text:
    A94A1614.
    GAINESVILLE ASPHALT, INC. v. HALL COUNTY.
    (448 SE2d 721)
   Johnson, Judge.

Gainesville Asphalt, Inc., produces asphalt for use in road construction. Gainesville’s inventory and equipment is located in Hall County. Gainesville paid the county $20,084 in 1991 ad valorem taxes on its inventory and equipment. Gainesville asked the county for a partial refund of those taxes and the county denied the request. Gainesville filed the instant action against Hall County for a refund of $14,892, or 74 percent of the ad valorem taxes paid, claiming such a refund is due because Gainesville sold 74 percent of the asphalt it produced in 1991 to the Georgia Department of Transportation (DOT) and the Federal Aviation Authority (FAA). Both parties moved for summary judgment. The trial court granted the county’s motion and denied Gainesville’s motion. Gainesville appeals.

1. Gainesville contends under OCGA § 50-17-29 (e) it is entitled to a refund based on the asphalt it sold to the DOT. OCGA § 50-17-29 (e) provides in pertinent part: “No . . . county . . . shall impose any tax . . . upon any contractors or subcontractors as a condition to or result of the performance of a contract, work, or services by such contractors or subcontractors in connection with any project being constructed, repaired, remodeled, enlarged, serviced, or destroyed for, or on behalf of, the state or any of its agencies, boards, bureaus, commissions, and authorities.” Because this statute provides an exemption from taxation, it must be strictly construed in favor of taxation. See Collins v. City of Dalton, 261 Ga. 584, 585-586 (4) (a) (408 SE2d 106) (1991); Pickens County Bd. of Tax Assessors v. Atlanta Bapt. Assn., 191 Ga. App. 260, 261 (381 SE2d 419) (1989). “Where a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citations and punctuation omitted.) Pier 1 Imports v. Chatham County Bd. of Tax Assessors, 199 Ga. App. 294, 296 (1) (404 SE2d 637) (1991).

Strictly construing the plain terms of OCGA § 50-17-29 (e) in favor of taxation, we conclude it prohibits a county from imposing any tax on a contractor as a condition to or result of the performance of work in connection with a state project. Hall County did not impose the ad valorem taxes in this case as a condition to or result of Gainesville’s production of asphalt sold to the DOT; rather, Hall County taxed Gainesville’s personal property solely because it is located in that county. “OCGA § 48-5-3 provides that all personal property shall be taxed except as otherwise provided by law.” Clayton County Bd. of Tax Assessors v. King, 260 Ga. 495 (397 SE2d 293) (1990). “The situs of personal property ... for tax purposes is normally the county and state where the owner resides. Property used in connection with a trade or business acquires a tax situs where it is more or less permanently situated, i.e., where the business is located.” (Citations omitted.) Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69, 71 (2) (354 SE2d 628) (1987); OCGA § 48-5-11 (2). Accordingly, Hall County’s taxation of Gainesville’s personal property, which is permanently situated in the county, was appropriate.

Contrary to Gainesville’s claim, the instant case is distinguishable from Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106 (410 SE2d 446) (1991), in which this court held under OCGA § 50-17-29 (e) a contractor’s equipment located in Clayton County was exempt from local ad valorem taxation. A review of the opinion and the record in Lunda reveals the contractor did not reside permanently in Clayton County and its equipment was located there solely for work on a DOT project. Because the contractor’s equipment would not have been located in Clayton County but for the state project, the county’s imposition of taxes on the equipment was an improper condition to or result of the performance of work for the state. In the instant case, however, Gainesville’s inventory and equipment are permanently located in Hall County and are not situated there purely for use on state projects. The mere fact that Gainesville uses its personal property, in part, to produce asphalt sold to the DOT does not exempt the property from ad valorem taxation by the county where it is permanently situated.

Decided August 26, 1994

Reconsideration denied September 20, 1994 —

Carey, Jarrard & Walker, R. Thomas Jarrard, Christopher J. Walker III, for appellant.

Stewart, Melvin & House, William H. Blalock, Jr., Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., for appellee.

Smith, Currie & Hancock, Robert B. Ansley, Jr., Robert C. Chambers, amici curiae.

“[0]n motions for summary judgment by either party, the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Citations and punctuation omitted.) Douglas County v. Anneewakee, 179 Ga. App. 270, 274 (2) (346 SE2d 368) (1986). Because there is no genuine issue of material fact that Hall County did not tax Gainesville’s inventory and equipment solely as a condition to or result of the performance of work on behalf of the state, the trial court properly granted summary judgment to the county and denied summary judgment to Gainesville on its claim for a refund based on work it did for the DOT. Compare C. W. Matthews Contracting Co. v. Collins, 214 Ga. App. 532 (448 SE2d 234) (1994).

2. Gainesville claims it is entitled to a tax refund based on the asphalt sold to the FAA pursuant to the doctrine of intergovernmental tax immunity. Gainesville contends that doctrine bars local taxes that discriminate against the federal government and therefore, if Hall County is prohibited by OCGA § 50-17-29 (e) from taxing Gainesville’s equipment used in state projects, it is also prohibited from taxing equipment used in federal projects. Because of our decision in Division 1 that Hall County’s imposition of taxes in this case is not barred by OCGA § 50-17-29 (e), this contention is moot.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1371.
    HOWARD MOTOR COMPANY, INC. et al. v. SWINT et al.
    (448 SE2d 713)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying separate trials to defendants Howard Motor Company, Inc. and John Howard in this suit for tortious assault and battery, invasion of privacy and intentional infliction of emotional distress. The five plaintiffs are women who at various times were employed by defendant Howard Motor Company. Each plaintiff individually alleges she was sexually harassed by defendant John Howard at different times and dates. The trial court ruled that, as evidence as to each plaintiff would be admissible as “similar transactions” in separate trials under OCGA § 24-2-3, the interests of judicial economy “dictate that the individual claims of plaintiffs not be severed.” Held:

The trial court erred in denying defendants’ motion for separate trials on the grounds that the plaintiffs allege “similar conduct” by John Howard “in similar situations of employment” and “evidence of [his] conduct would be admissible in separate trials.”

The parties agree that they have found no Georgia decision on point. We find no need to advert to other law, for the language of our statute is plain. See Telecom*USA v. Collins, 260 Ga. 362, 363-364 (393 SE2d 235). Where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning. Capra v. Rogers, 200 Ga. App. 131 (407 SE2d 101); Sledge v. Employees’ Retirement System of Ga., 196 Ga. App. 597, 598 (396 SE2d 550). OCGA § 9-11-20 (a) authorizes joinder of separate plaintiffs’ claims if they arise out of the “same transaction, occurrence, or series of transactions or occurrences.” (Emphasis supplied.) It does not authorize joinder of claims arising out of “similar” transactions. The fact that evidence of a similar transaction is admissible does not authorize joinder of claims involving the similar transaction.

The trial court, quoting from McCrea v. Ga. Power Co., 46 Ga. App. 276, hn. 5 (167 SE 540), reasoned that “where ... all the essential physical conditions on [two] occasions are identical ... an inference that like causes will produce like results.” This is a strong statement; if it is true at all, it is true only where “all the essential physical conditions on [two] occasions are identical.” Even then the two occasions may not be the same occurrence, which is what the permissive joinder statute requires.

Further, quoting Williams v. State, 190 Ga. App. 646, 648 (381 SE2d 65), the trial court reasoned that in criminal cases evidence of similar offenses is admitted to show bent of mind and has been most liberally extended in the area of sexual offenses. However, such liberality in admissibility of evidence in criminal cases is permitted because the high standard of proof as to criminal offenses may reduce the risk of prejudice to the defendant as to the offense charged. In a civil case the sheer weight of evidence, including evidence of damages and the number of plaintiffs, may overwhelm the defendants. The jury, being required to find a verdict as to each alleged victim and being influenced by the weight of the evidence, may render an all-or-nothing verdict.

Decided August 17, 1994

Reconsideration denied September 21, 1994 —

H. Lehman Franklin, Jr., for appellants.

Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, for appellees.

There are many reasons why joinder based on “similarity” of underlying transactions is per se prejudicial, but it is not essential for defendants to prove prejudice for if joinder is not authorized by the plain language of the statute, no amount of judicial economy can justify it. Appellees’ arguments that under a liberal interpretation of the statute to secure “just, speedy, and inexpensive determination of every action” (OCGA § 9-11-1), all the plaintiffs’ claims arose out of the same series of transactions or occurrences because there is a “logical relationship,” is without merit on its face. OCGA § 9-11-22 (a) provides the specific requirements for permissive joinder, and we are not permitted to ignore those requirements for the sake of liberality. Even under a liberal construction, the statutory requirement that an occurrence or series of occurrences be the “same” is obviously not satisfied by the fact that there is a “logical relationship” between them.

Judgment reversed.

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


author: Smith, Judge.

text:
    A94A1053.
    JACKSON v. THE STATE.
    (448 SE2d 763)
   Smith, Judge.

Willie B. Jackson was found guilty by a jury of armed robbery. Jackson’s motion for new trial was denied, and he appeals.

