text:
    A01A0924.
    RILEY v. THE STATE.
    (553 SE2d 374)
   Miller, Judge.

This is the second appearance of this case before this Court. In Riley v. State, we affirmed Lamar Riley’s conviction for aggravated assault with intent to rob but remanded the case, directing the trial court to conduct a post-trial inspection of the State’s file to consider a purported violation of Brady v. Maryland. At issue was whether a prosecution witness had been under arrest when he implicated Riley in the crimes. After examining the State’s file, the trial court found no additional information to resolve that factual dispute. Having considered the alleged violation of Brady and finding it lacking in merit, we affirm.

Riley and co-defendant, Savin Dix, attempted to rob a convenience store at closing time. During the botched robbery, Dix fired his pistol at the store owner rendering him a paraplegic. A store employee witnessed the shooting and identified Dix as the shooter and Riley as his accomplice. Shortly after the shooting, a neighbor described the physical appearance of Riley and Dix, as did the victim’s wife.

Three days after the failed robbery, Antonio Martin and three other men were brought in for questioning about the shooting at the convenience store. Detective M. Walker, the lead investigator, interviewed Martin whom he initially considered a suspect because Martin seemed to fit the description of Dix. After advising Martin of his rights, Walker took a statement from Martin who then signed it. In that statement, Martin said that he overheard an argument in which Dix was accusing Riley of not doing his part in the aborted robbery. According to the statement, Martin heard Dix argue, “after I shot, you were supposed to have busted [sic] the window and got the money out [sic] the car.” Martin told the detective that he overheard Dix say that he fired three shots from his gun. Ultimately, information obtained from Martin, the victim’s wife, the store employee, and the neighbor resulted in the arrest of Riley and Dix.

During the joint trial of Riley and Dix, Martin appeared as a prosecution witness. Martin, however, repeatedly denied ever hearing anyone discuss the shooting at the convenience store. When confronted with a typed statement dated December 16, 1994, and bearing his signature, Martin developed memory problems and was unable to recall giving the details contained within that statement. Later, he managed to remember having heard Riley and Dix arguing but could not recollect the substance of their argument. After Martin disavowed his statement, the State sought and obtained permission from the trial court to treat him as a hostile witness. Martin remained steadfast in his denials and refused to acknowledge having recently affirmed his earlier statement to an investigator from the district attorney’s office. During cross-examinations of Martin by the defense attorneys, Martin acknowledged that criminal charges against him for theft by taking had been dead docketed in July 1994. He expressed ignorance as to whether he could still be prosecuted for those charges. Martin admitted that he was awaiting trial for an unrelated armed robbery.

Martin and Detective Walker disagreed on whether Martin had been placed under arrest for the shooting incident at the convenience store. Although Martin testified, “I was arrested because they thought I was Savin Dix,” Detective Walker testified that Martin had merely been a suspect brought in for questioning and denied that Martin was ever arrested for the crimes involved here. According to Walker, because investigators thought that Martin fit the description of one suspect, Martin had been questioned but “he was not under arrest.”

Before trial, Riley filed a written request for an in camera inspection of the prosecution’s entire file, specifically seeking review of Detective Walker’s investigative file for any exculpatory evidence, including witness statements. The trial court denied the request. But whenever a defendant is dissatisfied with the State’s response to a request for exculpatory material and makes a proper request, the trial court must conduct an in camera inspection of the State’s file. Here that was precisely what the trial court did not do. Nevertheless, a trial court’s failure or refusal to conduct the review does not constitute reversible error because that error may be cured by post-trial examination of the State’s file. We directed just such review.

On remand, the trial court found:
In the context of the foregoing facts [evidence as to whether Martin a/k/a Rooks was under arrest when he made the statement to Detective Walker], . . . [t]he Court has conducted a review of the State’s entire file, and finds nothing in the file in further support of Defendant’s contention that Mr. Rooks was under arrest when he made the statement to Detective Walker implicating Defendant.

With that finding, the trial court refused to order a new trial. Riley then filed a motion seeking clarification as to what files had been actually reviewed by the trial court. No ruling was forthcoming on that motion.

1. Riley contends that the trial court erred by failing to follow this Court’s order to conduct an in camera inspection of the files of Detective Walker. He claims that the trial court reviewed only the prosecutor’s file and not Detective Walker’s file. Riley’s sole support for this allegation is an affidavit filed by his lawyer. In that affidavit, Riley’s counsel testified that he “left a message for Mr. Owens [the court’s case manager] concerning the order of the court, inquiring whether the Judge had examined in camera Detective Walker’s case file, as it was not evident on the face of the order whether this had been done.” Counsel testified that he “received a call from Mr. Owens who informed him that it was the position of the court that Detective Walker’s case file was not required to be reviewed in camera.”

Riley v. State made explicitly clear that “[the detective’s] files are considered within the possession of the State for purposes of Brady.” Without question, we contemplated that Detective Walker’s case file would be examined by the trial court. But the affidavit offered on behalf of Riley lacks probative value because it is replete with inadmissible hearsay, including the affiant’s report of what another person purportedly said that he understood the judge to believe. Nór does the affiant expressly testify that the trial court did not consider the detective’s case file. In the absence of evidence to the contrary, we must assume that the trial court considered all of the prosecution’s file including Detective Walker’s case file.* Having reviewed the record provided under seal, we find nothing that contravenes the finding by the trial court.

Decided August 2, 2001.

Steven E. Phillips, for appellant.

2. Riley contends that the trial court erred in concluding that the prosecutor’s file contained no evidence that would authorize a new trial. We disagree.

A Brady motion imposes an affirmative duty upon the prosecution to produce anything that is exculpatory or useful for impeachment. Fundamental to any error based upon a violation of Brady, an appellant must prove that: (1) the State possessed evidence favorable to the defense; (2) the defense did not possess the evidence and could not obtain it with reasonable diligence; (3) the prosecution suppressed the favorable evidence; (4) the defense was denied access to such evidence during trial; (5) the disclosure would have benefitted the defense by providing evidence for the defense or impeaching prior inconsistent statements; and (6) the denial deprived the defendant of a fair trial, i.e., a reasonable probability that the outcome of the proceedings would have been different had disclosure been made. Having examined the record provided under seal, we cannot say that Martin a/k/a Walter Rooks had, in fact, been under arrest on December 16, 1994, at the time that he gave the statement implicating Riley in the crimes. In any event, counsel for Riley and Dix thoroughly cross-examined Martin as well as the detective about this issue and Martin himself testified that he thought that he was under arrest when he was brought in for questioning. Since Dix was in the courtroom while Martin testified, the jury could decide for itself whether the two men bore any resemblance to one another. Riley has not shown that the State suppressed evidence favorable to him or how any alleged failure by the prosecution to reveal any information materially affected his case. Accordingly, the trial court did not err in denying Riley’s amended motion for new trial based upon the purported Brady violation.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

       242 Ga. App. 720, 722 (2) (531 SE2d 138) (2000).

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

        Dix v. State, 246 Ga. App. 338 (540 SE2d 294) (2000).

       See id.

        Riley, supra, 242 Ga. App. at 722 (2).

        McNeal v. State, 263 Ga. 397, 398 (4) (435 SE2d 47) (1993).

        Tribble v. State, 248 Ga. 274, 276 (3) (280 SE2d 352) (1981).

        Riley, supra, 242 Ga. App. at 723 (2).

        Riley, supra, 242 Ga. App. at 722 (2).

       See Wright v. State, 211 Ga. App. 474, 475 (1) (440 SE2d 27) (1993).

       The trial court granted Riley’s motion for the record to be copied and sealed and directed the inclusion of the State’s file in its entirety except for the victim’s extensive medical records. It contains, inter alia, paperwork from the Atlanta Police Department, the City of Atlanta Department of Police, as well as a package prepared by Detective Walker on Form 105 of the Atlanta Bureau of Police Services.

        Bailey v. State, 229 Ga. App. 869, 873 (3) (494 SE2d 672) (1997).

        Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996); Bailey, supra, 229 Ga. App. at 874 (3).

       See Bacon v. State, 207 Ga. App. 39, 40 (427 SE2d 32) (1993) (physical precedent only).

       See Burgeson, supra, 267 Ga. at 104 (2).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0994.
    HIBBARD v. P.G.A., INC.
    (553 SE2d 371)
   Miller, Judge.

The question on appeal is whether a certain equipment agreement is a lease-purchase or a lease with an option to purchase agreement. As the agreement is ambiguous, we employ the applicable rules of construction to conclude that it is a lease-purchase agreement. Since evidence showed the purchase was accomplished, we affirm the trial court’s refusal to award possession of the equipment to the lessor/seller.

Pursuant to an agreement drafted by Scott Hibbard, P.G.A., Inc. (PGA) leased an excavator from Hibbard for $4,500 per month, payable in advance of each monthly rental period. The rental term commenced July 29, 1997, with a minimum term of one month. PGA’s retention of the excavator beyond the first month extended the lease for each month Hibbard allowed PGA to retain the equipment. Hibbard could terminate the lease at any time following the first month. In typewritten “Additional Terms,” the parties agreed: “Maximum rental period is 12 months. Purchase price of above equipment $108,000.00. Lease payments to go toward purchase price less 1% per month interest.”

