text:
    A00A1758.
    MEAD v. THE STATE.
    (542 SE2d 541)
   Blackburn, Presiding Judge.

Following a jury trial, William Larry Mead appeals his conviction for secreting property to defraud another. Mead contends both that the offense of endangering a security interest is, based on the facts of this case, a lesser included offense of secreting property to defraud another and that the trial court erred by denying his written request to charge the jury on endangering a security interest. Because we find, contrary to Mead’s arguments, that endangering a security interest is not a lesser included offense of secreting property to defraud another in this case, we affirm.

Construed in the light most favorable to the verdict, the record shows that, Mead, using an alias, purchased a car from Auto Smith and financed it through Auto Acceptance Corporation. Although Mead lied on several parts of his credit application, his loan application was still accepted. Thereafter, Mead failed to make the required payments on his car loan, and Auto Acceptance attempted to repossess the car. The repossessor went to Mead’s home, and Mead answered the door. Mead told the repossessor, who did not know him, that she had the wrong person and address. The repossessor then looked at a picture of Mead’s driver’s license in her file, realized that Mead had lied to her, and returned to confront him about the car. Mead responded, “you’re not getting the car . . . and nobody else is either.” Then, as the repossessor was leaving, Mead opened his garage, got in the car being sought, and sped away. The car was never recovered.

Mead was subsequently indicted for the felony offense of secreting property to defraud another. During Mead’s trial, he made a written request to charge the jury on the misdemeanor offense of endangering a security interest as a lesser included offense. The trial court denied Mead’s request, and he was convicted for secreting property to defraud Auto Acceptance. Mead now appeals the trial court’s denial of his request to charge.

Pursuant to OCGA § 16-1-6, a defendant may be convicted of an offense which is included in the crime for which he is indicted when:

(1) [the offense] is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) [the offense] differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or a lesser kind of culpability suffices to establish. its commission.

(Punctuation omitted.) Fulton v. State. See also Stephens v. Hopper.

One crime may be a lesser included offense of another as a matter of law or as a matter of fact. On appeal, Mead does not contend that endangering a security interest is a lesser included offense of secreting property to defraud another as a matter of law, but he does contend that it is a lesser included offense in this case as a matter of fact.

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. . . . Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Punctuation and emphasis omitted.) Strickland v. State. See also Haynes v. State.

In the present case, Mead was indicted for secreting property to defraud another, which is accomplished when: “A person . . . knowingly and with intent to defraud another person damages, destroys, or secretes any property of whatever class or character, whether the property of himself or of another person.” OCGA § 16-9-53. Specifically, Mead’s indictment accused him of: “SECRETING PROPERTY TO DEFRAUD ANOTHER [by] knowingly secret [ing] a certain 1990 Cadillac Allante, a motor vehicle, with the intent to defraud Auto Acceptance Corporation.”

Mead asked that the jury be instructed with regard to OCGA § 16-9-51 (a) which provides: “[A] person who destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest with intent to hinder enforcement of that interest shall be guilty of a misdemeanor.” (Emphasis supplied.)

Decided November 15, 2000.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

While Mead’s indictment does allege facts sufficient to establish secreting property to defraud another, it does not allege facts sufficient to establish endangering a security interest. Indeed, nothing in the indictment alleges that the Cadillac was subject to a security interest or that Mead had any intent to endanger that interest.

Because the indictment narrowly charged Mead with secreting a property interest to defraud another and the facts alleged in the indictment are insufficient to establish endangering a security interest, the trial court appropriately denied Mead’s request to charge the jury on the latter crime as a lesser included offense.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Fulton v. State, 232 Ga. App. 898, 899 (503 SE2d 54) (1998).

        Stephens v. Hopper, 241 Ga. 596, 599-600 (247 SE2d 92) (1978).

       Endangering a security interest is not a lesser included offense of secreting property to defraud another as a matter of law. The two crimes are not required to always be proven by the same set of facts. See, e.g., Golden v. State, 233 Ga. App. 703, 704 (2) (a) (505 SE2d 242) (1998). To the contrary, endangering a security interest requires the proof of two additional facts: (1) the existence of a security interest in the property concealed and (2) the defendant’s concealment of the property was intended to hinder the security interest.

        Strickland v. State, 223 Ga. App. 772, 774 (479 SE2d 125) (1996).

        Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) (1982).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A00A1919.
    GORDY v. GORDY.
    (542 SE2d 536)
   Ellington, Judge.

Sheri Lynne Gordy appeals the order of the trial court which gave custody of her two minor children to Jeffrey Todd Gordy and required her to pay child support. Sheri Gordy contends the trial court abused its discretion in modifying child custody without a showing of a change in any material conditions or circumstances and in calculating child support without considering the statutory guidelines. For the reasons which follow, we reverse and remand.

1. Sheri Gordy contends the trial court abused its discretion in modifying child custody in that Jeffrey Gordy did not prove the changes in conditions alleged in his petition and further that the changes alleged were not material changes justifying a change in custody.

When Jeffrey and Sheri Gordy were divorced on August 8, 1996, the divorce decree awarded them joint custody of their two minor children and designated Sheri Gordy “the primary and physical custodian.” The decree gave Jeffrey Gordy visitation rights and required him to pay child support. Three years after their divorce, Jeffrey Gordy sought a change in custody, an award of child support and other relief. After a hearing, the trial court granted his petition and ordered “[s]ole legal and physical custody of the parties’ two minor children ... is vested in [Jeffrey Gordy].”

Georgia law authorizes modification of “a judgment relating to the custody of a minor . . . based upon a showing of a change in any material conditions or circumstances of a party or the minor.” OCGA § 19-9-1 (b).

In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. Ordinarily, the trial court should favor the parent having such a right. What the court must affirmatively find [in order to modify custody] is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare.

(Citations and punctuation omitted; emphasis supplied.) Tenney v. Tenney, 235 Ga. App. 128, 129 (1) (508 SE2d 487) (1998).

In this case, the trial court did not make an explicit finding that a change in material conditions or circumstances of the Gordys or their children warranted a change in custody. At the hearing, the trial court’s only explanation of its forthcoming order was the following: “It’s a very hard case. ... I find that in the best interest of the children, they should be with their father.” In their briefs, both parties make certain assumptions about the factual findings underlying the trial court’s modification of custody, based on the content of Jeffrey Gord/s petition and the evidence presented at the hearing. But on the record the trial court did not state that it found that a change in material conditions or circumstances justified a change in custody, nor did the court identify any specific factual findings supporting that legal conclusion.

This Court is mindful that “the Solomonic task” of assigning the custody of children lies “squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” Arp v. Hammonds, 200 Ga. App. 715, 717 (409 SE2d 275) (1991). We are also mindful, however, that where a judgment of a trial court deprives a litigant of a prima facie right, that litigant has a right to a meaningful appellate review. See Grantham v. Grantham, 269 Ga. 413, 414 (1) (499 SE2d 67) (1998); In the Interest of C. T., 197 Ga. App. 300, 302 (3) (398 SE2d 286) (1990). “Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion.” Ormandy v. Odom, 217 Ga. App. 780, 781 (1) (459 SE2d 439) (1995). Without an explicit statement specifying the factual bases for the trial court’s implicit conclusion that a change in material conditions or circumstances justified a change in custody in this case, this Court is not in a position to evaluate whether the trial court acted within the limits of its discretion. Accordingly, this case is remanded to the trial court for the entry of findings of fact.

Decided November 15, 2000.

Hirsch, Partin, Grogan & Grogan, John P. Partin, Lynn L. Grogan, for appellant.

Berry & Shelnutt, Edward F. Berry, for appellee.

2. Gordy contends the trial court abused its discretion in calculating child support without considering evidence of the factors specified in the statutory guidelines. OCGA § 19-6-15 (b) (5) provides: “The amount of the obligor’s child support obligation shall be determined by multiplying the obligor’s gross income per pay period by a percentage based on the number of children for whom child support is being determined.” Subsection (c) provides that the court may vary the final award of child support, up or down, from the percentage range “upon a written finding that the presence of one or more of [listed] special circumstances makes the presumptive amount of support either excessive or inadequate.” (Emphasis supplied.) OCGA § 19-6-15 (c). “The Child Support Guidelines laid down in OCGA § 19-6-15 (b) and (c) are mandatory and must be considered by any trier of fact setting the amount of child support.” Franz v. Franz, 268 Ga. 465 (1) (490 SE2d 377) (1997).

In this case, the trial court ordered Sheri Gordy to pay child support without determining her gross income as required by statute. We therefore vacate the award of child support and direct the trial court to calculate child support as provided by the guidelines set forth in OCGA § 19-6-15. Ganny v. Ganny, 238 Ga. App. 123, 127 (6) (518 SE2d 148) (1999).

Judgment reversed and case remanded.

Andrews, P. J., and Ruffin, J., concur.


author: Johnson, Chief Judge.

text:
    A00A2437.
    CYPRESS COMPANIES et al. v. BROWN.
    (542 SE2d 544)
   Johnson, Chief Judge.

In this appeal, Cypress Companies (“Cypress”) and Safeco Insurance Company of America (“Safeco”) contend that an erroneous theory of law was applied which resulted in Cypress being improperly compelled to pay workers’ compensation benefits to its injured employee, Mary Jean Brown. Cypress and Safeco assert that the appellate division of the State Board of Workers’ Compensation misapplied the “two-insurer” principle to the underlying facts or, in the alternative, failed to follow the “original injury” principle within the two-insurer line of cases. After reviewing the controlling law, we find no error and affirm.

