text:
    A98A1423.
    GIBSON v. THE STATE.
    (505 SE2d 63)
   Blackburn, Judge.

James Oliver Gibson appeals from his convictions on 31 separate offenses, including multiple counts of kidnapping and false imprisonment, aggravated assault on a peace officer, armed robbery, escape, burglary, theft by taking a motor vehicle, and use of a firearm by a convicted felon.

Several of the charges against Gibson related to a series of offenses occurring on August 27, 1995, when Gibson was stopped for driving under the influence. When the state patrolman approached the window of Gibson’s car, Gibson pulled a pistol and shot the officer in the hand. After the officer and another policeman returned fire, Gibson fled the scene. As an intense manhunt was conducted, Gibson broke into a house and held an elderly couple, Maysie and Adam Lee, and their daughter-in-law, Sheron Lee, hostage, holding’ what appeared to be a gun wrapped in a towel. He asked Maysie Lee to drive him away from the scene. However, after a standoff with police at the house, during which he repeatedly threatened to kill his hostages, Gibson ultimately surrendered.

Other charges against Gibson related to events occurring in December 1996. On Christmas Eve, Gibson escaped from the Brantley County Jail, where he was being held awaiting trial on charges relating to the August 1995 incident as well as arson charges relating to a separate incident. At about 8:45 a.m. on Christmas morning, Gibson broke into Wallace Smith’s house in Nahunta, Georgia, and stole a pistol that Smith’s girl friend kept in the house. When Smith, who had been visiting his sister at her house nearby, returned home, Gibson pulled the pistol on him and forced him to come inside the house. Gibson demanded that Smith drive him to Blackshear in his truck. However, Smith managed to escape and ran to his sister’s house. They called 911 and went back outside, and noticed that Gibson and the truck were gone.

A few hours later, Gibson broke into Larry and Deidre Thomas’ house in Hickox, Georgia, and held them and their three small children hostage. Larry Thomas agreed to drive Gibson to Blackshear, and the two left in Thomas’ truck, with Thomas driving and Gibson crouched in the passenger side. When Thomas came to an intersection, he opened the door and ran from the truck. Gibson drove away in the truck, but crashed it into a railroad crossing and fled into the woods. He was captured a short while later near a railroad ditch with the pistol in his hand.

Gibson was convicted on 31 charges relating to the August 1995 and December 1996 incidents. Because of prior convictions for violent crimes, Gibson was sentenced on a number of the charges to life in prison without the possibility of parole pursuant to the recidivist statute, OCGA § 17-10-7.

1. Gibson contends that the trial court erred in refusing to sever the trials of the charges relating to the August 1995 incident and the charges relating to the December 1996 incident. This contention is without merit.

“When separate offenses have been joined because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind, or where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. Severance in these circumstances lies within the discretion of the trial court.” (Citations and punctuation omitted.) Seidel v. State, 197 Ga. App. 14, 16 (3) (397 SE2d 480) (1990).

It is clear that, had the offenses been severed, evidence regarding the August 1995 incidents would have been admissible as similar transaction evidence in the trial of the December 1996 incidents, and vice versa. Both occurrences involved situations in which Gibson, while attempting to escape from law enforcement authorities, broke into homes and held the occupants hostage. In both situations Gibson sought to have the hostages drive him away from the scene. “[WJhere the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance. . . . Weaver v. State, 206 Ga. App. 560, 561 (426 SE2d 41) (1992).” (Punctuation omitted.) Redding v. State, 219 Ga. App. 182, 184 (3) (464 SE2d 824) (1995). Accordingly, this enumeration is without merit.

2. Gibson contends that the trial court erred in sentencing him to life without parole under the recidivist statute, OCGA § 17-10-7 (b) (2), arguing that such statute constitutes an unconstitutional ex post facto law and imposes cruel and unusual punishment. These issues have been decided adversely to Gibson. Ortiz v. State, 266 Ga. 752, 753-754 (2) (470 SE2d 874) (1996); Lloyd v. State, 226 Ga. App. 401, 403 (4), (5) (487 SE2d 44) (1997).

3. Gibson contends that the trial court erred in refusing to grant a mistrial after his character was improperly placed into evidence. This contention is without merit.

Upon direct examination by the State, GBI Agent Tommy Stalvey testified as follows about an interview he had with Gibson after the August 1995 incident: “Q. Agent Stalvey, at any time did you ask Mr. Gibson why he had shot the trooper? A. Yes, I did. Q. What did he tell you? A. The reason he shot the trooper was because he didn’t want to go back to jail. He didn’t have a driver’s license, no insurance, and quote, ‘no deed on the car,’ end quote.” Gibson’s attorney moved for a mistrial, claiming that the testimony about going back to jail improperly placed Gibson’s character into evidence. The trial court denied the motion for mistrial, but gave curative instructions to the jury advising them to disregard any testimony about Gibson’s statement relative to going back to jail. Gibson’s attorney approved the wording of the curative instructions, but contended that it was insufficient to cure the harm.

As an initial matter, it does not appear that the officer’s testimony regarding Gibson’s statement was improper, as the statement served to explain Gibson’s motive for shooting the officer. See Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990) (evidence of motive admissible even if it incidentally puts defendant’s character into evidence).

However, even if the testimony were improper, the trial court did not err in denying the motion for mistrial and giving curative instructions. “Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.” (Footnote omitted.) Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997). See also Usher v. State, 259 Ga. 835, 836-837 (2) (388 SE2d 686) (1990) (whether curative instruction will suffice in lieu of grant of mistrial lies in discretion of trial court). In light of the overwhelming nature and sheer volume of the evidence against Gibson, it is extremely doubtful that a single reference to Gibson’s desire to avoid going back to jail would have materially influenced the jury’s decision whether to acquit or convict. Accordingly, we cannot say that the trial judge’s decision to deny a mistrial and instead issue curative instructions was an abuse of discretion. See Roberts v. State, 267 Ga. 669, 674 (8) (482 SE2d 245) (1997); Usher, supra; Sims, supra.

4. In his fourth enumeration of error, Gibson asserts that “[t]he trial court erred in failing to grant a directed verdict of acquittal as to certain offenses at the close of the State’s case.” In his brief, he designates these “certain offenses” as the following: Count 8 (kidnapping of Adam Lee); Count 21 (kidnapping of Larry Thomas); Count 27 (kidnapping of Deidre Thomas); Count 31 (armed robbery of Larry and Deidre Thomas); and Count 32 (theft by taking motor vehicle).

“When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” (Punctuation omitted.) Griffin v. State, 228 Ga. App. 200, 201 (491 SE2d 437) (1997). In addition to combining several asserted errors together into one enumeration, Gibson cites no case law in support of this enumeration, and only the briefest of arguments. Nevertheless, in the exercise of our discretion, we shall address each of the asserted errors.

(a) With respect to Count 8, kidnapping of Adam Lee, Gibson contends that there was no evidence of asportation sufficient to support such charge. “ A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.’ OCGA § 16-5-40 (a). For a kidnapping conviction, the State must prove an unlawful asportation of a person against his will. The determinative factor with regard to the element of asportation is whether appellant even momentarily caused the victims, without lawful authority or warrant, through intimidation and coercion, to engage in actions (including moving from one place to another) against their wills.” (Citations and punctuation omitted.) Briard v. State, 188 Ga. App. 490, 491 (1) (373 SE2d 239) (1988). “[O]nly the slightest movement of the victim is required to constitute the necessary element of asportation.” Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983).

The evidence showed that Adam Lee, who was in ill health and could walk only with difficulty, was sitting in the kitchen when Gibson came into the house. Other than to go to the bathroom, Lee remained sitting in the kitchen during the entire incident, up until the point he was allowed to leave the house. The State contends that the asportation element was met when Lee was released by Gibson. It points to evidence that Lee did not want to leave his family in the house with Gibson. When police officers came to the door to get Lee, Lee said he did not want to leave, and one of the officers grabbed Lee’s arm and led him out the door. The State contends that this evidence that Lee was moved against his will constitutes sufficient evidence of asportation to support a kidnapping charge.

The State does not cite, and we have not located, any cases which hold that the asportation element can be satisfied solely by evidence of the victim’s movements in being released by his captor. Implicit in the concept of asportation is that the victim is being “carried away” by the defendant. See OCGA § 16-5-40 (a) (kidnapping occurs when defendant “abducts or steals away” victim); Black’s Law Dictionary, 6th ed., p. 114 (1990) (defining asportation as “the carrying away of the victim”). Although releasing an individual from confinement necessitates movement of that individual, it is not the type of movement which constitutes asportation so as to support a kidnapping conviction. The movement of Adam Lee relied upon by the State was movement away from the control of the defendant, and thus cannot constitute “abducting” or “stealing away” of the victim. As the State points to no other evidence of asportation, the trial court erred in denying Gibson’s motion for directed verdict on this count.

(b) With respect to Count 21, kidnapping of Larry Thomas, Gibson again contends that there was no evidence of asportation. This contention is without merit. Although Gibson contends that Larry Thomas voluntarily drove Gibson away in his truck, Thomas’ actions were clearly coerced by the fact that Gibson had a gun and threatened his family. Moreover, throughout the time Thomas was driving Gibson in the truck, Thomas was clearly not free to leave the truck, and was aware at all times that Gibson had a gun. To say that Thomas’ actions in accompanying Gibson were purely “voluntary,” so as to relieve Gibson from criminal liability therefor, is to deny reality.

