author: Carley, Chief Judge.

text:
    A90A0721.
    VASWANI v. WOHLETZ.
    (396 SE2d 593)
   Carley, Chief Judge.

Appellee-plaintiff brought this action to recover rents that he was allegedly owed by appellant-defendant. A jury trial resulted in a verdict in appellee’s favor. The trial court entered judgment on the jury’s verdict and appellant appeals.

1. Appellant moved for directed verdict on the ground that the evidence demanded a finding that appellee had unreasonably withheld his consent to an assignment of the lease. The trial court’s denial of appellant’s motion on this ground is enumerated as error.

In relevant part, the lease provides that appellant “shall not, without the prior written consent of [appellee] endorsed hereon, assign this lease or any interest hereunder, or sublet premises or any part thereof. . . .” It is undisputed that appellee never gave his written consent to appellant’s assignment of the lease.

“ ‘Absent a limiting statute or controlling public policy, parties may contract with one another on whatever terms they wish (cits.) and the written contract defines the full extent of their rights and duties (Cit.). . . .’ [Cits.]” Hardin v. Macon Mall, 169 Ga. App. 793, 794 (315 SE2d 4) (1984). See also Lovelace v. Figure Salon, 179 Ga. App. 51, 52 (1) (345 SE2d 139) (1986). The opinion in Stern’s Gallery of Gifts v. Corp. Property Investors, 176 Ga. App. 586, 592 (4) (337 SE2d 29 (1985) does include a discussion of a perceived “trend” in other jurisdictions towards requiring a showing of the reasonableness of the lessor’s withholding of his consent even in the absence of a lease clause expressly requiring that such consent not be unreasonably withheld. As has previously been recognized, however, the Stern’s Gallery decision did not purport to adopt this “trend” as the law of this state. See Nguyen v. Manley, 185 Ga. App. 187 (363 SE2d 613) (1987). In Nguyen, “[t]he court construed . . . language [similar to that contained in the instant lease and found it] to be unambiguous and declined to impose a requirement of reasonableness on consent where the lease did not so provide.” Sun Ins. Svcs. Inc. v. 260 Peachtree St., 192 Ga. App. 482 (2) (385 SE2d 127) (1989).

Decided September 4, 1990.

Dailey & Groover, Lewis M. Groover, Jr., for appellant.

Murray, Temple & Dinges, William D. Strickland, John C. Mc-Caffery, for appellee.

Thus, in accordance with Nguyen and in the absence of any statutory provision to the contrary, we hold that the terms of the instant lease cannot be construed as conditioning appellee’s right to refuse to give his written consent for an assignment upon a showing of reasonableness. Since the reasonableness or unreasonableness of appellee’s refusal to give his written consent is otherwise irrelevant to the legal effect of his failure to give such consent, the trial court did not err in denying appellant’s motion for directed verdict.

2. Appellant also moved for a directed verdict on the ground that he had surrendered the premises and appellee had accepted that surrender. The trial court’s denial of appellant’s motion for directed verdict on this ground is also enumerated as error.

“ ‘When a landlord rents a building and puts a tenant in possession of the premises (with consequent liability for rent) the possession of the premises can not be surrendered by the tenant during the term of the lease, unless the surrender be accompanied by an agreement on the part of the landlord to retake possession. . . There must be either an express agreement to the surrender of possession on the part of the tenant, or such circumstances as compel the conclusion that the landlord consented to retake possession of his property.’ [Cit.]” Jenkins v. Smith, 92 Ga. App. 296 (2) (88 SE2d 533) (1955). See also Kirnber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (1) (274 SE2d 620) (1980). Even assuming without deciding that the evidence may have authorized a finding of surrender and acceptance, it is clear that the evidence did not demand such a finding. Therefore, the trial court did not err in denying appellant’s motion for directed verdict on the ground of surrender and acceptance of the premises.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A90A0749.
    WORTHEN et al. v. WHITEHEAD.
    (396 SE2d 595)
   Carley, Chief Judge.

Appellant-plaintiff Keasha Worthen, the minor child of appellant-plaintiff Gwendolyn Worthen, was struck by an automobile owned by appellee-defendant Cynthia Whitehead and driven by John Bramlett. Appellants brought this tort action, premising appellee’s asserted liability upon the theory of negligent entrustment of the automobile to Bramlett. Appellee’s motion for summary judgment was granted by the trial court and appellants appeal from that order.

“Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. [Cits.]” (Emphasis supplied.) Gunn v. Booker, 259 Ga. 343, 347 (2) (381 SE2d 286) (1989). In support of her motion, appellee produced evidence showing that, prior to lending her automobile to Bramlett, she had no actual knowledge of his incompetency to operate a motor vehicle. In opposition, “[appellants] made no showing, even circumstantially, that [appellee] had actual knowledge that [Bramlett] was a reckless and incompetent driver. [Cits.] It was incumbent upon [appellants], in opposing [appellee’s] motion for summary judgment, to show that [appellee] had ‘actual knowledge of a pattern of reckless driving or facts from which such knowledge could be reasonably inferred in order to preserve the issue for jury determination.’ [Cit.]” May v. Phillips, 157 Ga. App. 630, 631 (2) (278 SE2d 172) (1981).

Contrary to appellants’ assertions, the fact that appellee made no direct inquiry of Bramlett is not material to her liability. OCGA § 40-5-122 “requires evidence that the defendant-entrustor knew that the driver was unauthorized to operate an automobile but does not require that the defendant-entrustor demand proof of licensing. [Cit.] [Likewise,] [i]n a common law negligent entrustment case, ‘Georgia law does not impose the duty upon the owner of an automobile to make investigation of the competency of one who drives his car and discover his “reputation” as a driver in order to avoid being negligent if it should subsequently be determined that the driver indeed had a reputation for recklessness and incompetency in driving.’ [Cit.]” Thomason v. Harper, 162 Ga. App. 441, 447-448 (2) (289 SE2d 773) (1982). See also Gill Plumbing Co. v. Macon, 187 Ga. App. 481, 482 (2) (370 SE2d 657) (1988); Bonney Motor Express v. Yates, 171 Ga. App. 754, 755 (2) (320 SE2d 844) (1984).

The evidence adduced in support of appellee’s motion pierced the pleadings and appellants failed to come forward with specific facts to establish the existence of a genuine issue of material fact for jury resolution. The trial court, therefore, correctly granted summary judgment in favor of appellee. May v. Phillips, supra.

Decided September 4, 1990.

Burge & Wettermark, Michael J. Warshauer, for appellants.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Pope, Judge.

text:
    A90A0750.
    COVERT v. THE STATE.
    (396 SE2d 596)
   Pope, Judge.

Defendant Scott R. Covert was convicted by a jury of speeding and driving under the influence of alcohol. On appeal he argues the trial court erred in denying his motion to suppress the evidence of the breath test administered to him at the police station where he was first taken after arrest.

At the hearing on defendant’s motion, the evidence showed defendant was stopped on the highway at approximately 7:57 p.m. Although defendant was informed of his right to an independent chemical test, defendant did not make a request for such a test to the arresting officer. The breath test was administered thirty to thirty-five minutes after he was first stopped. After the breath test at the police station, he was transported to the county jail in Perry, where he arrived at approximately 8:45 to 8:55 p.m. At the jail, defendant was allowed to make telephone calls. The jailer testified that approximately forty-five minutes to one hour after arriving at the jail, defendant handed the telephone receiver to him and he conversed with an individual at a local hospital concerning arrangements for an independent chemical test. The jailer understood that the test could be administered to defendant if he could be transported to the hospital. The jailer testified that he attempted to reach the arresting officer and, when he was unsuccessful, then notified the sheriff’s department that defendant had requested an independent test and needed transportation to the hospital for that test. No officer was sent for the defendant until approximately midnight when he was transported to a jail in Warner Robins for processing his bail arrangements. No reason for the delay was offered at the suppression hearing, although the jailer testified at the trial of the case that no sheriff’s officer was available for transporting defendant to the hospital at the time he called to inform them of defendant’s request. When defendant arrived at the jail in Warner Robins, he again asked for a blood test and was told to wait until he was bailed out.

The trial court’s order denying the motion to suppress, prepared in the form of a letter to the attorneys of record, includes a finding that the jailer “never testified that the defendant requested an additional test.” However, the court found that defendant summoned the jailer to the telephone to talk to officials at the hospital about administering a test. Moreover, the transcript of the hearing clearly shows the jailer understood the defendant was making a request for an independent test and that he told the sheriff’s department the defendant “was requesting a test. . . .” Thus, the finding by the trial court is contrary to the undisputed testimony of the jailer and defendant and is inconsistent with the court’s further findings. After first finding that the defendant never made a request for a test, the order also finds that the defendant “abandoned his request for an additional test and permitted himself to be transported to the Warner Robins jail rather than to the hospital. . . .” The defendant could not have abandoned his request if he had not first made such a request. Moreover, the record shows defendant was under arrest and in the custody of law enforcement officers during the entire period from his arrest on the highway, his transportation to the police station for the breath test, his transportation to and detainment at the jail in Perry, and his transportation to the jail in Warner Robins. Being lawfully confined by arrest, it was not within the defendant’s power to “permit” himself to be taken one place rather than another. A pertinent issue might be whether the defendant abandoned his request for an independent test by failing to voice his request again when he was picked up to be transported from one jail to another. However, according to defendant, he was transported to Warner Robins at approximately midnight. This would have been over four hours after his arrest and, arguably, a test at that point would have been untimely as a matter of law. Cf. Ragan v. State, 191 Ga. App. 374 (1) (381 SE2d 589) (1989) (where a request for a blood test first made four hours after arrest was held to be untimely).

