author: Pope, Presiding Judge.

text:
    A95A1297.
    COWAN v. THE STATE.
    (461 SE2d 587)
   Pope, Presiding Judge.

Defendant was convicted by a jury of reckless conduct, a misdemeanor. See OCGA § 16-5-60 (b). In two enumerations of error, he challenges the sufficiency of the evidence against him. Specifically, he argues that his conduct constituted either simple negligence or intentional assault, but could not be considered reckless. We disagree and affirm.

Viewed in a light to support the verdict, the evidence shows that several county employees were working in a ditch alongside Black Shoals Road, a gravel road which ran through defendant’s land but was maintained by the county. Defendant drove up in his truck and stopped next to the county’s motor grader, effectively blocking the road, and started yelling at the workers to get off his land. The crew boss explained they were just doing their job, and suggested that defendant needed to resolve the situation with the people in charge at the county public works department. Defendant continued yelling until the driver of a vehicle blocked by defendant’s truck convinced him to move it. Defendant drove off, as did the crew boss in the motor grader. Several minutes later, defendant returned, driving on the wrong side of the road — the side where the county employees were working on the ditch. The road had been cleared of other vehicles, so there was no reason for defendant to be driving on the left side. As defendant passed extremely close to the workers, the side mirror of his truck struck the arm of one, seriously injuring him. Defendant then stopped his truck and yelled back at the injured worker that if the worker had hurt his truck, defendant would come back and hurt him.

“A person who causes bodily harm to . . . another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm . . . and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.” OCGA § 16-5-60 (b). Contrary to defendant’s assertion, the evidence was sufficient to enable rational jurors to find defendant guilty of violating this Code I section beyond a reasonable doubt. Miller v. State, 200 Ga. App. 57 (406 SE2d 565) (1991) is distinguishable, as there was no evidence of recklessness in that case. In this case, on the other hand, jurors could certainly conclude that when defendant drove on the wrong side of the road, extremely close to where he knew the county employees were working in the ditch, he did not actually intend to hurt one of the workers but consciously disregarded the substantial and unjustifi- j able risk that he might do so — and that that disregard constituted a | gross deviation from the standard of care a reasonable person would j exercise in the situation. See Wofford v. State, 196 Ga. App. 284 (1) (395 SE2d 630) (1990).

Decided August 30, 1995.

J. Wayne Moulton, for appellant.

Cheryl F. Custer, District Attorney, Michael M. Hawkins, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A95A1203.
    HAMMONDS v. THE STATE.
    (461 SE2d 589)
   Smith, Judge.

Willie Hammonds appeals his conviction for the sale of cocaine, his motion for new trial having been denied.

1. Hammonds enumerates as error the denial of his motion for new trial, made on the ground of ineffective assistance of counsel. He contends that trial counsel expressed anger toward him and did not adequately discuss with him a proposed plea agreement.

During the hearing on Hammonds’ motion for new trial, his experienced trial counsel testified that he met with Hammonds numerous times, advised him regarding his options, investigated the case, and reviewed the State’s file. He explained to Hammonds the danger that he could be convicted of a second sale of cocaine and that he would face life imprisonment if he were convicted. After counsel labored to obtain a plea agreement, he conveyed to Hammonds an offer made by the State that could have lessened Hammonds’ sentence significantly.

Hammonds had previously indicated to his trial attorney that a plea agreement would be acceptable, but when the offer was explained to Hammonds, he “turned it down flat” and likened his attorney to previous counsel with whom he had apparently been dissatisfied. Counsel became angry at Hammonds, exchanged angry words with him, and left the room. Hammonds testified that after this incident, he did not trust his attorney, was “leery of him,” and “didn’t want to go in the courtroom with him.” He testified that the two never again discussed the agreement; his trial attorney testified to the contrary that he met with Hammonds on several subsequent occasions and during each meeting reiterated the existence of the plea agreement and explained that he felt it was in Hammonds’ “best interest” to accept the plea offer that had been recommended.

The confrontation between Hammonds and his attorney and Hammonds’ ensuing “distrust” are not determinative of effectiveness. As observed by the United States Supreme Court in Morris v. Slappy, 461 U. S. 1, 14 (103 SC 1610, 75 LE2d 610) (1983) and by this Court in Jefferson v. State, 209 Ga. App. 859, 862 (1) (434 SE2d 814) (1993), “a meaningful relationship” between a defendant and his counsel is not a Sixth Amendment guarantee. Rather than describe his feelings toward counsel, Hammonds’ burden is to show that counsel’s performance was deficient and that this deficiency prejudiced the outcome of the case. O’Neal v. State, 211 Ga. App. 741, 743 (4) (440 SE2d 513) (1994). After reviewing the record, including Hammonds’ testimony, we find ample evidence supporting the trial court’s finding that counsel was not ineffective. Hammonds has not complained about counsel’s performance at trial, and as previously discussed, counsel investigated the case, interviewed Hammonds several times, reviewed the State’s file, and conveyed the State’s offer to Hammonds on numerous occasions. Under these circumstances, any disagreements Hammonds and his new attorney may have regarding trial counsel’s decisions and actions do not demand a finding of ineffectiveness under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

2. Hammonds contends his Sixth Amendment right to counsel was violated because a sheriff’s deputy, without the knowledge of Hammonds’ trial counsel, advised him to go to trial. Hammonds testified at the hearing on his motion for new trial that he discussed his case with a Bibb County officer who also happened to be a friend of his from school and that the officer recommended that he go to trial because he could “beat” the charge.

“[V]arious kinds of state interference with counsel’s assistance can result in denial of effective assistance of counsel.” (Citations and punctuation omitted.) Pullen v. State, 208 Ga. App. 581, 585 (3) (431 SE2d 696) (1993). In this case, however, Hammonds has not met his burden of showing that his Sixth Amendment rights were violated. He testified it was his own decision to go to trial. Hammonds’ reliance on Massiah v. United States, 377 U. S. 201 (84 SC 1199, 12 LE2d 246) (1964) and Brewer v. Williams, 430 U. S. 387 (97 SC 1232, 51 LE2d 424) (1977) is misplaced. In those cases, law enforcement officers elicited statements from the defendants without presence of their counsel. Massiah, supra at 204; Brewer, supra at 401. Here, no incriminating statements were made by Hammonds, nor does the evidence show that law enforcement officers attempted to elicit any such statements from him. His trial counsel made great efforts to persuade Hammonds to enter a plea, explaining to him the possible consequences of his failure to do so. That Hammonds appears to have attached greater significance to the alleged comments of an acquaintance rather than to the advice of his own attorney does not change the fact that it was Hammonds’ own decision to proceed to trial. This enumeration has no merit.

3. Hammonds contends the trial court erred in admitting evidence of three prior incidents involving the sale of cocaine. The State introduced the similar acts to show identity, intent, and course of conduct. Hammonds argues that evidence of similar transactions was inappropriately admitted because he admitted identity and intent, and these were not issues. On the contrary, the issue of identity was a focus of cross-examination during the State’s case, and the threshold issue of whether Hammonds intended to facilitate a drug transaction or merely purchase drugs for himself permeated the entire trial. Regardless of Hammonds’ purported “admissions,” it was the State’s burden to prove each and every element of the crime beyond a reasonable doubt. The State could not depend on Hammonds’ defense, i.e., whatever he might or might not “admit,” after it rested its case. Hammonds’ claim that the evidence was erroneously admitted to show identity and intent is meritless.

4. Hammonds also contends the State did not show sufficient similarity so that proof of the former crimes tended to prove the latter. We disagree. Two former undercover officers testified regarding their contacts with Hammonds. On three different dates, Hammonds “flagged down” or approached the officers/"customers” and sold them drugs. Both officers “purchased” drugs ranging in price from $20 to $30. In two of the prior transactions, Hammonds acted as an intermediary in the purchase; he took the officers to a location where another individual provided drugs in return for money. Hammonds admitted that he sold cocaine on these three occasions to the officers.

Similar transactions need not be identical to the crime charged to be admissible. Boyd v. State, 217 Ga. App. 668, 669 (458 SE2d 692) (1995). Rather, the evidence must show that the defendant committed the other crimes and that sufficient similarity between the crime charged and the prior crimes exists, “so that proof of the former tends to prove the latter.” Id.; Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Though Hammonds’ testimony was somewhat contradictory to that of the investigating officer, the jury was authorized to believe the State’s evidence that Hammonds approached the undercover officer who purchased the drugs in the same vicinity as he approached officers in prior sales. Evidence showed that Hammonds and the officer spoke with an unidentified man and that the officer gave Hammonds $40, which Hammonds gave to the other man in exchange for what later was identified as crack cocaine. These crimes were sufficiently similar that proof of the three earlier sales tended to prove the offense charged in the instant case, and the trial court did not err in admitting the evidence.

Decided August 31, 1995.

John O. Cole, for appellant.

Charles H. Weston, District Attorney, Elizabeth K. Bobbit, Laura D. Hogue, Assistant District Attorneys, for appellee.

5. Hammonds contends the trial court erred in enhancing his sentence under OCGA § 16-13-30 (d). He asserts that the statute “discriminates on the basis of race in violation of the Fourteenth Amendment to the United States Constitution and the Constitution of the State of Georgia.” We do not agree. This issue was decided adversely to Hammonds in Stephens v. State, 265 Ga. 356 (456 SE2d 560) (1995). The Georgia Supreme Court examined a similar challenge and found that the sentencing scheme “does not deprive persons of due process or equal protection under the law. [Cits.]” Id. at 359-360 (4). Consequently, this contention is without merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Hammonds also contends that he was denied effective assistance of counsel because an indictment “for prior sale was allowed to go to the jury, although the charge was dropped to simple possession on that indictment.” This contention is not supported by argument or citation to authority and is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

       Hammonds testified that while he offered to help the officer find some drugs and drove him around in pursuit of this offer, he had nothing to do with the transaction that occurred between the officer and the unidentified man. Hammonds’ position was that he made a purchase from the unidentified man, after which the officer made a purchase, and that he had nothing to do with the transaction between the officer and the unidentified man.


author: McMurray, Presiding Judge.

text:
    A95A1200.
    DOYLE DICKERSON COMPANY v. DURDEN.
    (461 SE2d 902)
   McMurray, Presiding Judge.