When construed in a light most favorable to Brown, the party prevailing below, the evidence establishes the following facts. Brown worked as a manager for different owners of Denny’s Restaurants for nearly 17 years. On July 20, 1997, while carrying a tub of dishes, the floor beneath Brown suddenly caved in and Brown’s right leg became wedged in some drain pipes. Nearly immediately, Brown experienced pain and swelling in her right knee. She obtained medical treatment at Howell Industrial Clinic. DenAmerica Corporation (“DenAmerica”), the restaurant owner and Brown’s employer, paid for Brown’s treatment. Brown’s x-ray results were normal, and the clinic released her to return to regular duty work. Brown did not miss any time from work, nor did she seek income benefits.

About ten days later, DenAmerica sold the restaurant to Cypress. Cypress hired Brown as general manager, and Brown continued to work for the new owner performing virtually the same job duties. As general manager, she was required to work five 12-hour shifts per week. Over the next several months, the condition of her right knee worsened. By January 1998, Brown needed crutches to walk and was diagnosed as having a severe case of osteoarthritis. Brown ceased working on April 3, 1998, due to the heightened knee pain, and, on April 4, 1998, Dr. Jon E. Minter performed arthroscopic surgery. Brown returned to work for Cypress on June 5, 1998, but later underwent a right knee replacement procedure in November 1998, returning to work on January 29, 1999.

After the April 4, 1998 surgery, Brown sought medical and income benefits. While initially accepting Brown’s claim as compensable, DenAmerica and its insurer, American Protection Insurance Company, decided to controvert it. They urged that Cypress, the employer at the time of the surgery, not DenAmerica, was responsible for providing workers’ compensation benefits to Brown. At DenAmerica’s behest, Cypress and Safeco were added as parties.

After a hearing, the administrative law judge (“ALJ”) entered detailed findings. Fully recognizing the underlying dispute between the two employers and their respective insurers, the ALJ found that the greater weight of the evidence established that Brown sustained a nondisabling initial job-related injury on July 20, 1997, but then subsequently “suffered a fictional new accident on April 3, 1998.” Observing that Brown’s testimony seemed somewhat “inconsistent and confusing,” the ALJ relied primarily upon Brown’s medical records. Citing various medical records from four physicians, as well as the testimony of Brown’s surgeon, the ALJ determined that the evidence established that the “pain in her knee appeared or worsened dramatically between October 1997 and January 1998.” Based on a comprehensive review of Brown’s medical records, the ALJ determined that “Brown sustained a fictional new accident on April 3, 1998 when she was forced to cease working as a result of her knee problems.” The ALJ found Cypress responsible for benefits covering both the April and November surgeries because Cypress was the employer at the time of the fictional new accident. Cypress and its insurer, Safeco, were directed to reimburse DenAmerica for the amounts expended by DenAmerica from April 3, 1998 through and including June 5, 1998.

The appellate division of the State Board embraced the findings of the ALJ and adopted that award as its own. Cypress and Safeco then sought review by the superior court, where the case was affirmed by operation of law. This appeal followed.

Cypress contends that the award must be reversed because it is based upon an erroneous legal theory. Cypress claims that by failing to recognize that the facts established a two-employer case rather than a two-insurer case, the appellate division applied the wrong body of law. Cypress argues that when the proper legal analysis is applied to the underlying facts, DenAmerica, the employer at the time of the July 1997 work incident, is responsible for Brown’s original injury and all subsequent knee problems. We disagree.

Whether the underlying facts in a workers’ compensation case establish an accident, a change in condition, or a fictional new accident is a question of fact for the ALJ to determine. When the record contains any evidence to support that factual finding, reviewing courts are bound by the any evidence rule. Thus, absent a legal error, when any evidence supports the findings of the ALJ and appellate division, those findings must be affirmed.

In Central State Hosp. v. James, this Court distinguished between those disabilities resulting from a change in condition and those resulting from a new accident. When a claimant sustains an injury, is awarded compensation, returns to his normal and ordinary job duties, but then as a result of “the wear and tear of ordinary life and the activity connected with performing his normal duties,” his condition gradually deteriorates to where he cannot continue to perform his ordinary work, such facts constitute a change in condition and not a new accident. On the other hand, when a claimant is injured on the job but continues, without an agreement or award, to perform the duties of his employment until forced to cease work because of a gradual worsening of his condition that is at least partly attributable to his physical activity in continuing to work, such facts constitute a “new accident.” A new accident may result either from a gradual worsening of a pre-existing injury due to aggravation by work duties or from the occurrence of a specific job-related incident.

In this case, it is undisputed that no agreement or award had been entered as a result of the July 1997 incident. So these facts do not constitute a disability resulting from a change in condition. Therefore, Cypress’s reliance upon change in condition cases involving two employers is misplaced. Since the change in condition analysis has no application, the two-employer cases cited by Cypress are not pertinent. Despite Cypress’s argument to the contrary, an initial claim for compensation based upon a gradual worsening of an employee’s pre-existing and previously uncompensated work-related injury may be classified as a “new accident.” The date of the new accident is the date that the injury manifested itself, that is, the date the claimant was forced to cease her employment.

Under strikingly similar facts set forth in Guarantee Mut. Ins. Co. v. Wade Investments, this Court also affirmed the decision of the appellate division. In Wade Investments, an employee began experiencing symptoms of bilateral carpal tunnel syndrome but declined treatment and continued working. No income benefits were paid. About five months later, the employee’s condition had worsened to the point where she had to quit working altogether. This Court upheld a finding that the employee had sustained a new accident and injury as of the date when she became unable to continue to work, the date the disability manifested itself.

Like the claimant in Wade Investments, Brown did not receive income benefits and continued to work, performing many of the same physical tasks as before, including lifting, carrying, walking, bending, standing, washing dishes, and, occasionally, helping with cooking. Regardless of whether Brown’s job duties with Cypress were somehow less strenuous, the condition of Brown’s knee indisputably continued to worsen until, on April 3, 1998, she had to stop working and undergo surgery. Because the record contains evidence to support the finding of a fictional new accident, the appellate division’s award must be affirmed. As the employer on the date that Brown was forced to cease working, Cypress incurred the obligation to pay for the workers’ compensation benefits.

Decided November 15, 2000.

Gorby, Reeves, Peters & Burns, Michael S. Reeves, Christine A. Carson, for appellants.

Swift, Currie, McGhee & Pliers, Kenneth A. David, Robert R. Potter, Marci R. Rosenberg, Jonathan M. Rolnick, for appellee.

Judgment affirmed.

Ellington and Phipps, JJ, concur.

       See St. Joseph’s Hosp. v. Cope, 225 Ga. App. 781, 783 (1) (484 SE2d 727) (1997).

       See Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995) (ALJ and appellate division may credit physician’s testimony over that of claimant).

       See OCGA § 34-9-105 (b).

       See generally Harrell v. City of Albany Police Dept., 219 Ga. App. 810, 812 (2) (466 SE2d 682) (1996).

        Columbus Intermediate Care Home v. Johnston, 196 Ga. App. 516, 518 (2) (396 SE2d 268) (1990); Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988).

        U. S. Fidelity &c. Co. v. Reynolds, 146 Ga. App. 615, 616 (2) (247 SE2d 199) (1978).

       See Cox, supra at 398.

       147 Ga. App. 308, 309-310 (1) (248 SE2d 678) (1978).

       Id. at 309-310 (1) (c).

       Id. at 309 (1) (a); see Slattery Assoc. v. Hufstetler, 161 Ga. App. 389, 391 (288 SE2d 654) (1982).

        Paideia School v. Geiger, 192 Ga. App. 723, 724 (2) (386 SE2d 381) (1989).

       See Zurich Ins. Co. v. Cheshire, 178 Ga. App. 539, 540-541 (1) (343 SE2d 753) (1986).

       See, e.g., Lockheed Missiles &c. Co. v. Bobchak, 194 Ga. App. 156, 158 (1) (390 SE2d 82) (1990); Hampton v. Howard Baer, Inc., 172 Ga. App. 513, 514 (1) (323 SE2d 701) (1984); Peachtree Plaza Hotel v. Haynes, 163 Ga. App. 831 (296 SE2d 147) (1982).

        Dairymen, Inc. v. Wood, 162 Ga. App. 430, 432 (2) (291 SE2d 763) (1982).

        Cheshire, supra at 541 (1).

       232 Ga. App. 328 (499 SE2d 925) (1998).

       See id.

       Id. at 329.

       See Cheshire, supra at 541 (2).

       See Johnston, supra at 518 (2).


author: Andrews, Presiding Judge.

text:
    A00A1140.
    THE STATE v. TOWE et al.
    (541 SE2d 423)
   Andrews, Presiding Judge.

The State appeals from the trial court’s grant of the motion to suppress of Phillip and Doris Towe. Phillip Towe was charged with four counts of possession of a firearm by a convicted felon involving the following weapons: a Ruger .22 long rifle caliber Mark II target semi-automatic handgun (Count 3); a Model 60 Ruger Marlin .22 long rifle caliber semi-automatic rifle (Count 4); a Savage 270 caliber, Model 110 rifle (Count 5); and a Model SB 12 gauge shotgun (Count 6). He was also charged with one count of making a false statement to Department of Natural Resources officers Seitz and Chastain and as a recidivist. His wife, Doris Towe, was charged with making a false statement to the officers.

