text:
    A01A0661.
    McCRICKARD v. THE STATE.
    (549 SE2d 505)
   Eldridge, Judge.

A Floyd County jury found David McCrickard guilty of eight counts of child molestation and one count of statutory rape for acts McCrickard perpetrated against three minor female siblings, whose custodial parent rented a primary residence from McCrickard. He appeals, raising two enumerations of error. Finding both contentions meritless, we affirm.

Viewing only the facts pertinent to the issues raised on appeal, the record shows that, under Counts 3 and 11 of the indictment, McCrickard was charged with child molestation against victim H. M. The indictment charged that McCrickard did take and participated in the taking of nude and semi-nude photographs of victim H. M. (Count 3) and McCrickard did touch and fondle the breasts and vaginal area of victim H. M. (Count 11). At trial, testimony established both offenses as charged under Counts 3 and 11 of the indictment. Additional evidence established that, during the same time frame specified in the indictment, McCrickard engaged in vaginal and anal intercourse with victim H. M.

Also during trial, Floyd County Police Sergeant Teri Davis testified that “[m]ost of the times they [child victims of sexual abuse] can remember an event or where it possibly happened, but it’s really hard, especially over a period of time, if it’s occurred more than once, if it’s been repeated, for them to remember exactly the date and the time that these things happened.” Davis is a nineteen-year law enforcement veteran who had spent the prior eight years as an investigator specializing in “crimes against children, physical and sexual abuse.” She testified from her own experience interviewing child victims and did not specifically reference the victims in the instant case.

Following the close of evidence, the trial court charged the jury on the statutory definition of child molestation, i.e., “any immoral or indecent act to [,] or in the presence of [,] or with any child under the age of 16 years [,] with the intent to arouse or satisfy the sexual desires of either the child or the person.” The trial court charged the jury on the specific allegations contained in all counts of the indictment, including Counts 3 and 11. Thereafter, the court instructed the jury, “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” The trial court instructed the jury to consider the specific counts of the indictment when determining McCrickard’s guilt or innocence and specifically charged the jury, ‘You’re going to have the indictment. You’ll have the verdict form. You can match them up together, and you make a separate verdict for each defendant that is charged in each — any of the counts.” McCrickard did not request a charge limiting the jury’s consideration of any evidence adduced at trial in relation to any count of the indictment. Nor did McCrickard indicate dissatisfaction with the form of the verdict as returned. Further, the record contains a question from the jury regarding continued deliberations on the specific, individual counts of the indictment, which question demonstrates that the jury considered each count as alleged and reached a verdict thereon. Held:

1. In his first enumeration of error, McCrickard claims that, because the evidence established that he also committed unindicted acts of vaginal and anal intercourse with victim H. M., the trial court’s general charge to the jury on child molestation “opened the door for the jury to consider, and in fact convict, the Appellant for a crime not charged in the Indictment.” He contends the trial court should have, sua sponte, limited consideration of this “similar transaction” evidence or, in the alternative, sua sponte informed the jury that McCrickard “was on trial only for the offenses alleged in the Indictment and could be convicted only upon the jury’s finding that Appellant committed those specific acts charged in the Indictment.” (Emphasis in original.) These contentions are without merit.

(a) The unindicted acts of vaginal and anal intercourse were' admissible, not as “similar transaction” evidence involving independent offenses which require notice under Uniform Superior Court Rule 31.3, but as prior acts against the same victim.

[Ejvidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

(b) In the absence of any request for a limiting instruction, there is no error in failing to give one. “It is axiomatic that where evidence has been admitted for a limited purpose it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury”

(c) In a claim of error such as the instant one, which essentially alleges a fatal variance between the allegata and probata, the standard for reversal is whether a reasonable probability exists that the jury convicted the defendant in a manner not alleged in the indictment. On appeal from a criminal conviction, we view the record to uphold the verdict. We do not engage in conjecture or speculation, and we do not consider possibilities or inferences based on conjecture or speculation. Accordingly, a “reasonable probability” must be based on evidence of record which makes it reasonable for this Court to find it is probable, i.e., likely, that the jury convicted the defendant in a manner not alleged in the indictment.

Decided May 24, 2001

Cook & Connelly, Bobby Lee Cook, L. Branch Connelly, for appellant.

Here, the trial court charged the jury on the specific allegations of the indictment. The court charged the jury that the State must prove the allegations of the indictment. The evidence established the allegations of the indictment. Other than the fact that prior difficulties evidence exists in the record, there is nothing to indicate the jury either was confused or ignored the trial court’s instructions and actually used such prior difficulties evidence to convict in a manner not alleged in the indictment. No such “reasonable probability” being affirmatively shown in this case and the evidence being sufficient to support the verdict, McCrickard’s claim of error is without merit.

2. There was no error in Floyd County Police Sergeant Davis’ testimony regarding the inability of child victims of repeated abuse to remember the precise dates on which such multiple acts occurred. To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status. In this case, Davis’ testimony was clearly based on her many years of experience in interviewing child victims of abuse. Thus, we find no abuse of the trial court’s discretion in admitting such testimony.

Moreover, the substance of the specific testimony about which McCrickard complains is that “it’s really hard, especially over a period of time, if it’s occurred more than once, if it’s been repeated, for them [child victims] to remember exactly the date and the time that these things happened.” That children (or adults, for that matter) have a hard time remembering the exact dates on which repeated incidents occurred over a period of time would appear a matter of fact as obvious to a layman as to an “expert.” Accordingly, the complained-of testimony was neither an expert’s conclusion nor an expert’s opinion and does not warrant reversal on such basis.

Judgment affirmed.

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

TambraP. Colston, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

       OCGA§ 16-6-4 (a).

       See Cox v. State, 241 Ga. App. 388 (3) (526 SE2d 887) (1999).

        Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998); Hill v. State, 243 Ga. App. 124,125-126 (2) (532 SE2d 491) (2000).

        Spearman v. State, 267 Ga. 600, 601 (4) (481 SE2d 814) (1997).

       (Citations and punctuation omitted; emphasis in original.) Thomas v. State, 199 Ga. App. 49, 50-51 (4) (404 SE2d 315) (1991).

        Thornton v. State, 264 Ga. 563, 569 (5) (e) (449 SE2d 98) (1994); Childs v. State, 257 Ga. 243, 252-253 (17) (357 SE2d 48) (1987); Gresham v. State, 239 Ga. App. 280, 281 (521 SE2d 207) (1999).

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997).

        Kimbrough v. State, 215 Ga. App. 303 (1) (450 SE2d 457) (1994).

        Bevil v. State, 220 Ga. App. 1, 2 (5) (467 SE2d 586) (1996).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A1252.
    MAX v. THE STATE.
    (549 SE2d 510)
   Eldridge, Judge.

A Dade County jury found Chad Michael Max guilty of two counts of child molestation for acts he perpetrated on his minor stepdaughter. He appeals and claims as his sole enumeration of error that the trial court erred in permitting his allegedly custodial statement to go before the jury, because it was made without benefit of Miranda warnings. Since the trial court’s conclusion that Max’s statement was noncustodial is not clearly erroneous, we affirm.

Allegations of child abuse by Max against his stepdaughter were made in DeKalb County, Alabama. The incidents of abuse allegedly occurred in Deer Head Cove, Alabama. The record shows that, when allegations of child abuse are made in Alabama, the state Department of Human Resources (“DHR”) assigns a social worker to investigate the claims. The DHR social worker and a sheriff’s investigator work child abuse cases together “ninety-nine percent” of the time. In such instances:

we sit down with folks and interview them, there’s exceptions to every rule, but our customary practice is to get a statement from a defendant in a case, when that’s gotten and all the information is gathered up then we sit down with the D.A. The D.A. reviews it and he decides whether or not to prosecute it and the warrant’s issued, we call the folks up and say a warrant was issued for you, this is the amount of your bond, come turn yourself in. If he had an attorney, we contact the attorney.

In furtherance of this procedure, the DHR social worker assigned to Max’s case interviewed Max’s stepdaughter and then called Max’s wife: “I specifically remember speaking to Mrs. Max and asking her to speak to Mr. Max and come in and speak with me.” Thereafter, Max spoke with the social worker, who asked him to come to the DeKalb County Sheriffs Office for a further interview. Max stated:

He [social worker] actually gave me, on a piece of paper he wrote down his phone number and he told me that — this was on like a Thursday, he told me that at the beginning of next week to please contact him so that he could arrange a meeting with the Sheriff’s investigator. The following Monday I called and he told me that he hadn’t had a chance to talk with anyone yet, so I called Tuesday and he said that it would be — the interview would be set up for two o’clock on Wednesday.

Max and his wife arrived at the scheduled time on September 2, 1998. His wife waited on a bench outside the investigator’s office door while Max went inside the office. In testimony, the office was likened to the small chambers of a judge, with books, a desk, and chairs. After Max entered, the office door was closed but not locked.