This is an unusual action seeking damages for the conversion of funds. Plaintiff Doyle Dickerson Company was a subcontractor on a construction project and in that capacity provided labor and materials to the M. E. Durden Construction Company, Inc. (hereafter “Durden, Inc.”). While Durden, Inc. was paid in full for the labor and materials provided on the project, it did not pay plaintiff but expended the funds it had received to pay for other expenses. Plaintiff did not exercise its lien rights and they expired.

The complaint maintains that the funds received by Durden, Inc. as payment for the improvement of real property were subject to a trust in favor of those who furnished labor and materials used in completing the improvements. The complaint also alleges that defendant Durden, the president and sole shareholder of Durden, Inc., knowingly converted the trust funds including those sums that were due plaintiff. Durden, Inc. has ceased operations, filed a bankruptcy petition and been liquidated.

Defendant moved for summary judgment arguing that there was no viable claim for conversion since plaintiff did not have any title or right of possession in the funds received by Durden, Inc. This position is premised in large part on authority from the United States Bankruptcy Court which holds that Georgia law does not impose a constructive trust in favor of a subcontractor on funds paid by an owner to the contractor on a construction project when the subcontractor did not file a lien. Plaintiff replies that insofar as they condition the imposition of a constructive trust on the filing of a lien on the property, the bankruptcy cases are wrong.

The superior court considered the case on opposing motions for summary judgment. The plaintiff appeals from the grant of defendant’s motion for summary judgment and the denial of its own. Held:

The latest of the bankruptcy cases holding that a constructive trust fund doctrine is viable in Georgia, but is available only to protect those persons entitled to file liens under the Georgia material-men’s lien laws is In re Amarlite Architectural Prods., 178 B. R. 904 (Bankr. N. D. Ga. 1995). This case adds to a line of authority which can be traced back at least nine years to Bethlehem Steel Corp. v. Tidwell, 66 B. R. 932, 939 (Bankr. M. D. 1986). Under this line of cases, the constructive trust fund doctrine does not apply where the materialman has not taken the steps available to it to secure a lien under the Georgia materialmen’s lien laws. In re American Building Consultants, 138 B. R. 1015, 1017 (Bankr. N. D. Ga. 1992). In the case sub judice, plaintiff allowed the period of time for filing a lien to lapse.

We have not found any recent Georgia cases which directly address the issues decided in these federal cases. Therefore, we are in an unusual posture in that the primary authority which directly addresses the issues at hand is not binding precedent, but instead reflects the best guess of the federal courts anticipating how the Georgia appellate courts would rule. Under the facts presented on this appeal, we need not embrace all that is written in the federal cases in order to reach our holding, that plaintiff had no property interest in the funds allegedly converted and therefore plaintiff’s conversion claim lacks merit. See Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 498 (2) (300 SE2d 328). Therefore, the superior court did not err in granting defendant’s motion for summary judgment and we affirm the judgment below.

OCGA § 16-8-15 states, in part, that any person who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or materials furnished by his order for this specific improvement while any amount for which he may be or become liable for such labor, services, or materials remains unpaid, commits a felony. The statute further provides that a failure to pay for material or labor furnished for such property improvements shall be prima facie evidence of intent to defraud. We do join with the bankruptcy court in holding that this criminal statute does not alone provide authority for the creation of a constructive trust. See In re Amarlite Architectural Prods., supra. In this connection we note that there is nothing in the criminal statute which makes explicit provision for the creation of a property right such as suggested by plaintiff. Nor do we believe such was intended by the opinions in such cases as Johnson v. State, 203 Ga. 147, 150-151 (45 SE2d 616) and Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 646-647 (171 SE2d 782) which use the words trust or trustee, but only in describing the criminal offense. Also, the violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who claims to have been injured thereby since reference must be made to the applicable provisions of tort law. Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349).

Decided August 15, 1995

Reconsideration denied September 1, 1995

Smith, Howard & Ajax, Larry S. McReynolds, Scott D. Cahalan, for appellant.

Wasson, Sours & Harris, Edward H. Wasson, Jr., for appellee.

We further hold that while the viability of the constructive trust fund doctrine (sometimes referred to as the “construction” trust fund doctrine) in Georgia is not controverted in the case sub judice, there is no rational basis presented on this appeal for extending this concept beyond the parameters stated in the various bankruptcy cases cited in this opinion. There is no explicit statutory basis for such a doctrine in this State. Insofar as the doctrine arises in Georgia, it must be predicated upon general principles of equity and on statutory lien law. See Bethlehem Steel Corp. v. Tidwell, supra. Neither of these provides a logical basis for imposing a trust for the benefit of a plaintiff who has neglected to utilize the protection already afforded under our lien laws.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1261.
    SMITH v. STATE OF GEORGIA.
    (461 SE2d 553)
   McMurray, Presiding Judge.

The State of Georgia filed an action in the Superior Court of Jackson County, Georgia, to revive a dormant judgment for attorney fees and litigation expenses entered in the United States District Court for the Northern District of Georgia on June 28, 1985, against Geraldine 0. Smith, showing that “all of the parties in whose favor the judgment was entered have executed assignments to the State of Georgia.” In her pro se answer, Mrs. Smith admitted that judgment was entered against her on June 28,1985, but defended in part on the ground that any “claims have been previously settled and satisfied. ...” Mrs. Smith disputed whether the judgment referenced in the complaint “is subject to revival” and counterclaimed for abusive litigation, breach of the purported settlement agreement, fraud, malicious prosecution, and injunctive relief. The State of Georgia filed a motion for summary judgment pursuant to OCGA § 9-11-56 (a) to revive the federal judgment and for summary judgment pursuant to OCGA § 9-11-56 (b) as to the counterclaims. From the judgment of the superior court granting the State of Georgia’s motions for summary judgment and further dismissing defendant’s counterclaim for injunctive relief, this direct appeal followed. Held'.

1. In 13 related enumerations, Mrs. Smith contends the trial court erred in granting the State of Georgia’s motions for summary judgment. She first argues that a dormant federal judgment is not susceptible to being revived under OCGA § 9-12-61, relying on this Court’s decision in Retirement Credit Plan v. Melnick, 139 Ga. App. 570 (2) (228 SE2d 740).

OCGA § 9-12-130 et seq. is the Georgia codification of the Uniform Enforcement of Foreign Judgments Law, enacted by Ga. L. 1986, p. 380, § 1. As used in this law, the term “foreign judgment” expressly applies to a “judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state.” OCGA § 9-12-131. A properly authenticated and filed foreign judgment “has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.” OCGA § 9-12-132. It follows that ever since the effective date of the Uniform Enforcement of Foreign Judgments Law, the Georgia provision for revival of a dormant judgment, OCGA § 9-12-61, is applicable to revive a dormant federal judgment. “Expressions of the legislature through statutes are conclusive on the question of public policy.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186). OCGA § 9-12-130 et seq. is the latest expression by the legislature on this point and must prevail over our earlier opinion construing then Code Ann. Chapter 110-10, now OCGA § 9-12-60 et seq., prior to the enactment of the Uniform Enforcement of Foreign Judgments Law. See, e.g., Giles v. City of Locust Grove, 203 Ga. App. 164 (1), 165 (416 SE2d 758). Consequently, Mrs. Smith’s reliance upon Retirement Credit Plan v. Melnick, 139 Ga. App. 570 (2), supra, is misplaced as the statutory construction employed therein has been superseded by subsequent legislation.

2. Nevertheless, Mrs. Smith contends there is a genuine issue of material fact as to whether there was a settlement or release that satisfied this judgment. See OCGA § 9-13-74. However, Mrs. Smith was unable to produce any written release or satisfaction executed by the judgment creditors or their attorneys. The superior court determined that all of the evidence Mrs. Smith adduced in support of her argument was hearsay, so that there was no “admissible evidence which would indicate that [the judgment creditors] or their representatives entered into any agreement with [Mrs. Smith] concerning release or satisfaction of the judgment.” On appeal, Mrs. Smith argues that a cover letter from Michael A. O’Quinn, Esquire, confirms the existence of a settlement and release agreement. We disagree. Standing alone, that cover letter is hearsay as to the existence of any settlement agreement. Rodgers v. Cumberland Volkswagen, 167 Ga. App. 826, 828 (307 SE2d 721). Perhaps more importantly, that letter does not purport to itemize the terms of any agreement and pointedly does not recite that Mrs. Smith and her judgment creditors had agreed to settle all claims in exchange for a satisfaction of the federal judgment or an agreement never to enforce it. Since there was no competent evidence in support of Mrs. Smith’s claimed defense of settlement, a position for which the State of Georgia as the movant for summary judgment would not bear the burden of proof at trial, the superior court correctly determined that no genuine issue of material fact exists as to whether the State of Georgia is entitled to revive the federal judgment. “If there is no evidence sufficient to create a genuine issue as to any essential element of [Mrs. Smith’s] claim [of settlement or accord and satisfaction], that claim [fails]. All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Consequently, in the case sub judice, the grant of summary judgment to the State of Georgia is not erroneous on the ground that genuine issues of material fact exist as to Mrs. Smith’s defense based upon an alleged settlement.

3. The remaining contentions have been considered and are found to be without merit. See generally Hammette v. Eickemeyer, 203 Ga. App. 243, 244 (416 SE2d 824), where this Court agreed with appellate courts in other jurisdictions and held that “the assertion of counterclaims [is generally] inconsistent with the summary nature of the uniform law and the purpose of the law, which is to expedite the recognition and enforcement of foreign judgments.”

