author: Smith, Judge.

text:
    A93A0261.
    JACKSON v. THE STATE.
    (432 SE2d 649)
   Smith, Judge.

Demond Jackson and a co-indictee were accused of two counts of armed robbery. Jackson was tried separately before a jury and found guilty of robbery and armed robbery. After the grant of an out-of-time appeal, he appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Jackson filed a pre-trial motion to exclude from evidence testimony identifying him as one of the perpetrators, arguing that preindictment lineup procedures were suggestive, tainting the testimony of the three eyewitnesses. The denial of this motion is enumerated as error.

Contrary to appellant’s assertions, there is no right to counsel at a pre-indictment photographic lineup. Dodd v. State, 236 Ga. 572, 574 (224 SE2d 408) (1976); Allen v. State, 203 Ga. App. 851, 852 (2) (418 SE2d 125) (1992). “The test of a photographic array is whether the ‘procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Cit.]” Thornton v. State, 238 Ga. 160, 161 (1) (231 SE2d 729) (1977). See also Clark v. State, 149 Ga. App. 641, 643 (1) (255 SE2d 110) (1979). “Thus, there is a ‘two-step inquiry’: (1) whether there was an impermissibly suggestive photographic identification procedure, and (2) if so, whether [under the totality of the circumstances] this resulted in a substantial likelihood of irreparable misidentification. [Cit.]” Sparks v. State, 185 Ga. App. 225, 226 (2) (363 SE2d 631) (1987). Accord Gravitt v. State, 239 Ga. 709, 711 (4) (239 SE2d 149) (1977).

An officer trained at the FBI academy prepared the photographic lineup showing head-and-shoulder pictures of six black males. The array is included in the record, and we find the persons there depicted to be of roughly similar age and appearance. Each witness was shown the photographs apart from the other witnesses, and each denied they had been coached in any manner. Merely because Jackson’s co-indictee was one of the six did not make the lineup impermissibly suggestive. See Mitchell v. State, 236 Ga. 251, 254 (2) (223 SE2d 650) (1976). See also Tankersley v. State, 155 Ga. App. 917, 921 (8) (273 SE2d 862) (1980). Compare Baier v. State, 124 Ga. App. 334, 337 (1) (183 SE2d 622) (1971) (where only three pictures were used, two of which depicted the suspect, and the other of which had been altered in a manner to suggest that it depicted the suspect). Nor does the circumstance that some persons, other than appellant, were depicted in mug shots with height markings render the procedure suggestive. Eiland v. State, 246 Ga. 112, 113 (1) (268 SE2d 922) (1980). Compare Payne v. State, 233 Ga. 294, 297 (II) (210 SE2d 775) (1974). Although the perpetrator was supposed to have worn a red-and-white striped shirt on the day of the robbery, the fact that only the photograph from which appellant was identified also depicted someone in a red- and-white striped shirt does not render the pre-indictment photographic array suggestive where, as here, the victim testified that it was not the same pattern of stripes. See Denegal v. State, 193 Ga. App. 238 (1) (387 SE2d 434) (1989).

Since the pre-indictment lineup procedures were not impermissibly suggestive, so as to lead the witnesses to an “all but inevitable” identification of appellant, he has failed to establish even the first prong of the relevant inquiry. Sparks v. State, supra. The trial court did not err in denying the motion to exclude from evidence the eyewitness identification testimony. Newkirk v. State, 155 Ga. App. 470, 472 (2) (270 SE2d 917) (1980).

2. The general grounds are enumerated.

Jackson was identified as the man who robbed a pawn shop proprietor of cash and inventory at gunpoint while his companion took valuables from the person of the proprietor’s wife. Construed to uphold the verdict, this evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of appellant’s guilt of armed robbery and of being a party to the crime of robbery. OCGA § 16-8-41 (a); Heard v. State, 204 Ga. App. 757, 758 (1) (420 SE2d 639) (1992) (armed robbery); OCGA §§ 16-8-40 (a) (1) and 16-2-20 (b) (3); Wilson v. State, 153 Ga. App. 182 (264 SE2d 712) (1980) (party to the crime of robbery).

3. The trial court did not err in refusing to merge the conviction for the robbery of Shelby Barton with the armed robbery of Oscar Barton. These were two separate crimes committed against two separate victims. The armed robbery was completed as soon as any pawn shop property had been taken from the presence of Oscar Barton. See Miller v. State, 174 Ga. App. 42, 44-45 (5) (329 SE2d 252) (1985). The robbery of Mrs. Barton “is clearly supported by its own set of facts.” Millines v. State, 188 Ga. App. 655, 656 (1) (373 SE2d 838) (1988).

4. Contrary to appellant’s assertions, the testimony of the investigating officer on direct examination that the “[co-indictee’s] name is Lawrence” is not hearsay, but is a statement of undisputed fact, identifying for the jury that person to whom, the officer was then talking. See OCGA § 24-3-1 (a). Since the officer admitted on the stand that he did not see and could not identify Jackson, there was no impermissible bolstering of the three eyewitnesses who did identify him at trial. The admission into evidence of this statement does not warrant a new trial.

5. Appellant’s .tardy objection to alleged character evidence, raised for the first time in the motion for new trial, will not be addressed. Where an objection to evidence “ ‘is raised [for the first time] in a motion for new trial or before this court, nothing is presented for review. . . . (Cits.)’ [Cit.]” Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914) (1989).

6. Although not alleged in the indictment, the trial court instructed the jury on conspiracy as a separate offense. This jury instruction is enumerated as error.

Jackson was not convicted of conspiracy. Compare Rowe v. State, 166 Ga. App. 836, 838 (1) (305 SE2d 624) (1983). Indeed, the verdict form contains no place for a conspiracy conviction and no instruction was given as to any possible form for a verdict for conspiracy. “The inclusion of the substance of OCGA § 16-2-20 in the court’s charge to the jury created no denial of [appellant’s] due process rights under either State or federal constitutions. The evidence authorized a charge on conspiracy [in conjunction with the court’s charge on parties to a crime], even though [conspiracy was] not alleged in the indictment. [Cits.]” (Emphasis supplied.) Cordova v. State, 191 Ga. App. 297, 298 (1) (381 SE2d 436) (1989). “ ‘When the evidence tends to show a conspiracy, a charge upon the subject is not error even if not alleged in the indictment.’ [Cits.]” Jones v. State, 243 Ga. 820, 830 (11) (256 SE2d 907) (1979).

7. Jackson enumerates as error denial of his motion for new trial predicated upon the alleged ineffective assistance of trial counsel.

“ ‘When inadequate representation is alleged, the critical factual inquiry ordinarily relates to . . . whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; [and] whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.’ [Cit.]” Hawes v. State, 240 Ga. 327, 329-330 (1) (240 SE2d 833) (1977). Generally, “the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cit.]” (Emphasis in original.) Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988). The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

One of the specific instances of alleged professionally unreasonable behavior is the failure to interview witnesses for the State. However, Jackson’s trial counsel was given complete access to the State’s file and had the benefit of the transcript from the trial of an accomplice. An alibi defense was presented, with Jackson testifying on his own behalf. “ ‘A reasonably competent attorney often must rely on his own experience and judgment, without the benefit of a substantial investigation, when deciding whether or not to for[e]go a particular line of defense. Consequently, counsel has rendered effective assistance even though he decided not to pursue a particular line of defense without substantial investigation so long as the decision was reasonable under the circumstances.’ ” (Emphasis supplied in part.) Baines v. State, 201 Ga. App. 354, 356-357 (1c) (411 SE2d 95) (1991). Contrary to appellant’s assertions, there was no unprofessional failure to investigate the State’s case. Compare Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990). “Moreover, appellant’s ‘counsel on appeal has failed to suggest what additional facts might have been revealed by further investigation or what additional defenses might have become apparent as the result of further research and preparation.’ [Cit.]” Southerton v. State, 205 Ga. App. 366 (422 SE2d 251) (1992).

The remainder of appellant’s specific instances of alleged ineffective assistance have to do with the conduct of the trial. The record shows that, after his appointment, trial counsel filed an omnibus motion for discovery, including Brady (v. Maryland, 373 U. S. 83, 10 LE2d 215, 83 SC 1194) (1963)) material; reviewed the State’s file; successfully moved for a continuance in order to study the transcript of the trial of the alleged accomplice; and conducted a lengthy hearing on a defense motion in limine. At trial, cross-examination was conducted and pertinent objections were interposed. Jackson testified on his own behalf, forming the basis for the defense of alibi. Counsel filed requests to charge, stated his immediate exceptions to the trial court’s charge as given, and reserved the right to except further after reviewing the transcript.

Decided June 15, 1993.

Amy A. Petulla, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

The failure of trial counsel to interpose a hearsay objection to the officer’s testimony “his name is Lawrence” was not ineffective assistance. See Division 4, supra. Although Jackson’s mother had been issued a subpoena for the trial as originally scheduled, she was not present at the trial as scheduled after the continuance. However, since it is conceded that she would have been unable to corroborate appellant’s alibi defense, the failure to have her appear is not ineffective assistance. The decision not to impeach one of the victims with that witness’ previous estimate of appellant’s age was a matter of trial strategy. “Such [alleged professional failures] were [merely] tactical decisions which ‘ “might be considered sound trial strategy[,]” ’ [and provide no basis for concluding that appellant was denied effective assistance of counsel]. [Cit.]” Williams v. State, 207 Ga. App. 418, 420 (427 SE2d 787) (1993).

