text:
    A01A1768.
    ATLANTA AFFORDABLE HOUSING FUND LIMITED PARTNERSHIP et al. v. BROWN et al.
    (558 SE2d 827)
   Eldridge, Judge.

Atlanta Affordable Housing Fund Limited Partnership and Ledic Management Group, Inc. appeal from a jury verdict and judgment for Shaatia J’Nai Brown, a nine-year-old, brought by her mother Tascena Jennings, individually and as her natural guardian, for injuries that the minor received when struck by a truck in the Park Place apartment complex where she lived. Brown was enrolled in an academic enrichment after-school program, “Make a Difference,” sponsored in the complex by the defendants. At the time of her injury, she was taking out the trash for the program and ran from behind a van parked in a no-parking zone into the path of a truck, which struck her. The defendants contend that the trial court erred in not granting summary judgment, directed verdict, or judgment notwithstanding the verdict and in failing to charge on assumption of risk for this nine-year-old. Further, the defendants contend that there existed no premises liability or duty to supervise Brown. We do not agree and affirm the judgment.

1. The defendants in separate enumerations of error contend that the trial court erred in failing to grant summary judgment, directed verdict, or j.n.o.v. and in failing to charge on assumption of risk.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that [she,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. . . . The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. As stated by Dean Prosser: In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given [her] consent to relieve the defendant of an obligation of conduct toward [her], and to take [her] chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Citations and punctuation omitted; emphasis in original and supplied.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996); see also Hillman v. Carlton Co., 240 Ga. App. 432, 434 (1) (522 SE2d 681) (1999).

“[A]ctual, subjective knowledge of the specific [danger of an approaching truck] and fully appreciating] its danger” constitute the first element of assumption of the risk defense. Hillman v. Carlton Co., supra at 433-434 (1). Thus, a generalized risk may be assumed, i.e., not stopping and looking both ways before crossing a street or driveway. But for the defense of assumption of the risk to apply in this case, there must be a particularized and subjective awareness of the actual danger of the approaching truck as well, which is the subjective risk assumed of racing against the truck’s approach. Id. at 434; see also Vaughn v. Pleasent, supra at 865 (2); Gen. Manufactured Housing v. Murray, 233 Ga. App. 382, 384 (1) (504 SE2d 220) (1998); Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997); Sutton v. Sumner, 224 Ga. App. 857, 859-860 (482 SE2d 486) (1997).

While the defendants proved that the nine-year-old plaintiff was generally aware of the risk of crossing streets or driveways and being hit by moving vehicles and the need to stop and look, there existed no evidence that the child saw or was aware of the approach of the specific truck that hit her when she darted out across the driveway, because a van parked in a no-parking area of the complex blocked her view of the approaching truck, and she had seen her friend just ahead of her safely race across the driveway without incident. Plaintiff knew generally that there was a danger in crossing without looking where vehicles drove. However, the presence or absence of moving vehicles in the driveway was a constantly changing situation so that specific knowledge of the condition could not pre-exist without specific subjective observation at any given time to determine the presence or absence of danger. Thus, the child had no subjective knowledge of the danger from the approaching truck that hit her; therefore, the first element of the defense of assumption of the risk was not proved. It was proper to deny motions for summary judgment, directed verdict, andj.n.o.v.

In contrast to the facts of this case, Goodman v. City of Smyrna, 230 Ga. App. 630 (497 SE2d 372) (1998), dealt with a specific static condition of a known danger posed by a downhill street grade to a curve in the street without a guardrail and a steep drop-off to a creek, which the 11-year-old knew of generally and subjectively both prior to and during her fleeing on skates down the street toward the open and obvious static danger. In contrast in this case, the nine-year-old never saw the truck that hit her so that she never had a subjective knowledge of the actual danger to assume such risk. Thus, the facts of this case failed to establish the first element of the defense of assumption of the risk. See Vaughn v. Pleasent, supra at 864.

The trial court properly refused to give a jury instruction that was not authorized by the evidence. See Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (a) (441 SE2d 453) (1994).

2. The defendants contend that the trial court erred in denying its motions for directed verdict, j.n.o.v., and new trial based on the plaintiff’s conduct being the sole proximate cause of her injuries.

“The question of proximate cause is one for the jury except in palpable, clear, and indisputable cases.” (Citation and punctuation omitted.) Woodbury v. Whitmire, 246 Ga. 349, 350 (1) (271 SE2d 491) (1980).

[P]roximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other. Thus, whether proximate cause exists in a given case is a mixed question of law and fact. It requires both fact-finding in the “what happened” sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury upon appropriate instructions from the judge. The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of “foreseeability”) to the facts. In other words, although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.

(Citations and punctuation omitted.) Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569-570 (398 SE2d 16) (1990); see also Bailey v. Jim’s Minit Market, 242 Ga. App. 518, 519 (529 SE2d 436) (2000).

[Plaintiff at nine years] comets] within the age category of minors whose failure to exercise due care is for decision by a jury. There is no presumption of law that a child between the ages of seven and fourteen did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or to observe due care. As was well said by Judge Bell in . . . controlling authority: “It seems clear from the Georgia cases that the question of capacity or lack of capacity to be contributorily negligent in the case of children between the ages of seven and fourteen is a subjective one which necessarily depends in each situation upon the particular child’s mental and physical capacity. Thus, there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care. Since the question of capacity is an individual one in each of the cases involving children between seven and fourteen years of age, the jury must first find that the particular child had the capacity required and then must decide whether or not the child exercised it. . . . The better rule would be for the jury to deal with each case upon its own facts, unhampered by presumptions of law either for or against the competency of the child.”

(Citations and punctuation omitted.) Jackson v. Young, 125 Ga. App. 342, 343-344 (2) (187 SE2d 564) (1972); see also Goodman v. City of Smyrna, supra at 632.

A child of tender years may not be under the duty of exercising ordinary care as defined in the Civil Code, but [she] is charged with the duty of exercising such care as [her] capacity, mental and physical, fits [her] for exercising, this capacity to be judged by the jury from the circumstances surrounding the transaction under investigation, and the child’s conduct in reference thereto. Necessarily it was for the jury to determine in the present case what due care required of the plaintiff, a child [nine] years of age, at the time of the injury, and if they should find that [she] was of the age capable of exercising some degree of care, under the law [she] is bound to that extent.

Huckabee v. Grace, 48 Ga. App. 621, 637-638 (4) (173 SE 744) (1934); see also OCGA § 51-1-5; Sturdivant v. Polk, 140 Ga. App. 152, 154 (3) (230 SE2d 115) (1976); Ragan v. Goddard, 43 Ga. App. 599, 602-603 (159 SE 743) (1931).

[The] statute provides: The term “due care,” when used in reference to a child of tender years, is such care as the child’s mental and physical capacities enable him to exercise in the actual circumstances of the occasion and situation under investigation. The question of a child’s negligence is therefore one for the jury under appropriate instruction from the court.

(Punctuation omitted.) Pearson v. Small World Day Care Center, 234 Ga. App. 843, 845 (2) (b) (508 SE2d 200) (1998).

Even third-party criminal conduct through an attack on unsupervised children cannot be held as a matter of law to be unforeseeable in a negligent supervision case, because the person supervising the child of tender years should reasonably foresee such dangers to the child of tender years. The risk of a motor vehicle striking an unsupervised child in the street is “so obviously foreseeable that an unforeseeability argument [cannot] reasonably be made.” Wallace v. Boys Club of Albany &c., 211 Ga. App. 534, 537 (2) (439 SE2d 746) (1993).

Thus, the issue of causation was for the jury, i.e., defendants’ negligence or plaintiff’s negligence, if any, or of defendants’ foreseeability as proximate cause with plaintiff’s conduct. See Harris v. Hardman, 133 Ga. App. 941, 942 (3) (212 SE2d 883) (1975). Neither a directed verdict nor a j.n.o.v. was appropriate in this case, because the evidence and all reasonable inferences therefrom failed to demand a particular verdict. Gen. Manufactured Housing v. Murray, supra at 383 (1).

3. The defendants contend that the trial court erred in denying its motions for directed verdict, j.n.o.v., and new trial, because there was no evidence to support a verdict under a theory of negligent supervision and of premises liability.

The defendants as owners and occupiers of the premises determined that, in the exercise of ordinary care to keep the premises and approaches safe, the area adjacent to the entrance to the program center occupied by children in the complex should be a no-parking zone and so designated the area, because vehicles in this area obstructed views of the driveway for pedestrians and drivers approaching the crossing, creating a danger as well as creating a hazard when passengers are picked up or dropped off there. OCGA § 51-3-1; Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 425 (504 SE2d 245) (1998). The overgrown bushes along the driveway in this area further obstructed the vision of both pedestrians and drivers, adding to the existing danger. Thus, the creation of the no-parking zone demonstrated an express awareness and appreciation of all dangerous hazards created by parked vehicles as superior knowledge. Keaton v. A.B.C. Drug Co., 266 Ga. 385, 387-388 (2) (467 SE2d 558) (1996); Sutton v. Winn Dixie Stores, supra at 426. Further, the overgrown bushes in the area, along with the presence of the “no parking” sign, was evidence of constructive notice of the danger for a significant period of time. Although the defendants prohibited parking in the area as a danger, it neither patrolled the area to enforce the no-parking zone nor placed physical barriers, i.e., planters, metal posts, concrete curbing, concrete or other barriers, or fixed flexible posts, to physically exclude parking at all times. There existed evidence of actual notice of the danger from designating the area no parking. Further, the presence of the overgrown bushes and the weathered “no parking” sign gave constructive notice that the danger existed for sufficient time for the jury to infer that defendants had received constructive notice of the dangerous condition on the premises. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); K-Mart Corp. v. Jackson, 239 Ga. App. 176, 177-178 (521 SE2d 93) (1999); Moore v. Kroger Co., 221 Ga. App. 520, 521 (471 SE2d 916) (1996). Since both the overgrown bushes and the presence of the “no parking” sign had to have existed for more than just days, then the actual length of time created a jury issue.

