author:
Beasley, Judge.
      Ruffin, Judge, Judge Harold R. Banke,

text:
    A97A0957.
    WILLIAMS et al. v. EMRO MARKETING COMPANY.
    (494 SE2d 218)
   Beasley, Judge.

Nathaniel Williams and his wife sued EMRO Marketing Company for injuries suffered when Williams allegedly slipped and fell on ice on the pavement at premises of a store owned by EMRO. EMRO moved for and was granted summary judgment on one issue alone. EMRO argued that Nathaniel Williams failed to present any evidence that ice was the cause in fact of his fall. The trial court granted the motion but did not explain its ruling.

1. We first consider what issues will be addressed on appeal. EMRO contends that the trial court granted summary judgment because Williams failed to present any facts to show that ice was the cause in fact of his fall. EMRO’s motion was based on that one point alone. In responding to a motion for summary judgment, a plaintiff need not address issues not raised in the motion or present his entire case. “Nothing in Lau’s Corp. [v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991)] places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present [his] entire case on all allegations in the complaint — even on issues not raised in the defendants’ motion. Indeed, until appellees pierce[ ] the allegations of [the] complaint on a particular issue, [plaintiff is] neither required to respond to the motion on that issue ([cits.]), nor required to produce evidence in support of his complaint on that issue. [Cits.] The issues that must be rebutted on motion for summary judgment are those raised by the motion.” Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995). Even though the Williamses contend there are issues of fact regarding whether EMRO had knowledge of the ice, Williams’ own knowledge of ice, and Williams’ own diligence, such issues were not before the trial court, were not decided, and need not be addressed on appeal. EMRO concedes that cause in fact is the only appropriate appellate issue.

2. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, supra.

“To recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of [the] injury.” Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). To avoid summary judgment, a plaintiff who alleges he slipped on a foreign substance must offer some evidence of a foreign substance on the ground where he slipped. Bradley v. Red Food Stores (Ga.), 179 Ga. App. 39, 40 (345 SE2d 127) (1986). See also, e.g., Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 167 (1) (424 SE2d 845) (1992) (plaintiff offered no proof that a puddle of pesticide was the source of the slickness on which she fell); Dickey v. J. C. Penney Co., 124 Ga. App. 852, 853 (186 SE2d 356) (1971) (plaintiff offered no proof of a foreign substance).

Viewed in favor of the non-movant plaintiffs, the evidence is that Williams was on his way to work on February 19, 1993, when he stopped for gas at a store operated by EMRO. He first paid in the store and then returned along the same route to pump gas. On his return, he slipped and fell, injuring his knee and other parts of his body. He never saw what he slipped on and he never saw any ice, and his clothes were not wet from ice or water. He stated in an affidavit, “I didn’t personally witness on February 19, 1993 exactly what substance caused me to fall. . . .” No other person directly witnessed Williams’ fall.

It had rained the day before, the temperature overnight had reached about 20 degrees, and water from the canopy over the gas pumps had flowed out of the down spout onto the pavement near the gas pump at which Williams had parked his car. When it rains, water drips from that down spout and collects on the ground. At the time of the fall, the temperature was still at or below freezing.

Although EMRO contends that no evidence showed Williams slipped on ice, another customer, Gregory Perkins, swore by affidavit that after he offered to help Williams, “I then took his arm and assisted him from the iced area.” He also stated that he picked up a large piece of ice, which he believed was part of the ice Williams slipped on. Perkins was a regular customer and had previously seen water dripping from a down spout near the pump where Williams fell. After the fall he noticed “[t]he water had drained from a down spout and collected on the ground below and frozen.” Perkins also noted “ice cubes hanging down, directly over where [Williams] had fallen.” Williams recalls the sensation of a slick surface beneath his feet as his feet flew out from under him.

Circumstantial evidence which raises a reasonable inference of the cause of the fall, unrebutted by positive evidence, is sufficient to survive summary judgment. Shepherd v. Holmes, 184 Ga. App. 648, 649 (2) (362 SE2d 396) (1987). In Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987), there was no evidence of any foreign substance, even after inspection, unlike here where Williams was lying in the “iced area.” Further, Williams’ own testimony is not positive evidence of no ice which therefore rebuts the circumstantial evidence of ice as a cause. He testified only that he never saw ice, not that he inspected and found no ice as in Kenny. Indeed, he was somewhat disoriented by the fall.

Giving the non-movant the benefit of all inferences, this evidence would tend to support a finding of fact that Williams slipped on the ice upon which he lay. Although Williams may have slipped on something else and landed on the ice, his location on ice after the fall, together with the fact that a witness saw ice where Williams fell, is some evidence of what caused his fall. Williams’ own lack of knowledge of the substance on which he slipped is not dispositive. A person who is injured may become unconscious or disoriented by the fall and be unable or unconcerned then to investigate what he slipped on. That does not prevent other evidence on the issue.

Judgment reversed.

McMurray, P. J, and Eldridge, J., concur. Ruffin, J., concurs specially. Andrews, C. J., Birdsong, P. J., and Senior Appellate Judge Harold R. Banke dissent.

Ruffin, Judge,

concurring specially.

Once again this Court enters the bottomless and ugly abyss of “slip and fall.” It is as though we have encountered a slippery slope and cannot regain our proper footing. Our decisions in this area oftentimes raise more questions than they settle, or more graphically, they cause a thirst which they cannot quench; they spawn a hunger which they cannot satisfy. A review of our past decisions offers neither retrospective understanding nor current comfort.

Summary judgment, once thought to be the cure, is now the disease. It is now a problem masquerading as a solution. But it is not the fault of our trial judges; it is not that trial judges have not caught up with our instructions; and it is not that trial judges have exceeded our instructions. Rather, the infirmity is in our instructions. But one instruction is quite clear to the trial judges in slip and fall cases on a motion for summary judgment:

You can and you can’t,

You shall and you shan’t,

You will and you won’t,

You’ll be damned if you do,

And you’ll be damned if you don’t.

The issue of whether an owner has breached a duty of care is generally to be decided by a jury. Lau’s Corp v. Haskins, 261 Ga. 491, 493 (2) (405 SE2d 474) (1991). Summary judgment is appropriate only when the court, (1) viewing all the facts, (2) and the reasonable inferences from those facts, (3) in a light most favorable to the non-moving party, (4) concludes that the evidence does not create a triable issue as to any essential element of the case. Id. at 495. It is only in “plain and palpable cases where ‘reasonable minds cannot differ as to the conclusion to be reached’ ” that the court may decide such an issue without a jury. (Citation omitted.) Id. at 493 (2).

That principle is good law, succinctly stated, but is apparently difficult to apply. The facts in the instant case, and our inability to form a consensus as to the propriety of summary judgment, demonstrate precisely why the issue at hand should be decided by a jury. The critical question here is, “what substance caused Williams to slip and fall?”

1. Not surprisingly, the facts are not in dispute. It rained the day before Williams’ fall. Rainwater from the canopy over the gasoline pumps flowed out of a down spout and onto the paved surface where Williams fell. The temperature overnight reached about 20 degrees. Williams slipped and fell, never actually seeing any ice, but recalling the sensation of a slick surface beneath his feet. Following his fall, Williams did not notice that his clothes were wet. Although Williams did not know the outside temperature when he fell, the person who assisted him noted icicles hanging above Williams and stated that he assisted him from the iced area.

2. We must construe in Williams’ favor all the reasonable inferences from these facts. Id. A jury could reasonably infer that the rainwater from the previous evening flowed out the downspout onto the ground where Williams was standing and, like the water turned to icicles on the canopy, froze to form a slick icy surface. Williams slipped on this ice, accounting for his recollection of a slick surface and the evidence showing he was assisted from an iced area. Williams’ clothes were not wet because, like the ice on the canopy, the ice where he fell had not melted sufficiently to form water which could cause his clothes to become wet.

3. We must view the foregoing facts and inferences in a light most favorable to Williams. Clearly, as pointed out by the dissent, there are numerous other substances on which Williams might have slipped. But by speculating that Williams did in fact slip on some other substance, the dissent does not view the evidence and the reasonable inferences in Williams’ favor, as required on a motion for summary judgment.