The fact that Jackson and his present counsel now claim that they would have conducted the trial differently does not establish the ineffectiveness of trial counsel. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992). The trial court’s finding that Jackson had been afforded effective assistance of counsel is not clearly erroneous, and the denial of his motion for new trial on this ground is affirmed. Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A93A0274.
    SETSER v. THE STATE.
    (432 SE2d 652)
   Smith, Judge.

Billy Setser was charged with possession of marijuana, OCGA § 16-13-30 (a), and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). After his motion to suppress was denied he pleaded guilty to both offenses, specifically reserving the right to appeal the denial of his motion to suppress. See Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991).

1. Setser contends the trial court erred in denying the motion to suppress because his person was searched without probable cause. At the suppression hearing, Officer Dennis Smith of the Cumming Police Department testified that he and several other officers were at an intersection in Cumming engaged in the consent search of a vehicle in which drugs had been found when Setser drove up in his car. Setser exited his car and Smith approached, asked why he was there, and shone his flashlight into Setser’s car to make sure no weapons were present. Because he observed what appeared to be marijuana seeds on the floorboard of the car and a white pill on the seat, he requested Setser’s permission to search the car, which was given. Smith and two other officers conducted the search. Smith found a deer rifle and a shotgun in the back seat, and one of the other officers found a black powder gun under the front seat. Smith testified that at that point he patted Setser down to make sure he had no weapons on his person. This was corroborated by one of the other officers. During the patdown, Setser informed Smith that he had some rolled marijuana cigarettes in his pockets and started to take them out.

Setser’s testimony conflicted with that of Smith as to the sequence of events. He testified that he was called by friends to assist them with a car he had sold them that had broken down. He maintained that when he arrived at the scene he was first frisked, and then the car was searched. It is unclear from his testimony whether he volunteered that he had the marijuana in his pockets or the officers intruded into his pockets to retrieve them, although he testified he did volunteer that he had a knife they had missed. Setser explained that when asked if the car could be searched he had replied, “[y]eah, go ahead” because he had been arrested previously several times for DUI and, since on each previous occasion police had conducted a search, he believed they would do so on this occasion whether or not he consented.

It is immaterial whether the patdown of Setser or the look into his car occurred first. Although Setser’s arrival at a location where a search for drugs was in progress “may not have been sufficient to establish probable cause to believe that [he] was actually engaged in the suspected drug activity, it was certainly sufficient to establish an articulable suspicion so as to authorize a brief investigatory stop. . . . [Cits.]” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991). To protect themselves, the officers were authorized, pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to frisk Setser and to shine a flashlight into his car, looking for weapons. Hayes, supra at 205-207.

Decided June 15, 1993.

Donald W. Singleton, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.

At a motion to suppress hearing, the judge sits as the trier of fact. The findings made at such a hearing are analogous to a jury verdict, and should not be disturbed on appeal if there is any evidence to support them. Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150) (1989). Although the testimony arguably conflicts as to whether Setser volunteered that he was carrying marijuana, the trial court was authorized to believe the officer’s testimony that this was true. When Setser volunteered that he had marijuana in his pockets, the officers were not required to ignore this information, but had probable cause to seize it.

2. Setser also contends that his consent to search the car was not given voluntarily but because he had no other choice. Setser clearly consented to the search. We agree with the trial court that although his consent may have been the product of his erroneous assumption, based on previous arrests, that the officers would proceed with a search anyway, such an erroneous assumption does not constitute coercion. His consent was not prompted by anything these officers said or did. See Mayfield v. State, 186 Ga. App. 233, 235 (366 SE2d 836) (1988) (appellant’s consent to search trunk of car may have been prompted by his own feelings that a search warrant would otherwise be obtained, but was not brought on by trooper’s coercion, and thus was valid). The consent was valid.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0291.
    MOSS v. THE STATE.
    (432 SE2d 825)
   Smith, Judge.

Earl Moss was tried before a jury on a variety of counts arising out of a collision he caused by driving while under the influence of alcohol. Two counts of DUI were merged with two convictions of causing serious injury by motor vehicle. In addition, Moss was sentenced on convictions for driving while his license had been revoked, no proof of insurance, failure to use his seatbelt, and failure to yield the right-of-way at a stop sign. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Moss enumerates as error the denial of his motion for a directed verdict of acquittal as to the two counts of causing serious injury by vehicle, in violation of OCGA § 40-6-394.

The denial of a motion for directed verdict of acquittal is erroneous only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ . . .” OCGA § 17-9-1 (a). “On appeal of the overruling of a motion for directed verdict of acquittal, the appellate court can consider all of the evidence in the case and this is true whether the denial of such motion occurs at the close of the [S]tate’s case or at the conclusion of all evidence. [Cit.] While the jury can and must weigh and analyze the evidence, an appellate court is restricted to determining whether or not there is sufficient evidence to support the verdict of guilty. [Cits.]” Causey v. State, 154 Ga. App. 76, 77-78 (1) (267 SE2d 475) (1980).

OCGA § 40-6-394 provides that whoever, “without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 [reckless driving] or 40-6-391 [DUI] shall be guilty of the crime of serious injury by vehicle.” Construed to uphold the verdict, the direct evidence showed that, at 8:00 p.m. on a late November evening, Moss was operating his motor vehicle while his blood-alcohol content was .16 grams percent. Although it was dark, he was not using his headlights. Moss ran a stop sign and entered a controlled intersection where the victims had the right-of-way, crossing directly in front of them. Both victims in the ensuing collision testified to receiving broken ribs and severe bruises, and they described the continuing pain resulting from their injuries.

To warrant a conviction under OCGA § 40-6-394, “the State was not required to prove that [appellant] was committing any traffic violation or unsafe act, in addition to the violation of [either OCGA § 40-6-391 (a) (1) or] OCGA § 40-6-391 (a) (4).” (Emphasis supplied.) Jones v. State, 195 Ga. App. 569, 570 (1) (394 SE2d 387) (1990). Whether the injuries sustained by the victims were caused through appellant’s violation of any subsection of OCGA § 40-6-391 (a) was a question of fact for the jury. This fact, like any other fact, may be established by circumstantial evidence. See, e.g., Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345) (1990).

From the evidence presented, a rational trier of fact could reasonably have found proof beyond a reasonable doubt of appellant’s guilt of causing serious injury by operating a motor vehicle while under the influence of alcohol. The trial court correctly denied appellant’s motion for directed verdicts of acquittal as to the two counts of causing serious injury by motor vehicle.

Decided June 15, 1993.

Lipscomb, Johnson, Ashway & Sleister, Charles G. Haldi, Jr., for appellant.

Garry T. Moss, District Attorney, A. Rebekah Teal, Assistant District Attorney, for appellee.

2. A forensic chemist from the state crime lab testified on behalf of the prosecution. During the examination of his credentials, this expert witness stated he was familiar with “motor vehicles, [and the] probability of being involved in an accident at a given blood alcohol level,” based upon his knowledge of the literature and empirical studies. Over the objection that this witness was qualified solely as a forensic chemist, it was not error to permit him to testify as to the increased likelihood of a motor vehicle accident corresponding with the driver’s increased blood-alcohol level. Moreover, the “fact that this expert’s opinion may have been based in part on hearsay, goes to [its] weight and credibility, not to its admissibility. [Cits.]” Redfield v. State, 240 Ga. 460, 461 (1) (241 SE2d 217) (1978). See also Rogers v. State, 202 Ga. App. 595, 597 (2) (415 SE2d 49) (1992).

3. The denial of appellant’s motion for directed verdict of acquittal as to the charge of failure to yield is enumerated as error.

Contrary to appellant’s contentions, there is direct evidence that he failed to stop at a stop sign. This is sufficient evidence of a violation of OCGA § 40-6-72 (b). Moreover, having once stopped at a stop sign, a driver must “yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard.” OCGA § 40-6-72 (b). Even assuming that he did stop at the stop sign to let several cars go by, Moss clearly failed to yield to the victims when they were approaching the intersection on another roadway. This enumeration is without merit.

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A0430.
    UNITED STATES FIDELITY & GUARANTY COMPANY et al. v. J. I. CASE COMPANY.
    (432 SE2d 654)
   Cooper, Judge.

In 1988, appellant Robert C. Collins purchased a tractor manufactured by appellee for use on his cotton farm. The tractor was destroyed when it caught fire six months later. According to expert testimony presented at trial, the fire was caused either by an electrical problem in the fuse panel of the tractor or by debris which had accumulated around the heat shield on the exhaust pipe. The tractor was insured under a policy which was issued by appellant United States Fidelity & Guaranty Company (hereinafter “USF&G”) to the B. G. Collins Estate, John C. Land and Robert C. Collins d/b/a Burke Farm Management Service, Inc. (hereinafter “Burke”). Collins submitted a claim to USF&G for the loss, which USF&G paid by check to Burke in the amount of $63,411.28. Collins testified that he received a loan receipt which he signed on behalf of Burke, but this document does not appear in the record.

