text:
    A97A1395.
    BRUNO’S FOOD STORES, INC. v. TAYLOR.
    (491 SE2d 881)
   Eldridge, Judge.

Appellee Patricia Lucille Taylor brought suit against appellant Bruno’s Food Stores, Inc. d/b/a FoodMax (“FoodMax”) for actual damages, contending that FoodMax was actively negligent in allowing or causing its floor to be wet and by failing to post proper warning signs to alert its patrons, including appellee, of the danger.

The facts of the case sub judice show that appellee entered Food-Max in Tifton, Georgia at approximately 10:30 p.m. on May 4, 1994, to buy groceries and other items. After appellee obtained a shopping buggy, she proceeded toward the direction of the meat department. Appellee was paying attention to where she was going; however, when she reached the floral area and started to turn left, as she was pushing her buggy into the intersecting aisle, she took the opportunity to look at the plants as she “rolled by.” Appellee testified that she was walking normally when her right foot slipped. Appellee hit her left knee on the floor and then went down on her other knee as she continued to hold onto the buggy. Appellee did not let go of the shopping buggy until she stood up. At the time of appellee’s slip and fall, she was wearing slacks and Reebok tennis shoes.

Appellee did not see any moisture on the floor prior to her fall. However, after appellee stood up, she noticed that both of her pant legs were damp. Appellee then carefully examined the floor in the area of her fall and discovered a strip of damp surface about six inches in width and approximately three to five feet in length, which extended into the area where she had fallen. Appellee did not observe any standing water, but could now see a difference in the sheen on the floor where it was damp. After her fall, appellee noticed that the floor was being cleaned by a man in the produce department, which was in a separate department from where she had fallen. It is uncontroverted that, at the time of appellee’s fall, FoodMax’s floor was being cleaned by an employee of United Floor Maintenance Company (“United Maintenance”).

FoodMax appealed from the trial court’s order denying its motion for summary judgment and, in three enumerations of error, alleges that appellee failed to meet her burden of proof as established in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), by presenting sufficient evidence to make out both elements of a prima facie slip and fall case as set forth in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), i.e., that there is no evidence in the record by which appellee could show that appellant had actual or constructive knowledge of the foreign substance or the hazard which allegedly caused her to fall, as the only person in the area, besides appellee, was not an employee of appellant but, rather, was an individual employed by an independent floor care company; that there is no evidence to which appellee could point that would show how long the alleged hazard existed prior to her fall; and that the evidence established that appellee failed to exercise ordinary care for her own safety.

The foreign substance analysis set forth in Alterman Foods is not appropriate in this case. Even if such foreign substance analysis was not mere dicta, see Alterman Foods, supra at 622, such analysis would not apply in the case sub judice, because the slip and fall was caused by a liquid cleaning compound intentionally placed on the floor, not by a foreign substance. Id. at 623-624. Therefore, this Court will treat appellant’s enumerations of error as a failure of appellee to meet her burden of proof as established in Lau’s Corp. v. Haskins, supra.

On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may prevail by “piercing the plaintiff’s pleadings,” i.e., demonstrating that the plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, supra; Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465 (471 SE2d 547) (1996); Crosson v. Lancaster, 207 Ga. App. 404 (427 SE2d 864) (1993). The defendant, who will not bear the burden of proof at trial, may accomplish this either (1) by presenting evidence which negates an essential element of the plaintiff’s claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the plaintiff to prove the element at trial, or (2) by showing “an absence of evidence to support the [plaintiff’s] case” as to any essential element. Lau’s Corp., supra at 491, 495; see, e.g., Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706, 707 (434 SE2d 532) (1993). However, a defendant may not prevail simply by presenting contradictory evidence, as such evidence serves only to create an issue for jury resolution. Davis v. Piedmont Hosp., 222 Ga. App. 97 (473 SE2d 531) (1996); Service Merchandise v. Jackson, 221 Ga. App. 897 (473 SE2d 209) (1996). Further, all reasonable inferences from the evidence presented must be given in favor of the plaintiff, as the nonmoving party; a trial court is precluded from drawing negative inferences against the plaintiff from evidence presented by a defendant on a motion for summary judgment. See Lau’s Corp., supra; Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456 (475 SE2d 188) (1996); Service Merchandise, supra; Harvey v. McLaughlin, 198 Ga. App. 105 (400 SE2d 635) (1990); Holland v. Sanfax Corp., supra at 5. If the defendant is able to pierce the plaintiff’s pleadings by showing that no jury issue exists as to an essential element of the plaintiff’s claim, the burden of production shifts to the plaintiff, i.e., the plaintiff will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. See OCGA § 9-11-56 (e); Lau’s Corp., supra. Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented. See Stuckey Diamonds v. Jones, 195 Ga. App. 351 (393 SE2d 706) (1990); Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419 (379 SE2d 192) (1989). Further, the plaintiff is not required “to respond to issues which are not raised in the motion for summary judgment or to present [her] entire case on all allegations in the complaint.” Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995). Therefore, under Lau’s Corp., supra, the defendant is entitled to summary judgment if it is able to pierce the plaintiff’s pleadings as to any material element and the plaintiff is unable to respond with any evidence to create a jury issue as to that element.

However, even if a defendant is unable to pierce the plaintiff’s pleadings, it may still prevail at summary judgment by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, as all inferences must be drawn in favor of the plaintiff, as the nonmoving party. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the burden of production of some evidence shifts to the plaintiff, who will survive summary judgment by presenting any evidence which creates a disputed material issue of fact for the jury to decide as to an element of the affirmative defense. See Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994); Lau’s Corp., supra; Hornbuckle Wholesale Florist &c. v. Castellaw, 223 Ga. App. 198, 200 (477 SE2d 348) (1996) (McMurray, P. J., dissenting); J. H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698 (466 SE2d 246) (1995); Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). However, if the plaintiff is unable to meet this requirement to produce evidence, the defendant is entitled to summary judgment as a matter of law. With this analysis in mind, we now turn to the evidence before the trial court.

1. “An owner of premises, as to invitees, owes a duty to exercise ordinary care for their protection to keep the premises safe, not reasonably safe. A business invitor owes a nondelegable duty to protect [its] invitees from injury. Thus, [one] dispositive issue in the case sub judice is whether there is any evidence which would authorize a jury to find that [FoodMax] had not delivered full possession and complete control of [its floors to United Maintenance] and if full possession and complete control were not delivered, whether [appellee] was injured as a result of a breach of the nondelegable duty owed to [her] as an invitee [to the store] that [FoodMax] controlled.” (Citations and punctuation omitted.) Towles v. Cox, 181 Ga. App. 194, 196 (1) (351 SE2d 718) (1986). In short, the owner/occupier cannot insulate itself from liability simply by hiring an independent contractor to clean its floors and, under the facts of this case, may be vicariously liable for the negligent acts of its contractor.

At the time of appellee’s fall, appellant had actual knowledge that the floors of its store were being cleaned by an employee of United Maintenance. FoodMax was open 24 hours a day for its customers to shop and had hired United Maintenance to clean the floor nightly between the approximate hours of 11:00 p.m. and 8:00 a.m. At the direction of FoodMax, the portion of the store in which the floor was being cleaned was not closed to customers. This decision benefited FoodMax, as customers could shop in the entire store. Food-Max simply instructed United Maintenance to start its work in the area of least traffic. Therefore, full possession and control of the floor had not been delivered to United Maintenance, and the floor was jointly occupied by both United Maintenance and FoodMax, making FoodMax vicariously liable for the negligent acts of its contractor. See Feggans v. Kroger Co., 223 Ga. App. 47 (476 SE2d 822) (1996). Because FoodMax had not relinquished full possession and control of the floor and had authorized the application of the cleaning compound, FoodMax would be presumed to have knowledge of the existence of the moisture on the floor. The knowledge and conduct of United Maintenance are imputed to FoodMax.

2. At the time of appellee’s fall, United Maintenance was using a Vance scrubbing machine, which was owned, maintained, and provided by FoodMax. FoodMax was aware that the scrubbing machine left a streak of water on the floor, as the machine did not remove all the fluid it applied to the floor. Linda Harris, who was employed by FoodMax, testified that the Vance floor scrubber cleaned in streaks; that it dispensed the cleaning solution and then vacuumed up the fluid; and that the machine left a streak of water approximately an inch wide, which had to be mopped up using a hand mop. Such testimony that the machine left a streak of water could indicate that the machine was not in proper repair. Linda Harris further testified that when she came to appellee’s aid, “some water” was on the floor where appellee had fallen. This evidence raises issues of acts and omissions on the part of FoodMax as to its own active negligence, separate and apart from any imputed negligence.

Further, FoodMax provided yellow “wet floor” signs to United Maintenance for its use. It is uncontroverted that no yellow “wet floor” signs had been placed within the store to warn the patrons of the danger of the wet floor on the night that appellee fell, although such signs were readily available. FoodMax provided shopping buggies for the use of its patrons and should have been aware that such shopping buggies would block the patron’s view of the floor directly in front of the buggy. Therefore, there was a greater duty placed on FoodMax to place out warning cones or signs; this duty was particularly applicable because appellant knew that the floor was being cleaned and that its scrubbing machine left fluid on the floor that had to be removed by hand. Under the facts of this case, as outlined above, the failure to put out the warning signs or to ensure that United Maintenance put out warning signs would be active negligence.