Prior to the start of the interview, Max was informed that he was not under arrest and would not be arrested that day as a result of the interview. Miranda rights were not'given. The subsequent interview lasted between 15 minutes and an hour. Max was questioned about the Deer Head Cove, Alabama, incident, as well as about an instance of inappropriate touching that allegedly occurred while Max and his stepdaughter were living in Trenton, Dade County, Georgia. Both the sheriff’s investigator and Max became upset during the course of the interview. Max stated, “He became agitated with me and then I basically became agitated back with him, told him I could see — I could say it my way and he was not happy with my responses.” Despite the agitated interview, neither the social worker nor the investigator ever mentioned arresting Max. Max’s responses to the interviewers’ questions were reduced to a summary statement, which Max read, initialed, and signed. In his statement, Max justified his actions with his stepdaughter in Deer Head Cove, Alabama, as an attempt “to teach her a lesson in reference to rape[, because] a thirteen year old female was raped in our community some time earlier.” But he admitted that he touched his stepdaughter on the breast for a “few seconds” in Trenton, Georgia, and was “very ashamed and remorseful re: the incident.” At the conclusion of the summary, Max also wrote and initialed the statement that “I am not under arrest at the time of this statement.”

Max then left the sheriff’s office with his wife. No charges were ever filed with regard to the Deer Head Cove, Alabama, incident, and Max was never arrested with regard thereto.

However, the Alabama DHR social worker sent to the Dade County, Georgia, Sheriff’s Department a copy of his written report, his videotaped interview with Max’s stepdaughter, and a copy of Max’s statement. A Dade County sheriff’s investigator was assigned to the case. Following the completion of her investigation, a warrant was issued on October 6, 1998, for Max’s arrest — some four weeks after the Alabama interview.

Following a Jackson-Denno hearing, the trial court determined that Max’s Alabama statement was noncustodial and, thus, the failure to give Miranda rights did not preclude admission of the Alabama statement. Held:

“The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.”

For the proscriptions of Miranda v. Arizona to apply, a person must be taken into custody or otherwise deprived of his freedom of action in some significant way. In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

Here, the DeKalb County, Alabama, sheriff’s investigator and the Alabama DHR social worker testified at the Jackson-Denno hearing. Both men stated that, at the time of the interview in question, Max was not under arrest and had been told that he was not under arrest. Max wrote and signed a statement acknowledging he was not under arrest at the time of the interview. Max came to the sheriff’s office voluntarily with full knowledge of the allegations against him, since the social worker had spoken to him the week before. Clearly no great urgency prevailed, since the social worker contacted Max through his wife and rescheduled the sheriff’s office interview at least once. Max’s wife accompanied him to the interview and was right outside the room during questioning. The office door was open initially, and Max “just walked into my [investigator’s] office. Our office is open, it’s very informal, there’s no locked doors you have to go through to get to our offices.” The door, although shut, was never locked. And the investigator testified that if Max had requested to end the interview, it would have ended. There is no evidence that Max was in any way physically restrained or unable to leave the interview room. In fact, Max left after the interview and was never arrested in Alabama. He was only arrested in Georgia a month later, after a full second investigation by the Dade County Sheriff’s Office. While Max testified at the Jackson-Denno hearing that he felt he was not free to leave in the middle of the Alabama interview, that he was intimidated, and that he was very upset, he also admitted that neither the social worker nor the investigator ever mentioned he was under arrest. Max stated, “No, sir, he didn’t say anything about arresting me.”

Decided May 24, 2001.

John R. Emmett, for appellant..

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

Under the totality of the circumstances, we conclude that Max was not deprived of his freedom of action in some significant way, nor was there a restraint on Max’s freedom of movement of the degree associated with a formal arrest. Accordingly, the trial court’s determination that Max’s Alabama statement was noncustodial is not clearly erroneous, and Miranda does not preclude its admission.

Judgment affirmed.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Citations and punctuation omitted.) Sims v. State, 242 Ga. App. 460, 462 (2) (530 SE2d 212) (2000); accord Sams v. State, 239 Ga. App. 715, 717 (2) (521 SE2d 848) (1999); Brown v. State, 262 Ga. 833, 834-835 (6) (426 SE2d 559) (1993).

       Supra.

       (Citations and punctuation omitted.) State u. Kir babas, 232 Ga. App. 474, 475 (502 SE2d 314) (1998); Sims v. State, supra at 462.

        State v. Kirbabas, supra at 475; Sims v. State, supra at 462.

        Sams v. State, supra at 717; Lancaster v. State, 240 Ga. App. 359, 362 (522 SE2d 30) (1999); State v. Walker, 204 Ga. App. 1, 2 (418 SE2d 384) (1992).


text:
    A01A1289.
    CLARK v. THE STATE.
    (549 SE2d 520)
   Eldridge, Judge.

On January 14, 2000, Helen E. Clark entered a negotiated plea of guilty under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), in the Superior Court of Lumpkin County to the offenses of burglary and theft by taking. Clark was sentenced on the same day to ten years probation, ninety-six hours of community service, court costs, a $1,000 fine, and $2,895 restitution. On February 14, 2000, Clark filed a motion to withdraw her plea of guilty. After hearing evidence, the trial court denied Clark’s motion to withdraw

the plea of guilty in an order dated October 6, 2000. Clark appeals from this order, enumerating as her sole error the trial court’s denial of her motion to withdraw her guilty plea. Clark argues that because she was illiterate, was under the care of a psychiatrist for treatment of depression, and was taking medication for such condition, the State failed to carry its burden of showing that her plea was knowing and voluntary. We disagree and affirm.

[O]nce sentence is pronounced (as occurred in this case), a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed unless there is a manifest abuse of discretion. After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

(Citations and punctuation omitted.) Craft v. State, 234 Ga. App. 305, 307 (506 SE2d 663) (1998); Miller v. State, 241 Ga. App. 397 (527 SE2d 571) (1999).

At the time Clark entered her guilty plea, she was represented by counsel which she had retained. Prior to the trial court accepting Clark’s guilty plea, a written plea petition was completed by Clark and her attorney, and the trial court orally questioned Clark. During the dialogue between the trial court and Clark, Clark did not have any difficulty understanding the questions that were asked of her and responded appropriately. The trial court asked Clark about her lack of formal education. Clark responded that there were “too many in the family” for her to attend school; that she could not read or write; but that she had “a lot of common sense.” Clark further indicated that she was employed and worked as a cook in a restaurant and as a house cleaner. When asked if she was under the influence of drugs, Clark stated that the “[d]octor’s got me on antidepressants.” Clark went on to explain that she was taking Prozac. Clark indicated that both she and her husband had talked extensively with her attorney; that her attorney had read the indictment to her; and that she understood the charges against her.

While the transcript of the guilty plea indicated that there was no initial, audible response to the questions relating to her knowledge that she was present for a plea, later during the proceeding, Clark affirmed that she was pleading guilty to the charges and acknowledged that she understood she was waiving certain rights, i.e., the presumption of innocence, a jury trial, the confrontation of witnesses, the right to subpoena witnesses, the right to testify and offer other evidence, assistance of counsel during trial, and the right not to incriminate herself. See Uniform Superior Court Rule 33.8. After the trial court made a lengthy inquiry ensuring that Clark understood what rights she was waiving if she entered a guilty plea, the trial court once again asked Clark, ‘You still want to plead guilty, Ms. Clark?” Clark responded, ‘Yes, sir.”

Further, during the guilty plea, a substantial amount of time was spent dealing with the fact that Clark was pleading guilty under North Carolina v. Alford, supra. In response to the trial court’s inquiry if she was admitting to participating in the burglary of the home of Mr. Krell on October 12, 1994, Clark denied participation. When asked why she was pleading guilty, Clark’s attorney interjected and provided the factual basis for the trial court’s acceptance of an Alford plea. Counsel set forth what the defense understood the State’s evidence to be and stated that “We have a negotiated plea that will be for probation, and I think that that’s why we’re entering it. But there’s certainly enough evidence that, if the jury saw it as the State would present it they could convict on that.” The trial court then asked, “So you’re pleading guilty to the offense of burglary, saying, I’m not going to say I did it but the evidence on the other side is so that I think that the jury might find me guilty and I may go to prison. I don’t want to do that. Is that what you’re telling me?” Clark responded, ‘Yes, sir.”

Clark affirmed that no one had used any threats, force, pressure, or other means to intimidate her into pleading guilty. The trial court informed Clark of the maximum sentence for the charges against her, and Clark indicated she understood the maximum sentence. Clark further indicated that she understood the terms of her negotiated plea.

Clark further testified that, as she and her attorney went over the questions on the written plea petition, her attorney explained the questions to her. The written plea petition reiterated her understanding of the charges against her, the rights she was giving up by pleading guilty, the maximum sentence on the charges, and the negotiated plea. Clark also indicated in response to questions on the form that she was not under the influence of alcohol or other intoxicants and she did not suffer from any mental or emotional disability. Clark testified that all the answers on such form were true and correct. After the trial court informed Clark of the sentence he would impose, Clark again stated, pursuant to the trial court’s inquiry, that she still wished to enter a guilty plea.

At the hearing on the motion to set aside the guilty plea, Clark’s trial counsel testified that he knew Clark was taking Prozac, but that she had stated to him that she understood why they were in court that day and that her medication did not interfere with her ability to understand the questions asked of her. Counsel testified that, while Clark was nervous and exhibited stress on the day she pled guilty, she appeared to understand why she was in court and the decisions she was making. Counsel further testified that “[Clark] could give me responses that seemed appropriate to the questions.” Counsel went on to testify that he explained to Clark on several occasions, including the morning she entered her plea, the risks of going to trial, the consequences of entering a guilty plea, and that she was entitled to a jury trial. Counsel testified that Clark had difficulty deciding whether to plead guilty and asked him many appropriate questions on what could happen if she decided to go to trial, what would happen if she pled guilty, and what probation would entail. Counsel went on to testify that the final decision to enter a guilty plea was made by Clark after she consulted with her husband.