Decided August 16, 1995

Reconsideration denied September 1, 1995

Geraldine 0. Smith, pro se.

Michael J. Bowers, Attorney General, John C. Jones, Senior Assistant Attorney General, England & McKnight, George M. Weaver, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A95A0965.
    BRANTLEY et al. v. CUSTOM SPRINKLER SYSTEMS, INC.
    (461 SE2d 592)
   Andrews, Judge.

Brantley, Jr. (Brantley) appeals from the grant of summary judgment to defendant Custom Sprinkler Systems, Inc. d/b/a All South Utilities (All South) on his negligence claim. We affirm.

All South and the City of Metter, Brantley’s employer, entered into a contract for All South to construct a wastewater treatment pumping station. Brantley, the superintendent of the city water/sewer department, reviewed the plans, specifications, and equipment to be used and, during the construction process, observed on behalf of the city, including making periodic visits to the site. He had a key to the lock on the chain link fence erected around the site. The city retained an engineer to serve as the owner’s representative during the construction and to perform the contractually required project inspections.

As part of the project, All South dug a 14-foot-deep pit which was lined with concrete and into which steps descended, described as a bar screen pit. Adjacent to this pit was a wet well, a concrete cylinder which contained the pumping equipment. It had a metal hatch over the opening and an electrical panel nearby to control the pumps. The chain link fence was kept locked when All South personnel were not on site.

Brantley visited the site daily in the two months before the accident on Sunday, August 23, 1992. He was aware that the bar screen pit did not yet have its metal railing installed around the top and that the pit was open. He was on site on Friday, August 21, when the pumps in the wet well were activated. On Saturday, Brantley was told by one of his employees that after the old and new systems were switched on Friday, flooding of the bar screen pit occurred, which was normal in such switchovers.

On Sunday afternoon, while no one else was on site, Brantley went to check on the pumping operation. He unlocked the gate, walked around the bar screen pit on the way to the electrical panel, opened the panel, walked to the wet well, opened the hatch, and knelt down on the concrete apron with his back to the bar screen pit. He watched the pump system go through several cycles and then, as he stated, “I stood up, and I stepped back, and for some reason, I fell. I don’t know why. I stepped back off the edge of this [apron], stepped backwards from where I was kneeling down looking in the hatch, and fell . . . and I just went right into the pit.”

1. Brantley contends it was error to grant summary judgment to All South because there was evidence that an Occupational Safety and Health Administration (OSHA) regulation had been violated on site by failure to adequately cover or barricade the bar screen pit.

While OSHA regulations may be admissible as evidence of a legal duty in an appropriate situation, see Cardin v. Telfair Acres &c., 195 Ga. App. 449, 450 (2) (393 SE2d 731) (1990), “applicability in a particular case, and relevancy, depend on the relationship of the parties. OCGA § 51-1-6 provides for recovery of damages upon breach of a legal duty and specifies that the requirement under the law to perform or refrain from doing an act must be for the benefit of the injured person. . . . OSHA regulates obligations between an employer and its employees. [Cits.]” Dupree v. Keller Indus., 199 Ga. App. 138, 142 (1) (404 SE2d 291) (1991).

Brantley was not the employee of All South and therefore was not the person intended to be benefited by the OSHA regulations upon which he relies. Id. All South provided weekly “toolbox” safety talks to its employees on site. Further, there was a supervisor certified as a “competent person” in safety matters by the Utility Contractors Association licensing board, in charge of the site while All South employees were working.

2. Assuming, without deciding, that Brantley could show violation of some industry practice with regard to the bar screen pit as a basis for an ordinary negligence claim, All South was nonetheless entitled to summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

This case is factually similar to and controlled by Brown v. Carlisle, 214 Ga. App. 483 (448 SE2d 256) (1994). There, Brown, the owner of a home being built by Carlisle Construction, sued Carlisle for injuries he suffered when he opened a door onto a not yet constructed porch and fell to the ground. He had gone to the site after the contractor had left to install wiring. Brown had been to the site daily, cleaned up debris around the project, examined other porches which had been finished, and inspected the progress on the house. “Brown had equal knowledge that no bar had been nailed across the door, and of the danger inherent in walking through a door where there is no porch and there is no restraint across the door. . . . Even where premises are dangerous and a proprietor is negligent, he is not liable for an injury where the plaintiff had equal or superior knowledge of a dangerous condition and fails to exercise ordinary care for his own safety.” Brown, supra at 483-484. Thomas v. Southwest Ga. &c. Council, 215 Ga. App. 638, 639 (451 SE2d 800) (1994); Englehart v. OKI America, 209 Ga. App. 151, 153 (2) (433 SE2d 331) (1993); Brown v. RFC Mgmt., 189 Ga. App. 603, 605 (376 SE2d 691) (1988).

Decided September 1, 1995.

Franklin, Taulbee, Rushing, Bunce & Brogden, James B. Franklin, Keith A. McIntyre, for appellants.

Kent, Worsham, Smart & Brannon, Hugh M. Worsham, Jr., W. O. Williamson III, for appellee.

Brantley, knowing the open pit was behind him, knelt down with his back to it and fell when he attempted to rise. There is no liability on All South, and summary judgment on this ground was proper.

3. Brantley’s contention that he was somehow distracted is also without merit. His own evidence was that he was the only source of distraction, if any, present at the site when he fell. One cannot take advantage of a self-induced distraction. Harper v. Kroger Co., 212 Ga. App. 570 (443 SE2d 7) (1994); Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 264 (427 SE2d 547) (1993).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Brantley, Jr. sued for his injuries, and his wife sued for loss of consortium.


text:
    A95A1041.
    In the Interest of M. A. et al., children.
    (461 SE2d 600)
   Andrews, Judge.

David Albert, appellant and natural father of M. A. (a female child) and M. A. (a male child), appeals from an order of the juvenile court finding that Albert’s children were deprived and granting temporary custody to the children’s natural mother, appellee Beth Thompson.

Albert contends that the juvenile court’s order is invalid because the juvenile court did not have subject matter jurisdiction to hear the deprivation petition. OCGA § 15-11-5 (a) (1) (C) provides that the juvenile court has exclusive jurisdiction over deprivation proceedings. However, under OCGA § 15-11-5 (c), when custody is the subject of controversy, the juvenile court has concurrent jurisdiction with the superior court to determine custody issues only when the case is properly transferred by the superior court.

Decided September 1, 1995.

Cam S. Head, for appellant.

Mullins & Whalen, Samuel H. Sullivan, for appellee.

The juvenile court does not have subject matter jurisdiction over custody disputes disguised as deprivation proceedings. In the Interest of W. W. W., 213 Ga. App. 732 (445 SE2d 832) (1994). In Lewis v. Winzenreid, 263 Ga. 459 (435 SE2d 602) (1993), the Georgia Supreme Court affirmed the superior court’s determination that a juvenile court order finding deprivation was invalid for lack of subject matter jurisdiction because the record showed that the nature of the petition was custody, not deprivation. The court in W. W. W. found that “Lewis means that when the dispute is between parents, it is prima facie a custody matter.” W. W. W., 213 Ga. App. at 734. Juvenile courts “should not entertain” a deprivation proceeding brought by one parent against another because it is very likely that the parent is actually seeking custody and is attempting to avoid the more stringent standard of proof required for modification of a custody award. Id.

Because all deprivation proceedings between parents are prima facie custody matters, OCGA § 15-11-5 (c) requires that they must be brought in the superior court. Only the superior court may make the determination that a deprivation proceeding between parents is not a custody dispute. Upon determining that a deprivation petition brought by one parent against another is a valid deprivation petition, the superior court must then transfer the matter to the juvenile court under OCGA § 15-11-5 (a) (1) (C), which provides the juvenile court with exclusive jurisdiction over deprivation proceedings.

Here, there was no determination by the superior court that Thompson’s deprivation petition against Albert was a valid deprivation petition and not a disguised custody dispute. Therefore, the juvenile court did not have proper subject matter jurisdiction over the petition and the judgment is vacated accordingly.

Judgment vacated.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A1102.
    BOYKIN v. NORTH.
    (461 SE2d 598)
   Smith, Judge.

Kathy Boykin brought this action against Roger North d/b/a North’s Westside Shoppette and North’s Westside Varieties to recover damages for injuries incurred when she slipped and fell outside North’s store in Carrollton. The case was tried before a jury, and the trial court granted North’s motion for directed verdict at the close of Boykin’s case. Boykin’s motion to set aside the verdict and for a new trial was denied, and Boykin appeals.

The record reveals that Boykin visited North’s store with two friends on the day of her fall. They parked their car at the gas pumps outside the store, went inside, and requested five dollars worth of gas. While a store employee pumped gas into the car, they purchased several items inside the store. Boykin was the first to return to the car, and she carried a food container in her left hand and a glass soda bottle in her right hand. She slipped as she reached for the car door handle, breaking the bottle and seriously injuring her hand on the glass. She maintains her fall was precipitated by a grease spot near the gas pumps.

1. Boykin contends the evidence did not demand a verdict in favor of North and the trial court erroneously directed a verdict. We do not agree.

We agree with Boykin that the trial court based its grant of North’s motion upon an erroneous or incomplete legal standard. The court stated that in order to negate recovery on a theory that the owner of the premises had constructive knowledge of the hazard, “all the law requires the owner of a premises to do is to exercise reasonable care in inspecting [the premises to note any hazards].” Evidence of routine inspection is actually only one of several ways of showing the proprietor’s lack of constructive knowledge of a foreign substance on the floor or ground. It does this by showing that the substance could not have been present for an unreasonable length of time because of the inspection program.

Even were we to assume, however, that Boykin is correct that North did have constructive knowledge of the spot, a directed verdict in North’s favor was nevertheless demanded.

