text:
    A92A2227.
    GILBERT v. THE STATE.
    (430 SE2d 391)
   Andrews, Judge.

Gilbert was tried and convicted of possession of cocaine with intent to distribute and obstruction of a police officer.

Evidence at trial was that on November 2, 1989, Officer Bryant, a member of the Blakely Police Department observed a drug transaction in an area in which drug activity is common. After observing the transaction, Bryant and another police officer hid on the roof of a building in order to continue observing the activity in the area. Bryant observed Gilbert drive up to a business in a truck and talk to a man who was standing outside of the business. Gilbert got out of the truck and went behind a green city trash can, which was located behind the business. Gilbert reached into a brown paper bag, which was on the ground behind the trash can. Gilbert then walked back to the man, the man handed Gilbert money and Gilbert handed the man rock cocaine and got back in his vehicle. Bryant heard the unidentified man comment that the substance was small. Bryant then saw another vehicle pull up to the area. A second man approached Gilbert and Gilbert again got out of the truck, walked over to the trash can again, picked up the brown paper bag, sorted some rocks of cocaine in his hand, walked back to the second man and gave the substance to him. Gilbert then got back in the truck. Bryant stated that Gilbert was one of three men in the truck. The other two men in the vehicle were Jeff Robinson, the owner of the business and John Lester, who was driving.

Another officer, Officer Middleton, also testified at trial. He stated that he came to the area when called by Bryant. Middleton went behind the trash can, looked in the paper bag which Gilbert had been going to, and determined that the substance in the bag appeared to be cocaine. Middleton then walked up to Gilbert and informed him that he was under arrest for possession of crack cocaine. Upon hearing this, Gilbert turned and attempted to flee.

Officer Suggs of the Early County Sheriff’s Department testified that he was involved in the arrest and search of Gilbert and that the search revealed that Gilbert was carrying a “big roll of money.” By the time Gilbert arrived at the police station, he no longer had the money on his person. Another arrestee who had ridden in the back of the police car with Gilbert had $365 hidden in her undergarments at the station. She testified at trial that Gilbert gave it to her in the back of the police car and asked her to take it to his mother.

At trial, Gilbert testified that he and his friends regularly sat in the truck and socialized; he denied that he had gotten out of the truck during the evening of November 2 or that he had sold drugs. One of the men with him in the truck, Robinson, corroborated Gilbert’s denial that he had gotten out of the truck.

Testimony regarding the prior conviction was from a Dougherty County sheriff who testified that on March 28, 1988, he had arrested Gilbert in a parking lot after observing Gilbert’s vehicle for approximately two hours that day. According to the sheriff, on that date, 114.8 grams of rock cocaine were discovered in his vehicle, taped by duct tape under the vehicle. Represented by the same attorney who defended him at the trial on the instant charges, Gilbert pled guilty to the ensuing charge of trafficking in cocaine on May 15, 1989 and was banished from Dougherty County and sentenced to 30 years of probation.

1. In his first enumeration of error, Gilbert claims that the life sentence which was imposed on him for possession of cocaine with intent to distribute was excessive. He argues that because his prior conviction was for trafficking in cocaine under OCGA § 16-13-31, rather than a conviction under OCGA § 16-13-30 (b), the instant conviction was not his second conviction under OCGA § 16-13-30 and therefore the life sentence under OCGA § 16-13-30 (d) was void. Gilbert raised this issue in his motion for new trial, and we do not view his failure to raise the issue at the time of sentencing as barring his argument here. See Taylor v. State, 186 Ga. App. 113 (366 SE2d 422) (1988).

Prior to trial, the State gave notice to Gilbert that it would introduce a prior conviction for trafficking in cocaine under OCGA § 16-13-31. At the motion for new trial hearing, Gilbert’s trial attorney testified that he was aware that the prior conviction would be used by the State in an effort to impose a life sentence. The record contains the notice which the State sent Gilbert alerting him that the offense of trafficking in cocaine would be used in aggravation of sentence. The prior conviction arose out of Gilbert’s actions on March 28, 1988 and a certified copy of Gilbert’s plea of guilty on May 15, 1989 to this trafficking charge based on 114.8 grams of cocaine in his possession was introduced at trial. The acts underlying the instant case occurred on November 2, 1989.

OCGA § 16-13-30 (d) states: “Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or a narcotic drug in Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” Subsection (b) provides that “[e]xcept as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.”

The question presented here is whether a conviction for trafficking in cocaine under OCGA § 16-13-31 constitutes a second violation of OCGA § 16-13-30 (b) for purposes of OCGA § 16-13-30 (d). Gilbert cites Taylor v. State, supra, in support of his narrow interpretation of OCGA § 16-13-30 (b). In Taylor, this court held that the appellant’s two prior drug convictions under Florida law did not constitute violations of OCGA § 16-13-30 (b), and that therefore it was error to sentence appellant to life imprisonment.

Gilbert also contends that Smith v. State, 193 Ga. App. 365 (387 SE2d 648) (1989), supports his interpretation of OCGA § 16-13-30 (d). In Smith, this court determined that appellant’s 1971 conviction for selling heroin did not constitute an offense under OCGA § 16-13-30 (b) since the Georgia Controlled Substances Act was not in effect at that time. Accordingly, the Smith court determined that the life sentence imposed under OCGA § 16-13-30 (d) was improper.

Despite Taylor and Smith, we find that the sentence here was appropriate. To conclude that Gilbert’s prior conviction under OCGA § 16-13-31 does not trigger the recidivist provisions of OCGA §. 16-13-30 (d) would lead to an illogical result since Gilbert’s first conviction was for a more serious version of the offenses outlined in OCGA § 16-13-30 (b). It appears that OCGA § 16-13-30 (b) was a lesser included offense of Gilbert’s conviction under OCGA § 16-13-31. In Bassett v. Lemacks, 258 Ga. 367, 370 (370 SE2d 146) (1988), the Georgia Supreme Court distinguished the provisions of OCGA § 16-13-30 (b) from those of OCGA § 16-13-31. “OCGA § 16-13-30 (b) prohibits the manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any amount of a controlled substance and provides a greater penalty than (a). OCGA § 16-13-31 aims at a yet more serious offense and calls it ‘trafficking.’ The penalties are still greater. There are a number of ways the legislature might have defined trafficking. The definition might have been given in terms of dealing in a large number of drug transactions. Perhaps the amount of money involved could have been the test. Instead, the amount of controlled substance was chosen as the basis for distinguishing the crime of trafficking from the somewhat less serious crimes. Twenty-eight grams was chosen as the dividing line.” (Emphasis supplied.)

Gilbert’s argument that the fact that OCGA § 16-13-30 (b) addresses possession with intent to distribute, while § 16-13-31 addresses only possession of the substance is misplaced. The “intent to distribute” which is necessary to the crime of possession of a substance under § 16-13-30 (b) is satisfied by the reasonable inference that a person who possesses more than the 28 grams of cocaine under § 16-13-31 intends to distribute it. See generally Holbrook v. State, 177 Ga. App. 318 (2) (339 SE2d 346) (1985).

Citing Knight v. State, 243 Ga. 770 (257 SE2d 182) (1979), Gilbert argues that if a statute increasing a penalty is capable of two constructions, it should be construed so as to operate in favor of life and liberty. Therefore, he argues, that he should not have been sentenced under OCGA § 16-13-30 (d). Although we are mindful of this rule, we are also aware that statutes must be construed so as to make sense. Here, it is nonsensical to conclude that a prior conviction for selling a smaller quantity of cocaine would constitute a prior offense under OCGA § 16-13-30 (d), but that the sale of a greater amount of the drug would not trigger the provisions of that statute. Certainly, the legislature did not intend such an illogical result and we will not so interpret the statute.

“The cardinal rule of construction of statutes is to carry into effect the legislative intent and purpose of the Act, if ascertainable, and it is within constitutional limits. Generally, where the language used by the legislature is plain and unambiguous, judicial construction is unnecessary. But where, as here, the words of the statute are inherently ambiguous, our task it to look diligently for the intent of the General Assembly.

“We find that the legislative intent behind OCGA § 16-13-30 (d) and the purpose for its enactment is to deter repeat offenders of certain drug crimes enumerated in OCGA § 16-13-30 (b) and to segregate persons who have two convictions of such offenses from the rest of society for an extended period of time. The language employed by the General Assembly to effect this purpose is at best unclear. However, while we agree that any criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges, it is also true that the legislative intent will prevail over the literal import of the words. Furthermore, it is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature. The construction must square with common sense and sound reasoning.” (Citations and punctuation omitted.) Mays v. State, 200 Ga. App. 457, 459 (2) (408 SE2d 714) (1991), rev’d 262 Ga. 90 (1) (414 SE2d 481) (1992).