In determining probable cause for a search warrant, the magistrate is merely to “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before (the magistrate), including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997), quoting State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The trial court will then examine the issue, and its factual findings regarding probable cause for issuance of the warrant will be upheld unless clearly erroneous. Bryant v. State, 268 Ga. 616, 618 (6) (491 SE2d 320) (1997); Williams v. State, 267 Ga. 771 (4) (482 SE2d 288) (1997). Ultimately, this Court’s role on review is to “determine if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search (warrant).” DeYoung at 787 (7). See also Grier v. State, 266 Ga. 170, 172 (2) (b) (465 SE2d 655) (1996). And a reviewing court is to give substantial deference to the magistrate’s decision to issue a search warrant after finding probable cause. Id.

(Footnote omitted.) Abraha v. State, 271 Ga. 309, 311 (1) (518 SE2d 894) (1999).

When a search warrant has been obtained, any challenger of the warrant has the burden of proving its invalidity. OCGA § 17-5-30 (a); State v. Davis, 217 Ga. App. 225, 227 (457 SE2d 194) (1995), aff’d, Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996).

The trial court concluded, as urged by Phillip and Doris Towe, that the affidavit filed in support of the application for search warrant was deficient in that it “did not sufficiently show probable cause in that the magistrate could not properly determine the veracity of the informants; and (2) the information contained in the affidavit was stale.”

DNR Ranger Seitz prepared the affidavit with the input of DNR Corporal Chastain. It stated that, on the evening of November 21, 1998, Seitz received a complaint from a person he described as a “concerned citizen” that an eight-point buck had been shot off of Old Northcut Road at approximately 7:00 p.m. This person had taken the deer to his residence and told Seitz that he would watch to see if the perpetrators returned for the deer. The next morning, Seitz was called by this man at 9:00 a.m. and advised that two occupants in a red Nissan two-wheel drive pickup truck, license plate 5755SN, had driven back and forth where the deer had been shot the previous evening. One person got out of the vehicle in the area. A description of the driver was provided by the man, and he told Seitz he was “positive that this vehicle was the same vehicle that was present when the deer was shot the night before.”

Seitz met with the man at approximately 10:00 a.m. on November 22 and picked up the deer, which had a single bullet hole in it. Seitz then drove back through Blue Ridge and observed a red Nissan pickup truck bearing the same license plate number parked at a gas station around 11:00 a.m. Although there was no one with the truck, Seitz determined that the motor was still warm. Seitz then proceeded to another location where he ran the truck’s license plate and obtained the owner’s name and address. Returning to Blue Ridge an hour later, Seitz saw a subject matching the description of the driver of the Nissan truck sitting in Nathan Tipton’s pickup truck with Tip-ton, parked next to the Nissan truck. Seitz then obtained information regarding the residence description and location of the owner of the Nissan truck. At that address, he found the Nissan truck in the driveway. Seitz spoke to David Towe (son of Phillip and Doris Towe) who stated the truck belonged to him and he had not allowed anyone else to drive it that day. David Towe also stated that he had not been to Gilmer County (where the deer was shot) on November 21 or 22.

Seitz performed a necropsy on the deer and retrieved a .22 caliber bullet from its lung. Only one bullet hole was found on the deer.

On November 27, 1998, Seitz, Corporal Chastain and another ranger interviewed David Towe and Doris Towe. David Towe’s statements were very evasive and differed from his previous interview of November 22. Towe was offered and agreed to take a polygraph examination, but did not appear for two scheduled tests. During that interview, David Towe acknowledged that he owned .22 caliber weapons.

Two other individuals advised Corporal Chastain that, on the evening of November 21, 1998, they had been driving on Old Northcut Road and had seen a large buck deer standing under a security light near where the deer was later shot. They then observed a vehicle matching the description of David Towe’s on Old Northcut Road.

Believing he had probable cause that David Towe had violated OCGA § 27-3-2 (hunting game animals at night), a misdemeanor, Ranger Seitz presented the affidavit to a magistrate and, on December 10, 1998, obtained a search warrant for two described residences seeking .22 caliber firearms. Phillip, Doris, and David Towe were in the process of moving from one residence to another in the same area, and both premises were to be searched. Upon arriving to execute the warrant on December 13, 1998, officers asked Phillip and Doris Towe if there were any firearms in the residence, and both denied there were. Upon searching, the weapons specified in the indictment were found. While Doris Towe claimed the weapons were hers, she was unable, without asking Phillip Towe, to give officers any information concerning them. Additional firearms claimed by David Towe were found at the other residence.

1. In focusing solely on the “veracity” of the persons supplying information to the DNR officers concerning the illegal killing of the deer, the superior court, in reviewing the magistrate’s decision, lost sight of the fact that, whether an individual supplying information of a possible crime is a “concerned citizen” to whom a presumption of credibility is accorded or an “anonymous informant,” the information provided by either may support the issuance of a warrant when that information is corroborated by further investigation by officers. Brown v. State, 244 Ga. App. 440, 441 (1) (535 SE2d 785) (2000) (failure to inform magistrate of criminal background and pending charges of informant not fatal); Gordon v. State, 242 Ga. App. 50, 51 (528 SE2d 838) (2000) (detail of information supplied and corroboration by officers sufficient to overcome lack of showing that anonymous tipster was reliable); Galvan v. State, 240 Ga. App. 608, 609 (524 SE2d 297) (1999). Such corroboration reduces the “ ‘ “chances of a reckless or prevaricating tale.” (Cit.)’ Thomas v. State, 173 Ga. App. 481, 483 (1) (326 SE2d 840) (1985); see Kessler v. State, 221 Ga. App. 368, 370 (471 SE2d 313) (1996) (proof of veracity no longer an absolute requirement).” Welch v. State, 231 Ga. App. 74, 75 (498 SE2d 555) (1998).

Such an approach also comports with the “deferential standard of review [which] is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. . . .” State v. Henderson, 271 Ga. 264, 270 (4) (517 SE2d 61) (1999).

It is difficult to imagine how much more corroboration of the illegal killing of a deer and the probable identity of a suspect the officers here could have obtained, absent a confession.

2. The trial court also found that the information was stale, precluding a finding that the .22 caliber weapons were still present in the Towes’ residences at the time of the issuance of the warrant. As set out above, the last information was received by Ranger Seitz on November 27, 1998, and the warrant was applied for on December 10,1998. The trial court concluded that this 13-day gap rendered the information stale and precluded the issuing of a warrant.

In determining if information is “stale,” the proper procedure is “ ‘to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.’ [Cits.]” Carruthers v. State, 272 Ga. 306, 313 (5) (528 SE2d 217) (2000).

Decided November 1, 2000

Reconsideration denied November 16, 2000

Roger G. Queen, District Attorney, William W. Fincher III, Assistant District Attorney, for appellant.

Ray & McKinney, Michael K. McKinney, William L. Reilly, for appellees.

Initially, the mere passage of time does not equate with staleness. See Carruthers, supra (passage of six months). Also, “[a]n officer’s inference that items sought will be at the place to be searched requires no more than ‘a fair presumption’ to be reasonable. Murphy v. State, 238 Ga. 725, 727-728 (234 SE2d 911) (1977).” McClain v. State, 267 Ga. 378, 388 (11) (477 SE2d 814) (1996). As concluded in Reeves v. State, 197 Ga. App. 107, 108 (1) (397 SE2d 601) (1990), regarding knives,

[t]he [firearms] were non-perishable, non-consumable items which were legally possessed and of continuing utility to defendant. The lapse of time did not prevent a conclusion that there was probable cause to believe that such permanent possessions would be found in defendant’s home. [Cit.]

Reviewing the affidavit in its entirety, we conclude that the magistrate had a substantial basis for concluding that probable cause existed.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

        Morris v. State, 239 Ga. App. 100, 102 (1) (b) (520 SE2d 485) (1999); State v. Davis, supra at 227.


author: Pope, Presiding Judge.

text:
    A00A1055.
    350 MARIETTA, INC. et al. v. REARDON et al.
    (542 SE2d 552)
   Pope, Presiding Judge.

We granted the interlocutory application in this case to determine whether the superior court erred in transferring this case from Fulton to DeKalb County. For the following reasons, we conclude that the court erroneously transferred the case; thus, we reverse the court’s denial of the motion for reconsideration regarding the motion to transfer. Nevertheless, we emphasize that in reaching this decision, we make no determination regarding the underlying substance of this action.

The instant dispute arose out of a receivership action which was initiated in DeKalb County Superior Court. The record shows that on May 20, 1994, and on April 3, 1996, the DeKalb court entered an order appointing a receiver for various businesses, including those owned by the plaintiffs. The DeKalb court dissolved the receivership, and the receivers filed their final reports and accountings on July 29, 1996. The court discharged the receiver and closed the receivership action on March 21, 1997.

Throughout the course of the receivership action, which involved at least twenty-nine defendants, the court appointed three different receivers. Initially, Andrew Ekonomou was appointed receiver; Kenneth Reardon was then appointed to succeed him; and finally, the court appointed Robert Hooks to replace Reardon.

