text:
    A01A1104.
    BURNS v. DEES et al.
    (557 SE2d 32)
   Blackburn, Chief Judge.

Robert Lewis Burns filed this action for breach of contract, unjust enrichment, quantum meruit, breach of fiduciary duty, fraud, attorney fees and punitive damages against appellees Jeffrey Dees and William E. Frantz, as co-executors of the estate of John W. O’Donnell, and Phrazer Company, Inc. Burns appeals the trial court’s grant of summary judgment in appellees’ favor on each claim, as well as the trial court’s denial of his motion for partial summary judgment on his breach of contract claim. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

So viewing, the record reveals that, in the early 1970s, O’Donnell founded Phrazer Company and remained its sole shareholder throughout his lifetime. In 1976, O’Donnell met Burns, and they entered into an oral agreement, whereby Burns agreed to use his business expertise to develop certain Phrazer property in Orlando, Florida. In exchange, Burns was to receive a one-third interest in the profits and ultimate sale of the venture. The agreement contained no additional terms or conditions; there was no discussion regarding the allocation of costs or losses, frequency of payments of profits, the specific use of the property or sale of the property, or how the profits or proceeds were to be calculated and when and how they were to be distributed. The agreement was witnessed by two disinterested individuals. Soon thereafter, Burns also became O’Donnell’s salaried employee, working in management at O’Donnell’s Presidential Hotel in Atlanta.

The Orlando, Florida, property was developed and opened in 1979 as the Rainbow Car Center (“RCC”), an airport valet and rental car lot. The record reveals that during the years that followed, O’Donnell represented to others that Burns had an ownership/partnership interest in RCC.

In 1985, Phrazer entered into a written lease-purchase agreement with James Shapiro and his company, providing Shapiro the right to lease RCC property (paying rent and certain profits from the business), with an option to purchase RCC on or before January 15, 1991, for the sum of $2 million. The agreement expressly provided for any purchase proceeds to be made payable to Phrazer. This lease-purchase agreement was attested by Burns. The record does not reflect any objection to this agreement by Burns at that time.

In 1988, the Presidential Hotel closed its doors, and O’Donnell stopped paying Burns a salary. The next year, O’Donnell entered into a written agreement with Burns, providing for Burns to receive $2 million if he could sell the Presidential Hotel for $10 million, within 30 days. Burns did not sell the hotel, and the written agreement expired upon its own terms. In 1991, O’Donnell rehired Burns (for $84,000 annually), to oversee the necessary maintenance at the Presidential Hotel property and to explore possibilities for the sale and/or reopening of the hotel.

In January 1991, Shapiro exercised his option to purchase RCC. All proceeds from the sale were disbursed to Phrazer, as provided for in the lease-purchase agreement. The lawyer handling the disbursement of proceeds testified that O’Donnell acknowledged a one-third/ two-third agreement with Burns, but directed the attorney to pay the proceeds to Phrazer “for tax reasons,” assuring that he would “take care of” Burns. Burns knew how the RCC proceeds were disbursed and agreed to such disbursement before it was completed.

Burns claims that a few days after the sale, O’Donnell approached him and stated as follows: “As you know I owe you much more than just the [RCC] situation. What I would like to do, Rob, is I would like to pay you out — you will be a very, very wealthy man — I would like to pay you out when — at the sale of the hotel,” the sum of $2 million. Other witnesses confirmed that after the RCC sale, O’Donnell stated that he would “take care of” Burns in connection with the sale of the hotel.

Burns claims that O’Donnell’s statement of owing Burns for “more than just the [RCC] situation,” was a reference to “other ventures” that Bums and O’Donnell had entered into over the years. The record reveals that in 1981, O’Donnell purchased Turkey Mountain Farm, retaining sole ownership in the investment until his death. O’Donnell was also the owner and sole shareholder in VIP Travel, a company he sold in 1982. Finally, O’Donnell built Ansley Forest apartments in the 1960s, and he ultimately sold the property in 1984. Witnesses testified that O’Donnell indeed indicated that Burns had interests in these other businesses. However, there is no record evidence concerning the specifics of any alleged agreement between Burns and O’Donnell in connection with the “other ventures.”

In June 1991, O’Donnell prepared a last will and testament, providing a gift of $25,000 to Burns. Two subsequent codicils prepared shortly before O’Donnell’s death eliminated the bequeathed gifts for Burns and other family members. Burns presented the testimony of O’Donnell’s medical providers in an effort to show that he was incapable of reading or understanding the substance of the codicils.