To accept Gilbert’s contention that his more serious conviction under OCGA § 16-13-31, for a crime which is different only in that it is more serious than those listed in OCGA § 16-13-30 (b), does not constitute a prior conviction so as to trigger the life sentence provisions of OCGA § 16-13-30 (d) is to ignore the intent of the legislature. Clearly, the legislature did not intend that violators of OCGA § 16-13-31 be exempt from the severe punishment of OCGA § 16-13-30 (d). Given our conclusion that Gilbert’s prior conviction constituted a violation of OCGA § 16-13-30 (b), we find that the life sentence was properly imposed.

2. In his second enumeration, Gilbert claims that the trial court erred in failing to hold a presentence hearing. OCGA § 17-10-2 (a) provides that except in a capital case, “upon the return of a verdict of ‘guilty’ by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed.”

Gilbert does not argue that he was not notified that the prior conviction would be used in sentencing or that he was unaware of the sentence sought. In fact, it is not clear how Gilbert contends the presentence hearing was deficient. In light of the facts of this case and the fact that a life sentence under OCGA § 16-13-30 (d) is mandatory, see Rucks v. State, 201 Ga. App. 142 (410 SE2d 206) (1991), we find no error in the procedure below.

3. Gilbert’s third enumeration of error is that the trial court erred in allowing into evidence a copy of his prior guilty plea to trafficking in cocaine and testimony regarding the prior case. Gilbert supports this enumeration by arguing that the State failed to comply with USCR 31.1 and 31.3 by failing to file with the court notice of these prior convictions and that the court held no hearing regarding this evidence.

First, there is a conflict in the record regarding whether such a hearing was held. The trial court indicated that it did hold a hearing, off the record, regarding the prior conviction in which the court determined that the prior conviction was admissible. At the hearing on the motion for new trial, Gilbert’s trial attorney stated that no such hearing regarding the similar transactions was held. Following the presumption that the trial court ruled correctly, we conclude that a hearing was held. (We also note that if Gilbert was correct, and if no hearing was held, then he is estopped from raising this argument, since he made no objection to the evidence of prior act when it was introduced.) Thus, Gilbert’s argument that no hearing was held is without merit.

In addition to arguing that the court failed to conduct the proper hearing regarding the prior conviction, Gilbert also challenges the sufficiency of the trial court’s determination on the record that the State made a proper showing at the pre-trial hearing for admission of similar transaction evidence under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), and Maxwell v. State, 262 Ga. 73 (414 SE2d 470) (1992). The case here was tried in March 1990 and decided in September 1991. To the extent that the court was required to apply the procedural requirements retroactively, see Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3) (1992), it is apparent that the required findings for introduction of similar crimes were not made a part of the record by the trial court here. Compare Hunter v. State, 204 Ga. App. 25 (418 SE2d 402) (1992). Assuming that this issue was preserved for review, the evidence of Gilbert’s guilt was overwhelming and thus the trial court’s failure was, at most, harmless. See Wright v. State, 253 Ga. 1, 4 (3) (316 SE2d 445) (1984); compare Burney v. State, 201 Ga. App. 64, 65 (410 SE2d 172) (1991); Lumpkin v. State, 205 Ga. App. 68 (421 SE2d 100) (1992). Accordingly, we find no error.

Finally, although Gilbert concedes that he had notice that the prior conviction would be introduced as similar transaction evidence, he argues that the filing requirement under the Superior Court Rules was not met. First, we note that this argument was not appropriately raised before the trial court. Moreover, the record contains the “notice of intent to introduce prior crimes,” which the State sent Gilbert and we find no harmful error in light of the fact that Gilbert was served with this notice.

4. In his fourth enumeration of error, Gilbert claims that the trial court erred in denying his motion for a new trial in that he received ineffective assistance of counsel. A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). Here, Gilbert must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66 (8) (410 SE2d 173) (1991). “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.]” The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992). Here Gilbert has not established that he was denied reasonably effective assistance of counsel.

(a) Gilbert claims that his counsel was ineffective in failing to meet with him, not going over the jury list, not requesting a pretrial hearing on the admissibility of the prior conviction and not filing a motion for change of venue. To the extent that these allegations are factually accurate (see Division 3), we do not find counsel’s performance in these particulars deficient. Further, even if the waiver fell below the standard of effective representation, such deficiency would not have been reasonably likely to have produced a different outcome in the trial. See Gross, supra.

(b) Gilbert argues that trial counsel was ineffective in that he failed to object to Gilbert receiving a life sentence and he admitted that he had made a mistake by failing to do so. Because of our conclusion in Division 1, we find this argument without merit. Counsel’s performance in this regard was not deficient for the reasons set forth above.

(c) Gilbert claims that trial counsel erred by waiving his objections based on Batson after the trial court stated the State had given a sufficient, racially neutral reason. We do not find this aspect of counsel’s performance deficient and this argument is without merit.

(d) Gilbert argues that trial counsel was ineffective in that he stipulated that the crime lab witness was an expert and then he “bolstered the witness.” We have reviewed the record in this regard and find no merit in these claims.

(e) In three separate arguments, Gilbert argues that the trial court erred in failing to hold that his counsel was ineffective in that he failed to object to the introduction of the prior indictment and plea and failed to object to witnesses testifying about the prior indictment and plea. Further, Gilbert claims that his counsel’s reference to the fact that his punishment for the prior conviction was probation constituted ineffective assistance. Given our conclusion in Division 3 above, we find no error in counsel’s performance in this regard.

(f) Gilbert claims that the trial court erred in failing to find his counsel ineffective in that he failed to object to certain hearsay questions and leading questions. We do not find this performance deficient, further, even if this performance fell below the standard of effective representation, such deficiency would not have been reasonably likely to have produced a different outcome in the trial. See Gross, supra.

(g) Gilbert claims that trial counsel failed to request time to prepare to present evidence in “mitigation of evidence.” This argument is ambiguous, given Gilbert’s argument that no presentencing hearing was held. To the extent that we understand his argument, we do not find trial counsel’s performance deficient. Further, even if this performance fell below the standard of effective representation, such deficiency would not reasonably be likely to have produced a different outcome in the trial. See Gross, supra. We have reviewed appellant’s remaining arguments regarding ineffective assistance and find them without merit. See Gross, supra; see also Brown v. State, 257 Ga. 277 (2) (357 SE2d 590) (1987).

Decided March 17, 1993 —

Reconsideration denied March 30, 1993

Ronnie J. Lane, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

5. Finally, Gilbert argues that the trial court erred in denying his motion for new trial on the grounds that the trial judge threatened defense witnesses, commented on the evidence and interfered with the defense. After a review of the transcript, we find that the trial court’s behavior was appropriate. “The trial judge has broad discretion in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness.” Dyke v. State, 232 Ga. 817, 825 (3) (209 SE2d 166) (1974). We find no abuse of that discretion and appellant’s final enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       Gilbert does not contend that he was unaware that he would be sentenced under this statute. He admits that he received notice that his prior conviction would be introduced in aggravation of punishment. See OCGA § 17-10-2 (a). Because Gilbert does not raise this argument, this case is distinguishable from State v. Freeman, 198 Ga. App. 553 (402 SE2d 529) (1991). See also State v. Marshall, 195 Ga. App. 535 (394 SE2d 379) (1990); State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984); Anderson v. State, 176 Ga. App. 255 (335 SE2d 487) (1985). In fact, at the motion for new trial hearing, Gilbert’s attorney testified that his understanding throughout the proceedings was that a conviction would result in a life sentence.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A2275.
    ERVIN et al. v. SWIFT ADHESIVES, INC. et al.
    (430 SE2d 133)
   Cooper, Judge.

Appellants bring this appeal from an order granting summary judgment to appellees. The sole issue raised by appellants’ four enumerations of error is whether appellants’ action was barred by the doctrines of res judicata and collateral estoppel.

On March 2, 1988, appellant James Ervin filed a claim for workers’ compensation for injuries which allegedly arose out of and in the course of his employment with Great Dane Trailer Company (“Great Dane”). Ervin alleged that his employment required him to inspect refrigerated trailers which had been sprayed with chemicals manufactured and distributed by appellees and that his exposure to those chemicals caused him to suffer from terminal and debilitating illnesses such as cancer and brain dysfunction. On March 14, 1988, Ervin and his wife filed a complaint against appellees for personal injuries and loss of consortium resulting from appellees’ failure to adequately warn about the dangers associated with the chemicals it manufactured and distributed to Great Dane for use in its refrigerated trailers. In an order issued May 13, 1991 by an administrative law judge, Ervin’s claim for workers’ compensation benefits was denied. The ALJ found that after a review of the evidence and testimony, Ervin had not carried his burden of proving that his injuries were causally related to his exposure to the chemicals at his place of employment. Ervin appealed the ALJ’s decision to the full board, and while the appeal was pending, appellees filed a motion for summary judgment on the grounds that the doctrine of collateral estoppel precluded appellants from relitigating the issue of causation, and thus appellants would be unable to establish the necessary causal connection to maintain their cause of action. The trial court held a hearing on appellees’ motion for summary judgment, and then stayed the case pending a decision on Ervin’s appeal to the full board. In December 1991, the full board affirmed the ALJ’s decision, and on appeal to the superior court, the superior court affirmed the full board’s decision. Shortly thereafter, the trial court granted appellees’ motion, and this appeal followed.