The record shows defendant was arrested at 7:57 p.m. He was transported to the police station where a test was administered approximately thirty minutes later, at about 8:30 p.m., and at approximately 8:45 p.m. was transported to the jail in Perry. The arresting officer testified he stayed at the jail approximately fifteen minutes in order to do the “initial paper work” for incarcerating the defendant. Defendant was allowed to make telephone calls and approximately forty-five minutes to one hour after first arriving at the jail, which would have been approximately 9:30 to 9:45 p.m., he made his request for the test known to the jailer by having the jailer talk to an official at the hospital. Thus, the request was communicated approximately one and one-half hours after his initial arrest, one hour after the breath test was administered and, presumably, within thirty minutes after the administrative process for his incarceration was completed.

Decided September 4, 1990.

J. Robert Daniel, for appellant.

Carl A. Veline, Jr., Solicitor, Cynthia T. Adams, Assistant Solic itor, for appellee.

The trial court erred in finding that defendant never requested an additional test. A request for an independent chemical test must be made within a reasonable time after the defendant’s arrest. Ragan v. State, supra. However, a request made within one and one-half hours after arrest is not, as a matter of law, untimely. This court has held that it is the responsibility of the accused to make arrangements for an independent test. See State v. Buffington, 189 Ga. App. 800 (377 SE2d 548) (1989); Grizzle v. State, 153 Ga. App. 364 (265 SE2d 324) (1980). Under the circumstances of this case, because defendant was transported from one facility to another and made the request once he was allowed to make telephone calls, we hold that the evidence presented at the suppression hearing showed defendant’s request was made within a reasonable time.

The only remaining issue is whether the State’s failure to allow defendant to obtain such a test requires the suppression of the results of the breath test. The “justifiable failure or inability to obtain an additional test” does not preclude the admission of evidence of a state-administered test. OCGA § 40-6-392 (a) (3). “It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. . . . Factors to be considered [in making this determination] include . . . availability of police time and other resources. . . .” State v. Buffington, supra at 802. In this case there is no need to remand for additional findings on whether the failure was justifiable because the State failed to present any evidence at the suppression hearing from which the trial court could find the failure to respond to the defendant’s timely request was justified. The evidence at the suppression hearing showed “that those holding [the accused] under arrest either refused or in any event failed to take him to the hospital for [an independent chemical test].” Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978). Therefore, we rule that the trial court erred in denying defendant’s motion to suppress.

The conviction for driving under the influence must be reversed and, if defendant is retried, the evidence of the results of the breath test may not be presented. Because the error is irrelevant to the conviction for speeding, it is affirmed.

Judgment reversed in part and affirmed in part.

Deen, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A90A0757.
    WILLIAMS v. THE STATE.
    (396 SE2d 598)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine. On appeal, he enumerates as error the denial of his motion to suppress, the denial of his motion for a mistrial, the denial of his motion for directed verdict, and the general grounds.

The evidence, viewed in a light most favorable to support the jury verdict, shows that appellant was a passenger in a car stopped after Officer Anderson observed the car twice weave across the centerlane of a highway. Immediately after the stop, Officer Stewart arrived and the officers began questioning the driver, who along with appellant, had stepped out of the car. The driver could not produce his driver’s license, and he was given an alco-sensor test, which registered .05. Appellant, who was answering questions directed to the driver of the vehicle, stated that the car belonged to his girl friend. The officers became suspicious when they obtained conflicting statements from the driver and appellant about where they had been and where they were going. When Officer Stewart asked appellant if he could search the car, appellant’s response was to the effect of “yes, sir, boss, help yourself.” The officers proceeded to search the car and in a suitcase located in the trunk of the car, they found a paper bag containing a large quantity of money wrapped in small stacks and a 35 millimeter film canister containing a white powdery substance which appeared to be cocaine. Appellant stated that the suitcase was his, and he was placed under arrest. At trial a State witness positively identified the substance found in the film canister as cocaine.

1. Appellant contends that it was error to deny his motion to suppress because he did not consent to the search. It is undisputed that the officers did not obtain written consent to search the car. Appellant testified at the suppression hearing that the officers did not request to search the car and that he did not consent to a search. Officer Stewart testified that he asked appellant if he could search the car and appellant consented. Officer Anderson testified that he heard Officer Stewart ask for permission to search the car and heard appellant unequivocally answer that Officer Stewart had permission to search the car. There is also evidence that appellant directed the driver to give the officers the key to the trunk of the car. “ ‘(T)his court must accept a trial court’s rulings on disputed facts and credibility at a suppression hearing, unless those findings are clearly erroneous. (Cit.) In the instant case, the evidence authorized the trial court’s finding that (appellant) had freely and voluntarily consented to the search of (the car).’ [Cit.]” Ragin v. State, 192 Ga. App. 686 (2) (385 SE2d 770) (1989). Accordingly, we find no error with the denial of appellant’s motion to suppress.

Decided September 4, 1990.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

2. Appellant enumerates as error the denial of his motion for mistrial made when a State witness made the following statement: “We took ‘em all down to the station and at that time we asked the driver if he wanted to give a statement. Asked Mr. Williams if he wanted to give a statement, after they were both read their rights. Both of 'em declined and they both. ...” The trial court sustained appellant’s objection, instructed the jury that the statement should not have been made, and that they should disregard the statement entirely. The court denied appellant’s motion for mistrial and further explained to the jury that when the defendant remains silent, he is only doing what he has a right to do and that fact should not influence their decision. “ ‘(U)nder the circumstances here we do not find that the trial court in anywise abused its discretion in the method in which it immediately took steps to correct any improper statements by the witness.’ [Cit.]” Davis v. State, 157 Ga. App. 290, 291 (277 SE2d 286) (1981).

3. In his third enumeration of error, appellant contends that the trial court erred in denying his motion for directed verdict of acquittal because there was some evidence that the driver of the car may have had access to the suitcase where the contraband was found. “ ‘ “It was not necessary to show that it was impossible for the offense to have been committed by anybody else, or that it might not, by bare possibility, have been done by another.’” [Cits.]” Johnson v. State, 126 Ga. App. 93, 95 (189 SE2d 900) (1972) “The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the ‘essential elements of the crime beyond a reasonable doubt.’ [Cit.]” Garmon v. State, 192 Ga. App. 250 (384 SE2d 278) (1989). Since the. evidence was sufficient under the test provided under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) (see Division 4), appellant’s motion for directed verdict was properly denied.

4. Appellant also enumerates the general grounds. After a careful review of the entire record, we find that a rational trier of fact could have found appellant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, supra.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0777.
    PEELE et al. v. DOBBS.
    (396 SE2d 600)
   Banke, Presiding Judge.

After their home was damaged by a chimney fire, the appellants filed the present action against the seller of the property, the builder, the subcontractors involved in the installation of the chimney, and the appellee herein, who, as the Cobb County Building Inspector, is alleged to have been negligent in inspecting and approving the construction of the chimney. Subsequent to the filing of the suit, the appellants settled their claims against all the defendants except the appellee and one of the subcontractors. They bring this appeal from an order granting summary judgment to the appellee based on the defense of official immunity. Held-.

“ ‘[W]here an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without willfulness, malice, or corruption.’ ” Hennessy v. Webb, 245 Ga. 329, 330-31 (264 SE2d 878) (1980).

It is apparent without dispute in the present case, that the appellee was acting in his official capacity as building inspector in inspecting and approving the construction of the chimney. Although no allegation of wilfulness, malice or corruption has been made and although there has been no waiver of official immunity resulting from the purchase of liability insurance, the appellants contend that their claim against the appellee may nevertheless proceed because they have sued him in his individual rather than his official capacity and because they have alleged that his inspection of the property was a ministerial rather than a discretionary function. However, the appellee clearly was sued “solely because of the position he held and the duties imposed upon him as a result of this position. Indeed, the act complained of could only have been done in [his] official capacity. ... In effect, [the appellants] are alleging that the [appellee], acting [in his official capacity as building inspector], failed to exercise sound judgment (discretion) in allowing what they alleged to be a hazardous condition to exist. Therefore, the act or failure to act is not ministerial in nature, but is, rather, discretionary.” Hennessy v. Webb, supra at 332. It follows that the trial court did not err in granting the appellee’s motion for summary judgment. Accord Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). See also Trianon Park Condominium Assn. v. City of Hialeah, 468 S2d 912 (Fla. 1985).

Decided September 4, 1990.

Barry L. Zimmerman, for appellants.

Webb, Kicklighter & Casey, Kris K. Skaar, Adele P. Grubbs, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Birdsong, Judge.

text:
    A90A0778.
    THE STATE v. WHITE.
    (396 SE2d 601)
   Birdsong, Judge.