(c) Gibson also contends that there was no evidence of asportation with respect to Count 27, kidnapping of Deidre Thomas. Although Gibson was clearly guilty of falsely imprisoning Deidre Thomas (and was convicted of such), the State has failed to show any movements by Thomas that would constitute asportation so as to support a kidnapping conviction. The fact that Thomas, on her own initiative, moved around the house to make tea for Gibson and help him use the telephone does not constitute asportation. See Briard, supra. Accordingly, Gibson’s conviction for kidnapping Deidre Thomas must be reversed.

(d) In Count 31, Gibson was charged with armed robbery in connection with taking from the Thomases $10 in cash and their truck. In Count 37, Gibson was charged with theft by taking a motor vehicle in connection with the truck. Gibson contends that the Thomases voluntarily gave him the cash and the truck. This contention is without merit. With respect to the cash, Deidre Thomas testified that, as her husband was preparing to leave with Gibson, Gibson held out his empty wallet to her. Deidre Thomas testified that Gibson “stood there and waited for me to give [money to] him.” Larry Thomas told Deidre to give Gibson some money, and she then gave him $10 in cash from her billfold. Although Gibson claims that this transaction was purely voluntary, the holding out of the empty wallet by the armed intruder could clearly be interpreted as a demand for money. To claim that Thomas’ compliance with this implied demand was “voluntary” is to rob the term of any meaning.

Decided July 30, 1998

Reconsideration denied August 12, 1998.

John M. Hatfield, for appellant.

Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Gibson’s arguments with respect to the taking of the truck have even less merit. After Larry Thomas escaped from the truck, Gibson proceeded to get into the driver seat and drive the truck away. This constituted theft, and any contention that Thomas consented to such theft is absurd.

5. In his final enumeration, Gibson contends that his various false imprisonment convictions merged into the corresponding kidnapping convictions. The State concedes that, to the extent the kidnapping convictions are affirmed, the false imprisonment convictions would merge therein. Accordingly, we hold that the false imprisonment convictions on Counts 11 (Maysie Lee), 13 (Sheron Lee), 18 (Wallace Smith), 22 (Larry Thomas), and 24 (Robby Thomas), respectively, merged into the kidnapping convictions on Counts 10 (Maysie Lee), 12 (Sheron Lee), 17 (Wallace Smith), 21 (Larry Thomas), and 23 (Robby Thomas).

Judgment affirmed in part and reversed in part.

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

       Somewhat ironically, Gibson was acquitted of the DUI charge for which he was originally stopped.

       We note that Gibson was convicted of false imprisonment with respect to Adam Lee, and does not challenge that conviction on appeal.

       We note that our ruling has no practical effect on Gibson’s sentence, as he was validly sentenced to life without the possibility of parole on each of the five kidnapping counts as well as the armed robbery count.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A98A1536, A98A1537.
    DISMUKE v. ABBOTT; and vice versa.
    (505 SE2d 58)
   Blackburn, Judge.

Following a bench trial, Diane Dismuke Abbott, as executor of the estate of R. T. Dismuke (Estate), appeals the trial court’s finding that Larry Dismuke was not indebted to the Estate for rent on a home he was inhabiting. Larry appeals the trial court’s findings: (1) that Larry was indebted to the Estate for rent on a storage shelter; (2) that Abbott, as administratrix, was not accountable for not renting certain real property held by the Estate; (3) that Larry acted unreasonably in failing to close an agreement with Abbott to buy certain residential real property held by the Estate; and (4) that certain bearer bonds were the property of the Estate. Because they arise from the same origin, Abbott’s appeal and Larry’s appeal have been consolidated herein for review.

Now in its third appearance before this Court, this case concerns the troubled administration of the estate of R. T. Dismuke. R. T. died on August 22, 1988, survived by his wife, Greta, and his four children, Diane Dismuke Abbott, Robert Larry Dismuke, Keith Dismuke, and Debbie Dismuke. Greta died in May 1991, and Larry became the executor of her estate. On March 15, 1993, Abbott, acting as administratrix of the estate of her father, filed for a declaratory judgment to determine whether certain assets belonged to the Estate. In this action, Abbott contended, among other things, that her brother Larry had inappropriately taken assets belonging to the Estate. Larry, in both his individual capacity and as executor of Greta’s estate, counterclaimed, alleging, among other things, that Abbott had mishandled their father’s estate. After a bench trial, the trial court, in a 35-page opinion, carefully considered 14 different points of contention between the parties. Both parties now appeal, contending that the trial court made numerous errors.

As an initial matter, we must note that “[t]he findings of fact in a nonjury trial are analogous to a jury verdict and will not be interfered with if there is any evidence to support them.” Lowry v. Hamilton, 268 Ga. 373, 374 (2) (489 SE2d 827) (1997).

1. Abbott contends that the trial court erred in finding that Dismuke was not indebted to the Estate for rent accruing from September 8, 1995 on Estate property located at 202 E. Franklin Street. We agree.

At the time of her death, Greta had a life estate in this property, and Larry was living with her. After Greta died, this house became property of R. T.’s Estate; however, Larry remained in the house and continues to reside there. Initially, Larry paid no rent to the Estate. Abbott then brought suit against Larry, and, on October 28, 1994, a jury awarded back rent to the Estate in the amount of $12,350. On October 28, 1994, the trial court ordered Larry to vacate the property within 30 days, but he remained therein, and controversy concerning rent owed to the Estate continued. On December 5, 1994, the Estate notified Larry that rent was accruing as of that month on both the house in which he was residing, in the amount of $450 per month, and a storage shelter behind the house, in the amount of $200 per month. On September 8, 1995, the parties appeared in trial court on the Estate’s motion to evict Larry and announced that they had reached an agreement whereby Larry would buy the residential real property held by the Estate, including the house in which he was living. Both parties concur that this agreement is valid and enforceable against them. At that hearing, Larry’s counsel claimed that his client would carry out the sale within two to three weeks. At the present time, the sale remains unconsummated.

Based on these facts, the trial court concluded that, as of December 1994, an implied tenancy at will was created, whereby Larry agreed to rent the house and storage shelter for $650 per month. Larry does not appeal this finding, at least with regard to the house. The judge further found, however, that the purchase agreement entered on September 8, 1995 terminated this landlord-tenant relationship. As such, the trial court determined that Larry did not owe rent to the Estate following this date. We must disagree.

While it is true that “[wjhere a party enters upon land under a contract of purchase, landlord and tenant relationship does not come into existence,” MacKenna v. Jordan, 123 Ga. App. 801 (1) (182 SE2d 550) (1971), Larry was already occupying the property in question as a tenant on the date that the sales agreement was reached. At no point during the hearing at which this agreement was related to the court were there any discussions regarding the termination of Larry’s rental responsibilities. Rather, the discussion centered only on the basic terms of the sale, which Larry’s counsel indicated could be closed in a matter of weeks. Furthermore, there is no evidence that either party attempted to terminate the tenancy at will subsequent to September 8, 1995 pursuant to OCGA § 44-7-7. As such, there is no evidence that the agreement to sell the property terminated the tenancy, and the rental agreement must be considered separate and distinct from the sales contract. Accordingly, the tenancy at will between Larry and the Estate remains until appropriately terminated, and Larry is liable to the Estate for rent accruing after September 8, 1995.

2. Larry contends that the trial court erred in finding that he was indebted to the Estate for rent on a storage shelter located behind the home in which he was residing. We disagree.

The trial court found that Larry actually used the storage structure, even though he claimed that he did not. Evidence was presented at trial that Larry stored certain items in the storage house and that he used the structure as a workshop. Furthermore, as with the house at 202 E. Franklin Street to which the storage facility was appurtenant, Larry became a tenant at will of the storage structure pursuant to his continued use thereof following the Estate’s December 5 letter. Accordingly, there was sufficient evidence to support the trial court’s determination that Larry was indebted to the Estate for rental of the storage facility. In addition, Larry remained liable for such rent following the sales agreement on September 8, 1995. See Division 1, supra.

3. Larry contends that the trial court erred in finding that Abbott, as administratrix, was not accountable for not renting Estate property located at 410 North Madison Avenue, arguing that the Estate lost money because insurance on the house was significantly more expensive due to its uninhabited state. We disagree.

Although a personal representative has a general duty to preserve and protect the value of an estate, there was some evidence produced at trial supporting the trial court’s determination that Abbott had not breached such duty by not renting the house in question. Evidence was produced at trial showing that this house lacks a working kitchen and has no central heating and air. Furthermore, Abbott testified that significant repairs would have to be made to the house to restore it to a habitable condition. In addition, the trial court found that Larry contributed to the Estate’s failure to rent the property. The record supports this finding, as, among other things, Larry admitted to using the driveway of this property for parking his cars. Although Larry contended that the house could be rented, he had no proof of the conditions inside the structure. As there was some evidence supporting the trial court’s decision, we affirm its finding that Abbott was not accountable for failure to rent this property.

4. Larry contends that the trial court erred in finding that he acted unreasonably in failing to close his agreement with Abbott to purchase the residential real property of the Estate. We disagree.