PGA made its first $4,500 payment on June 30 and took delivery of the excavator on July 29. PGA then made 25 timely monthly payments over the next 25 months, retaining the excavator without any objection from Hibbard throughout this time. Following the September 1999 payment, the amount remaining to pay off the $108,000 purchase price was $1,334. PGA nevertheless gave Hibbard an October rental check for $4,500, which bounced. Angry, Hibbard on November 6 attempted to repossess the excavator but failed. Two days later he mailed a letter to PGA terminating the lease and also filed to obtain a writ of possession on the excavator. On November 16 PGA tendered a $4,500 cashier’s check to Hibbard, which he held pending the outcome of the litigation.

Finding that PGA had paid sufficient monies under the agreement to satisfy the purchase price, the magistrate court denied the writ of possession. Hibbard appealed to the State Court of Henry County and tried the matter in a bench trial. Following Hibbard’s presentation of evidence, the state court judge also denied the writ of possession. Hibbard now appeals the state court ruling to this Court, enumerating four errors.

1. Three of Hibbard’s enumerations of error relate to the construction of the contract and the application of the facts thereto. All three enumerations assume that the contract was a lease with an option to buy contract and contend that no evidence supported a finding that the option was ever exercised (whether orally, in writing, or by paying the full purchase price) prior to Hibbard’s terminating the contract. A proper construction of the contract defeats these three enumerations.

“[T]he construction of a contract is a question of law for the court based on the intent of the parties as set forth in the contract. . . ,” The court follows a three-step procedure in construing contract language: “The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” As this is a question of law, we review the three-step procedure de novo.

The contract language here is ambiguous. The preprinted terms of the lease provide that “[n]o title to the equipment shall be conveyed to Lessee by the terms of this Lease . . and that the “lease is intended as a true lease.” The typewritten “Additional Terms” set the maximum rental period at 12 months, announce the purchase price of the excavator to be $108,000, and credit the lease payments toward the purchase price less “1% per month interest.” Thus, the printed terms for the most part appear to be a straightforward “true lease” agreement, but the typewritten “Additional Terms” give PGA the right to purchase the equipment for a set price to be paid by crediting portions of lease payments. The reference to interest implies that the price is seller-financed. Notably, the 12-month maximum rental period would not allow the entire amount of the purchase price to be paid off by the $4,500 monthly lease payments prior to the end of the 12 months, leaving unclear how the matter would be handled at the end of the 12 months. Also unclear is the status of the purchase rights if the lease were terminated earlier than the 12-month period, either as a matter of right or as a result of a default under the lease.

In addition to these ambiguities is the argument of Hibbard and the legal conclusion of the state court judge that the agreement is a lease with an option to buy agreement, even though the word “option” nowhere appears in the contract. The contract also contains no reference to an option exercise period, no language describing a method of exercising an option, etc. And not to be overlooked is that after the 12-month period had expired in July 1998, PGA continued to retain possession of the excavator, making regular monthly payments to Hibbard, who accepted them. When Hibbard in July or August 1998 asked PGA whether it intended to pay off the remainder of the purchase price in a lump sum, PGA responded that it wanted to simply continue paying under the set schedule, to which Hibbard did not object.

We hold the contract was ambiguous. Applying the relevant rules of contract construction, we are able to resolve the ambiguities and thus do not need to go to step three. Two applicable rules are that we construe a contract against its drafter (here Hibbard) and that typewritten provisions prevail over printed provisions. The typewritten provisions here specify a purchase price and describe how it is to be paid. Nothing in the contract requires any kind of option to be exercised nor any kind of notice to be given Hibbard in order for PGA to buy the excavator at the specified price, and we will not insert such terms into the contract so as to limit PGA’s purchase rights. The conflicting printed provision that no title shall be conveyed to PGA by the terms of the lease is construed to mean that the contract basically had two parts: the “lease” part setting forth the terms under which PGA leased the vehicle pending the full payment of the purchase price (which “lease” part did not convey title), and the “purchase” part setting forth the amount and method of paying the purchase price (which would convey title upon payment of the purchase price).

This was a classic “lease-purchase” contract. The lease part specified the conditions under which PGA could retain and use the excavator while title to the excavator resided in Hibbard. The terms of this lease portion did not purport to convey title of the excavator to PGA. After 12 months, this lease portion was to naturally expire and possession was to return to Hibbard unless PGA paid off the purchase price, which purchase price was calculated by crediting the lease payments as per a specified formula.

When these 12 months came and went, with PGA retaining possession and continuing to make the monthly $4,500 lease payments, then the conduct of the parties modified the contract so as to extend the lease portion, similar to the initial effect of PGA’s retaining the excavator past the minimum rental term. Thus, the terms of the original lease allowing the lease payments to be credited toward the purchase price continued to govern the relationship between the parties. Similarly, Hibbard retained the right to terminate the lease at any time during this holdover period.

The second portion of the contract was the “purchase” portion, under which PGA had a contractual right to purchase the excavator for $108,000. Credited toward that purchase price were the lease payments as reduced by a one percent monthly interest charge on the outstanding purchase price. The continued payment of lease payments past the 12 months continued to reduce the purchase price as per the formula. Once the entire amount of the purchase price was paid, title to the excavator vested in PGA. Although Hibbard could terminate the lease at any time after the first month, no such termination clause purported to apply to the power to purchase the excavator for the specified price, and we will not insert such a term in a contract drafted by Hibbard.

In this framework we consider the facts as found by the state court judge and as reflected in the evidence construed in favor of the judgment. Through October 28, 1999, PGA was current in its lease payments, which by that time had reduced the purchase price of the excavator to $1,334. Since no rental payment was received by October 29, the lease was in default as per its terms. As title still resided in Hibbard, he had the right per the terms of the lease to remove the excavator from PGA’s premises. And he had the right to terminate the lease portion of the contract, whether due to default or as an exercise of his absolute right to do so. He exercised this right of termination on November 8, when he sent a letter of termination to PGA. This, however, did not terminate PGA’s right to purchase the excavator for the remaining $1,334. When on November 16 PGA gave Hibbard a $4,500 cashier’s check, this more than paid off the remaining amount due under the purchase portion of the contract, and at that point title to the excavator vested in PGA, thus destroying any right of Hibbard to repossess the equipment.

Evidence and a proper construction of the contract supported the state court’s denial of the writ of possession.

Decided August 2, 2001.

George C. Creal, Jr., for appellant.

Harrison & Harrison, Stephen P. Harrison, for appellee.

2. Hibbard’s fourth enumeration contends that the state court erred in denying Hibbard’s motion for new trial based on newly discovered evidence. Specifically, Hibbard claims that he presented evidence to the state court that post-judgment PGA stopped payment on the $4,500 cashier’s check and thus never paid the remaining $1,334.

Hibbard failed to preserve the matter for review in that he has not included this new evidence in the record transmitted to this Court. Although his motion for new trial brief purported to attach the evidence to the brief, the record contains no such attachment. Nor does Hibbard include in the record a transcript from the hearing on the motion for new trial, even though the state court relied on that evidentiary hearing in ruling to deny the motion for new trial. “As the record contains no transcript of the hearing held on appellant’s motion for a new trial, appellant has failed to carry his burden of showing error in the trial court’s ruling, and we must presume that it was correct.”

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000); see OCGA §§ 13-2-1; 13-2-3.

        Deep Six, supra, 246 Ga. App. at 73 (2), quoting Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).

        Deep Six, supra, 246 Ga. App. at 73 (2).

        Asian Square Partners v. Ly, 238 Ga. App. 165, 167 (1) (518 SE2d 166) (1999).

       Id.

       Cf. Wilbanks v. Mai, 232 Ga. App. 198, 199 (501 SE2d 513) (1998).

       See OCGA § 13-4-4; cf. Citizens Oil Co. v. Head, 201 Ga. 542, 543 (2) (40 SE2d 559) (1946) (continuance of possession after expiration of the original term effects an extension of the original lease).

       Cf. Colonial Self Storage &c. v. Concord Properties, 147 Ga. App. 493, 494 (1) (249 SE2d 310) (1978) (holdover tenant holds premises subject to general terms and conditions of the lease).

       See Emory Rent-All v. Lisle Assoc. Gen. Contractors, 212 Ga. App. 516 (1) (441 SE2d 926) (1994) (construe evidence to support court’s findings against plaintiff in bench trial following presentation of plaintiff’s case).

       (Citation omitted.) Carpenter v. Parsons, 186 Ga. App. 3, 5 (4) (366 SE2d 367) (1988).


text:
    A01A1373.
    POWELL v. ALAN YOUNG HOMES, INC.
    (554 SE2d 186)
   Miller, Judge.

In her suit for the wrongful death of her husband, Catherine Powell files this appeal following a jury verdict in favor of Alan Young Homes, Inc. (AYH). She contends that the trial court erred by excluding her testimony at trial regarding conversations that she had with her husband prior to his death, and by allowing AYH to assert assumption of risk and contributory and comparative negligence as defenses at trial. We discern no reversible error and affirm.

Johnny Powell, a sales manager at AYH, was killed during an after-hours fish fry held at AYH on May 19, 1998. Several AYH employees, including the manager, testified that they purchased alcohol for the fish fry with their own money. There was no evidence that any corporate fiinds of AYH were used to provide alcohol at the fish fry. Cheryl Terrigino, a member of the AYH cleaning staff who attended the fish fry along with her husband and son, also brought additional alcohol. During the course of the evening, Mr. Powell, the manager, and Terrigino had several drinks. Terrigino left the party while she was intoxicated. Shortly before Terrigino left the party, however, the manager asked Mr. Powell to accompany him on a golf cart to drive around the AYH premises and to go to a nearby store for cigarettes. Mr. Powell got into the backseat of the golf cart, and the manager drove the cart onto the highway, where it was subsequently rear-ended by a truck owned and driven by Terrigino. The accident resulted in Mr. Powell’s death. Mrs. Powell sued AYH pursuant to OCGA § 51-1-40 (b), alleging that AYH knowingly provided alcohol to Terrigino when Terrigino was noticeably intoxicated and likely to drive, which caused the accident that killed her husband.

