author: Birdsong, Presiding Judge.

text:
    A97A2046.
    PLANET INSURANCE COMPANY v. FERRELL.
    (491 SE2d 471)
   Birdsong, Presiding Judge.

This damage suit arises from injuries sustained by appellee/ plaintiff Diane S. Ferrell in a vehicular collision. Appellant/defendant Planet Insurance Company appeals from the state court’s order granting partial summary judgment to appellee.

Planet is the insurer of Builders Transport, Inc., a motor carrier licensed to haul within Georgia. The collision occurred between a tractor-trailer owned by Builders Transport, driven by its employee Marvin Barron, who at the time was acting within the course of his employment, and an automobile owned and operated by appellee Ferrell. Although a self insurer under OCGA § 46-7-12 (d), Builders Transport had a liability insurance policy issued by Planet for damages over the $1,000,000 limit of its self insurance retention; this liability policy was in full force and effect at the time of the collision and was duly filed with the Georgia Public Service Commission.

Appellee filed suit in the Henry County Superior Court against Builders Transport and Marvin Barron. The same day, appellee filed this independent suit against Planet in Fulton County State Court seeking indemnification for damages averred to have resulted from four identifiable acts of negligence committed by Marvin Barron, the driver of Builders Transport’s vehicle.

The state court granted partial summary judgment in favor of appellee/plaintiff on the issue whether she could proceed against Planet in a direct action, subject to Planet’s rights to seek indemnity from its insured, and for stay of proceedings pending in another county. Held:

At the onset we must determine whether we have jurisdiction over this appeal. For reasons hereinafter discussed we conclude that we do not and that this appeal must be dismissed. An appeal may be taken from the grant of a partial motion for summary judgment within 30 days from the date the judgment is entered notwithstanding that other issues remain pending in the trial court, or within 30 days pending the conclusion of the trial. OCGA §§ 5-6-38 (a); 9-11-56 (h); Thomas v. McGee, 242 Ga. 441, 442 (1) (249 SE2d 242); Culwell v. Lomas &c. Co., 242 Ga. 242 (248 SE2d 641). Thus, as a general rule, OCGA § 9-11-56 (h) gives a losing party the right to a direct appeal from an order granting partial summary judgment or summary judgment on any issue or as to any party even though the judgment is not final under OCGA § 5-6-34 (a) or § 9-11-54 (b). See Culwell, supra at 243. This general rule, however, is not without exception; thus, for example, summary judgment will not lie against parties who lack standing to appeal such judgments (see generally Sawgrass Bldrs. v. Key, 212 Ga. App. 138 (441 SE2d 99); Shackelford v. Green, 180 Ga. App. 617 (349 SE2d 781), aff’d, 257 Ga. 9 (356 SE2d 27)), as to issues the adjudication of which would not be dispositive in whole or in part of the merits of the case under consideration (Robinson v. Franwylie, Inc., 145 Ga. App. 507 (244 SE2d 73)) or as to matters in abatement (Ogden Equip. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459)).

Appellee’s motion for partial summary judgment pertinently provides: “Comes now [appellee/plaintiff] in the above-styled civil action, and hereby moves this court for partial summary judgment on the issue of the propriety of proceeding against the [appellant/defendant] herein, as insurer of Builders Transport Inc., under the direct action statute OCGA § 46-7-12 (e), and staying proceedings against Builders Transport Inc. which [appellee/plaintiff’s] prior counsel filed in Henry County.” (Emphasis supplied.) (The appellate record reflects that this motion for partial summary judgment was never amended.)

This motion on its face, clearly and unequivocally, requests partial summary judgment only as to the following two issues: first, on the issue of the propriety of proceeding against appellant under the direct action statute, in its capacity as the insurer of Builders Transport, Inc., a motor carrier; and secondly, staying the proceedings against Builders Transport which had been filed (and were pending) in the superior court of another county. Further, this motion does not, on its face, seek partial summary judgment as to the scope of appellant insurer’s liability under the insurance policy at issue.

The trial court’s order stated that “having considered [appellee/ plaintiff’s] motion for partial summary judgment and [appellant/ defendant’s] response thereto, does hereby GRANT [appellee/plaintiff’s] motion for partial summary judgment.” The effect of this unqualified partial summary judgment order is to grant partial summary judgment as to those grounds expressly stated in the partial summary judgment motion; in this instance to find that it was proper for appellee/plaintiff to proceed with its independent suit against appellant insurer under the direct action statute and, purportedly, to grant a stay as to the separate action filed against the motor transport company and its driver in the superior court of another county. Neither of these issues is dispositive in whole or in part of the merits of the pending case at bar.

In Robinson v. Franwylie, Inc., supra at 509 (1),. we recognized that OCGA § 9-11-56 (d) “‘does not authorize the initiation of motions the sole object of which is to adjudicate issues of fact which are not dispositive of any claim or part thereof.’ ” This same principle equally applies to motions the sole object of which is to adjudicate issues of law or mixed questions of law and fact which are not dispositive of any claim or part thereof. (Compare the underlying action in this case and the claims averred in the pleadings with the underlying action which involved the dispositive interpretation of a default provision in a partial purchase agreement in Fleet Finance v. Countryside Estates, 217 Ga. App. 371 (457 SE2d 246). Fleet Finance, supra, is distinguishable and the result there obtained is not controlling in this case.) Moreover, OCGA § 9-11-56 (d) does not recognize that a motion for partial summary judgment would lie as to the mere granting of a stay of proceedings, especially as to proceedings pending before a higher court in another county, or as to a mere question as to the “propriety of proceeding” in a direct action suit against an insurer. Neither of these questions is directly dispositive of any or all of the claims asserted in appellee’s complaint, and thus they are not proper subjects for disposition by way of summary judgment.

It is well established that pleadings, motions and orders are to be construed according to their substance and function and not merely as to their nomenclature, being always mindful to construe such documents in a manner compatible with the best interest of justice. Pettus v. Drs. Paylay &c., P.C., 193 Ga. App. 335 (387 SE2d 613) (motion contesting jurisdiction of trial court to consider plaintiff’s claim is a matter in abatement and not properly subject of a motion for summary judgment). Applying the appropriate rule of construction to appellee’s motion, we find it was not a viable motion for partial summary judgment; neither was the trial court’s order, which merely granted appellee’s motion in toto, an order granting a viable partial summary judgment motion. At best, appellee filed a two-part motion: the first part, in effect, sought either a declaratory judgment or an interlocutory order (not subject to the right of direct appeal) as to the propriety of proceeding under the direct action statute against the insurer, and the second part sought a continuance of a case pending in another jurisdiction. In any event, appellee’s motion, when viewed in its totality, did not give rise to a viable motion for partial summary judgment and, accordingly, this appeal presents only interlocutory issues, not subject to the grant of partial summary judgment within the meaning of OCGA § 9-11-56 (d) & (h), which were subject to application procedure. No application having been timely filed in the case sub judice, this appeal must be dismissed. See generally Richardson v. Gen. Motors Corp., 221 Ga. App. 583 (472 SE2d 143); Church v. Bell, 213 Ga. App. 44 (443 SE2d 677).

Appeal dismissed.

Ruffin and Eldridge, JJ, concur.

Decided August 26, 1997.

Gray & Hedrick, William E. Gray II, Thomas D. Trask, Julia J. Yofee, for appellant.

Kenneth L. Shigley, for appellee.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A97A1044.
    TOWNS v. THE STATE.
    (491 SE2d 497)
   Andrews, Chief Judge.

Pursuant to permission granted by the trial court, Dana Towns brings this out-of-time appeal from the judgment entered on his pleas of guilty to the offenses of burglary and theft by taking.

1. Although not raised by the parties, we first consider whether the trial court properly granted an out-of-time appeal. The trial court is authorized to grant an out-of-time appeal where the defendant’s failure to file a timely direct appeal was due to ineffective assistance of counsel. Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997); Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). In this regard, the Supreme Court has recognized that the right to effective assistance of counsel includes the defendant’s right to be informed of: (1) the right to appeal (including the right to appeal from a plea of guilty as to questions which can be resolved by reference to facts in the record), (2) the right to counsel on appeal (including the right to appointed counsel for indigent defendants), and (3) the dangers of proceeding without counsel. Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984); Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984).

