text:
    A02A0116.
    SHARP v. THE STATE.
    (565 SE2d 841)
   Smith, Presiding Judge.

Jeffrey Ray Sharp was found guilty by a jury and sentenced on three counts of armed robbery, kidnapping, two counts of aggravated assault, two counts of aggravated assault on a police officer, hijacking a motor vehicle, and possession of a firearm during the commission of a crime. His motion for new trial, as amended, was denied, and he appeals. Sharp does not seek reversal of all his convictions, but only those for kidnapping, one count of armed robbery, one count of aggravated assault, and the firearm charge. We find no error, and we affirm those convictions.

Construed to support the jury’s verdict, the evidence presented at trial showed that at about 9:00 a.m., the proprietor of a jewelry store in Forest Park was opening his business with the help of his mother and his wife. His infant twins were also with him. Sharp entered the store almost immediately, wearing a black mask and accosting the proprietor with a handgun. He dragged the proprietor from the back room to the showroom and tied his hands behind his back. The store was equipped with an alarm system that alerted when the door was opened. Within a few moments, the alarm company telephoned, as was its custom, so that the proprietor could answer and give his secret code. The security company called twice, but because Sharp would not allow the owner or his family members to answer the telephone, the alarm company notified the police.

Sharp showed a gun and asked, “Where’s the money?” When told that it was in the owner’s pocket, in his family’s purses, and in the cash register, Sharp took about $400 from the owner’s pocket and also removed cash from the register and the women’s purses, all while pointing the gun at each of them. He then instructed the owner’s wife to open the safe. He grabbed one of the babies, held the gun to his head, and threatened to shoot him if the owner’s wife did not do as instructed. Because the owner’s wife was so nervous, and because she rarely opened the safe, she had difficulty opening it. The owner begged Sharp to let him do it, and Sharp acceded, dragged the owner to the safe, and cut the ties binding his wrists so that he could open it. At that point, while Sharp’s back was turned, the owner noticed the police outside. Sharp removed some items from the safe and fled through the parking lot, dropping items on the way. He jumped off an embankment, injuring his leg. He then ran toward a passing car, pointing his gun at the police officers.

Sharp collided with the hood of the car while attempting to shoot at the officers. The officers attempted to shoot him in return but missed. The car stopped, and Sharp opened the driver’s side door, entered the car, and attempted to pull the driver out as he was getting in. The driver, however, was wearing a seat belt and kept a firm grip on the steering wheel. Sharp laid his upper body across the driver’s lap and pressed his handgun against the passenger’s thigh. He pulled the trigger, but nothing happened. He then told the driver to “go,” but she did not. She pressed herself back in her seat and held her hands up. The police reached the car and tried to pull Sharp out. One police officer pressed his gun against Sharp’s neck, telling him repeatedly to drop the gun. When Sharp refused, the driver grabbed his arm and twisted it so that the barrel of the gun pointed to the floorboard. A police officer then wrested the gun from Sharp’s hand. He was still fighting when the police had him on the ground. In the pack he was carrying, the police found the mask and money. Duct tape was found on his person. The gun, a Colt .45 semi-automatic handgun, was loaded with a live round in the chamber and additional rounds in the clip.

1. Sharp contends the evidence was insufficient to support his conviction for kidnapping the proprietor, because the State failed to prove the element of asportation. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Sharp argues that moving the victim from one part of the store to another was “minimal” and, relying upon the special concurrence in Peterson v. State, 212 Ga. App. 31, 33-34 (441 SE2d 267) (1994) (Blackburn, J., concurring specially), he argues that Georgia law requires more than slight asportation. We do not agree.

As the special concurrence in Peterson acknowledges, “the distance which [a] kidnapper abducts the victim is without legal significance under Georgia law. [Cit.]” Id. at 33 (Blackburn, J., concurring specially). “Shoving” a victim without moving the victim from one location to another, or merely pushing a victim to the ground, is not sufficient to satisfy the element of asportation. Woodson v. State, 273 Ga. 557, 558, n. 1 (544 SE2d 431) (2001). But moving the victim from a seated position on a concrete block to the dirt behind the concrete block was held to be sufficient to show asportation in Love v. State, 190 Ga. App. 264-265 (1) (378 SE2d 893) (1989). See Woodson, supra at 558. Here, Sharp dragged the proprietor from the back door of the back room to the front door of the showroom. This was sufficient to show the element of asportation.

Sharp also argues that even if the State showed asportation, the kidnapping merged into the armed robbery as a matter of fact. But the only authority cited by Sharp, Chambley v. State, 163 Ga. App. 502, 504 (2) (295 SE2d 166) (1982), does not support his contention. In Chambley, this court held that the kidnapping did not merge with the robbery. Id. The same is true here. Kidnapping is not a continuing crime; it was completed when the victim was moved from one room in the store to another. Robinson v. State, 210 Ga. App. 175,176 (2) (435 SE2d 466) (1993). The armed robbery occurred subsequently.

2. Sharp maintains that the evidence does not support his conviction for the armed robbery of the driver of the car. Armed robbery is committed when, with intent to commit theft, one takes property from another’s person or immediate presence by use of an offensive weapon. OCGA § 16-8-41. Sharp argues that he never succeeded in taking the car from the driver, and “[u]ntil a would-be robber takes property from his victim, no armed robbery has occurred.” But viewed to support the verdict, the evidence presented showed that when Sharp climbed into the driver’s seat of the car and placed himself across the driver’s lap and told her to “go,” the driver removed her hands from the wheel, held them up in the air, and pushed back in her seat. “Under OCGA § 16-8-41 the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion. It is not required that the property taken be permanently appropriated.” (Citations omitted.) State v. Watson, 239 Ga. App. 482, 484 (2) (520 SE2d 911) (1999). Here, as in Watson, it is, perhaps, a close question. But focusing again on whether complete dominion of the property shifted from the driver to Sharp, the jury was authorized to conclude that when the driver released her grip on the steering wheel, raised her hands, and leaned back, the armed robbery was completed.

3. Sharp asserts that even if his conviction for this armed robbery is affirmed, his conviction for aggravated assault of the passenger must be reversed because he cannot be convicted and sentenced for both. This assertion is without merit. “Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as a cash drawer.” (Citation and punctuation omitted.) State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989). Sharp’s action “against each individual was a separate crime and could not merge in fact or law.” (Citation omitted.) Id. He committed armed robbery against the driver and a different crime against the passenger. He held the gun against the passenger’s thigh and actually pulled the trigger, although the gun did not fire. The trial court did not err in refusing to merge these convictions.

4. Sharp contends he should not have been convicted of possessing a firearm during the commission of the crime because his gun was inoperable. He argues that the question of whether a loaded but inoperable handgun is a “firearm” within the meaning of OCGA § 16-11-106 has not been decided by the appellate courts in Georgia, but authority exists from other jurisdictions holding that such a handgun is not a “firearm.”

Sharp’s argument fails for several reasons. First, although several witnesses speculated about why the gun failed to fire, no evidence was presented that the gum itself was “inoperable.” The testimony was simply that the gum “didn’t work at that particular time.” It is possible that the gun’s failure to discharge may have been attributable to some error on the part of Sharp. Second, even if the gun was actually inoperable, no evidence was presented showing when it became inoperable. A police officer testified that although he was not certain, he believed a part of the gun had fallen off. This could have happened at any time, including when Sharp jumped off the embankment or when he hit the car. No evidence showed that it was inoperable when he terrorized the proprietor and his family in the store. A rational trier of fact would be authorized to find that the weapon was operable during the armed robbery of the jewelry store. Third, the language of the statute does not require the weapon to be operable. Indeed, he would have been just as guilty of this charge had he never even attempted to fire the gun.

Decided May 22,2002.

Alan J. Roman, for appellant.

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

5. As best we understand Sharp’s final enumeration of error, he complains that the trial court abused its discretion in sentencing him to the maximum allowed on all charges even though his handgun was inoperable. But all the sentences are within the statutory limits for each of the crimes for which Sharp was convicted. “We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in OCGA § 17-10-6.” (Citations and punctuation omitted.) Brown v. State, 242 Ga. App. 347, 350 (529 SE2d 650) (2000).

Judgment affirmed.

Eldridge and Ellington, JJ, concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A02A0283.
    GARDNER v. THE STATE.
    (566 SE2d 329)
   Eldridge, Judge.

Following a bench trial in the Superior Court of Decatur County, Christopher D. Gardner was found guilty of manufacturing marijuana and sentenced to ten years probation. He appeals his conviction and claims that (1) the trial court erred in denying his motion to suppress because investigating officers improperly intruded on his property without a warrant; and (2) the trial court improperly found that refusing to consent to a search of one’s property may be used as a factor in establishing probable cause for a search warrant to issue. Upon review, we affirm.

In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court, and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. “Furthermore, in considering the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.”

Here, the record shows that a task force engaged in marijuana identification and eradication was deployed in Decatur County. Both a “ground team” and a helicopter “air team” were involved. On the date in question, the two teams met at an airport in Thomasville. The air team was deployed first, while the ground team waited for instruction. At approximately 10:50 a.m., the helicopter team radioed to the ground team that marijuana plants had been found. As Decatur County Deputy Sheriff T. Willis of the ground team testified, the air team

gave us directions how to get there, told us that it was off of Bethel Road and onto, not too far off of Bethel Road onto a dirt road. They gave us the general location, description of the area and we found them to be hovering over 929 Hatcher Road which is the residence of the Defendants. The information that the air team relayed back to the ground team was that they had found approximately 15 plants growing in close proximity behind the residence and it was a double wide trailer.

The ground team drove up the Gardners’ driveway in order to access the marijuana located in an open field approximately 200 feet immediately behind the residence and outside their property; the Gardners’ residence was the only one close to the marijuana plants. Karen Gardner was standing in the driveway. Three members of the team exited their vehicle and walked the 200 feet through the back of the Gardners’ property in order to reach the marijuana plants, which plants were specifically located via the air team’s radioed directions. Ultimately, fourteen marijuana plants were found; several of the plants were still in five-gallon black plastic pots awaiting planting.