The parties entered into an agreement for the sale of the property at a hearing on September 8,1995. At the hearing, Larry’s attorney announced to the court that he envisioned closing the transaction within a matter of weeks. Subsequently, Larry refused to close the transaction, raising numerous problems with the form of the deeds drafted by the Estate’s attorney. The trial court found that, although some of these criticisms may have been valid, they were more likely a method by which Larry “stonewalled” the transaction. Letters between the parties’ attorneys support this conclusion. In response to Larry’s criticisms, the Estate even offered to allow Larry to draft the deeds as early as November 1995. In February 1996, after Larry complained further, the Estate again offered to let him draft the deeds. In addition, Abbott produced signed and notarized deeds at trial. Therefore, as there was some evidence supporting the trial court’s finding that Larry acted unreasonably in failing to close the purchase of the Estate property, we must affirm it.

5. Larry contends that the trial court erred in finding that certain bearer bonds were the property of the Estate. Again, we must disagree.

R. T. bought certain bearer bonds worth approximately $140,000 through one of his brokerage accounts listed as being held in joint tenancy with right of survivorship with Greta. It was undisputed that R. T. bought these bonds with his own funds. Rather than leave these bonds in the brokerage account, R. T. placed them in a safety deposit box. No owner was listed on the face of the bonds.

The access card to the safety deposit box in which the bearer bonds were placed was originally listed under the names of R. T. and Greta. In 1984, shortly before R. T. entered cancer therapy, Larry’s name was added to the list of those allowed to have access to the box. At the time of R. T.’s death in 1988, the bearer bonds remained in the safety deposit box. On April 3, 1989, Larry removed the bearer bonds from the safety deposit box and had them registered in Greta’s name. All of these bonds were called before Greta’s death, and the proceeds therefrom were received either by Larry or Greta.

Abbott contends that these bearer bonds were the property of the Estate at the time of R. T.’s death. Larry contends that the bonds belonged to Greta at the time of R. T.’s death. As support for his claim, Larry points to the fact that the bonds were purchased through a joint brokerage account and left in a safety deposit box accessible by Greta.

Larry initially contends that the bearer bonds were held as joint tenancy property between R. T. and Greta, pointing to the fact that they were purchased through a brokerage account labeled as a joint tenancy account. However, as noted, R. T. purchased these bonds with his own money, removed them from the joint tenancy account, and left no indication that he wished the bonds to be jointly held. In the absence of any evidence to support a joint tenancy, the trial court did not err in finding that none existed with regard to such bearer bonds.

Furthermore, the court did not err in finding that the bearer bonds were not the subject of a valid inter vivos gift from R. T. to Greta or Larry simply by placing them into the safety deposit box. To constitute a valid inter vivos gift, the donor must have the necessary donative intent, the donee must accept the gift, and the gift must be delivered or some act which under law is accepted as a substitute for delivery must be done. OCGA § 44-5-80. “A delivery of property subject to be reclaimed by the donor at any time prior to his death, or where full control or power over the property or fund vests in the donee only after the death of the donor, does not constitute a valid gift inter vivos. To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos.” (Citation and punctuation omitted.) Daniell v. Clein, 206 Ga. App. 377, 383 (2) (425 SE2d 344) (1992).

Decided July 29, 1998

Reconsideration denied August 12, 1998

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Solomon & Edgar, William J. Edgar, for appellee.

“Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.” OCGA § 44-5-82. Whether the donor completely relinquished control of a purported gift is a question of fact. Williams v. McElroy, 35 Ga. App. 420, 421 (133 SE 297) (1926).

“Given the facts of this case, the [trial court] was authorized to conclude that [R. T] did not make an inter vivos gift to [Greta or Larry] of the contents of the safety-deposit box. Why? Because [R. T] retained control of the box. . . . [R. T] could have removed any of the contents in the box at any time. It cannot be said, therefore, that [R. T] completely relinquished control of the items he placed in the box.” Daniell, supra. Accordingly, the trial court correctly determined that the bearer bonds were the property of the Estate at the time of R. T.’s death.

Judgment affirmed in part and reversed in part.

Eldridge, J., concurs. McMurray, P. J., concurs in the judgment only.

       In Dismuke v. Dismuke, 195 Ga. App. 613 (394 SE2d 371) (1990), we approved the appointment of Diane Dismuke Abbott as administrator with the will annexed of R. T. Dismuke’s estate. In Dismuke v. Abbott, 217 Ga. App. 524 (457 SE2d 837) (1995), we determined the ownership of certain revocable trust accounts not in issue in this case.


text:
    A98A1442.
    SPITZBERG v. THE STATE.
    (506 SE2d 143)
   Blackburn, Judge.

Edward Spitzberg appeals his conviction of a violation of OCGA § 40-6-270 due to his failure to stop at the scene of an accident.

OCGA § 40-6-270 (a) (1) requires that the “driver of any vehicle involved in an accident resulting in injury . . . shall immediately stop . . . and shall. . . [g]ive his name and address and the registration number of the vehicle he is driving.” Such Code section also requires that the driver exhibit his driver’s license, upon request, and that he render reasonable assistance to the injured party. OCGA § 40-6-270 (a) (2), (3). Therefore, the issue for the jury to decide was whether the victim was injured in such a way that required the defendant to stop and provide the information required in OCGA § 40-6-270.

1. Spitzberg contends that the trial court erred in disallowing any testimony regarding whether the victim was the plaintiff in a pending civil action against defendant arising out of the same circumstances as the criminal prosecution. “In criminal cases, it is reversible error where there is conflicting evidence to refuse to permit the State’s witness on cross-examination to testify that he has a damage suit pending based on the same facts involved in the criminal case.” Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401) (1990). The issue before this Court is whether there was conflicting evidence presented to the jury.

The victim, who was the State’s witness, testified that as he was crossing the street in the cross walk, the defendant’s car hit his left side and knocked him to the ground. After he got up, the defendant asked him through the front windshield if he was all right. The victim testified that he did not respond but looked at his watch and walked around to the back of the defendant’s car to obtain the tag number. The victim further testified that the defendant looked in his rear view mirror and asked if the victim had gotten the tag number. After the victim said yes, the defendant sped away. The victim testified that he immediately suffered stinging and pain on his right hand and shoulder where he had landed on the ground and that as he walked he felt increasing pain in his left hip, thigh and lower leg. The defendant testified that he struck the victim who appeared to be uninjured, so the defendant “went about [his] business.” The defendant further testified that he asked if the victim was hurt and the victim responded that he was okay.

The victim’s testimony and the defendant’s testimony did conflict as to whether the victim acknowledged that he was unhurt. Therefore, because the extent of the victim’s injury was the paramount issue before the jury, such a conflict, although slight, is sufficient to allow cross-examination regarding any pending civil action arising out of the same facts. “As a general rule, a party may show any fact or circumstance that may affect the credit of an opposing witness; and, the evidence in this case being conflicting, and the testimony of the State’s witness most material, the refusal to allow him to testify on cross examination that he had pending a damage suit based upon the same state of facts as that involved in this criminal prosecution was error requiring a new trial.” (Punctuation omitted.) Quinn v. State, 132 Ga. App. 395, 396 (2) (208 SE2d 263) (1974).

Decided August 12, 1998.

Manchel, Johnson & Wiggins, Howard J. Manchel, for appellant.

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.

2. Spitzberg contends that the trial court erred in failing to recharge the jury upon its request for a copy of the law pertaining to leaving the accident scene and the ability of a driver to leave an accident scene if there are no injuries. However, “[t]he accepted practice in Georgia. . . is not to allow jurors to take written instructions with them into the jury room.” Grimes v. State, 199 Ga. App. 152, 154 (404 SE2d 324) (1991). Although the trial court did not err in not allowing a copy of the requested charge to be given to the jury, the better practice would be to reissue such charges verbally which the court herein refused. See Gidden v. State, 205 Ga. App. 245, 248 (2) (422 SE2d 30) (1992) (“ ‘It was not only the court’s prerogative but its duty to inform the jury on any question of law about which they were confused, when such confusion was apparent to the court, although there was no specific request from the jury for such a charge.’ ”).

Judgment reversed.

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


text:
    A98A1654.
    MILES v. KEMP.
    (506 SE2d 141)
   Blackburn, Judge.

The Georgia Department of Public Safety (DPS) appeals the trial court’s ruling that the habitual violator revocation of Rene D. Kemp, Jr.’s driver’s license should be measured from the date it had been previously suspended under Georgia’s Implied Consent Law, as both resulted from the same March 3, 1995 arrest. We reverse the trial court’s ruling.

On March 3, 1995, Kemp was charged with driving under the influence (DUI). Kemp’s driver’s license was seized, and he received a DPS Official Notice of Intent to Suspend License (Form 1205). Kemp’s license was automatically suspended on April 3, 1995, when he failed to request a hearing in response to the Form 1205. See OCGA § 40-5-67.1 (g) (1). On October 24, 1996, Kemp was convicted on the charge of DUI. Kemp was served with a Habitual Violator Revocation Notice (DPS Form 1189), because this was his third DUI offense within five years, and his license was revoked for a period of five years. He had a prior conviction for DUI in 1991, and he had forfeited bond on another DUI charge in 1993.

