author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A1227.
    T. V. MINORITY et al. v. CHAFFINS.
    (479 SE2d 373)
   Birdsong, Presiding Judge.

Jeffrey Chaffins suffered a work-related injury on March 26, 1993 and received workers’ compensation benefits until he was released to his regular job as an inspector with appellant T. V. Minority. He then filed an application to the State Board of Workers’ Compensation alleging a change of conditions as of August 26, 1993 or, in the alternative, seeking benefits and penalties under OCGA § 34-9-221. After a full hearing the ALJ denied Chaffins’ claim on finding that he “failed to show a sincere effort to obtain suitable employment” and that his “economic condition is caused by his own self-imposed wage requirements and is unrelated to his physical condition.” The ALJ noted that Chaffins is restricted from driving, working in high places and around heavy machinery, but nevertheless continues to drive four-wheel vehicles and to build “expert level model cars, using hobby knives, and painting his own decals. In 1994, [he] built approximately 60 model cars.”

The board adopted the ALJ’s findings and ruling. See OCGA § 34-9-103 (a). The superior court remanded the case, saying the issues are “whether suitable employment was offered and [sic] when the employee was not able to work, thus qualifying [him] for [temporary total disability and permanent partial disability] benefits and whether there has been compliance with OCGA §§ 34-9-263 and 34-9-221.” We granted this discretionary appeal. Held:

1. “In order to receive workers’ compensation benefits based on a change in condition, a claimant must establish by a prepojideran.ee of the evidence that he or she suffered a-loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant’s good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability.” (Emphasis supplied.) Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606).

In the first place, the premise on which the superior court remanded this case — that Chaffins was “not able to work” — is error as it is a substituted finding of fact. It is well settled that on appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division of the board’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and it is not authorized to substitute its judgment as to weight and credibility of the witnesses. American Intl. Adjusting Co. v. Davids, 202 Ga. App. 276, 277-278 (414 SE2d 292). The board concluded Chaffins was able to work. As this finding is supported by evidence, it is binding and the superior court had no power to change it.

Consistent with the law as stated in Maloney, the. board found that although Chaffins is able to work he had not made .sincere efforts to seek suitable employment and that his economic condition is caused by self-imposed requirements and is unrelated to his physical condition. These findings are supported by evidence and are binding. As there was evidence supporting the board’s findings and no error of law appears, the superior court was required to affirm the board’s denial of benefits.

2. As the denial of benefits is supported by evidence and law, no issue arises as to penalties under OCGA § 34-9-221.'

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment that this change of economic condition case, brought under OCGA § 34-9-104, was erroneously remanded. As the majority holds, the award of the appellate divisiop. should have been affirmed by the superior court. OCGA § 34-9-105 (c) and (d) demanded it. Two items require that note be made, however.

1. The opinion states that the board “adopted” the ALJ’s findings. Before the procedure was changed in 1994, OCGA § 34-9-103 (a) provided that the appeal to the board from the ALJ be a de novo proceeding, albeit sometimes only on the record. Peters v. Liberty Mut. Ins. Co., 113 Ga. App. 41 (147 SE2d 26) (1966). The whole board acted as a factfinding body anew. Atkinson v. Fairforest Co., 90 Ga. App. 425 (83 SE2d 243) (1954). The board was required to make findings of fact on which to base its decision. OCGA § 34-9-102; see Pacific Employers Ins. Co. v. West, 213 Ga. 296 (99 SE2d 89) (1957). In fulfilling this duty, it often adopted as its own the articulated findings of the ALJ when its findings were identical.

But since the revision of the review process in 1994, the board sitting as the appellate division does not repeat what the ALJ has done and make original findings of fact starting afresh but rather must defer to the ALJ’s findings of fact in accordance with the new standard of review. In making its award, “[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Ga. L. 1994, p. 887, § 8, eff. July 1, 1994. So the ALJ’s findings of fact are not “adopted” by the appellate division as shorthand for its own express findings but rather, as in this case, “accepted” by it as true when properly supported. A reviewing superior court cannot substitute its own finding of fact for that of the ALJ. OCGA § 34-9-105. But the reviewing appellate division of the board can do so if the weight of competent and credible evidence compels it. The statute also gives the appellate division authority to remand the case to the ALJ for reconsideration and correction of errors and omissions (with or without additional evidence) if, for example, the ALJ’s findings of fact are not duly supported.

2. The opinion refers to facts which “the board found” and concludes that its “findings are supported by evidence.” It also states that the superior court was thus required to affirm “the board’s denial of benefits.” This should be interpreted to mean that it was the ALJ, sitting as the trial division of the board, who found the facts, and that it was the full board, sitting as the appellate division, which made the ALJ’s award denying benefits its award, which award the superior court was required to affirm. OCGA §§ 34-9-103; 34-9-105. See Clinical Arts v. Smith, 218 Ga. App. 681 (462 SE2d 757) (1995).

Although the appellate division is required by law to include “findings of fact and conclusions of law” in explanation of its award, OCGA § 34-9-103 (a), it must accept the preponderance-supported findings of fact of the ALJ because its review is not strictly de novo. It does apply the “any evidence” standard, by which the appellate court simply examines the record to determine if there is competent evidence to support each required finding of fact in a particular legal setting. Instead, it must examine all of the evidence in a hybrid type of review. '

Decided November 8, 1996.

McLaughlin, Hendon & Miller, W. Zachary Hendon, Jr., for appellants.

John W. Folsom, for appellee.

If it agrees that the preponderance, the greater weight, lies with the party favored by the ALJ, it must accept the ALJ’s findings of fact. Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137 (473 SE2d 166) (1996). Competency of the evidence is a legal question, but credibility is not; the appellate division must give deference to the ALJ’s decision on credibility where such decision is based on seeing and hearing the witnesses. This handicap must be taken into account as a significant factor when the board judges the credibility of competent evidence when performing its hybrid review function. Thus, when we wrote in the recent opinion in Bennett-Murray that “the new standard . . . authorizes the Appellate Division to make determinations concerning the credibility of the evidence,” we inferred this caveat. Id. at 139.

The statement in Clinical Arts, supra at 682, that “the appellate division must make its own findings of fact” is somewhat misleading as the appellate division cannot substitute its own findings for findings of the ALJ which are properly supported. As recognized further on in Clinical Arts, “the appellate division is required to accept findings of fact made by the ALJ” in accordance with the Code mandate.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A2273.
    IGLE v. THE STATE.
    (478 SE2d 622)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of burglary and one count each of aggravated assault and armed robbery. The evidence adduced at his jury trial showed that four youths broke into the home of the bed-ridden victim. The victim told the intruders she kept about $300 in a tin box in her dresser. One of the four found the tin box. Defendant was not the gunman but was identified as the leader, “giving the orders . . .” to tape the victim’s mouth. Defendant then ordered the gunman, Randy Jenkins, to fire the pistol. One of the.four then placed the pistol “to her head, pulled the trigger, and thbpistol did not fire.”

The jury found defendant “guilty of count two, burglary with intent to commit robbery, guilty on count four, armed robbery, guilty on count three, aggravated assault.” His motion for new trial was denied and this appeal followed. Held:

1. The victim of the crimes in the case sub judice died before trial. Her testimony as given at a preliminary hearing, where she identified defendant, was read to the jury. In his first enumeration of error, defendant contends the trial court erred in overruling his motion in limine to exclude from evidence at trial the victim’s testimony as read from a transcript of the pre-indictment preliminary hearing. He argues that this procedure denied him his statutory right to a thorough and sifting cross-examination and his Sixth Amendment right to confrontation of the witnesses against him.

“The [preliminary] hearing testimony of [the victim identifying defendant as one of the burglars] was admissible at [defendant’s] trial under the provisions of Code § 38-314 [now OCGA § 24-3-10]. See California v. Green, 399 U. S. 149 (90 SC 1930, 26 LE2d 489). Thus no error is shown by the admission of this testimony.” Bennett v. State, 231 Ga. 458, 460 (1), 461 (202 SE2d 99).

2. Next, defendant contends the trial court erred in admitting into evidence the victim’s out-of-court statements as related to the jury by Officer Deborah E. Foote, Detective Ethel Brown King, and the victim’s son, Detective Greg Milton. He argues this testimony was hearsay and deprived him of the right to cross-examine.

(a) “Allowing testimony by a police officer as to [photographic] line-up identification of the [defendant by the victim] was not improper.” Jackson v. State, 225 Ga. 39 (hn. 9) (165 SE2d 711). “This testimony was not subject to the objection that it is hearsay, and such enumeration is without merit. [Cit.]” Haralson v. State, 234 Ga. 406, 408 (4) (216 SE2d 304).

(b) Detective King’s testimony, whereby she related the victim’s identification of the perpetrators by describing them to Detective King, was properly admitted as part of the res gestae. McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136). Compare Smith v. State, 266 Ga. 827, 830 (4) (470 SE2d 674), where the testimony of a “police officer and arson investigator in which they reiterated [a burning victim’s] statements was hearsay . . .” which was not admissible under the necessity exception.

(c) Although we find no error in this instance, any error in allowing Detective Milton to repeat, to the jury unsworn statements made at the scene by his mother, the victim, is harmless because Detective Milton’s testimony is cumulative of the victim’s properly admitted testimony under oath as given by her at the preliminary hearing. Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617). Accord Smith v. State, 266 Ga. 827, 830 (4), 831, supra.

3. Defendant enumerates the general grounds, arguing that his conviction for burglary fails because the State failed to prove a completed armed robbery. This enumeration is without merit.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .” OCGA § 16-7-1 (a). To complete the crime of burglary, it is not necessary that a defendant actually commit a completed theft; it is sufficient if he enters without authority and with the intent to commit a theft or felony. Johnson v. State, 262 Ga. 441 (1), 442 (421 SE2d 70); Roberts v. State, 252 Ga. 227, 240 (14), 241 (314 SE2d 83). See also Bohannon v. State, 208 Ga. App. 576 (1), 577 (431 SE2d 149).