1. Jackson enumerates as error the court’s instructions on reasonable doubt. Specifically, he objects to that part of the charge in which the court stated that “the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.” Jackson cites only the emphasized portion of the charge and argues on appeal that “by digressing into mathematics, the court clearly implied that probability was sufficient for conviction.” “However, in making this argument appellant focuses on several words in a lengthy and otherwise correct explanation of what constitutes reasonable doubt. It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Daniel v. State, 207 Ga. App. 720, 722 (429 SE2d 130) (1993). “Considering the charge as a whole, we find no reasonable likelihood that the jury applied a standard of proof less stringent than that required by the state and federal due process clauses or other applicable law. [Cit.]” Ruff v. State, 212 Ga. App. 245, 246 (2) (441 SE2d 534) (1994).

2. In his second enumeration, Jackson contends that the court erred in instructing the jury as follows: “If upon a consideration of the evidence in this case you find that thére is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it is your duty to settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do this, then it becomes your duty to believe that witness or those witnesses you think best entitled to believe. It is for you alone to determine what testimony to credit and what testimony you will discredit.” (Emphasis supplied.) Jackson protests that conflicts in testimony are a matter for the jury to resolve and that the court’s instruction intrudes into its exclusive province. However, as in his argument in support of his enumeration treated in Division 1, Jackson emphasizes a single phrase that does not accurately reflect the court’s instruction as a whole. “The totality of the instruction, taken from Volume 2 of the Suggested Pattern Jury Instructions in Criminal Cases, cannot reasonably be heard by the jury to curtail or interfere with its fact-finding role in any way.” Frost v. State, 200 Ga. App. 267, 271 (6) (407 SE2d 765) (1991).

3. In his final enumeration, Jackson challenges the sufficiency of the evidence to convict him under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed to support the verdict, the evidence shows that the victim, who was operating a Flash Foods store, was robbed at gunpoint by a man wearing a mask at about 6:00 a.m. Ten to fifteen minutes after the robbery, Jackson was seen walking through a trailer park. He was picked up by a police officer, who noticed that Jackson was “sweating.” Investigators located a pile of clothes that had been left in the woods behind the robbery scene. A tracking dog was allowed to get the scent of what Jackson was wearing at the time of his arrest. The dog then followed Jackson’s trail from the front of the store to the clothes found behind the store and then to the trailer park where Jackson had been seen shortly after the robbery. The patterns of the footprints made along the trail the tracking dog followed matched the pattern of Jackson’s shoes. A photograph of those tracks and the shoes Jackson was wearing at the time of his arrest were both introduced into evidence. Moreover, an expert testified that when he compared fibers taken from the clothes Jackson was wearing at the time of his arrest to those taken from the clothes found in the woods, he could “find no difference” between them.

Decided September 21, 1994.

Joe H. Thalgott, Morris S. Robertson, Celia Larsen, for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, L. Craig Fraser, Assistant District Attorneys, for appellee.

The State’s evidence, though circumstantial, was sufficient to authorize the jury to find Jackson guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A94A1178.
    A94A1179.
    KIRK & ASSOCIATES, INC. v. McCLELLAN et al. BLACKWELL v. McCLELLAN et al.
    (448 SE2d 764)
   Beasley, Presiding Judge.

On April 4, 1989, a car driven by McClellan was struck head-on by a car driven by Blackwell and owned by her husband. McClellan and his wife sued driver Blackwell and later amended the complaint to include owner Blackwell, the City of Rome and, under the theory of respondeat superior, Kirk & Associates, Inc. (“Associates”). The City of Rome was awarded summary judgment. At trial, the jury found both driver Blackwell and Associates liable, but found in favor of owner Blackwell and the claims against him were dismissed. In separate cases, Associates and driver Blackwell appeal from the judgment in favor of the McClellans, whose cross-appeal has been withdrawn.

Blackwell was traveling the wrong way down a four-lane road. The opposing lanes of traffic were separated by railroad tracks. The collision occurred on a curved portion of the road in the rain, shortly after McClellan turned onto the road. Both drivers testified that the collision happened quickly after McClellan emerged from behind an obstructing vehicle or vehicles.

Associates operated a private detective business. About two months before the collision, Blackwell began working for Associates. It was disputed whether she worked as an employee or as an independent contractor. On the morning of the collision, she received a telephone call from Associates asking her to conduct surveillance on an automobile traveling on a certain highway. Blackwell testified that she was on that job when the collision occurred, whereas the owner of Associates testified that, given the location of the collision, it was not possible for Blackwell to have been on the job.

Case No. A94A1178

1. Associates contends that, even if Blackwell was pursuing an assignment at the time of collision, it is not liable under a respondeat superior theory because Blackwell was an independent contractor. It enumerates as error the court’s holding that the driver was an employee rather than an independent contractor, as a matter of law. The court did not base its ruling upon the evidence of the working contractual relationship between Associates and driver Blackwell, but rather the legal conclusion that private detective agencies may employ only persons registered under the Georgia Private Detective & Security Agencies Act (“the Act”), which regulates both agencies and their employees. OCGA § 43-38-1 et seq. Thus the court removed from the jury the disputed factual issue and instructed it to decide the case upon an employer/employee relationship, thereby creating what may have been a fictional fact. The court reached this result by construing the Act so as to preclude the agency from claiming and proving that the driver was an independent contractor, thus removing a defense to the action. The question is whether achievement of the purpose of the Act compelled this result.

In determining whether the Act requires the conclusion reached by the trial court, “ ‘[i]t is elementary that “(i)n all interpretations of statutes, the courts shall look diligently for the intention of the (legislature).” OCGA § 1-3-1.’ [Cit.] The legislative intent is determined from a consideration of the entire statute.” Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79) (1992).

The stated purpose of the Act is to safeguard the citizens of this state by regulating private detective and security businesses, in the public interest. OCGA § 43-38-2. To accomplish this purpose, the Act is to be liberally construed. Id. It is apparent from a reading of the Act that the purpose is to be achieved by assuring that people who engage and work in these businesses are responsible, of good moral character, free of certain types of crime, qualified to handle firearms, and meet certain other similar criteria. Regulation is by a licensing system for operators of such businesses, OCGA § 43-38-6, and by a registration procedure for employees. OCGA § 43-38-7. Training appropriate to the business is required, see OCGA § 43-38-10.1, and ongoing monitoring maintains the integrity of the industry. Sanctions are provided. OCGA §§ 43-38-11; 43-38-11.1; 43-38-16. The law regards violations of the Act to be “a menace and a nuisance and . . . dangerous to the public health, safety, and welfare.” OCGA § 43-38-4 (d) (5). Thus the Act requires that certain standards be met in the businesses which provide detective and security services.

The Act seeks to protect those members of the public who come into contact with private detectives or security personnel from unscrupulous or criminally dangerous or unqualified persons. Its purpose, though broad, is not to assure that those working in the profession are qualified to drive, or to prevent negligence in the operation of motor vehicles. These public interests are served by other regulatory mechanisms and laws. The Act carries a mechanism and authority for the imposition of sanctions for its violation, and an express criminal penalty, but it does not impose tort liability on an employer in the absence of an employer/employee relationship. If the legislature meant to impose tort liability on a firm for the negligence of an unregistered independent contractor, even when the negligence involves only a collateral activity (driving, not investigating), it could have so provided. We decline to create this additional sanction.

Associates was duly licensed under the Act. However Blackwell, who was in fact either an employee or an independent contractor, was not registered, as required by OCGA § 43-38-7. Consequently, both Associates and Blackwell were in apparent violation of the Act and subject not only to sanction by the regulatory board but also to criminal prosecution under OCGA § 43-38-16.

The trial court’s conclusion was incorrect in several specific respects. The court concluded that the Act forbids independent contractor relationships, but they are permitted, subject to the Act’s licensing requirements. OCGA § 43-38-6. What is forbidden is for an employer to have an unregistered employee or to contract with an unlicensed party. The Act includes severe sanctions, but imposing tort liability under respondeat superior for negligent acts committed in the course of pursuing the business of regulated firms is not one of them. Holding the firm liable for negligent acts of an independent contractor would be a fundamental anomaly in tort law, and would not serve any purpose of the Act. Although holding a firm responsible for the act of an independent contractor would provide additional recourse for an injured party, the Act does not include any specific redress for a party injured as a direct result of negligent investigating or security activity, which is regulated by the Act. It would be a further anomaly to interpret the Act to create redress for parties injured by actions outside the Act’s purpose when there is no redress for parties injured within the Act’s purposes.

2. Associates moved for directed verdict on the question of whether Blackwell was an independent contractor, contending she was one as a matter of law. It enumerates as error the denial of that motion. As stated in Division 1, the trial court erred in ruling that Blackwell was an employee as a matter of law. Directed verdict to Associates on the issue, however, was not warranted.

“ ‘The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor. The test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract.’ [Cits.]” (Emphasis omitted.) Hall v. Buck, 206 Ga. App. 754, 758-759 (426 SE2d 586) (1992).

Evidence at trial included that Blackwell was directed by Associates in her handling of cases, submitted time sheets for her work, worked for Associates full-time and had no other job, could be removed from any job, and that Associates had sent a letter to clients announcing the addition of Blackwell to its staff. There was also evidence that, after Associates was added as a defendant to the suit, its president asked Blackwell to create certain documents indicating that she was an independent contractor, and to falsify the dates of those documents to indicate that they were created at the beginning of the employment relationship rather than after suit for fear that the relationship would be considered one of employer/employee, to Associates’ detriment. Although there was evidence presented from which it could be concluded that she was an independent contractor, there was a conflict and Associates was not entitled to a directed verdict on the issue.