On October 28, 1996, Kemp requested a credit against the revocation period for the period April 3, 1995 through October 28, 1996, when his license had been suspended, but not revoked. Kemp appealed DPS’s denial of his request to the Superior Court of Fulton County, which granted Kemp relief and modified the administrative hearing Final Order accordingly. DPS’s appeal to this Court by Commissioner Miles followed the trial court’s ruling.

OCGA § 40-5-67.2 (b) provides, in part: “An administrative license suspension pursuant to Code Section 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating Code Section 40-6-391 [DUI statute] which arises out of the same violation for which the administrative license suspension was imposed. An administrative license suspension pursuant to Code Section 40-5-67.1 shall run concurrently with any revocation of such driver’s license pursuant to a subsequent determination that such person is a habitual violator.” (Emphasis supplied.)

“Where a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Punctuation omitted.) Garrard v. Hicks, 266 Ga. 181, 182 (465 SE2d 665) (1996). The plain language of the statute makes it clear that the legislature intended to give credit for implied consent suspensions only against subsequent suspensions under the DUI statute, where both were imposed as a result of the same arrest.

It is equally clear that the legislature chose to have implied consent suspensions simply rim concurrently with any habitual violator revocation of such driver’s license, without credit. Otherwise, there would be no reason to have a different provision for each circumstance.

Given the legislature’s specific description of when credit for implied consent suspensions will be given, the term concurrent in this context can only relate to time. Under the statute, no implied consent suspension can be credited against a subsequent habitual violator revocation. Therefore, under these facts, the term concurrent simply means that the suspension and the revocation time periods each began on the date of its imposition, and that each will end on its prescribed date, unaffected by the existence or termination of the other.

The legislature permits credit for implied consent suspensions where there is a subsequent DUI suspension, but only where both suspensions arise from the same arrest. Contrary to the trial court’s ruling, the habitual violator revocation did not result from the same violation as did the implied consent suspension, but rather resulted from the accumulation of three separate DUI convictions within a period of five years. See Wilson v. Miles, 218 Ga. App. 806 (463 SE2d 381) (1995). This is the reason that the legislature did not include comparable “same violation” language in the subsequent habitual violator revocation sentence that it included in the subsequent DUI suspension sentence preceding it. Revocation is the action the legislature takes against a driver based on his cumulative driving record for the protection of the public. The administrative license suspension procedure does not violate the double jeopardy provisions of the United States and Georgia Constitutions, because it is a remedial statute and it is not a punishment or prosecution. See Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995).

The fallacy of Kemp’s argument is obvious. If Kemp were entitled to credit against his habitual violator revocation for his last conviction, then he would logically be entitled to credit for any suspensions that may have been imposed in the prior two relevant DUIs, as they equally contributed to his status and revocation. The legislature could reasonably conclude that those drivers who are convicted of DUI three or more times in a five-year period are more dangerous than those who do not do so. The legislature would then be authorized to revoke the driving privileges of such drivers for a definite period of time, without credit for any prior, independent license suspension. See Gaines v. State, 260 Ga. 267 (392 SE2d 524) (1990). As such prior convictions did not arise out of the same violation as the implied consent suspension, no credit would be due in any event.

The trial court erroneously concluded that both the implied consent suspension and the habitual violator revocation resulted from the same offense, and therefore, in order to preserve the remedial purpose of the administrative license suspension and the constitutionality of such procedure, the term “suspension” in the first sentence of OCGA § 40-5-67.2 (b) must be interpreted under the facts of this case to allow Kemp credit against his habitual violator revocation. The legislature has specifically defined the terms “suspension” and “revocation” in OCGA § 40-5-1 “where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970).

For the above reasons, the trial court erred in overruling the Hearing Officer and in modifying the Final Decision of the Administrative Hearing.

Judgment reversed.

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

Decided August 12, 1998.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Carol A. Callaway, Senior Assistant Attorney General, Christopher S. Brasher, Assistant Attorney General, for appellant.

Rene D. Kemp, Jr., pro se.


author: Judge Harold R. Banke.

text:
    A96A1919.
    STEELE et al. v. ROSEHAVEN CHAPEL, INC.
    (505 SE2d 245)
   Judge Harold R. Banke.

Jeannine C. Steele and Robert H. Steele sued Rosehaven Chapel, Inc. (“Rosehaven”) for personal injuries and loss of consortium respectively due to Jeannine Steele’s fall on the front entrance step of Rosehaven’s funeral home. The Steeles appeal the trial court’s grant of summary judgment in favor of Rosehaven.

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. Jeannine Steele entered Rosehaven’s funeral home through the front entrance walking up the steps which had a handrail. After spending less than one hour inside, Steele exited through the same door but proceeded to her left instead of going straight down the main stairs which she had previously traversed. Steele failed to see the single step down, allegedly incurring injuries as a result. At the time of her fall, the front steps leading straight up to the doorway had yellow identifying striping. However, the sole step leading out to the left side had no such striping and was not equipped with a handrail.

Steele relied on the testimony of Deborah Hyde, Ph.D., who used the 1988 Standard Building Code and the Life Safety Code which had been adopted by Douglas County to decide whether this step complied with building codes and minimum safety standards. Hyde opined that the placement of the single step with the lack of defined nosing (leading edge of a step), absence of a handrail, and the lack of a defining contrast in the composition of the brick pattern, created an inherently dangerous condition.

Although Rosehaven had not posted a warning sign cautioning about the step, it is undisputed that no one had previously fallen there. Steele admitted that she was not looking down because she incorrectly assumed that the ground was level and also admitted that she was not looking where she was walking because her attention was focused on her vehicle parked nearby. According to Steele, nothing obstructed her vision or prevented her from looking down had she chosen to do so. After determining that Steele failed to exercise ordinary care for her own safety and that she failed to offer any evidence that Rosehaven had superior knowledge of the alleged hazard, the trial court granted summary judgment. Held:

We have carefully reconsidered this case in light of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Although Steele contends that the existence of material issues of disputed fact preclude summary judgment, we disagree. Pretermitting any consideration of whether Steele failed to exercise reasonable care for her own safety, we find that Rosehaven was entitled to summary judgment because Steele failed to show it had superior knowledge of the alleged hazard.

In order to recover for her injuries allegedly sustained due to an allegedly hazardous condition, Steele had to show fault on the part of Rosehaven and her own ignorance of the danger. Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 123 (1) (444 SE2d 341) (1994). This she failed to do. Proof of nothing more than the occurrence of a fall is not sufficient to establish negligence or to give rise to liability. Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550) (1994). It is axiomatic that “[i]n everyday life, persons are required to negotiate the floors, steps and doorways of buildings.” Steinberger, 213 Ga. App. at 124 (1).

The brick step at issue was not crumbling or in disrepair or icy or wet. Nor was it poorly lit or obscured by an object from view. This single brick step just outside Rosehaven’s main double glass doors was a permanent static condition, not a transient foreign substance. Although Steele contends that Rosehaven’s failure to provide a handrail or striping on the step violated local codes, and established negligence per se, the braiding code at issue merely suggested but did not require striping or a handrail. Steinberger, 213 Ga. App. at 125 (2).

It has long been the position of this Court that “ ‘[t]he mere existence or maintenance of a difference in floor levels or of steps in a business building does not constitute negligence.’ [Cits.]” Wilson, 211 Ga. App. 814. Here, it is undisputed that no one else had ever previously fallen on that step despite the continuous use of that entrance for several years.

Decided July 31, 1998

Reconsideration denied August 13, 1998

Robert S. Windholz, for appellants.

Fain, Major & Wiley, Thomas E. Brennan, John K. Miles, Jr., for appellee.

Even after Robinson, supra, in a premises liability action, a defendant can prevail on summary judgment by pointing to the absence of evidence as to an essential element of a plaintiff’s prima facie case. Robinson, 268 Ga. at 748-749 (2) (b); see Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Here, Steele failed to show that Rosehaven had superior knowledge of the alleged hazard, even assuming solely for the sake of argument only that the step was somehow defective. Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 352 (496 SE2d 471) (1998). For this reason, Rosehaven was entitled to summary judgment as a matter of law. Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994) (failure to satisfy either prong of the Alterman test warrants summary judgment) (case questioned on other grounds in Robinson, 268 Ga. at 738); see Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (2) (435 SE2d 764) (1993).

Judgment affirmed.

Beasley and Blackburn, JJ, concur.

       The Supreme Court vacated Steele v. Rosehaven Chapel, 223 Ga. App. 523 (478 SE2d 596) (1996) in light of its Robinson decision.

       Steele offered no evidence that either striping or a handrail was mandated by law in this situation. The safety code section at issue provides, “A contrasting stripe on each stepping surface may be provided at the nosing or leading edge. . ..” Life Safety Code A-5.1.6.2. (Emphasis supplied.)


text:
    A98A0866.
    DESAI v. OK OIL, INC.
    (505 SE2d 271)
   Blackburn, Judge.

Mayank D. Desai filed a complaint for declaratory judgment seeking a determination as to whether an agreement to purchase petroleum products made between OK Oil, Inc. and John Bagby, a previous owner of Desai’s unimproved property, was a covenant running with the land which bound subsequent purchasers with knowledge thereof. The superior court concluded that the agreement created a binding encumbrance, of which Desai had notice and was thereby bound by it. Desai appeals from the trial court’s holding.

