author: Smith, Judge.

text:
    A98A1407.
    PEARSON v. SMALL WORLD DAY CARE CENTER, INC.
    (508 SE2d 200)
   Smith, Judge.

Matthew Hawkins, by his next friend, his mother Nancy Pearson, brought suit against Small World Day Care Center, Inc., to recover damages for injuries he sustained when he fell from the monkey bars on a playground at the center. He appeals from the trial court’s grant of summary judgment to the center. Because we find that issues of fact remain for jury resolution with regard to Matthew’s capacity to appreciate the danger or assume the risk and with regard to the center’s negligence, we conclude that summary judgment was improper. We therefore reverse the judgment below.

The record shows that Matthew was four years and seven months old at the time of the incident. He was enrolled in the center’s day care program at that time and was playing outside with the other members of his class. The 15 members of the class were supervised by their teacher during their play. Matthew was playing on the monkey bars with other children, trying to swing to the top bar. He was at the top when he missed a bar and fell, hitting his abdomen on one bar and chipping a tooth on another bar before falling to the ground.

Although Matthew’s teacher was supervising the children’s play, she did not realize he had fallen. After he fell, Matthew crawled up a hill to his teacher to get help. Matthew could not say anything at first but simply moaned. His teacher helped him stand and took him back to the center. He was then placed on the floor with a pillow. He threw up a small amount. Matthew’s mother was called, and she left work and came to the center. She testified that she carried Matthew out and immediately drove him to see a doctor at the clinic where she worked as a licensed practical nurse.

Pearson testified on her deposition that when she saw Matthew at the day care center he was in shock and barely conscious. Upon arrival at the clinic, an ambulance was called, and Matthew was transported to Scottish Rite Hospital. A CAT scan of his abdomen revealed a lacerated liver. He was in critical condition and was admitted to the intensive care unit, where he remained for seven days. He was bleeding internally, required a transfusion, and was not discharged from the hospital until 13 days after the incident.

1. We note initially that the center’s complaints regarding the delay of this appeal are incorrectly addressed to this Court. OCGA § 5-6-48 (c) specifically provides that “[n]o appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court.” Moreover, the center has not shown by the record that the delay was attributable to Hawkins.

2. Hawkins contends the trial court’s grant of summary judgment was improper for two reasons.

(a) He first argues that it appears summary judgment was granted simply because he failed to file a response to the center’s motion. The trial court’s order granting the center’s motion for summary judgment recites that it was granted because “the defendant’s Motion for Summary Judgment is unopposed and that no genuine issues of material fact remain.” Hawkins is, of course, correct in pointing out that summary judgment may not be granted by default. “The failure of the non-moving party to file the pleadings required by USCR 6.2 does not entitle the moving party to the grant of summary judgment. [Cits.]” Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) (429 SE2d 714) (1993). But because the trial court also found that no genuine issues of material fact remained, we will not assume that summary judgment was granted in this case simply because Hawkins did not respond to the center’s motion.

(b) Hawkins’s second contention is that the trial court erred in granting summary judgment because genuine issues of material fact do remain for jury resolution. We agree with this contention.

The center sought summary judgment on the ground that Matthew had assumed the risk. “Assumption of risk assumes that the actor, 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.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524) (1991). To show that Matthew assumed the risk, the center was required to establish that Matthew must actually have appreciated the danger of falling from the monkey bars. He must have known that monkey bars could be dangerous but nevertheless made a conscious decision to proceed. Id. at 824. But if, because of his age, Matthew did not understand the risk involved in climbing on the bars, he cannot have consented to assume it. “His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence.” (Citation, punctuation and emphasis omitted.) Id.

Contrary to the center’s argument, this issue cannot be decided as a matter of law. In Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736) (1976), the Supreme Court granted certiorari to review the issue of the age at which children could be charged with negligence or contributory negligence. Notwithstanding prior decisions to the contrary, the Supreme Court reversed the decision of this Court that held that children under the age of six are too young to be capable of contributory negligence, holding in Ashbaugh that the courts must be guided by the plain language of the predecessor statute to OCGA § 51-1-5. That 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.

In other cases, it has been held that whether a child assumed the risk “is peculiarly a question for the jury.” Walt Disney Productions v. Shannon, 247 Ga. 402, 404, n. 3 (276 SE2d 580) (1981). But if “the facts are so plain and palpable that they demand a finding by the court as a matter of law,” the trial court may grant summary judgment. Jackson v. Young, 125 Ga. App. 342, 343 (187 SE2d 564) (1972). That was the situation in Abee v. Stone Mtn. Mem. Assn., 252 Ga. 465 (314 SE2d 444) (1984) and in Riley v. Brasunas, 210 Ga. App. 865 (438 SE2d 113) (1993). But this case does not fall within the category of those in which the danger is so plain that a child the age of the plaintiff may be held as a matter of law to have assumed the risk. Instead, the question of whether Matthew assumed the risk must be decided by a jury.

Decided October 23, 1998.

John R. Jackson, for appellant.

Tittsworth, Grabbe & Spillers, Michael W. Tittsworth, John C. Grabbe TV, for appellee.

Here, as in Clanton v. Gwinnett County School Dist., 219 Ga. App. 343 (464 SE2d 918) (1995), the jury is in the best position to “size up all the particular evidence in the case and bring its collective common knowledge of children’s capacities to bear in determining first, whether the child was capable of negligence in the premises and second, whether the child was negligent. [Cits.]” Id. at 344 (1) (b).

Other questions remain as well. Pearson alleged negligence on the part of the center in supervising the children on the monkey bars, evidenced by the fact that Matthew had to crawl up a hill to apprise his teacher of the fact he had fallen. She also alleged that the center should not have moved Matthew after the fall, and that given his obvious appearance of being in shock, the center should have called an ambulance immediately. These issues must now be addressed at trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A0894.
    BAKER v. THE STATE.
    (507 SE2d 475)
   Beasley, Judge.

Baker was found guilty of receiving stolen property consisting of “Georgia lottery . . . ticket #225 from Lucky Joker and of a value greater than $500.00.” A ten-year non-parolable felony sentence was imposed, pursuant to OCGA §§ 16-8-12 (a) (1) and 17-10-7 (c) (recidivist). He contends the evidence was insufficient to show that the value of the ticket exceeded the specified sum.

The State’s witnesses included Robinson, the owner of the New Deal convenience store which retails lottery tickets, and Clardy, an investigations manager employed in the security department of the Georgia Lottery Corporation. Their testimony showed that the Lucky Joker is an instant scratch-off lottery ticket sold to the public for $1. When instant lottery tickets are activated, they become the financial responsibility of the retailer and redeemable by the holder. If a pack of tickets is reported to the Lottery Corporation as stolen, the status of the tickets can be changed by computer from activated to invalid, thereby blocking their redemption by eliminating their winning value.

Robinson testified that around 5:00 a.m. on October 2, 1996, there was a break-in at his store and approximately 2,000 activated instant lottery tickets were stolen. Robinson reported the theft of the tickets to the Lottery Corporation at approximately 8:00 a.m. the same day. Vaughn, an employee of the Coastal Food Mart which sells lottery tickets, testified that at 6:00 a.m. that day, two men appeared at the store where she worked and cashed approximately $100 in winning lottery tickets. One of the men attempted to redeem a winning $5,000 Lucky Joker ticket, which Vaughn identified as Lucky Joker ticket no. 225. He was told he would have to redeem a ticket for that amount at the Georgia lottery office in downtown Atlanta, with identification. He offered to sell the ticket to the store owner for $2,500. His offer was declined.

Between 10:00 and 11:00 a.m. on October 2, Baker was videotaped attempting to redeem the stolen Lucky Joker ticket no. 225 at the downtown lottery office. Clardy, investigations manager in the security department, confronted Baker and asked where he purchased the ticket. Baker said he bought it the day before at a Majik Market-type convenience store.

Baker’s mother, Wade, also appeared as a State’s witness. She transported Baker to the lottery office so he could redeem the ticket. According to Wade, Clardy told Baker that DeKalb County police detective Johnson was conducting an investigation of the matter, resulting in Wade taking Baker to see Johnson after leaving the lottery office. From there, they proceeded to the Coastal Food Mart. Although Wade testified that she took her son there because of information provided by Johnson, she also testified that Baker told her that the female employee at that store had told him that the ticket was valid but that he would have to go to the downtown lottery office to cash it.

After Clardy completed his investigation and reported his findings to the DeKalb County police, Detective Johnson prepared a photographic array which included a picture of Baker and showed it to Vaughn, the Coastal Food Mart employee. But she failed to identify Baker as one of the men who had tried to redeem the ticket at her store and selected another person instead.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” While value thus is not an element of this crime, it is relevant for the purpose of distinguishing between a misdemeanor and a felony for sentencing. In this regard, OCGA § 16-8-12 (a) provides that a person convicted of this offense shall be punished as for a misdemeanor but if “the property which was the subject of the theft exceeded $500.00 in value,” the crime may be punishable as a felony. The cost of the property to the owner, although relevant on the question of value, is not the ultimate determinant. The value of property which is the subject of the theft is the fair cash market value either at the time and place of the theft or at any time during the receipt or concealment of the property. The defendant is chargeable with a felony if the stolen property exceeds $500 in value under the above criteria; there is no requirement that the value of the property be known to the defendant either when he received the property or thereafter.

Decided September 25, 1998

Reconsideration dismissed October 26, 1998

James D. Michael, for appellant.