1. Appellants argue that the trial court erred in granting summary judgment to appellees because neither the parties nor the causes of action were the same as in the workers’ compensation action. The doctrines of res judicata and estoppel by judgment are applicable to awards of the State Board of Workers’ Compensation on all questions of fact over which the Board has jurisdiction. McFadden Business Publications v. Guidry, 177 Ga. App. 885 (1b) (341 SE2d 294) (1986). “The modern trend in applying the doctrines of res judicata and collateral estoppel is to confine the privity requirement to the party against whom the plea is asserted, so as to permit one who is not a party to the judgment to assert the judgment against a party who is bound by it, and thus to preclude relitigation by that party of issues which have been determined adversely to him in the prior action, even though if the issue had been decided in his favor in the prior action, he would not have been entitled to assert the prior adjudication in a subsequent action against a stranger to the judgment. [Cit.] The central question in determining whether the doctrines of res judicata and collateral estoppel apply is whether the party against whom the plea is raised has had a full opportunity to litigate the issue in question. [Cit.]” Watts v. Lippitt, 171 Ga. App. 578, 579 (320 SE2d 581) (1984). Accord Wilson v. Malcolm T. Gilliland, Inc., 198 Ga. App. 616 (2) (402 SE2d 291) (1991). Furthermore, with respect to appellants’ contention that the doctrines of res judicata and collateral estoppel were not applicable because the workers’ compensation claim involved a different cause of action, we find that the issue of causation alleged in Mr. Ervin’s workers’ compensation case is identical to the causation issue alleged in his products liability action against appellees. Therefore, Mr. Ervin had a fair opportunity to present evidence regarding the causal connection between his exposure to the chemicals and his resulting illness and the trial judge correctly held that he is precluded from relitigating the issue of causation in his lawsuit against appellees. Watts, supra.

Decided March 16, 1993 —

Reconsideration denied March 30, 1993

Clarence L. Martin, for appellants.

Rogers & Hardin, Phillip S. McKinney, Anne E. Williams, Clark & Clark, Fred S. Clark, for appellees.

2. Appellants argue that Mrs. Ervin’s claim for loss of consortium is not precluded because she was not a party to the workers’ compensation action. Although appellees argued in their motion for summary judgment that they were also entitled to judgment on Mrs. Ervin’s derivative claim for loss of consortium, appellants failed to respond to this argument in their response to appellees’ motion. We will not consider an issue raised for the first time on appeal. Weaver v. ABC Bus, 191 Ga. App. 614 (2) (382 SE2d 380) (1989).

Judgment affirmed.

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


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A2288.
    HITE v. THE STATE.
    (430 SE2d 125)
   Birdsong, Presiding Judge.

Appellant Daniel Hite a/k/a Daniel Lamar Hite appeals his judgment of conviction of three counts of child molestation in violation of OCGA § 16-6-4, and his sentence. Appellant enumerates two errors; both directly relate to a claim of lack of adequate legal representation at trial.

Appellant’s stepdaughter, who was age 13 at time of trial, testified appellant committed acts of child molestation upon her, as averred in each of the three counts of the indictment, and that appellant’s molestive conduct had occurred less than a year but more than a month earlier. Subsequently, she told Ms. Collier, who was the social service specialist for the Department of Family & Children Services (DFCS), that appellant had been touching her “and stuff.”

Appellant’s ex-wife, the child’s mother, testified as an eyewitness to one count of child molestation, as follows: On December 9, 1990, she entered her daughter’s bedroom and observed her daughter straddling appellant; her daughter was sitting on appellant’s pubic area with her nightgown pulled up and no underpants on; appellant had his shorts pulled down and was totally exposed from the waist down. The child also testified as to this incident that appellant was holding her against his private parts as she struggled to get free.

Mr. Cagle, a school counsellor, testified that appellant’s stepdaughter was referred to him on December 10, 1990, by the school nurse. The child said her stepfather had tried to sexually molest her the night before; she did not give any explicit details about the encounter. Mr. Cagle reported the incident to DFCS.

Ms. Collier, social service specialist of DFCS, testified that on December 10, 1990, appellant’s stepdaughter told her about the events surrounding the December 9 incident. The stepdaughter also said there were several other times when such things happened. Ms. Collier also testified that, on December 11, 1990, the stepdaughter told her of certain other acts, including the touching of her private parts by appellant. Ms. Collier also talked with appellant who stated: “He used to physically discipline [his stepdaughter] and because she bruised easily he resorted to trying to love her more and that that’s when the physical touching began. . . . [Appellant] just allowed [his stepdaughter] to do her own thing which was getting on top of him and rubbing. [Appellant told Ms. Collier] that he should have stopped, that he knew it was wrong, that he had thought of coming for help about a month before [Ms. Collier] made contact with him.” Appellant also “admitted to [Ms. Collier] that he had touched [his stepdaughter] inappropriately. . . . [Appellant further stated:] T never got an erection and we never had intercourse.’ ”

Appellant testified in his own defense and repeatedly denied engaging in any act of molestation regarding his stepdaughter; he offered explanations for the various conduct and statements attributed to him and claimed that certain of his responses had been incorrectly recorded. During the course of his testimony, appellant made an admission in open court that his stepdaughter sat on his groin area “a lot,” but later gave contradictory testimony that she had never sat on his groin area. Appellant denied any sexual arousal or act of molestation during the December 9 incident. However, he admitted in open court that his stepdaughter was sitting on his rib cage when they started scuffling, and that his jogging shorts slid down a little. Nevertheless, appellant maintained that his pubic hair and penis were not exposed at any time and that his stepdaughter had her nightgown tucked under her when she was sitting on him. Appellant also identified his handwriting in two letters which he had written to his ex-wife. Appellant testified in an attempt to explain the contents of one of the letters, State’s Exhibit No. 3. He testified that, although this letter read: “No matter what happened, I never had sex with her . . . I would let her rub around until she was through and then that was it,” that he meant that his stepdaughter would rub around on his back; just rub his back and shoulders, and that he was not talking about other parts of his body. And, that when he wrote, “I was scared not to let her, because I was scared she would tell,” he was referring to the fact that his ex-wife had gotten “on to us several times for [his stepdaughter] sitting on [his] back, rubbing the back of [his] legs and rubbing [his] shoulders. . . . [He would] let her do it, but [he] was always . . . afraid she would tell [his ex-wife] and [his ex-wife would] come around and pitch a fit over nothing.”

In addition to the evidence above summarized, State’s Exhibit Nos. 2 and 3, letters written by appellant, were introduced but not expressly admitted into evidence. However, these exhibits are contained in the trial record and attached at the end of State’s Exhibit No. 1. The record reflects that State’s Exhibit Nos. 2 and 3 were tacitly admitted in evidence by the trial court (Morgan v. State, 204 Ga. App. 178, 181 (1c) (419 SE2d 313)). In this regard, after the State tendered the two exhibits in evidence, appellant’s counsel immediately requested and was given permission to recall appellant to respond to some of the “things” in the letters. Appellant thereafter explained to the jury the meaning that he intended in certain statements in the two letters. Held-.

1. Appellant enumerates as error no. 2 that the trial court failed to insure appellant received a fair trial, that is, a trial the results of which can be trusted. Appellant asserts in support of this contention instances regarding the admission of certain evidence, including the admission of State’s Exhibit No. 1 (a 35-page document from The Highland Institute For Behavioral Change, Inc.) by way of stipulation, the failure to introduce character evidence, and allowing a juror to serve who expressed a belief that she may be related by marriage to appellant’s stepdaughter, and the failure of counsel to tender any requests for charges. The record shows that appellant failed to preserve any of these issues by failing to object timely and specifically thereto, by expressly waiving any claim of error, or by acquiescing expressly or by silence as to the particular issue under trial court consideration. See generally Tatum v. State, 259 Ga. 284, 287 (3) (380 SE2d 253); Easterwood v. State, 259 Ga. 164 (2) (377 SE2d 857); Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889); Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251); Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629). Further, regarding appellant’s failure to object to certain evidence presented by the State, “[a]ll evidence is admitted as a matter of course unless a valid ground of objection is interposed.” (Citations and punctuation omitted.) Smarr v. State, 199 Ga. App. 572, 573 (2) (405 SE2d 561). Thus, none of these issues has been preserved per se for appellate review.

Moreover, assuming arguendo, error had occurred as asserted in appellant’s enumeration of error no. 2, in view of the overwhelming admissible evidence of appellant’s guilt of all three counts of child molestation of which he was found guilty, this error, even if of constitutional magnitude, would be harmless. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38). There remains, however, the question of the adequacy of appellant’s defense counsel at trial.