“The matter of whether defendant intended to commit a felony when he [and his companions] entered the [victim’s] house was for determination by the jury under the facts and circumstance proved. Thompson v. State, 76 Ga. App. 239 (3) (45 SE2d 675). Generally, [the] specific intent [of a burglar] must be proved by circumstantial evidence. Flewellen v. State, 77 Ga. App. 804 (49 SE2d 921). And the fact that the defendant did not accomplish his apparent purpose does not render a finding of burglary improper. White v. State, 7 Ga. App. 596 (67 SE 705); Daniel v. State, 48 Ga. App. 789 (4) (173 SE 485).” Coney v. State, 125 Ga. App. 52 (1), 53 (1) (b), 54 (186 SE2d 478). In the case sub judice, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of burglary with the intent to commit robbery as alleged in Count 2 of the indictment.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). Defendant further contends there was no evidence of an actual taking. We disagree.

The victim testified at the preliminary hearing that the gunman, Randy Jenkins, “grabbed the [tin] box out of the thing, and then dropped it.” He “just throwed it down. . . .” In our opinion, this is sufficient to prove a taking by use of the pistol. “ ‘The slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation.’ Johnson v. State, 9 Ga. App. 409 (2) (71 SE 507); Rivers v. State, 46 Ga. App. 778 (169 SE 260). It is not required that the property taken be permanently appropriated. Slaughter v. State, 113 Ga. 284, 287 (38 SE 854, . . .).” James v. State, 232 Ga. 834, 835 (209 SE2d 176). The enumeration of the general grounds is without merit.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

Decided November 8, 1996.

Emory B. Bazemore, Andrea S. Moyers, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.


text:
    A96A2205.
    WOMACK et al. v. COLUMBUS RENTALS, INC. et al.
    (478 SE2d 611)
   McMurray, Presiding Judge.

Plaintiffs Columbus Rentals, Inc. and Kennon Realty Services, Inc. sought a writ of possession from the Municipal Court of Columbus, Georgia, alleging that defendants M. M. Womack and Catherine Womack were “tenant[s] at sufferance after foreclosure. . . .” The( summons informed defendants their “answer must be filed with the Clerk of the Municipal Court of Columbus, Georgia on or before the 19 day of January, 1996.” On January 16, 1996, proceeding pro se, defendants filed a “Motion for Dismissal on the grounds of Lack of Merit[, . . . contending they had a] [mjeritorious defense . . . pursuant to [OCGA] § 11-3-104 and § 11-2-201 and § 11-3-107 and § 11-3-604 and Cohens v. Virginia, 6 Wheat 264 and Public Law 89-719.” Defendants also filed a “CAVEAT TO THE COURT,” “pray[ing] that the [Municipal] Court consider ALL the evidence provided in the response to the Dispossessory Warrant, in this Case Number 96CV216.” Plaintiffs responded with a “MOTION TO STRIKE ‘CAVEAT TO THE COURT,’ FOR JUDGMENT ON THE PLEADINGS AND FOR ISSUANCE OF WRIT OF POSSESSION INSTANTER.” Plaintiffs also moved to compel defendants to pay rent into the registry of the court.

On January 29, 1996, defendants submitted their “ANSWER TO PLAINTIFF’S REQUEST FOR ADMISSIONS,” and expressly denied that plaintiffs were the owner of the property, contending that they, “Defendants!,] possess Proof of Purchase of the property [at issue]. . . .” On February 5, 1996, defendants submitted documents indicating that, as of July 28, 1995, the “TOTAL AMOUNT TO PAY LOAN IN FULL * * [was] $52,836.16.” In support of.their claim that the purchase money loan had been paid in full, defendants submitted a copy of a Thomas Cook Foreign Exchange draft, drawn on the Banca Commerciale Italiana in the amount of “58,000 ESP” and payable to Great Financial Mortgage.” This draft was returned unpaid to defendant M. M. Womack by Great Financial Mortgage on September 27, 1995, “due to ‘Not US Dollars.’. . . [Rather,] this check [was] still in the form of Spanish pesos estimated at $439.64 US Dollars.” Defendants also attempted payment by tendering to Great Financial Mortgage a second “PROMISSORY NOTE,” dated October 23, 1995. This second promissory note recites that it constituted a complete and lawful discharge of the purchase money loan extended by Great Financial Mortgage. But this promissory note was “redeemable at the location of, do 1908 Manchester Expressway Columbus, Georgia state pz 31904, anytime within three (3) months of this date October 23rd, 1995, by appointment only. Such appointment is to be made only by a written request of Great Financial Mortgage, it’s [sic] Officer’s [sic] and/or State Licensed Attorney on Record, to the mailing address do 1908 Manchester Expressway Columbus, Georgia state pz 31904 and acknowledged by [defendant] Myrias M. Womack’s written approval in response. No telephone correspondence will be permitted, as to keep all Communications in Written Form, as a Record of Evidence.” This second promissory note “shall become Void if not redeemed within three (3) months of October 23, 1995. ”

On February 19, 1996, the Municipal Court found that defendants “admitted in open court that they did not file any document intended to Answer Plaintiffs’ dispossessory affidavit on or prior to January 19, 1996,” and ordered defendants’ Caveat to the Court stricken from the record and “further granted a judgment by default . . . [awarding] Plaintiffs a writ of possession immediately. . . .” On February 21, 1996, defendants filed a notice of “APPEAL TO THE SUPERIOR COURT.” Nevertheless, on February 27, 1996, defendants filed a “MOTION TO SET ASIDE JUDGMENT,” as well as notice of filing “CHAPTER 13 BANKRUPTCY,” that same day. On April 10, 1996, the United States Bankruptcy Court for the Middle District of Georgia, Columbus Division, lifted the automatic stay and granted permission to proceed “with the pending litigation concerning title to the property in question and entitlement to possession . . . in the courts of the State of Georgia. . . .” On May 23, 1996, defendants filed a “MODIFIED AMENDMENT TO NOTICE OF APPEAL . . . APPEAL TO THE GEORGIA COURT OF APPEALS.” This amendment allegedly was necessitated “based on a 1983 City Ordinance prohibiting the Municipal Court to allow an appeal to the Superior Court.” Defendants appeal “from the order and judgment in the Municipal Court of Columbus, Georgia, entered on February 19, 1996. ” Held:

1. The February 21, 1996 notice of appeal from the February 19, 1996, judgment is timely and valid, for purposes of this Court’s appellate jurisdiction, even though that notice ostensibly pursues a nonexistent remedy in the superior court. See, e.g., Brumby v. State, 264 Ga. 215 (443 SE2d 613). After the filing of a valid notice of appeal, the Municipal Court was deprived of jurisdiction over the case and had no authority to grant defendants’ motion for reconsideration or otherwise alter the judgment appealed from.

2. Defendants enumerate as error the Municipal Court’s granting judgment by default, contending their Motion for Dismissal on the Grounds of Lack of Merit was a legally sufficient answer to the dispossessory action and created a triable issue as to the existence of the landlord-tenant relationship. We agree.

(a) The absence of a landlord-tenant relationship is a proper defense to a dispossessory action and if the defendant so answers, a trial of the issues shall be had in a civil court of record. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 593 (3), 594 (409 SE2d 71). The instant appeal turns on whether defendants filed a timely and adequate answer.

(b) “If the tenant fails to answer [within seven days] as provided in subsection (b) of Code Section 44-7-51, the court shall issue a writ of possession instanter notwithstanding Code Section 9-11-55 or Code Section 9-ll-62[.]” OCGA § 44-7-53 (a). “It is[, however,] clear that what constitutes an ‘answer’ in a dispossessory action is to be liberally construed. An oral answer is sufficient to [require a trial of the issues in accordance with the procedures prescribed for civil actions in courts of record except where . . . the action is tried in the magistrate court. . . . Former] Code Ann. §§ 61-302 (b), 61-303 [now OCGA §§ 44-7-51 (b) and 44-7-53 (a), (b)]. Hill v. Hill, 241 Ga. 218 (244 SE2d 862) (1978).” Rucker v. Fuller, 247 Ga. 423, 424 (276 SE2d 600).

In the case sub judice, the Motion for Dismissal invoked OCGA § 11-3-104 (Form of Negotiable Instruments), former § 11-3-107 (Money) now § 11-3-107 (Foreign Money), § 11-2-201 (Statute of Frauds in the Title on Sales of Goods), and former § 11-3-604 now § 11-3-603 (Tender of Payment). A liberal construction of this timely pro se response in a dispossessory action authorizes the conclusion that defendants dispute the plaintiffs’ allegations of ownership and the existence of the tenancy at sufferance. Consequently, the Municipal Court erred in failing to treat defendants’ Motion of Dismissal, filed January 16, 1996, as a timely filed answer in this dispossessory action.

3. The question remains whether the Municipal Court further erred in granting plaintiff a judgment on the pleadings, in light of defendants’ submission. A judgment that is correct for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

“The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. Walker v. Camp, 121 Ga. App. 765 (175 SE2d 53).” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 115 (2) (274 SE2d 34). It is not germane to a dispossessory proceeding to allege “that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled.” Crawford v. Crawford, 139 Ga. 394 (hn. 3) (77 SE 557). “If the sale of the premises under the power of sale in the loan deed . . . was void on account of its improper exercise, or because the loan was not mature, this could not be set up as a defense to a [dispossessory] proceeding under the [former] Code [Ann.] §§ 61-301, 61-303 [now OCGA §§ 44-7-50; 44-7-53]. Crawford v. Crawford, 139 Ga. 394[, supra], A tenant can not dispute the title of his landlord. [In the case sub judice,] the relation of landlord and tenant did exist between the plaintiffis] and the defendants in the form of a tenancy at sufferance. This principle is applicable in a dispossessory proceeding by the grantee in a security deed against the grantor or his heirs, or assigns in possession, after the property has been sold under the deed and purchased by the grantee. Willis v. Harrell, 118 Ga. 906[, 911 (10)] (45 S. E. 794).” Ryals v. Atlantic Life Ins. Co., 53 Ga. App. 469, 470 (186 SE 197).