While other members of the ground team located the marijuana, Deputy Willis stayed behind and approached Mrs. Gardner, who was visibly upset.

I wanted to explain to her what was going on, what the situation was, and I explained to her she was not under arrest although I did want her to stay there at the residence until we found out what was going on. I advised Mrs. Gardner that the helicopter flying overhead had found some marijuana plants, what we believed from the air to be marijuana plants, growing behind her residence and that was our whole reason for being there and that was what we were investigating.

After talking with Karen Gardner, Deputy Willis attempted to join the rest of the team in the open field behind the Gardners’ residence:

I began walking towards where the other ground crew members had gone to where the plants were located. And as I started walking down, they were already heading back, this being Jennings White, Mike Murphy, and one or two other gentlemen that I don’t remember their names, but they were coming back. I specifically remember Mike walking back up towards the residence and instructing me that he had already photographed the plants and they had them in a paper sack and they had already bagged them up.

While walking back from the field behind the Gardners’ residence, Deputy Willis saw in plain view a black plastic pot with a marijuana plant growing in it. The pot was in a shed, completely open on two sides, which was attached to a wooden deck connected to the back of the Gardners’ mobile home. Deputy Willis testified at the motion hearing that “The plant that I found was in plain view there at the edge of the floor of the shed. . . . [Y]ou could see it just from standing in the back yard.” A photograph of the open shed was introduced at trial, and the deputy testified that “it was sitting right there (indicating [picture of open shed taken from backyard]) on the beams that extend from the shed.” The deputy also observed in the open shed numerous gardening tools, five-gallon black plastic pots, and a fifty-pound bag of fertilizer.

Shortly thereafter, Christopher Gardner drove up to the residence. Both Gardners refused consent to search their residence. Christopher Gardner was subsequently arrested for possession of marijuana. Deputy Willis then sought and obtained a search warrant for the Gardners’ mobile home based on: the marijuana plant observed in plain view in the open shed; the nexus between the black plastic pots in the field and the black plastic pots in the shed; the proximity between the residence and the marijuana plants found in the open field 200 feet immediately behind the house and contiguous thereto; and the Gardners’ refusal to permit a consent search of their residence. Recovered during the search were marijuana, marijuana seeds, and books on growing marijuana.

Christopher Gardner filed a motion to suppress. With regard thereto, the trial court found that

The officers had a right to be in the place that they were in the investigation of that crime being committed in their presence. And the Court further finds that the lack of cooperation or refusal to consent to a search is a legitimate fact which can be communicated to a Magistrate in the securing of a search warrant and which can be taken into account with other factors when determining probable cause. The Court finds that there was sufficient probable cause and the motion to suppress is DENIED.

Held-.

1. Gardner contends that the ground team’s entry onto his property was a warrantless intrusion unsupported by probable cause and in violation of his Fourth Amendment rights; thus, Deputy Willis was not legally on the property in order to observe the marijuana plant in plain view in the shed. We disagree.

No Fourth Amendment interests were triggered simply because the ground team entered onto Gardner’s property. “The officers needed no warrant to approach the appellants’ house to make investigative inquires.” In this case, the ground team had reasonable suspicion — if not probable cause, itself — to perform an investigation of the suspected marijuana plants discovered in an open field immediately behind and contiguous to Gardner’s property. Gardner does not claim that the open field was part of his curtilage, and, thus, no search warrant was necessary therefor. Gardner’s property simply provided ground access to the open field in furtherance of a legitimate investigation based on reasonable articulable suspicion of a crime being committed in the officers’ presence, i.e., manufacturing marijuana.

Accordingly, whether the area entered in fact was constitutionally protected under the Fourth Amendment, the conduct of the [officers] in entering onto private land through a [driveway] and [walking 200 feet to an open field] to investigate [suspected marijuana plants] was a legitimate intrusion and not unreasonable conduct within the meaning of the Fourth Amendment.

Further, there is no evidence that a search was made of the cur-tilage surrounding Gardner’s trailer, as Gardner asserts by brief. Neither Gardner nor his wife testified, and no factual basis was offered in support of this assertion. The trial court determined to the contrary, and since such determination was based on testimony from several of the officers involved, it was not clearly erroneous. Absent any such search, the Fourth Amendment is not implicated, because

[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Consequently, a police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point.

Here, the evidence shows that, after the plants in the open field were legitimately seized and while walking back from the field where the officers had a right to be, the marijuana plant in the Gardners’ open shed was seen in plain view, as were gardening tools, five-gallon black plastic pots similar to the ones in the open field, and a fifty-pound fertilizer bag. According, denial of the motion to suppress on the ground enumerated above was not error.

2. It was error for the magistrate to consider the Gardners’ refusal to consent to a search of their residence as part of the basis for the issuance of the search warrant in this case. Refusing consent to search was the Gardners’ right, and “[w]e decline to view the exercise of a constitutional right as a factor in determining probable cause.” Thus, the trial court’s determination that refusal to consent to a search may be taken into account when determining probable cause is error as a matter of law.

Decided May 22, 2002.

Gilbert J. Murrah, for appellant.

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

That said, however, a review of the affidavit in support of the warrant request demonstrates an ample factual basis for the warrant to issue absent the Gardners’ refusal to consent, which factual basis consisted of the majority of the facts outlined above. Under the “totality of circumstances” review utilized on appellate review, we find that “the magistrate had a substantial basis for concluding that probable cause existed.”

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       Gardner’s co-defendant wife, Karen Gardner, was also found guilty, but an appeal on her behalf is not before us.

        Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996).

        Watts v. State, 246 Ga. App. 367, 371 (4) (541 SE2d 41) (2000).

       Karen Gardner was permitted to remain with her two children.

       See, e.g., Hydroponics for Dummies and How to Grow Marijuana.

        Stewart v. State, 236 Ga. App. 888 (513 SE2d 778) (1999); Pickens v. State, 225 Ga. App. 792, 793 (484 SE2d 731) (1997); Jenkins v. State, 223 Ga. App. 486, 487-488 (1) (477 SE2d 910) (1996); State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989).

        Evans v. State of Ga., 214 Ga. App. 844, 845 (1) (449 SE2d 302) (1994), vacated and remanded on other grounds, 217 Ga. App. 646 (458 SE2d 859) (1995). See also Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650) (1981); Strozier v. State, 244 Ga. App. 514, 515 (535 SE2d 847) (2000).

       OCGA §§ 16-13-30 (j) (1); 16-13-21 (24).

        Perry v. State, 204 Ga. App. 643, 644 (2) (419 SE2d 922) (1992).

        Thomas v. State, 203 Ga. App. 529, 534 (3) (417 SE2d 353) (1992).

        Strozier v. State, supra at 515.

       In an unrelated claim asserted under this same enumeration of error, Gardner apparently contends that he could not be arrested in his yard without a warrant based on the Supreme Court’s holding in Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996). However, “[s]ince [the deputy] did not enter his home and [Gardner] had [not entered] it before he was placed under arrest, Carranza, supra, is not implicated.” Goddard v. State, 244 Ga. App. 730, 733 (1) (536 SE2d 160) (2000).

        Schmidt v. State, 188 Ga. App. 85, 88 (372 SE2d 440) (1988).

       (Citations and punctuation omitted.) McAlister v. State, 236 Ga. App. 609, 610 (3) (512 SE2d 53) (1999).


author: Smith, Presiding Judge.

text:
    A02A0342.
    BALLEW v. SUMMERFIELD HOTEL CORPORATION et al.
    (565 SE2d 844)
   Smith, Presiding Judge.

Winifred Ballew appeals from the grant of summary judgment against her in the action she brought against Summerfield Hotel Corporation d/b/a Sierra Suites and Atlanta Buckhead Sierra Associates, L.P. (collectively “the hotel”). Ballew brought suit to recover damages for personal injury suffered when she tripped and fell in the third-floor elevator lobby of the Sierra Suites Atlanta-Brookhaven hotel while a guest there. She raises eight enumerations of error, reciting various reasons she contends the trial court erred in granting the defendants’ motion for summary judgment. Although we agree with Ballew that certain fact questions remain, we find that they are not material. Because we conclude that Ballew has not shown that the hotel had superior knowledge of any defect, we affirm the grant of summary judgment to the hotel.

The record shows that Ballew, who was then 72 years old, traveled to Atlanta from Illinois to visit her daughter. On the date of the accident, when Ballew walked from her third-floor room to the elevator, she tripped and fell, injuring her shoulder.

1. In several enumerations of error, Ballew contends the trial court erred in granting summary judgment because questions of fact remained for jury resolution. She points specifically to questions of whether the lighting in the elevator lobby was inadequate and whether the carpeting near the elevator was “loose” or “bumpy.” Bal-lew is correct in her assertion that questions of fact remain as to these matters. Ballew presented an affidavit from Owen Posey, an electrical engineer specializing in illumination, in which Posey stated that he inspected the elevator lobby and took light measurements. He observed “numerous bumps and frayed areas” in the carpet and concluded that the lighting “was seriously below” that prescribed by the Illumination Engineering Society guidelines for hotel corridors. In addition, in Posey’s opinion, the color of the carpeting reduced visibility further. Posey concluded that the combination of the inadequate lighting and the color and pattern of the carpet made it difficult for a person of Ballew’s age to see the bumps and frayed areas in the carpet.

The hotel submitted the affidavit of Alysan Niles, who was the hotel’s general manager at the time of Ballew’s fall. In her affidavit, Niles stated that she was unaware of any defects in the floor or carpeting or of anyone tripping in the elevator lobby where Ballew fell. Niles testified on her deposition that she got down on the floor after Ballew fell, touched the carpet in front of the elevator, and “didn’t see or feel anything unusual. Everything seemed fine.” At the very least, then, a question of fact exists as to the condition of the carpet.