The record reflects that Towns is indigent and that, after being fully informed as to his right to appointed counsel to represent him during the trial of the case and being given appointed counsel, he discharged his appointed counsel, waived that right and elected, against the advice of the trial court, to proceed pro se during the pre-trial proceedings and during the entry of his guilty pleas prior to trial. See Bentley v. Willis, 247 Ga. 461, 462-463 (276 SE2d 639) (1981). However, it does not appear from the record of the proceedings that Towns was informed of his right to appeal, his right to appointed appellate counsel, or the dangers of proceeding without appellate counsel. The record further reflects that, after the time for a timely direct appeal had expired, the trial court appointed appellate counsel to represent Towns, and counsel moved the court for an out-of-time appeal. Under these circumstances, the trial court properly granted the out-of-time appeal. Bell v. Hopper, 237 Ga. 810, 811 (229 SE2d 658) (1976).

2. Towns claims that, because the trial court led him to believe that his speedy trial demand was pending and valid, his subsequent guilty plea was not intelligently made.

When the case was called for trial, the State announced ready, and Towns said he was not reády for a variety of reasons. A discussion ensued between the trial court, the prosecutor, and Towns in which the trial court reminded Towns that he had refused appointed counsel against the advice of the court and had filed a speedy trial demand pursuant to OCGA § 17-7-170 indicating he wanted the case tried. After the trial court told Towns that he could not select appointed counsel of his choice and that the case would not be continued, Towns indicated his willingness to talk to the prosecutor about a guilty plea. Towns subsequently entered a plea of guilty to both counts of the indictment.

Towns contends that, because the record shows his speedy trial demand was not filed during the court term at which the indictment was filed, or during the next succeeding regular court term, or by special permission of the court, it was not valid under OCGA § 17-7-170 (a) and was not a basis to require that the State try the case. Apparently, he contends the trial court’s comments about the demand misled him and rendered his subsequent guilty plea involuntary. Even if the speedy trial demand was not timely filed, neither that fact nor anything the trial court said to Towns about the demand had any bearing on his subsequent guilty plea. There was no error.

3. Towns contends there was an insufficient factual basis to support the guilty pleas.

Uniform Superior Court Rule (USCR) 33.9 requires that the trial court subjectively satisfy itself on the record that there is a factual basis for a guilty plea before entering judgment on the plea. State v. Evans, 265 Ga. 332, 333-335 (454 SE2d 468) (1995). “[T]he record of the plea hearing must reveal the factual basis relied on so that a reviewing court may determine whether an abuse of discretion occurred.” Green v. State, 265 Ga. 263, 264 (454 SE2d 466) (1995).

The record of the plea hearing shows that, prior to the court’s acceptance of the guilty pleas by Towns, the prosecutor gave a description of evidence supporting the burglary charge and the theft charge. The indictment charged that Towns committed burglary by unlawfully entering the dwelling house of Bennette Arnold with the intent to commit a theft and charged him with committing theft on the same day by unlawfully taking Arnold’s automobile. The plea hearing record shows that, in taking Towns’ guilty pleas, the prosecutor stated on the record that he was charged in the indictment “with burglary and theft by taking auto.” The prosecutor offered to read the indictment, but Towns replied that, “It is not necessary.” The prosecutor stated that Arnold and Towns’ father lived together in an apartment and that they allowed Towns to stay there with them after Towns was released from prison. After Towns had been staying at the apartment for about two weeks, Towns’ father was convicted on criminal charges, and Towns was instructed to give the keys to the apartment back to Arnold. At that time, Arnold was not living in the apartment because she had moved in with her mother for a couple of weeks. The prosecutor stated that, “during that period of time[,] the defendant^] Mr. Towns[,] took two cars and, also, took a dining room suite, a refrigerator and a stove out of the apartment. . . . He would actually get a flatbed wrecker truck to come and take it.” The prosecutor stated that there was a witness who lived next door to the apartment who saw all this happen. The plea hearing record also indicated that the State had Mr. Towns’ incarcerated father brought in from a correctional facility to testify in the case.

The purpose of USCR 33.9, is “to protect against someone pleading guilty when that person may know what he has done but may not know that those acts do not constitute the crime with which he is charged.” Evans, supra at 334. To accomplish this purpose, “[a] trial court need not make itself aware of evidence establishing the pleader’s guilt beyond a reasonable doubt in order to satisfy itself subjectively that the pleader knows both what he has done and that those acts constitute the crime with which he is charged.” King v. Hawkins, 266 Ga. 655, 656 (469 SE2d 30) (1996). The plea hearing record shows facts sufficient to support a subjective determination by the trial court that Towns both knew what he had done and knew that those acts constituted the crimes with which he was charged. The trial court did not abuse its discretion in accepting the guilty pleas on this factual basis.

4. Towns claims the trial court erred by calling the case for trial before there had been a formal arraignment. See OCGA §§ 17-7-91; 17-7-94; 17-7-96. This contention is without merit. Towns pled guilty before the commencement of the trial indicating by his signature on the face of the indictment that he waived arraignment. See Frazier v. State, 204 Ga. App. 795 (420 SE2d 824) (1992). In any event, since Towns did not raise this claim at trial, it presents nothing for appellate review.

5. Towns claims the trial court abused its discretion by denying him a continuance of the trial.

Towns contends on appeal that the trial court denied his request to briefly continue the case so he could interview a witness. The record does not indicate that Towns requested a brief continuance for this purpose. It is obvious from a reading of the transcript that Towns was not requesting a short continuance but a continuance of the case from the calendar because he was unprepared to try the case pro se after having refused appointed counsel. There was no error in the trial court’s refusal to continue the case under these circumstances. See Cotton v. State, 223 Ga. App. 288, 289-290 (477 SE2d 425) (1996).

Decided August 27, 1997.

J. Robert Joiner, for appellant.

Paul L. Howard, Jr., District Attorney, Juliette O. W. Scales, Assistant District Attorney, for appellee.

Moreover, Towns waived any right to assert this claim by entering a valid guilty pléa. Schamber v. State, 236 Ga. 159 (223 SE2d 138) (1976); Morgan v. State, 191 Ga. App. 367, 368 (381 SE2d 583) (1989).

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1161.
    MANION v. THE STATE.
    (491 SE2d 506)
   Andrews, Chief Judge.

David Allen Manion appeals pro se from the trial court’s denial of his motion for an out-of-time appeal. He claims the trial court erred in denying his motion because his guilty plea was made involuntarily and unintelligently and he was denied effective assistance of counsel. We affirm the judgment of the trial court.

Manion was charged with two counts of aggravated child molestation. On April 13,1992, he pled guilty and was sentenced to two 20-year terms to run concurrently; fifteen years in prison and five years of probation. On August 28,1995, Manion filed a motion for reconsideration of sentence, and on April 16, 1996, he filed a motion for out-of-time appeal.

In his motion for out-of-time appeal, Manion claims his guilty plea was involuntary because “he was held incommunicado without benefit of counsel and subjected to coercion and interrogation. . . .” He contends his attorney rendered him ineffective assistance in that he advised Manion to plead guilty without investigating the strength of the case against him. Manion also claims counsel was ineffective in failing to advise him of his right to appeal.

The trial court correctly denied Manion’s motion for an out-of-time appeal. An out-of-time appeal is authorized when defendant’s failure to file a timely direct appeal was due to ineffective assistance of counsel. Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997); Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). “But in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issqe on appeal can be resolved by reference to facts on the record. Thé ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.” (Citations omitted.) Grantham, supra at 635.

Decided August 27, 1997.

David A. Manion, pro se.

Peter J. Skandalakis, District Attorney, Christopher J. Adams, Assistant District Attorney, for appellee.

Here, Manion makes no claim that the trial court failed to follow the proper procedure in taking the plea. Instead, he argues the plea was not voluntary and defense counsel was ineffective. “Under these circumstances, an out-of-time appeal is not mandated because the issues which appellant seeks to raise cannot be resolved by reference to facts contained in the record.” Grantham, supra at 636. These issues can be developed only in the context of a post-plea hearing. Likewise, his contention that he was not informed of his right to an appeal also fails because he has raised no questions concerning his right to an appeal which are capable of being resolved by reference to the record. Smith v. State, 266 Ga. 687, 688 (470 SE2d 436) (1996).

Therefore, since the issues of the voluntariness of his guilty plea and the effectiveness of his counsel can be resolved only in a post-plea hearing, it follows that the trial court correctly denied Manion’s motion for out-of-time appeal. Grantham, supra at 636. Manion must pursue a habeas corpus action as his remedy. Id.

Judgment affirmed.