Acts or omissions of an owner/occupier of the premises can create a dangerous condition on the premises; such acts or omissions constitute active negligence and do not become static just because the condition pre-exists the arrival of the invitee. Where acts or omissions of the owner/occupier work positive injury to others, such acts or omissions are active negligence in the classic sense. See Smith & Prosser, Cases & Materials on Torts, p. 320 (1). Such acts or omissions by FoodMax of providing a scrubbing machine for United Maintenance’s use that left a streak of water on the floor and which may not have been in proper repair, failing to make sure the streak of water was promptly and properly removed from the floor, along with the failure to make sure the yellow “wet floor” signs were properly placed on the floor, together, would constitute active negligence. See Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994) (employee unintentionally knocking down plaintiff was active negligence); Greenforest Baptist Church v. Shropshire, supra (allowing church members to come onto church property and discard two-by-fours into the work area of the plaintiff is active negligence); Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992) (employee inflating a tire, which explodes in an open area, was active negligence); Ga. Power Co. v. Deese, 78 Ga. App. 704, 707 (51 SE2d 724) (1949) (releasing water from dam was active negligence); Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 (49 SE2d 143) (1948) (accumulating large sawdust pile near power lines was active negligence).

Where the owner/occupier of the premises through malfeasance (commission of an act wrongful in itself), misfeasance (improper performance of an act), or nonfeasance (the failure to perform an act) creates a reasonably foreseeable danger to an invitee, then knowledge is presumed or imputed to the owner/occupier, because it is the tortfeasor’s act or omission that created the danger or allowed the danger to continue unabated or without warning. Lipham v. Federated Dept. Stores, supra; Wade v. Mitchell, supra; American Nat. Bank of Brunswick v. Howard, 117 Ga. App. 834 (161 SE2d 838) (1968). Clearly, the evidence was sufficient to show material issues of fact exist as to whether Food-Max was actively negligent in failing to exercise ordinary care for appellee’s safety.

3. Further, there was a complete failure on the part of FoodMax to establish the condition of the floor at the time of appellee’s fall, so that there was no evidence to show that appellee should have noticed and could have avoided the hazard. See Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (408 SE2d 443) (1991). Linda Harris testified generally about the amount of water which previously had been left behind by the scrubbing machine and testified that such amount of water was visible. However, this testimony was not specifically directed as to the date, time, and location of appellee’s fall, such as to show that appellee should have observed the damp area on the floor. Such testimony was simply a general description as to the usual condition of the floor while it was being cleaned. This testimony failed to show that a customer pushing a shopping buggy could see the narrow strip of sheen on the floor in the location of appellee’s fall. Linda Harris described the streak of water that was usually left by the machine as being approximately one inch in width, which varied from appellee’s description of the damp sheen that she observed after her fall, which was approximately six inches wide. The only testimony that Linda Harris gave that was specific to the date, time, and location of appellee’s fall was that “a little bit” of water was on the floor. Further, her testimony did not show what could have been seen by appellee as she proceeded down the aisle with a shopping buggy in front of her; the evidence failed to show not only that appellee should have seen the moisture but would have had sufficient opportunity to avoid the danger.

“[T]he evidence does not conclusively show a failure of [appellee] to exercise ordinary care for [her] own safety. [Appellee’s] testimony that [she] was not looking directly at the floor at the time [she] fell because [she] was [looking at a display of plants] does not alone show [she] was not exercising ordinary care. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place. While we have held that a plaintiff fails to exercise ordinary care when she admits she could have seen the [moisture] on the floor had she been looking, no such admission is present in this case.” (Citations and punctuation omitted.) Chaves v. Kroger, 213 Ga. App. 348, 350-351 (444 SE2d 606) (1994). Further, there is no evidence in the record that shows that, if appellee had seen the narrow strip of sheen on the floor immediately prior to her fall, she could have avoided it. Appellee simply testified that she was looking where she was going when she entered the store; that at the time of her fall, she was not focused on the floor but was turning into a different aisle and was looking at a display of plants; that she did not see anything on the floor that would indicate that it was damp prior to her fall; that she did not let go of the shopping buggy until after she stood back up; that it was only after discovering that both her pant legs were wet, that she stepped back from the buggy, looked down, and was able to see a narrow strip of sheen on the floor, which was approximately six inches wide and between three and five feet in length; and that she saw no signs or cones to alert her to a danger of which her individual senses might have inadequately provided her with notice. It was reasonably foreseeable to FoodMax that the shopping buggy, which may well be filled with a customer’s selections, could obstruct a customer’s view of the floor. Further, at or near an intersection of aisles, a customer’s view of the intersecting aisle is obviously blocked by shelving so that the floor cannot be seen ahead, and customers must be on the lookout for other customers who may be crossing or turning, which could distract a customer from looking at the floor ahead of her.

Appellee further testified that, once she realized the floor was being cleaned, she was cautious and looked for other wet spots as she proceeded onward to the meat department. However, even when exercising great caution and with knowledge of the danger, appellee slipped again, but did not fall, on a “drop” of clear liquid approximately one to two inches in diameter, which she could not see until after her slip. This demonstrates how difficult it was, in the exercise of ordinary care, to discover the presence of such cleaning fluid on the floor. Clearly, based on the evidence, material issues of fact exist for jury determination as to whether appellee, who was pushing a shopping buggy, could have seen the sheen of the narrow strip of damp floor prior to reaching it and, if she could have seen the sheen of the narrow strip of damp floor, whether she could have seen it in time to avoid the danger, particularly when this danger was at or near the corner of intersecting aisles.

Moreover, on summary judgment, the trial court can draw only reasonable, favorable inferences and is not permitted to draw negative inferences against the plaintiff. The special concurrence disagrees and cites to OCGA §§ 24-1-2 and 24-4-9 in support thereof. Regretfully, the special concurrence’s citation to OCGA §§ 24-1-2 and 24-4-9 with regard to a trial court’s function on summary judgment strikes at the heart of a fundamental misunderstanding of the process of summary judgment and its governing laws. Both Code sections cited by the concurrence speak to the jury’s function with regard to trials. OCGA § 24-4-9 states that “[i]n arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” (Emphasis supplied.) OCGA § 24-1-2 states that “[t]he object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” See also Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991) (OCGA § 24-1-2 capsulizes the raison d’etre for the rules which govern trials). Contrary to the ideological perspective of the special concurrence, the purpose of summary judgment is not the same as that of trial, and the trial court on summary judgment does not fulfill the same function as a jury with regard to the drawing of inferences and the ascertainment of the truth thereof. On summary judgment, a trial court determines only whether a material issue of fact exists, and such determination does not include the “discovery of [the] truth” of such fact (OCGA § 24-1-2) or permit a frustration of a plaintiff’s constitutional right to a jury trial “by inferring] the existence of other facts” from predicate evidence (OCGA § 24-4-9).

Indeed, the special concurrence provides an ideal illustration of the fundamental error in usurping the role of the jury and the function of the trial process in its example of appropriate “inferential” reasoning. When there is uncontradicted testimony by the plaintiff that she was not watching where she was going, the spécial concurrence takes the position that the trial court can infer from such facts that she would have the opportunity to avoid the danger, had she seen it. Even where there is such uncontradicted testimony as in the special concurrence example, the real question that must be decided is whether the plaintiff could avoid the danger in the exercise of reasonable care. A plaintiff’s ability to avoid a danger does not necessarily flow from the ability to see the danger. Even when a plaintiff is paying strict attention to her surroundings, once she observes a danger, it is sometimes too late to avoid it, regardless of the degree of care used. In reality, the special concurrence’s illustration provides no facts, either in support of or in contradiction to the avoidance of the danger. The special concurrence takes particular facts about observance and reaches a generalized conclusion concerning avoidance. Such ¿reductive reasoning is precisely why the process of inferring the existence of facts from proven evidence belongs only to a jury in deciding the merits of a case, not to the court in deciding to grant summary judgment. OCGA § 24-4-9. “[I]t is preferable not to have a single trial judge stand in the shoes of the several men and women of various backgrounds who make up a jury and determine what inferences they may draw from the evidence. It is for this reason that trial judges should grant a motion for summary judgment or directed verdict only where the evidence is truly clear, palpable and undisputed. Pique v. Lee, 218 Ga. App. 357, 359 (461 SE2d 302) [(1995)].” (Emphasis supplied.) Service Merchandise v. Jackson, supra at 898-899.

Certainly, the special concurrence’s urged ability to draw “inferences” has absolutely nothing to do with a defendant’s burden to show an “absence” of a material issue of fact as to an essential element of the plaintiff’s claim. Inferences cannot be drawn from an absence of fact. The “inference” in the illustration is actually an implication that the special concurrence has chosen to make on behalf of the defendant, which choice is without basis in fact or law on summary judgment.

Along these same lines, an inference of fact such as the one alleged in the special concurrence’s illustration would not form a basis by which a court could determine that a defendant met its burden of proof on summary judgment, because a decision as to the merits of the inferred fact would be implicit in such determination. Simply because a fact could be inferred, it does not follow that it should be inferred. An inference that contradicts an assertion in the complaint simply provides a jury question. “It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” (Punctuation omitted; emphasis supplied.) McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 183 (2) (129 SE2d 408) (1962); see also Baxter v. Ga. Fed. Sav. &c. Assn., 152 Ga. App. 753, 754 (264 SE2d 242) (1979).