Although several AYH employees, including the manager, testified that the fish fry at AYH was an impromptu event that had nothing to do with official AYH business, Mrs. Powell claims that her husband had previously told her that the fish fry was actually part of a mandatory sales meeting for all AYH employees. She further claims that she and her husband returned early from their annual family vacation so that Mr. Powell could attend this mandatory meeting. Terrigino testified at trial that she learned about the fish fry on the same day that it took place and that business meetings were going on with various AYH departments during the fish fry, although she took no part in these meetings and never formally got together with the other employees to discuss any upcoming sales events. •

Prior to trial, AYH moved to exclude Mrs. Powell’s testimony regarding conversations with her husband about the fish fry being a mandatory company meeting, and Mrs. Powell moved to exclude any arguments by AYH based on assumption of risk and contributory and comparative negligence. The trial court excluded Mrs. Powell’s anticipated testimony, ruling that the alleged conversations with her husband were hearsay, and that the testimony was not sufficiently trustworthy to be admitted under the necessity exception to the hearsay rule. The trial court originally denied Mrs. Powell’s motion and then reconsidered this decision in light of the dismissal of the AYH manager and Terrigino from the case prior to trial. This time the trial court only agreed to allow AYH to reference assumption of risk during its opening argument, but made no final ruling on whether assumption of risk or contributory or comparative negligence would be submitted to the jury. The court decided that any issue in this regard could be resolved at the end of the trial after the evidence had been introduced. Mrs. Powell made no objection to AYH’s presentation of the evidence to support its theories of assumption of risk and contributory and comparative negligence, and at the end of the trial, the court charged the jury on these issues without objection from Mrs. Powell.

1. The admission of evidence is a matter committed to the sound legal discretion of the trial judge whose determinations will not be disturbed on appeal absent abuse of that discretion. However, “the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” Mrs. Powell argues that the trial court abused its discretion by excluding her testimony about conversations with her husband because such testimony was admissible under OCGA § 24-3-2 as original evidence to explain Mr. Powell’s motives or conduct in attending the fish fry, or under the necessity exception to the hearsay rule. We agree that the testimony was admissible as original evidence, but conclude that its exclusion constituted harmless error since the evidence would not have been sufficient to sustain a verdict in Mrs. Powell’s favor.

“Pursuant to OCGA § 24-3-2, when the conduct and motives of an actor are relevant to the issues to be tried, then information, conversations, letters and replies . . . are admissible to explain the actor’s conduct.” Such evidence is admissible as original evidence and is not hearsay.

Since Mr. Powell’s conduct or motive in attending the fish fry was relevant to the ultimate issue of AYH’s liability, the jury should have been allowed to hear the evidence of conversations between Mrs. Powell and her husband. In order to hold AYH liable under OCGA § 51-1-40 (b), Mrs. Powell had to prove that AYH knowingly provided alcohol to Terrigino when she was noticeably intoxicated and when AYH knew that she was likely to drive. If Mr. Powell cut his vacation short in order to attend a mandatory meeting that was held in conjunction with a company fish fry, a jury could infer that it was more likely than not that AYH actually provided the alcohol at this company event or intended to reimburse employees who purchased alcohol. Although the employees testified that they used their own personal funds to supply the alcohol, the jury should have been allowed to weigh this evidence against the testimony of Mrs. Powell. To the extent that Mrs. Powell’s testimony may have reflected some bias on her part, such bias would go to her credibility as evaluated by the jury, and not to the admissibility of the testimony itself.

However, the trial court’s exclusion of Mrs. Powell’s testimony was harmless since the testimony would have been insufficient to support a jury verdict in Mrs. Powell’s favor. “[A] finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, provided that the circumstantial evidence may be construed consistently with the direct evidence.” Mrs. Powell did not present any direct evidence to contradict the testimony of AYH employees who testified that AYH did not provide any of the alcohol at the fish fry. Even if the fish fry was in fact connected to a mandatory meeting, such evidence is not inconsistent with the testimony that (1) no corporate funds were used to provide the alcohol at any such meeting and (2) AYH served no alcohol to anyone. Mrs. Powell’s proffered testimony merely created an inconclusive inference that AYH may have provided the alcohol, which is insufficient to overcome the direct evidence that AYH did not provide the alcohol. Therefore, the trial court’s exclusion of this testimony was harmless.

2. Mrs. Powell further argues that the trial court erred by allowing the jury to hear evidence and be charged on the issues of assumption of risk and contributory and comparative negligence. She contends that assumption of risk and contributory and comparative negligence do not apply in this Dram Shop Act case since no evidence existed to support these theories and since liability under OCGA § 51-1-40 (b) is based on intentional, rather than negligent, conduct. However, we find that this enumeration of error was not properly preserved for appeal.

“The trial court has an absolute right to refuse to decide on the admissibility of evidence . . . prior to trial [and] may reserve ruling on the admissibility of evidence until it is offered during trial.” Where the plaintiff fails to raise an objection to the evidence when it is presented, he forfeits his right to have the evidence excluded. Furthermore, “[e]xcept as otherwise provided in OCGA § 5-5-24 (c), in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”

Decided August 2, 2001.

Callaway, Neville & Brinson, William E. Callaway, Jr., for appellant.

Dermer, Brown, Rogers & O’Neill, Richard W. Brown, for appellee.

The court properly reserved its ruling on whether evidence relating to assumption of risk and contributory and comparative negligence could be introduced at trial and allowed the evidence to be presented without objection from Mrs. Powell. Mrs. Powell further failed to make a timely or proper objection to the jury charges and has therefore presented nothing for this Court to review.

Even if Mrs. Powell had made proper and timely objections, the trial court properly allowed the evidence and jury charges. Two judges of this Court have previously held that negligence-based defenses such as assumption of risk apply in actions brought pursuant to OCGA § 51-1-40 (b), as the defenses apply to the driver’s negligence, not the wilful provision of alcohol.* Since there was evidence here to support jury instructions based on assumption of risk and contributory and comparative negligence, the trial court did not err by submitting these issues to the jury.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Wood v. Browning-Ferris Indus. &c., 206 Ga. App. 707, 708 (3) (426 SE2d 186) (1992).

       (Citations and punctuation omitted.) Snelling v. State, 215 Ga. App. 263, 265 (1) (b) (450 SE2d 299) (1994); see Kicklighter v. Woodward, 267 Ga. 157, 161 (4) (476 SE2d 248) (1996).

       (Punctuation and footnote omitted.) Slakman v. State, 272 Ga. 662, 667 (3) (a) (533 SE2d 383) (2000); see Lloyd v. Tyson, 195 Ga. App. 48, 49 (2) (392 SE2d 551) (1990).

       OCGA § 24-3-2.

       See Haynes v. State, 244 Ga. App. 79, 81 (534 SE2d 807) (2000) (“It is the province of the judge in all instances to determine the admissibility of evidence. But it is the province of the jury to determine what weight shall be given to the evidence that has been admitted”) (citation and punctuation omitted); see also Ga. Power Co. v. Irvin, 267 Ga. 760, 766 (3) (482 SE2d 362) (1997).

       (Citations omitted.) Copeland v. Houston County Hosp. Auth., 215 Ga. App. 207, 208 (450 SE2d 235) (1994); see also Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (1) (366 SE2d 156) (1988).

       See Copeland, 215 Ga. App. at 208-209; Michelin Tire Corp., 185 Ga. App. at 784-785 (1).

        Orr v. CSX Transp., 233 Ga. App. 530, 531 (3) (505 SE2d 45) (1998).

       Id. at 532.

       (Punctuation omitted.) Id. at 531 (2) (a).

       See Taylor v. RaceTrac Petroleum, 238 Ga. App. 761, 764 (3) (519 SE2d 282) (1999) (physical precedent only).

       Id.


text:
    A01A1429.
    JENKINS v. THE STATE.
    (553 SE2d 378)
   Miller, Judge.

Derrick Dewayne Jenkins was convicted of armed robbery and possession of a firearm during the commission of a felony. After the denial of his motion for new trial, Jenkins appeals, challenging the admission of his confession. We discern no error and affirm.

Jenkins claims that his statement admitting to the robbery was involuntary because it was obtained through threats and the hope of benefit. At the Jackson-Denno hearing, Jenkins testified that the reason he confessed to committing the robbery was because one of two investigators who interviewed him promised a lighter sentence if he confessed. Jenkins further testified that this same investigator threatened him with physical harm and told Jenkins that if he did not cooperate he would have Jenkins’s kids taken away from him. Both investigators testified that they did not offer Jenkins the slightest hope of benefit of a lighter sentence and that they did not threaten him. And both denied telling Jenkins that they would take away his children.

Decided August 2, 2001.

William T. Payne, for appellant.

W. Kendall Wynne, Jr., District Attorney, for appellee.

In admitting the statement, the court found that Jenkins voluntarily spoke to investigators and that he was apprised of his Miranda rights. The court further found that the investigators were credible witnesses and that Jenkins was not. The court concluded that Jenkins gave his statement voluntarily without any threats or hope of benefit.

It is the prosecution’s burden to show the voluntariness of a custodial statement by a preponderance of the evidence. And factual and credibility determinations made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.

Here, as the trial court’s determination is supported by evidence, although contradicted, it is not clearly erroneous and is therefore affirmed.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Tucker v. State, 231 Ga. App. 210, 212 (1) (a) (498 SE2d 774) (1998).