Associates also contends that the court erred in not charging the jury on the distinctions between employees and independent contractors. This contention is correct, as is inherent in our decision in Division 1.

3. Associates contends that the court erred in refusing to give its requested jury charge on traveling to work and the scope of employment. The principles of law properly presented by the requested charge were adequately covered by the charge given. After Associates’ exception to the rejection of the requested charge was made, the court stated that it had not given the requested charge because the charge included reference to a jury determination on whether Blackwell was, in fact, an employee of the firm and the court did not want to cloud the issue for the jury after the court’s ruling on that matter on legal grounds. As we have determined that the court erred in that ruling, this enumeration is moot because it will not recur on retrial.

4.Finally, Associates contends the court should have granted a mistrial when the court made its legal determination that Blackwell must be considered an employee rather than an independent contractor because certain impeachment on that issue was inflammatory. The basis for the motion for mistrial was that impeachment of Associates’ president, its primary witness, on the issue of employment status centered on alleged misrepresentations and fabrications which, after the employment- issue was removed from the jury, only served to prejudice and inflame the jury. Blackwell also gave testimony about fabrication of documents concerning employment relationship. The court denied the motion, stating that the evidence was properly admitted to impeach credibility.

As discussed in Divisions 1 and 2, the issue of whether Associates was liable under a theory of respondeat superior required jury resolution. Since the issue was not presented to the jury, we cannot determine whether the impeachment may have affected the jury’s deliberations on damages as well as liability. Therefore, on retrial, the issues will not be limited to liability, but must include consideration of damages.

Case No. A94A1179

5. Blackwell complains that certain impeachment of her employment status was irrelevant given the court’s ruling that she was an employee as a matter of law. As we have determined that ruling to be incorrect and the case must be retried, the enumeration is moot.

6. Blackwell also asserts it was error for the court to refuse to charge the jury on comparative negligence and to give a charge on reckless driving.

As these enumerations rest upon specific testimony presented at trial and a retrial is required, they are moot. Whether such charges would be proper upon retrial depends on the evidence then presented and the requests then made.

Judgments reversed.

Andrews and Johnson, JJ., concur.

Decided September 21, 1994.

Thomas P. Bishop, for Kirk & Associates, Inc.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., for Blackwell.

Paul T. Carroll III, for McClellan et al.

       Contrary to McClellan’s contention, comparative negligence was mentioned in the pretrial order.


text:
    A94A1233.
    PARDUE v. THE STATE.
    (448 SE2d 768)
   Smith, Judge.

William Douglas Pardue was charged by accusation with the offenses of simple battery, OCGA § 16-5-23, and theft by shoplifting, OCGA § 16-8-14. The accusation was later amended to change the shoplifting charge to theft by taking, OCGA § 16-8-2. In a jury trial, the court directed a verdict on the theft charge, and the jury found Pardue guilty of simple battery. He appeals, contending that the trial court erred in denying his motion for a directed verdict as to this count. We affirm.

Pardue testified at trial that on November 28, 1992, he was on his way home from work about 5:30 p.m. when he saw a disabled truck at the side of the road. He recognized the driver, Jeff Dodd, whom he had not seen in approximately six years, and stopped to pick him up. He took Dodd home with him to see his family and his new house. When he was taking Dodd back to his home, Dodd asked him if he would stop at a convenience store so Dodd could buy a six-pack of beer. He did so, and he stayed in the car while Dodd went into the store to buy the beer. When Dodd returned, he was followed by another man, who pulled him out of the car and wrestled him to the ground. Pardue “hollered for him to quit, to get off of him” because he thought “he was going to kill my friend.” The man did not release Dodd, however, and Pardue testified he struck him on the back of the head to get him to do so.

Sergeant First Class Grady Anthony Gayton of the Georgia National Guard testified that between 11:30 p.m. and midnight he left his home and went to a convenience store to buy soft drinks. A man later identified as Dodd was in front of him at the checkout counter. He heard Dodd arguing with the clerk about a six-pack of beer, which the clerk was insisting she could not sell to Dodd because it was after 11:45 p.m. After this, Gayton heard Dodd ask for a pack of cigarettes, then saw him grab the beer and run out the door. He chased Dodd, who jumped into the window of the waiting car. Dodd hit him, and he pulled Dodd out of the car, flipped him over in the air, and landed on top of him. Pardue then came over and “said something ... it may have been let him loose or let him go or something like that and he begin to hit me in the back of the head around the temple over my ear and behind the head here.” Gayton testified that Pardue hit him “no less than five times, maybe six.”

Decided September 21, 1994.

Richard B. Thurman, for appellant.

Roger Queen, District Attorney, for appellee.

Pardue contends his motion for a directed verdict of acquittal on the simple battery charge should have been granted because he was justified in attacking Gayton under OCGA § 16-3-21 (a). That Code section provides, in pertinent part, that “[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force.”

“A motion for directed verdict of acquittal must be granted only where the evidence is not in conflict and that evidence demands the finding of not guilty. [Cit.]” In the Interest of F. L. P., 184 Ga. App. 164, 166 (1) (361 SE2d 43) (1987). Pardue’s motion for a directed verdict of acquittal was made at the conclusion of the State’s case-in-chief and was not renewed at the close of the evidence. Given that the affirmative defense of justification was not raised until Pardue testified in his own defense, the trial court did not err by ruling that the requirements for granting a directed verdict had not been met.

Moreover, even if the motion had been renewed, the jury was authorized to reject Pardue’s defense of justification. The jury was properly charged on justification, including an instruction that the State had the burden of showing that Pardue was not justified in attacking Gayton. There is no indication that the jury failed to consider this evidence, and they decided this issue against Pardue.

Judgment affirmed.

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


text:
    A94A1693.
    A94A1880.
    WALKER v. THE STATE. DAVIS v. THE STATE.
    (448 SE2d 924)
   Birdsong, Presiding Judge.

Jeffrey C. Walker and Curtis Jerome Davis were jointly tried before a jury and found guilty of possession of cocaine with intent to distribute in violation of OCGA § 16-13-30 and possession of a firearm during the commission of a felony in violation of OCGA § 16-11-106. Each appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdicts of guilty, and their separate appeals are consolidated for disposition in this opinion.

Walker contends the evidence is insufficient to sustain his convictions and asserts that the trial court erred by allowing a witness to testify after Walker’s motion “requesting information concerning any deals or consideration given to any witness, when the State failed to respond to the motion.” Davis also contends the evidence is insufficient to sustain his convictions and contends the trial court erred by denying his motion for a new trial based on the State’s failure to reveal that a witness’ testimony was in return for the State’s agreement to dismiss the charges against him. Held:

1. Appellants both contend the evidence is insufficient to sustain their convictions. Considering the evidence most strongly in support of the verdicts, the transcript shows narcotics agent Sullivan testified he arranged with Walter Berry to buy some cocaine at Berry’s body shop. When Sullivan arrived at the body shop, however, Berry told him the cocaine had not arrived. Soon Davis and Walker drove up and Berry told Sullivan, “he is here.” Sullivan also testified that he gave Berry $250 and Berry walked over to the truck and spoke with Walker, the passenger in the truck. Then, Berry and Walker started walking toward Sullivan. According to Sullivan, when Walker saw him, Walker got a “shocked look on his face,” and returned to the truck. Davis, however, did not leave the truck.

After Sullivan gave a signal for other officers to converge, the other officers arrested Berry, Walker, and Davis. At first, no cocaine was found, but after about 15 or 20 minutes, a small change purse was found in the gutter some 15 feet from the truck. Inside were small plastic packages of a substance later identified as cocaine.

No identifiable fingerprints were found on the plastic packages and the purse was not checked for fingerprints. No witness testified that they saw either Walker or Davis in possession of the purse, or that either appellant threw anything in the street. A search of the truck revealed a .357 magnum pistol, registered to Davis, on the console between the front seats. Davis had a permit to carry the pistol which was not concealed or otherwise carried illegally.

At the trial, Berry testified for the State; his testimony tended to support Sullivan’s testimony. He testified that he called Walker and asked him to bring cocaine to the shop, but he denied talking to Walker at the scene shortly before the arrest. Berry’s testimony did not incriminate Davis in any way.

We find this evidence sufficient to sustain the convictions. When the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendants’ guilt, the verdicts will not be disturbed unless the verdicts are insupportable as a matter of law. Pattillo v. State, 250 Ga. 510, 512 (299 SE2d 710); Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576). Convictions based upon circumstantial evidence are authorized only when the “proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. But, when circumstantial evidence meets this test, it is as probative as direct evidence (Christmas v. State, 171 Ga. App. 4, 7 (318 SE2d 682)), and “[w]hether this burden has been met is a question for the jury.” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546). Further, circumstantial evidence need not exclude every inference or hypothesis. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662).