2. Appellant contends the trial court erred in denying a new trial on grounds that appellant was denied effective assistance of counsel at trial. The proper test to be applied to this issue is a two-part test, that is, “a showing must be made that counsel was deficient, and that the deficient performance prejudiced the defense.” Timberlake v. State, 200 Ga. App. 64, 69 (5) (406 SE2d 537), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). Pretermitting the first tier of this test is whether the representation of appellant by his trial defense counsel prejudiced appellant’s defense. “The evidence of appellant’s guilt is overwhelming. He has failed to demonstrate that there is a reasonable probability that, absent the alleged errors, the verdict of the jury would have been different.” Johnson v. State, 761 P2d 484, 490 (Okl. 1988). Giving due consideration to every alleged professional error attributed to appellant’s trial defense counsel on appeal, and “[b]ased on an exhaustive examination of the record and transcript, we are convinced that the appellant’s conviction resulted not from any deficiency in his legal representation but from the overwhelming evidence of his guilt.” Norris v. State, 176 Ga. App. 164, 168 (8) (335 SE2d 611). Accordingly, we find this enumeration of error also to be without merit.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

With respect to Division 1, which addresses appellant’s second enumeration of error, he is not trying to raise unpreserved issues directly. He argues that counsel’s failure to object and certain other failures and actions should have alerted the trial court to the realization that counsel was not rendering effective assistance so that defendant was not receiving a fair trial. The majority concludes that any error was harmless because of the overwhelming evidence. But that is precisely part of what appellant complains of, i.e., that counsel fatally stipulated the strongly inculpatory Highland Institute report and failed to object to evidence of prior similar acts. If counsel’s performance was deficient in allowing into evidence the report, by stipulation, and the instances of other incidents, by failure to object, we would have to consider the evidence without this and without the evidence related to it, such as defendant’s explanations of these items.

The underlying question is whether it was demonstrated that counsel was constitutionally ineffective in the instances asserted, which is appellant’s first enumeration of error. I agree that he was not. As to the damaging Highland Institute report, counsel testified that he stipulated its admissibility after consulting with defendant; that he was well aware that it contained damaging evidence but that the testimony of the preparer of this report, who was unavailable due to surgery, could prove more damaging; that he told defendant that the State would probably seek a continuance if they did not stipulate the report; and that defendant insisted they proceed with trial. As to the similar incidents, they would have been admissible. With respect to character witnesses, counsel discussed this possibility with defendant but advised they “probably wouldn’t do him any good.” That was a matter of judgment and trial tactics that does not constitute ineffectiveness. Concerning the juror who possibly was related to the victim, counsel discussed the options with defendant. The court had given the options of a mistrial, proceeding with 11 jurors, or proceeding with the juror. Defendant chose the latter, relying on counsel’s knowledge of the juror and his satisfaction with the jury as a whole. None of this is constitutional deficiency in counsel’s professional performance.

Decided March 12, 1993 —

Reconsideration denied March 30, 1993

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., A. Gregory Poole, for appellant.

Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.

Counsel not having been “ineffective” in the particulars claimed, appellant cannot fault the trial court either, for failing to insure a fair trial the results of which could be trusted.


author: Birdsong, Presiding Judge.

text:
    A92A2311.
    HARMON v. THE STATE.
    (430 SE2d 399)
   Birdsong, Presiding Judge.

James L. Harmon, Sr. appeals his convictions for aggravated cruelty to children and aggravated battery. He was sentenced to 20 years confinement with 18 years to serve on the aggravated battery count and 20 years probation on the cruelty to children count to run concurrently with the sentence on the aggravated battery count. The victim of both crimes was Harmon’s seven-month-old step-grandchild. According to the evidence presented, the infant received severe injuries that caused blindness, cerebral palsy, and mental retardation after she was “shaken” and her brain deprived of oxygen.

Harmon contends the trial court erred by allowing the victim to be exhibited to the jury, by admitting evidence of similar transactions, by refusing to give certain defense requested charges, by charging that criminal negligence was a substitute for malice, and by entering judgment on both offenses when the evidence showed both charges were based upon the same facts. He also contends there was a fatal variance between the allegations in the indictment and the evidence presented at trial, and that the verdict was contrary to the law, contrary to the evidence, strongly against the weight of the evidence, and violative of the due process provisions of the Constitutions of Georgia and the United States because there was inadequate evidence to support the verdict within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Held:

1. Harmon’s first enumeration of error asserts the general grounds. We find no error. On appeal we must view the evidence in the light most favorable to the verdict, Harmon no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Further, we do not speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Our review of the transcript shows the infant stayed overnight with Harmon, that Harmon’s nine-year-old daughter saw him violently shaking the infant, and the next morning the infant was listless and unresponsive to external stimuli and had bruises on her face, neck, and ears. The transcript further shows that medical experts testified her injuries were consistent with having been shaken violently and choked, and that as a result of these injuries she is now severely retarded, has cerebral palsy, and is permanently blind. Having reviewed this evidence under the appropriate standards, we conclude from the evidence that a rational trier of fact could find beyond a reasonable doubt that Harmon was guilty of these crimes. Jackson v. Virginia, supra; Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

2. Harmon next contends the trial court erred by allowing the victim to be exhibited to the jury because her physical presence had no probative value on any issue in the case. The transcript shows that the infant was carried into the courtroom by her mother and the jury was allowed to see her physical appearance. The premise of this enumeration is without factual support since the jury’s observation of the victim could either confirm or contradict the testimony regarding her condition. Hence, it cannot be said that her physical presence was without probative value. Further, admission of evidence rests within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). Moreover, OCGA § 24-9-61.1 vests the trial judge with the sole discretion to control the presence of the victim of a crime in the court. As we find no evidence of the abuse of the trial court’s discretion, this enumeration is also without merit.

3. Harmon next contends that there was a fatal variance between the allegata of the indictment and the probata of the evidence because the prosecution did not prove beyond a reasonable doubt each and every statement contained in the indictment. We find no fatal variance. Medical experts testified the bruises on the victim’s face, ears, and neck; the bleeding in her eyes; and her brain injuries could have been caused by Harmon striking, squeezing her face and head, or shaking her. Also, the jury was authorized to find from the photographs of the victim’s bruises that her injuries could have been caused by being struck by Harmon’s hands. Consequently, evidence was presented that tended to prove each causative allegation in the indictment. Additionally, when an indictment avers several different manners in which an offense was committed, and there is evidence sufficient to support a finding of guilt as to one of the manners averred, there is no fatal variance. Lubiano v. State, 192 Ga. App. 272, 273-274 (384 SE2d 410). Contrary to Harmon’s assertion, our law does not demand that each statement of the indictment be proven. “ ‘A variance between the allegata and the probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. [Cits.]’ ” Stinson v. State, 197 Ga. App. 687, 689 (3) (399 SE2d 278).

4. Next, Harmon contends the trial court erroneously admitted evidence of similar transactions because the notice provided violated the letter and intent of USCR 31.3 in that the notice lacked sufficient specificity. The record shows that Harmon received notice under USCR 31.3 (B) and that the trial court held a hearing pursuant to USCR 31.3 (B) at which the State showed that the evidence of the independent offense acts were not intended to raise improper inferences about Harmon’s character, but were offered to show identity, or to prove malice, intent, motive, or state of mind. Additionally, sufficient evidence was offered to prove Harmon committed the independent offense or act and show sufficient connection or similarity between the independent transactions and these offenses so that proof of the former tended to prove the latter. The record also shows that the State gave the required notice with as much particularity as could be stated, the trial court held the required pretrial hearing, and the similar transactions all concern incidents in which Harmon choked or shook the victim, the victim’s 24-month-old brother, and his own son, in the same trailer and within months of the crimes for which he was charged. Therefore, sufficient similarity was established. See Williams v. State, 261 Ga. 640, 642 (409 SE2d 649); Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483). Further, to the extent the evidence showed that Harmon choked or shook the victim on earlier occasions within the period of limitations, Rule 31.3 does not apply. Garrett v. State, 188 Ga. App. 176, 177 (372 SE2d 506); Bowman v. State, 184 Ga. App. 197 (361 SE2d 58).

5. Since enumerations of error 5 and 6 both depended upon the erroneous theory that the State was obliged to prove beyond a reasonable doubt each of the different ways Harmon may have inflicted the injuries (see Division 3, supra), the trial court did not err by refusing to give these charges. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267).

6. In the same manner, the trial court did not err by refusing to give Harmon’s requested charge patterned after the equal access to the premises theory (see Jones v. State, 200 Ga. App. 519 (408 SE2d 823)) because the State’s proof relied upon the direct evidence that Harmon was seen shaking the child. A trial court does not err by refusing to give a requested charge which, as crafted, creates a fair risk of confusing or misleading the jury when examined -in light of the other charges. Jones v. State, supra at 521. Accordingly, this enumeration of error is also without merit.

7. The transcript shows that contrary to Harmon’s contention, the trial court did not charge the jury that criminal negligence was a substitute for malice. The charge given was sufficient. Chester v. State, 262 Ga. 85, 88 (414 SE2d 477); Gaddis v. State, 176 Ga. App. 526, 527 (336 SE2d 587).