O’Donnell died in February 1993. Thereafter, Burns approached appellee Frantz, co-executor of the estate, to assert his claim against the estate. Burns followed up with a letter from his attorney, seeking 25 percent of the proceeds from the RCC sale, with interest, as well as over $700,000, plus interest, allegedly owed from the “other ventures.”

After the claim was denied, Burns filed a lawsuit, alleging breach of contract, piercing the corporate veil, constructive fraud, fraudulent conveyance, the tort of conversion and personal appropriation of corporate property. Burns later dismissed the action without prejudice. He renewed under OCGA § 9-2-61 and filed a new complaint, asserting claims for: (a) breach of contract; (b) fraud; (c) breach of fiduciary duty; (d) unjust enrichment and quantum meruit; and (e) attorney fees and punitive damages.

Appellees filed a motion for summary judgment on each claim. Burns also filed a motion for partial summary judgment on his breach of contract claim. The trial court granted appellees’ motion and denied Bums’ motion. We affirm.

1. Burns claims that the trial court erred by granting summary judgment in appellees’ favor on his claims for breach of contract, fraud, breach of fiduciary duty, unjust enrichment, quantum meruit, attorney fees, and punitive damages. We disagree as to each claim.

(a) Breach of Contract. Burns contends that O’Donnell (acting individually and on behalf of Phrazer) made the following promises to Burns: (i) a share of one-third of the profit and one-third of the sale proceeds in RCC and (ii) an unspecified interest in, and payment for, his work on “other ventures.” Bums maintains that these agreements were enforceable, and not subject to the statute of frauds or statute of limitation. Pretermitting whether the agreements were subject to the statute of frauds or respective statute of limitation, the agreements are too indefinite to be enforced as a matter of law. For example, Bums’ claim that he was entitled to a finder’s fee from the sale of one of O’Donnell’s properties would clearly be barred, as the sale of the property occurred in 1984. OCGA § 9-3-25. Even a contract taken out of the statute of frauds must be sufficiently definite as to its terms in order to be enforced. See Bridges v. Reliance Trust Co.

“It is well-established that a contract does not exist unless the parties agree on all material terms. OCGA § 13-3-2. A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain.” Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., overruled on other grounds, Atlanta Market Center Mgmt. Co. v. McLane.

When a contract is substantially alleged, some details might be supplied under the doctrines of reasonable time or reasonable requirements. But indefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void. . . . [Moreover,] [although it is true that, in some contexts, partial performance may supply. . . definiteness,. . . deficiencies [are] not cured by performance [where] the agreement relied upon was so vague, indefinite and uncertain as to make it impossible for courts to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there had been performance.

(Punctuation omitted.) Jackson v. Williams (finding construction agreement unenforceable where there was no agreement regarding the material to use in construction, the precise location of the construction, the time period for construction). See also Cumberland, supra at 576 C‘[t]he fact that [defendant] made voluntary commission payments and agreed that an agreement had been reached regarding some of the terms does not cure the deficiencies of the alleged oral agreement”). A court will not enforce an agreement where it is left to ascertain the intention of the parties by conjecture. Id. See also Southeastern Underwriters v. AFLAC, Inc. (if the parties do not create a complete binding agreement, the courts are powerless to do it for them).

We find that the RCC and “other venture” agreements are indefinite and uncertain as to material subject matter such that they do not present anything upon which the agreements could operate. Moreover, any performance by Burns did not cure the deficiencies.

(i) The RCC Agreement. The RCC agreement is too indefinite and uncertain to be enforced. Courts have found contracts similar to the subject agreement to be unenforceable for indefiniteness. See Jack son v. Ford (“[t]o be enforceable, a promise of future compensation must “be for an exact amount or based upon a “formula or method for determining the exact amount of the bonus.” ’ The sum must be ‘definitely and objectively ascertainable from (the) contract’ ”); Cherokee Falls Investments v. Smith (alleged land development contract unenforceable where it did not contain terms of how or when the development was to occur, the allocation of costs and profits between the parties, the proposed completion date for the development project, or whether the joint venture was limited to development of a certain area); Cumberland, supra at 575-576 (in connection with an alleged oral agreement of a payment of five percent of rent collected on property the court found that “[w]ithout any agreement as to the duration or breadth of the payments due ... , we cannot find that an oral contract existed . . . [since such terms] were essential terms upon which the parties needed to agree before a contract existed”).