“The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances.” La Petite Academy v. Turner, 247 Ga. App. 360, 362 (1) (543 SE2d 393) (2000).

[T]he measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard. . . . Children of tender years and youthful persons generally are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter, as well as to the superior knowledge of persons who come into contact with them. In cases of this nature the age, experience, and capacity of the child become controlling, not only on the matter of the child’s responsibilities to himself, but also as they bear on the responsibility of the person who has him in custody. As the age and capacity of the child increase [ ], the responsibility for his own safety also increased], with the necessary result that the responsibilities of his custodian decrease proportionately. And, finally, the situation may reach a point at which nonliability is determinable as a matter of law.

(Citations and punctuation omitted.) Laite v. Baxter, 126 Ga. App. 743, 745-746 (2) (191 SE2d 531) (1972).

Arguendo, even if the defendants had no legal duty to supervise the children of tender years in the enrichment program, a jury issue arose as to whether the defendants through their actions voluntarily assumed the duty of supervision and control through the method of operation of the program in the complex. “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” (Citation and punctuation omitted.) Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837 (331 SE2d 899) (1985). “[T]he law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which an action lies.” (Citation and punctuation omitted.) Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 524 (3) (a) (317 SE2d 853) (1984).

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person.

(Citation and punctuation omitted.) Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980).

Further, when the employee of the defendant sent the plaintiff and the other child on the mission to empty the trash from the program and directed the children not to run constituted some evidence of both supervision and control for the jury’s consideration of the issue. There being some evidence in dispute, it was proper for the trial court to deny a directed verdict and j.n.o.v. “A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the jury’s verdict, it is not error to deny the motion.” (Citations and punctuation omitted.) Ga. Ports Auth. v. Southeast Atlantic Cargo Operations, 202 Ga. App. 318, 324 (3) (414 SE2d 232) (1991).

Decided January 15, 2002

Lord, Bissell & Brook, Corliss S. Lawson, Devlin & Robinson, Earnest Redwine, for appellants.

Stuart B. Houck, Sheryl L. Burke, Rosser A. Malone, for appellees.

Neither City Council of Augusta v. Booker, 229 Ga. App. 566 (494 SE2d 374) (1997) (defendant city was allegedly negligent in maintaining obstructions so motorist could not see child), nor Bacon v. Mayor &c. of Savannah, 241 Ga. App. 211, 213 (525 SE2d 115) (1999) (alleged negligence in obstructing view by trees), applies, because the alleged negligence here was as to negligent supervision and premises liability, which were acts of commission as opposed to maintaining a static condition.

“Because a child [of tender years] may be unable to appreciate a danger and, therefore, to have knowledge of the hazard equal to that of the owner/occupier, an owner/occupier may be held to a higher standard of care toward a child than toward an adult.” Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (3) (394 SE2d 345) (1990). The defendants admitted in solemn judicio that they were aware of the impropriety of parked vehicles alongside the leasing office. OCGA §§ 9-11-36; 24-3-30; Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455 (496 SE2d 546) (1998).

The evidence created a jury issue as to negligence, because it was not so “plain, palpable, and indisputable” that such issues could be decided as a matter of law. Thus, “if there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.” Armandroff v. Cushing, 250 Ga. App. 105, 106 (1) (550 SE2d 674) (2001).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A1788.
    BUCKNER v. THE STATE.
    (558 SE2d 823)
   Miller, Judge.

During its deliberations on a criminal matter, the jury asked for a copy of the trial transcript. After consulting with counsel but without the defendant present, the judge wrote the jury a note that no copy was available and that they should rely upon their memories as to the evidence. The first issue on appeal is whether the failure to conduct this part of the trial in the defendant’s presence was reversible error. The second issue is whether the court erred in concluding that it was required to impose the maximum sentence on a five-time felony recidivist. As we answer both issues in the negative, we affirm defendant’s convictions.

Construed in favor of the verdict, the evidence showed that someone stole a green Mustang vehicle, which police saw Cedric Buckner driving a few days later. Buckner led police on a high-speed chase, which ended with Buckner narrowly escaping on foot after crashing the vehicle. In the Mustang, police found items stolen that day and the preceding few days from two local residences and from a vehicle in the vicinity.

Two days later police arrested Buckner when during an investigatory stop they discovered on his person a crack pipe that contained cocaine residue. A jury found Buckner guilty of theft by taking, entering an automobile to commit theft, two other counts of burglary, fleeing to elude an officer, driving while license suspended, and possession of cocaine. He was sentenced to 25 years. He sought a new trial on the grounds that (1) the evidence did not sustain the verdict, (2) the court erred in discussing a question from the jury in his absence, and (3) the court erroneously concluded that it was required to impose the maximum sentence on Buckner. Following the denial of his motion, Buckner appeals.

1. As an appellate court, we view the evidence most favorably to the verdict and do not weigh the evidence nor judge the credibility of the witnesses; instead, we are required to make a determination of the evidence as to its sufficiency under the standard set forth in Jackson v. Virginia. We address each count separately.

The theft by taking count alleged that on December 14, 1998, Buckner stole a Mustang vehicle owned by the Kings. OCGA § 16-8-3 defines this offense as the unlawful taking of another’s property with the intent of depriving that owner of the property. The evidence showed that four days after the Kings’ vehicle disappeared from their driveway, police spotted the vehicle and activated their blue lights in an attempt to stop it, only to have the driver speed away. When the vehicle crashed, an officer chased the fleeing driver on foot and got a good look at the driver’s face before he escaped. At trial the officer identified Buckner as the driver. In the Mustang, officers found various receipts for clothing left by Buckner at a dry cleaning establishment. Buckner’s fingerprint was also found on the driver’s side door. The evidence sufficed to sustain this conviction as well as the conviction of fleeing to elude an officer.

The next count charged Buckner with entering a vehicle with intent to commit theft. The evidence showed that on December 16 someone broke into a vehicle and stole a cell phone. Two days later when police recovered the stolen Mustang, this cell phone was found in the Mustang. As the evidence showed that Buckner entered a vehicle without authority and with the intent to commit a theft, the evidence sufficed to sustain this conviction.

The next burglary count charged Buckner with entering Joyce Slaughter’s dwelling with the intent to steal. The evidence showed that on December 17 someone broke into Slaughter’s home and stole clothing and gifts, including a new pullover in a Lane Bryant bag that had been purchased with a Visa check card. Several of these items were found in the Mustang, including the Lane Bryant bag with the pullover and Slaughter’s Visa receipt therein. The evidence sufficed to sustain this conviction.

The third burglary count charged Buckner with entering Jimmy Smith’s dwelling with the intent to steal. The evidence showed that on December 18 someone broke into Smith’s home and stole various items, including a can full of coins and some watches. The can and watches were found in the Mustang later that day. The evidence sufficed to sustain this conviction.

The next count charged Buckner with driving while his license was suspended. “In order to establish the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension.” In addition to showing Buckner was driving the Mustang, the State submitted an authenticated Georgia Crime Information Center report that Buckner’s license was suspended at the time and that Buckner had been notified by certified mail of such. The evidence sufficed to sustain this conviction.

The final count charged Buckner with possessing cocaine. Evidence showed that police found on Buckner’s person a crack pipe which contained cocaine residue. The evidence sufficed to sustain this conviction.

2. Buckner complains that the court erred in discussing and responding to a note from the jury when he was not present. In a written note, the jury during their deliberations asked if they could have a copy of the transcript. After discussing the matter with counsel but without Buckner present, the court sent a note to the jury that the transcript was not available and that they should rely upon their memories as to the evidence.

The Georgia Constitution guarantees all persons accused of a crime in Georgia the right to be present at all stages of his trial. Thus, “a defendant on trial must be present when the court takes any action materially affecting his case.” Accordingly, the court here erred in communicating with the jury outside the presence of Buckner.

Nevertheless, such is harmless error if the communication was not prejudicial to Buckner. Burtts v. State held that responding to a jury’s request to see a transcript of testimony is not prejudicial to the defendant, even though made outside the presence of both the defendant and his counsel, where the court simply denies the request in writing and tells the jury to rely on their recollection of the evidence. As the circumstances here were even less egregious (Buckner’s counsel was present), we hold that this error was indeed harmless.