8. Harmon’s final contention is that the trial court erred by entering judgment on both counts because the same operative facts were alleged in each count: Count 1 charged Harmon with the offense of cruelty to children (OCGA § 16-5-70) between the first and twentieth day of April 1990, by unlawfully and maliciously causing a child under the age of 18 “cruel and excessive physical and mental pain by striking said child iii the head with his hands, by squeezing the face and head of said child with his hands, and by shaking said child, said act and acts causing organic brain damage,” and Count 2 charged Harmon with aggravated battery (OCGA § 16-5-24) between the first and twentieth day of April 1990, by unlawfully and maliciously causing bodily harm to the person of the victim by “rendering useless a member of her body, to wit: her eyes by striking said child in the head with his hands, by squeezing the face and head of said child with his hands, and by shaking said child, causing organic brain damage and retinal hemorrhages.” Therefore, Harmon argues that he is being punished twice for the same acts. See Andrews v. State, 200 Ga. App. 47 (406 SE2d 801); Redding v. State, 193 Ga. App. 50 (386 SE2d 907).

Review of the evidence presented shows that both charges are in fact based upon the same acts. Although the evidence showed Harmon was seen some weeks earlier shaking the victim, the medical evidence was that the victim’s brain damage would show up almost immediately after the injury. Consequently, the victim’s brain damage was not caused by the earlier shaking. Further, the prior shaking incident was offered and admitted as similar crimes evidence; and the similar crimes evidence was the subject of an instruction to the jury limiting the use of this evidence to the purpose for which it was introduced. Therefore, the evidence presented only supports the conclusion that the brain damage alleged in Count 1 and the brain damage and blindness alleged in Count 2 were the result of the injuries the victim sustained the night of April 19-20, 1991. Moreover, there was no evidence that Harmon injured the victim on other than one occasion because the testimony was that Harmon shook the victim only one time that night.

“OCGA § 16-1-6 together with OCGA § 16-1-7 contain the standards for determining if one offense is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 330 (2) (219 SE2d 441) (1975). They are alternative and not conjunctive. State v. Estevez, 232 Ga. 316, 319 (1) (206 SE2d 475) (1974). Paragraph (1) of § 16-1-6 sets out the rules for determining included crimes as a matter of fact and paragraph (2) treats those included as a matter of law. Stephens v. Hopper, 241 Ga. 596, 599 (1) (247 SE2d 92) (1978).” Shuler v. State, 195 Ga. App. 849, 850 (395 SE2d 26).

In accordance with OCGA § 16-1-7 (a), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if . . . [o]ne crime is included in the other.” Cruelty to children (OCGA § 16-5-70) and aggravated battery (OCGA § 16-5-24) are not included offenses as a matter of law because the crimes have different elements, prohibit different conduct, and generally protect different classes of victims. See Shuler v. State, supra at 850 (cruelty to children not included in use of fighting words).

Nevertheless, the two crimes may be included as a matter of fact when the same or less than all the facts are used to prove both crimes. OCGA § 16-1-6 (1); Hambrick v. State, 256 Ga. 148 (344 SE2d 639); Shuler v. State, supra. In this case, as the evidence established only one act of squeezing, striking and shaking of the victim that caused both the brain injury and the blindness, this evidence was necessary to prove both the cruelty to children count and the aggravated battery count. Accordingly, the cruelty to children count merged into the aggravated battery count. Andrews v. State, supra at 48; Horne v. State, 192 Ga. App. 528, 533 (385 SE2d 704).

Decided March 18, 1993 —

Reconsideration denied March 30, 1993

Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

9. Therefore, Harmon’s conviction and sentence for cruelty to children are vacated. Horne v. State, supra; Green v. State, 170 Ga. App. 594, 595 (317 SE2d 609). His conviction and sentence for aggravated battery are affirmed.

Judgment affirmed in part and vacated in part.

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


text:
    A92A2378.
    REUTO v. THE STATE.
    (430 SE2d 55)
   Birdsong, Presiding Judge.

Johnny Reuto a/k/a Johnny Ravenell appeals his convictions for two sales of cocaine to an undercover police officer. He contends that the trial court erred by admitting into evidence prosecution Exhibit No. 2 (a ziplock plastic bag, containing a piece of tinfoil identified as containing 3.5 grams of cocaine hydrochloride) without requiring the State to prove a proper chain of custody, by depriving him of his right to confront and cross-examine witnesses who would have been called if all persons having custody of the cocaine had been called to testify, by denying his motion for a directed verdict of acquittal on Count 1 because of the inadmissibility of Exhibit No. 2, by allowing the State to prove that he had a pistol in his possession when he was arrested, and by returning the jury for further deliberation after the jury indicated that they were deadlocked. Held:

1. Reuto’s first three enumerations of error all concern the trial court’s admission in evidence of prosecution Exhibit No. 2, the cocaine allegedly purchased on March 6, 1990. Reuto contends the trial court erroneously admitted Exhibit No. 2 in evidence because the prosecution did not call every police officer who had custody of the cocaine. We find no error. The transcript shows the prosecution called Officer Woods, who purchased the cocaine from Reuto and who marked the cocaine with her initials, and that she identified prosecution Exhibit No. 2 as the cocaine purchased on March 6, 1990. Officer Woods testified that after marking the exhibit, she gave the item to Officer Wells, and Officer Wells then testified that he turned the item over to Officer Francisco. The prosecution also called the chemist from the Georgia Bureau of Investigation who testified that he received the item as marked, later identified as prosecution Exhibit No. 2, from Officer Francisco, tested the item, and subsequently identified the item as cocaine.

Nothing in the record suggests that the exhibit was tampered with in any manner, and there was no testimony that there had been tampering. Therefore, the evidence established with reasonable certainty that Exhibit No. 2 was the same item that Officer Woods purchased from Reuto and there is no evidence of tampering or substitution of the exhibit. Under this evidence, we find no error. “Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. The trial court was authorized to conclude that the state had met its burden with respect to the establishment of the chain of custody in the present case. There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence.” (Citations and punctuation omitted.) Williams v. State, 199 Ga. App. 122, 123 (404 SE2d 296).

Accordingly, the trial court did not err by admitting this evidence, did not err by not requiring the prosecution to call Officer Francisco, and since Exhibit No. 2 was properly admitted, did not err by denying Reuto’s motion for a directed verdict of acquittal. Therefore, Rueto’s first, second, and third enumerations of error are without merit.

2. The fourth enumeration of error contends the trial court erred by allowing to be presented irrelevant testimony that Reuto had two pistols in his possession when he was arrested. Reuto argues that this testimony placed his character in issue. Not all evidence that places a defendant’s character in issue, however, is inadmissible, and relevant and material evidence is not inadmissible because the evidence incidentally places the defendant’s character in issue. Richie v. State, 258 Ga. 361, 362 (369 SE2d 740). Consequently, as the circumstances connected with a defendant’s arrest are admissible generally as a part of the res gestae (Crowe v. State, 193 Ga. App. 385 (388 SE2d 24)), we find no error. Additionally, even if the evidence is of questionable relevancy, our rule is that the evidence should be admitted with the weight to be afforded the testimony left for the jury. Harris v. State, 183 Ga. App. 219, 221 (358 SE2d 634).

Decided March 8, 1993 —

Reconsideration dismissed March 30, 1993

Hawk, Hawk & Lyons, Jacque D. Hawk, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Daniel W. Hamilton, Assistant District Attorneys, for appellee.

3. Reuto’s final enumeration of error contends the trial court erred by instructing the jury to deliberate further and try for a unanimous verdict after the jury advised they were unable to reach a verdict after approximately two hours of deliberation. Review of the transcript, however, shows that Reuto did not object to this procedure in the trial court. Consequently, there is nothing for us to review because this issue is raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877). Therefore, this enumeration of error is also without merit.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A0002.
    TRAVER v. McKNIGHT.
    (430 SE2d 164)
   McMurray, Presiding Judge.

Plaintiff Floyd D. Traver brought this personal injury suit against Vanessa McKnight on March 2, 1990, alleging that defendant negligently injured him on March 4, 1988. A deputy marshal tried to serve defendant at the apartment address set forth in the complaint; he returned the summons non est. Soon thereafter, plaintiff hired a skip tracer to find and serve defendant — to no avail. Then, on April 1, 1991, more than three years after plaintiff was injured and one year after he filed suit, defendant moved to dismiss the complaint. In support of the motion, defendant submitted an affidavit in which she deposed that she lived at the apartment specified in the complaint until July 31, 1988, when she moved to another apartment in the same apartment complex; that she moved to her current address on September 1,1989 and has lived there since that time; and that she never “attempted to evade service of process or hide [her] whereabouts.”

