text:
    A96A1090.
    HYMAN v. THE STATE.
    (474 SE2d 243)
   Blackburn, Judge.

Claude Demetrius Hyman appeals his convictions of armed robbery, attempted armed robbery, two counts of aggravated assault of a peace officer, and two counts of interference with government property.

1. In his first enumeration of error, Hyman asserts that the trial court erred in failing to grant his motion for directed verdict on the armed robbery and attempted armed robbery charges. Hyman contends that he had abandoned any effort to commit the crimes charged.

The evidence viewed in the light most favorable to the verdict shows that Hyman was arrested after he ran his vehicle into an embankment while being pursued by two police cars. After his arrest, Hyman made a statement to Kay Fulford, a special agent with the Georgia Bureau of Investigation. In his statement, Hyman admitted that he was driving his girl friend’s 1986 red Pontiac Sunbird and that his two passengers were Mark Edwards and Carlos Laster. Hyman stated that he had taken Laster to Laster’s house so that Laster could get his “thing.” After Laster obtained his “thing,” Hyman realized that the “thing” was a sawed-off shotgun with pistol grips. Laster said that they needed to make a “hit,” and that he would split any money with Hyman and Edwards.

' Laster instructed Hyman to drive by a detail shop where several people were working. Laster told Hyman and Edwards to walk by the detail shop to determine how many people were present. Laster was then going to approach with the gun, and Hyman and Edwards were supposed to take the victims’ money and jewelry. Laster failed to approach with the gun when Hyman and Edwards were at the detail shop, so Hyman agreed with Edwards’ suggestion that they “pull out.” As Hyman and Edwards got back to the car, Hyman heard Laster’s gun cock and Laster yell “Get down, get down.” Hyman and Edwards started back to the detail shop where Hyman saw a couple of people on the ground and another man running away. Upon seeing a car coming toward them that looked like a police car, Hyman and Edwards returned to their car. Laster got back to the car and said, “That’s trouble, go, go, go.” Hyman then drove the car while Laster fired his gun two different times at the two police cars chasing them. After Hyman turned off the highway and onto a dirt road, the car ran into an embankment.

Hyman argues that because he agreed to “pull out,” and did not participate in the actual robbery, his motion for directed verdict should have been granted. While we recognize that mere presence at the scene of a crime is insufficient to convict, “the jury was authorized to infer his criminal intent from his conduct before, during, and after the commission of the crime.” Thompson v. State, 210 Ga. App. 655, 656 (436 SE2d 799) (1993). In the present case, although the robbery was not accomplished as planned, by Hyman’s own statement, after he heard Laster’s gun cock he started to go back to the detail shop, an act which the jury could infer was inconsistent with an intent to abandon the crime. Hyman went back to his car only upon seeing a car he thought was a police car, from which the jury could infer an increased probability of detection. See OCGA § 16-4-5 (b) (1). Moreover, Hyman’s assistance in the participants’ flight by driving was consistent with his participation in the criminal enterprise.

“A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a). On appeal we must view the evidence in the light most favorable to the verdict, [Hyman] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations and punctuation omitted.) Thompson, supra.

Having viewed the evidence under the appropriate standards of appellate review, we conclude that a rational trier of fact could find Hyman guilty beyond a reasonable doubt of armed robbery and attempted armed robbery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Hyman contends the trial court erred in failing to grant his motion for directed verdict on the two aggravated assault and two interference with government property charges. Hyman asserts that because only one of the officers testified, the additional charge was supported only by hearsay.

James York, with the Tift County Sheriff’s Department, testified that he was informed by a witness that a man in a white shirt was running down the street carrying a shotgun. Officer York testified that he drove to the area indicated by the witness and he saw a man in a white shirt getting into a car, which Officer York proceeded to follow. After Officer York attempted to stop the car he was following by activating his blue lights, the car sped up. During the chase which ensued, the person in the back seat of the car shot the shotgun in Officer York’s direction. Officer York testified that he could see the flash from the gun before hearing the pellets hit his car. Sergeant Brown, driving the second pursuing police car, pulled his car in front of Officer York’s car and the chase continued. Officer York saw two more flashes come from the vehicle being chased.

We have previously held that “intentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault.” Steele v. State, 196 Ga. App. 330, 331 (396 SE2d 4) (1990). Therefore, construing the evidence in favor of the verdict, we find that Officer York’s testimony was sufficient to support both aggravated assault charges.

“A person commits the offense of interference with government property when he . . . damages . . . government property.” OCGA § 16-7-24 (a). In support of these charges, Officer York identified photographs of his vehicle and the vehicle driven by Sergeant Brown. Sergeant Brown’s vehicle’s blinker was broken by a shotgun blast. Officer York further testified that their vehicles were inspected daily. Although Hyman complains that Officer York had no way of knowing that Sergeant Brown’s blinker was broken by the shotgun blast, the basis of Officer York’s knowledge was never questioned. Therefore, because Officer York’s knowledge could have been firsthand, rather than hearsay, we cannot assume that the testimony was hearsay. On appeal, we must construe the evidence to support the verdict, and by so construing the evidence we find it sufficient to support the crimes charged. See Jackson v. Virginia, supra.

3. In his third enumeration of error, Hyman contends the State failed to provide him with all his in-custody statements prior to trial and the admission thereof required a mistrial. Hyman maintains that the additional statements not provided to him were harmful to his defense because they tended to show that Hyman was aware that Laster was going to get his gun when Hyman took Laster to Laster’s house. Hyman, however, was provided with a copy of his statement which indicated that he was aware Laster had obtained a sawed-off shotgun from his house prior to discussing making “a hit.”

Pretermitting whether the State violated former OCGA § 17-7-210, we note that the punishment for failure to comply with the statutory requirements is the exclusion of such evidence from the State’s “case-in-chief or in rebuttal.” See former OCGA § 17-7-210 (c). In the present case, the testimony to which Hyman objects was rendered during defense counsel’s cross-examination of the State’s witness. The State did not pursue the objected-to line of questioning. Therefore, we do not find any error. See Stuldivant v. State, 202 Ga. App. 64 (1) (413 SE2d 247) (1991). See also Henson v. State, 168 Ga. App. 210, 211 (2) (308 SE2d 555) (1983).

4. In his final enumeration of error, Hyman contends that his conviction of two counts of aggravated assault must merge with the two counts of interference with government property. We cannot agree because the evidence indicated that at least two shots were fired at each officer. Therefore, the State did not use identical evidence to prove each crime. Furthermore, the elements of interference with government property are not included in the elements required for aggravated assault. Compare OCGA §§ 16-5-21 and 16-7-24 (a). Hyman’s enumeration of error is without merit.

Decided July 22, 1996

Reconsideration denied August 6, 1996.

Jason K. Hoffman, for appellant.

C. Paul Bowden, District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-4-5 provides: “(a) When a person’s conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. (b) A renunciation of criminal purpose is not voluntary and complete if it results from: (1) A belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or (2) A decision to postpone the criminal conduct until another time.”

       Edwards and Laster were Hyman’s co-defendants, but they are not involved in this appeal.

       OCGA § 16-1-7 (a) provides that “[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: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A0799.
    QUINN v. THE STATE.
    (474 SE2d 297)
   Judge Harold R. Banke.

Roger Dale Quinn and a co-defendant were convicted of burglary. On appeal, Quinn challenges the sufficiency of the evidence and alleges ineffective assistance of counsel.

The evidence supporting the verdict shows that a neighbor observed a van parked with its motor running in the victim’s driveway. The burglars kicked in the back door of the victim’s residence, ransacked the house, and took a white and burgundy pillow case, jewelry, a wooden jewelry box, a watch, a television, and firearms.

Captain Hall of the Rockdale County Sheriff’s Department spotted a van similar to that described by the neighbor in the driveway of a residence near his home. Hall drove by slowly and made eye contact with one of the van’s occupants, who was walking up to the door. When the man knocked only once, then left the porch without allowing sufficient time for anyone to answer the door, and continued to watch Hall as he returned to the van, Hall’s suspicions grew. Hall followed the van and a high speed chase ensued. When officers arrested Quinn and his co-defendant, they retrieved from the van the victim’s jewelry box, a bracelet with his wife’s name on it, a watch, and a dish in the burgundy and white pillow case. Held:

1. The evidence, viewed in the light most favorable to the verdict, is sufficient for a rational trier of fact to find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The essential elements of burglary are: (1) entering into the dwelling house of another (2) without authority (3) with the intention of committing a felony. OCGA § 16-7-1 (a); Hambrick v. State, 174 Ga. App. 444, 446-447 (1) (330 SE2d 383) (1985). The evidence of Quinn’s unexplained recent possession of stolen goods in the van after the chase adequately supports an inference that he committed the theft. Bolar v. State, 216 Ga. App. 195, 197 (4) (453 SE2d 790) (1995). Furthermore, Quinn’s flight provides circumstantial evidence of guilt. Id. Combined with the neighbor’s identification of the van in the victim’s driveway during the victim’s absence, the victim’s damaged door, and the suspicious actions which initiated the chase, this evidence provides adequate support for the verdict.

2. We reject Quinn’s contention that his counsel was ineffective for (a) preventing Quinn from testifying and (b) failing to object to certain evidence. To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential. Rogers v. State, 195 Ga. App. 446, 447 (394 SE2d 116) (1990). Tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994).