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


author: McMURRAY, Presiding Judge. BEASLEY, Judge,

text:
    A97A1325.
    PECK v. THE STATE.
    (491 SE2d 507)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of possession of methamphetamine with intent to distribute, possession of marijuana with intent to distribute, and manufacturing marijuana. The evidence, including defendant’s statements, revealed that Hall County Deputy Sheriff David Spillers received a tip indicating that defendant “was involved in marijuana distribution and possession and that it was more than a street level type distribution, it was a distribution of larger quantities[, whereupon Deputy Spillers began] conducting surveillance.” Deputy Spillers received a second tip indicating that defendant “had received a shipment of marijuana from his suppliers and that he currently had it in his possession and was preparing to distribute the marijuana.” Deputy Spillers directed another officer “to prepare a search warrant and affidavit based on the information [the officers] had at the time and the corroboration of [t]hat information. . . . Shortly after 5:20 p.m. [defendant] came from his driveway in a gray van, small gray van and traveled down the street towards Lawson Robinson Road. [Deputy Spillers] followed. When [defendant] turned onto Lawson Robinson Road [Deputy Spillers] signaled for [defendant] to stop with [his] blue emergency light and [defendant] responded appropriately. . . .” Deputy Spillers was suspicious that defendant may have been “delivering some of the marijuana.”

Deputy Spillers “approached the driver’s side window of the gray van that [defendant] was operating, identified [him]self to [defendant], . . . showed him [his] badge of office and asked [defendant] was he Maurice Peck and [defendant] replied in the affirmative, and [Deputy Spillers] asked him, ‘Are you also known as Elvis?’ And he replied, Tes,’ and ‘Why?’ ” Deputy Spillers told defendant he was stopped “because of an allegation made against him of marijuana distribution and marijuana possession, and that it was [Deputy Spillers’] understanding that [defendant] had some marijuana at his residence.” Defendant “kind of dropped his head, looked down at the floorboard of the car and replied, Tes, I know what this is about,’ and that, ‘I’ve got some at home.’ ” Deputy Spillers “asked [defendant] if he would mind returning back to his home with [the deputy] and retrieving that marijuana, and [defendant] replied that no, he didn’t mind.”

Defendant led the officers “into a shed at the end of the driveway. [He] had some keys in his hand, was shuffling through the keys. As [they] walked into the doorway of the shed [defendant] turned to his right and located a particular key, unlocked a red rollaway tool chest and slid the bottom drawer out and when he did [the officers] could see several gallon-sized plastic Ziploc bags containing marijuana.” Defendant and his wife (now deceased) each gave their written consent to search the premises, after signing written Miranda waiver forms. In the shed, officers found a set of triple beam scales, a white plastic trash sack containing some marijuana, and a five-gallon plastic bucket holding “a couple of quart jars, mason type jars, that each contained marijuana.” Inside defendant’s home, “[u]nderneath the lavatory, . . . there [were] two gallon Ziploc plastic bags, each containing marijuana. . . .” Thirty-three marijuana plants were found on the property, including “seedlings [that had] just . . . germinated and come out of the ground and put on their first true leaves.” A “wire cage and frame [protected] those young plants.” The more mature plants “would be ready to harvest in about a month’s period of time.” In defendant’s truck the officers found “some plastic bag material and some self-adhesive bandaging material that contained] approximately 13 grams of amphetamine powder inside that material.” This was “underneath the driver’s seat tucked up in the seat springs.” Defendant also led officers “to a small quantity of marijuana in his bedroom.”

All told, the officers seized “Eight point three pounds [of marijuana], approximately,” not counting the growing plants. At “sixteen hundred dollars a pound, [that represented] about ten or eleven thousand dollars worth.” From the judgment of conviction entered on the jury’s verdicts, defendant brings this direct appeal. Held:

1. Defendant first contends the trial court erred in admitting the items seized from defendant’s home, arguing they are the fruits of an illegal arrest and illegal warrantless search.

(a) “Where a law enforcement officer has probable cause to believe that a vehicle (as opposed to a particular container within the vehicle), while in transit, contains contraband; i.e., where the objective facts known to the officer would justify issuance of a search warrant authorizing that a vehicle be searched, the ‘automobile exception,’ Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925), to the warrant requirement of the Fourth Amendment applies, and a warrantless search of the entire vehicle is not unconstitutional. . . .” (Footnote omitted.) Love v. State, 254 Ga. 697, 698-699 (334 SE2d 173). In the case sub judice, based on the two corroborated tips, Deputy Spillers had probable cause to believe that defendant was distributing marijuana using the gray van. Gilbert v. State, 212 Ga. App. 308 (1), 309 (441 SE2d 785). Thus, the initial stop was authorized. The analysis employed by the special concurrence is not erroneous. It is, however, inapplicable.

(b) Defendant’s roadside admission that he possessed marijuana at his home was not the product of custodial interrogation but was spontaneous on defendant’s part. Leatherwood v. State, 212 Ga. App. 342, 343 (2) (441 SE2d 813).

(c) “ ‘Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. (Cits.)’ Mallarino v. State, 190 Ga. App. 398, 403 (2) (379 SE2d 210) (1989). ‘ “A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)” ’ Wright v. State, 189 Ga. App. 441, 444 (1) (375 SE2d 895) (1988).” Boggs v. State, 194 Ga. App. 264 (390 SE2d 423). “ ‘(W)hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. . . .’ United States v. Matlock, 415 U. S. 164, 171 (94 SC 988, 39 LE2d 242, 249-250) (1974). Accord Walker v. State, 179 Ga. App. 782 (347 SE2d 711) (1986); Wilson v. State, 179 Ga. App. 780 (347 SE2d 709) (1986).” Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219). In the case sub judice, the written consent to search signed by defendant’s terminally ill wife was never revoked or withdrawn. Moreover, there is nothing in the transcript to show that, contrary to the statement she signed, her consent was in fact not freely and voluntarily given. McClure v. State, 166 Ga. App. 864 (1) (305 SE2d 456). The trial court did not err in admitting the contraband seized over defendant’s objections as to the absence of probable cause and the warrantless search.

2. Defendant enumerates the general grounds. In light of our holding in Division 1 that all the contraband seized was admissible, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of possessing both marijuana and methamphetamine with the intent to distribute and of manufacturing marijuana, as alleged in the indictments.

Judgment affirmed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

BEASLEY, Judge,

concurring specially.

I fully concur in Divisions 1(b), 1 (c) and 2, but I do not concur in the analysis in Division 1 (a).

In the trial court and on appeal, Peck challenged the stop as being in violation of his federal constitutional rights. Accordingly, the test is whether the officer had a “reasonable suspicion” that Peck was engaged in criminal activity at the time. Alabama v. White, 496 U. S. 325, 329-331 (110 SC 2412, 110 LE2d 301) (1990). That is what is needed to make an investigative stop, which is what the officer testified he was engaged in and what it was in fact. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979).

The officer “must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U. S. 1, 7 (109 SC 1581, 104 LE2d 1) (1989). A stop “must be justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). The officer must have knowledge of something which would “ ‘warrant a man of reasonable caution in the belief’ that [a stop] was appropriate.” Terry, supra at 22. The totality of the circumstances is to be taken into account when determining whether the stop is constitutionally valid. United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).

To stop a person in a vehicle from proceeding as the person intends thus requires a lower grade of justification than probable cause, which is needed to arrest or search. “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, supra at 330.

So, the unverified tip of an informant may carry enough indicia of reliability to justify the officer’s forcible stop of the person operating the vehicle. Adams v. Williams, 407 U. S. 143, 147 (92 SC 1921, 32 LE2d 612) (1972). In that case, the informant, who was known to the officer personally and had provided information in the past, approached the officer and advised that a person seated in a car nearby was carrying narcotics and had a gun at his waist. The information was immediately verifiable by a stop, and if it was untrue, the informant was subject to arrest for making a false complaint.

Officer Spillers stopped Peck on the strength of two telephone calls from an unidentified “confidential source” whose information had prompted Spillers and two other officers to surveil Peck’s house. The three officers were in Spillers’ unmarked police pickup truck, with one of the officers in the bed of the truck while they watched Peck’s mobile home. When Peck exited his home and began to drive off in a small gray van, Officer Spillers stopped him by using the blue emergency light on his dashboard. Peck was halted at a stop sign at an intersection the distance of seven premises from his home, at about 5:20 p.m. on the evening of June 9, 1995.

The source had called Spillers about 3:30 p.m. that afternoon, named Peck as being involved in more than a street level type distribution of marijuana and gave details as to how the distribution took place, from where the marijuana was supplied and by whom, the vehicles involved in delivering it to him, the way he distributed it and where it was kept. The source had given Spillers information for about two years, most often by telephone, and the information had been corroborated in at least two other drug investigations although no action was taken and no arrests made.