Clark’s husband testified that he and Clark met with her attorney on many occasions; that on the day Clark entered a guilty plea, he and Clark talked with her attorney prior to entering the guilty plea; that Clark’s attorney went over the plea petition with Clark in his presence; that he understood the charges against Clark; and that Clark appeared to understand the questions that were asked of her during the guilty plea hearing. Clark’s husband further testified that Clark told her attorney that she was not suffering from any mental or emotional disability and that she was not under the influence of any alcohol, drugs, or intoxicants and that he did not correct her statement. Clark’s husband also testified that while Clark did not have any formal education, she had a lot of common sense and had the ability to sit down and figure things out.

Clark called her treating psychiatrist, Jeffrey Klopper, to testify. Dr. Klopper was not qualified as an expert and was called as a lay witness only. Dr. Klopper testified that he had not had a chance to review Clark’s file before coming to court. Dr. Klopper testified that he first saw Clark in 1997 and that he had been treating her for depression, anxiety, and legal and family problems. Dr. Klopper could not initially remember what specific medications he had prescribed for Clark, but vaguely remembered prescribing some type of antidepressant and antianxiety medications. After reviewing some letters and notes, Dr. Klopper testified that over the course of Clark’s treatment, he had prescribed Prozac, Doxepin, and Xanax and that in addition to depression, anxiety, and legal and family problems, Clark had previously reported that she felt suicidal. Dr. Klopper testified, however, that he could not tell the trial court what condition Clark was in, or would have been in, on the date of her guilty plea. The written plea petition, the transcript of the guilty plea proceeding, and the record of the hearing on the motion to withdraw the plea clearly satisfy the State’s burden of proving that Clark’s plea was knowing and voluntary. Contrary to Clark’s assertions, the record shows that her answers to questions were appropriate and precise; that she knew the charges pending against her; that she knew what rights she was giving up by entering a guilty plea; and that she responded affirmatively to each and every question asked by the trial court as to her voluntary waiver of her rights. Further, Clark appeared to understand the concept of an Alford plea and expressed her desire to plead guilty, even though she felt she had not actively participated in the crimes she was charged with, in order to ensure that she would receive probation. Accordingly, the State having met its burden, there was no abuse of discretion in the trial court’s denial of Clark’s motion to withdraw her guilty plea.

Decided May 24, 2001.

Summer & Summer, Daniel A. Summer, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       For the purpose of sentencing the trial court merged the theft by taking charge into the burglary charge.


author: Pope, Presiding Judge.

text:
    A01A0111.
    SUNTRUST BANK, ATLANTA v. ATLANTA CLASSIC CARS, INC.
    (549 SE2d 523)
   Pope, Presiding Judge.

SunTrust Bank, Atlanta funded a car loan by issuing a check to Atlanta Classic Cars, Inc. (“ACCI”) so that its customer could purchase a car. The check included a conditional endorsement whereby ACCI warranted that it would list SunTrust as the first lienholder on the application for a certificate of title. ACCI cashed the check but did not comply with the endorsement. The issue in this case is whether SunTrust is entitled to recover the full amount of the loan from ACCI under the theory of money had and received even though breach of the endorsement did not cause SunTrust’s loss. We hold that the bank may not recover under that theory, because, as applied to this scenario, the theory implicitly includes a requirement of causation.

Construed in favor of ACCI, the facts show that in 1997, Elizabeth Bassett purchased a Porsche from ACCI financed by SunTrust, with the loan secured by the car. On April 18, 1997, SunTrust wrote ACCI, instructing it to list SunTrust as the first lienholder on the car when it applied for a title. Three days later, SunTrust issued a cashier’s check payable to ACCI with the conditional endorsement. It is undisputed that ACCI initially failed to satisfy the endorsement. Bassett, a Florida resident, took the car there, where it was stolen and totaled by her estranged husband. Bassett then defaulted on the loan.

Starting about one year after SunTrust’s check was cashed, ACCI attempted to obtain a replacement title showing SunTrust as the first lienholder. Although ACCI was apparently successful, Sun-Trust argues that the replacement title is not valid.

In its suit against ACCI, SunTrust moved for partial summary judgment claiming that ACCI was liable for the amount of the cashier’s check as a matter of law under the theory of money had and received because ACCI did not comply with the terms of the conditional endorsement on the check. The court denied SunTrust’s motion because no third party claimed a superior interest in the car, and, therefore, ACCI’s failure to comply with the conditional endorsement did not cause SunTrust any harm. We granted SunTrust’s application for interlocutory review and, having reviewed the record more closely, affirm the trial court’s denial of the motion for partial summary judgment.

“An action for money had and received is founded upon the equitable principle that no one ought unjustly to enrich himself at the expense of another, and is maintainable in all cases where one had received money under such circumstances that in equity and good conscience he ought not to retain it. . . .” Jasper School Dist. v. Gormley, 184 Ga. 756, 758 (193 SE 248) (1937).

As explained by the trial court, “[SunTrust] essentially alleges that [ACCI’s] actions resulted in a loss of a perfected security interest.” SunTrust contends that case law provides that when a car dealer fails to cause the bank to be shown as the first lienholder on the title as required by a conditional endorsement, the bank is automatically entitled to recover the full amount of the loan from the dealer. However, in each of the cases upon which SunTrust relies, the lender was damaged as a direct result of the loss of its security interest.

In DeKalb County Employees Fed. Credit Union v. D. L. Claborn Buick, 162 Ga. App. 631 (292 SE2d 507) (1982), a car dealer breached a conditional endorsement on the check by failing to record the lender’s security interest in the car and mailing the certificate of title to the purchaser rather than the lender. The buyer later used the clear title to trade the car and buy a new car from a different dealer and then disappeared. Id. The court held that because the dealer caused the lender to lose a perfected security interest, the dealer was liable for the full amount of the loan. Id. at 632.

In Larry’s Mobile Homes v. Robins Fed. Credit Union, 161 Ga. App. 822 (288 SE2d 800) (1982), the dealer breached the conditional endorsement by not perfecting the lender’s lien. The purchaser arranged additional financing with a second creditor, and the title showed the second creditor as the only lienholder. Id.

In Atlanta Motorcycle Sales v. Fulton Nat. Bank, 147 Ga. App. 297 (248 SE2d 558) (1978), the seller did not comply with the bank’s conditional endorsement on its loan check. The buyer later filed for bankruptcy without ever making any payments to the bank. Id. at 298. Because the bank did not have a perfected security interest in the car as a result of the dealer’s actions, it could not recover in bankruptcy. Id. The court applied the theory of money had and received to award the bank the full amount of the loan. Id.

In Fed. Employees Credit Union v. Capital Auto. Co., 124 Ga. App. 144 (183 SE2d 39) (1971), a bank issued a check for its customer to buy a car. The dealer cashed the check with the conditional endorsement but gave the money to the customer rather than selling him the car. The bank never obtained a perfected security interest in the car, and the customer defaulted and absconded. The court held that the dealer was liable to the bank under the doctrine of money had and received because the dealer should have returned the money when the purpose for the check, buying the car, failed, and it could not now, in good conscience, retain the money. Id. at 145.

In each of these cases, the lender was harmed as a direct result of the dealer’s failure to perfect the lender’s security interest. Therefore, the doctrine of money had and received applied — in good conscience, the dealer could not keep the lender’s money when the dealer’s failure to perfect the security interest caused the lender’s loss. In contrast, here, no third party has claimed superior title to SunTrust. SunTrust only lost the opportunity to recover the collateral because it was destroyed; it did not lose the right to recover it because someone else gained a superior right. Indeed, SunTrust always had an unperfected security interest in the car pursuant to the security agreement with Bassett. See Freeman v. Bentley, 205 Ga. App. 409, 410 (422 SE2d 435) (1992). As explained in Spoon v. Herndon, 167 Ga. App. 794, 795 (1) (307 SE2d 693) (1983), the failure to perfect a security interest in accordance with the Motor Vehicle Certificate of Title Act (OCGA § 40-3-1 et seq.) “does not affect the creation of the security interest, which remains a matter of contract between the parties. It follows that a failure to comply with the Act does not nullify the contract but merely has the effect of loss of priority where the rights of third parties who complied with the Act have intervened.” (Punctuation omitted; emphasis in original.) Id. See also OCGA § 40-3-50; Freeman v. Bentley, 205 Ga. App. at 410.

Decided May 29, 2001.

Fleming & Ray, James M. Sherman, Ashley H. Draughon, for appellant.

Freisem, Macon, Swann & Malone, John A. Swann, for appellee.

Because no third party claimed an interest in the property, nothing prevented SunTrust from repossessing the car, before it was destroyed, pursuant to the agreement. Accordingly, SunTrust’s reliance on the cases cited above is misplaced. To follow SunTrust’s reasoning would allow lenders in similar situations to recover from dealers even though they have suffered no damages as a result of a breach of the conditional endorsement. That would not be an equitable result.