(a) At the motion for new trial hearing, Quinn’s trial counsel stated that he discouraged Quinn from testifying because he believed the State then would probably enter into evidence a similar transaction involving a gun to which Quinn pleaded guilty. Quinn’s counsel also stated that after he explained this possibility, Quinn agreed not to testify. This evidence supports a finding that counsel did not prevent Quinn from testifying at trial and that the decision not to call him to the stand was strategic. Young v. Ricketts, 242 Ga. 559, 561 (1) (c) (250 SE2d 404) (1978); Williams v. State, 217 Ga. App. 709, 711 (2) (458 SE2d 892) (1995). Accordingly, the trial court’s determination that Quinn’s counsel was not ineffective was not clearly erroneous. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993).

(b) We reject Quinn’s assertion that his trial counsel was ineffective for failing to object to the admission of Captain Hall’s testimony that he witnessed an occupant of the van go to the door and knock as similar transaction evidence. “ ‘The facts and circumstances surrounding the arrest of a defendant have been held to be relevant and admissible during the trial of a criminal case.’ [Cit.]” DeCastro v. State, 221 Ga. App. 83, 85 (1) (470 SE2d 748) (1996). Because the statement was admissible as original evidence and it explained the circumstances of Quinn’s arrest and how the victim’s belongings were discovered in the van Quinn occupied, arguing that it was inadmissible as similar transaction evidence would have been futile. OCGA § 24-3-2; see Ivester v. State, 252 Ga. 333, 335-336 (2) (313 SE2d 674) (1984). Thus, counsel was not deficient.

Decided August 6, 1996.

Tony D. Calhoun, for appellant.

Garry T. Moss, District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       Quinn’s conviction in his first trial on this charge was reversed. Gearin v. State, 208 Ga. App. 878 (432 SE2d 818) (1993).


text:
    A96A0878.
    DANFAIR PROPERTIES, INC. et al. v. BOWEN.
    (474 SE2d 295)
   Judge Harold R. Banke.

Andrew Bowen sued his former employer, Danfair Properties, Inc. (“Danfair”), and its president, Reginald Daniel, for $59,961.28 in commissions Bowen allegedly earned during the three years he assisted Danfair in developing properties funded by the Farmers Home Administration (“FHA”). Danfair and Daniel appeal a jury verdict for Bowen.

Bowen alleged that he was hired with the oral understanding that he would receive a salary, mileage, a percentage of the real estate commissions, and a $350 bonus on each home the FHA actually funded. Daniel paid only $3,500 of the total amount allegedly owed as bonuses, claiming they were payable only if the project was profitable. After Bowen complained to Daniel about being paid less than they had agreed to, Daniel reduced his version of the agreement to writing. Under Daniel’s version, Bowen was to receive a bonus of $350 per unit on three named complexes but only $250 on any other complexes. This response convinced Bowen that Daniel was never going to pay him the full amount. Bowen then resigned and brought this action. Held:

The trial court correctly denied Daniel and Danfair’s motion for directed verdict. A directed verdict is proper only if there are no conflicts in the evidence on any material issue and the evidence demands a particular verdict. OCGA § 9-11-50 (a); Vickery Ins. Agency v. Chambers, 215 Ga. App. 48, 50 (449 SE2d 885) (1994). If any evidence, viewed in the light most favorable to the victor, supported the jury’s verdict, denial of the motion was not error. Profes-

Decided August 6, 1996.

Ellis, Easterlin, Peagler, Gatewood, Harper & Skipper, John V. Harper, for appellants.

Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, for appellee.

sional Consulting &c. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992).

Here, Bowen testified that Daniel agreed to pay him $350 per apartment unit constructed. Bowen offered as proof a note Daniel wrote to him which stated that Bowen was owed a $350 per unit bonus on two specified sites which totaled $21,300 to be paid when Daniel received his share of the “syndication proceeds.” Daniel admitted he paid only $3,500 of this amount, maintaining that he never received the syndication proceeds. Daniel testified that Bowen had performed the work required under the contract. In light of this evidence, a directed verdict was inappropriate. The fact that Daniel contested whether there was a meeting of the minds on the terms of the bonus required that the issue be presented to the jury. Nations v. Winter, 165 Ga. App. 890, 891 (1) (303 SE2d 64) (1983).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

       Although Daniel enumerated three errors, he limited his argument and citation of authority to whether Bowen presented evidence of an enforceable contract sufficient to preclude a directed verdict. Our disposition of this issue renders moot Daniel’s challenge to the denial of his motion for new trial. Central Nat. Ins. &c. v. Dixon, 188 Ga. App. 680, 681 (373 SE2d 849) (1988). Inasmuch as our function is to review the sufficiency rather than the weight of the evidence, Daniel’s third enumeration lacks merit. Haynes v. McCambry, 203 Ga. App. 464, 465 (1) (416 SE2d 893) (1992).


author: Birdsong, Presiding Judge.

text:
    A96A1144.
    DEAN v. SCHREEDER, WHEELER & FLINT et al.
    (474 SE2d 648)
   Birdsong, Presiding Judge.

This is an appeal from the order of the Fulton County Superior Court in Case No. E38185 dismissing appellant’s conspiracy claim with prejudice as to appellee/defendants’ law firm, Schreeder, Wheeler & Flint (SWF) and Clerk of the Superior Court of Clayton County, Linda Miller f/k/a Linda Moore, on the grounds the complaint failed to state a claim upon which relief can be granted and on grounds of res judicata.

This series of litigation resulted, subsequent to February 25, 1993, when appellant purchased a used “as is” trailer, which was located on a rental lot in a mobile home park, from R.O.C. Properties, Inc. (ROC), the client of appellee law firm, SWF. Appellant took possession of the mobile home but refused either to pay lot rent or to remove his home from the lot. Appellant filed his first lawsuit, Case No. 93-CV-141-2, on March 18, 1993, against ROC, the Riverdale Police, the Clayton County Sheriff and the Atlanta Journal & Constitution. Appellant alleged ROC defrauded him into believing that he was also buying the mobile home lot and prayed the trial court to declare him the lot owner. ROC, which was represented by Debra Wilson, an attorney in the firm of SWF, counterclaimed for a writ of possession and damages for unpaid rent. Ms. Wilson thereafter represented ROC and SWF in each of appellant’s subsequent suits against them. On November 18, 1993, appellant filed a notice of appeal of an oral decision made in chambers by Chief Judge Ison, though the court had not yet issued any written final order in this case (see generally Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676)); on November 22, 1993, Chief Judge Ison granted summary judgment to ROC both as to appellant’s complaint and ROC’s counterclaim. As appellant remained in possession of the lot, ROC filed motions for supersedeas bond to require payment of rent into the court registry pending appeal; Chief Judge Ison granted both motions. Appellant neither posted the $3,000 bond nor paid rent; on November 22, 1993, in a final order Chief Judge Ison granted ROC a writ of possession instanter for the lot. On August 5, 1994, this Court in Case No. A94A1132 (unpublished Rule 36 disposition) affirmed the judgment (in Case No. 93-CV-141-2); on January 17, 1995, the Supreme Court denied a petition for certiorari. No application for the writ was made until February 16, 1994, and writ of possession was not issued until February 17, 1994.

Meanwhile on November 18, 1993, four days before Chief Judge Ison entered summary judgment against appellant in the first suit, appellant filed a petition to issue writ of mandamus in Case No. 93-CV-600-2, naming ROC, the Clayton County Sheriff’s Department, and Chief Judge Ison as defendants. On December 2, 1993, the trial court denied the petition holding that appellant merely sought relief from the judgment entered in Case No. 93-CV-141-2 to which an appeal could be filed. Appellant appealed this judgment directly to the Supreme Court which, on March 11, 1994, sua sponte dismissed the direct appeal as both untimely and improper.

On January 10, 1994, appellant filed a complaint in the Superior Court of Fulton County, Case No. E23557, naming Ms. Wilson, a Mr. Lameck, Chief Judge Ison, and the Clayton County Police Department as defendants, alleging substantially the same facts as averred in the first complaint, and also asserting a claim of conspiracy by the named defendants. On April 1, 1994, the Fulton County Superior Court issued an order transferring the case to Clayton County; appellant filed notice of appeal; however, he apparently did not pay assessed court costs; and no further activity has occurred regarding this appeal. (The order provides that if court costs are not paid within the time therein specified the action would be dismissed automatically without prejudice.)

On May 20, 1994, appellant filed a complaint (Case No. 94-CV-233-2) in Clayton County Superior Court naming the state solicitor (Mr. Baird), Mr. White, and ROC, as defendants. The factual allegations, including that of conspiracy, were substantially the same as in the preceding suits. ROC counterclaimed for a bill of peace, and on July 22, 1994, the superior court entered an order enjoining this litigation until Case No. 93-CV-141-2 was resolved. On April 12, 1995, appellant filed a notice of appeal. On May 5, 1995, the trial court dismissed the case for want of prosecution; appellant failed to pay costs, and the case has not been transmitted on appeal.

On July 20,1994, appellant filed a petition for writ of mandamus in Fulton County Superior Court (Case No. E29845), naming as defendants, SWF, Judges Ison and Carbo, and the Clayton County Sheriff. On August 15, 1994, the superior court denied the petition. Appellant appealed, and on April 10, 1995, the Supreme Court affirmed the denial of the petition.