The source stated that within the past week the source had been at Peck’s home and personally observed a quantity of marijuana being kept and stored there in Peck’s possession. The source was described as “a mature person who has previously been involved in similar types of criminal activity.” The source described the residence and its location and said the source had a close relationship with Peck. The source made statements to Officer Spillers that were against the source’s penal interest. The source supplied Peck’s wife’s name and stated they owned a 1987 Ford Ranger pickup truck. This was verified, as was their residence and directions to it.

Decided August 27, 1997.

Robert E. Andrews, for appellant.

Lydia J. Sartain, District Attorney, Lucy K. Henry, Assistant District Attorney, for appellee.

The second telephone call from the confidential source came before the stop. The source advised that Peck received a shipment of marijuana from his suppliers, currently had it in his possession, and was preparing to distribute it. In one of the calls the source stated that Peck “occasionally” would make deliveries. The officer stopped Peck on the suspicion that he might be delivering some of the marijuana, although he testified that he told Peck he stopped him because he had information Peck had marijuana at his residence.

Although the vehicle Peck used to leave his residence was different from the one the source had described and which was confirmed as belonging to Peck and his wife, and although the information was only that Peck “occasionally” made deliveries, it was not unreasonable or a mere hunch, caprice, or inclination that Peck was in possession of marijuana when he drove off. See Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). According to the source, there was drug activity that day, by way of Peck’s receipt of a shipment, and it would be reasonable to deduce that Peck was beginning to distribute it so as to move it out of his house in exchange for money.

On this basis, I concur that the investigative stop did not contravene Peck’s Fourth Amendment right to be free of unreasonable seizure. Compare State v. Williams, 225 Ga. App. 736 (484 SE2d 775) (1997), where the information which prompted the invalid stop came only from an anonymous tipster, was not corroborated, and was not detailed.


author: Ruffin, Judge.

text:
    A97A1450.
    COLEMAN et al. v. MONTGOMERY COUNTY.
    (491 SE2d 495)
   Ruffin, Judge.

W. L. Coleman and Three Rivers Estates, Inc. (“Coleman”) owned property in Montgomery County, Georgia, near the point where the confluence of the Ocmulgee and Oconee Rivers creates the Altamaha River. In 1995, Coleman filed suit against Montgomery County and, pursuant to OCGA § 48-5-380, sought a refund of property taxes paid on this property in 1990, 1991, 1992, and 1993. The trial court granted summary judgment to the County, finding Coleman’s complaint did not state a cause of action under the statute. Coleman appeals, and we affirm.

In Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645 (458 SE2d 632) (1995), the Supreme Court held that a taxpayer cannot sue for a refund pursuant to OCGA § 48-5-380 unless the taxpayer can show the tax was “ ‘erroneously or illegally assessed and collected’ ” by demonstrating that “the assessment [was] based on matters of fact in the record which are inaccurate, or that the assessment was reached by the use of illegal procedures.” Id. at 647. The Court held that an action under the statute is not available where the taxpayer claims “mere dissatisfaction with an assessment, or [makes] an assertion that the assessors,, although using correct procedures, did not take into account matters which the taxpayer believes should have been considered (e.g., different comparable sales for the purpose of establishing value).” Id.

The trial court found Coleman had presented no evidence to support the necessary allegations. We review the trial court’s judgment under the standards set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) to determine whether the evidence, construed in Coleman’s favor, shows that any issue of fact remains as to whether Montgomery County used improper procedures to tax the property or based its assessment on inaccurate facts. Gwinnett County, supra. “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. [Cit.]” Lau’s Corp., supra at 491.

We find no error in the trial court’s ruling. Coleman contends that this property was appraised at an erroneously high value, especially compared to surrounding property, and attributes the discrepancy in value to the County’s failure to follow proper valuation procedures. However, the only evidence showing the procedures employed to value the property and the facts used to appraise it are the deposition and affidavit of Lawrence McCall, Montgomery County’s chief tax appraiser. McCall testified that he did not know what procedures or facts were used to value the property in 1990 and 1991, as he simply relied on values established by the previous tax assessor According to his review of the tax records, that land was “assessed at 40 [percent] of fair market value as required by law.” The 1992 values, he stated, were determined pursuant to “a reevaluation conducted by an independent contractor” from Mississippi. The County then assessed this property at 40 percent of its value. Although McCall did not specifically state what facts or procedures were used in making these appraisals, tax assessors, like all public officials, are presumed to perform their duties lawfully and in good faith unless proven otherwise. Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 192 (2) (c) (336 SE2d 562) (1985); see OCGA §§ 48-5-293; 48-5-299 (outlining duties of tax assessors).

Decided August 27, 1997.

M. Francis Stubbs, for appellants.

Johnson & Montgomery, Albert S. Johnson, for appellee.

Coleman alleges a question of fact is created by McCall’s admission that he simply relied on his predecessors’ appraisals. However, nothing in the record shows those appraisals were done erroneously or illegally. See Richmond County, supra. As the court specifically held in Gwinnett County, McCall’s failure to compare Coleman’s property with a nearby property similarly does not create an issue of fact. Id. at 647. The record simply does not support Coleman’s assertions that the County did not consider “existing use” when assessing the property’s value. Despite Coleman’s arguments, there is no evidence in the record that Montgomery County did not value the property at its fair market value, pursuant to OCGA § 48-5-2. Coleman argues the difference in appraised tax value between this property and adjoining tracts shows the County made an error or used an improper procedure. We do not find this assertion to be a reasonable inference from the evidence presented. Because Coleman has pointed to no evidence showing this property was illegally or erroneously assessed, the trial court properly granted summary judgment to the County.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J, concur.


text:
    A97A1497.
    WEBB v. CITY OF ATLANTA.
    (491 SE2d 492)
   Ruffin, Judge.

We granted claimant Ronald Webb a discretionary appeal in this workers’ compensation case. In September 1994, an administrative law judge (“ALJ”) ordered the City of Atlanta to pay temporary total disability benefits to Webb, a city employee injured on the job. The City did not appeal that order, but in May 1995 it unilaterally suspended the payments. City officials reasoned that because Webb had received benefits under a city-sponsored disability plan during the entire time he received workers’ compensation benefits, the City was entitled to a credit for the workers’ compensation benefits paid out and, as a result, no longer had to pay the benefits the ALJ had awarded in 1994. Both the ALJ and the appellate division of the State Board of Workers’ Compensation (“Appellate Division”) rejected the City’s argument. The ALJ found the City had proven no change in condition. Noting that the City had not raised the credit issue during the hearing which resulted in the September 1994 award, the ALJ found the unappealed September 1994 award res judicata on the issue of any set-offs or “credits” for disability plan payments. The Appellate Division agreed; however, the superior court reversed, finding the doctrine of res judicata inapplicable and the City entitled to a credit for disability payments. It remanded the matter for a determination of the amount of that credit. For reasons which follow, we reverse the superior court’s judgment.

1. The ALJ and Board correctly applied this Court’s precedents regarding res judicata to this workers’ compensation case. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” (Emphasis supplied.) OCGA § 9-12-40. “ ‘(T)he State Board of Workers’ Compensation has no continuing jurisdiction over its awards except to determine a change in condition. . . . Only within the time period for appealing an award to the full board may the board . . . reconsider, amend, or revise the award to correct apparent errors and omissions.’ [Cit.]” Gaddis v. Ga. Mountain Contractors, 213 Ga. App. 126, 127 (1) (443 SE2d 710) (1994).

If the City of Atlanta had raised the disability plan payments in the hearing which led to the September 1994 award, it could have obtained a credit from those payments. See OCGA § 34-9-243 (a). We also find it should have raised that issue in the September 1994 hearing. See OCGA § 34-9-243 (e) and State Board of Workers’ Compensation Rule 243, providing for notice of an employer’s intent to take a credit against workers’ compensation benefits. However, the City’s attempt to “correct” its error over a year later, by unilaterally suspending payments awarded by the ALJ, was improper. “It does not appear that at any time prior to the [September 1994] award of compensation to [Webb], the issue of a . . . ‘credit’ [for disability plan payments] was ever effectively raised by [the City]. Only after the award became final did [the City] make the unilateral decision that [it] would take a . . . credit against the compensation that had been awarded. The award is res judicata as to the issues raised or which should have been raised at the hearing. . . .” (Citations and punctuation omitted; emphasis in original.) Caldwell v. Perry, 179 Ga. App. 682, 683-684 (2) (347 SE2d 286) (1986).