2. But Ballew was required to show that the hotel knew about any defect in the carpet.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

(a) Actual knowledge on the part of the hotel was not shown. The hotel was approximately a year old when Ballew fell, and neither the carpeting nor the lighting had been worked on or changed since the hotel opened. The hotel had not received any complaints about either the carpet or the lighting. It was not aware of anyone falling in that location.

(b) “We have noted, however, that failure to discover the defect through the exercise of reasonable care in inspecting the premises gives rise to constructive knowledge where the owner or occupier had an opportunity to discover the dangerous condition and to remedy it.” (Punctuation and footnote omitted.) Christensen v. Overseas Partners Capital, 249 Ga. App. 827, 829 (1) (549 SE2d 784) (2001). And the duty to be diligent in making the premises safe includes a duty to inspect to discover conditions that could possibly be dangerous. Robinson, supra at 740. “An owner/occupier is on constructive notice of what a reasonable inspection would reveal.” (Footnote omitted.) Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000).

Since it is undisputed that neither the carpeting nor the lighting had been worked on since the hotel opened, a jury could infer that the defects, if they existed, could have been there for a sufficient time for an inspection to discover and correct them. Jackson, supra. But the hotel presented evidence that although no written policy existed with regard to inspections, routine inspections were, in fact, performed on a daily basis, and no defects were found. Ballew therefore has not shown that the hotel had constructive knowledge of any alleged defect.

3. In addition, Ballew’s own deposition testimony shows that the alleged defect was extremely difficult to see. Ballew herself testified that she did not observe any “bumps” in the carpet before her fall, and even after she fell she did not detect a problem until she began feeling the carpet with her hands. The hotel’s manager got down on the floor and touched the carpet in the area where Ballew fell and did not notice any bumps. “Constructive knowledge can only be inferred with proof that the proprietor or its agent could have easily discovered and corrected the alleged hazard. [Cit.]” Lindsey v. Ga. Bldg. Auth., 235 Ga. App. 718, 720 (1) (509 SE2d 749) (1998). No such proof was presented. In fact, the evidence shows otherwise. If the alleged defect was difficult for Ballew to see, she could not establish that hotel employees could have seen it easily and removed it. See Padilla v. Hinesville Housing Auth., 235 Ga. App. 409, 411-412 (509 SE2d 698) (1998) (no constructive knowledge shown when plaintiff cannot show that inspection would have detected alleged defect).

4. Finally, Ballew has not shown that she was without knowledge of the defects she alleges, which is the second prong of the Robinson test. Ordinarily, in premises liability cases, the plaintiff need not “shoulder the burden” on this issue until the defendant shows that the plaintiff “intentionally and unreasonably exposed” herself to a danger of which she either knew or in the exercise of ordinary care should have known. Robinson, supra at 749. But it is well established that “a claim involving a static defect differs from other slip and fall cases. When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citations and punctuation omitted.) Wood v. Winn-Dixie Stores, 244 Ga. App. 187, 189 (534 SE2d 556) (2000). In this case, it is clear that Ballew traversed the area in which she fell at least one time previously, if not more. Ballew had been treated previously for memory loss, and she testified on her deposition that she did not know when she arrived at the hotel or how many days she had been there when she fell. Ballew testified that she spent the entire day in her room, “smoking and watching TV,” because her daughter objected to smoking and she “wanted to get all of the smoking in” before she met her daughter. She conceded in her testimony that it was “possible” she may have traversed the area several more times. Clearly, however, she traversed the area when she first arrived at the hotel. Because this was a static defect and Ballew had traversed the area at least once before her fall, the law presumes that she knew or should have known of the alleged defect. Febuary v. Averitt Properties, 242 Ga. App. 137, 140 (2) (a) (528 SE2d 880) (2000).

Decided May 22, 2002.

Marci R. Rosenberg, for appellant.

Misner, Scott & Grate, Neal C. Scott, for appellees.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.


author: SMITH, Presiding Judge.

text:
    A02A0577.
    WILSON v. THE STATE.
    (565 SE2d 847)
   SMITH, Presiding Judge.

John Wilson, an inmate in the Clayton County Detention Center, was charged with simple battery on two correction officers. A jury found him guilty on both counts. Wilson appeals, and in his sole enumeration of error he contends the trial court erred in giving an improper and incomplete charge on justification. We find no error, and we affirm.

Wilson insisted upon representing himself at trial until the morning of trial, when he asked if he could get a lawyer “right now.” The State objected to a continuance, and the trial court sustained the State’s objection, noting that it had gone over with Wilson the benefits of having a lawyer on “at least two other occasions” and that Wilson had “insisted” he wanted to represent himself.

The evidence presented at trial shows that upon returning to his housing unit from the infirmary, Wilson was informed that he would be assigned to a new, unoccupied cell in Section Six of the detention center. Wilson refused, stating he had enemies in that section. He was asked to name these enemies, but Wilson simply pointed in the general direction of Section Six. Wilson then demanded to speak with a sergeant, and the correction officer told him he could speak with a sergeant if he would go to his cell. When Wilson again refused, the correction officer called for backup from another section. When the assisting officer arrived, Wilson continued to refuse to enter his assigned cell, instead walking away toward another section. The two officers then took Wilson’s arms to direct him into Section Six, and Wilson spun around and charged at one officer, attempting to take him to the ground, and striking him in the right side, causing bruises. At that point, the assisting officer wrestled Wilson to get him off the first officer, sustaining a torn hamstring in the process. Eventually, the officers succeeded in placing Wilson in handcuffs.

Wilson testified that he did not initiate contact with the officers ' and that he never touched them, but merely resisted when the officers initiated contact. He denied that the officer told him he could speak with a sergeant if he would enter his assigned cell. He denied becoming violent, charging the officer, or attempting to take him to the ground.

After the close of evidence, the trial court informed Wilson during the charge conference that it would give a jury instruction on justification. After the full jury charge was given, the trial court inquired whether Wilson had any exceptions to the charge, and Wilson objected only because he “was wondering” if the court “could better stress the burden of proof on the District Attorney’s side a little better.” The court responded that it had given “as good a charge on presumption of innocence as I know exists,” and Wilson responded: “Okay.” When the court asked if there was anything else, Wilson responded that there was not. The jury returned a verdict of guilty on both counts.

1. It is well established that if a defendant fails to object to a charge when asked if he has any objections, and fails to reserve objections, he has waived appellate review of the charge as given. Palmer v. State, 270 Ga. 278, 279 (2) (507 SE2d 755) (1998). The only exception to this rule is set forth in OCGA § 5-5-24 (c): when a substantial error in the charge exists that is harmful as a matter of law, it may be reviewed regardless of whether objection was made. Medina v. State, 234 Ga. App. 13, 15 (2) (505 SE2d 558) (1998).

In order to satisfy this standard, appellant must show that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. Nothing is presented for consideration on appeal unless a gross miscarriage of justice attributable to the jury charge is about to result.

(Citations and punctuation omitted.) Id. As in Medina, we find no substantial error here that would require review under this exception. In fact, as discussed infra, we find no error at all.

2. Now represented by appointed counsel, Wilson contends that although the trial court gave a charge on justification, as promised, the charge was based only upon OCGA § 16-3-21, which is not adjusted to the evidence. Wilson argues that the charge should have been based upon the defense of coercion set forth in OCGA § 16-3-26. This contention is without merit.

Wilson did not request a charge on OCGA § 16-3-26. It is true, as alleged by Wilson, that a trial court is required to charge the jury on the defendant’s sole defense, even without a written request, if some evidence has been presented to support the charge. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Here, no such evidence was presented.

OCGA § 16-3-26 defines the defense of coercion: “A person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.”

The contours of the defense of coercion are described in Chambers v. State, 154 Ga. App. 620, 624 (269 SE2d 42) (1980), which in part shapes it thusly: Coercion involves the involuntary performance of a criminal act under fear of threats or menaces involving a direct danger to life or great ' bodily injury where the danger is abated only by the performance of the criminal act. The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.

(Citations and punctuation omitted.) Slater v. State, 185 Ga. App. 889-890 (2) (366 SE2d 240) (1988). Here, as in Slater, no evidence was presented of “present and immediate violence” from other inmates, and the defense of coercion was not applicable. The State showed that the assigned cell had no other occupant. The officers testified that had Wilson complied with the officers’ order to enter the cell, he would have been permitted to speak with a sergeant about his concerns. See also Holder v. State, 194 Ga. App. 790, 794 (4) (391 SE2d 808) (1990).

Decided May 22, 2002.

James W. Bradley, for appellant.

Keith C. Martin, Solicitor-General, Matthew M. McCord, Assistant Solicitor-General, for appellee.

3. Finally, the defense of coercion was not Wilson’s sole defense. Wilson testified first that he did not commit a battery at all. He also testified that the officers attacked him and that if he acted at all, it was in self-defense. Coercion would actually be the third defense asserted by Wilson. But in fact, Wilson failed to establish the necessary foundation for a defense of coercion. “[T]o establish an eviden-tiary foundation for an instruction on an affirmative defense, the defendant must admit to the crime charged. [Cit.]” Turner v. State, 245 Ga. App. 294, 296 (4) (b) (536 SE2d 814) (2000). Wilson denied committing the crime, saying that he did not charge at the officer or become violent. Since a charge on coercion was not adjusted to the evidence presented, it was not error for the trial court to fail to charge on coercion.

Judgment affirmed.

Eldridge and Ellington, JJ., concur.


text:
    A02A1442.
    SPRATLING v. THE STATE.
    (565 SE2d 839)
   Eldridge, Judge.

A Clayton County jury found Kenneth Spratling guilty of criminal use of an article with an altered identification mark (three counts), carrying a concealed weapon (three counts), possession of a firearm during the commission of a crime (one count), and misdemeanor possession of marijuana (one count), which charges arose when an investigative stop and subsequent search of the car in which Spratling was a passenger revealed a hidden cache of automatic weapons, serial numbers removed, and a baggie of marijuana. He appeals and, in his sole enumeration of error, claims that the evidence was insufficient to support his conviction. We disagree and affirm.