On June 7, 1995, appellant filed this case (Case No. E38185) alleging a conspiracy between SWF, Linda Miller f/k/a Linda Moore (clerk of superior court), and Judge Ison to issue a writ of possession in Case No. 93-CV-141-2 after a notice of appeal had been filed; appellant also complained of improper handling of appeals by Miller in Case Nos. 93-CV-600-2 and 94-CV-233-2. (Appellant filed a separate action against Judge Ison who is not named as a defendant in this case.)

The trial court found that both SWF and Linda Moore were entitled to the motion to dismiss because defendants/appellees, “having no power to issue any order for a writ of possession, were unable to have conspired with [Judge Ison] as alleged. Further, plaintiffl/appellant] has failed to state a claim, as plaintiff himself failed to post a supersedeas bond to preserve the supersedeas effect of his notice of appeal; therefore, the writ of possession was validly issued. Plaintiff!/ appellant] further fails to state a claim against [appellee Moore] for punitive damages, as such damages are not proper against a government officer or entity. Plaintiff!/appellant] has further failed to state a claim for any mishandling of certain other appeal cases, as the plaintiff has failed to pay costs of appeal.” The trial court also found that SWF was entitled to a grant of its motion to dismiss on grounds of res judicata. Held-.

1. Pretermitting whether res judicata precludes appellant’s suit against SWF is the question whether the trial court lacked jurisdiction over the claims against appellees, SWF and Linda Miller f/k/a Linda Moore, Clerk of the Clayton County Superior Court, based on an averment of a conspiracy to issue a writ of possession. We find that the trial court lacked jurisdiction over these claims.

The original suit instituted by appellant (Case No. 93-CV-141-2) has become final; the trial court in this suit granted summary judgment to ROC on its counterclaim seeking a writ of possession and damages for unpaid rent. The effect of the case at bar is to attack collaterally the grant of summary judgment awarded ROC in Case No. 93-CV-141-2. OCGA § 9-11-60 precludes collateral attacks of a judgment which is not void on its face; “[sjince alleged [conspiracy to issue a writ of possession] in a previous case would not render the judgment therein void on its face, it necessarily follows that that judgment should be subject only to a direct rather than a collateral attack.” Shepherd v. Epps, 179 Ga. App. 685, 686 (1) (347 SE2d 289). Case No. 93-CV-141-2 being a judgment not void on its face “shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” OCGA § 9-11-60 (a). “If one is dissatisfied with a judgment one does not merely file a new action against the other party or his counsel. Instead, one must attack the prior judgment directly.” Zepp v. Toporek, 211 Ga. App. 169,171 (1) (b) (438 SE2d 636). The trial court did not err in dismissing all conspiracy claims averred in the complaint. We will not reverse the correct ruling of a trial court regardless of the reason therefor. Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344). Moreover, as the only claims reasonably averred against SWF were based on conspiracy, as to SWF the complaint fails to state any claims upon which relief can be granted, and SWF was entitled to be dismissed from the suit on this ground.

2. OCGA § 15-6-50 provides that, as a prerequisite for holding the office of clerk of the superior court, the person shall be “a resident of the county in which he seeks the office of clerk of the superior court for at least two years prior to his qualifying for the election to the office.” OCGA § 15-6-50 (b) (1) (B). Thus, it appears that appellee Miller was a resident of Clayton County for at least two years prior to her qualifying for the election of the office of Clerk of the Clayton County Superior Court. Once appellee Miller’s status as a resident is established, such status is presumed to continue until the contrary is established by evidence of record. Esco v. Jackson, 185 Ga. App. 901, 906 (2) (366 SE2d 309). Accordingly, an issue exists whether the Fulton County Superior Court has proper venue in this case; it is noted that appellee Miller raised the issues of lack of service, jurisdiction and venue in her answer to appellant’s complaint. See generally Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. Accordingly, we will remand this case to the trial court, to determine whether venue remains in view of our disposition in Division 1. If venue does not exist, the case with its remaining claims should be transferred to a court having proper jurisdiction and venue. Ga. Const, of 1983, Art. VI, Sec. I, Par. VIII. If venue is found to exist, the trial court should convert appellee Miller’s remaining motion to dismiss into a motion for summary judgment, give the parties notice thereof (OCGA § 9-11-56), and adjudicate the converted motion based on evidence in the record outside the pleadings. OCGA § 9-11-12 (b); see, e.g., Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519); Jaynes v. Douglas, 147 Ga. App. 678, 679 (250 SE2d 14). For the basis for converting the remaining motion to dismiss, compare the trial court’s order in the case at bar with the complaint and the affidavit of the Senior Deputy Clerk of the Clayton Superior Court.

Decided August 6, 1996.

Thomas G. Dean, pro se.

Schreeder, Wheeler & Flint, Debbie A. Wilson, John A. Kimbell, for appellees.

Judgment affirmed in part, vacated in part and case remanded with direction.

Beasley, C. J, and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A96A1427.
    SIMMONS v. BEARDEN.
    (474 SE2d 250)
   Blackburn, Judge.

J. E. Simmons filed the underlying action sounding in trover and seeking damages against his neighbor, Jimmy Bearden. Following a bench trial, the trial court awarded Simmons the return of his property but denied the damages and extraordinary relief requested. Simmons appeals the trial court’s judgment asserting that the trial court erred in finding that he was required to identify his property and request its return prior to trial.

As the trial court was sitting as the trier of fact in a nonjury trial, its findings of fact are analogous to a jury verdict, and we will not disturb them if there is any evidence to support them. See Hamil v. Stanford, 264 Ga. 801, 802 (449 SE2d 118) (1994). The evidence presented at the bench trial revealed that Simmons and Bearden had engaged in disputes for, at least, the past ten years. On April 14, 1990, a Hereford heifer belonging to Simmons crossed through a broken fence line and wandered onto Bearden’s land. Although Simmons sent employees to talk to Bearden’s father about retrieving the cow, neither Simmons nor any of his employees ever identified the cow or requested return of the cow directly to Bearden. Bearden’s father suggested that Simmons make arrangements with the Marion County Sheriff to accompany Simmons onto Bearden’s property to identify and retrieve the cow; however, such a meeting never took place. Instead, Simmons filed suit for return of the cow. In a videotape produced at trial, Simmons identified his cow on Bearden’s property.

Decided July 23, 1996

Reconsideration denied August 7, 1996.

J. E. Simmons, pro se.

Denney, Pease, Allison & Kirk, John W. Denney, Elizabeth S. Morgan, for appellee.

The trial court determined that Simmons’ failure to identify the cow to Bearden and request its return prior to trial foreclosed his right to damages. Citing OCGA § 44-12-150, Simmons contends that he was not required to prove conversion where the defendant still maintained possession of the property. OCGA § 44-12-150 provides that “[i]n actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property if the defendant is in possession when the action is brought.” However, in Kornegay v. Thompson, 157 Ga. App. 558, 560 (278 SE2d 140) (1981), we recognized that OCGA § 44-12-150 does not apply “where the property has been lawfully acquired by the defendant.”

In the present case, the evidence supports the trial court’s determination that defendant did not obtain Simmons’ cow by an unlawful method. Therefore, as Bearden did not deny Simmons’ averments of title, Simmons was required “to prove either actual conversion or a demand for return of the property and defendant’s failure or refusal to redeliver.” Graham v. State Street Bank &c. Co., 111 Ga. App. 416, 418 (142 SE2d 99) (1965). Furthermore, as the evidence supports the trial court’s determination that no demand for return of the cow or refusal to return the cow took place, the trial court did not err in determining that Simmons was required to prove conversion.

Judgment affirmed.

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

       The first suit filed was dismissed without prejudice shortly before trial.


text:
    A96A0847.
    ORTIZ v. THE STATE.
    (474 SE2d 300)
   Judge Harold R. Banke.

Miguel Ortiz was convicted of rape, aggravated sodomy, incest, and battery against the victim, his 15-year-old niece. Ortiz enumerates six errors.

The victim lived with Ortiz, his wife and three children, two of Ortiz’s brothers and her mother. As she accompanied Ortiz on some errands, Ortiz detoured, turned off on a rural road and stopped. While on this isolated dirt road, Ortiz beat, raped, and sodomized his young niece. Shortly afterwards, Ortiz and the victim were involved in a single car accident in which their vehicle flipped over. The victim immediately ran from the car and sought assistance from the occupants of another vehicle, telling Trina Edwards and Ebony Reid that her uncle had just tried to rape her. The victim’s eye was swollen, she was not wearing any shoes, her clothing was unbuttoned, and she was crying and scared. She told Reid that her uncle had raped her, then she claimed he did not rape her, and then said he kind of raped her. The victim was driven to a nearby house where medical and law enforcement personnel were summoned. The victim told Mattie Jo Duke, the responding EMT, that her uncle had raped her. After her arrival at the hospital, medical personnel prepared a rape kit. The victim also told Investigator Lanny Dean that her uncle had raped her. Because the trial court determined that the victim was unavailable to testify during the trial, her testimony from the committal hearing was admitted into evidence. Held:

1. We reject Ortiz’s complaint that the trial court abused its discretion by denying his motion for new trial. Ortiz contends that a post-trial affidavit provided by the victim constitutes new exculpatory evidence negating an essential element of his rape conviction because the victim’s affidavit states that there was no vaginal penetration.

In order to be granted a new trial based on newly discovered evidence, a defendant must show, among other things, that the evidence is so material that it would probably produce a different verdict, that it is not cumulative only, and that it will have an effect other than to impeach a witness. Humphrey v. State, 207 Ga. App. 472, 474 (1) (428 SE2d 362) (1993). See Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980). Ortiz contends that his niece’s post-trial affidavit stating that no vaginal penetration occurred provides sufficient grounds to mandate a new trial because her committal testimony was equivocal. We disagree.

