text:
    A99A2200.
    BENTON v. THE STATE.
    (522 SE2d 726)
   Johnson, Chief Judge.

The “automobile exception” provides that a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant. On two occasions police officers had a confidential informant buy cocaine from appellant Artis Benton. The informant arranged a third buy, during which Detective R. J. Brink was on surveillance when he saw Benton arrive at the scene of the arranged sale, park his vehicle and walk away from it. Detective Brink walked to the vehicle, saw suspected cocaine and marijuana in it, opened the unlocked door and seized the suspected drugs. Was the warrantless search lawful? We hold that it was lawful under the automobile exception because Detective Brink had probable cause to believe Benton’s vehicle contained illegal drugs. We therefore affirm the trial court’s denial of Benton’s motion to suppress evidence found in his vehicle.

DeKalb County Police Detective K. M. Short knows a confidential informant who has given him reliable information and has participated in numerous controlled drug buys that have led to arrests. The informant told Detective Short that Benton sells cocaine and marijuana. On December 2, 1998, the informant arranged to buy crack cocaine from Benton. Detective Brink was on surveillance when that drug sale took place. The informant again bought crack cocaine from Benton on December 14, but Detective Brink was not involved in that controlled buy. The informant next arranged to purchase crack cocaine from Benton at the informant’s townhouse on December 18.

At 9:00 p.m., on December 18, Detective Brink and several other officers were on surveillance in the parking lot of the townhouse when Benton arrived in his green Ford Explorer with passenger Antonio Copeland. Detective Brink saw Benton park the vehicle, get out of it, go to the informant’s townhouse door and knock on it. No one answered the door, so Benton returned to the Explorer. Benton then moved the vehicle to another parking space. He and Copeland got out of the parked vehicle and walked away from it, leaving the townhouse parking lot.

Detective Brink then walked to the Explorer, looked in the window and saw a clear plastic bag lying on the front center console. The bag contáined a hard, white substance that Brink believed to be crack cocaine. He also saw, on the passenger floor, a clear plastic bag containing a green, leafy substance that he suspected was marijuana. Brink shined his flashlight into the vehicle to get a better view, which confirmed his belief that the items were illegal drugs. Brink opened the car door, which was not locked, and seized the suspected drugs.

In the meantime, other police officers involved in the surveillance arrested Benton and Copeland as they were walking a short distance away from the parking lot. Incident to Benton’s arrest, the police searched the Explorer and found a bag in the floorboard area of the back seat containing more suspected marijuana.

Benton and Copeland were indicted for trafficking in cocaine, possessing cocaine with intent to distribute, possessing marijuana with intent to distribute and possessing more than one ounce of marijuana. Benton filed a motion to suppress the suspected cocaine and marijuana found in his vehicle. The trial court denied the motion, finding that Detective Brink’s warrantless search of the Explorer was lawful under the “plain view” doctrine, even though there was no exigency preventing him from getting a search warrant.

Benton applied to this court for interlocutory review of the court’s ruling. We granted the application because the trial court erroneously found that in this case the plain view doctrine did not require the existence of exigent circumstances. In spite of that error, we affirm the denial of the motion to suppress because the search was lawful under the automobile exception to the warrant requirement.

1. The plain view doctrine authorizes a police officer to seize an illegal item if the officer is lawfully in a place where he can see the item and if he has a lawful right of access to it. An officer gains lawful access to an item in plain view by obtaining a search warrant, obtaining consent to search, or the existence of exigent circumstances.

In the instant case, it is undisputed that Detective Brink had neither a warrant nor consent to search Benton’s vehicle. The trial court found that there were no exigent circumstances because the vehicle was parked and there were several police officers nearby who could have gotten the warrant while Brink secured the vehicle. Even though there was no warrant, consent or exigency, the trial judge ruled that Brink’s search of the vehicle was valid under the plain view doctrine. Because that doctrine requires that a warrant, consent or some exigency give the officer a lawful right of access to the item in plain view, the trial court’s ruling to the contrary was clearly erroneous.

Although the reasons for a trial court’s ruling may be wrong, we may still affirm the court’s ruling if it is right for any other reason. So even if a trial judge incorrectly denies a motion to suppress on one basis, we may affirm the denial on another basis. Here, even though the court based its ruling on an improper application of the plain view doctrine, the denial of the motion to suppress was correct under the automobile exception.

2. The Supreme Court recently reiterated in Maryland v. Dyson that the automobile exception to the warrant requirement does not require exigent circumstances.

The Fourth Amendment generally requires police to secure a warrant before conducting a search. [Cit.] As we recognized nearly 75 years ago . . . there is an exception to this requirement for searches of vehicles. And under our established precedent, the “automobile exception” has no separate exigency requirement. We made this clear in United States v. Ross, 456 U. S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” (Emphasis added.) In a case with virtually identical facts to this one (even down to the bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U. S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam), we repeated that the automobile exception does not have a separate exigency requirement. . . .

Decided September 24, 1999

Reconsideration denied October 5, 1999

Novy, Jaymes & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellant.

J. Tom Morgan, District Attorney, Sarah E. Sullivan, Assistant District Attorney, for appellee.

In this case, Detective Brink knew that Benton had sold cocaine to the confidential informant on two other occasions. He was on surveillance when Benton arrived to make another arranged sale of cocaine to the same informant. He eventually saw the suspected drugs on the front console and passenger floor of Benton’s vehicle. Based on these facts Detective Brink had probable cause to believe the vehicle contained illegal drugs. The warrantless search of the vehicle was therefore lawful under the automobile exception. We thus affirm the trial court’s denial of Benton’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       See Bedingfield v. State, 219 Ga. App. 248, 249 (2) (464 SE2d 653) (1995); Pittman v. State, 189 Ga. App. 781, 782 (2) (377 SE2d 695) (1989).

        Maryland v. Dyson, 527 U. S. 465 (119 SC 2013, 144 LE2d 442) (1999).

        State v. David, 269 Ga. 533, 535-536 (2) (501 SE2d 494) (1998); Gates v. State, 229 Ga. App. 766, 767-768 (a) (495 SE2d 113) (1997).

        David, supra; State v. Gallup, 236 Ga. App. 321, 323 (1) (c) (512 SE2d 66) (1999); Gates, supra.

        Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997).

        Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994).

       119 SC at 2014.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1343.
    MARTIN v. THE STATE.
    (523 SE2d 84)
   Johnson, Chief Judge.

A jury found Daniel Martin guilty of child molestation. In his sole enumeration of error, Martin contends the trial court erred in forcing him to proceed to trial without an attorney. In order to decide this case, we must answer three questions: (1) Did Martin knowingly and voluntarily waive his right to counsel? (2) Did the trial court properly inquire into the question of Martin’s indigent status to determine if he was eligible to have appointed counsel represent him? (3) Did the trial court properly determine on the record that Martin had or had not been diligent in his efforts to obtain private counsel after being informed he could not be appointed a public defender? We find the trial court erred in not appointing an attorney to represent Martin or, at the very least, in not allowing Martin additional time to retain his own attorney after he showed diligent efforts to do so. We reverse his conviction, as Martin is entitled to a new trial.

On August 13, 1998, Martin was arraigned and entered a plea of “not guilty.” In response to questioning by the trial court, Martin indicated that he could and would hire his own attorney.

On September 14, 1998, Martin’s case was called for trial. Martin stated: “I don’t want an attorney. I’d like to represent myself.” The trial court questioned him as to his understanding of the importance of having counsel and the possible sentences he could receive. However, Martin still insisted that he wanted to proceed without an attorney. Martin asked the trial court how to subpoena witnesses, and the trial court advised him how to have subpoenas issued. Martin then requested a two-week continuance to allow him to subpoena the witnesses he identified as important to his defense. The trial court granted his request. It also advised Martin to apply for a court-appointed attorney through the local public defender’s ofSce. Martin commented that he was not sure if he would qualify for an appointed attorney and expressed his understanding that the trial court would not continue his case a second time.

On September 28, 1998, Martin’s case was again called for trial. Martin informed the trial court that he had applied for a public defender but did not qualify financially and that he had been unable to hire an attorney because he did not “qualify financially with any other attorney either.” He attempted to explain why he could not hire an attorney and informed the trial court that he had searched for an attorney. The trial court, however, insisted that Martin merely respond “yes” or “no” to three questions: (1) whether he was given additional time to hire an attorney, (2) whether he had been able to hire an attorney, and (3) whether he was ready to proceed to trial. After responding “yes” or “no” to the first two questions, but having his attempts to explain his answers cut off, Martin said that he was ready to go to trial. At the conclusion of the trial, the jury found Martin guilty of child molestation.

1. Did Martin knowingly and voluntarily waive his right to counsel?

The Supreme Court of Georgia and this court have consistently observed the fundamental nature of the right to counsel and its importance in our judicial system. See McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100) (1973); Campbell v. State, 128 Ga. App. 74, 75-78 (1) (195 SE2d 664) (1973). In the present case, Martin contends he was denied his constitutional right to counsel because he lacked the financial resources to hire an attorney for trial.

While the state suggests that Martin voluntarily chose to represent himself after being warned of the consequences of doing so, and therefore waived his right to counsel, the transcripts do not support this position. Clearly, the trial judge did not believe Martin had waived his right to counsel because he gave Martin more time to try to qualify for a public defender in August and additional time to hire a private attorney in September. Moreover, Martin’s colloquy with the trial court immediately prior to his trial shows that he preferred to have an attorney and only “chose” to represent himself because he believed he did not qualify for a court-appointed attorney and he could not afford to retain a private attorney. See Flanagan v. State, 218 Ga. App. 598, 600 (462 SE2d 469) (1995).

2. Did the trial court properly inquire into the question of Martin’s indigent status to determine if he was eligible to have appointed counsel represent him?