On February 7, 1990, Burke filed a lawsuit against appellee seeking damages on the theories of strict liability and negligence. Although the policy itself is absent from the record on appeal, the trial transcript reveals that the policy contained the following provision: “If any person or organization to or for whom we make payment under this coverage form has rights to recover damages from another, those rights are transferred to us to the extent of our payment.” After appellee asserted in its responsive pleadings that this provision made USF&G the real party in interest and it was ascertained during discovery that the tractor had been purchased in the name of Collins, the case proceeded to trial with both USF&G and Collins as the named plaintiffs. The jury returned a verdict against appellee in the amount of $64,411.28 and judgment was entered accordingly. Appellee filed a motion for new trial or, in the alternative, a motion for j.n.o.v. This appeal is from the grant of appellee’s motion for j.n.o.v. Appellants enumerate as error the trial court’s grant of j.n.o.v. on the ground that the evidence clearly supported the jury’s verdict.

1. Appellants contend the trial court erred in concluding that USF&G was the real party in interest because there was no effective assignment of the claim to USF&G under the policy. Appellants point out that the insurance proceeds were paid to Burke and argue that because Burke did not own the tractor, it had no cause of action to assign to USF&G. Appellants contend that they moved to add USF&G as a party plaintiff in order to avoid any real party in interest defense being asserted by appellee but maintain that Collins is the real party in interest both as owner of the tractor and because he never received payment from USF&G.

Whether payment of the insurance proceeds was made in Collins’ name or that of his business entity was irrelevant. Although the check itself does not appear to have been placed in evidence, Collins admitted on cross-examination that he was the person to whom payment was made by USF&G for loss of the tractor and that he transferred his claim against appellee to USF&G. Moreover, the assignment issue has previously been decided adversely to appellants by this court in Hoxie v. Americus Auto. Co., 73 Ga. App. 686, 688 (37 SE2d 808) (1946) and General Ins. Co. v. Bowers, 139 Ga. App. 416, 418-419 (228 SE2d 348) (1976). In both cases, before filing suit against the defendants for negligence in destroying their property, the plaintiffs accepted payment from their insurers in full satisfaction of all claims for loss and damage. The insurers paid the claimants pursuant to a proof of loss and subrogation agreement containing language transferring the cause of action to the insurer which was similar to the provision in the policy under consideration in this appeal. After checks were delivered to the insureds in full payment of the claims, they signed a loan receipt to the insurer. This court held in both cases that the trial court properly dismissed the insureds’ lawsuits as they “ ‘had transferred and assigned in a subrogation agreement all of [their] claims and demands to the insurance company. The trial court was, therefore, authorized to find that the so-called loan receipt was not a novation of the assignment and subrogation agreement, and that the plaintiff had no right to maintain the action.’ ” Id. at 418-419.

While the assignment provision in the above cases was part of a proof of loss form rather than a specific policy provision as in the present appeal, the effect of the agreement is the same. “ ‘(0)ne can be compensated but once for damage inflicted, and it is obvious that [Collins] has in fact recovered the maximum sum to which he is entitled. The right of action, if any existed, would have been in the [hands of the] insurer under the subrogation agreement . . . The insurer was the only possible party plaintiff ... in this action. . . .’ [Cit.]” Bryant v. Atlanta Gas Light Co., 149 Ga. App. 126, 127 (1) (253 SE2d 807) (1979). Accord Parker Plumbing &c. Co. v. Kurtz, 225 Ga. 31 (165 SE2d 729) (1969), rev’g Kurtz v. Parker Plumbing &c. Co., 118 Ga. App. 130 (162 SE2d 755) (1968); Imperiale v. Pollard, 187 Ga. App. 427 (370 SE2d 494) (1988).

2. Next, appellants contend that even if Collins did assign his cause of action to USF&G, the strict liability claim could still be maintained by USF&G. However, OCGA § 51-1-11 (b) (1) restricts such actions to “natural persons.” See Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 (2) (235 SE2d 664) (1977). In addition, we reject appellants’ contention that because the policy provision assigned all claims of the insured to USF&G, it is entitled to bring such an action as subrogee. “OCGA § 51-1-11 (b) . . . is our statute governing strict liability in tort which is in derogation of common law and ‘must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.’ [Cits.]” Daniel v. American Optical Corp., 251 Ga. 166, 167 (1) (304 SE2d 383) (1983). Thus, the appellate courts cannot, “by judicial opinion, enlarge upon or by construction grant rights or causes of action not clearly included in the statute itself.” Ford Motor Co. v. Carter, 239 Ga. 657, 663 (238 SE2d 361) (1977).

3. Appellants assert that even if USF&G were correctly determined to be the only proper party to pursue the action and were preeluded from seeking a strict liability claim, the verdict was still clearly supported by the evidence on the issue of negligence, particularly when considered in connection with the principle of res ipsa loquitur. We do not agree.

“ ‘The elements of the res ipsa loquitur doctrine are: “ ‘(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” (Cits.) Further, “(t)he accident must also be ‘of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ ” (Cit.) Moreover, “ ‘(r)es ipsa loquitur should be applied with caution and only in extreme cases; . . . it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.’ ” (Cit.)’ [Cit.]” Cornelius v. Lawrence, 203 Ga. App. 113 (2) (416 SE2d 115) (1992).

While the evidence here may have been sufficient to establish that an inherent defect in the tractor causéd the fire, which is enough to prove a strict liability claim, it was not demonstrated that the defect was the result of any negligence on the part of appellee. Home Ins. Co. v. Caterpillar, Inc., 202 Ga. App. 522 (414 SE2d 735) (1992). USF&G’s expert stated he had determined that the fire started in the electrical fuse panel, but it could have been caused by any number of different reasons and he did not know if there was a defect in the design or manufacture of the panel. Appellee’s expert testified that the cause of the fire was debris which was not cleaned off the heat shield on the exhaust pipe and that there was no need to specifically warn consumers to keep the area clear because “it’s open and obvious that you need to keep it clean so you don’t have these type of fires.” He further stated that the tractor industry was always concerned about fires from accumulated debris when the products were designed.

“ ‘ “Negligence is not to be presumed, but is a matter for affirmative proof. (Cits.) . . .” ’ [Cit.] ‘ “The expression ‘res ipsa loquitur’ means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that ‘the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage’ and ‘the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ (Cit.) . . . The principal basis for application of the rule of res ipsa loquitur is that the occurrence involved would not have occurred (but for) negligence, and (this) negligence (may properly be) charged to the person in exclusive control of the instrumentality. (Cits.)’ [Cits.]” Ellis v. Sears, Roebuck & Co., 193 Ga. App. 797, 798 (1) (388 SE2d 920) (1989).

Decided June 15, 1993.

Allgood & Daniel, Robert L. Allgood, for appellants.

Dye, Tucker, Eueritt, Wheale & Long, A. Rowland Dye, for appellee.

The expert opinion testimony failed to raise even an inference of negligence on the part of appellee. Furthermore, the tractor had been operated in the fields for approximately 300 hours by at least two drivers who never read the instruction manual, which advised letting the engine idle for a short period of time before turning it off to allow the engine and turbo charger temperature to decrease. This procedure was not followed on the day the tractor caught fire. Thus, the exclusive control requirement was not met and the doctrine of res ipsa loquitur is not applicable. Bridgestone Firestone v. Green, 198 Ga. App. 858 (2) (403 SE2d 442) (1991). Since there was no evidence to prove an essential element of the negligence claim against appellee, there was no issue for the jury and the trial court correctly granted appellee’s motion for j.n.o.v. See H. Elton Thompson & Assoc. v. Williams, 164 Ga. App. 571 (298 SE2d 539) (1982).

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0444.
    TORRANCE et al. v. BRENNAN.
    (432 SE2d 658)
   Cooper, Judge.

Appellee sued appellants, Mr. and Mrs. Torrance, after their dog attacked and seriously injured her. A jury awarded appellee $30,000 in damages, and appellants appeal from the judgment entered on the jury verdict.

Appellants and appellee were next door neighbors. Viewing the evidence in a light to support the verdict, it appears that Mrs. Torrance asked appellee if she would feed the dog while appellants were out of town. Appellee agreed, and walked within range of the chained-up dog while Mrs. Torrance went to get the dog’s food and bowl. The dog jumped up on appellee and severely bit her left arm and breast. Appellee’s fiance rushed her to the emergency room, where a plastic surgeon anesthetized the area and cleaned and sutured the injuries, cutting away much damaged tissue. Appellee suffered from pain as well as numbness during treatment and afterward, and the injured areas still give her pain at times. She continued to see the plastic surgeon for follow-up treatment for several months, and lost wages for approximately two-and-one-half weeks of missed work. Appellee’s scars are permanent and visible. The plastic surgeon suggests that the visible scarring on her arm may be lessened by revision surgery, but appellee has not had such surgery because she cannot afford it.

Approximately a month before this attack, appellee saw appellants’ dog jump up on a ten-year-old girl and put his mouth completely around her arm, leaving red marks. About a week after the incident with the little girl, appellee saw the dog jump up on a woman riding by on a bicycle and use its teeth to rip off the woman’s pants. Mrs. Torrance was with appellee on both occasions and was aware of both incidents. Additionally, Mrs. Torrance told appellee on the day of the attack that the dog had “nipped” another neighbor on the buttocks. As a result, appellee was somewhat apprehensive about taking care of the dog, but Mrs. Torrance assured her that the dog would not attack her because she was a friend.