The penetration of the female sexual organ by the male sexual organ, which is necessary to constitute rape, need be only slight and may be proved by indirect or circumstantial evidence. Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974); Jackson v. State, 157 Ga. App. 604 (1) (278 SE2d 5) (1981).

The physical examination at the emergency room disclosed blood, swelling, and small labial tears, evidence of trauma. The crime lab found spermatozoa in swabs taken from three to four inches inside the victim’s vagina. At the committal hearing, the victim described feeling some vaginal penetration. Several witnesses testified that the victim told them that her uncle had raped her. This was sufficient evidence to prove penetration. See Jackson, 157 Ga. App. 604 (1). In light of this evidence, Ortiz failed to satisfy his burden of showing that the new evidence was so material as to indicate the probability of a different verdict. Timberlake, 246 Ga. at 494 (3).

2. The trial court did not err in admitting the committal hearing testimony of the victim who was in Puerto Rico at the time of the trial. Former testimony can be admitted under OCGA § 24-3-10 without violating the confrontation clause. Littles v. Balkcom, 245 Ga. 285, 287 (3) (264 SE2d 219) (1980). It must be shown that the witness is inaccessible, the parties and issues are substantially the same, and the party against whom the former testimony is offered was afforded the opportunity to cross-examine fully the witness concerning the matter now in issue at the second trial. Prater v. State, 148 Ga. App. 831, 836 (5) (253 SE2d 223) (1979). Here, the parties and issues were substantially the same, and the witness was cross-examined by Ortiz at the committal hearing.

Also, before former testimony can be admitted, the party offering it must show that the witness is inaccessible within the meaning of OCGA § 24-3-10 and that it has exercised due diligence in attempting to secure the witness’s presence. LaCount v. State, 237 Ga. 181 (227 SE2d 31) (1976). The determination as to the inaccessibility of a witness is within the sound discretion of the trial court and will not be disturbed unless a manifest abuse of discretion is shown. Thomas v. State, 192 Ga. App. 744 (1) (386 SE2d 402) (1989).

To prove the victim’s inaccessibility and its own diligence, the State showed that it had served the victim with a subpoena twelve days before trial and then unsuccessfully attempted to contact her on two additional occasions. On the morning of trial, Investigator Dean confirmed with her that she was staying in Puerto Rico and had no definite date to return. Under these facts, the trial court properly admitted her former testimony.

3. The trial court did not err in refusing to grant a continuance. Four days before trial, Ortiz informed the court that he wished to proceed with his trial despite his counsel’s motion for a continuance and advice to the contrary. After the trial commenced, when it became apparent that the victim would not be in attendance, the record does not show that Ortiz renewed his motion for a continuanee. Accordingly, this issue was not preserved for appellate review. Dupree v. State, 206 Ga. App. 4 (1) (a) (424 SE2d 316) (1992).

4. The trial court did not abuse its discretion in refusing to grant a mistrial based on the State’s closing argument. Ortiz objected to the prosecutor’s comments about the State’s inability to contact the victim despite repeated efforts, her availability to defense counsel, her absence from the trial, and the likely reasons for her absence. Ortiz contends that the prosecutor’s insinuation that Ortiz’s family had put the victim on a plane to Puerto Rico was improper, inflammatory, and highly prejudicial. It is permissible for a prosecutor to comment upon a defendant’s failure to produce a witness. Bell v. State, 180 Ga. App. 170 (2) (348 SE2d 712) (1986). Counsel may argue inferences from evidence or the lack thereof regardless of whether the inferences are logical or reasonable. Cooper v. State, 178 Ga. App. 709, 712 (3) (345 SE2d 606) (1986). Remarks not likely to prejudice a defendant’s right to a fair trial do not create reversible error. Davis v. State, 178 Ga. App. 357, 360 (3) (343 SE2d 140) (1986). See OCGA § 17-8-75. We find no error here.

5. The trial court correctly denied Ortiz’s ineffective assistance of counsel claim. Utilizing the affidavits of three relatives, Ortiz blames his trial attorney for the victim’s absence at trial contending that his defense counsel instructed the relatives to get the victim out of the country during the time of the trial. However, the motion testimony from Antonio Ortiz and Miguel Ortiz, Sr. deviates from their affidavit testimony with Antonio Ortiz conceding that the discussion with defense counsel about the victim’s absence occurred after the trial, not before it, and Ortiz’s father admitting that it was the victim’s aunt in Puerto Rico who had the idea of her traveling to Puerto Rico. Defense counsel testified that he absolutely did not encourage the relatives to ensure the victim’s nonattendance.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), Ortiz must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). In light of the overwhelming evidence of guilt, and the inconsistent testimony purporting to explain the victim’s absence and who was responsible for it, Ortiz failed to make the requisite showing of prejudice to his defense, even assuming counsel’s performanee was somehow deficient. Id. The trial court’s finding that Ortiz was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (397 SE2d 484) (1990).

Decided August 7, 1996.

Fred R. Kopp, for appellant.

C. Paul Bowden, District Attorney, for appellee.

6. The trial court properly admitted the testimony of Reid, Edwards, and Duke. A victim’s declarations, made shortly after the commission of the crime and as a natural consequence thereof, are admissible in evidence as part of the res gestae. Horn v. State, 140 Ga. App. 592, 596 (7) (231 SE2d 414) (1976); OCGA § 24-3-3. The victim’s statements to Reid and Edwards, both occupants of the vehicle which stopped to render assistance after the car flipped, were very close in time to the commission of the crimes. Tucker v. State, 243 Ga. 683, 684 (3) (256 SE2d 365) (1979). This was the victim’s first opportunity to report what had happened to her. Similarly, the victim’s declarations to Duke came within less than an hour and were also admissible as part of the res gestae. See id.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Closing arguments were not transcribed.

       Three relatives of Ortiz testified in their affidavits that defense counsel advised them to get the victim out of the country for the trial’s duration.


text:
    A96A0859.
    BLANCHARD et al. v. CRIBBS.
    (474 SE2d 298)
   Judge Harold R. Banke.

In this automobile accident case, Brandie D. Blanchard and her husband, Dale Blanchard, appeal from the trial court’s grant of summary judgment in favor of Paul W. Cribbs. The trial court found Cribbs is not liable under the “family purpose doctrine” for his son’s collision with Ms. Blanchard’s car.

Cribbs is the father of Justin Cribbs and Paul Cribbs, Jr., who both lived in his home at the time of this accident. Cribbs purchased a pickup truck for Justin but told him Paul, Jr. could not drive it. He repeated that prohibition to Paul, Jr. On the day of the accident, Justin disregarded his father’s instructions and allowed Paul, Jr. to take the truck, alone, to Paul’s work site.

When Paul, Jr. later rear-ended the Blanchard vehicle, he left the scene to get his brother. He returned with Justin, who claimed he had been the driver. The sons claimed they lied because Paul was scared. They did not reveal the truth to their father until several months after this lawsuit was filed against Justin and Paul, Sr. and •explained they “came clean” because witnesses had questioned their story. Held:

1. The Blanchards contend the brothers’ conflicting stories create an issue of material fact as to whether Paul, Jr. or Justin was driving the truck at the time of the accident. They did not make this argument below, but rather contended in their brief to the trial court that Paul, Jr. was the driver. The Blanchards may not raise this argument for the first time on appeal but must stand or fall on the position they took in the trial court. Saffar v. Chrysler First Business Credit Corp., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994). Furthermore, in Ms. Blanchard’s deposition she indicates that the person who returned to the scene and claimed to be the driver was not the person who hit her.

2. To make a valid claim under the family purpose doctrine, a plaintiff must first show that, at the time of the automobile accident: 1) the owner had given permission to a family member to drive the vehicle; 2) the owner had released control of the vehicle to the family member; 3) the family member was in the vehicle', and 4) the vehicle was being used for a family purpose. Quattlebaum v. Wallace, 156 Ga. App. 519, 520 (275 SE2d 104) (1980); see Phillips v. Dixon, 236 Ga. 271, 275 (223 SE2d 678) (1976).

In Dixon, the Supreme Court held that a father who provided his child a car could be responsible under the family purpose doctrine, even though the child had disobeyed his father and let a friend drive, because at the time of the accident the child was in the car and “retain[ed] control, authority, and direction over it. . . .” Id. at 277. But the Court cited with approval Pritchett v. Williams, 115 Ga. App. 8 (153 SE2d 639) (1967). Dixon, supra at 276. Pritchett rejected a parent’s liability under the family purpose doctrine where the child asked a friend to take the vehicle, alone, to perform an errand for the child, and the friend had an accident. In so holding the Court noted, “In no case in Georgia has it been held that the parent is liable when the son or family member was not in the automobile and directing its use. . . .” Pritchett, 115 Ga. App. at 9.

Without question, Justin Cribbs was not in the truck at the time Paul, Jr. rear-ended Ms. Blanchard. But the Blanchards argue that Dixon and Pritchett do not apply because a family member — Paul, Jr. — was in the truck, albeit a family member without permission to drive it. Their contention is controlled to the contrary by Rucker v. Frye, 151 Ga. App. 415 (260 SE2d 373) (1979), a case factually similar to this one. A parent had two daughters who lived together. He provided a car for one but forbade her to let anyone else, including her sister, drive it. Nonetheless, the daughter allowed her sister to take the car. The Court held the father could not be held responsible under the family purpose doctrine “ ‘when the minor with permission to use the car was not driving or riding in the car and was not authorized by the owner to permit others to drive it.’ [Cit.]” Id. at 416. Under the undisputed facts as presented below by both parties, the trial court did not err in granting summary judgment to Paul W. Cribbs based on this precedent.