Martin argues that the trial court erred in failing to determine whether he was, in fact, indigent and whether special circumstances existed which would have required the appointment of counsel. Although the trial court correctly advised Martin of his right to retain counsel and informed Martin that he would not be given an additional continuance, when Martin appeared in court without counsel and indicated that he searched but could not find an attorney he could afford, it was incumbent upon the trial court to determine three issues on the record: (1) whether Martin was eligible to have appointed counsel represent him, and, if not, (2) whether Martin exercised reasonable diligence in attempting to retain trial counsel and (3) whether the absence of trial counsel was attributable to reasons beyond Martin’s control. Flanagan, supra; see also Lang v. State, 226 Ga. App. 729, 733 (7) (487 SE2d 485) (1997); compare Eason v. State, 234 Ga. App. 595, 597-598 (2) (507 SE2d 175) (1998) (trial court ascertained on the record that defendant failed to exercise due diligence to retain counsel and was not prevented from retaining counsel by reasons beyond defendant’s control).

We certainly recognize a trial court’s frustration over calendar disruptions when a defendant attempts to delay proceedings. A party is not permitted to use his failure to employ counsel as a dilatory tactic. West v. State, 136 Ga. App. 249 (1) (220 SE2d 767) (1975). However, this does not permit a trial court to proceed with a trial in a criminal case without first determining on the record whether the defendant is entitled to appointed counsel. Even if a defendant is determined to be nonindigent, a trial court has a duty to affirmatively exercise its discretion to appoint counsel for nonindigent defendants based on individual circumstances as authorized by Uniform Superior Court Rules 29.4 and 29.5. McQueen v. State, 228 Ga. App. 732, 734 (2) (492 SE2d 720) (1997).

This case presents two problems. First, the trial court basically delegated to the public defender a nondelegable duty to inquire about the facts of indigence. The record shows that it is not until Martin’s motion for new trial hearing, when Martin had an attorney acting pro bono, that the trial court heard and considered evidence concerning Martin’s indigence. Prior to this time, the trial court blindly relied on the public defender’s finding that Martin was not indigent under their standards. This brings us to the second problem: Clearly, the information on Martin’s application for a public defender was not properly communicated either to the public defender himself by the office secretary or to the court by the public defender’s office.

Martin’s application for appointment of counsel is part of the record before us. It shows that he was self-employed for the prior three months. Under “net take home pay” Martin wrote “200-300-500 (weekly) 800-2000 (monthly) pay flux, according to Bids. No income in 1 mo.” (Emphasis supplied.) He further indicated that he was married and had an eight-month-old child, his wife did not work, and he did not have any other sources of income, assets or savings. His listed monthly debts included $500 for rent, $200 for his 1983 pickup truck, $60 for electricity, $100 for telephone, $100 for a loan for tools, $420 for the baby, and $300 for food, a total of $1,680. The application stated that this amount did not include gas. According to this application, even if Martin had previously and regularly earned his highest estimated income of $2,000 per month, he would have had only $320 per month to spend on an attorney after his expenses were paid. And he had no income during the previous month.

In addition, evidence at the motion for new trial hearing showed that when Martin appeared for trial in September he and his wife may have had $50, they had no water at their house, Martin was on his own because he and his business partner had just severed their relationship, he had found only one job since the partnership dissolved, and he had been required to pawn some of his tools to raise the money which would enable him to send subpoenas to witnesses in Florida. Martin had to pawn more of his tools to buy food in early September, and, because he had not been able to make his payments, his truck was repossessed.

Since the only evidence we have regarding Martin’s indigence is testimony at the hearing on his motion for new trial, we must assume that had a hearing been properly held at the pretrial stage, the evidence would have been the same. Based on this evidence, we find that the trial court erred in failing to appoint Martin an attorney based on his individual circumstances or, alternatively, in failing to grant him more time to obtain a private attorney. Martin’s motion for new trial should have been granted.

3. Did the trial court properly determine on the record that Martin had or had not been diligent in his efforts to obtain private counsel after being informed he could not be appointed a public defender?

Martin argues further that the trial court erred in not determining whether he acted with reasonable diligence in attempting to obtain an attorney and whether the absence of an attorney was attributable to reasons beyond his control. Even if the trial court determines that a defendant is not entitled to an appointed attorney, it is incumbent upon the trial court to further determine on the record whether a defendant exercised due diligence in attempting to obtain an attorney and whether a defendant’s lack of an attorney is due to reasons beyond his control. It is clear from the record that the trial court did not either inquire as to Martin’s diligence or allow Martin to explain his efforts. Instead of a hearing into these matters, the following colloquy occurred immediately prior to Martin’s trial:

THE COURT: Okay. Well let me — let me take care of a preliminary matter. We’ve done this I know a number of times on the record. You understand you’re entitled to an attorney?
MARTIN: Right. Well I’ve asked for an attorney, and I was turned down.
THE COURT: Right. You did not qualify financially. . . .
MARTIN: Right.
THE COURT: As I recall.
MARTIN: And I don’t qualify financially with any other attorney either because. . . .
THE COURT: Okay.
MARTIN: They don’t. . . .
THE COURT: But I — I gave you additional time to hire an attorney?
MARTIN: I have searched. I have searched.
THE COURT: But you’ve got to answer yes or no so we can put it. on the record.
MARTIN: Yes.
THE COURT: I did give you. . . .
MARTIN: Yes, you did.
THE COURT: Additional — okay.
MARTIN: Yes, you did.
THE COURT: And you’ve been unable to hire an attorney at this. . . .
MARTIN: Yes.
THE COURT: Time? But you’re ready to go to trial, is that right?
MARTIN: I’m ready to go to trial.
THE COURT: Very good.

Not only was a hearing never held on these issues, Martin was not even permitted to explain his inability to hire an attorney.

Because the only evidence we have as to Martin’s diligence and his efforts to retain counsel is the evidence presented at the hearing on the motion for new trial, we must assume that had a hearing been properly held at the pretrial stage, the evidence would have been the same. At the motion for new trial, an attorney Martin attempted to hire testified that even if Martin had the money to hire him, he could not have handled the case because he was already working 75 hours per week and was still way behind in his case load. This attorney strongly advised Martin to go to the public defender’s office because it did not appear that Martin could afford an attorney.

Decided October 5, 1999.

William B. Barker, for appellant.

Michael H. Crawford, District Attorney, for appellee.

• In addition, Martin’s wife testified that two other attorneys informed them that they did not have time to prepare the case even if the Martins had the money to hire them. According to Martin, he had believed he could hire his own attorney in August, but then he and his partner split and he had no work. One attorney told him he needed $3,000 to take the case; another told him he needed $20,000, but would be willing to take only ten percent up front; others were simply unavailable.

In an attempt to raise money for an attorney, Martin’s wife called two car title loan businesses, but was informed her car was too old for any type of loan. The Martins also attempted to obtain a loan from a friend.

The transcript reveals that the trial court failed to exercise its affirmative duty of considering Martin’s individual circumstances and determining on the record whether Martin exercised reasonable diligence in attempting to retain trial counsel. Based on this evidence, at the very least, the trial court erred in not allowing Martin additional time to retain his own attorney based on his exercise of diligence. Under these circumstances, Martin is entitled to a new trial. See generally McQueen, supra; Flanagan, supra. Therefore, we reverse the judgment of conviction.

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A2473.
    GAFFORD v. THE STATE.
    (523 SE2d 336)
   McMurray, Presiding Judge.

A Newton County jury convicted defendant of aggravated assault, family violence battery, and reckless conduct. The trial court denied his motion for new trial, as amended. He now appeals, contending the evidence was insufficient to support his conviction of aggravated assault, he received ineffective assistance of counsel, his sentence was disproportionately severe, and the trial court improperly considered the presentence report in aggravation. Held:

1. We first consider the sufficiency of the evidence to support defendant’s conviction of aggravated assault. On appeal from a criminal conviction, this court neither weighs the evidence nor determines witness credibility, but simply determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). The defendant no longer enjoys the presumption of innocence, and we construe the evidence in the light most favorable to upholding the verdict. Id.

The evidence shows that defendant became angry when his female friend, Tonya Thompson, told him she had been unfaithful while he had been away. Holding a knife to her throat, he ordered her to the love seat of the mobile home in which they lived. There defendant sat on her legs and hit her in the head five to six times using his closed fists, nearly rendering her unconscious. Thompson’s 17-month-old son ran to her as the defendant hit her. Defendant moved aside and then pulled them both up and threw them to the floor. Thompson’s son slid free as she hit the floor, and the defendant began kicking her in the lower back, stomach, ribs, and head with his shoes-clad feet.

Dr. Frank Brown, a physician specializing in emergency medicine, testified that Thompson’s injuries, which included two black eyes, multiple abrasions, and a closed head injury, could have resulted in serious injury to her eyes and kidneys.

The indictment alleged that defendant assaulted Thompson “by kicking her in the head and shoulder area and by striking her with his hands and feet, which, when used offensively against a person, are likely to result in serious bodily injury. . . .”

The pertinent essential elements of aggravated assault are: (1) an assault on a person as defined in OCGA § 16-5-20 and (2) with use of a deadly weapon or an object which when used offensively against a person is likely to or actually does result in serious bodily injury. OCGA § 16-5-21 (a) (2).

Jay v. State, 232 Ga. App. 661, 662 (1) (503 SE2d 563). Notwithstanding defendant’s argument to the contrary, it is unnecessary that the indictment further alleges that defendant used his hands and feet as deadly weapons in that subsection (a) (2) of the foregoing statute is expressed in the disjunctive. Id. “Although hands, feet, and a telephone receiver are not deadly weapons per se, ‘a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances.’ [Cits.]” Wheeler v. State, 232 Ga. App. 749-750 (503 SE2d 628). “[Wlhether the instrument used constitutes a deadly weapon is properly for the jury’s determination.” Quarles v. State, 130 Ga. App. 756, 757 (2) (204 SE2d 467).