The res judicata effect extends to prospective workers’ compensation benefits as well as those the City previously paid pursuant to the September 1994 award. When the ALJ made the 1994 award of temporary total disability payments “from October 1, 1992 through the present and continuing,” OCGA § 34-9-261 established that those payments would be made for a maximum of 400 weeks. This finding is clarified by the ALJ’s approval of Webb’s attorney fee contract, which provided that counsel would receive 25 percent of the award out of “400 weekly benefits.” At that point, barring a subsequent change in condition, the weekly benefits were scheduled and payable. An unappealed award of total disability payments “is res judicata as to the existence of such disability and the compensation due thereunder” (Emphasis supplied.) Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432 (2) (124 SE2d 653) (1962). The City knew Webb would be entitled to disability benefits during the period for which Webb sought workers’ compensation benefits. Therefore, if the City had any contention that it would be entitled to a credit against any pari of those 400 weekly payments, it was required by the reasoning of Caldwell, supra, to raise that issue before the ALJ made the September 1994 award.

2. The superior court found that the payment of disability benefits could constitute a “change in condition” authorizing the ALJ to modify the September 1994 award. We disagree.

The applicable statute, OCGA § 34-9-104 (a), defines a “change in condition” to mean “a change in the wage-earning capacity, physical condition, or status of an employee . . ., which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise” (Emphasis supplied.) The burden was on the City to prove Webb’s economic condition had improved to the point that a modification of benefits was appropriate. See Johnson Controls v. McNeil, 211 Ga. App. 783, 785 (1) (440 SE2d 528) (1994). Furthermore, “ ‘[i]t is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.’ [Cits.]” Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996).

The ALJ found no change in Webb’s physical condition or wage-earning capacity since the 1994 award. Although the superior court found that increases in disability plan payments could constitute improvements in economic condition, neither it nor the City has cited any authority showing such payments affect a claimant’s wage-earning capacity. Furthermore, these disability payments do not constitute a change in Webb’s “status as an employee,” as the City’s new contentions merely “[show] a státus that existed from the inception of this claim.” Spiva v. Union County, 172 Ga. App. 151, 153-154 (2) (322 SE2d 351) (1984). The ALJ properly found no change in condition.

Decided August 27, 1997

Timothy V. Hanofee, for appellant.

Clifford E. Hardwick TV, Bruce P. Johnson, for appellee.

Because the ALJ’s award was supported by evidence and was based on a proper interpretation of the law, we. reverse the superior court’s judgment.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1559.
    BROWN v. THE STATE.
    (491 SE2d 488)
   Ruffin, Judge.

Terry Lee Brown appeals from his conviction for shoplifting. For reasons which follow, we reverse.

The record shows that Brown and his co-defendant Alphonso Johnson entered an auto parts store in Garden City, Georgia. A store employee who observed the two men from behind a shop display testified that she saw Johnson place several tools inside his clothing. She also saw Brown standing around Johnson, shielding him and his movements from other customers. According to the employee, Brown “was kind of watching the customers as they were coming in and he would block Mr. Johnson’s view as the customers would come down the aisles and Watch them as the customers came in.” Brown also shifted his position when necessary to continue blocking Johnson from customers. The employee and a store manager confronted Johnson, who denied taking any merchandise and left the store with Brown. The employee and manager then called the police.

Officer Eddie Green arrived while Johnson and Brown were still in the parking lot. As Green drove into the lot, Johnson and Brown walked quickly behind the store. Johnson was carrying a plastic bag. Green followed and saw the two crossing a pipe over a canal behind the store. Brown held the plastic bag as Johnson crossed the pipe and then handed it to Johnson. The police apprehended Johnson and Brown on the other side of the canal and found the stolen merchandise in the plastic bag handled by both men.

Johnson, who pled guilty to shoplifting, testified for the defense. He explained that he went to the auto parts store with Brown and another individual named “Papa” in the latter’s car. According to Johnson, he made several trips into the store and stole tools without any aid from Brown or Papa, who were conducting business in another part of the store and did not know about the theft. After his second foray into the store, Johnson hid the stolen tools in a black trash bag he placed on the back floorboard of Papa’s car. Entering the store for a third time, Johnson engaged Brown in conversation near a merchandise display while placing a few more tools under his coat, again purportedly without Brown’s knowledge. Shortly thereafter, a store employee confronted Johnson about the stolen tools. Johnson denied the theft and left the store with Brown. The two men got into Papa’s car, with Brown in the front seat and Johnson in the back. Johnson began to rustle the plastic bag as he transferred additional tools into the sack. When Brown inquired about the noise, Johnson confessed that he had stolen the tools. Johnson testified that he then convinced Brown to run: “I said, man, you better come on, just like that. So, you know, I guess out of fear, man, he might have grabbed the bag or whatever, you understand, and ran.”

The jury found Brown guilty of theft by shoplifting. The trial court sentenced Brown as a recidivist to ten years of confinement. This appeal followed.

1. Brown argues that the evidence was insufficient to support his conviction. We disagree.

“A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . . [cjonceals or takes possession of the goods or merchandise of any store or retail establishment.” OCGA § 16-8-14 (a) (1). A person who intentionally aids and abets in the commission of shoplifting is a party thereto and may be convicted of shoplifting. OCGA § 16-2-20.

Viewing the evidence in the light most favorable to support the verdict, we conclude that “any rational trier of fact could reasonably have found beyond [a] reasonable doubt that [Brown] was a part and parcel of the theft of the [merchandise], aiding and abetting the actual thief by acting as a screen and lookout and subsequently aiding the thief’s escape. [Cit.]” Thomas v. State, 168 Ga. App. 53, 54 (308 .SE2d 59) (1983). Accordingly, this enumeration of error has no merit.

2. Brown also contends that his conviction should be reversed because the trial court improperly allowed the State to impeach Johnson regarding his failure to plead guilty until the day of his trial. In reviewing Brown’s argument, we must determine whether the trial court erred in allowing this line of questioning and, “if so, if it was harmless beyond a reasonable doubt. [Cits.]” Smith v. State, 222 Ga. App. 366, 370 (4) (474 SE2d 272) (1996).

During cross-examination, the prosecutor established that Johnson initially pled not guilty to the shoplifting offense. The prosecutor then asked: “So when you said that [you were not guilty], you were actually lying to the Court, weren’t you?” The trial court overruled Brown’s objection to this question, concluding that the jury was “entitled to know that [Johnson] did not ‘fess up to [the crime] instantly.”

The State’s implication that Johnson lied to the court by not pleading guilty at his first appearance was improper. The right to trial by jury in criminal cases is inviolate. Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). A criminal defendant may waive that right by pleading guilty, but “ ‘[l]ike a confession out of court, [a guilty plea] ought to be scanned with care and received with caution.’ ” Strickland v. State, 199 Ga. 792, 800 (35 SE2d 463) (1945). Neither the initial choice to exercise the right to trial by jury, nor a subsequent decision to waive that right and plead guilty, should be viewed as a “lie” or ammunition for impeachment. See Cervi v. State, 248 Ga. 325, 330 (7) (282 SE2d 629) (1981) (finding no harmful error under circumstances of case, but expressing disapproval at State’s practice of cross-examining defendant during the death penalty sentencing phase about why he pleaded not guilty). Accordingly, the trial court erred in permitting this line of cross-examination.

We further find that the error was harmful in this case. Although the jury was authorized to find Brown guilty beyond a reasonable doubt of shoplifting, the evidence against him was not “overwhelming,” as the State contends. The shop employee’s testimony regarding Brown’s “shielding” conduct evidenced his participation in the shoplifting. See Thomas, supra; see also Hood v. State, 229 Ga. 435, 437 (2) (192 SE2d 154) (1972). In rebuttal, however, Brown presented contrary testimony explaining his conduct. Furthermore, Officer Green’s testimony that Brown helped Johnson flee with the stolen goods did not necessarily establish Brown as a party to shoplifting. See OCGA §§ 16-2-20 (b); 16-8-14; Martinez v. State, 222 Ga. App. 497, 499 (2) (474 SE2d 708) (1996) (“An accessory after the fact is not a party to the crime . . . , but the act constitutes the separate offenses of obstruction of justice. . . .”).

Johnson, Brown’s sole defense witness, testified that Brown was not involved in the theft. In reaching its verdict, the jury was required to assess the credibility of this testimony. The trial court erroneously allowed the State to impeach Johnson as an individual who had “lied” to the court by pleading not guilty. We cannot say that this improper cross-examination did not impact the jury’s credibility determination and contribute to the verdict. See Lumpkin v. State, 205 Ga. App. 68, 71 (2) (421 SE2d 100) (1992); compare Keef v. State, 220 Ga. App. 134, 140 (3) (469 SE2d 318) (1996) (in light of other evidence presented, erroneous admission of improper impeachment evidence was harmless beyond all reasonable doubt). Although the State sought to impeach Johnson in various ways, its effort to establish that Johnson previously lied in court was particularly prejudicial and harmful given his potentially exculpatory testimony and the amount of evidence against Brown. Accordingly, we must reverse this case for a new trial.