4. Contrary to the findings of the dissent, the majority has not relied on speculation or shifted the burden from Williams to show what caused him to slip. Rather, the majority, pursuant to Lau’s Corp., has relied on the reasonable inferences discussed in Division 2 of this special concurrence, in a light most favorable to Williams as stated in Division 3.

Furthermore, it is not the majority that has shifted the burden; rather, it is the dissent. The majority has properly found that summary judgment was inappropriate because there remained a fact question to be resolved by a jury. Contrary to the dissent’s position, Williams, as the respondent, was not required to point to evidence “demanding] a conclusion that ice caused [his] slip and fall.” Williams was required only to “point to specific evidence giving rise to a triable issue.” Id. at 491. This Williams did.

As is evidenced by the differing minds of the judges of this Court, the facts before us concerning the substance on which Williams slipped are not plain and palpable. See id. at 493. Reasonable minds have differed as to the conclusion to be reached. See id. Thus, this is not a case where the court may decide the issue without a jury. See id. Accordingly, I concur with the majority.

Judge Harold R. Banke,

dissenting.

Because Williams failed to present any probative admissible evidence as to what caused his unwitnessed fall, I dissent. Before this case, it was a well-established principle of Georgia tort law that proof of the occurrence of a fall is not sufficient to establish negligence or give rise to liability. “Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.” (Punctuation omitted.) Hall v. Cracker Barrel Old Country Store, 223 Ga. App. 88, 91 (1) (476 SE2d 789) (1996); Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550) (1994). See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). Without some proof of what caused his fall, Williams’ recovery was precluded. Id. at 625; McGauley v. Piggly-Wiggly Southern, 170 Ga. App. 851, 852 (319 SE2d 15) (1984).

Williams could not and did not testify that he slipped on ice. In fact, repeatedly during his deposition, Williams denied ever seeing any ice before or after he fell. He further testified that he did not notice that his clothes were wet from rain or ice. Nor did Williams offer testimony from anyone else who saw him slip and fall on ice. Although ice may well have been present in the area where he fell, Williams could just as easily have slipped on oil, grease, or some other substance commonly found at a gasoline station like this one. In fact, the majority apparently concedes that something other than ice may have caused the fall.

Moreover, Williams’ affidavit testimony that at the time of the incident the temperature was at or below freezing is contradicted by his deposition testimony where he flatly denies knowing the outside temperature or knowing that it was below freezing. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) (unexplained inconsistencies in testimony must be construed against an equivocator).

Notwithstanding the majority’s contention to the contrary, inferring that Williams slipped on ice is not warranted in light of Williams’ positive and unrebutted testimony that he did not know what caused his fall. Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987). Compare Shepherd v. Holmes, 184 Ga. App. 648, 649 (2) (362 SE2d 396) (1987). As in Kenny, supra, Williams did not see any substance, feel any substance, experience any substance on his clothing, and did not inspect the ground after his fall, all of which “leads inescapably to the conclusion that only a fall [of unknown origin] was involved.” Id. at 226. Thus, the circumstantial evidence, in view of Williams’ unrefuted testimony, does not demand a conclusion that ice caused the slip and fall.

Georgia courts have consistently held that speculation and conjecture as to the causation of an injury are legally insufficient. McGauley, 170 Ga. App. at 852 (defendant entitled to summary judgment in light of silent record as to why or how appellant slipped or upon what); see Alterman Foods, 246 Ga. at 625. The majority’s concession that ‘Williams may have slipped on something else and landed on the ice,” confirms that Williams failed to sustain his evi-dentiary burden.

Decided October 29, 1997

Reconsideration denied November 19, 1997

C. Victor Long, for appellants.

Carr, Tabh & Pope, Jan R. Kastanakis, Render C. Freeman, for appellee.

By allowing Williams to survive EMRO’s summary judgment motion without presenting probative evidence as to what caused his fall, the majority has rewritten the essential elements of tort law. Formerly, a prima facie case required a duty, breach of that duty, “a reasonably close . . . connection between the conduct and the resulting injury,” and actual damages. Prosser & Keeton on The Law of Torts, pp. 164-165, § 30 (5th ed.). Now, according to the majority, the revised elements are: I came, I slipped, I fell on what I cannot say, now pay me for my injuries. This reconfiguration of what a slip and fall plaintiff must prove is fundamentally unfair to defendants, like EMRO here, because it subtly shifts the burden of proof from plaintiffs to show evidence of the presence of a foreign substance/dangerous condition onto defendants to prove that their premises were “reasonably safe” from some unspecified, unknown danger. See OCGA § 51-3-1.

Despite the absence of evidence of causation, the majority has implicitly presumed that because a customer fell in a parking lot, that, EMRO, the proprietor, had somehow been negligent. See Perkins v. Peachtree Doors, 196 Ga. App. 878, 879 (397 SE2d 54) (1990) (physical precedent only). The majority’s holding essentially makes EMRO an insurer of its customer’s safety, a position unsupported by Georgia law. Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). Because the record demonstrates that EMRO successfully pierced Williams’ prima facie case by showing the absence of the essential element of causation, EMRO was entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) (1993). For these reasons, I must respectfully dissent.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

       Lorenzo Dow (1777-1834), revivalist preacher denouncing orthodox Calvinism.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A1416.
    HODGES v. THE STATE.
    (494 SE2d 223)
   Smith, Judge.

Terrell A. Hodges and a codefendant, Eddie Lee Pickett, were indicted by a Fulton County grand jury on charges of murder, robbery, felony murder, and aggravated assault. The jury convicted both Hodges and Pickett of aggravated assault but acquitted them of all remaining charges. Hodges appeals from the judgment of conviction and sentence, asserting error in the limitation of his cross-examination of a witness and in the admission of an unredacted portion of Pickett’s statement in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). We affirm.

1. Russell, an eyewitness to the fatal beating inflicted on the victim, testified on behalf of the prosecution and implicated Hodges and his codefendant. Hodges sought to impeach Russell by proof of his prior conviction for armed robbery and was allowed to introduce a certified copy of Russell’s conviction for that purpose. But Hodges also asserts that he should have been allowed to go into the underlying details of the armed robbery offense for impeachment purposes. We disagree.

Once a witness is impeached by tendering certified copies of a previous conviction for a crime involving moral turpitude, counsel may not go further by attempting to elicit details of the underlying offenses and thus “bolster” the impeachment evidence. “Inasmuch as the witness had already been impeached, and [he] did not attempt to rehabilitate [his] character by explaining the circumstances of [his] convictions (cit.), the facts surrounding the . . . conviction should have been excluded. [Cits.]” Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994).

Hodges relies upon Henderson v. State, 255 Ga. 687 (341 SE2d 439) (1986), and Walker v. State, 260 Ga. 737 (399 SE2d 199) (1991) for the proposition that further cross-examination on Russell’s conviction should have been permitted. But in Henderson, the appellant’s sole defense was that the State’s witness committed the crime for which he was on trial. The defendant contended that the witness murdered the victim in order to prevent her from reporting the witness’s “illegal drug activities.” Henderson, supra at 689 (1). The Supreme Court held that Henderson should have been allowed to introduce evidence that the witness was “ ‘in the business of selling cocaine’ ” because it tended to corroborate his sole defense and thus exonerate him. Id. Similarly, in Walker the defendant sought to introduce evidence that another individual had confessed to the same crime. Walker, supra at 738.

But in both those cases, “there was direct evidence of the other person’s involvement in the crime: in Walker, a confession by the other person, later recanted; and in Henderson, the defendant’s testimony that the other person committed the crime.” Guess v. State, 264 Ga. 335, 337 (5) (443 SE2d 477) (1994). Hodges contended during pretrial motions that his sole defense would be that Russell committed the crime. At trial, however, Hodges acknowledged that he struck and kicked the victim, and the only testimony regarding Russell’s participation was that Hodges was “not for sure” whether Russell ever struck or kicked the victim.

Moreover, Henderson and Walker involved attempts to show that the witness was guilty of the crime for which the defendant was on trial, not that he was guilty of other, wholly unrelated crimes. Hodges does not point to direct evidence that Russell committed this crime in his stead. He is simply contending that, because Russell denied his participation in an unrelated crime, he also could have lied in this case. Henderson and Walker are simply inapplicable here.

Hodges also contends that he should have been allowed to impeach Russell by showing a “similar transaction” under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). But Williams concerns only the introduction by the State of evidence of certain independent offenses or acts committed by a defendant, when those offenses are shown to be sufficiently similar to the offense for which the defendant is on trial.