Neither is the indictment deficient as the defendant asserts for failure to allege intent to injure. “[Ijntent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2). [Cits.]” Jay v. State, 232 Ga. App. at 662 (1), supra. See also Smith v. Hardrick, 266 Ga. 54, 56 (3) (464 SE2d 198) (if material, intent must be alleged in indictment). Accordingly, there was sufficient evidence for a rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, supra; Jay v. State, 232 Ga. App. at 662 (1), supra.

2. Defendant challenges the effectiveness of counsel in failing to: (a) provide the State discovery of certain letters written defendant by Thompson (the victim) after the instant offenses, impairing his ability to cross-examine her or tender the letters in evidence, (b) challenge Dr. Brown as an expert witness in that he was “without any knowledge of the physical altercation which occurred,” (c) offer evidence at defendant’s hearing on sentence apart from the terms of defendant’s offer to plead guilty, and (d) move for a directed verdict at the close of the State’s case. Only the first of the foregoing ineffectiveness claims is not raised for the first time on appeal. We thus address it alone. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (failure to seize opportunity to raise issue of ineffectiveness at earliest practicable opportunity creates procedural bar to assert the issue later).

At the hearing on the motion for new trial, as amended, trial counsel testified that his failure to provide the State Thompson’s letters to defendant was consistent with his trial strategy not to tender the letters in evidence but to address them selectively upon cross-examining Thompson to avoid prejudice to the defendant. In other testimony, he indicated he had successfully done so.

To establish a claim of ineffectiveness, a defendant must show that:

trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Absent a showing of such prejudice, we need not inquire into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

Decided October 5, 1999.

Terry N. Massey, for appellant.

Ledbetter v. State, 234 Ga. App. 380, 382 (2) (506 SE2d 699). In the instant circumstances, defendant has done no more than show that trial counsel sought to use Thompson’s letters at trial to the extent they were favorable to him — on its face a legitimate trial strategy. Moreover, “Counsel’s decisions on matters of tactic[s] and strategy, even if unwise, do not amount to ineffective assistance of counsel. [Cits.]” Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468). Certainly defendant has not established that had counsel taken the steps necessary to tender Thompson’s letters in evidence his chances of acquittal would have improved. This was insufficient to satisfy his burden to establish the required prejudice. See Johnson v. State, 199 Ga. App. 67, 69-70 (404 SE2d 139). This enumeration of error is therefore without merit.

3. In two enumerations of error, defendant challenges the severity of his sentence for aggravated assault. In particular, he argues that his sentence of 20 years to serve (15 years to be served in confinement) and ancillary fines was “cruel and unusual” punishment, as disproportionate to sentences imposed against others convicted of similar offenses and to sentences upon guilty pleas for like charges. This claim of error is without merit.

The punishment of which defendant complains does not exceed that which is authorized by law. OCGA § 16-5-21 (b). As a consequence, it does not violate the constitutional ban on cruel and unusual punishment. Chappell v. State, 164 Ga. App. 77, 79 (4) (296 SE2d 629). Further, because the sentence is within the applicable statutory limits we lack authority to modify it. Morgan v. State, 197 Ga. App. 397 (398 SE2d 866). “ ‘ “ ‘Any question as to the excessiveness of a sentence, which in this case was within the legal limits, should be addressed to the appropriate sentence review panel.’ (Cits.)” [Cits.]’ Gordon v. State, 190 Ga. App. 414 (1) (379 SE2d 221) (1989).” Thomas v. State, 199 Ga. App. 818 (406 SE2d 811).

4. In his final enumeration of error, defendant contends the trial court improperly considered the presentence report in aggravation rather than for determining whether to probate the sentence. This claim of error, however, is waived as not raised and ruled on in the trial court. See Noble v. State, 220 Ga. App. 155, 159 (2) (469 SE2d 307), citing Howard v. State, 172 Ga. App. 83, 84 (2) (321 SE2d 815).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.


author: Miller, Judge.

text:
    A99A1141.
    VINCENT v. BUNCH et al.
    (522 SE2d 495)
   Miller, Judge.

Charles Vincent sued attorney Gary Bunch and Gary Bunch, P.C. (“law firm”) for fraud relating to a $10,000 check written to the law firm. Finding that the four-year statute of limitation had run, the trial court granted summary judgment to the defendants. Vincent appeals.

After sustaining catastrophic burns over 80 percent of his body, Vincent retained Bunch and the law firm to represent him in a personal injury lawsuit against Richards & Associates (“R & A”). On May 17, 1991, while the jury was deliberating, the parties reached a $250,000 settlement from which the law firm would receive $50,000.

Nearly immediately, Bunch’s former wife, Wilma L. Bunch, sued Gary Bunch, Denise S. Bunch, the law firm, R & A, and Charles and Lola Vincent. She sought a temporary restraining order (“TRO”) to prevent the disbursement of the settlement proceeds and requested that the funds be paid into the registry of the court. Wilma Bunch asserted that as of the May 30, 1991 hearing date, Gary Bunch owed an accrued arrearage of more than $100,000 for alimony, child support, attorney fees and post-judgment interest. At the hearing on the TRO, Gary Bunch represented the Vincents and himself, notwithstanding the court’s stated concern that his interests and those of the Vincents might be adverse.

In opposing the TRO, Gary Bunch informed the court that the law firm

has $20,000.00 or $15,000.00 worth of bills for the Vincents for instance. The law firm contracted with the experts. I didn’t contract with the experts. The law firm has those obligations right now to pay the experts in the Vincents’ case for instance. We had the deposition costs of the doctors, we had the costs of getting the exhibits, for instance.

Bunch told the court that he was uncertain about the total fee and how much the Vincents needed to reimburse the firm. He stated “some discount” might be given, but “we’ve got a lot of bills that need to be paid which the Vincents are kind of ultimately responsible for but we were contracting for them.” Although the court refused to grant the TRO, it granted R & A’s request that the entire $250,000 settlement be deposited into the registry of the court.

On June 10, the court released $137,500 to Vincent. Lola Vincent, his spouse, then paid the bills of several vendors directly. On August 12, an additional $12,626.48 was released to Charles Vincent from the settlement funds. Lola Vincent testified that they were then asked to make a payment of $10,000 to the law firm for costs incurred on their behalf. On August 14, 1991, Lola Vincent wrote a check payable to the law firm for $10,000.

Until June 1994, Bunch continued to act as Charles Vincent’s attorney for various legal matters. But in August 1995, nearly four years after the issuance of the $10,000 check, Charles Vincent learned for the first time that Gary Bunch considered this check as a personal gift from the Vincents and not as payment to the law firm for legal expenses. A few months after that discovery, Vincent sued Bunch and the law firm for receiving money through false pretenses, for using the money for their own benefit, and for engaging in fraudulent conduct. Vincent alleged that Bunch and the law firm misled and deceived him and his wife that the $10,000 payment had been for litigation costs and expert fees.

On summary judgment, the parties offered conflicting evidence regarding the $10,000 check. Nevertheless, it is undisputed that this check was drawn on the Vincents’ joint checking account and was made payable to “Gary Bunch, P.C.” The endorsement on the back of the check recited: “FOR DEPOSIT ONLY GARY BUNCH, P.C. [account number].”

In a 1996 deposition, Gary Bunch averred that the $10,000 had been “purely a gift” from the Vincents and was not solicited. Bunch testified:

Mrs. Vincent came to a — my home, when I wasn’t home, and gave the check, that’s Exhibit G, the ten thousand dollar ($10,000.00) check to Mrs. Bunch. She gave it to us unexpectedly. There was no coercion, no influence, no anything with regard to that. And the action was voluntary and unsolicited.

More than six years after she had written the check, at her deposition, Lola Vincent was unable to recall exactly what the payment had been for. Mrs. Vincent explained, “[t]hey kept the $50,000 in the court. Then we gave $10,000 for the bills.” She testified, “[a]nd what [the $10,000] was for, who it was for, if it was for several people, I don’t know. I just know we had to pay that much.” She testified that she thought the $10,000 was owed because she trusted Gary Bunch and there were “oodles and oodles of depositions,” an expert witness in California, and photographs. She testified that she did not know how many people were owed and “[t]here was [sic] all sorts of bills coming in right and left.” According to Lola Vincent, “[a]ll I know is I gave [Gary Bunch] a $10,000 check to pay bills. That’s all I know.”

In granting summary judgment, the trial court determined that the allegedly fraudulent act, the receipt and retention of the $10,000 check, occurred in August 1991. The court further found: “after writing the requested check to Defendants on August 14, 1991, to cover such expenses, Mrs. Vincent, on September 9, 1991, paid $2,938.00 to a Robert Johnson from California for his services as an expert in the case.” The trial court concluded that Mrs. Vincent’s direct payment to this expert, “after such obligation had been assumed by Defendants with the request for the $10,000 . . . reasonably should have put her on notice of an irregularity” but yet the lawsuit was not filed until January 8, 1996. Finding no evidence that Vincent had been debarred or deterred by the defendants from bringing suit sooner, the court granted summary judgment.

1. Vincent contends that material issues of disputed fact precluded the grant of summary judgment. He claims that a jury must resolve whether the statute of limitation was tolled until his discovery of the fraud in August 1995.

Under certain circumstances, fraud can toll the statute of limitation, but it must be such as to prevent or deter the plaintiff from bringing suit. OCGA § 9-3-96; Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 457 (c) (504 SE2d 514) (1998); Macomber v. First Union Nat. Bank, 212 Ga. App. 57, 59 (2) (441 SE2d 276) (1994). Where the underlying complaint is actual fraud, the limitation period is tolled “ ‘until such fraud is discovered, or could have been discovered by the exercise of ordinary care and diligence.’” (Footnote omitted.) Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 847 (1) (507 SE2d 411) (1998).