“A proprietor has the duty to keep premises safe for his invitees; but the plaintiff cannot recover if she has failed to exercise ordinary care for her own safety. See OCGA §§ 51-3-1 and 51-11-7. In order to recover for a slip and fall resulting from a hazardous condition not only must the plaintiff show that the defendant had knowledge of the presence of the hazardous condition, but the plaintiff must also show that she was without knowledge of its presence. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). ‘The customer must exercise ordinary care for (her) own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to (her) or in the exercise of ordinary care (she) should have learned of it.’ . . . [Cit.]” Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86) (1993). A customer is required to use all his or her senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause harm. Alterman Foods, supra at 623.

Boykin was required in this situation to use all of her senses to discover the grease spot, particularly when attempting to open the car door while laden with items in both hands. Her testimony indicates she did not do so. Although Boykin testified she could not see the spot before she fell despite the fact that she was watching where she was going, she admitted that she was not looking at the ground and that had she been doing so she would have seen the spot. This constitutes evidence that Boykin was not exercising the requisite care for her own safety. Foodmax v. Terry, 210 Ga. App. 511, 513 (2) (436 SE2d 725) (1993); Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991).

This ground would have entitled North to judgment as a matter of law. North did not base its motion for directed verdict on this ground, however, and usually, a ground not raised in a motion for directed verdict will not support an affirmance on appeal. Grabowski v. Radiology Assoc., 181 Ga. App. 298 (352 SE2d 185) (1986). Nevertheless, in limited circumstances such as those present in this case, we hold that granting a directed verdict is proper, and we therefore affirm the trial court’s judgment.

This court has held that “where a motion for directed verdict is granted and the moving party is entitled to judgment as a matter of law, the judgment of the trial court should not be reversed merely because the moving party failed to properly specify the grounds on which the motion is based. [Cits.]” Green v. Knight, 153 Ga. App. 183, 184-185 (1) (264 SE2d 657) (1980). Green was decided before this court decided Grabowski, supra, which extended to grants of motions for directed verdict a rule that previously applied only to denials of such motions. Before Grabowski, this court’s rule was that, in appeals from denials of directed verdict motions, we would not apply the principle that a trial court’s judgment must be affirmed if it is right for any reason. We extended that rule in Grabowski, holding that we would also decline to apply the “right for any reason rule” in appeals arising from motions for directed verdict that had been granted.

We based our extension of this rule on two grounds: First, that OCGA § 9-11-50 (a) requires that a motion for directed verdict state the specific grounds on which it is based; and second, that it is well established that a ground not mentioned in a motion for directed verdiet may not thereafter be raised on appeal. Grabowski, supra at 299 (2).

Decided September 1, 1995.

Van C. Wilks, for appellant.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, David F. Miceli, Glenn M. Jarrell, for appellee.

In his dissent in Grabowski, Judge (now Justice) Benham pointed out that the sweeping scope of the new rule announced by the majority virtually precluded harmless error analysis in such cases. A footnote in the majority opinion in Grabowski addresses the same issue, however, inviting comparison with Green, supra, and noting that Green “involved a lack which could not be cured upon reopening the plaintiffs case.” Grabowski, supra at 300, n. 1. We read Grabowski, therefore, as calling for a different rule when the circumstances present in Green exist. Even when the movant fails to specify in its motion the particular ground urged on appeal, if the state of the evidence is such that were the plaintiffs case reopened the verdict would still be demanded, then it appears obvious that retrial would be futile. The trial court’s error in granting the motion for directed verdict despite the movant’s failure to specify the proper ground is therefore harmless.

Here, as in Green, the evidence demanded a verdict in favor of the defendant; the evidence showing that Boykin failed to exercise care for her own safety would not change upon any retrial. The trial court’s error in granting North’s motion for directed verdict is harmless error, because a verdict was demanded for North on a ground North failed to specify.

2. Because the case never reached the jury, Boykin’s enumeration asserting error in the trial court’s denial of her challenge to the composition of the jury is moot.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A1723.
    JACKSON v. STATE OF GEORGIA.
    (461 SE2d 594)
   McMurray, Presiding Judge.

After the State of Georgia (the “State”) filed a “Notice of Seizure of Personal Property,” namely, a 1988 Chevrolet Caprice automobile, an RG .38 revolver, and a cellular telephone, Thomas Jackson, Jr. (“claimant”) filed a verified claim to the vehicle, alleging that he is the owner and that the vehicle “is not contraband within the definítions set forth in O.C.G.A. Section 16-13-49, nor is it [subject] to seizure under any other provision of law, including, and further, said vehicle was not used incident to the sale of any controlled substance.” The State responded with a “Motion for Judgment of Forfeiture and Disposition of Property Pursuant to OCGA § 16-13-49,” reciting that, during a lawful search of the vehicle driven by claimant, the police discovered “in excess of three (3) grams of ‘crack’ cocaine.” This cocaine was not hidden in the vehicle claimant was driving but was found on his person, “in his pocket.” The State’s basis for claiming the 1988 Chevrolet Caprice (along with its contents) was subject to forfeiture is the allegation that claimant “was using [the car] to transport the cocaine.” In its motion, the State contended that claimant’s written claim “fails to assert ‘facts in support of (his) alleged innocent ownership’ . . .’’of the vehicle. As a consequence, the State urged that the claim was deficient and insufficient in that it failed to meet the strict pleading requirements of OCGA § 16-13-49 (n) (4), and should be dismissed. After a hearing, the trial court agreed that “the purported Claim filed in this case by Thomas Jackson, Jr., is insufficient as a matter of law and does not meet the requirements set out in OCGA § 16-13-49 (n) (4). State v. Alford, 264 Ga. 243 (1994); State v. Cannon, 214 Ga. App. 897 (1994).” Consequently, the trial court granted a judgment of forfeiture in favor of the State. This direct appeal followed. Held:

In his sole enumeration of error, claimant contends the trial court erred in concluding that his written claim was insufficient to meet the requirements of OCGA § 16-13-49 (n) (4). The sum and substance of his entire argument is that the authority cited by the trial court “does not clearly demonstrate what will be required to achieve compliance with O.C.G.A. § 16-13-49 (n) (4), particularly with regard to subsections E and F thereof.” This contention is without merit.

“Under OCGA § 16-13-49 (d) (2), property that is used in any manner to facilitate a violation of the Georgia Controlled Substances Act, or any proceeds derived therefrom, is contraband, and no person shall have a property right to it.” Manley v. State of Ga., 217 Ga. App. 556, 557 (3), 558 (458 SE2d 179). In the case sub judice, the State’s allegation that the 1988 Chevrolet Caprice was used to transport the three grams of crack cocaine that Thomas Jackson, Jr. had on his person while driving the car made out a prima facie case for civil forfeiture of the vehicle as contraband. The onus was then on claimant to establish both his standing to contest the forfeiture and his entitlement to a statutory exception. State of Ga. v. Banks, 215 Ga. App. 828, 831 (2), 832 (452 SE2d 533). When, on March 6, 1995, claimant filed his claim in response to the State’s notice of seizure, the Court of Appeals of Georgia had already held that a claimant’s pleadings under OCGA § 16-13-49 (n) (4) were “[a]nalogous to the procedure in [OCGA § 16-13-49] subsection (o).” State of Ga. v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519). There, the whole court further held that the rationale applied in State of Ga. v. Alford, 264 Ga. 243, 244 (2) (444 SE2d 76) to the in rem forfeiture procedures mandated by OCGA § 16-13-49 (o) (3) cannot be distinguished from the procedures mandated by OCGA § 16-13-49 (n) (4), because each requires “the same information and verification. . . .” State of Ga. v. Cannon, 214 Ga. App. 897, 899, supra. Accordingly, when an interest holder is responding to a notice of seizure authorized by OCGA § 16-13-49 (n) (1), “a claim to property subject to forfeiture [must] satisfy not only the general pleading rules applicable to all civil actions, but must also specifically set forth [with particularity the elements enumerated at OCGA § 16-13-49 (n) (4)].” State of Ga. v. Alford, 264 Ga. 243, 244 (2), 245 (2) (a), supra. Accord State of Ga. v. Cannon, 214 Ga. App. 897, 898, supra.

Decided September 1, 1995.

Martin L. Fierman, for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Paul L. Groth, Assistant District Attorneys, Lance K. Hiltbrand, for appellee.

Through OCGA § 16-13-49 (n) (4) (E), the legislature has required claimants to set forth “[t]he specific provision of [OCGA § 16-13-49] relied on in asserting that the property is not subject to forfeiture.” OCGA § 16-13-49 (n) (4) (F) mandates that the claimant set forth “[a]ll essential facts supporting each assertion.” In the case sub judice, when claimant’s submission is pruned of its conclusory allegations, the claim “merely cites to the innocent owner provision of OCGA § 16-13-49 without asserting facts in support of [his] alleged innocent ownership. Thus, [this claim] fails to comply with subsections [(E)] and (F) of the specific pleading requirements of OCGA § 16-13-49 [(n) (4)].” (Emphasis supplied.) State of Ga. v. Alford, 264 Ga. 243, 244 (2), 245 (2) (a), supra. Since, in the case sub judice, no sufficient claim was filed within 30 days after the second publication of the State’s subsection (n) (1) notice of forfeiture, “all right, title, and interest in the property [became] forfeited to the [S]tate. . . .” OCGA § 16-13-49 (n) (6). See also Mitchell v. State of Ga., 217 Ga. App. 282 (457 SE2d 237).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1763.
    IMPERIAL v. THE STATE.
    (461 SE2d 596)
   McMurray, Presiding Judge.