“Except as specifically allowed by law, evidence of a witness’ conduct in other transactions, criminal or otherwise, having no logical connection with the subject matter of his testimony, is inadmissible.” (Citations and punctuation omitted.) Woods v. State, 210 Ga. App. 172 (435 SE2d 464) (1993). Hodges has not provided any authority for the application of Williams to this case, and we have found none.

Hodges also contends that he should have been permitted to introduce the details of Russell’s armed robbery under the authority of Smith v. State, 259 Ga. 135, 137 (377 SE2d 158) (1989), which allows the defense to introduce evidence of prior false accusations of sexual misconduct by the victim in a sex crime case. Smith also is inapplicable; Hodges was not charged with any sexual offense. Lowery v. State, 209 Ga. App. 5, 7 (3) (432 SE2d 576) (1993). See also Jones v. State, 226 Ga. App. 420, 422 (1) (487 SE2d 56) (1997).

Nor has Hodges demonstrated a reasonable probability that

Russell has falsely accused others in the past. While the police report of the other incident shows that Russell initially denied involvement in the robbery, it does not demonstrate that he falsely accused others. The reports and witness statements point to the participation of all the accused individuals in the robbery, and Hodges failed to show that the men accused by Russell were exonerated. This completely fails to satisfy the requirements of Smith. See generally Chambers v. State, 213 Ga. App. 284, 285 (1) (b) (444 SE2d 833) (1994).

“The right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Citations and punctuation omitted.) Green v. State, 221 Ga. App. 436, 437 (472 SE2d 1) (1996). Hodges’s contentions go not to Russell’s motive to commit the crime for which Hodges was tried, but purely to Russell’s credibility and character. Moreover, he has shown no applicable exception to the well established rule that impeachment for conviction of a crime involving moral turpitude is limited to introduction of a certified copy of the conviction.

2. As the trial began, Pickett’s counsel asked for and obtained a redaction of Hodges’s statement implicating his client. Hodges’s counsel then asked if the redaction of Pickett’s statement implicating his client could be discussed, and the trial court stated that the matter would be taken up after jury selection. But when the trial court later asked if counsel had any motions, Hodges’s counsel made several other motions but did not discuss redaction of Pickett’s statement. During the State’s evidence, a police officer began to read Pickett’s statement: “I came out the door, and that’s when I saw Terrell and another dude. Terrell was standing up over the dude, and the dude was on the ground.” At this point, Hodges’s counsel objected and moved for a mistrial. The trial court noted that no motion for redaction was ever made and denied the motion for mistrial.

Hodges’s codefendant, Pickett, did not testify or present any evidence. Hodges’s name accordingly should have been redacted from Pickett’s statement under the rule established in Bruton v. United States, supra. “OCGA § 24-3-52 provides: ‘The confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.’ Every defendant has the right under the Sixth Amendment to be confronted with the witnesses against him. Bruton . . . holds that the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand. The result is that the accusing co-defendant cannot be cross-examined by the non-confessing co-defendant. [Cits.]” (Punctuation omitted.) Sawyer v. State, 217 Ga. App. 406, 407-408 (457 SE2d 685) (1995). Even in the absence of a timely objection such a statement by a confessing co-defendant has no probative value. Id. at 408-409.

Decided November 4, 1997

Reconsideration denied November 19, 1997.

August F. Siemon III, for appellant.

Paul L. Howard, Jr., District Attorney, Paul J. Coburn, Gina C. Marshall, Assistant District Attorneys, for appellee.

But the United States Supreme Court has also held that such error may be rendered harmless by the introduction of so-called “interlocking confessions.” Id. at 408. “[T]here is no Bruton violation when the testimony presented in the co-defendant’s confession is supported by the complaining defendant’s own statement.” (Citations and punctuation omitted.) Kesler v. State, 215 Ga. App. 553, 555 (1) (451 SE2d 496) (1994). To the extent that Pickett’s statement incriminated Hodges by placing him at the scene of the crime “standing up over” the victim, it was simply duplicative of Hodges’s own and far more incriminating admissions in his statement to the police and at trial that he struck and kicked the victim, as well as his statements to several witnesses that he “didn’t mean to kill him.” Any error in the admission of Pickett’s unredacted statement therefore was harmless.

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.

       The trial court directed a verdict of acquittal in favor of Pickett on the robbery charge.

       Even if the holding in Williams were drastically expanded to apply to the cross-examination of a witness, we agree with the trial court that a sidewalk brawl culminating in a fatal beating has little if any similarity to a rooming house break-in and armed robbery by means of a pistol.


author: Pope, Presiding Judge.

text:
    A97A0895.
    SPRAUVE v. THE STATE.
    (494 SE2d 294)
   Pope, Presiding Judge.

Defendant Deron Sprauve was convicted of trafficking in cocaine. On appeal he argues the trial court erred in denying his motion to suppress, asserting three enumerations of error.

The evidence shows that defendant was stopped by Drug Enforcement Administration agents at Hartsfield International Airport after they received information from a St. Thomas agent that the defendant appeared to have suspicious bulges around his ankles and that his walk was unusual. The local agents were waiting for defendant when he debarked and observed his walk to the luggage carousel. The officers testified defendant’s walk was “deliberate . . . stiff legged ... it wasn’t a natural walk.” The agents approached defendant and asked if they could talk to him. Defendant responded affirmatively. One of the agents asked to look at defendant’s airline ticket, and the defendant allowed the agent to look at his ticket. The officer testified that defendant appeared nervous and that his hands started to shake and he appeared to have difficulty breathing. Defendant gave the officers contradictory explanations of why he was visiting Atlanta, first stating he was in Atlanta to look for a job and later stating he was in Atlanta to visit friends.

Testimony was also presented that while one of the officers was questioning the defendant, the other officer was attempting to look at defendant’s ankles, but that defendant appeared to keep turning away from the officer so as to prevent him from seeing the inside of his leg. The officer testified that he eventually was able to observe an “unusual bulge” on the lower, inside area between defendant’s calf and ankle. The agent asked defendant about the bulge, and the defendant told the agents that it was “nothing.” Defendant also refused the agents’ request to search his person or his smaller bag, but gave the agents permission to search his bigger bag.

At this point, the agents informed defendant they were detaining him and his bags while a drug detector dog was brought in, but they did not place defendant under arrest. Testimony was presented that the officers had been talking to defendant for about ten or fifteen minutes at this point, and that approximately another fifteen minutes elapsed until the drug dog arrived. The drug detector dog “alerted” to the presence of drugs on defendant’s person and in the smaller bag. Defendant was read his rights and was informed that he would be detained while officers obtained a search warrant. Defendant was searched after officers at the scene received information that the warrant had been obtained. A bag of what was subsequently identified as cocaine was discovered on the inside of both defendant’s ankles, and another bag of cocaine was found in defendant’s small bag. Defendant was then placed under arrest. About three hours had elapsed between the initial interview and the time the search warrant was obtained.

1. We find no merit to defendant’s contention that he was detained without probable cause. Defendant argues that although the agents had a right to conduct a brief investigatory stop, they improperly detained him without probable cause by immediately retaining his airline ticket. But the record is unclear about whether the agents returned or retained defendant’s ticket when they first began to question him. The trial court found that defendant was not detained until after he had been questioned by the agents. On appeal of a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.’ (Citations and punctuation omitted.) [Cit.]” State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996). See also Mixon v. State, 184 Ga. App. 623, 624 (362 SE2d 111) (1987).

Moreover, we agree with the State that the agents, prior to questioning defendant, had enough information from the St. Thomas agent and their own observations to form a reasonable suspicion of criminal activity necessary to detain the defendant. See Morris v. State, 220 Ga. App. 818, 819-820 (470 SE2d 458) (1996) (physical precedent only), cert. denied, 220 Ga. App. 914 (1996). This enumeration is without merit.

2. We have examined defendant’s second enumeration of error in which he asserts that he was detained an unreasonable amount of time until the drug detector dog arrived and also find it to be without merit. See, e.g., Roundtree v. State, 213 Ga. App. 793, 794 (446 SE2d 204) (1994). Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) recognizes that both an “investigative stop” and an arrest are “seizures” of the person and thus subject to the Fourth Amendment’s general proscription against unreasonable searches and seizures. “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16. But the court recognizes that an investigative stop is not the same degree of seizure as an arrest, which must comply with the “warrant procedure and the requirement of probable cause.” Id. at 20, 26.