When a confidential relationship exists, as here, such relationship lessens the plaintiff’s obligation to discover the fraud and also heightens the duty of the defendant to disclose what should be revealed. Frame, 269 Ga. at 848 (1). In cases of a confidential relationship, silence when one should speak, or failure to disclose what ought to be disclosed, is as much a fraud in law as is an actual false representation. Brown v. Brown, 209 Ga. 620, 621 (6) (75 SE2d 13) (1953).

On summary judgment, the evidence and all reasonable inferenees therefrom must be viewed in a light most favorable to the nonmovant, here, Vincent. Kendrick v. Funderburk, 230 Ga. App. 860, 863 (1) (498 SE2d 147) (1998). When considered from that perspective, the evidence showed that on May 30, 1991, Gary Bunch represented to the superior court at the TRO hearing, in the presence of Lola Vincent, that the Vincents owed between $15,000 and $20,000 to the law firm for multiple bills incurred in the personal injury action. At that time, Lola Vincent had sole responsibility for the Vincents’ finances including the payment of all bills. The agreement with the law firm required Vincent to reimburse or pay the out-of-pocket expenses associated with the litigation. After the court released part of the money in June, Lola Vincent wrote several checks totaling about $1,878.48 payable directly to six service providers. Later, on July 8, she wrote a $650 check to a medical expert.

Although Bunch contends that Lola Vincent’s September 9, 1991 payment to an expert put Charles Vincent on notice as a matter of law concerning any alleged fraud involving the $10,000 check, we disagree. See Fleming v. Lee Engineering &c. Co., 184 Ga. App. 275 (361 SE2d 258) (1987) (whether a cause of action is barred by statute of limitation is generally a mixed question of fact and law). When Lola Vincent wrote the $10,000 check in August, in light of Gary Bunch’s representations to the court about the Vincents’ indebtedness to the law firm for litigation expenses, a jury could find that Charles Vincent could reasonably have believed that a substantial amount of money remained owed to the law firm even had the $10,000 check been duly credited. In fact, Vincent offered evidence showing that when the $2,938 payment was made to a Mr. Johnson in September 1991, another expert was owed more than $5,281, an amount still not paid as of January 1996. Compare Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 64 (1) (473 SE2d 501) (1996). Moreover, Bunch did not offer any billing documentation relating to Vincent’s law firm account which would establish that Vincent should have realized that the $10,000 check had not been credited to the R & A litigation expenses amassed with the firm.

In these circumstances, a jury must determine whether Bunch and the law firm breached a duty to disclose that the $10,000 check was being treated as an unsolicited gift and not as payment on Vincent’s account. Green v. White, 229 Ga. App. 776, 779 (1) (b) (494 SE2d 681) (1997) (relationship of trust imposes duty of complete disclosure). If the jury finds that the true use of the $10,000 check was fraudulently concealed, then the statute of limitation did not begin to run until Vincent discovered or could have reasonably discovered the fraud within the meaning of Frame, supra. See Green, 229 Ga. App. at 778-779 (1) (b). Because material issues of disputed fact remain unresolved, summary judgment was improper. Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2) (399 SE2d 565) (1990).

Decided September 10, 1999

Reconsideration denied October 6, 1999

Cabaniss & Adkins, George M. Cabaniss, Jr., for appellant.

Hawkins & Parnell, H. Lane Young II, Thomas G. Tidwell, Anthony P. Tatum, for appellees.

Gary P. Bunch, pro se.

2. In light of our holding in Division 1, we need not reach the remaining enumeration of error.

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.

       Lola Vincent was present at this hearing, but Charles Vincent was not.

       Lola Vincent is not a party to the underlying action. She filed for divorce in late 1992.


author: Ruffin, Judge.

text:
    A99A0906.
    In the Interest of A. W., a child.
    (523 SE2d 88)
   Ruffin, Judge.

Appellant, the natural mother of A. W., appeals from the trial court’s order terminating her parental rights. Because the evidence supported the trial court’s decision, we affirm.

The decision to terminate parental rights involves a two-step process:

First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability. This determination is based on a finding that the child is deprived, the lack of proper parental care or control by the parent is the cause of the child being deprived, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child. On appeal, we determine whether, viewing the evidence in a light most favorable to the lower court’s judgment, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.

Viewed in the light most favorable to the trial court’s decision, the evidence showed as follows. A. W. was born to appellant on September 10, 1987. Appellant, who was not married at the time, lived in Columbus, Ohio, and worked the night shift at a job about 40-50 miles away. Kimberly Larraby, a friend of appellant’s, would babysit A. W. at church. One day when A. W. was about four months old, Larraby showed him to her cousin, Anne Smith, who was visiting from Georgia. Appellant later gave Larraby permission to take A. W. to Georgia for the summer, where he lived with Smith and her husband from March until August 1988. In September 1988, the Smiths went to Ohio to meet with appellant. Appellant told Mrs. Smith that she did not want A. W. to have any contact with his father. She agreed to let the Smiths raise A. W. in Georgia. According to appellant, the Smiths were to raise A. W. until appellant was able to get off the night shift. Appellant testified that “[m]y main purpose was to get off the night shift and get him back so I could be with him in the daytime.”

For the next ten years, A. W. lived in Georgia with the Smiths, who assumed all parental responsibility for the child. When A. W. was about a year old, appellant agreed that he should go by the name of Smith, telling Mrs. Smith that “you are the mommy and [Mr. Smith] is the daddy and I have no problems with that.” A. W. has used the name of Smith since coming to live with the Smiths. Appellant has provided no financial support for the child, except for a few hundred dollars during the first few years. As the years went by, appellant would call the Smiths less and less frequently, and usually she would speak not to A. W. but to Mrs. Smith. In early 1997, shortly after appellant got married, the Smiths went five months without hearing from her.

On their own initiative, the Smiths would take A. W. to Ohio during the summers to visit Mrs. Smith’s family and to see appellant. In addition, A. W. spent a few Thanksgivings and perhaps one Christmas with appellant. During these visits, appellant never indicated that she wanted A. W. to stay. Appellant never came to Georgia to visit A. W. or the Smiths, except on three occasions when she was passing through on her way to Florida and stopped by for a total of about 30 minutes.

In 1991, appellant had a second child by another man. Although appellant was still unmarried and working the night shift, she personally raised this second child. After the second child was born, Mrs. Smith asked whether appellant wished for A. W. to return and live with her. Mrs. Smith testified that, at that point, A. W. was still young enough to make the transition back to living with his natural mother. However, according to Mrs. Smith, “[appellant] told me that [A. W.] is yours and [the other child] is mine as long as I see [A. W.] from time to time.” The Smiths testified that, after they had raised A. W. for a few years and he started attending school, they began to consider the arrangement permanent.

In 1993, about five years after “temporarily” placing A. W. with the Smiths, appellant began working the day shift at a location near her home. Although she claims she wanted A. W. to be returned to her at that time, she did not take any action for the next four years to try and get him back. When asked why she took no action for four years after going on the day shift, appellant testified that she wanted to give Mrs. Smith “time to adjust to the fact. . . . Whatever she need — if she need to replace [A. W] she can do that.”

A. W. continued to live with the Smiths for the next several years. In August 1997, Mr. Smith went to Ohio to pick up A. W., who had been visiting appellant. Smith went to appellant’s office and waited for her for two hours, but she would not come out to see him. Smith then went to the house, picked A. W. up, and left “as we have done many, many times before.” The next day, appellant drove down to Georgia and unsuccessfully tried to have Smith arrested for kidnapping. She then returned to Ohio and filed an emergency petition in an Ohio court seeking custody of A. W. In an affidavit accompanying the petition, appellant stated that “[i]n the summer of 1997, I brought my son [A. W.] back from Georgia to live with me in Ohio.” She later admitted that this statement was not true. The Ohio court initially awarded temporary custody to appellant, but ultimately determined that Georgia had jurisdiction over the matter.

In September 1997, the Smiths filed a deprivation petition in Cobb County Juvenile Court seeking temporary custody of A. W. A deprivation hearing was held on December 5, 1997. In addition to hearing from the Smiths and appellant, the trial court also heard testimony from Dr. Corbett Harold Turner, a child psychiatrist who had interviewed A. W. and the Smiths. Dr. Turner testified that A. W. considered the Smiths to be his parents and was very attached to them. According to Dr. Turner, A. W. said that he was “upset, angry, and disappointed” when he was with appellant. A. W. told Dr. Turner that appellant did not appear to he interested in him and gave him spankings for things he did not do. When Dr. Turner asked A. W. what three wishes he would like to come true, A. W.’s first wish was “not to have to go back to [appellant’s] house.” Dr. Turner testified that taking A. W. away from the Smiths and returning him to appellant “would have a disastrous effect on his emotional and mental health.” Under the circumstances of this case, Dr. Turner testified that “you can only draw the conclusion that the biological mother has in fact abandoned the child and has not displayed responsibility, has been indifferent, has not been a parent.” He testified that, at A. W.’s age, it would be impossible for appellant to establish a psychological parenting relationship with him.

After the hearing, the trial court entered an order finding that A. W. was deprived and awarding temporary custody to the Smiths. On June 4, 1998, the Smiths filed a petition for termination of appellant’s parental rights. A hearing on the petition was held on October 8, 1998. The transcript of the deprivation hearing was admitted into evidence, and the trial court also heard evidence from the parties. Dr. Turner testified that he had interviewed A. W. on two occasions since the deprivation hearing. He testified that A. W. did not want to have any interaction whatsoever with appellant. A. W. told Dr. Turner that appellant had told him the reason she wanted him to live with her was so that he could watch her other child while she was at work. According to Dr. Turner, if A. W. was required to have continuing contact with appellant it would be a “traumatic experience” for him:

Mrs. Smith testified that she had no contact with appellant for seven months after the December 5, 1997 deprivation hearing. According to Mrs. Smith, appellant called her on July 25, 1998, and then did not call again until October 7, 1998, the day before the termination hearing. She said appellant sent A. W. a card in November 1997, shortly before the deprivation hearing, but did not send him anything for Christmas. Appellant also sent A. W. a birthday card in September 1998, about a month before the termination hearing. Appellant testified that she had sent A. W. three other cards and letters in July and August. Appellant did not come to Georgia after the deprivation hearing to try to visit A. W. On October 20,1998, the trial court issued an order terminating appellant’s parental rights.