3. Buckner contends the court erred in concluding that it was required to sentence him for the longest period of time prescribed for the punishment of the offenses of which he was found guilty. He claims that although this may be true under OCGA § 17-10-7 (a) for the second and third felony convictions, it is not true for the fifth felony conviction (as we have here) because OCGA § 17-10-7 (c), which applies to the fourth conviction and beyond, states only that he must “serve the maximum time provided in the sentence of the judge based upon such conviction . . .” and that such time be served without parole.

Decided January 15, 2002.

Cedric D. Buckner, pro se.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

We have repeatedly rejected this precise argument. Beginning in 1976 in Hammond v. State, we have consistently held that under the language of this statute, “whether the offense for which defendant currently stands convicted is his second, third, fourth or fourteenth — the only sentence imposable for ‘such conviction’ is the maximum time prescribed by the statute for that offense.” In light of Buckner’s four prior felony convictions for burglary, theft by receiving stolen property, entering an automobile with intent to steal, and first-degree forgery, the court here correctly understood that under OCGA § 17-10-7 it was required to impose the maximum sentence for each current felony conviction but had the discretion to probate or suspend part of that sentence (which it chose not to do). Unlike cases involving only prior and current drug convictions or only prior and current burglary convictions, no statute exists other than OCGA § 17-10-7 that speaks to sentencing based on the mixed variety of felony convictions involved here. Thus, the court did not err in the sentencing phase of this trial.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Clark v. State, 245 Ga. App. 267 (537 SE2d 742) (2000).

       See OCGA § 40-6-395 (a) (fleeing an officer when given a visual or audible signal to stop the vehicle constitutes the offense of eluding an officer).

       See OCGA § 16-7-1 (a).

       See Frazier v. State, 240 Ga. App. 398, 399 (1) (523 SE2d 614) (1999) (defendant’s possession of property stolen in a recently committed burglary may alone be sufficient to sustain a burglary conviction absent a reasonable explanation).

       See id.

       See id.

       See OCGA § 40-5-121 (a).

       (Citations and punctuation omitted.) Farmer v. State, 222 Ga. App. 591 (474 SE2d 760) (1996).

       See OCGA § 16-13-30 (a) (unlawful to possess any controlled substance).

       See McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996).

        Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557) (1955); see Ga. Const. of 1983, Art. I, Sec. I, Par. XII.

       (Citations omitted.) Burtts v. State, 269 Ga. 402, 403 (3) (499 SE2d 326) (1998); see Goodroe v. State, 224 Ga. App. 378, 380 (1) (480 SE2d 378) (1997).

        Burtts, supra, 269 Ga. at 403 (3).

       Id. at 403-404 (3).

       Id.

       See also Brown v. State, 237 Ga. App. 231, 234-235 (3) (517 SE2d 529) (1999).

       139 Ga. App. 820 (229 SE2d 685) (1976).

       (Citations omitted.) Id. at 823 (3); accord Wallace v. State, 175 Ga. App. 685, 686 (5) (333 SE2d 874) (1985); State v. Carter, 175 Ga. App. 38, 39-40 (332 SE2d 349) (1985).

       See Bradshaw v. State, 237 Ga. App. 627, 630 (2) (516 SE2d 333) (1999); Banks v. State, 225 Ga. App. 754, 757 (5) (484 SE2d 786) (1997); Murphy v. State, 203 Ga. App. 152, 155 (3) (416 SE2d 376) (1992).

       See Mann v. State, 273 Ga. 366, 367-369 (1) (541 SE2d 645) (2001).

        See Norwood v. State, 249 Ga. App. 507, 508-509 (2) (548 SE2d 478) (2001).


author: Eldridge, Judge.

text:
    A01A1851.
    FOCUS HEALTHCARE MEDICAL CENTER, INC. v. O’NEAL.
    (558 SE2d 818)
   Eldridge, Judge.

Focus Healthcare Medical Center, Inc. appeals from the trial court’s sua sponte dismissal with prejudice of its complaint on open account brought against Phillip O’Neal as barred by the statute of limitation. O’Neal was served notoriously at what the summons and return of service alleged was his notorious place of abode and was alleged to be in default, but has never made an appearance in any court. We reverse, because the trial court had no authority to assert an affirmative defense, which could be waived, on behalf of a party in order to dismiss with prejudice; the trial court may, after inquiry under Uniform State Court Rule (USCR) 15, dismiss without prejudice this complaint for lack of service/defective service if it is not shown that the place of service was the defendant’s notorious place of abode.

Neither the complaint, the account statement, nor the attorney’s certificate set forth that O’Neal lived at 2249 Casher Court, Decatur, DeKalb County, Georgia, and that this was his residence, dwelling house, usual place of abode, or notorious place oí abode in this county. Nor did it plead what his residence address was in the county when service was made. Only on the summons and the return of service had the plaintiff typed in the defendant’s name and address as “Phillip O’Neal, 2249 Casher Ct., Decatur, Ga. 30032.” The marshal’s return of service had the name and address of the defendant typed in, but under service, O’Neal’s name was handwritten, along with the name Emma Norwood and descriptive facts regarding her appearance; the rest of the return was preprinted, stating:

I have this day served the defendant_by leaving a copy of the action and summons at his most notorious place of abode in this county. Delivered same into the hands of_ described as follows age, about _ years; weight, about_pounds; height, about_feet_ inches, domiciled at the residence of defendant.

O’Neal has never appeared or responded, indicating that he may never have received notice of this action, notice of appeal, or the briefing schedule of the Court, because the plaintiff continues to use on its certificate of service “Phillip O’Neal, 2249 Casher Court, Decatur, Ga. 30032.”

Reluctantly, this Court must reverse the trial court, because it is obvious that the trial court was concerned with judicial economy in dismissing with prejudice this overly stale action on account for the attachment of the four-year statute of limitation as a bar, rather than to enter a void judgment, which could be set aside by collateral attack for lack of personal jurisdiction when it was sought to be enforced upon finding O’Neal, when he is found. OCGA § 9-11-60. The last entry of a charge occurred on November 9, 1995, and the statement was rendered November 20, 1997, but suit on the open account was brought on December 8, 2000.

When there has been no actual service, the judgment can successfully be collaterally attacked for lack of personal jurisdiction as void, because there has been no “real” default for failure to answer a complaint that was never served, and thus, OCGA § 9-11-12 (b) and affirmative defenses cannot be waived. Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d 150) (1973); Collins v. Peacock, 147 Ga. App. 424, 428 (3) (249 SE2d 142) (1978).

(a) The trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.

[The defendant] has not filed a plea of the statute of limitation prior to the trial as is required by Section 8 (c) of the Civil Practice Act ([OCGA § 9-11-8 (c)]; Ga. L. 1966, pp. 609, 619; 1967, pp. 226, 230). Furthermore, during the trial the defendant filed no motion in such regard or otherwise attempted to raise such issue. A defendant may not avail himself of an affirmative defense which he failed to properly present. As pointed out in decisions prior to the Civil Practice Act: The bar of the statute of limitation is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases. The statute in most instances operates upon the remedy and not the right; and hence if the defendant chooses not to raise the objection of the lapse of the statutory time, the right will be enforced, and will result in a judgment which will possess all the attributes of, and be as effective as, a judgment rendered within the statutory period.

(Citations and punctuation omitted.) Searcy v. Godwin, 129 Ga. App. 827, 829 (1) (201 SE2d 670) (1973). See also Ga. Receivables v. Cheatham, 216 Ga. App. 656, 658 (455 SE2d 375) (1995) (Smith, J., concurring specially) (physical precedent only).

[OCGA § 9-11-12 (h) (3)] deals solely with the duty of the trial court to dismiss an action when it appears that subject-matter jurisdiction, a nonwaivable defect which would render any judgment in the action void, is absent. It does not authorize a trial court judge to enforce, over the objection of the defendant, a waivable defense held by that defendant. This was error.

McLanahan v. Keith, 239 Ga. 94, 96 (236 SE2d 52) (1977), overruled on other grounds, Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983). Thus, the trial court lacked the authority to enter a dismissal with prejudice in this case, which constitutes reversible error.

(b) Under USCR 15, which is the same as the superior court rule, the trial judge is required to make a determination from the record by the pleadings, return of service, the certificate of counsel, and any evidence before the trial court prior to granting a default judgment that there has been valid service from the method of service and that there exists a true default, without motion to open default pending, under the facts and circumstances of the case presented before the court. Thus, the trial court has the duty to determine upon the presentation of the certification of default by counsel that there has been service and that the defendant is in fact in default prior to entry of a default judgment to avoid a fraud on the court or the cluttering of the court records with void judgments that must be later set aside. Such duty is to properly administer suits and procedure for judicial economy and to avoid injustice from void judgments. Thus, on remand, the trial court must perform these duties imposed by uniform rule of court approved by the Supreme Court of Georgia. See Ga. Const. of 1983, Art. VI, Sec. IX, Par. I. “The State Constitution also gives [the Supreme Court of Georgia] authority to make rules to ‘provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions’ [u]nder [its] inherent and rulemaking powers.” (Citation omitted.) Garcia v. Miller, 261 Ga. 531, 532 (3) (408 SE2d 97) (1991). See also Davis v. Gaona, 260 Ga. 450, 453 (4) (396 SE2d 218) (1990) (power of Supreme Court with advice and consent of the affected class of court to adopt uniform procedural rules to provide for “ ‘speedy, efficient, and inexpensive resolution of disputes and prosecutions’ ”).