The State appeals from the grant of a motion to suppress evidence of contraband drugs seized pursuant to a search warrant. After reciting the address and describing with particularity the premises to be searched, the affidavit accompanying the warrant stated as follows: “Within the past 48 hours, I, Sgt. Bryant, was contacted by a concerned citizen who said they had an occasion to be at the above residence of 727A 3rd. St. N.W. and did see a quantity of cocaine in the residence. Concerned citizen stated the subject who had the cocaine is known on the street as ‘Big Man.’ I believe the information given by the concerned citizen to be true and correct.” After hearing the matter, the trial court granted the motion on the ground that the affiant failed to state when the informant saw the cocaine in the possession of the suspect, which is an essential element in the issuance of a valid search warrant. See Windsor v. State, 122 Ga. App. 767 (178 SE2d 751). The State appeals, contending that because the law officers relied in good faith in executing the warrant issued by a neutral and detached magistrate, the trial court erred in granting the motion to suppress. Held:

“In determining whether to issue a search warrant, ‘(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud(ing)” that probable cause existed.’ Illinois v. Gates, 462 U. S. 213, 238-239 (103 SC 2317, 76 LE2d 527) (1983); State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).” Futch v. State, 178 Ga. App. 115, 116 (1) (342 SE2d 493).
“The good-faith exception to the exclusionary rule occurs when an officer makes a judgmental error concerning the existence of facts sufficient to constitute probable cause if the officer has forthrightly set out the facts in an affidavit for a search warrant.” State v. Stringer, 258 Ga. 605, 606 (372 SE2d 426). To ensure that there was a valid basis for the magistrate’s conclusion, the reviewing court must “determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” Massachusetts v. Upton, 466 U. S. 727, 728 (104 SC 2085, 80 LE2d 721). “We must determine, among other things, whether the hearsay information supplied to the affiant, coupled with the affiant’s personal observations, presented a fair probability that contraband would be found at the [suspect’s] residence.” State v. Brown, 186 Ga. App. 155, 156 (1) (366 SE2d 816).

In the instant case, Sgt. Bryant, the affiant, swore that he had been contacted by a “concerned citizen,” yet he admitted under cross-examination that he did not know the identity of the concerned citizen and was unable to give any basis for believing that the information was true. He had received information from another anonymous source over a month before that there were drugs in the same residence, but acknowledged that that information was stale and no one had told him they “directly saw cocaine in the apartment.” Although he staked out the residence after receiving the second tip, he did not observe any traffic going in or coming out of it. When the issuing magistrate was asked if Sgt. Bryant had given her any information other than what was stated in the body of the affidavit, she could not recall. She further testified that the only basis she had to believe the informant was a concerned citizen was because in the past she had never had any reason to doubt what Sgt. Bryant told her. Thus it is clear that the warrant was issued on no basis other than the affiant’s conclusory statement that the anonymous tipster was a concerned citizen.

We therefore conclude that this case is controlled by the decision in State v. Brown, supra. “[T]he magistrate must consider the veracity and basis of knowledge of persons supplying hearsay information to an affiant officer. The affidavit in the case at bar contained no information about the basis of the informant’s knowledge or reasons why the informant should be believed. In effect, the investigation . . . had as its inception information received by the affiant officer over the telephone from an anonymous tipster described by the affiant as a ‘concerned citizen.’ ‘This court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information. [Cits.]’ [Cits.] However, before an anonymous tipster can be elevated to the status of ‘concerned citizen,’ thereby gaining entitlement to the preferred status regarding credibility concomitant with that title, there must be placed before the magistrate facts from which it can be concluded that the anonymous tipster is, in fact, a ‘concerned citizen.’ [Cits.] An informant’s veracity, reliability, and basis of knowledge are ‘highly relevant in determining the value of his report’ and while these elements are not ‘entirely separate and independent elements to be rigidly exacted in every case,’ they are ‘closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.’ [Cit.] The affidavit in the case at bar contained no information from which it could be gleaned that the tipster was, in fact, a ‘concerned citizen.’ The magistrate was given nothing other than the affiant’s conclusory statement that the tipster was a concerned citizen. That will not suffice. [Cit.] Therefore, the informant was not entitled to a preferred status insofar as testing the credibility of his information. The complete lack of information about the informant and the basis of his knowledge relegated the information he supplied to the status of rumor.” Id. at 157-158 (2). Compare Christopher v. State, 190 Ga. App. 393 (1) (379 SE2d 205) and McQueen v. State, 189 Ga. App. 743 (377 SE2d 682), distinguishing State v. Brown, supra, on these grounds. It follows that the trial court correctly granted appellee’s motion to suppress.

Decided September 4, 1990.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellant.

May & Horkan, Dwight H. May, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0785.
    SUCHNICK v. SOUTHERN GENERAL INSURANCE COMPANY.
    (396 SE2d 609)
   Pope, Judge.

Plaintiff James Suchnick appeals the trial court’s order dismissing his complaint as a sanction for failure to respond to defendant’s interrogatories and request for production of documents. The record shows plaintiff failed to serve any response to defendant’s discovery requests and also failed to respond to defendant’s motion for sanctions. On appeal, plaintiff argues the trial court erred in dismissing the complaint because no previous order compelling response to discovery had been issued. OCGA § 9-11-37 (d) (1) authorizes a trial court to dismiss an action, pursuant to OCGA § 9-11-37 (b) (2) (C), for complete failure to respond to interrogatories. Mayer v. Inter state Fire Ins. Co., 243 Ga. 436 (2) (254 SE2d 825) (1979); Danger v. Strother, 171 Ga. App. 607 (1) (320 SE2d 613) (1984). The trial court did not abuse its discretion in dismissing plaintiff’s complaint.

Decided September 4, 1990.

Earnie R. Breeding, for appellant.

Darroch & Obenshain, Robert M. Darroch, for appellee.

Because the law of Georgia is indisputably clear on issues raised by plaintiff’s appeal, we grant defendant’s motion for a $500 penalty for frivolous appeal pursuant to Rule 26 (b) of the Rules of this Court. The trial court is hereby directed to enter judgment for a $500 penalty against plaintiff and in favor of defendant upon return of the remittitur.

Judgment affirmed.

Motion for penalty for frivolous appeal granted. Deen, P. J., and Beasley, J., concur.


text:
    A90A0787.
    BARRETT v. WHARTON et al.
    (396 SE2d 603)
   Birdsong, Judge.

Barrett appeals from the dismissal of his complaint against Wharton and other officials (“appellees”) of the correctional institution in which Barrett is confined seeking damages for the loss of his property. Held:

The order dismissing Barrett’s complaint states the complaint was dismissed after a hearing on appellees’ motion to dismiss or in the alternative for motion for summary judgment. The order also states that a release signed by Barrett was entered in evidence at the hearing, and based on the release, the trial court concluded that Barrett could state no set of facts upon which appellees could be held responsible for Barrett’s property and dismissed the complaint.

Barrett’s notice of appeal specified that “[t]he Clerk will not [omit] any part of the record on appeal, with transcripts of evidence and proceedings being filed for inclusion in said record of appeal.” Nevertheless, neither the motion to dismiss, the release, nor the transcript of the hearing was included with the original record. At this court’s request, however, the record was supplemented with the release considered by the trial court, but the motion was not provided since it apparently was an oral motion made at the hearing.

This motion for failure to state a claim upon which relief can be granted or in the alternative for summary judgment was supported by a matter outside the pleadings, the unsworn release. When such matters are considered, “the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” OCGA § 9-11-12 (b). Wallis v. Trustees &c. Methodist Church, 252 Ga. 51-52 (310 SE2d 915).

OCGA § 9-11-56 (c) and Superior Court Rules 6.5 and 6.6 prescribe the procedures for motions for summary judgment. The record on appeal shows that these procedures were not followed.

Moreover, OCGA § 9-11-56 (c) contemplates a written motion (Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 844 (374 SE2d 746)), and unsworn documents cannot be regarded as an affidavit. Barrett v. Commercial Union Ins. Co., 188 Ga. App. 353, 354 (373 SE2d 59).

Further, OCGA § 9-11-56 (c) requires service of a motion for summary judgment on the opposing party at least 30 days before a hearing. Hansford v. Robinson, 255 Ga. 530 (340 SE2d 614). Since “the motion to dismiss was converted to a motion for summary judgment . . . [Barrett was] entitled to have the notice requirements of OCGA § 9-11-56 (c) . . . met.” Wallis v. Trustees &c. Methodist Church, supra at 52.

Nothing in this record, however, reflects that Barrett received any notice that the motion would be heard. “[D]ue process requires that [Barrett] not be surprised; rather, that he be given reasonable opportunity to refute the movant’s showing that there are no genuine issues of material fact.” Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631 (278 SE2d 377). Moreover, while it is within the discretion of the trial court to receive evidence on a motion for summary judgment (see Blackstone Indus. v. Andre, 232 Ga. 715 (208 SE2d 815); Johnson v. Aetna Fin., 139 Ga. App. 452 (228 SE2d 299)), it must do so with strict compliance with the law (Pierce v. Gaskins, 168 Ga. App. 446, 450 (309 SE2d 658)). Further, the evidence received must satisfy OCGA § 9-11-56 requirements, be transcribed, and be on file at least 30 days. Lynch v. Ga. Power Co., 180 Ga. App. 178 (348 SE2d 719); Bonds v. John Wieland Homes, 177 Ga. App. 254, 256 (339 SE2d 318). In this case the record shows that this was not done. The unsworn release, not supported by affidavit, was admitted at the hearing and used as the basis to dismiss the complaint. This violated the summary judgment procedure. See Springer v. Gaffaglio, 190 Ga. App. 272, 273 (378 SE2d 691). Accordingly, the dismissal of the complaint was error. Jim Altman Ins. v. Zorn &c. Agency, 184 Ga. App. 575 (362 SE2d 142).

Judgment reversed.

Banke, P. J., and Cooper, J., concur.

Decided September 4, 1990.

Hugh Barrett, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, for appellees.


text:
    A90A0807.
    NOLTON v. THE STATE.
    (396 SE2d 605)
   Pope, Judge.