In Lemming v. Morgan, the defendant allegedly orally agreed that he would transfer one-half interest in a property to plaintiff and split any proceeds earned, in exchange for plaintiff’s use of his expertise and skills in developing and reselling defendant’s property. Later, when defendant refused to transfer the one-half interest, plaintiff sued. Id. We affirmed the trial court’s grant of summary judgment, finding that the one-half interest oral partnership agreement was uncertain and indefinite because it failed to provide:

when transfer of title, division of proceeds, or sale of the properties was to take place; how or when development was to take place on any of the properties; how development or other costs of the ventures were to be allocated; how, when or by whom it would be decided whether the properties would be sold or whether one-half of [defendant’s] interests in the various properties would be transferred to [plaintiff]; or how proceeds would be calculated.

Id. at 764-765 (1). The fact that plaintiff may have performed his obligations under the agreement was inconsequential because, as the court found, “ ‘the agreement relied upon was so vague, indefinite and uncertain as to make it impossible for courts to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there had been performance.’ ” Id. at 765 (1).

The RCC agreement is equally indefinite. It did not provide when the sale of RCC would take place; it did not encompass any agreement as to how the property, development, and other costs would be allocated; it did not take into account each party’s responsibilities in the event the company experienced losses; it did not take into account the parameters of a lease on the property, including how lease payments would be allocated; and it did not encompass a formula for the determination of how the sale proceeds or profits would be calculated (e.g., gross or net) or how or when such profits or proceeds would be distributed. Such specifics were particularly important in this case, since the property was leased to Shapiro under a complicated lease-purchase agreement, attested by Burns, which specifically provided for certain payments to be made along the way (rent and profit from the business) and specifically provided for all sale proceeds to be made payable to Phrazer. Moreover, the fact that the parties now dispute whether or not profits were even made over the years (depending on whether it was considered gross or net) demonstrates the necessity of clear terms in the contract.

The facts in the record do not show with reasonable certainty what the parties intended to do in this agreement. Burns’ subsequent work in connection with RCC does not reveal the intention of the parties. See Cherokee Falls, supra at 605 (1) (“ ‘[n]owhere in the document is there any statement with reasonable certainty as to what the parties were obligating themselves to do to effect what they envisioned, or as to what they envisioned’ ”).

Burns also claims that when RCC was sold, O’Donnell promised that when the Presidential Hotel was sold in the future, he would pay Bums what he was “owed,” both for the RCC deal and for work Bums had done in connection with the “other ventures,” to the tune of $2 million. To the extent Burns offers this promise to bolster the existence of an RCC agreement, it does not cure the fatal deficiencies, as described above. Moreover, if Burns claims that O’Donnell’s promise constitutes a new agreement, it would be based on past consideration (Burns’ work on RCC and “other ventures”), which cannot support the existence of a contract. See Whitmire v. Watkins.

Burns’ reliance upon Pacrim Assoc. v. Turner Home Entertainment and Kueffer Crane &c. v. Passarella is misplaced. In Pacrim, the parties already had an existing licensing agency relationship, and the issue involved whether an additional oral licensing agreement was enforceable. Pacrim, supra at 762-763. The agreement involved the defendant’s promise to make plaintiff its exclusive agent for licensing and merchandising of certain properties in Thailand for a one-year period ending on a certain date and subject to the defendant’s standard agency terras. Id. at 764. In connection with the alleged agreement, the defendant forwarded a memorandum detailing the licensing guidelines, royalty rates, licensing and merchandising approval process, and policies on copyrights and trademarks. Id. at 763. The court found the terms to be definite and that the parties did not leave any material terms to future negotiations. Id. at 764-765.

This case differs from Pacrim in all material respects. Unlike the contract in Pacrim, the Bums-O’Donnell contract did leave material terms to be negotiated in the future. Moreover, neither was there a previous relationship from which the parameters of the contract could be determined. There was no term specified for the contract, and there was no agreement as to payment dates, amounts, duration, or the calculation of such payments. Unlike the contract in Pacrim, the terms of the Burns-O’Donnell agreement were indefinite and unenforceable.