Defendant was charged in an accusation with misdemeanor obstruction of a law enforcement officer, “by refusing to obey orders and refusing to cooperate, thus disrupting said agent’s operation.” He was also charged with carrying a concealed weapon. The evidence adduced at his jury trial showed that on October 28, 1994, defendant attended a Halloween party at the home of Marta Toal. That same night, Special Agent Jeff Fountain of the Lowndes-Valdosta-Brooks Drug Task Force and others executed a “no-knock” search warrant for 2235 Horace Avenue, which is “a dark brown double-wide trailer with cream colored trim,” looking for marijuana. He “knew that both of [the] people that owned the residence were convicted drug dealers.” Special Agent Fountain exited his vehicle, yelling “ ‘Get on the floor; search warrant; police officers.’ There was a large party when we pulled up . . .[, with] approximately 10 to 15 people in the back yard.” The number of people present “diverted [police] plans for most of the agents entering the trailer [, so Special Agent Fountain] rushed to the back of the yard . . . [and called to everyone], ‘Police officers; search warrant; get on the ground.’ Everybody starts dropping to the ground and that’s when [Special Agent Fountain] encountered [defendant]. When [Special Agent Fountain] encountered [defendant], he refused to get on the ground.” Special Agent Fountain explained that persons at the scene of a drug investigation are ordered to get on the ground for their own safety. As Special Agent Fountain “approached [defendant,] he did not want to get on the ground. He looked over toward a female to my left and he started in a high voice saying, it was either ‘That is my daughter’ or ‘That is my sister. Leave her alone.’ At that point, [Special Agent Fountain] kept ordering [defendant] to get on the ground. He still would not get on the ground. Finally, he made a motion to get on the ground and that’s when I pushed him to the ground.” Special Agent Fountain was emphatic that defendant “was not thrown to the ground.” Special Agent Fountain used only “the force necessary to get him on the ground for his protection and ours.” Defendant commented, “ ‘I’m a police officer. I know what my rights are. I’m going to sue you,’ and basically kept mouthing off.” In his defense, defendant testified that he did not immediately jump to the ground when ordered because he thought the whole situation “was a joke.”

The jury acquitted defendant of the weapons charge but found him guilty on the charge of obstruction of a law enforcement officer. From the judgment of conviction for misdemeanor obstruction of a law enforcement officer, defendant brings this direct appeal. Held:

In two related enumerations, defendant challenges the sufficiency of the evidence to sustain his conviction. He argues that there was only a mere verbal encounter without the necessary show (or offer) of violence, relying on the whole court decision of Moccia v. State, 174 Ga. App. 764 (331 SE2d 99). Such reliance is misplaced, for Moccia was decided before the enactment of Ga. L. 1986, p. 484, which struck former OCGA § 16-10-24 in its entirety and replaced it with existing OCGA § 16-10-24. Duke v. State, 205 Ga. App. 689 (423 SE2d 427). As currently enacted, “the offense of misdemeanor obstruction under existing OCGA § 16-10-24 (a) no longer contains the element of ‘violence’ as does the offense of felony obstruction under existing OCGA § 16-10-24 (b).” (Citations and punctuation omitted.) Duke v. State, 205 Ga. App. 689, supra. It follows that defendant’s contention in the case sub judice that evidence of his refusal to obey the lawful command of Special Agent Fountain is insufficient to support his conviction for misdemeanor obstruction, because no violence was offered or done, is erroneous. The question whether defendant’s refusal to obey that lawful command as officers attempted to secure the crowded area “had the effect of hindering or obstructing the officers . . . was for the trior of fact to decide. Sapp v. State, 179 Ga. App. 614, 615 (1) (347 SE2d 354) (1986). . . . ‘Therefore, applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence sufficient to authorize a rational trier of fact to find [defendant] guilty beyond a reasonable doubt of the offense of [misdemeanor] obstruction of an officer.’ Bailey v. State, [190 Ga. App. 683, 684 (379 SE2d 816)].” Duke v. State, 205 Ga. App. 689, 690, supra.

Decided September 1, 1995.

James F. Council, Jr., for appellant.

Richard W. Shelton, Solicitor, William W. Broadfoot III, Assistant Solicitor, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1596.
    DEEN v. UNITED DOMINION REALTY TRUST.
    (462 SE2d 384)
   McMurray, Presiding Judge.

Plaintiff United Dominion Realty Trust (“United”) filed a petition for a dispossessory warrant, alleging that defendant Lee Roy Deen is a tenant who “fails to pay the rent which is now past due” and accruing in the amount of $409 per month. Defendant’s timely written answer alleged that he was “paying into the court register [sic] $409.00 + $30.00 cost of dispossessory warrant this being a corn-pleat [sic] defense according to Ga Code[.]” After a hearing some six weeks later, the State Court of Cobb County entered a judgment for plaintiff, “based on the failure to state any sufficient legal defense in the Defendant’s answer.” Specifically, the trial court found that a “prior dispossessory 94D7309 (August 1994) settled between parties and this current action for Rent Deft [sic] only deposited ($409 + 30) [.] Per OCGA 44-7-52 Required tender to Plff [sic] not Court & OCGA payment to Court is possession through final outcome (hearing) [.]” This direct appeal followed. Held:

1. Defendant contends that the trial court erred in refusing to consider defendant’s direct testimony that no proper demand for possession preceded plaintiff’s filing of this petition for dispossessory. Defendant refers this Court to several citations for the indisputable proposition that a “demand for possession” or “notice to quit” is a condition precedent to an action to evict a tenant at will. See, e.g., Carruth v. Carruth, 77 Ga. App. 131, 134 (48 SE2d 387). We are, however, unable to consider the merits of this contention for there is no transcript of the proceedings below nor any attempt to recreate the record as contemplated by OCGA § 5-6-41 (g) and (i). In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). “Thus, where the transcript is necessary[, as in the case sub judice,] and appellant omits it from the record on appeal [or fails to submit a statutorily authorized substitute], the appellate court must assume the judgment below was correct and affirm. See McAllister v. City of Jonesboro, 242 Ga. 95 (249 SE2d 565) (1978); Brooks v. Home Credit Co., 128 Ga. App. 176 (196 SE2d 176) (1973).” Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16). Consequently, this enumeration presents nothing for review. Tadlock v. Duncan, 215 Ga. App. 441, 442 (1), 443 (451 SE2d 80).

Decided August 17, 1995

Reconsideration dismissed September 5, 1995

Lee R. Deen, pro se.

Russell D. Mays, for appellee.

2. Defendant further contends the dispossessory warrant was erroneously issued because no rent was in fact past due. In this regard, defendant claims that rent for January 1995, “was tendered with check #1912 on the tenth of January, 1995, 7 days before the proceedings for a dispossessory warrant where [sic] even started.” (Emphasis in original.) He argues that tender of chattels is the equivalent of payment. “ ‘(A) check is not payment until itself paid unless explicitly taken with a contrary understanding.’ Kersh v. Life &c. Ins. Co., 109 Ga. App. 793, 795 (137 SE2d 493) (1964).” Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 839 (3) (413 SE2d 430). Consequently, this contention is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1375.
    THOMPSON v. THE STATE.
    (462 SE2d 404)
   Smith, Judge.

Two indictments were returned against Adrian Thompson by a Hall County grand jury, one on three counts of aggravated assault and one on two counts of violation of the Georgia Controlled Substances Act. As a result of Thompson’s petition to enter a non-negotiated plea, a nolle prosequi was entered as to two of the charges of aggravated assault, and Thompson pleaded guilty to one count of aggravated assault and one count on the second indictment. Thompson’s counsel stated the plea was entered with the understanding that sentencing would be deferred until a pre-sentence investigation could be made and a report filed.

During the plea hearing, the trial court noted that normally a sentence would be imposed immediately on the guilty plea, but that sentencing in this case would be deferred until completion of the presentence investigation. The trial court then stated, “Because I’m going to postpone your sentencing until sometime in the future, I’m going to ask you if you will waive or give up your right to withdraw your plea. Do you give up that right? In other words, will you stand by this plea, no matter what down the road, you will not change your mind on the plea if I postpone the sentencing here today?” Thompson responded, “I’m not going to change my mind.” The trial court then accepted Thompson’s guilty plea and referred the case to the probation office for preparation of the pre-sentence investigation report.

Approximately two months later, Thompson filed a motion to withdraw his guilty plea, alleging no factual basis for the plea was established as required by Uniform Superior Court Rule 33.9. The trial court denied the motion and sentenced Thompson on the basis of his guilty plea. From this judgment of conviction and sentence Thompson appeals.

Thompson contends the trial court erred in requiring a waiver of his statutory right to withdraw his guilty plea as a condition of acceptance, and we are constrained to agree. This case is controlled by Ware v. State, 128 Ga. App. 407 (196 SE2d 896) (1973), which holds that an accused cannot “waive the right to withdraw a plea of guilty before judgment is pronounced.” In Ware, as here, the defendant attempted to withdraw her guilty plea before sentence was pronounced, but the trial court ruled that she had waived the right to withdraw the plea. Sentence was imposed, and the defendant appealed. This court observed: “Before sentence is passed one accused of a crime may withdraw his plea of guilty as a matter of right. The right given a defendant to withdraw his plea of ‘guilty’ and plead ‘not guilty’ at any time before judgment is pronounced, is not qualified or limited. This right has even been upheld where the witnesses have been dismissed, jurors discharged and sentences delayed at defendant’s request.” (Citations and punctuation omitted; emphasis supplied.) 128 Ga. App. at 410. After a thorough analysis of the history of Ga. Code Ann. § 27-1404, now OCGA § 17-7-93, and the relevant decisional law, this court concluded that the accused could not waive this right and that asking an accused for such a waiver was contrary to the legislative intent of the statute. 128 Ga. App. at 410-411. Accord Farmer v. State, 128 Ga. App. 416, 417 (196 SE2d 893) (1973).

Decided September 5, 1995.

Summer & Summer, Daniel A. Summer, Chandelle T. Summer, for appellant.

Lydia J. Sartain, District Attorney, Denise M. Arenth, Assistant District Attorney, for appellee.