On April 14, 1988, as part of an undercover investigation, GBI agents Stuart and McCormick were taken to a house for the purpose of purchasing cocaine. At the house they were greeted by Frederick Parks and defendant B. J. Nolton. After they discussed the purchase, Parks took money from the agents and left to get the cocaine. During the one and one-half hours Parks was gone the agents and defendant engaged in friendly conversation, mostly about narcotics. When Parks returned he handed the cocaine to the agents. On April 16 the agents returned and Agent McCormick negotiated another sale with Parks and defendant. This time defendant asked what McCormick wanted and accepted the money from him. Defendant then gave the money to Parks who left to get the cocaine. When Parks returned over an hour later he handed the cocaine to defendant, who turned it over to McCormick. McCormick gave defendant ten dollars for his assistance with the sale.

Defendant was subsequently arrested and charged, in two separate counts, with violating the Georgia Controlled Substances Act on April 14 and April 16, 1988. After a jury was chosen and sworn for trial, the State dismissed the count involving the alleged sale on April 14, and defendant was tried on the second count only. The jury found defendant guilty and he appeals from the denial of this motion for new trial.

1. Defendant contends that the trial court erred in allowing the State to present evidence of the April 14 sale because it was not admissible as a similar transaction and violated his constitutional right against double jeopardy. He further argues that he was not served with notice prior to trial that the similar transaction would be introduced as required by Uniform Superior Court Rule 31.3. The trial court considered defendant’s objections outside the presence of the jury and ruled that testimony of the agents concerning the April 14 sale was admissible because it was part of a single, continuous transaction. We agree.

“An indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the period of limitation, including the date(s) alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period. (Cit.) Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986). The dates alleged in [defendant’s] indictment were not an essential averment thereof. The . . . prior similar [transaction] had occurred within the applicable . . . statute of limitation. Thus, the evidence did not fall within the ambit of Rule 31.1 relating to notice of the State’s intention to present evidence of a similar transaction. Rather, it was evidence of the offense charged and admissible. Pittman v. State, supra at 760 (1).” (Punctuation omitted.) Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987). Accord Garrett v. State, 188 Ga. App. 176, 177 (2) (372 SE2d 506) (1988). Cf. Story v. State, 196 Ga. App. 590 (— SE2d —) (1990). In any event, since defendant had been indicted for the transaction in question and was not apprised that that count would be dismissed until the day of trial, it cannot seriously be contended that he was unaware of the State’s intention to introduce evidence relating to this count. We find, therefore, that the trial court did not err in allowing this evidence to be admitted.

2. Defendant complains that the trial court erred in commenting on the evidence and in allowing a State’s witness to state a conclusion as to the ultimate issue being tried. The record shows that during the cross-examination of Agent McCormick, defense counsel asked him if on April 16, after Parks brought back the cocaine, defendant “took it from him and handed it to you.” Agent McCormick replied “Right, which is against the law.” Defense counsel objected and the trial court responded, “Well, it’s no worse than you intimating that that doesn’t constitute a sale under the law. ...” After further discussion, the judge ruled that he would instruct the jury what constituted a sale when he charged the law, and they could apply the law to the facts. Questioning of the witness resumed with no further objection by defendant.

“ ‘We will first note that counsel . . . acquiesced in the ruling of the trial court. ... No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. (Cits.)’ Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536) (1986). See also Riley v. State, 180 Ga. App. 409 (1) (349 SE2d 274) (1986).” McGarity v. State, 190 Ga. App. 139, 140 (2) (378 SE2d 179) (1989).

Decided September 4, 1990.

Griffin E. Howell III, for appellant.

W. Fletcher Sams, District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Moreover, in our opinion the nonresponsive answer of the witness here indicated only his opinion that defendant’s acts were illegal so as to justify his decision to arrest him. “Even assuming, without deciding, [that this opinion went to the ultimate issue of whether defendant was guilty of selling cocaine,] any error was harmless because the evidence against [defendant] was overwhelming. [Cits.]” Ludden v. State, 176 Ga. App. 109, 111 (2) (335 SE2d 428) (1985). The trial court made no suggestions to the jury regarding the evidence, its comments were apparently made in an effort to keep both the State and defense counsel from further stating legal conclusions to the jury. The jury was thoroughly and definitively instructed that they were not bound by the opinion testimony of any witness but were by law the sole and exclusive judges of the credibility of the witnesses, and it was solely within their province to determine the outcome of the case. Under these circumstances, we find no basis for reversal.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0816.
    LATARGIA v. TOOLE.
    (396 SE2d 607)
   Cooper, Judge.

In this case, which arises out of an automobile accident, the jury returned a verdict in favor of appellee. On appeal, appellant’s sole enumeration of error is that the trial court erred in expressing an opinion to the jury as to which vehicle had the right-of-way.

The evidence adduced at trial shows that appellant’s vehicle had exited a private driveway and was attempting to cross a five-lane highway, which consisted of two westbound lanes and two eastbound lanes divided by a center turn lane, when it collided with appellee’s vehicle, travelling west in the center turn lane. Appellant sued appellee for personal injuries contending that appellee caused the accident by improperly entering the center turn lane and failing to keep a proper lookout ahead. During its deliberations, the jury requested a re-charge on the right-of-way law. The trial court re-charged the jury in accordance with OCGA § 40-6-73 that “the driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” After the re-charge, the following dialogue took place between the court and one of the jurors:

Decided September 4, 1990.

William H. Lumpkin, for appellant.

Fulcher, Hagler, Reed & Obenshain, Ronald C. Griffeth, for appellee.

“A JUROR: May I ask you a question, Your Honor?
“THE COURT: Yes sir.
“THE JUROR: Does that mean that the first person crossing into the center lane is the valid person who has the right of way?
“THE COURT: Pardon.
“THE JUROR: The first person that crosses that yellow line into the suicide lane, is that the person that is considered to have the right of way?
“THE COURT: In this particular case traffic traveling [sic] east and west on Washington Road would be traffic that had the right of way — if that answers your question.
“THE JUROR: Thank you.”

Approximately five minutes after the jury returned to deliberate, a verdict was reached in favor of appellee.

OCGA § 9-10-7 provides: “It is error for any judge, during the progress of any case, or in his charge to the jury,, to express or intimate his opinion as to what has or has not been proved.” Appellee contends that no error occurred because the judge’s response was merely a paraphrase of OCGA § 40-6-73 and because the response was authorized by the evidence. We agree and affirm. The trial court did not express an opinion as to what had or had not been proved by the evidence. Specifically, the trial court carefully avoided answering the question posed by the juror which called on him to express an opinion as to who had the right-of-way, between appellant and appellee, in the center turn lane where the accident occurred. Under OCGA § 40-6-73, the traffic travelling east and west would have had the right-of-way as to vehicles entering the roadway from private driveways. “ ‘(W)here . . . the evidence demands a finding as to the opinion expressed, there is no cause for reversal. [Cits.]’ ” Shore Livestock v. Sanders, 184 Ga. App. 179 (361 SE2d 50) (1987). Accordingly, we find no error in the trial court’s response to the juror.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0817.
    A90A0818.
    HUNT v. THE STATE. HAYES v. THE STATE.
    (396 SE2d 802)
   Carley, Chief Judge.

Appellant Hunt was indicted for violating OCGA § 16-13-32.3 by using a communication facility to facilitate a sale of cocaine. Appellant Hayes was indicted for the actual sale of the cocaine and, in addition, for possession of marijuana. They were tried jointly before a jury and found guilty. After filing separate notices of appeal, appellants have asserted similar enumerations of error raising only the general grounds. Accordingly, the two cases are hereby consolidated for appellate disposition in this single opinion.

The evidence, construed most favorably for the State, was as follows: A police informant made a tape-recorded call to appellant Hunt concerning the purchase of cocaine from appellant Hayes. Following the call, the informant was searched and given a wireless transmitter and $40 in bills which had been photocopied. The police took the informant to appellant Hunt’s apartment and, after five minutes, he returned with cocaine. Pursuant to a “no-knock” search warrant, police entered appellant Hunt’s apartment four hours later and found appellant Hayes lying on a bed with marijuana inches from his body and the cocaine purchase money on a nightstand beside the bed. Although appellant Hunt’s sister was also on the bed, she denied possession of the marijuana and only appellant Hayes had an odor of marijuana on his breath.

Case No. A90A0818

1. As to appellant Hayes’ conviction for the sale of cocaine, his enumeration of the general grounds has no merit. “Whether [appellant] was the individual who sold [the informant] the cocaine was a question of fact for the jury. When the evidence is viewed in a light favorable to the verdict, as an appellate court is required to do, it is found to be sufficient to enable any rational trier of facts to find the existence of the offense charged beyond a reasonable doubt. [Cit.]” Hughey v. State, 180 Ga. App. 375, 377 (1) (348 SE2d 901) (1986).

2. Urging that the evidence showed that others had equal access to the marijuana, appellant Hayes also enumerates as error the trial court’s denial of his motion for directed verdict as to the possession of marijuana count.