The same distinction applies in connection with Kueffer Crane, supra. There, the defendant agreed to provide plaintiff with a five percent interest in the corporation in return for the plaintiff providing certain services. Id. at 327-328. For the five years the contract was in place, the plaintiff received checks which equated to five percent of the defendant company’s profits. Id. at 328. Also during those five years, plaintiff asked for stock certificates, but was told by defendant that the cost of having the certificates issued was prohibitive at the time. Id. at 329. In discussing the issue of whether the contract was definite, the court distinguished Demer v. Capital City Cable, a case where “[t]he plaintiff did not know the type, number, or issuer of the shares he expected to receive, did not know the valuation method for the shares, and did not know what the [agreement] meant by such phrases as ‘certain conditions will apply to this arrangement’ and ‘defendant will have repurchase rights.’ ” (Punctuation omitted.) Kueffer Crane, supra at 330-331. Stating without explanation that the Kueffer Crane agreement was unlike Demer, the court implied that such specifics were indeed present in the Kueffer Crane agreement, and that the agreement “did not leave matters to future negotiations.” Id. at 331.

In contrast, material terms were left to future negotiations between Bums and O’Donnell. While in Kueffer Crane, a consistent five percent of the company’s profits had been provided for five years, and thus, the calculation of such payment was determinable, here we are unable to determine from the instant contract or dealings how profits or proceeds were to be calculated, and we will not attempt to ascertain the intention of the parties by conjecture. Cumberland, supra at 576; Ford, supra at 306-307.

(ii) Other Ventures. The alleged “other venture” agreements are uncertain and indefinite. There is no record evidence to substantiate the existence of any agreement between Burns and O’Donnell concerning Burns’ interests in the “other ventures.” Neither Burns nor other witnesses could specify the material terms of these alleged agreements. The only documentary evidence Burns relies upon is the 1989 agreement where O’Donnell was to pay Bums $2 million if Burns could sell the Presidential Hotel within 30 days, as “payment for his efforts and counsel in this and other transactions, also for his service and devotion for many years.” The hotel was not sold within 30 days, and the agreement expired on its own terms. The record is devoid of facts to show what Bums and O’Donnell were obligating themselves to do with respect to the “other ventures.” Thus, such alleged agreements were too uncertain and indefinite to be enforced.

Accordingly, as the claims against Phrazer rest upon the same allegations as the claims against the estate of O’Donnell, the trial court properly granted defendants’ motions for summary judgment.

(b) Fraud/Fraudulent Inducement. Burns alleges that O’Donnell committed fraud by making promises with the intent not to perform, thereby inducing Burns to give up his own businesses to work with O’Donnell. Bums makes the serious accusation that the executors played a role in changing O’Donnell’s will, to Bums’ and others’ detriment (including O’Donnell’s grandchildren), when O’Donnell was incapacitated and unable to understand the changes made. Bums also claims that the executors purposefully chose to probate the will in Florida in order to gain a windfall in fees and payments to themselves, and that they purposefully hid O’Donnell’s wife’s terminal illness from Burns in order to avoid her deposition being taken. The validity of the will and its administration are not at issue in this case. Notwithstanding the executors’ actions in connection with the administration of the estate or O’Donnell’s conduct with respect to enforceable contracts he may have had with others, Bums’ action for fraud in this case “cannot be predicated on a promise which is unenforceable at the time it is made. As discussed above, [O’Donnell’s] promise [to Burns] was, at all times, too indefinite to be enforced. It follows that the trial court properly granted . . . summary judgment on the fraud claim.” (Punctuation and footnote omitted.) Ford, supra at 307-308. See also Presto v. Scientific-Atlanta.

Burns’ reliance on Rogers v. deMonteguin is misplaced. Unlike the subject case, Rogers involved an enforceable building contract. Id. at 481.

Here, there was no enforceable agreement, either with respect to the original alleged agreement or O’Donnell’s alleged subsequent promises. Fraud cannot be predicated on an unenforceable promise, and therefore summary judgment was proper in this case. Ford, supra; Presto, supra.

(c) Breach of Fiduciary Duty. Bums based his breach of fiduciary duty claim entirely upon the existence of a joint venture relationship between himself and O’Donnell. In the trial court and on appeal, Bums has argued only that if a joint venture contract existed, his breach of fiduciary duty should survive summary judgment. The record does not reflect that any enforceable joint venture contract existed. Burns points to no evidence thereof and fails to otherwise demonstrate the existence of either the contract or a fiduciary relationship which might establish O’Donnell’s duties; therefore, his claim cannot survive summary judgment. See O’Neal v. Home Town Bank &c. (“[t]he party asserting the existence of a fiduciary or confidential relationship bears the burden of establishing its existence”).