The record reveals these pertinent facts: On May 10, 1985, Gerald Lawhorn, the owner of OK Oil, Inc. (OK), sold a parcel of property to John Bagby. There is no evidence that the deed contained any restrictions on the use of the land. On the same day that Lawhorn sold his property to Bagby, Bagby entered into an agreement with OK. The agreement provided: “FOR AND IN CONSIDERATION OF the commitment of OK to provide gasoline and diesel fuel to Owner [who is defined as John Bagby] pursuant to the terms of this contract, at the site . . . hereinafter referred to as the location, and of Owner’s commitment to actively and aggressively conduct the retail sale of gasoline and diesel fuel provided to it by OK at the location, and of the mutual promises, agreements and covenants contained herein, the parties contract as follows: (1) Within six months of the receipt of written notice from John Bagby, OK shall, at its sole expense furnish at the location [the equipment necessary to operate a gas station], . . . Title to the equipment shall remain in OK and the equipment shall not become a part of the real property where it is located. ... (9) It is specifically understood between parties hereto that the execution of this contract and the total or partial performance of the obligations undertaken pursuant hereto by both parties, grants unto OK for thirty years, the exclusive right to provide gasoline and diesel fuel for retail sales from the location and no gasoline or diesel fuel obtained from any other source shall be sold or distributed from the location during said time without the express written consent of OK.”

Bagby agreed to give OK unlimited access “to its equipment at the location to deliver product, read pumps or tanks, etc.” The agreement, however, did not require Bagby to build a gas station. In fact, OK was only to perform its part of the agreement upon receipt of written notice from Bagby. Lawhorn testified: “The restrictions don’t require the owner of that land to sell gas. I mean, they can put a McDonald’s there, if they want to.” Further, the agreement was made terminable with the mutual assent of the parties. The agreement also contained a clause stating that it “shall not be assignable by either party without the express written consent of the other.” Although the agreement was not recorded in the real estate records, an indenture referencing the agreement was recorded. This indenture provided that: “[John Bagby], in consideration of the terms, covenants, conditions and agreements on the part of [OK] that are mentioned, demises and encumbers to [OK], and [OK] acquires rights therein from [John Bagby] to [the property at issue] [t]o have and to hold the demised premises for the term commencing on the 10th day of May, 1985, and ending on the 10th day of May, 2015, or upon the completion of the term prescribed, upon the terms, covenants and conditions contained in a certain collateral agreement between the parties bearing the same date as this instrument and executed contemporaneously therewith.” (Emphasis supplied.)

On June 5, 1985, Bagby gave Lawhorn a first right of refusal to purchase the property. On February 20, 1986, Bagby sold the property to OK and Lawhorn quitclaimed his first right of refusal to Bagby. In 1989, OK sold the property to Dan Dupree. Dupree also signed an agreement to purchase gasoline from OK. The terms and conditions of that agreement were the same as those between OK and Bagby. This agreement was not filed, nor was any indenture. However, the deed stated that the conveyance to Dupree was made subject to “the covenants and restrictions recorded in Deed Book 282, page 814, of the Spalding County Superior Court Records.” This statement was intended to refer to the filed indenture between Bagby and OK, although that document was actually filed in a different deed book. There is no evidence that Dupree undertook to build a gas station on the property or otherwise improve it while he owned it. In 1993, Dupree conveyed the property by a deed in lieu of foreclosure to Bank South. Thereafter, Bank South sold the property to Andrew Blake and Searcy-Smith Realty.

In 1995, Blake and the realty company entered into a contract to sell the property to Desai. Desai’s attorney discovered the indenture and, upon contacting OK, learned of the agreement between Bagby and OK. Blake and the realty company, upon learning that OK had “invested heavily in a site across the street” from the property and “would fight anyone who intend[ed] to sell oil there,” made a claim with their title insurer. Based on this cloud on the title, the insurer offered a sum in settlement of the claim. Blake and the realty company accepted the settlement and reduced the property’s sale price to Desai by the same amount received from the insurer. Desai then took the property with knowledge of the possible encumbrance and shortly thereafter filed the instant declaratory judgment action. The superior court concluded, based upon our decision in Sewell v. OK Oil, 203 Ga. App. 701 (417 SE2d 408) (1992), that Desai’s property was “encumbered” by the agreement, that he had notice of the encumbrance, and that, therefore, the agreement was binding upon Desai and all subsequent purchasers of the property.

Desai argues that when OK obtained title to the property in 1986, the covenant merged into the larger estate. OCGA § 44-6-2 provides that “[i]f two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater.” “However the controlling consideration is the intention, express or implied, of the person in whom the estates unite, provided the intention is just and fair, and a merger will not be permitted contrary to such intent. Further, the doctrine of merger, designed primarily for the one who acquires an interest in the property greater than he possessed in the first instance, will not be held to apply against his will to his disadvantage.” (Citation and punctuation omitted.) Gosnell v. Waldrip, 158 Ga. App. 685, 686 (2) (282 SE2d 168) (1981). Therefore, because OK did not intend that the estates merge, such intention controls.

The evidence demonstrates that Desai had actual notice of the agreement prior to purchasing the property. Therefore, the dispositive issue in this case is whether the contract and indenture between Bagby and OK bound subsequent purchasers of the property with notice. The issue in Sewell, supra at 702, was framed almost identically: “The issue before us is whether the covenant between OK Oil and Waggoner was purely personal or whether it created an encumbrance which was enforceable against a subsequent purchaser of the property.” It further appears that the agreements being interpreted in Sewell and those in the present case are substantially similar, if not identical. Therefore, we must agree with the trial court that our opinion in Sewell controls the outcome of the present case. The fact that gas tanks had already been installed in Sewell and not in the present case is not dispositive of whether the agreement can be enforced against subsequent purchasers with notice. As we found in Sewell, “the prior property owner did not retain ‘the full enjoyment of the property’ but rather conveyed to the oil company both the right to install and maintain such tanks, pumps and other equipment on the property as were necessary to the operation of a self-service retail gasoline outlet at that location and the right of ‘unlimited access to its equipment at the location to deliver product, read pumps or tanks, etc.’ ” Id. at 703-704.

There is no question that Desai purchased the property with knowledge of the encumbrance. Therefore, the fact that Dupree’s deed referred to the wrong deed book when referencing the covenant with Bagby is not dispositive as to whether the covenant is enforceable against Desai. See Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323-324 (467 SE2d 330) (1996) (“[wjhether the assessment obligation is a covenant running with the land or an equitable servitude, it is clear that [the] restrictive covenant ... is an enforceable covenant against a purchaser with notice”). According to our Supreme Court of Georgia: “Covenants relating to land, or its mode of use or enjoyment, are enforceable against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights.” (Punctuation omitted.) Id. at 323.

Based on the foregoing, the trial court did not err in enforcing the covenant at issue against Desai.

Judgment affirmed.

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

Decided August 13, 1998.

Don H. Taliaferro, for appellant.

Shepherd & Johnston, William G. Johnston III, for appellee.


author: Ruffin, Judge.

text:
    A98A1247.
    BALL v. THE STATE.
    (506 SE2d 149)
   Ruffin, Judge.

A jury found Timothy Ball guilty of operating a motor vehicle after having been declared an habitual violator (Count 1) and failing to obey a traffic control device (Count 2). The trial court sentenced Ball to five years incarceration on Count 1 and twelve months on Count 2, to be served concurrently. In the sentencing hearing, the trial court treated Ball as a recidivist under OCGA § 17-10-7 and declared that he would not be eligible for parole. Ball did not directly appeal, but was granted an out-of-time appeal in a habeas corpus proceeding. In this appeal, Ball asserts (1) he received ineffective assistance of counsel and (2) the trial court improperly determined that he was a repeat offender not entitled to parole. For reasons which follow, we affirm Ball’s conviction, but vacate his sentence and remand this case to the trial court for resentencing.

1. Ball contends that he received ineffective assistance of counsel. The record shows that Ball’s trial counsel did not file a motion for new trial. Likewise, his current attorney did not file a motion for new trial after obtaining the order granting Ball an out-of-time appeal. Thus, the ineffective assistance of counsel issue has never been considered or ruled upon by the trial court. In Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991), the Supreme Court of Georgia held: “[T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]” Id. at 841-842. We find that Ball waived his ineffective assistance of counsel argument “by failing to raise it at the earliest practicable opportunity.” Herndon v. State, 232 Ga. App. 129, 133 (3) (499 SE2d 918) (1998).

2. In his remaining enumeration of error, Ball contends that the trial court improperly sentenced him as a recidivist not entitled to parole. During Ball’s sentence hearing, the State produced evidence that Ball had two previous habitual violator felony convictions. When sentencing Ball, the trial judge stated: “this sentence is entered under the Act for Sentencing Habitual Offenders. You are now a three time convicted felon and you will be required by law to serve the maximum permitted without the benefit of parole. This is under 17-10-7 for sentencing of habitual criminals.” The final disposition signed by the trial court provides: “this sentence is imposed under the recidivist provision of OCGA § 17-10-7 (b).”

Decided August 13, 1998.

Richard W. Watkins, Jr., for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

The trial court erred in sentencing Ball as a recidivist under OCGA § 17-10-7 (b). This subsection only authorizes recidivist sentencing for a repeat “serious violent felony” offender. The record in this case shows that Ball’s habitual violator convictions do not fall within the definition of “serious violent felony.” OCGA §§ 17-10-7 (b); 17-10-6.1 (a). Likewise, the trial court could not sentence Ball under OCGA § 17-10-7 (c), which also disallows parole, because this subsection applies only after a fourth felony conviction. OCGA § 17-10-7 (c).