SunTrust also contends that a sentence in D. L. Claborn Buick expressly states that a lender is entitled to recover from the dealer based solely on breach of the conditional endorsement regardless of any other circumstances. In that case, this court held, “[w]hile [the lender] had a legal obligation to do nothing to prejudice the rights of [the dealer] or to increase its damages, the amount of damages was fixed at the time [the dealer] failed to comply with the terms of the conditional delivery of the funds as clearly set out by the terms of the loan and the endorsement on the check.” 162 Ga. App. at 632. But, SunTrust takes this sentence out of context. In that case, the lender only sought in damages, “the balance of the amount owed by [the purchaser]” after accounting for money recovered from the purchaser. Id. at 631. The only issue in the case was whether the lender was required to further mitigate its damages, and the quoted sentence relates to that. The decision does not imply that the lender was entitled to recover the full amount of the loan from the dealer regardless of other circumstances.

Finally, there is an issue of fact regarding whether the replacement title listing SunTrust as the first lienholder was valid. For both of these reasons, the court correctly denied SunTrust’s motion for partial summary judgment. Our decision renders moot SunTrust’s second enumeration of error.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


author: POPE, Presiding Judge.

text:
    A01A0192.
    ADAMS v. THE STATE.
    (549 SE2d 539)
   POPE, Presiding Judge.

Randolph Phillip Adams appeals following his conviction on one count of theft by deception. We affirm.

Adams was indicted on five counts of theft by deception under OCGA § 16-8-3 and three counts of terroristic threats pursuant to OCGA § 16-11-37 (a). The state alleged that Adams had taken money from a number of women through false representations and had threatened some of the women when they sought to get their money back. Following the presentation of the state’s evidence, however, the trial court granted a directed verdict of acquittal on two counts of theft by deception and two counts of terroristic threats. The jury convicted Adams on the remaining four counts. In response to Adams’ motion for new trial, the state conceded that there was insufficient evidence to support his conviction on the remaining count of terroristic threats, and that charge was dismissed. The trial court subsequently granted Adams’ motion for new trial as to two of the counts of theft by deception, but sustained his conviction on one count. On appeal, Adams contends that his motion should also have been granted as to that count because there was insufficient evidence to support the verdict.

The evidence pertinent to the remaining theft by deception charge showed that Angela Davenport met Adams in April 1996. In June 1997, Adams and Davenport began dating. Around this time, Adams told Davenport that he was a partner in a company called Premier Sports & Events and presented her with a business card listing him as vice president and partner in the business. He told Davenport that Premier arranged parties and entertainment for sports celebrities and other businesses.

But Felicia Smith, Premier’s owner, testified that while Adams was an employee of the business, he had never been either a vice president or a partner. She said that she had given Adams a business card with the company logo, but with no title under his name, and she never authorized Adams to carry a business card representing himself to be a vice president or partner in the company.

In addition to his representations about his position at Premier, Adams told Davenport that he had attended Pennsylvania State University and Harvard University and that he had an MBA from the Wharton School of Business. He also said that he had made “millions” working at a Jewish bakery in Philadelphia. The state never presented any evidence to demonstrate that these assertions were false. He also drove a Porsche and a Range Rover, although the evidence at trial showed that another woman named as a victim in the indictment against Adams had purchased the Porsche for him and eventually hired a private investigator to recover the car.

In July and August 1997, Davenport wrote Adams a series of checks totaling in excess of $8,100, representing the proceeds from her 401k account. The memo lines on three of the checks contained notations reading “loan” or “loan to Phillip.” Davenport explained that she made those notations to ensure that the money could not be considered a gift. She testified that she gave Adams at least $6,900 of this money for investment in a music business and that he told her that he could get her a ten percent return on her investment. Adams never gave Davenport any documentation of her investment, but he told her that she would have her money back by the following November. When Davenport inquired about her money in November, however, Adams responded by telling her to “stand in line with the sharks.” And when he then threatened to slit her throat and “cut [her] up,” Davenport became scared and made no further attempts to recover the money.

Under OCGA § 16-8-3 (a), “[a] person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” The statute defines several methods by which a person may intentionally deceive another, including those instances where the person:

(1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed; [or] (3) Prevents another from acquiring information pertinent to the disposition of the property involved. . . .

OCGA § 16-8-3 (b). The statute also provides that the terms “[d]eceitful means” and “artful practice” do not include “falsity as to matters having no pecuniary significance, or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.” OCGA § 16-8-3 (b).

Adams contends that the only matter that the state proved to be false in his dealings with Davenport was his representation that he was a vice president and partner in Premier. He asserts that representation had no “pecuniary significance” as required by the statute.

From our review of the case law, it appears that Georgia’s appellate courts have never addressed the meaning of “pecuniary significance” as used in this Code section. But under a common sense reading of the phrase, we interpret the language to mean that the misrepresentation or false impression upon which a prosecution is based must somehow relate to the theft of the property at issue. In other words, a charge of theft by deception cannot be sustained where the only falsity proven is completely unconnected to theft of the property.

Under the facts of this case, we find that the jury could have interpreted Adams’ misrepresentation regarding his position at Premier to have “pecuniary significance” because it was used to induce Davenport to part with her money. The jury could have found that by inflating his employment status, Adams hoped to persuade Davenport that he was better qualified to invest her retirement funds. The evidence sustained a finding, therefore, that Adams created a false impression of his qualifications to handle Davenport’s money. And although the better practice would be to present specific testimony that Davenport relied upon this impression, we find that the evidence was sufficient for the jury to infer reliance based upon Davenport’s decision to hand over her retirement funds to Adams for investment in a music business. See generally Sinyard v. State, 243 Ga. App. 218, 220 (1) (531 SE2d 140) (2000).

Further, the false impression created by Adams was of an existing fact, not a promise of a future event, distinguishing Robinson v. State, 198 Ga. App. 431 (401 SE2d 621) (1991), upon which Adams relies. The fact that Adams may also have made representations as to future events — that he could get a ten percent return and that he would return the money in November 1997 — does not affect this evidence:

A statement that the accused intended thereafter to do a particular thing, made at the time of and in connection with certain other statements as to a past fact, shown to have been false, does not remove from the accused the consequences which the law attaches to false representations made with intent to deceive, and by which one is defrauded and cheated. This is true notwithstanding the representation as to what the accused intended to do was a part of the inducement under which the defrauded person parted with his money.

(Citation and punctuation omitted.) Harris v. State, 141 Ga. App. 213, 214-215 (1) (233 SE2d 21) (1977).

Accordingly, we find that there was sufficient evidence for the jury to find beyond a reasonable doubt that Adams was guilty of theft by deception as defined in OCGA § 16-8-3 (b) (1). See generally Eider v. State, 230 Ga. App. 122 (495 SE2d 596) (1998). In addition, we agree with the trial court that the jury also could have found that by threatening Davenport when she asked about her money, Adams prevented her “from acquiring information pertinent to the disposition of [her] property” in violation of OCGA § 16-8-3 (b) (3). Adams’ conviction is therefore affirmed.

Decided May 29, 2001

Tony L. Axam, Gwendolyn Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Bradley M. Elbein, Advera A. Wheeler, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, C. J, and Mikell, J., concur.


author: Mikell, Judge.

text:
    A01A0338.
    TAYLOR v. THE STATE.
    (549 SE2d 536)
   Mikell, Judge.

Stephen M. Taylor appeals his conviction following a bench trial for two counts of driving under the influence of alcohol. In his sole enumeration of error, Taylor contends that the trial court erred in denying his motion to suppress. We affirm.

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

The uncontroverted evidence presented at the motion hearing shows that on March 27, 1998, Officer Ray Gunter, who was regularly assigned to the DUI Task Force, was conducting a driver’s license checkpoint on Highway 78 near its intersection with Cambridge Street. At approximately 2:15 a.m., he saw a Jeep Cherokee slow down about an eighth of a mile before the checkpoint as if it were preparing to stop. All of a sudden, the Jeep turned right onto Cambridge Street. Gunter then got into his car and drove toward Cambridge Street. While driving, Gunter saw the Jeep turn left and drive over a curb into the parking lot of a closed business. He also saw the Jeep’s headlights bounce “like he [the driver] hit a curb real hard or hit the railroad ties real hard.” The driveway entrance to the parking lot was not on Cambridge Street.

The Jeep had already come to a stop when Gunter activated his blue lights and pulled into the parking lot behind the Jeep. Gunter noticed that a couple of the railroad ties on the property were moved. Gunter testified that once he pulled behind Taylor with his blue lights activated, Taylor was not free to go. Gunter approached the vehicle and asked Taylor for his license and insurance information and whether the address on his license was current. Taylor replied yes and volunteered that he was on his way home.

While talking to Taylor, Gunter noticed a strong odor of alcohol coming from the vehicle and that Taylor moved slowly and appeared to be intoxicated. Taylor admitted that he had been drinking after Gunter asked him to exit his vehicle to perform a field sobriety evaluation. Gunter noticed that Taylor’s face was flushed and he looked sleepy, his eyes were bloodshot red, his speech was slurred, his gait was unsteady, and a strong alcoholic odor emanated from his breath.