Dexter S. Baker, pro se.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Construed in a light most favorable to the verdict, the evidence authorized a jury to find that Baker was the person who attempted to redeem the lottery ticket at the Coastal Food Mart at 6:00 a.m. and thus was in receipt of the ticket at a time when it still had a redemption value of $5,000. The evidence is, therefore, sufficient to support his conviction.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 16-8-7 (a).

       Id.

       See Ayers v. State, 164 Ga. App. 195, 197 (2) (296 SE2d 772) (1982).

       See Dunbar v. State, 146 Ga. App. 136 (2) (245 SE2d 486) (1978).

       See generally 50 AmJur2d 58-59, Larceny, § 50 (1995).

       E.g., Jowers v. State, 225 Ga. App. 809, 810 (1) (484 SE2d 803) (1997).


author: Blackburn, Judge.

text:
    A98A1990.
    GEORGIA COLOR FARMS, INC. v. K.K.L., LIMITED PARTNERSHIP.
    (507 SE2d 817)
   Blackburn, Judge.

Georgia Color Farms, Inc. appeals the trial court’s grant of summary judgment in favor of plaintiff, K.K.L., Limited Partnership, in the underlying action based upon the breach of a lease between the parties. Georgia Color Farms contends: (1) that K.K.L. failed to give Georgia Color Farms credit for improvements it made to the property; (2) that the trial court granted K.K.L. excessive pre-judgment interest; and (3) that the trial court improperly awarded attorney fees to K.K.L. For the reasons set forth below, 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). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The record shows that Georgia Color Farms entered into a three-year agreement with K.K.L. on December 15, 1993, to lease property to support a commercial nursery until January 14, 1997. On or around January 26, 1996, Georgia Color Farms vacated the property and failed to pay rent in the amount of $1,750 a month, thereafter owed to K.K.L. On December 16, 1996, K.K.L. rented the property to another tenant at the rate of $1,000 per month.

K.K.L. filed suit against Georgia Color Farms to collect back rent, interest, and attorney fees owed to it pursuant to the lease agreement. Georgia Color Farms counterclaimed, contending (1) that K.K.L. was responsible for reimbursing it for improvements made to the property and (2) that K.K.L. had tortiously interfered with Georgia Color Farms’ contract to sell its nursery business. On December 22, 1997, K.K.L. filed a motion for summary judgment on both its claims and Georgia Color Farms’ counterclaims. On April 6,1998, the trial court granted K.K.L.’s motion, awarding it $20,250 for unpaid rent, $1,453.54 for taxes, $2,170.30 for attorney fees, and $8,301.60 in pre-judgment interest. Georgia Color Farms appeals from this order.

1. Georgia Color Farms contends that K.K.L. should be required to reimburse it for the cost of improvements it made to the property, the value of which totaled approximately $15,027.41. These improvements include, among other things, electrical wiring, landscaping, fencing, installation of gas lines for heating, and installation of a bathroom.

Paragraph 13 of the lease agreement provides: “Tenant accepts the Premises in [its] present condition and as suited for the uses intended by Tenant. Tenant shall ... at its expense, maintain in good order and repair the Premises, including the heating (including but not limited to replacement of parts, air handling units and heating units) and other improvements located thereon, except those repairs expressly required to be made by Landlord hereunder. . . . Tenant further agrees to care for the grounds around the building, including paving, the mowing of grass, care of shrubs and general landscaping.” Although the lease agreement originally contained a paragraph requiring K.K.L. to make certain repairs to the property during the term of the lease, this paragraph was stricken by agreement of the parties. Thus, to the extent that Georgia Color Farms repaired the property, which it took on an “as-is” basis, it is foreclosed from receiving reimbursement.

Georgia Color Farms nevertheless contends that the changes it made to the property should be considered improvements, not repairs, and that K.K.L. gave it verbal consent to make these improvements. Based on this alleged consent, Georgia Color Farms argues that K.K.L. should be held responsible for the cost of the improvements pursuant to OCGA § 44-7-13.

Although this Code section generally holds a landlord liable for all substantial improvements placed upon property with its consent, it is not applicable here. Paragraph 14 of the lease agreement provides: “Tenant shall not make any alterations, additions, or improvements to the Premises without Landlord’s prior written consent. Tenant shall promptly remove any alterations, additions, or improvements constructed in violation of this Paragraph 14 upon Landlord’s written request. All approved alterations, additions, and improvements will be accomplished in a good and workmanlike manner, in conformity with all applicable laws and regulations, and by a contractor approved by Landlord, free of any liens or encumbrances. Landlord may require Tenant to remove any alterations, additions or improvements (whether or not made with Landlord’s consent) at the termination of this Lease and to restore the Premises to its prior condition, all at Tenant’s expense. All alterations, additions and improvements which Landlord has not required Tenant to remove shall become Landlord’s property and shall be surrendered to Landlord upon the termination of this Lease.” (Emphasis supplied.) Therefore, on the face of the lease, Georgia Color Farms is held responsible for improvements made to the property without prior written consent, which it is undisputed that Georgia Color Farms lacked.

Georgia Color Farms further argues that, despite its lack of prior written consent to make improvements, the parties, by mutual agreement, departed from the express terms of the lease pursuant to OCGA § 13-4-4. This Code section provides: “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.”

‘While parties may agree to depart from the terms of a contract (see OCGA § 13-4-4; Smith v. General Finance Corp., 243 Ga. 500 (255 SE2d 14)) to support such a departure, there must be some evidence that an agreement to do so had been reached.” Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 596 (1) (448 SE2d 913) (1994). There is no evidence supporting Georgia Color Farms’ claim that a mutual departure occurred whereby K.K.L. agreed to reimburse it for improvements made to the property. In support of its argument, Georgia Color Farms points to the testimony of Elaine Gray, its secretary/treasurer. In her affidavit, Gray states that K.K.L., through its agents, was apprised of the improvements made by Georgia Color Farms; however, she does not state that KKL.’s agents explicitly approved of such improvements in any manner, whether verbal or written. The simple fact that Georgia Color Farms may have informed agents of K.K.L. about improvements does not support its claim that the parties mutually intended to deviate from the terms of the contract. Georgia Color Farms could not shift its contractual liabilities for improvements to the property simply by informing K.K.L. that the improvements would be made. The lease placed the onus of receiving approval for improvements on Georgia Color Farms, and there is no evidence that such approval was ever received. Accordingly, Georgia Color Farms was not entitled to reimbursement, and we affirm the trial court’s decision on this matter.

2. Georgia Color Farms contends that the trial court erred in computing the amount of pre-judgment interest owed by it, arguing that the amount determined by the trial court was excessive.

The trial court found that Georgia Color Farms owed K.K.L. $20,250 in unpaid rent and $1,453.54 in unpaid taxes, totaling $21,703.54. Pursuant to OCGA § 7-4-16, the trial court awarded prejudgment interest to K.K.L. on the unpaid principal balance, at the statutory rate of 18 percent per year from January 27, 1996. Although Georgia Color Farms claims that the amount of interest awarded was excessive, it bases its calculations solely on the amount of unpaid rent, thereby skewing its figures. Starting with the principal balance of $21,703.54, we find that pre-judgment interest of $8,301.60 was not excessive.

Decided October 5, 1998

Reconsideration denied October 26, 1998

England & McKnight, Robert H. McKnight, Jr., for appellant.

3. Georgia Color Farms contends that there was an insufficient basis for the trial court’s award of $2,170.30 in attorney fees to K.K.L.

Paragraph 29 of the lease agreement provides: “In the event that any action or proceeding is brought to enforce any term, covenant or condition of this Lease on the part of Landlord or Tenant, the prevailing party in such litigation shall be entitled to recover reasonable attorney[ ] fees to be fixed by the court in such action or proceeding.”

OCGA § 13-1-11 provides: “Obligations to pay attorney[ ] fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectible as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity.” “In Burgess v. Clermont Properties, 141 Ga. App. 112 (2) (232 SE2d 627) (1977), this Court found ‘no reason why a lease may not be an “evidence of indebtedness” ’ within the meaning of OCGA § 13-1-11.” Holmes v. Bogino, 219 Ga. App. 858, 859 (2) (467 SE2d 197) (1996). Therefore, OCGA § 13-1-11 is applicable to the lease agreement between K.K.L. and Georgia Color Farms.

OCGA § 13-1-11 (a) (2) provides: “If such note or other evidence of indebtedness provides for the payment of reasonable attorney[ ] fees without specifying any specific percent [of the principal and interest owing thereon], such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00.” The trial court found that Georgia Color Farms owed K.K.L. $21,703.54 in principal and interest. Applying OCGA § 13-1-11 (a) (2) to this sum, the appropriate amount of reasonable attorney fees would be $2,195.35, approximately $25 more than the trial court awarded. As such, we reject this enumeration.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Stokes, Lazarus & Carmichael, Marion B. Stokes, Daniel E. Ellis, for appellee.

       We note that a landlord in K.KL.’s position is not required by Georgia law to mitigate his damages by re-renting leased property if a tenant improperly abandons the premises prior to the expiration of the term. However, if the landlord accepts the tenant’s surrender or the tenant successfully terminates the lease, the landlord is required to make reasonable efforts to re-lease the premises and mitigate his damages. See Wilburn, Ga. Law of Damages § 28-15.4 (1994).

       Georgia Color Farms does not appeal the trial court’s summary adjudication of its claim regarding tortious interference.


author: McMüRRAY, Presiding Judge.

text:
    A98A1282.
    ROBERTS v. DOVE.
    (508 SE2d 213)
   McMüRRAY, Presiding Judge.