Since a court’s role on summary judgment does not encompass a determination as to the truth of any factual issue, a “negative” inference such as that in the special concurrence’s illustration may not be drawn in order to defeat a plaintiff’s claim. Whether a negative inference truly arises from other proved facts and a determination as to the truth thereof are questions for the jury at trial, not for the bench on summary judgment.

In the case sub judice, FoodMax failed to meet its burden of piercing the allegations of appellee’s complaint, and the trial court properly denied FoodMax’s motion for summary judgment.

Judgment affirmed.

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

Birdsong, Presiding Judge,

concurring specially.

Although I agree the trial court properly denied FoodMax’s motion for summary judgment, I write separately because I cannot agree with the analysis the majority used in reaching that result. In my view, the majority misconstrues and misapplies our law concerning summary judgment, inferences, active negligence, and distractions.

1. Because Taylor slipped on water intentionally placed on the floor by FoodMax’s cleaning company, consideration of the Alterman Foods foreign substance analysis is unwarranted (see Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327)), and FoodMax’s arguments to the contrary are without merit. Consequently, to establish her cause of action Taylor only was required to show an act or omission by FoodMax that was the proximate cause of her injury and which she could not have avoided through the exercise of ordinary care. Id. at 624. Under the evidence in this case, Taylor successfully carried that burden. Thus, I concur that the trial court did not err by denying summary judgment to FoodMax.

2. I am concerned that the majority’s expansive and, I believe erroneous, opinion could, if unchallenged, result in a framework for consideration of slip and fall cases on summary judgment so that regardless of the evidence summary judgment could never be granted. Neither attorneys, judges, nor citizens of this State, however, would be well served by that result. Moreover, I am concerned also that this result would be achieved through altering existing law, seemingly by relying on existing precedent, while, in fact, misconstruing or misapplying it.

Also, I believe the time has come for this Court to stop tacitly endorsing, through judicial silence, any published opinion suggesting that summary judgment is some scheme created to strip deserving plaintiffs of their right to jury trials. These statutory procedures have been a part of Georgia law for three decades and are an integral part of our Civil Practice Act. Further, these procedures, when applied with an even hand, serve both the interests of justice and judicial economy well. Of course, granting summary judgment is a serious matter that should not be undertaken lightly. I know of no one who believes that it should be. It is also a serious matter to deny summary judgment when the law and the facts demand otherwise. In this connection, it is important to remember that “[t]he right to a jury trial as guaranteed by the Seventh Amendment to the United States Constitution is not infringed where, as here, the jury would have no role since there are no issues of material fact in dispute. See Barrett v. Independent Order of Foresters, 625 F2d 73 (5th Cir. 1980).” Bledsoe v. Central Ga. Production Credit Assn., 180 Ga. App. 598, 599 (4) (349 SE2d 821). Accord CM3, Inc. v. Assoc. Realty Investors/Prado, 201 Ga. App. 428, 429 (411 SE2d 320).

Thus, it is unlikely that the cases in which summary judgment is properly granted would actually be decided by the jury because the grant of summary judgment shows that on the available evidence a directed verdict should be granted. If this is the expected result, I see little utility and great waste in such a procedure. Consider the numerous cases under our former summary judgment procedures in which appellate courts recognized that even though summary judgment was not authorized because the movant had not disproved the nonmoving party’s case, when the burden of proof shifted, it was likely that the nonmoving party could not prove its case. See, e.g., Winn-Dixie &c. v. Ramey, 186 Ga. App. 257 (366 SE2d 785). It is hard to comprehend what would be gained by a return to such procedures. Surely there would be no benefit to the litigants who must fund the litigation, or to the taxpayers who must pay ultimately for such cases to clog already full trial dockets.

Thus, it is recognized that the purpose of summary judgment is to eliminate “jury trials where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c).” Porter v. Felker, 261 Ga. 421 (405 SE2d 31). Of course, Porter v. Felker merely restated what our Supreme Court stated 20 years earlier in Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 603 (203 SE2d 173): “The purpose of the Summary Judgment Act is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. In Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580), [it was] stated: We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial, even though the petition fairly bristles with serious allegations, if when given notice and opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail. And, it was noted on p. 304 of the opinion that, [i]n this case the petitioner had his choice of producing counter-proof and thus make an issue of fact, or do nothing, that is, create no issue of fact and suffer judgment.” (Citation and punctuation omitted.)

3. The majority’s conclusion that movants for summary judgment are never allowed the benefit of inferences is contrary to our law and does not take into consideration the posture of the case when trial courts consider motions for summary judgment. In these proceedings the rules on admissibility of evidence apply. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576). “Evidence offered on motion for summary judgment is held to the same standards of admissibility at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789). Further, “[a] motion for summary judgment is analogous to a motion for a directed verdict. OCGA § 9-11-50. The function of the trial court in ruling on either requires the trial court to determine whether the movant is entitled to a judgment as a matter of law on the facts established and whether there is a genuine issue as to any material fact. OCGA §§ 9-11-56; 9-11-50; Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 575 (136 SE2d 505) (1964). If the movant can show the court that any essential element, under any theory of recovery, is missing and incapable of proof, the movant is entitled to summary judgment as a matter of law, notwithstanding any issue of material fact regarding any other essential element. Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432) (1973). When a motion for summary judgment is made and properly supported, the opposing party must respond and set forth specific facts showing a genuine issue for trial or else summary judgment, if appropriate, shall be entered. OCGA § 9-11-56 (e); Meade v. Heimanson, 239 Ga. 177, 178 (236 SE2d 357) (1977). Summary judgment was designed to enable the trial judge to filter out sham issues which may cause needless and time-consuming litigation. ‘The trial judge must separate what is formal or pretended in denial or averment from what is genuine or substantial, so that only the latter may subject a party to the burden of a trial.’ Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962).” Porter v. Felker, supra at 421-422.

“When viewed in proper perspective under present practice in Georgia, summary judgment under our law is just what the name implies. It is an abbreviated trial, but of no less importance than any other trial on the merits of the case. One must prepare for a summary judgment hearing with the same thoroughness and expectation of finality one must contemplate for any trial.” Summer-Minter v. Giordano, supra at 606. Consequently, “ ‘[s]ummary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper.’ 6 Moore’s Federal Practice, Para. 56.15[4], p. 56-522.” Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148). Of course, when a trial court considers whether a directed verdict should be granted, it is authorized to consider whether the deductions, i.e., inferences, demand a particular verdict. See OCGA § 9-11-50 (a).

The correct rule regarding inferences is that “[t]he party moving for summary judgment has the burden of showing the absence of a genuine issue of any material fact and if the trial court is presented with a choice of inferences to be drawn from the facts all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. United States v. Diebold, 369 U. S. 654, 655 (82 SC 993, 8 LE2d 176) (1962).” Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 860 (229 SE2d 765). Moreover, a nonmovant is only entitled to have reasonable inferences drawn in his favor. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).

4. Additionally, although the majority cites and quotes from Lau’s Corp. v. Haskins, supra, the majority nevertheless apparently refuses to accept Lau’s Corp.’s holding that “[a] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case.” Id. at 491. “The burden on summary judgment is on the movant to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. OCGA § 9-11-56 (e); Meade v. Heimanson, [supra].” (Emphasis supplied.) Riley v. H & H Operations, 263 Ga. 652, 655 (3) (436 SE2d 659).

Although, of course, the movant could carry this burden, as the majority states, by presenting evidence to negate an essential element of the nonmovant’s case, the movant has no burden to do so (Lau’s Corp. v. Haskins, supra at 495), and it is not useful for this Court to attempt to revise or redefine the burden stated in Lau’s Corp. so that a different burden appears to be placed on movants for summary judgment from the one stated in Lau’s Corp. at 495.

This means that defendants/movants need not prove affirmatively that plaintiffs failed to exercise ordinary care for their own safety when the records show that plaintiffs testified they were not watching where they were going, but if they had they could have seen the foreign substance on the floor. If that evidence remains undisputed, the trial court is entitled reasonably to infer that the plaintiff would have avoided the danger. “In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent to those proved.” OCGA § 24-4-9. Even though this Code section refers to “the jury,” because the court in ruling upon a motion for summary judgment exercises the same function as if it were ruling upon a motion for directed verdict, the court is authorized to make the same inferences the jury would be permitted to reach. “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a).

If plaintiffs wish to contend they could not have appreciated the danger even if they had seen it, or could not have avoided the danger, it is the plaintiffs’ burden to point “to specific evidence giving rise to a triable issue” (Lau’s Corp., supra at 491) on these points in their responses to the motions for summary judgment. Neither trial courts nor this Court, however, is allowed to “infer” that some unknown reason may exist why the plaintiff was unable to either appreciate the danger or was unable to avoid the danger if seen. Such conclusions are not inferences, but gross speculations. See generally Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (inference cannot be based on mere conjecture or possibility).