“It is true that ‘ “(m)erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Cit.)’ [Cit.] However, ‘(w)here there is evidence other than “equal access” connecting an accused to contraband, it is for the jury to determine guilt or innocence.’ [Cit.]” Blitch v. State, 188 Ga. App. 487, 488 (373 SE2d 227) (1988). “Just because several people were in [appellant Hunt’s] apartment when the [marijuana was] found . . . does not conclusively establish that one or more of these people other than [appellant Hayes] had ‘equal access’ to the contraband so as to block a finding of [appellant Hayes’] possession.” (Emphasis in original.) Heath v. State, 186 Ga. App. 655, 657 (1) (368 SE2d 346) (1988). Although appellant Hayes did not rent the apartment, the evidence showed that he was “in and out” and had stayed there overnight. Moreover, the marijuana was found in close proximity to him, the odor of marijuana was on his breath, and appellant Hunt’s sister denied possession. “The totality of the evidence was sufficient to connect [appellant Hayes] to possession of the [marijuana], even though the evidence would have authorized a finding that others had equal access to the same [marijuana]. [Cits.] When viewed in the light favorable to the verdict, as an appellate court is required to do on appeal, the evidence was sufficient to enable any rational trier of fact to find the existence of guilt of [Hayes] for the offenses charged, beyond a reasonable doubt. [Cit.] Hence, based upon the evidence cited above, the trial court did not err in refusing to direct a verdict of acquittal. [Cits.]” Farmer v. State, 188 Ga. App. 375, 376 (373 SE2d 68) (1988).

Case No. A90A0817

3. OCGA § 16-13-32.3 (a) provides, in relevant part, that “ [i]t shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under this chapter. . . .For purposes of this Code section, the term ‘communication facility’. , . includes . . . [the] telephone. . . .” (Emphasis supplied.) Appellant Hunt’s reliance upon Kelleher v. State, 185 Ga. App. 774, 778 (2b) (365 SE2d 889) (1988), in support of her enumeration of the general grounds is misplaced. Unlike Kelleher, the evidence in the instant case did show the actual subsequent sale of cocaine by appellant Hayes, which felony drug violation had been “facilitated” by appellant Hunt’s initial use of a telephone.

Appellant Hunt contends that she cannot be guilty of a violation of OCGA § 16-13-32.3 because she did not directly participate in the subsequent sale of cocaine. Because the provisions of 21 USC § 843 (b) are substantially the same as the provisions of OCGA § 16-13-32.3, U. S. Circuit Court cases construing the Federal law are instructive. “In order to establish the facilitation element, the [State] must show that the telephone call comes within the common meaning of facilitate — ‘to make easier’ or less difficult, or to assist or aid. [Cits.] It is sufficient if a defendant’s use of a telephone to facilitate the possession or distribution of controlled substances facilitates either his own or another person’s possession or distribution. [Cit.]” (Emphasis supplied.) United States v. Phillips, 664 F2d 971, 1032 (XI) (5th Cir. 1981). “A prima facie case need not include proof that the defendant committed the underlying offense, in [that] case a conspiracy, only that the accused facilitated its commission. [Cit.]” (Emphasis in original.) United States v. Ward, 696 F2d 1315, 1319 (11th Cir. 1983). We find the reasoning of Phillips and Ward to be persuasive, and we thus construe OCGA § 16-13-32.3 in the same manner as 21 USC § 843 (b) has been construed by the Federal courts. Therefore, it is immaterial to appellant Hunt’s guilt under OCGA § 16-13-32.3 that she herself did not participate in the subsequent sale of cocaine that she had initially facilitated. It is likewise immaterial to appellant Hunt’s guilt that she “laid down the receiver” and actually arranged the sale by conferring with appellant Hayes while off the telephone. After conferring with appellant Hayes, she returned to the telephone and relayed the terms of the sale. Thus, the telephone call in which appellant Hunt participated clearly aided in appellant Hayes’ sale of the cocaine. Indeed, the evidence shows that there would have been no sale but for her telephone contact with the informant. We therefore hold that the evidence was sufficient for a rational trior of fact to find appellant Hunt guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 4, 1990.

Caleb B. Banks, for appellants.

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

Judgment affirmed in Case No. A90A0817. Judgments affirmed in Case No. A90A0818.

McMurray, P. J., and Sognier, J., concur.


text:
    A89A1251.
    NORRIS v. SIGLER DAISY CORPORATION.
    (_SE2d_)
   Pope, Judge.

This court having entered a judgment in the above-styled case at 193 Ga. App. XXX (1989) affirming, pursuant to Court of Appeals Rule 36, the judgment of the trial court, and the judgment of this court having béen reversed on certiorari by the Supreme Court at 260 Ga. 271 (392 SE2d 242) (1990), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.

Decided September 4, 1990.

Sidney L. Moore, Jr., for appellant.

Mark Weber, Karen F. Horner, for appellee.

Booth, Wade & Campbell, Douglas N. Campbell, Laura E. Stevenson, William A. Trotter III, Dye, Miller, Tucker & Everitt, A. Rowland Dye, Hull, Towill, Norman & Barrett, David E. Hudson, Nixon, Yow, Waller & Capers, John B. Long, amici curiae.


text:
    A90A0827.
    STANDRIDGE v. THE STATE.
    (396 SE2d 804)
   Birdsong, Judge.

Gary Gene Standridge appeals his conviction for one count of child molestation involving his stepdaughter. He enumerates seven errors below. Held:

1. Standridge contends he was entitled to dismissal of the indictment because the indictment alleged that, at the time of the offense, the victim was “a child under fourteen (14) years of age” but does not allege what specific dates the acts of molestation occurred. He complains the trial court charged the jury the offense could be proved at anytime within four years of the indictment date (February 18, 1988); and that inasmuch as the child turned fourteen in August 1986, the offense could not be proved as alleged.

The evidence shows that at least two acts of molestation occurred in June 1986 and July 1986, while the child was still under age fourteen, as alleged in the indictment. Proof of acts of molestation after she reached age fourteen were mere surplusage, or were evidence of transactions similar to what the State did prove, to wit, that the offense occurred as alleged in the indictment. See Keri v. State, 179 Ga. App. 664 (347 SE2d 236).

2. In three enumerations, appellant states he was denied a right to thorough and sifting cross-examination by the trial court’s denial of his motion for production of the victim’s statements, and by the trial court’s denial of his attempt to impugn the victim by showing her bad character.

Appellant does not cite any authority allowing him to impeach the thirteen-year-old victim’s character by showing marijuana use and bad character, nor does he describe this “bad character.” Further, appellant has not shown any harm accrued to' him in not receiving a copy of the victim’s statement; and, he does not prove error by showing that he actually asked for the statement as required by OCGA § 17-7-210. The trial court examined the evidence in light of appellant’s other discovery demands and found nothing exculpatory. See Valdez v. State, 192 Ga. App. 10, 11 (383 SE2d 611). In the absence of any suggestion by appellant that he incurred some actual harm by being denied cross-examination by the improper denial of a defense statement properly sought, appellant has not borne his burden to show harmful error by the record. Griner v. State, 192 Ga. App. 283 (384 SE2d 398); Sanders v. State, 188 Ga. App. 774, 775 (374 SE2d 542); Ragan v. State, 188 Ga. App. 770, 772 (374 SE2d 559); Whiteley v. State, 188 Ga. App. 129 (372 SE2d 296).

Decided September 4, 1990.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

3. In enumerations 5 and 6, appellant complains of the denial of his motion for mistrial upon the State’s injection of “evidence of a separate crime of furnishing alcohol to minors which had been excluded” and “evidence of a separate crime of child molestation which had been excluded.”

Appellant does not explicate these assertions of fact, but merely quotes the general law as to inadmissibility of character evidence at OCGA § 24-9-20 (b). Appellant also merely cites Superior Court Rules 31.1 and 31.3 as to notice of intent to introduce evidence of similar transactions, and says, without elaboration or supporting citations, that the State violated these rules of law. Appellant fails to cite any reference to any portion of the record where such alleged errors might have occurred, thus violating Court of Appeals Rule 15 (c) (i) and (ii). Error must be shown affirmatively by the record, and not by mere recitations in a brief. Sanders v. State, supra; Williams v. State, 188 Ga. App. 496 (373 SE2d 281).

In any event, the evidence was admissible. The incident of providing alcohol to minors involved an act of molestation; and any other molestation proved was evidence of a similar transaction. See Guffey v. State, 191 Ga. App. 501, 502-503 (382 SE2d 202).

We find no cause to reverse the verdict in this case.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge. McMurray, Presiding Judge, Carley, Chief Judge,

text:
    A90A0839.
    DOLLAR et al. v. DEPARTMENT OF HUMAN RESOURCES, CENTRAL STATE HOSPITAL.
    (396 SE2d 913)
   Sognier, Judge.

Debbie Dollar and four other former employees of Central State Hospital appeal from the superior court decision reversing the State Personnel Board decision regarding their dismissals from employment.

The record reveals that appellants were charged with misconduct consisting of patient abuse and with insubordination consisting of failing to obey an order to submit to polygraph examination in connection with the investigation into the patient abuse charges. The hospital terminated appellants. Several other employees, who were not charged with misconduct stemming from patient abuse, also were charged with insubordination for failing to take the polygraph test. Appellants appealed their dismissals, and a hearing officer determined after hearing evidence that there was insufficient evidence to support the charge of misconduct, and although he found the insubordination charge supported by evidence, he reduced the penalty for that offense to three days suspension. The State Personnel Board (the Board) affirmed the decision of the hearing officer, and the Department of Human Resources sought judicial review, challenging only the reduction of the penalty for insubordination. The superior court reversed the decision of the Board, reinstating the termination penalty, and this appeal ensued.

1. The superior court found that because insubordination was an offense for which the penalty of termination is available, once the Board determined appellants were guilty of insubordination it was not within the discretion of the Board to reduce the penalty of termination chosen by the appointing authority (the hospital). Appellants contend this ruling by the superior court was error because the governing statute, the administrative regulations, the uniform practice of the Board, and the most recent case law all confirm that the Board has the power to reduce the punishment for an offense. We agree.