As noted in Ware, we recognize that the trial court faces a difficult, multifaceted problem in dealing with the acceptance and withdrawal of guilty pleas. Certainly the privilege provided by OCGA § 17-7-93 (b) has been abused in some instances in order to avoid trial or gain some tactical advantage. The trial court no doubt considered “the resulting encroachment upon time of the court and of its officials as well as the added expense to the public through such withdrawal,” 128 Ga. App. at 412, as well as, in this instance, the apparent waste of the limited resources of the probation office and its personnel at the defendant’s request. But these considerations, important as they are, must yield to the statutory mandate.

“In view of the posture of the record, we are compelled to conclude that appellant had an unqualified statutory right to withdraw his guilty plea at any time before judgment was pronounced by oral announcement of sentence by the trial court. OCGA § 17-7-93 (b). If a modification is desired as to this unambiguous and long-standing statute, it is a matter for legislative rather than judicial relief.” Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152) (1994). The trial court erred in not permitting defendant to withdraw his plea of guilty and enter a plea of not guilty, and in sentencing defendant after he moved to withdraw the plea of guilty.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       Although this right of withdrawal is unqualified and unlimited, its exercise may have adverse consequences. A trial judge must permit withdrawal, but if the defendant later reconsiders and seeks again to enter a plea of guilty, the judge is in no way obliged to accept a negotiated recommendation or to order a pre-sentence investigation. Under such circumstances, the trial court could — and very well might — refuse to accept anything other than an open-ended, unconditional plea of guilty, followed by immediate imposition of sentence.


author: Blackburn, Judge.

text:
    A95A1453.
    POWELL v. ESTATE OF WILLIAM D. AUSTIN et al.
    (462 SE2d 378)
   Blackburn, Judge.

F. Carl Powell III, d/b/a Corky Bell’s Seafood (Powell), appeals from the judgment entered against him in favor of the appellees, the Estate of William D. Austin, Maurice Steinberg, and Birnet Johnson (collectively referred to as the lessors), in the underlying action for a distress warrant and from the trial court’s denial of his motion for j.n.o.v. or in the alternative, motion for new trial. Specifically, Powell maintains that there was no evidence adduced at trial that a landlord-tenant relationship existed between him and the lessors. He further maintains that the trial court erred in admitting evidence concerning the condition of the vacated premises and also erred in giving or failing to give certain jury charges. Because we find the jury could properly consider Powell to have a landlord-tenant relationship with the lessors and because we find that the trial court committed none of the enumerated errors in admitting evidence or instructing the jury, we affirm.

The evidence viewed in the light most favorable to the jury’s verdict and the judgment shows that Charles Edward Bell and Benny Carnell Smith were the only shareholders of Bell & Smith Enterprises, Inc. (Smith Company), a corporation that operated eating establishments known as Corky Bell’s Seafood restaurants. On June 8, 1985, Bell, Smith, and the Smith Company executed an agreement with lessors to lease certain property located in Augusta that was suitable for operating a restaurant. The lease term commenced in the summer of 1985 and lasted for five years. Under the terms of the lease, the lessees had the right to renew and extend the term of the lease for two additional five-year periods, beginning on July 1, 1990, by providing the lessors with written notice of their intention prior to the expiration of the existing lease.

In January 1988, the lessees shifted the ownership of the restaurant and the Smith Company amongst themselves. By way of agreement, Smith became the sole shareholder of the Smith Company and Bell became the owner of Corky Bell’s Seafood restaurant in Augusta, the property subject to the instant lease. Bell later formed a new corporation, Bell & Son Enterprise, Inc. (Son Company), to operate the restaurant. The lessors were unaware of these transfers.

After these transfers, on March 1, 1990, Bell, in his purported capacity as president of the Smith Company, provided written notice to the lessors of the Smith Company’s intent to renew the lease. His renewal notice makes no mention of Smith. On the basis of this notice, the lessors renewed the lease for a five-year period.

During the term of the original lease, yet after Smith and Bell’s ownership transferred, a portion of the leasehold’s parking lot was condemned by Richmond County for road construction. Smith, Bell, and the Smith Company intervened in the condemnation, claiming to be interested parties by virtue of their lease.

In August 1990, Powell purchased all the stock of the Son Company and began operating the restaurant. Although Powell never signed a lease, he informed the lessors that he had “assumed” the lease. In response, the lessors informed Powell that he would be considered the tenant and thus would be individually liable on the lease. Evidence construed in a light most favorable to the verdict indicates that Powell personally made rent payments to the lessors. Further, Powell was aware of the five-year renewal term extending the lease until June 1995, and ultimately, Powell received the condemnation proceeds attributed to the leasehold interest and directed them to his company. Claim was made to those proceeds based upon the lease continuing through June 1995, the end of the renewed term.

In the summer of 1992 Powell vacated the premises, and this action ensued.

1. “The relationship of landlord and tenant, either by express or implied contract, must exist to support an action on a distress warrant.” Arnold v. Selman, 83 Ga. App. 150, 151 (62 SE2d 919) (1951). Consequently, we first determine whether the relationship of landlord and tenant existed between Powell and the lessors by virtue of an express contract. The lessors contend that such an agreement exists because the original tenants properly renewed the lease and Powell steps into their shoes as an assignee or subtenant; whereas, Powell claims that the renewal was inoperative and did not extend the term of the lease after June 30, 1990. We agree with Powell that the lease was not properly renewed.

To comply with the Statute of Frauds, a lease lasting longer than one year must be in writing, and it is just as important that the authority of the agent executing that lease be in writing. Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490, 492 (296 SE2d 749) (1982). As the record contains no proper written evidence that Bell was “lawfully authorized” to act on behalf of Smith or the Smith Company at the time he negotiated the renewal, the written renewal submitted by Bell is considered void. See Brookhill Mgmt. Corp. v. Shah, 197 Ga. App. 305 (398 SE2d 290) (1990) (lease renewal signed by agent was inoperative as there was no written documentation of the agent’s authority to execute the renewal).

Having determined Powell was not an assignee or subtenant pursuant to a valid express contract, we focus on whether Powell had some implied contract with the landlord so as to support an action for a distress warrant. As outlined above, the Statute of Frauds requires that leases for a period in excess of a year must be in writing. OCGA § 13-5-30 (4). Thus, the question becomes whether Powell’s parol agreement with the landlord falls within an exception to the Statute of Frauds.

“A parol contract sought to be enforced as within some exception to the Statute of Frauds . . . must be certain and definite in all essential particulars, and if part performance is relied upon to make it enforceable, the part performance must be part performance of an essential element of the contract sought to be proved, and of a character which would render it a fraud on the plaintiff if the defendant refused to comply.” (Citation and punctuation omitted.) Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 344 (259 SE2d 729) (1979). We determine that the present matter falls within the exception. It is undisputed that Powell accepted condemnation proceeds awarded to the leasehold interest. The claim to these proceeds was based on the five-year term of the lease. Further, Powell orally stated to the landlord that he had purchased the restaurant and had assumed the lease for the remainder of its five-year renewal term, and the evidence, construed in the light most favorable to the verdict, indicated that Powell understood he was to be individually liable for the rent.

Powell disputes that his performance was sufficient to remove the contract from the Statute of Frauds. We disagree. Key elements to the jury’s verdict, including the party to be held liable, the monthly rental, and the duration of the lease, were all evidenced by Powell’s performance. Moreover, we have previously held that the Statute of Frauds provides no defense to a promising party when the other party has acted on the promise to its detriment. Scott v. Lumpkin, 153 Ga. App. 17, 20 (264 SE2d 514) (1980). Here, the lessors acted to their detriment as they shared proceeds received from the condemnation based upon the claim that Powell’s leasehold interest extended through June 1995. On the facts of this case, we find it would be better to endure the uncertainties of parol evidence than to permit Powell to take unjust advantage of the lessors. In light of the foregoing, we find an implied contract between Powell and the landlord sufficient to support this action on a distress warrant and the subsequent judgment entered thereon.

2. Powell also enumerates as error the trial court’s failure to instruct the jury with a requested charge as to the types of evidence that demonstrate the existence of a corporation, e.g., articles of incorporation, minutes from corporate meetings, stock certificates. In his defense, Powell asserted that the debt in question was corporate, not individual. The court correctly declined to instruct the jury, as the charge impermissibly commented on evidence that had been proffered by Powell and could have swayed the jury to give that evidence undue consideration. Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 448 (451 SE2d 87) (1994). Even if this charge had not commented on the evidence, Powell cannot demonstrate that he was harmed. The court thoroughly and adequately charged the jury on the pertinent precepts of corporate law. Monroe v. Southern R. Co., 210 Ga. App. 597, 599 (436 SE2d 568) (1993) (failure to give a correct and pertinent instruction is not error if its principles are sufficiently covered in the charge as a whole).