Decided October 30, 1996

Reconsideration denied November 12, 1996

Catherine Womack, pro se.

M. M. Womack, pro se.

Funderburk, Day & Lane, Joel R Day, Bradford C. Dodds, for appellees.

In the case sub judice, the essence of defendants’ answer is that plaintiffs’ purchase is void because foreclosure by Great Financial Mortgage, the purchase money lender, was not authorized. This defense is not germane to the dispossessory proceeding because plaintiffs, as buyers at a foreclosure sale, are the owners unless and until that foreclosure is set aside. Consequently, the Municipal Court did not err in granting judgment on the pleadings awarding plaintiffs the writ of possession.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Andrews, Judge. Smith, Judge, Pope, Presiding Judge,

text:
    A96A0894.
    BRAZLE v. THE STATE.
    (478 SE2d 412)
   Andrews, Judge.

Tyrone Brazle. appeals his conviction on a jury verdict finding him guilty of armed robbery. We reverse the judgment of the trial court.

1. In his first enumeration of error, Brazle claims the trial court erred in denying his motion for directed verdict. The standard of review of the denial of a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). West v. State, 218 Ga. App. 341, 342 (461 SE2d 300). (1995).

Here, the evidence at trial was that on the evening of January 9, 1995, Brazle and co-defendants Walker and Foley spent the night at the house of Carol Foley, the mother of defendant Foley and the common-law wife of Brazle. Around 1:00 the next afternoon, Foley and Walker went to the J. Loan Company in Riverdale. Foley and Walker went into the shop and Walker asked Jack Watson, the owner of the shop, to show him a gold chain which was hanging behind the counter. As Watson turned to reach for the chain, Foley pulled a gun and told him to raise his hands. Foley gave the gun to Walker who told Watson to go into the back of the shop. Afraid that Walker would kill him, Watson refused. Walker then told Watson to lie on the floor. Foley took jewelry and guns from the case and put them in a canvas bag.

As soon as Walker and Foley left, Watson got up, grabbed two loaded guns from behind the counter and ran outside. He saw the two men running on the other side of the street and fired at Foley, hitting him in the leg. Watson called 911 and then went over to Foley and stayed with him until police arrived.

In his in-custody statement introduced at trial, Brazle stated he left home and drove to the Chateau Forest Apartments and backed his truck into one of the parking spaces. The evidence showed that Brazle had a clear view of the J. Loan Company from where his truck was parked. After he backed into the parking space, Brazle said he raised the hood on his truck to check on a brake problem. At that point, he heard gunshots and left. Brazle stated he left the parking lot and drove to his attorney’s office to pick up a settlement check from a workers’ compensation claim. In his defense, Brazle submitted a repair estimate from Brake-0 which showed that the brakes on his truck were in a condition such that the truck was “unsafe to drive — cannot be driven.” Although the estimate was made in April 1995, a store manager with Brake-O, testifying as an expert, stated at trial that, given the condition of the truck’s brakes in April, it probably would have had bad brakes in January. Brazle also called an employee from Brazle’s attorney’s office who testified she called Brazle on the morning of January 10, 1995, to tell him to come by and pick up his settlement check. She stated that Brazle arrived at the office around 1:00 and left around 2:00.

We find the trial court erred in denying Brazle’s motion for a directed verdict of acquittal. “Where there are only unexplained and suspicious circumstances, they are not sufficient to convict the defendant. [Cits.]” Williams v. State, 126 Ga. App. 350, 355 (190 SE2d 785) (1972). Here, although Brazle’s parking of his truck across the street from the scene of the robbery is suspicious, it is not unexplained, as he has shown that he was on his way to his attorney’s office and he also submitted evidence of brake trouble. Further, “ ‘[n] either presence, nor flight, nor both together without morq, is conclusive of guilt.’ ” Williams, supra at 355. In this case, arguably, there is not even presence or flight as Brazle was never at the scene of the crime, but only in the vicinity. This Court has found that proximity without additional evidence of participation in thp crime was insufficient to support a conviction for burglary. Willis v. State, 214 Ga. App. 659, 660 (448 SE2d 755) (1994). In addition, there, is no other evidence which would connect Brazle with the robbery. See Muckle v. State, 165 Ga. App. 873, 875 (303 SE2d 54) (1983) (evidence created no more than a suspicion that the defendant committed the crime); O’Quinn v. State, 153 Ga. App. 467, 472 (265 SE2d 824) (1980) (mere presence, even when coupled with suspicion, is not sufficient to authorize a conviction without any evidence to show participation of defendant in illegal act); Phillips v. State, 133 Ga. App. 461, 464 (211 SE2d 411) (1974) (where there were only unexplained and suspicious circumstances and no evidence to connect defendant to the crime, trial court erred in denying motion for directed verdict of acquittal). Therefore, we hold the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt that Brazle was guilty of armed robbery. Rodgers v. State, 213 Ga. 797, 803 (102 SE2d 10) (1958). Accordingly, the trial court erred in denying' Brazle’s motion for directed verdict of acquittal.

2. In light of the holding above, we need not address the remaining enumerations of error.

Judgment reversed.

McMurray, P. J, concurs. Birdsong, P. J., Blackburn and Smith, JJ, concur specially. Beasley, C. J., Pope, P. J, Johnson and Ruffin, JJ., dissent.

Smith, Judge,

concurring specially.

The dissent says that Brazle’s defense — really his alibi — that he left the parking lot and went to pick up his check — “was not inconsistent with his participation in the crime.” That may be true, but it is not material. What matters is whether the evidence is inconsistent with his defense. To base a conviction on evidence that is merely consistent with guilt goes too far. To support a conviction on circumstantial evidence alone, the evidence must not only be consistent with Brazle’s guilt, but must be inconsistent with — must exclude — his reasonable hypothesis of innocence. See, e.g., Cooley v. State, 219 Ga. App. 176, 177 (464 SE2d 619) (1995). In my view, the evidence here fails in that respect.

I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this special concurrence.

Pope, Presiding Judge,

dissenting.

I respectfully dissent. Though it is true that suspicious circumstances are insufficient grounds for conviction, there is sufficient evidence in the record of Brazle’s involvement in the robbery to convict.

In addition to the facts recited in the majority opinion, Officer Beddingfield testified that when he initially spoke to Brazle about the robbery, Brazle stated that he did not know what Beddingfield was talking about — that he “knew nothing about it.” Brazle’s response later changed and he told Beddingfield that he had driven his truck to the Chateau Forest Apartments, had backed it into a parking space and worked on his brakes. Brazle told Beddingfield that he left because he heard gunshots, which frightened him.

. Officer Beddingfield also testified to statements made by Carol Foley, Brazle’s common-law wife, regarding Brazle’s account of the incident. Beddingfield stated: “according to Mrs. Foley, Mr. Brazle had stated to her that he had driven his truck up to Chateau Forest Apartments, which is directly across the street from the J. Loan Company in Riverdale, Georgia, and that he had parked his truck there, and then as he left — hopefully, I can say this — as he left, he saw someone laying on the ground with someone standing over him.” Given Brazle’s differing accounts of the incident, there was more evidence, upon which to convict Brazle than his. mere presence across the street from the robbery, and conviction was authorized.

In addition to Brazle’s differing statements, the following evidence supported conviction. The evidence was that the chiropractor’s office, in front of which Foley fell when he was shot, was adjacent to the Chateau Forest Apartments. There was evidence that those properties were separated by a fénce, which had several holes in it which would allow a person to pass through. Further, a Chateau Forest Apartment resident testified that at about 1:30 p.m. on January 10, she heard someone in the hallway outside of her apartment. She opened her door and saw a tray of rings which had been left on the stairwell. This witness stated that she then looked out of her apartment window and saw a man deposit an open duffel bag containing guns into the dumpster. She recalled that the man then ran to the back of the apartments. In a statement Foley gave to the police, he said that before being shot he was headed to a foyer in Chateau Forest Apartments, From this evidence, a jury could reasonably infer that Foley and Walker planned to meet Brazle at the parking lot, but that the plan went awry when Watson shot Foley. That Brazle backed into the parking space — from where he had a good view of J. Loan Company — to work on his brakes and that he left the scene by a different route, which was a less convenient route to his destination, also support this construction.

Decided November 12, 1996.

Steven L. Harris, for appellant.

Robert E. Keller, District Attorney, Marion T. Woodward, Assistant District Attorney, for appellee.

There was other evidence that Brazle’s actions did not support his theory. For example, if he was on his way to the attorney’s office for the check, he had chosen a roundabout way to get there. Further, Brazle did not take the truck for an estimate on the brake repair for over three months after this incident despite his receipt that day of a $3,100 workers’ compensation check. The fact that when Brazle left the parking lot after hearing gunshots he passed both the fallen man, who was his common-law wife’s son, and the police station, also shed doubt on his theory.

Moreover, Brazle’s defense — that he left the apartment parking lot and went to pick up his settlement check — was not inconsistent with his participation in the crime. There is no dispute that he left the lot after he heard gunshots; evidence that Brazle picked up his settlement check on January 10 does not alter this.

A rational trier of fact could find from the evidence adduced at trial proof of Brazle’s guilt as a party to the crime of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also OCGA §§ 16-8-41 (a); 16-2-20. Accordingly, the trial court properly denied Brazle’s motion for directed verdict.

I am authorized to state that Chief Judge Beasley, Judge Johnson and Judge Ruffin join in this dissent.


author: Beasley, Chief Judge.

text:
    A95A2697.
    TOLBERT et al. v. WHATLEY et al.
    (478 SE2d 587)
   Beasley, Chief Judge.