Taylor’s performance on the field sobriety tests, along with the positive results of the alco-sensor test, formed the basis for Gunter’s opinion that Taylor was a less safe driver while under the influence of alcohol. Consequently, Gunter placed Taylor under arrest for DUI. Taylor took the Intoxilyzer 5000 breath test at the Gwinnett County jail, which showed blood alcohol concentration levels of 0.113 and 0.111.

Taylor moved to suppress all evidence obtained as a result of the stop, which he árgues resulted in an illegal search and seizure. The trial court denied Taylor’s motion to suppress, and Taylor appeals therefrom.

At least three [tiers] of police-citizen encounters exist: (1) verbal communications involving no coercion or detention;

(2) brief “stops” or “seizures” that require reasonable suspicion; and (3) “arrests,” which can only be supported by probable cause. ... [A] second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity.

In this case, the trial court found that the stop was authorized because it was based on a reasonable, articulable basis. Thus, the court ruled, it was a legal second-tier stop. We agree.

On cross-examination, Gunter testified that he initiated the stop because he suspected that Taylor was avoiding the checkpoint and because of Taylor’s driving. We have previously held that abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal. By contrast, completely normal driving, even if it incidentally evades the roadblock, does not justify a Terry-type “tier-two” stop. In this case, Gunter testified that as he approached Taylor, he saw “the headlights of the truck bounce up and down like he [Taylor] either hit a curb real hard or hit the railroad ties real hard.” This conduct, combined with the proximity of the roadblock, was sufficiently abnormal or unusual to justify a Terry-type (i.e., second-tier) stop. After approaching Taylor’s vehicle and investigating further, Gunter had probable cause to arrest (a third-tier encounter). We find no error in the admission of evidence of his intoxication.

Taylor relies on Jorgensen and State v. Winnie' in support of his argument that the stop was improper. Both cases are distinguishable. In Jorgensen, the officer testified that he stopped a vehicle based solely on his hunch that the vehicle was trying to avoid a roadblock. The defendant in that case was driving normally as he turned into an apartment complex. We found that the officer’s hunch was not sufficient to justify a tier-two stop. In this case, however, Gunter was not relying on a hunch; rather, he stopped Taylor because of Taylor’s abnormal driving.

In Winnie, the officer saw a vehicle turn into the parking lot of a closed business. The officer pulled into the lot because he thought the occupants of the vehicle could have been there to commit a burglary. When the vehicle drove on, the officer activated his blue lights, and the vehicle stopped. We held that once the defendant pulled away from the parking lot, the officer’s suspicion that the defendant was about to engage in criminal activity vanished and he should not have stopped the defendant. Though Taylor parked in the lot of a closed business like the defendant in Winnie, the similarities between the two cases end at that point. In Winnie, the basis for the officer’s suspicion disappeared when the defendant left the parking lot. Conversely, here, the officer observed what he thought was suspicious driving behavior before the vehicle came to a stop. Thus, his suspicion did not dissipate when Taylor parked the vehicle. Accordingly, he had reason to initiate a tier-two stop.

Decided May 29, 2001.

Patrick D. Beering, for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Gary S. Vey, Assistant Solicitor-General, for appellee.

Based on the uncontroverted evidence presented, we find that the trial court’s denial of Taylor’s motion to suppress did not constitute error.

Judgment affirmed.

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

       OCGA § 40-6-391 (a) (1).

       (Citation and punctuation omitted.) Castillo v. State, 232 Ga. App. 354, 355-356 (502 SE2d 261) (1998).

       (Citations omitted.) State v. Causey, 246 Ga. App. 829, 831 (1) (540 SE2d 696) (2000).

       See State v. Webb, 193 Ga. App. 2 (386 SE2d 891) (1989).

       See Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993).

       Id.

       242 Ga. App. 228 (529 SE2d 215) (2000).

        Jorgensen, supra at 546.

        Winnie, supra at 229.

       Id. at 230.


author: Smith, Presiding Judge.

text:
    A01A0435.
    SMITH v. THE STATE.
    (550 SE2d 106)
   Smith, Presiding Judge.

Atemious Smith was charged with one count of aggravated assault and one count of criminal damage to property in the second degree. A jury found him guilty of both charges, and judgment of conviction and sentence was entered. His motion for new trial, as amended, was denied, and he appeals. In four enumerations, he challenges the sufficiency of the evidence to support his convictions. We find no merit in these enumerations, and we affirm.

The evidence presented at trial showed that the charges arose out of an incident in which Smith shot the victim. According to the State, Smith, an Atlanta police officer at the time, believed that his wife was having an affair with the victim, who was one of her coworkers. He sought an opportunity for revenge by driving by the victim’s home numerous times. On the day of the incident, Smith drove by the victim’s home, and the victim fell in behind Smith in his own vehicle. A high speed chase ensued, until Smith drove into a blocked-off street and could go no further. The victim’s truck was directly behind Smith’s truck. Smith exited his truck, pulled out his service revolver, and began shooting. He then started searching the victim’s truck, pulled the victim out of his truck, kept asking, “Where is it?” and then asked a bystander to call the police. Smith’s defense was justification. He maintained that the victim had previously threatened to kill him, which the victim denied. Police officers who responded to the shooting testified that Smith told them he shot the victim because the victim tried to run him over. But Smith’s statement contradicted this. In his statement, Smith said that when the two trucks stopped in the dead-end street, he saw the victim “reach down towards his right,” then “come back up with some object in his hand.” Because he thought the victim was about to shoot him, he shot at what he believed was “a firearm or some type of weapon.” A subsequent search of the victim’s truck revealed a tire iron on the passenger side floorboard, but no gun. A second loaded gun was found in Smith’s truck. The victim sustained multiple gunshot wounds to his chest, trunk, and abdomen. He sustained damaging, severe internal injuries, underwent seven surgeries, and remained wheelchair-bound at the time of trial.

A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). And when a defendant presents evidence of justification, the State has the burden of disproving the defense beyond a reasonable doubt. Hall v. State, 235 Ga. App. 44-45 (508 SE2d 703) (1998). But the question of whether the circumstances justified deadly force is a jury question, id. at 45, and in reviewing the jury’s verdict, we must construe the evidence in the light most favorable to that verdict. Any conflicts in the evidence are matters of credibility, which are within the jury’s province. As long as some competent evidence exists, even if contradicted, to support each element of the State’s case, the verdict must be upheld. Id.

Although evidence was presented supporting Smith’s version of the facts, competent evidence also existed to support the State’s theory, and the jury was authorized to believe that theory and reject Smith’s. This court does not weigh the evidence; we only determine its sufficiency. Moore v. State, 242 Ga. App. 208 (1) (529 SE2d 210) (2000). Given the conflicting evidence regarding prior threats and Smith’s reasons for shooting, as well as Smith’s conduct and the absence of a gun in the victim’s truck, the jury was authorized to believe that Smith did not act out of fear that “would excite the fears of a reasonable man to the point that he would feel it necessary to use deadly force to prevent death or great bodily injury.” Williams v. State, 245 Ga. App. 670-671 (1) (538 SE2d 544) (2000). The evidence was sufficient to authorize the jury to find Smith guilty as charged.

Decided May 29, 2001.

Teresa A. Mann, for appellant.

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

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       One witness testified he heard Smith say to the victim: “I told you I was going to kill you.”


text:
    A01A0493.
    EASON v. THE STATE.
    (549 SE2d 532)
   Pope, Presiding Judge.

Greg Eason was charged with speeding, tried by the Glynn County State Court and convicted. He received a 12-month suspended sentence and a fine. Here he appeals, pro se. For the following reasons, we vacate and remand the case with direction.

1. In four enumerations of error, Eason argues that the trial court erred in its handling of the bench trial. Specifically, Eason claims that he was not allowed to submit evidence; that he was not allowed to recall a witness; that his evidence of a scientific nature was not allowed; and that the courtroom atmosphere and the court and a witness’ demeanor were inappropriate. In a fifth argument, Eason also claims that the evidence presented was insufficient to convict him.

The bench trial was not recorded, and thus we cannot consider these arguments. “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41.” (Citations and punctuation omitted.) Pope v. State, 228 Ga. App. 897, 900 (4) (494 SE2d 345) (1997). In this case, the materials Eason filed do not include either a transcript or the substitute for a transcript provided for by statute. And, “[Eason’s] attempts to prepare and file a unilateral account of the proceedings below do not conform to the requirements of this Code section.” Dunn v. State, 234 Ga. App. 623, 624 (1) (507 SE2d 170) (1998).

In the absence of a transcript, we cannot consider enumerations of error concerning the evidence or proceedings at trial. In the absence of a transcript, or a record prepared from recollection or a stipulation of the case pursuant to OCGA § 5-6-41 (g, i), we cannot consider enumerations of error based on the evidence. Since defendant’s enumerations can be reviewed only by reference to a transcript, the absence of a transcript requires that we assume that the trial court’s rulings on the admission of evidence were correct.

(Citations and punctuation omitted.) Hageman v. State, 205 Ga. App. 644 (423 SE2d 56) (1992). And in the absence of a transcript, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s findings.

2. Eason also argues that he was misled into having a bench trial. He claims that the judge told him “that for the novice person defending himself you should pick a bench trial.”