3. Powell enumerates as error the trial court’s admission of testimony and photographs regarding physical damages to the leasehold at the time it was vacated. Powell also enumerates as error the trial court’s charging the jury on the general precept that: “Damages resulting from a breach of contract are such as arise naturally and according to the usual course of things.” In support of this enumeration, Powell cites D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 (333 SE2d 685) (1985) for the proposition that a distress warrant may be used to recover only rent, not any other losses incurred by the landlord in relation to the lease. Consequently, Powell argues that it was error for the court to admit this evidence and make this charge. We disagree with Powell’s reading of D. Jack Davis Corp. The statute governing distress warrants carefully balances the due process rights of tenants with the landlord’s need for exigent relief when rent is not being paid. This balance is achieved though abbreviated answer periods and expedited hearings. See OCGA §§ 44-7-72; 44-7-74. Thus, a tenant in a distraint proceeding loses some of the civil procedure rights it would enjoy as a defendant in other litigation contexts. This background explains the reasoning employed in D. Jack Davis Corp. Under the facts of that case, the tenant had a valid right to be in possession of the property at the time the distress warrant was sought. Shortly thereafter, the tenant moved out of the property in response to the landlord’s demand for possession. No rent was owing for the period that the tenant occupied the property. Subsequently, on three separate occasions, the landlord amended his application for a distress warrant, changing the type and increasing the amount of damages sought. In particular, the landlord amended his application to seek damages sustained to the leased property and rental lost because the poor condition of the property prevented him from releasing immediately. This court held that “[t]he attempts of the landlord to jerry the distraint proceeding by amendment into a general complaint for damages” was not authorized by law. D. Jack Davis Corp. stands for the proposition that one cannot transform an application for a distress warrant that was wholly without basis into a general complaint for damages other than rent simply by amending the application. To do so would permit a landlord to take improper advantage of the procedural benefits accorded him in a distraint proceeding. D. Jack Davis Corp. does not stand for the proposition that damages other than rent can never be obtained in a distress proceeding. Clearly, if there is a valid underlying dispute about rent, other matters concerning the lease may also be addressed in the same proceeding. This interpretation of D. Jack Davis Corp. is supported by the statute governing distress warrants which provides: “If, on the trial of the case, the judgment is against the tenant, the judgment shall be entered against the tenant for all rent due and for any other claim relating to the dispute(Emphasis supplied.) OCGA § 44-7-77 (a). Clearly, the legislature intended that a distress proceeding may be used to recover damages in addition to rent if they are somehow related to the lease. Consequently, the trial court did not err in admitting the evidence or charging the jury as claimed by Powell.

Decided August 2, 1995

Reconsideration denied September 6, 1995

Baumer, Bradford & Walters, Julie L. G. Sears, Sam G. Nicholson, Andrew M. Magruder, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Harry D. Revell, for appellees.

We affirm the verdict of the jury and the subsequent judgment entered by the trial court.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A1682.
    PATE v. EASTERN AIRLINES et al.
    (462 SE2d 153)
   Blackburn, Judge.

We granted appellant Michael K. Pate’s application for discretionary review of the trial court’s affirmation of the Appellate Division of the State Board of Workers’ Compensation’s (Board) decision.

The Board vacated the decision of the administrative law judge (ALJ), and found that Pate had undergone a change of condition from a 1988 injury warranting the termination of his total disability benefits. The change found in Pate’s condition was based upon income he received from the landscaping business that he had operated from his home since 1986. The Board remanded the case to a second ALJ to receive evidence on the amount of temporary partial disability benefits that might be due and instructed such ALJ to deduct attorney fees from any benefits due Pate. On remand, the ALJ found that Pate had undergone a change in condition from total disability to temporary partial disability, effective January 1, 1990, and ordered Pate to reimburse appellee, Eastern Airlines (Eastern) $8,236, the difference in the total disability payments he received and the temporary partial disability payments he was entitled to receive.

1. Relying on Owens-Illinois v. Lewis, 150 Ga. App. 640 (258 SE2d 293) (1979), Pate contends that the second ALJ, the Board, and the trial court erred in considering the income of his landscaping business because he was operating the business at the time of his 1988 injury and the income from the business was not included in the calculation of his average weekly wage.

Decided August 16, 1995

Reconsideration denied September 6, 1995

Fink & Travis, David H. Fink, for appellant.

Saveli & Williams, John M. Williams, Wendy Goodwin, for appellees.

In Lewis, as in the present case, the injured employee was self-employed at the time he sustained the compensable injury. However, this Court held that Lewis’s other employment could not be considered a change in condition within the meaning of Code Ann. § 114-709, now OCGA § 34-9-104 (a), because it was not concurrent similar employment and the Board did not use Lewis’s income from such business in establishing Lewis’s measure of damages. Id. at 640-641. Pate’s employment with Eastern as a baggage handler was not similar to the work he performed while self-employed in the landscaping business, as the latter was essentially supervisory in nature and involved only occasional light manual labor in using his business’s lawn mowers and other equipment. See St. Paul-Mercury Indem. Co. v. Idov, 88 Ga. App. 697 (77 SE2d 327) (1953). Moreover, the Board here found that Pate’s employment was concurrent dissimilar employment by implication because the wages for such employment were not included in the calculation of his average weekly wage. Consequently, the Board erred, as a matter of law, in considering the wages Pate earned in his landscaping business in determining that he had undergone a change in condition.

2. In view of our disposition of Division 1, we do not reach Pate’s remaining enumeration of error.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


author: Ruffin, Judge.

text:
    A95A0882.
    A95A1089.
    In the Interest of W. C. J., a child. In the Interest of E. R., a child.
    (462 SE2d 168)
   Ruffin, Judge.

W. C. J. and E. R. appeal from the juvenile court’s delinquency adjudications upon finding they committed the delinquent acts of murder and armed robbery. Both appellants were 16 years old at the time of the events giving rise to these adjudications.

Viewed in a light to support the adjudications, the evidence shows that W. C. J. left school in his car with schoolmates, Keith Green and the victim, as passengers. They later picked up E. R. and another co-defendant, E. N., and Green ordered W. C. J. to drive to Blue Springs Road. Green told W. C. J. to stop the car at the end of a dirt road. While discussing buying drugs with W. C. J., Green asked the victim for his necklace. When the victim began to laugh, Green jumped out of the car, pointed a gun at the victim and demanded his money. W. C. J. allegedly then said to Green, “Keith, don’t pop him in my car.” Green then waved his gun at everyone and ordered them all out of the car. The victim pleaded for help, and Green demanded that he shut up. Green pointed the gun at W. C. J. and ordered him to search the victim’s pockets wherein W. C. J. found four $20 bills and three $1 bills. Green told W. C. J. to get back in the car and ordered E. R. at gunpoint to remove the victim’s necklace. As E. R. removed the necklace, Green ordered the victim to his knees. The victim continued to cry and plead for his life. W. C. J. then allegedly stuck his head out of a car window and said to Green, “Keith, pop him and let’s go.” Green then fired six shots from a chrome revolver with a brown handle. The first shot was fired at point blank range, striking the victim in the head as he knelt. When the victim fell to the ground, Green stood over his body and fired the remaining shots to his head and upper left arm. Green, E. R., and E. N. then got back in the car and fled the scene. E. R. stated that Green and W. C. J. warned him and E. N. that if they were asked about the victim, they were to say they dropped him off to see a girl. W. C. J. then dropped E. R. and E. N. off at a grocery store.

W. C. J. and E. R. gave custodial statements which were introduced at trial in which they essentially admitted the facts set forth above. They admitted that prior to the shooting, Green discussed with them his desire to rob and shoot someone in order to gain rank in a street gang. W. C. J. only denies having made the statements attributed to him. However, he admitted taking the victim’s money, receiving two $20 bills after the boys divided the money, and driving to a housing project where he threw the victim’s school books into a dumpster. In addition, the victim’s mother testified that she spoke with W. C. J. on the morning following the shooting to ascertain her son’s whereabouts and that W. C. J. admitted the victim was with him the day before, but he told her he dropped the victim off to see his girl friend. After the shooting, W. C. J.’s mother gave the police two $20 bills which W. C. J. said he took from the victim.

E. R. admitted taking the victim’s necklace which the police later recovered from his dresser. The evidence further shows that on the day before the shooting, a witness saw Green give E. R. a silver gun. The witness also testified that after the shooting, she saw Green pointing his finger at E. R., as if he were firing a gun, and E. R. pretending to fall as if he were shot. On the evening following the shooting, E. R. reported the incident to the police using a false name, address and telephone number.

1. W. C. J. and E. R. contend the evidence was insufficient to support the adjudications of delinquency beyond a reasonable doubt. They argue that the evidence instead shows that after Green pulled the gun, they were coerced into participating in the armed robbery and murder; that they had no prior knowledge that Green would rob or kill the victim and thus were not part of a conspiracy; and that their cooperation with the police investigation and the preparation of the case against Green demonstrates they were not parties to the crimes.

“One does not have to be the actual ‘trigger man’ to be convicted of murder in this state as long as the evidence is sufficient to demonstrate that one is a party to the crime. [Cit.]” Thomas v. State, 246 Ga. 484, 486-487 (272 SE2d 68) (1980). “ ‘Mere presence at the scene is not sufficient to convict one of being a party to a crime,’ but criminal intent may be inferred from conduct before, during, and after the commission of the crime. [Cit.]” Sands v. State, 262 Ga. 367, 368 (2) (418 SE2d 55) (1992).

W. C. J. and E. R.’s admissions that they took the victim’s money and necklace, respectively, demonstrated that they aided and abetted the armed robbery and therefore were parties to the armed robbery. See Dowdy v. State, 209 Ga. App. 95 (1) (432 SE2d 827) (1993). Whether or not they were coerced was a question for the trier of fact. Hill v. State, 135 Ga. App. 766 (219 SE2d 18) (1975). Furthermore, the trier of fact could infer from W. C. J.’s and E. R.’s conduct during and after the shooting, including but not limited to W. C. J.’s acts of concealment and E. R.’s failure to disassociate himself from the criminal enterprise, that they were not “merely present” but were actual parties to the murder. See Sands, supra; Tho Van Huynh v. State, 257 Ga. 375 (359 SE2d 667) (1987). Accordingly, there was sufficient evidence for the juvenile court to find beyond a reasonable doubt that W. C. J. and E. R. committed the delinquent acts of murder and armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. W. C. J. also enumerates as error the juvenile court’s reliance on E. N.’s testimony regarding the statements W. C. J. allegedly made to Green prior to the shooting. W. C. J. contends this uncorroborated testimony of an accomplice is the only evidence which implicated him as a party to the shooting.