Phyllis Roberts brought an action against Keith Dove after Dove drove his son’s pickup truck into the side of Roberts’ pickup truck. The evidence adduced at a jury trial reveals that the collision occurred at about 4:45 in the afternoon on October 19, 1995, as Roberts was turning left against traffic from a service station on Buford Road. This stretch of highway then consisted of four traffic lanes and a center turn lane. Dove hit Roberts in the center lane near a traffic light at the intersection of Highway 316. The impact occurred where the center lane was lined for two-way turns and no passing, but posted with overhead road signs and painted with a road arrow authorizing left turn use onto Highway 316. Dove testified that he was in the center lane when the collision occurred because he was preparing to turn onto Highway 316.

Roberts testified that, when traffic backed up from the traffic light at Highway 316, motorists allowed her to exit the service station and cross in front of them. Roberts explained that “I eased out [in front of the stopped cars], and then I got to this lane right here, I looked to my right because nothing was coming, and then I looked — and as I was pulling out, I looked to my left and I just eased into this lane, this lane right here, and then as I was making the turn over there, I looked to the right to make sure, and then as I got ready to complete the turn a car just hit me. . . .”

Dove testified that the collision occurred just after he maneuvered into the center lane, explaining that Roberts’ truck appeared in his path from behind a van that was stopped in the neighboring traffic lane. Dove responded on cross-examination that he did not know who caused the collision, but claimed that he was driving lawfully in the center lane when the collision occurred. An investigating police officer testified that Dove was using the center lane for passing in violation of OCGA § 40-6-46 at the time of the collision, explaining that the collision occurred where the center lane was lined for no passing. An expert traffic engineer agreed that the collision occurred where the center lane was lined for no passing, but explained that the crash site was also posted with overhead signs which may have justified Dove’s use of the center lane at the time of the collision. Photographs of the accident scene reinforce that the collision occurred at a point where overhead road signs and a road arrow authorized Dove’s use of the center lane for preparation to turn onto Highway 316.

The jury returned a verdict for Dove. Roberts filed this appeal after the denial of her motion for new trial. Held:

1. Roberts contends the trial court erred in denying her motion for new trial, arguing that there is no proof that she caused the collision. Roberts urges that the only evidence of fault is Dove’s unlawful use of the center lane for passing and that this violation was the sole proximate cause of the collision.

Although it is undisputed that Dove struck Roberts’ truck where the center lane was lined for no passing, there is proof that the crash occurred where the center lane was painted with an arrow and posted with signs which authorized Dove’s presence in the center lane (for turning onto Highway 316) during the collision. Since this evidence would authorize a finding that Dove was not violating OCGA § 40-6-46 during the collision, the question of Roberts’ duty to yield to Dove’s approaching vehicle, as required by OCGA § 40-6-73, was for the jury. See Harrison v. Ellis, 199 Ga. App. 199, 201 (404 SE2d 348). But even assuming Dove was violating OCGA § 40-6-46 during the collision, this circumstance alone would not demand a verdict for Roberts. While Roberts had a right under Harrison v. Ellis, 199 Ga. App. 199, supra, to assume that other drivers would be obeying the rules of the road, this right did not absolve her of the duty to exercise ordinary care in looking out for approaching vehicles. See Lusk v. Smith, 110 Ga. App. 36, 39 (137 SE2d 734). To this issue, Roberts’ testimony indicates that she may not have looked for traffic in the turn lane until she was “pulling out” or “making the turn.” This testimony, and evidence of conditions upon which the collision occurred, was sufficient to place the issue of Roberts’ negligence before the jury. “ ‘Except in plain, palpable and indisputable cases, all questions of negligence, contributory negligence, cause and proximate cause, and whose negligence constituted proximate cause of an injury, are for the jury. (Cit.) And, on appeal the evidence is to be construed to sustain rather than to destroy, the verdict, for every presumption and inference is in its favor. (Cit.)’ Jordan v. Ellis, 148 Ga. App. 286, 289 (250 SE2d 859).” Duncan & Stancil, Inc. v. Peden, 159 Ga. App. 77, 79 (282 SE2d 708).

The trial court did not err in denying Roberts’ motion for new trial.

2. Contrary to Roberts’ third, fourth and fifth enumerations of error, the evidence supported the trial court’s jury instructions on comparative negligence, a plaintiff’s duty under OCGA § 51-11-7 to exercise ordinary care to avoid the consequences of a defendant’s negligence and a driver’s duty to yield to approaching traffic under OCGA § 40-6-73.

Decided October 26, 1998.

Divida Gude, for appellant.

Allen & Associates, David W. Wallace, for appellee.

3. Roberts’ contention that the trial court erred in charging the jury on assumption of the risk presents nothing for review because the trial transcript reveals that the trial court did not charge the jury on assumption of the risk.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A98A1456.
    SAVAGE v. THE STATE.
    (508 SE2d 418)
   McMurray, Presiding Judge.

Defendant and a co-indictee were charged with a violation of the Georgia Controlled Substances Act, for possession of marijuana with intent to distribute. The following facts were stipulated, after the denial of defendant’s motion to suppress: “[T]wo bags of green leafy material were found in a brown . . . bag [in a vehicle driven by defendant], that material was weighed and tested by Kathy Singleton at the Gwinnett County police department, that she is qualified to perform such tests and that she both weighed and tested it, that it tested positive for marijuana, that there were two bags involved, one bag weighing 4.80 ounces and had a number five written on the outside of the bag. The other bag weighed 3.96 ounces and had a number four written on the outside of the bag. . . . [T]here were no other illegal items found in the car.” After a bench trial, defendant was adjudicated guilty and sentenced to five years, probated upon service of “90-120 days Probation Boot Camp. . . .” In this direct appeal, defendant’s sole enumeration of error contends the trial court erred in denying his motion to suppress, arguing there was no consent to search and no reasonable suspicion to detain defendant pending the arrival of a drug-trained canine. Held:

1. “In denying the motion to suppress, the trial court implicitly found that defendants passenger] had consented to a search of [the] vehicle. When reviewing a ruling on a motion to suppress, the appellate court will accept the trial court’s findings unless they are clearly erroneous; and this deference to the trial court’s findings applies to implicit as well as explicit findings. See Garcia v. State, 207 Ga. App. 653 (1) (a) (428 SE2d 666) (1993).” Brantley v. State, 226 Ga. App. 872, 873 (2) (a) (487 SE2d 412). The testimony in the case sub judice was in conflict as to whether any consent to search the vehicle was ever given. Consequently, the determination of the trial court will be affirmed if it is supported by the evidence of record. State v. Davis, 261 Ga. 225, 226 (404 SE2d 100).

2. On August 5, 1996, around 7:50 p.m., Sergeant Robert Eugene Rapien of the Gwinnett County Sheriff’s Department “observed a black Dodge Neon traveling northbound on 1-85, which appeared to be following too close to a tractor trailer. . . . [Sergeant Rapien] initiated [his] emergency equipment, and the vehicle pulled to the shoulder. . . . [Defendant was asked to stand at the rear of the car, where he] produced a South Carolina driver’s license,” and informed Sergeant Rapien that the vehicle was not his. Defendant “pointed towards the person in the front passenger seat and said that it’s his girlfriend’s.” Sergeant Rapien asked the passenger, Mr. Brandon, “to see the insurance card and the registration, and he [Mr. Brandon] began to look in the . . . armrest console of the vehicle. [After] about 30 seconds had expired and [Mr. Brandon] didn’t produce one,... he [Mr. Brandon] says he can’t find one. . . . [Sergeant Rapien] asked him if he would look in the glove box because it was ... a necessity [to see] the proof of insurance on the vehicle or [defendant] could be cited. . . . [Mr. Brandon] opened up the glove box, and he grabbed a brown plastic shopping bag that was right on top, and he made an abrupt motion and put it down on the floorboard, and then grabbed a whole stack of papers and stuck them on top of the bag in a very quick motion. Then [Mr. Brandon] slowed down and methodically started going through . . . the rest of the papers in the glove box looking at them, and . . . finally produced the insurance.”

During this inquiry, defendant “kept wanting to come by and interrupt [the] conversation or come up from behind [Sergeant Rapien], so several times [the officer] told [defendant] to stay ... at the back of the car. ... At that point in time, both [defendant and Mr. Brandon were] acting nervously, and [Sergeant Rapien] had some concerns about what was in the package that he [Mr. Brandon] put in the floorboard,. . .” so the officer called for backup. While Sergeant Rapien ran a license check, defendant told Gwinnett County Sheriff’s Deputy Greg Chapel that the passenger, Mr. Brandon, “was his uncle, [but when Deputy Chapel] approached the passenger . . . [and] asked what relationship he had to the driver, [Mr. Brandon] stated . . . they were just friends.”

Sergeant Rapien “finished with his stop. He told [defendant and Mr. Brandon] they were free to go. Then he asked the driver [defendant] for consent to search the vehicle. The [defendant] said that [the officer] needed to ask the passenger because the car belongs to the passenger’s girlfriend. . . . [Deputy Chapel] went up to the passenger and asked him if he wouldn’t mind stepping back to the rear of the car . . . and it was at this time that the rain started to come down. . . . [I]t began to rain even harder now, so Sergeant Rapien asked both [men] if they would have a seat in the back of his patrol car. They both agreed, and they were advised they were not under arrest, and at that time, Sergeant Rapien called for a K-9 unit to come out.”