OCGA § 45-20-8 (d) provides, in pertinent part, that “[t]he [B]oard may modify the action of the appointing authority but may not increase the severity of such action on the employee.” This language is repeated in the applicable regulation, and is routinely memorialized by hearing officers at the beginning of each hearing. We find nothing ambiguous about this statutory language; its meaning is plain. Thus, the uniform practice of the Board is to regard the issue of the severity of the penalty as within its purview upon review. “It is a well established principle of law that even though an interpretation of a statute by the agency charged with the duty of enforcing it is not conclusive, it is entitled to great weight. [Cit.]” National Adv. Co. v. Dept. of Transp., 149 Ga. App. 334, 337 (2) (b) (254 SE2d 571) (1979).

Although, as argued by appellee, the superior court’s ruling is supported by Hall v. Dept. of Natural Resources, 139 Ga. App. 298 (228 SE2d 174) (1976) and Department of Human Resources v. Green, 160 Ga. App. 37 (285 SE2d 772) (1981), and those cases have not been expressly overruled, we find that both Hall and Green have been effectively overruled sub silentio by Georgia Dept. of Labor v. Sims, 164 Ga. App. 856 (298 SE2d 562) (1982). The same argument advanced here by appellee was raised by the appellant in Sims, who contended that “after finding that the rules and regulations of the [State Personnel BJoard had been complied with and there had been proper cause for Sims’ dismissal, the [B]oard lacked the authority to change the sanction imposed by [her employer].” This court flatly rejected that contention, finding that pursuant to the language in OCGA § 45-20-8 (d) it was clear that the Board had authority to reduce the punishment. Id. at 857. We cannot agree with appellee’s arguments that this language in Sims is mere dicta because the issue in that case concerned the authority of the superior court to order the Board to modify the sanction. The contention was encompassed in the enumeration of error in Sims, and was squarely addressed. Thus, it is apparent that in its latest pronouncement on this subject, this court has found that OCGA § 45-20-8 (d) endows the Board with authority to reduce a sanction imposed by the appointing authority even though the Board finds support in the evidence for a charge for which the sanction of dismissal is authorized. Accordingly, the superior court erred by finding the Board lacked this authority.

2. Appellants also contend the superior court erred by ruling that the Board acted in an arbitrary and capricious manner in affirming the hearing officer’s reduction of the penalty. The hearing officer reduced appellants’ penalty to three days suspension based on the fact that as insufficient evidence existed to support the charge of misconduct, only the insubordination charge remained, and because the other employees who were charged only with insubordination stemming from their refusal to take polygraph tests were given three-day suspensions, it was fair and equitable that appellants be given the same penalty. We agree with appellants that this was not an abuse of discretion, and that the superior court erred by so holding.

Although we acknowledge the existence of the sound policy prohibiting blind insistence on meting out uniform penalties to employees technically charged with the same offenses, based on the principle that proper discipline always involves weighing numerous factors, and what is a minor offense in one work situation may well be major in another, we do not find that the reduction of the penalty in this case was a result of the blind or arbitrary technical application of any “uniform punishment” rule. Rather, we find the hearing officer’s reasoning took into consideration the fact that because appellants had been “acquitted” of the charge of misconduct involving patient abuse, terminating their employment when other employees had been given three-day suspensions for the same insubordination offense would be tantamount to punishing appellants for patient abuse despite the lack of evidence to support that charge. We do not find this reasoning to be arbitrary or capricious and accordingly reverse the decision of the superior court.

3. Appellee contends the superior court lacked authority to vacate its original decision and enter a new decision when appellants were not notified of the original decision in time to file an appeal. Because appellee filed no cross-appeal, and the issue raised by appellee is not material to either of appellants’ enumerations of error, we cannot consider this contention. OCGA § 5-6-38 (a); compare Georgia &c. Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987).

Judgment reversed.

Carley, C. J., and McMurray, P. J., concur specially.

McMurray, Presiding Judge,

concurring specially.

I concur in the judgment reversing the judgment of the trial court in this case. I also agree with the majority’s reliance upon Georgia Dept. of Labor v. Sims, 164 Ga. App. 856 (298 SE2d 562). However, I do not agree that Hall v. Dept. of Natural Resources, 139 Ga. App. 298 (228 SE2d 174), and Department of Human Resources v. Green, 160 Ga. App. 37 (285 SE2d 772), were overruled by Sims. In my view, there is no conflict between Sims and the two earlier decisions.

In Sims, we acknowledged the authority of the State Personnel Board to reduce sanctions imposed by employing agencies. As stated by the majority in the case sub judice: “OCGA § 45-20-8 (d) endows the Board with authority to reduce a sanction imposed by the appointing authority even though the Board finds support in the evidence for a charge for which the sanction of dismissal is authorized.” In other words, the board has a discretionary authority to reduce sanctions.

The exercise of the board’s discretion in this regard is a separate matter from the questions of fact and law concerning whether imposition of a specific sanction, such as dismissal, is authorized. Hall and Green did not involve the board’s exercise of its discretion to modify sanctions, but instead, were concerned with whether the sanctions imposed in those cases were authorized. Thus, in Hall, we held that the board had erred when its reversal of the dismissal of an employee was based on an incorrect conclusion of law that there was no proper cause for imposition of the sanction of dismissal. Similarly, in Green, we approved of the superior court’s affirmance of the board’s imposition of a lesser sanction where the findings of fact by the hearing officer did not authorize dismissal. Hall and Green should be distinguished rather than overruled.

Decided September 4, 1990.

Benjamin P. ■Erlitz, for appellants.

Michael J. Bowers, Attorney General, Jennifer L. Hackemyer, Assistant Attorney General, Robert C. Kates, for appellee.

Carley, Chief Judge,

concurring specially.

I concur in the judgment reversing the judgment of the trial court in this case. I also agree with the analysis of the majority and its reliance upon Georgia Dept. of Labor v. Sims, 164 Ga. App. 856 (298 SE2d 562) (1982). In this connection, the majority concludes that Sims “effectively overruled” Hall v. Dept. of Natural Resources, 139 Ga. App. 298 (228 SE2d 174) (1976) and Department of Human Resources v. Green, 160 Ga. App. 37 (285 SE2d 772) (1981). I agree, but not simply because Sims is the “latest pronouncement on this subject” by the Court. (Majority opinion, page 700). When this Court is faced with previous decisions of this Court in apparent conflict with each other, it cannot automatically rely upon the latest decision as can.the Supreme Court, because an appeal filed in this Court is usually considered and resolved by a division of three judges, while the Supreme Court always sits en banc. See Hall v. Hopper, 234 Ga. 625 (216 SE2d 839) (1975). Thus, if Hall, Green and Sims were all cases decided by a division of this Court, this case would have to be presented to the whole court which would resolve any conflict by overruling one or more of the previous decisions. However, we do not face that problem in the instant case because Sims is a whole court case and, although there was a dissent, eight judges concurred in the conclusion that the Board had authority to reduce the punishment. “As precedent, a decision by [the] entire court with a majority concurring shall take precedence over a decision by any division.” OCGA § 15-3-1 (d). Thus, Sims is controlling and binding precedent.


text:
    A90A0841.
    SERVICE TRUCK BROKERS v. KELLCO TRANSPORTATION, INC.
    (397 SE2d 53)
   Cooper, Judge.

Appellee, a trucking company, sued appellant, a truck broker, in the magistrate court for recovery on a contract between appellant and appellee to transport perishable produce to a third party. The produce was delivered three days late due to a truck breakdown and the third party refused to pay appellant the haul cost or the brokerage fee. The magistrate court entered a judgment for appellee. After appellant’s appeal to the state court, the state court entered a judgment for appellee in the amount of $1,668.65 on the grounds that appellant had not submitted sufficient evidence of any damage suffered by appellant. Appellant’s motion for a new trial was denied, with the court directing appellant to pay an additional $250 to appellee as attorney fees. Appellant now seeks our review.

Decided September 4, 1990.

Terry A. Carr, for appellant.

R. Nathan Langford, Jr., for appellee.

OCGA § 5-6-35 (a) (6) provides that an application for appeal shall be made in “[a]ppeals in all actions for damages in which the judgment is $2,500.00 or less.” See City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986). Since the judgment rendered in the instant case totaled $1,918.65, appellant was required to seek this appeal via an application for discretionary appeal pursuant to OCGA § 5-6-35. Appellant having filed a direct appeal instead of following the proper procedure, this appeal is hereby dismissed. Jones Roofing &c. v. Roberts, 179 Ga. App. 169 (1) (345 SE2d 683) (1986).

Appeal dismissed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0851.
    WILLIAMSCRAFT DEVELOPMENT, INC. et al. v. VULCAN MATERIALS COMPANY.
    (397 SE2d 122)
   Pope, Judge.

Plaintiff Vulcan Materials Company brought this action to foreclose on a lien filed against property owned by defendant Williams-craft Development, Inc. The lien covered materials delivered to a construction contractor hired by defendant to make improvements to defendant’s property. Pursuant to OCGA § 44-14-361.1 (a) (2), such a lien must be filed within three months after the material was furnished. Plaintiff’s claim of lien was filed November 13, 1985. Defendant presented evidence that the materials at issue in the case were never delivered to the job site owned by defendant, or, at least, were delivered on or before August 1, 1985. Thus, according to defendant, the claim of lien was untimely filed and the trial court erred in entering judgment in favor of plaintiff.