At the time of the attack, appellee did not file a police report. She did call the county animal control expert, but the expert was on vacation. When appellee saw appellants’ dog loose in her back yard two to three weeks later, however, she called the animal control expert again as well as the police. This time the expert came out, investigated, and determined that the dog was dangerous or potentially dangerous. The expert was allowed to testify over objection about her investigation and conclusion. The police officer who responded to appellee’s call wrote a report indicating that appellants’ dog had broken loose from his chain, and the officer was allowed to testify over objection regarding this subsequent incident.

1. Appellants first argue that the trial court abused its discretion in allowing the testimony of appellee, the animal control expert, and the police officer regarding occurrences subsequent to the dog’s attack on appellee, since such occurrences could not be relevant to appellants’ knowledge of their dog’s dangerous propensities. Under OCGA § 51-2-7, a person who owns a dog may be liable for injuries caused by the dog if the dog has dangerous propensities and the owner is aware of that fact. See, e.g., McCree v. Burks, 129 Ga. App. 678 (200 SE2d 491) (1973). Thus, contrary to appellants’ assertion, the dog’s dangerous character was at issue totally apart from the issue of appellants’ knowledge of his dangerous character. While the expert’s report concluding that the dog was dangerous or potentially dangerous could not be relevant to the issue of knowledge because it was issued after the attack on appellee, the fact that the dog was declared dangerous or potentially dangerous three weeks after the attack was relevant to whether the dog had dangerous propensities at the time of the attack. See Wright v. Dilbeck, 122 Ga. App. 214 (4) (176 SE2d 715) (1970). The expert’s testimony was therefore relevant, and most of appellee’s challenged testimony was relevant to explain why the expert’s report was made three weeks later rather than immediately after the attack. Accordingly, the trial court did not abuse its discretion in allowing this evidence.

On the other hand, the testimony of the police officer regarding the subsequent occurrence of the dog breaking loose and running into appellee’s yard was without legal relevance to any issue in the case and should have been excluded. The only logical purpose of such testimony was to raise the inference that if appellants were careless in their management of the dog on one occasion, they were probably careless on the occasion in question, and this inference is legally impermissible under OCGA § 24-2-2. However, the police officer’s testimony was extremely brief, as was appellee’s challenged testimony regarding the incident. As is discussed further in Division 2, appellee produced substantial evidence showing that the dog had dangerous propensities and that appellants knew of their dog’s dangerous propensities at the time of the attack. Moreover, the jury’s $30,000 award does not seem excessive in light of the evidence presented regarding the sériousness of appellee’s injuries; therefore, it does not appear the jury inflated the award because of the subsequent incident. Thus, in the context of the entire record, we conclude that the trial court’s failure to exclude this brief testimony was harmless. See Amax, Inc. v. Fletcher, 166 Ga. App. 789 (3) (305 SE2d 601) (1983); Brooks v. Steele, 139 Ga. App. 496 (1) (229 SE2d 3) (1976).

2. Appellants next contend that their motion for a directed verdict should have been granted. Denial of a motion for directed verdict must be affirmed if there is “any evidence” to support the verdict. Dunkin’ Donuts of America v. Gebar, Inc., 202 Ga. App. 450 (1c) (414 SE2d 683) (1992).

Specifically, appellants contend there was no evidence that appellants knew of their dog’s dangerous propensity to severely bite people. While they acknowledge the incidents with the ten-year-old girl, the bicyclist, and the other neighbor, appellants assert that they were without the requisite notice because these incidents were not sufficiently similar to the attack on appellee and were much less serious. “ ‘ “It is not enough . . . that the possessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts.” ’ [Cit.]” McCree, supra at 680. However, this does not mean an incident involving the exact same conduct and the exact same injury must actually occur before the owner’s knowledge may be inferred, as long as there is an incident or incidents “which would put a prudent man on notice to anticipate the event which occurred.” Marshall v. Person, 176 Ga. App. 542 (336 SE2d 380) (1985). Appellee presented evidence of three prior incidents in which appellants’ dog jumped up on people and attacked them with his mouth. This is the same type of conduct resulting in injury in this case. Although the attack in question was the first time the dog’s behavior resulted in serious injury, appellee’s evidence was more than sufficient to allow a jury to find that the dog’s established pattern of behavior should have put appellants on notice that their animal might cause injury by displaying such behavior towards another at a later date. See Evans-Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675) (1988). Thus, the motion for directed verdict was properly denied.

Decided June 15, 1993.

Barrow, Sims, Morrow & Lee, A. Mark Lee, for appellants.

Jones, Boykin & Associates, Harold J. Cronk, Robert K. Hardeman, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: Johnson, Judge. Blackburn, Judge,

text:
    A93A0525.
    FOSTER v. THE STATE.
    (432 SE2d 662)
   Johnson, Judge.

Edrick Foster appeals from his conviction of sale of cocaine. At his trial, the State presented evidence showing that Foster sold ten pieces of “crack” cocaine to an undercover police officer in Brooks County, Georgia. The State also presented evidence of a similar transaction. A police officer testified that on another occasion Foster arrived at a motel in Brooks County where the police were executing search warrants. Upon seeing the police, Foster fled and the officer saw him throw down two plastic bags containing a total of 41 pieces of crack cocaine. Foster’s sole argument on appeal is that the trial court erred in admitting this similar transaction evidence. “Evidence of similar crimes is admissible when its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” (Citations and punctuation omitted.) Mosley v. State, 203 Ga. App. 275 (1) (416 SE2d 736) (1992). Here, the officer identified Foster as the perpetrator of the independent crime. “On the question of similarity, the trial court’s findings will not be disturbed unless ‘clearly erroneous.’ [Cits.]” Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992). Based on the evidence presented, the trial court’s finding that the independent crime is similar to the crime charged is not clearly erroneous. The court did not err in admitting the similar transaction evidence.

Judgment affirmed.

Blackburn and Smith, JJ., concur. Blackburn, J., also concurs specially.

Blackburn, Judge,

concurring specially.

In upholding the admission of the evidence of the similar crime in this case, the majority opinion correctly notes that before such evidence is admissible, the state must show that the defendant was the perpetrator of the other offense, and that there is sufficient similarity between the independent crime and the offense charged so that proof of the former tends to prove the latter. However, “[i]t must also be emphasized that evidence of independent crimes is never admissible unless its relevancy to the issues on trial outweighs the prejudice it creates. [Cit.]” Brunson v. State, 207 Ga. App. 523 (428 SE2d 428) (1993). See generally Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991); Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991).

In charging the jury, the trial court emphasized that the evidence of the similar transaction was admitted only for the purpose of demonstrating the defendant’s state of mind. It is unclear from the record whether the trial court undertook to weigh the relevancy of the evidence against the prejudice created by it, as should have been done. However, we may not consider this enumerated error, because the appellant failed to object to the admission of the evidence.

“The very first time that appellant has ever urged that the State failed to meet its evidentiary burden [with regard to the admissibility of the evidence of a similar transaction] is in the brief that he filed with this court in support of the instant appeal. However, nothing in Stephens or Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. ... In the absence of such an objection, however, any discussion of Stephens or Williams in the instant case is inappropriate.” Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991).

Because of the appellant’s failure to object to the admission of the evidence of the independent crime in the trial court, the issue presents no ground for review on appeal.

Decided June 15, 1993.

David A. Parker, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.


text:
    A93A0589.
    ATKINS v. THE STATE.
    (432 SE2d 661)
   Cooper, Judge.

Appellant pled guilty to driving under the influence in violation of OCGA § 40-6-391 (a) (4), reserving his right to appeal the trial court’s denial of his motion to suppress.

Evidence presented at the hearing on the motion to suppress shows that Officer James Walker, while eating breakfast at a restaurant, noticed appellant leave and walk approximately 100 to 150 feet to his vehicle in the parking lot. Walker noticed that appellant was very unsteady and swaying, although he was not staggering to the point of falling down. Walker had been an officer for 18 years, had arrested 500 to 600 intoxicated drivers, and had extensive training in recognizing intoxicated drivers. Based on his training and experience, Walker suspected that appellant was under the influence of some intoxicant. Walker therefore left his breakfast and stopped appellant’s vehicle. During the one-quarter to one-half mile drive from the restaurant to the location where Walker caught up with appellant and stopped him, Walker did not notice anything unusual or illegal about appellant’s driving. After the stop, Walker observed that appellant smelled strongly of alcohol, that his speech was slightly slurred, and that he was still unsteady on his feet when he exited his vehicle at Walker’s request. Based on these observations as well as appellant’s behavior in the parking lot, Walker arrested appellant. Appellant was later given an intoximeter test which showed he was legally intoxicated.