       Id.

        Hammett v. State, 246 Ga. App. 287, 288 (1) (539 SE2d 193) (2000); see Watson v. State, 159 Ga. App. 618, 620 (2) (284 SE2d 636) (1981) (there was evidence to support trial court’s admission of confession where officer contradicted defendant’s claim that he was intoxicated when he gave incriminating statement).


author: Eldridge, Judge.

text:
    A01A1903.
    BREWER v. THE STATE.
    (553 SE2d 363)
   Eldridge, Judge.

This is the second appearance of the instant case before us. Initially, a Whitfield County jury found David Roy Brewer guilty of sodomy, aggravated child molestation, and child molestation for acts he perpetrated against his stepdaughter. Thereafter, the trial court merged the aggravated child molestation conviction into the sodomy conviction and sentenced Brewer to 20 years to serve on the sodomy conviction and 20 years to be served concurrently for the child molestation conviction. Brewer appealed, and we affirmed his conviction.

The Supreme Court of Georgia granted certiorari and reversed, finding that sexual acts directed to a child victim are not, as a matter of law, forcible and against the will.

Accordingly, upon reversal and remand of this case to this Court, we did as instructed by the Supreme Court and ordered “the trial court to vacate Brewer’s conviction and sentence for aggravated sodomy and to sentence him instead for the crime of aggravated child molestation, which offense requires no proof of force.” Also, pursuant to instruction, this Court informed Brewer that he “shall have the right to pursue an appeal from his conviction for that offense [aggravated child molestation].”

And so he does, claiming that the trial court erred in sentencing him on both aggravated child molestation and child molestation. We disagree and affirm his conviction and sentence for both offenses.

Under Count 2 of the indictment, Brewer was charged with aggravated child molestation in that he placed “his mouth into contact with [the victim’s] vagina.” Under Count 3 of the indictment, Brewer was charged with child molestation, in that Brewer “did perform an immoral and indecent act to, with and in the presence of [the victim] ... by kissing her breast, placing his mouth into contact with and kissing her vaginal area, fondling and rubbing her breast, vagina, and vaginal area, removing his underwear and getting on top of her, and causing her to touch his penis.”

Brewer contends that since the indicted act of aggravated child molestation was for putting his mouth into contact with the victim’s vagina and the indicted act of child molestation included putting his mouth into contact with the victim’s vaginal area, the offense of aggravated child molestation merged into the child molestation as encompassing the same set of facts.

If the child molestation had been indicted solely on Brewer’s act of placing his mouth on the child’s vaginal area, we might have agreed that a merger occurred, although, contrary to Brewer’s argument, the lesser offense of child molestation would merge into the greater offense of aggravated child molestation: “aggravated child molestation cannot be merged into child molestation as a matter of law, since it is a greater, not lesser, offense involving additional elements. See OCGA §§ 16-1-6 (1); 16-6-4 (b), (d) (l).” However, such merger does not occur in the instant case because the indicted act of child molestation includes other ways in which the State may prove such offense was committed. And

[w]hen an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.

Here, from Brewer’s own statement, the evidence showed that, when he was alone in bed with his ten-year-old stepdaughter, he would

hold [the victim] in my arms and would rub her breasts just to show love, not to be sexual. I would rub on top of her night shirt and sometimes inside her shirt. I would take my hand and rub between her legs, sometime outside her panties and sometimes inside her panties but I did not mean to be sexual. I never stuck my finger inside her. I never caused her to touch my penis except on one time. Her hand fell on my penis and I reached down and moved it away.

This evidence was corroborated by testimony of the victim’s outcry, as well as by the victim’s trial testimony. As such, it is sufficient to establish the offense of child molestation as indicted independent from Brewer’s placing his mouth on the victim’s vagina. Since the indicted offense of child molestation could be proved by facts different from the indicted act of aggravated child molestation, and sufficient evidence of those different facts is in the record to support a jury’s finding of guilt thereon, the trial court did not err in refusing to merge the two offenses.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided August 2, 2001.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

        Brewer v. State, 236 Ga. App. 546 (512 SE2d 30) (1999).

        Brewer v. State, 271 Ga. 605 (523 SE2d 18) (1999).

       Id. at 608.

       Id. See Brewer v. State, 242 Ga. App. 152 (529 SE2d 374) (2000).

        Graham v. State, 239 Ga. App. 429, 435 (6) (521 SE2d 249) (1999).

       (Citations and punctuation omitted.) Cronan v. State, 236 Ga. App. 374, 377-378 (3) (511 SE2d 899) (1999); Stone v. State, 229 Ga. App. 367, 370 (494 SE2d 48) (1997).


text:
    A00A0306.
    BROWN v. THE STATE.
    (553 SE2d 386)
    Decided August 3, 2001.

      Lynn M. Kleinrock, for appellant.

      J. Tom Morgan, District Attorney, Robert M. Coker, Jennifer M. Daniels, Assistant District Attorneys, for appellee.
   Eldridge, Judge.

The decision of the Court of Appeals in this case was reversed by the Supreme Court in Brown v. State, 274 Ga. 31 (549 SE2d 107) (2001). Accordingly, our decision in Brown v. State, 245 Ga. App. 149 (537 SE2d 421) (2000), is hereby vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Blackburn, C. J., Pope, P. J., Johnson, P. J., Barnes, Phipps and Mikell, JJ., concur.


author: Mikell, Judge.

text:
    A01A1054.
    SWAN v. THE STATE.
    (553 SE2d 383)
   Mikell, Judge.

Ricky Swan entered a guilty plea to two counts of aggravated assault and two counts of theft by taking. He subsequently filed a pro se motion to withdraw his plea, contending that his trial counsel rendered ineffective assistance and that, as a result, his plea was not intelligently and voluntarily entered. We disagree and affirm.

1. To prevail on his ineffective assistance claim, Swan must demonstrate that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel’s deficiencies, he would not have pleaded guilty. A trial court’s finding that counsel has rendered effective assistance will not be disturbed on appeal unless it is clearly erroneous. Martin v. State, 268 Ga. 584, 585 (492 SE2d 223) (1997).

Decided August 3, 2001.

Ricky Swan, pro se.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Evidence adduced at the hearing on the motion to withdraw amply supports the court’s finding that trial counsel’s representation “was in no manner ineffective.” Swan testified that trial counsel advised him to take the plea because the state intended to offer his confession into evidence and his chances of winning at trial were poor. Swan testified that one of the victims, who had been sworn in as a witness, would have established his innocence. On cross-examination, Swan admitted that at the plea hearing, he swore under oath that he was guilty; that he was satisfied with his attorney’s services; that he entered a negotiated plea and was aware of the sentence the court intended to impose; and that the court gave him an opportunity to withdraw his plea prior to entering sentence. In his appellate brief, Swan maintains that trial counsel used “trickery” in advising him to plead guilty, but Swan has failed to offer any evidence that counsel’s performance was deficient. Therefore, Swan did not overcome the presumption that trial “counsel’s conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment.” (Punctuation omitted.) Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987).

2. Based on our holding in Division 1, we reject Swan’s argument that his guilty plea was not intelligently and voluntarily entered because of his counsel’s performance. The trial court’s denial of a motion to withdraw a guilty plea is a matter within the court’s sound discretion and will not be disturbed on appeal unless manifestly abused. Dalton v. State, 244 Ga. App. 203, 205-206 (2) (534 SE2d 523) (2000); Ellis v. State, 240 Ga. App. 498, 501 (2) (523 SE2d 914) (1999). The court did not abuse its discretion in denying Swan’s motion to withdraw his guilty plea.

3. A knowing and voluntary plea of guilty acts as a waiver of all defenses, known or unknown. Sample v. State, 232 Ga. App. 690, 693 (2) (503 SE2d 576) (1998). Accordingly, Swan has waived his enumerated errors challenging the sufficiency of the evidence and the voluntariness of his confession. Johnson v. State, 247 Ga. App. 157, 165 (13) (f) (543 SE2d 439) (2000).

Judgment affirmed.

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


text:
    A01A1232.
    HARVEY v. THE STATE.
    (553 SE2d 384)
   Miller, Judge.

Joseph Harvey appeals his conviction for robbery by sudden snatching, asserting that the trial court erroneously admitted similar transaction evidence. As this argument is without merit, we affirm.

The evidence showed that Harvey approached the victim, who was walking down the street toward a friend’s home, and asked him for a cigarette. Harvey walked with the victim for a few seconds, then snatched the victim’s necklace from around his neck. The victim approached nearby officers who found Harvey a block away, still carrying the necklace.

The State introduced evidence of two prior crimes. In the first incident, Harvey pled guilty to robbery where the evidence showed that he approached two men and asked one for change. Harvey then pulled out a small knife and held it to the victim’s neck. The victim tossed his wallet to his friend, and Harvey snatched the wallet from the friend’s hand, took the money that was in it, and fled.

In the second incident the victim testified that while walking toward a train station, Harvey approached, motioned with something inside his jacket, and ordered the victim to walk down the street to a house. Once around the comer, Harvey snatched the victim’s necklaces. In that instance Harvey was charged with robbery but pled guilty to theft by taking.

Harvey argues that the prior crimes were not sufficiently similar and therefore should not have been admitted. Evidence of similar crimes is admissible to show motive, intent, plan, identity, modus operandi, bent of mind, or course of conduct. In order to admit this evidence, the State must demonstrate that: “(1) the evidence is admitted for a proper purpose; (2) sufficient evidence exists to establish the accused committed the independent act; and (3) a sufficient connection or similarity exists between the independent offense and the crime charged so that proof of the former tends to prove the latter.”