Consequently, the majority’s “negative inference” theory is contrary to Alterman Foods and Lau’s Corp., and in these circumstances is without the support of legal authority. Attempting to limit the trial court’s authority to draw reasonable inferences of fact in summary judgment cases by labeling a particular judicial determination as a negative inference also runs contrary to the statutory object of the rules of evidence. See generally OCGA § 24-1-2.

5. Also, the majority’s statement that the plaintiff in this case is excused from watching where she was going because she was distracted by looking at plants on display is contrary to our law. See Harper v. Kroger, 212 Ga. App. 570, 571 (443 SE2d 7).

Decided September 9, 1997.

Jones, Cork & Miller, Timothy Harden III, for appellant.

Sims, Fleming & Spurlin, Robert D. Bryan, for appellee.

6. Moreover, the majority’s active negligence theories and its effort to merge active negligence concepts in slip and fall cases are contrary to Supreme Court precedent and were rejected by this Court in Adams v. Sears, Roebuck & Co., 227 Ga. App. 695 (490 SE2d 150) and Hartley v. Macon Bacon Tune, 227 Ga. App. 679 (490 SE2d 403).

Although I concur with affirming the trial court, the better practice would be to dismiss the appeal as having been granted improvidently.

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

       In the case sub judice, favorable inferences may be drawn by the trial court on behalf of the plaintifi/nonmoving party, since the granting of a motion for summary judgment deprives the non-moving party of his right to a trial by a jury contrary to the Constitutions of the State of Georgia and of the United States. Ga. Const, of 1983, Art. I, Sec. I, Par. XI; U. S. Const., Amend. VII. “[T]he trial court must give [the plaintiff/nonmoving party] the benefit of all favorable inferences that may be drawn from the evidence. [Cits.] The act cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact.” Holland v. Sanfax Corp. , 106 Ga. App. 1, 5 (126 SE2d 442) (1962).

       However, “ ‘[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ [Cit.]” Edwards v. Campbell Taggart Baking Co., 219 Ga. App. 806, 807 (466 SE2d 911) (1996).

       See also DeVane v. Smith, 154 Ga. App. 442 (268 SE2d 711) (1980) (OCGA § 24-4-9, res ipsa loquitur, creates a mere inference of fact, and not a presumption of truth; it is for the jury thereafter to draw the inference of negligence from the inferred fact).

       “Inferences are deductions or conclusions which with reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.” (Emphasis supplied.) Black’s Law Dictionary, 5th ed., p. 700.

       In addition, it must be noted that the “negative inference” in the special concurrence’s illustration clearly does not address an essential element of plaintiff’s claim but, instead, goes to the affirmative defenses of contributory negligence and comparative negligence, e.g., avoidance and equal knowledge. Although a plaintiff has a burden of production, i.e., presenting any evidence which creates a material issue of fact as to the affirmative defense, a plaintiff has no duty to present evidence disproving an affirmative defense on summary judgment. See Hodge v. SADA Enterprises, supra at 691.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A1631.
    ANDERSON v. THE STATE.
    (491 SE2d 893)
   Beasley, Judge.

Betty Anderson was convicted of aggravated assault with a cane (OCGA § 16-5-21 (a) (2)), simple battery by kicking and stomping (OCGA § 16-5-23 (a) (1)), and seven counts of reckless conduct for endangering the safety of school children (OCGA § 16-5-60). She contends the court erred in disallowing two witnesses to testify that the victim acted violently in previous situations. She also claims her attorney rendered ineffective assistance in failing to give timely notice of the testimony of these witnesses.

On Monday, March 4, 1996, Ruth Vaughn, a public school bus driver for Haralson County, was driving a bus full of students to. their homes. Vaughn pulled up to Anderson’s house and dropped off four children, leaving eleven still on the bus. Upset that on the previous Friday Vaughn left the four children at a nearby relative’s house, Anderson took her cane and pushed her way onto the bus to confront Vaughn. She stood on the steps inside the bus and demanded of Vaughn “what [her] d_problem was with the kids, b_When Vaughn cautioned Anderson not to get on the bus, Anderson took her cane with both hands and beat Vaughn and yelled profanitiqs at her. Vaughn struggled to unbuckle her seat belt while Anderson continued to beat her. Once free, Vaughn physically kicked Anderson off the bus. When Vaughn attempted to close the bus door with her foot, Anderson grabbed her foot and jerked her down the steps and off the bus. Anderson threatened to kill Vaughn and resumed beating her with the cane, which eventually broke from force. Crying, Vaughn begged Anderson to stop and lamented her leg was broken. Anderson then kicked and stomped Vaughn mercilessly.

Meanwhile, the bus had begun rolling down the street with 11 scared and crying children in it. Some children escaped through the rear emergency door. Anderson quit her attack, mounted the bus, and stopped it. When she disembarked, she profaned and told Vaughn to get up. Vaughn repeated that her leg was broken and requested Anderson to call an ambulance. Anderson responded she hoped Vaughn’s “d_neck” was broken and went into her house. At the insistence of Anderson’s husband and son-in-law, both of whom witnessed the entire event without intervening, Vaughn got back on the bus and coasted until she arrived at another residence where she received help. The school children corroborated this version of the events.

Vaughn had 30 bruises and cane marks on her face, arms, chest, back, and legs, and her left leg was broken. She received stitches behind her left ear; the muscles in her left thigh died; and she required reconstructive surgery on her left knee. Seven months after the incident she was still in therapy and unable to work.

At trial Anderson and her husband and son-in-law testified that she did not strike Vaughn with the cane, that she did not drag Vaughn from the bus, that she did not stomp or kick Vaughn, that she used no profanity, and that her cane was never broken. They claimed that when Anderson asked Vaughn about the children, Vaughn got up and kicked Anderson, returned to her seat, slammed the bus door on Anderson, revved up the engine with Anderson still in the door, kicked the door shut with her foot (prompting Anderson to grab her foot to protect herself), and “tripped” or fell out of the bus.

On October 4, the Friday before the October 7 trial date, Anderson filed and served by mail a notice that she intended to claim justification and would present “evidence of relevant specific acts of violence by the victim against third parties. The act of violence was an attempted assault on Clara Cook at [a certain address and phone number] while on the school bus.” This evidence was precluded, apparently because the notice had not been filed ten days or more prior to trial.

Anderson called Cook at trial and asked about problems she may have had with Vaughn. The State objected, and the court reminded Anderson they had discussed the matter previously. Anderson agreed. When Cook conceded she did not know of Vaughn’s reputation in the community, Anderson asked no further questions. She also asked witness Nathan Forester if he knew of Vaughn’s reputation in the community; he responded no, and his examination ended. The jury found Anderson guilty.

Anderson moved for a new trial on the grounds that Cook and Forester should have been allowed to testify to prior incidents of violence by Vaughn against them, and that her trial counsel had rendered ineffective assistance by failing to give timely notice of the testimony. At the hearing on the motion, Cook testified that in 1994 she stepped onto Vadghn’s school bus to complain about Vaughn’s treatment of her child. The two women argued, and Cook challenged Vaughn to get off the bus and “settle it here in my front yard.” Vaughn demanded that Cook disembark, which Cook refused. When Vaughn stood to remove Cook from the bus, Cook stated: “You’re not woman enough to put me off this bus.” Vaughn sat back down and informed Cook she would be going to school with them, and Cook responded “fine.” As the bus proceeded down the road, Vaughn repeatedly opened and closed the school bus door (which brushed against Cook’s arm) to throw Cook off the bus. Cook felt in no danger of being thrown off the bus. After a block, Cook asked Vaughn to stop the bus and let her off, which she did. At no point did Vaughn strike or kick Cook. Cook told a GBI agent and Anderson’s counsel of this incident more than a month before trial.

Nathan Forester also testified at the hearing. In 1991 he could not get Vaughn to talk to him about his children’s behavioral problems. One day he parked his truck so Vaughn’s bus could not proceed, and the two argued. Although he testified she acted aggressively, Vaughn never left her seat and did not hit, kick, or strike Forester. He told Anderson of this incident, but he never spoke with Anderson’s trial counsel about it.

Anderson’s trial counsel conceded he gave notice of only the Cook incident, and he was unsure whether he mentioned the “door closing” testimony to the court and prosecution. He admitted that the Forester incident did not involve a violent act, and that he did not ask Forester about the incident at trial because of his own extrapolation of the judge’s ruling on the Cook testimony. He testified that the proposed testimony would not have affected the outcome of the case, and that his representation of Anderson was not ineffective.

At the conclusion of the hearing, the trial judge stated that he failed “to see how a five-year-old and a two-year-old act not involving the defendant and not involving violence could be particularly relevant in this situation” and that “even if [he] had allowed the testimony in the trial, the outcome of the trial wouldn’t have been any different.” He denied the motion for new trial.

1. Anderson first claims the court erred in refusing to allow Cook and Forester to testify about prior violent acts. Because a GBI agent had interviewed Cook more than a month before trial, Anderson argues the court should have exercised its discretion to shorten the ten-day notice period of USCR 31.1 to three days.

Notice of “the intention of the defense to introduce evidence of specific acts of violence by the victim against the defendant or third persons, shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge.” USCR 31.1; see Chandler v. State, 261 Ga. 402, 408 (3) (405 SE2d 669) (1991). “We interpret this as clothing the trial court with discretion which will not be controlled absent abuse.” Hall v. State, 181 Ga. App. 92, 93 (1) (b) (351 SE2d 236) (1986).