In this case, neither the complaint nor the certificate of counsel indicates that the place where constructive service was allegedly made was the residence, dwelling house, usual place of abode, or notorious place of abode of the defendant. Only the printed return of service gives any indication that this was the residence and does not indicate if it was based upon the information placed in the form, the summons of process and return of service by plaintiff’s counsel, or if it came from information otherwise known to the marshal from his actual service on the resident of the dwelling. The return of service of the marshal does not show that the marshal had direct, personal knowledge that the residence where service was made was the defendant’s dwelling house or usual place of abode or that the person served resided therein. See Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995). The affidavit/certificate of counsel is deficient because it pleads only conclusions in a form fashion, providing no facts to support the legal conclusions of notorious service. Specifically, the affidavit/certificate of counsel asserts that service was made notoriously without certifying what the residence address of the defendant was and that this was, in fact, defendant’s dwelling house, usual place of abode, or notorious place of abode. The affidavit of counsel states only that “[t]he Defendant was served on December 12, 2000 by notorious service,” which would be under OCGA § 9-11-4 (e) (6) and not under § 9-11-4 (e) (7) as actually returned by the marshal. However, the marshal’s return of service, while marking “notorious” service, actually shows a constructive/substitute service on “Emma Norwood . . . domiciled at the residence of defendant,” which would be made under OCGA § 9-11-4 (e) (7). This raises an initial question of internal inconsistency or conflict of fact on the face of the return for the trial court to resolve.

Thus on remand, under the facts and circumstances of this case and USCR 15, the trial court must satisfy itself that there has been a valid service and that there has been a default unopened prior to the entry of a default judgment. In carrying out such duty, it would be appropriate on remand for the trial court either to require plaintiff to amend its complaint to set out the known residence of the defendant, which would allow the defendant to answer an amended complaint or, in the alternative, to require counsel to amend his affidavit/certificate of counsel to certify under oath that the defendant’s residence address, dwelling house, usual place of abode, or notorious place of abode in the certificate was where the service was made notoriously, instead of drawing a mere conclusion to that effect, or to otherwise tender other probative evidence to such effect. Further, the trial court, in the exercise of its discretion, may require the marshal serving the complaint, by affidavit or oral testimony, to swear how he or she knew that this was the defendant’s residence, dwelling, usual place of abode, or notorious place of abode and that the person whom he served actually lived there. In this fashion, the trial court may determine the sufficiency of the certificate of counsel under USCR 15. As found in the record, the affidavit/certificate is conclusory in stating that the defendant was served notoriously and is in default as a consequence.

Should plaintiff fail to properly establish that this was the defendant’s residence, dwelling house, usual place of abode, or notorious place of abode, then dismissal without prejudice for lack of personal jurisdiction, lack of service of process, and defective service of process would be appropriate, because then the complaint on its face would fail to show the residence, dwelling house, usual place of abode, or notorious place of abode of the defendant in order to obtain constructive/substitute service. Nor would any affidavit of either the marshal or counsel for the plaintiff state that O’Neal had his residence and notorious place of abode at 2249 Casher Court, Decatur, Georgia, for purposes of notorious service. See Tolbert v. Murrell, 253 Ga. 566, 567-568 (1) (322 SE2d 487) (1984); Wahnschaff v. Erdman, 216 Ga. App. 355 (454 SE2d 213) (1995); Yelle v. U. S. Suburban Press, supra at 47; Garrett v. Godby, 189 Ga. App. 183, 184-185 (2) (375 SE2d 103) (1988). “The burden is [upon] the plaintiff to ascertain the defendant’s residence [or notorious place of abode for purposes of perfecting timely and lawful service], and that obligation does not arise only upon expiration of the statute of limitation.” (Punctuation omitted.) Mitchell v. Hamilton, 228 Ga. App. 850, 851 (1) (493 SE2d 41) (1997); Devoe v. Callis, 212 Ga. App. 618, 619 (1) (442 SE2d 765) (1994). Under the Civil Practice Act, the plaintiff must plead facts upon which the venue is based, i.e., the defendant’s address within the county. See OCGA §§ 9-11-8 (a) (2); 9-11-104; Chancey v. Hancock, 225 Ga. 715, 716-717 (171 SE2d 302) (1969); Martin v. Approved Bancredit Corp., 224 Ga. 550, 551-552 (1) (163 SE2d 885) (1968), overruled on other grounds, Cochran v. McCollum, 233 Ga. 104, 105 (210 SE2d 13) (1974). However, a bare allegation of residence within the county without specifying a specific address is generally sufficient to set forth venue, which plaintiff did in this case. Aiken v. Bynum, 128 Ga. App. 212-213 (1) (196 SE2d 180) (1973). See also Martin v. Approved Bancredit Corp., supra at 551. The complaint sets forth in only general terms venue without the address and failing to set forth the residence address of the defendant; this constitutes an admission in judicio that the plaintiff did not know the defendant’s residence or usual place of abode in the county. Tow v. Evans, 194 Ga. 160, 162 (2) (20 SE2d 922) (1942).

Where matter is contained in a pleading from which inferences of fact may be drawn beneficial to the opposite party, such inference may be considered as evidence in the record in favor of the opposite party as an admission in judicio, which can be taken advantage of by either party without the pleadings being introduced into evidence. “[S]ilence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” OCGA § 24-3-36; Metro Leasing v. Health, Ed. &c. Svcs., 193 Ga. App. 157, 158 (387 SE2d 399) (1989); Taylor v. Crawford, 119 Ga. App. 262, 264 (3) (167 SE2d 404) (1969); Wheeler v. Salinger, 33 Ga. App. 300, 301, hn. 7 (125 SE 888) (1924). Such admission in judicio cannot be contravened by evidence unless or until withdrawn by amendment, which amendment would allow the defendant to answer the amended complaint. See generally Puppy Love Kennel v. Norton, 158 Ga. App. 69, 70 (279 SE2d 312) (1981).

Generally, the return of service is prima facie evidence that service was made at defendant’s most notorious residence and would be conclusive that this was the notorious place of abode. Meier v. Bennett, 208 Ga. App. 688, 689 (431 SE2d 462) (1993); Garrett v. Godby, supra at 184 (1). However, the admission in judicio of lack of knowledge of the notorious place of abode rebuts the return that this was defendant’s notorious residence. See generally Daniel v. Leibolt, 178 Ga. App. 186, 190 (342 SE2d 334) (1986). Therefore, the admission in judicio that the plaintiff did not know defendant’s dwelling or usual place of abode is clear and convincing evidence of the strongest nature capable under the facts of this case where the defendant has never appeared. Such overcomes the printed entry of service of the marshal that the constructive/substitute service was made at defendant’s notorious place of abode. See generally Bullard v. West Star Financial Corp., 231 Ga. App. 521 (500 SE2d 51) (1998); Sorrow v. Seloff, 177 Ga. App. 87 (1) (338 SE2d 482) (1985) (impeachment of evidence of service). Compliance with OCGA § 9-11-4 (e) (7) by constructive/substitute service means what it says, i.e., that the defendant receive actual notice of the action after service upon a person who resides at the defendant’s place of abode. See Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). It is for the trial judge to decide weight and credibility where there exists a dispute as to evidence of defendant’s usual place of abode. In the Interest of S. S., 246 Ga. App. 248, 249 (1) (540 SE2d 238) (2000); Clark v. Dennis, 240 Ga. App. 512, 513 (1) (522 SE2d 737) (1999); Forsythe v. Gay, 226 Ga. App. 602, 603 (1) (487 SE2d 128) (1997).

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

Decided January 15, 2002.

Frederick J. Hanna & Associates, Elizabeth C. Whealler, for appellant.

       OCGA § 24-3-36. See also Balest v. Simmons, 201 Ga. App. 605, 609 (2) (411 SE2d 576) (1991).
      Moreover, [plaintiff’s] failure to disclose exceptions in the space provided when by his own admission he was aware of the alleged additional obligation? compels application of the rule of estoppel by silence, as [plaintiff’s] silence when he was offered an opportunity to raise his claim for additional payment was tantamount to an admission that no such exceptions existed.
      (Citation omitted.) Id.
      The return was silent as to the residence of the president [of the foreign corporation], and yet after service upon the local agent alone the default judgment was held sufficient. . . . Whatever may be the rule in ordinary cases, both the allegations and the silence of this motion make it certain that the garnishee had been duly served. . . . This proof sometimes appears from facts on the face of the record, or from the failure of certain other facts to appear in the record.
      (Citations omitted.) Jones v. Bibb Brick Co., 120 Ga. 321, 327 (48 SE 25) (1904). See also Busey v. Milam, 95 Ga. App. 198, 203 (2) (97 SE2d 533) (1957).


author: Mikell, Judge.

text:
    A01A1918.
    EDWARDS v. CENTRAL GEORGIA HHS, INC.
    (558 SE2d 815)
   Mikell, Judge.