On appeal, the presumption of innocence no longer avails and we view the evidence in a light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). Viewing the evidence in that manner, we conclude that the jury rationally could find from the circumstantial evidence that every reasonable hypothesis was excluded except that Walker and Davis were engaged in a joint enterprise to deliver the cocaine to Berry so he could sell it to Sullivan. Thus the jury could find they both possessed the cocaine with the intent to distribute and could further find that, while delivering the cocaine, they jointly possessed the firearm even though only Davis owned the pistol. Accordingly, there is sufficient evidence from which any rational trier of fact could have found beyond a reasonable doubt that Walker and Davis were guilty of the offenses of which they were convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Walker and Davis contend the State failed to inform them that the witness Berry was testifying under a deal or promise of leniency. We reiterate “[t]he state is under a duty to reveal any understanding or agreement with a witness concerning criminal charges pending against that witness. Patillo v. State, 258 Ga. 255 (4) (368 SE2d 493) (1988); Jolley v. State, 254 Ga. 624 (5) (331 SE2d 516).” Davis v. State, 263 Ga. 5, 9 (426 SE2d 844). This duty extends to even informal agreements (Jolley, supra at 629), and in Patillo our Supreme Court held that agreements with witnesses must be revealed regardless of how non-promising the agreement was in terms of its prospects for the witness. Patillo, supra at 261. Therefore, the State’s reliance on the failure of appellants to seek a ruling on their motions to reveal any agreements is misplaced. The fact that both appellants moved for the State to disclose this information merely emphasized the State’s independent obligation. The trial court’s failure to rule on the motions is not dispositive of the issue.

Because at various times the State has taken inconsistent positions on whether there was a deal, and indeed, even within the same pleading appears to both affirm and deny a deal with Berry, the record does not conclusively establish that there was a deal. Since the same assistant district attorney represented the State at the joint trial of both appellants, argued against Davis’ motion for new trial, and prepared the State’s briefs in these appeals, the reason for this confusion is not apparent.

The transcript does not definitely show there was a deal. Berry’s testimony strongly suggests there was no deal; he testified that he had entered a plea of guilty on the charge, but that he had not been sentenced and did not know how much time he would get on his plea. Based upon this testimony, the likely inference is that there was no agreement between Berry and the prosecution. Berry merely entered a plea and would in the future be sentenced on his plea.

Berry, however, was never sentenced. After Berry’s testimony against the appellants, the charge was nol prossed even though he had already pleaded guilty. Further, other cocaine charges pending against Berry resulted in a sentence of 20 years confinement to be served on probation with 52 weekends in jail. This disposition is contrary to the written policy of the district attorney that cocaine dealers would do jail time.

Davis moved for a new trial because the prosecution failed to reveal the deal with Berry. At the hearing on this motion, Davis was represented by new counsel and his trial defense counsel testified that he was not informed of any deal with Berry. Additionally, evidence was presented showing Berry was originally indicted as a co-defendant with Davis and Walker for this attempted sale of cocaine on January 18,1992, and was indicted separately for sale and distribution of cocaine on January 4, 1992. Davis also introduced a copy of the district attorney’s published statement showing the policy that persons who sold cocaine go to jail.

At the hearing on Davis’ motion for a new trial, the prosecutor refused to stipulate that there was a deal. The prosecutor stated that Davis’ trial defense counsel was advised on the morning of trial that Berry would testify against the defendants, and she then stated that defense counsel was advised that she “had talked to Walter Berry, who showed up without an attorney and [she] had convinced him to testify against Davis and . . . Walker; that was the only deal and I said, ‘I’ll drop the charges against you if you testify against them’ and that was just — and I told [Davis’ trial defense counsel] that and there wasn’t anything in writing and there were no promises made other than I would drop the charges. The sale and distribution of cocaine charge Mr. Berry had already pled to by the time that this case with Davis and Walker came to trial, if I remember correctly.”

The prosecutor explained any conflict between the treatment Berry received and the district attorney’s policy by stating: “As far as the D.A.’s policy on the sale of cocaine, I have routinely disregarded that policy and that policy is not binding on me and I didn’t write it and I didn’t print it out and if he wants to deal with [the D.A.] by reporting me to him, then that’s fine, but the truth of the matter is that I never agreed to the policy and I never went along with it and I never conducted myself as if I did.”

Subsequently, trial defense counsel testified that while he knew Berry would be testifying against Davis, to the best of his recollection he was never aware of any deal. Davis also introduced a letter from trial defense counsel to his present counsel in which trial defense counsel stated that he was not informed of any deal concerning Berry. The prosecutor appeared to contest this recollection, and at the hearing also denied that Berry received a 20-year sentence.

The triál court denied the motion for a new trial because there was “not enough evidence” to authorize the grant of a new trial. Walker enumerates as error the denial of his motion for new trial.

On appeal, the prosecutor makes inconsistent statements about whether there was a deal or agreement with Berry in return for his testimony. In Davis’ appeal, the prosecutor first contends that when Davis made a motion to reveal this information the State was not aware of anything to reveal. “No conversation was ever initiated or held with either counsel regarding Giglio materials.” The State’s brief also asserts that Davis’ trial defense counsel was informed at another trial involving that counsel, that Berry had been persuaded to testify against Davis. The brief next states: “NO DEAL HAD BEEN MADE WITH BERRY at the time of that trial or at the time of appellant’s trial. Appellant speculates, without the benefit of any evidence that the State made a secret deal at that time with Berry and did not reveal that deal to appellant. That is not the case. ... In the instant case, a proper Giglio motion was filed, but there were no promises of leniency or non-prosecution made until the morning of trial. On cross-examination, Walter Berry was questioned extensively by counsel for appellant about his plea and possible sentence. He indicated at that time that he did not know what his sentence was going to be. There was no evidence of any deal because there was no deal made with Berry before appellant’s trial in this case. The [prosecutor] asserted at the hearing on the motion for new trial that on the morning of trial she told counsel for appellant that she had induced Berry to testify by offering to drop the charges against him. There was no writing in response to appellant’s Giglio motion because there was no time to write anything down. But counsel distinctly remembers alerting appellant’s trial counsel that Berry was going to testify against his co-defendants.” Of course, telling defense counsel that Berry was going to testify against his client is not the same as telling him that Berry had a deal to testify.

The State’s brief in Walker’s appeal contains- statements that conflict with the State’s position in the Davis appeal. The Walker brief states: “NO DEAL HAD BEEN MADE WITH BERRY at the time of that trial or at the time of appellant’s trial,” further states that “there were no promises of leniency or non-prosecution were made,” and states “there was no evidence of any deal because there was no deal.” The State has offered no explanation for any inconsistencies and has not asserted that Walker’s counsel was made aware of any deal with Berry.

Decided September 21, 1994.

Lewis R. Lamb, for appellants.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assis tant District Attorney, for appellee.

Because the record on appeal contains conflicting evidence on whether there was a deal with Berry and whether the defense was informed, these appeals are remanded to the trial court for an eviden-tiary hearing and findings of fact. The primary issues to be addressed are whether there was an agreement, deal, promise, or understanding with Berry that he would receive some benefit in return for his testimony against Walker and Davis. If there was such an agreement, what were its terms, when was it reached, and what terms of the agreement, if any, were made known to counsel for the appellants?

Although Davis’ and Walker’s enumerations of error as crafted do not assert due process violations, the trial court should consider, and make appropriate findings of fact and conclusions of law on whether there have been violations of due process requirements of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215). See Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104); Owens v. State, 251 Ga. 313 (305 SE2d 102). If the trial court determines that such violations have occurred, the trial court should also consider and make appropriate findings and conclusions of law on whether “ ‘the (undisclosed) evidence is material in the sense that its suppression undermines confidence in the outcome of the trial,’ i.e., ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ [Cit.]” Patillo, supra at 261. The procedures established in Moore v. State, 187 Ga. App. 387, 392-394 (370 SE2d 511) are suggested upon remand to the extent applicable. If the trial court determines that a new trial is not required, Walker and Davis may appeal from that judgment and the appeal will be redocketed in this court. See Hammond v. State, 260 Ga. 591, 599-600 (398 SE2d 168).

Judgments affirmed in part and cases remanded.

Blackburn and Ruffin, JJ., concur.


text:
    A94A0940.
    ROSS v. THE STATE.
    (448 SE2d 769)
   Smith, Judge.

Pamela Martin Ross was convicted of prostitution, OCGA § 16-6-9, after a trial without a jury. She appeals, arguing that the evidence was insufficient to convict her. The trial court found that no other reasonable conclusion could be drawn from the evidence presented by the State. We agree and affirm.

Viewed to support the court’s judgment, the evidence shows that an undercover officer placed a call to an “escort service” advertising in the local “yellow pages” telephone directory. The officer asked to have a “lady sent up” and requested that she be a petite blonde. A conversation ensued concerning money, and the officer was informed that the fee would be $200 for one hour.

Shortly thereafter the officer received a call from a woman identifying herself as “Monica.” The caller discussed how long it would take for her to get to the hotel, verified the room information, and asked for his name. Approximately one hour later, Ross appeared at the officer’s hotel room and identified herself as “Monica.” The officer recognized her voice as being the same person who had called earlier. Ross was dressed in a white jumpsuit and brought only her purse. Ross told the officer that she had to use the bathroom and that he should get comfortable. The officer removed his shirt and sat on the bed wearing cut-off sweat shorts.