Regarding Forester, no notice was given. Although the court never ruled as to whether his testimony would be allowed, when Forester was called as a witness counsel independently decided the judge would disallow inquiry into Forester’s experience wdth Vaughn. But he never asked.

Regarding Cook, the pretrial conference and the ruling disallowing her testimony are unrecorded. At most we have the trial court’s statement (in response to a relevancy objection by the State to Cook’s testimony) that it thought “we went into that earlier,” and trial counsel’s post-trial testimony that the court excluded the Cook testimony because of failure to comply wdth the ten-day rule in USCR 31.1. The defendant in Mullins v. State, 224 Ga. App. 218 (480 SE2d 264) (1997), similarly complained the trial court ruled in an unreported bench conference to exclude testimony about prior acts of violence by the victim. “If the trial court excluded such testimony, the record does not fully reflect its reasons for doing so. Because the record contains no order excluding the subject testimony or a transcript of the hearing thereon, we are precluded from reviewing this issue on appeal. [Cits.]” Id. at 218-219 (2).

Even considering the merits, the trial court did not err by excluding the Cook testimony. A court does not abuse its discretion by enforcing a Uniform Superior Court Rule and refusing to make an exception. The fact that Cook related her story to a GBI agent does not excuse Anderson from timely notifying the prosecutor of an intent to call Cook to prove specific acts of violence.

Anderson not only filed her notice seven days late, leaving the State only a weekend to prepare, but she did not specify the date of the act of violence in her notice as required by USCR 31.6 (B). Syfrett v. State, 210 Ga. App. 185, 187-188 (5) (435 SE2d 470) (1993), held that an indefinite notice served four days prior to trial justified the exclusion of evidence of prior .violent acts by the victim. See Miller v. State, 263 Ga. 723, 724 (2) (438 SE2d 81) (1994) (notice lacking times, places, and names insufficient). “There was no abuse in this exercise of the trial court’s discretion, especially considering that appellant’s untimely notice did not contain all of the relevant information required by USCR 31.6 (B). It follows that the evidence was not erroneously excluded.” Armstrong v. State, 265 Ga. 18, 19 (2) (453 SE2d 442) (1995).

2. The question remains whether counsel’s failure to give adequate notice precluded the admission of the key testimony of Cook and Forester to support Anderson’s defense that Vaughn was the aggressor and that Vaughn’s injuries occurred as a result of Anderson’s attempts to ward off Vaughn’s kicks.

“Generally, the burden is on the defendant claiming ineffective assistance of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted; emphasis in original.) Adefenwa v. State, 221 Ga. App. 429, 432 (3) (471 SE2d 900) (1996); see Fargason v. State, 266 Ga. 463, 465 (4) (467 SE2d 551) (1996) (must show ineffectiveness and harm); Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996) (clearly erroneous standard).

The failure to file a timely notice regarding Cook and Forester does not fall below an objective standard of reasonableness, for USCR 31.6 requires this notice only where the defendant intends to “claim justification and [to] present. . . evidence of relevant specific acts of violence by the victim against the defendant or third persons.” Neither circumstance is present. First, Anderson did not claim justification. In opening statements her counsel stated as to Count 1 (aggravated assault by hitting Vaughn with the cane) that she used the cane in self-defense. But this defense was abandoned, as Anderson and her witnesses testified she never struck Vaughn with the cane. In his closing argument, her counsel did not mention self-defense and argued instead that the caning never occurred. Similarly, Anderson denied having kicked or stomped Vaughn (simple battery count) and denied dragging Vaughn from the bus so as to create a dangerous risk to the students (reckless conduct counts).

Defense of self would mean that although Anderson committed the violent acts, she was justified in doing so. See OCGA § 16-3-21. By the close of trial, Anderson’s own testimony and that of her witnesses clarified that this was not her defense. Accordingly, evidence of other violent acts by Vaughn was irrelevant. See Hollis v. State, 225 Ga. App. 370, 371 (2) (484 SE2d 54) (1997) (evidence of violent acts by the victim against third persons irrelevant where the defendant denied having struck the victim); Simmons v. State, 266 Ga. 223, 228 (5) (466 SE2d 205) (1996) (“evidence of violent acts by the victim, against third persons, is admissible only when the defendant claims justification as a defense”).

Second, even assuming Anderson’s testimony preserved justification as a defense, the excluded testimony does not show specific acts of violence against third persons by Vaughn. See Bennett v. State, 265 Ga. 38, 40-41 (3) (453 SE2d 458) (1995) (victim’s burglary convictions inadmissible because did not show any violence against a person); compare Johnson, supra, 266 Ga. at 383 (2) (victim had shot at, assaulted, and threatened others with weapons). Anderson failed to bear the burden of proving the acts involving Cook and Forester “suggest[ ] . . . violence on the part of the victim against third persons.” Wells v. State, 261 Ga. 282, 283 (4) (b) (404 SE2d 106) (1991).

Decided September 9, 1997.

Word & Simmons, Gerald P. Word, for appellant.

James R. Osborne, District Attorney, Cari K. Johanson, David B. Fife, Assistant District Attorneys, for appellee.

Forester admitted that Vaughn stayed in her seat and did not strike or hit him. Cook testified that despite Cook’s invitations to fight, Vaughn did not strike or hit her. Vaughn did repeatedly open and close the bus door, which brushed Cook’s arm, to throw Cook off the bus. Yet Cook never felt in danger of falling off the bus. Neither incident was recent. The trial court’s finding that these incidents did not involve violence and were not relevant is not clearly erroneous. See Lowe v. State, 267 Ga. 410, 414 (5) (a) (478 SE2d 762) (1996) (“threats and menaces” by victim insufficient to show acts of violence). Compare Ochle v. State, 218 Ga. App. 69, 73 (5) (459 SE2d 560) (1995) (evidence that victim challenged others to fight may be admissible as an act of violence). Accordingly, the court did not err in finding that her counsel’s failure to timely identify this testimony in a USCR 31.1 notice did not fall below an objective standard of reasonableness.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Johnson, Judge.

text:
    A97A1633.
    GUTIERREZ v. THE STATE.
    (491 SE2d 898)
   Johnson, Judge.

After a bench trial, Gary Gutierrez was convicted of driving under the influence of alcohol. He appeals.

1. Gutierrez contends the trial court erred in admitting Intoxilyzer 5000 test results when the state failed to show that the machine on which the breath test was performed had all of its parts attached and in good working order. See OCGA § 40-6-392 (a) (1) (A). We disagree.

For a chemical analysis of a person’s breath to be valid under OCGA § 40-6-392 (a) (1) (A), the test must have been conducted on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. A trooper with the Georgia State Patrol, who was responsible for servicing and training personnel to operate the Intoxilyzer 5000, testified that he inspected the machine on December 1, 1994, ten days before Gutierrez was tested; maintenance records verifying this inspection were admitted into evidence. The trooper explained that the inspection procedure includes a diagnostic check and that during the check, “[i]f [the machine] fails in any way, we get a printout saying it fails. It tells us what part of the instrument failed.” When asked by the court whether there were any indications that the machine was not functioning properly, the witness responded that there were not. The state trooper also testified that the manufacturer provided a certificate stating that the machine had been calibrated and was working properly when it was sent to the local police department. He added that the officer who initially set up the machine in August 1994 verified that it was working properly at that time. No witness suggested that any part of the machinery was missing or the machine was not functioning properly. Accordingly, the state sufficiently proved that the machine was operated with all its components properly attached and in good working order at the time Gutierrez took the test. See generally Bazemore v. State, 225 Ga. App. 741, 744 (2) (484 SE2d 673) (1997).

We are not persuaded by Gutierrez’s argument that the test results were inadmissible because the inspection did not include tests to determine whether machine components designed to detect the presence of interfering substances were working properly. As discussed above, there was no evidence that the machine was not working properly in this or any other respect. Indeed, the diagnostic test did not indicate that any part of the machine was not operating properly. In any event, the fact that a testing procedure has some margin for error or may give an erroneous result under certain circumstances relates to the weight, rather than the admissibility, of the test results. See Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991); see generally Walker v. State, 204 Ga. App. 559, 562 (4) (420 SE2d 17) (1992).

Finally, contrary to Gutierrez’s argument, the fact that the officer who operated the Intoxilyzer 5000 did not know how to calibrate it is of no consequence since he was only responsible for operating the machine. We note that counsel for Gutierrez stipulated that the officer was qualified to operate the machine and that he did so in accordance with his training. The equipment operator is not required to have an expert’s knowledge of how the machine works. See Dotson v. State, 179 Ga. App. 233, 234 (2) (345 SE2d 871) (1986). The trial court did not err in admitting the test results.

Decided September 9, 1997

William C. Head, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Blair D. Mahaffey, Assistant District Attorneys, for appellee.