Marshall Elder died intestate on October 22, 1985. On December 5, 1985, his mother, Lillian Whatley, filed a petition in the probate court for an order declaring no administration necessary, which was granted on January 6, 1986. The petition listed herself and Elder’s brother, Luther Whatley, as the only heirs at law. On April 28, 1992, Lisa Tolbert and Marshall Tolbert, claiming to be the illegitimate children of Marshall Elder, filed a complaint in superior court to set aside the order of the probate court and seeking legal and equitable title to Elder’s estate. On February 17, 1993, the parties entered into a consent order dismissing the complaint and voiding the order but specifically reserving all claims and counterclaims.

The Tolberts refiled their action on August 12, 1993. They moved for the probate court’s letter of administration and order to be set aside, for legal and equitable title to all of the estate, and for Lisa Tolbert’s appointment as administratrix. They prayed for the return of all estate property, for the original deeds and cancellation thereof, and for an accounting of all monies and rents paid for the property. Summary judgment was granted to the Whatleys. In four separate enumerations, the Tolberts contend the court erred.

1. Appeal was originally filed in this Court, the Tolberts citing OCGA § 5-6-37 as establishing this Court’s jurisdiction. It was transferred to the Supreme Court because it involved legal and equitable title to an estate consisting almost exclusively of real property. The Supreme Court has exclusive appellate jurisdiction of cases “involving title to land.” Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (1). In the transfer order, we cited as a similar case over which the Supreme Court has jurisdiction, Tucker v. Addison, 265 Ga. 642 (458 SE2d 653) (1995).

The Supreme Court returned the appeal, citing as authority Graham v. Tallent, 235 Ga. 47, 49 (218 SE2d 799) (1975), and wrote “[cjompare” Tucker, the case which had been cited in this Court’s transfer order. Lack of clarity in jurisdictional lines extends the period for ultimate decision in a case such as this, thereby delaying finality, and causes confusion and uncertainty in bench and bar.

Tucker involved a decedent’s relative who, claiming that the decedent had given him the land during her life, brought an action seeking to set aside and cancel a deed. The trial court granted summary judgment to the deed-holder. On appeal, the Supreme Court exercised jurisdiction and determined that only future action had been promised and that there was no evidence of a presumptive gift from the legal heir to the property. Id. at 643 (1) and (2).

In Graham, supra, the appellant asserted the Supreme Court had jurisdiction because the appeal involved equitable relief and title to land. Id. at 47. The suit sought an order permitting a nonjudicial foreclosure on certain land to proceed because of default on a secured promissory note. The trial court granted the order. The matter of jurisdiction was decided under an earlier constitution. It assigned jurisdiction to the Supreme Court in “all equity cases” and in “all cases respecting title to land.” (Emphasis supplied.) In the portion of the opinion which the Supreme Court cited in the transfer order in the instant case, examples are given of some of the types of cases it had determined were not within its exclusive jurisdiction: “Suit to foreclose a materialman’s lien on real estate, [cit.]; suit to confirm sale of land under power of sale, [cit.]; application by widow to ordinary for approval of sale by her of property set aside as year’s support, [cit.]; suit to condemn land, [cit.]; suit to determine location of disputed boundary line, [cits.]; suit by graútee for declaratory judgment that the grantor in a warranty deed was sane at the time of executing that deed, [cit.]; and suit for damages for breach of warranty of title contained in deed to land, [cit.]” Id. at 49. None of these examples pertains to actions in which a party seeks legal and equitable title to real property.

Graham also examines the constitutional provision requiring that cases respecting title to land be tried in the county in which the land lies (currently Ga. Const, of 1983, Art. VI, Sec. II, Par. II), and concludes that cases which must be filed in the defendant’s county of residence are not cases respecting title to land in the context of the Supreme Court’s jurisdiction. Graham, supra at 50. Here,' the defendant is a resident of the same county in which the property lies. See Ga. Const, of 1983, Art. VI, Sec. II, Pars. Ill & VI.

Graham states that the Supreme Court has jurisdiction of appeals for “ ‘actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.’ ” Id. at 49. The court concluded first that the case was not within its jurisdiction “for the reason that [it] is not an action of ejectment or a statutory substitute, and it seeks sale by foreclosure rather than recovery of the land.” Id. at 49. It also concluded that “suits which must be brought in the county of residence of a defendant. . . are not cases respecting title to land within the meaning of the [constitutional] provision specifying the jurisdiction of [the Supreme Court].” Id. at 50. By its transfer of this case, the Supreme Court determined it did not fit the judicially determined narrow parameters of the constitutional designation of jurisdiction. Apparently, then, the Supreme Court concluded this Tolbert case is an action for equitable title to real property, as it pertained to the land in the estate. This would be a suit in equity. In Payne v. Terhune, 212 Ga. 169, 170 (91 SE2d 348) (1956), the Supreme Court clearly recognized that “[a] suit to establish title to land, or to establish the evidence of title, is one that must be brought in equity, but suits to recover land upon legal title are actions at law.”

We can conclude only that the Supreme Court considered the equity issue to be incidental to underlying legal questions, else it would have retained the appeal as under its exclusive jurisdiction. Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (2); see Beauchamp v. Knight, 261 Ga. 608, 609 (1), 610, n. 1 (409 SE2d 208) (1991); Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 498 (2) (455 SE2d 601) (1995). In any event, the decision that it did not have jurisdiction, but that this Court did, is binding. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. See Crotty v. Crotty, 219 Ga. App. 408, 409-410 (1) (465 SE2d 517) (1995).

2. Each of the Tolberts’ enumerations addresses the summary judgment, and the arguments are interrelated. The court’s order does not specify why judgment was granted, and a variety of rationales were advanced in the motion, including the statute of limitation. The Tolberts assert the applicable limitation is found in OCGA § 9-3-32, which applies a four-year period to “[a]ctions for the recovery of personal property.” Although personal property is or originally was incidentally involved in the suit, a house is the prime target. To the extent that this is a complaint for the recovery of personal property, OCGA § 9-3-32 operates to bar the action, filed more than six years after the probate court ordered no administration necessary.

The Tolberts contend the operation of OCGA § 9-3-32 was tolled by fraud on the part of the Whatleys, see OCGA § 9-3-96, in that they fraudulently represented themselves as the only heirs at law when filing the petition for letters of administration and should have listed the Tolberts as well. It is the Tolberts’ burden to demonstrate facts showing such a fraud. Hendrix v. Schrecengost, 183 Ga. App. 201, 203 (1) (358 SE2d 486) (1987); accord McClure v. Raper, 266 Ga. 60 (463 SE2d 125) (1995).

There is no evidence of fraud. It was not necessary to identify the Tolberts because they were not heirs at law. Although they contend OCGA § 53-4-2 places them above the Whatleys in line of succession, illegitimate children “have no inheritable blood except that given to them by express law.” OCGA § 53-4-4 (a). As the law existed at the time of Elder’s death, an illegitimate child could inherit from his father only if a competent court had entered an order establishing parentage. Former OCGA § 53-4-4 (c) (1982 ed.) (Ga. L. 1980, p. 1432, § l). No such order was produced, so the Tolberts were not among those to be listed on the petition because they were not heirs at law. See former OCGA § 53-10-1 (1995 ed.). The petition did not misrepresent the facts.

To the extent this is an action in equity for the recovery of real property, appellants based it on the doctrine of “virtual or equitable legitimation.” This allows an illegitimate child to inherit from his father when there is no court order establishing fatherhood but there is “clear and convincing evidence that the child is the natural child of the father and that the father intended for the child to share in his intestate estate, in the same manner that the child would have shared if he had been formally legitimated.” Prince v. Black, 256 Ga. 79, 80 (344 SE2d 411) (1986); accord Simpson v. King, 259 Ga. 420, 421 (2) (383 SE2d 120) (1989). In such a case, “equity will consider that done which ought to have been done. OCGA § 23-1-8.” Prince, supra at 80.

The Whatleys urge that the doctrine of virtual legitimation does not apply to this case. The decision in Prince, supra, was issued June 24, 1986, after the probate court’s order declaring no administration necessary. Although a judicial decision as to civil law will usually be applied retroactively, it is not always so. Fender v. Adams Exterminators, 218 Ga. App. 62, 63 (2) (460 SE2d 528) (1995). “In Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), our Supreme Court set forth [the] tripart test [elucidated in Chevron Oil Co. v. Huson, 404 U. S. 97 (92 SC 349, 30 LE2d 296) (1971)] for determining whether a decision should be applied prospectively or retroactively: ‘(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed(;) (2) (b)alance of the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation^ and) (3) (w)eigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.’. . . [Cit.]” Dart Container Corp. v. Jones, 209 Ga. App. 331, 332 (433 SE2d 417) (1993).

Applying these factors, we conclude Prince is not to be applied retroactively and the doctrine of virtual legitimation is not available to the Tolberts. In recognizing the doctrine, the Supreme Court rejected existing case law that held illegitimate children had no right to inherit from their fathers unless a competent court had entered an order establishing the decedent’s fatherhood. See Hill v. Newman, 254 Ga. 57 (1), 58 (325 SE2d 767) (1985); Poulos v. McMahan, 250 Ga. 354 (297 SE2d 451) (1982); Black v. Prince, 176 Ga. App. 465 (336 SE2d 318) (1985). Prior to Prince, the only interpretation under the language of the statute was that such an order was required. See former OCGA § 53-4-4 (c) (1982 ed.) (Ga. L. 1980, p. 1432, § 1); Hill, supra; Poulos, supra; Black, supra. Prince itself is silent as to any retroactive application. To apply a new equitable doctrine retroactively could produce substantially inequitable results and do considerable damage to the administration of estates especially where, as here, the rights of the statutory heirs had been settled by court order for some years prior to the challenge.

Decided October 17, 1996

Reconsideration denied November 13, 1996.

Graylin C. Ward, for appellants.

Rosenzweig, Jones & MacNabb, Douglas L. Dreyer, for appellees.