“ ‘In Georgia the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty.’ [Cit.] However, slight corroboration of the accomplice’s testimony is sufficient. [Cit.]” McCoy v. State, 185 Ga. App. 221, 222 (2) (363 SE2d 628) (1987). In the instant case, E. N.’s testimony was sufficiently corroborated by W. C. J. and E. R.’s custodial statements which were introduced at trial. Moreover, contrary to W. C. J.’s contention, his alleged statements to Green were not the sole evidence linking him to the shooting.

Decided September 6, 1995.

B. C. Mathis, Jr., Craig S. Mathis, for appellant (case no. A95A0882).

David Perry, for appellant (case no. A95A1089).

Watson, Spence, Lowe & Chambless, Stephen S. Goss, David H. J. Martyn, Baxter C. Howell, Jr., for appellee.

Judgments affirmed.

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


text:
    A95A0943.
    THOMAS v. THE STATE.
    (462 SE2d 166)
   Ruffin, Judge.

A jury convicted Jacqueline Thomas of possession of cocaine in violation of the Georgia Controlled Substances Act. Thomas appeals from her conviction and sentence of 15 years and the denial of her motion for new trial. We affirm.

During the State’s case, the court allowed a five-minute recess and excused the jury. After the jury returned and was seated, the State tendered an exhibit into evidence and Thomas’s attorney began cross-examining a prosecution witness. Approximately five minutes into the cross-examination, an absent juror walked into the courtroom and sat in the jury box. Upon noticing the juror’s return, the trial judge held an unrecorded bench conference. After the bench conference, the trial judge proposed that both parties start over from the recess. Both parties agreed with the proposal, the State reintroduced its exhibit, and Thomas’s attorney started his cross-examination from the beginning.

1. In her first enumeration of error, Thomas contends the trial court erred in allowing the absent juror to deliberate even though an alternate juror was present and available. However, Thomas never requested that the juror be replaced; rather, Thomas expressly agreed to the remedial action taken by the trial judge. If error, it is a self-ordained error of marginal consequence, sans harm. “ ‘A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ [Cit.]” Ingram v. State, 211 Ga. App. 252, 254-255 (4) (438 SE2d 708) (1993). See also Griner v. State, 192 Ga. App. 283 (2) (384 SE2d 398) (1989) (defendant’s attorney failed to request further remedial action after trial judge found juror sleeping). Because Thomas agreed with the remedial action taken, this enumeration is without merit.

Decided September 6, 1995.

Robert L. Waller III, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

2. Thomas also asserts the trial court erred in considering inadmissible evidence at her presentence hearing. The record shows that at the hearing, the State sought to introduce evidence of prior convictions. Thomas’s attorney objected on the ground that there was no evidence that Thomas was represented by counsel when convicted of the prior offenses. After a brief colloquy, the State withdrew the exhibits and stated it would not attempt to tender them into evidence. The trial judge stated that although he figured they were “some sort of convictions for something[,]” that was all he knew about the evidence. Thomas argued that because the judge knew of the convictions, sentencing was prejudiced, and she requested that another judge impose the sentence. The trial judge reiterated that he did not know what the prior convictions were for, stated that he would not give them “any weight or credit,” denied Thomas’s request, and after argument by both parties, imposed the sentence.

“We find no error in the sentencing. The sentence rendered was within statutory limits for the offense and was within the discretion of the trial judge.” Hughes v. State, 161 Ga. App. 824, 825 (6) (288 SE2d 916) (1982). Even if Thomas’s prior convictions were obtained without benefit of counsel, “there is no indication in the record that the judge relied upon such evidence in imposing sentence. We will not presume that the trial judge considered such evidence and passed an infected sentence in the absence of a showing that the trial judge was clearly prejudiced by such evidence. [Cits.]” Id. Because there is no presumption of impropriety, and Thomas has shown nothing that would call the sentence into question, this enumeration is without merit. Id.

Judgment affirmed.

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


text:
    A95A1110.
    CHILDERS v. THE STATE.
    (462 SE2d 412)
   Ruffin, Judge.

Raymond Childers was tried before a jury and convicted of manufacturing marijuana in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence following the denial of his motion for new trial. We affirm.

Viewed in a light to support the verdict, the evidence shows that as a part of the Governor’s Task Force on Drug Suppression, officers from various law enforcement and other state agencies conducted aerial and ground reconnaissance in Pickens County. While flying approximately 500-600 feet from the ground, a helicopter pilot, with four years’ experience on the task force, spotted suspected marijuana growing “a short distance” from a mobile home and notified the ground crew. The pilot directed them to a pile of trash behind the mobile home, behind which there was a “well used path” leading to the marijuana patch. An agent with the Forsyth, Pickens and Jasper Drug Task Force and member of the ground crew testified that he knew Childers and knew that the driveway to which they were directed led to Childers’ mobile home.

The ground crew discovered 64 plants growing in plastic buckets approximately 40 feet from debris at the end of a well-traveled path through thick brush. The debris was situated on the edge of the yard, and the parties stipulated that the buckets were not located on Childers’ property. But the mobile home was visible from the marijuana patch, which was approximately 70 feet away. A sample taken from the plants tested positive for marijuana. Childers and his wife were indicted and tried together for manufacturing marijuana. When the jury reached a verdict as to Mr. Childers, the State entered a nolle prosequi on the case against Mrs. Childers.

1. Childers contends the circumstantial evidence did not support the guilty verdict. He argues that the State’s reliance on the “beaten path” doctrine was misplaced because there was no evidence tying the marijuana patch to him and the evidence showed others had equal access to the marijuana.

“ ‘(T)he “beaten path” doctrine . . . allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond reasonable doubt that the primary resident of that house owned or had control over the contraband. (Cits.)’ [Cit.]” Blitch v. State, 188 Ga. App. 487, 488-489 (373 SE2d 227) (1988). “The fact that contraband is found on property adjacent to the defendant will not preclude conviction for possession of such contraband. [Cits.]” Mason v. State, 146 Ga. App. 557, 559 (5) (247 SE2d 118) (1978). Contrary to Childers’ contention, to support a conviction, it was not essential that there be evidence linking him to the marijuana in addition to evidence of the relatively short well-beaten path from his property to the contraband, particularly when there was no evidence that others outside his immediate household had equal opportunity to commit the crime. See Parker v. State, 118 Ga. App. 837 (166 SE2d 41) (1968).

Childers argues that the facts in the instant case are closely akin to the facts discussed in Shreve v. State, 172 Ga. App. 190 (322 SE2d 362) (1984), where we applied the equal access rule and reversed the conviction for possession of marijuana because the evidence showed that a number of other persons were living or had personal property in close proximity to the contraband and exercised as much control over the premises as the defendant. See id. at 191-192. “It is true that ‘ “(m)erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Cit.)’ [Cit.]” Blitch, supra at 488. However, Childers has not cited any evidence, nor did our review of the record reveal any, connecting Childers’ neighbors to his property, the debris or the marijuana plants.

Moreover, “it was undisputed that [Childers] was the owner or [lessee] of the [mobile home], raising a rebuttable presumption that the [marijuana was] his. [Cit.]” Fain v. State, 211 Ga. App. 399, 401 (1) (439 SE2d 64) (1993). “[Childers’] wife was the only other adult who was shown to have access to the [mobile home]. It is clear, however, that the evidence that [Childers’] wife had access to the premises does not demand a finding that the presumption as against [Childers] had been rebutted. The presumption as against the owner or lessee is only rebutted by evidence that persons other than the defendant and members of his immediate household had equal opportunity to commit the crime. Since [Childers’] wife was a member of [his] immediate household, it follows that evidence of her access would not be sufficient to rebut, as a matter of law, the initial presumption which arose against [Childers] and that such evidence would not demand [his] acquittal under the equal access rule. Instead, the totality of the evidence was such as to be inculpatory of [Childers’] wife without being exculpatory of [Childers] because the jury was authorized to find that they had shared non-exclusive and joint possession of the [marijuana plants]. . . .” (Citations and punctuation omitted.) Mobley v. State, 190 Ga. App. 771, 772-773 (1) (380 SE2d 290) (1989).

“There is no requirement that the State must in every case prove that contraband was in the exclusive possession of one who is otherwise shown to be the owner or lessee of the premises. While evidence that the defendant-owner or lessee shared the premises with another does not demand a conviction, it may nevertheless authorize the jury, as the trior of fact, to find that the defendant was in at least joint possession of the contraband. In the present case, the presumption that arose against [Childers] as the owner or lessee of the premises was not rebutted as a matter of law and ‘(t)he jury was authorized to find that [he] had at least joint possession of the [marijuana]. (Cits.)’ [Cit.] ” Id. at 773. Furthermore, Childers erroneously concluded that the jury expressed reasonable doubt as to his wife’s guilt; therefore, his conviction, based on the same evidence, was not authorized under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The record shows, to the contrary, that the jury never actually rendered a verdict for or against the wife but merely informed the trial court that it had reached a verdict as to Childers but had “some doubt” as to Mrs. Childers and needed clarification to continue deliberating. At that point, the State decided to accept the verdict on Childers and to enter a nolle prosequi in the case against Mrs. Childers. Thus, Childers’ argument is without merit.

Decided September 6, 1995.

Bruce S. Harvey, W. (Pete) C. Whitlock, Jr., W. Sander Callahan, for appellant.

Raymond P. Childers, pro se.

Roger Queen, District Attorney, for appellee.

Based on the foregoing, we find that the evidence was sufficient to enable a rational trier of fact to find Childers guilty of manufacturing marijuana beyond a reasonable doubt. Id.; Parker, supra. Accordingly, the trial court did not err in denying his motion for new trial.

2. Childers enumerates as error the court’s charge on the beaten path doctrine. However, Childers “waived the right to enumerate the jury charge as error when upon inquiry by the trial court he neither objected to the charge as given nor reserved the right to later object. [Cits.]” Williams v. State, 199 Ga. App. 544, 545 (2) (405 SE2d 539) (1991).

Judgment affirmed.

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