Decided August 27, 1997.

Mark B. Beberman, for appellant.

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

3. In his third enumeration of error, Brown argues that the trial court erred in not instructing the jury to decide the value of the stolen merchandise. Because this issue may arise during retrial, we address it now here. We first note that Brown neither requested a charge on valuation nor excepted to the charges given when the trial court asked for objections. Accordingly, Brown failed to preserve this alleged error for our review. Morgan v. State, 206 Ga. App. 132, 134 (2) (424 SE2d 92) (1992). Even if Brown had properly preserved this claim, however, his argument must fail.

Value is not an essential element of the offense of shoplifting. Green v. State, 177 Ga. App. 179, 180-181 (3) (338 SE2d 761) (1985). “The Code provides that the offense is punishable as a misdemeanor if the value of the stolen goods is less than $100. OCGA § 16-8-14 (b). It is only if there is a factual issue as to whether the value is greater than $100 that the jury must determine value in order to assist the court in determining the appropriate sentence. [Cit.]” Id. In this case, the State presented undisputed testimony valuing the stolen merchandise at $200. The evidence did not raise a factual issue relating to value. Accordingly, no charge on valuation was necessary. Id.

4. In light of our decision in Division 2, we need not address Brown’s other enumerations of error.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1585.
    HAMILTON v. THE STATE.
    (491 SE2d 485)
   Ruffin, Judge.

Following a bench trial, Kevin Paul Hamilton was convicted on charges of DUI, less safe to drive (OCGA § 40-6-391 (a) (1)) and per se (OCGA § 40-6-391 (a) (4)); improper lane change; and possession of an open container of alcohol while operating a vehicle. On appeal, Hamilton challenges the State’s proof of venue and the evidence supporting his less safe DUI and improper lane change convictions. He also claims the trial court erred by admitting the Intoxilyzer 5000 breath test results without a proper foundation. Because we find merit in this latter enumeration, we reverse the conviction in part.

1. In his first enumeration, Hamilton claims the State failed to prove venue by proving the offenses occurred in Fulton County. The State is required to prove venue beyond a reasonable doubt. Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Under the current state of the law, however, “when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. [Cit.]” Id. Here, evidence showed a Fulton County police officer witnessed Hamilton commit the alleged offenses in the area of Old Alabama Road and Medlock Bridge Road. He stopped Hamilton’s vehicle, investigated the situation, and arrested him. “There was and is no contention that the [officer] acted outside his territorial jurisdiction. [Cits.] Thus[,] the State is at least entitled to an inference that [the officer] acted with authority, which would be within [Fulton] County. It is a well settled principle that public officials shall be presumed to have performed their duties unless clearly proven otherwise. [Cits.]” (Punctuation omitted.) Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525) (1989); see also Minter, supra at 629-630 (evidence that Griffin police department investigated incident supports finding of venue under “slight evidence” rule); Sawyer v. State, 217 Ga. App. 406, 409 (2) (457 SE2d 685) (1995). Therefore, the evidence supports a finding that the State Court of Fulton County was the proper venue for prosecution.

2. Because Hamilton contends the State did not adequately prove he was “less safe” to drive pursuant to OCGA § 40-6-391 (a) (1), we review the evidence in a light most favorable to the verdict under the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The officer testified that he pulled behind Hamilton at a red light. When the light turned green, Hamilton did not react for six seconds. Hamilton finally turned left and drove 30 mph down a four-lane road for almost a mile, weaving back and forth across clearly marked lane lines. When the officer stopped him, Hamilton smelled strongly of alcohol, exhibited bloodshot eyes and “thick-tongued” speech, reacted slowly to the officer’s directions, and walked unsteadily. The officer administered field sobriety tests, as he was trained to do, and Hamilton performed poorly. On the “walk and turn” test, Hamilton lost his balance during the officer’s instructions, stepped off the imaginary line, and failed to walk “heel to toe,” as instructed. During the “one-leg stand” test, Hamilton was unable to keep his foot raised, he “swayed” while standing on one foot, and he raised his arms for balance. Hamilton also displayed a “nystagmus,” or jerking of the eyes, associated with intoxication.

Based on his observations of the defendant, as well as Hamilton’s performance on the standardized field sobriety tests, the officer concluded Hamilton was intoxicated to the point that he was less safe to drive. This evidence adequately supports the “less safe” DUI verdict. See Ayers v. City of Atlanta, 221 Ga. App. 381 (1) (471 SE2d 240) (1996).

3. Sufficient evidence supports the trial court’s finding that Hamilton did not maintain his vehicle “as nearly as practicable within a single lane” and weaved from lane to lane without “first ascertaining] that such movement [could] be made with safety.” OCGA § 40-6-48 (1). Contrary to Hamilton’s argument, the officer’s citation and the solicitor-general’s accusation charged him with this offense rather than the offense of failure to signal a lane change, as set forth in OCGA § 40-6-123. The officer’s testimony, construed strongly in favor of the State, enabled the trier of fact to find beyond a reasonable doubt that Hamilton weaved back and forth on the four-lane road, crossing both the outside lane line and the dividing line between the lanes of travel. This enumeration is, therefore, without merit. See Jackson v. Virginia, supra.

4. However, we find merit in Hamilton’s claim that the trial court erroneously admitted the Intoxilyzer 5000 breath test results, allowing the State to build this portion of its case on a defective foundation. Prior to introducing these breath test results, the State was required by OCGA § 40-6-392 (a) (1) (A) to show the Intoxilyzer 5000 was properly maintained and in good working order. The State introduced certificates of inspection in support of this foundation, as allowed by OCGA § 40-6-392 (f).

However, the Supreme Court held in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997), that to be admissible over a hearsay objection, such inspection certificates must bear “sufficient indicia of reliability to withstand scrutiny under the confrontation clause.” Id. at 77. In Brown, the State satisfied that prerequisite by showing the certificates to be admissible under the “business records” exception to the hearsay rule.

Decided August 27, 1997

James M. Mullís, for appellant.

Carmen Smith, Solicitor, Cynthia G. Strong-McCarthy, Karlise Y. Grier, Assistant Solicitors, for appellee.

Here, the State laid no foundation for the inspection certificates other than testimony describing them and showing that they were “maintained in the log book for the [Intoxilyzer 5000].” Because the State failed to show the documents were business records or otherwise prove they “bore sufficient indicia of reliability,” Brown, supra, the breath test results were erroneously admitted. See Daniel v. State, 227 Ga. App. 92 (488 SE2d 129) (1997). Therefore, Hamilton’s “per se” DUI conviction cannot stand and must be reversed.

Under the circumstances, however, we find it highly probable that the erroneous admission of the Intoxilyzer 5000 results did not contribute to the verdict on the “less safe” DUI charge. The above-recited evidence provided overwhelming support for the trial court’s conclusion that Hamilton was “less safe” to drive as a result of alcohol intoxication. See Parrish v. State, 216 Ga. App. 832, 833 (2) (456 SE2d 283) (1995); Jones v. State, 200 Ga. App. 666 (2) (409 SE2d 251) (1991). Although the remaining convictions stand, the “per se” DUI conviction is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and case remanded with direction.

Birdsong, P. J., and Eldridge, J., concur.

       I question the appropriateness of a rule allowing “slight evidence” to prove venue. Such a rule abrogates the State’s burden of proving every element of the offense, including venue, beyond a reasonable doubt. See Brinkworth v. State, 222 Ga. App. 288, 291 (474 SE2d 9) (1996) (Ruffin, J., dissenting). Nevertheless, the “slight evidence” rule is still the law, and I am constrained to follow it.


author: Pope, Presiding Judge.

text:
    A97A1664.
    QUIKTRIP CORPORATION v. FESENKO et al.
    (491 SE2d 504)
   Pope, Presiding Judge.

We granted defendant Quiktrip Corporation’s (“Quiktrip”) application for interlocutory appeal in order to review the state court’s denial of its motion for summary judgment. Concluding that plaintiffs Tatiana Fesenko and her husband, Yuri Fesenko, have offered no evidence as to Quiktrip’s negligence and that plaintiff Tatiana Fesenko failed to exercise ordinary care for her own safety, we reverse.