The anticipated “response time was . . . thirty to forty minutes. . . . Sergeant Rapien advised both [subjects] that they were going to be allowed to get back in their car, and then Sergeant Rapien went to the vehicle and checked the driver and passenger side area for weapons. [Deputy Chapel] stood outside the patrol car at the rear passenger side door with the door open the entire time. . . . [Deputy Chapel] explained to them what the dog would do when they got there. The dog would walk around the car and try to make an indication of whether or not there were drugs possibly inside the vehicle, and we would go from there.” After Deputy Chapel “told them that, the passenger decided that it would be okay for us to search the vehicle. [Deputy Chapel] advised Sergeant Rapien, and a few minutes later [Sergeant Rapien told Deputy Chapel] he had found some possibly marijuana.” Deputy Chapel was unclear whether Sergeant Rapien had already begun his weapons search when advised of the passenger’s consent, whether he was still outside the vehicle, or whether he had merely announced his intention to do a weapons search before allowing the subjects back into their own automobile to await the K9 unit. Sergeant Rapien started his weapons search on the driver’s side. He “looked underneath the seat. . . [and] behind the seat. . . . [He] pulled back the seat a little bit to make sure there wasn’t a knife or a gun stuck in there, and opened the console, at which time [he saw] the bag that [he] suspected before . . ., and as soon as [he] opened it [the console, he] got the smell of marijuana.” Both subjects were then placed under arrest.

Defendant testified that, after he received a citation for following too close, he was told he was free to go, “but as [defendant] was walking back to the car [Sergeant Rapien] asked [him] — told [him] that would [defendant] mind him searching the car. . . . [Defendant] said ‘No, because it’s not my car.’ ” Sergeant Rapien “got [defendant] and Kenneth Brandon together, he took [them] to the patrol car, and said he was going to wait — he wanted [them] to sit there and wait until the dog — the K-9 come because he think narcotics was in the car [sic].” Defendant confirmed it began raining “before [he] got in the police car.” Mr. Brandon again refused to sign a consent form. “As [Sergeant Rapien] was approaching the [patrol] car [defendant] was in, [Deputy Chapel] told him he couldn’t search the car because he didn’t have consent from [them]. . . . [Defendant never did] hear Mr. Brandon give any consents and] he was right beside [defendant].”

Although in conflict, the evidence authorizes a factual determination that the passenger, Mr. Brandon, ultimately gave his oral consent to search, despite previous refusals to sign a consent form. “Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 233 Ga. 58 (209 SE2d 629).

Decided October 26, 1998.

Henderson & Lipscomb, Lyle K. Porter, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

3. “The fruits of a search conducted with consent are admissible. [Cits.]” State v. Sutton, 258 Ga. 382 (2) (369 SE2d 249). Assuming, without deciding, that this consent was granted only after an unauthorized weapons search had already been started by Sergeant Rapien, we hold the valid general consent to search the vehicle for suspected drugs, granted before any contraband was discovered, ratified the allegedly premature or unauthorized weapons search. Atkins v. State, 173 Ga. App. 9, 12 (3) (325 SE2d 388). The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1637.
    IVORY v. THE STATE.
    (508 SE2d 421)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of a single count of violating the Georgia Controlled Substances Act. The evidence revealed the following:

On the evening of February 6, 1994, Special Agent Michael Anthony Oliver, a narcotics agent with the Georgia Bureau of Investigation, along with Special Agent Dalton, used a confidential informant (“Cl”), who “pointed out [defendant’s] . . . brown- or rust-colored Cadillac ... at the red light. . ., and said that he knew who it was and that he was probably holding something, . . . meaning that he [defendant] might have some crack cocaine on him. . . . [T]he Cl hollered out the window to [defendant], [who was] sitting on the passenger side. It was a . . . female driving with real short hair. [Defendant] leaned up and looked over to see who was calling him, and that’s when the Cl asked him did he have anything, meaning . . . did he have any crack cocaine. . . . [Defendant] told us to follow him. . . . [Special Agent Oliver] observed the tag number [on defendant’s car] which was PWK466.”

“[They] arrived at Whispering Pines Trailer Park. Both vehicles parked. [Defendant] got out of his car, walked up to . . . Agent Dalton’s vehicle. [Agent Oliver] and the Cl got out. The Cl introduced [Agent Oliver] to [defendant] as his cousin, . . . and said, . . . that [the cousin] wanted a sixteenth, which means a sixteenth of a[n] ounce of crack cocaine. [Defendant] stated that he didn’t have a whole piece, meaning one solid piece that weighed up to a sixteenth of a[n] ounce . . ., but he had five pieces that he would let the agent have for a hundred dollars. . . . Once he stated that, [Agent Oliver] and the Cl and [defendant] walked over to [defendant’s] vehicle. [Defendant] sat down in the passenger seat of his vehicle, reached up under the seat and pulled out a brown piece of paper . . . [which] contained five pieces of off-white substance of suspected crack cocaine.” Defendant gave the brown piece of paper containing the crack cocaine to Agent Oliver, who then gave defendant one “hundred dollars in official state funds.” Katherine Lee, a forensic chemist with the Georgia Bureau of Investigation State Crime Laboratory in Macon identified the five off-white cubes as crack cocaine. Hazel Kersey of the Houston County Tax Commissioner’s Office confirmed that Georgia Tag number PWK466 is registered to “a 1980 Cadillac Eldorado belonging to [defendant].”

Defendant presented evidence that, in early February 1994, his car was not operable “because it didn’t have a motor in it, . . . [and that] on the 6th, that was that Sunday when [he] went to Powersville [with friends].” Nevertheless, the jury found defendant guilty as charged. A prior appeal was dismissed as untimely. Pursuant to the grant of an out-of-time appeal, defendant appeals from the order of the trial court denying his motion for new trial. Held:

1. Defendant first enumerates the general grounds.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In the case sub judice, Special Agent Oliver’s in-court identification of defendant as the seller is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of selling crack cocaine as alleged in the indictment. Flemister v. State, 229 Ga. App. 8 (1) (492 SE2d 907).

2. Next, defendant contends the trial court erred in denying his written pretrial motion to require the State to reveal the identity of the confidential informant, because that person was a participant and not a mere tipster. The trial court conducted the in camera interview with the confidential informant contemplated in Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511), and concluded that “there is nothing exculpatory that the informant would know [and so] there’s no reason at this time for the identity of the informant to be revealed.”

“In determining if the Cl’s identity should be revealed by the State, the trial court must conduct a two-step hearing. Initially, the trial court should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the Cl was the only available witness who could amplify or contradict the testimony of these witnesses. Once this threshold has been met, the trial court must conduct an in camera hearing of the Cl’s testimony [and apply the balancing test] set forth in Thornton [v. State, 238 Ga. 160 (231 SE2d 729)], and Moore [v. State, 187 Ga. App. 387, 388 (2), 389], supra.” (Emphasis omitted.) Grant v. State, 230 Ga. App. 330 (1), 331 (496 SE2d 325).

In the case sub judice, defendant’s female friend was the driver of defendant’s vehicle and was in a position to be an additional witness as defendant returned to the vehicle and removed the cocaine from under the seat of the car. “Therefore, while there was evidence that the Cl was either an informer-witness or informer-participant, and that the testimony of the prosecution and the defense was in conflict, the Cl was not the only witness in a position to amplify or contradict the testimony of the defendant and the [special agent]. . . . The threshold requirements of the first step of the [inquiry] were not met, and there was no error in the trial court’s refusal to require the State to reveal the identity of the CL” (Emphasis omitted.) Grant v. State, 230 Ga. App. 330 (1), 332, supra. Moreover, defendant testified he thought he knew the confidential informant, in which case, he could have demanded the court employ compulsory process to obtain the presence and testimony of a known witness. Gilbert v. State, 212 Ga. App. 308, 310 (4) (441 SE2d 785).

3. Defendant proffered impeachment evidence from Travis Williams that, at 4:55 p.m., i.e., at the same time defendant was allegedly selling crack cocaine to Special Agent Oliver at the Whispering Pines Trailer Park, Travis Williams sold marijuana to Agent Dalton accompanied by Agent Williams at Travis Williams’ residence “[a]t 113 Jackson Street. . . [o]ff Welborn Road about pretty close to Russell Parkway . . . [which is] six or seven miles . . . [and about] 20 minutes . . .” from Whispering Pines Trailer Park. It was undisputed that these two sales were transacted consecutively on February 6, 1994, but Travis Williams had no independent “personal recollection of what time ... it [the sale] was[,]” but relied on the time of day stated on his indictment. The trial court excluded Travis Williams’ testimony as irrelevant and this evidentiary ruling is enumerated as error.

“[A] witness must have actual knowledge of a fact before it is proper to allow him to testify positively as to the existence of such fact. Code [Ann.] § 38-301 [now OCGA § 24-3-1].” State Hwy. Dept. v. Wilkes, 106 Ga. App. 634, 636 (2), 637 (127 SE2d 715) (overruled on other grounds, State Hwy. Dept. v. Howard, 119 Ga. App. 298, 303 (167 SE2d 177)). In the case sub judice, Travis Williams offered no competent evidence as to the exact time he sold marijuana to Agents Dalton and Oliver, and so offered nothing to impeach Agent Oliver about the time of defendant’s sale of crack cocaine earlier that same day. See In the Interest of J. C., 163 Ga. App. 822 (2) (296 SE2d 117). The trial court did not abuse its discretion in excluding this inadmissible evidence.

4. Defendant’s fourth enumeration contends the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of trial counsel. He complains that trial counsel (defendant’s third lawyer in the case) did riot file pretrial motions, did not give him copies of those motions, did not interview the police, and did not call the confidential informant and other witnesses.