When Ross returned from the bathroom, she began to check the room and paid particular attention to a go-between door for the connecting room. According to the officer, Ross then told him that “we need to go ahead and take care of the money.” The officer paid Ross $200. Ross then telephoned the escort service, confirming that she had arrived at the officer’s location, everything was okay, and to “start the time.”

Without any prompting from the officer, Ross began to disrobe, revealing lacy high-cut lingerie. While disrobing, Ross removed a small black bag from her purse and placed it on the nightstand. Within about 30 to 40 seconds Ross had removed all of her clothing. She then sat down on the bed very close to the officer. The officer then asked Ross whether she had brought any condoms. According to him, she replied: “Yes, everything’s taken care of,” nodding toward the black bag that she had previously removed from her purse and placed on the nightstand. Believing that any further steps would necessarily involve physical acts, and likewise believing that he already had sufficient evidence to charge Ross with prostitution, the officer then signaled to the surveillance team to effect the arrest by stating the pre-arranged code phrase “Let’s get busy.” Ross, unaware of the true purpose of the officer’s statement, responded: “Okay.” A second officer then entered the room and advised Ross that she was under arrest for prostitution. The black bag Ross placed on the nightstand was seized by the arresting officers. It was found to contain, among other items, six non-lubricated condoms, two “large” condoms, one empty condom package, five rubber gloves, contraceptive gels, jellies, and sponges, and one “feminine wash.”

“A person commits the offense of prostitution when [s]he performs or offers or consents to perform an act of sexual intercourse for money.” OCGA § 16-6-9. Ross argues that her actions did not indicate the intent to engage in an act of prostitution beyond a reasonable doubt. She points out that the undercover officer agreed to pay $200 to the agency, not to her, and that no other sums were negotiated; that the officer did not suggest that he wished for her to perform sex for money during their telephone conversation or at any time; that there was never any physical contact; that there was no evidence of sexual paraphernalia known to the officer until after she was arrested; and essentially that the only evidence indicating that a sexual act was about to take place was solely in the mind of the undercover officer.

“The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence excludes every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of innocence of the crime charged. [Cits.]” Bailess v. State, 168 Ga. App. 56, 57 (308 SE2d 61) (1983). It is certainly possible that Ross was to receive no benefit at all from the $200 she collected on the escort service’s behalf, but that possibility is a patently unreasonable one. It is likewise possible that Ross did not intend to signal to the officer her willingness to engage in an act of sexual intercourse in return for the $200 fee. However, it is unreasonable to conclude that Ross was not aware that she was communicating such an intent by removing all of her clothing, sitting very close to the officer, indicating to him that she had brought condoms for him, and finally by indicating agreement to the suggestion that she and the officer together should “get busy.”

Moreover, we find no significance in the fact that the officer did not confirm the contents of the black bag until after Ross was arrested. The relevant question is whether Ross knew what was in the bag when she removed it from her purse, placed it on the nightstand, and indicated to the officer that condoms were contained therein; it is not whether the officer had confirmed that the bag contained sexually oriented items before the arrest was made. Ross does not suggest that she was unaware of the contents of the bag, nor could such a suggestion be reasonably entertained under the circumstances.

Decided September 22, 1994.

Daniel L. Dean, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

The trial court was authorized by the evidence presented to exclude other possible hypotheses as unreasonable and find that Ross knowingly and intentionally indicated to an undercover officer her consent to engage in an act of sexual intercourse in exchange for money in violation of OCGA § 16-6-9. OCGA § 24-4-6; Bailess, supra.

Judgment affirmed.

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


text:
    A94A1265.
    SHELTON v. THE STATE.
    (448 SE2d 771)
   Smith, Judge.

Larry Joseph Shelton was indicted and convicted on two counts of aggravated child molestation. His motion for new trial was denied and he appeals.

1. Shelton enumerates the general grounds. Construed most strongly against him, the evidence shows that his ten-year-old stepdaughter approached a school guidance counselor and reported that Shelton had sexually molested her. She described the molestation in detail. The guidance counselor reported this conversation to the Department of Family & Children Services (DFACS), and the victim was interviewed again in the presence of a DFACS caseworker and a sheriff’s deputy. Her account of what had occurred remained consistent in these interviews. The victim testified at trial somewhat hesitantly, but her testimony was consistent with her earlier interviews. Shelton testified, denying the charges, but he admitted he sent a letter to the victim’s mother instructing her to talk to the victim, “make sure she don’t say anything, I mean nothing!” and “if she didn’t testify, then they wouldn’t have a case.” The letter stated at the bottom “burn when finished.”

The victim’s mother testified that the victim recanted her testimony shortly before trial, but the victim testified that her mother had instructed her to lie because if Shelton “gets put back in jail he’ll go back to the chain-gang.” A former attorney for Shelton testified that the victim stated in an interview with him that people were trying to get her to say things that were untrue, and that she “no longer knew what the truth was.” However, he testified he was unaware of the letter from Shelton to the victim’s mother, and he conceded it was possible the victim’s mother could have told her to lie. Another relative testified the victim stated she had “lied on my daddy.” There was also some inconsistency in the victim’s testimony regarding whether Shelton attempted intercourse with her and whether he succeeded.

All this evidence, however, was before the jury, and any conflict was resolved against Shelton. See generally Neese v. State, 183 Ga. App. 773, 775 (1) (360 SE2d 1) (1987). Viewed in the light most favorable to the verdict, there was evidence presented from which a rational trier of fact could reasonably find that Shelton was guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Shelton executed a “Stipulation for Admissibility of Polygraph Examination Results.” He now objects to the admission into evidence of the questions propounded by the polygraph examiner, contending he stipulated only to the admissibility of the results. Shelton states that he was unable to find any prior court ruling allowing the questions into evidence under such a stipulation. However, the relevant cases show that such questions have been admitted without objection, tacitly acknowledging the common-sense proposition that knowledge of the questions themselves is essential to an understanding of the results. See Pittman v. State, 208 Ga. App. 211, 220-221 (10) (430 SE2d 141) (1993); Stephens v. State, 208 Ga. App. 291, 293 (3) (430 SE2d 29) (1993); Neese v. State, supra at 774. This enumeration of error has no merit.

3. Shelton also enumerates as error the trial court’s refusal to grant his motion for mistrial for violation of an order in limine. The order prohibited the mention of Shelton’s jailing on any unrelated criminal charges. However, the trial court noted that “they don’t plan to bring up his prior cases, but if . . . after his release from jail he had some kind of contact with the witnesses, trying to get them to change their testimony or something of that nature, that would be relevant. Of course, the emphasis would be the contact with the witness, not that he . . . just got out of jail.” It was in precisely this context that the issue of Shelton’s release from jail was mentioned. The caseworker for DFACS testified the victim’s mother was cooperative in taking the victim to counseling after the report of the molestation, so long as Shelton was not in the home. However, when Shelton returned, the victim’s mother ceased to cooperate with DFACS, and the caseworker learned that Shelton was in contact with the victim’s mother and the children, in violation of his bond. During this testimony, the caseworker mentioned that Shelton returned because he “got out of jail,” and Shelton’s attorney moved for a mistrial.

The trial court initially believed there was no violation of the order in limine because the incarceration was for the offenses on trial. However, it later became apparent that Shelton in fact was confined at that time on an unrelated probation revocation, although that was not revealed to the jury. The trial court found that the violation of the order was not intentional and that Shelton had not been prejudiced by the testimony. Shelton declined the trial court’s offer of a curative instruction and renewed his motion for mistrial.

Decided September 22, 1994.

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Robert B. Richbourg, Assistant District Attorney, for appellee.

This line of questioning was relevant to support the State’s contention that the victim’s mother was attempting to shield Shelton and had persuaded the victim to recant her testimony under Shelton’s influence. Further, there was no sufficient showing of prejudice. The witness’s testimony did not state or suggest that Shelton had been involved in any unrelated criminal activity; the jurors most likely concluded, as the trial court initially did, that Shelton was released after a period of confinement on the offenses charged. Accordingly, the trial court did not abuse its discretion in denying the motion for mistrial. See Lashley v. State, 196 Ga. App. 672, 673 (1) (396 SE2d 590) (1990). “Moreover, appellant refused the offer of curative instructions, thus making it impossible for the trial court to repair the alleged prejudice and waiving the grounds to assert mistrial error on appeal. [Cit.]” Battle v. State, 195 Ga. App. 542, 544 (2) (394 SE2d 788) (1990).

Judgment affirmed.

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


author: Pope, Chief Judge. Smith, Judge,

text:
    A94A0286.
    THE STATE v. WILLIAMS.
    (448 SE2d 700)
   Pope, Chief Judge.

The State appeals the trial court’s grant of defendant Michael Harry Williams’s plea in bar based on double jeopardy. See OCGA § 5-7-1 (3). The trial court held that defendant could not be prosecuted for improper passing and vehicular homicide because he already pled guilty to a charge of improper passing and paid a fine. We affirm.