Plaintiff Tatiana Fesenko went to buy gas at a Quiktrip store on August 1, 1993. She pulled her car up to a pump, got out of the car, and began to dispense $12 worth of fuel. When the pump indicated that she had reached that amount, she removed the handle from the tank, but it continued to spew gasoline. Plaintiff replaced the dispenser into the tank, which then overflowed. When she removed it again, gas continued to stream from it. At this point, plaintiff grabbed the hose attached to the handle and raised it over her head, hoping that gravity would stop the flow of fuel. Holding the hose in this way, plaintiff was showered with gasoline for three to five minutes. At some point, plaintiff’s friend who was in the passenger seat of the car, jumped out and grabbed the hose. The friend threw the hose to the ground and the fuel flow ceased.

Plaintiffs sued Quiktrip, alleging that the nozzle release device on the pump malfunctioned.

1. With its motion for summary judgment, defendant filed an affidavit of the Quiktrip store first assistant manager, Fred Collins, in which he stated that he was unaware of any gas pump malfunctionings at the time of the incident. Specifically, Collins stated that to his knowledge no gasoline pump nozzle had malfunctioned by continuing to pour out gasoline after the trigger was released.

Plaintiff has pointed to no evidence to support her allegations that the gas pump was defective or malfunctioned on the day of the incident. Instead, to create a jury issue she relies on her pleadings and on the fact that gasoline continued flowing after she removed the pump from the car. She contends that the pump “failed to operate in a normal manner” for any uninformed or inexperienced user of the pump.

At her deposition, plaintiff admitted that she was not familiar with the locking mechanisms which are ordinarily on gas pump handles. Plaintiffs filed an affidavit of the friend who accompanied plaintiff to the Quiktrip on the incident date, which stated that although plaintiff’s fingers were not on the gas nozzle, gas was still pouring out.

It is fundamental that once defendant affirmatively negates an essential element of plaintiff’s complaint, the burden shifts to the plaintiff to show specific evidence of a genuine issue for trial. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Here plaintiffs’ failure to submit any evidence of a defective or malfunctioning pump is fatal to their claim. Accordingly, because plaintiffs have shown no negligence, their claim is barred.

2. “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7. Although ordinarily questions of negligence are for jury resolution, “[i]n plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence” do not need to go to the jury. Hopkins v. Hudgins & Co., 218 Ga. App. 508, 509-510 (1) (c) (462 SE2d 393) (1995).

Decided August 27, 1997.

Sullivan, Hall, Booth & Smith, Roger S. Sumrall, Heather R. Clark, for appellant.

Gerber & Gerber, Bernard M. Gerber, for appellees.

Plaintiff in the present case stood holding a gushing gasoline pump over her head for three to five minutes. When someone finally came to her aid, that person immediately grabbed the nozzle handle and threw it to the ground. As a matter of law, plaintiff’s failure to step away from the flowing gasoline constituted failure to exercise ordinary care for her own safety. For this reason also, the court erred in denying defendant’s motion for summary judgment.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


text:
    A97A1796.
    WILLIAMS v. THE STATE.
    (491 SE2d 500)
   Birdsong, Presiding Judge.

Appellant Ricky Williams filed a direct appeal of the order of the superior court denying his motion for an appeal bond; thereafter, we granted his motion for expedited appeal.

Appellant contends in his notice of appeal and in his appellate briefs that he has been convicted of aggravated assault. However, appellant was indicted only for felony obstruction of a law enforcement officer in violation of OCGA § 16-10-24 (b). This felony obstruction charge was pertinently averred as follows: “for that said accused . . . did knowingly and willfully resist, obstruct, and oppose ... a peace officer engaged in the lawful discharge of his official duties, by accused biting him, thereby doing violence to J. C. Sigler.” This charge avers that the obstruction occurred only in one manner, that is, by the accused biting the officer. Further the charge does not aver that the act of biting constituted an aggravated assault; thus, the jury could convict the appellant if they found he bit the officer knowingly and wilfully to resist, obstruct, and oppose him as averred, even though they should also find that said act of biting did not constitute an aggravated assault. Moreover, the trial court correctly did not instruct the jury that appellant was charged with the offense of aggravated assault or that such offense was averred as any element of the felony obstruction charge.

Appellant was convicted by jury of the offense of felony obstruction of an officer as averred in the indictment. Thus, appellant’s conviction was for the offense of felony obstruction in violation of OCGA § 16-10-24 (b) and not for the offense of aggravated assault. In January 1997, final disposition was entered in appellant’s case. Appellant was sentenced to five years with nine months to serve and the remainder of his sentence to be served on probation.

The incident occurred when police responded to a complaint of domestic violence occurring at appellant’s residence. A hearing subsequently was held on appellant’s motion for appeal bond. The trial court denied the motion finding that appellant posed “a threat to the community.”

Pursuant to order of the trial court, appellant has been incarcerated in the Fulton County Jail pending his motion for new trial and any appeal. His sole enumeration is that the trial court erred in failing to grant his appeal bond motion. Held:

1. We reject appellant’s contention that, because the sentence imposed (first offender treatment: five years with nine months to serve and the remainder on probation; and special probation conditions including that defendant undergo violence counseling through the probation department) is in essence a misdemeanor sentence, he is entitled to bail as a matter of law. Appellant was convicted of the non-capital offense of felony obstruction of a police officer; he was not convicted of a misdemeanor. “ Tt is only in misdemeanor cases that one convicted is entitled to bail as a matter of law.’ ” Holcomb v. State, 129 Ga. App. 86 (198 SE2d 876). Even assuming that the punishment imposed constituted some form of “misdemeanor punishment, it did not reduce the offense to a misdemeanor”; thus, appellant is not entitled to bail as a matter of law. Fowler v. State, 229 Ga. 884 (194 SE2d 923) (while the sentence may have been reduced to a misdemeanor level sentence, the crime was not thereby reduced to a misdemeanor and defendant was not entitled to bail as a matter of law).

2. Granting or refusing to grant bail in non-capital felony cases after indictment and conviction is a matter within the sound discretion of the trial court; this Court will not control that discretion unless it has been flagrantly abused. Birge v. State, 238 Ga. 88, 89 (230 SE2d 895). “The burden of seeking a stay of execution and release may properly be placed on the appellant.” Id. Pursuant to the holding in Birge, supra, “[t]he trial court should not grant bond unless defendant meets his burden of presenting sufficient evidence to convince the trial court that (1) there is no substantial risk the applicant will flee, (2) he is unlikely to commit a serious crime, (3) he will not intimidate witnesses or otherwise interfere with the administration of justice, and (4) his appeal is not frivolous or taken for delay.” Prayor v. State, 214 Ga. App. 132 (447 SE2d 155); Birge, supra at 90. Thus, unless the trial court determines in the exercise of its sound discretion that there exists no substantial risk as to each and every one of the above factors, it should not grant the defendant’s release. In making its determinations, the trial court may consider all evidence adduced at the trial pertinent to this determination in addition to such other oral and documentary evidence that it considers appropriate. Id. at 89, n. 1.

At the bond hearing, appellant testified that he did not have any prior convictions, he would not flee if released on bond, there would be no risk that he would pose a danger to the community, and that he would not intimidate witnesses or otherwise interfere with the administration of justice. His wife testified and corroborated his testimony in all respects. Appellant next presented character witness testimony by a county marshal who likewise corroborated his testimony in all respects. The marshal testified further that he has known appellant for approximately 12 years, and that appellant formerly was a deputy sheriff. The final defense witness presented was a deputy sheriff who also was the president of a cleaning compounds manufacturer, the chief state lobbyist for an alternative medical association group, and the field director for various Democratic candidates. He has known appellant for about three years and worked with him in the 1996 elections; should appellant be released, he would offer him a job as appellant is a very hard worker who shows up for work every day. The State offered no live witness testimony; rather, it relied upon the trial court’s knowledge of the facts of the case and its own argument that appellant had failed to carry his burden regarding the Birge factors. Thereafter the trial court stated on the record that: “I remember the facts of this case very well. I do think [he has] been convicted of aggravated assault. I find him to be a threat to the community and I’m not granting the appeal bond.” (Emphasis supplied.)