2. Gutierrez claims the trial court erred in admitting the breath test results because the implied consent warning given was “misleading, coercive, deceptive, and misstated the true and legitimate consequences of both the refusal and submittal” to the test. Gutierrez says the officer misinformed him by telling him that his license would be suspended if he refused to submit to chemical tests and may be suspended if he submitted and results indicated a blood-alcohol concentration of .10 grams or more. He argues that no suspension could occur unless the officer subsequently followed the proper administrative procedure for suspension, which she failed to do. See OCGA § 40-5-67.1 (f). This enumeration is patently without merit.

OCGA § 40-5-67.1 (b) (2) provides that a suspect’s license will be suspended if the driver refuses to submit to testing and may be suspended if he does submit and is found to have a blood-alcohol concentration of .10 grams or more. Thus, license suspension is a true and legitimate consequence of refusing to submit to or submitting and failing the test. There is no unlawful coercion where the officer merely informs the arrestee “of the permissible range of sanctions” that the state may ultimately be authorized to impose. Whittington v. State, 184 Ga. App. 282, 283-284 (2) (361 SE2d 211) (1987). Gutierrez was correctly informed that the state would be permitted to suspend his license for a refusal or an adverse result on the test. The fact that his license was not ultimately suspended does not mean he was not informed of the true and legitimate consequences of his refusal or performance on the test. There was no error. See generally Pryor v. State, 182 Ga. App. 79, 80 (2) (354 SE2d 690) (1987).

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A97A0992.
    PADILLA v. MELENDEZ.
    (491 SE2d 905)
   Blackburn, Judge.

The mother of J. Z. M. appeals an order of the superior court granting visitation rights to the child’s father, contending that the court abused its discretion in failing to appoint a guardian ad litem at the joint request of the parents. She also contends the court prematurely held the trial of the case without proper notice to the parties.

The mother and father were not married when the child was born. The. father legitimated the child in September 1996 and paid child support. On September 26, 1996, the father filed a complaint seeking visitation rights with the child, who was seven months old at the time. The next day, the court issued a rule nisi directing the mother to appear at a hearing on October 10, 1996, to show why the relief requested should not be granted. At the hearing, the father’s attorney stated that she wished the court to grant at least temporary visitation rights to the father and requested the appointment of a guardian ad litem to assist the parties in reaching a final settlement on the issue of visitation. The mother’s attorney stated that he also “thought it would be best to, if we can, resolve the temporary issue of visitation. But we do join in the request for a guardian ad litem.” The judge denied the motion to appoint a guardian ad litem and indicated that he would resolve the visitation issue that day. After hearing evidence, the court entered an order granting the father permanent visitation rights.

1. The mother contends that the court erred in conducting a final trial of the case prematurely and without proper notice to the parties. As the trial was held only two weeks after the filing of the complaint, she contends the courj; violated OCGA § 9-11-40 (a), which provides that “[a]ll civil cases, including divorce and other domestic relations cases, shall be triable any time after the last day upon which defensive pleadings were required to be filed therein.”

However, the mother did not raise this issue before the trial court. Although her attorney stated that he thought it would be best to resolve the issue of temporary visitation, he did not in any way indicate that he believed it was premature to conduct a hearing on final visitation rights. Nor did he request a continuance of the hearing or indicate in any way that he was not prepared to proceed. Thus, the mother and her attorney never gave the trial court an opportunity to consider whether it was premature to conduct the hearing, and indeed never indicated that this was even an issue. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.” Nationwide Mut. Fire Ins. Co. v. Wiley, 220 Ga. App. 442, 444 (4) (469 SE2d 302) (1996).

Moreover, the mother clearly acquiesced in the trial court’s conduct of the hearing. After the trial court indicated that it would resolve the visitation issue at the hearing, the mother’s attorney did not object or in any way indicate that such action was improper. As discussed above, he did not request a continuance or indicate that he was not prepared to proceed with the trial. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” (Punctuation omitted.) Renshaw v. Feagin, 199 Ga. App. 148, 151 (4) (404 SE2d 457) (1991). Accordingly, the mother may not now complain for the first time that the hearing was premature.

Furthermore, the mother has not shown that she was harmed by the timing of the hearing. The rule nisi clearly placed the parties on notice that all issues raised in the complaint for visitation were to be considered at the hearing. See Brand v. Brand, 244 Ga. 124 (259 SE2d 133) (1979) (“A rule nisi may be used by the trial court to give notice of a permanent child custody hearing notwithstanding the practice that a rule nisi is more often used to give notice of preliminary, temporary or other interlocutory hearings”). The transcript reveals that the mother and her attorney were well prepared for the hearing. The mother testified and presented documentary evidence and also had another witness present to testify regarding the father’s relationship to the mother and child. The mother’s attorney extensively cross-examined the father and his other witnesses regarding details of the father’s life and his actions toward the mother and child. The mother failed to show either at trial or on appeal how she was harmed by the timing of the hearing, or how additional time would have enabled her to better prepare. For the above reasons, this enumeration is without merit.

2. The mother contends the trial court erred in denying the parties’ joint motion for appointment of a guardian ad litem.

OCGA § 29-4-7 provides that “[w]hen a minor is interested in any litigation pending in any court in this state and he has no guardian or his interest is adverse to that of his guardian, such court may appoint a guardian ad litem for the minor.” “A trial court exercises discretion whether to appoint a guardian ad litem pursuant to the provisions of OCGA §§ 29-4-7 and 9-11-17 (c).” Dee v. Sweet, 224 Ga. App. 285, 287-288 (1) (480 SE2d 316) (1997).

In this case, however, it does not appear that the trial court exercised discretion in denying the motion for a guardian ad litem. Rather, the court summarily denied the motion without hearing evidence or arguments as to why the appointment of a guardian ad litem was necessary to protect the child’s interests. The judge’s decision to deny the motion was not based on an analysis of whether the appointment of a guardian ad litem was necessary or appropriate to protect the child’s interests. This is demonstrated by the court’s comment, “Motion denied. I will decide it today. Call your first witness. Ain’t no need in dragging this out.” We note that, after this ruling, the mother presented evidence at the visitation hearing that the father was a potential danger to the child, which evidence suggests that the appointment of a guardian ad litem would be in the best interest of the child. The role of the guardian ad litem is to protect the interests of the child and to investigate and present evidence to the court on the child’s behalf, a role which the court cannot properly fulfill. The responsibility of the court in determining whether or not to appoint a guardian ad litem for the child is to consider indications of potential danger to such child and whether or not the interests of the child are likely to be adequately protected by its natural guardian.

Decided September 10, 1997.

Taylor & Viers, Richard T. Taylor, for appellant.

Barbara B. Briley, for appellee.

“[I]f the appellate court is unable to ascertain whether the [lower] court has exercised its discretion, the appropriate course for the appellate court is not to perform a de novo review of the evidence in the guise of a harmless error analysis, but instead is to vacate the judgment and remand the case to the [lower] court for further proceedings consistent with its statutory duty.” In re E. W., 256 Ga. 681 (353 SE2d 175) (1987). The court failed to exercise its discretion in denying the joint request for a guardian ad litem in the face of contentions of potential danger to the child. As the evidence presented might well have been different had the child been represented by a guardian ad litem, we cannot say that the error was harmless. Therefore, the court’s order granting visitation rights to the father is hereby stayed, and the case is remanded to the trial court for action consistent with this opinion. Should the court appoint a guardian ad litem after exercising its discretion in such matter, the court shall then reconsider the issue of visitation rights at a new hearing. Should the court determine that appointment of a guardian ad litem is not necessary, its order granting visitation rights to the father shall stand affirmed, subject only to the mother’s right to appeal the decision not to appoint a guardian ad litem.

Judgment affirmed on condition and case remanded.

Pope, P. J.¡ and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A97A1478.
    McCONVILLE v. THE STATE.
    (491 SE2d 900)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with a single count of possessing marijuana with the intent to distribute. After the denial of his motion to suppress, the case was tried before the Superior Court of Bartow County, Georgia, with the parties stipulating to the evidence as adduced at the suppression hearing.

Only the investigating officers testified at the suppression hearing, and their evidence would authorize the following facts: Deputy Brenton Garmon of the Bartow County Sheriff’s Office responded to “a burglar alarm from [defendant’s] residence.” When Deputy Garmon arrived, he saw “a truck parked in the drive with the [passenger] door open. ... There was a large U-Haul type van backed right up against the garage.” He “assumed someone was burglarizing the house with the door open, and there were some motorcycle parts sitting in the door.”

He also observed defendant “inside of the garage. [Defendant] raised the garáge door, and he appeared to be holding his breath. He then exhaled, and [Deputy Garmon] could smell the odor of marijuana when he exhaled. [Deputy Garmon] identified [himjself. [Defendant] showed [the deputy] his driver’s license which had that address on it, confirmed that [defendant] did live at the residence. And then [Deputy Garmon] told [defendant] that [he] smelled marijuana. [Defendant] then told [the deputy], yes, that [the deputy] did smell it, that he had just a little left. And then [defendant] took [Dep- . uty Garmon] to the back room of [defendant’s] garage, [where defendant] had a couple of small leaves of what was suspected to be marijuana in a blue bong [or hookah]. It was still smoking with the odor of marijuana. [Deputy Garmon] then called Sergeant Whitworth.”