(d) Unjust Enrichment/Quantum Meruit. Bums alleges that the trial court erred by finding his claims for unjust enrichment and quantum meruit barred by the four-year statute of limitation. OCGA § 9-3-26. Bums does not dispute that his original lawsuit did not contain these causes of action and that at the time they were brought, the statute of limitation period had run. Instead, Bums asserts that the claims were mere amendments to the complaint in the original action under OCGA § 9-11-15 (c). We disagree.

To suspend the running of the statute of limitation in a renewal action, the cause of action must be substantially the same as in the original action. Heyde v. Xtraman, Inc. A defendant’s liability “ ‘cannot be enlarged beyond that indicated by the pleadings in the first case.’ ” Bertone v. Wilkinson. We have held that a plaintiff may not utilize the amendment provisions under OCGA § 9-11-15 (c) to attempt to add otherwise barred claims to renewal actions, when such claims are not substantially the same as the claims in the original action. Alfred v. Right Stuff Food Stores

Decided November 16, 2001

Reconsideration denied November 29,2001

Terry D. Jackson, for appellant.

Burns’ claims for unjust enrichment and quantum meruit were not included in the original complaint. They were raised for the first time in the renewal action, after the statute of limitation had run. Accordingly, such claims are barred.

Moreover, Bums’ attempt to discredit Alfred as being contrary to Young v. Rider is without merit. Unlike the subject case, the renewal action in Young contained the same causes of action as the original complaint. Id. at 148-149 (2).

Here, the unjust enrichment and quantum meruit claims were not part of the original complaint. Moreover, the dismissal which preceded Bums’ assertion of these claims was a dismissal of the entire action, not merely a dismissal of certain claims. Thus, Bums’ attempt to substantially change the cause of action is barred by the applicable statutes of limitation, and the trial court did not err in granting summary judgment as to these claims. Heyde, supra; Bertone, supra.

(e) Attorney Fees and Punitive Damages. Burns’ claims for attorney fees and punitive damages rest upon the weight of his other claims. As Bums has not prevailed on any of his enumerations, his claims for attorney fees and punitive damages must fail. See R. T. Patterson Funeral Home v. Head (attorney fees not recoverable); Viau v. Fred Dean, Inc (punitive damages not recoverable). The trial court did not err in granting summary judgment to defendants.

2. Having found that the trial court did not err in granting defendants’ motion for summary judgment, it follows that there was no error in denying Burns’ motion for partial summary judgment.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Bovis, Kyle & Burch, Stuart S. Bushy, John H. Peavy, Jr., for appellees.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       One witness testified that “at that time, I don’t think they had any dreaming idea of what they were going to do with — with the property.”

       This appeal does not involve any claim in connection with the validity of the will, yet Burns believes that the circumstances surrounding the preparation of the will and codicil are relevant to the issue of fraud.

       It is curious that Bums’ attorney’s letter to the executors demanded only 25 percent of the RCC proceeds. However, viewing the facts in Bums’ favor, we will assume that the agreement was for one-third of RCC’s proceeds.

        Bridges v. Reliance Trust Co., 205 Ga. App. 400, 401-402 (2) (422 SE2d 277) (1992).

        Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., 228 Ga. App. 571, 574-575 (1) (492 SE2d 546) (1997).

        Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 610 (2) (503 SE2d 278) (1998).

        Jackson v. Williams, 209 Ga. App. 640, 642-643 (1) (434 SE2d 98) (1993).

        Southeastern Underwriters v. AFLAC, Inc., 210 Ga. App. 444, 446 (1) (436 SE2d 556) (1993).

        Jackson v. Ford, 252 Ga. App. 304, 306 (555 SE2d 143) (2001).

        Cherokee Falls Investments v. Smith, 213 Ga. App. 603 (445 SE2d 572) (1994).

        Lemming v. Morgan, 228 Ga. App. 763 (492 SE2d 742) (1997).

        Whitmire v. Watkins, 245 Ga. 713, 714 (267 SE2d 6) (1980).

        Pacrim Assoc. v. Turner Home Entertainment, 235 Ga. App. 761 (510 SE2d 52) (1998).

        Kueffer Crane &c. v. Passarella, 247 Ga. App. 327 (543 SE2d 113) (2000).

        Demer v. Capital City Cable, 190 Ga. App. 40 (378 SE2d 162) (1989).