We recognize that the Supreme Court applied virtual legitimation in Simpson, supra, to a situation that arose before Prince was decided. However, it did so without addressing the question of Prince’s retroactivity. “[Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedent.” Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152) (1994). Further, inheritance of the Simpson estate had been challenged prior to Prince, and it appears Simpson was still pending when Prince was decided. Suit was also then pending in Coplin v. Broadnax, 256 Ga. 291 (349 SE2d 748) (1986); the Supreme Court remanded that case to the trial court for a factual determination in light of Prince, less than three months after that decision. These cases do not authorize retroactive application of Prince to cases where inheritance is already established.

As the doctrine of virtual legitimation is not available to the Tolberts, and they advance no other legal theory that would give them a right to inherit from Elder, the court did not err.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

       OCGA § 53-4-4 has since been amended, but the amendment does not affect the Tolberts because Elder died six years before it became effective, and it has no retroactive effect. Sardy v. Hodge, 264 Ga. 548, 550 (448 SE2d 355) (1994).

       The fact that a party claims the estate through the equitable doctrine of virtual legitimation was not regarded as taking the case outside of our jurisdiction, in Youmans v. Ormandy, 206 Ga. App. 255, 257 (1) (424 SE2d 828) (1992).


text:
    A96A0762.
    GILMORE v. BELL et al.
    (478 SE2d 609)
   McMurray, Presiding Judge.

Thomas W. Gilmore, Jr. and Clifford A. Bell — a building contractor, real estate broker and building material supplier — became friends and fraternity brothers while in college in 1945 and, in more recent years, got together and pursued various business ventures — mostly involving liquidation of Gilmore’s 5,000-acre farm. The parties’ relationship began deteriorating, however, over four years after Gilmore purchased a new home from Bell which was constructed through Bell’s home-building company, Fall Line Properties, Inc. It was then that Gilmore discovered that his home was falling apart due — in large part — to a substandard foundation comprising block piers rather than solid block walls. Gilmore was shocked by this revelation because he questioned Bell about the foundation’s integrity before the closing and Bell assured him that the structure’s foundation was designed and erected in accordance with modern home-building standards. Bell now admits, however, that he made this assurance — as well as other assurances about the house’s quality — without supervising the selection or installation of the house’s foundation, without determining whether the foundation satisfied the local building code, or without checking with the county to see if the house had passed inspection — which it had not. Bell simply presumed that the man he hired to supervise the house’s construction, Ambros Powell, performed his job within the requisite degree of care and skill — which (according to expert testimony) he did not.

Gilmore asserted an action against Bell, Fall Line Properties, Inc. and Bell’s real estate brokerage firm, Town and Country Real Estate and Investment Company, Inc., pertinently alleging that Bell negligently constructed the house in question and duped Gilmore into purchasing the house by recklessly assuring him that the structure’s foundation complied with modern home-building standards. This appeal is from the trial court’s order granting Bell’s motion for summary judgment based on expiration of the applicable four-year statutes of limitation, OCGA §§ 9-3-30 and 9-3-31. Held:

1. Where fraud by a defendant debars or deters a plaintiff from bringing an action, OCGA § 9-3-96 tolls the statute of limitation until the plaintiff discovers the fraud. And while /the fraud described in this Code section must be actual fraud, or fraud involving moral guilt or any artifice by which another is deceived, “[a] confidential relationship between the parties . . . lessens, if not negates, the necessity for showing [such] actual fraud. Sutlive v. Hackney, 164 Ga. App. 740, 741 (297 SE2d 515) (1982).” Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2) (399 SE2d 565). In the case sub judice, the trial court found, as a matter of law, that a confidential relationship did not exist between Gilmore and Bell so as to toll the statute of limitation.

The existence of a confidential relationship depends heavily upon the circumstances of each case and is therefore an issue best suited for resolution by a jury. See Adams & Adams, Ga. Law of Torts (1995 ed.), § 32-3. Further, in determining whether genuine issues of material fact remain as to the existence of a confidential relationship, all the law requires is a showing of a relationship which justifies the reposing of confidence by one party in another. Cochran v. Murrah, 235 Ga. 304, 307 (219 SE2d 421). The evidence in the case sub judice not only reveals that Bell and Gilmore were trusted friends, college fraternity brothers and business associates, there is proof that Bell held himself out as builder of the house in question when he guaranteed Gilmore about the construction and quality of the house’s foundation. There is also proof that Bell was serving as Gilmore’s real estate agent when he issued this assurance. These circumstances alone are sufficient to authorize a jury’s finding that a confidential relationship existed between Bell and Gilmore so as to toll the statute of limitation. Accordingly, since Gilmore filed the case sub judice less than four years after he allegedly discovered that his house’s foundation was not constructed as Bell said, the trial court erred in granting Bell’s motion for summary judgment based on expiration of the statutes of limitation, OCGA §§ 9-3-30 and 9-3-31.

Decided October 28, 1996

Reconsideration denied November 13, 1996

Caldwell & Watson, Wade H. Watson III, David L. Mincey, for appellant.

Jones, Cork & Miller, Jerry A. Lumley, John A. Dana, for appellees.

2. It is unnecessary to address Gilmore’s enumeration of error relating to the trial court’s application of the evidentiary rule set out in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), because we did not consider Gilmore’s allegedly conflicting affidavit.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J., concurs in the judgment only.


text:
    A96A1300.
    HOOPER v. THE STATE.
    (478 SE2d 606)
   Beasley, Chief Judge.

Hooper appeals his convictions of stalking (OCGA § 16-5-90), aggravated stalking (OCGA § 16-5-91), criminal trespass (two counts) (OCGA § 16-7-21), and making harassing phone calls by repetition (OCGA § 16-11-39.1 (a)).

A formal accusation against Hooper alleged that in June and July 1994, he had stalked Stringfellow and obstructed an officer. Stringfellow had sworn out a warrant against Hooper, and he was incarcerated from late July until mid-September 1994. It was shown at trial that immediately upon his release from jail, he began stalking Stringfellow again. This resulted in an indictment alleging that in September and October 1994 he engaged in aggravated stalking, committed criminal trespass against Stringfellow’s property (two counts), made harassing phone calls to her (two counts), and committed simple battery upon two of her friends (two counts).

The accusation and indictment were joined for trial. Evidence showed that Hooper and Stringfellow had dated, and after she attempted to end their relationship, he began following her. When she would go places, including her job, he would appear. After she found him hiding in her basement early one morning, she changed her locks. She also changed her telephone to an unlisted number, which he obtained by deception. As a result of all of this, she stopped going out to lunch and began staggering her work hours. He would call her at work and at home at all times of day and night. She had her calls screened at work, but he would identify himself as someone else. He would appear at her house repeatedly at night. On more than one occasion, her telephone lines were cut. On another occasion, she met several friends at a restaurant, and Hooper appeared but then left. When Stringfellow left, another man accompanied her to her car. Hooper reappeared and assaulted the man.

After Hooper was incarcerated, he continued calling Stringfellow at her home and writing her letters, some of which contained implied threats. Although she had told him repeatedly to stay off her property, he went back to her house the night he was released from jail and continued to return. A card he left for her at her job contained an implied threat.

The court granted a directed verdict of acquittal on the accusation of obstruction of an officer. The jury found Hooper not guilty of the two counts of simple battery (allegedly spraying two of Stringfellow’s friends with an irritating substance when he once appeared at her house). On motion for new trial, the court set aside Hooper’s conviction on the count charging harassing phone calls on October 23, 1994 (Count 7).

1. Hooper contends that the trial court erred in granting the State’s motion to join the accusation and indictment for trial and in overruling his motion for severance.

The joinder of offenses in this case was based upon a series of acts constituting parts of a single scheme or plan by Hooper to relentlessly intimidate and severely distress Stringfellow. The offenses charged in the accusation were committed before Hooper was incarcerated, and he began committing offenses charged in the indictment immediately upon his release. Under these circumstances, severance lay with the sound discretion of the trial court, which was not abused because the series of acts engaged in by Hooper constituted a coherent whole, the parts of which shared a commonality. See Davis v. State, 223 Ga. App. 346 (477 SE2d 639) (1996); Hayes v. State, 182 Ga. App. 26 (1) (354 SE2d 655) (1987); Carter v. State, 155 Ga. App. 840, 842 (2) (273 SE2d 417) (1980).

2. Hooper challenges the sufficiency of the evidence to support his convictions of stalking and aggravated stalking. He argues that there was insufficient evidence to show that his conduct was done for the purpose of harassing and intimidating Stringfellow.

Stalking and aggravated stalking are proscribed by Article 7 of Chapter 5 of OCGA Title 16. “A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-90 (a). A person commits the offense of aggravated stalking when such person engage's in the previously described behavior in violation of a peace bond or various specified orders or conditions. OCGA § 16-5-91 (a).

“For the purposes of [Article 7], the term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose.” OCGA § 16-5-90 (a).

Construed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find that Hooper engaged in precisely the behavior forbidden. Kennedy v. State, 199 Ga. App. 803, 804 (3) (406 SE2d 136) (1991). OCGA § 16-5-90 (a) expressly states that an overt threat of death or bodily injury is not required, and there was evidence that Hooper made implied threats against Stringfellow.

3. Hooper contends that the court erred in overruling his motion for directed verdict as to the aggravated stalking charge.

A person commits the offense of aggravated stalking when the stalking behavior is in violation of, among other things, a “condition of pretrial release” prohibiting such behavior. OCGA § 16-5-91 (a).

The magistrate imposed as a condition of Hooper’s pretrial release that he have no contact with Stringfellow. Hooper’s fallacious challenge to the sufficiency of the evidence is based on the fact that this condition was not contained in any written order, but it is uncontested that it was verbally communicated to Hooper by a law enforcement officer at the telephoned instruction of the magistrate. The statute does not require a written order for such a condition to have effect. The fact that the instruction was given and received, not that it was physically memorialized, is the focal point. Of course, a written instruction, acknowledged in writing by a defendant, is much preferred because it forecloses the issue and precludes any doubt. Its absence might be decisive in doubtful cases.