' Sergeant Carlton Whitworth, with the Narcotics Division of the Bartow County Sheriff’s Department, arrived and was shown the smoking device and the suspected marijuana. Sergeant Whitworth “read [defendant] his Miranda warning[ and] asked [defendant] for a consent to search his residence, premise and all, and [defendant] said that he would rather for [Sergeant Whitworth] to have a search warrant. So [Sergeant Whitworth] stopped there and [formally] arrested [defendant] for the marijuana he already had. “Approximately two hours later, Sergeant Whitworth returned to execute a search warrant signed by a magistrate. “[I]nside the master bedroom closet was ... 11 pounds and 7 ounces of marijuana.”

The trial court found defendant guilty of possessing marijuana with intent to distribute. Defendant appeals from the judgment of conviction and sentence. He enumerates the denial of his motion to suppress for failure to give timely Miranda warnings, and also enumerates the denial of his motion to suppress the evidence seized pursuant to the search authorized by the warrant. Held:

1. Defendant contends the trial court erred in failing to suppress the marijuana seized from his garage. He argues he was improperly questioned because “Deputy Garmon knew immediately, upon smelling marijuana, that an arrest of [defendant] was going to be made and, consequently, any questions after that point should have been asked only after Miranda warnings were given.”

In the case sub judice, defendant was at the scene of a residence where a silent burglar alarm had been triggered. Deputy Garmon was authorized to conduct limited interrogation to determine defendant’s identity and whether there was danger to the officer or others on the scene. State v. Overby, 249 Ga. 341 (290 SE2d 464). But such initial questioning to determine the nature of the situation did not, in our view, amount to custodial interrogation of defendant by Deputy Garmon.

For the proscriptions of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) to apply, “a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.” Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799). “In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there (was) a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Cits.]” Stansbury v. California, 511 U. S. 318, 322 (114 SC 1526, 128 LE2d 293). Since it is undisputed that defendant in the case sub judice had not been formally arrested at the time he responded to Deputy Garmon’s statement, the proper inquiry becomes whether he had been “restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest. [Cits.]” Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16).

We hold that defendant’s spontaneous act of leading Deputy Garmon from the top of his driveway to the still-smouldering pipe of marijuana in the back of the garage was not made under coercion or restraint to the degree associated with formal arrest, such that the initial statement of Deputy Garmon that he smelled marijuana did not amount to custodial interrogation. Lolley v. State, 259 Ga. 605, 606 (2) (a) (385 SE2d 285). Certainly, defendant’s experience in the case sub judice does not fall within that class of cases the Supreme Court of the United States in Miranda was particularly concerned with, namely, situations where a suspect is subjected to police interrogation while cut off from the outside world, amounting to incommunicado interrogation in a police-dominated atmosphere. Carroll v. State, 208 Ga. App. 316, 317 (2) (430 SE2d 649). Compare Reinhardt v. State, 263 Ga. 113, 114 (3) (a) (428 SE2d 333); State v. Wintker, 223 Ga. App. 65, 69 (476 SE2d 835). .

“In effect, [defendant] would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law. Whether a police officer [subjectively] focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. Stansbury v. California, 511 U. S. 318[, supra].” Hodges v. State, 265 Ga. 870, 872 (2), supra. “The record supports the trial court’s finding that statements the defendant made to [Deputy Garmon] at the scene of the [suspected] crime were non-custodial, and therefore admissible even though Miranda warnings had not been given. See Shy v. State, 234 Ga. 816, 820 (218 SE2d 599) (1975); Oregon v. Mathiason, 429 U. S. 492, 495 (97 SC 711, 50 LE2d 714) (1976).” Norton v. State, 263 Ga. 448, 450 (5) (435 SE2d 30).

2. Defendant next urges the trial court erred in refusing to suppress the nearly 12 pounds of marijuana discovered in defendant’s master bedroom closet during the search conducted pursuant to a warrant. He argues the affidavit and search warrant were fatally defective and failed to establish probable cause sufficient to justify a search of his residence because the marijuana and still-smoking bong were located in the detached garage.

Despite the delay in appellate consideration of the case sub judice, we have ordered that the record on appeal be supplemented with the affidavit of Sergeant Whitworth as submitted to the magistrate. Sergeant Whitworth recited the following facts in support of the expressed belief that defendant’s residence contained marijuana:

“On October 20,1995 at approximately 1842 hours Deputy Brenton Garmon answered a house alarm call at 6850 Rock Ridge Road. Upon arrival at 6850 Rock Ridge Road, Deputy Garmon went to the right side of the garage. A white male was attempting to raise the garage door, he noticed Deputy Garmon. As Deputy Garmon approached, the white male blew smoke out of his mouth. Deputy Garmon advised that he was there in reference to an alarm call. The white male stated that he lived there and produced a current Georgia Drivers License. The license was in the name of Michael James McConville, with the address of 6850 Rock Ridge Road. Deputy Garmon was satisfied that Mr. McConville was the owner of the residence, Deputy Garmon stated to Mr. McConville that he had smelled Marijuana when Mr. McConville discharged the smoke from his mouth. Mr. McConville stated that he was smoking marijuana and showed Deputy Garmon where the smoking device was located and a small amount of marijuana. Deputy Garmon notified Affiant [Sergeant Whitworth] by phone ’and advised what had occurred. Affiant traveled to Deputy Garmon’s location. Affiant identified the substance as marijuana and asked Mr. McConville for a consent to search. Mr. McConville refused to give consent.”

“In determining whether an affidavit sufficiently establishes probable cause, the totality of the circumstances analysis is . . . employed. [Cit.]” Davis v. State, 266 Ga. 212, 213 (465 SE2d 438). The issuing magistrate need only conclude there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823). “ ‘When a police officer is the informant the reliability of the informant is presumed as a matter of law. Caudell v. State, 129 Ga. App. 229 (199 SE2d 550).’ State v. Causey, 132 Ga. App. 17, 20 (207 SE2d 225).” McNeal v. State, 133 Ga. App. 225, 228 (2) (211 SE2d 173). “A warrant which authorizes the search of a particular dwelling extends by implication to areas within the curtilage of the dwelling. ‘Curtilage’ has been defined as ‘the yards and grounds of a particular address, its gardens, barns, (and) buildings.’ Norman v. State, 134 Ga. App. 767, 768 (216 SE2d 644) (1975).” Landers v. State, 250 Ga. 808, 809 (301 SE2d 633).

Decided September 10, 1997

Jimmy D. Berry, Thomas N. Brunt, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.

Under the totality of the circumstances in the case sub judice, the personal knowledge of Sergeant Whitworth, a trained investigator, was sufficient to authorize the issuing magistrate’s determination that a fair probability existed that contraband would be found at a particular address or location, namely defendant’s residence. Moreover, resolution of doubtful or marginal cases in this area should largely be determined by the preference accorded to searches conducted under the auspices of a warrant. Davis v. State, 266 Ga. 212, 213, supra. The trial court correctly overruled defendant’s motion to suppress the nearly 12 pounds of marijuana discovered in his bedroom closet.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1552.
    McCORMICK v. THE STATE.
    (491 SE2d 903)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of molesting his four-year-old daughter in violation of OCGA § 16-6-4 (a). This appeal followed the denial of defendant’s motion for new trial. Held:

1. Although the victim (five years old at the time of trial) appeared at trial and recanted her pre-trial description of the act which is the basis of the crime charged, the child’s description of defendant touching her genital area during a videotaped interview with a Department of Family & Children Services (“DFCS”) investigator; her pre-trial statements to this investigator as well as to her aunt that defendant showed her pornographic magazines; her trial testimony that she is afraid of defendant and similar transaction evidence indicating that defendant has a penchant for sexually molesting younger family members authorizes the jury’s finding the defendant is guilty, beyond a reasonable doubt, of child molestation as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Defendant’s intent when he touched the victim’s genital area was a matter which was properly submitted for jury resolution. Andrew v. State, 216 Ga. App. 427 (454 SE2d 542).

2. The trial court did not err in admitting a pornographic magazine into evidence at trial. Defendant’s spouse identified this magazine as the type of pornography defendant kept at the victim’s home; defendant’s sister testified that the victim informed her that defendant showed the child pornographic magazines and the victim informed a DFCS investigator that defendant had showed her pornographic magazines. The magazine was relevant to show defendant’s bent of mind, lustful disposition and indecent desire to sexually arouse the victim. Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582).

3. Defendant’s younger brother and his younger sister testified that defendant sexually molested them when they were children; that defendant began this abuse when they were of tender years (five years old) and that they did not report defendant’s criminal behavior because they were afraid. The trial court did not err in admitting this similar transaction evidence. Mobley v. State, 219 Ga. App. 789, 790 (4) (466 SE2d 669). Contrary to defendant’s assertion, this evidence was not too remote in time to be relevant to prove defendant’s lustful disposition, bent of mind and course of conduct. See Bryson v. State, 210 Ga. App. 642, 643 (2) (437 SE2d 352).

4. The trial court did not err in allowing the victim’s out-of-court statements to her aunt (defendant’s younger sister) and a DFCS investigator regarding the incident which is the basis of the crime charged. Considering the victim’s age and the consistency of her statements, the record contains sufficient indicia of reliability for the statements to be admissible under OCGA § 24-3-16. See Wells v. State, 222 Ga. App. 587 (474 SE2d 764).