Spratling and his two co-defendants, Quinton Thurman and Daniel Favors, were stopped in a dark gray Volvo pursuant to an investigation related to an alleged aggravated assault. Appellant Spratling was sitting in the front passenger seat, Thurman was driving, and Favors was sitting in the rear. At the time the investigating officer initiated the stop, he could see “[a] 11 three subjects start! ] moving frantically inside.” The officer testified that, “All three of them were turned to the sides, ducking underneath the seats, it’s indicative, in my experience, of either hiding guns, drugs, usually it’s somebody up to no good that’s got something in the car they don’t want me to know about.” Upon the officer’s approach, “All three were very nervous, very anxious.” When pressed further, the officer explained, “Theirs went a little bit beyond what the, most normal nerves of the average traffic stops I do, people are shaken, their speech is really broken up from being nervous. These guys were more apprehensive, very, I don’t want to say combative, but maybe uncooperative would be a better word.” Thereafter, a firearm was seen in plain view under the front passenger seat, where appellant Spratling was sitting; a search of the car was conducted. Three Uzi-type 9 millimeter automatic weapons, along with four automatic handguns, were found hidden in various locations in the cab of the Volvo: under the driver’s seat, under the passenger’s seat, under a seat cushion in the rear seat, and in the rear pocket of the front passenger seat. The identifying serial number on each weapon had been removed. Over 300 bullets were recovered from the weapons, and a case of 9 millimeter ammunition was seized from the trunk of the car. An additional 9 millimeter clip was found in the front seat console, along with a plastic bag containing 18 small bags of marijuana.

At trial, co-defendant Thurman testified in his own defense. During the course of his testimony, he admitted that he owned two of the weapons found hidden in his car; he stated that appellant Sprat-ling owned the other five weapons and the marijuana. No evidence was introduced in contradiction. Held,-.

Although OCGA § 24-4-8 provides that the uncorroborated testimony of an accomplice is insufficient to support a felony conviction, slight evidence of corroboration will satisfy the statute. The corroborating evidence may be circumstantial. And “[w]hile mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” The sufficiency of corroborating evidence should be peculiarly a matter for the jury to determine.

Decided May 22, 2002.

Brown & Gill, Angela Y. Brown, for appellant.

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

In this case, the testimony of Spratling’s accomplice was corroborated by testimony from the investigating officer that Spratling, as well as the co-defendants, was attempting to hide weapons and contraband in the car; indeed, the location of the various hidden weapons throughout the cab of the vehicle supports this testimony. In addition, one weapon was located at Spratling’s feet, and the marijuana discovered in the front seat console was within reach of Sprat-ling. Spratling’s “very nervous, very anxious” behavior also lends support to the conclusion that he was involved in the crime. “If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient.”

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

       The jury acquitted Spratling on four counts of aggravated assault and four counts of terroristic threats.

        Leonard, v. State, 228 Ga. App. 792, 797 (492 SE2d 747) (1997).

       (Citations and punctuation omitted.) Mosier v. State, 223 Ga. App. 75, 76 (476 SE2d 842) (1996).

        Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997).

       (Citation, and punctuation omitted.) Smith v. State, 222 Ga. App. 366, 367 (2) (474 SE2d 272) (1996).


text:
    A02A1485.
    CAMPBELL v. THE STATE.
    (565 SE2d 834)
   Eldridge, Judge.

A Clarke County jury found Kenyatta L. Campbell guilty of possession of marijuana with the intent to distribute. He appeals, claiming that, based on Miranda, the trial court erred in denying his objection to the admission of an audiotape, recorded without his permission, of statements Campbell made while in the back of a patrol car. Because Campbell’s statements were not the result of an in-custody interrogation and permission is not required in order for the police to tape record unsolicited statements made in the back of a patrol car, we affirm.

“This court’s responsibility in reviewing a trial court’s ruling on a motion to suppress is to assure there was a substantial basis for the decision, and the evidence is construed to uphold the findings and judgment of the trial court.” Viewed in such light, the evidence of record shows that Athens-Clarke County Police Officers Hofmann and Clark received explicit information from a reliable informant about drug sales occurring beside a parked, gray Oldsmobile at a known drug sale location on Pauldoe Street in Athens. The officers pulled their individual, marked patrol vehicles behind such car. Campbell and two other men were standing beside the Oldsmobile. At the time Officer Hofmann exited his vehicle, he activated a video-camera attached to his vehicle. The visual field of the camera was trained toward the front of the patrol car. Officer Hofmann’s remote audio capability was damaged and did not work. However, a microphone mounted in the interior of the police vehicle was working and able to record conversations.

Immediately upon the officers’ arrival, Campbell was detained in the back of Hofmann’s patrol car while investigative questioning of the other two men ensued. Thereafter, Hofmann went to the patrol car and asked Campbell if there were any drugs in the Oldsmobile; Campbell answered no. Hofmann then asked for permission to search the vehicle; Campbell refused consent. The audiotape recorded this exchange.

Hofmann and Clark then determined that, under the totality of the circumstances including information from the reliable informant and the corroboration from their investigation, probable cause existed for a warrantless search of the Oldsmobile. Marijuana and $890 in cash were seized during the search. Thereafter, Campbell was arrested.

However, at the time the decision was made to search the car and throughout the course of the search, Campbell — alone in the police vehicle — engaged in a veritable rant that included, inter alia, references to “weed” and an amount thereof; this, before the marijuana was even located by the police. In addition, Campbell made several references to the Oldsmobile as “my car.” Campbell’s numerous obscene comments, imprecations, insults, and admissions were unsolicited, outside police presence, and recorded on the audiotape.

At trial, both Officer Hofmann and Officer Clark testified that Campbell was not under arrest at the time he was initially detained in the patrol car. Clark testified that he placed Campbell under arrest after the drugs were found, which occurred not long after Campbell was initially detained. Campbell did not testify at trial. No evidence was introduced in contradiction of the officers’ testimony. Over a pretrial objection that the audiotape was without probative value and that “there were no rights given,” the trial court found the tape recording admissible. Held:

1. By brief, Campbell concedes that he was not under arrest when he was placed in the back of the patrol car, but maintains that such action placed him in “custody” for purposes of Miranda, making Officer Hofmann’s inquiry as to whether there were drugs in the Oldsmobile and his request to search an “in-custody interrogation” in violation of Miranda. We do not agree.

In determining whether a suspect was in custody for Miranda purposes, 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. Stansbury v. California, 511 U. S. 318[, 322] (II) (114 SC 1526, 128 LE2d 293) (1994).

(a) The question is “[whether] a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” The “reasonable person” in this situation “does not mean a person with a guilty conscience who knows as soon as they see the blue light that they will be arrested for matters known to them, but which are not as yet known to [the] police.” In that regard, a pre-arrest portion of the audiotape demonstrates that Campbell — apparently talking to himself — did not think his detention in the back of the patrol car was the equivalent of an arrest; instead, Campbell believed that the investigation would result in his release:

I wasn’t in it. I wasn’t in it. . . . I wasn’t in the car. Why are you going to search a car with nothing in it? Look like a clown, don’t you? Look like a real clown. How are you going to search a car with nothing in it? You’re stupid. You’re a stupid black man, stupid ass. Fuck you going to search a car with nothing in it? I wasn’t in it. — I wasn’t in the car. You got to let me out. ... I wasn’t even driving. . . . They ain’t got no choice but to let me go.

Campbell apparently held on to this belief until the time of his arrest. Thus, the evidence supports the conclusion that Campbell did not understand the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.

(b) Further, this Court has consistently refused to hold that briefly placing a detainee in the back of a patrol car in order to further a legitimate investigation constitutes “custody” for Miranda purposes.

Terry carefully notes that the limitations placed upon a brief investigatory stop depended on the facts and circumstances. They would have to be developed on a case-by-case basis, with the touchstone being always the reasonableness of the officer’s conduct. Noting that the officer remains particularly vulnerable during such a stop precisely because a full custodial arrest has not been effected, the officer must make quick decisions as to how to protect himself and others from possible danger. In determining whether an officer’s conduct during an investigatory stop was proper, the inquiry is not whether the officer could validly have acted similarly but whether under the same circumstances a reasonable officer would have done so.

It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. And, here, two officers initially arrived at a known drug sale location in order to conduct a narcotics investigation involving three male suspects, at least one of whom a reliable informant had identified as a drug dealer. Both officers stated that Campbell was not under arrest but was placed in the patrol car to further the investigation. “Under similar factual circumstances, this court has found that placing a person in the rear seat of a patrol car which has no interior door handles and from which there is no exit without the officer’s opening the door is not an arrest, but a justifiable momentary detention which is reasonable under the circumstances.” Accordingly, Campbell was not in custody at the time he was placed in the back of the patrol car, and Officer Hofmann’s legitimate investigative inquiry as to whether there were drugs in the Oldsmobile and his request for consent to search the car cannot be considered an “in-custody interrogation” so as to implicate Miranda.

(c) Finally, “[although Miranda makes no exception for exculpatory statements, for the purpose of determining the harmful or harmless nature of the error, whether a defendant’s statement is exculpatory or incriminating is material.” Here, Campbell’s denial that drugs were in the car was consistent with his defense that the drugs were not his and that he had no idea that drugs were in the car. His refusal to permit a search of the car was based on his claim that the vehicle belonged to his mother. This statement, too, was consistent with his defense. Given the exculpatory nature of the two statements at issue and the fact that such statements were consistent with Campbell’s defense, “we find no reasonable possibility that admission of the statement^] contributed to the verdict.”

2. “Miranda applies only to statements which result from an in-custody interrogation of the accused.” Officer Hofmann’s request for consent to search the Oldsmobile and his inquiry as to whether there were drugs in the car were the only two investigative questions asked on the lengthy tape at issue. The majority of the tape contains Campbell’s sua sponte statements to himself and to others in a crowd at the scene, which statements were made outside the presence of law enforcement. Thus, there was no Miranda issue with regard to the admission of these statements.