As discussed above, in order to terminate parental rights, the trial court must find that there is clear and convincing evidence of parental misconduct or inability and that termination is in the best interest of the child. In order to find parental misconduct or inability, the trial court must find (1) that the child is deprived, (2) that the lack of proper parental care or control by the parent is the cause of the deprivation, (3) that the cause of the deprivation is likely to continue or will not likely be remedied, and (4) that continued deprivation will cause or is likely to cause serious harm to the child.

With respect to the first required finding, the trial court’s unappealed deprivation order establishes that A. W. is deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i).

With respect to the second required finding, the evidence authorized the trial court to conclude that the lack of proper parental care or control was the cause of A. W.’s deprivation. In determining whether a child is without proper parental care or control, the trial court is to consider the parent’s “[p]hysical, mental, or emotional neglect of the child.” “Deprivation of love and nurture is equally as serious as mental or physical disability.” The evidence in this case shows that appellant wholly abdicated her parental responsibilities toward A. W. for a period of ten years, years which Dr. Turner testified are essential to the development of a parent-child relationship. During this ten-year period, A. W. came to view the Smiths as his parents and never formed a bond with appellant. Although appellant claims that “her intent in making an arrangement with the Smiths to care for A. W. was to find temporary help until she could be rescheduled from the night shift at work,” she took no action to try to gain custody of A. W. for four years after she was transferred to the day shift. Appellant testified that she let the Smiths keep custody so as to give them time to “replace” A. W. Appellant was able to raise a second child during the time period when she refused to act as a parent toward A. W. The evidence shows that appellant treated A. W. not as a child to whom she owed any parental obligations, but as an item of personal property that she could loan out and recall when convenient to her. Under all of the circumstances, the trial court was entitled to conclude that the lack of parental care or control was the cause of A. W.’s deprivation.

The trial court was also authorized to conclude that the cause of A. W.’s deprivation was likely to continue. “[E]vidence of past conduct may be considered in determining whether [the] deprivation [of the child] would be likely to continue.” This is appropriate because “the juvenile court is not required to reunite [a child] with [his parent] in order to obtain current evidence of deprivation or neglect.” The evidence showed that, as the years passed, appellant made less and less effort to stay in contact with A. W. while he was in Georgia. Dr. Turner testified that A. W. never developed a bond with appellant and that, given A. W.’s age, appellant would never be able to establish a psychological parenting relationship with him. As the trial court found, in the ten months between the deprivation hearing and the termination hearing, appellant did not make a significant effort to develop a parental relationship with A. W. Under these circumstances, the trial court was authorized to conclude that the cause of A. W.’s deprivation was likely to continue or would not be remedied.

Decided October 6, 1999.

Appellant does not challenge the sufficiency of the evidence with respect to the final required findings — i.e., that continued deprivation is likely to cause serious harm to the child and that termination is in the best interest of the child. However, we note that Dr. Turner testified that A. W. considered the Smiths to be his true parents, that requiring A. W. to stay in contact with appellant would be a “traumatic experience” for him, and that transferring A. W. to appellant’s custody “would have a disastrous effect on his emotional and mental health.” The evidence was sufficient to support the trial court’s findings on these issues.

Because there was sufficient evidence to support each of the trial court’s required findings under OCGA § 15-11-81, the trial court did not err in terminating appellant’s parental rights.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J, concur.

S. Friedman & Associates, Steven J. Best, for appellant.

Land, Cohen & Keon, Stephen A. Land, for appellee.

       (Citations omitted.) In the Interest of J. C., 237 Ga. App. 533-534 (515 SE2d 847) (1999). See OCGA § 15-11-81.

       OCGA § 15-11-81 (a).

       OCGA § 15-11-81 (b) (4).

        In the Interest of K. R. C., 235 Ga. App. 354, 355 (1) (510 SE2d 547) (1998). Citing Thrasher v. Glynn County Dept. of Family &c. Svcs., 162 Ga. App. 702 (293 SE2d 6) (1982) and In re J. C.P., 167 Ga. App. 572 (307 SE2d 1) (1983), appellant argues that a finding of deprivation based on abandonment of a child requires evidence of actual desertion accompanied by an intention to completely sever the parental relationship. However, the trial court’s unappealed deprivation order establishes that A. W. was deprived. Moreover, the cases cited by appellant were based on the former OCGA § 15-11-51 (a) (1), which was repealed in 1986 upon the enactment of the current parental rights termination statute. See Ga. L. 1986, pp. 1017, 1018, § 3. Under the current statute, termination is warranted if there is clear and convincing evidence of parental misconduct or inability and termination is in the best interest of the child. OCGA § 15-11-81.

       OCGA § 15-11-81 (b) (4) (B) (v).

       (Punctuation omitted.) In the Interest of H. L. W., 229 Ga. App. 264, 266 (493 SE2d 637) (1997).

       See In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (a) (501 SE2d 259) (1998) (“appellant’s near abandonment of J. M. B. provided clear and convincing evidence that J. M. B. was ‘without proper parental care or control’ ”); In the Interest of A. M. R., 230 Ga. App. 133, 135-136 (495 SE2d 615) (1998).

       (Citation and punctuation omitted.) In the Interest of T. B. R., 224 Ga. App. 470, 474 (1) (c) (480 SE2d 901) (1997).

        In the Interest of E. C., 225 Ga. App. 12, 16 (482 SE2d 522) (1997).

       Appellant points out that on December 11, 1997, after the deprivation hearing, she filed a one-page “Motion for Clarification” asking the trial court to “clarify its position on visitation.” However, appellant apparently took no further action with respect to visitation until July 10, 1998, more than a month after the termination petition was filed, when she filed a motion seeking visitation rights. Contrary to the suggestion in her brief, appellant’s perhaps strategic attempt to obtain visitation rights before the termination hearing did not require the trial court to conclude that the cause of A. W.’s deprivation was likely to be remedied, particularly in light of appellant’s failure to take any meaningful steps to establish a relationship with A. W. in the months after the deprivation hearing. To the extent that appellant argues in her brief that the trial court erred in failing to rule on her motion for visitation rights prior to the termination hearing, such issue is outside the scope of her enumeration of error.

       See In the Interest of P. N. L., 228 Ga. App. 187, 189 (1) (c) (491 SE2d 434) (1997).

       Although appellant argues that it is impermissible for a trial court to consider the best interest of the child in a termination proceeding, OCGA § 15-11-81 (a) requires the trial court to consider such issue after finding parental misconduct or inability.

       See P. N. L., supra at 189-190; In the Interest of K. A. C., 229 Ga. App. 254, 257 (3) (493 SE2d 645) (1997).


text:
    A99A0928.
    JOHNSON v. J. H. HARVEY COMPANY et al.
    (523 SE2d 95)
   Ruffin, Judge.

After allegedly slipping while leaving a grocery store, Barbara T. Johnson sued the store owner, J. H. Harvey Company, and the operator of the shopping center, Julian LeCraw & Company d/b/a Altama Village Shopping Center (“defendants”). The trial court granted summary judgment to the defendants, and we affirm.

When the evidence is viewed more favorably toward Johnson, the record shows the following. As Johnson left the store, she was carrying two plastic bags of groceries. While proceeding down a concrete curb ramp toward the parking lot, Johnson allegedly twisted or turned her left foot. Although Johnson did not fall, she believes that her foot may have slipped. Johnson admitted, however, that she may have simply misstepped. Her daughter, who was walking directly beside her, did not see her slip and noticed nothing unusual. Johnson testified that she had walked up and down this particular ramp on at least 50 occasions and had never experienced any prior difficulties. Johnson conceded that as compared to the “many, many times before” on which she had safely crossed the ramp previously, she did not notice anything different about the ramp the day she allegedly slipped.

Although it had not been raining and the ramp was not wet, Johnson claimed that the ramp had a “slippery” surface and needed to be less smooth. Yet, despite her assertion that the ramp lacked “extra roughness,” Johnson admitted that she could not say that any additional roughness would have prevented her foot from slipping. Moreover, she conceded that the texture of this curb ramp was the same as the concrete surface of most sidewalks.

Johnson’s expert, safety consultant Herbert T. Bogert, measured the height and horizontal spread of the ramp. Bogert, however, did not examine the site until nearly two years after the incident at issue. Although Bogert lacked firsthand knowledge about the condition of the ramp at or near the time of the incident, Bogert suggested that “if it didn’t have the yellow [edging] on it at the time, I’d say that would have been desirable.” Bogert, moreover, conceded that handrails are not legally required for curb ramps like this one. According to Bogert, this ramp was “too steep” and “too smooth.” Bogert concluded that the ramp was “inherently dangerous.”

Both defendants moved for summary judgment, and the trial court granted the motions. We find that summary judgment was proper for two reasons.

First, Johnson failed to offer any evidence that the condition of the ramp was actually what precipitated her injuries. Not only did Johnson admit that she may have simply misstepped, but she also was not able to say what caused her to twist or turn her foot. Although Johnson speculated that the surface of the ramp had been too smooth, she could not say whether any additional “roughness” would have prevented her foot from slipping.

Second, Johnson did not establish that Harvey had superior knowledge of any allegedly dangerous peril. In premises liability cases, the proof of a fall or a misstep, without more, does not give rise to liability on the part of the proprietor. Rather, a plaintiff must prove fault on the part of the owner/proprietor and her own ignorance of the danger. A plaintiff may recover only if the proprietor had knowledge of the condition and the plaintiff did not because “[t]he true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm.”

