knowledge under both these theories either by adducing evidence, Food Giant, supra, or by pointing out by reference to the record that there is an absence of evidence to support the case of appellant, the nonmoving party. Lau’s Corp., supra.

Although Wal-Mart’s employee, Dixon, was in the immediate vicinity of the fall, her unrebutted deposition testimony that from her work station she could not see that part of the floor where the slick spot was located constituted evidence effectively negating the possibility of constructive knowledge based upon the presence of an employee in the immediate area of the dangerous condition. Food Giant, supra. As to constructive knowledge based upon a failure by WalMart to exercise reasonable care in inspecting the premises, the evidence of record consists of Dixon’s statement that she was the only employee who had worked in the area from 8:00 a.m. to the time of the fall and that her job duties included checking continuously for spills. However, the record positively establishes that there was no inspection of the floor between 8:00 a.m. and 9:30 a.m. Given this evidence and Dixon’s testimony regarding her behind-the-counter duties and the absence of any other employees in the cafeteria the entire morning in issue, the fact that the aisle area where the fall occurred could not be seen by someone behind the counter and thus could not have been inspected, and the absence of any statement by Dixon that she adhered to Wal-Mart policy on the day in issue by inspecting all areas of the cafeteria, a question of fact exists whether Wal-Mart’s inspection for spills encompassed the area of the alleged dangerous condition. See Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988).

Decided November 4, 1992.

Hallman & Associates, D. Jay Stewart, for appellant.

Brannen, Searcy & Smith, David R. Smith, Karsman, Brooks & Callaway, Timothy J. Haeussler, for appellees.

Although a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous, Brooks v. Kroger Co., 194 Ga. App. 215 (1) (390 SE2d 280) (1990), the reasonable conclusion to be drawn by the evidence in the case sub judice is that no inspection at all had been made on the day in question of that section of the cafeteria aisle where the alleged dangerous condition existed. “Accordingly, the evidence did not eliminate [appellant’s] possible recovery under the theory that, as the result of a failure to exercise reasonable care in inspecting the premises, [Wal-Mart] had actionable constructive knowledge of the presence of the foreign substance. [Cit.]” Winn-Dixie of Greenville v. Ramey, supra at 259. In the absence of evidence that Wal-Mart conducted a reasonable inspection of the premises that would have discovered the foreign substance that caused the slickness on the floor, appellant was not required to present evidence establishing the length of time that the substance had been allowed to remain on the floor. Id.; see also Boss v. Food Giant, Inc., 193 Ga. App. 434, 436 (388 SE2d 37) (1989). Therefore; we hold that the trial court erred by granting Wal-Mart’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Cooper, J., concur.