The only other conversation with a police officer contained on the tape concerned basic biographical booking information of the type which constitutes an exception to Miranda and about which Campbell does not complain.

3. We reject Campbell’s final contention that the police must obtain permission from a detainee before operating a tape recorder in the back of a police vehicle in order to record unsolicited, voluntary statements made without any engagement by law enforcement. Certainly Miranda does not apply because such statements are not the result of an in-custody interrogation. Further there is no reasonable expectation of privacy in the back of a police car so as to make applicable state statutes regulating eavesdropping, surveillance, or the interception of communication which invades the privacy of another. OCGA §§ 16-11-62 through 16-11-67.

Decided May 22, 2002.

William C. Bushnell, for appellant.

Kenneth W. Mauldin, District Attorney, Daniel F. Piar, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

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

       (Citation and punctuation omitted.) Jackson v. State, 252 Ga. App. 268, 269 (2) (555 SE2d 908) (2001).

       No claim of error is raised with regard to the propriety of the stop and the basis therefor.

       No claim of error is raised with regard to the propriety of Campbell’s detention in the back of the patrol car.

       No claim of error is raised with regard to the propriety of the warrantless search.

       (Citations and punctuation omitted.) Turner v. State, 233 Ga. App. 413, 415 (1) (a) (504 SE2d 229) (1998).

       (Punctuation omitted.) Id.

       (Citations and punctuation omitted.) Johnson v. State, 234 Ga. App. 116, 119 (2) (506 SE2d 234) (1998).

        Gunn v. State, 236 Ga. App. 901, 902 (1) (514 SE2d 77) (1999); Johnson v. State, supra; Turner v. State, supra at 414-415 (1) (a); Morrissette v. State, 229 Ga. App. 420, 421-422 (1) (a) (494 SE2d 8) (1997); Pless v. State, 218 Ga. App. 603, 605 (2) (462 SE2d 472) (1995); White v. State, 208 Ga. App. 885, 888 (2) (432 SE2d 562) (1993); Goodman v. State, 210 Ga. App. 369, 370-371 (436 SE2d 85) (1993); State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992); Arena v. State, 194 Ga. App. 883, 885 (1) (392 SE2d 264) (1990); Metheny v. State, 197 Ga. App. 882 (400 SE2d 25) (1990); Alexander v. State, 166 Ga. App. 233, 235 (2) (303 SE2d 773) (1983).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Citations, punctuation and emphasis omitted.) Pless v. State, supra.

        Satterfield v. State, 251 Ga. App. 141 (553 SE2d 820) (2001).

       (Citations omitted.) Pless v. State, supra.

       (Citation and punctuation omitted.) Metheny v. State, supra at 887 (1) (d).

       Id.

       (Citation omitted.) Hightower v. State, 272 Ga. 42, 43 (2) (526 SE2d 836) (2000).

       See Pennsylvania v. Muniz, 496 U. S. 582, 601 (110 SC 2638, 110 LE2d 528) (1990). See also Franks v. State, 268 Ga. 238 (486 SE2d 594) (1997).

        Burgeson v. State, 267 Ga. 102, 106 (3) (c) (475 SE2d 580) (1996).

       Id. at 106 (3) (d); Carr v. State, 267 Ga. 547, 551 (3) (480 SE2d 583) (1997).


text:
    A02A0115.
    MITCHELL v. STATE OF GEORGIA.
    (566 SE2d 24)
   Smith, Presiding Judge.

This case arises out of a judgment entered against Dorian Mitchell’s property in a civil in rem forfeiture proceeding. Mitchell contends that the trial court erred in denying his motion for an order to return his property. We find otherwise and affirm.

According to the undisputed facts, on October 13, 2000, the claimant, Mitchell, was a passenger in a vehicle stopped by police for allegedly avoiding a roadblock. Mitchell was placed under arrest for a drug violation. Thereafter, at the College Park Police Department, $5,400 was seized from Mitchell’s person. After the seizure of his property, Mitchell filed a notice of claim of ownership. On January 12, 2001, more than 60 days after the funds were seized, the Fulton County district attorney filed a complaint for forfeiture against the $5,400 in currency. Invoking the provisions of OCGA § 16-13-49, the State alleged that the currency was contraband found in close proximity to illegal contraband, that it was used or intended to be used to facilitate a violation of the Georgia Controlled Substances Act, and that it represented proceeds derived or realized from a violation of that Act.

When the complaint for forfeiture was filed with the clerk in Fulton County, Mitchell was a resident of Rockdale County and could not be served by the Fulton County Sheriff’s Department. The district attorney’s office did not immediately arrange for service by second original. See OCGA § 9-10-72. In late February, Mitchell’s counsel discovered the forfeiture action by searching through court filings. On February 28, on Mitchell’s behalf, his counsel submitted a standardized form entitled “Acknowledgment of Service” for filing “IN THE SUPERIOR COURT OF FULTON COUNTY[,] STATE OF GEORGIA!,] FAMILY DIVISION.” Counsel’s reason for designating “FAMILY DIVISION” in a civil forfeiture proceeding that had no apparent connection to the “FAMILY DIVISION” is unclear. This notarized document stated: “The undersigned Respondent hereby acknowledges service of the above Petition for Dorian Mitchell, and states that (s)he has received a copy of said Petition, and Respondent hereby waives any and all further notice, service, and issuance of process.” The document specified the correct civil action file number. Inserted in the blank next to Petitioner was “STATE OF GEORGIA” and as Respondent was handwritten: “FIVE THOUSAND, FOUR HUNDRED ($5,400.00) Dorian Mitchell, Claimant.” It reflected the address and telephone number of Mitchell’s attorney. The form, however, was not accompanied by a certificate of service addressed to the assistant district attorney whose name appeared on the complaint, verification, and summons.

On March 15, 2001, Mitchell filed his answer and counterclaim. On March 14, a certificate of service for that answer was mailed to the assistant district attorney assigned to the case. On April 19, Mitchell’s father accepted service in Rockdale County at Mitchell’s home address. Another entry of service form indicates that the action and summons were also served on Mitchell’s counsel on April 25.

At the hearing held on June 13, 2001, Mitchell insisted that he was entitled to the return of his property because the State failed to comply with the 60-day time requirement set by statute for conducting such a hearing. Mitchell claimed that the 60-day period commenced on February 28, the date that he filed the acknowledgment and waiver form with the clerk. The State, however, countered that service could not be waived and that actual service was required. The assistant district attorney informed the trial court that he had not been served with a copy of Mitchell’s acknowledgment form. No evidence showed otherwise.

The State argued that the 60-day period began on April 19, the date that service was accomplished by the sheriff through Mitchell’s father. Upon inquiry from the trial court, the clerk noted that the acknowledgment form appeared in the computer system but, inexplicably, it did not bear the clerk’s stamp. In light of that incongruity, the trial court observed, “I am not saying that you [Mitchell’s counsel] didn’t file it. I am saying that it was improperly stamped. . . .” Finding that the acknowledgment form could not be accepted as having been properly filed, the trial court denied Mitchell’s motion for the return of his property. Thereafter, the trial court applied OCGA § 16-13-49 and directed that Mitchell’s money be forfeited to the State.

In his sole enumeration of error, Mitchell contends that the trial court erred in denying his motion for the return of his property and in granting judgment to the State. Mitchell argues that the right to waive formal service belonged to him and the State cannot complain that he opted to exercise that right. See Jones v. Jones, 209 Ga. 861, 862 (76 SE2d 801) (1953). He asserts that having filed the forfeiture action, the State should have exercised due diligence in tracking its own case. Mitchell further argues that the trial court erred in finding that his acknowledgment of service “had not been filed,” since the clerk stated that the document was filed and recorded on the minutes.

In a civil forfeiture action, when a timely and sufficient answer has been filed, “a hearing must be held within 60 days after service of the complaint unless continued for good cause.” OCGA § 16-13-49 (o) (5). This 60-day requirement is mandatory. State v. Henderson, 263 Ga. 508, 510-511 (436 SE2d 209) (1993).

If the state fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the time limits specified in paragraphs (1) and (2) of this subsection, the property must be released on the request of the owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence.

OCGA § 16-13-49 (h) (3). Absent good cause, when the hearing is not conducted within the requisite 60-day period, a judgment of forfeiture must be reversed. Griffin v. State of Ga., 250 Ga. App. 93, 95 (1) (550 SE2d 138) (2001).

Here, the determinative question is whether the 60-day period commenced when Mitchell filed or attempted to file the acknowledgment form to waive service or whether the 60-day period began when Mitchell’s father was served with summons and process. For the reasons that follow, we find that it was the latter.

The provisions of the Civil Practice Act apply to forfeiture proceedings unless a specific, expressly prescribed rule set forth in the forfeiture statute conflicts with the CPA. See Rojas a State of Ga., 269 Ga. 121, 122 (2) (498 SE2d 735) (1998); OCGA § 9-11-81. Under the CPA, service of summons, unless waived, is required to notify a defendant of an impending action and his duty to respond within a specified time. Stamps v. Bank South, 221 Ga. App. 406, 408 (1) (471 SE2d 323) (1996). In the absence of either proper service of summons or a valid waiver thereof, the trial court lacks personal jurisdiction over the defendant. DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 626 (4) (193 SE2d 852) (1972). However, “[t]he defendant may acknowledge service or waive process by a writing signed by the defendant or someone authorized by him.” OCGA § 9-10-73. Moreover, despite the State’s contrary claim, a defendant can waive formal service of both the summons and complaint even before the complaint has been filed. Whitley v. Whitley, 232 Ga. 866, 867 (1) (209 SE2d 199) (1974).

The statutory provisions governing civil forfeiture proceedings do not expressly preclude or prescribe the use of an acknowledgment form to waive further notice, service, and issuance of process. The CPA, however, requires that,

[ejxcept as otherwise provided in this chapter, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall he served upon each of the parties.