In this case the State presented the evidence to show Harvey’s intent, modus operandi, and course of conduct, which are proper purposes that satisfy the first requirement. The State also entered into evidence copies of Harvey’s convictions for the prior crimes and presented testimony from the victims and officers involved, meeting the second requirement.

For the third requirement “this Court must focus on the similarities between the two acts rather than the dissimilarities in determining whether there were sufficient similarities between the independent act and the instant act.” Here, there was a sufficient connection between the prior robberies and the one at issue. In both prior crimes, Harvey was on foot, approached the victims in public, and snatched a personal belonging of the victims. And in one instance Harvey snatched necklaces from the victim as the evidence showed he did in the present case. Moreover, each crime took place within several blocks of the others.

Decided August 3, 2001.

Carl P. Greenberg, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

In our view, the prior crimes were sufficiently similar and did tend to show Harvey’s intent, modus operandi, or course of conduct, the purposes claimed by the State for the introduction of the prior crimes evidence. Thus, the court did not err in admitting such evidence.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Ellerbee v. State, 247 Ga. App. 46, 50 (2) (a) (542 SE2d 146) (2000); see Pack v. State, 195 Ga. App. 419, 420 (2) (393 SE2d 719) (1990).

       (Citation omitted.) Collins v. State, 273 Ga. 93, 94 (2) (538 SE2d 47) (2000).

       (Citation omitted.) Id. at 95 (2).

       Cf. Jackson v. State, 246 Ga. App. 133, 135 (2) (539 SE2d 849) (2000) (both prior transactions occurred in the same geographic location); Gilbert v. State, 163 Ga. App. 688, 689-690 (3) (295 SE2d 173) (1982) (in three transactions the perpetrators forcibly removed wallets and jewelry from victims who were approached in public parking lots).


text:
    A01A1345.
    BYRD v. THE STATE.
    (553 SE2d 380)
   Miller, Judge.

A jury found Anthony Byrd guilty of aggravated battery. Citing insufficiency of the evidence and alleged juror misconduct, Byrd moved for a new trial, which after two evidentiary hearings was denied. He appeals on the same grounds. Discerning no error, we affirm.

1. Regarding sufficiency of the evidence, an appellate court does not weigh the evidence nor determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, i.e., whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Construed in favor of the verdict, the evidence shows that in retaliation for his wife’s unfaithfulness, Byrd maliciously bit her clitoris while performing cunnilingus upon her. She vehemently protested, but he struck her, forced her down, and again bit, this time severing a portion of her clitoris. The victim experienced bleeding, scarring, abrasion, and pain to her genital area.

The crime charged here was aggravated battery, which requires a showing that the accused maliciously caused bodily harm to the victim by depriving her of a member of her body, by rendering a member of her body useless, or by seriously disfiguring her body or a member thereof. Byrd contends that none of these three methods was shown.

At least the third method was shown. Serious disfigurement refers to gravely or greatly impairing or injuring the appearance of a member of a victim’s body, even if only temporarily. Biting off a portion of a member of the victim’s body may qualify as disfigurement. The genital organs of a woman are members of her body protected by this statute from disfigurement. For example, contusions at and tearing of the vaginal canal can constitute serious disfigurement under the statute. Thus, severing a portion of the victim’s clitoris, which according to the evidence would not regenerate and which carried a scar, constituted evidence from which a jury could find serious disfigurement.

Byrd argues that since the clitoris is not immediately visible, no disfigurement could be shown. The vaginal canal is not immediately visible, but injury to it has sufficed under the statute. Moreover, recent decisions of this Court have held that damage to internal organs of the victim, such as severe and permanent damage to the victim’s liver and spleen or a stab wound to the heart, could constitute serious disfigurement. Thus, immediate visibility is not an essential element of showing serious disfigurement. The evidence here sufficed to sustain the aggravated battery conviction.

Decided August 3, 2001.

Teddy L. Henley, Christopher A. Frazier, for appellant.

2. Following the trial, evidence surfaced suggesting that prior to or during deliberations, one of the jurors may have accessed her hospital employer’s records to inquire into Byrd’s treatment at the hospital. Citing juror misconduct, Byrd moved for a new trial. The court conducted two evidentiary hearings on the matter, in which all twelve jurors as well as the defendant testified. Denying the motion for new trial, the court found that no such misconduct had occurred and that in any case none of the jurors had even heard of such possible outside information until after deliberations were complete and the verdict was returned. Byrd contends that the court erred.

Byrd correctly argues that prejudice to the defendant is presumed when juror misconduct is shown and that the burden is on the prosecution to prove that no harm occurred. But the prosecution’s burden is shouldered only after the misconduct is shown. Whether such misconduct is shown is a question of fact for the trial judge, whose findings we will not disturb “unless clearly erroneous or wholly unsupported by the evidence.” Indeed, “motions for new trial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge. Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination.”

Evidence supported the court’s determination that no misconduct occurred. The juror who allegedly accessed the outside information adamantly denied having done so, and all of the jurors testified that no such information was brought up during deliberations. Thus, we will not disturb the trial court’s finding that no misconduct occurred.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-5-24 (a).

        Ganas v. State, 245 Ga. App. 645, 646 (1) (a) (537 SE2d 758) (2000).

        Mathis v. State, 66 Ga. App. 111, 112 (17 SE2d 194) (1941) (biting off a substantial portion of a victim’s nose qualified as disfigurement under the predecessor mayhem statute); cf. Drayton v. State, 167 Ga. App. 477 (1) (306 SE2d 731) (1983) (biting off ear was aggravated battery).

       See Kitchens v. State, 80 Ga. 810, 812 (1) (7 SE 209) (1888) (interpreting predecessor mayhem statute).

        Crawford v. State, 257 Ga. 681, 688-689 (6) (362 SE2d 201) (1987).

       See Grace v. State, 210 Ga. App. 718, 719 (2) (437 SE2d 485) (1993) (whether small scar constituted serious disfigurement was jury question).

       See Crawford, supra, 257 Ga. at 688-689 (6).

        Allen v. State, 247 Ga. App. 10, 16-17 (4) (b) (543 SE2d 45) (2000).

        Wright v. State, 243 Ga. App. 167, 168-169 (532 SE2d 724) (2000).

       See Wade v. State, 261 Ga. 105 (1) (401 SE2d 701) (1991) (majority opinion did not accept dissent’s position that an under-the-hair injury to scalp was not disfigurement under the aggravated battery statute).

        Davitt v. State, 232 Ga. App. 427, 428 (3) (502 SE2d 300) (1998).

       Id.

       (Citations omitted.) Adkins v. State, 164 Ga. App. 273, 275 (3) (297 SE2d 47) (1982); see Tharpe v. State, 262 Ga. 110, 111 (4) (b) (416 SE2d 78) (1992) (whether improper juror contact occurred is question for the trial court); Hand v. State, 205 Ga. App. 467-468 (1) (422 SE2d 316) (1992) (whether juror misconduct took place is fact question for trial court).

       (Citations and punctuation omitted.) Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (3) (433 SE2d 346) (1993).


author: Phipps, Judge.

text:
    A01A1159.
    REATTOIR v. THE STATE.
    (553 SE2d 394)
   Phipps, Judge.

A jury found Sandra Jean Reattoir guilty of accumulating brush, trash, debris, and junk vehicles on her property in violation of a Whitfield County zoning ordinance. Her arguments on appeal center on alleged errors made by the court at her trial. However, as those issues are not properly before us, we must dismiss Reattoir’s appeal.

Reattoir was convicted on May 9, 2000, and sentenced to pay a fine of $1,000 and serve ten days in jail. Her sentence was suspended contingent upon her removing certain items from her property within 30 days. Reattoir filed a motion for new trial, which was denied on July 17, and she filed a timely notice of appeal on August 4. On November 2, the County filed a motion to dismiss the appeal on the ground that Reattoir had neither filed the transcript, as required by OCGA § 5-6-42, nor obtained an extension of time to do so. On November 20, the superior court heard the matter and granted the County’s motion.

On December 4, on motion of the County, the court revoked the suspension of Reattoir’s sentence because she had not removed the items from her property and ordered her to begin serving jail time. That same day, Reattoir filed a second notice of appeal stating, once again, that she was appealing her conviction, sentence, and denial of motion for new trial. The notice of appeal did not state that Reattoir was appealing the trial court’s order dismissing her first appeal. Nor did it state that she was appealing the trial court’s order revoking her suspended sentence.

Reattoir apparently filed the transcript of the proceedings, and her second appeal was docketed in this Court. In her brief, she enumerates as error the trial court’s failure to allow her to challenge at trial the constitutionality of the zoning ordinance, but does not argue that the ordinance is, in fact, unconstitutional. She also challenges the court’s admission of photographs of her property into evidence. However, Reattoir does not challenge — or even mention — the trial court’s dismissal of her first appeal. Likewise, she does not raise any challenges to the court’s revocation of her suspended sentence. Rather, she focuses solely on errors allegedly made at trial.

The County argues that Reattoir may not raise in this appeal errors related to her conviction and original sentence. We agree. Reattoir has never challenged the trial court’s order dismissing her first appeal. Accordingly, that order stands. Reattoir cannot resurrect her first appeal simply by filing a timely notice of appeal from an order entered later in the case. Because her first appeal was dismissed, she is precluded from raising in this appeal the issues she sought to litigate there. We therefore dismiss this appeal.

Decided August 6, 2001.