In Smith v. State, 230 Ga. App- 151, 152-153 (3) (495 SE2d 624) (1998), the defendant appealed his conviction for laying drags, arguing that he did not knowingly waive his right to a jury trial. This court stated:

When an appellant questions the purported waiver of his right to a jury trial, it is up to the State to show that the waiver was intelligently made with the accused’s consent. The Supreme Court enunciated two post-trial methods by which the State could successfully carry its burden of proof: (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by [filling] a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citations and punctuation omitted.) Id.

Similarly in Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996), this court stated:

Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. However, defendant’s consent need not be in a particular, ritualistic form. Since form is unimportant, the only real issue is whether appellant intelligently agreed to a trial without jury. When an accused questions the purported waiver of his right to a jury trial, the State must show on the record that the defendant personally, knowingly, voluntarily, and intelligently waived his right to a jury trial.

(Citations and punctuation omitted.) Id. at 657. In Pirkle, this court determined that the form which the defendant had signed did not show that the defendant’s waiver of his constitutional right was intelligently given. The court found that “[n] either the capitalization of the words nor the clerk’s administrative notation of ‘n-jury’ beside the trial date” indicated that the defendant understood the consequence of his choice. Id. at 658.

Here, the only document regarding Eason’s purported waiver of the jury trial is the back of the Uniform Traffic Citation. Eason signed this document under the boldface words “NOT GUILTY TRIAL BY JUDGE,” which were typed onto the form. Although there is a portion on the form entitled “Waives Trial by Jury,” there is no signature on that portion of the document. The record does not contain any other documents regarding the waiver, and the state has failed to provide any extrinsic evidence which affirmatively shows that his waiver was knowingly and voluntarily made. See Keegan v. State, 221 Ga. App. 487 (2) (472 SE2d 107) (1996).

The record contains some evidence of a waiver but does not show whether [Eason] personally, voluntarily, knowingly, and intelligently participated in it. We therefore vacate [Eason’s] conviction and remand the case for an evidentiary hearing on this issue. If, after the hearing, the trial court determines that [Eason] did make a valid waiver, the conviction and sentence may be reinstated, and [Eason] will have the opportunity to file a new appeal directed to this issue alone.

(Footnotes omitted.) Whitaker v. State, 244 Ga. App. 241, 244 (4) (535 SE2d 283) (2000).

Judgment vacated and case remanded with direction.

Blackburn, C. J., and Mikell, J., concur.

Decided May 29, 2001.

Greg L. Eason, pro se.

Richard H. Taylor, Solicitor-General, for appellee.

       The rules regarding defendant’s waiver of a jury trial in this state court case are distinguishable from the requirements in probate court and other courts. See, e.g., Nicholson v. State, 261 Ga. 197, 200 (6) (403 SE2d 42) (1991); Kolker v. State, 200 Ga. App. 72 (406 SE2d 514) (1991).


author: Ellington, Judge.

text:
    A01A0572.
    UPSHAW v. THE STATE.
    (549 SE2d 526)
   Ellington, Judge.

A DeKalb County jury convicted Solomon Upshaw of numerous charges arising from a home invasion. These charges included two counts of rape, OCGA § 16-6-1; two counts of kidnapping with bodily injury, OCGA § 16-5-40 (b); one count of kidnapping, OCGA § 16-5-40 (a); four counts of aggravated assault, OCGA § 16-5-21; four counts of false imprisonment, OCGA § 16-5-41; and burglary, OCGA § 16-7-1. The rape and kidnapping charges were merged for sentencing. Upshaw appeals from the trial court’s denial of his motion for new trial, contending the trial court erred in refusing to dismiss a juror for cause, in admitting evidence resulting from an unduly suggestive lineup, and in failing to merge the kidnapping and false imprisonment charges. He also challenges the sufficiency of the evidence. Because one of the false imprisonment charges should have been merged with a kidnapping charge, we reverse the false imprisonment conviction and set aside the sentence entered thereon. We affirm Upshaw’s remaining convictions.

Viewed in the light most favorable to the jury’s verdict, Arnold v. State, 243 Ga. App. 118 (1) (532 SE2d 458) (2000), the evidence showed that, early in the morning of December 15, 1998, a disabled man and his female caretaker were watching television in a bedroom of his DeKalb County condominium. The caretaker’s 18-year-old daughter and a male friend were in the caretaker’s bedroom. Suddenly, two intruders, Upshaw and Rashawn Howard, entered the disabled man’s bedroom. Upshaw carried a gun, and Howard had a long, machete-like knife. Both intruders repeatedly asked, “Where [is] the dope? Where is the money?” while they searched the man’s closet and Howard cut up his furniture. They knocked the caretaker out of her chair and tied her hands behind her back. Howard sat on her and put his knife to her back. Upshaw went to the other bedroom and kicked in the door. He forced the caretaker’s daughter and her friend into the disabled man’s bedroom at gunpoint and made them lie facedown on the floor. The intruders tied the victims’ hands behind their backs with duct tape, a belt, and clothing. Upshaw and Howard told the man to stay on his bed and keep his eyes closed. When the man tried to peek, Howard said he would “cut [the man’s] eyes out” if the man tried to look at them again.

Eventually, Upshaw said that “since we didn’t get what we came for, . . . I’m going to take this,” referring to the caretaker. Upshaw took the caretaker into the other bedroom, untied her, and forced her to take off her clothes. He told her to kneel on the bed, then tied her hands to her ankles behind her back with duct tape. The caretaker testified that she repeatedly tried to look at Upshaw, even though he told her to look away, because she did not want Upshaw to shoot her in the back of the head. Howard continued to restrain the other victims, at one point holding a knife to the daughter’s throat when she tried to get up.

A few minutes later, Upshaw came back into the disabled man’s bedroom and got a beer from the nightstand. Upshaw took the daughter into the caretaker’s bedroom, untied her, made her take off her clothes and kneel on the bed next to her mother, then tied her up like her mother. At that point, Upshaw raped the caretaker in her daughter’s presence. When Upshaw was finished, he took the daughter into the bathroom and raped her. Both female victims consistently distinguished their assailants as the “light-skinned” one with the knife (Howard) versus the “dark-skinned” one who raped them (Upshaw).

While Upshaw was with the daughter in the bathroom, the caretaker jumped from the second-story window and ran, naked, to a neighbor’s house. She called the police, who responded within two minutes. A police officer testified that, upon arriving at the condominium, he saw two men running out the back door and into the nearby woods. The police established a perimeter around the area. A police canine unit was called, which tracked down the two men within minutes. The assailants spontaneously told the police, ‘You got us,” and one of them told the officers that he had a gun in his possession. The officers recovered a gun from Upshaw and found an empty knife sheath in Howard’s possession.

Upshaw gave a custodial statement admitting his involvement in the aggravated assaults, kidnappings, false imprisonment, and burglary. Specifically, Upshaw admitted that he staked out the condominium before the burglary, broke into the condominium to steal money, asked the victims to give him money and drugs, kicked in the door to the caretaker’s bedroom, and took the daughter and her friend into the other room and told them to get on the floor. According to Upshaw, he took the caretaker into her bedroom, tied her up, and left briefly; when he returned, the caretaker was gone. Upshaw stated that, as he fled the condominium, he saw the police and hid in some bushes, where the police captured him shortly thereafter. The statement did not mention the rapes. The trial court conducted a pretrial Jackson-Denno hearing on the admissibility of Upshaw’s statement and concluded it was voluntary and admissible. An audiotape of Upshaw’s statement was played for the jury at trial.

The trial court also conducted a hearing on Upshaw’s motion to suppress the results of a photographic lineup in which both female victims identified Upshaw as the rapist. The trial court denied the motion after finding that the lineup was not impermissibly suggestive.

1. Upshaw contends the trial court erred in refusing to dismiss a juror for cause. During voir dire, the State asked the jury panel whether anyone would have a problem sitting on a case that involved the indicted charges. Juror no. 30 raised her hand. During questioning about whether she could be fair and impartial, the juror explained that two friends had been raped “awhile back” and she believed that one friend still experienced emotional “ramifications” of the rape. When asked if she could set aside these experiences so that they did not affect her judgment in this case, she replied, “I would hope I could. I can’t promise, but I would hope I could.” She also stated that her concerns arose more from seeing the “long-term effects” of the rape on one of her friends than from her personal feelings about what happened to them. Counsel moved to excuse juror no. 30 for cause. The trial court denied the motion after finding that her responses during voir dire were insufficient to sustain a challenge for cause.

Whether to strike a juror for cause lies within the sound discretion of the trial court. For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences. ... A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.

(Citations omitted.) Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998). See also Garland v. State, 263 Ga. 495, 496-497 (1) (435 SE2d 431) (1993) (the trial court did not abuse its discretion in refusing to excuse a prospective juror who stated that she would “try” to put aside her emotions and decide the case based upon the evidence).