“Certain constraints on personal liberty that constitute ‘seizures’ for purposes of the Fourth Amendment may nonetheless be justified even though there is no showing of‘probable cause’ if‘there is articulable suspicion that a person has committed or is about to commit a crime.’ Such a temporary detention for questioning in the case of an airport search is reviewed under the lesser standard enunciated in Terry v. Ohio, [supra], and is permissible because of the ‘public interest involved in the suppression of illegal transactions in drugs or of any other serious crime.’ ” (Citations omitted.) Florida v. Rodriquez, 469 U. S. 1, 5 (105 SC 308, 83 LE2d 165) (1984). “A law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene who tries to leave before the preliminary investigation is completed.” (Citations and punctuation omitted.) Daugherty v. State, 182 Ga. App. 730, 731 (356 SE2d 902) (1987).

The period of the temporary detention was reasonable considering its length, the purpose and the practicality of summoning the dog. The officers did not unnecessarily prolong the traveler’s detention. See United States v. Sharpe, 470 U. S. 675 (105 SC 1568, 84 LE2d 605) (1985) (20-minute necessary delay while agent diligently pursued investigation was not an unreasonable seizure). As repeated in In the Interest of J. L. G., 209 Ga. App. 565, 566 (434 SE2d 126) (1993): “(R)easonable suspicion of criminal activity warrants a tern-porary seizure for the purpose of questioning limited to the purpose of the stop.” (Citations and punctuation omitted.) In sum, the officers did not detain defendant for an unreasonable length of time while awaiting the arrival of the drug detector dog.

Decided November 19, 1997.

Emmett J. Arnold IV, for appellant.

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

3. Lastly, defendant argues his motion to suppress should have been granted because the arresting officers failed to leave him a copy of the search warrant as required by OCGA § 17-5-25. That section provides, in relevant part, that when a warrant is executed, a “duplicate copy shall be left with any person from whom any instruments, articles, or things are seized.” The evidence here shows that the warrant had been issued but was not in the physical custody of the executing officers at the time of the search, and that a copy of the warrant was subsequently placed with defendant’s personal belongings at the jail following his arrest. The record is unclear as to whether defendant was actually handed a copy of the warrant or whether it was merely placed with his belongings. The trial court found that leaving a copy of the warrant was a ministerial act, not determinative of the motion to suppress.

We need not decide whether failure to give defendant a copy of the search warrant was a “technical irregularity” not requiring suppression of the evidence. OCGA § 17-5-31. Once the drug detector dog alerted to the contraband and the drugs were discovered on defendant’s person and in his bag, a warrantless search was justified. State of Ga. v. Montford, 217 Ga. App. 339, 341 (457 SE2d 229) (1995). Defendant’s final enumeration of error is without merit.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs in judgment only.


text:
    A97A1362.
    In the Interest of C. I. W., a child.
    (494 SE2d 291)
   Smith, Judge.

The mother of C. I. W. appeals from the order of the juvenile court denying her motion for new trial after her parental rights were terminated. Because we conclude that the appeal was timely and that the termination proceedings did not comply with the requirements of the applicable statutes and did not afford C. I. W.’s mother due process of law, we reverse.

The record shows that C. I. W. was born out of wedlock on February 21, 1990. With the consent of his mother, he has resided continuously with his maternal grandfather and the grandfather’s wife since he was almost ten months old. In 1992, the grandparents filed a petition in the Superior Court of Putnam County, seeking to adopt C. I. W. The superior court found that although C. I. W.’s mother vis: ited with him and maintained communication with him, she had proved to be “extremely unstable” and was unable to care adequately for or provide a proper home for C. I. W. The court found that C. I. W.’s father had maintained no contact with him and had not supported him. In an order entered February 9, 1993, in the Superior Court and bearing the adoption case number, the court denied the petition for adoption, but “sua sponte exercise[d] its jurisdiction and authority as the Juvenile Court Judge of Putnam County” and found by clear and convincing evidence that “at the time [C. I. W] was given to petitioners by his mother, . . . this child was deprived.” The court terminated the rights of C. I. W.’s father but declined to terminate the parental rights of C. I. W.’s mother, and it awarded temporary custody to the grandparents for two years, during which time the mother would have visitation and was required to pay child support.

On October 25, 1994, the grandparents filed a verified pleading in the Juvenile Court of Putnam County captioned “Motion for Extension of Juvenile Court Order.” In their motion, the grandparents sought to extend their custody for an additional two-year period. C. I. W.’s mother signed an “Acknowledgement of Service,” which was attached to the “Motion,” acknowledging receipt of a copy of the “Complaint, Summons, and Order thereon.” Some time thereafter, C. I. W.’s mother obtained legal representation.

On January 25, 1996, the grandparents filed a verified pleading captioned “Amendment to Petition,” in which they sought the termination of C. I. W.’s mother’s parental rights. This pleading was mailed to her attorney. On January 25, 1996, C. I. W.’s mother’s attorney notified her of his intent to withdraw, and he was permitted to withdraw from representation on February 16, 1996. C. I. W.’s mother did not appear at the hearing on the “Amended Petition,” and her rights were terminated by order of the juvenile court signed on April 4, 1996, “nunc pro tunc as of March 26, 1996,” and entered on April 10, 1996.

On April 19, 1996, present counsel filed several motions on behalf of C. I. W.’s mother, including a motion to dismiss for lack of subject matter jurisdiction and lack of jurisdiction over her person, and a motion for reconsideration of judgment and/or motion for new trial in the alternative. These motions were all denied in an order entered July 23, 1996, and this appeal ensued.

1. The grandparents have filed a motion to dismiss the appeal. They contend that none of the post-judgment motions filed tolled the period during which an appeal could be filed. They argue that although the filing of a motion for new trial will generally extend the time for filing an appeal, it did not do so in this case because the issues raised on appeal show that the motion was one for reconsideration, which does not extend the time for filing an appeal. We do not agree.

The grandparents are correct, of course, that in determining the nature of the motions filed, the nomenclature applied to the motions does not control; their substance dictates how they are viewed. Ghrist v. Fricks, 219 Ga. App. 415, 421 (2) (465 SE2d 501) (1995). But the motion for new trial simply asserts that the judgment is “inconsistent with the evidence and unsupported thereby” and “contrary to law.” A motion for new trial is a proper vehicle in which to challenge a judgment on the basis that it is inconsistent with the evidence presented and therefore contrary to law. OCGA §§ 5-5-20; 5-5-21. We certainly do not condone filing a motion for new trial based upon issues not intended to be argued on appeal, merely for the purpose of delay. But an appeal is not limited to the issues raised in the motion for new trial, OCGA § 5-5-40 (g), and we find no requirement in statute or case law that all grounds raised in a motion for new trial be enumerated as error. Since the substance of the motion indicates it may properly be construed as a motion for new trial, it extended the time for fifing a notice of appeal.

We note that in appealing from the denial of the motion for new trial, the appellant was entitled to enumerate as error the denial of the other post-judgment motions as well. Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980) (when direct appeal lies on one ruling, other rulings may be appealed as well). The other motions challenged the subject matter jurisdiction of the juvenile court because no original petition was filed in the juvenile court and the matter was not transferred to the juvenile court “by such process as might satisfy the requirements of law,” and challenged the juvenile court’s “jurisdiction over the person of the biological mother, a necessary party.” The issues raised in those motions are therefore properly before us on appeal.

2. We agree with C. I. W.’s mother that the juvenile court lacked jurisdiction over her person and the subject matter.

Where custody is in issue, the superior courts and the juvenile courts have concurrent subject matter jurisdiction when the superior court properly transfers a matter to be heard by the juvenile court. OCGA § 15-11-5 (c). But no order of transfer was entered in this case. The juvenile court has exclusive original jurisdiction over children alleged to be deprived. OCGA § 15-11-5 (a) (1) (C). Because the trial judge issuing the February 9, 1993 order was also a juvenile court judge and apparently recognized this, the order expressly finding C. I. W. deprived and placing custody in his grandparents was issued in his capacity as juvenile court judge. The order was not entered in the juvenile court, however, but in the superior court, and it also covers issues within the exclusive jurisdiction of the superior court, such as denying the petition for adoption.