Sandra J. Reattoir, pro se.

Kermit N. McManus, District Attorney, McCamy, Phillips, Tuggle & Fordham, Robert H. Smalley III, for appellee.

Appeal dismissed.

Smith, P. J., and Barnes, J., concur.

       Reattoir could have challenged the dismissal of her first appeal in this appeal, as it was filed within 30 days of the dismissal. But, as noted, she has not done so. Our review is limited to addressing the errors asserted by Reattoir. See Sullivan v. State, 235 Ga. App. 768, 771 (510 SE2d 136) (1998) (“our review is limited to those matters enumerated and argued by an appellant”). We are not at liberty to rule upon an issue she has not raised. Therefore, we will not sua sponte address the propriety of the trial court’s dismissal of her first appeal.

       See Keller v. State, 252 Ga. App. 813, 817 (3) (558 SE2d 5) (2001).


text:
    A01A1239.
    STANFORD v. THE STATE.
    (553 SE2d 622)
   Phipps, Judge.

Jimmy Stanford was convicted at a bench trial of trafficking in cocaine and sentenced to serve twenty-five years in confinement and five years on probation. He appeals his conviction and sentence. Stanford claims that the trial court erred by denying his motion to suppress because the informant relied upon by police did not know that Stanford had cocaine in his car. Stanford also claims that the trial court erred by sentencing him as a recidivist because the State failed to serve his attorney with notice of its intent to use prior convictions in aggravation of his sentence. Finding no error, we affirm.

At the hearing on Stanford’s motion to suppress, Michael Ray, a former narcotics investigator with the Spalding County Sheriff’s Office, testified that on June 18,1998, at 9:00 p.m. he received a telephone call from a confidential reliable informant. Ray testified on direct examination that the informant told him that Stanford would be at the bowling alley on Bowling Lane in approximately 20 minutes, that he would be driving a very clean early 1970s model white Cadillac, and that he would be in possession of a large quantity of cocaine. On cross-examination, Ray admitted that the informant had not told him that he knew cocaine was in the car. Instead, the informant had told him that, prior to calling Ray, he had ordered cocaine from Stanford. The informant had previously told Ray that he had been buying drugs from Stanford for over a year and that Stanford had never failed to show up with the drugs. Ray testified that the informant had given him information in the past that had led to at least three arrests and one conviction for narcotics violations.

Ray testified that after receiving the informant’s tip, he notified other officers, including Officer Ranieri, who went to the bowling alley and set up surveillance. Ranieri told Ray that he saw a very clean early 1970s model white Cadillac with a black vinyl top drive into the bowling alley parking lot at approximately 9:25 p.m. Ranieri told Ray that the car went through the bowling alley parking lot, through a nearby car wash and back through the parking lot before exiting on Bowling Lane. Ranieri and Officers Bauch and Ray followed the car out of the parking lot. Shortly thereafter, Bauch conducted a traffic stop of Stanford’s car. As Ranieri walked toward the car, Stanford made a motion toward the armrest in the center of the front seat. The officers removed Stanford from the car, and Ray performed an immediate search of his body for weapons. Ray also searched under the armrest and found several bags of cocaine. He arrested Stanford at approximately 9:30 p.m.

Stanford testified at the motion to suppress hearing that he had not received any calls that day but had received only a “beep,” which provided him with a telephone number to call. He also testified that he did not own the car he was driving and that he did not know how the drugs got in the car.

1. Stanford claims that the trial court erred by denying his motion to suppress because the officers lacked probable cause for the search. He argues that the informant lacked knowledge that he would be in possession of any drugs.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and requires that search warrants be supported by probable cause. The United States Supreme Court has long recognized an exception to the warrant requirement for searching an automobile. The ready mobility of an automobile and the fact that the expectation of privacy with respect to one’s automobile are significantly less than that relating to one’s home or office justify a warrantless search, if based upon probable cause.

The basis for the search of Stanford’s car was the informant’s tip and the officers’ corroboration of certain details of that tip.

The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability!, such as corroboration by the personal observation of a police officer].

Here, the informant had some basis for his knowledge — he had ordered cocaine from Stanford that day and expected him to show up with the drugs, as he had always done in the course of their dealings over the past year. As for the informant’s reliability, Ray testified that the informant had given him information in the past that had led to at least three arrests and one conviction for narcotics violations. He did not, however, give any indication as to when or over what period of time the information was given. But there were other indicia of the tip’s reliability. The officers corroborated the tip in several respects: Stanford was observed driving an automobile of the same description given by the informant to the location supplied by the informant and within close proximity of the time the informant predicted. In addition, after he was stopped, Stanford made a furtive move toward the armrest, further indicating that the informant’s tip was correct. All of this evidence, taken together, was sufficient to establish probable cause for a warrantless search of Stanford’s car. We find no error in the trial court’s denial of Stanford’s motion to suppress.

2. Stanford argues that the trial court erred by sentencing him as a recidivist because the State failed to serve his attorney with notice of its intent to use prior convictions in aggravation of his sentence.

The record shows that on April 13, 1999, the State filed and served by mail on Stanford’s appointed counsel a “Notice of Prior Convictions to be Used in Aggravation of Sentencing,” which describes Stanford’s two prior convictions for violations of the Georgia Controlled Substances Act. Stanford later retained counsel, who argued at sentencing that he had no prior notice of the State’s intent to introduce prior convictions in aggravation of sentencing because the notice was not served on him. The record shows that Stanford’s retained counsel made his first appearance in the case on April 30, 1999. Thereafter, the State served him with all documents filed with the court.

OCGA § 17-10-2 requires “clear notice” to an accused or his attorney of all previous convictions that the State intends to introduce at trial “to allow a defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” Although Stanford’s retained counsel claims that he did not receive notice of the State’s intent to use prior convictions, the notice was served properly upon Stanford’s then counsel of record. OCGA § 17-1-1 provides that all pleadings, orders and motions subsequent to the indictment shall be served upon the party’s attorney by delivering a copy to him or mailing it to him at his last known address. We know of no requirement that the State serve subsequent counsel with an additional copy of the notice. Thus, service was lawfully accomplished.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided August 6, 2001.

Cramer & Peavy, Timothy C. Cramer, for appellant.

William T. McBroom III, District Attorney, Robert H. English, Assistant District Attorney, for appellee.

       (Citations omitted.) Edgerton v. State, 237 Ga. App. 786, 787 (516 SE2d 830) (1999).

        Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925).

        California v. Carney, 471 U. S. 386, 390-393 (105 SC 2066, 85 LE2d 406) (1985).

       (Citations and punctuation omitted.) Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991).

       See Meadows v. State, 247 Ga. App. 634, 636-637 (1) (545 SE2d 76) (2001).

       See State v. Burnett, 249 Ga. App. 334, 337 (2) (548 SE2d 443) (2001) (furtive behavior not only validates a tip but is another factor to be considered in determining whether probable cause exists).

       See Archer v. State, 217 Ga. App. 395, 396-397 (457 SE2d 679) (1995) (confirmed tip from informant of previously unconfirmed reliability provided police with probable cause to effectuate an investigatory stop and warrantless search of defendant’s moving vehicle).

        Herring v. State, 238 Ga. 288, 290 (4) (232 SE2d 826) (1977); Gates v. State, 229 Ga. 796, 797 (4) (194 SE2d 412) (1972).

       See Cabell v. State, 250 Ga. App. 530 (551 SE2d 386) (2001).


text:
    A01A1301.
    BOWMAN v. WALNUT MOUNTAIN PROPERTY OWNERS ASSOCIATION, INC.
    (553 SE2d 389)
   Eldridge, Judge.

William Bowman, Jr., as a tenant at will of property owned by Ridgehaven Homes, Inc. in the Walnut Mountain Subdivision, appeals the dismissal for lack of standing of his complaint against Walnut Mountain Property Owners Association, Inc. seeking declaratory judgment and damages as to the Covenants, Conditions, and Restrictions for the Walnut Mountain Subdivision. Ridgehaven Homes (“Ridgehaven”) appeals the trial court’s finding in such action that all of the land that it owns is subject to the covenants, conditions, and restrictions as recorded in Deed Book 48, page 472, Gilmer County real property records and “as subsequently amended or supplemented the deeds to Ridgehaven Homes, Inc., having made said covenants and conditions a part of said deeds” in Deed Book 268, page 87. Bowman appeals the trial court’s finding that Bowman’s tenancy at will does not vest in him an estate with sufficient interest in the land to afford him standing to bring this action, because title to such land is in Ridgehaven. We affirm the trial court’s findings as to both claims of error.

Bowman incorporated Ridgehaven to develop lots in the Walnut Mountain Subdivision after it had been subdivided subject to the covenants, conditions, and restrictions created by the owner. On various dates in 1995 and 1996, Ridgehaven received title to lots in the Walnut Mountain Subdivision with legal reference to Plat Book 4, page 43, and expressly subject to the covenants and restrictions of Walnut Mountain recorded in its deeds of Deed Book 48, page 472; Deed Book 50, page 491; Deed Book 75, pages 198, 225, and 469; and the renewal in Deed Book 268, page 87. The original grantor of these lots was the Ocmulgee Corporation, which created the covenants, conditions, and restrictions as covenants running with the land. Over five years after the renewal and extension of the covenants, conditions, and restrictions had been filed of record for another ten years, Ridgehaven took title to these lots under deeds expressly referencing such covenants.

On April 10, 1971, April 29, 1971, and April 8, 1977, the Ocmulgee Corporation made and filed of record the Declaration of Covenants, Conditions, and Restrictions of Walnut Mountain that subjected such land to these covenants running with the land.