The trial court could only have sentenced Ball as a recidivist under OCGA § 17-10-7 (a) which requires the trial court to impose the longest sentence prescribed for a second felony offense. However, unlike subsections (b) and (c), “the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense” when imposing a sentence under OCGA § 17-10-7 (a). Because the trial court was not authorized to sentence Ball under OCGA § 17-10-7 (b) and apparently believed it did not have any discretion when sentencing Ball, we vacate Ball’s sentence and remand this case to the trial court to resentence Ball under OCGA § 17-10-7 (a). Walton v. State, 217 Ga. App. 11, 13 (5) (456 SE2d 289) (1995).

Conviction affirmed, sentence vacated and case remanded with direction.

Pope, P. J., and Beasley, J., concur.


text:
    A98A1289.
    HOWARD v. THE STATE.
    (505 SE2d 270)
   Ruffin, Judge.

A jury found Michael Howard guilty of theft by receiving stolen property, theft by taking, driving under the influence and driving without a license. On appeal, Howard’s sole enumeration of error is that the trial court erred in denying his motion to suppress. For reasons which follow, we affirm.

“ ‘This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous.’ [Cit.]” Dooley v. State, 221 Ga. App. 245 (1) (470 SE2d 803) (1996).

During the motion to suppress hearing, a Clayton County police officer testified that he was parked on the side of the road monitoring an intersection on a rainy evening. Around 11:20 p.m., the officer observed Howard slam on the brakes of his car when the traffic light changed “from green to caution to red.” Howard’s car passed the stop line and skidded sideways, 20 feet into the intersection. Howard then backed up his car so that it was behind the stop line for his lane of travel at the intersection. When the light turned green and Howard pulled out of the intersection, the police officer stopped him. No other material evidence was presented during the hearing. The charges for which Howard was convicted arose out of this traffic stop.

After hearing this evidence, the trial court ruled that “the Officer had good articulable suspicion that [Howard] was recklessly driving an automobile where he failed to stop at the stop sign and skidded sideways partway through a red light and the stop was based upon good grounds and the motion to suppress is denied.”

On appeal, Howard contends he did not commit a traffic violation before being stopped by the police officer. Therefore, according to Howard, the stop was unjustified and his motion to suppress should have been granted. We disagree.

“An officer may conduct a brief investigatory stop of a vehicle if that stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. [Cit.]” Herrington v. State of Ga., 221 Ga. App. 354 (1) (471 SE2d 289) (1996). We find that the officer was authorized to stop Howard because he observed him commit a traffic offense. See OCGA § 40-6-20; Fouts v. Builders Transport, 222 Ga. App. 568, 572 (2) (474 SE2d 746) (1996) (OCGA § 40-6-20 “mandates an absolute duty [for a driver] to stop a vehicle for a traffic control device”); see also Roberson v. State, 230 Ga. App. 179, 181 (495 SE2d 643) (1998). “The fact that the officer did not charge the defendant with the observed traffic offense but only with the more serious offenses revealed after the traffic stop is immaterial.” Buffington v. State, 228 Ga. App. 810, 813 (492 SE2d 762) (1997). Moreover, “[e]ven if [Howard’s] actions did not amount to a per se traffic violation, under the totality of the circumstances, [the officer] had a reasonable articulable suspicion that [Howard] was committing a traffic offense. [Cit.]” Roberson, supra.

Decided August 13, 1998.

Billy J. Dixon, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee. >

Accordingly, we conclude that the stop of Harvey was not improper and the trial court did not err in denying Harvey’s motion to suppress on this ground. Buffington, supra.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Pope, Presiding Judge.

text:
    A98A1326.
    SWEENEY v. THE STATE.
    (506 SE2d 150)
   Pope, Presiding Judge.

Patrick Sweeney was indicted for burglary, aggravated assault, aggravated sodomy, attempted rape and impersonating a police officer. He denied the charges and the case was tried before a jury. The jury found Sweeney guilty of attempted rape and impersonating a police officer, but not guilty of the other charges. The trial court sentenced Sweeney to two years in prison. Sweeney appeals from the court’s denial of his motion for a new trial.

1. Sweeney’s challenge to the sufficiency of the evidence supporting the verdict is without merit. The state presented the following evidence at trial: In October 1995 Shari Anduze ended a three-year relationship with Sweeney. Sweeney was upset about the end of the relationship and, on November 14, 1995, he repeatedly tried to contact Anduze by telephone, but was unsuccessful. He learned from a friend that Anduze might be with her co-worker Gary Davis. So at approximately 2:00 a.m., on November 15, Sweeney went to Davis’ apartment in search of Anduze. When Davis answered his apartment door, Sweeney identified himself as a police officer, showed Davis a police badge and demanded to see Anduze. Sweeney had previously worked as a police officer at Kennesaw State University and for Fulton County, but had resigned from both positions prior to November 1995. The badge he showed to Davis was one that he had failed to turn in after resigning as a Kennesaw officer. When Davis refused Sweeney’s demand to enter the apartment and see Anduze, Sweeney forced his way inside and fought with Davis. Eventually Sweeney coerced Anduze into leaving the apartment with him so they could discuss their relationship. After talking with Sweeney, Anduze went home.

During the evening of November 15 Sweeney called Anduze, they argued and she hung up the phone on him. He called her again at approximately 12:30 a.m., on November 16. They had another argument during which Sweeney asked Anduze if she was going to have sex with him one last time. Anduze ended the phone conversation and went to sleep on her couch. A short time later, Sweeney used a key to enter Anduze’s house, where he attacked her on the couch. As Anduze struggled, Sweeney put handcuffs on her, dragged her to the floor, pulled off her pants and underpants, removed his own clothes, pointed a pistol at her and threatened to rape her. Anduze told Sweeney that she was menstruating and he let her go to the bathroom. When Sweeney left her alone, Anduze ran from the bathroom, activated the alarm system and called a 911 emergency operator. She then jumped out a window and, as she hid, heard Sweeney drive away in his car.

The police, in response to the 911 call, arrived to find Anduze outside her house in handcuffs. She told the police about the attack, identified Sweeney as her attacker, and described his clothing and car. Police officers testified that on the way to Anduze’s house they passed a car, coming from the opposite direction, that matched the description of Sweeney’s car. The police later went to Sweeney’s apartment. Near Sweeney’s car they found a pair of men’s underpants like those Anduze said Sweeney had worn, and removed, when he attacked her. The officers found Sweeney inside his apartment. He was wearing the pants described by Anduze, but was not wearing underwear. Sweeney told the police he had not left the apartment that night.

In his own defense, Sweeney admitted that at 2:00 a.m., on November 15 he went to Davis’ apartment and said he was a police officer, but denied that he showed Davis a badge. Sweeney also denied that he attacked Anduze at her house in the early morning of November 16. He testified that he was at his apartment at the time of the attack. Several other witnesses corroborated his story.

On appeal, Sweeney is no longer presumed innocent and we must view the evidence in the light most favorable to the verdict. See Walker v. State, 225 Ga. App. 19, 20 (482 SE2d 515) (1997). Viewing the evidence in that light, we find that a rational trier of fact could have found Sweeney guilty beyond a reasonable doubt of attempted rape (OCGA §§ 16-4-1; 16-6-1) and impersonating a police officer (OCGA § 16-10-23). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lumsden v. State, 222 Ga. App. 635, 637-638 (4) (475 SE2d 681) (1996); Williams v. State, 178 Ga. App. 80, 81 (342 SE2d 18) (1986).

2. Sweeney argues the court erred in denying his motion to sever the impersonating an officer charge from the other charges. We must review a denial of severance under an abuse of discretion standard. Offenses may be tried together if they are based on the same conduct or constitute a series of acts connected together or constitute part of a single scheme or plan. It is not an abuse of discretion for a judge to refuse a motion to sever multiple charges where the crimes alleged were part of a continuous transaction conducted over a relatively short time. Lane v. State, 210 Ga. App. 738, 739 (1) (437 SE2d 479) (1993). In the current case, the impersonating an officer charge and the charges based on the attack of Anduze the following day were a closely connected series of acts committed by Sweeney as he pursued Anduze after the end of their relationship. See Hooper v. State, 223 Ga. App. 515, 516 (1) (478 SE2d 606) (1996). Under these circumstances, the trial court did not abuse its discretion in denying Sweeney’s motion to sever. Swinney v. State, 217 Ga. App. 657, 659 (2) (458 SE2d 686) (1995).

3. Sweeney claims the trial court erroneously refused to grant a mistrial after the state placed his character in issue by introducing testimony that he threatened to kill Davis. This claim is without merit. Immediately after the testimony was given the court sustained Sweeney’s objection to it, excluded it and instructed the jury to disregard it. The decision to exclude objectionable testimony and give a curative instruction, rather than grant a mistrial, was within the court’s discretion. See Wesley v. State, 228 Ga. App. 342, 344 (3) (491 SE2d 824) (1997). “Because the trial court acted immediately, ruled out the offensive testimony, and properly instructed the jury to disregard the statement... we find no abuse of discretion in denying the motion for mistrial. [Cit.]” McGee v. State, 267 Ga. 560, 565 (3) (480 SE2d 577) (1997).