Defendant was involved in a traffic collision occurring December 7, 1992. Trooper Stephens originally issued him a traffic citation charging him with improper passing, see OCGA § 40-6-44, and ordering him to appear in the probate court on January 13. The next day, Trooper Stephens took out warrants for improper passing and serious injury by vehicle, a felony. See OCGA § 40-6-394. When the injury victim died approximately one week after the accident, Trooper Stephens lifted the warrant for serious injury by vehicle and took out a warrant for vehicular homicide in the second degree. See OCGA § 40-6-393 (b). However, Trooper Stephens failed to lift the citation issued at the scene for improper passing. Defendant appeared in the probate court on January 13, 1993, as the traffic citation commanded, pled guilty to the improper passing charge and paid a $48 fine. Four months later the grand jury indicted Williams for improper passing and vehicular homicide in the second degree.

The trial court’s grant of defendant’s plea in bar was correct under Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932). Under Blockburger, successively charged offenses are separate for purposes of double jeopardy only if proof of each offense requires proof of some element or fact which proof of the other does not. See id. at 304. In order to prove defendant guilty of vehicular homicide in the second degree (as charged in the indictment), the State must show that defendant violated OCGA § 40-6-44 by improperly passing another vehicle, and that his violation of that Code section caused the death of another person. See OCGA § 40-6-393 (b). Thus, proof of improper passing requires proof of no element or fact which is not also necessary to prove vehicular homicide, and the former is necessarily a lesser included offense of the latter. “ ‘[A] conviction on a lesser-included offense bars subsequent trial on the greater offense.’ [Cit.]” State v. Burroughs, 246 Ga. 393 (271 SE2d 629) (1980).

As the dissent notes, Grady v. Corbin, 495 U. S. 508 (110 SC 2084, 109 LE2d 548) (1990) was overruled in United States v. Dixon, 509 U. S_(113 SC 2849, 125 LE2d 556) (1993). Corbin had expanded the double jeopardy bar to preclude prosecution and punishment for offenses based on the same conduct, even if they passed the Blockburger “same elements” test. Because the improper passing and vehicular homicide offenses here do not pass the Blockburger test, the overruling of Corbin does not affect the outcome of this case.

Judgment affirmed.

McMurray, P. J., Beasley, P. J., Johnson and Blackburn, JJ., concur. Birdsong, P. J., Andrews, Smith, JJ., and Senior Appellate Judge Harold R. Banke dissent.

Smith, Judge,

dissenting.

I agree that this case cannot proceed in the superior court, but I do not agree that Williams has been formerly prosecuted.

The uncontroverted facts show that Williams was involved in a traffic collision occurring December 7, 1992. Williams was originally issued a traffic citation by Trooper R. D. Stephens charging him with improper passing, OCGA § 40-6-44, and ordering him to appear in the Newton County probate court on January 13. The hearing transcript indicates that the next day, Trooper Stephens took out warrants in the probate court for improper passing and serious injury by vehicle, a felony. OCGA § 40-6-394. The injury victim died approximately one week after the accident.

Paradoxically, as the result of the victim’s death, Trooper Stephens “lifted” the felony warrant for serious injury by vehicle and took out a warrant for vehicular homicide in the second degree, a misdemeanor. OCGA § 40-6-393 (b). The citation issued at the scene for improper passing, however, was not likewise “lifted.” Williams appeared in the probate court on January 13,1992, as the traffic citation commanded, pled guilty to the improper passing charge, and paid a $48 fine.

There is no indication in the record that Trooper Stephens or anyone else “prosecuted” Williams at the time he appeared and pled guilty to the improper passing charge. Four months later, the grand jury of Newton County indicted Williams for improper passing and vehicular homicide in the second degree.

The superior court correctly concluded that all charges against Williams (except the serious injury by vehicle charge “lifted” by Trooper Stephens) could be heard either in that court or in the probate court. OCGA § 40-13-21; Hall v. State, 200 Ga. App. 585, 588 (4) (409 SE2d 221) (1991). “Where courts have concurrent jurisdiction, the first court to take jurisdiction will retain it. Jurisdiction, once exercised, becomes exclusive rather than concurrent, subject to the right of either court to transfer to the other. It was the [probate] court that first assumed jurisdiction [by accepting Williams’s guilty plea on the improper passing citation]. Accordingly, its jurisdiction was exclusive, unless and until the case was properly transferred to the superior court.” (Citations and punctuation omitted.) In the Interest of J. D., 195 Ga. App. 801 (1) (395 SE2d 280) (1990). Compare Hall v. State, supra (probate court does not exercise its concurrent jurisdiction unless and until proceedings are initially conducted in that court).

“[I]t is always the duty of a court to inquire into its jurisdiction, upon its own motion where there is doubt.” Williams v. State, 217 Ga. 312, 313 (122 SE2d 229) (1961). The same facts upon which Williams relies for his double jeopardy defense indicate that the probate court first took jurisdiction of the case against him and that it never relinquished jurisdiction in any manner provided by law. Therefore, assuming that a vehicular homicide charge remained pending against Williams after he pled guilty to a charge of improper passing and paid his fine in the probate court, under these facts the probate court had exclusive jurisdiction over the remaining charge. It follows that the superior court erred in reaching the merits of Williams’s plea in bar when the facts before it indicated that the probate court had taken jurisdiction. The superior court’s ruling on the merits of Williams’s plea in bar under these facts is therefore a mere nullity, and it should be vacated. OCGA § 17-9-4.

The majority essentially reaches further and decides a case not now before us — namely, whether Williams’s case is likewise barred on double jeopardy grounds in the probate court based on the successive prosecution holding of Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932). However, it is uncontroverted that the vehicular homicide prosecution against Williams preceded the date on which Williams appeared in the probate court and paid his fine. See State v. Rustin, 208 Ga. App. 431, 432-433 (2) (430 SE2d 765) (1993) (prosecution commences when an accusation or indictment is filed). Williams must have realized at the time he pled guilty to the lesser charge that this was not the only charge pending against him. He must have also realized that he could not have been convicted on that date had he pled not guilty since he was manifestly not being prosecuted by anyone at that time. He knew, or should have known, that his gratuitous guilty plea would not end the matter; nevertheless, Williams chose to plead guilty.

I would have little difficulty in finding that Williams’s plea was not knowingly and voluntarily entered if that question were now before us. However, “[t]he acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending . . . has . . . none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution [on such a basis] would deny the State its right to one full and fair opportunity to convict those who have violated its laws.” Ohio v. Johnson, 467 U. S. 493, 501-502 (104 SC 2536, 81 LE2d 425) (1984) (quoted in Maryland v. Garner, supra). The State has not received this opportunity. The State has done no more to this point than to give Williams an opportunity essentially to convict himself of a lesser included offense at a cost to him of $48. Under these circumstances, I must respectfully dissent.

I am authorized to state that Presiding Judge Birdsong, Judge Andrews, and Senior Appellate Judge Harold R. Banke join in this dissent.

Decided July 29, 1994

Reconsideration denied September 26, 1994 —

Alan A. Cook, District Attorney, Jefferson Blandford, Anne M. Templeton, Assistant District Attorneys, for appellant.

Joseph E. Williams, for appellee.

       A plain reading of the relevant Code sections' reveals that either Trooper Stephens “overcharged” Williams before the victim succumbed to her injuries or “undercharged” him afterwards. OCGA §§ 40-6-393 and 40-6-394.

       The alternative theory is that he knew exactly what he was doing and was essentially engaging in “opportunistic manipulation” to prevent prosecution of the vehicular homicide charge. See Maryland v. Garner, 601 A2d 142 (Md. App. 1992). In my opinion, this militates even more strongly against the majority’s “successive prosecution” analysis.


text:
    A94A1203.
    HAMM v. THE STATE.
    (448 SE2d 773)
   Smith, Judge.

Edward Hamm, Jr. was convicted by a jury of two counts of aggravated sodomy and two counts of child molestation. He appeals following the denial of his motion for new trial.

The victim in this case was Hamm’s eight-year-old stepdaughter. A custodial statement given by Hamm was admitted into evidence after a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). In the statement, Hamm admitted masturbating in the victim’s presence, engaging in oral sex with her, and touching her vagina with his penis. The victim corroborated this in her testimony. The victim’s grandmother and great uncle testified that the child told them of the molestation. The State also introduced evidence of a prior offense committed by Hamm.

1. Hamm contends the trial court erred in admitting the similar transactions evidence because the prior offense was statutory rape, which is a different crime. We do not agree.

Under Georgia law, in the trial of crimes involving child sexual abuse, other offenses committed by an accused involving sexual abuse of children, regardless of the gender of the victim or the type of acts perpetrated, are sufficiently similar to meet the similarity requirement set forth in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). Adams v. State, 208 Ga. App. 29, 32 (2) (b) (430 SE2d 35) (1993).

In this case, the State presented the testimony of a detective who investigated the 1983 incident in which Hamm confessed that he and two others had engaged in sexual intercourse with a thirteen-year-old girl in a car. There may be cases in which a prior statutory rape offense would not be sufficiently similar to a child molestation charge to be admissible under Williams. However, given that in Hamm’s statement he indicated the eight-year-old victim had consented to the sex acts of which he was accused and was “a hot little girl to be only eight years old,” there exists a “logical connection between” the prior statutory rape introduced here and the charged offenses, Williams, supra at 641 (2) (a), such that proof of the prior offense tended to establish the charged offenses by showing Hamm’s bent of mind. Id. at 642 (2) (b). The trial court properly found the prior statutory rape offense admissible.