The juror’s responses in this case did not compel a finding that she had formed an opinion of Upshaw’s guilt or innocence that was so fixed or definite that she would be unable to decide the case based upon the law and the evidence. See Corza v. State, 273 Ga. 164, 167 (3) (539 SE2d 149) (2000) (juror repeatedly stated that she was “not certain” she could set aside her feelings of the defendant’s gang affiliation, but that she “would try”); cf. Menefee v. State, 270 Ga. 540, 542 (2) (512 SE2d 275) (1999) (trial court abused its discretion in failing to excuse a juror who had been attacked by a man of the same race as the defendant and, therefore, held a “distinct racial bias” against the defendant). The trial court did not abuse its discretion in refusing to dismiss the juror for cause. “Additionally, the trial transcript does not show that [Upshaw] exhausted his peremptory strikes, and if he did not use all his strikes no harm would be shown and error cannot be said to exist.” (Citation and punctuation omitted.) McKenye v. State, 247 Ga. App. 536, 537 (1) (a) (544 SE2d 490) (2001).

2. Upshaw claims the trial court erred in refusing to suppress the photographic lineup as unduly suggestive, resulting in an irreparable misidentification. Upshaw contends that he was depicted as the man with the darkest skin among all of the pictured individuals. He argues that, when interviewed by police, the two female victims said they were raped by a “dark-skinned” intruder, and implies that the photographic array was manipulated accordingly.

Upshaw presented no authority to support his assertion that a failure to match exact complexions within a racial demographic in a photographic lineup automatically requires that the lineup be excluded, and we have found none. Instead,

[w]e use a two-part test in determining whether evidence of pre-trial identification should be excluded: The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of a defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “This is our suspect.” In reviewing a trial court’s denial of a motion to suppress, we construe the evidence most favorably to upholding the court’s findings and judgment, and we, therefore, accept the court’s ruling unless clearly erroneous.

(Citations, punctuation and footnotes omitted.) Karim v. State, 244 Ga. App. 282, 283-284 (2) (535 SE2d 296) (2000). See also Smith v. State, 209 Ga. App. 540, 543 (4) (433 SE2d 694) (1993) (in determining whether the procedures were impermissibly suggestive, the court should look at the “totality of the circumstances” surrounding the identification).

During a hearing on Upshaw’s motion to suppress the identification, the officer who compiled the lineup testified that he attempted to find five pictures of men in the same age group as Upshaw, with similar hair styles and skin tones. Before showing the lineup to the two female victims, the officer read to them a photographic lineup admonition form, which stated that the pictures may not reflect the true complexion of the individuals and that they may be darker or lighter than depicted.

After reviewing the photographic lineup and hearing this testimony, the trial court found that the identification procedure was not unduly suggestive. This finding is supported by the record and, therefore, is not clearly erroneous.

3. Upshaw contests the sufficiency of the evidence to support his convictions. He argues that the lineup identification evidence should have been suppressed and, absent these identifications, the evidence was insufficient for a jury to find he was involved in these crimes. When reviewing the sufficiency of the evidence on appeal,

[w]e view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We address only the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

(Footnote omitted.) Arnold v. State, 243 Ga. App. at 118 (1).

In this case, there was substantial evidence that Upshaw was involved in these crimes, virtually negating the possibility that he was misidentified as one of the two assailants. The most compelling evidence was his custodial statement to police, in which he admitted committing many of the crimes. See Pickren v. State, 272 Ga. 421, 425 (6) (530 SE2d 464) (2000) (a confession is the most probative and damaging evidence). He also admitted that he was captured outside the condominium immediately after the crimes. Further, the caretaker and her daughter both testified that, of the two intruders, it was the “dark-skinned” man who raped them. Even without the lineup identification evidence, there was simply no issue as to whether Upshaw was the assailant who committed the rapes. The evidence presented at trial was more than sufficient for a rational jury to find Upshaw guilty beyond a reasonable doubt of the crimes for which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Upshaw asserts that the facts did not support separate convictions for the kidnapping and false imprisonment of the daughter’s friend. The evidence showed that Upshaw took the friend from the caretaker’s room to the disabled man’s bedroom, where the friend was tied up and forced to lie facedown on the floor. The friend was not moved by the assailants after that point and was released only after the assailants left the condominium.

In determining whether merger of offenses has occurred, the trial court must look to whether the different crimes are proven with the same facts. Kellibrew v. State, 239 Ga. App. 783, 786 (4) (521 SE2d 921) (1999). “If one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.” (Citation and punctuation omitted.) Id. See also Massey v. State, 265 Ga. 632, 633 (1) (458 SE2d 818) (1995).

In this case, the evidence demonstrates that Upshaw’s conviction for the false imprisonment of the daughter’s friend merged with the kidnapping charge.

The only difference between the two offenses is asportation, since false imprisonment involves holding a person unlawfully against his will, which is also an essential element of the offense of kidnapping. Thus, false imprisonment was an integral part of the kidnapping charge, requiring the same evidence except for asportation. Accordingly, the offense of false imprisonment merged with the offense of kidnapping ... as a matter of fact, even though the offenses did not merge as a matter of law.

(Citation omitted.) Ellis v. State, 181 Ga. App. 630, 634 (5) (353 SE2d 822) (1987). Therefore, the trial court erred in failing to merge the false imprisonment conviction into the kidnapping conviction. Upshaw’s conviction for the false imprisonment of the daughter’s friend is reversed, and his sentence for that offense is set aside.

5. Upshaw also contends his convictions for the kidnapping and false imprisonment of the caretaker and her daughter merged as a matter of fact. Unlike Upshaw’s convictions for the false imprisonment and kidnapping of the daughter’s friend, however, each of these convictions was supported by evidence of complete, independent acts directed toward the female victims.

(a) As to Upshaw’s convictions for acts against the caretaker, the evidence showed that he held the caretaker against her will in the disabled man’s bedroom. This act supported the conviction for false imprisonment of the caretaker. After the false imprisonment was complete and several intervening acts occurred, Upshaw forced the caretaker to go into her bedroom, where he raped her. These facts supported his kidnapping with bodily injury conviction. Accordingly, the trial court did not err in failing to merge these convictions. Norris v. State, 230 Ga. App. 492, 494 (3) (496 SE2d 781) (1998); Johnson v. State, 195 Ga. App. 723-724 (2) (394 SE2d 586) (1990).

Decided May 29, 2001.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

(b) Similarly, Upshaw transported the daughter to the disabled man’s bedroom, where she was held against her will. This evidence supported either a kidnapping or false imprisonment conviction. Compare OCGA § 16-5-40 (a) (kidnapping) with OCGA § 16-5-41 (false imprisonment). Then, Upshaw transported the daughter to her mother’s bedroom and held her against her will, a separate act which also supported a kidnapping or false imprisonment conviction. Finally, Upshaw took the daughter into the bathroom and raped her, acts which supported the kidnapping with bodily harm conviction. See OCGA § 16-5-40 (b). Given these factually distinct acts, the trial court did not err in failing to merge Upshaw’s convictions for kidnapping and false imprisonment of the caretaker’s daughter. Norris v. State, 230 Ga. App. at 494 (3).

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ruffin, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).


text:
    A01A0746.
    MAXWELL v. THE STATE.
    (549 SE2d 534)
   Pope, Presiding Judge.

Stephen Charles Maxwell appeals his conviction on two counts of driving under the influence of alcohol, one count of driving without a valid Georgia driver’s license, and one count of improper license plate. He challenges the court’s decision to deny his motion to suppress.

The evidence shows that on February 3, 2000, Maxwell’s wife was arrested by the Peachtree City Police for driving under the influence of alcohol. Mrs. Maxwell told the police that prior to her arrest, she had been drinking with her husband at the country club. She also told them the type of vehicle that her husband was driving. That officer told another officer, who situated his patrol car in a place where he could observe Maxwell as he left the country club. That officer eventually had to leave his post, and a third officer, Officer Smucker, replaced him. Smucker had been informed of Mrs. Maxwell’s statements. Eventually, Smucker saw Maxwell’s Ford pickup truck and began to follow it. At this point, Smucker testified, “It was my intention to find a violation and stop the vehicle.” The truck had a Texas license tag, and Smucker decided to call in the tag. He explained that that was the only way he could determine if the tag was valid. He said, “Texas license tags, unlike Georgia license tags, do not have expirations in the back of the tag. They actually have a sticker in the front windshield of the vehicle. So by just observing his Texas tag, I had no way of knowing what the expiration was. You have to run the tag, and that’s what I did.” He received a report that the license plate had expired in December 1999. Smucker then pulled Maxwell over which led to his arrest for the charges for which he was convicted.

In two separate enumerations, Maxwell contends that the stop was pretextual and that therefore it violated his rights under the United States and Georgia Constitutions. We disagree.

Under the U. S. Constitution, a traffic stop is reasonable where the police have “probable cause to believe that a traffic violation has occurred,” Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996), or reasonable suspicion that the car’s occupants are involved in criminal activity. United States v. Hensley, 469 U. S. 221 (105 SC 675, 83 LE2d 604) (1985). And a determination of reasonable suspicion or probable cause “can rest upon the collective knowledge of the police when there is some degree of communication between them, instead of the knowledge of the arresting officer alone. [Cit.]” Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996).

Here, based on the information provided by Maxwell’s wife, Smucker had reasonable suspicion that Maxwell was driving under the influence of alcohol, which authorized a stop. Second, based on the results of the investigative call about Maxwell’s license, Smucker had probable cause to believe that Maxwell had violated the traffic laws. And even without the information about Maxwell’s drinking, “when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, 517 U. S. 806.” Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997). The result is the same under the Georgia Constitution. See State v. Kirbabas, 232 Ga. App. 474, 480-481 (2) (502 SE2d 314) (1998). We find no error.