“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant ... to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74).

“In the case sub judice, ‘it is not necessary to address specifically and individually each and every one of (defendant’s) numerous instances of challenged trial tactics. It is sufficient to note that “strategic choices (made) after thorough investigation . . . are virtually unchallengeable.” Strickland (v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674)). (Cit.)’ Stephens v. State, 265 Ga. 120, 121 (2), 122 (453 SE2d 443). ‘We have reviewed the transcript of that hearing (at which trial counsel testified [and defended his decisions]) and find [ample] evidence to support the trial court’s conclusion that (defendant) failed to show ineffectiveness under the standards of Strickland v. Washington, (supra). See also Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741) (1991).’ Scott v. State, 263 Ga. 300 (2) (432 SE2d 107).” Flemister v. State, 229 Ga. App. 8 (2), supra. This enumeration is without merit.

Decided October 26, 1998.

Elizabeth Lane, for appellant.

Kelly R. Burke, District Attorney, Jeffrey L. Wolff, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A98A2110, A98A2111.
    GUILD v. THE STATE (two cases).
    (508 SE2d 231)
   Eldridge, Judge.

This is an appeal from two separate criminal convictions arising from the following set of interconnected facts.

On December 8, 1995, at approximately 11:30 p.m., Robert Dunagan was driving his white Porsche 924S in the far right lane of Broad Street in Augusta, Richmond County, Georgia. At the intersection of Broad Street and Crawford Avenue, he stopped for a red light. A car pulled up beside him in the left lane and then pulled forward in front of Dunagan’s Porsche, effectively blocking it.

Appellant Robert Russell Guild jumped out of the back door on the passenger side of the car and pointed a pistol at Dunagan through the Porsche’s partially opened window. He demanded money and “was very nervous and yelling[.]” As the victim was fumbling for his wallet, Guild opened the unlocked driver’s side door of the Porsche, put the gun to the victim’s head, and ordered the victim to “slide over.” The victim “said, no, no, take my money, take my money, and he [Guild] said, no, slide over. He had the gun pressed to the side of my head[.]”

As the victim slid over, Guild reached his gun hand down toward the gear shift of the Porsche. The victim used that opportunity to open the passenger side of the car and roll out. The victim “ran down the middle of the road, down the center line, thinking it was over at that point, knowing that he had my car, but I got out of it. . . . As I looked back over my shoulder I was surprised to see him getting out of the — out of my car.”

Guild chased the victim down Broad Street, screaming “you’re not getting away from me; I’m going to get you; I’m going to get you, motherfucker[.]” The victim “was running and he [Guild] was running after me with the gun, screaming, yelling, I’m going to get you. I had a bad feeling that he was going to get me.”

Guild gained rapidly on the victim. The victim “knew he [Guild] was going to catch me so I turned around and I stopped, put up my hands, and said, don’t do it — don’t — I’ll give you my wallet; I’ll give you my wallet. He came up to me, was yelling at me, had the gun to my forehead, just cursing at me. I pulled out my wallet. I told him, I’ll give you my wallet.”

Guild took the victim’s wallet and some money from the victim’s pocket. Then Guild replaced the gun against the victim’s forehead. The victim “was pleading with him, don’t do it, please don’t do it, don’t shoot me, don’t shoot me.” In response, Guild “took a step or two back, straightened his arm, took aim . . . and that’s when the headlights could be seen coming up over the canal. He [Guild] stopped; he didn’t pull the trigger; he ran off into the canal field.”

As a result of intensive police investigation, on December 15, 1995, at 11:15 p.m., a car matching the description of the one involved in the car jacking was stopped by law enforcement. Guild was in the back seat. Immediately to Guild’s right was a plastic bag containing 1.4 grams of crack cocaine. Robert Dunagan positively identified Guild as the person who perpetrated the crimes against him.

On May 28, 1996, a Richmond County jury found Guild guilty of possession of cocaine with intent to distribute. On June 11, 1996, a second Richmond County jury found Guild guilty of armed robbery, aggravated assault, car jacking, and possession of a firearm during the commission of a crime. Held-.

Case No. A98A2110 Armed robbery; aggravated assault; car jacking; possession of a firearm during the commission of a crime

1. Guild contends that, even absent a request, the trial court’s failure to also give a limiting instruction contemporaneously with the introduction of similar transaction evidence is reversible error pursuant to our decisions in Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997) and Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997).

This issue recently has been decided adversely to Guild. See State v. Belt, 269 Ga. 763 (_SE2d_) (1998) (reversing the Court of Appeals’ decisions in Hinson v. State and Belt v. State and holding that absent a request, it is not reversible error to fail to give a similar transaction limiting instruction). “In passing, we note that, although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so.” Id. at 765. Accordingly, there was no error in this case.

2. In the court below, Guild raised an objection pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Here, he challenges the trial court’s step-three Batson determination overruling his objection. Guild argues that the State’s explanations for the exercise of its peremptory strikes were not race-neutral. We do not agree.

In the trial court, a Batson analysis consists of a now familiar — although much debated — three part progression: (a) the opponent of the strikes makes a prima facie showing of discrimination; (b) the proponent offers race-neutral explanations for the use of the strikes; and (c) the trial court determines whether the otherwise race-neutral explanations are to be believed. Here, this progression went as follows:

(a) The trial court required the State to articulate its reasons for the peremptory strikes, rendering the preliminary showing of prima facie discrimination moot. Barnes v. State, 269 Ga. 345 (496 SE2d 674) (1998).

(b) The prosecutor offered explanations for the strikes. With regard to the first strike about which Guild complains, against juror Levonia Higgs, the prosecutor explained that he struck Ms. Higgs because she had served as a juror in a theft case with similar facts and had voted to acquit the defendant. With regard to the second strike about which Guild complains, against juror Gennie Harris, the prosecutor explained that he struck Ms. Harris for the same reason that he struck jurors William Moon (a white male) and Angela Over-street, i.e., because of their exposure to psychological training. The prosecutor explained “we’re not sure if psychology will be used as a defense on either a misidentification theory or that this defendant was acting under psychological coercion.”

(c) The trial court accepted each of these otherwise race-neutral reasons and overruled the Batson challenge.

Here, the prosecutor’s step-two explanations are race-neutral on their face. In step three, the trial court accepted the explanations, thereby determining that the otherwise race-neutral explanations were not pretext, which determination is the trial court’s role, not ours. Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995); Hernandez v. New York, 500 U. S. 352, 359 (111 SC 1859, 114 LE2d 395) (1991). On appellate review of the trial court’s step-three determination (as opposed to the prosecutor’s step-two explanations), Guild has given us no reason to find as clearly erroneous the trial court’s decision to accept the otherwise race-neutral reasons. There is no error.

3. We find that the evidence in this case was quite sufficient for a rational trier of fact to have found Guild guilty beyond a reasonable doubt of armed robbery, aggravated assault, hijack of a motor vehicle, and possession of a firearm during the commission of a crime. Barnes v. State, supra at 347.

Wholly without merit is Guild’s contention that the aggravated assault charge should have merged into the armed robbery charge “because the only time such assault occurred was when the robbery took place.” The indictment alleged that Guild committed aggravated assault upon the victim “by pointing a handgun at him.” The evidence showed that after Guild took the victim’s wallet and money, he stepped back and aimed the gun at the pleading victim. Apparently, the accomplishment of Guild’s purpose was frustrated only by the fear of being caught in suddenly approaching headlights. There was no merger of offenses here.

Case No. A98A2111 possession of cocaine with intent to distribute

4. In his first enumeration of error with regard to the above-numbered case, Guild challenges the introduction of similar transaction evidence. He contends that there were no significant similarities between the independent crime and the one for which he was tried and thus, there was nothing about the independent crime that “proved” the instant case. We disagree.

Although Guild failed to make a transcript of the similar transaction hearing a part of the record in this case, we may garner from the trial transcript that the similar transaction evidence was based upon the following set of facts:

The Gateway Motel in Augusta was known as an area with frequent illegal drug activity. On November 9, 1995, police officers placed the motel under surveillance and observed suspected drug transactions. Pursuant to their investigation, a foot chase ensued during which the officers chased a suspected drug dealer into a Gateway Motel room. In the motel room, in plain view on a dressing table, was a plastic bag containing 17 rocks of crack cocaine. Guild was lying nearby in a bed in the motel room; another man was lying in a second bed in the room; a bag of marijuana was found under Guild’s bed; $250 was recovered from Guild’s person.

Approximately one month later, apparently while out on bond on the Gateway Motel charge, Guild was arrested for the instant case wherein the car in which Guild was riding was stopped. On the rear passenger seat, in plain view, was a plastic bag containing 1.4 grams of crack cocaine. Guild was sitting on the right rear passenger seat immediately beside the cocaine; another man was sitting on the left rear passenger seat.

Two weeks before the trial of the instant case, a jury found Guild guilty of possession of cocaine with intent to distribute and misdemeanor possession of marijuana based upon the Gateway Motel incident. The indictment and verdict were introduced in this case, as well as substantive testimony thereon.

“The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citation and punctuation omitted.) Maggard v. State, 259 Ga. 291, 293 (380 SE2d 259) (1989). “Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130) [(1992)].” Harris v. State, 222 Ga. App. 52, 54 (473 SE2d 232) (1996).