In his sole enumeration of error, appellant contends that evidence regarding Walker’s observations after appellant was stopped as well as the results of the intoximeter test should have been suppressed because the stop was illegal. Essentially, he argues that in the absence of other indicators of intoxication such as boisterous behavior or unsafe driving, his unsteady walk across the parking lot alone could not give rise to the “articulable suspicion” necessary for a legal stop. We disagree. A police officer may legally “conduct a brief investigatory stop without a showing of probable cause where the officer observes unusual conduct which, when viewed in the light of his experience, causes him to conclude that the individual is involved in criminal activity. [Cit.]” Pullano v. State, 169 Ga. App. 377, 379 (312 SE2d 857) (1983). Appellant’s unsteady walk led Walker to suspect appellant was intoxicated; and when appellant drove off, it led Walker to conclude that appellant was engaged in the criminal offense of driving under the influence. This was not a situation in which an officer was arbitrarily harassing a motorist for no sensible reason, see Brooks v. State, 129 Ga. App. 109 (198 SE2d 892) (1973), or was using a minor traffic violation as a pretext to stop a motorist fitting a drug courier profile, see Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988). Rather, Walker stopped someone he reasonably suspected, based on his own observations, posed an immediate and significant danger to the public. Accordingly, the trial court did not err in denying appellant’s motion to suppress.

Decided June 15, 1993.

William H. Turner, Jr., for appellant.

Keith C. Martin, Solicitor, for appellee..

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0139.
    GORDON v. TITLE INSURANCE COMPANY OF MINNESOTA.
    (432 SE2d 672)
   Cooper, Judge.

This appeal arises out of a breach of contract action brought by appellee against Richard Gordon, an attorney, and Berthold & Gordon, P. C., Gordon’s professional corporation. The trial court granted appellee’s motion for summary judgment and Gordon, appellant herein, appeals.

In 1985, appellee entered into an agreement with Berthold & Gordon, P. C., wherein Berthold & Gordon, P. C. agreed to issue and deliver title insurance policies and collect premiums on behalf of appellee. The agreement also provided that Berthold & Gordon, P. C. would search and examine titles, or have titles searched or examined by approved attorneys, using the same care as if the titles were searched and examined for a client. As part of the agreement, Berthold & Gordon, P. C. agreed to be responsible for any losses occasioned by their negligence in examining a title or issuing an insurance policy.

In February 1986, Berthold & Gordon, P. C. issued a policy insuring a parcel of property. Several years later, it was discovered that a validly recorded deed to secure debt encumbered the property at the time that the policy was issued. The encumbrance did not appear as an exception to the policy issued by Berthold & Gordon, P. C. Appellee contacted appellant about the matter, and appellant admitted that the examination had been performed by a “non-lawyer” on his staff. Upon demand of the insured, appellee paid over $13,000 to extinguish the existing encumbrance and subsequently filed a complaint against appellant and his corporation. Appellee alleged in the complaint that Berthold & Gordon, P. C., breached its agreement by failing to search the title in accordance with generally accepted practices, failing to cause the title to be searched by an approved attorney and failing to enter the existing encumbrance as an exception on the insurance policy. Appellee further alleged that appellant was individually liable for the breaches of his professional corporation through which he was engaged in the practice of law. Appellee moved for summary judgment, and neither appellant nor his corporation responded. In granting appellee’s motion for summary judgment, the trial judge concluded that as an attorney and a principal shareholder in the professional corporation, appellant was jointly and severally liable to appellee.

1. Appellant contends in his first enumeration of error that since he was not a party to the contract between appellee and Berthold & Gordon, P. C., the trial court erred in finding him liable. We disagree. In First Bank & Trust Co. v. Zagoria, 250 Ga. 844 (302 SE2d 674) (1983), the Supreme Court of Georgia addressed the question of whether an attorney who is a shareholder in a professional corporation engaged in the practice of law can be personally liable for obligations of the professional corporation. The Court held that “when a lawyer holds himself out as a member of a law firm the lawyer will be liable not only for his own professional misdeeds but also for those of the other members of his firm.” Id. at 847. As further discussed in Division 2, the failures of appellant’s professional corporation, alleged and proven in this case, are of the type of “professional misdeeds” addressed in Zagoria. Accordingly, we find no merit to appellant’s argument that he is not liable for his corporation’s breach of the agreement.

2. Appellant’s argument in his second enumeration of error, that Zagoria is inapplicable because the present case involves an insurance agency agreement rather than a contract to provide legal representation, is similarly without merit. In addition to such non-legal services as issuing insurance binders or policies, collecting premiums and other service charges, the agreement clearly contemplated that Berthold & Gordon, P. C. would provide legal services in connection with the search and examination of titles and the issuance of legal opinions regarding the title. As noted in Zagoria, “[w]hen a client engages the services of a lawyer the client has the right to expect the fidelity of other members of the firm. It is inappropriate for the lawyer to be able to play hide-and-seek in the shadows and folds of the corporate veil and thus escape the responsibilities of professionalism.” Id. at 846.

Decided June 16, 1993.

Richard A. Gordon, pro se.

Dietrick, Evans, Scholz & Williams, Paul A. Dietrick, Tomlinson & Dennison, Jeffrey R. Joyce, for appellee.

3. In his brief, appellant makes assertions that suggest he is not a shareholder in Berthold & Gordon, P. C. In failing to respond to appellee’s motion for summary judgment, appellant did not raise this argument in the trial court. Moreover, even if the issue was appropriately raised, we will not address matters not enumerated as error but merely referred to in appellant’s brief. See Southern Trust Ins. Co. v. Ga. Farm Bureau Mut. Ins. Co., 194 Ga. App. 751 (5) (391 SE2d 793) (1990).

4. Appellee’s motion for the imposition of a penalty for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is denied. Appellant’s cross-motion for a frivolous appeal penalty, brought on the grounds that appellee’s motion for frivolous appeal penalty is without merit, is also denied.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0278.
    LIGHTSEY v. NALLEY EQUIPMENT LEASING, LTD.
    (432 SE2d 673)
   Cooper, Judge.

In this action for breach of a lease guaranty, appellant appeals from an order of the trial court denying his motion to dismiss for lack of personal jurisdiction and granting appellee’s motion for summary judgment.

South Carolina Express, Inc. (“SCE”), a now defunct corporation, leased six trucks from appellee. Appellant, president and sole shareholder of SCE, traveled to appellee’s offices in DeKalb County, Georgia to execute the lease agreement as well as a lease guaranty in which he personally guaranteed SCE’s obligation. The lease guaranty stated: “The Guarantor irrevocably consents that any legal action or proceeding against it under, arising out of or in any manner relating to this Guaranty may be brought in any court in Fulton or DeKalb County, Georgia. The Guarantor, by the execution and delivery of this Guaranty, expressly and irrevocably assents to and submits tp the personal jurisdiction of any such court in any such action or proceeding. . . . The Guarantor hereby expressly and irrevocably waives any claim or defense in any such action or proceeding based on any alleged lack of jurisdiction, improper venue or forum non conveniens or any similar basis.” The lease itself contained a similar provision consenting to jurisdiction in Fulton or DeKalb County, Georgia, in addition to a disclaimer of all warranties printed in large letters. Appellant also signed a document entitled “Equipment Acceptance Acknowledgement,” in which he stated that the trucks had been delivered in good condition and were unconditionally accepted. When SCE and appellant defaulted, appellee repossessed the trucks, sold them, and sued SCE and appellant in the Superior Court of DeKalb County for the deficiency between the amount owed on the lease agreement and the proceeds of the sale. Appellant asserted defenses based on lack of personal jurisdiction and failure of consideration. The trial court rejected these defenses and granted summary judgment for appellee. This appeal followed.

1. Appellant first argues that the trial court erred in denying his motion to dismiss for lack of jurisdiction because he is a resident of South Carolina and did not transact any business in Georgia. See OCGA § 9-10-91 (1). This argument is without merit. Although the extent to which the agreements were negotiated in Georgia is in dispute, it is undisputed that appellant came to Georgia to execute them, and the execution of the lease and guaranty agreements in Georgia alone is sufficient basis for personal jurisdiction under OCGA § 9-10-91 (1). See North Peachtree I-285 Properties, Ltd. v. Hicks, 136 Ga. App. 426 (1) (221 SE2d 607) (1975). Moreover, appellant clearly consented to jurisdiction in Fulton or DeKalb County and waived any alleged personal jurisdiction defense when he signed the lease and lease guaranty. Such contractual clauses providing advance consent to the jurisdiction of a court are valid and enforceable. Harbin Enterprises v. Sysco Corp., 195 Ga. App. 694 (1) (394 SE2d 618) (1990). Accordingly, the trial court did not err in denying appellant’s motion to dismiss.

2. Appellant further contends that the trial court erred in granting summary judgment for appellee. Specifically, appellant argues that a genuine issue of fact remains regarding his affirmative defense of failure of consideration due to the defective and substandard condition of the trucks. However, appellant executed a document stating that the trucks were delivered in good condition and that he unconditionally accepted them. This unconditional acceptance, together with the disclaimer of all express and implied warranties in the lease agreement, effectively negates the possibility of a failure of consideration defense. Thus, summary judgment for appellee was properly granted.

Decided June 16, 1993.

Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, for appellant.

Hines & Head, Thomas G. Whatley, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: Blackburn, Judge.

text:
    A93A0280.
    FLY v. KROGER COMPANY et al.
    (432 SE2d 664)
   Blackburn, Judge.

The appellant/plaintiff, Karen Fly, brought the instant defamation action against appellees/defendants, The Kroger Company (Kroger), her employer, and Faye Beckham, Robert Woods, Doug Spence, Carlton Meadows, Jr., and Becky Anderson, employees of Kroger, for the false and malicious publication of incriminating statements which indicated that she had tampered with certain price labels in order to shoplift the merchandise from the Kroger store where she was employed. After the commencement of discovery, the defendants moved for summary judgment, cogently asserting that any conversations made by Kroger and the named employees were not published. The trial court granted the defendants’ motion for summary judgment as the essential element of publication was lacking, and this appeal followed.