Plaintiff served interrogatories upon counsel for defendant seeking defendant’s current address. Additionally, plaintiff served notice upon defendant’s counsel that he intended to depose defendant. Defendant’s counsel did not provide the information sought in the interrogatories and defendant did not attend the deposition. In an affidavit filed in opposition to the motion to dismiss, plaintiff’s counsel deposed, in part: “Where intense pursuit of all publicly and privately available trails of information [lead to the] conclusion that a present dead end has been reached, the remaining technique to be employed is to allow sufficient time to pass to generate new events which create public record of address or other indication of location, such as renewal of a driver’s license, registration of an automobile or report of its sale, voter registration, publication of telephone listings . . . and other public events. It was and is the opinion of plaintiff’s counsel that this approach is the most reasonable approach to search for the location of an elusive defendant.”

Defendant’s motion to dismiss was argued in the trial court on April 8, 1992. Plaintiff had yet to perfect service upon defendant by that time. The trial court determined that plaintiff did not show “due diligence in his efforts to locate the defendant and serve her within a reasonable time of the filing of the complaint.” Accordingly, it granted defendant’s motion to dismiss. In reaching its decision, the trial court opined: “Defendant’s affidavit testimony that she has made no attempt to evade service or hide is also uncontroverted.” Plaintiff appeals. Held:

Plaintiff asserts the trial court erred in finding that defendant did not attempt to evade service or hide and in granting the motion to dismiss. In this regard, he argues that defendant’s failure to answer his interrogatories and attend a deposition demonstrates that she was evading service. We disagree. Defendant had no obligation whatsoever to respond to plaintiff’s discovery requests until such time as she was served with process. And it cannot be said that defendant was trying to evade service or hide simply because she did not participate voluntarily in discovery.

“Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff. In this determination the trial court hearing the motion to dismiss is vested with a discretion to determine the cause of the delay; if it is attributable to the plaintiff and the court dismisses the complaint this court will not intervene. Webb v. Murphy, 142 Ga. App. 649 (236 SE2d 840) (1977). The diligence exercised by the plaintiff describes the true test. Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975).” Bible v. Hughes, 146 Ga. App. 769 (2), 770 (247 SE2d 584).

The trial court did not abuse its discretion in determining that plaintiff did not exercise due diligence in attempting to serve defendant. Id. After initially trying to find defendant, plaintiff took no further steps to effectuate service for nearly two years. Plaintiff did not exercise due diligence because he was waiting for “sufficient time to pass to generate new events which create public record of address.” Due diligence requires action, not words.

Decided March 18, 1993 —

Reconsideration denied March 30, 1993

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant.

Clifton Lee & Associates, Clifton Lee, Jean F. Johnson, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A92A1741.
    BLOCH et al. v. HERMAN’S SPORTING GOODS, INC. et al.
    (430 SE2d 86)
   Johnson, Judge.

Patricia and Alan Bloch brought this action for negligence and loss of consortium against Herman’s Sporting Goods, Inc., Toys-R-Us, Inc., Northlake Associates, and Crow Atlanta Retail seeking damages for injuries Ms. Bloch sustained when she slipped and fell on an icy sidewalk located in the Northlake Festival Shopping Center.

The facts construed most favorably to the appellants are as follows: Toys-R-Us and Herman’s are located adjacent to each other in the Northlake Festival Shopping Center. They are abutted in the front by a continuous sidewalk. On the morning of December 19, 1989, Ms. Bloch went to Northlake Festival Shopping Center to purchase an item from Toys-R-Us. The temperature in the Atlanta area had been below freezing for several days, ice had accumulated in various places around the city and on this particular morning there was “a light freezing rain.” Schools in the surrounding area had been closed on December 18, 1989, due to inclement weather and on the morning of December 19, 1989, Ms. Bloch had observed ice on her daughter’s school grounds. As Ms. Bloch approached the entrances of Herman’s and Toys-R-Us she noticed a “band of ice that appeared . . . to be completely impassible” on the portion of the sidewalk in front of Toys-R-Us. In an effort to avoid the ice, she decided that she would traverse the portion of the sidewalk in front of Herman’s. There, Ms. Bloch noticed ice accumulations in the gutter, on the curb and on the first part of the sidewalk. Just beyond the edge of the sidewalk, she saw an area which appeared to be clear of ice but covered with puddles of water. She stepped over the ice and into one of the puddles of water. She slipped on what she believed to be “invisible” ice located under the water and fell, injuring her ankle. She appeals from the order granting summary judgment to the appellees.

In her sole enumeration of error, Bloch contends that the trial court erred in granting summary judgment in favor of the appellees. We disagree.

A proprietor has the duty to keep premises safe for his invitees; but the plaintiff cannot recover if she has failed to exercise ordinary care for her own safety. See OCGA §§ 51-3-1 and 51-11-7. In order to recover for a slip and fall resulting from a hazardous condition not only must the plaintiff show that the defendant had knowledge of the presence of the hazardous condition, but the plaintiff must also show that she was without knowledge of its presence. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). “The customer must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it.” (Punctuation omitted.) Id.

Ordinarily, knowledge of a hazardous condition is not necessarily knowledge of danger inherent in such a condition. However, knowledge of a puddle of water surrounded by ice, coupled with knowledge of the generally prevailing weather conditions, is knowledge of a probable danger of encountering additional ice under the surface of the water and a danger of slipping when walking thereon. See Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297) (1985) (holding that actual knowledge of the risk posed by slippery manhole not necessary where plaintiff aware the entire sidewalk was wet). In the absence of any evidence to the contrary, it is presumed that Ms. Bloch is a person possessing ordinary intelligence to whom the risk attendant upon stepping in a puddle of water under the specific conditions which existed here would be obvious. See City of Rome v. Baker, 107 Ga. 347 (33 SE 406) (1899); see also Smith v. Bel-Arbor, 121 Ga. App. 739 (175 SE2d 146) (1970).

Ms. Bloch’s reliance on Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982) is misplaced. In Telligman, the appellant stepped up on a sidewalk on the proprietor’s premises believing that there was no ice or any other hazardous condition in the area in which she stepped. No ice, water, or any other foreign substance was apparent. Unlike the plaintiff in Telligman, Ms. Bloch consciously and deliberately placed her foot into a hazardous condition, a puddle of water, with knowledge that the sidewalk and surrounding areas were covered with ice. By choosing to walk in a puddle in the midst of the ice accumulations, she assumed any risks incident thereto and was guilty of such a lack of ordinary care for her own safety that she cannot recover. See OCGA § 51-11-7; see generally Wade v. Roberts, 118 Ga. App. 284, 287 (163 SE2d 343) (1968). Because Ms. Bloch failed to exercise due care for her own safety, we need not address the question whether the defendants breached any duty to her. The trial court correctly granted summary judgment to the defendants.

Decided March 9, 1993 —

Reconsideration denied March 31, 1993

England, Weaver & Kytle, George M. Weaver, for appellants.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Sybil R. Carter, for appellees.

2. It is undisputed that Ms. Bloch’s fall occurred on the portion of the sidewalk directly in front of Herman’s. We therefore note that summary judgment was properly granted to Toys-R-Us. It had no duty to maintain the portion of the sidewalk immediately in front of Herman’s in a safe condition. See Elmore of Embry Hills v. Porcher, 124 Ga. App. 418, 420 (183 SE2d 923) (1971).

Judgment affirmed.

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


author: Birdsong, Presiding Judge. Beasley, Presiding Judge,

text:
    A92A1786, A92A1787.
    AMERICAN GENERAL LIFE & ACCIDENT INSURANCE COMPANY v. FISHER; and vice versa.
    (430 SE2d 166)
   Birdsong, Presiding Judge.

These appeals arise from the attempted enforcement of restrictive covenants in American General’s field representative employment agreement that Fisher executed. This agreement provides:

“COVENANT NOT TO SOLICIT. The field representative agrees that upon termination for any reason including resignation or retirement he/she shall not in any county or counties in which he/she was engaged in any way as a field representative of the company, directly or indirectly:
“(a) within twenty-four (24) months after termination, solicit or accept or assist, aid or abet others in soliciting any application for insurance or annuities as a replacement of any insurance or annuity contracts at the time being provided by the company which was sold or serviced by the company at any time or times during his/her employment by the company through any effort whatever on his/her part, or on which he/she received any compensation; or
“(b) within twelve (12) months after termination, solicit or accept or assist, aid or abet others in soliciting any application for insurance or annuities from a policyholder of the company who was sold a policy of insurance or annuity contract at any time or times during the field representative’s employment by the company through any effort whatsoever on his/her part, or on which he/she has received any compensation.
“COVENANT NOT TO INDUCE. The field representative agrees that for a period of twenty-four (24) months from the date of termination of his/her employment with the company, he/she will not directly or indirectly induce or attempt to induce:
“(a) any field representative of the company or employee of the company’s clerical force to terminate employment with the company, or to solicit or sell life, health, fire or accident insurance for another company, nor shall the field representative aid or abet others in such activity;
“(b) any company policyowner or insured to cancel, lapse or fail to renew an insurance policy or contract with the company.”