Here, the trial court instructed the jury that the Gateway Motel incident could be considered for the purpose of showing identity and “the knowledge or intent of the Defendant in the crime charged in the case now on trial.” We find sufficient logical connection between (a) Guild’s possession in Augusta on November 6, 1995, of a plastic bag containing seventeen rocks of crack cocaine with the intent to distribute such, and (b) his possession in Augusta one month later of a plastic bag containing eight rocks of crack cocaine, which testimony showed was a distribution amount, so that the former helped to prove the latter offense in the manner specified by the trial court. Barker v. State, 226 Ga. App. 747, 748-749 (3) (487 SE2d 494) (1997). If the defense chooses to characterize both incidents as merely being present in the proximity of the crack cocaine, i.e., coincidence, then such is an argument for the jury. “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, Scheme, bent of mind, or course of conduct.” (Emphasis supplied.) State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980); Smith v. State, 203 Ga. App. 3 (416 SE2d 129) (1992); Collins v. State, 205 Ga. App. 341 (2) (422 SE2d 56) (1992).

Contrary to Guild’s assertions, our decision in King v. State, 230 Ga. App. 301 (496 SE2d 312) (1998), is not applicable. There, we found that nothing about a 1984 conviction for sale of methamphetamine helped to prove that the defendant was using the drug 13 years later. King v. State, supra at 303 (defendant charged with possession of drugs in his blood stream). Here, Guild’s two-week-old conviction for possession of cocaine with intent to distribute based on an incident almost contemporaneous with the one which comprised the case-in-chief clearly helped to prove the later possession of cocaine with intent to distribute in the manner charged by the trial court. There was no error.

5. In his second enumeration of error, Guild contends that the trial court erred “in admitting into evidence two crime lab reports.” In support thereof, Guild alleges that (a) “there was no compliance with the discovery statute. Section 17-16-4 (a) (4), O.C.G.A.,” and (b) “there is no way to determine which of the reports, if either of them, concerns the alleged illegal substance seized in the case on trial.” We find these contentions to be without merit.

(a) Before this Court, Guild contends that the State violated discovery because defense counsel was not given “an opportunity to inspect and copy” the crime lab reports, as required by OCGA § 17-16-4 (a) (4).

However, a review of the record shows that defense counsel’s objection at trial was not regarding an “opportunity to inspect and copy” the reports. In fact, the record shows that the instant drug offense was introduced as a similar transaction during the trial two weeks earlier on the Gateway Motel incident; by the conclusion of that trial, the crime lab reports on both incidents were present in the State’s file, and the file was made available to defense counsel to inspect and copy the contents thereof.

Instead, at trial, defense counsel repeatedly objected because the State failed to serve defense counsel with a copy. “Well I think that the bottom line is that I object to not being furnished with a copy of any of the lab reports that were involved in either the Gateway Motel case or the vehicle stop.”

‘Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court. The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching, shifting.” (Citations and punctuation omitted.) Robin son v. State, 208 Ga. App. 528, 530-531 (430 SE2d 830) (1993).

(b) Appellant did not register an objection that “there is no way to determine which of the reports concerns the alleged illegal substance seized in the case on trial.” In fact, the record shows that defense counsel had no difficulty in recognizing the crime lab report on the instant case as State’s Exhibit 8, Crime Lab Report No. A95523, and did not object to the expert testimony offered thereon except on the basis that the State “should have provided me with the crime lab report prior to their doing so.” Failure to object waives any error. Banks v. State, 230 Ga. App. 881 (497 SE2d 821) (1998).

6. Guild’s enumerations of error numbers 3 and 4 regarding alleged violations of the discovery statute are controlled by Division 5 (a), supra, and thus are meritless.

7. Guild next contends that the trial court erred in admitting the bag of marijuana seized during the similar transaction incident. The record shows that Guild objected to such evidence because: (a) such was similar transaction evidence and thus irrelevant; (b) counsel’s “uncertainty” over the chain of custody; and (c) the State’s failure to serve counsel with a copy of the crime lab report. These contentions are without merit.

(a) Evidence regarding the marijuana was part of the res gestae of the similar transaction offense and thus was not “irrelevant.”

(b) The chain of custody regarding the marijuana was established as part of the earlier Gateway Motel trial. In the instant trial, defense counsel failed to provide a basis for his “uncertainty” regarding the chain of custody. Nor did he voir dire on that subject or object that the chain of custody on such similar transaction evidence must be proved in the trial of the instant case.

(c) The State was not required to serve defense counsel with a copy of the crime lab report. See footnote 3, supra.

Further, while Guild contends that the introduction of the marijuana “resulted in prejudice,” he fails to state how such result obtains. It is fundamental that harm as well as error must be shown for reversal. McIntyre v. State, 266 Ga. 7 (9) (463 SE2d 476) (1995). In light of the fact that Guild was charged with possession of cocaine with intent to distribute and that the substance of the similar transaction evidence was that Guild possessed cocaine with the intent to distribute, it is highly unlikely that proof Guild also possessed a misdemeanor amount of marijuana contributed to the jury’s verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

8. In his sixth enumeration of error, Guild contends that the trial court erred by denying his motion for mistrial based upon alleged improper argument by the prosecutor. We disagree.

Closing arguments were not taken down, but defense counsel objected on the record as follows: “Judge I object to this form of argument. He’s suggesting even though we all agree that we had no burden of proof that I should have brought in evidence and I should have produced evidence. I think it’s a burden shifting argument and I object to it and move for a mistrial.” The trial court admonished the prosecutor, but denied the motion for mistrial.

“[T]he trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Citations and punctuation omitted.) Martin v. State, 193 Ga. App. 581, 587 (388 SE2d 420) (1989).

Here, while defense counsel summarized what he thought was suggested by the prosecutor’s argument, the prosecutor’s actual argument is not before this Court in order to determine whether such suggestion is valid. Nor was a proffer made as to the substance of the allegedly improper argument. Thus, on the record before this Court, we cannot say that the trial court’s discretion was “manifestly abused” in denying Guild’s motion for mistrial based upon alleged improper argument. Martin v. State, supra at 587.

9. In his enumeration of error number 7, Guild contends that the trial court erred by charging the jury that they could consider the similar transaction evidence for the purpose of showing “identity,” as well as “intent.” Guild argues that the similar transaction evidence was not sufficiently distinctive to establish “identity.”

Identity is a proper purpose for the introduction of similar transaction evidence. Williams v. State, 261 Ga. 640, 642, n. 2 (409 SE2d 649) (1991). Thus, the trial court did not err in charging the jury regarding such proper purpose.

Guild’s claim of error really goes to a contention that the similar transaction evidence was improperly admitted for the purpose of showing “identity.” However, an objection regarding the purpose for the admission of such evidence should have been made at the time admissibility was being determined, i.e., at the similar transaction hearing. Fairbanks v. State, 225 Ga. App. 666 (1) (484 SE2d 693) (1997). No such objection is before this Court. Guild’s apparent failure to object to the trial court’s determination that identity was a proper purpose for the admission of the similar transaction evidence cannot be bootstrapped into meritorious claim by re-tooling it as an alleged charging error. There was no error in the charge.

10. In enumerations of error numbers 8, 9, and 10, Guild challenges the sufficiency of the evidence, contending (a) there was no evidence by which a jury could determine that Guild possessed the drugs found in the vehicle; and (b) there was no evidence by which a jury could determine that Guild possessed the drugs with the intent to distribute. We disagree with both contentions.

“[Wjhere drugs are found in the immediate presence of the defendant, the jury is authorized to find they are in the constructive possession of the accused. . . . All of the competent evidence adduced at trial, which was admissible against appellant, may be considered to show his constructive or joint possession.” (Citations and punctuation omitted.) Barnett v. State, 204 Ga. App. 491, 495 (420 SE2d 43) (1992). Further, “[o]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence[.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

(a) With regard to the element of possession, we find that evidence that a plastic bag containing 1.4 grams of cocaine was lying in plain view immediately beside Guild, coupled with evidence that he was found in possession of 17 rocks of cocaine only a month prior to the instant case, is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Guild “was knowingly in either joint or constructive possession of the cocaine. [Cit.]” Barnett v. State, supra at 495.

(b) With regard to the element of intent to distribute, the evidence showed that no device for use of the cocaine, i.e., a crack pipe or other device, was recovered pursuant to the stop of the vehicle. Also, a seventeen-year veteran of the narcotics squad testified that the quantity of cocaine usually recovered from users of the drug is a “dub,” i.e., a $20 rock; however, the plastic bag recovered in this case contained eight rocks of crack cocaine worth $160. In addition, evidence of a prior conviction for possession of cocaine with intent to distribute was introduced as a similar transaction.

The above evidence is sufficient to demonstrate beyond a reasonable doubt the intent to distribute. James v. State, 214 Ga. App. 763, 764 (449 SE2d 126) (1994); Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991); compare Bethea v. State, 220 Ga. App. 800, 801 (1) (470 SE2d 328) (1996).

Accordingly, when viewed in a light most favorable to the jury’s verdict, the evidence is sufficient for a rational trier of fact to have found Guild guilty beyond a reasonable doubt of possession of cocaine with the intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 26, 1998.

Stanley C. House, for appellant.

Russell R. Guild, pro se.

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

11. Guild’s final enumeration of error is controlled adversely to him as per Division 1, supra.

Judgment affirmed.

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

       In his brief before this Court, Guild, complains about the exercise of four allegedly race-based strikes; however, he provides argument and citation of authority for only two of them.

       Apparently, the similar transaction hearings on both the instant case and the Gateway Motel incident were held simultaneously prior to the trial on the Gateway Motel case. We will presume the correctness of such proceedings and resultant findings in the absence of a transcript. Gilbert v. State, 222 Ga. App. 787, 788 (4) (476 SE2d 39) (1996).