Moreover, a claim involving a static defect, as here, differs significantly from slip and fall cases in that, generally, when a person has successfully negotiated an allegedly dangerous condition on previous occasions, that person is presumed to know about it and cannot recover for a subsequent injury resulting therefrom. Here, this ramp with its attendant slope designed for grocery carts had been in place for years. This was a static condition, not a hazard caused by the abrupt or sudden appearance of a foreign object or substance. Without question, Johnson knew about this static condition and, in fact, admitted that she had used this same ramp on numerous occasions. Nothing about the ramp differed on this occasion. Thus, the equal knowledge rule precluded recovery here. Inasmuch as Johnson’s knowledge of the purported hazard was at least equal to the defendants, and because Johnson failed to establish a causal connection between the condition of the ramp and her injury, the defendants were entitled to judgment as a matter of law.

Decided October 6, 1999.

Edward E. Boshears, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Bradley J. Watkins, for appellees.

Judgment affirmed.

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

       Bogert majored in agricultural education and does not have an engineering or advanced degree.

       Compare Fussell v. Jimbo’s Log Kitchen, 227 Ga. App. 161, 163-164 (1) (a) (489 SE2d 71) (1997) (summary judgment precluded by factual dispute concerning presence of chicken feathers on ramp).

       See Kolomichuk v. Bruno’s, Inc., 230 Ga. App. 638, 639-640 (497 SE2d 10) (1998) (plaintiff’s uncertainty as to what caused him to slip was fatal to his claim).

       See id.

        Parks-Nietzold v. J. C. Penney, Inc., 227 Ga. App. 724, 726 (2) (490 SE2d 133) (1997); Pierce v. Wendy’s Intl., 233 Ga. App. 227, 230 (2) (504 SE2d 14) (1998).

        Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997); Cole v. Cracker Barrel, 210 Ga. App. 488, 490 (436 SE2d 704) (1993).

        Hallberg, supra.

       (Citations omitted.) Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998).

       Id.

       See Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 306 (3) (494 SE2d 76) (1997).

       See Spires v. Hall, 230 Ga. App. 357, 359 (1) (496 SE2d 501) (1998) (knowledge of obstruction foreclosed recovery); Dickman v. South City Mgmt., 229 Ga. App. 289 (494 SE2d 64) (1997) (physical precedent only) (prior successful negotiation of steps shortly before plaintiffs fall foreclosed recovery).

        Parks-Nietzold, supra at 726 (2).

        Boyd v. Garden Center, 197 Ga. App. 198, 200-201 (3) (397 SE2d 626) (1990); see Collins v. East R. S., Inc., 228 Ga. App. 627 (1) (492 SE2d 351) (1997).


text:
    A99A0980.
    THE STATE v. BECKER.
    (523 SE2d 98)
   Ruffin, Judge.

A Tift County grand jury indicted John Becker for driving under the influence of drugs and vehicular homicide. The trial court granted Becker’s motion to suppress the results of chemical tests performed on his blood and urine, finding (1) that the tests were not given in a timely manner and (2) that the implied consent notices read to Becker were inadequate. The State appeals. We hold that there was insufficient evidence to support the trial court’s first basis for suppressing the test results, and we reject the second basis. Accordingly, we reverse and remand.

In reviewing the trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact unless they are clearly erroneous, and we construe the evidence most favorably to the trial court’s decision. Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court’s application of the law to the undisputed facts.

The undisputed evidence at the suppression hearing was as follows. On February 27, 1997, four Georgia correctional officers were killed after their van crossed the median on 1-75 in Tift County and collided with oncoming traffic. According to one witness, a tractor-trailer truck forced the van off the road and continued on, leaving the scene of the incident. The witness reported the truck’s tag number to the Georgia State Patrol (GSP), which sent officers in search of the truck. A trooper from GSP’s Cordele patrol post apparently stopped the truck, driven by Becker, in or near Turner County. Because that trooper did not testify at the suppression hearing, we do not know where or when Becker was stopped or the circumstances of the stop.

Trooper Terry Rehberg, Assistant Post Commander of the Tifton patrol post, drove to Turner County to escort Becker back to Tift County. He met Becker’s truck as Becker was driving south on 1-75. Rehberg testified that he did not know how far Becker already had come at that point. Rehberg pulled in front of Becker’s truck, and Becker followed Rehberg more than ten miles to the Tifton patrol post. According to Rehberg, Becker did not drive erratically and did not appear to be impaired.

After they arrived at the post, Rehberg and Becker engaged in “casual conversation,” and Rehberg “invited [Becker] to have a seat.” Rehberg did not smell any alcohol on Becker’s breath, did not notice bloodshot eyes or slurred speech, and did not think Becker was unusually nervous. Becker asked to use the rest room. According to Rehberg, “[a]nticipating at that point that we might need a urine test and this being an opportunity, I read him the implied consent warning specifying urine, and provided him with a receptacle for the sample and showed him where the restroom was in the post.” Rehberg read the implied consent warning for commercial drivers from a card supplied to him by the GSP. Becker then agreed to provide a urine sample. There was no testimony as to how much time passed between Becker’s arrival at the patrol post and Rehberg’s request for a urine sample.

Some time later, Rehberg drove Becker to the. hospital, where the drivers of two other commercial vehicles involved in the collision were waiting. Rehberg read to all three drivers the implied consent warning for commercial drivers, specifying a blood test. At that point, the GSP did not have the results of Becker’s urine test and requested the blood test only because the collision involved fatalities. Becker agreed to provide a blood sample.

Becker was charged with two counts of driving under the influence of drugs and eight counts of vehicular homicide. His motion to suppress the results of the blood and urine tests, which apparently were positive, raised numerous grounds. We address the two grounds decided by the trial court.

1. The first issue before us is whether the blood and urine tests were given to Becker in a timely manner. Under OCGA § 40-5-55 (a), a driver of a motor vehicle in Georgia is deemed to consent to chemical testing of his blood, breath, urine, or other bodily substance to determine the presence of alcohol or other drugs if that person is (1) arrested for driving under the influence of an intoxicating substance in violation of OCGA § 40-6-391 (a); or (2) “involved in any traffic accident resulting in serious injuries or fatalities.” Under the second scenario, the statute requires that the testing be administered “as soon as possible.” We have construed this language to mean, “as soon as practicable under the circumstances.” The trial court found that there was an unexplained delay in the giving of the tests. The court noted that Rehberg had reasonable grounds for believing that Becker had caused an accident resulting in fatalities and therefore knew that chemical testing would be needed — yet he escorted Becker more than ten miles back to the Tifton patrol post before giving the tests.

Although our factual review is limited to a search for clear error, we cannot accept the trial court’s conclusions based on the present record. There is no evidence of how much time passed between Becker’s stop in Turner County and his escort back to Tift County, or between Becker’s arrival at the Tift patrol post and the administration of the tests. Without such evidence, the trial court had no basis for finding an unexplained delay. On the other hand, we cannot accept the State’s unsupported assertion that Becker’s arrival at the Tifton patrol post presented “the first opportunity for the officers to obtain a urine sample,” as there is no evidence as to what happened before Rehberg met Becker or whether the GSP could have obtained a urine sample at a closer patrol post. Thus, the trial court had an insufficient evidentiary basis for determining whether the tests were given “as soon as practicable under the circumstances.”

Becker urges us to affirm the suppression order for a reason not decided by the trial court — because the State not only failed to administer the chemical tests as soon as possible, but also failed to read his implied consent notices in a timely manner. Before the giving of chemical tests, a driver must be read an appropriate implied consent notice stating the consequences of both submitting to and refusing the testing. OCGA § 40-5-67.1 (b). A driver arrested for DUI must be given the notice at the time of arrest, or as soon afterwards as feasible. A driver who is given chemical tests solely due to involvement in a collision resulting in serious injuries or fatalities — and not because of an arrest for DUI — must be given the implied consent notice “within a reasonable amount of time after the accident, as determined by the circumstances.” If the driver is involved in an accident involving serious injuries or fatalities and is arrested, then the implied consent notice must be given at the time of arrest. Becker argues that his initial stop by the GSP constituted an arrest and, thus, he should have been given the implied consent notice then. The trial court declined to decide this issue, as do we. There is insufficient evidence in the record concerning Becker’s stop in Turner County to permit a determination as to whether he was under arrest then.

2. The implied consent notices that Rehberg read to Becker repeated almost verbatim the language of OCGA § 40-5-67.1 (b) (3), which sets forth the required notice for commercial drivers. These notices advised Becker that if he refused the testing, he would be disqualified from operating a commercial motor vehicle for a minimum of one year. The notices did not advise Becker that refusal to submit to the tests could also disqualify him from operating a private motor vehicle, as such language is not included in the statutory notice set forth in OCGA § 40-5-67.1 (b) (3). At the suppression hearing, Becker argued that Rehberg’s failure to warn him about possible suspension of his private driving privileges violated a provision of the Uniform Commercial Driver’s License Act, OCGA § 40-5-153 (c). That Code section states that a commercial driver who is asked to submit to chemical testing must be warned “that a refusal to submit to the test will result in that person’s being disqualified from operating a commercial motor vehicle for one year under Code Section 40-5-151 and from operating a private motor vehicle as provided in Code Section 40-5-67.1.” OCGA § 40-5-153 (c). The trial court agreed with Becker, finding that the notices did not comply with § 40-5-153 (c) and that this lack of compliance was an additional basis for suppressing the results of the chemical tests. We reject this analysis.

At the outset, we note that the effect of the State’s failure to comply fully with OCGA § 40-5-153 (c) appears to be an issue of first impression in our Court. In Roberson v. State, we held that the implied consent notice for commercial drivers listed in the current version of OCGA § 40-5-67.1 (b) (3) — the same notice that Rehberg gave in this case — is “an accurate statement of the consequences of refusing [chemical] testing.” We further stated that the notice “gives sufficient information for drivers of commercial vehicles to make truly informed decisions about whether to submit to testing and the impact of that decision on their careers.” But we did not address whether the State must also warn that refusing a test will lead to suspension of personal driving privileges. Pretermitting that question, we find that the omission of an additional warning about personal driving privileges did not require suppression of the test results in this case.