Because the parties conceded the duration and territorial scope of the covenants were reasonable, the trial court’s analysis centered upon whether the restrictions on Fisher’s post-employment activities also were reasonable. The trial court found that although the covenant not to induce satisfied the requirements of Georgia law, the covenant not to solicit was overbroad in restricting Fisher’s post-employment activities, and, thus, was unenforceable.

Both parties appeal. In the main appeal American General contends the restrictions in the covenant not to solicit were authorized by Georgia law, and in the cross-appeal Fisher asserts that the trial court’s ruling that the covenant not to induce was enforceable violates this state’s “blue pencil” rule of severability. Although first filed with our Supreme Court, these appeals were transferred to this court since the appeals primarily concern the validity of the covenants not to compete. Held:

Case No. A92A1786

1. Even though contracts generally restraining trade or tending to lessen competition are against public policy and void under Ga. Const. 1983, Art. Ill, Sec. VI, Par. V (c), and OCGA § 13-8-2, restrictive covenants in employment contracts are deemed only in partial restraint of trade and will be upheld if they are reasonable, founded on a valuable consideration, and reasonably necessary to the protected interest, but do not unduly prejudice the public interest. Further, this determination is a question of law for the court, which must consider the nature and extent of the trade or business, the situation of the parties, and any other relevant circumstances. A three-element test of duration, territorial coverage, and scope of activity is used in examining the reasonableness of the restrictions. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (422 SE2d 529).

Considered in that manner, we find that the trial court did not err in concluding the covenant not to solicit was unenforceable. This covenant prohibits Fisher from accepting applications for insurance from American General policyholders who wish to transfer to his new company without any solicitation on his part. This provision overprotects American General’s interest by unreasonably affecting the public’s ability to select the insurance services it prefers. See Singer v. Habif, Arogeti & Wynne, 250 Ga. 376, 377 (297 SE2d 473). Additionally, the covenant provision which prohibits Fisher from assisting, aiding or abetting others in soliciting any application for insurance within the meaning of the covenant is also overbroad because a covenant that will not permit Fisher to “assist, aid or abet” others, in effect, prohibits Fisher from working as a supervisor or in other capacities in the insurance business in which he could not unduly influence policyholders directly because of any special trust and confidence he may have built up through his prior employment with American General. “[LJanguage which restricts employees from activities in a much more limited fashion than is necessary for the protection of the employer will not withstand the reasonableness test so as to uphold the covenant.” Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16). Under this clause the employee is in effect prohibited from working in any capacity for a competitor, even in positions unrelated to solicitation and sales. This restriction is larger than is necessary to protect the employer and is therefore unreasonable. Jarrett v. Hamilton, 179 Ga. App. 422, 424 (346 SE2d 875).

Accordingly, the trial court did not err by finding the covenant not to solicit unenforceable, and, therefore, the judgment in Case No. A92A1786 is affirmed.

Case No. A92A1787

2. In this appeal Fisher contends the trial court erred by finding the covenant not to induce enforceable because such a finding violates the Georgia rule against the “blue-pencil” theory of severability. We agree. If any one of the non-competition clauses is unenforceable because of indefiniteness, overbreadth, or unreasonableness, then the whole agreement must fail. Jarrett u, Hamilton, supra. “If any covenant not to compete within a given employment contract is unreasonable either in time, territory, or prohibited business activity, then all covenants not to compete within the same employment contract are unenforceable.” (Citation and punctuation omitted.) Ward v. Process Control Corp., 247 Ga. 583, 584 (277 SE2d 671). Thus, the trial court erred by finding the covenant not to induce enforceable. Additionally, we note that this covenant also includes the same “aid or abet” provision found deficient in Division 1.

Accordingly, the trial court’s judgment in this appeal must be reversed.

Judgment in Case No. A92A1786 is affirmed; judgment in Case No. A92A1787 is reversed.

Decided March 18, 1993 —

Reconsideration denied March 31, 1993

Freeman & Hawkins, Lawrence J. Myers, Kevin J. Bahr, for appellant.

Adams & Adams, Charles R. Adams III, for appellee.

Andrews, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

In Singer v. Habif, Arogeti & Wynne, 250 Ga. 376, 377 (1) (297 SE2d 473) (1982), only a plurality of the Court held that the covenant in the employment agreement, prohibiting the employee from accepting employment from clients of the employer without having solicited them, was unreasonable and unenforceable. That holding was, however, adopted by a majority of the Court in Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2b) (307 SE2d 914) (1983). It would also appear to have been adopted by a majority in W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (422 SE2d 529) (1992), although it was also held in that case that the three-element test of duration, territorial coverage, and scope of activity is not a rigid test; instead, it is to be used as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.

In any event, this holding is in direct conflict with Bennett v. Ga. Indus. Catering Co., 222 Ga. 127 (1) (149 SE2d 81) (1966); Coffee System of Atlanta v. Fox, 226 Ga. 593, 596 (4) (176 SE2d 71) (1970); Marcoin, Inc. v. Waldron, 244 Ga. 169, 171 (1) (259 SE2d 433) (1979); and Hancock v. Fickling & Walker Ins. Agency, 248 Ga. 608, 610 (1) (284 SE2d 414) (1981), none of which was cited in the later decisions. The better rule in my view is the one applied in the earlier decisions, where the covenant against “acceptance” as well as “solicitation” is not unreasonable. It is no doubt difficult in practice to distinguish between the two, or to draw a line. If the former employee is not prohibited from “accepting” but can only be prohibited from “soliciting,” the determination of whether the employee merely accepted or instead solicited the former employee’s customer will require resolution of a factual dispute. In addition, would it be “accepting” the business of a customer of the former employer who responds to a general newspaper advertisement?


text:
    A92A2052, A92A2053.
    SOUTHERN CELLULAR TELECOM INC. et al. v. BANKS; and vice versa.
    (431 SE2d 115)
   Johnson, Judge.

The facts construed most strongly in support of the verdict are as follows: Edward Grenvicz was the primary shareholder and president of Southern Cellular Telecom, Inc. (SCT). From 1987 until the summer of 1989, SCT established 13 subsidiaries, including Southern Cellular Telecom North (SCT North). In several instances, SCT offered a minority interest in the subsidiary corporation as an incentive to an individual who would also serve as the on-site manager. Grenvicz entered into an oral contract with Nancy Banks whereby she would become a 49 percent shareholder in SCT North and its general manager in December 1988. Thereafter, Grenvicz began negotiating the sale of SCT and all of its subsidiaries, including SCT North, to Resurgens Communications Group, Inc. and in May 1989, Grenvicz agreed to sell SCT, including Banks’ interest to Resurgens, at more than 18 times earnings. In June 1989, Banks signed a Stock Purchase and Employment Agreement which contained an option allowing SCT to buy back her 49 percent interest in SCT North at 1.5 times net earnings. At the time Banks signed the agreement, Grenvicz advised her that the agreement “was for her protection” and intentionally failed to disclose to her that he had already contracted to sell her interest to Resurgens at 18 times earnings. In July and August 1989, SCT notified Banks of its intent to exercise its purchase option, pursuant to the terms of the Stock Purchase and Employment Agreement.

Banks filed a multi-count complaint against SCT and Grenvicz alleging breach of contract; fraud and deceit; conversion; civil conspiracy; violation of the Georgia RICO Act; equitable accounting; parent corporation control and dominion; constructive trust; disgorgement of property and profits; and money had and received and unjust enrichment. Her fraud and deceit claim was presented to the jury for determination. The remainder of the claims were disposed of either by summary judgment or directed verdict. The jury returned a verdict in favor of Banks for $100,000 in general damages, $150,000 in punitive damages and reasonable attorney fees which were awarded pursuant to the jury’s finding that the appellants had acted in bad faith in the transaction.

The appellants appeal from the judgment entered on the verdict and the denial of their motions for j.n.o.v. and for a new trial. Banks cross-appeals from the trial court’s entry of a directed verdict in favor of the appellants on the breach of contract claim and from the order granting summary judgment on her conversion claim, her Georgia RICO claim and her claims involving federal and state securities law violations.

Case No. A92A2052

1. Appellants contend that the trial court erred in denying their motion to vacate two orders granting Banks’ motions to file first and second amendments to the complaint and pretrial order. The appellants concede, and the record shows, that the claims which were added by the order granting the motions were ultimately disposed of in favor of the appellants by directed verdict and other rulings during the trial. We need not address this assignment of error on its merits for it is well settled that harm as well as error must be shown to authorize a reversal. Stamey v. State, 194 Ga. App. 305, 309 (4) (390 SE2d 409) (1990).

2. During Banks’ opening statement the appellants moved for a mistrial on the basis that they had been prejudiced by improper argument. The trial court has broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by this court unless it appears there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right of fair trial. Apac-Georgia v. Padgett, 193 Ga. App. 706, 708 (1) (388 SE2d 900) (1989). Furthermore, after reviewing the transcript, we are unable to find any language or improper argument which would warrant a mistrial. The transcript shows that the appellants did not object to the specific language in the opening statement about which they now complain. Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. Warren v. Jenkins, 190 Ga. App. 442, 443 (2) (379 SE2d 19) (1989).