A judge of the superior court who also serves as a juvenile court judge of the same county “arguably could simultaneously exercise the subject matter jurisdiction of superior and juvenile courts.” Watkins v. Watkins, 266 Ga. 269, 271 (466 SE2d 860) (1996). But the result of the trial court’s action bere was that no original petition was filed in the juvenile court to initiate either a deprivation action or an action to terminate the parental rights of C. I. W.’s mother. The first pleading filed in the juvenile court was the grandparents’ motion to extend the custody placement for another two-year period. Even assuming that a motion could be filed in what was not an ongoing action, a serious problem arose when the grandparents filed in the juvenile court an amendment to their motion that encompassed subject matter — the termination of parental rights — that is required to be brought as an original petition and personally served. OCGA §§ 15-11-82; 15-11-83 (a). That was not done here.

Personal service of the petition in the termination action is not only required by the statute, it is constitutionally required. Watkins, supra. C. I. W.’s mother’s acknowledgment of service accompanying the grandparents’ motion to extend the previous custody order does not suffice. The mother’s acquiescence in the continuing temporary placement of C. I. W. with her parents does not signify that she acquiesced in the termination of her maternal relationship with the child or even that she had notice that her parents were seeking it. When she acknowledged service, she had no notice that the termination of her parental rights would even be a subject of inquiry. See generally id. at 271-272 (1). This violated her right to due process of law.

This also deprived the juvenile court of jurisdiction over her person, because serving her attorney by mail was not equivalent to the personal service upon her required by the statute. Gormong v. Cleveland Elec. Co., 180 Ga. App. 481, 482 (349 SE2d 500) (1986).

Although we have no doubt that both the trial court and the grandparents were motivated in this case by their desire to act in the best interests of the child, a superior court judge acting in his or her capacity as a juvenile court judge must follow the procedures set forth in the Juvenile Code. “[T]he rules set forth by the General Assembly to govern juvenile court proceedings do not change merely because the judge exercising jurisdiction over juvenile matters also happens to serve as a superior court judge.” Watkins, supra at 271. Particularly in such cases, because of their sensitive nature and the infringement on fundamental liberties they entail, a superior court judge serving also as a juvenile court judge must be vigilant to protect the parties’ rights and interests by observing all formalities required by the law. Because such care was not taken in this case, the judgment of the juvenile court terminating the mother’s parental rights must be reversed.

Decided November 19, 1997.

Martin L. Fierman, for appellant.

Huskins & Huskins, Donald W. Huskins, for appellee.

Judgment reversed.

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

       This attorney left Georgia, and another attorney was substituted on May 26,1995.


author: Judge Harold R. Banke.

text:
    A97A1797.
    GREENWAY CAPITAL CORPORATION v. SCHNEIDER.
    (494 SE2d 287)
   Judge Harold R. Banke.

Greenway Capital Corporation (“Greenway”), a New York-based securities company, appeals the punitive damages portion of an arbitrators’ award to Jeri Schneider.

After Schneider lost $49,525, more than half the funds she entrusted to Greenway and its broker, Mark Moore, she instituted an arbitration action before the National Association of Securities Dealers, Inc. (“NASD”). Schneider’s arbitration agreement with Greenway authorized the resolution of disputes by the NASD and did not limit the remedies or damages which the arbitrators could award. Schneider alleged violations by Moore and Greenway of federal security law, violations of the Georgia Securities Act (OCGA §§ 10-5-12; 10-5-14), common law fraud, breach of fiduciary duty and negligence. In the counts for breach of fiduciary duty and fraud and also in her general prayer for relief, she sought punitive damages.

During two days of hearings before the NASD panel, Schneider claimed entitlement to punitive damages against both Greenway and Moore. Greenway offered little or no evidence that it engaged in any supervision of Moore, who flagrantly disregarded Schneider’s desire to invest the funds conservatively for her, a widowed schoolteacher on a limited income with three children. The NASD panel determined that Greenway and Moore were jointly and severally liable for $31,058 in compensatory damages. Concluding that Greenway exhibited “such an entire want of care as to raise the presumption of a conscious indifference to the rights of the claimant [Schneider],” the arbitrators awarded Schneider $100,000 in punitive damages against Greenway pursuant to OCGA § 51-12-5.1 and to Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 (115 SC 1212, 131 LE2d 76) (1995). Greenway appeals the denial of its application to modify the arbitration award. Held:

In its sole enumeration of error, Greenway contends that in awarding punitive damages, the arbitrators “awarded on a matter not submitted to them,” triggering OCGA § 9-9-14 (b) (2). Greenway argues that because Georgia law prohibits punitive damages for claims based on mere negligence, the arbitrators improperly entered the award for punitive damages.

Greenway’s contention that the punitive damages portion of the award cannot survive scrutiny under state law is without merit. Where there has been no agreement by the parties to be bound by state arbitration law, and where the transaction involved interstate commerce within the meaning of the Federal Arbitration Act, 9 USC

§ 1 et seq., state law is preempted by federal law. See North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790, 791 (1) (469 SE2d 759) (1996). Whenever a superior court vacates or confirms an award obtained under the Federal Arbitration Act, that court must apply federal substantive law. Hilton Constr. Co. v. Martin &c. Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983). It follows that the rule set forth in Hilton Constr. Co., also applies to the modification of an award, such as this one, obtained under the Federal Arbitration Act.

Under current federal law, punitive damage awards, unless expressly barred by the parties’ contract, are permissible in the arbitration of federal security cases, even where expressly precluded by state law. Mastrobuono, supra (NASD award of punitive damages permissible under NASD’s Code of Arbitration Procedures even where arbitration contract requires New York law which bars arbi-tral awards of punitive damages). Even assuming, for the sake of argument only, that the arbitrators awarded punitive damages for a negligence claim in derogation of Georgia law, federal arbitration law permitting such damages preempts the state law.

Because the matter was submitted to the arbitrators • and was not foreclosed by the parties’ binding arbitration agreement, the award must be affirmed. Greene v. Hundley, 266 Ga. 592, 596 (468 SE2d 350) (1996) (appellate court prohibited from weighing the evidence at arbitration); Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (1) (452 SE2d 188) (1994) (arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law).

Decided November 19, 1997.

Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, for appellant.

Robins, Kaplan, Miller & Ciresi, Thomas J. Gallo, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       The Georgia Arbitration Code is substantially similar to the federal law which provides that sin award may be modified or corrected, “[wjhere the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.” 9 USC § 11 (b).


text:
    A97A1880.
    THE STATE v. CORNETTE.
    (494 SE2d 289)
   Judge Harold R. Banke.

In the early morning hours of February 9, 1996, police responded to a domestic violence complaint initiated by Tammy Cornette. While inside the Cornettes’ home, they observed marijuana in plain view on a coffee table. Gary Cornette was then arrested for simple battery and possession of marijuana. While placing Cornette under arrest, as Officer Kenneth Brooks noted in his supplemental incident report, the residence lacked heat except for a small kerosene heater and there were four young children who were wearing little or no clothing. In the same report, Brooks expressed his concern that due to insect infestation, the trailer was “unsuitable for habitation.” Brooks ended his report by stating, “I voiced a strong recommendation that DEFACS be notified of the living conditions of the trailer and the health conditions of the children be examined.”

In an April 1996 accusation, Cornette, was charged with simple battery and misdemeanor marijuana possession. Cornette entered a plea of nolo contendere to the marijuana charge on October 8, 1996, while the simple battery charge was dismissed pursuant to the negotiated plea. Eight days later, a grand jury indicted both Cornette and his wife for the offenses of cruelty to children based on the deplorable conditions of their residence, on a specified date which was three days after the police response to the incident of domestic violence.

Cornette filed a plea in bar contending that prosecution of the cruelty to children charges was barred because jeopardy attached with regard to those offenses when he entered his plea. He claimed that the facts and circumstances supporting the cruelty to children charges were known to the State at the time of the accusation and his plea.