(Emphasis supplied.) OCGA § 9-11-5 (a). Applying the provisions of the CPA in the context of a civil forfeiture proceeding, a defendant must serve a copy of any such waiver upon the State or, in the alternative, the State and the defendant can adhere to the waiver procedure set forth in OCGA § 9-11-4 (d) (3).

Here, it is undisputed that the form acknowledging service was not served upon the prosecutor. Nor does the record show that in order to avoid costs the State asked Mitchell to waive service of a summons as authorized by OCGA § 9-11-4 (d) (3). Since the acknowledgment of service filed by Mitchell in the “FAMILY DIVISION” was not served upon the prosecutor, it was ineffective to operate as a waiver of the requisite service. Accordingly, we find that the trial court did not abuse its discretion in finding that the 60-day time period did not commence until April 19, the date that Mitchell’s father was properly served with the complaint and summons. See Franchell v. Clark, 241 Ga. App. 128, 131 (3) (524 SE2d 512) (1999) (sufficiency of service is a factual question to be resolved by the trial court).

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

Decided April 30, 2002

Reconsideration denied May 23, 2002

Timothy T. Herring, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

       In his answer, Mitchell admitted the trial court’s jurisdiction over the property and the action, and he never claimed that OCGA § 16-13-49 (h) (2) was violated.

       Mitchell does not claim that the State did not sustain its burden of proving that the property was subject to forfeiture. Compare Jones v. State of Ga., 249 Ga. App. 64, 68 (3) (547 SE2d 725) (2001).


author: Miller, Judge.

text:
    A02A0089.
    TATE v. HUGHES.
    (565 SE2d 853)
   Miller, Judge.

When a nonresident’s operation of a vehicle in Georgia results in injury, Georgia law authorizes service of process on the nonresident by serving the Georgia Secretary of State (the agent for service appointed by law) and by sending a copy of the complaint and summons by certified mail to the nonresident at her known address. OCGA § 40-12-2. In the case at bar, the nonresident did not claim the certified mail at her local post office even though postal authorities had notified her of such. The question on appeal is whether this service was sufficient where the nonresident never denies having received notice that the certified mail was waiting for her at the local post office. We hold that it was sufficient and reverse the trial court’s order dismissing the complaint on grounds of insufficient service.

Dora Fowler Hughes, a Texas resident, admits that while negligently driving her motor vehicle on the wrong side of a road in Georgia, she struck a vehicle occupied by LaCherra Tate. Tate sued Hughes in Georgia for damages and perfected service under the Georgia Nonresident Motorist Act by serving the Georgia Secretary of State and by sending a copy of the suit by certified mail to Hughes at her Texas address. See OCGA § 40-12-2. Tate later dismissed the complaint without prejudice and timely refiled within six months. See OCGA § 9-2-61 (a).

In the renewal action, Tate followed the same statutory procedure for service, serving the Secretary of State and simultaneously sending a copy of the summons and complaint to Hughes at her Texas address by certified mail. This time, however, the certified mail went unclaimed, despite two notices to Hughes that the mail was at the local post office to be claimed. The mail was marked “UNCLAIMED” and returned to Tate.

Hughes answered the complaint, asserting insufficient service of process. She moved to dismiss on this ground, attaching her affidavit that she “was not personally served with a copy of this lawsuit nor did [she] receive a copy by certified mail.” She did not deny having received notices from postal authorities that the certified mail had been available for pickup. The trial court granted the motion because Hughes did not receive actual notice of the lawsuit.

We are compelled to reverse. A nonresident who operates a vehicle in Georgia is deemed to appoint the Georgia Secretary of State as her agent for service of process for any suit arising out of an accident in Georgia involving that operation of the vehicle. OCGA § 40-12-1 (a). Service may be perfected by serving a copy of the summons and complaint (along with a certificate of compliance) on the Secretary of State and immediately sending, by certified mail, a notice of such service and a copy of the complaint and process to the nonresident at her known address. OCGA § 40-12-2. Hughes freely concedes that “pursuant to the Georgia Non-Resident Motorist Act[, Tate] properly sent the summons and complaint to the Secretary of State, and then forwarded the same to [Hughes] by certified mail.” However, urging that the statute is to be strictly construed, Hughes argues that because she did not actually receive the unclaimed certified mail, service was fatally defective.

It is true that the statute is in derogation of common law and must be strictly construed and fully complied with before a Georgia court may obtain jurisdiction over the nonresident. Cheek v. Norton, 106 Ga. App. 280, 283 (1) (126 SE2d 816) (1962). It is not true that the statute requires that the nonresident actually receive the certified mail for service to be perfected. Where the statute is complied with, service is perfected “irrespective of whether the defendant actually received such notice. . . .” Mull v. Taylor, 68 Ga. App. 663, hn. 1 (23 SE2d 595) (1942). Thus, even where the certified mail is returned as “refused by addressee” or as “UNCLAIMED,” we have held that service is valid. See Bowers v. Winter, 228 Ga. App. 530, 531 (492 SE2d 296) (1997) (“UNCLAIMED”); Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 523 (2) (200 SE2d 146) (1973) (“Refused”); Mull, supra, 68 Ga. App. at 665 (“refused by addressee”).

Nevertheless, as pointed out by Hughes, we have also held that if the nonresident presents evidence that she never received notice from postal authorities that the certified mail was available for pickup, the trial court may find that service was invalid. See Roland v. Shelton, 106 Ga. App. 581, 583 (127 SE2d 497) (1962) (nonresident testified that she “did not receive any of the Post Office notices respecting the registered mail”); Stone v. Sinkfield, 70 Ga. App. 787, 790 (29 SE2d 310) (1944) (registered letter sent to general delivery; no evidence that postal authorities gave any notice to nonresident that they were holding the letter for pickup). That is not the case here. Hughes testified only that she “was not personally served with a copy of this lawsuit nor did [she] receive a copy by certified mail.” She never denied that she received the two notices from postal authorities that the certified letter was available to be claimed, which notices are referenced on the face of the envelope. Having strictly complied with the statute, Tate should not be made to suffer the consequences of Hughes’s neglect in collecting her mail. See Bowers, supra, 228 Ga. App. at 532; see also Dunn v. Royal Bros. Co., 111 Ga. App. 322, 325 (141 SE2d 546) (1965).

Decided May 23, 2002.

Northcutt, Edwards, Gordon & Feingold, Louis R. Feingold, Joseph H. King, Jr., for appellant.

Cooper & Makarenko, Gary M. Cooper, William Z. Meadows, for appellee.

The trial court erred in holding that Hughes’s failure to receive actual notice of the lawsuit invalidated service. Accordingly, we reverse the dismissal of the suit.

Judgment reversed.

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

       Hughes’s citation to Watts v. Kegler, 133 Ga. App. 231 (211 SE2d 177) (1974), is inappropriate, as this case is physical precedent only. Court of Appeals Rule 33 (a). Moreover, the nonresident in Watts presented evidence that she did not receive proper service. 133 Ga. App. at 233 (3).


text:
    A02A0129.
    THE STATE v. PICOT.
    (565 SE2d 865)
   Miller, Judge.

The State appeals from the trial court’s order granting Brigitte Merie Picot’s motion to exclude all evidence gathered as the result of an allegedly illegal seizure during a traffic stop. The State contends that the trial court erred by (1) concluding that a Gwinnett County police officer did not have the authority to stop Picot for speeding in Snellville, and (2) ruling that, due to having a suspended license, Picot was in custody at the time of the stop (which would have required a reading of her Miranda rights before she could be subjected to field sobriety tests). Since the officer had the authority to arrest Picot after witnessing her speeding (whether in Snellville or Gwinnett County), and since Picot was not in custody prior to undergoing the field sobriety tests, we agree with the State and reverse the trial court’s ruling.

At the hearing on defendant’s motion, a Gwinnett County officer testified that he saw Picot speeding into the city of Snellville. The officer followed Picot from unincorporated Gwinnett County into Snellville, pacing her car at 70 mph within the Snellville city limits. The posted speed limit in the area was 45 mph.

The officer turned on his blue lights, and Picot pulled over. When the officer asked Picot for her license, he smelled a strong odor of alcohol on her breath. The officer then checked Picot’s license number and her name and discovered that her license had been suspended. However, the officer did not tell Picot about this discovery, nor did he tell her that she was under arrest. Based on the smell of alcohol on Picot’s breath, the officer called in another Gwinnett County officer to complete the DUI investigation.

The second officer arrived within minutes, and the first officer informed him that he had stopped Picot for speeding and smelled alcohol on her breath and that her license was suspended. The second officer also noticed the odor of alcohol on Picot’s breath and further observed that her eyes were bloodshot, her face was flushed, and her walk was unsteady. When the second officer asked Picot if she would agree to take some field sobriety tests, she consented, and the officer then conducted a series of sobriety tests. Picot did not testify at the motion hearing.

The trial court ruled that the first Gwinnett County police officer did not see Picot speeding in Gwinnett County but only in Snellville and was therefore without authority to stop her within the city limits of Snellville. In addition, the trial court concluded that Picot could have reasonably believed that she was in custody at the time that she was pulled over, because she had a suspended license. The trial court then suppressed all evidence gathered in connection with the stop, and the State now appeals.

1. The State argues that the trial court erred by ruling that the Gwinnett County police officer who stopped Picot for speeding was without authority to do so. We agree with the State.

When the evidence is uncontroverted regarding a motion to suppress and no question of credibility is presented, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). Here, the testimony of the Gwinnett County officers is uncontroverted. Since we find that the trial court’s application of the law to the undisputed facts was in error, we must reverse the trial court’s ruling.