Although we once required precision in the giving of implied consent notices, it is now clear that the focus is on whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing. In Garrett v. Dept. of Public Safety, , we recognized that the purpose of the implied consent law is to notify drivers of their rights so that they can make informed decisions. Accordingly, we have suppressed the results of chemical tests where the driver was misinformed of his rights and where that misinformation may have affected his decision to consent. In State v. Coleman, , for example, we held that suppression was required where an out-of-state driver was wrongly told that he would lose his driver’s license if he refused testing. Likewise, we have suppressed evidence of the driver’s refusal to consent where that refusal may have resulted from misleading information. In State v. Terry for instance, we affirmed the suppression of evidence of a driver’s refusal to take a blood test where police falsely informed her that obtaining bond was a pre-condition to independent testing. We agreed with the trial court that the misinformation was confusing and could have affected the driver’s decision to refuse testing.

On the other hand, we have held that suppression was not required where a driver was misinformed about his implied consent rights, but that misinformation did not affect his decision whether to consent to testing. In Rojas v. State, a police officer correctly told a Florida driver that her privilege to drive on Georgia highways would be suspended for one year if she refused to take chemical tests. After she refused, he incorrectly told her that her refusal would result in immediate suspension of her license for one year. The trial court denied her motion to suppress and admitted evidence of her refusal. We held that the officer’s misstatement of the law was harmless because it did not coerce the driver, who had already refused the testing, to consent. Thus, the trial court properly denied the motion to suppress.

Here, as in Rojas, the omission of information from the notice given to Becker — if indeed it was error — was harmless. After hearing that refusal to consent to chemical testing could be used against him in court and would result in suspension of his commercial driver’s license for one year, Becker agreed to take the tests. For him, those consequences alone were apparently severe enough to justify consenting. Being told that refusal to consent would result in an additional harsh consequence — suspension of personal driving privileges — could only have tipped the balance further in favor of consenting. The omission was therefore immaterial.

Moreover, there is no indication that Rehberg intentionally misled Becker. As we recognized in Sorrow v. State,

[t]his is not a case where the state has subtly coerced [Becker] into choosing the option it had no right to compel, rather than offering a true choice. To the contrary, the State wants [Becker] to choose to take the test, for the inference of intoxication arising from a positive [chemical] test is far stronger than that arising from a refusal to take the test.

Rehberg had every incentive to explain fully the consequences of refusing to consent and no reason to minimize them. Thus, suppression of the test results in this case cannot be justified as a punitive measure for overzealous law enforcement.

Under the circumstances, Rehberg’s failure to tell Becker that his personal driving privileges would be suspended if he did not consent was not a valid basis for suppressing the test results.

Decided October 6, 1999

C. Paul Bowden, District Attorney, for appellant.

Benson, Phillips & Hoffman, Herbert W. Benson, Kunes & Kunes, G. G. Joseph Kunes, Jr., for appellee.

3. Because the record is insufficient to support the trial court’s • first basis for suppression and the second basis is legally incorrect, we remand this case for a redetermination of the motion to suppress. On remand, the trial court may, of course, consider the bases for suppression that it previously reserved ruling upon.

Judgment reversed and case remanded.

McMurray, P. J., and Andrews, P. J., concur.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       The trial court expressly reserved ruling on the other grounds Becker raised.

        Seith v. State, 225 Ga. App. 684, 687 (484 SE2d 690) (1997).

        Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983).

        Seith, supra at 686-687.

       Id. at 686, n. 1; see also OCGA §§ 40-6-392 (a) (4); 40-5-55 (a).

       OCGA § 40-5-67.1 (d) states that if a driver of a commercial vehicle refuses a chemical test, the Department of Public Safety shall suspend both the commercial and private driving privileges of that driver.

       228 Ga. App. 416, 419 (1) (491 SE2d 864) (1997).

       Id.

       As it appears that law enforcement officials are relying on OCGA § 40-5-67.1 (b) (3) as a complete and accurate statement of the implied consent notice for commercial drivers, the legislature may want to amend that language if, indeed, additional warnings about personal driving privileges are also required.

       The current version of OCGA § 40-5-67.1 (b) states that the notices therein “need not be read exactly so long as the substance of the notice remains unchanged.”

       237 Ga. 413, 415 (2) (228 SE2d 812) (1976).

       216 Ga. App. 598, 599 (455 SE2d 604) (1995).

       236 Ga. App. 248 (511 SE2d 608) (1999).

       Id. at 251.

       235 Ga. App. 524, 527-528 (2) (509 SE2d 72) (1998).

       See also Sorrow v. State, 178 Ga. App. 83 (342 SE2d 20) (1986) (officer correctly told driver that refusal to consent to chemical testing could be used against him at trial and could result in suspension of his license and incorrectly told driver that his provisional license had already been suspended; false information was harmless because it did not coerce driver’s refusal to consent).

       (Punctuation omitted.) Id. at 83-84.

       See Akins v. State, 254 Ga. 641, 642 (331 SE2d 597) (1985); State v. Waters, 170 Ga. App. 505, 507 (2) (317 SE2d 614) (1984).


author: Phipps, Judge.

text:
    A99A0981.
    A99A1009.
    JEKYLL DEVELOPMENT ASSOCIATES, L.P. v. GLYNN COUNTY BOARD OF TAX ASSESSORS. JEKYLL DEVELOPMENT ASSOCIATES, L.P. v. GLYNN COUNTY et al.
    (523 SE2d 370)
   Phipps, Judge.

This is an ad valorem tax dispute. The taxpayer is a limited partnership known as Jekyll Development Associates (JDA). JDA is the assignee of a lease originally between the Jekyll Island-State Park Authority (the Authority) as lessor and a general partnership known as Jekyll Club Associates (JCA) as lessee. The subject matter of the lease is the Jekyll Island Resort Hotel, a historic structure. JDA claims that the lease merely gives it a nontaxable usufruct or license to operate the hotel. The local taxing authorities argue that the lease vests JDA with a taxable leasehold estate in the hotel.

Jekyll Island is owned by the State of Georgia. The Authority is a tax-exempt instrumentality created by the Jekyll Island-State Park Authority Act to administer the island. The Authority has a leasehold estate in the island and in the hotel. In 1985, JCA and the Authority entered into the original lease, which was modified and then assigned to JDA. JDA paid ad valorem taxes on its interest in the hotel without protest until 1995, when JDA and JCA sued Glynn County and its board of commissioners for a refund of the tax payments made from 1991 through 1994. They also appealed the assessment of taxes from 1994 to 1996. In the refund action, the superior court entered summary judgment in favor of the county based on its determination that JDA has an interest in the hotel properly classified as a taxable estate for years. For this reason, the superior court also entered judgment in favor of the board of tax assessors in the assessment appeal. In Case No. A99A1009, JDA appeals the judgment entered in the refund action. Case No. A99A0891 is JDA’s appeal of the judgment in the assessment appeal. Held:

1. Distinctions between an estate for years and usufruct are set forth in various Georgia statutes. The grant by one person to another of an estate for years is usually termed a lease, but an estate for years concerning realty does not involve the relationship of landlord and tenant. The relationship of landlord and tenant is created “when the owner of real estate grants to another person . . . the right simply to possess and enjoy the use of such real estate. ... In such a case, no estate passes out of the landlord and the tenant has only a usufruct which may not be conveyed except by the landlord’s consent and which is not subject to levy and sale.” A usufruct has been referred to as “merely a license in real property, which is defined as ‘authority to do a particular act or series of acts on land of another without possessing any estate or interest therein.’ [Cits.]” On the other hand, an estate for years “carries with it the right to use the property in as absolute a manner as may be done with a greater estate, provided that the property or the person who is entitled to the remainder or reversion is not injured by such use.” Therefore, an estate for years, unlike a usufruct, constitutes a taxable interest in land. All renting or leasing of real estate for a period of time in excess of five years is presumed to be an estate for years.

2. Not unexpectedly, there are numerous cases involving leases which have some provisions characteristic of the conveyance of an estate for years along with others indicative of the grant of a mere usufruct. In such cases, of which this is one, all provisions of the lease must be scrutinized objectively to determine whether the legal effect of the agreement is to grant an estate in the property or merely a right of use. An estate for years may be encumbered or somewhat limited without being reduced to a usufruct.

3. Various sections of the lease in this case are indicative of the grant of an estate for years.

Section 1 creates in the lessee a “leasehold estate” and defines the interest so created as an “estate for years.” Although this statement of intent is not controlling in a tax dispute, it is a factor to be taken into consideration in determining the nature of the conveyance.

Section 7 of the lease establishes an initial term of 55 years, and thus presumptively creates an estate for years. Moreover, if the lessee offers to lease the premises beyond the termination of the lease, § 7 requires the lessor to either accept the offer or make a good faith counteroffer. It would be “at least somewhat unusual” for a lessor to give a lessee such extended rights of use and occupancy of premises under the relationship of landlord and tenant.

In addition, § 9 of the lease obligates the lessee to provide broad insurance coverage for the premises and facilities, and § 11 requires the lessee to pay all taxes and assessments. Obligations such as these are generally the responsibility of the holder of an estate in the property.

4. But other sections of the lease impose restrictions on the lessee’s use of the property in a manner more typical of the grant of a usufruct.