Decided May 29, 2001.

Drew Findling, Cris E. Schneider, for appellant.

Steven L. Harris, Solicitor-General, for appellee.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A0839.
    SOUTHERN HERITAGE INSURANCE COMPANY v. GREENE INSURANCE AGENCY et al.
    (549 SE2d 743)
   Mikell, Judge.

Southern Heritage Insurance Company (“Southern”) appeals the dismissal of its declaratory judgment action. For the reasons set forth below, we affirm in part and reverse in part.

Southern filed the action against its insureds, Sharon Snyder and Quincey Wayne McMillan, as well as the agent and agency who procured the automobile insurance policy at issue, William K. Greene and Greene Insurance Agency, Inc. (collectively “agent”), after the insureds made a claim against the policy for uninsured motorist benefits based on injuries they sustained in a collision that occurred on March 16, 2000. In its petition, Southern alleged that it discovered after the collision that the insureds did not own the vehicles for which they sought insurance, contrary to their representations on the policy application and the subsequent addition thereto. Southern further alleged that the insureds did not pay the premiums on the vehicle involved in the collision and were not employees, officers, or shareholders of “L & M Bag N Supply c/o Quincey Median [sic],” the entity in which the certificate of title was issued. Therefore, Southern asked the trial court to determine whether the insureds lacked an insurable interest in the vehicle, such that Southern was not obligated to pay their claims.

Southern also alleged that the agent and the insureds gave conflicting statements as to whether the insureds disclosed to the agent the true ownership of the vehicles. Southern asserted that in the event it was held liable for the insureds’ claims, then the agent should be required to reimburse Southern for the full amount of those payments, plus Southern’s attorney fees.

The agent filed a motion to dismiss the petition for failure to state a claim, contending, inter alia, that no justiciable controversy existed between the agent and Southern; that the petition sought affirmative relief and damages, which are not recoverable in a declaratory action; and that the petition alleged no facts or legal theory which set forth any claim against the agent. After a hearing, the trial court dismissed the complaint in its entirety. To this ruling Southern has assigned eight enumerations of error. We address only those that are essential to the disposition of this appeal.

1. We first consider whether the petition states a claim for declaratory relief against the agent. A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any facts that could be proved in support of its claim. Our review of the trial court’s ruling on a motion to dismiss is de novo.

A liberal reading of Southern’s petition reveals that Southern seeks indemnification from the agent in the event that the trial court declares that Southern is obligated to pay its insureds’ claims. While the petition does not indicate the theory upon which such a claim is based, Southern apparently contends that the agent may have misrepresented to Southern the true ownership of the insured vehicles. Southern’s petition prays that if it is required to pay either of the insureds, then the agent should be held liable for the payment of their claims and for Southern’s attorney fees.

As alleged, the petition fails to state a claim for declaratory relief against the agent. Initially, we note that there is no Georgia case precisely on point. However, it is axiomatic that damages may not be recovered in a declaratory judgment action. “The legislative intent and purpose of our Declaratory Judgment Act is to relieve against uncertainty and insecurity; to declare rights, status, and legal relations, but not to execute remedies or grant coercive relief. Consequently a judgment for damages may not be recovered in a declaratory action.” Southern seeks indemnification and damages rather than a declaration of its rights against the agent. As damages are unavailable in a declaratory judgment action, we uphold the trial court’s dismissal of the claim against the agent.

Dicta in Pennsylvania Threshermen &c. Ins. Co. v. Gardner lend further credence to our determination. In Pennsylvania Thresher-men, the insured claimed that the insurance company’s agent fraudulently failed to procure coverage for a vehicle involved in a collision. The agent was not named as a party, and the trial court’s dismissal of the petition was upheld for reasons not pertinent here. However, this Court stated that a dispute based upon the agent’s fraud and deceit

would not present an actual or justiciable controversy within the meaning of Section I of the Declaratory Judgment Act. Such allegations would not state an issue as to the construction of a liability insurance contract, a dispute as to the rights of the parties thereto, or even a controversy as to the existence of such policy, but would be predicated upon the plaintiffs liability in tort for having defrauded defendant with misrepresentations as to the issuance of an insurance contract providing coverage on the automobile.

Here too, Southern’s petition contemplates the agent’s tort liability; as such, it fails to state a claim for declaratory relief against the agent.

Contrary to Southern’s argument, Hearn v. Great Southwest &c. Ins. Co. does not mandate a contrary result. The insurer in Hearn filed a declaratory action against its insured to determine whether its policy covered the loss of a boarded animal. The insurance agent who submitted the application intervened and filed a counterclaim against the insurer for indemnification and reformation. The agent’s claim for indemnity was dismissed, and summary judgment was granted to the insurer based on a policy exclusion. This Court affirmed, based on the insured’s failure to read the policy. The agent’s intervention was not an issue on appeal, and Hearn does not support Southern’s argument that it is entitled to seek damages in a declaratory action.

Next, Southern urges this Court to follow the reasoning of the Southern District of Florida in Cas. Indent. Exchange v. High Croft Enterprises. The court in that case held that the insurance agent was an indispensable party plaintiff to a declaratory action brought by an insurer against its insured. The insured had counterclaimed against the insurer for breach of the policy and had sought to add the agent as a plaintiff in order to assert a similar counterclaim against it as well. Analyzing the insured’s request under Fed. R. Civ. R 19, the court stressed the “probability of a subsequent litigation that might produce inconsistent [results]” as a factor in its decision. Here too, Southern contends, it may be faced with inconsistent results if the agent’s dismissal from this litigation is upheld. While we cannot say that this logic lacks merit in the abstract, nevertheless, the fact remains that Southern’s petition seeks damages, which cannot be recovered in a declaratory judgment action. For that reason, it fails to state a claim upon which relief can be granted, and this is not a proper case in which to address the policy considerations that guided the federal court in Cas. Indent. Exchange.

Finally, Southern argues that the trial court erred in failing to construe the Declaratory Judgment Act liberally. “While our declaratory-judgment statute should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies.” Other remedies are still available to Southern, and dismissal was proper.

2. However, the dismissal of Southern’s complaint against its insureds was in error. The trial court ruled that Southern was not entitled to seek declaratory relief against its insureds because it had denied coverage and returned the premiums. While an insurer who has already denied a claim may not seek a declaratory judgment, the evidence does not support the trial court’s determination that Southern denied the claim.

The court based its ruling on admissions made by counsel for Southern at the hearing. Statements of counsel in open court are solemn admissions in judicio, and a party is estopped from introducing any evidence to contradict solemn admissions. In the instant case, however, Southern’s counsel did not admit that Southern denied coverage or that it returned the premiums because it considered the policy to be void. Although at the hearing, counsel admitted that over $300 in premiums had been returned to the insureds, counsel was unsure as to what the funds represented. In addition, after the hearing but before the court issued its order of dismissal, Southern submitted an affidavit showing that the $322 refunded to the insureds represented coverage for the totaled vehicle after the collision. Accordingly, the evidence does not demonstrate a denial of coverage, and the court’s sua sponte dismissal of the insureds was erroneous.

Decided May 29, 2001.

Mabry & McClelland, Robert M. Darroch, Dorothy A. Presley, for appellant.

Hall, Booth, Smith & Slover, Robert S. Register, Fuller, Johnson & Farrell, Patrick J. Farrell, Jr., for appellees.

Judgment affirmed in part and reversed in part.

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

        Croxton v. MSC Holding, 227 Ga. App. 179, 180 (489 SE2d 77) (1997).

       Id.

        Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 315 (4) (66 SE2d 726) (1951).

       (Citation omitted.) Id.

       107 Ga. App. 472 (130 SE2d 507) (1963).

       Id. at 474 (6).

       193 Ga. App. 31 (386 SE2d 859) (1989).

       714 FSupp. 1190 (S.D. Fla. 1989).

       Id. at 1192. As joinder of the agent defeated diversity jurisdiction, the court dismissed the action.

       Under the corresponding Georgia rule, OCGA § 9-11-19 (a), a party is indispensable if
      (1) the existing parties cannot obtain complete relief without the presence of the other party, or (2) the merits of the case cannot be decided without prejudicing the other party’s rights. Glover v. Allstate Ins. Co., 229 Ga. App. 235 (1) (493 SE2d 612) (1997). We note that Southern’s ability to present evidence and testimony as to the agent’s actions is not jeopardized by his absence from the suit. The agent may be deposed and compelled to testify at trial.

       (Citation and punctuation omitted.) Sentry Ins. v. Majeed, 194 Ga. App. 276, 277-278
      (2) (390 SE2d 269), aff’d, 260 Ga. 203 (391 SE2d 649) (1990).

        Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450) (1992).

        State Farm Fire &c. Ins. Co. v. Terry, 230 Ga. App. 12, 17 (4) (495 SE2d 66) (1997) (whole court), aff’d, 269 Ga. 777 (504 SE2d 194) (1998); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 567 (1) (333 SE2d 856) (1985).

        Dixon Dairy Farms v. ConagraFeed Co., 245 Ga. App. 836, 838 (538 SE2d 897) (2000); Green, Ga. Law of Evidence (5th ed.), § 238, p. 476.