Decided August 7, 1996.

Walter H. New, for appellants.

Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, Daniel C. Hoffman, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A96A0889.
    ALDRIDGE v. THE STATE.
    (475 SE2d 195)
   Judge Harold R. Banke.

A Colquitt County jury convicted Michael Aldridge of selling cocaine (OCGA § 16-13-30 (b)). As this conviction was his second, the trial court sentenced him to life in prison pursuant to OCGA § 16-13-30 (d). He appeals. Held:

1. Aldridge claims the trial court erred by rejecting his challenge to the State’s use of all its peremptory strikes against African-American women. On appeal, he claims the State offered insufficient reasons for striking four of those five venirewomen.

The State explained that the first strike was used against a woman who admitted during voir dire she knew Aldridge and his friends and acquaintances. The second strike was used against a woman who had failed to appear for jury duty on the first day of the trial week and who also stated she knew some of Aldridge’s family. Although voir dire was not transcribed, the trial court recalled on the record that these two women had admitted knowing either the defendant or one of the prospective defense witnesses. These explanations constitute the kind of race-neutral, specific explanations related to the case at hand which will overcome a charge of intentional discrimination. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). A prospective juror’s knowledge of the defendant is a legitimate explanation for a peremptory strike, as is a prosecutor’s concern that a panel member will not give a case his or her full attention. Jackson v. State, 220 Ga. App. 98, 99 (469 SE2d 264) (1996); Byers v. State, 212 Ga. App. 110, 112-113 (2) (441 SE2d 290) (1994).

The State used its final two strikes against two women who, the prosecutor said, had served on a hung jury earlier in the week and who other jurors claimed had refused to deliberate. According to the prosecutor, that jury hung on a vote of 10-2 for conviction. The defendant did not challenge the prosecutor’s contentions. A panel member’s prior service on a jury which did not reach a verdict constituted a proper basis for a peremptory strike of that panel member in Jackson, supra. Under these circumstances, the trial court’s rulings on this issue were not clearly erroneous. See Gamble, 257 Ga. at 327 (5).

2. In Aldridge’s second enumeration of error, he contends the trial court erred by admitting evidence of other incidents in which he sold drugs to undercover officers. The trial court held a hearing pursuant to Uniform Superior Court Rule 31.3 and found this evidence admissible. Because Aldridge provided this Court with no transcript of the hearing, we cannot review his enumeration to the extent it depends on a review of evidence presented at that hearing. Therefore, we presume the trial court found this evidence admissible for a proper purpose. Hightower v. State, 210 Ga. App. 386, 387 (1) (436 SE2d 28) (1993).

Aldridge also contends this evidence was inadmissible because these other transactions were not sufficiently similar to the sale for which he stood trial. The trial transcript shows that in the sale for which Aldridge was indicted, Aldridge was standing on a street corner in Moultrie on February 3, 1995, and flagged down undercover officers driving through the neighborhood. The officers told Aldridge they were looking for $40 worth of crack cocaine. He told them to drive around the block. When they returned, Aldridge delivered the drugs in exchange for cash.

The similar transactions evidence showed that on two occasions in February and April 1987, Aldridge sold similar amounts of crack cocaine to an undercover officer who was driving through a Moultrie neighborhood. Earlier on the day of the sale for which he was indicted, undercover officers found Aldridge standing on a street corner. He approached their vehicle and sold them $30 worth of marijuana. In the final incident on March 30, 1995, the same undercover officers made a street corner purchase from Aldridge of crack cocaine worth $40. This evidence showing independent crimes involving similar dollar amounts of drugs sold in sidewalk sales to passing vehicles is sufficient proof of similarity between the other crimes and the one for which Aldridge was tried by this jury. Hunt v. State, 219 Ga. App. 741, 743 (3) (466 SE2d 894) (1996).

Judgment affirmed.

Andrews and Smith, JJ., concur.

Decided August 7, 1996.

Short & Fowler, Brian A. McDaniel, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Anthony S. Gunn, Assistant District Attorneys, for appellee.

       Aldridge contends the record does not support the trial court’s findings. He did not take steps to ensure the voir dire proceedings were transcribed for the appellate record; therefore, we presume the trial court’s findings were supported by the evidence. See Meier v. State, 190 Ga. App. 625, 626 (1) (379 SE2d 588) (1989).


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A1017.
    KIM v. McCULLOM.
    (474 SE2d 654)
   Blackburn, Judge.

Bok Ja Kim appeals the judgment of the trial court, entered after a bench trial, finding her liable for the unpaid portion of a note she signed to finance the purchase of a business.

On March 25, 1994, Shaun G. McCullom sold Kim a restaurant business located in the Grant Building in downtown Atlanta. Kim paid one-half of the purchase price at the time of closing and signed a note to pay the remaining $15,000 in monthly installments. As a part of the sale, McCullom agreed to assign the restaurant’s existing lease to Kim; however, by its own terms, the lease required the landlord’s prior written consent to any assignment. Kim and McCullom agreed that Kim could rescind the restaurant sale within seven days if the landlord’s written consent was not forthcoming.

Despite receiving no formal assignment of the lease from the landlord, Kim proceeded to operate the restaurant. Her initial payment under the note, due on April 25, 1994, was not made until June 3,1994. She made no further payments. On June 20,1994, McCullom commenced the underlying suit. While she ceased making payments on her note, Kim continued to operate the restaurant and made rental payments to the landlord through October 1994. In November or December of that year, she abandoned the restaurant altogether and left the state. To prevent a default under the lease, on which he was still the named tenant, McCullom reentered the premises and reopened the restaurant. In doing so, McCullom incurred $2,985 in expenses.

After a bench trial, the trial court awarded McCullom $13,750 in principal owed under the note plus interest, as well as the $2,985 in expenses incurred to reopen the restaurant. After entry of the judgment, Kim tendered all amounts due thereunder to McCullom with payment conditioned upon redemption of the collateral that secured the note which included the restaurant’s fixtures, equipment, and inventory. When this conditional tender was rejected by McCullom, Kim filed a motion for modification of judgment or, in the alternative, for entry of satisfaction of judgment seeking to enforce her right of redemption pursuant to OCGA § 11-9-506 or to have the judgment declared satisfied pursuant to OCGA § 11-9-505 (2) because McCullom retained possession of the collateral. The motion was denied, and this appeal ensued.

1. In her first three enumerations of error, Kim contests the trial court’s determination that McCullom had fulfilled his obligation to assist in obtaining the landlord’s consent to the lease assignment and that Kim had no right to rescind under this provision of their sales agreement. Assuming without deciding that the trial court erred in making this determination, we find no harm resulted from the alleged errors. The record clearly reveals that Kim did not attempt to rescind the sales contract until months after she stopped paying the note.' “The right of a party to rescind a contract depends upon that party’s not having breached the contract himself.” (Citations and punctuation omitted.) Williams v. Dienes Apparatus, 200 Ga. App. 205, 207 (407 SE2d 408) (1991). Consequently, in light of her own breach, Kim was foreclosed from rescinding her sales agreement regardless of whether its condition concerning the assignment of the lease was met.

2. In her fourth enumeration, Kim asserts that the trial court erred in awarding McCullom the expenses he incurred to re-open the restaurant as he had not specifically prayed for these damages in his pleadings. According to the record, McCullom’s first mention of these expenses came at trial and evidence of their amount was admitted over Kim’s repeated objection. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.” (Citations and punctuation omitted; emphasis in original.) Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979); see also OCGA § 9-11-15 (b). In this case, Kim did not satisfy the trial court that the admission of this evidence would prejudice her as the trial court permitted the amendment over Kim’s repeated objection of undue surprise. We do not find that the trial court erred in permitting the amendment. “Not only is the right of amendment very broad, but so is the court’s discretion in this regard, and its determination will not be disturbed absent abuse.” Henderson v. Easters, 178 Ga. App. 867, 870 (345 SE2d 42) (1986).

3. In her fifth and sixth enumerations of error, Kim asserts errors concerning the trial court’s failure to consider whether Kim should receive credit on her debt for the collateral that secured the note. Particularly, she asserts that the trial court erred in not requiring McCullom to account for the collateral and in not permitting her to present evidence of the value of the collateral at the time of McCullom’s alleged repossession. The record reveals that at no time during the trial did Kim ask McCullom to account for the collateral, nor does it reveal that Kim ever sought to introduce evidence of the value of the collateral. “On appeal, this court does not review issues which were not raised and ruled on below.” Tyler v. Bennett, 215 Ga. App. 87, 88 (449 SE2d 666) (1994). Accordingly, neither of these enumerations presents issues appropriate for appellate review.

4. In her final enumeration, Kim asserts that the trial court erred in not granting her post-judgment motion regarding the status of the collateral. As noted above, a review of the record reveals that Kim did not make any arguments pertaining to the collateral during the trial. In fact, Kim filed affidavits and exhibits to her post-judgment motion in order to supply the court with pertinent evidence concerning the collateral that had not been submitted during trial. OCGA § 9-11-60 provides the exclusive method by which civil judgments may be attacked. Daniels v. McRae, 180 Ga. App. 732, 734 (350 SE2d 317) (1986). It does not permit the use of post-judgment motions to raise arguments or introduce evidence previously known to the parties but not addressed at trial. See Complete AAA Mfg. Corp. v. C & S Nat. Bank, 119 Ga. App. 450, 452 (2) (167 SE2d 734) (1969) (issues raised in a post-judgment motion, but not “asserted at the trial, can not now be asserted as a basis for reversal”). Accordingly, the trial court did not err in denying Kim’s post-judgment motion.