4. Hooper contends that the court erred in overruling his motion for directed verdict on the indictment count alleging harassing telephone calls on October 19, 1994 (Count 6), because there was insufficient evidence of repeated calls.

Decided October 28, 1996

Reconsideration denied November 13, 1996

Gale & Henley, Teddy L. Henley, for appellant.

Dennis R. Hooper, pro se.

James R. Osborne, District Attorney, Ernest C. Barrett, Fred A. Lane, Jr., Assistant District Attorneys, for appellee.

The State does not advance any argument or provide any reference to the record in support of its contention that the court did not err in this regard. Rather, the State’s position is that Hooper’s conviction of this count should merge into the aggravated stalking conviction. There is evidence of only one call on this date, and since the State specifically alleged that the date of the offense was a material averment, the proof failed. Ledesma v. State, 251 Ga. 885 (1), 886 (311 SE2d 427) (1984); Sarver v. State, 206 Ga. App. 459, 460 (2) (426 SE2d 48) (1992). For lack of evidence, Hooper’s conviction of harassing telephone calls is reversed.

5. Hooper contends that he was denied effective assistance of trial counsel. This enumeration has been expressly conceded as insupportable by Hooper’s appellate counsel. Thus, there is no issue to resolve.

Hooper’s conviction of harassing telephone calls is reversed. His remaining convictions are affirmed.

Judgment affirmed in part and reversed in part.

Birdsong, P. J, and Blackburn, J, concur.


text:
    A96A1371.
    COPPS v. THE STATE.
    (478 SE2d 390)
   Beasley, Chief Judge.

Copps was convicted of sale of cocaine (OCGA § 16-13-30) and given a sentence of life imprisonment.

1. He challenges the sufficiency of the evidence, which we view with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). Conflicts in the testimony of the witnesses raise credibility, a matter for the jury. Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

The State’s evidence showed that an undercover police officer and confidential informant were involved in an undercover drug investigation in Camden County. The informant, in the presence of the officer, called Copps and told him she wanted to purchase five pieces of crack cocaine for $100. The officer and informant went to Copps’ trailer in the officer’s vehicle, which was equipped with a video camera. After they arrived, the informant attempted unsuccessfully to lure Copps to the vehicle so the drug buy could be recorded. Copps produced the cocaine when the informant and officer went into the trailer. The officer took it, gave him the money, and left with the informant.

The officer .testified she did not wear a tape-recording device because she has been patted down before. The informant testified she tried unsuccessfully to record the drug buy at a motel room equipped with a video camera, but Copps refused to go to that location. Copps testified that he refused to sell any cocaine to the undercover officer and informant. His' testimony was supported by that of his girl friend, who was at his trailer at the time in question.

Viewed in the light most favorable to the verdict, the evidence was clearly sufficient to authorize a rational trier of fact to find Copps guilty beyond ¿ reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994).

2. Copps attempted to file a motion to remand this case to the trial court for a hearing on the issue of ineffective assistance of trial counsel.

Copps was represented at trial by the public defender. This appeal was docketed- on March 12, 1996. On March 22, the public defender filed a request for an extension of time for filing an enumeration of errors and brief. On March 25, we granted an extension until April 22. On March 26, we received a request for an extension of time for filing an enumeration of errors and brief by private counsel who stated that he had been retained by Copps on March 25. Counsel did not comply with Court of Appeals Rule 9 (e), requiring any withdrawal or substitution of attorneys of record in this court to be communicated to the court in writing with a copy to substituted counsel and opposing counsel. Two independent counsel cannot separately represent a party at the same time.

Inadvertently unaware at the moment of the earlier extension granted to the public defender, we entered an order on April 1 granting an extension until April 15 to file appellant’s enumeration of errors and brief. On April 12, the public defender filed the enumeration of error reviewed in Division 1 and a supporting brief. The State thereafter served him with a copy of its appellate brief on-April 30. On April 22, private counsel filed a motion to remand for consideration of a new ineffective assistance of counsel claim, with service on the district attorney. This tardy filing was in lieu of an enumeration of errors and brief for which he was erroneously given an extension.

The motion to remand is denied as untimely and improperly filed. When counsel filed the motion, he had not complied with the rules of this Court so as to become Copps’ attorney of record. Compare Wilder v. State, 220 Ga. App. 694, 695 (2) (469 SE2d 549) (1996).

Decided October 30, 1996

Reconsideration denied November 13, 1996.

Clyde M. Urquhart, Tony L. Axam, for appellant.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


text:
    A96A1449.
    DEPARTMENT OF HUMAN RESOURCES v. PHILLIPS.
    (478 SE2d 598)
   The Court of Appeals desires instruction from the Supreme Court upon the following question, a determination of which is necessary for a decision on an issue in this case. Ga. Const, of 1983, Art. VI, Sec. V, Par. IV; Art. VI, Sec. VI, Par. Ill (7). It is also authorized by law to respond. OCGA § 15-2-8 (2) and (7).

The question is whether the application of OCGA § 50-21-29 (b), the portion of the 1992 Georgia Tort Claims Act which limits the amount of damages recoverable against the State, as defined in the Act (OCGA §§ 50-21-20, 50-21-22 (5)), to the judgment in this case would abridge plaintiff’s state constitutional rights against retroactivity as provided in Ga. Const, of 1983, Art. I, Sec. I, Par. X. See OCGA § 50-21-27 (a).

This wrongful death and personal injury case arose out of the death of 30-year-old mental patient Lisa Phillips at Central State Hospital on February 2, 1992. The Act became effective July 1, 1992 (Ga. L. 1992, pp. 1883, 1895, § 2), and suit was filed on February 2, 1994, by Lisa’s mother individually and as administratrix of her daughter’s estate (“Phillips”). As a result of a trial lasting nearly two weeks one year ago, the jury awarded $2 million for the full value of Lisa Phillips’ life and $1.5 million for páin and suffering. The court entered judgment 11 days later, in the full amount, with $1.5 million for the mother as administratrix and $2 million for her individually and as personal representative of Lisa. The defendant Georgia Department of Human Resources (“DHR”) appealed to this Court from the judgment.

The first three enumerations of error relate to the judgment. DHR contends that the trial court erred by failing to reduce the verdict to conform to the pre-trial order, by entering judgment in an amount greater than permitted by the Act, and by including punitive damages which are unavailable under the Act. Section 29 (b) of the Act provides that, in a case such as this, “no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved; and the state’s aggregate liability per occurrence shall not exceed $3 million.” OCGA § 50-21-29 (b). Appellee Phillips argues that these caps are unconstitutional.

The Supreme Court has exclusive appellate jurisdiction of such an issue. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1). The case is not amenable to transfer because the DHR as appellant does not contend that the limitation is contrary to the constitution. Its position is that there is no constitutional impediment to the application of the cap, and that the trial court erred in not reducing the judgment to conform to it. It is appellee Phillips, urging affirmance of the judgment, who argues that the statute is unconstitutional. The issue is unavoidable. We could presume constitutionality, Davis v. Bd. of Ed. of Coffee County, 203 Ga. 44, 45 (45 SE2d 429) (1947), reverse the judgment and remand the case with instruction to reduce the judgment accordingly. That would merely decide constitutionality sub silentio and prompt a petition for certiorari. The more direct and proper approach is to seek instruction at this stage, so as not to delay the appellate process and to resolve the issue definitively before DHR’s other enumerations are addressed.

The issue is ripe for appellate review. It does not matter whether plaintiff Phillips is regarded as one person or as two persons (administratrix and next-of-kin), because whether considered as separate capacities or as one “person,” the statutory cap of $1 million is exceeded. Thus it is not merely a matter of statutory construction, over which this Court has jurisdiction. The ruling in Smith v. Mem. Med. Center, 208 Ga. App. 26, 27 (1) (430 SE2d 57) (1993), if applicable to OCGA § 50-21-29 (b), will not resolve the problem.

The question was properly raised and preserved in the trial court, to the extent that it could be, which is a prerequisite to consideration of such an issue on appeal. Hardison v. Haslam, 250 Ga. 59, 61 (3) (295 SE2d 830) (1982); Walker v. Hall, 226 Ga. 68, 69 (172 SE2d 411) (1970). Phillips did almost everything she could do to raise the question and obtain a trial court ruling on it, when the problem surfaced from being merely hypothetical or potential. Up until there was a verdict exceeding the statutory limit, no ruling was required.

Immediately after the return of the verdict totaling $3.5 million and the poll of the jury, after the jury was excused, DHR moved that the verdict be reduced by the court, and Phillips indicated that it might be necessary to attack the constitutionality of the cap. She sought opportunity to research the matter of the amount of the judgment, and the court acceded. Several letter briefs were submitted by both parties, and each addressed the issue of constitutionality. It was pivotal, as the court could not enter a judgment in conformity with the verdict without bypassing the statute.

Phillips fought to retain the amount of the verdict in the judgment by attacking the cap statute. DHR sought to preclude a ruling on the constitutionality of the limitation by its brief in opposition to Phillips’ motion for entry of an order supplementing the record. DHR opposed the supplementation at the hearing on the motion, but agreed that Phillips’ exhibits were the documents sent to the court before it entered the judgment. The trial court memorialized by order that, in the course of the hearing on Phillips’ motion, the record was supplemented by agreement to include certain documents exchanged among the court and counsel. The court further ordered that the transcript of the hearing be included in the record on appeal.

This composite post-verdict record demonstrates clearly that the issue of constitutionality was raised and argued by Phillips repeatedly, to counter DHR’s demand that the verdict be reduced in the judgment. In response to the assertion that the attack was untimely, Phillips pointed out that “Any attack prior to the jury’s verdict would have been premature, non-ripe, non-justiciable, and the like. The issue could not have been raised, and should not have been raised until now.” Had the issue been raised, briefed, argued and ruled on earlier in a hypothetical context, it very well could have become moot. Phillips, in raising the question when the verdict actually exceeded the limit, met the three prerequisites identified in Blackston v. Dept. of Natural Resources, 255 Ga. 15, 18 (334 SE2d 679) (1985).