1. Plaintiff presented the testimony of the owner of an independent trucking company which delivered materials from plaintiff’s place of business to defendant’s job site on behalf of the contractor and the testimony of the former job site supervisor for the contractor. The owner of the independent trucking company identified the signature of her employees on three invoices indicating the drivers had picked up the materials to deliver to defendant’s job site. These invoices were admitted without objection under the business records exception to the hearsay rule. An additional copy of one of the invoices was presented which bore the signature of defendant’s job site supervisor indicating receipt of the shipment represented by that invoice. Although defendant challenged the authenticity and admissibility of this copy of the invoice, the owner of the independent trucking company testified it was a true and correct copy made from her own business records. She testified the original could not be found and the copy was properly admitted as secondary evidence of the defendant’s acknowledgment of receipt of that shipment. Although defendant’s supervisor could not testify from independent recollection that the materials were delivered to defendant’s job site on August 14, he testified that pursuant to their regular business practices, the invoice would not have been signed by him unless the delivery was actually made on the day he signed the invoice. Thus, in reliance on the invoice, he swore positively that the materials were delivered on August 14. See OCGA § 24-9-69; Elliott v. Ga. Power Co., 58 Ga. App. 151, 157-158 (197 SE 914) (1938). Such testimony based on the invoices was admissible as evidence that the materials were delivered on August 14, in which case the claim of lien was timely filed. The invoices showing the materials were shipped to the contractor for use at defendant’s job site created a rebuttable presumption that materials were received and used by the contractor for the benefit of defendant. See Bankston v. Smith, 236 Ga. 92 (222 SE2d 375) (1976); Horne-Wilson, Inc. v. Smith, 109 Ga. App. 676 (1b) (137 SE2d 356) (1964). Thus, we reject defendant’s assertion that plaintiff presented no proof that materials were delivered August 14.

2. In rebuttal of the evidence showing the materials were delivered on August 14, defendant presented the testimony of its owner that after August 1,1985, the contractor was not involved in any work on the job site that would have required the materials in question. Evidence was presented that the independent trucking company delivered materials supplied by plaintiff to other projects and job sites run by the defendant. Thus, defendant attempted to impeach the evidence that the materials in question were delivered to the property identified in the claim of lien. Although conflicting evidence was presented on this issue, we cannot hold that the trial court, acting as the trier of fact, erred in granting judgment to the plaintiff. Under the any evidence rule, a verdict may be set aside only if it is wholly without support, but where, as here, the evidence is in conflict and there is evidence to support it, this court must affirm. Hester v. Baker, 180 Ga. App. 627, 631 (6) (349 SE2d 834) (1986). “Our responsibility on appeal is not to weigh the evidence and give a de novo opinion on where the greater weight of the evidence lies but merely to determine if there is sufficient evidence to authorize the trial court’s judgment. [Cit.] In making this determination, it is our duty to construe the evidence to uphold the verdict instead of upsetting it. [Cits.] Our review of the evidence gives no cause to overturn the verdict and judgment. [Cit.]” Williams v. Runion, 173 Ga. App. 54, 59 (325 SE2d 441) (1984).

Decided September 4, 1990.

Fierman & Noland, Martin L. Fierman, for appellants.

Bryant, Davis & Cowden, James W. Hays, Jay G. Davis, for appellee.

3. Plaintiff filed a motion with this court, pursuant to OCGA § 5-6-6, for an order imposing sanctions against defendant because, plaintiff argues, defendant filed this appeal solely for the purpose of delay. Defendant enumerated two errors on appeal. First, defendant argues no admissible proof was offered to show the materials were delivered to this particular job site within the three-month period prior to plaintiff’s filing its claim of lien. However, the only opinion cited as authority in defendant’s brief is Horne-Wilson v. Smith, supra, which establishes that an invoice showing materials were shipped to a subcontractor for use at a job site is evidence and, in fact, creates a rebuttable presumption, in absence of evidence to the contrary, that the materials were received. Such invoices were presented in evidence at the trial of this case. Consequently, according to the authority cited by defendant itself, the argument that no proof was presented on the issue of delivery and receipt of the materials is insupportable. Defendant’s remaining enumeration of error is that the trial court erred in entering judgment in favor of plaintiff because the preponderance of evidence shows the materials were not delivered to the job site identified on the invoices. However, under the long-established any evidence rule, this court must construe the evidence in the light most favorable to the verdict. This court cannot substitute its judgment on credibility of the witnesses or weight of the evidence for that of the trier of fact. “It does not appear that there was any valid reason for the [defendant] to anticipate reversal of the superior court’s judgment, and, consequently, we must conclude that the appeal to this court was for the purpose of delay only.” Hanover Ins. Co. v. Scruggs Co., 162 Ga. App. 640, 641 (292 SE2d 493) (1982). Plaintiff is thus awarded an additional ten percent damages pursuant to OCGA § 5-6-6.

Judgment affirmed with damages.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0864.
    BUTLER v. THE STATE.
    (396 SE2d 916)
   Pope, Judge.

Defendant Gerald Dwayne Butler was convicted by a jury of the offenses of aggravated assault, criminal trespass, DUI and habitual violator. He was charged with but acquitted of the offenses of kidnapping and burglary. On appeal, he contends the evidence was insufficient to authorize the convictions against him and the trial court erred in its charge to the jury.

Construed in a light most favorable to the verdict, the record shows the following: On July 29, 1988, Lynette Argo was driving along Austell Road on her way to work. Defendant, who was driving a truck, was also traveling on Austell Road. Argo moved into the left lane, intending to pass the defendant. However, defendant moved over into Argo’s lane and prevented her from passing. Argo testified her first thought was that defendant did not see her trying to pass, so she attempted to pass again and defendant again came over into her lane, causing her to hit the median. Argo then followed defendant in order to get his tag number. Argo testified defendant was shaking his fist at her and slamming on his brakes, causing her to almost hit him. Argo pulled into the parking lot of the KOA campground and defendant rammed into the back of her car. Argo testified she had her seatbelt on when defendant hit her but that the hit was strong enough to “jar her.” Argo ran into the campground office and Jean Lee, a KOA employee, locked the door and telephoned police. Lee testified she saw Argo trying to turn into the KOA parking lot and that it appeared that defendant was trying to keep her from pulling in. Lee also testified that defendant initially pulled alongside Argo, but then backed up and rammed into the back of Argo’s car. Both witnesses testified defendant tried to drive away, but that he ran into a ditch and was forced to flee on foot.

Lynette Lawrence testified that she lived at Douglas Estates Mobile Home Park and that on July 29, 1988, she was at home alone with her young son. Lawrence, who was in the back of the trailer cleaning the bathroom, testified her son walked in and told her “the managers” were there. Lawrence walked down the hallway and saw defendant standing in her front room. Defendant was dressed only in a pair of white short-type swim trunks and was barefooted. Defendant told Lawrence he needed to use the telephone and she told him she did not have one. Defendant also told her he needed clothes and a hat. Lawrence testified the defendant took her by the arm and forced her into the bedroom to get a pair of pants. Defendant placed the pants over his swim trunks and wrote down a name and telephone number for her to call. The defendant, Lawrence, and her son walked to the manager’s office to use the telephone. Lawrence testified she made the call for defendant, but that he “jerked” the phone out of her hand after she got the other party on the line. Lawrence testified defendant then took her by the arm and led her back to her trailer, where they were intercepted by police. Lawrence testified the defendant threatened to kill her son if she refused to do what he told her to do.

One of the managers of the trailer park, Denise Moore, testified that Lawrence and defendant came into the office and Lawrence asked to use the phone. Moore stated that Lawrence appeared agitated and that defendant appeared “desperate.” Moore said Lawrence initially placed the call and defendant “grabbed” the phone from her. After the call was completed, defendant led Lawrence out by the arm, as if “guiding” her out of the door.

Defendant also testified at trial. He admitted the DUI and habitual violator charges. Defendant testified that he noticed a woman (Argo) trying to pass him, and that she was blowing her horn. Defendant stated he might have been weaving because of a problem with his tires and because he had been drinking, but that he moved over to allow Argo to pass. According to defendant, Argo kept blowing her horn at him and making hand gestures so he decided to follow her into the KOA parking lot “to see what her problem was.” Defendant admitted he hit the rear of Argo’s car, but stated the problem with his tires prevented him from stopping immediately, and that the impact was slight and did very little damage.

Defendant further testified that he “freaked out” after he hit Argo’s car, and he ran his truck into a ditch while trying to flee the scene. Defendant then fled on foot. Defendant testified he went to a trailer and a little boy came to the door. He testified the boy went to the back of the trailer and Lawrence came to the door. Defendant said he told Lawrence he had an accident, that he “was probably in a little bit of trouble,” and that he needed to use a phone. Lawrence told him she did not have a phone, and defendant said he asked her if he could borrow a pair of pants and a hat. Defendant testified Lawrence agreed to give him a pair of pants and let him enter the trailer. Defendant testified he stepped into the kitchen of the trailer but did not accompany Lawrence to the rear of the trailer when she went to get the pants.

Defendant further testified Lawrence told him there was a phone in the manager’s office and he asked her to go with him to place the call because he did not know the manager. According to defendant, Lawrence agreed to make the call for him. Defendant said he reached for the phone after Lawrence got his mother on the line, but denied “grabbing” the phone from her. Defendant testified he and the victim were intercepted by the police on their way back to Lawrence’s trailer.