In September 1997, before filing the action in this case, Anthony’s Pizza & Pasta, Inc., Grace Anthony on behalf of that corporation, 350 Marietta, Inc., and Michael Anthony, corporations and individuals which had been involved in the receivership action, filed a motion for application for leave to sue the receivers in DeKalb Superior Court. The DeKalb Superior Court denied the motion for leave to sue the receivers. In doing so, the court stated that as of April 7, 1997, it had fully discharged the receiver and had ordered the case closed and that therefore the motion was moot.

In February 1998, 350 Marietta, Michael Anthony, Anthony’s Pizza & Pasta, and Grace Anthony (“the plaintiffs”), the four entities which had unsuccessfully moved the DeKalb court to allow an action against the receivers, brought this action. The plaintiffs sued Rear-don and Hooks, both individually and in their official capacity as appointed receivers, and Bo Mullins, as agent for the receivers, (“the defendants”), alleging that the receivers had breached their duties as receivers in various ways. In addition to claims for breach of fiduciary duty, the plaintiffs claimed that defendants had been negligent and had acted in bad faith during the receivership. Plaintiffs claimed that during the period the businesses were under receivership, operating losses totaled more than $361,000.

Defendants filed a counterclaim, alleging that plaintiffs harassed and intimidated plaintiffs’ employees and tortiously interfered with their ability to operate the businesses during the receivership. Defendants then filed a motion to dismiss the action or, alternatively, to transfer the action to DeKalb County. Defendants argued that because the lawsuit arose from the same subject matter as the receivership action, DeKalb County was the proper venue for the action. The superior court granted the motion to transfer and denied the plaintiffs’ subsequent motion for reconsideration. This court granted plaintiffs’ application for interlocutory review of the denial of the motion to reconsider.

The following facts concerning the issue of venue are undisputed: defendant Hooks is a resident of Fulton County; defendants Reardon and Mullins are residents of Clayton County.

Here, plaintiffs argue that the transfer order is erroneous because it transfers the case to a county in which no defendant resides, contrary to the provisions of the state constitution. They also argue that there was no authority for transferring the case under OCGA § 9-10-50. As they did in the court below, defendants cite the provisions regarding the exclusive jurisdiction of the receivership court and argue that because DeKalb County had exclusive jurisdiction over the receivership, it was the only proper venue for this action.

We conclude that the court erred in transferring the case to DeKalb County and that therefore it erred in denying the motion for reconsideration of this action. While it is true that the statutory framework regarding receiverships contemplates that a single court maintain exclusive jurisdiction of the receivership during its pendency, in this case the receivership was closed when the complaint was filed, and the plaintiffs sued the receivers both in their individual and official capacities. Thus, the provisions of OCGA §§ 14-2-1432 and 9-8-8 (a) were inapplicable.

Despite the statutory framework, this case is not one arising during the receivership. In fact, as stated above, the DeKalb County court refused to allow plaintiffs to pursue a motion for application for leave to sue the receivers in their official capacity in DeKalb Superior Court. In doing so, the court stated that as of April 7, 1997, it had fully discharged the receiver and had ordered the case closed and that therefore the motion was moot. Accordingly, any suit which the plaintiffs attempt to bring here is governed by ordinary rules of venue for suits alleging breach of fiduciary duty, negligence, and bad faith.

The Georgia Constitution provides: “suits against joint obligors, joint tort-feasors, joint promisors, copartners, or joint trespassers residing in different counties may be tried in either county.” Ga. Const. of 1983, Art. VI, Sec. II, Par. IV. OCGA § 9-10-31 reiterates that venue is proper in any county in which “one or more of the defendants reside.” Accordingly, once the receivership had ended, a subsequent suit was proper only in the residence of the defendants. Compare Roberts v. Fed. Land Bank of Columbia, 180 Ga. 832 (2) (181 SE 180) (1935) (“[t]he court by the continuing receivership had jurisdiction to make a final disposition of the property. . . .”). See generally Sanders v. Culpepper, 226 Ga. 598 (176 SE2d 83) (1970) (bankruptcy trustee of insolvent corporation seeking to recover unpaid stock subscriptions brought in county of a defendant’s residence).

Decided November 16, 2000.

David L. Miller, Sharon M. Lewonski, for appellants.

Swift, Currie, McGhee & Hiers, Mary D. Owens, Kenneth L. Baer, for appellees.

We also reject any argument that the transfer was proper under OCGA § 9-10-50 (b), which the court cited in its order transferring the case because the provisions of that section are inapplicable here.

The procedural posture of the case is such that we are addressing only the venue question. We express no opinion as to whether plaintiffs can pursue this action in light of the dissolution of the receivership action and the DeKalb court’s denial of plaintiffs’ motion for permission to pursue the action. With respect to these issues, see Fibertex, Inc. v. Caldwell, 236 Ga. 136, 137 (223 SE2d 111) (1976); Stephens v. Augusta Tel. &c. Co., 120 Ga. 1082 (48 SE 433) (1904); Hollifield v. Wrightsville &c. R. Co., 99 Ga. 365 (27 SE 715) (1896); Becknell v. McConnell, 142 Ga. App. 567 (236 SE2d 546) (1977); Bugg v. Lang, 35 Ga. App. 704 (134 SE 623) (1926).

Judgment reversed.

Miller and Mikell, JJ., concur.

       Defendants claim that several other lawsuits involving the same receivership are pending in Fulton County.

       OCGA § 14-2-1432 pertaining to judicial dissolution provides: “[t]he court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all its property wherever located.” OCGA § 14-2-1431 sets forth the venue provisions for judicial dissolution proceedings. It is not clear from the record here that the provisions of these statutes were involved.

       That statute provides: “[t]he receiver is an officer and servant of the court appointing him, is responsible to no other tribunal than the court, and must in all things obey its direction.”

       This statute has been revised with respect to actions filed after July 1, 1999.


text:
    A00A1131.
    BROCK et al. v. SUMTER COUNTY SCHOOL BOARD et al.
    (542 SE2d 547)
   Pope, Presiding Judge.

Wendy Brock and Jimmy Yoemans (hereinafter “Brock”) sued the Sumter County School Board and several individual employees of the County after their seven-year-old daughter, Elizabeth, was killed in an unfortunate accident while she was waiting for the morning school bus. The Sumter County School District was substituted as a party in place of the school board. The trial court granted summary judgment for the school district on the ground of sovereign immunity and granted summary judgment for the individual defendants. This appeal raises the familiar questions of whether the school district waived its sovereign immunity by purchasing motor vehicle liability insurance and whether certain duties of the school district employees were ministerial, meaning that their actions were not protected by official immunity.

Construed in favor of Brock, the facts show that the family lived in a mobile home park located on a dirt, privately owned driveway that intersects Brady Road, a paved, county-owned roadway. Seven-year-old, second grader Elizabeth and the other children were supposed to wait for the bus ten to twenty feet from Brady Road. Only when the bus arrived were the children to cross Brady Road in order to board the bus. The children were instructed to arrive at the bus stop no earlier than five minutes before the scheduled pickup time of 6:55 a.m.

On the morning of March 25, 1997, Elizabeth made the ten-minute walk to the bus stop by herself as usual. She arrived at the bus stop at least four or five minutes before 6:50 a.m. At the same time, Michael Trussell was driving to work on Brady Road. As he rounded a turn he saw children on both sides of the road where the dirt driveway intersects. They were watching a crop-duster airplane that was passing overhead at that moment. Elizabeth was one of the children who had crossed the road. Trussell slowed as he approached, but Elizabeth suddenly ran onto Brady Road and was struck by the truck. There were no adults at the scene. Trussell ran to a nearby house and asked someone to call 911. Sumter County Emergency Medical Services received the 911 call at 6:46 a.m., and paramedics arrived at 6:53 a.m. The bus arrived thereafter.

Although Brock had instructed her daughter not to cross the street before the bus arrived, she had seen Elizabeth do exactly that “a couple of times” during the prior school year and had to warn her not to do so. She also knew that Elizabeth was a very troubled child who had attempted suicide; that she was hyperactive and took Ritalin; that she was only seven years old; that Brady Road was a busy street; and that Elizabeth did not always follow her instructions. For instance, Elizabeth left for the bus stop too early on many occasions despite her mother’s instruction not to. And Brock allowed Elizabeth to make the ten-minute walk from their home to the bus stop by herself on most occasions.

1. The school district moved for and was granted summary judgment on the ground that it was protected by sovereign immunity and had not waived that immunity. Brock contends that the school district waived sovereign immunity in accordance with OCGA § 33-24-51 because it had purchased liability insurance coverage for damages arising by reason of ownership, maintenance, operation, or use of a motor vehicle, namely the school bus.

But “procurement of insurance under this statute does not constitute a waiver of sovereign immunity in regard to damages caused by the [school district’s] negligence not connected with motor vehicles.” Revels v. Tift County, 235 Ga. 333, 335 (4) (219 SE2d 445) (1975). And the party seeking to benefit from the waiver of sovereign immunity has the burden of establishing it. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993), overruled on other grounds, Hedquist v. Merrill Lynch &c., 272 Ga. 209, 211 (1) (528 SE2d 508) (2000).

Although the policy covering the school bus is not in the record, the school district admits there is a policy. Construing the evidence and all inferences therefrom in favor of Brock raises the inference that the school district has purchased the insurance described in OCGA § 33-24-51 (a). Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183, 185 (2) (521 SE2d 78) (1999). But even so, we find no evidence that the incident arose from use of a motor vehicle as provided by the statute.