4. Sweeney argues the court erred in allowing a state witness to testify that Sweeney had once tried to pressure a woman into having sex with him. The state presented the witness, the chief of the Kennesaw State University police, to testify about when Sweeney left his job as a Kennesaw police officer. On cross-examination, Sweeney’s lawyer asked the witness if there had been a problem with Sweeney before he left, to which the witness replied that Sweeney had resigned of his own free will. The state then followed-up that matter on its re-direct examination of the witness by asking if there had in fact been any problems. The witness explained that there had been a complaint that Sweeney had put pressure on a female student to sleep with him. Sweeney raised no objection to the prosecutor’s question or the witness’ answer. The prosecutor continued to question the witness without objection, after which Sweeney’s lawyer again cross-examined the witness. Subsequently, Sweeney’s lawyer moved for a mistrial on the basis of the witness’ re-direct testimony that Sweeney tried to pressure the woman into having sex.

“ ‘By failing to object contemporaneously with the testimony, and by proceeding to cross-examine the witness, trial counsel waived the error.’ [Cit.]” Smith v. State, 180 Ga. App. 422, 424 (1) (349 SE2d 279) (1986). “ ‘A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it. [Cits.]’ ” Worley v. State, 201 Ga. App. 704, 705 (2) (411 SE2d 760) (1991). Sweeney’s failure to object to the testimony at the time it was given and his delayed motion for a mistrial waived any error. See Merritt v. State, 255 Ga. 459, 460 (2) (339 SE2d 594) (1986).

Even if the issue were not waived, it presents no ground for reversal because Sweeney’s own conduct led to the introduction of the testimony he now challenges. “It is well established that one cannot complain of a ruling that his own trial tactics or conduct procured or aided in causing.” (Citation and punctuation omitted.) Franklin v. State, 224 Ga. App. 578, 581 (4) (481 SE2d 852) (1997). Here, Sweeney initially raised the topic of problems he had before leaving his position as a Kennesaw officer, and the state was thereafter authorized to explore the topic on its re-direct examination of the witness. “We find that the State’s question was not improper in light of the fact that defense counsel had opened the door to this line of inquiry. [Cits.]” Brown v. State, 175 Ga. App. 246, 248 (3) (333 SE2d 124) (1985).

5. Sweeney complains that pursuant to Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997), the trial court should have given a limiting instruction at the time the state introduced the similar transaction evidence that Sweeney had pressured a woman to have sex with him. Contrary to Sweeney’s complaint, the testimony in question was not similar transaction evidence introduced by the state after the requisite preliminary hearing, but was evidence elicited on re-direct questioning by the prosecutor after Sweeney himself opened the door to the topic of problems he had before resigning as a Kennesaw officer. Consequently, the holding in Belt, that it is incumbent on the court to charge the jury on the limited purpose of similar transaction evidence admitted pursuant to the requisite preliminary hearing, does not apply to this case. Sweeney thus has not shown any error.

6. Sweeney contends the court’s exclusion of evidence that the victim had recorded a phone-sex tape violated his right to confront witnesses against him. This contention is without merit because the court properly excluded the tape under the Rape Shield Statute. That statute bars evidence relating to the past sexual behavior of the complaining witness unless the evidence “supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” OCGA § 24-2-3 (a), (b). Here, evidence of a prior sex tape made by the victim does not support an inference that Sweeney could have reasonably believed the victim consented to the attempted sexual intercourse. See Martin v. State, 219 Ga. App. 277, 281 (3) (464 SE2d 872) (1995). In fact, Sweeney’s defense was not that of consent; rather, his defense was that the attempted rape never happened and the victim fabricated the entire incident in response to his alleged threat to reveal her sexual activities, including the phone-sex tape, to other people. Because there is no claim of the victim’s consent, the trial court correctly ruled that the Rape Shield Statute barred evidence of the sex tape.

In support of his contention that exclusion of this evidence violated his right to confront witnesses against him, Sweeney relies on Olden v. Kentucky, 488 U. S. 227 (109 SC 480, 102 LE2d 513) (1988). His reliance on Olden is misplaced. “In Olden, a sexual assault case, the United States Supreme Court held that restricting cross-examination of the victim regarding her cohabitation with a third party violated the accused’s Sixth Amendment right to confront witnesses, and it was not harmless error. There . . . the accused relied upon a defense that the victim had consented to sex. When the defense to a charge of sexual assault is built upon a theory that the alleged victim lied in accusing him in order to protect her relationship with another man, it is easily seen that evidence of the victim’s relationship or cohabitation with that other man is a crucial fact for the jury’s consideration. It supports the defense theory by placing before the jury a strong motivation for the victim to lie.” Murray v. State, 219 Ga. App. 405, 406-407 (465 SE2d 515) (1995). Because Sweeney’s defense was not that the victim consented to sex and then lied to cover it up because of her relationship with another man, Olden is inapposite to the instant case. Moreover, unlike the defendant in Olden, Sweeney was allowed to present evidence in support of his theory that Anduze’s motive for lying was his threat to expose her sexual activities. The court’s refusal to admit the tape did not hinder his defense theory.

“The admission of evidence at trial is within the discretion of the trial court. Although each party is entitled to a thorough and sifting cross-examination, that right is not unfettered. The trial court may, in its discretion, restrict the scope of cross examination to the relevant issues. [Cits.] The court’s discretion will not be interfered with on appeal unless an abuse is present. [Cit.]” Murray v. State, 219 Ga. App. at 407. The trial court in the present case did not abuse its discretion in concluding that evidence of the tape was inadmissible.

Decided August 13, 1998.

Stephen A. Delaney, for appellant.

Benjamin F. Smith, Jr., District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

7. Sweeney asserts the trial court erred in denying his motion for a mistrial based on the prosecutor’s improper closing argument comment upon his right to remain silent. Sweeney’s assertion misconstrues the prosecutor’s argument. The prosecutor noted that Sweeney’s statement to police on the morning Anduze was attacked did not include several claims that he made during his trial testimony. This was not an impermissible comment on Sweeney’s right to remain silent, because the evidence shows he did not remain silent. He made differing statements before and during trial, and such different statements have always been an appropriate and sometimes vital subject of inquiry and impeachment. See Brown v. State, 167 Ga. App. 61, 63-64 (4) (305 SE2d 870) (1983); Watkins v. State, 160 Ga. App. 9, 11-12 (5) (285 SE2d 758) (1981). The court therefore did not err in denying the motion for a mistrial.

Moreover, after denying the motion for a mistrial, the court offered to give curative instructions, but Sweeney declined the offer. Sweeney’s refusal of the offer of curative instructions made it impossible for the trial court to repair any alleged prejudice and waived the grounds to assert mistrial error on appeal. See Tate v. State, 230 Ga. App. 186, 189 (4) (495 SE2d 658) (1998).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


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    A98A1372.
    PATRIOT GENERAL INSURANCE COMPANY v. MILLIS.
    (506 SE2d 145)
   Blackburn, Judge.

Patriot General Insurance Company appeals the grant of summary judgment to its insured Thomas W. Millis, Jr., and to Intervenor Alexander Underwriters General Agency, Inc., in Patriot’s declaratory judgment action to establish non-coverage based on Millis’ fraudulent insurance application. Patriot also appeals the denial of its motion for summary judgment. We affirm the trial court’s rulings.

In this action involving insurance coverage, the trial court granted summary judgment in favor of Thomas W. Millis, Jr., finding that Patriot General Insurance Company owed coverage to Millis with regard to a wreck in which he was involved on May 14, 1995. It also granted summary judgment to Alexander as to its non-liability for insurance coverage. Patriot appeals, contending that it should not be required to provide coverage due to fraudulent misrepresentations made by one of its agents in the application for insurance coverage which Patriot accepted without knowledge of such fraud. Patriot also appeals the trial court’s award of attorney fees levied against it.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The record, so viewed, reveals that on March 18, 1995, Millis went to the offices of the Espi Insurance Agency to meet with its proprietor, Nidia Espinal. Millis explained to Espinal that he was seeking immediate insurance coverage for a car which he had just reconditioned and wished to drive that day. After Millis filled out a number of forms and made a $110 down payment to her agency, Espinal presented Millis with a proof of insurance card. This card listed Alexander Underwriters as the named insurer, listed a policy number, and stated that its effective date was March 18, 1995. Alexander Underwriters does not issue individual policies; instead, it accepts applications from individual brokers and then finds other insurance companies willing to issue an individual policy. Millis stated that Patriot was never mentioned during this initial application process.

On April 15, 1995, Millis made an $87 premium payment on the policy to Espi. On May 12, 1995, Millis contacted Espinal and requested a copy of his policy, which Espinal assured him was in her office but which she failed to deliver. On May 14, 1995, Millis was involved in a wreck in which third parties were injured. These third parties threatened to sue Millis on the grounds that he had no insurance. Millis then attempted to contact Espinal again about getting a copy of the insurance policy he believed that she had acquired for him. Espinal evaded Millis for several days, assuring him that she had his policy but failing to produce it. Millis also contacted Alexander Underwriters, but they informed him that they had never received any application for insurance for his benefit.