1. (a) Defendant challenges the sufficiency of the evidence to support his conviction of the offense of aggravated assault, arguing the State failed to show an intent to inflict serious bodily injury. “ ‘A person commits the offense of aggravated assault when he assaults: . . . (2) . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.’ OCGA § 16-5-21. Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle’s use. Blalock v. State, 165 Ga. App. 269, 270 (299 SE2d 753) (1983). The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury’s determination. Banks v. State, 169 Ga. App. 571, 572 (314 SE2d 235) (1984); Quarles v. State, 130 Ga. App. 756 (2) (204 SE2d 467) (1974). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty of the offense of aggravated assault of [Argo] beyond a reasonable doubt. [Cits.]” Spaulding v. State, 185 Ga. App. 812, 813 (366 SE2d 174) (1988).

(b) Defendant also challenges the sufficiency of the evidence to convict him of the criminal trespass charge, arguing the State necessarily failed to prove that he entered the Lawrence residence “for an unlawful purpose” (see OCGA § 26-7-21 (b) (1)) because he was acquitted of the burglary and kidnapping charges “[Defendant] requested the charge on criminal trespass. This being so, [defendant] may not rely on the jury verdict acquitting him [of the greater offenses]. As the evidence would have authorized a conviction for [burglary or kidnapping], it cannot be said that the verdict of guilty as to criminal trespass is without evidentiary support.” Favors v. State, 149 Ga. App. 563, 564 (1B) (254 SE2d 886) (1979).

2. Defendant next contends that the trial court’s charge on voluntary intoxication was erroneous. We disagree. Contrary to his unsupported contentions on appeal, defendant “did not carry [his] burden of showing that [his] intoxication negated intent to commit the aggravated assault [charge].” Horton v. State, 258 Ga. 489, 491 (8) (371 SE2d 384) (1988). Consequently, this enumeration is without merit.

3. Lastly, defendant challenges the trial court’s charges on lesser included offenses. However, contrary to defendant’s arguments on appeal, the trial court properly charged the jury on the consideration of lesser included offenses. See Zackery v. State, 257 Ga. 442, 443 (3) (360 SE2d 269) (1987). Specifically, the trial court did not instruct the jury, as defendant contends on appeal, that they first had to “unanimously acquit” defendant of the greater offenses before they could consider the lesser offenses. Moreover, the charges given as to the lesser offenses were substantially the same as those requested by defendant. “[I]nduced error cannot be complained of on appeal.” Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988).

Decided September 4, 1990.

Alden W. Snead, J. M. Raffauf, for appellant.

Frank C. Winn, District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0873.
    THE STATE v. NICHOLS.
    (397 SE2d 3)
   Cooper, Judge.

The State appeals the grant of appellee’s motion to suppress evidence seized during the warrantless search of appellee’s vehicle.

During an investigation conducted by a local Drug Task Force, David Sledge sold drugs to undercover agents on two occasions. The task force, seeking to discover the identity of Sledge’s supplier, received permission to place an electronic tap on Sledge’s telephone. Approximately one week after the tap was placed, Officer Shiflett intercepted a telephone call from an unidentified male to Sledge. It is undisputed that appellee’s name was not mentioned during the telephone call and nothing was said by either telephone party to indicate that the other caller was appellee. Shiflett, based on his experience as a drug task force agent, believed that Sledge and the unidentified male were speaking in codes and that a drug transaction was going to take place at a nearby post office, and informed three members of the task force, Whitener, Sutton and Pruitt that Sledge was meeting his source at the post office. Sutton radioed that Sledge was on his way to the post office in a blue pick-up truck, and Whitener hid in some trees behind an adjacent convenience store, where he observed the following activity at the post office: Sledge arrived in a blue pick-up truck and parked in front of the post office; approximately ten to fifteen seconds later, appellee arrived in a truck, in which his wife was a passenger, and parked directly behind Sledge’s truck; appellee and Sledge got out of their respective trucks and met at the left front fender of appellee’s truck where appellee handed Sledge a white paper bag. Whitener radioed the other members of the task force to come to the post office because the deal was “going down.” Whitener then observed Sledge and appellee walk to Sledge’s truck and Sledge gave appellee what appeared to be money. While Sledge and appellee were walking between the two trucks, Pruitt and Sutton arrived announcing that they were police officers and that Sledge and appellee were under arrest. Sledge and appellee began walking back to their respective trucks, but were stopped by Sutton and Pruitt, placed on the ground and handcuffed. Sutton searched Sledge’s truck while Pruitt simultaneously searched appellee and his truck. Inside a white paper bag on the front seat of Sledge’s truck, Sutton found plastic bags containing what appeared to be cocaine; the search of appellee’s truck revealed an oil can with a false bottom containing bags of what appeared to be cocaine, and a search of appellee’s person revealed $2,800 in cash. At the hearing on the motion to suppress, the State contended that the search was lawful (1) as incident to a lawful arrest and (2) because it was conducted with probable cause under exigent circumstances. In its order granting appellee’s motion to suppress, the trial court found, in addition to the facts recited above, that there was no evidence that the parking lot of the post office was a known place for transacting drugs or that either truck was known to have been used in facilitating drug transactions and that appellee was under arrest at the time Sutton and Pruitt arrived on the scene and before any search of either vehicle took place. The trial court concluded that there was an absence of probable cause, therefore the search and seizure was unlawful.

“It is well established that in a motion to suppress the trial judge sits as the trier of fact, and that holds true even when there is a conflict in the evidence presented. The credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness’ testimony and reject another part, and ‘(i)n the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress (Cit.)’ ” State v. Williams, 193 Ga. App. 462 (388 SE2d 55) (1989). The State contends that the trial court did not consider the officers’ expertise in dealing with drug transactions, particularly the codes in which drug dealers speak. Contrary to the State’s assertions, the trial court considered the experience of the officers and specifically noted in its order that “the experience and qualifications of the officers involved and the totality of the other circumstances of the case create a close question as to probable cause vel non.” We have reviewed the transcript from the suppression hearing, including the transcript of the telephone call between Sledge and the unidentified male, and find ample evidence to support the trial court’s action. Therefore, we may not disturb it. See State v. Wingo, 191 Ga. App. 539, 541 (382 SE2d 384) (1989).

Decided September 4, 1990.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Jr.,

Fred R. Simpson, Assistant District Attorneys, for appellant. Cook & Palmour, Bobby Lee Cook, Allan J. Baverman, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0876.
    KING v. PLUMMER.
    (397 SE2d 5)
   Cooper, Judge.

Appellee, administratrix of the estate of the decedent, filed an application to sell certain real property of the decedent. Appellant, decedent’s son and an heir-at-law, objected to the sale and offered to purchase the property, which was in his possession, for an amount slightly over the offer received by appellee for the property. The trial court entered an order approving the sale to appellant provided that appellant pay, if necessary, his pro-rata share of the administration expenses. Several months after the court’s order, the property had not been sold and appellee filed a second application to sell the property, contending that the sale to appellant could not be concluded because appellant failed to pay his pro-rata share of the administration expenses. Appellee amended her application to allege that appellant’s intentional and lengthy delay in closing the sale and his refusal to pay his share of the administration expenses had unduly delayed the settling of the estate. After hearing evidence, the trial court vacated its prior order and entered an order granting appellee’s application to sell, finding that appellant’s refusal to contribute his pro-rata share of the estate’s expenses precluded the consummation of the sale to appellant; that further delay in closing the sale would result in waste to the estate and delay of payment to the heirs; and that it was in the best interest of the estate that the real property be sold as soon as possible.

1. In his first enumeration of error, appellant contends that the doctrine of res judicata barred the trial court from entering the second order approving the sale of the property. “Under a plea of res judicata ‘a former adjudication is a bar as to all matters placed in issue or which might have been placed in issue between the same parties, or their privies, upon the same cause of action.’ [Cit.]” Puett v. McCannon, 183 Ga. App. 152 (2) (358 SE2d 300) (1987). “ ‘(A) former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants. . . .’ [Cit.]” Id. The court’s first order approved the sale to appellant on the condition that if necessary, at the appropriate time he pay his pro-rata share of the expenses of administration. It is undisputed that appellant did not pay any expenses of administration and that appellant failed to consummate the sale for approximately seven months following the court’s first order. Also, it is clear from the probate court’s order, entered after hearing evidence, that the facts had changed materially since the first order. Therefore, we conclude that the probate court acted within its authority to vacate its prior order and grant appellee’s second petition and that the doctrine of res judicata did not bar the subsequent order. See Puett v. McCannon, supra.

Decided September 4, 1990.

Adié N. Durden, Jr., for appellant.

John H. Hayes, for appellee.

We find no merit to appellant’s argument that appellee was required to file a motion to set aside the first order. Appellee’s second application together with the amendment sufficiently set forth with particularity the relief sought and the grounds therefor and satisfied the requirements of the Civil Practice Act. See OCGA § 9-11-7 (b) (1).

2. Appellant contends in his second enumeration of error that the probate court erred in not correcting a clerical mistake in its first order; however, the gist of appellant’s argument is that the words in the order “if necessary” and “at the appropriate time” create uncertainty in the order about when appellant was to pay the expenses of administration. Appellant contends that he was not required to pay his prorata share of administration at or before closing, but that his share of the expenses could be deducted from other property of the decedent at a later time. Appellee contends that the order is clear in its meaning, which is that appellant was required to contribute his pro-rata share of the expenses at the closing of the sale of the property. In the order from which this appeal is taken, the trial judge specifically found that the first order required appellant to pay his pro-rata share of the estate expenses at closing and did not find that any uncertainty or ambiguity existed in the order. Inasmuch as appellant has failed to show a clerical mistake in the order, this enumeration is without merit.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.