Brock asserts that the accident involved use of the bus for two reasons. First, she asserts that the driver’s failure to arrive on time constitutes misuse of the bus, and that misuse is a form of use of a vehicle. Brock relies on Lincoln County v. Edmond, 231 Ga. App. 871 (501 SE2d 38) (1998). However, there is absolutely no evidence in the record that the school bus arrived late. The bus was due at 6:55 a.m., and the evidence shows only that it arrived after 6:53 a.m. The bus driver stated that he was on time. Although the bus driver had been late on other occasions, he explained that he was late only if the bus did not start or if it broke down. There is no evidence that either occurred on that morning. It is not reasonable to infer from these facts that the bus was late on the day Elizabeth was killed. Also, the accident occurred about ten minutes before the scheduled stop, and therefore, any delay in the arrival of the bus could not have contributed to the cause of the accident. And, Brock misconstrues Lincoln County v. Edmond. It does not stand for the proposition that failure of a county employee to use his vehicle to arrive somewhere on time constitutes a misuse of that vehicle, but rather, the opposite. Id. at 873 (1).

Second, Brock contends loading and unloading the bus constitute use of a vehicle. It is true that “the loading of school children as well as the unloading thereof is included in the [definition of] ‘use’ of a school bus.” Cawthon v. Waco Fire &c. Ins. Co., 183 Ga. App. 238, 241 (358 SE2d 615) (1987). But, the facts of this case show that the accident did not arise out of loading the bus. This case is controlled by Cawthon and Roberts v. Burke County School Dist., 267 Ga. 665 (482 SE2d 283) (1997). In Cawthon, we held that “independent, voluntary actions taken by a school child cannot, alone, initiate the loading procedure. . . .” Cawthon, 183 Ga. App. at 241. In that case there was an issue of fact as to whether the bus driver was partly responsible for the student crossing the road before the bus had come to a stop. But we held that if the student was not acting in response to the bus driver’s orders, or was acting unreasonably in response to them, then his death while crossing the road would not have occurred within the normal process of loading. Id. at 242. In the present case, the facts are undisputed that Elizabeth crossed the road in contradiction to both the driver’s and her mother’s orders. Thus, her actions did not involve the process of loading the bus and therefore did not involve “use” of the bus.

In Roberts, the Supreme Court, construing an exclusion to a policy, held that a child’s death did not arise out of the use of the school bus where a five-year-old child was dropped off at an unauthorized location and had to cross a busy highway to get home. Roberts, 267 Ga. at 667-668. The child had walked about four-tenths of a mile and the bus had traveled approximately two miles away from the drop-off before the child was struck. Id. at 665. The Court acknowledged that although “use” of the school bus “can reach beyond actual physical contact,” and that it encompasses unloading, the accident was so remote physically and temporarily from when the child disembarked, that the accident did not involve use of the bus. Id. at 667-668.

Here, the bus had not yet arrived, was not in sight, and the fact that Elizabeth was crossing the road was unrelated to the arrival of the bus. There is no evidence that Elizabeth was instructed to cross the road at anytime before the bus had stopped and the driver had given a signal to cross. The bus was too remote from the site of the accident as a matter of law for the accident to be considered as arising out of the use of the bus. Roberts v. Burke County School Dist., 267 Ga. at 668. Compare Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 122-125 (329 SE2d 204) (1985).

2. Brock contends that several county officials were negligent in performing ministerial duties; that therefore they are not entitled to official immunity; and that their negligence caused Elizabeth’s death.

Official immunity protects public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d); Testen v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995). There is no allegation of actual malice here. The distinction between ministerial and discretionary acts is this:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citation and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Compare Brantley v. Dept. of Human Resources, 271 Ga. 679, 680-681 (523 SE2d 571) (1999) (different definition under Georgia Tort Claims Act).

(a) Brock contends that Keith Gary, the school board transportation director, failed to perform a required morning “check-ride” procedure to determine whether there were safety risks present during the morning pickups and that he failed to forward to the school principal and Elizabeth’s parents the bus driver’s report about the alleged dangerous nature of the bus stop.

With regard to the check-ride procedure, Brock cites to no evidence in the record, nor do we find any, of a school board policy requiring him to perform a morning check-ride. The only evidence is that Gary was required to perform annual check-rides and that he never performed one in the morning. Gary denied that he was required to do one in the morning. Rather, the only evidence is that Gary had the discretion to determine when to perform such evaluations and that they were evaluations of the driver, not the children. Therefore, because there was no certain duty to perform a morning check-ride, Gary could not have been negligent in not performing such a nonexistent ministerial duty. There was no waiver of official immunity.

With regard to the bus driver’s report, Brock’s claim is that Gary failed to relay the driver’s report of a dangerous situation at the bus stop, i.e., that her daughter was playing in the street. The evidence shows that Paige Thomas, the driver, discussed with Gary his concern about the number of feet from the road that the students should wait, but not about children running in the road. We find no indication that anyone told Gary that Elizabeth had ever played in the street while waiting for the bus.

Second, Brock does not contend that Gary failed to forward a concern about the location of where the children were to wait. And, even if she had, there is no indication that Gary thought that the location of the waiting area was dangerous. Even if he did, the determination of whether an area is dangerous is certainly a discretionary function because that decision entails examining the facts, reaching a reasoned conclusion, and acting on it in a way not specifically directed. Gary visited the stop and discussed the location of the waiting area with the driver, but because there is no indication that Gary concluded that the location of the stop was dangerous, there can be no breach of any possible duty to report a dangerous situation.

(b) Brock contends that Sylvia Gary, the principal, and Valerie Roberts, the assistant principal, failed to report Elizabeth’s past safety violations to the transportation director and to Elizabeth’s parents and that the bus driver failed to prepare a written report about these violations. Brock contends that each failure was a violation of a ministerial duty.

The only evidence of any safety violations by Elizabeth comes from Thomas’s testimony. He testified that on two or three occasions over about two and a half years he saw Elizabeth on the wrong side of Brady Road as he approached the bus stop in the morning. He stated that he reported each occurrence to the assistant principal and spoke with Elizabeth, but there is an issue of fact as to whether he prepared a written report or spoke to Brock. Roberts admits talking with Thomas about Elizabeth crossing Brady Road. She testified, “Since Mr. Thomas indicated that he had followed up with Elizabeth’s parents, I felt there was no need for any further action.” There is no evidence that Sylvia Gary, the principal, had direct involvement in or personal knowledge of the communications between Thomas and Roberts regarding these incidents. Brock denies that anyone from the school told her that Elizabeth had been improperly crossing the road.

Brock contends that Thomas negligently failed to prepare a required written report regarding Elizabeth running in the road and to send it to the school. She contends the assistant principal failed to send a required written report of the incident to the transportation director and to discuss the matter with Brock. She contends that preparing and sending the reports and communicating with Brock were required ministerial duties. Finally, even though she knew that Elizabeth had improperly crossed the road in the past, she states that if she had received notice from the school of the same thing, “I would have worked with school officials to ensure that my daughter remained on the side of the road while waiting for the school bus, out of harm’s way.”

There is an issue of fact as to whether there were any such definite rules regarding how to report the bus driver’s sighting of Elizabeth improperly crossing the road. Brock has introduced no clear written policies or rules that are on point. Instead, she relies on deposition testimony by Keith Gary and Thomas concerning what they believed their “duties” were or what they were “supposed to” or “should do” in certain situations. Gary, Thomas’s boss, testified that he did not know if Thomas was required to file a written report when students were seen playing in the road. The assistant principal testified that there were no laws, ordinances, policies, rules, or regulations that required her to generate a discipline report or take any further action relating to the report of Elizabeth crossing the street.

However, regardless of whether there is such a policy, supervision of student safety is considered discretionary:

The appellate courts of this state have consistently held that the supervision of student safety is a discretionary function, the proper exercise of which entitles school officials to immunity. See Kelly v. Lewis, 221 Ga. App. 506, 508 (471 SE2d 583) (1996) (student who was attacked by a gang on his way to school alleged that school officials failed to enforce rules governing supervision of arriving students); Teston v. Collins, 217 Ga. App. 829, 830-831 (1) (459 SE2d 452) (1995) (student attacked by a visitor to school claimed officials failed to control third party visitors); Guthrie v. Irons, 211 Ga. App. 502, 506 (2) (439 SE2d 732) (1993) (student who was attacked by another student in hallway claimed teacher [ ] failed to follow policy which required [she] monitor halls), disapproved on other grounds, Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994).

Caldwell v. Griffin Spalding County Bd. of Ed., 232 Ga. App. 892, 893 (503 SE2d 43) (1998). And, supervision of student safety is considered discretionary “even where specific school policies designed to help control and monitor students have been violated. [Cits.]” Chamlee, 239 Ga. App. at 184 (1). See also Perkins v. Morgan County School Dist., 222 Ga. App. 831, 835 (2) (476 SE2d 592) (1996); Wright v. Ashe, 220 Ga. App. 91, 93-94 (469 SE2d 268) (1996).

Decided November 16, 2000.

Neal H. Howard, Joann B. Williams, for appellants.

Hawkins & Parnell, Thomas G. Tidwell, for appellees.