It is undisputed that several days after police arrested Cornette, the Department of Family & Children Services (“DFCS”) instituted its own investigation and opened a file for supervision lasting several months. According to the assistant district attorney, it was not the police incident report but the DFCS report transmitted to his office at a different time and based on a different investigation which formed the basis for the indictments. The indictments at issue make no mention of the lack of heat or clothing as depicted in the police incident report. Instead the indictments cite to exposed bare electrical wiring, unflushed feces, filthy bathtubs and sinks, trash surrounding the exterior, and a generally unsanitary environment throughout the trailer, occurring on February 12, three days after the battery incident. Embracing Cornette’s argument that the child cruelty charges should have been brought against Cornette at the same time as the other charges, the trial court granted his plea in bar. The State appeals. Held:

The State contends that the trial court erred by granting Cor-nette’s plea of former jeopardy because the conduct giving rise to the charges for cruelty to children did not arise from the same conduct as the marijuana possession and simple battery charges. OCGA § 16-1-7 (b) provides in pertinent part: “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .” (Emphasis supplied.) Holcomb v. State, 185 Ga. App. 4, 5 (363 SE2d 320) (1987); see Cates v. State, 206 Ga. App. 694, 695 (426 SE2d 576) (1992) (defendant bears burden of showing that prosecutor has actual knowledge of all charges); see also Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987). The phrase “the same conduct” in this statute has been used interchangeably with the phrase “the same transaction.” Lefler v. State, 210 Ga. App. 609, 610 (1) (436 SE2d 777) (1993); Harrell v. State, 196 Ga. App. 101, 103 (2) (395 SE2d 598) (1990).

In this case, the offenses of cruelty to children did not arise from the same transaction as the possession of marijuana or the simple battery. See State v. Steien, 214 Ga. App. 345, 346 (447 SE2d 701) (1994) . The offenses charged in the indictment were unrelated and allegedly occurred several days later. Evidence of the first two offenses could be presented without presenting evidence of the cruelty charges and vice versa. Id.; Teal v. State, 203 Ga. App. 440, 443 (2) (b) (417 SE2d 666) (1992). In fact, at the time of the accusation, DFCS had not completed its intervention. Accordingly, we find that the trial court erred in granting Cornette’s plea of double jeopardy.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.

Decided November 19, 1997.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellant.

David C. Keever, for appellee.


author: Blackburn, Judge.

text:
    A97A2404.
    MOTES v. THE STATE.
    (494 SE2d 283)
   Blackburn, Judge.

Roy Motes appeals his convictions of armed robbery and false imprisonment, contending that the trial court erred in allowing character evidence and in allowing improper comments by the State during closing argument.

1. Rosita Ramirez, Motes’ co-defendant who had previously pled guilty to the crime, testified at trial. When asked why she and Motes committed the robbery, she responded that “[Motes] had received a package of drugs and he came [up] short.” Motes’ attorney objected on the grounds that the testimony was prejudicial and that the State had not provided notice of its intent to present evidence of a similar transaction pursuant to Uniform Superior Court Rule 31. The trial court denied the objection, and Ramirez proceeded to testify that she and Motes committed the robbery because they were in need of money for drugs. On appeal, Motes argues that the court erred in allowing the testimony because it improperly placed his character into evidence.

This contention is without merit, as evidence of Motes’ motive in perpetrating the robbery was clearly admissible. “[T]he State is entitled to present evidence to establish that there was a motive. . . . Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990). In Sterling v. State, 267 Ga. 209 (477 SE2d 807) (1996), involving facts similar to the present case, the Supreme Court held that testimony that the defendant was a drug dealer who was owed money by the victim was admissible to show the defendant’s motive. The court further held that the State was not required to give notice under USCR 31 of its intent to present such evidence. Id. at 211 (4). Similarly, the court in the present case did not err in allowing Ramirez’s testimony.

2. Motes contends that the trial court erred in allowing the prosecutor to make an improper comment during closing argument. The prosecutor’s objectionable statement was that Motes was “unwilling to accept responsibility” for his actions. However, the trial court sustained Motes’ objection to this statement, and Motes did not request a mistrial, curative instructions, or any other relief besides the sustaining of his objection. “Therefore, the appellant, having received the relief he demanded, will not be heard to complain of error by the trial court.” Carr v. State, 259 Ga. 318, 321 (2) (380 SE2d 700) (1989).

Decided November 19, 1997.

James B. McGinnis, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A2450.
    JESTER v. THE STATE.
    (494 SE2d 284)
   Blackburn, Judge.

John Robert Jester appeals his conviction for possession of cocaine, arguing that (1) the trial court erroneously admitted his prior criminal record into evidence; (2) the trial court erroneously admitted evidence seized during a warrantless search; and (3) the trial court erroneously denied his motion for a new trial. Jester was indicted for possession of cocaine and possession of cocaine with intent to sell. After a jury trial, he was found guilty on the charge of possession of cocaine but not guilty on the charge of intent to sell.

On July 11, 1996, officers of the Rome Metro Task Force received a tip from a confidential informant that Ben Pinson, a known drug dealer, had crack cocaine in his possession. Arriving at the location given to them, the officers saw Pinson, Jester, and two other men standing in front of the house of Joyce Ferguson, Jester’s mother. As the officers pulled up, Jester, Pinson, and the others ran around to the back of the house, whereupon Jester, Pinson, and one other man ran inside. Running around the opposite side of the house, Officer Rodney Clemones pursued the men to the rear thereof and walked up to the back door. After Jester entered the rear door, Clemones heard Ferguson yelling at the men to leave her home. Since the main door was open, Clemones was able to see inside the house through a closed screen door. At that point, Clemones saw Jester throw an object into the freezer. According to Clemones, he then asked Ferguson for permission to enter the house and search the freezer, and she consented verbally. Upon searching the freezer, Clemones found a small medicine bottle containing crack cocaine, and Jester was taken into custody. Following the search of her freezer, Ferguson signed a consent form on which a notation was made that she had previously given verbal consent. During his trial, Jester maintained that the cocaine belonged to Pinson, who threw the medicine bottle into the sink when he entered the house. Jester testified that he then took the medicine bottle and tried to hide it in the freezer because he was afraid that his mother would get into trouble.

1. Jester first contends that the trial court erred by admitting his prior criminal record into evidence in violation of OCGA § 24-9-20 (b), which indicates that “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” At trial, Jester was asked, “Were you working with Ben Pinson selling drugs?” Jester responded, “No, sir. I do not sell drugs. I wasn’t even working — I wasn’t working with Ben Pinson.” Following this testimony, the State asked that Jester’s 1993 conviction for possession of cocaine with intent to distribute be admitted because “[Jester had] just pointblank said he does not sell drugs, and that is contradicted by his — by this conviction.” The trial court admitted the prior conviction evidence on the basis that Jester’s answer, when compounded with his defense that he was just trying to protect his mother, brought his character into question.

The State concedes that Jester’s statement was not enough to put his character into evidence. See Sanders v. State, 199 Ga. App. 671, 672-673 (3) (405 SE2d 727) (1991) (statement by defendant that he did not do drugs insufficient to put character in evidence). However, “[t]here are numerous instances where the state may properly offer evidence that the defendant has committed prior crimes for a purpose other than to show the defendant is a person of bad character. The fact that such evidence may reflect adversely on the defendant does not place his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b).” (Citations omitted.) Jones v. State, 257 Ga. 753, 759 (1) (c) (363 SE2d 529) (1988). “Under Bland v. State, 198 Ga. App. 671, 672 (402 SE2d 782) (1991), [Jester’s] statement that he did not [sell drugs] could be construed as a denial that he had ever been involved in any cocaine-related offenses so as to render admissible for purposes of impeachment (by disproving the facts testified to by defendant) evidence that he had previously been convicted of possession of cocaine [with intent to sell].” (Punctuation omitted.) Buchanan v. State, 215 Ga. App. 143, 145 (2) (449 SE2d 660) (1994). Therefore, evidence of Jester’s prior conviction was appropriately admitted in order to impeach specific testimony. Although the trial court admitted the evidence on grounds other than impeachment, “[w]e have consistently held that a correct decision of a trial court will not be reversed, regardless of the reasons given therefor.” (Punctuation omitted.) Ely v. State, 192 Ga. App. 203, 205 (4) (384 SE2d 268) (1989).

2. Jester also contends that the trial court erroneously denied his motion to suppress the bottle of cocaine retrieved from his mother’s freezer as the fruit of an unconstitutional search. “When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996). We find that denial of Jester’s motion to suppress was proper.