Picot contends that the Georgia Constitution prohibited the Gwinnett County police officer from pulling her over and arresting her in the city limits of Snellville. The relevant provision states that “[ujnless otherwise provided by law . . . [n]o county may exercise [police] powers . . . inside the boundaries of any municipality or any other county except by contract with the municipality or county affected. . . .” (Emphasis supplied.) Ga. Const, of 1983, Art. IX, Sec. II, Par. Ill (a), (b) (1). Interpreting this constitutional provision, “[t]his court has held that two statutes, OCGA §§ 40-13-30 and 17-4-23 (a), . . . authorize [county] police officers to arrest persons for traffic offenses in other jurisdictions. [Cits.]” State v. Heredia, 252 Ga. App. 89, 90 (1) (555 SE2d 91) (2001) (Cobb County police officer could pull over defendant in the city limits of Kennesaw for traffic violation committed in Kennesaw); see State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000) (“An officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle where the offense is committed in his presence regardless of territorial limitations.”) (punctuation and footnote omitted); see also Page v. State, 250 Ga. App. 795, 797 (553 SE2d 176) (2001); City of Winterville v. Strickland, 127 Ga. App. 716, 718-719 (2) (194 SE2d 623) (1972).

It is undisputed that the officer who pulled Picot over saw her speeding and paced her at 70 mph in a 45-mph zone. Based on these facts alone, the officer had the authority to arrest Picot regardless of whether he witnessed the speeding in Gwinnett County or in the city of Snellville or whether he pulled her over in Gwinnett County or in the city of Snellville. Since the police officer was authorized to arrest Picot in Snellville, the trial court’s ruling to the contrary was in error.

2. The State correctly argues that Picot was never in custody before she was asked to submit to the field sobriety tests, therefore negating any need for the police to read her Miranda rights. The police are not required to give Miranda warnings prior to administering field sobriety tests during a traffic stop unless the suspect is in custody. State v. Peters, 222 Ga. App. 484 (474 SE2d 623) (1996). In deciding whether the suspect was in custody, “the proper inquiry is whether the individual was formally arrested or restrained to [a] degree associated with a formal arrest, not whether the police had probable cause to arrest.” (Citations omitted.) Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995).

Here, the officers gave no indication to Picot that she was under arrest prior to administering the field sobriety tests. Even though Picot’s license had been suspended, this only gave the officers probable cause to arrest Picot; it did not mean that she was under arrest. The officers never indicated to her that their involvement with her was anything more than a brief investigatory stop. The officers smelled alcohol on Picot’s breath and observed other signs that she had been drinking before administering the tests, but had not yet arrested her. Since Picot was not in custody before the officers conducted the field sobriety tests, the officers were not required to give her Miranda warnings prior to conducting the tests. The trial court’s ruling to the contrary and the resulting suppression of the field sobriety test results were therefore in error. See Arce v. State, 245 Ga. App. 466, 467 (538 SE2d 128) (2000) (despite suspect being very intoxicated and not having license or insurance information, officer not required to give Miranda warnings prior to conducting field sobriety tests “[a]bsent the officer making a statement or taking an action that would cause a reasonable person to believe that she was under arrest and not temporarily detained for investigation”); State v. Kirbabas, 232 Ga. App. 474, 477 (502 SE2d 314) (1998) (police made no statements indicating defendant was under arrest, and “fsjince there was no arrest during the temporary investigatory stop to conduct the field sobriety tests . . . , then the defendant was not deemed in custody, seized, or ‘under arrest’ for Miranda purposes even if the officer had possession of her driver’s license and insurance card and temporarily detained her. [Cits.]”).

Decided May 23, 2002

Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Jeffrey P. Kwiatkowski, Assistant Solicitors-General, for appellant.

Chestney-Hawkins Law Firm, Sherry Boston, for appellee.

Judgment reversed.

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


text:
    A02A0369.
    SOUTHEAST RECOVERY SERVICES, LLC v. NORTHEN.
    (565 SE2d 861)
   Miller, Judge.

As the assignee of stock in B&N Company, Inc. (B&N), Southeast Recovery Services, LLC (SRS) sued Arthur A. Northen for a deficiency on the value of B&N stock pledged by Northen as collateral on a secured transaction. The trial court granted summary judgment to SRS on the issue of Northen’s liability in the amount of $1.7 million but denied SRS summary judgment on the issue of the value of the collateral sold at foreclosure. In this cross-appeal, SRS contends that the trial court erred in finding that a jury issue remains as to the commercial reasonableness of the foreclosure sale of the collateral. We agree and reverse.

The underlying litigation arose after Northen defaulted on contractual obligations incurred with Stephen E. Raville. In December 1995, Northen, as seller, and Raville, as purchaser, entered into a stock purchase and sale agreement. Raville paid Northen $1 million for 42.15 shares of common stock in B&N, a company begun by Northen in 1994 to sell computer software. Prior to this sale, Northen owned 750 shares of common stock in B&N. Contemporaneously with the purchase and sale agreement, Northen and Raville executed a pledge and assignment of collateral agreement and irrevocable proxy for an additional 42 shares of common stock of B&N. Paragraph 5.4 of Article V of the stock purchase and sale agreement obligated Northen to repurchase the 42 shares from Raville for $1 million in one year if Raville gave proper notice and demand. In the event of default, the pledge agreement authorized the secured party (Raville) the discretion to issue a demand upon Northen for full payment. The agreement further provided that in the event of default: “In furtherance of the Secured Party’s rights and remedies hereunder and not in limitation thereof, the Secured Party shall have full power and authority to sell, assign, transfer and deliver the whole of the Collateral, or any part thereof. . . .”

In November 1996, Raville notified Northen of his intent to invoke the repurchase provisions in Paragraph 5.4. Northen, however, claimed that he was unable to pay the repurchase price. As a result, in December 1996, Northen and Raville entered another agreement in which Northen pledged his remaining 665.85 shares of B&N as additional collateral and, in exchange, Raville agreed to extend the repurchase and payment obligations of Paragraph 5.4 until June 1, 1998, at which time Northen would be required to pay $1.7 million to Raville.

In October 1998, B&N filed for bankruptcy. In November 1998, after Northen had still failed to satisfy his obligation to pay $1.7 million, Raville notified Northen that his breach constituted an “event of default.” About six months later, on June 1,1999, Raville assigned all his rights, claims, and interest that he had against Northen to SRS, an entity in which Raville was a majority member. On June 4, 1999, SRS notified Northen by regular and certified mail of its intention to foreclose upon its security interests in the collateral and to sell the collateral at public auction under the terms of the Georgia Uniform Commercial Code. SRS informed Northen that in the event that it was unable to sell the collateral for the full amount due, SRS was reserving the right to pursue a deficiency claim against him. SRS advertised the public sale on June 7 and June 14, 1999, and on June 18, 1999, the B&N stock was offered for sale at public auction. Having received no bids, SRS purchased the collateral for $50,000. After the foreclosure sale, SRS sued Northen for the deficiency. SRS sought to collect $1.7 million plus interest, costs, and other expenses, less credit for the $50,000 obtained from the foreclosure sale.

SRS moved for summary judgment, arguing that because the amount of $50,000 for the sale of the collateral was the result of a commercially reasonable sale, and because the undisputed evidence showed that Northen owed $1.7 million less a credit for $50,000, SRS was entitled to summary judgment to also include interest, attorney fees, and expenses of litigation.

Finding that Northen had, in fact, defaulted on his debt of $1.7 million now owed to SRS, the trial court granted only partial summary judgment to SRS. The trial court refused to grant judgment to SRS in that amount because it found “there exists a question of fact as to whether the disposition of the collateral was reasonable, considering the timing of the bankruptcy and the sale.” The court also noted that questions of fact remained regarding the value of the collateral since SRS paid $50,000 for collateral it declared “worthless.” The trial court ruled, “[therefore, the Plaintiff’s motion for summary judgment in connection with the value of the collateral, whether its disposition was commercially reasonable and whether the appropriate amount was offset against the $1,700,000.00 owed, is hereby DENIED.”

1. SRS contends that the trial court erred in finding summary judgment was precluded by a material question of fact as to whether the sale of the stock pledged by Northen and purchased by SRS was commercially reasonable within the meaning of the Georgia UCC. SRS asserts that the record contains no competent evidence to show that the value of the collateral was anything other than $50,000. We agree and reverse.

When Northen defaulted on his obligation, under the Georgia UCC, as a secured party, Raville was entitled to “sell, lease, or otherwise dispose of any or all of the collateral in its then condition.” Former OCGA § 11-9-504 (1). The stock purchase agreement authorized Raville to assign his rights to the collateral, which he did to SRS. Under the framework of the UCC, the “[s]ale or other disposition may be as a unit or in parcels and at any time and place or on any terms but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.” Former OCGA § 11-9-504 (3). When a secured party either sells the collateral in the usual manner in any recognized market therefor or when he has otherwise sold the property in conformity with reasonable commercial practices among dealers in the type of property sold, the secured party has sold the collateral in a commercially reasonable manner. See former OCGA § 11-9-507 (2); Farmers Bank &c. v. Hubbard, 247 Ga. 431, 432 (276 SE2d 622) (1981).

It is undisputed that B&N was not a publicly traded stock. Raville testified that the B&N stock was essentially worthless at the time of foreclosure and that “$50,000.00 was considerably more than the fair and reasonable value of the collateral.” As Northen himself acknowledged, the corporation filed for liquidation under Chapter 7. The corporation was in bankruptcy on June 18, 1999, the date of the public sale of the B&N stock.

At the motion hearing, counsel for SRS explained that the $50,000 figure was selected “as being something too high to be challenged as unreasonable.” But Northen pointed out that B&N’s bankruptcy case was still pending as of the day of the hearing, March 16, 2001. His counsel argued, “[s]o there’s a question of fact as to was that $50,000 reasonable in light of the value of the claims” that B&N had against Blockbuster and Western International Media Corporation (Western). His counsel argued, “there’s still the potential for monies there.” The record belies these arguments.

Although normally a question of fact, the commercial reasonableness of the sale of collateral may be determined as a matter of law where the creditor offers prima facie, uncontradicted evidence that the sale was reasonable. Slaughter v. Ford Motor Credit Co., 164 Ga. App. 428, 429 (296 SE2d 428) (1982). To avert summary judgment, the debtor must support his challenge to the sale by presenting evidence of specific facts to show the existence of a genuine issue for trial. See id. Thus, as the responding party, Northen had to offer some competent rebuttal evidence that $50,000 was less than the fair market value of the B&N stock on June 18, 1999, the date of the foreclosure sale. See Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). This Northen failed to do.