2. Hamm maintains the trial court erred in denying his motion for directed verdicts on the aggravated sodomy charges because there was no evidence of the use of force, as required by OCGA § 16-6-2 (a). This contention is without merit.

A child of eight years is incapable under the law of consenting to any sexual act, rendering any sexual acts directed to such a child forcible under the law. Stine v. State, 199 Ga. App. 898, 899 (1) (a) (406 SE2d 292) (1991). Therefore, proof of the victim’s age and the act of sodomy in this case was sufficient to show force, and thus aggravated sodomy under OCGA § 16-6-2 (a). Id.

3. Hamm asserts that the trial court erred in denying his motion for new trial because his custodial statement was physically present in the jury room.

At the hearing on the motion for new trial, Hamm presented the testimony of several jurors. He relied on this testimony to show both that the statement was present in the jury room and that the jury would not have voted to convict had the statement not been in the jury room.

OCGA § 17-9-41 provides, however, that “[t]he affidavits of jurors may be taken to sustain but not to impeach their verdict.” In a well-reasoned order the trial court considered the history and policy of this rule and properly concluded that the jurors’ testimony was not competent and that no other evidence existed in support of Hamm’s motion for new trial.

Although the rule of juror incompetency is waived where the alleged error violates the defendant’s due process rights under the constitution, see Spencer v. State, 260 Ga. 640, 643-644 (3) (398 SE2d 179) (1990), such was not the case here. The Georgia rule is that written statements of a defendant may not be permitted to go out with the jury. Royals v. State, 208 Ga. 78, 79-82 (2) (65 SE2d 158) (1951). However, this is a rule of evidence, not a constitutional mandate. Allowing the statement to go out with the jury did not deprive Hamm of | a fair trial and was not an error of constitutional magnitude. Other j jurisdictions, in fact, permit the trial judge discretion to allow written statements and confessions to go out with the jury. See, e.g., People v. Williams, 454 NE2d 220, 239 (Ill. 1983); United States v. Stone, 472 F2d 909, 914 (5th Cir. 1973). The trial court properly denied Hamm’s| motion for new trial.

Judgment affirmed.

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

Decided September 26, 1994.

Loftiss, Van Heiningen & Ward, Walter E. Van Heiningen, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.


text:
    A94A1308.
    EDMOND v. THE STATE.
    (448 SE2d 775)
   Smith, Judge.

Ronnie Bruce Edmond was charged with four counts of burglary and one charge of theft by receiving stolen property. He pled guilty to reduced charges of receiving stolen property and was sentenced to time served. He then filed this pro se appeal, alleging that his counsel rendered ineffective assistance and that his conviction was obtained pursuant to an unlawful arrest and an unconstitutional search and seizure. The State has not filed a brief.

Edmond was first represented on these charges by the Laurens County Public Defender. At Edmond’s request, the court relieved the public defender from further representation of Edmond and appointed private counsel. Second counsel was subsequently relieved and replaced by other appointed private counsel, appellant’s third counsel. Appellant complained below of the ineffectiveness of third counsel despite the fact that counsel had filed numerous motions on appellant’s behalf.

After considering appellant’s request for another change of counsel, the trial court granted the request and appointed another private counsel, appellant’s fourth. In a well-considered order, the court reviewed the various appointments of counsel and the circumstances surrounding them and cautioned Edmond against filing pro se pleadings while represented. The court also advised Edmond, citing United States v. Moore, 706 F2d 538, 539 (5th Cir. 1983), that his failure to cooperate with fourth counsel or his discharge of said counsel as ineffective would be construed as a waiver to his right to counsel.

At the pretrial hearing, Edmond changed his not guilty plea to a negotiated plea of guilty whereby he would be sentenced on reduced charges of theft by receiving to time served. He signed the plea and I initialed 16 statements setting forth his understanding of the plea bargain. A hearing was held at which Edmond was questioned extensively regarding those documents and the knowing and voluntary nature of the plea. Additionally, a factual basis for the plea was placed in the record through the testimony of the arresting officer. Edmond also testified unequivocally at that hearing that he was satisfied with his attorney’s services on his behalf.

Decided September 26, 1994.

Ronnie B. Edmond, pro se.

Ralph M. Walke, District Attorney, for appellee.

1. With a few limited exceptions not applicable here, a plea of guilty generally waives all defenses except that based on the knowing and voluntary nature of the plea. Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994). Once a defendant solemnly admits in open court that he is in fact guilty of the offense charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of his guilty plea. Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977). Edmond’s attempted challenge to the guilty plea on the ground that his arrest was unlawful must therefore fail, because it does not fall within the very limited scope of those defenses allowable. Id. at 623-624.

2. In Hill v. Lockhart, 474 U. S. 52, 56 (106 SC 366, 88 LE2d 203) (1985), the Supreme Court held that the test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), applies when guilty pleas are challenged based on ineffectiveness of counsel. Under these circumstances, to satisfy the second prong of the Strickland test a defendant must show there is a reasonable probability that but for counsel’s deficiency he would not have pled guilty, but would have insisted upon going to trial. Hill, supra, 466 U. S. at 59.

Edmond appears to allege that fourth counsel made false representations to him in order to induce him to plead guilty. This completely belies his testimony at the plea hearing. Because of the extremely detailed nature of the record on the issue and because of the overwhelming nature of the evidence against him, we are satisfied that Edmond’s plea was knowing and voluntary and that Edmond made an informed choice not to go to trial. As it is apparent as a matter of law that Edmond cannot meet the requirements of the Strickland test, we need not remand for a hearing on whether counsel was ineffective. Brundage v. State, 208 Ga. App. 58, 59 (430 SE2d 173) (1993).

Judgment affirmed.

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

       Edmond served no additional time under the plea, but was sent to California under a “hold” resulting from federal charges.


text:
    A94A1403.
    LYONS v. THE STATE.
    (448 SE2d 777)
   Smith, Judge.

Anthony Lyons was convicted by a jury of conspiracy to possess more than an ounce of marijuana.

Construed to support the verdict, the evidence at trial showed that in January 1993, during a routine check of international mail by U. S. Customs Service agents at Miami International Airport, a drug detection dog alerted to a package sent from Jamaica to Lyons at an address in Fayetteville, Georgia. Customs agents opened the package and found it contained wooden cat figurines. When x-rays revealed there was a substance inside the figurines, a hole was drilled in one figurine and the substance inside tested, confirming it was marijuana. The Miami agents then resealed the package and sent it to Agent Brad Luca of the U. S. Customs Service in Atlanta. Luca contacted Deputy Michelle Walker, special agent with the Fayette County Narcotics Unit, and arranged a controlled delivery of the package to the Fayetteville address through the U. S. Postal Service.

The package was delivered to the address on the package and accepted by Delores Bennett, who resides at that address. Lyons, Bennett’s nephew, who lives in Atlanta, had visited Jamaica sometime in November. When he returned he telephoned Bennett, told her he was expecting something for his birthday, and asked for and received permission to have it sent to her house because he was in the process of moving. When the package was delivered, Bennett set it aside for Lyons.

Luca, Walker, and other law enforcement officers arrived at the Bennett residence shortly thereafter with a search warrant. They opened the package at Bennett’s home, broke the figurines to remove their contents, and took control of the contraband. They replaced the figurines with bricks of approximately the same weight and rewrap-ped the package. Following the officers’ instructions, Bennett then called Lyons several times to let him know his package had arrived. When it became apparent that Lyons would not immediately retrieve the package, Bennett and her husband drove to Atlanta, followed by the officers, to deliver the package to Lyons. After the package had been delivered to Lyons, he was arrested.

Walker testified that she transported the substance taken out of the figurines to the crime lab. Sylvia Guice, a forensic chemist with the GBI Crime Laboratory, testified that she received the substance, packed in five bags, from Walker. Guice conducted an analysis of the material and determined it was marijuana. The parties stipulated that the substance removed from the figurines was marijuana weighing six pounds, fourteen-and-one-half ounces.

1. Lyons contends the trial court erred in admitting the contraband because there were fatal breaks in the chain of custody. Specifically, he argues the State failed to demonstrate with reasonable certainty that the substance identified by the Miami customs agents was the substance offered at trial against him. See generally Lewis v. State, 198 Ga. App. 808 (1) (403 SE2d 233) (1991). We do not agree.

When the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981). Here, however, the contraband was secreted inside wooden cat figurines when the package arrived in Atlanta; it was not fungible at that point because the figurines were easily identifiable. The State introduced into evidence photographs taken during the process of extracting the contraband from the figurines. These photographs show it was necessary for the officers to substantially destroy the figurines in order to remove the marijuana, demonstrating clearly that no significant tampering could have taken place prior to the arrival of the figurines at the Bennett residence.

The State’s burden was to show with reasonable certainty there was no tampering with or substitution of the substance removed from the figurines. This was demonstrated at trial through the testimony of Walker and Guice. The trial court correctly admitted this evidence over Lyons’ objection. See Elam v. State, 211 Ga. App. 739, 740 (1) (440 SE2d 511) (1994).

2. Lyons maintains the evidence was insufficient to support his conviction because the elements of a conspiracy were not proved beyond a reasonable doubt.