Construed in the light most favorable to Fly, the record reveals that on September 12, 1989, she worked in one of defendant Kroger’s stores from 5:00 a.m. until 2:00 p.m. After the completion of her shift, she remained on the store premises for the purpose of purchasing groceries. While shopping, Fly asked defendant Spence, a meat department employee, about the current price specials within the department. Based on Fly’s inquiry, defendant Spence gave Fly two steaks that were on sale at a reduced price per pound. Thereafter, Fly left the meat department with the steaks, and continued shopping in other areas of the store. She later returned to the meat department and discovered two round steaks that each had been reduced by 75 cents. Fly returned the steaks that had been given to her by defendant Spence to the meat bin, and instead selected the recently discovered round steaks. After purchasing her groceries, which included the two reduced round steaks, Fly left the store premises. Defendant Beckham, the cashier that assisted Fly with her purchases, and defendant Anderson, another employee, later questioned defendant Spence about the steaks that Fly had purchased. According to his affidavit submitted in support of the motion for summary judgment, he informed defendants Beckham and Anderson that there had not been any meat products on sale on that day. As a result of their concern about the possible improper markdown of the meats that Fly had purchased, defendants Beckham, Anderson and Spence reported the purchases to store manager Terry Millinger.

Upon her return to work the next day, Fly was taken upstairs to the manager’s office and questioned by store manager Millinger about her meat purchases. The union’s shop steward was present during this meeting along with defendants Wood and Meadows, who were also store managers. Defendants Spence, Anderson and Beckham averred in their affidavits that they likewise attended the grievance meeting and answered management’s questions about Fly’s meat purchases. Fly maintains that defendants Spence, Anderson, and Beckham were each individually requested by management to give their version of the incident outside of the presence of the other. Although the incident was discussed at the grievance meeting, defendants Beckham, Wood, Spence, Meadows, and Anderson, denied discussing the topic of the meeting with anyone outside of management, union officials, and the employees who had personal knowledge of the alleged improper purchases. Defendant Spence, however, admitted further discussing the incident with the police officers that investigated alleged threats that Fly had made against him. After the meeting of September 13, 1989, Fly was suspended from work and subsequently resigned. She admitted that she never returned to the store as a customer after September 12, 1989, and solely returned to the store to attend grievance meetings with management.

During her deposition, Fly could not provide the names of any individuals that she knew had discussed the accusations but she was aware of rumors circulating throughout the store indicating that she had stolen packages of meats. She merely speculated that the employees had been gossiping about her and in fact, no one had spoken to her about the incident. Fly did not know if defendants Beckham, Woods, or Anderson had discussed the markdown incident with anyone. Although she was aware that defendant Meadows had informed other employees to keep their eyes out for her, she was unaware of any discussions defendant Meadows may have had about the incident.

1. In enumerations 1 through 7 and enumeration 9, Fly contends that materia! issues of fact remain as to her slander claim and, accordingly, the trial court erred in summarily granting judgment in favor of the defendants. We disagree.

“ ‘Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law. . . .’ OCGA § 51-5-4 (a) (1). ‘Publication is indispensable to recover for slander. (Cit.)’ [Cit.] Generally, publication is accomplished by communication of the slander to anyone other than the person slandered. [Cit.] Over the years, however, an exception to the broad definition of publication has evolved: when the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/ her duty or authority has reason to receive information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander. [Cits.] The legal fiction that no publication has occurred when the above criteria are met is based on the sentiment that ‘(s)tatements by either in the hearing of the other concerning such matters are the legal equivalent of speaking only to one’s self. . . .’ [Cit.]” Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878) (1988).

In the case sub judice, those who heard the accusations made against Fly were managers, who had a duty and the authority to receive the information about her allegedly improper actions, and a union representative, whom she invited to the meeting and who was under a duty to be present as a representative of Fly’s union. Further, defendants Spence, Anderson, and Beckham, presented the allegations to management pursuant to defendant Kroger’s requirement that they report any dishonest acts of co-employees. It was appropriate for those individuals to attend the grievance meeting, which was held outside of the presence of the other employees, and where the allegations of theft were properly asserted in an investigatory manner. Although Fly contends that the assertions were maliciously made, “[w]hether the communication was made maliciously and with knowledge of falsity is immaterial when there has been no publication, for without publication there is no libel or slander. [Cits.]” Id. at 16. Fly further asserts that the communications between the defendants were not privileged. “However, before a plaintiff reaches the questions of conditional privilege and loss thereof, the plaintiff must prove the elements of the tort, including publication.” Id. It is undisputed that Fly has not demonstrated that any defamatory remarks were published to any individual outside of those individuals involved in the investigation of the allegations. Inasmuch as there was no publication, summary judgment in favor of the defendants was proper.

2. In enumeration 8, Fly further asserts that the trial court erred in determining that statements made by defendant Spence to police officers investigating her alleged threats against him were privileged. However, “[statements made in good faith pursuant to investigation by police or other officers authorized to investigate crime or criminal activity are made in the performance of a public duty and are privileged. [OCGA § 51-5-7 (1).] If such were not the case these officers would find it virtually impossible to ferret out the facts and prosecute those who have violated the criminal laws. It is difficult at best, but the law does not put roadblocks before those who may have information and prevent the communication of it to the officers. Indeed, it is made the duty of one having such information to report it to those in authority. [Cit.]” Hardaway v. Sherman Enterprises, 133 Ga. App. 181, 182 (210 SE2d 363) (1974). Although Fly asserts that the statements made by defendant Spence were not made in good faith, Fly has not “point[ed] to specific evidence giving rise to a triable issue” on defendant Spence’s lack of good faith in informing the investigating officers of the allegations that she shoplifted the merchandise. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Inasmuch as defendant Spence informed the officers of the incident which resulted in the threats made against him by Fly, and the information was disclosed in an effort to assist the officers with the investigation, this enumeration is without merit.

Decided June 16, 1993.

Manely & Silvo, Michael E. Manely, Lorraine R. Silvo, for appellant.

Smith, Gambrell & Russell, John T. Sparks, David A. Handley, for appellees.

3. We reject the arguments that Fly asserts in enumerations 10 and 11 that defendant Kroger was liable for its tortious misconduct as she was a customer-invitee. “The concept of ‘tortious misconduct’ thus denotes a limited exception to the applicability of the rule that a corporation may not be held liable for unauthorized, unratified slander by one of its agents.” Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 259 (3) (345 SE2d 924) (1986). Pretermitting the issue of Fly’s status at the time that she made her purchases, Fly has not shown that she was subjected to “abusive, opprobrious, insulting, or slanderous language by an agent of [defendant Kroger]. [Cits.]” Id. Accordingly, summary judgment in favor of defendant Kroger was proper.

Judgment affirmed.

Johnson and Smith, JJ., concur.

       Defendant Kroger’s store rules and regulations provide that it is the “duty and responsibility of every employee who has knowledge of a dishonest act to discuss it with the Management of the store or report it to the Security Department for further investigation.”

       It is a standard procedure at Kroger for the union steward to be present when management discusses a possible rule violation with an employee.


text:
    A93A0722.
    TALLEY v. THE STATE.
    (432 SE2d 667)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault with a sharp-edged object and appeals from the judgment of conviction and sentence entered, against him.

Viewed in a light to support the verdict, the evidence shows that as a bar was closing one Wednesday night and the last remaining patrons were slowly leaving, the victim, Steven Renwick, was talking in the parking lot with a friend and two young women. Renwick left a bag in the bar and decided to retrieve it. He approached the well-lit front doorway and saw a large man who appeared very intoxicated and a woman struggling to help him walk to the parking lot. When Renwick asked if they needed any assistance, the large man belligerently declined his help, yelling, cursing and asking Renwick if he wanted to fight. Renwick assured the man he did not want to fight and told the man he was drunk and should go home. The man continued yelling and cursing until the woman succeeded in pushing him toward the car. After the large man reached the passenger side of the car and started to get in, he turned, yelled again at Renwick to get his attention and started to walk back toward him. At this point, the large man’s tone was conciliatory as he told Renwick not to pay any attention to him; he was just drunk. The large man approached within a foot of Renwick and moved his hand as if to pat Renwick’s shoulder. After he touched Renwick, the large man’s face turned from conciliatory to threatening. The large man returned to his car and left, and Renwick felt a stinging sensation and noticed blood coming from his neck. Renwick realized at that point that he had been cut, although he had not seen anything in the large man’s hand. Renwick was able to describe his assailant and his friend noted the license number of the car the large man drove off in. Additionally, a bar employee said the large man who left with a woman about that time was a regular called “Talley Ho.” From this information, the attention of the police focused on appellant, and Renwick easily and quickly identified appellant from a six-photograph lineup eleven days after the incident. Renwick also identified appellant at trial as the large man who attacked him outside the bar.