Here, the alleged ministerial functions all relate to the supervision, control, and monitoring of student safety, and therefore the rule in Chamlee, Perkins, and Wright applies. There has been no waiver of official immunity, and summary judgment was properly granted.

Based on the foregoing, we need not reach the appellees’ claim that there was no evidence of causation.

Judgment affirmed.

Miller and Mikell, JJ., concur.

       We have been seriously handicapped in this case because the citations to the record in both parties’ briefs are inaccurate. We urge the bar to carefully check their citations to the record to help ensure that facts in the record are not overlooked.

       See also OCGA § 33-24-51 (b) (immunity is waived only “to the extent of the amount of the insurance so purchased”); Williams v. Solomon, 242 Ga. App. 807, 810 (4) (531 SE2d 734) (2000) (immunity waived only if and to the extent that insurance was purchased); Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183, 185-186 (2) (521 SE2d 78) (1999).

       Cases interpreting the words “operation,” “maintenance” and “use” of a vehicle in an insurance policy are appropriate authority when considering the meaning of those words in the statute. Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 122 (329 SE2d 204) (1985).

       Nor is there any allegation that any of the individual defendants were acting outside the scope of their official duties.


text:
    A00A1240.
    SUAREZ et al. v. HALBERT et al.
    (543 SE2d 733)
   Pope, Presiding Judge.

Ernesto and Beatriz Suarez, as maternal grandparents, filed a petition under the Family Violence Act, OCGA § 19-13-1 et seq., seeking to halt their son-in-law from committing further acts of violence against their minor grandchildren. After a hearing, the court found merit to the petition and placed the grandchildren in the grandparents’ care and custody. Subsequently, the parents filed a motion for attorney fees under OCGA § 19-13-4 (a) (10), and the trial court assessed $10,440.55 in attorney fees against the prevailing grandparents, giving as the sole reason the disparity of income between the parties. We granted the grandparents’ application for discretionary appeal to consider their contention that the attorney fees provision contained in the Family Violence Act was not intended to reward the perpetrators or the abettors of domestic violence.

On February 23, 1998, on behalf of themselves and their grandchildren, Ernesto and Beatriz Suarez filed a petition under the Family Violence Act solely against Michael J. Halbert. This petition alleged that Michael Halbert had committed and was continuing to commit multiple acts of violence which included: grabbing, dragging, and throwing his son; fighting with the children’s mother; tying up his son in a bedroom and leaving him there; and making threats while in the children’s presence to kill them, their mother, and himself. After an ex parte hearing, the trial court issued a temporary protective order to ensure the children’s safety. Later, the trial court amended the order to add Beatriz Halbert as a party respondent to the petition.

Evidence presented at a hearing on March 4, 1998, showed that eight years earlier, Beatriz Halbert had filed her own petition under the Family Violence Act seeking protection from Michael Halbert. This petition alleged that Halbert had threatened to kidnap the children and to kill her and the children. The record also shows that in another incident occurring in May 1997, Beatriz Halbert summoned police after Halbert had engaged in a violent confrontation with their son.

After being informed that the son had been communicating his extreme fearfulness regarding his father to a close relative via email, the trial court decided to conduct an in camera hearing with the children. In that hearing, both children confided that they were afraid to return home. After speaking privately with the children, the court noted, “[y]ou can’t really from a transcript tell the fear that I saw in this little guy’s eyes, but he’s very afraid. It came across to me that he’s afraid and he does not want to come back home.” Based on all the evidence including the testimony of psychologists and other witnesses, the trial court ordered a two-month extension of the initial protective order and directed that visitation by the parents occur only under supervision.

On May 6, 1998, the trial court conducted a second evidentiary hearing. The court again spoke privately with the children and decided that based on the “rancor and animosity” shown, supervised visitation by the parents involving the son should not continue. The trial court refused to return the children to a situation where the court believed a threat of violence continued to exist. The order entered on June 10,1998, extended the placement of the two children in their grandparents’ custody and care, until midnight August 24. The court ordered psychological evaluations and gave specific instructions on schooling, telephone calls, personal possessions, and pets and required the grandparents to transport the children to certain school and church activities.

While this protective order remained in effect and while the grandparents were providing substantial care for both children, Michael and Beatriz Halbert filed a motion seeking reimbursement from the grandparents, the Suarezes, for attorney fees purportedly incurred in responding to the Family Violence Act petition. The Halberts sought the recovery of all their attorney fees billed through July 31, 1998, and totaling $20,880.91.

After oral argument on the motion for attorney fees, the trial court ordered the Suarezes to make four monthly payments solely to Beatriz Halbert, totaling $10,444.55, half of the total being sought. The court observed: “There is a disparity of income between the parties. Particularly, the Respondent, Beatriz Halbert defended this action at a time when she was undergoing a complicated pregnancy, could not work, and had limited funds.” The court explicitly stated that its order was not “based on any finding of bad faith or improper conduct by the grandparent petitioners during the course of the litigation.”

1. The Suarezes contend that the trial court erred by applying a divorce and alimony “disparity of income” standard to a motion for attorney fees filed under the Family Violence Act. They claim that the statutory framework does not envision imposing attorney fees upon the prevailing party who acts in good faith in bringing such a petition. They urge that the court committed legal error by engrafting a “disparity of income” test borrowed from another statute onto the Family Violence Act. We agree.

When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the “plain legal error” standard of review. Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999). Moreover, “[w]here it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm. [Cit.]” Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997). This is such a case. See Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (2) (315 SE2d 51) (1984).

As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract. Indus. Distrib. Group v. Waite, 268 Ga. 115, 116 (1) (485 SE2d 792) (1997). When awarded by statute, such fees may be obtained only pursuant to the statute under which the action was brought and decided. See Ga. Subsequent Injury Trust Fund v. Muscogee Iron Works, 265 Ga. 790, 791 (462 SE2d 367) (1995).

But here, it was the nonprevailing party, the Halberts, who sought and obtained attorney fees from the prevailing party. See, e.g., Dunn v. Ceccarelli, 239 Ga. App. 687, 689 (521 SE2d 237) (1999). And the statute under which the action was brought and decided does not expressly authorize an award of attorney fees to the nonprevailing party on the basis of disparate financial circumstances. The attorney fees provision contained in the Family Violence Act neither directs nor authorizes a trial court to consider the financial resources of either party. See OCGA § 19-13-4 (a) (10). And nothing in the Family Violence Act explicitly provides for the imposition of attorney fees against a prevailing party who has acted properly and brought the petition in good faith. On the contrary, that Act provides that a court may approve any order “to bring about a cessation of acts of family violence,” and such orders may “[a]ward costs and attorney’s fees to either party” in furtherance of that goal. OCGA § 19-13-4 (a) (10). We fail to see how an award of attorney fees against the petitioners in this case would assist in bringing about the cessation of acts of family violence.

Decided November 16, 2000.

Further, the Halberts’ reliance upon Code sections pertaining to divorce is misplaced. OCGA § 19-6-2 (a), upon which the Halberts rely, authorizes the grant of attorney fees for litigation relating to divorce and alimony cases and derivative actions such as child custody and property division. In such actions, a trial court must “consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party.” OCGA § 19-6-2 (a) (1). But that Code section applies exclusively to litigation derived from divorce and alimony disputes and has no application in this case. See generally Thedieck v. Thedieck, 220 Ga. App. 764, 767 (2) (470 SE2d 265) (1996).

Moreover, case law construing OCGA § 19-6-2 has long observed that public policy is enhanced by enabling a spouse with inferior financial resources to properly protect his or her interests with respect to custody, child support, and alimony. See Richardson v. Richardson, 237 Ga. 830, 831-832 (1) (229 SE2d 641) (1976); Brady v. Brady, 228 Ga. 617, 618 (1) (187 SE2d 258) (1972). In this case, however, we cannot envision how public policy would be furthered by sanctioning petitioners found by the trial court to have acted in good faith. On the contrary, imposing attorney fees upon well-intentioned petitioners seeking to thwart the occurrence or recurrence of family violence would only serve to deter others from filing similar actions.

Beatriz and Michael Halbert, moreover, were represented by the same counsel. They were jointly billed and jointly served by the same counsel. Therefore, to reimburse Beatriz Halbert for “her legal fees” would effectively operate to reimburse Michael Halbert as well.

Accordingly, we hold that, under the circumstances of this case, it was error to award attorney fees against the prevailing party premised solely on a disparity of income, and thus we reverse the award of attorney fees to Beatriz Halbert.

2. In light of our holding in Division 1, we decline to address the Suarezes’ remaining enumeration of error.

Judgment reversed.

Miller and Mikell, JJ., concur.

Sanders, Haugen & Sears, Robin G. Mayer, for appellants.

Bogart & Bogart, Jeffrey B. Bogart, Christine C. Bogart, George R. Ference, for appellees.

       The petition was filed in February, and counsel did not enter an appearance until March 30, 1998, when the Halberts apparently elected to replace their previous attorney.

       Very little of the billing documentation differentiates the legal expenses pertaining to Michael from those relating to Beatriz Halbert. Most entries'merely indicate “client.”


author: POPE, Presiding Judge.

text:
    A00A1685.
    CITRON et al. v. GHAFFARI et al.
    (542 SE2d 555)
   POPE, Presiding Judge.