The appellate record reveals that contrary to the trial court’s recollection, appellant was not convicted of aggravated assault but of felony obstruction. It appears that the legislature considered both aggravated assault under OCGA § 16-5-21 (a) (2) and aggravated assault on a police officer engaged in the performance of official duties under OCGA § 16-5-21 (c) to be more serious felony offenses than felony obstruction of a police officer under OCGA § 16-10-24 (b), as the latter offense provides for a lesser permissible maximum punishment. Moreover, biting does not per se constitute an aggravated assault; it can, for example, constitute simple battery under certain conditions. While simple battery is not a lesser included offense of felony obstruction of a police officer, it can arise out of the same facts and circumstances as an obstruction charge so as to support an obstruction conviction, and thus merge with felony obstruction if there is a conviction of both offenses. Pearson v. State, 224 Ga. App. 467, 468 (480 SE2d 911). Thus, the offense of felouy obstruction could be committed merely by knowingly and wilfully resisting, obstructing, or opposing the law enforcement officer while the latter is in the lawful discharge of his official duties, and by offering or doing violence, such as, a simple battery on the officer. OCGA § 16-10-24 (b); see Pearson, supra.

Examination of the indictment and the trial record in its totality reveals that simple battery by biting was the violence used to support the felony obstruction conviction; the State did not argue at trial, neither does it assert on appeal, that an aggravated assault of the officer had occurred. The trial record, however, does reflect as part of the res gestae that the arresting officer had been advised that the appellant, following á previous domestic violence incident, had threatened to shoot any police officer who came to his house to arrest him in the future. Also, a part of the res gestae, there exists detailed evidence in the appellate record of the very aggressive conduct which appellant engaged in to resist arrest, which upon conclusion resulted in three police officers being taken to the hospital. During appellant’s arrest, one officer received back injuries and was taken to the hospital on a stretcher, one officer had both kidneys bruised from being thrown against the wall by appellant, and a third officer was sent to the hospital to receive medical treatment to a bite mark inflicted upon him by appellant.

The trial court’s sole finding in support of denying bail was that appellant posed a threat to the community. This finding in essence constitutes the Birge factor finding that appellant failed to prove that it was unlikely he would commit a serious crime. See generally Birge, supra; Prayor, supra. There exists sufficient evidence of record to support the trial court’s determination to deny appellant bail pursuant to the standards of Birge, supra, and Prayor, supra. However, because the trial court erroneously concluded during the bond hearing that appellant had “been convicted of aggravated assault,” a fair risk exists that the trial court erroneously considered such felony conviction in arriving at its determination that appellant posed a threat to the community.

We cannot affirm the ruling of the trial court denying bond on a “right for any reason” analysis. The record establishes that the trial court was laboring under the erroneous belief that the nature of the crime for which appellant had been convicted was the more serious felony of aggravated assault. In making its determination whether to release an accused on bail pending appeal, the trial court “ ‘should take into account the nature of the crime and length of sentence imposed as well as the factors relevant to pretrial release.’ ” (Emphasis supplied.) Birge, supra at 90. The nature of an accused’s conviction being one of the major factors which a trial court must consider in determining whether appellant has carried his burden under Birge, accurate identification of the nature of the offense(s) for which an accused'has been convicted is essential to a viable Birge-factor analysis. Thus, this case is controlled by the well-settled appellate exception that although “ ‘ “ordinarily, a judgment right for any reason must be affirmed . . ., where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error.” ’ ” (Emphasis omitted and supplied.) Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249).

Decided August 27, 1997.

J M. Raffauf, for appellant.

Paul L. Howard, Jr., District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

Accordingly, the judgment of the trial court denying bail pending appeal is vacated and the case remanded for timely reconsideration of appellant’s motion for bail, consistent with our holding in this case.

Judgment vacated and case remanded with direction.

Ruffin and Eldridge, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A1881.
    DOUGHERTY COUNTY BOARD OF EQUALIZATION v. CASTO DEVELOPMENT COMPANY.
    (491 SE2d 483)
   Judge Harold R. Banke.

Casto Development Company (“Casto”) filed a written notice of appeal of the decision of the Dougherty County Board of Equalization regarding its assessment of certain real property for tax years 1993 and 1994. The Dougherty County Board of Equalization (“Board”) now seeks to challenge the trial court’s judgment in favor of Casto.

The salient facts are undisputed. The owners of the real property at issue executed a long-term ground lease in 1973 with Casto, with options adding to 80 years. Casto then developed the land through the construction of buildings presently known as the K-Mart Shopping Center. K-Mart and Harvey’s occupy 94 percent of the shopping center’s leased space with the balance occupied by several specialty stores. Both major tenants’ leases include long-term renewal options.

In 1992, a new computerized CAMAS evaluation system, which used solely a cost method of appraisal, more than doubled the value of the 18-year-old shopping center to $4,449,800. Casto unsuccessfully appealed that valuation to the Dougherty Board of Tax Assessors. The Board of Equalization reduced the 1993 fair market value to $4,181,900. Casto appealed the 1993 and 1994 taxes which it paid under protest to the superior court.

During the ensuing bench trial, the parties presented extensive evidence including the testimony of three experts concerning the value of the subject property. Casto’s expert, Bernard Carmichael, explored three separate approaches to value — market sales comparison, cost, and income, before deciding to ascribe more weight to the income approach. Carmichael explained that because an appraisal involves an attempt to anticipate what a well-informed purchaser would pay for the property, existing leases must be considered. According to Carmichael, the county’s cost approach was flawed because the shopping center was suffering from functional and economic obsolescence, especially since both a Sam’s Club and Wal-Mart had opened new larger facilities in the immediate area. Carmichael concluded that the value was $2,274,000 as of January 1, 1993, and $2,224,000 as of January 1, 1994.

The Board offered the testimony of two experts. Robert Hardin, the County’s chief commercial appraiser, testified that he arrived at a $4,181,900 value based on a cost approach. Hardin admitted that in arriving at this valuation, he did not factor in functional obsolescence or economic depreciation. The Board’s other expert, Bryan Almand, testified that under his analysis, the value ranged from $2,800,000 to $2,870,000. Almand considered both an income and market sales comparison analysis. He felt that inasmuch as the shopping center was suffering from functional obsolescence, that an income approach was the best method to determine value. Almand admitted that an income approach using theoretical market rents as opposed to actual existing rents would capture all of the “bundle of rights in that property” and would result in a value of the subject property of $3,375,000. Almand rejected the use of market rents when he gauged what a well-informed investor would likely pay for the property. Almand testified the income approach, as used in his appraisal, was generally recognized in the appraisal industry as the best method to determine market value.

After considering the evidence, the trial court determined the value was $2,870,000. Enumerating two overlapping arguments, the Board appeals. Held:

The Board contends that the trial court erred in determining the fair market value by applying the income approach subject to existing leases because such a method: (1) does not subject all of Casto’s property to assessment and taxation; and (2) does not produce fair and justly equalized assessments between [sic] taxpayers as required by State law. We disagree.

Decided August 27, 1997

William S. Lee TV, for appellant.-

Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appellee.

Just and fair valuation of property is a question to be determined by the factfinder, here, the trial court. Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499, 500 (1) (295 SE2d 170) (1982). On appellate review, the trial court’s determination must be affirmed unless it is clearly erroneous. OCGA § 9-11-52 (a).

Assessed value must consider, inter alia: existing zoning, existing use, and “[a]ny other factors deemed pertinent in arriving at fair market value.” OCGA § 48-5-2 (3) (B) (iv). The expert testimony conflicted as to the “other factors” which the experts deemed pertinent in creating their respective calculations of the fair market value of the shopping center. Notwithstanding the Board’s claim to the contrary, a consideration of “existing use” (the current leases) must be employed as a “ ‘yardstick’ with which to measure fair market value” not hypothetical non-existing leases. See Inland Container Corp. v. Paulding County Bd. of Tax Assessors, 220 Ga. App. 878, 879 (1) (470 SE2d 702) (1996).

The fair market value urged by Almand, one of the Board’s experts, was the valuation eventually adopted by the trial court. As the sole judge of witness credibility, the trial court was not under any obligation to subscribe to the higher estimate provided by the same expert. OCGA § 9-11-52 (a). Almand provided a detailed explanation of how he calculated the fair market value. In light of this evidence, the trial court had an adequate basis on which to make its determination of fair market value and was not left to engage in speculation, guesswork, or unsupported conclusions. Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 883 (1) (463 SE2d 703) (1995). The evidence, although disputed, was sufficient to sustain the trial court’s judgment. BellSouth Telecommunications v. Henry County Bd. of Tax Assessors, 217 Ga. App. 699, 700 (2) (458 SE2d 705) (1995). Having found no error in the court’s judgment, we are unable to conclude that the assessment method embraced by the court failed to subject all of Casto’s property to assessment and taxation or resulted in unfair or unjust assessments for other taxpayers.

Judgment affirmed.

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