       In passing, we note that OCGA § 17-16-4 (a) (1) “requires only that the State make a defendant’s statements available for inspection, copying, or photographing, not that such statements be served upon the defendant.” Lawson v. State, 224 Ga. App. 645, 647 (481 SE2d 856) (1997).

       See Cole v. State, 216 Ga. App. 68, 69 (453 SE2d 495) (1994), which is the case cited by Guild in support of his contention.


text:
    A98A2245.
    THE STATE v. MONCRIEF.
    (508 SE2d 216)
   Eldridge, Judge.

The DeKalb County State Court granted Courtney Moncrief’s motion in limine and suppressed the. results of her breath test because the officer who arrested Moncrief for driving under the influence did not give her an implied consent warning in the exact language of OCGA § 40-5-67.1 (b) (1). The State appeals from the trial court’s order on the motion.

An audio/video tape of the entire stop is before this Court, as it was before the trial court. The tape shows that, on February 28, 1998, Moncrief was stopped at 4:00 a.m. for speeding on the interstate. She informed the officer that her wallet, with driver’s license and insurance card inside, was at the bar she just left. Moncrief was 18 years old at the time of the stop. She told the officer that she drank two glasses of wine at the bar. Her roadside alcosensor test showed positive for alcohol at above the limit for those under the legal drinking age who are operating a motor vehicle.

Moncrief was arrested and placed in the back of the patrol car. The officer informed her that he was going to read her the implied consent warnings. She asked, “What’s that?” The officer replied that the warnings are “Your rights in this situation.”

Thereafter, the officer slowly, clearly, and painstakingly read the implied consent warnings in the exact language of OCGA § 40-5-67.1 (b) (1), the applicable notice for those suspects under the age of 21. The officer put extra emphasis on the word “tests,” as opposed to “test.” See State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998). A review of the audio/video tape demonstrates that the officer read the following to Moncrief:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to [the] required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended and, if you are convicted of having such an alcohol concentration, will be revoked. After first submitting to [the] required tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your breath under the implied consent law?” See OCGA § 40-5-67.1 (b) (l).

At the hearing on Moncrief’s motion in limine, it was determined from the audio/video tape that two articles, “the”, as italicized in brackets above, were omitted from the warnings. Thus, the trial court suppressed the results of Moncrief’s breath test based upon an incorrect reading of the implied consent warnings. See Richards v. State, 225 Ga. App. 777 (484 SE2d 683) (1997), rev’d 269 Ga. 483 (500 SE2d 581) (1998). Held:

1. Moncrief’s motion to dismiss this appeal is denied. We will not ignore the correct application of the law simply because such was not addressed below.

2. Effective March 27, 1998, the General Assembly amended OCGA § 40-5-67.1 (b) to state that an implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” Ga. L. 1998, pp. 210, 212. The content of the implied consent warnings, themselves, remains unchanged by the 1998 amendment. See Ga. L. 1998, p. 211; OCGA § 40-5-67.1 (b) (1).

3. It is a well-established rule that “an appellate court applies the law as it exists at the time its opinion is rendered[.]” (Citations and punctuation omitted.) State v. Martin, 266 Ga. 244, 245 (466 SE2d 216) (1996); Helmeci v. State, 230 Ga. App. 866, 868 (498 SE2d 326) (1998), cert. denied. Thus, “unless application of the new statute in this case violates constitutional principles, we are bound to apply it.” Helmeci v. State, supra at 868.

4. The 1998 amendment to OCGA § 40-5-67.1 is procedural and affects only the admissibility of breath test results at trial. The amendment changes neither the substance of the warnings themselves nor the substance of a defendant’s rights as stated in the warnings. Both this Court and the Supreme Court of Georgia have specifically held that the application of a non-substantive amendment to OCGA § 40-5-67.1 which impacts on evidentiary concerns does not violate constitutional principles. State v. Martin, supra at 245 (3); Helmeci v. State, supra at 868. As was held in State v. Martin, “The [1998] amendment does not violate federal or State ex post facto constitutional provisions. . . . The [1998] amendment modifies the scope of evidence which may be offered in a DUI trial. It does not affect the manner or degree of punishment and does not alter any substantive rights conferred on [Moncrief! by law.” (Citations omitted.) Id. at 245-246.

Decided October 26, 1998

Ralph T. Bowden, Jr., Solicitor, Candace N. Kicklighter, W. Cliff Howard, Assistant Solicitors, for appellant.

William C. Head, for appellee.

5. Accordingly, we find that the provisions of the 1998 amendment apply to this case. “The record establishes that the implied consent warning given [Moncrief] satisfied the applicable statutory requirement under [amended] OCGA § 40-5-67.1[.]” Id. at 247. Therefore, the trial court’s order granting Moncrief’s motion in limine as to her breath test results is reversed.

Judgment reversed.

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

       Thereafter, the officer asked “Will you take a breath test?” Moncrief responded in the affirmative. Her breath test showed a blood alcohol level of .06. When driving, the maximum blood alcohol level permitted for those under the legal drinking age is .02. OCGA § 40-6-391 (k) (1).


text:
    A98A2270.
    LEWIS v. THE STATE.
    (508 SE2d 218)
   Eldridge, Judge.

Appellant Marvin Lewis, a/k/a Mark Lewis, appeals from his July 1997 convictions for possession of a firearm by a convicted felon, possession of cocaine and marijuana with intent to distribute, and unlawful possession of fireworks. We affirm the convictions.

Viewed in the light most favorable to the verdict, the facts are as follows: In April 1995, law enforcement agents from the Georgia Governor’s Strike Force (“Strike Force”) conducted at least two controlled buys of cocaine at Mary’s Convenience Store in Dawson, Georgia. In so doing, the agents acted on a tip from a reliable confidential informant (“Cl”) that Lewis was selling drugs from the store. The case agent in charge of the Strike Force operation, David Sims, then filed an affidavit with the Terrell County Magistrate Court and obtained a search warrant for the convenience store. During the search of the store, the agents found several hundred dollars in cash and several plastic bags of crack cocaine and marijuana. In Lewis’ Chevy Suburban vehicle, which was parked in the store’s parking lot, agents found substantial cash, several rocks of crack cocaine, and a semiautomatic pistol with ammunition.

The agents arrested Lewis and advised him of his Miranda rights. Following such warnings, Lewis admitted that he had a shotgun stored at his home and that he was a convicted felon; Lewis had been convicted of armed robbery and aggravated assault in December 1981. Asserting that Lewis was violating OCGA § 16-11-131, possession of a firearm by a convicted felon, the agents secured a search warrant for Lewis’ home. During the search, agents found several bullets, shotgun shells, empty gun casings, and empty ziplock bags.

A jury convicted Lewis on all counts in July 1997. He appeals. Held:

1. In his first enumeration of error, Lewis asserts that the trial court erred in failing to suppress evidence obtained pursuant to the search warrant for the convenience store. Specifically, Lewis claims that the search warrant was based on hearsay, because the officer who signed the underlying affidavit had no personal knowledge concerning the Cl involved in the controlled buys at the store.

(a) Initially, Lewis asserts that the affidavit failed to meet the multi-pronged reliability test of Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964). See also Dailey v. State, 136 Ga. App. 866 (1) (222 SE2d 682) (1975). However, this test has now been supplanted by the more lenient “totality of the circumstances” test enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by Georgia’s courts in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). See State v. Smith, 201 Ga. App. 650, 651 (411 SE2d 877) (1991). “The requirements of the Gates analysis are near equivalents to those traditionally applied by the courts of our state. Probable cause means reasonable grounds, and is that apparent state of facts which seems to exist after reasonable and proper inquiry. ... By no means is probable cause to be equated with proof by even so much as a preponderance of evidence. As stated in Gates, [p]robable cause does not demand the certainty we associate with formal trials.” (Citations and punctuation omitted.) State v. Stephens, supra at 182, 184. In making a determination as to probable cause pursuant to a totality of the circumstances test, “the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of [the person] supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found at a particular place. The task of a reviewing court is to determine if there is substantial evidence in the record to support the magistrate’s issuance of the warrant.” (Citations and punctuation omitted.) Hand v. State, 206 Ga. App. 501, 502-503 (3) (426 SE2d 18) (1992). See also State v. Stephens, supra at 182; McConville v. State, 228 Ga. App. 463, 466-467 (2) (491 SE2d 900) (1997); Gibson v. State, 223 Ga. App. 103, 104 (3) (476 SE2d 863) (1996); Tackett v. State, 211 Ga. App. 664, 666 (2) (440 SE2d 74) (1994); Bullock v. State, 195 Ga. App. 37, 38 (392 SE2d 534) (1990).

In this case, Agent David Sims, the case agent in charge of the investigation of alleged drug sales by Lewis, signed an affidavit which showed the following: Terrell County Sheriff J. Bowens received information from a Cl that Lewis was selling cocaine from Mary’s Convenience Store. According to the affidavit, ‘“[t]he Cl has been personally known to Sheriff J. Bowens for over twenty (20) years. The Cl has provided information to Sheriff J. Bowens in the past which has led to at least one (1) arrest and conviction for possession of cocaine and at least one (1) search warrant execution. For the above reasons, the information provided to the agents by the Cl is believed by your affiant to be reliable.” Sheriff Bowens reported the Cl’s information to Strike Force agents working with Agent Sims. Strike Force agents met with the Cl and arranged for at least two controlled buys. Prior to such buys, the agents equipped the Cl with an audio transmitting device, so that they could monitor the transactions. The Cl was searched, and no illegal substances were found. The agents gave the Cl $20 in official state funds and transported him to Mary’s Convenience Store. The agents observed the Cl from the time he went into the store until he emerged, minutes later, with crack cocaine; the Cl reported that he had purchased the cocaine from Lewis. The agents reported this information to Agent Sims, who then secured a search warrant.