DHR contended that the pretrial order controlled, so as to limit the judgment to the statutory amount, but the court was not persuaded. It entered judgment for the full amount, thus by unspoken ruling holding that the limitation fell to constitutional commands.

DHR had the option of not challenging the amount of the judgment and pursuing only its other enumerations of error, or challenging the amount of the judgment as contrary to the statute and facing a ruling on constitutionality. It chose the latter, and even though it seeks to avoid the ruling by arguing that it was not properly raised and ruled on, the issue is clearly presented. DHR’s filing the appeal in this Court does not preclude the issue either, as we are authorized to certify the question as we now do.

The Clerk of this Court is directed to prepare a certified copy of the foregoing question and transmit the same, together with the record in this case, to the Supreme Court of Georgia.

Decided October 23, 1996

Reconsideration dismissed November 13, 1996.


author: Judge Harold R. Banke.

text:
    A96A1919.
    STEELE et al. v. ROSEHAVEN CHAPEL, INC.
    (478 SE2d 596)
   Judge Harold R. Banke.

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

Summary judgment is appropriate when the court viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. Jeannine Steele entered Rosehaven’s funeral home through the front entrance walking up the steps which had a handrail. After spending less than one hour inside, Steele exited through the same door but proceeded to her left instead of going straight down the main stairs which she had previously traversed. Steele failed to observe a single step down, incurring serious injuries as a result. At the time of her fall, the front steps leading straight up to the doorway had yellow striping on them to identify the existence of steps. However, the sole step leading out to the left side had no such striping and was not equipped with a handrail.

Steele offered the expert testimony of Deborah Hyde, a Ph.D. in architecture having specific expertise in building safety issues. Dr. Hyde used the 1988 Standard Building Code and the Life Safety Code which had been adopted by Douglas County to decide whether the step at issue was in compliance with applicable building codes and minimum safety standards. Dr. Hyde determined that the placement of the single step with the lack of defined nosing (leading edge of a step), absence of a handrail, and the lack of a defining contrast in the composition of the brick pattern, created an inherently dangerous condition.

Although Rosehaven had not posted a warning sign cautioning about the single step, it is undisputed that no one had previously fallen on the front steps. Concluding that Steele failed to exercise ordinary care for her own safety and failed to offer any evidence that Rosehaven had superior knowledge of the alleged hazard, the trial court granted summary judgment. Held:

Steele contends that the existence of material issues of disputed fact precluded summary judgment. We disagree. “It has long been the position of this court that ‘(t)he mere existence or maintenance of a difference in floor levels or of steps in a business building does not constitute negligence. [Cits.]’ [Cits.]” Wilson v. Duncan, 211 Ga. App. 814 (440 SE2d 550) (1994). In order to recover for her injuries allegedly sustained due to an allegedly hazardous condition, Steele had to show fault on the part of Rosehaven and her own ignorance of the danger. Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 123 (1) (444 SE2d 341) (1994). Proof of nothing more than the occurrence of a fall is not sufficient to establish negligence or to give rise to liability. Wilson, 211 Ga. App. at 815. It is axiomatic that “ ‘[i]n everyday life, persons are required to negotiate the floors, steps and doorways of buildings.’ ” (Citation omitted.) Steinberger, 213 Ga. App. at 124 (1).

In the present case, Steele does not assert that the area was improperly lit or that the step was obscured from view so that it could not be seen. In fact, she admitted that she was not looking down because she incorrectly assumed that the ground was level. Because she had ascended a similar step on the same front porch about 45 minutes earlier as she entered, she should have reasonably anticipated that there would be a step down off the porch as she departed. Steele admitted that she was not looking where she was walking and that her attention was focused on her vehicle parked nearby. Steele acknowledged that there was nothing obstructing her vision or preventing her from looking down had she chosen to do so. It was incumbent upon Steele to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path; this she failed to do. J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994).

Steele’s contention that she was unable to see the step due to an “optical illusion” is negated by the fact that she did not look down before she fell. Emory Univ. v. Duncan, 182 Ga. App. 326, 329 (2) (355 SE2d 446) (1987); compare Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2) (349 SE2d 241) (1986). Nor are we persuaded by Steele’s argument that Rosehaven’s failure to provide a handrail or striping on the step, arguably in violation of local codes, establishes negligence per se. Steinberger, 213 Ga. App. at 125 (2). Even assuming arguendo that the step was defective, Steele’s admission that she entered the same area shortly before and crossed the same area where she fell albeit a few feet over to the side is fatal to her claim as she cannot show Rosehaven’s superior knowledge. Regardless of the alleged violations of building codes, Steele’s failure to exercise ordinary care for her own safety to discover the alleged defective condition bars her recovery. Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (2) (435 SE2d 764) (1993).

Decided October 22, 1996

Reconsideration denied November 13, 1996

Robert S. Windholz, for appellants.

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

Judgment affirmed.

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


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A1259.
    THE STATE v. ROGERS.
    (479 SE2d 377)
   Blackburn, Judge.

The State appeals the trial court’s grant of Rogers’ motion to suppress statements he made during an interrogation which took place at the conclusion of a State-administered polygraph examination.

A trial court ruling on a motion to suppress sits as a finder of fact. In cases involving conflicting evidence, its findings are analogous to a jury verdict, and they should not be disturbed by a reviewing court if there is any evidence to uphold them. Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150) (1989). A reviewing court, furthermore, must “construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994).

In this case, however, the facts are not in dispute, and this Court has the further benefit of reviewing a videotape made of the polygraph examination and interrogation at issue. When controlling facts are undisputed, our review of a motion to suppress is de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The trial court found that Rogers came to the police station without an attorney and submitted to a polygraph examination given by a Clayton County police sergeant. Rogers executed forms indicating that he freely and voluntarily consented to the exam, that he understood and waived his Miranda rights, and that he would stipulate to the admissibility of any evidence obtained from the examination. After explaining the process, the officer gave Rogers the polygraph examination. When it ended, he pulled his chair very close to Rogers, showed him the test results and said they indicated a “99 percent probability” that his answers were deceptive, and began an “extensive and lengthy” interrogation, the results of which the trial court excluded. Although it excluded the post-test statements, the trial court denied Rogers’ motion to exclude the results of the test itself.

Rogers could read and write and had a general equivalency diploma. He admitted he knew when he signed the stipulation that the officer was taking the polygraph for use as evidence. The polygraph consent form he signed states: “It is, also, stipulated that any questions propounded by [the officer], relating to [State of Georgia v. Rogers] and the answers thereto given by [Rogers] and the recordings of [Rogers’] reactions thereto and everything appertaining to said examination, including any statements given and the entire results of said answers, be received in evidence in the above styled case, either on behalf of the State or on behalf of [Rogers] and [Rogers] hereby, waives his constitutional privileges against self-incrimination to the extent that the same may be involved in the presentation in evidence of the foregoing matters. It is expressly stipulated that the foregoing shall not constitute a waiver of the defendant’s privileges against self-incrimination except as set forth above.” The officer also read Rogers his Miranda rights, including the right to remain silent and to stop answering questions at any time. Rogers signed a separate form stating he understood and waived those rights.

The trial court erred by excluding the results of the post-test interrogation. As the Georgia Supreme Court stated in Drane v. State, 265 Ga. 255, 258 (5) (455 SE2d 27) (1995), “admissions which are otherwise competent and admissible are not to be excluded simply because the admissions were made after the taking of a lie detector test.” Accord Smith v. State, 265 Ga. 570, 571 (2) (459 SE2d 420) (1995).

As in Smith, Rogers’ statements were made at the conclusion of a polygraph to which he had consented, after he was informed of his Miranda rights. This case presents an even stronger basis for admitting the interrogation results than do the facts of Drane, which centered around an unstipulated polygraph examination, the results of which are not admissible at trial. Compare Johnson v. State, 208 Ga. App. 87 (429 SE2d 690) (1993), which Drane overruled. Rogers was read his constitutional rights and acknowledged that he understood those rights, including the right to remain silent, the right against self-incrimination, and the right to refuse to answer questions at any time. As the trial court ruled, he understood that the questions and answers given during the test would be admitted at trial, including the results of that test. Therefore, under Drane and Smith, the trial court had no basis to conclude that Rogers believed his posi-test statements would not be used against him. Although each of those cases involved the denial of a motion to suppress, the principle stated therein applies equally to this case.

The trial court erroneously relied on State v. Williams, 217 Ga. App. 734 (458 SE2d 906) (1995), a case involving this same police sergeant. In that case, however, the evidence showed the officer breached an agreement with the defendant’s attorney that he would ask only specifically approved questions during the exam, and that the defendant had agreed to the exam based on his attorney’s agreement. Id. at 735-736. Furthermore, the defendant in Williams asked for his attorney several times but was told his attorney had left the police station. Id. at 736.

The trial court expressed an appropriate concern that the police sergeant should not be both polygraph examiner and interrogator. Our Supreme Court in Drane approved such duality, and we find no case or statutory authority prohibiting it. We are bound by our Supreme Court’s ruling, and it is for the legislature to address this practice.

Under the circumstances of this case, the record shows this literate, adult defendant, who was aware of the charges against him, voluntarily went to the police station to be asked questions he knew would be admitted into evidence. At the police station, he was informed of his constitutional rights, voluntarily waived those rights, and took a polygraph exam. Immediately after the exam, the officer initiated the questioning which resulted in the statements at issue. See McKenzie v. State, 187 Ga. App. 840, 844 (4) (371 SE2d 869) (1988) (officer not required to re-administer Miranda warnings before a second interrogation where only a short time passes between giving of warnings and defendant’s statement). His post-test statements were made freely and voluntarily, and the trial court erred in holding otherwise. See Reinhardt v. State, 263 Ga. 113, 115 (3) (428 SE2d 333) (1993); Williams v. State, 238 Ga. 298, 303 (2) (232 SE2d 535) (1977).

Judgment reversed.

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

Beasley, Chief Judge,

concurring specially.