Included in the appellate record are copies of two depositions of Northen and two affidavits of Northen, B&N’s president and chief executive officer. Both depositions occurred after the foreclosure sale of the B&N stock. At no point in either deposition did Northen testify that the foreclosure price of $50,000 for the B&N stock was unreasonable or not commercially reasonable. In fact, Northen conceded that as of October 11, 2000, B&N had no valuable assets except for its lawsuit against Western.

Nor did Northen in his affidavits specifically contest the reasonableness of the bid of $50,000. The second affidavit filed on March 15, 2001, did not offer any testimony about the value of the foreclosed collateral. As to the first affidavit filed on January 8, 2001, the gist of the testimony was Northen’s denial that he had been properly notified of Raville’s election to exercise the repurchase provision, and Northen’s claim that he had signed the December 1996 agreement because he thought it was a document to help Raville write off the $1 million for tax purposes.

Northen did however testify as follows: “B&N Company’s Stock is worth some amount of money. The Corporation recently settled two of their outstanding lawsuits that were proceeding in Bankruptcy, and received a combined amount of approximately $7,000,000 for those actions.” But Northen’s testimony that in January 2001, as the result of settling two lawsuits, B&N stock was “worth some amount of money,” did not negate the unrefuted evidence that in June 1999, no bidders were willing to undertake the risk of purchasing the B&N stock at the foreclosure sale. Nor could anyone have foreseen that any lawsuit would settle favorably to B&N. The mere fact that a different price may have been paid at a different time for the collateral is not sufficient to establish that the sale did not occur in a commercially reasonable manner. Farmers Bank, supra, 247 Ga. at 432. Speculation uttered in January 2001 that the B&N stock was worth “some amount of money” was not legally sufficient to disprove that $50,000 was a commercially reasonable amount at the time of foreclosure. See Lee v. Trust Co. Bank, 204 Ga. App. 28, 29 (2) (418 SE2d 407) (1992). The shadowy semblance of an issue is not enough to avoid summary judgment when the evidence clearly shows that only one conclusion can reasonably be drawn. See Feely v. First American Bank &c., 206 Ga. App. 53, 55 (1) (424 SE2d 345) (1992).

Notwithstanding the argument articulated at the hearing, no evidence from the bankruptcy proceeding established a different market value of the shares sold at foreclosure on June 18, 1999. On December 11, 2000, the bankruptcy court approved the settlement of the estate’s claim against Western and also Finova Mezzanine Capital, Inc.’s (Finova) claim against the estate. The federal court approved the $6 million settlement of B&N’s claims against Western, and Western became obligated to make three payments of $2 million each to the estate. But the order also required the trustee on behalf of B&N’s estate to make specified installment payments totaling $2.7 million to Finova. The bankruptcy order provided, “[a]fter making the payments to FINOVA and Court-approved administrative fees and costs described above, the Trustee may pay the allowed claims of general unsecured creditors up to $1,300,000.00 of the last $2,000,000.00 paid by Western.” The order also directed:

With regard to FINOVA’s remaining “undersecured” claim (estimated to be in excess of $2,000,000.00, after payment of $2,700,000.00 from the Western settlement), any funds, from any source, remaining in the estate after payment of the Court-approved administrative fees and costs, including those set forth in subparagraph (c), and the payment of the other general unsecured claims (up to $1,300,000.00) as set forth in subparagraph (d), shall be paid as follows: i. Eighty percent (80%) to FINOVA; and ii. Twenty percent (20%) to any remaining unpaid general unsecured claims.

Decided May 23,2002.

Cushing, Morris, Armbruster & Jones, Charles M. Cushing, Jr., Leticia D. Alfonso, for appellant.

Meriwether & Tharp, Patrick L. Meriwether, Robert L. Tharp, for appellee.

SRS offered the affidavit of its counsel, Charles M. Cushing, Jr., who testified that “[i]t is highly likely that the settlements approved by the Bankruptcy Court in the Order will be insufficient to cover all the debts of B&N and will net Plaintiff, as a shareholder in B&N nothing at all.” Thus, even assuming arguendo that the value of B&N stock in June 1999 could somehow be gleaned from the facts established during the bankruptcy process, we have found no evidence and Northen has not directed our attention to any facts that show that the B&N shares were worth more than $50,000 at the time of foreclosure.

Finally, SRS takes issue with the trial court’s finding that a question of fact remained as to whether the disposition of the B&N stock was commercially reasonable “considering the timing of the bankruptcy and the sale.” SRS correctly points out that it had no duty to delay foreclosing on the pledged collateral because no Georgia case or statute bars foreclosure on the pledged stock of a company by reason of the company filing for bankruptcy. Under the explicit terms of the parties’ agreements, Raville could have foreclosed against the collateral when Northen first defaulted in December 1996 or at any time after Northen again defaulted in June 1998. Although B&N filed bankruptcy, Northen did not do likewise. See, e.g., Denis v. Delta Air Lines, 248 Ga. App. 377, 379 (546 SE2d 805) (2001) (when debtor files a Chapter 7 petition, all legal or equitable interests of the debtor in property become part of the bankruptcy estate and title to all property passes to the trustee of the estate). Therefore, B&N’s bankruptcy filing had no bearing on the rights of creditors like SRS to seek payment from Northen for his personal debts and obligations.

2. In light of this holding, we need not address SRS’s remaining claims of error which are asserted on procedural grounds.

Judgment reversed.

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

       In Case No. A02A0368, Northen filed a notice of appeal of the summary judgment order on June 8, 2001. Afterward, he failed to file a brief. This Court dismissed Case No. A02A0368, Northen v. Southeast Recovery Svcs., after no party was substituted for Northen who died on September 19, 2001. Northen did not file a brief in this cross-appeal.

       As disclosed in Northen v. Mary Anne Frolick & Assoc., 236 Ga. App. 7 (510 SE2d 857) (1999), the solvency or insolvency of B&N, the ownership interest or lack thereof of Northen in B&N, and Northen’s assets or lack thereof were already in dispute in 1997. Northen apparently had told his attorney that B&N was insolvent. Id. at 9. In September 1997, B&N’s controller testified that the company’s financial situation was “poor.” Id. at 10. Our opinion noted “Northen’s admitted peijury” and the “inconsistencies in Northen’s testimony.” Id. at 12 (2).


text:
    A02A0429.
    BEASLEY v. THE STATE.
    (566 SE2d 333)
   Eldridge, Judge.

Kelvin M. Beasley was convicted and sentenced in 1997 for the sale of cocaine. Shortly thereafter, he was paroled. In 1998, Beasley was arrested for possession of cocaine with intent to distribute. The State Board of Pardons & Paroles (“Board”) revoked his parole on the 1997 sale conviction. Nine months later, in August 1999, Beasley pled guilty on the possession with intent charge and was given the negotiated sentence of ten years to serve concurrent with the sentence on the sale conviction. The court ordered credit for time served.

Approximately a year later, Beasley determined that the Board was miscalculating his time by not giving him credit for the 11 months he spent in prison between the time of his 1998 arrest and 1999 plea. He wrote the sentencing court and complained about the situation. The court wrote Beasley and explained that calculations of time served are made by the Board and that the Board’s calculations appeared correct; Beasley would not receive credit for the time served between arrest and plea because he was serving the time for his parole revocation on the 1997 charges, not on the current charges.

Beasley then filed a motion to modify his sentence, again complaining about the failure to credit him with the 11 months between the 1998 arrest and 1999 plea. The trial court denied the motion and again explained that, under the law, the 11 months Beasley spent between arrest and plea were as a result of other charges, i.e., “[t]he provisions in OCGA §§ 17-10-9 [and] 17-10-11 for crediting prison sentences with time spent in confinement applies only to persons who would not be confined but for the charges which give rise to the sentence for which credit is sought.” Beasley appeals from the trial court’s denial of his motion to modify sentence. Held:

Beasley filed this appeal pro se, and, accordingly, we will construe it liberally. However, even with the most generous construction, a direct appeal to this Court will not lie from the instant “motion to modify sentence.” Beasley does not contest the validity of the entry of his guilty plea, and it is well beyond time to appeal any such claim. The trial court imposed the negotiated sentence, and Beasley does not claim otherwise, since credit for time served was not a part of the negotiated sentence. Beasley does not contest the validity of the ten-year sentence imposed by the trial court, as such sentence is well within the statutory maximum for a second drug offense. And, most importantly, Beasley does not contend that he is being held illegally since, even removing the disputed eleven months, he still has approximately seven more years to serve on the term of his sentence. Beasley’s sole complaint goes to the Board’s calculation of credit on a legitimately entered sentence that is currently being legitimately served. Accordingly, Beasley’s claim is cognizable only in a mandamus or injunction action against the Commissioner of the Department of Corrections or in a petition for habeas corpus, depending on what point in time in the service of Beasley’s sentence any additional action may be filed.

Decided May 23, 2002.

Kelvin M. Beasley, pro se.

Steven Askew, District Attorney, Harry J. Altman II, Assistant District Attorney, for appellee.

Appeal dismissed.

Smith, P. J., and Ellington, J., concur.

       (Citations and punctuation omitted.) Wilson v. State, 273 Ga. 97 (538 SE2d 429) (2000).

       See OCGA § 5-6-34 (a) (1)-(8).

       See Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995) (appeal will lie from a judgment entered on a guilty plea only if such appeal is timely filed and can be resolved on the face of the record).

       See OCGA § 16-13-30 (d).

       Compare Lillard v. Head, 267 Ga. 291 (476 SE2d 736) (1996) (miscalculation of time rendered defendant confined beyond the term of his sentence).

       Id. at 291, 295 (Carley, J., dissenting).