The sole issue in this case is whether an eight-week-old fetus whose only movement at the time of its death was a heartbeat can be considered “quick” under Georgia law, thus allowing the parents of the unborn child to assert a claim of wrongful death against the treating physicians. Because we conclude as a matter of law that a heartbeat alone is not sufficient movement to constitute quickening, we reverse the trial court’s denial of the physicians’ motion for summary judgment.

Tony and Gisso Ghaffari filed this medical malpractice action against Steven J. Citron, M.D., and Farr Nezhat, M.D., arising out the death of their unborn child. The trial court denied the doctors’ motions for summary judgment as to the Ghaffaris’ claim of wrongful death and certified its order for immediate review. We granted the doctors’ application for interlocutory appeal.

Construed in favor of the nonmoving party, the record shows that in October 1994, Gisso Ghaffari consulted Dr. Nezhat after she suffered the second of two miscarriages. Dr. Nezhat diagnosed and treated Gisso for endometriosis.

Subsequently, on March 8, 1995, Dr. Nezhat did an ultrasound and blood tests on Gisso, which indicated that she was approximately six weeks pregnant. Dr. Nezhat read the ultrasound as showing a normal intrauterine pregnancy. During the next week, however, Gisso began to experience severe nausea and vomiting. And on March 17, 1995, Dr. Nezhat admitted Gisso to Northside Hospital to treat her with IV fluids for dehydration.

On March 20,1995, Dr. Nezhat ordered a second ultrasound. The ultrasound films were reviewed by Dr. Citron, a radiologist. Dr. Citron read this ultrasound as showing a definite right cornual pregnancy with an estimated gestational age of seven weeks, four days. A cornual pregnancy is a pregnancy that occurs at the entrance of the fallopian tube into the uterine cavity, but outside of the uterine cavity. It is a kind of ectopic pregnancy and thus cannot be successfully carried to term.

After speaking with Dr. Citron, Dr. Nezhat advised the Ghaffaris that the pregnancy was ectopic and informed them that it posed a serious risk to Gisso’s health and even her life. Dr. Nezhat gave the Ghaffaris two options for terminating the pregnancy: (1) surgery or (2) a medical procedure involving the administration of the drug methotrexate. Due to the risks of surgery, Dr. Nezhat recommended the medical option, and the Ghaffaris followed his advice. Following the administration of methotrexate, Gisso was discharged home, where she continued to experience nausea and vomiting. She was readmitted to the hospital the next day on March 21,1995. On March 24, 1995, a follow-up ultrasound was performed by hospital personnel and read by Dr. James Barry Weinstein. Dr. Weinstein interpreted the ultrasound to show a normal intrauterine pregnancy. But when Dr. Weinstein reviewed the March 20 ultrasound, he agreed with Dr.. Citron that the earlier sonogram showed a cornual pregnancy. This contradictory finding led Dr. Nezhat to consult with two other physicians, Dr. Daniel Eller and Dr. Benedict Benigno, about the possible hazards of administering methotrexate in the case of a normal intrauterine pregnancy. Dr. Eller explained to Dr. Nezhat that there were not much data on this subject, but he felt there was a 30 percent chance the baby would be deformed and abnormal because of the use of methotrexate. Dr. Benigno stated that there was a high possibility of fetal abnormality because the injection was given in the first trimester.

After consulting with these physicians, Dr. Nezhat told the Ghaffaris that the latest ultrasound showed the pregnancy was normal. Then, Dr. Nezhat called Dr. Eller in to consult with the Ghaffaris. Dr. Eller performed yet another ultrasound and confirmed that the pregnancy was intrauterine. The doctors told the Ghaffaris that there was a 30 percent chance that their baby would be abnormal and advised them that Gisso could have an abortion or they could wait and do further testing to determine if there were any abnormalities. According to the Ghaffaris, Dr. Nezhat recommended an immediate abortion, although Dr. Nezhat denies making such a recommendation. After listening to the doctors, the Ghaffaris consented to a suction dilation and curettage procedure to terminate the pregnancy. At the time of this procedure, the gestation period was approximately eight weeks.

1. In addressing the death of a child prior to birth, Georgia has historically adhered to the concept of “quickening.” Georgia’s most recent feticide statute, adopted in 1982, applies only to the murder of “an unborn child so far developed as to be ordinarily called ‘quick.’ ” OCGA § 16-5-80. This statute was “nothing more than a continuation of a criminal provision which existed for many years in this state and in turn rested on English law going back to 1803.” Brinkley v. State, 253 Ga. 541, 544 (1) (322 SE2d 49) (1984). And this Court drew upon the then-existing criminal law when it recognized a cause of action for the wrongful death of an unborn child where the child is quick at the time of its death. Porter v. Lassiter, 91 Ga. App. 712, 715-716 (87 SE2d 100) (1955).

“The concept of‘quickening’ is defined as that point in time when the fetus ‘is able to move in its mother’s womb.’ [Cit.]” Shirley v. Bacon, 154 Ga. App. 203, 204 (267 SE2d 809) (1980). See also Summerlin v. State, 150 Ga. 173, 176 (103 SE 461) (1920) (defining an unborn child who is “quick” as a child “ ‘so far developed as to move or stir in the mother’s womb’ ”). While the law does not designate a definite time in a pregnancy when quickening occurs, prior decisions have noted that quickening generally occurs sometime between the tenth week and the fourth month of pregnancy. See Brinkley v. State, 253 Ga. at 542; Biegun v. State, 206 Ga. 618, 627 (7) (58 SE2d 149) (1950).

Here, Gisso Ghaffari was only in her eighth week of pregnancy and had felt no movement. It is uncontradicted that the only movement detected in any of the sonograms was a fetal heartbeat. There is nothing in the record to indicate that the heartbeat of an eight-week-old fetus could be felt by the mother. Nor is there any evidence that the child had developed to the point where it was capable of any other movement.

Although this Court has held that there is no requirement that the mother actually have felt movement in order to establish quickening, there must be evidence that the child is at least capable of movement. Shirley v. Bacon, 154 Ga. App. at 204-205. The holding in Shirley presumably reflects that advances in technology allow a physician to detect an unborn child’s movement before a mother may actually recognize it. Nevertheless, we find that the concept of quickening necessarily contemplates proof of the kind of movement that a mother potentially could feel, such as the movement of an arm or a leg.

To hold otherwise would make the concept meaningless. Presumably, with the right equipment, movement resulting simply from the biological process of fetal development could be detected from the very onset of pregnancy. Therefore, were we to adopt the Ghaffaris’ argument that a heartbeat demonstrates quickening because it can be seen on a sonogram, we would effectively be recognizing a cause of action for wrongful death at any point during pregnancy. This would be a marked shift in the treatment of unborn children under Georgia law and may more properly be the subject of legislative action.

Decided November 16, 2000

Browning & Tanksley, David V. Johnson, Henry D. Green, Jr., Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Jane L. Sams, Webb, Carlock, Copeland, Semler & Stair, Daniel J. Huff, for appellants.

Jennings, Sparwath & Satcher, Stephen H. Sparwath, for appellees.

Accordingly, we hold as a matter of law that the child in this case was not “quick” and thus that the trial court erred in denying the motions for summary judgment filed by Dr. Nezhat and Dr. Citron.

2. Due to our holding in Division 1, we do not reach the appellants’ second enumeration of error.

Judgment reversed.

Miller and Mikell, JJ., concur.

       Georgia appears to be unique in its adherence to the concept of quickening. The majority of jurisdictions that recognize a cause of action for wrongful death of a fetus limit such actions to claims arising after the fetus is viable. A viable fetus is “capable of independent existence outside his or her mother’s womb, . . . even if only in an incubator.” (Citations omitted.) Black’s Law Dictionary, p. 1566 (6th ed. 1990). Viability thus presumably occurs later than quickening. Only a few states recognize a cause of action for wrongful death at any point in a pregnancy. See 84 ALR3d 411.

       Compare, e.g., Hornbuckle v. Plantation Pipeline Co., 212 Ga. 504 (93 SE2d 727) (1956) (allowing a child who survives birth to assert a cause of action for an injury occurring at any point in its prenatal life) with Peters v. Hosp. Auth. of Elbert County, 265 Ga. 487, 488 (1) (458 SE2d 628) (1995) (holding that no claim can be asserted on behalf of a stillborn child for injuries sustained during pregnancy).


author: Blackburn, Presiding Judge.

text:
    A00A1686.
    A00A1687.
    THE STATE v. CAUSEY. STATE OF GEORGIA v. CAUSEY.
    (540 SE2d 696)
   Blackburn, Presiding Judge.

In Case No. A00A1686, the State appeals the trial court’s order granting Aaron Decarlis Causey’s motion to suppress the evidence, and in Case No. A00A1687, the State appeals the trial court’s order denying its complaint for forfeiture of $3,477 seized from Causey. Both the criminal case and the civil forfeiture case are based on the same transaction in which the trial court determined that the arresting officers lacked sufficient articulable suspicion to justify their stop of Causey. For the reasons set forth below, we reverse the trial court’s grant of Causey’s motion to suppress and the denial of the State’s forfeiture complaint.

Case No. A00A1686

1. The State appeals the trial court’s grant of appellee’s motion to suppress, and on appeal the evidence must be construed most favorably to support the trial court’s ruling. See Parker v. State. “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State.