3. Appellants contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on Banks’ fraud and deceit claim because Banks failed to prove that if she had known of the material terms of the pending transaction between SCT and Resurgens she would not have signed the agreement. Appellants also assert that Banks failed to prove the value of her interest in SCT North.

Banks testified that if she had been aware of the value of SCT and the high price/earnings ratios she would not have signed the agreement allowing SCT to purchase her interest at 1.5 times earnings. The President and Chief Executive Officer of Resurgens testified that price and value are always important in matters involving the acquisition or sale of companies.

We find no merit in the appellants’ argument that Banks was not competent to testify regarding the value of her ownership interest. Even if the appellants had properly preserved their argument, Banks was competent to testify on the issue. An owner may offer opinion evidence as to the value of her property. See OCGA § 24-9-66. Banks testified that in her opinion the fair market value of her 49 percent interest was $367,500 on the date the SCT-Resurgens transaction closed. It is undisputed that the purchase price under the stock purchase agreement was only $45,239. In addition to Banks’ valuation, a qualified business evaluations expert testified that Banks’ interest in SCT North was worth between $500,000 and $600,000.

Because Banks presented evidence regarding the materiality of the nondisclosure and the value of her interest, a directed verdict or j.n.o.v. in favor of the appellants was not demanded, and the trial court properly denied the appellants’ motions. See Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987).

4. Appellants contend that the trial court erred in allowing Tom Price, owner of 39 percent of the shares at SCT West, a subsidiary of SCT, to testify as to the alleged value of SCT West. Appellants argue that plaintiff laid no foundation for the testimony and that the testimony was irrelevant.

Price testified that he was a 39 percent shareholder of SCT West as well as its business manager. He personally compiled activity reports, showing cash, gross sales, and profits. He also based his opinion regarding the market value of SCT West upon published reports of the price of the SCT acquisition by Resurgens and the value placed on SCT arising from that transaction. Banks laid a sufficient foundation for Price’s testimony regarding the value of SCT West.

Price testified that SCT West was first in sales, and SCT North was second in sales. Banks asserts that Price’s testimony regarding the value of SCT West was offered to show the value of SCT North. This testimony was relevant to the issue of whether SCT acted in bad faith. “Evidence is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth.” (Citations and punctuation omitted.) Yelverton v. State, 199 Ga. App. 41, 42 (1) (403 SE2d 816) (1991). We find no error.

5. Appellants next complain that the trial court erred in admitting the testimony of Joy Henson and Mara Velaney, two shareholders in SCT West. The appellants argue that the testimony of these witnesses should have been excluded from evidence because the circumstances about which they testified were not sufficiently similar to be relevant to the subject claim. We disagree. Henson and Velaney testified that in May and June 1989 they signed stock purchase agreements containing an option to buy back their shares at one-and-one-half times earnings; that SCT failed to disclose to them the terms of the Resurgens/SCT transaction set forth in the letter of intent dated May 26, 1989; that they were not paid their interests until long after their interests were acquired by SCT. They testified that had they known of the material facts of the transaction they would not have agreed to sell their interests at such a low rate. This evidence was properly admitted for the purpose of showing fraudulent intent, because the similar acts were committed near the same time, and the same motive could have reasonably been inferred. See Pope v. Propst, 179 Ga. App. 211, 214 (2) (345 SE2d 880) (1986). The trial court did not err in allowing the challenged testimony.

6. The appellants contend that the trial court erred in giving cumulative jury charges on fraud. The three charges complained of were repeated twice. “Mere repetition of a principle of law is not reversible error unless it appears, from the charge as a whole, that there is such undue emphasis as to constitute an unfair statement of law.” (Citations and punctuation omitted.) Jones v. Livingston, 203 Ga. App. 99, 104 (6) (416 SE2d 142) (1992). After reviewing the charge as a whole, we are satisfied that there was not such undue emphasis on the charges on fraud as to constitute an unfair statement of the law.

7. Appellants’ seventh enumeration of error challenges certain aspects of the special verdict form. We have reviewed the special verdict form and find that it was in proper form and capable of being reduced to judgment. See generally Todhunter v. Price, 248 Ga. 411, 412-413 (1) (283 SE2d 864) (1981). Moreover, the appellants failed to properly object to the verdict form at the time that it was published and therefore waived their right to object on appeal. See id.

8. Appellants contend that the trial court erred in denying their motions to amend the pleadings and pretrial order. This enumeration is without merit. One week before trial, the appellants filed a motion for leave to amend the pleadings and the pretrial order, seeking to add the defenses of waiver and estoppel pursuant to a merger clause in the agreement. The court denied the motion on the grounds that raising such defenses would constitute surprise and delay the trial of the case. The decision to allow an amendment is within the trial court’s discretion. Henderson v. Easters, 178 Ga. App. 867, 870 (2) (345 SE2d 42) (1986).

After the trial, the appellants again sought to amend the pleadings and the pretrial order arguing that the defenses were tried with express or implied consent of the parties. See OCGA § 9-11-15 (b). The transcript does not reveal that Banks expressly consented to an amendment. We must therefore consider whether she impliedly consented to such an amendment.

Appellants argue that Banks’ reference to the merger clause in her motion for partial summary judgment, several witnesses’ testimony regarding the clause, and the fact that the stock purchase agreement containing the clause was submitted into evidence all constituted implied consent to the amendment. We find this argument to be without merit. “Where a party does not object to evidence because it is relevant to an issue made by the pleadings, and there is no evidence the party offering such evidence was seeking to amend the pleadings, a non-objecting party can scarcely be held to have given him implied consent to trial of unpled issues.” (Citations and punctuation omitted.) Southern Discount & Co. v. Kirkland, 181 Ga. App. 263, 267 (3) (351 SE2d 685) (1986). It appears from the record that any evidence regarding the merger clause was incidentally interjected into the evidence at trial because it was relevant to establish the fraud and deceit claim. Under these circumstances, consent will not be implied. See id. The trial court did not abuse its discretion in denying the post-trial motion to amend.

Case No. A92A2053

1. Banks contends that the trial court erred in granting summary judgment to the defendants on her conversion claim, ruling that an intangible property interest is not subject to conversion. We disagree. Banks’ 49 percent interest in SCT North was an intangible property interest. Banks concedes that under Georgia law, no action can be brought for conversion of an intangible property interest. She argues, however, that the law of conversion in this state should be extended to include intangible property. We are not persuaded by Banks’ argument. Conversion is not available as a cause of action with respect to intangible property representing an interest in a business. See generally Hodgskin v. Markatron, 185 Ga. App. 750, 751 (1) (365 SE2d 494) (1988). The trial court correctly granted summary judgment to the defendants on this claim.

2. In her second enumeration, Banks contends that the trial court erred in granting the defendants’ motion for summary judgment on her claims regarding federal and state securities law violations. We have examined Banks’ assertion and find that the stock purchase agreement was merely an employment contract containing an option to buy back her 49 percent interest in SCT. Such a contract does not constitute a security. We find no error.

3. Because Banks’ interest in SCT North is an intangible property interest and not a security, her contention that the trial court erred in granting summary judgment in favor of the defendants on her Georgia RICO claim is likewise without merit. See OCGA § 16-14-3 (9) (B).

4. Banks contends that the trial court erred in excluding evidence regarding the profits of SCT North after July 1, 1989, the effective date of the sale of SCT North to Resurgens. She argues that the exclusion of this evidence prevented her from recovering all of the damages due her in connection with her former interest. It is well settled that the measure of damages in action for fraud and deceit is the actual loss sustained, and if the contract is one of purchase and sale the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if there had been no fraud. Miner v. Harrison, 205 Ga. App. 523, 526 (422 SE2d 899) (1992). Because the effective date of the sale of Banks’ interest in SCT North was July 1, 1989, as noted, Banks was precluded from introducing evidence to establish any damages she incurred after that date.

Decided March 11, 1993 —

Reconsideration denied March 31, 1993

Hurt, Richardson, Garner, Todd & Cadenhead, Henry D. Fellows, Jr., Hunton & Williams, Kevin A. Ross, Loma M. Norton, Martha M. Glisson, for appellants.

L. Matt Wilson, McCalla, Raymer, Padric, Cobb, Nichols & Clark, C. James Jessee, Jr., Charney K. Berger, for appellee.

5. In her final enumeration of error, Banks contends that the trial court erred in granting the defendants’ motion for directed verdict on her breach of contract claim. Banks asserts that she withdraws this assignment of error upon this court’s affirmance of the trial court’s judgment. We need not address this enumeration of error on its merits.

Judgments affirmed.

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

       Because Banks affirmed the stock purchase agreement, the appellants also argue that they were entitled to a directed verdict on Banks’ fraud claim because a merger clause contained in the agreement precluded her from suing in tort. We find this argument to be without merit because this is not a case involving fraudulent inducement. Compare Carpenter v. Curtis, 196 Ga. App. 234, 236 (395 SE2d 653) (1990).