Specifically, Jester argues that the arresting officers improperly entered upon the curtilage of Ferguson’s home, that the officers entered the home without a warrant and without the existence of exigent circumstances, and that Ferguson did not consent to the search of her freezer until after it took place. The information provided by the known confidential informant on which the task force officers were acting was sufficient to create a reasonable, articulable basis for stopping Pinson at the scene. D’Angelo v. State, 223 Ga. App. 558, 559 (1) (479 SE2d 384) (1996). Officer Clemones’ testimony showed that the confidential informant had given reliable information on several occasions, and Pinson and the others were exactly where the informant had predicted them to be. When the suspects fled from the approaching officers and a routine stop became impossible, Clemones legally pursued Pinson, Jester, and the others. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.” (Punctuation omitted.) Stiggers v. State, 151 Ga. App. 546, 547 (260 SE2d 413) (1979). Clemones was justified in chasing Pinson and the others into Ferguson’s backyard.

At the hearing on the motion to suppress, Officer Clemones testified that Ferguson gave him verbal consent to come inside and search her freezer before he entered her house. Furthermore, Ferguson freely signed a consent form indicating that this verbal consent had been given. Although Ferguson testified at the hearing that she never gave consent to the search until after it had occurred, “[i]t is the trial court’s duty to determine issues of fact and credibility on a motion to suppress, and we will not disturb those findings unless they are clearly erroneous.” State v. David, 225 Ga. App. 541, 543 (484 SE2d 278) (1997). The trial court found that the evidence supported the conclusion that Ferguson consented prior to the search, and we will not disturb that finding. Accordingly, we need not consider the issue of exigent circumstances.

3. Jester further contends that the trial court erred in denying his motion for a new trial because his conviction was not supported by sufficient evidence. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Jester] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Decided November 19, 1997.

Shaw, Maddox, Graham, Monk & Boling, Thomas H. Manning, for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Viewing the evidence in the light most favorable to uphold the jury’s verdict, we find it sufficient to authorize a rational trier of fact to find Jester guilty beyond a reasonable doubt of possession of cocaine. Officer Clemones testified that he saw the pill bottle containing the crack cocaine in Jester’s possession before he threw it into his mother’s freezer, and Jester subsequently admitted to hiding it. “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Punctuation omitted.) Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989). As such, the verdict was supported by sufficient evidence. The fact that witnesses for the defense testified that the drugs did not belong to Jester does not change this result. “Although there was conflicting evidence presented by [Jester] regarding his involvement with the cocaine, it is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of witnesses.” (Citations and punctuation omitted.) Lester, supra at 378 (4).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1480.
    SHEPPARD v. SHEPPARD.
    (494 SE2d 240)
   Blackburn, Judge.

Kenneth Sheppard appeals the trial court’s order in which it found him in breach of the separation agreement entered into between the parties. Sheppard contends that the trial court erred in finding the existence of a valid contract, in its determination of the amount of damages, and in awarding attorney fees.

The facts regarding the underlying separation agreement are not in dispute. The parties were married on October 11, 1957, and separated on August 9, 1990. In contemplation of divorce, Shirley Sheppard prepared a separation agreement which was signed by Sheppard. The agreement provided, in pertinent part, that “[a]fter a period of one (1) year from the date the divorce is legalized the property at 1003 Bedford Drive, Augusta, Ga. will be sold whereby the total selling price will be divided equally between myself and Shirley Sheppard. Shirley will also receive an additional $2,500.00.” Although the parties were subsequently divorced on October 9, 1990, the separation agreement was not made a part of the divorce decree.

It is further undisputed that the marital home was not sold as contemplated by the separation agreement. On September 9, 1991, Sheppard took out a second mortgage on the marital home in the amount of $20,000, and on November 15, 1991, he took out a third mortgage on the marital home in the amount of $45,000. Each additional mortgage was taken out without the knowledge of Shirley Sheppard. The property was foreclosed upon on September 9, 1996. Shirley Sheppard brought the underlying action to recover damages arising out of Sheppard’s alleged breach of the separation agreement.

1. After a hearing, the trial court determined that the separation agreement was an enforceable contract. Sheppard argues that the agreement lacks consideration and that it is void for vagueness.

(a) OCGA § 13-3-42 (a) provides that “[t]o constitute consideration, a performance or a return promise must be bargained for by the parties to a contract.” OCGA § 13-3-42 (c) (3) provides that “[t]he performance may consist of: [t]he creation, modification, or destruction of a legal relation.” As the separation agreement was entered in contemplation of the parties’ uncontested divorce, the trial court did not err in determining it was supported by consideration.

(b) “The test in Georgia to determine whether a contract is unenforceable because of vagueness is as follows: ‘(It is not) necessary that a contract shall state definitely and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matter which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves.’ Milton Frank Allen Publications v. Ga. Assn. of Petroleum Retailers, 219 Ga. 665, 672 (135 SE2d 330) (1964) (quoting Dorsey v. Clements, 202 Ga. 820, 824 (44 SE2d 783) (1947)).” Davidson Mineral Properties v. Baird, 260 Ga. 75, 79 (390 SE2d 33) (1990).

It is clear under the terms of the present contract that the parties intended that the marital home be sold after the passage of one year from the date of the divorce decree, and that the parties split the proceeds therefrom with an additional $2,500 going to Shirley Sheppard. As the essential intentions of the parties are established, the trial court did not érr in finding that the contract was enforceable.

2. After determining the contract was enforceable, the trial court held a hearing to determine whether the contract was breached, and if so, the fair market value of the marital home at the time of breach. The court determined that the contract was breached as of October 9, 1991, one year after the final decree of divorce was entered. The court determined that as of that date the fair market value of the marital home was $71,200, based on the tax assessment for the home in 1991. The court deducted the amount of the mortgage at that time and seven percent for costs of the sale. On appeal, Sheppard contends that no competent evidence was presented regarding the value of the home in October 1991. He also argues that because the contract did not prohibit him from taking out additional mortgages, the second and third mortgages should have been deducted from the sale price. “The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544 (382 SE2d 388) (1989).” CRS Sirrine v. Dravo Corp., 219 Ga. App. 301, 302 (1) (464 SE2d 897) (1995).

Sheppard contends that the trial court’s consideration of the 1990 and 1991 tax assessments was improper. We must agree. The tax assessment records are hearsay, and they do not fall under the business record exception to hearsay. See OCGA § 24-3-14. “Business records are admissible if the evidence shows the ordinary course of business required the entries to be made (a matter that can be waived) and the records are reflective of an act, occurrence or event, and not an opinion, and were properly identified by the person who made them or is conversant with the necessity for their preparation and custody.” (Punctuation omitted.) Dickens v. Calhoun First Nat. Bank, 214 Ga. App. 490, 491 (448 SE2d 237) (1994). As the tax assessments contained the assessors’ opinions, they were not properly considered by the trial court. Additionally, while the owner of the property can testify as to its value, such opinion must be supported with the facts upon which it is based. See id. In the present case, Shirley Sheppard testified as to her opinion of the value of the property; however, she did not testify as to the basis of her opinion. Additionally, no evidence was presented regarding the seven percent deducted for cost of sale. Without any evidence to support such a calculation, it is not authorized and is mere speculation.

Although sufficient evidence of the value of the house was not presented, evidence of the available equity in the home was presented to which Shirley was entitled to half. On September 9, 1991, Kenneth obtained a $20,000 loan on the home, and on November 15, 1991, Kenneth obtained an additional $45,000 loan on the home. These mortgages are some evidence of the home’s value presented to the trial court. They specifically provide a basis for determining the amount of Shirley’s damages, which under the evidence in this case, is one-half of the amount of the new mortgages plus $2,500. Therefore, the trial court is hereby directed to amend its award to Shirley to the $2,500 specifically noted in the agreement plus $32,500.

3. With regard to the trial court’s imposition of attorney fees against Sheppard, we must also reverse.

“OCGA § 13-6-11 allows recovery of litigation expenses when a defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. With respect to bad faith, the elements of bad faith that will support a claim for expenses of litigation must relate to [the defendant’s] acts in the transaction itself prior to this litigation, not to the motive with which it defended the litigation. Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 200 (3) (450 SE2d 427) (1994). A recovery for stubborn litigiousness or causing unnecessary trouble and expense is authorized if no bona fide controversy or dispute existed as to the defendant’s liability. Whether such a controversy existed is a question for the jury. Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) (466 SE2d 27) (1995).” King Industrial Realty v. Rich, 224 Ga. App. 629, 635 (6) (481 SE2d 861) (1997).