Judgment affirmed.

Birdsong, R J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

1. Kim sought to redeem the collateral, but the collateral was nearly non-existent. The security agreement signed by restaurant buyer Kim at closing purports to grant to seller McCullom “security title to and a security interest in all fixtures, equipment, inventory, merchandise and goods of the restaurant business . . ., including but not limited to the fixtures and equipment listed on Exhibit ‘A’ attached hereto and made a part hereof, and all additions, accessions and substitutions for such . . ., together with the products and proceeds thereof (all such property being hereinafter collectively called ‘Collateral’) to secure the payment of the principal of, interest on and satisfaction of all obligations arising from the . . . note. . . .” No Exhibit A is attached to the document which was entered into evidence.

In her post-trial motion for modification of the judgment or alternatively for entry of its satisfaction, Kim attached “Exhibit B” which she contended was a partial listing of the equipment pledged as collateral. There is no indication, even in her accompanying affidavit in the record, that this represents the collateral which was the subject matter of the security agreement. The closing agreement, which Kim introduced into evidence at trial, does not assign a value to any of the items listed as the assets which were the subject of the sale: inventory and supplies, equipment and fixtures, lease and leasehold improvement, covenant not to compete, goodwill and trade name.

The restaurant business which was sold operated under the trade name “The Barbecue Place.” Kim abandoned the business and the premises after several months of operation, and when McCullom reopened it, he renamed it “Scott’s Barbecue and Deli.” The original trade name had lost its worth because it had no customers, and the business was worth only its good will. There was no inventory when he regained possession, and he also testified that “aside from a couple pieces of equipment, all of the equipment is owned by the [landlord].” The equipment Kim added became fixtures and thus also became owned by the landlord under the lease and not collateral. The lease itself was never transferred to Kim because she did not sign the assignment, and McCullom remained obligated under the lease.

The condition of the premises was “pretty derelict,” McCullom testified. “There was food just left to rot. Nothing had been cleaned. There were bugs. ... It took a good couple of weeks everyday going down there and cleaning.”

Thus the evidence supports the trial court’s judgment and the denial of the post-judgment motion, in that the assets of the business which Kim bought were dissipated so that McCullom did not regain a valuable business plus payment therefor (in the form of a judgment on the promissory note). There was no double recovery and no collateral to redeem.

2. I agree that it was not an abuse of discretion to allow McCullom to amend his complaint mid-trial, in order to accommodate the additional damages which arose or came to light after the complaint was filed. Defendant Kim should not have been surprised at trial because, in addition to her knowledge that utility bills and rent for which she was obligated were not paid, the note itself provides, “To secure the payment of this note, Holder shall have the rights and remedies provided in a certain security agreement of even date executed by the undersigned in favor of Holder which security agreement is incorporated expressly by reference into this note and made a part thereof.” Under the security agreement, Kim promised not only the payment of the note but also “the satisfaction of all other obligations of the undersigned hereunder to the Secured Party, . . . however created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or hereafter existing, or due or to become due.”

Decided August 7, 1996.

Smith, White, Sharma & Halpern, Furman Smith, Jr., for appellant.

David A. Kleber, for appellee.


text:
    A96A1408.
    NELSON v. THE STATE.
    (474 SE2d 304)
   Judge Harold R. Banke.

A Muscogee County grand jury indicted Bobby Lee Nelson on charges of aggravated assault (OCGA § 16-5-21 (a) (1)), burglary (OCGA § 16-7-1), and attempted rape (OCGA §§ 16-6-1; 16-4-1). A trial jury convicted him of aggravated assault and criminal trespass (OCGA § 16-7-21) as a lesser included offense of burglary, but acquitted him of attempted rape. He appeals from the trial court’s judgment sentencing him to seven years in prison and four on probation. Held:

1. In two enumerations of error, Nelson attacks on the general grounds his conviction for aggravated assault. In testing its sufficiency, the evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

The indictment for this charge accused Nelson of committing aggravated assault by assaulting the victim “with a knife and [by] placing] a pillow over her head with intent to rape.” The victim testified she was asleep in her bed in the dark when a man wearing nothing but tennis shoes climbed on top of her, told her to be quiet, put a pillow on her head, and tried to smother her. She escaped the man’s grasp, grabbed her pistol, and shot him. When she turned on the lights, the defendant lay naked and bleeding on the floor. Police later found on her bed a knife, which the victim said she had last seen in her kitchen sink. Both she and the officers denied placing the knife on the bed, and the defendant gave no alternative explanation for its presence there. She testified the defendant tried to kill her and rape her.

These facts give rise to inferences that Nelson, with intent to rape, used the pillow in an offensive manner intended to injure the victim seriously and that he used the knife in his attack on her. The State had to prove only one of these two acts constituting the crime of aggravated assault to sustain the conviction. Lubiano v. State, 192 Ga. App. 272, 274 (1) (384 SE2d 410) (1989). To the extent Nelson argues that the jury’s acquittal on the charge of attempted rape prevents a conviction on the charge of aggravated assault with intent to rape, his argument has no merit. Under the facts of this case, the two are not inconsistent. Even if they were, the inconsistent verdict rule was abolished by Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

2. In his third enumeration of error, Nelson argues the trial court should have dismissed the entire jury panel during voir dire after a prospective juror injected Nelson’s character into the case. Defense counsel asked if anyone had “ever seen Bobby Nelson, worked with him, or anything like that at all.” This prospective juror, a former state prison guard, responded: “The defendant looks familiar to me. ... If he’s ever served time before in a state prison, I believe I’ve seen him before. I’m not sure.”

The trial court did not abuse its discretion in refusing to strike the panel, as this potentially disparaging remark was not “so inherently prejudicial as to deny defendant a fair trial.” Hughey v. State, 180 Ga. App. 375, 378 (2) (348 SE2d 901) (1986). The prospective juror did not say he had seen Nelson in prison; rather, he merely wondered aloud if he had known him there. See also Sexton v. State, 189 Ga. App. 331, 332 (2) (375 SE2d 661) (1988) (prospective juror said she thought defendant looked like a drunk driver who had caused an accident she once witnessed).

3. In his fourth enumeration, Nelson addresses the trial court’s failure to declare a mistrial after a juror neglected to reveal on voir dire that he was a cousin by marriage to an assistant district attorney not involved in the prosecution. After he realized his mistake, the juror called his relative to ask whether he should inform the court. When the trial court questioned the juror about the mistake, he said he had forgotten about the relationship, denied discussing the case with the prosecutor, and assured the court he could be fair and impartial.

The trial court did not abuse its discretion in refusing to grant a mistrial. “[Not] every incorrect answer given on voir dire calls inexorably for a new trial; the question of bias and resultant prejudice remains to be determined. [Cit.] (Cits.) If the answer was given in good faith with no deliberate intent to mislead, the trial court may well find that no prejudice resulted, even though the lack of disclosure might have impaired defendant’s right to exercise a knowledgeable peremptory challenge. (Cits.)” (Citation and punctuation omitted.) Jones v. State, 247 Ga. 268, 270 (2) (b) (275 SE2d 67) (1981).

4. Nelson’s final ground on appeal claims error in the trial court’s charge on aggravated assault. This claim, based on the allegation that the State did not prove aggravated assault as charged in the indictment, fails for the reasons discussed in Division 1 of our opinion.

Decided August 7, 1996.

Hagler, Hyles & Adams, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Lew S. Barrow, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A96A0860.
    PERRY v. THE STATE.
    (474 SE2d 199)
   Smith, Judge.

Christopher Kenneth Perry appeals from the judgment of conviction and sentence entered on a jury verdict finding him guilty of child molestation.

In his sole enumeration of error, he contends the trial court erred in denying his motion for a directed verdict of acquittal because insufficient evidence was presented of his identity as the perpetrator of the molestation.

The indictment charged Perry with the offense of child molestation by “placing his mouth on the anus of [the victim], a female child under the age of fourteen years, with the intent to satisfy the sexual desires of the accused.” The evidence at trial showed that the seven-year-old victim and her older sister accompanied their father and stepmother on a weekend camping trip. Also along on the trip was Perry, a friend of the victim’s father since high school.

Evidence was presented that on Saturday, both Perry and the girls’ father had been drinking beer all day. In the evening, the girls went to bed in one of the two tents while the adults were sitting around a campfire. Several hours later, the girls’ stepmother and their father went to sleep in the other tent. Perry joined the two girls in their tent.

The adults were unaware of any untoward events at that time. The victim’s mother testified that some time later, however, both the victim and her older sister were upset and told her that Perry had molested the younger girl on the night they slept in the same tent. The mother reported the molestation to the Bartow County Sheriff’s Department. Investigator Teresa Evans of the Bartow County Sheriff’s Department and Glenda Holt, casework supervisor in the protective services unit of the Bartow County Department of Family & Children Services (DFACS), conducted individual interviews with the victim, her sister, and her father and mother. The interview with the victim was tape-recorded, and the tape was played for the jury.