Donald S. Edwards, Jr. appeals from the trial court’s grant of summary judgment to Central Georgia HHS, Inc. (“HHS”). Edwards claims the trial court erred because jury questions remained as to whether HHS fraudulently misrepresented that Edwards would be paid “incentive bonuses” in addition to his salary and whether the alleged employment agreement provided a clear formula for calculating such bonus payments. Because the promise upon which Edwards claims he relied was unenforceable, we affirm.

Summary judgment is proper when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

Edwards brought this action against his former employer, HHS, seeking to recover $15,000 in “incentive bonuses” under a breach of contract theory and to recover general damages for fraud. The record shows that Edwards accepted a job with HHS on October 7, 1997, by signing an offer letter from Mike Sullivan, Director of Marketing for CareSouth Homecare Professionals, which was the trade name of HHS. Sullivan’s letter provided that Edwards would be paid an annual salary of $65,000 and stated that “CareSouth offers ... an incentive bonus plan for this position that is expected to provide between 15% and 25% of your base salary as additional compensation.” Edwards sent a separate letter to Sullivan on October 7, in which he accepted the job offer under the terms of Sullivan’s October 3 letter and acknowledged that he understood that “the exact specifics of the incentive plan are still under consideration.” It is undisputed that Edwards was an at-will employee. He resigned in April 1999 after not receiving any bonus payments.

1. First, Edwards argues that the trial court erred in granting HHS' motion for summary judgment because genuine issues of material fact remain as to whether his employer made fraudulent misrepresentations that it would pay him incentive bonuses. Edwards argues that the agent of HHS did not intend to honor his promise of a bonus at the time it was made, thereby committing actionable fraud. We conclude that Edwards’ theory of fraud is not viable.

As a general rule, actionable fraud cannot be based on statements and promises as to future events. Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571 (2) (208 SE2d 583) (1974). “There is no question that the promises made by [Sullivan, acting on behalf of HHS,] to [Edwards] were prospective in nature and therefore fall within the ambit of this rule. Nor does actionable fraud result from a mere failure to perform promises made.” Id.

We have previously acknowledged the exception to this rule that Edwards now asserts: “Although actionable fraud cannot be based on statements and promises as to future events, there is an exception to this proposition, which is that fraud may be predicated on a promise made with a present intention not to perform.” Kirkland v. Pioneer Machinery, 243 Ga. App. 694, 695 (534 SE2d 435) (2000). See also Wheeling v. Ring Radio Co., 213 Ga. App. 210, 211 (444 SE2d 144) (1994). However, here, as in Kirkland, supra, we conclude that the exception on which Edwards bases his claim does not apply “because the promises upon which [Edwards] claims he relied were unenforceable even absent any fraud at the time of their utterance because the underlying employment contract, being terminable at will, is unenforceable.” See also Ely, supra at 572. See generally Stover v. Candle Corp. of America, 238 Ga. App. 657, 659 (2) (520 SE2d 7) (1999) (“a promise to pay a bonus in the future is not enforceable under a terminable-at-will. . . contract”).

“An employment contract containing no definite term of employment is terminable at the will of either party.” Wheeling, supra at 211. It is clear that the letters between Sullivan and Edwards did not establish a definite term of employment. See id. Further, “an employee has no entitlement to a certain term of employment unless a contract exists therefor. An oral contract of employment for a term beyond one year is unenforceable under the statute of frauds. [Cits.]” (Punctuation omitted.) Id. at 210. Accordingly, the trial court properly found that Edwards could not maintain a fraud claim based on the undisputed facts in the record, and that HHS was entitled to judgment as a matter of law.

2. Next, Edwards argues that the trial court erred in granting summary judgment to HHS on his breach of contract claim because genuine issues of fact remain as to whether the alleged employment agreement set forth a readily determinable formula for calculating his bonus. We disagree and conclude that the trial court properly entered summary judgment.

The Supreme Court considered what constitutes an enforceable promise of future compensation in Arby’s, Inc. v. Cooper, 265 Ga. 240 (454 SE2d 488) (1995). There, the plaintiff filed suit to recover unpaid annual bonuses from his former employer. In holding that the employer’s promise to pay the bonuses was unenforceable, the Supreme Court reasoned that

[t]o be enforceable, a promise of future compensation must be made at the beginning of the employment. [Cits.] However, the promise of future compensation must also be for an exact amount or based upon a “formula or method for determining the exact amount of the bonus. (Cit.)” Christensen v. Roberds of Atlanta, Inc., 189 Ga. App. 289, 291-292 (2) (375 SE2d 267) (1988) (promise to pay a bonus of $7,000 to $8,000 per year not enforceable).

(Emphasis omitted.) Id. at 241. Sullivan’s offer letter did not expressly state the terms under which Edwards would receive a bonus, nor did it specify the exact amount or a set formula for determining the exact amount of the bonus. Thus, it was not enforceable. Arby’s, Inc., supra; Christensen, supra.

In an affidavit filed in response to HHS’ motion for summary judgment, Edwards swore that during the course of his employment, he was asked by his supervisors to draft a proposed incentive plan, which he did on four occasions; that he provided HHS with a spreadsheet documenting the contracts and the approximate revenue he generated; and that Dr. Ron Conner, the company’s CEO, told him during a December 7, 1997 meeting that a commission plan would be in place in 1998. Edwards argues that even if the parties’ agreement was indefinite at the time of formation, “the subsequent words and conduct of the parties made the bonus provisions of the employment contract definite.”

Contrary to Edwards’ argument, the Supreme Court clearly held in Arby’s, Inc., supra, that a promise of future compensation must have been made at the beginning of the employment in order to be enforceable. Thus, the subsequent actions of Edwards’ superiors did not render the promise enforceable.

Furthermore, the undisputed evidence demonstrates that a definite formula for calculating Edwards’ bonus was never established. “Permitting a bonus to be only partially tied to a formula is not consistent with the rationale for requiring a formula. That rationale . . . is that the sum of money to be paid for performance of services under a contract should be definitely and objectively ascertainable from that contract.” Arby’s, Inc., supra at 241. When Sullivan offered Edwards the job, his October 3, 1997 letter referred to “[a]n incentive bonus plan for this position that is expected to provide between 15% and 25% of your base salary as additional compensation.” In accepting the offer, Edwards acknowledged that “the exact specifics of the incentive plan are still under consideration.” In fact, he further stated that he understood that the bonus would be based “on either dollar sales or specific achievements.” The promise of future compensation was too indefinite to be enforceable. See Stover, supra at 659 (2); Christensen, supra. Accordingly, the trial court correctly entered summary judgment on the breach of contract claim.

Decided January 15, 2002.

Webb & Webb, Michael S. Webb, for appellant.

Pursley, Howell, Lowery & Meeks, Roy H. Meeks, Jr., for appellee.

Judgment affirmed.

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

       In Kirkland, supra, we affirmed the trial court’s grant of summary judgment to the defendant after the plaintiff claimed that he justifiably relied on his former employer’s fraudulent misrepresentations that he would not be fired.


author: Ruffin, Judge.

text:
    A01A2080.
    ARNOLD v. THE STATE.
    (560 SE2d 33)
   Ruffin, Judge.

A jury found Danny Arnold guilty of possession of cocaine. He appeals, claiming that he received ineffective assistance of trial counsel and that the trial court erred in allowing three witnesses to testify for the State. For reasons that follow, we affirm.

1. The record shows that on January 1, 1999, the Douglasville Police Department conducted surveillance of the Raven Wood Apartments, a “high crime” and “high drug” area that had been the subject of citizen complaints regarding drug activity. During the surveillance, Officer James Phipps observed a green Honda Civic pull into the apartment complex. According to Phipps, an individual walked up to the car and “appeared to hand the driver something.” After the individual stepped away, the car left the complex. Phipps estimated that the car remained in the complex for only ten to fifteen seconds.

Phipps contacted Officer Lee Martin, reported what he had seen, and described the Honda Civic. Martin, who was nearby, spotted a car matching Phipps’ description and stopped it. Martin had the driver, identified at trial as Arnold, step out of the car and then requested permission to search the vehicle. Arnold gave his consent. During the search, police found a substance later identified as cocaine in the car. Martin subsequently arrested Arnold.

Shortly before the scheduled trial date, defense counsel moved to suppress the cocaine, arguing that the police had no valid basis to stop Arnold’s car. The trial court refused to consider the motion, which it deemed untimely. Through new appellate counsel, Arnold now argues that trial counsel was ineffective in failing “to timely file a Motion to Suppress based on the total lack of probable cause to stop and detain” him.

To prevail on this claim, Arnold must “show both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” The failure to file a motion to suppress is not “per se” ineffective assistance of counsel:

For example, it is not deficient to fail to file a motion which is frivolous. Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, [Arnold’s] burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.

This appeal is Arnold’s first opportunity to assert that trial counsel, who filed the notice of appeal, was ineffective. Generally, we remand such claims to the trial court for an evidentiary hearing. Remand is unnecessary, however, “when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel.” This is such a case.

Arnold does not dispute that he consented to the search of his car. Accordingly, if Officer Martin was authorized to stop Arnold’s car, that search was valid. “An investigative stop of a vehicle must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” To conduct a stop, a police officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” That suspicion need not constitute probable cause, but must be more than a hunch.