The Walnut Mountain Property Owners Association, a not-for-profit corporation, is governed by a constitution and bylaws and administers such subdivision common areas.

On August 11, 1990, on behalf of its owner-members, Walnut Mountain Property Owners Association, through its president and attested to by its secretary, filed of record an agreement of renewal and extension of the Ocmulgee Corporation’s covenants, conditions, and restrictions for Walnut Mountain from April 10, 1991, for ten years. This recordable agreement, which renewed and extended the covenants, stated that 68 percent of the lot owners had executed written consent agreements to the renewal and that such separate agreements were on file in its offices.

On July 30, 1998, Ridgehaven conveyed to Shelley Carter a lot by recorded deed which incorporated these covenants and made the lot subject to the covenants.

1. Ridgehaven contends that the trial court erred in finding that it was subject to the covenants, because the covenants were not properly renewed as provided under the covenants for renewal and extension, and the original covenants had expired as a matter of law. We do not agree.

Article IX of the Declaration of Covenants, Conditions, and Restrictions of Walnut Mountain provided that it was a covenant running with the land for a period of twenty years and could be renewed in successive ten-year periods under its renewal and extension procedure:

if an agreement of renewal and extension is signed (a) by Declarant, if it is the owner of any lots then subject thereto, (b) by at least two thirds (2/3) of the Property Owners whose lots are then subject thereto, and (c) by the then owner of the Common Properties within Walnut Mountain. No such agreement of renewal and extension shall be effective unless filed for record at least one hundred eighty (180) days prior to the effective date of such renewal and extension.

On August 11, 1990, the renewal and extension was filed of record more than six months prior to its expiration date on April 10, 1991. The recorded agreement for renewal and extension was executed by the president and secretary of the Walnut Mountain Property Owners Association, the owner of the common areas, on behalf of the lot owners; the extension agreement recited that the separately executed consent agreements of 68 percent of the lot owners had been obtained and were on file in its office, agreeing to the extension. This constituted an incorporation by reference of such separate consent agreements of 68 percent of the lot owners. In 1990, the Ocmulgee Corporation no longer owned any lots in the Walnut Mountain Subdivision. Thus, all of the conditions for a ten-year extension of the covenants had been satisfied.

(a) Ridgehaven contends that Article IX has not been complied with because, although sixty-eight percent of the property owners consented separately in writing to the renewal and extension of the covenant for ten years, all sixty-eight percent of the property owners consented improperly to the renewal and extension by separately signing agreements instead of executing one single agreement. Therefore, it contends that the intent of the property owners to extend the covenants, including Ridgehaven’s grantors in title, has been frustrated and has no legal effect.

Ridgehaven relies upon Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 426-427 (1) (532 SE2d 736) (2000), which held that the property owners there had to strictly follow OCGA § 44-5-60 (d) (1) for an extension under the statute to be effective. While this is true of the statutory extension, here the renewal and extension procedure was part of the covenant running with the land, which provided for such renewal and extension, and the extension was by mutual written agreement between the property owners in reliance on the acts of each other. All owners took subject to the covenants being renewable under the covenants themselves.

Even if the statutory extension were not available, promissory estoppel would prevent Ridgehaven from now disavowing what its predecessors in title agreed to do and caused the other lot owners to mutually rely upon to their detriment. Ridgehaven’s predecessors in title executed separate agreements without insisting that only one agreement of extension should be executed, causing the other lot owners to change positions to their detriment in not signing and filing a single agreement of renewal and extension. Thus, Ridgehaven, by taking title with the covenants of record specifically referencing the renewal and extension in its deeds, to which the predecessors in title agreed, became subject to promissory estoppel because of the actions of its grantors. Canterbury Forest Assn. v. Collins, supra at 427-428.

(b) In this case, the property owners carried out the exact terms and conditions of the recorded covenants under the renewal and extension procedures.

The meaning of the “agreement” required to be signed by two-thirds of the property owners on its face appears to be ambiguous within the clear meaning of the word, i.e., “agreement,” makes it unclear whether the property owners must each execute a single written agreement, can sign separate written agreements, or can incorporate by reference separate written agreements into one written renewal and extension agreement filed of record on their behalf by the property owners association.

The construction of the meaning of the language in a contract is a legal issue under the rules of contract construction. OCGA § 13-2-1; Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981); Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981). “But a contract is not ambiguous, even where difficult to construe . . . unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” (Citation omitted.) Crooks v. Crim, supra at 748. Where the language of the contract is plain, clear, and undisputed but the meaning of the language is in dispute, construction of such term is for the trial court to determine the meaning, and if after application of the rules of construction there exists no ambiguity, then the court has resolved as a matter of law any apparent ambiguity. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986); Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987). The intent of the parties where clearly expressed controls over all technical or arbitrary rules of construction. OCGA § 13-2-3; Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425, 429 (2) (333 SE2d 622) (1985). Here, 68 percent of the lot owners expressly intended to exercise their rights to renew and extend the covenants protecting their lots in writing no matter what Ridgehaven as a subsequently acquiring grantee intended the language to mean; it was not a party to the mutual agreement, only a privy.

(c) Construction of contracts, like construction of statutes, seeks to carry out the intent of the parties, and in this case, the clear intent was to renew and extend the covenants to protect the property owners. Where, as here, the intention of the property owners is clear, unambiguous, and not in dispute and does not contravene any rule of law, their written agreements to extend the existing covenants under the procedure for renewal will be enforced according to its terms. OCGA § 13-2-3; Budd Land Co. v. K & R Realty Co., 159 Ga. App. 448, 449 (2) (283 SE2d 665) (1981); Crawford v. Crawford, 158 Ga. App. 187, 188 (279 SE2d 486) (1981). Therefore, where there has been a substantial compliance with the terms and conditions of the covenant permitting renewal and extension, such substantial compliance sufficiently satisfies the procedure as in statutory construction. OCGA § 1-3-1 (c); O’Neal v. Spencer, 203 Ga. 588 (47 SE2d 646) (1948); MoretOn Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405 (523 SE2d 600) (1999); Health Hori zons v. State Farm &c. Ins. Co., 239 Ga. App. 440 (521 SE2d 383) (1999). “ ‘Good faith’ is a shorthand way of saying substantial compliance with the spirit, and not merely the letter, of a contract. Crooks v. Chapman Co., 124 Ga. App. 718, 720 (185 SE2d 787) (1971).” Fisher v. Toombs County Nursing Home, 223 Ga. App. 842, 845-846 (2) (479 SE2d 180) (1996); see also OCGA § 13-4-20; First Nat. Bank &c. v. Wynne, 149 Ga. App. 811, 817 (1) (256 SE2d 383) (1979). When giving effect to the clear intent of the owners and the substantial purpose of the covenants and extension, the court will give effect to such overall scheme. Friedman v. Friedman, 259 Ga. 530, 532-533 (3) (384 SE2d 641) (1989), overruled on other grounds, Duckworth v. State, 268 Ga. 566 (492 SE2d 201) (1997).

Thus, the agreement filed of record can incorporate by reference the separately executed agreements of the 68 percent of the lot owners to constitute a unitary agreement to renew and extend the covenants to give effect to the property owners’ written intent and purpose. A written agreement can be formulated from separate signed documents. Bd. of Regents &c. of Ga. v. Tyson, 261 Ga. 368, 369 (404 SE2d 557) (1991); Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (314 SE2d 874) (1984). A written and filed agreement may also incorporate by reference, as was done here, other documents by specific reference and identification so that such documents are treated as if a part of the document making the reference. “As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where the provision [s] to which reference is made [have] a reasonably clear and ascertainable meaning.” Goldman v. Vinson, 244 Ga. App. 815, 817 (1) (535 SE2d 305) (2000); see accord Town Center Assoc. v. Workman, 227 Ga. App. 55, 57 (1) (487 SE2d 624) (1997). “There is here such a description because a deed incorporating a recorded plat by reference as the legal description has the same effect as if written out in the deed.” Jones v. Bowen, 244 Ga. App. 300, 302 (535 SE2d 501) (2000); see also Reidling v. Holcomb, 225 Ga. App. 229, 231 (1) (483 SE2d 624) (1997). Thus, the Walnut Mountain Property Owners Association properly renewed and extended the covenants, even in the form of a single agreement.

(d) “When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.” OCGA § 44-5-39; Hill v. Moye, 221 Ga. App. 411, 413 (2) (471 SE2d 910) (1996). The owner of a fee in land has the right to convey his land subject to such reservations or restrictions in the form of covenants running with the land as he may impose, provided that such covenants are not contrary to public policy. Cawthon v. Anderson, 211 Ga. 77, 78 (1) (84 SE2d 66) (1954). Thus, restriction of use of the land conveyed may burden the land through the deed of title. Winslette v. Keeler, 220 Ga. 100, 101 (1) (137 SE2d 288) (1964). By accepting a deed with covenants and restrictions, the grantee voluntarily consents to be bound by such covenants. Id. at 101. Thus, all of Ridge-haven’s lots are subject to the renewed covenants, conditions, and restrictions.

2. Bowman contends that, although he has no ownership interest in any land in the Walnut Mountain Subdivision, as a tenant at will of Ridgehaven he has a direct interest in the property, giving him standing, and that the trial court erred in dismissing him from the suit. We do not agree, because Bowman is a mere tenant at will.