Subsequently, Millis received a policy of insurance in the mail from Patriot. The effective date of said policy was May 13, 1995, one day before Millis’ accident. The application for this policy, which is also dated May 13, 1995, contains signatures of both Millis and Espinal; however, Millis stated that Espinal never discussed Patriot with him, that he never signed the application document, and that he believed his signature was forged by Espinal.

Espinal had been appointed as an authorized agent for Patriot on October 19, 1993. On May 15, 1995, Patriot sent a letter to Espinal informing her that it would no longer do business with her agency, that her agency contract would expire on June 15, 1995, and that her binding authority was immediately terminated. Nevertheless, when Patriot received the application for Millis on June 2, 1995, after Millis’ wreck, it accepted said application which showed Espinal as the acting agent.

Later, after completing an investigation and interviewing Millis, Patriot discovered that the application had been submitted after Millis’ accident and that Millis’ signature had been forged. As a result, Patriot returned premiums to Millis for which it had billed him and informed him that it did not intend to provide coverage for the accident. Thereafter, on August 21, 1995, Patriot filed a declaratory judgment action to determine whether it was liable for coverage for the accident on May 14, 1995. On October 5, 1995, Alexander Underwriters filed a motion to intervene, which was granted.

On November 20, 1995, Patriot filed a motion for summary judgment, contending that it had no liability to provide coverage for Millis on the date of the accident. On October 22, 1996, Alexander Underwriters filed a motion for summary judgment, also contending that it had no liability to provide coverage for Millis. On January 28, 1997, Millis filed a motion for partial summary judgment, contending that either Patriot or Alexander Underwriters, or both, owed him coverage. On January 26, 1998, the trial court granted Alexander Underwriters’ motion, denied Patriot’s motion, and granted Millis’ motion with regard to Patriot. The trial court also ordered Patriot to pay Millis’ attorney fees and costs.

1. Patriot argues that the trial court erroneously granted Millis’ motion for summary judgment while denying Patriot’s motion. We disagree.

In general, the law of agency applies to insurance agents. “The principal shall be bound by all the acts of his agent within the scope of [her] authority; if the agent shall exceed [her] authority, the principal may not ratify in part and repudiate in part; he shall adopt either the whole of none.” OCGA § 10-6-51. In this matter, it is clear that Espinal was the agent of Patriot, as her agency contract did not terminate until June 15, 1995. Accordingly, with respect to her dealings on Patriot’s behalf prior to such termination, Espinal had the power to bind Patriot to acts which did not exceed her authority. In this matter, making the logical inference that Espinal fraudulently conveyed Millis’ application for insurance to Patriot, it could not be said that Espinal was acting within her authority. Nevertheless, as a general matter, any knowledge gained by an insurer’s agent is imputed to the insurer, and the insurer may not deny coverage based on a fact not known to it but known to its agent. Meadows v. Douglas County Fed. Savings &c. Assn., 169 Ga. App. 150, 152 (5) (312 SE2d 169) (1983).

“In an action on a contract of insurance, the insurance company is generally considered estopped to deny liability on any matter arising out of the fraud, misconduct, or negligence of an agent of the company. If either party must suffer from an insurance agent’s mistake, it must be the insurance company, [her] principal. This principle is illustrated by the rule that the insurer is estopped to assert the falsity of answers to questions contained in an application for insurance or the policy itself, where such false answers are inserted by the insurer’s agent to whom the applicant for insurance gave correct answers or information.” (Punctuation omitted.) Stillson v. Prudential Ins. Co. of America, 202 Ga. 79, 82 (42 SE2d 121) (1947). This would not be the case however, if the applicant was a participant in the fraud. Here, Millis did not participate in providing any misrepresentations to Patriot.

“The view generally taken is that the agent in making out the application acts for the insurer, and that the insurer is therefore estopped to assert the mistake, or, as has been said in some cases, the mistake is deemed to be waived by the insurer. The chief reason for the majority rule that an insurer cannot rely upon the falsity of answers inserted in an application for insurance by its own agent in response to questions correctly answered by the insurer is the protection of the insured, who has acted in good faith and answered the inquiries correctly; the insurer, to protect itself, needs only to select competent and trustworthy agents.” (Punctuation omitted.) Id. at 83.

Here, even though Patriot had notice of previous problems with Espinal’s agency, it accepted the application for Millis submitted by her, and it billed and accepted premium payments from Millis as well, prior to its attempt to reform the policy such that it would not have to provide coverage for the accident. In other words, Patriot was on notice that its agent was neither competent nor trustworthy, yet it accepted Millis’ application without prior investigation. In light of the rules set forth in Stillson, Patriot cannot avoid living up to the full extent of the policy it granted, notwithstanding its agent’s fraud. Moreover, “it is impossible to reconcile the existence of a right to rescind the insurance contract ab initio for fraud with the general scheme of the compulsory insurance law. . . . Thus it has been universally held or recognized that an insurer cannot, on the ground of fraud or misrepresentations relating to the inception of the policy, retrospectively avoid coverage under a compulsory or financial responsibility insurance law so as to escape liability to a third party.” (Punctuation omitted.) Sentry Indem. Co. v. Sharif, 248 Ga. 395, 396-397 (282 SE2d 907) (1981). Accordingly, the trial court properly denied Patriot’s motion for summary judgment and granted Millis’ motion with respect to Patriot’s liability.

Decided August 13, 1998.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellant.

Harger W. Hoyt, James B. Gurley, for appellee.

2. Patriot contends that the trial court erroneously found that Alexander Underwriters was not obligated to provide coverage for Millis. However, even if we were to accept Patriot’s contention that a contract of insurance must have existed between Alexander Underwriters and Millis, Patriot has no standing to contest the trial court’s ruling with regard to Alexander Underwriters’ duty to provide coverage to Millis because this ruling has no effect on Patriot’s liability. “In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit. .. . The mere fact that a party would benefit from performance of the agreement is not alone sufficient.” (Punctuation omitted.) Anthony v. Grange Mut. Cas. Co., 226 Ga. App. 846, 847-848 (487 SE2d 389) (1997). Moreover, Espinal lacked any authority to issue individual policies on behalf of Alexander Underwriters. Accordingly, we reject this enumeration.

3. Patriot contends that the trial court erroneously levied Millis’ attorney fees and costs against it. Patriot contends that the trial court levied such fees sua sponte and that no discussion of fees occurred during the summary judgment hearing in this case. However, no transcript of such hearing was filed by Patriot. “The burden is on the appellant[ ] to prepare a copy of the transcript for inclusion in the appellate record. Accordingly, without a transcript to consider we must presume that the trial court’s findings were proper and supported by competent evidence.” (Punctuation omitted.) Stedry v. Mitchell, 201 Ga. App. 682, 684 (2) (411 SE2d 735) (1991). Alexander’s motion for penalty for frivolous appeal is hereby denied.

Judgment affirmed.

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

       In this action, Patriot sought to reform the contract of insurance such that it would have prospective effect, starting on the day that the application was received.


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    A98A1385.
    HOLMES v. STATE OF GEORGIA.
    (506 SE2d 157)
    Decided August 13, 1998.

      Peter D. Johnson, for appellant.
   Ruffin, Judge.

Sonya Holmes appeals from the order of the superior court which forfeited $2,275 cash to the State under the authority of OCGA § 16-13-49. We affirm.

Holmes contends in her sole enumeration of error that “[t]he evidence was insufficient to support a determination that the currency was subject to forfeiture.” Specifically, Holmes asserts the trial court erred when it ruled that the $2,275 was subject to forfeiture because it was “found in close proximity to a controlled substance and . . . was used or intended for use to facilitate a violation of the Georgia Controlled Substances Act.” See OCGA § 16-13-49 (d) (2) and (6). Holmes does not assert the trial court erred when it concluded that “Sonya Holmes is not the owner of said property.” Indeed, Holmes specifically requests that this Court ignore this portion of the trial court’s order and instead review only whether the State met its burden of proving a prima facie case for forfeiture of the cash. We cannot.

“In order to contest a forfeiture, a party must be an ‘owner’ or ‘interest holder.’ See OCGA § 16-13-49 (n) (3) and (o) (3).” Lockett v. State of Ga., 218 Ga. App. 289, 290 (460 SE2d 857) (1995). The trial court rejected Holmes’ contention that she was an “owner” and the trial court’s finding that she did not own the money is undisputed on appeal. “ ‘(I)t is clear that to have standing to contest a forfeiture a party must have at least some property interest in the subject matter of the condemnation proceeding.’ [Cit.] . . . If a person had no interest in the property, he could not very well be heard to complain of its forfeiture; as a stranger to it, he would be a mere member of the public volunteering to challenge the entitlement of the state to the property. For such the statutory procedure [contained in OCGA § 16-13-49] makes no provision, and it must be strictly construed. [Cit.]” Hill v. State of Ga., 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986). Accordingly, Holmes’ lack of standing precludes us from considering her claim that the State failed to meet its burden of showing by a preponderance of the evidence that the cash was subject to forfeiture. See Tuggle v. State of Ga., 224 Ga. App. 353, 355 (2) (480 SE2d 353) (1997). Our decision in Jackson v. State of Ga., 218 Ga. App. 437 (461 SE2d 594) (1995), does not provide authority to the contrary.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

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