Police officers in this case had a particularized and objective basis for suspecting Arnold of criminal activity. Officer Phipps observed Arnold drive into a high crime area known for drug activity, stop briefly while another individual appeared to hand him something, and then immediately leave the area. Phipps conveyed this information to Martin by radio, indicating that he had seen “what he believed to be a drug transaction.” Although Martin did not personally see any suspicious activity before he stopped Arnold, “[information which police transmit to one another, by any accepted means of communication, can provide ‘sufficient grounds to create an articulable suspicion warranting reasonable cause to stop [an] automobile.’ ”

Given the totality of these circumstances, particularly the apparent exchange between Arnold and the individual who approached his car, the police had reasonable suspicion to stop Arnold. As a matter of law, therefore, Arnold cannot make the requisite strong showing that, had trial counsel filed a timely motion, evidence seized as a result of the investigatory stop would have been suppressed. Accordingly, Arnold’s ineffective assistance claim fails.

2. Arnold also argues that the trial court erred in allowing Officer Phipps to testify because the State failed to include him on its witness list. A felony defendant who elects to participate in the reciprocal discovery procedures under OCGA § 17-16-1 et seq. must be furnished with a list of the State’s witnesses, as well as information about those witnesses. The record shows that Arnold opted into these discovery procedures, and the State provided him with various discovery materials, including a witness list. That witness list did not include Phipps’ name. With the discovery package, however, the State produced a copy of Arnold’s arrest warrant, which listed Phipps as a witness. Arnold also received the police report, which referenced Phipps, as well as a supplemental narrative report prepared by Phipps.

Although Arnold objected to Phipps’ testimony, he did not request a continuance. The trial court agreed that Phipps was not on the State’s witness list. It found, however, that Phipps was referenced on the warrant and that Arnold received Phipps’ report. Concluding that the State had not concealed Phipps from the defense, the trial court permitted his testimony, but allowed the defense to interview him before he took the stand and, as “the sanction . . . for [Phipps] not being formally disclosed,” restricted his testimony to the substance of his report.

Upon learning of a discovery violation, the trial court, in its discretion, “may order the state to permit. . . [an] interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from . . . presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” This provision does “not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates.” Rather, it vests the trial court with discretion to fashion an appropriate remedy for the violation. We will not reverse the trial court’s decision allowing Phipps’ testimony unless it abused that discretion.

We find no abuse of discretion. Absent prejudice and bad faith, “an interview of the witness is the remedy for failure to comply with the requirement that a witness must be identified prior to trial.” The record does not support a finding of bad faith or prejudice here. As noted by the trial court, the State did not conceal Phipps’ name from the defense; his participation in the case was referenced in several documents produced to Arnold, such as the warrant that listed him as a witness. The State also included Phipps’ narrative report in its discovery package, and Phipps’ testimony was limited to the substance of that report. Furthermore, despite Arnold’s claims that the outcome of the trial would have been different had Phipps’ testimony been excluded, he has not shown how the late identification prejudiced him, given the prior disclosure of Phipps’ report.

Arnold knew the substance of Phipps’ testimony from the previously produced report, interviewed Phipps before he took the stand, and did not request a continuance. Under these circumstances, the trial court did not err in admitting Phipps’ testimony.

Decided January 15, 2002.

Leonard Danley, William H. Kitchens, Jr., for appellant.

David McDade, District Attorney, Gregory R. Barton, Assistant District Attorney, for appellee.

3. Finally, Arnold argues that the trial court improperly allowed two chain of custody witnesses who were not included on the State’s witness list to testify. The record shows that the day before trial, the State disclosed these two witnesses to Arnold. According to the prosecutor, the State first learned about the witnesses that day, disclosed them immediately to defense counsel, and indicated that it would not “vehemently oppose” a continuance. After the State identified the witnesses, defense counsel spoke with both individuals.

At the beginning of trial, defense counsel objected to the witnesses’ testimony, indicated that a continuance would not be “sufficient,” and requested that they be excluded. Characterizing the witnesses as “newly-discovered,” the court refused to exclude their testimony. It noted, however, that defense counsel would be given additional time to interview the witnesses, if necessary.

Again, we find no abuse of discretion. The prosecutor stated in his place that he did not know about these witnesses until the day before trial, and Arnold presented no evidence of bad faith. Arnold’s counsel spoke with the witnesses prior to their testimony, the trial court offered additional time for interviews if needed, and Arnold did not seek a continuance. Furthermore, although Arnold alleges that these chain of custody witnesses were crucial to the prosecution, he has not shown that the State’s delay in disclosing them prejudiced him. Accordingly, the trial court did not abuse its discretion in admitting their testimony.

Judgment affirmed.

Johnson, P. J, and Ellington, J, concur.

       In two footnotes, Arnold also asserts that counsel ineffectively failed to request a continuance when the trial court allowed three prosecution witnesses not included on the State’s witness list to testify. Arnold’s enumerations of error, however, do not include such a claim, and a party cannot expand his enumerations of error through argument or citation in his brief. See Gunsby v. State, 248 Ga. App. 18, 22 (3) (545 SE2d 56) (2001).

        Setser v. State, 233 Ga. App. 822, 824 (2) (505 SE2d 798) (1998).

        Lane v. State, 250 Ga. App. 160, 161 (1) (549 SE2d 468) (2001).

       See Setser, supra.

       (Punctuation omitted.) Id.

       See McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112) (1997).

       (Punctuation omitted.) Smith v. State, 245 Ga. App. 613, 615 (538 SE2d 517) (2000).

       (Punctuation omitted.) Id.

       See id.

       (Punctuation omitted.) Walton v. State, 194 Ga. App. 490, 491 (2) (390 SE2d 896) (1990). See also McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836) (1984) (“[W]hen the police received a call to be on the lookout for a car which had been involved in a shooting and the car in question roughly fit the description given for the lookout, this provided the basis for an articulable suspicion justifying the stop.”).

       See Lambright v. State, 226 Ga. App. 424, 426-427 (1) (487 SE2d 59) (1997); Jackson v. State, 217 Ga. App. 485, 487 (2) (458 SE2d 153) (1995) (physical precedent only).

       See Lane, supra at 163.

       See OCGA §§ 17-16-3; 17-16-8 (a). Arnold’s reliance on OCGA § 17-16-21 is misplaced. The discovery provisions in that Code section apply to misdemeanor cases. See OCGA § 17-16-20.

       OCGA § 17-16-6. See also Malaguti v. State, 273 Ga. 398, 401 (2) (543 SE2d 1) (2001).

        Romero v. State, 247 Ga. App. 724, 725 (545 SE2d 103) (2001).

       See id.

       See Malaguti, supra at 402-403; Wilbanks v. State, 251 Ga. App. 248, 255 (5) (a) (554 SE2d 248) (2001).

        Massey v. State, 272 Ga. 50, 51-52 (4) (525 SE2d 694) (2000).

       See id.; Wilbanks, supra; McGuire v. State, 243 Ga. App. 899, 900-901 (2) (534 SE2d 549) (2000); Jones v. State, 243 Ga. App. 351, 352-353 (1) (532 SE2d 120) (2000) (physical precedent only). See also McLarty v. State, 238 Ga. App. 27, 29 (2) (516 SE2d 818) (1999) (“When the identity and involvement of a witness are otherwise disclosed to defendant in discovery provided to him by the State, the purpose of the witness list rule is served and the court may allow the State to call the witness even though he or she was not listed on the State’s formal witness list.”).

       See Johnson v. State, 247 Ga. App. 660, 665-666 (6) (544 SE2d 496) (2001), overruled in part on other grounds, Brown v. State, 274 Ga. 31, 34 (1) (549 SE2d 107) (2001).


text:
    A01A2358.
    PIKE NURSERIES, INC. v. ALLEN et al.
    (558 SE2d 834)
   Miller, Judge.

The question on appeal is whether the trial court erred in not following recent Supreme Court of Georgia authority requiring that a parent be physically impacted and injured in an accident in order to recover for emotional distress caused by seeing a child injured in the accident. We hold that the trial court erred and reverse its denial of partial summary judgment to the defendant.

When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Construed in favor of the plaintiffs, the evidence showed that Pike Nurseries, Inc. maintained a concrete display fountain at its business that fell upon Kenneth and Annette Allen’s five-year-old daughter. Alleging they both witnessed the accident or its aftermath, Kenneth and Annette sued Pike, inter alia, for intentional infliction of emotional distress, alleging that Pike’s wilful and wanton misconduct in negligently maintaining the fountain resulted in the accident. The parents, however, admitted in their depositions that the fountain did not physically impact them. Pike moved for partial summary judgment on the claims for mental and emotional distress.

In the order denying Pike’s motion, the trial court acknowledged that Lee v. State Farm &c. Ins. Co. recently reaffirmed that a parent’s recovery for the emotional distress of witnessing a child’s injury requires that the parent sustain a direct physical impact along with the child. Nevertheless, citing to the Lee special concurrence (joined in by only two justices), the trial court rejected this requirement and held that even without physical impact to the parents, a jury could find in favor of the parents.