Under the facts of this case, there was more than sufficient information in the affidavit to establish probable cause for the warrant, and the trial court correctly denied Lewis’ motion to suppress. Further, even if the Cl had no known credibility, the two controlled buys under the observation of the agents, alone, would have been sufficient to establish probable cause.

(b) Further, Lewis’ claim that the warrant was based upon “double layered hearsay” is also without merit. “The fact that there was “hearsay upon hearsay’ involved in the present case, as far as the information upon which the affidavit was based is concerned, does not preclude a finding of probable cause. It is evident from the transcript of the testimony that the informant gave the tip to the police. It is immaterial which policeman received the tip. Observations by fellow officers of government engaged in a common investigation are a reliable basis for a warrant applied for by one of their number.” (Punctuation omitted.) McNeal v. State, 133 Ga. App. 225, 228 (2) (211 SE2d 173) (1974). See also United States v. Ventresca, 380 U. S. 102, 110 (85 SC 741, 13 LE2d 684) (1965). “Moreover, it was not essential that the detective and the informant appear before the magistrate. The rule in Georgia has been that an affidavit supporting a search warrant may be based on hearsay information as long as there is a substantial basis for crediting the hearsay.” (Citations and punctuation omitted.) Deal v. State, 199 Ga. App. 184, 185 (1) (404 SE2d 343) (1991). Under the circumstances of this case, there was no error.

2. Further, Lewis’ assertion that the evidence found at his home was “fruit of the poisonous tree,” because it was based on Lewis’ admissions following the allegedly illegal search of the store and his resultant arrest, fails in light of our decision in Division 1, supra.

3. In his next enumeration, Lewis alleges that evidence of his May 1996 guilty plea in Florida for conspiracy to distribute at least 400 grams of cocaine should not have been admitted as a similar transaction.

(a) Under the Supreme Court of Georgia’s ruling in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), before any evidence of independent offenses may be admitted, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the State must make three showings, to wit: (1) that the defendant committed the acts in question; (2) that the similar acts were being introduced for an appropriate purpose; and (3) that these acts were sufficiently similar to the offense for which the defendant is charged, so that proof of the former tends to prove the latter. Scott v. State, 219 Ga. App. 906, 908 (3) (467 SE2d 348) (1996); see also Chastain v. State, 260 Ga. 789, 790-791 (400 SE2d 329) (1991). “While Uniform Superior Court Rule 31.3 speaks of ‘similar’ transactions, the issue of admissibility of extrinsic transactions has never been one of‘mere similarity.’ Williams v. State, 251 Ga. 749, 784 (312 SE2d 40) (1983). It is, rather, relevance to the issues in the trial of the case. A logical connection between separate crimes is established where proof of the independent crime tends to establish identity, bent of mind, or intent in the commission of the crime for which the defendant is on trial.” (Citations and punctuation omitted.) King v. State, 214 Ga. App. 311, 315 (5) (447 SE2d 645) (1994).

In this case, Lewis does not challenge identity, i.e., he admits that he was, in fact, the same person who pled guilty to conspiracy to traffic cocaine in Florida on May 10, 1996. Further, he does not contest the trial court’s determination that the evidence could demonstrate identity, bent of mind, common scheme, and intent. Instead, he asserts that the prior conspiracy offense is insufficiently similar to the possession offenses in this case to satisfy the test under Williams v. State, 261 Ga. 640. We disagree.

At the Rule 31.3 (B) hearing on July 25, 1997, the State showed that Lewis had been charged with conspiracy to traffic cocaine after he was recorded, via a wiretap, arranging for the delivery of a large quantity of cocaine in Miami. According to the State, Lewis contacted a suspected drug dealer and negotiated the price and quantity of more than 400 grams of cocaine. After Lewis was arrested, he cooperated with Florida investigators and admitted that he had been going to Florida repeatedly to purchase cocaine, which was then brought to Dawson, Georgia, to be sold from Mary’s Convenience Store. As such, the State demonstrated that Lewis’ criminal acts in Florida were “all part of the same or similar transaction,” i.e., the acquisition of cocaine in Florida prior to its distribution in Georgia. Based upon this argument, the trial court permitted the State to present the Florida guilty plea to demonstrate identity, bent of mind, common scheme, and intent, following proper limiting instructions by the court. Under the facts of this case, there was no error in the trial court’s decision to permit the introduction of the Florida guilty plea as a similar transaction.

(b) Lewis also asserts that the Florida transaction should have been excluded because it occurred in December 1995, several months after the crimes at issue in this case. However, this Court has previously held that similar transactions which occur subsequent to the charge for which the defendant is being tried are admissible as long as the State demonstrates that the transaction satisfies the test under Williams, 261 Ga. 640. Scott v. State, supra at 908 (3). Accordingly, there was no error.

4. In his final enumeration of error, Lewis asserts that the trial court erred in admitting evidence of his 1981 guilty plea for armed robbery, claiming that there was insufficient evidence at trial to positively identify him as the perpetrator of the previous crime. During its case in chief, the State presented a certified copy of a September 1981 guilty plea of “Marvin Lewis.”

Lewis “presented no evidence contradicting that he was the person named in the [1981] documents. Concordance of name alone is some evidence of identity. [OCGA § 24-4-40 (a).] Further, in the absence of any denial by [Lewis] and no proof to the contrary[,] this concordance of name is sufficient to show that [Lewis] and the individual previously convicted were the same person. Accordingly, this enumeration is without merit.” (Citations and punctuation omitted.) Glass v. State, 181 Ga. App. 448 (1) (352 SE2d 642) (1987). See also Johnson v. State, 233 Ga. App. 301 (504 SE2d 8) (1998); Hill v. State, 162 Ga. App. 637-638 (2) (292 SE2d 512) (1982).

Decided October 26, 1998.

Collier & Gamble, Wilbur T. Gamble III, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Judgment affirmed.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Notably, at the sentencing hearing on August 4, 1997, defense counsel admitted that the Florida arrest arose from a “single common scheme or plan . . . the same set of conduct [during] a bad chapter in Mr. Lewis’ life.”


text:
    A98A2298, A98A2299.
    TURNER v. STATE OF GEORGIA (two cases).
    (508 SE2d 223)
   Eldridge, Judge.

Wesley Turner appeals a Cobb County Superior Court’s order granting the State’s complaint for forfeiture pursuant to OCGA § 16-13-49. He does not challenge the merits of the trial court’s determination as to forfeiture. Instead, Turner’s sole contention is that the trial court erred in granting the forfeiture because the forfeiture hearing was held outside the 60-day mandatory time period required by OCGA § 16-13-49 (o) (5).

OCGA § 16-13-49 (o) (5) provides, in relevant part, that, “[i]f an answer is filed, a [forfeiture] hearing must be held within 60 days after service of the complaint unless continued for good cause.” State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993). The purpose of the statute’s mandatory time requirement is “to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights. [Cits.]” Id. at 511. It is a requirement for the benefit and protection of property owners, such as Turner. Id. As such, the respondent/property owner in a forfeiture action may waive such requirement by seeking a continuance. Id. at 511, n. 7.

Herein, the service of the complaint was on Friday, September 12,1997. Thus, the 60-day time period required by the statute would conclude on Wednesday, November 11,1997. In compliance with the statute, a rule nisi was issued which set the forfeiture hearing date for Monday, October 27, 1997, 17 days before the running of the 60-day time period.

Decided October 26, 1998

Michael J. Trost, for appellant.

Benjamin F. Smith, Jr., District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

At the October 27, 1997 forfeiture hearing, Turner requested a continuance, and at the agreement of all parties, a second hearing date was set for Monday, November 17, 1997, well outside the 60-day time period required by OCGA § 16-13-49 (o) (5). Held:

We find that since Turner, himself, sought to continue the forfeiture hearing to a date outside the requisite 60-day statutory time period for conducting such hearing, he waived the requirement, which was for his own protection. Turner “cannot complain of a result his own procedure or conduct aided in causing.” (Citations and punctuation omitted.) Glover v. State, 230 Ga. App. 795, 797 (498 SE2d 300) (1998). Accordingly, the trial court did not err in granting the State’s complaint for forfeiture simply because the hearing was not within the mandatory time period required by the statute.

Judgment affirmed.

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

       Case No. A98A2298 appeals the trial court’s order of forfeiture as to $3,800 in U. S. currency; Case No. A98A2299 appeals the trial court’s order of forfeiture as to one nine-millimeter rifle, one .357 caliber rifle, and one knife.

       Appellant contends that he was served the complaint on September 17, 1997. However, that was the date on which the return was filed with the clerk of court. The service of the complaint on Turner was accomplished on September 12, 1997. Under the terms of the statute, the time begins to run “after service of the complaint” pursuant to OCGA § 9-11-4 (a), (b), (c), and (d). OCGA § 16-13-49 (o) (2) (A). See also, e.g., Ewing v. Johnston, 175, Ga. App. 760, 761 (334 SE2d 703) (1985). “Time would appear to begin to run from date of actual service upon a defendant, and not from filing of the return.” Id. at 762 (1) (a).

       Both parties would do well to remember that 60 days from the service of the complaint generally does not exclude weekends. See OCGA § 1-3-1 (d) (3).