1. Appellant first argues that the photographic lineup in which Renwick identified appellant as his attacker was impermissibly suggestive due to differences in hair color of the subjects and picture tone among the six photographs. However, at least three of the photos had subjects with dark brown hair like appellant’s, and three of the photos, including that of appellant, had a lighter tone than the other three. The six photos all showed men of approximately the same age, with the same shape of face, moustache and brown hair of approximately the same length. The officer conducting the lineup identification procedure made no suggestion to Renwick that the assailant was one of the six and said nothing to him other than to ask him to read the standard form affidavit and look at the photos. When Renwick looked at the photos, he identified appellant’s photo as that of his attacker within seconds. At trial, Renwick again identified appellant as the assailant. “Based on the evidence we find nothing which tainted the pretrial identification by photo spread, and nothing in that identification which would taint [the victim’s] in-court identification of appellant. . . . Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Cits.]” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988). Under these circumstances, we agree with the trial court that the photographic array was not impermissibly suggestive and there was no substantial likelihood of misidentification. Thus, the identification evidence was properly allowed. See Seibo, supra.

2. In two enumerations of error, appellant argues that the trial court erred in admitting evidence of a prior aggravated assault as a similar transaction. At a hearing held pursuant to Uniform Superior Court Rule 31.3 (B) and Williams v. State, 261 Ga. 640 (2b) (409 SE2d 649) (1991), Hiram Myhand, the victim of the prior assault, testified that while he was jogging on a wide, unpaved road ten years earlier, appellant intentionally ran his pickup truck into Myhand and then stopped. Appellant was laughing and appeared intoxicated. When Myhand noted the license tag number and told appellant he did not think the situation was funny, appellant emerged from the truck with a knife in his hand. Myhand started to back away, holding a knife he carried with him. One of the other occupants of the truck got out, and Myhand’s attention was diverted. Appellant then put his hand to Myhand’s neck, cutting it, after which he returned to his truck and left.

(a) Appellant contends the trial court erred in finding that the prior incident was sufficiently similar to the incident at issue in this case that proof of the former tended to prove the latter. Specifically, appellant points out that the prior incident occurred ten years earlier, during the day rather than at night and on a road rather than in a parking lot. Further, he notes that the victim in the prior offense, unlike Renwick, had a knife of his own. Appellant also contends that the incidents cannot be similar because a knife was seen in the earlier incident but the weapon was not identified in this case. However, the similarities far outweigh the differences enumerated by appellant. Both incidents involved an unprovoked attack by appellant against a stranger in a public place, and both occurred while appellant was intoxicated. Even if appellant did not attack Renwick with a knife like that used in the attack on Myhand, in each incident appellant used a sharp-edged object in his right hand to cut the left side of his victim’s neck, leaving very similar wounds in very similar locations. Appellant’s reliance on Lumpkin v. State, 205 Ga. App. 68 (2) (421 SE2d 100) (1992) is misplaced, as in that case the circumstances giving rise to the charged offense and the prior incidents as well as the nature of the wounds inflicted were dissimilar and the only similarity was the use of a knife. Accordingly, the trial court did not err in determining that the State satisfactorily showed that the prior incident was similar to the charged offense.

Decided June 16, 1993.

Fletcher W. Griffin III, for appellant.

Daniel J. Porter, District Attorney, C. Lane Graves, Assistant District Attorney, for appellee.

(b) Appellant also argues that the trial court did not make a proper finding regarding the purpose for which the prior incident evidence was admitted and failed to limit the jury’s use of this evidence. However, our reading of the record reveals that this is not the case. The trial court explicitly found that the evidence was admissible for the purpose of showing identity, state of mind, intent and course of conduct, all of which were at issue in this aggravated assault case. Moreover, the trial court twice instructed the jury that the evidence was not to be used for any other purpose. Appellant’s assertion that the prior incident was not sufficiently similar to the charged offense to serve the purpose of showing state of mind or course of conduct is without merit for the reasons already discussed above.

3. Lastly, appellant contends that the evidence against him was insufficient because the State failed to identify or produce the weapon allegedly used in the aggravated assault. “It is clear that even in the absence of the production or verbal description of the weapon used, evidence as to the nature, kind and location of the wounds inflicted by the assailant is sufficient to allow the jury to infer the character of the weapon. [Cits.]” Wade v. State, 157 Ga. App. 296, 297 (277 SE2d 292) (1981). Viewed in the' light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find appellant guilty of aggravated assault with a sharp-edged object beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1030.
    EVERHART v. THE STATE.
    (432 SE2d 670)
   McMurray, Presiding Judge.

Defendant Everhart appeals his conviction of the offenses of possession of cocaine with intent to distribute and of selling cocaine. Held:

1. Defendant enumerates as error the admission of evidence concerning his previous conviction for possession of cocaine with intent to distribute. The previous arrest and conviction occurred when police, who were observing defendant and a second individual on the street exchanging something for money, concluded that they had probably observed a drug transaction take place. When the police approached, the second individual successfully fled the scene while defendant was apprehended and 53 hits of crack cocaine packaged in clear plastic bags were found on his person.

In the present case, officers made a buy of crack cocaine through an intermediary who led them to an apartment, entered the apartment with a $20 bill which had been photocopied and the serial number recorded, and returned with a blue ziplock bag containing cocaine. When police entered the apartment and searched pursuant to the consent of the lessees they found a large sandwich bag containing 147 small blue ziplock bags of cocaine. This cache of cocaine provided the basis for the possession with intent to distribute cocaine charge against defendant.

“ ‘ “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Emphasis deleted.) (Cit.) “(B)efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” (Cit.)’ Aaron v. State, 195 Ga. App. 339 (1) (393 SE2d 698) (1990). ‘There is no requirement that . . . the “other transaction” must be identical in every aspect. “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .’ ” ’ (Cit.)” (Cit.)’ (Emphasis deleted.) Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991).” Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129).

Defendant does not dispute that he was the perpetrator of the earlier offense. However, defendant contends that there is not a sufficient similarity or logical connection between the earlier offense and the offenses presently at issue. We do not agree. While there are some changes in defendant’s marketing methodology, he apparently continues to be a retailer of small quantities of crack cocaine. In both the previous and present cases, an actual or suspected sale of contraband attracted the interest of law enforcement officers who found defendant in possession of large numbers of small packages of crack cocaine. The type of packaging and large number of individual packages in defendant’s possession in both incidents suggest a common scheme or course of conduct, and illustrated a bent of mind or intent to sell contraband. The trial court did not err in denying defendant’s motion in limine regarding the previous conviction. Howard v. State, 204 Ga. App. 882, 883 (1) (420 SE2d 811); Dobbs v. State, 204 Ga. App. 83, 85 (3) (418 SE2d 443).

2. When police entered the apartment involved in the case sub judice they found ten persons present, obtained permission of the lessees to conduct a search of the apartment, and found the contraband. Police then spoke to the lessees, who were seated in the living room of the apartment, confronting them with the contraband found in their apartment and asking them if they were aware of the presence of the cocaine in the apartment. Defendant, who was also seated in the room, then stood up and stated that, “it’s mine.”

At trial, defendant sought to exclude this statement and a Jackson-Denno (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing was held to consider this issue. Defendant enumerates as error the trial court’s admission of evidence concerning defendant’s admission.

Defendant contends that the statement was made in response to a custodial interrogation before he was advised of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436, 475-476 (86 SC 1602, 16 LE2d 694). There were five or six officers in the apartment during the search, assigned to both the conduct of the search and to detaining the occupants. Seven of the occupants, including defendant and the lessees, were detained in the living room. Defendant fit the description given by the intermediary of the person from whom he had received the cocaine.

Assuming that defendant was in custody, the fact remains that there was no question, interrogation, or statement of any kind directed to defendant which may be connected with his admission that the cocaine was his. While defendant argues that the police should have known that the question posed to the lessees was likely, under the existing circumstances, to elicit an incriminating response from defendant, such issues relating to whether the statement was the result of an interrogation or was volunteered is a factual determination. The trial court’s resolution of this factual issue adversely to defendant was not clearly erroneous, therefore will not be disturbed on appeal. Findley v. State, 251 Ga. 222, 225 (1) (304 SE2d 898).

Decided June 16, 1993.

John H. Tarpley, James A. Gelin, for appellant.

J. Tom Morgan III, District Attorney, Barbara B. Conroy, Gregory J. Giornelli, Stacy Y. Cole, Assistant District Attorneys, for appellee.

Such a spontaneous statement as made by defendant is not subject to exclusion under Miranda. Lolley v. State, 259 Ga. 605, 606 (2a) (385 SE2d 285); Eady v. State, 182 Ga. App. 293, 299 (8) (355 SE2d 778); DeLoach v. State, 175 Ga. App. 708, 710 (334 SE2d 35). See also Shoemaker v. State, 165 Ga. App. 124, 125 (2) (299 SE2d 414), involving a defendant who was a passenger in a car stopped by police and who responded to a question directed to the driver. This enumeration of error is without merit.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0212.
    THE STATE v. JOHNSON.
    (432 SE2d 580)
   Blackburn, Judge.

Appellee Johnson was arrested and charged with possession of a firearm during the commission of a crime, theft by retaining stolen property, trafficking cocaine, possession of a-firearm by a convicted felon, and obstruction. The state filed a petition for the revocation of Johnson’s probation. Prior to the hearing on the state’s petition, Johnson’s motion to suppress evidence was granted by the trial court. The trial court determined that the officer’s conduct at the scene in detaining Johnson, a passenger in a car pulled over for a traffic violation, was “not founded upon a reasonable suspicion” and “inappropriate because unnecessarily prolonged.” The state appeals the trial court’s ruling on Johnson’s motion to suppress.