The record shows that, at approximately 8:00 p.m. on February 26, 1999, Marietta Police Officers Mark Bishop and Danny Messimer, while off duty, were working as security personnel at Dave & Buster’s, monitoring the parking lot. There had been a history of cars being broken into in this parking lot. The officers noticed an unknown man, later identified as Carlos Blount, enter the parking lot on foot from an adjacent hotel. Blount appeared to wander around the lot, walking between the parked cars and stopping to look into some of the cars before standing up and looking around. Based on Blount’s questionable behavior coupled with a history of car break-ins in the lot, including a theft on the previous night, Officer Bishop became suspicious that Blount was attempting to steal a car. Officer Messimer also thought that Blount was considering breaking into a vehicle. As the officers began walking toward Blount, intending to confront him regarding his intentions, Blount got into the front passenger seat of a car that had driven into the parking lot and pulled away from the approaching officers to a remote, unoccupied area of the parking lot.

The officers began walking toward the vehicle, which was later determined to belong to Causey. As they got within 30 yards of the vehicle, Blount got out and ran out of the parking lot. The trial court noted, without deciding, that there was conflicting testimony as to whether or not prior to running to the hotel, Blount saw the police officers. In any event he moved away from the officers, and this precluded his being questioned. What is important in this context, however, is that it is undisputed that the officer thought Blount had seen him and such conclusion further supported his reasonable suspicion of criminal conduct by Blount and Causey. The officers did not pursue Blount because he was too far away from them to be caught. Causey had pulled into the parking lot, picked up Blount, and driven him to a remote area of the parking lot where he released him beyond the reach of the officers, then began to drive toward the parking lot exit. The officers, being suspicious of the conduct of Blount and Causey, stopped Causey’s vehicle, being unable to stop Blount.

After the stop, Officer Bishop questioned Causey about his knowledge of his cohort, Blount, and, based on Causey’s nervousness, Officer Bishop requested permission to search the car. Causey agreed to let the officers search his car. Causey was carrying nun-chucks, a handgun, cocaine, marijuana, and $3,477 in his car and on his person. Causey was charged with trafficking in cocaine, possession of marijuana with intent to distribute, possession of a firearm during the commission of a crime, and two counts of carrying a concealed weapon and later filed his motion to suppress the above evidence. Following a hearing, the trial court granted Causey’s motion to suppress this evidence. The trial court based its ruling on the isolated conduct of Causey and did not address the reasonableness of the officers’ consideration of the conduct of Blount and Causey individually and jointly and thus failed to consider the totality of the circumstances. The totality of the circumstances authorized a second-tier stop based on the pre-stop conduct, without regard to the existence of contraband that was later found.

At least three types of police-citizen encounters exist: [(1)] verbal communications involving no coercion or detention; [(2)] brief “stops” or “seizures” that require reasonable suspicion; and [(3)] “arrests,” which can only be supported by probable cause. Verhoeff v. State. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. Verhoeff, supra at 503. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. See Painter v. State. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave. Moran v. State

Stokes v. State.

(a) Initially, the State argues that the stop of Causey’s vehicle was a first-tier stop, i.e., involving no coercion or detention. See Stokes, supra. The State relies upon Stokes, wherein we held that an officer’s approach and questioning of people in and around a parked car was a first-tier stop “neither requiring reasonable suspicion nor invoking Fourth Amendment protection for [the defendant].” Id. at 233. Significantly, in Stokes, we distinguished the situation where the officer orders or instructs a vehicle’s occupant to roll down the window or open a car door, determining that such an action may equal “physical force or a show of authority sufficient to constitute a ‘seizure.’ ” Id. Therefore, the present case is clearly distinguishable from our holding in Stokes, supra. Herein, Officer Bishop held out his hand and “yelled” for Causey to stop his moving vehicle. The State’s argument that Officer Bishop’s stop of Causey’s moving vehicle was a first-tier stop is without merit. See Peters v. State.

(b) The State next contends that, even if considered a second-tier stop, the stop of Causey’s car was justified. We agree. Officer Bishop had a reasonable articulable suspicion of criminal activity by Blount and Causey and was justified in briefly detaining and questioning Causey.

The United States Supreme Court has discussed, at length, the elusive nature of what is deemed sufficient to authorize the police to stop and detain a citizen. See United States v. Cortez. In Cortez, the Supreme Court determined that “the essence of all that has been written [about the definition of articulable reasons and founded suspicions] is that the totality of the circumstances — the whole picture — must be taken into account.” Id. This totality of the circumstances test consists of two elements: (1) The determination must be based upon all the circumstances gathered from “objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.” Id. The trained police officer makes a determination from these data — this determination can be based upon “inferences and deductions that might well elude an untrained person.” Id. In reaching such deductions, police officers are authorized to make common sense conclusions about human behavior. Id. Additionally, the evidence must be viewed from the perspective of what action a reasonable police officer would take. Id. See also Freeland v. State, quoting Ornelas v. United States. (2) The second element which must be present before a stop is permissible requires that during the process of analyzing the facts as described in the first element, a suspicion must arise “that the particular individual being stopped is engaged in wrongdoing.” Cortez, supra at 418.

With the totality of the circumstances test in mind we review the facts of the present case. For this purpose, we focus on the reasonableness of the stop, without regard to the presence of drugs which was ultimately established. The fact that contraband is in fact discovered will not support an otherwise invalid stop. Postell v. State. Trained police officers testified they were aware of prior auto break-ins that occurred in the Dave & Buster’s parking lot. There had been an auto break-in on the previous evening. With this knowledge, the officers saw an individual who reasonably appeared to be casing the cars in the parking lot. Officer Bishop testified inter alia:

I saw him start walking in between cars, not as coming to [Dave & Buster’s], but he went to an aisle of cars and was in and out in between cars. While doing this, occasionally he would stop, lean over, look in a vehicle. Then he’d stand up, look over his shoulders both directions. Since it was brought to my attention that there was a theft from a vehicle the night before, ... I started believing that’s what Mr. Blount was there for. At that point I started walking towards Mr. Blount. . . . Prior to my getting even close to Mr. Blount, a blue Toyota Célica pulled in the parking lot. . . . Mr. Blount got into the front passenger side of the vehicle, and [it] proceeded to . . .an unoccupied area of the parking lot. So . . . I haven’t verified Mr. Blount’s intentions for being in the parking lot, and I’ve got a new player in the game. ... I started walking toward the vehicle. . . . As I got within . . . 30 yards . . . Mr. Blount exited the . . . vehicle, looked up, saw me and went into a dead run.

These circumstances viewed from the standpoint of an objectively reasonable police officer justified their suspicion that the parties, both Blount and Causey, were engaged in wrongdoing. See United States v. Cortez, supra.

[C]ourts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on common sense judgments and inferences about human behavior. . . . All of this conduct was by itself lawful, but it also suggested that the individuals were [engaged in criminal activity]. Terry recognized that the officers could detain the individuals to resolve the ambiguity.

Decided October 31, 2000

Reconsideration denied November 17, 2000

Patrick H. Head, District Attorney, Maria B. Golick, Dana J. Nor man, William M. Clark, Assistant District Attorneys, for appellants.

Illinois v. Wardlow.

In the present case, the officers drew reasonable conclusions based upon their experience and the objective facts before them. Under the totality of the circumstances, it was reasonable to suspect that Blount was involved in an attempt to break into automobiles and that Causey was his accomplice in such activity. The fact that such actions occurred in an area where the officers had first-hand experience with car break-ins and that Causey picked up Blount, who had been acting suspiciously, and drove to a remote part of the parking lot away from the approaching officers was consistent with such activity. The fact that Officer Bishop believed Blount ran off after seeing him reasonably supported Bishop’s suspicion. The fact that after Blount ran off, Causey then attempted to drive out of the parking lot after just having driven in supported Bishop’s suspicion that he was Blount’s accomplice. The evidence provides sufficient reasonable articulable suspicion to support a brief detention of Causey. Therefore, the trial court erred in granting Causey’s motion to suppress.

Case No. A00A1687

2. In Case No. A00A1687, the State appeals the trial court’s order denying its complaint for forfeiture of $3,477 seized from Causey. The trial court based its order in the forfeiture case on its determination that the tangible property that was the subject of the forfeiture action was not obtained legally. However, because we held in Division 1 that the trial court erred in making that determination and in granting Causey’s motion to suppress, we also find that the trial court erred in denying the State’s forfeiture complaint. See OCGA § 16-13-49 (d) (2).

Judgments reversed.

Eldridge and Barnes, JJ, concur.

Forrest K. Shealy, for appellee.

        Parker v. State, 233 Ga. App. 616, 617 (504 SE2d 774) (1998).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85) (1987).

        Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997).

        Moran v. State, 170 Ga. App. 837, 840 (1) (318 SE2d 716) (1984).

        Stokes v. State, 238 Ga. App. 230, 231-232 (518 SE2d 447) (1999).

        Peters v. State, 242 Ga. App. 816, 817 (531 SE2d 386) (2000).

        United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

        Freeland v. State, 223 Ga. App. 326 (1) (477 SE2d 633) (1996).

        Ornelas v. United States, 517 U. S. 690 (116 SC 1657, 134 LE2d 911) (1996).

        Postell v. State, 264 Ga. 249 (443 SE2d 628) (1994).

        Illinois v. Wardlow, 528 U. S. 119 (120 SC 673, 145 LE2d 570) (2000).