In the present case, there was no evidence of the amount of litigation expenses incurred. While the trial court is authorized to award reasonable attorney fees based on its expertise, there must be some evidence to support the court’s award. See Wahnschaff Corp. v. O. E. Clark Paper Box Co., 166 Ga. App. 242, 243 (2) (304 SE2d 91) (1983) (“ ‘Since an allowance for damages cannot be based on guesswork (cit.), the plaintiff failed to make out a proper case for these damages,’ and they must therefore be stricken from the award”).

Therefore, the award of attorney fees must also be reversed.

Judgment affirmed in part, reversed in part, and remanded with direction.

Pope, P. J., and Johnson, J., concur.

Decided November 6, 1997

Reconsideration denied November 20, 1997.

Surrett & Coleman, Edward J. Coleman III, for appellant.

Shirley A. Sheppard, pro se.

       The property was titled solely in Kenneth Sheppard’s name.


author: Andrews, Chief Judge.

text:
    A97A1792.
    YOUNG v. THE STATE.
    (494 SE2d 226)
   Andrews, Chief Judge.

Thomas Odell Young III, shot and killed Tina Michelle Brown. Young was indicted for murder, felony murder, voluntary manslaughter, aggravated assault and possession of a firearm during the commission of a crime. A jury found him not guilty of murder and felony murder and guilty on the remaining charges. In entering judgment, the trial court merged the aggravated assault conviction into the voluntary manslaughter conviction.

On appeal from the judgment entered on the guilty verdicts, Young claims the State failed to prove beyond a reasonable doubt that his self-defense claim was not viable and that the evidence was otherwise insufficient to support the convictions. We find the evidence was sufficient to allow the jury to reject the self-defense claim and to find Young guilty beyond a reasonable doubt. Accordingly, we affirm.

The evidence showed that Brown and Young had been divorced for about a year at the time of the shooting. On the day of the shooting, Brown’s mother drove her to Young’s residence so that Brown could retrieve an address book that she claimed Young had recently stolen from her car. Just prior to driving there, Brown called 911 and requested that a police officer be sent to meet her at Young’s residence. Pursuant to that call, an officer was dispatched to Young’s residence. Brown and her mother arrived at Young’s residence before the police officer arrived. Young’s mother let Brown into the residence, and Brown’s mother remained outside.

Inside the residence, a heated argument ensued between Brown and Young. According to Young and his mother, Brown pulled a pistol, pointed it at both of them, then turned away from them and started to walk toward the door of the residence. Young’s mother testified that when Brown reached the door, she turned around, walked toward her a few steps, raised the pistol and fired two shots at her which missed. Ms. Young testified that Young was positioned by a corner where he could not see Brown turn around and fire the shots. Ms. Young testified that when the shots were fired, she exclaimed, “She shot, she shot,” and that she moved over out of Brown’s line of fire. She testified that when Young heard her say this, he retrieved a rifle from the laundry room located a few feet away. Ms. Young testified that when she saw her son with the rifle, she grabbed his arm, said “Put it down,” and the rifle fired into the ceiling. At that point, Ms. Young said her son reached the rifle around the corner and fired two or three shots without aiming at Brown. Ms. Young testified that she looked around the corner and saw Brown lying on the floor.

Young gave a statement to police in which he said that during an argument at his residence, Brown pulled a pistol and pointed it at him and his mother. He said that in response, he retrieved the rifle because he was afraid of Brown. He stated that his mother tried to take the rifle away from him and it fired into the ceiling while they were struggling. Although Young stated he was aware that Brown had walked away toward the door of the residence as he went to get the rifle, he told the officer that he could not see Brown from where he was standing with the rifle because he was behind a wall. He stated it was “highly possible” that when the rifle was fired into the ceiling, Brown was walking toward the door. Young said he peeked around the corner at some point and saw Brown “holding, pointing, you know, still holding the gun.” When asked if he heard or saw Brown fire the pistol, Young responded, “I don’t know. . . . I’m not a hundred percent sure if she shot the gun.” Although Young’s statement indicates that he fired the rifle after he broke free from his mother, it does not describe the manner in which he did so. Young told the officers that after he stopped firing, he realized that Brown had been hit by a bullet when he peeked around the corner again and saw her lying on the floor. Young did not testify at trial.

Brown’s mother testified that while she was waiting outside the residence, she saw Ms. Young through a window of the residence struggling with a man. She testified that she then heard three to five shots fired in rapid succession and that about that time, the police officer dispatched by the 911 call arrived on the scene. The officer testified that when he approached Young’s residence, the door was open and he saw Brown lying on the floor on her back with a gunshot wound in her forehead. She was lying about ten feet from the door with her head toward the door. When Brown was moved by paramedics called to the scene, a pistol was found on the floor under her body. Brown’s mother testified that Brown had received a pistol as a Christmas gift a few days before the shooting and that it looked like the pistol recovered at the scene.

During their investigation, police recovered the rifle fired by Young and the pistol found on the floor under Brown’s body. The rifle was a 22 caliber semi-automatic and the pistol was a 22 caliber automatic. Police also recovered four 22 caliber cartridge cases and two 22 caliber bullets. One bullet was retrieved from a hole in the ceiling of Young’s residence, and the other bullet was found in Brown’s head during an autopsy of her body. Tests conducted at the State Crime Lab showed that both bullets were fired from Young’s rifle, and all four cartridge cases were extracted and ejected from Young’s rifle. No additional bullets, bullet holes or cartridge cases were found.

Young admitted that he shot and killed Brown but claimed that he acted in self-defense. “[A] person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” OCGA § 16-3-21 (a). “When a defendant presents evidence that he was justified in using deadly force, the burden is on the State to disprove the defense beyond a reasonable doubt.” Andrews v. State, 267 Ga. 473, 474 (480 SE2d 29) (1997). Whether or not the circumstances of the case are such that they would excite the fears of a reasonable man to the point that he felt it necessary to use deadly force is a question for the jury. Anderson v. State, 245 Ga. 619, 623 (266 SE2d 221) (1980). Moreover, on appeal from a criminal conviction, the evidence is examined in a light most favorable to the verdict. As an appellate court, we do not weigh the evidence or determine the credibility of the witnesses but only determine whether the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), for the jury to find Young guilty beyond a reasonable doubt. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996).

Based on the evidence, the jury could have concluded that although Brown pulled out a pistol while arguing with Young and his mother, she then turned away and was walking toward the door of the residence when the shot from the rifle fired into the ceiling caused her to turn and face in the direction where Young and his mother were concealed by a wall. The jury could have further concluded that Young broke free from his mother, reached the rifle around the corner of the wall and blindly fired three shots in Brown’s direction, one of which struck her in the forehead causing her to fall on her back toward the door. The physical evidence found at the scene, including bullets and cartridge casings, supports the conclusion that Brown never fired the pistol and that all the shots were fired from the rifle by Young. On the evidence before it, the jury could have reasonably concluded that Young acted out of sudden passion or anger in killing Brown and that, at the time, it was not necessary for him to do so in order to protect himself or his mother. Thomas v. State, 184 Ga. App. 131, 132 (361 SE2d 21) (1987).

The facts were sufficient to allow the jury to conclude beyond a reasonable doubt that Young did not justifiably use deadly force to kill Brown. Id. Further, there was evidence sufficient to show that, as a result of an argument with Brown and because Brown pointed a pistol at Young and his mother, Young shot and killed Brown out of “a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a). Accordingly, the evidence was sufficient to support the guilty verdicts for voluntary manslaughter and possession of a firearm in the commission of a crime. Williams v. State, 126 Ga. App. 454, 457 (191 SE2d 100) (1972); Thomas, supra; OCGA §§ 16-5-2 (a); 16-11-106.

Decided November 4, 1997

Reconsideration denied November 20, 1997

Richard C. Sutton, Thomas M. Rego, for appellant.

James R. Osborne, District Attorney, Grover W. Hudgins, Fred A. Lane, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.