I concur with the opinion except in two instances. With respect to the criticism of the polygraph examiner acting also as interrogator, I am not prepared to intimate or suggest that it should not be permitted.

Second, the record shows that Rogers was not in custody at the time he made the statements. Nor were any charges pending against him when the statements were made and reduced to writing by Rogers. Like the defendant in Smith v. State, 265 Ga. 570, 571 (2) (459 SE2d 420) (1995), Rogers had initiated the examination. There is no indication that he considered the session at an end when he was handed the results or that he wished to terminate it there. He had come to the police department to try to exonerate himself from the claims being made by the child. He was not arrested until after he wrote his statements. Because he was not in custody at any time during the session, it was not necessary to provide the Miranda warnings before asking any questions. Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694) (1966); Woods v. State, 242 Ga. 277, 279 (2) (248 SE2d 612) (1978); Brinson v. State, 191 Ga. App. 151, 152 (4) (381 SE2d 292) (1989).

Decided November 13, 1996.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellant.

Patricia A. Buttaro, for appellee.

State v. Williams, 217 Ga. App. 734 (458 SE2d 906) (1995), differs in that Williams, having already been indicted, refused to provide information but was pressured even after he asked for his attorney several times. The evidence showed that Williams’ waiver of Miranda rights was limited to polygraph questions, and only those which were counsel-approved. It further showed that the officer assured counsel “he would not go beyond the limited scope of the approved questioning and that he would not attempt to circumvent defense counsel’s directions for defendant ‘to answer the questions as briefly as possible and to volunteer no information.’ ” State v. Williams, 217 Ga. App. at 736. Thus, the questioning which exceeded these bounds entered the realm of coercion, of which there is no evidence in Rogers’ case.

Just as the results of the polygraph exam are admissible, as the trial court ruled, so are Rogers’ statements made thereafter.

Even if he was in custody, as the majority expressly assumes without so ruling, the trial court erred in excluding the statements.

       Rogers testified at the hearing that he believed police were going to use the test results only for their investigation and would not present them in a court of law. The videotape and waiver form show the officer told him they would be used in a court of law. By denying Rogers’ motion to exclude the test results the trial court impliedly rejected his testimony on this issue.

       We assume without deciding that Rogers was in custody at the time he made the statements at issue.


author: Blackburn, Judge.

text:
    A96A2181.
    KIM v. TEX FINANCIAL CORPORATION et al.
    (479 SE2d 375)
   Blackburn, Judge.

In an unrecorded bench trial, the trial court found Kim liable to Tex Financial on a promissory note. Kim appeals, contending that the plaintiff corporation had no capacity to sue and was not the proper party and that the trial court should have joined an indispensable party. As the settled law is against Kim and the lack of a trial transcript or statutorily authorized substitute leaves us with little or nothing to review, the judgment is affirmed.

Tex Financial Corporation sued Kim on a promissory note which clearly names “Tex Financial Corp.,” and no one else, as the lender (or “payee”). Kim answered, admitting he executed “a note” on behalf of his business and alleging that the persons who bought his business were the only parties liable on the note. He then filed a third-party action against the purchasers of his business in which he alleges that “[o]ne of the Promissory Notes for the business was held by the Plaintiff,” Tex Financial. These pleadings raise no issue of the capacity of Tex Financial to bring this suit. Over a year later, Kim filed a “motion to dismiss” in which he states that Tex Financial was not a legal entity when he executed the note to it, and “Chris Won” rather than Tex Financial is the proper party plaintiff. No affidavits or other evidentiary material accompanied this motion. Nothing shows the trial court ruled on this motion, but four days after the motion was filed it held an unrecorded bench trial and issued findings of fact and conclusions of law. The trial court specifically found that Tex Financial and Kim entered into the promissory note, and it awarded damages to Tex Financial. Kim again raised the issues of proper party and indispensable party in his motion for new trial. The trial court denied that motion in a summary order.

1. Kim is estopped to deny Tex Financial’s right to sue him on this note. “The existence of a corporation cannot be attacked by persons who have dealt with it as a corporation.” Walker v. Joanna M. Knox & Assoc., 132 Ga. App. 12, 13 (2) (207 SE2d 570) (1974); see also Cahoon v. Ward, 231 Ga. 872, 874-875 (1) (204 SE2d 622) (1974). Furthermore, the question of whether Tex Financial was a proper party was one of fact, see Worley v. Chuck Clancy Ford of Marietta, 206 Ga. App. 296, 297 (425 SE2d 376) (1992), and without a transcript we must presume the trial court’s determination is supported by evidence. Green Room v. Confederation Life Ins. Co., 215 Ga. App. 221, 222 (1) (450 SE2d 290) (1994). This enumeration of error must fail.

2. Kim also claims the trial court should have dismissed the suit because it was not brought in the name of the real party in interest, Won, whom Kim claims was an “indispensable party.” The trial court’s failure to explicitly rule on Kim’s motion amounted to a denial of it. Hewett v. Carter, 215 Ga. App. 429, 430 (2) (450 SE2d 843) (1994). Furthermore, because the questions of “real party in interest” and “indispensable party” required evidence not contained in the pleadings, the court presumably heard evidence on this motion before or during the bench trial. See OCGA § 9-11-43; see also Hodg skin v. Markatron, Inc., 185 Ga. App. 750, 752 (3) (365 SE2d 494) (1988). Without a transcript of any hearing, and without any evidence to indicate the trial court erred, this Court must presume it reached the right conclusion. Green Room, supra. This enumeration of error has no merit.

Decided November 13, 1996.

Larry H. Tatum, for appellant.

Kesmodel & Mason, Claude D. Mason, Udai V. Singh, for appellees.

3. This appeal is frivolous, as Kim could not possibly have expected to prevail on this appeal as the law is clear and he provided no transcript of the proceedings from which he appeals. Pursuant to Court of Appeals Rule 15 (b), we assess a frivolous appeal penalty of $500 against Kim and his attorney of record, jointly and severally. This penalty shall be included in the remittitur.

Judgment affirmed.

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


text:
    A96A2310.
    BURK v. THE STATE.
    (478 SE2d 416)
   Beasley, Chief Judge.

This is an out-of-time appeal by Burk from his convictions of three counts of obstruction of an officer (OCGA § 16-10-24) and one count of reckless endangerment (OCGA § 16-5-60 (b)).

The evidence showed that following his arrest, Burk started a fire in his holding cell. He was asked to extinguish the fire but refused. While Officer Stanfield remained at or near the cell door, Officers Vaughn and Cook entered in order to extinguish the blaze and retrieve the material used by Burk to start the fire. Burk refused to relinquish anything in his possession and yelled obscenities at the officers. He grabbed Stanfield’s leg and refused to release it. He attempted to hit Cook. He struck Vaughn several times, grabbed him by the arm, and attempted to bite him.

Burk’s treating physician testified that Burk had tested positive for HIV numerous times and had developed AIDS. Vaughn testified that he had had previous encounters with Burk at which time Burk had blamed law enforcement officers and others for his AIDS and had threatened to transmit the virus to Vaughn.

1. Burk first contends the evidence is insufficient to support his conviction of reckless endangerment.

The indictment charged Burk with aggravated assault with intent to murder Vaughn. The trial court granted Burk’s request that it charge the jury on misdemeanor endangerment under OCGA § 16-5-60 (b) as a lesser included offense. That subsection provides: “A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.”

Under OCGA § 16-5-60 (c) (1) through (5), a person who is HIV-infected is guilty of felony reckless endangerment if, after obtaining knowledge of being infected with HIV, such person, without disclosing the fact of that person’s being HIV-infected: knowingly engages or offers to engage in certain sexual acts; knowingly allows another person to use a hypodermic needle or syringe previously used by the infected person; or donates blood, blood products, bodily fluids, or any other body organ or part. Burk’s treating physician testified that it was very strongly probable that someone could get the HIV virus if bitten by an infected person. He further testified that although he was not aware of any known reports of anyone contracting AIDS through the transmission of saliva, the HIV virus had been found in saliva and he did not see why it could not be transmitted that way.

Viewed in a light most favorable to the verdict, the evidence authorized the jury to find that by attempting to bite Vaughn, knowing that he was HIV-infected and had AIDS, Burk consciously disregarded a substantial and unjustifiable risk that his act would harm Vaughn or endanger his safety. See Scroggins v. State, 198 Ga. App. 29, 30 (1) (401 SE2d 13) (1990). The fact that Burk did not engage in any act proscribed by OCGA § 16-5-60 (c) does not insulate him from criminal liability under subsection (b) for attempting to transmit the AIDS virus via saliva. See Scroggins, supra. Moreover, a defendant cannot complain of a verdict which was brought about by a charge he requested. Wright v. State, 162 Ga. App. 60 (290 SE2d 163) (1982).

2. Burk contends that the evidence does not support his conviction for obstruction of Officer Stanfield.

He does not argue that the evidence was insufficient to establish the elements but that there was a variance between the allegations of the indictment and the evidence presented at trial. The indictment charged Burk with obstruction of Officer Stanfield “by doing violence to said officer in that he did grab, twist and wrench said officer’s leg and ankle.” At trial, Stanfield testified that although Burk grabbed his leg and would not let it go, he did not twist his leg or wrench it out of the socket.

“Not every variance between the allegations in an indictment and the evidence presented at trial is fatal. [Cit.] ‘The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense. (Cit.)’ [Cit.]” Nichols v. State, 221 Ga. App. 600, 601 (1) (473 SE2d 491) (1996).

Decided November 13, 1996.

Perry & Associates, Michael E. Brush, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

The indictment “placed [Burk] on notice that he was charged with a particular type of [physical] contact constituting [obstruction of an officer].” Perguson v. State, 221 Ga. App. 212, 218 (6) (470 SE2d 909) (1996). He was enabled to prepare his defense and was protected both from surprise at trial and from another prosecution for the same offense. The variance was not prejudicial, and the evidence supports the conviction.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.