1. The trial court’s ruling is obviously contrary to the most recent majority decision of the Supreme Court of Georgia regarding Georgia’s impact rule. As the trial court noted, Lee still requires that the parent sustain a direct physical impact and resulting physical injury, along with the child, for a parent to recover for the emotional distress of witnessing the child’s injury, and here the Allens admitted that neither of them sustained any such impact let alone resulting physical injury. The Court of Appeals nor the trial court has the authority to overrule decisions of the Supreme Court of Georgia. Accordingly, the trial court should have granted Pike’s motion for partial summary judgment unless- the impact rule exception discussed in Division 2 applies.

2. The only exception to the impact requirement is “when the alleged conduct directed toward the plaintiff is malicious, wilful or wanton.” Although the Allens do not contend that Pike’s conduct was malicious, they do contend that a jury should be allowed to decide whether it was wanton and wilful, principally on the basis that the store manager testified in his deposition that the base, bowl, and statue of the fountain were intended to balance on each other without any fastening.

To prove the wilfulness or wantonness required by this exception, however, the Allens were required to show that the conduct was specifically directed at them and not at Pike’s visiting customers generally. In Ford v. Whipple, the defendant sped through a red light and collided with a vehicle in which the child (on whose behalf the suit was filed) was a passenger. Although the child was physically uninjured, its claim for emotional distress alleged that the defendant’s conduct was wilful and wanton. Disallowing the claim, Ford explained:

Disregard of general consequences is a part of wanton behavior, but the exception to the impact rule requires more; the wantonness must be directed to the plaintiff. To say the actor’s conduct is directed at anyone who is in the path ignores the additional requirement. Such an analysis would create the tort of negligent infliction of emotional distress and ignore the rule that even malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.

Similarly, under the circumstances presented in the record the evidence did not show that Pike’s conduct with respect to the fountain was specifically directed to the plaintiffs as opposed to anyone who was in the vicinity of the fountain. Accordingly, we hold that the trial court erred in its denial of Pike’s motion for partial summary judgment.

Judgment reversed.

Andrews, P. J., and Eldridge, J., concur.

Decided January 15, 2002.

Weissman, Nowack, Curry & Wilco, Charles B. Waters, Jr., for appellant.

James B. Gurley, for appellees.

        Bulloch South, Inc. v. Gosai, 250 Ga. App. 170 (550 SE2d 750) (2001).

       272 Ga. 583, 588 (III) (533 SE2d 82) (2000).

       Id. at 584 (I).

       Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI; see Parian Lodge v. DeKalb County, 225 Ga. App. 853, 854 (1) (485 SE2d 545) (1997).

       (Citations omitted.) Lee, supra, 272 Ga. at 584, n. 2.

       225 Ga. App. 276 (483 SE2d 591) (1997).

       (Citations and punctuation omitted.) Id. at 278.

       Compare Poole v. City of Louisville, 107 Ga. App. 305, 308 (1) (130 SE2d 157) (1963) (conduct of officers chasing plaintiff’s car was clearly directed to plaintiff).


author: Phipps, Judge.

text:
    A00A1391.
    TURNER v. BUTLER.
    (558 SE2d 859)
    Decided January 16, 2002.

      Browning & Tanksley, Thomas J. Browning, for appellant.

      Banks, Stubbs, Neville & Cunat, Robert S. Stubbs III, Dana A. Azar, for appellee.
   Phipps, Judge.

In Turner v. Butler, we reversed the trial court’s denial of Turner’s motions for directed verdict and judgment notwithstanding the verdict in this action by Butler against Turner. On certiorari, the Supreme Court reversed our decision. Accordingly, our prior opinion is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

       245 Ga. App. 250 (537 SE2d 703) (2000).

        Butler v. Turner, 274 Ga. 566 (555 SE2d 427) (2001).


author: Andrews, Presiding Judge.

text:
    A01A1859.
    WRIGHT v. CITY OF COCHRAN.
    (558 SE2d 844)
   Andrews, Presiding Judge.

William Wright appeals from the trial court’s grant of summary judgment to the City of Cochran on his claim for damages after being shot by a co-worker, Robert Bullard. Wright claimed that the City created and maintained a nuisance when it did not fire Bullard after a previous attack on a co-worker. We disagree and affirm.

Wright and Bullard both worked for the City in the Solid Waste Department. On the day of the attack, Wright arrived at work early, parked his car, and went inside the building to eat breakfast. Bullard arrived shortly after and became angry when he saw that Wright had taken up two parking spaces. An altercation ensued and ended with Bullard shooting Wright in the shoulder.

Wright filed a workers’ compensation claim which was denied because the injury occurred before his work shift, was the result of a personal dispute with a co-worker, and was unrelated to his job.

Wright then filed a claim against the City, alleging that it had negligently hired and retained Bullard and maintained an unsafe work environment. Wright later filed an amendment to the complaint stating that the City maintained a nuisance by not firing Bullard.

The City filed a motion for summary judgment, contending that sovereign immunity barred Wright’s negligent hiring and retention claims and Wright’s claim of nuisance was legally insufficient. The trial court granted the motion, and this appeal followed.

Wright’s only argument on appeal is that the trial court incorrectly granted summary judgment on his nuisance claim.

“While a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it causes to a third party from the creation or maintenance of a nuisance.” Gooden v. City of Atlanta, 242 Ga. App. 786, 788 (531 SE2d 364) (2000). “Under Supreme Court guidelines, there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” (Punctuation and emphasis omitted.) City of Atlanta v. Chambers, 205 Ga. App. 834, 837 (5) (424 SE2d 19) (1992).

Here, the record shows that Bullard, who was at least 70 years old and had worked for the City since 1950, had only one other altercation with a co-worker. In that incident, Bullard put a rubber snake on the time clock, and it scared another employee who got angry and hit Bullard. There was a struggle, and Bullard pulled out a knife and cut the other man. With the exception of this one fight, which was not instigated by Bullard, the evidence was that Bullard had never been involved in any other fight or altercation and had never shot or threatened to shoot anyone.

Accordingly, the evidence shows that there was no previous incident which would have put the City on notice that its employee would shoot a co-worker. It follows that the City cannot be held liable for the “maintenance of that dangerous condition after knowledge thereof.” (Emphasis omitted.) Chambers, supra at 838 (5).

Judgment affirmed.

Eldridge and Miller, JJ, concur.

Decided January 16, 2002.

David L. Venable, for appellant.

Rita J. Llop, Melvyn J. Williams, for appellee.


author: Johnson, Presiding Judge.

text:
    A01A2070.
    TOWNSEND v. THE STATE.
    (558 SE2d 849)
   Johnson, Presiding Judge.

A jury found Thomas Townsend guilty of possession of cocaine, driving while his license was suspended, and driving without proof of insurance. On appeal, he challenges the sufficiency of the evidence supporting the possession of cocaine conviction. Because his challenge is without merit, we affirm the conviction.

Viewed in a light most favorable to the verdict, the evidence shows that a police officer followed Townsend and noticed that his truck was weaving over the roadway. The officer observed that Townsend was “paying more attention to [the officer] than to the roadway.” The officer activated his patrol car’s blue lights, and Townsend pulled over. The officer asked Townsend for his driver’s license and proof of insurance. Townsend replied that his license was suspended and handed him an insurance card for a truck that he previously owned, but none for the truck he was driving.

After confirming with a dispatcher that Townsend’s license was suspended, the officer placed Townsend under arrest for driving with a suspended license and began searching the truck incident to the arrest. Upon entering the truck, the officer noticed a cellophane wrapper protruding from an opening in the truck’s bench seat. As he tilted the bench seat forward to look behind the seat, the officer saw that the wrapper contained two pieces of what appeared to be crack cocaine. The substance, which later tested positive for cocaine, was located “right beside the right side of [Townsend’s] body when he would have been sitting in the truck.” The officer testified that a person sitting on the bench seat would not have to move the seat in order to place the wrapper inside the opening in the seat.

During the search, the officer noticed that Townsend was extremely nervous. The officer asked Townsend why he was so nervous. Townsend replied that he was nervous because he was driving while his license was suspended. When the officer confronted Townsend with the cocaine he found in the truck, Townsend denied knowing the cocaine was in the truck and stated that he just recently bought the truck.

Townsend contends the evidence was insufficient to support his conviction of cocaine possession because the state failed to prove that he knew the cocaine was in the truck. He argues that the cocaine was not in plain view, that he had just bought the used truck two days earlier, and that there was no evidence that he ever handled or tried to hide the cocaine. His argument presents no grounds for reversal.

There is a presumption that drugs found within a vehicle actually belong to the driver of the vehicle, particularly when the driver is also the owner of the vehicle. This presumption can be overcome by evidence that someone other than the defendant had the opportunity to commit the crime. However, if there is additional evidence that the accused possessed the drugs — either circumstantial or direct, other than mere ownership, use or possession of the vehicle — then the factfinder must decide whether the evidence of equal access is sufficient to rebut the presumption of possession. For instance, if there is evidence allowing the jury to conclude that another party with access did not place the drugs in the vehicle, or if the jury disbelieves the defendant’s claim that others in fact had such access, or if there is other evidence pointing to the defendant, the jury may conclude that the only reasonable hypothesis is that the defendant possessed the drugs.