Section 3 provides that the premises shall be used by the lessee “solely for the operation of a top quality, family, tourist and convention oriented resort hotel.” To this end, § 15 obligates the lessee to operate the hotel in accordance with prescribed quality standards. Section 13 requires the lessee to maintain landscaping that preserves the natural characteristics of a barrier island and prohibits cutting of trees, alteration of sand dunes, or erection of any advertising displays without the approval of the lessor. Under § 14, rates charged for rooms must be comparable to those prevailing in similar resorts. Section 21 reserves all oil and mineral rights to the lessor. These sections of the lease evince a retention by the lessor of a degree of use or control over the property generally inconsistent with the grant of an estate for years.

5. To complicate matters, there are other sections of the lease which are in some respects indicative of a usufruct but in other ways characteristic of an estate for years.

Sections 12 and 13 of the lease impose a broad obligation on' the lessee to make all ordinary and extraordinary maintenance and repairs to the facilities and to rehabilitate, restore, reconstruct, refurnish, and refurbish them. As a result, destruction or damage to the property does not relieve the lessee from its duties and obligations under the lease. These provisions are indicative of the conveyance of an estate for years. But these sections also obligate the lessee to expend certain minimum sums in making repairs and improvements; to comply with various standards, including rules and regulations prescribed by the lessor; and to have construction plans and specifications approved by the lessor. Restrictions such as these are consistent with the grant of a usufruct.

Section 16 of the lease provides that the lessee has a right to encumber its interest in the property as security for loans, thereby recognizing that the lessee has an interest in the property transcending that of a mere right of use. But various restrictions are placed on this right, including requirements that all loan proceeds be used to benefit the property and that all loans be secured by mortgages not to exceed a specified, aggregate balance unless the lessor approves. Such restrictions are generally inconsistent with the concept of fee simple ownership.

Section 17 of the lease prohibits the lessee from assigning the lease or subletting any part of the premises without the consent of the lessor. This limitation is clearly inconsistent with the grant of an estate for years, “which normally can be alienated without the grantor’s consent.” But § 21 states that any consent requested by the lessee shall not be unreasonably withheld, thereby circumscribing the lessor’s power to withhold its consent. Moreover, § 17 provides that any assignment or subletting shall not relieve the lessee of liability under the lease unless specified by the lessor. This indicates that an estate for years was transferred.

Finally, the right to inspect the premises given to the lessor under §§ 12 and 21 constitutes a retention of control consistent with the grant of a usufruct, but § 8 of the lease otherwise grants to the lessee a covenant of quiet enjoyment. This distinguishes such cases as Allright Parking, In Allright, as here, there were numerous conflicting lease provisions. Ultimately, the Supreme Court determined that only a usufruct had been granted because of one provision in the lease giving the landlord “sole discretion” to determine those portions of the premises “if any” which the tenant was entitled to use and occupy.

6. This case bears some similarity to Henderson v. Tax Assessors, Camden County, where property owners on Cumberland Island had conveyed the underlying fee to the United States by deed while reserving a term of years to end upon their deaths. The deed contained restrictions which provided that, without permission, the grantors could not cut trees, expand access to the island, or materially alter existing structures. Noting that the purpose of the restrictions was to prevent changes incompatible with the announced purpose of creating and maintaining a national park and nature preserve, the Henderson court held that a taxable life estate had been retained.

7. Here, most sections of the lease either grant rights to or impose obligations upon the lessee consistent with the conveyance of an estate for years or set forth restrictions designed to preserve the hotel as a historic structure and protect the lessor’s reversionary interest. The remaining restrictions do not quantitatively or qualitatively outweigh the incidents of ownership vested in the lessee to convert the interest conveyed from the intended leasehold estate to a usufruct. The superior court correctly ruled that JDA must pay ad valorem taxes on its interest in the hotel for the years in question.

Judgments affirmed.

McMurray, P. J., and Ruffin, J., concur.

Decided October 6, 1999

Kilpatrick Stockton, Mara McRae, Julie A. Lierly, Fendig, McLemore, Taylor, Whitworth & Durham, Gilbert C. McLemore, Jr., for appellant.

W. Gary Moore, for appellees.

       OCGA § 12-3-230 et seq.

       OCGA §§ 44-6-101; 44-6-102.

       OCGA § 44-7-1 (a).

       (Emphasis in original.) Henson v. Airways Svc., 220 Ga. 44, 53 (2) (136 SE2d 747) (1964).

       OCGA § 44-6-103.

        Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593, 595 (2) (481 SE2d 580) (1997).

       OCGA § 44-7-1 (b).

       See DeKalb County Bd. of Tax Assessors v. W. C. Harris & Co., 248 Ga. 277, 279 (2) (282 SE2d 880) (1981); Allright Parking &c. Co. v. Joint City-County Bd. &c., 244 Ga. 378 (260 SE2d 315) (1979); Southern Airways Co. v. DeKalb County, 216 Ga. 358 (116 SE2d 602) (1960); Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 485 (6) (46 SE2d 894) (1948); State v. Davison, 198 Ga. 27, 37 (2) (31 SE2d 225) (1944); Huntingdon II, Ltd. v. Chatham County Bd. of Tax Assessors, 207 Ga. App. 466, 467-468 (428 SE2d 605) (1993); Richmond County

        Bd. of Tax Assessors v. Richmond Bonded Warehouse Corp., 173 Ga. App. 278 (325 SE2d 891) (1985); Henderson v. Tax Assessors, Camden County, 156 Ga. App. 590 (275 SE2d 78) (1980); Buoy v. Chatham County Bd. of Tax Assessors, 142 Ga. App. 172 (235 SE2d 556) (1977).

        Huntingdon II, supra at 468.

       See Henderson, supra at 590-591.

        Allright, supra at 386 (3).

        Davison, supra at 42.

       Id. at 41.

       See, e.g., W. C. Harris & Co., supra; Buoy, supra at 173.

       See Southern Airways, supra; Henson, supra at 44 (2); Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531, 532 (349 SE2d 515) (1986).

       See Buoy, supra at 173; Allright, supra at 386.

        Camp v. Delta Air Lines, 232 Ga. 37, 41 (205 SE2d 194) (1974).

       See Buoy, supra; see also Davison, supra at 41.

       See W. C. Harris & Co., supra at 280.

        Eastern Air Lines v. Joint City-County &c. Tax Assessors, 253 Ga. 18, 20 (3) (315 SE2d 890) (1984); see Macon-Bibb County Bd. of Tax Assessors v. Atlantic Southeast Airlines, 262 Ga. 119, 121 (414 SE2d 635) (1992) and cits.

       See Pakwood Indus. v. John Galt Assoc., 219 Ga. App. 527, 529 (1) (466 SE2d 226) (1995).

       See Southland Investment Corp. v. McIntosh, 137 Ga. App. 216, 221 (2) (223 SE2d 257) (1976) (physical precedent only).

        W. C. Harris & Co., supra.

       244 Ga. 378.

       Id. at 386-387; see also Atlantic Southeast Airlines, supra.

       156 Ga. App. at 590.


author: Andrews, Presiding Judge.

text:
    A99A1000.
    FIALLO v. THE STATE.
    (523 SE2d 355)
   Andrews, Presiding Judge.

Juan Antonio Fiallo appeals from his conviction of possession of cocaine with intent to distribute, after a bench trial following denial of his motion to suppress the cocaine and his incriminating statement.

At issue is the supporting affidavit for the search warrant issued for Fiallo’s home. The affiant, Agent Ortiz with the Lowndes County Narcotics Division, swore that, within the past 72 hours, he had received information from a confidential informant

that it observed cocaine at the above location within the past 72 hours. The confidential informant knows what cocaine looks like because it had used cocaine in the past. Confidential Informant made a purchase of cocaine at [the residence] within the past 72 hours for Affiant. The confidential informant saw more cocaine at the location during the buy. . . . Upon Independent Investigation!,] Affiant confirmed that the location does exist as described by the confidential informant.

At the hearing on the motion to suppress, Agent Ortiz stated that this was the first time this confidential informant had been used by the police and that, for this reason, he did not consider the informant reliable. He had done a background check and found that the confidential informant’s only conviction was a DUI. No additional information regarding either the informant or verification of the informant’s information was provided to the judge who issued the search warrant.

Under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the totality of the circumstances, including the veracity and basis of knowledge of the informant, there is a fair probability that contraband or evidence of a crime will be found in a particular place. While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis; and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant. (Citations and punctuation omitted.) Smith v. State, 218 Ga. App. 12, 14 (460 SE2d 114) (1995). In determining the reliability of the information and the informant, when the information supplied by the informant is not corroborated, the magistrate must look to see whether the informant himself was reliable. Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978); Smith, supra at 14.

Decided October 6, 1999.

Ronald L. Beckstrom, for appellant.

(Emphasis supplied.) Mitchell v. State, 239 Ga. App. 735, 736 (1) (521 SE2d 873) (1999).

Here, the record is devoid of any such corroboration. The informant was untested, and there is no indication that the officer either heard or was able to view the purchase which the informant was alleged to have made. Compare Usher v. State, 236 Ga. App. 663 (1) (512 SE2d 380) (1999) and Crawford v. State, 233 Ga. App. 323, 327 (4) (504 SE2d 19) (1998).

Merely confirming that the accused lives where the informant said he did is not sufficient corroboration of the information regarding illegal activity. Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992); State v. Wesson, 237 Ga. App. 789, 791 (516 SE2d 826) (1999).

The factual situation in this case is even less compelling than that in Davis v. State, 214 Ga. App. 36 (447 SE2d 68) (1994), in which this Court found the affidavit insufficient. Therefore, the trial court erred in denying the motion to suppress the cocaine.

Having concluded that the search was without probable cause, we also agree with Fiallo that his subsequent statement should also have been suppressed as the “fruit” of the improper search. Arnold v. State, 237 Ga. App. 857, 859 (1) (517 SE2d 97) (1999); Boatright v. State, 225 Ga. App. 181, 183 (2) (483 SE2d 659) (1997).

Judgment reversed.

McMurray, P. J, and Ruffin, J., concur.

J. David Miller, District Attorney, James B. Threlkeld, Assistant District Attorney, for appellee.