“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8. The Georgia Supreme Court has explained that a conspiracy is a corrupt agreement between two or more persons to do an unlawful act. Sentell v. State, 227 Ga. 153, 156 (179 SE2d 234) (1971). It is not necessary, however, that another person be indicted with the defendant for a conspiracy to exist. Mize v. State, 173 Ga. App. 368 (2) (326 SE2d 785) (1985). The question of conspiracy is one for the jury. Guerra v. State, 210 Ga. App. 102, 103 (435 SE2d 476) (1993).

A conspiracy may be shown by direct or circumstantial evidence, id., and may be demonstrated by acts and conduct as well as by direct proof of express agreement. Circumstantial evidence need not exclude every inference save that of the defendant’s guilt; it must exclude only reasonable hypotheses. Id. at 104.

Decided September 26, 1994.

Maloy & Jenkins, W. Bruce Maloy, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Here, the officers testified that Bennett appeared surprised and unhappy upon learning of the package’s contents. Lyons claimed not to know the person in Jamaica whose name was listed in the return address and denied arranging to have marijuana sent to him. Even in criminal cases, however, an alleged conspirator cannot remove the question of conspiracy from the jury merely by swearing that he did not conspire. John D. Stephens, Inc. v. Gwinnett County, 175 Ga. App. 379, 386 (4) (333 SE2d 396) (1985).

The jury was authorized to believe that the only reasonable inference possible from the circumstantial evidence presented was that Lyons arranged with someone in Jamaica to mail a package containing marijuana to him at his aunt’s address. The evidence was sufficient to support Lyons’ conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Lyons’ contention regarding the court’s charge on reasonable doubt is controlled adversely to him by the opinion of this court in Edwards v. State, 214 Ga. App. 383 (448 SE2d 51) (1994). See Lloyd v. State, 214 Ga. App. 564 (448 SE2d 729) (1994).

Judgment affirmed.

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

       We note that contrary to Lyons’ argument, the fact that the package was unattended for approximately an hour in the Bennett residence before the officers’ arrival is irrelevant, since the package remained unopened.


author: Pope, Chief Judge.

text:
    A94A1425.
    HUGGINS v. THE STATE.
    (449 SE2d 693)
   Pope, Chief Judge.

Defendant was tried by jury and found guilty but mentally ill of the offense of aggravated assault. Defendant was granted an out-of-time appeal, and notice of appeal was filed on March 2, 1994.

On February 8, 1992, Loretta Murphy was working at the Econo Flash convenience store. At approximately 1:45 a.m., a man later identified as defendant rode up on his bicycle and entered the store crying. He told Murphy that a woman had run him off the road but that he was not injured. When she offered to call the police, defendant pulled out a box cutter and told her to stay away from the phone. He began ranting how he did not like women and swung the cutter with the blade extended at her face. Defendant then calmed down and began telling jokes and preaching. Next, he pulled a bag of balloons out of his pocket and made Murphy a balloon swan telling her he was known as “Balloon Bob.” He then instructed Murphy to phone a woman at a Waffle House and say only what he instructed her to or he would cut her. After speaking with the woman, Murphy attempted to dial 911 and defendant swung the blade at her again. After further joking, preaching and threatening, defendant left the store. Defendant returned to the store after the police had arrived and left a rose but was not apprehended. On February 14, defendant returned to the store only to flee after observing Murphy’s husband and son enter the store. Early the following morning, defendant was spotted riding his bicycle in circles around an Amoco station approximately one-half mile from the Econo Flash. He was arrested and a box cutter knife was recovered from him.

Decided September 27, 1994.

David A. Lamalva, Joseph F. Bertollo, for appellant.

Cheryl F. Custer, District Attorney, S. Dabney Yarbrough, Assistant District Attorney, for appellee.

1. Defendant argues the trial court erred in ordering him to proceed pro se at trial without determining (1) if he voluntarily and knowingly waived his right to counsel, and (2) if his failure to obtain counsel was due to a lack of reasonable diligence on his part. We find defendant’s contentions to be controlled in his favor by our recent decision in Houston v. State, 205 Ga. App. 703 (423 SE2d 431) (1992), a case which is virtually indistinguishable from the present case. Accordingly, defendant’s conviction must be reversed. Id.; Callaway v. State, 197 Ga. App. 606 (398 SE2d 856) (1990).

2. Because of our holding in Division 1, it is unnecessary for us to consider defendant’s remaining enumerations of error.

Judgment reversed.

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


text:
    A94A1615.
    PHILLIPS v. KING.
    (448 SE2d 780)
   Pope, Chief Judge.

Plaintiff, an 81-year-old woman who slipped and fell on the steps of her rented home, appeals the trial court’s grant of summary judgment for defendant landlord.

We view the evidence in the light most favorable to the plaintiff and give her the benefit of all reasonable doubts and inferences. See Demarest v. Moore, 201 Ga. App. 90 (1) (410 SE2d 191) (1991). Plaintiff moved into her home more than two years prior to the fall. During the first rainy period, she noticed that the steps became slimy and dangerous. She notified defendant of the dangerous condition at that time, and defendant said she would get someone over there. No one came to fix the problem, however, and the dangerous condition worsened over time due to water pouring from holes in the downspout over the steps. Each month plaintiff would remind defendant’s son about the problem when he came to collect the rent, and each month he would laugh and say they would get around to it. There were two other sets of steps leading in and out of the house, but they appeared to be even more dangerous than those where the accident occurred. On the day of plaintiff’s fall, she was watching where she was going and moving very slowly and carefully, purposely stepping on the least slimy part of the top step. Nonetheless, her foot slipped out from under her and she tumbled to the ground.

The trial court erred in granting summary judgment for defendant. Although plaintiff’s knowledge of the dangerous condition was at least equal to that of defendant, this will always be the case when a tenant has repeatedly complained about a dangerous condition and a landlord has failed to fix it. Thus, our Supreme Court has recognized that strict application of the superior knowledge rule in the landlord-tenant context would be inconsistent with the legislature’s determination that, as a matter of public policy, landlords have a duty to repair problematic conditions in leased premises. See Thompson v. Crown-over, 259 Ga. 126 (381 SE2d 283) (1989); OCGA § 44-7-13. Indeed, this policy — that a landlord must make repairs and shall be liable for physical harm caused a tenant by the landlord’s failure to exercise care to repair a known dangerous condition — is so strong that the legislature will not even allow a tenant to waive his right to damages for a breach of the landlord’s duty through a provision in a lease. See Country Club Apartments v. Scott, 246 Ga. 443 (271 SE2d 841) (1980); OCGA § 44-7-2. As the result of its recognition of this policy and its importance, the Supreme Court in Thompson held that a plaintiff/tenant’s equal or superior knowledge of a dangerous condition will not always preclude his or her recovery for injuries caused by that dangerous condition. 259 Ga. at 129-130. See also Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 159 (335 SE2d 408) (1985) (“Whatever force the doctrines of superior knowledge and assumption of risk may have in cases involving the liability of property owners to business customers, they have certainly been relaxed in recent years in the landlord-tenant setting.”).

A review of post -Thompson cases shows that the knowledge of the parties has certainly not become irrelevant. The tenant still must show that the landlord had notice of the problem. See Harris v. Sloan, 199 Ga. App. 340 (1) (405 SE2d 68) (1991). Where both tenant and landlord were aware of the problem, however, the question has become: Given the tenant’s equal or superior knowledge, could he or she have avoided the accident, either by avoiding the problematic area or by using it more cautiously? Cf. Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991) (summary judgment was properly granted for the defendant where the plaintiff chose to use a dark rear stairway as a matter of convenience, even though he could have used an alternative, but less convenient, means of egress); Hall v. Thompson, 193 Ga. App. 574 (1) (388 SE2d 381) (1989) (summary judgment was properly granted for the defendant where the plaintiff could have been careful and stepped over a broken plank on the porch, as she had done many times before, but she forgot to be careful and step over it on the day of the accident).

Decided September 27, 1994.

Patrick J. Araguel, Jr., for appellant.

Self, Mullins, Robinson & Marchetti, J. Ronald Mullins, Jr., for appellee.

In this case, there is evidence that defendant had notice of the problem with the steps; that any alternative means of egress were even more dangerous than the steps plaintiff used; and that plaintiff was very careful as she descended the steps on the day of the accident, but nonetheless fell. Under these circumstances, a jury could conclude plaintiff could not have avoided the accident. Accordingly, summary judgment for defendant was improper.

Judgment reversed.

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

       Defendant asserts Thompson is inapposite because unlike the dangerous condition in this case, the hazard in Thompson constituted a violation of specific housing code provisions. However, neither OCGA § 44-7-13 nor the policy it embodies are limited to the rectification of specific housing code violations.

       We reject defendant’s suggestion that plaintiff could have avoided the problem by staying in her house, as she did not really “need” to go anywhere that day. Regardless of why plaintiff wished to go out, she did not have to pursue an alternative which would have made her “a virtual prisoner in her own [home].” Grier v. Jeffco Mgmt. Co., supra. See also Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984) (where plaintiff had to choose the “lesser of two evils” in choosing to exit by one of two dangerous sets of steps, defendant could not rely on plaintiff’s knowledge because the danger could not be avoided).