5. The trial court did not err in charging the jury that the similar transaction evidence “may be considered for the limited purpose of showing, if it does, the state of mind, i.e., the knowledge or intent of the defendant. . . .” See Rice v. State, 217 Ga. App. 456, 458 (2) (458 SE2d 368). The cases cited in defendant’s brief do not support his assertion that this excerpt from the trial court’s limiting instruction was a “[cjharging” error.

6. The trial court did not abuse its discretion in giving a charge consistent with Standard 15-4.4 of the American Bar Association Standards for Criminal Justice when the jury submitted the following question to the trial court: “If we can’t agree, what then?” See Romine v. State, 256 Ga. 521, 525 (1) (c), 527 (350 SE2d 446). Since this question does not concern a matter which the jury was called upon to resolve, the trial court did not err in failing to inform the jury about the effect of a jury’s inability to reach a verdict. Compare Gidden v. State, 205 Ga. App. 245, 247 (2), 248 (422 SE2d 30), and cits.

Decided September 10, 1997.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

7. Defendant contends his trial attorney ineffectively failed to preserve — via objection at trial — all but one issue enumerated as error in the case sub judice. In light of our holding in Divisions 2 through 6 of this opinion, no prejudice could possibly have resulted from defendant’s trial attorney’s alleged inadequate trial representation. Dixon v. State, 267 Ga. 136, 138 (2), 139 (475 SE2d 633). This enumeration of error provides no basis for reversal.

Judgment affirmed.

Beasley and Smith, JJ., concur.


text:
    A97A2130.
    MILLER v. WARNER BROTHERS, INC. et al.
    (492 SE2d 353)
   McMurray, Presiding Judge.

Margo Miller, individually, and as administratrix of the estate of Olin Miller, filed this wrongful death action against Time Warner Entertainment Company, L.P., Warner Home Video, Inc., Warner Brothers, Inc. (“the Warner defendants”) and others. The trial court dismissed the complaint as to the Warner defendants for failure to state a claim upon which relief could be granted. Miller filed this direct appeal. Held:

As claims remain pending against the Warner defendants’ co-defendants and because the trial court did not enter an express determination of finality under OCGA § 9-11-54 (b), the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) were required to be followed to appeal the order dismissing the Warner defendants. Knowles v. Old Spartan Life Ins. Co., 213 Ga. App. 204, 205 (2) (444 SE2d 136). Miller’s failure in the case sub judice to comply with the requisite interlocutory procedures deprives this Court of jurisdiction. This appeal must therefore be dismissed.

Decided September 10, 1997.

Salter & Shook, Mitchell M. Shook, Jason A. Craig, for appellant.

Troutman Sanders, John J. Dalton, David C. Vigilante, for appellees.

Appeal dismissed.

Beasley and Smith, JJ., concur.


text:
    A98A0129.
    SIMMONS v. THE STATE.
    (491 SE2d 908)
    Decided September 10, 1997.
    Richard L. Simmons, pro se.

      Charles H. Weston, District Attorney, for appellee.
   McMurray, Presiding Judge.

Simmons filed a motion to correct sentence, which the trial court denied by order dated July 16,1996. He then filed a motion for reconsideration of that order, which the trial court denied June 24, 1997. Simmons filed a notice of appeal on July 30, 1997. The filing of the motion for reconsideration did not extend the time for filing the notice of appeal, and the appeal is accordingly untimely. Campbell v. State, 192 Ga. App. 316 (385 SE2d 14) (1989). Even if the order appealed from had been dated June 24, 1997, the appeal would have been untimely. OCGA §§ 5-6-38 (a); 5-6-48 (b) (1). Timely filing of a notice of appeal is necessary to confer jurisdiction upon an appellate court. Westerfield v. State, 169 Ga. App. 510 (313 SE2d 768) (1984). This appeal is accordingly hereby dismissed.

Appeal dismissed.

Blackburn and Eldridge, JJ., concur.


text:
    A97A1649.
    ARNOLD v. THE STATE.
    (491 SE2d 819)
   Beasley, Judge.

Arnold was charged with driving with no proof of insurance (OCGA § 40-6-10), DUI (OCGA § 40-6-391 (a) (1)), leaving the scene of an accident (OCGA § 40-6-270), and disobedience of a traffic control device (OCGA § 40-6-21). She was convicted of all but insurance proof. The trial court imposed a sentence of six months of confinement, 18 months of probation, a $2,000 fine, $200 restitution, and 80 hours of community service. A condition of her probation was attendance at AA meetings three times a week for twelve months.

The evidence showed that a vehicle driven by Arnold weaved out of its lane of travel, failed to stop at a red traffic light, hit another vehicle, and left the scene. Arnold’s license tag number was reported to police by an eyewitness who pursued and unsuccessfully attempted to stop her. Officer Roe traced the tag number to Arnold’s residence and located her there. Roe observed that she emitted a strong odor of alcohol about her breath and person; her eyes were bloodshot, watery, and glassy; she was unsteady on her feet; and her speech was slurred. Police Sergeant Davis appeared shortly thereafter and observed the same conditions.

Arnold filed motions in limine and to suppress evidence of her refusal to submit to a state-administered chemical test, the results of field sobriety tests, and custodial statements by her to law enforcement officers. Outside the jury’s presence, Roe testified that while at Arnold’s residence he advised her of her Miranda rights and then administered field sobriety tests, which she failed to perform satisfactorily. The court suppressed this evidence upon the determination that Arnold was given incomplete Miranda warnings. Her motion to suppress other evidence was denied.

At trial, Sergeant Davis testified that after observing Arnold’s appearance and behavior, he arrested her and took her back to the accident scene. She was identified there and then transferred to Officer Ghant’s patrol unit. He testified that he read implied consent warnings to her and, when she failed to respond, he took her to the medical center, where she refused to consent to a state-administered blood test.

1. Arnold enumerates as error the court’s failure to instruct the jury, in accordance with OCGA § 16-2-2, that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.”

This request to charge was based on Arnold’s testimony that when she passed through the intersection the traffic light was green in her direction, and she was hit by the other car while swerving to avoid it. The requested instruction related only to the charge that Arnold disobeyed a traffic control device. Arnold did not defend on the ground that leaving the scene or driving under the influence “occurred as a result of misfortune or accident,” the words in her requested instruction. All the charges against her were statutory “Rules of the Road” and thus are strict liability offenses. See Hoffer v. State, 192 Ga. App. 378, 380 (1) (384 SE2d 902) (1989). The absence of a criminal scheme or undertaking or of criminal negligence is not a defense to a strict liability criminal statute. Coates v. State, 216 Ga. App. 93, 94 (5) (453 SE2d 35) (1995). The instruction was properly rejected.

2. The second alleged error is that the trial court’s sentence violated USCR 33.6 (B), which prohibits the judge from imposing “upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere.”

In support of a motion for new trial which Arnold filed but then withdrew, her attorney executed an affidavit stating that during pretrial plea negotiations, the court instructed counsel it would accept a guilty plea and sentence defendant to a term of confinement for 30 days. Counsel also testified that it is the court’s policy to hear all motions on the day of the trial, and that Arnold decided to exercise her right to a jury trial because she wanted a ruling on her motions in limine and to suppress. According to defense counsel, after granting the motion to suppress in part, the judge stated that if Arnold wanted to then plead guilty it would have to impose a harsher sentence than had previously been discussed “because [now] there were jurors waiting to hear this case.”

An accused may not be judicially punished for exercising her constitutionally guaranteed right to a jury trial. Alabama v. Smith, 490 U. S. 794 (109 SC 2201, 104 LE2d 865) (1989). See Allen v. State, 193 Ga. App. 670, 673 (388 SE2d 889) (1989) (Beasley, J., dissenting). Had Arnold pled guilty before the presentation of evidence at trial, and had the court increased the severity of her sentence simply because the judicial machinery for a trial had been set in motion, the degree of severity of the sentence would have been infected with retribution for exercising a right. But she did not plead guilty, having decided to be tried by a jury and thus opening the door to a display of all the aggravating details of the offenses and factors other than the exercise of her right.

Statements made by the trial court at the sentencing hearing indicate that the sentence particulars were based on a consideration of: evidence that the accident Arnold caused was potentially life threatening; the fact that Arnold’s trial testimony and her statements at sentencing were contradicted by a parade of witnesses; and her driving record of three DUIs and one reckless driving conviction. “[I]n the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. [Cits.]” Alabama v. Smith, supra at 801.

Decided August 22, 1997

Reconsideration denied September 11, 1997.

Deville, Milhollin & Voyles, Roman A. Deville, Jeremy I. Stein, for appellant.

Melba B. Arnold, pro se.

Ralph T. Bowden, Jr., Solicitor, Joseph N. Walden III, W Cliff Howard, Assistant Solicitors, for appellee.

As in Baldwin v. State, 217 Ga. App. 866, 868-869 (3) (460 SE2d 80) (1995), and cases cited therein, “ ‘[it was] not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea. [Cit.]’ [Cit.]” See also Johnson v. State, 224 Ga. App. 568, 570 (2) (481 SE2d 268) (1997). Arnold’s sentence was within statutory limits. See OCGA §§ 17-10-3 (a) (1); 40-6-1. In all, the sentence was not invalid.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.