Perry maintains that because no witness identified him in court as the person referred to in testimony as “Chris,” the State failed to prove his identity. We do not agree. In-court identification is not the only way to prove that the defendant is the person who committed the crime charged. Perry’s identity was shown in other ways.

First, concordance of name alone is some evidence of identity. OCGA § 24-4-40 (a). Second, the State introduced evidence that Perry previously pled guilty to child molestation and cruelty to children. In fact, Perry admitted he pled guilty to that charge.

Finally, the victim identified the person who molested her as “Chris” both on the tape and at trial. The mother testified that the victim told her Chris had “put his tongue in her bottom” and it hurt. The victim’s sister testified that the victim told her that Chris had molested her the morning after the incident, while still on the camping trip. No other “Chris” was on the camping trip with the girls. Moreover, Perry testified at trial, and he did not deny that he was the same “Chris”; he admitted in his testimony that he was the “Chris” on the camping trip with the girls on the weekend the victim alleged she was molested and that he slept between the two girls on Saturday night.

“The proper test when the sufficiency of the evidence is challenged by the procedure of a motion for directed verdict of acquittal is the reasonable doubt test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. [Cits.]” Leaver v. State, 211 Ga. App. 876 (1) (440 SE2d 760) (1994). Although some of the evidence identifying Perry was circumstantial, it was nevertheless strong evidence that was consistent with the hypothesis that Perry was the person identified and excluded all other reasonable hypotheses regarding identity. See OCGA § 24-4-6. Viewing it in a light most favorable to the verdict, as we must, this evidence was more than sufficient to prove Perry’s identity beyond a reasonable doubt as the perpetrator of the crime charged.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

Decided June 25, 1996

Reconsideration denied August 8, 1996.

Gore, Lee & Curry, Roger L. Curry, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

       Perry was previously convicted of this same offense. In Perry v. State, 216 Ga. App. 661 (455 SE2d 607) (1995), we reversed his conviction based upon the trial court’s sua sponte restriction of his right to question jurors regarding their membership in any social groups or organizations. Perry was then retried and convicted, and this appeal ensued.


text:
    A96A1221, A96A1222.
    SIMMONS v. THE STATE (two cases).
    (474 SE2d 253)
   Blackburn, Judge.

On November 28, 1995, after a bench trial, Norman Simmons was convicted under two separate indictments of theft by taking. Simmons was sentenced to serve five years for each conviction, to run concurrently. The sentences were probated on the conditions that Simmons spend a term of 60 to 120 days in a detention center, and for each conviction Simmons was required to pay a $1,000 fine, to make restitution, and to perform 50 hours of community service. On December 14, 1995, Simmons filed a motion to modify sentence which was not ruled upon by the trial court prior to Simmons’ notice of appeal filed on December 28, 1995.

1. By five enumerations of error, Simmons contends the trial court erred in rendering the sentence imposed. However, no objection was raised during the sentencing portion of the trial. Therefore, Simmons is not entitled to a review of that phase. See Moody v. State, 206 Ga. App. 387, 391 (425 SE2d 397) (1992); Chapman v. State, 154 Ga. App. 532 (4) (268 SE2d 797) (1980).

Moreover, Simmons’ claims that the sentence imposed is excessive are without merit. At trial, Simmons admitted that he had an agreement to cut timber off the victim’s property but, contrary to the agreement, he paid nothing to the victim. In the second case, Simmons admitted to cutting trees from his neighbor’s property without compensating his neighbor for the timber. Pursuant to OCGA § 16-8-12 (a) (1), the sentence prescribed for theft of property exceeding $500 in value is “imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor.” In the present case, the trial court did not abuse its discretion as Simmons admitted that the timber he took from each victim was worth over $500.

Decided July 23, 1996

Reconsideration dismissed August 8, 1996

Bobby J. Braswell, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

2. On appeal, for the first time, Simmons contends his trial counsel was ineffective. In Glover v. State, 266 Ga. 183 (2) (465 SE2d 659) (1996), our Supreme Court determined that a defendant’s failure to raise a claim of ineffective assistance of counsel in a motion for new trial “is a procedural bar to raising the claim at a later date.” Id. at 184. In the present case, rather than filing a motion for new trial, Simmons’ appellate counsel filed a motion to modify sentence and then filed a notice of appeal. Therefore, Simmons’ claim for ineffective assistance of counsel is procedurally barred and we do not address it on the merits.

Judgment affirmed.

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

       The State’s action for revocation of Simmons’ probation was abandoned after Simmons’ convictions. Simmons appealed both convictions which have been combined on appeal. Simmons asserted identical enumerations of error in each appeal.

       Restitution of $925 in one case and $1,000 in the other case was required.


text:
    A94A2052.
    ACREE OIL COMPANY v. DEPARTMENT OF TRANSPORTATION.
    (474 SE2d 770)
    Decided August 8, 1996.

      Adams, Clifton & Sanders, Alton M. Adams, Stewart, Melvin & Frost, Frank Armstrong III, for appellant.

      Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Hulsey, Oliver & Mahar, Thomas L. Fitzgerald, R.

      David Syfan, for appellee.
   Birdsong, Presiding Judge.

In Dept. of Transp. v. Acree Oil Co., 266 Ga. 336 (467 SE2d 319), the Supreme Court reversed our ruling in Acree Oil Co. v. Dept. of Transp., 216 Ga. App. 586 (455 SE2d 590) as to the admissibility of certain evidence of business losses in this particular condemnation case. The Supreme Court having held that the trial court “did not abuse its discretion by excluding Aeree Oil’s speculative evidence of its business losses,” Dept. of Transp., 266 Ga. at 337 (2), we hereby vacate our ruling on that point and we affirm the judgment below, there being no other discernible enumerations of error requiring reconsideration.

Judgment affirmed.

Blackburn and Ruffin, JJ, concur.


author: Johnson, Judge.

text:
    A96A0902.
    FAULKNER et al. v. HOME DEPOT.
    (474 SE2d 311)
   Johnson, Judge.

In this trip and fall case, Dianne and Richard Faulkner appeal from, the grant of summary judgment to Home Depot. We reverse.

“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.]” (Emphasis in original.) Sunamerica Financial v. 260 Peachtree Street, Inc., 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992).

Viewed in this light, the evidence shows that Dianne Faulkner drove to the Home Depot store and parked in the parking lot. The store was busy. Faulkner walked from her car to the nearest door but discovered it was an exit. She then walked down the sidewalk along the front of the store, toward the entrance. Faulkner soon found the sidewalk blocked by lumber carts and stacks of building materials placed there by Home Depot, so she went out into the fire lane that separated the sidewalk from the parking lot. Faulkner then found the fire lane to be partly obstructed by stacks of landscape timbers, also placed there by Home Depot. Each stack was at least four feet tall, and Faulkner could not see over them. As Faulkner went around the landscape timbers, her attention was diverted to the cars and trucks being driven close by in the busy parking lot, and she did not see a sawhorse leg protruding six to nine inches from beneath one of the stacks of landscape timbers. She tripped on the sawhorse leg and, in the resulting fall, broke her arm and sustained other injuries. Faulkner does not know how or when the sawhorse came to be where it was.

A Home Depot employee, Eddie Jackson, was working in the area in front of the store at the time of Faulkner’s fall. Jackson’s duties on the day of the fall included setting up sawhorses, helping customers load their vehicles, retrieving carts from the parking lot, and keeping the area safe. In his affidavit, Jackson stated that he had inspected the area within 15 minutes before the fall and had not seen the sawhorse protruding from underneath the landscape timbers.

In a premises liability case, a proprietor is not the insurer of the invitee’s safety. Moore v. Kroger Co., 221 Ga. App. 520 (471 SE2d 916) (1996). To survive summary judgment, Faulkner must present evidence from which a jury could infer both that Home Depot had actual or constructive knowledge of the hazard and that she did not know of the hazard or, for some reason attributable to Home Depot, was prevented from discovering it. Id. In other words, she may not recover if she could have avoided injury by exercising ordinary care for her own safety. McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 208-210 (464 SE2d 645) (1995).

1. It is undisputed that Home Depot employees placed the stack of landscape timbers where they were. A jury would therefore be authorized to infer that the employees actually knew or should have known that they were placing the timbers on top of the protruding sawhorse. This inference distinguishes this case from cases involving naturally occurring or accidentally spilled substances, some of which hold that an employee’s inspection of an area shortly before a fall rebuts an inference of the proprietor’s actual or constructive knowledge of the hazard therein. Compare Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995), and Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565, 566 (417 SE2d 202) (1992).

Moreover, “[constructive knowledge may [also] be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard.” (Citations and punctuation omitted.) Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (2) (366 SE2d 785) (1988). A jury could find additional support for such an inference in the conflict between the accounts of Jackson on the one hand, and Faulkner and another Home Depot employee on the other, of whether Jackson kept the sidewalk clear of other obstacles. Jackson testified that at the time Faulkner fell, he had removed all but one or two lumber carts from the sidewalk. Faulkner testified that about a dozen lumber carts were lined up on the sidewalk in rows, and another Home Depot employee estimated that there were ten to fifteen on the sidewalk. Faulkner has therefore presented evidence sufficient to raise a jury issue of whether Home Depot had actual or constructive knowledge of the sawhorse, and we must consider the question of Faulkner’s knowledge.