On May 4, 1992, Officer Patrick of the Athens-Clarke County Police Department stopped a vehicle for an expired license tag. The vehicle did not immediately respond to the officer’s flashing blue lights, but eventually pulled onto the lawn of a residence in an area described as a “high crime area.” As the vehicle stopped, two passengers exited and began to walk away “at a fast stride.” One of those passengers, Troy Johnson, is the appellee. The driver remained in the vehicle. Officer Patrick ordered the passengers to come back to the car until he was finished with the traffic stop. The two passengers complied by returning to the vehicle. Johnson returned to the front passenger seat, although he had exited from the rear passenger door.

Officer Patrick then approached the vehicle and asked the driver for his license and proof of insurance. The driver did not have his driver’s license, but gave Officer Patrick his driver’s license number and an expired proof of insurance in another person’s name. Officer Patrick noted Johnson’s nervous behavior and recognized the driver as someone he had previously arrested for a concealed weapon. At this point, Officer Patrick saw a knife on the rear floorboard behind the driver’s seat. He asked the driver to exit the vehicle and conducted a pat-down search for weapons. Officer Patrick did not find any weapons on the driver, who returned to the vehicle. Officer Patrick then walked around to the passenger side of the vehicle. Upon doing so, he noticed the butt of a gun between the front passenger seat and the center console, next to Johnson. Officer Patrick then asked Johnson to step out for a pat-down search. Initially, Johnson would not comply; however, he eventually got out of the car. Officer Patrick immediately noticed a large bulge in Johnson’s back pocket. Johnson refused to cooperate during the pat-down search, and, at one point, tried to run away. Johnson was restrained by Officer Patrick with the assistance of another officer on the scene. During the struggle, Johnson took off his cap and attempted to throw it toward a crowd which had gathered to watch. A third officer retrieved the hat. In the hat, was a plastic bag which contained approximately 37.2 grams of cocaine. Thereafter, Johnson was arrested.

In his motion to suppress, Johnson asserted that Officer Patrick’s seizure of his person was unreasonable and without articulable suspicion. Johnson further argued that the pat-down search was unlawful and unjustified as the totality of the circumstances would not have led a reasonable person to conclude that such an intrusion was necessary. The trial court agreed and granted Johnson’s motion to suppress.

On appeal, the state argues that the trial court erred in finding that Officer Patrick’s detention of Johnson was unnecessarily prolonged and not founded upon reasonable suspicion. We agree.

It is undisputed that the initial stop of the vehicle was conducted with probable cause due to its operation with expired license tags. Officer Patrick testified that Johnson’s, immediate departure from the vehicle, “before the vehicle had stopped,” was suspicious. Even if the stop had been without probable cause, Officer Patrick could have stopped the “automobile and conduct[ed] a limited investigative inquiry of its occupants ... if he [had] reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation and punctuation omitted.) Mallarino v. State, 190 Ga. App. 398, 401 (379 SE2d 210) (1989). Officer Patrick’s detention of Johnson was not arbitrary or harassing. He had stopped the vehicle with probable cause and was immediately confronted with suspicious behavior of the two passengers who attempted to walk away into a “high crime area,” either of which could have been the owner of the subject vehicle, or the vehicle could have been stolen.

At this point, Officer Patrick’s detention of Johnson turned into a Terry-type stop. “Terry recognizes that it may be the essence of good police work to adopt an intermediate response. [Cit.] A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612) (1971). “The United States Supreme Court has adopted a' dual inquiry for evaluating the reasonableness of an investigative stop, to-wit: whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. The second part of this inquiry includes a consideration of the requirement for brevity. In assessing the effect of the length of the detention, it must be determined whether the police diligently pursued their investigation.” (Citations and punctuation omitted.) Mallarino, 190 Ga. App. at 401.

“Analyzing the facts of the present case in the light of these authorities, we find no evidence of arbitrary harassment or absence of the kind of suspicious conduct that justifies an investigative inquiry.” Brisbane v. State, 233 Ga. 339, 342 (211 SE2d 294) (1974). Upon the passengers’ re-entry into the vehicle, Officer Patrick approached the car and first asked the driver for his license and registration. Immediately thereafter, Officer Patrick observed the knife in the floorboard of the back seat. He also recognized the driver as someone he had previously arrested for carrying a concealed weapon. For Officer Patrick’s safety, he requested that the driver exit the vehicle for a pat-down search, and was authorized at that time to also search the passengers. Next, Officer Patrick noted Johnson’s continued nervous behavior. Thereafter, Officer Patrick saw the butt of a gun within Johnson’s reach between the console and the passenger seat. This additional information authorized a continuation of Johnson’s detention for a pat-down search for additional weapons and questioning regarding the presence of the gun. “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons.” (Citation and punctuation omitted.) Adams, 407 U. S. at 146.

Decided May 26, 1993 —

Reconsideration denied June 17, 1993 —

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellant.

Cook, Noell, Tolley & Wiggins, Morton M. Wiggins III, for appellee.

At each step in Officer Patrick’s investigation, he obtained information which justified the continued detention of the vehicle and its passengers. Furthermore, the investigation was conducted with apparent diligence. There was no evidence presented as to the longevity of the detention; however, the facts indicate a detention of only a few minutes.

“The officer was justified in conducting a limited search for weapons as there was a legitimate stop of the vehicle and subsequent facts disclosed that [Johnson] might be armed and dangerous. [Cits.]” Ammons v. State, 172 Ga. App. 235, 236 (322 SE2d 543) (1984) (involving the frisk of a passenger in a vehicle stopped for drag racing).

Judgment reversed.

Johnson and Smith, JJ., concur.

       It was later determined that the gun was a Ruger which had been stolen in 1990 from its owner in Jackson County.

       The bulge was later identified as a roll of United States currency totaling $1,998.

       In his brief on appeal, Johnson argues that he exited the vehicle because he had reached his destination; however, no evidence was presented that this was, in fact, the case. Furthermore, such a contention would not be sufficient when, as in the present case, the vehicle did not immediately respond to the officer’s flashing blue lights.


text:
    A93A0238.
    PAINO v. THE STATE.
    (432 SE2d 599)
   Smith, Judge.

With the assistance of retained counsel, appellant entered a negotiated plea of guilty to misdemeanor charges of criminal trespass and simple battery. After sentencing, he sought to withdraw those guilty pleas. Appellant appeals from the judgments of conviction and sentences entered by the trial court, enumerating as error the denial of his motion to withdraw his guilty pleas.

The record amply demonstrates that appellant’s guilty pleas were voluntarily and intelligently entered into in open court, with the assistance and advice of counsel. Stevens v. State, 202 Ga. App. 473 (1) (414 SE2d 702) (1992). See also Lopez v. State, 207 Ga. App. 554 (1) (428 SE2d 448) (1993). Compare Hamm v. State, 123 Ga. App. 10 (179 SE2d 272) (1970). His contentions that he did not authorize the entry of a guilty plea on his behalf, are contradicted by the record and are without merit. An accused, having participated in' the court’s inquiry into the voluntariness of a guilty plea and having approved “ ‘in the presence of the court while his attorney entered a plea of guilty in his behalf and the court acting thereon imposed the sentence, [is not permitted] to deny thereafter the authority of his attorney to enter the plea or to deny his approval of such action by his attorney. Had he had any objection, he should have made it known at the time and before the court acted thereon.’ [Cits.]” Smith v. Fuller, 223 Ga. 673, 675 (2) (157 SE2d 447) (1967). Whether to allow the withdrawal of a voluntary, intelligently entered guilty plea after the pronouncement of sentence remained within the sound legal discretion of the trial court. State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980). There was no abuse of that discretion in the instant case. Stevens v. State, supra at 474 (3).

Decided June 3, 1993 —

Reconsideration denied June 17, 1993 —

Michael J. Paino, pro se.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A93A0335.
    MORRIS v. McCLINTON.
    (434 SE2d 174)
   Pope, Chief Judge.

Plaintiff/appellant Ronald L. Morris filed suit on a note seeking to recover $15,000 plus interest allegedly owed to him by defendant? appellee Renee McClinton. After conducting a hearing, the trial court entered judgment in favor of defendant. Plaintiff appeals from the trial court’s denial of his motion for new trial.

1. The record does not support plaintiff’s contention that he was denied adequate representation by the attorney he employed to represent him in this case. The record reveals that plaintiff’s attorney complied with the requirements of Uniform Superior Court Rule 4.3 in seeking to withdraw as plaintiff’s counsel and that the trial court properly granted that motion. Thereafter, plaintiff elected to proceed pro se.

Decided May 10, 1993 —

Reconsideration denied June 17, 1993 —

Ronald L. Morris, pro se.

Slaughter & Virgin, Frank W. Virgin, for appellee.

2. There is nothing in the record to indicate that the trial court erred by failing to make a court reporter available to transcribe the proceedings in this case.

3. No transcript was submitted to this court of the proceedings below. We cannot determine the merit of plaintiff’s remaining enumerations of error without examining a transcript of the proceedings below.

4. Plaintiff’s request for remand to the State Court of Fulton County is denied.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.