When a lessee has a lease agreement for five or more years, an estate for years passes to the lessee. OCGA § 44-7-1; Roe v. Doe, 246 Ga. 138, 140 (1) (268 SE2d 901) (1980); Paces Partnership v. Grant, 212 Ga. App. 621, 624 (1) (442 SE2d 826) (1994); Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531 (349 SE2d 515) (1986). However, a tenant under a contract for less than five years has only a usufruct, which is the rights and privileges arising as a matter of law from the landlord-tenant relationship. See Roe v. Doe, supra at 138; Sharpe v. Mathews, 123 Ga. 794, 797-798 (2) (51 SE 706) (1905). Under a usufructuary interest, the tenant cannot sublet the premises, convey his usufructuary interest, nor assign his lease without the landlord’s consent. Hudson v. Stewart, 110 Ga. 37, 38-39 (35 SE 178) (1900). A tenant at will is in possession by right which is evidenced by the will of the landlord, giving permission to the occupancy and the will of the tenant that is implied by possession of the premises; a 60-day notice to quit, as well as the emoluments of tenancy, arises. OCGA § 44-7-7; Nicholes v. Swift, 118 Ga. 922, 924-925 (1) (45 SE 708) (1903); Carruth v. Carruth, 77 Ga. App. 131, 134-135 (1) (48 SE2d 387) (1948).

In Meco of Atlanta v. Super Valu Stores, 215 Ga. App. 146, 147 (449 SE2d 687) (1994), relied upon by Bowman, the lessor leased the improved realty to the lessee for fifteen years with three additional five-year renewable terms, which created an estate for years in the lessee. Under such facts and circumstances, the lessee had standing to contest a materialman’s lien foreclosure, because the lessee had an estate for years and not a mere usufructuary interest, as does Bowman. As a matter of law and fact, Meco is distinguishable from this case.

Although Bowman is the president and sole stockholder of Ridgehaven, he has no right to bring an action for injuries to the corporate entity, because such legal entity must sue in its own name. However, if the shareholder can show that he has suffered a “special injury” that allows a personal cause of action, he may proceed individually. Such is not the case here, and the trial court properly dismissed Bowman for lack of standing. See Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585-586 (1) (397 SE2d 699) (1990).

Decided August 6, 2001.

Ray & McKinney, Robert M. Ray, Jr., for appellant.

Weissman, Nowack, Curry & Wilco, Charles B. Waters, Jr., David E. Ralston, for appellee.

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.


text:
    A01A1307.
    TOWNSEND v. THE STATE.
    (553 SE2d 628)
   Phipps, Judge.

Tommy Mario Townsend appeals his convictions for obstruction of an officer, reckless driving, two counts of aggravated assault on a police officer, leaving the scene of an accident, and two counts of theft by receiving stolen property. He contests the sufficiency of the evidence and the court’s failure to give a requested jury charge. Because we find that the evidence was sufficient and that the requested jury charge was given, we affirm.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

The evidence showed that around 1:00 p.m. on December 1, 1999, a security officer of an apartment complex received a report of suspicious activity in the parking lot behind one of the apartment buildings and called the police. Police Officer Henry responded. When she and the security officer went to the area, they saw two men working on and exchanging parts between a green Honda and a blue Honda. The cars were not parked in marked spaces, but were parked “end to end” in the driving area of the lot. The security officer did not recognize either car.

When Police Officers Stephens and Flaherty and other officers arrived as backup, they approached the parking area from opposite ends of the apartment building. From approximately 30 to 50 feet away, Officer Henry motioned for the two men to approach her police vehicle. One of the men jumped into the green Honda, and the other man jumped into the blue Honda. They fled in different directions.

Officers Stephens and Flaherty were walking around the building when the green Honda came from behind it. The officers motioned for the driver to stop and yelled, “police . . . stop.” Instead, the driver aimed the car at the officers and accelerated. The officers jumped to their safety. Traveling at approximately 50 mph, the driver hit a curb, became airborne, then struck the blue Honda, “totaling” the green Honda. Both men fled on foot. Officer Flaherty chased the driver of the green Honda, but did not apprehend him.

At trial, Officer Stephens stated that he could see the driver of the green Honda through the driver’s door window, which although slightly tinted was rolled down about five or six inches. He identified Townsend as the driver. Officer Flaherty testified that he also observed the driver’s face as the car came within a couple of feet of him and during the ensuing foot pursuit as the assailant looked back a few times. He also identified Townsend.

Townsend’s fingerprint was found on the exterior passenger rear window of the green Honda. A police check of the car’s vehicle identification number showed that the car belonged to someone else, and the owner testified that his car had been stolen around Thanksgiving of 1999. The car’s ignition switch had been forcefully removed from the steering column, allowing a driver to start the car without a key. And the tag affixed to the car was not the correct one, but one stolen from another Honda.

1. The evidence was sufficient to authorize a jury to find Townsend guilty beyond a reasonable doubt of obstruction of an officer, reckless driving, two counts of aggravated assault (upon police officers), leaving the scene of an accident, and two counts of theft by receiving stolen property (car and tag).

2. Although Townsend argues otherwise, the trial court did not refuse to give his requested charge on “bare suspicion.”

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided August 6, 2001.

Robert H. Suttles, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Patterson, supra, 225 Ga. App. at 515.

       Id.

       OCGA § 16-10-24; see Overand v. State, 240 Ga. App. 682-683 (1) (523 SE2d 610) (1999); Tuggle v. State, 236 Ga. App. 847, 849 (2) (512 SE2d 650) (1999).

       OCGA § 40-6-390; see Duncan v. State, 202 Ga. App. 456-457 (415 SE2d 7) (1992).

       OCGA § 16-5-21 (a) (2); see Butler v. State, 196 Ga. App. 706, 708 (1) (a) (396 SE2d 916) (1990).

       OCGA § 40-6-270 (c) (1).

        Jackson, supra, 443 U. S. 307; OCGA § 16-8-7 (a); see Abner v. State, 196 Ga. App. 752, 753 (1) (397 SE2d 36) (1990).


author: Andrews, Presiding Judge.

text:
    A01A1354.
    SMITH v. THE STATE.
    (553 SE2d 626)
   Andrews, Presiding Judge.

Robert Lee Smith appeals from the trial court’s denial of his motion to suppress evidence that was seized at his house pursuant to a search warrant. Because we conclude there was probable cause to issue the warrant, we affirm.

The evidence at the hearing on the motion to suppress was as follows. Walker, the officer who signed the affidavit for the search warrant, testified that he was working with a confidential informant at the time in question and went with the informant to the trailer park where Smith lived. After searching the informant to make sure he was not carrying any contraband, the investigator gave the informant money to buy cocaine. The informant went up to a woman who had come out of one of the trailers and told her he wanted to buy some cocaine. The investigator had his window rolled down and could hear the conversation between the woman and the informant. The confidential informant asked the woman if she would go to defendant Smith’s house and buy some cocaine for him. The woman agreed, and the informant handed her the money. The woman went to Smith’s trailer and knocked on the door, and the door was opened for her. Three to five minutes later, the investigator saw her come out of the trailer, go up to the confidential informant and put something in his hand. The woman also told the informant that there was more cocaine in the trailer for future drug buys.

Walker was unsure exactly when he completed the affidavit for the search warrant, but stated that it was within 72 hours of the drug buy. The affidavit described Smith’s trailer and gave the account of the drug buy described above. The affidavit also stated that the “unwilling” informant told the confidential informant that the cocaine was transported in a vehicle with Georgia license number 901SB, and an independent investigation showed that car was registered to Smith. Walker also stated that he monitored “all actions” of the confidential informant and the unwilling informant.

In determining probable cause for a search warrant, the magistrate is merely to “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before (the magistrate), including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997), quoting State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The trial court will then examine the issue, and its factual findings regarding probable cause for issuance of the warrant will be upheld unless clearly erroneous. Bryant v. State, 268 Ga. 616, 618 (6) (491 SE2d 320) (1997); Williams v. State, 267 Ga. 771 (4) (482 SE2d 288) (1997). Ultimately, this Court’s role on review is to “determine if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search (warrant).” DeYoung at 787 (7). See also Grier v. State, 266 Ga. 170, 172 (2) (b) (465 SE2d 655) (1996). And a reviewing court is to give substantial deference to the magistrate’s decision to issue a search warrant after finding probable cause. Id.

Abraha v. State, 271 Ga. 309, 311 (518 SE2d 894) (1999).

Smith argues on appeal that there was no probable cause to issue the warrant because Officer Walker could not verify that the unwilling informant did not have drugs on her when she went into the trailer. Also, he contends the affidavit was insufficient because there was no evidence provided to the magistrate on the reliability of this unwilling informant. We disagree.

“[AJlthough information regarding the reliability of the informant is highly relevant to the totality of the circumstances determination, the absence of significant information regarding reliability is not necessarily fatal to an affidavit.” Munson v. State, 211 Ga. App. 80, 82 (438 SE2d 123) (1993). Moreover, the “totality of the circumstances” analysis applies also in situations in which there are two informers. Id. at 81.

In the instant case, the officer heard the conversation between the informant and the unwilling informant and saw the unwilling informant take the money, go into Smith’s trailer, and return with the contraband. This was sufficient to establish a substantial basis for concluding that contraband would be found on Smith’s property. Perkins v. State, 220 Ga. App. 524, 525 (469 SE2d 796) (1996); Hamilton v. State, 210 Ga. App. 496, 498 (436 SE2d 500) (1993). See also Hockman v. State, 226 Ga. App. 521, 522 (487 SE2d 102) (1997) (physical precedent only). Accordingly, the trial court did not err in denying Smith’s motion to suppress.

Decided August 6, 2001.

W. Keith Davidson, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Miller, JJ., concur.