2. On the facts before us a jury could infer from the height of the stacks of landscape timbers, and their proximity to the busy parking lot, that Faulkner could not have seen the protruding sawhorse leg until immediately before she tripped over it and that her attention at that time was appropriately diverted to cars and trucks passing close by in the parking lot. Both the height of the landscape timber stacks and their placement near the parking lot are attributable to Home Depot. See Moore, supra. Home Depot has failed to show that “there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim. . . .” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The grant of summary judgment was therefore erroneous.

Decided August 8, 1996.

Griffin & O’Toole, Gregory A. Griffin, Martin K. O’Toole, for appellants.

Goldner, Sommers, Scrudder & Bass, Carroll G. Jester, Jr., for appellee.

Judgment reversed.

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


text:
    A96A0978.
    STEELE v. CHAPPELL et al.
    (474 SE2d 309)
   Judge Harold R. Banke.

Robert D. Steele sought to recover for personal injuries allegedly sustained when he fell on a wooden basement step in his demised premises. Steele sued Beverly Chappell and Deborah Cline (“Chappell”), the administratrices of the estate of Shirley J. Stacy, his deceased landlady. Steele appeals the grant of summary judgment in favor of Chappell.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. Steele leased a house from Stacy in June 1990. For more than three years, without incident, Steele went up and down the same wooden basement steps a minimum of once a day to tend the four dogs he kept in the basement. One afternoon, as Steele was carrying a ten-pound bag of dogfood on his left shoulder and had almost reached the bottom of the flight, he fell. Steele claimed that the wooden edge or lip of one step suddenly broke, causing him to fall backwards. Steele admitted that the handrail was in good condition but could not remember whether he used it. According to Steele’s testimony, some of the basement steps had knotholes, one step was loose, and one step was cracked. He further testified that on several occasions he had asked Stacy to inspect and repair the stairs because “the stairs did not feel right.” Held:

1. We reject Steele’s contention that a jury question remains as to whether he had equal or superior knowledge of the alleged defective condition of the wooden stairs. Although a landlord is under a statutory duty to keep the premises in repair, a landlord is not an insurer of his tenant’s safety. OCGA §§ 44-7-13; 44-7-14; Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991). Even where the condition of the premises may be hazardous and the landlord negligent, the landlord may not be liable for injury where the tenant had equal or superior knowledge of the alleged defect. Id. at 32; see, e.g., Smith v. Housing Auth. of the City of Athens, 212 Ga. App. 503, 504 (441 SE2d 847) (1994); Hall v. Thompson, 193 Ga. App. 574 (1) (388 SE2d 381) (1989). Moreover, the responsibility of a landlord for failure to repair a latent defect is not absolute but is predicated only on the landlord’s knowledge of the defect and the consequent necessity for repairs. Harris v. Sloan, 199 Ga. App. 340, 341 (1) (405 SE2d 68) (1991).

Decided August 8, 1996.

Larry E. Gorman, for appellant.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Victor J. Faenza, for appellees.

To avoid summary judgment, Steele had to produce evidence to support his claim that Stacy failed to inspect and correct an unsafe defect of which Stacy had superior knowledge. Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). This he failed to do. Even assuming that Steele suffered an injury due to a fall on a defective step, and even assuming arguendo that Stacy was notified of the condition of the stairs, it is apparent that Steele’s knowledge was at least equal to Stacy’s. Where one has equal knowledge of a dangerous defect or condition, he is required to exercise ordinary care for his own safety and must make use of all his senses to avoid harm. Rowland v. Tsay, 213 Ga. App. 679, 681 (2) (445 SE2d 822) (1994). By electing to walk down the stairs carrying a bag of dogfood, traversing down the steps he believed defective, Steele assumed the risk of injury as a matter of law and is thus barred from recovery. Id. at 682; Wells, 199 Ga. App. at 32. Therefore, the trial court did not err in granting summary judgment in favor of Chappell.

2. Having determined in Division 1 that Steele’s recovery is barred by his knowledge of the alleged dangerous condition, we need not reach the issue of the sufficiency of Steele’s notice to Stacy.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1498.
    MITCHELL v. THE STATE.
    (474 SE2d 306)
   Blackburn, Judge.

Adolphus Ray Mitchell appeals his conviction of possession of cocaine with the intent to distribute in violation of the Georgia Controlled Substances Act.

A bank teller testified that for a period of six months prior to February 9, 1994, Mitchell had come into the First National Bank about three to five times a week to exchange small denomination bills for larger denomination bills, with the total value of the bills per visit ranging between $500 to $2,000. This activity was suspicious because Mitchell did not maintain an account with the bank. On February 9, 1994, when Mitchell, once again came into the bank with a large amount of cash, the bank notified the police, providing a description of Mitchell’s vehicle.

After being advised by another officer that Mitchell’s driver’s license had been suspended, Officer Vic Partee stopped Mitchell’s vehicle as he drove from the bank’s parking lot. Partee testified that during the traffic stop he lost visual contact with Mitchell briefly when he returned to his police vehicle to repeat a radio transmission, and that Mitchell exited, or was in the process of exiting, his car at this time. Subsequently, Mitchell admitted that he was driving with a suspended license and was placed under arrest. Other officers arrived at the scene, and a wrecker was called to tow Mitchell’s car. As Mitchell’s vehicle was being towed, the officers discovered a film canister on the ground under Mitchell’s vehicle. The canister contained approximately $1,500 to $3,000 worth of cocaine. In addition, the officers found $1,421 in cash, numerous paper change holders, and a pager on Mitchell’s person.

At trial, the State introduced evidence of a similar transaction which occurred in 1991. On May 27, 1991, Mitchell had been arrested for DUI and running a red light. During a search incident to the arrest, a bag containing 31 pieces of crack cocaine and powder cocaine was found in Mitchell’s pants pockets, as well as approximately $1,500 in cash, and coins rolled in paper change holders similar to those seized from Mitchell at the time of the subject arrest. Mitchell pled guilty to the 1991 offense.

1. Mitchell contends that the trial court erred in failing to find that he was denied effective assistance of counsel because his trial counsel failed to file a motion to suppress on the basis that the traffic stop was pretextual and failed to request a charge on equal access.

“In order to establish ineffectiveness of trial counsel ... [a] defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. . . . 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.) Green v. State, 218 Ga. App. 648, 650 (463 SE2d 133) (1995).

(a) Mitchell’s trial counsel testified that he did not file a motion to suppress on the basis that the traffic stop was pretextual because, after researching the issue, he found such a motion would be futile. We agree. Officer Partee testified at Mitchell’s probation revocation hearing that he was informed by another officer that Mitchell’s driver’s license had been suspended prior to making the traffic stop. An officer is authorized to stop a vehicle if he knows that the driver has a suspended license. See Allison v. State, 217 Ga. App. 580 (459 SE2d 557) (1995). This is true even if the officer may have had other motivations for the traffic stop. See State v. McCloud, 187 Ga. App. 580, 582 (370 SE2d 831) (1988).

(b) Contrary to Mitchell’s argument, his trial counsel’s failure to request an equal access charge did not amount to ineffective assistance of counsel. In the absence of a charge to the jury as to the presumption of possession or its equivalent, it is not error to fail to charge on equal access where the charge as a whole substantially and adequately covers the principles contained in an equal access instruction. See Jones v. State, 200 Ga. App. 519, 521 (408 SE2d 823) (1991); see also Jackson v. State, 216 Ga. App. 842, 845 (456 SE2d 229) (1995) (the equal access rule is simply a defense to the accused to whom a presumption of possession flows). In the instant case, there was no jury charge on any presumption of possession. Moreover, as in Jones, there were jury charges on “the presumption of innocence, the State’s burden of proof, that there is no burden of proof whatsoever on defendant, that the burden of proof never shifts to defendant to prove his innocence, the duty of the jury to acquit if the State fails to prove defendant’s guilt beyond a reasonable doubt, [and the legal definition of possession].” Jones, supra at 521. In addition, the trial court also charged the jury that grave suspicion or mere presence at the scene of the commission of a crime would not alone authorize a guilty verdict. Under these circumstances, we find that the charge as a whole substantially and adequately covered the principles contained in an equal access charge.

2. Mitchell contends that there was insufficient evidence to support his conviction. Specifically, Mitchell argues that, because none of the officers saw him toss anything under his car, the State failed to link Mitchell to the contraband found under his vehicle. In support of his argument Mitchell cites Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994) and Whipple v. State, 207 Ga. App. 131 (427 SE2d 101) (1993), which hold that, when the State relies solely on circumstantial evidence, spatial proximity to contraband alone is not enough to support a finding of possession. In both Reid and Whipple, the contraband was found in vehicles which were not owned by the defendants and which were occupied by more than one individual immediately prior to the search. In the instant case, the contraband was found under, rather than inside the vehicle at issue, and Mitchell was traveling alone. Thus, Reid and Whipple are distinguishable from the instant case.

Decided August 8, 1996.

L. Stanford Cox III, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. However, the term ‘hypothesis’ refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else. Thus only reasonable inferences and hypotheses except the guilt of the accused need be excluded. Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.” (Citations and punctuation omitted.) Hicks v. State, 195 Ga. App. 887, 888 (395 SE2d 341) (1990).

The trial court properly charged the jury on the standard for convicting based on circumstantial evidence. The only hypothesis offered by Mitchell to explain the existence of the contraband under his vehicle was that he coincidentally parked upon a large amount of abandoned cocaine valued in excess of $1,500. The jury decided this issue contrary to Mitchell’s position, and we have no authority to disturb this finding. The evidence introduced was sufficient to authorize the finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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