Here, Townsend was the truck’s driver and its sole occupant at the time he was stopped. He was the only person with immediate access to the drugs, and part of the plastic wrapper which contained the drugs was visible from and within reach of his seat. Townsend was visibly nervous during the stop. And Townsend admitted at trial that he had used another illicit drug before, namely marijuana, and that marijuana seeds were found under the truck’s seat at the time of the stop, though he denied knowing the seeds were in the truck. Moreover, the police officer testified that, in his experience in investigating drug offenses, cocaine users are “going to keep up with” their drugs, rather than leave them lying around. The jury was authorized to find that the truck’s previous owner would not have turned the truck over to its new owner while his cocaine was still in the truck.

Thus, there was circumstantial evidence that went beyond the presumption of possession which arises from ownership alone. A rational trier of fact could have found Townsend guilty beyond a reasonable doubt of possession of cocaine.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided January 16, 2002.

Gerald B. Williams, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

       See Battle v. State, 244 Ga. App. 599, 601 (1) (536 SE2d 273) (2000); Visser v. State, 237 Ga. App. 798, 800 (2) (516 SE2d 840) (1999).

        Bodiford v. State, 246 Ga. App. 879, 880 (1) (542 SE2d 628) (2000); Battle, supra.

       Id.

       Id.

       See Davis v. State, 194 Ga. App. 482, 486 (4) (391 SE2d 124) (1990); Moon v. State, 194 Ga. App. 777, 778-779 (2) (392 SE2d 19) (1990).

       See Visser, supra; Knox v. State, 216 Ga. App. 90, 92 (3) (453 SE2d 120) (1995).


author: Ellington, Judge.

text:
    A01A2089.
    TORRES v. THE STATE.
    (558 SE2d 850)
   Ellington, Judge.

A DeKalb County jury convicted Javier Torres of trafficking in cocaine, OCGA § 16-13-31 (a). Following the denial of his motion for new trial, Torres appeals, contending the evidence was insufficient to convict; the trial court erred in refusing to excuse a juror; the trial court erred in refusing to give a requested jury charge; and he received ineffective assistance of counsel. Finding no error, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence must be construed in the light most favorable to the jury’s verdict. Reeves v. State, 244 Ga. App. 15, 17 (1) (a) (534 SE2d 179) (2000). So viewed, the evidence shows that a friend of Torres asked him if he knew someone who could find him a kilo of cocaine. That friend was a confidential informant who was assisting a narcotics detective. At trial, Torres admitted that he introduced the informant to Pedro Abonza and another man so that the sale of cocaine could take place. In exchange, Torres understood the informant would get him work. Torres also testified that he was present when the men met in his apartment to discuss the sale and that he rode with Abonza to make the sale.

The narcotics detective who was to make the buy arranged to meet the informant and the seller in a Home Depot parking lot. The informant told the detective to expect “Javier.” Torres and Abonza were passengers in a pickup truck the informant drove to the drug buy. The informant introduced the detective to “Javier” (Torres) and “Pedro” (Abonza). The detective negotiated the terms of the drug transaction with Abonza. After the terms of the transaction were settled, Torres and Abonza got out of the truck and folded the seat down. Abonza removed a speaker box from behind the seat. Together, Torres and Abonza unscrewed the speaker box. Abonza then removed a plastic bag containing a hard chunky substance and handed it to the detective. The white substance later tested positive as cocaine, with a purity of 29 percent and a weight of 897 grams.

A grand jury indicted Torres and Abonza for trafficking in cocaine. In separate trials, they were convicted and sentenced to 25 years. See Abonza v. State, 252 Ga. App. 104 (555 SE2d 781) (2001).

1. Torres maintains that the evidence was insufficient to support his conviction for trafficking in cocaine in that there was no evidence that he intended to participate in the sale of the cocaine or that he was a party to the crime. In support of this argument, Torres points to the detective’s testimony that Abonza, rather than Torres, negotiated the terms of the sale. Torres also points to his own testimony that he did not know where he was going when he rode in the truck with the informant and Abonza, that he did not know that there was cocaine in the truck, and that he did not know what the terms of the sale were.

Abonza advanced a similar “mere presence” defense at trial and on appeal challenged the sufficiency of the evidence. Abonza v. State, supra, 252 Ga. App. at 104. We found no merit in Abonza’s argument, and we reach the same conclusion here. Id.

An appellate court does not weigh the evidence or determine witness credibility, but only determines whether the evidence is sufficient under the standard set out in Jackson v. Virginia[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. While mere presence at the scene of a crime is not sufficient evidence to convict, criminal intent can be inferred from companionship, presence, and conduct before, during, and after an offense. [Torres’] position that reversal is required because he was merely a bystander at the scene of the crime is without merit. . . . All of [Torres’] actions indicate more than a mere bystander’s interest in the transaction and certainly indicate the necessary intent to commit a crime. Intent is a question for the trier of fact and not for determination upon review by this Court. Here, the evidence was sufficient to authorize the jury to find that [Torres] intended to commit the act of trafficking in cocaine.

(Footnotes omitted.) Id. at 105-106.

2. Torres contends the trial court erred in refusing to excuse for cause a potential juror who expressed doubts about his ability to be impartial.

Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. The decision to strike a juror for cause lies within the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion.

(Citations and footnotes omitted.) Rocha v. State, 248 Ga. App. 53 (1) (545 SE2d 173) (2001).

In this case, the prospective juror commented that his niece was killed by her boyfriend, a drug dealer. When asked whether he could set that aside and listen to the evidence impartially, the juror equivocated and said that he would rather not. The trial court then questioned him and emphasized that the issue was not whether he wanted to listen to the evidence, but whether he could be impartial and fair. The juror then stated that he could sit fairly and impartially. After the trial court denied his motion to strike the juror for bias, Torres used one of his peremptory strikes to remove the juror.

This is not a case where the trial court coercively “rehabilitated” a prospective juror who had expressed well-founded doubts about being able to serve impartially because of a close relationship with one of the parties or because of extrajudicial knowledge of the events at issue. Cf. Cannon v. State, 250 Ga. App. 777, 778-780 (1) (552 SE2d 922) (2001) (conviction reversed where trial court rehabilitated juror who had a personal relationship with the victim and extrajudicial knowledge of the rape); Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001) (wrongful death judgment reversed where trial court rehabilitated juror, a nurse, who had worked with the defendant doctor and stated she would favor the doctor in the litigation). Because there was no indication that the prospective juror in this case was so biased that he could not render an impartial verdict based on the evidence, the trial court did not abuse its discretion in refusing to remove him for cause. Evans v. State, 210 Ga. App. 804, 805 (437 SE2d 495) (1993).

3. Torres contends that the trial court erred in failing to give a requested jury instruction on hearsay. The requested charge explained that certain hearsay told to a police officer was admissible only to explain the officer’s conduct, not as evidence of guilt. Torres argues that because the lead detective testified about what the informant told him, and the informant did not testify, the charge was indicated. But during the charge conference, Torres’ counsel agreed with the trial court that there had been no such hearsay and the charge was not required. Because Torres, “in effect, [withdrew the] request to charge [, he] will not be heard to complain on appeal that the trial court erred when it failed to give the withdrawn charge.” (Citation omitted.) Kimble v. State, 270 Ga. 311, 312 (2) (509 SE2d 39) (1998).

Decided January 16, 2002

Lohmeier & Lohmeier, Gregory J. Lohmeier, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

4. Torres contends his trial counsel was ineffective for failing to adequately explain the consequences of not accepting a plea offer to a lesser sentence. Upon conviction, Torres received the minimum 25-year prison sentence required for a “third-tier” cocaine trafficking violation, i.e., possession or sale of 400 grams or more of cocaine. OCGA § 16-13-31 (a) (1) (C). He now maintains that he did not understand that if he rejected the State’s pretrial offer of a plea agreement to serve 15 years and was convicted, he would receive a mandatory minimum 25-year sentence. He asserts that his trial counsel led him to believe that even if he went to trial he might get a 15-year sentence.

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here [Torres] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations omitted.) Gilbert v. State, 208 Ga. App. 258, 263 (4) (430 SE2d 391) (1993). Although Torres’ own testimony was equivocal, there was evidence to support the trial court’s finding that counsel adequately informed Torres of the consequences of refusing the State’s plea offer of 15 years. Torres testified at the new trial hearing that his counsel told him, “If I said that I was guilty, I would be given 15; if not, I would go to trial and I would get 25.” His counsel testified that he repeatedly explained the State’s plea offer and the consequences of risking conviction at trial on a third-tier trafficking offense. The trial court’s finding that Torres was not denied effective assistance of counsel is not clearly erroneous and will not be disturbed. See Hammonds v. State, 218 Ga. App. 423-424 (1) (461 SE2d 589) (1995) (defendant’s claim that counsel did not adequately discuss plea with him contradicted by counsel’s testimony that they discussed plea offer several times).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       During the charge conference, the following exchange took place: “The Court: T don’t think we had any hearsay covered by this [requested charge], do we?’ Torres’ Counsel: ‘No, I don’t think there is any direct hearsay, Judge. I was planning on withdrawing it.’ The Court: ‘Okay.’ Torres’ Counsel: ‘I’ll let the court rule.’ The Court: T won’t give it.’ ”