       E.g., with regard to Bums’ allegation that he is entitled to a finder’s fee for one venture, the essential elements of price and the due date of the payment are absent. See Green v. Johnston Realty, 212 Ga. App. 656 (442 SE2d 843) (1994); BellSouth Advertising &c. Corp. v. McCollum, 209 Ga. App. 441 (433 SE2d 437) (1993).

       Bums has apparently abandoned his allegation that O’Donnell pierced the corporate veil and misappropriated and converted Phrazer funds to his personal use in order to avoid payment to Bums.

        Presto v. Scientific-Atlanta, 193 Ga. App. 606, 607 (3) (388 SE2d 719) (1989).

        Rogers v. deMonteguin, 193 Ga. App. 480 (388 SE2d 10) (1989).

        O’Neal v. Home Town Bank &c., 237 Ga. App. 325, 330 (5) (514 SE2d 669) (1999).

        Heyde v. Xtraman, Inc., 199 Ga. App. 303, 305 (1) (404 SE2d 607) (1991).

        Bertone v. Wilkinson, 213 Ga. App. 255, 256 (444 SE2d 576) (1994).

        Alfred v. Right Stuff Food Stores, 241 Ga. App. 338, 339 (2) (525 SE2d 717) (1999).

        Young v. Rider, 208 Ga. App. 147, 148-149 (2) (430 SE2d 117) (1993).

        R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 586 (5) (451 SE2d 812) (1994).

        Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A1287.
    SANDERS v. THE STATE.
    (556 SE2d 505)
   Blackburn, Chief Judge.

William Virgil Sanders III appeals his conviction for possession of marijuana, contending that (1) the trial court erred by failing to suppress evidence obtained pursuant to a search warrant and (2) the State failed to establish that venue was proper in Fayette County. For the reasons set forth below, we affirm.

1. We first address Sanders’ contention that the trial court erred in failing to suppress that evidence obtained pursuant to a search warrant. “This court’s responsibility in reviewing a trial court’s ruling on a motion to suppress is to assure there was a substantial basis for the decision, and the evidence is construed to uphold the findings and judgment of the trial court.” Claire v. State. So viewing the record, the evidence shows that a magistrate judge found probable cause to issue a warrant to search Sanders’ residence based upon the averments, of a Fayette County police officer. The officer was familiar with Sanders from previous narcotics investigations and from an incident in 1995 in which Sanders was arrested for possession of three ounces of marijuana. In the affidavit, the officer swore that the described incident occurred in Fayette County, Georgia, and that he:

was contacted by a confidential reliable informant! ]. [The informant] stated that within the past seventy-two hours [he] had seen a quantity of marijuana within the residence of Billy Sanders located at 650 East Lanier Ave. Fayetteville, Ga. [The informant] further stated that [he] had seen Billy in possession of a handgun. [The informant] is familiar with marijuana in its various forms and has been responsible for the arrest and seizure of numerous persons and narcotics in the past.

Sanders contends that the magistrate was unable to determine whether probable cause existed because (1) the affidavit failed to set forth sufficient facts upon which the magistrate could determine the reliability of the informant and information he provided, (2) the informant/information was, in fact, not reliable as evidenced by factual inaccuracies, and (3) the information provided by the informant was not sufficiently corroborated.

A magistrate’s finding of probable cause is reviewed under the “totality of the circumstances” test enunciated in Illinois v. Gates, which provides that:

the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted.) Munson v. State. See Claire, supra at 648-649. For a magistrate to properly determine the veracity and reliability of the informant and his hearsay information:

The type of information which should be furnished to the magistrate ... is: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished. And it is not necessary for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis.

(Footnotes omitted.) Claire, supra at 649, citing Mitchell v. State,

The affidavit examined by the magistrate here set forth sufficient facts upon which the magistrate could determine the reliability of the informant and his/her information. The same type of information had previously been supplied by the informant and had led to the seizures of other contraband and arrests of other offenders. In addition, the informant was familiar with marijuana in its various forms. Furthermore, the informant contacted the officer and informed him that the informant personally saw marijuana in Sanders’ residence within the past 72 hours, and the affidavit was prepared and reviewed by the magistrate on the following day. The affidavit was sufficient. See, e.g., Crawford v. State (affidavit sufficient where it provided that informant had been used eight to ten times in the past, his information had led to other arrests and was proven to be reliable in the past, and the informant stated that he had seen contraband in the defendants’ residence); Bowe v. State (affidavit sufficient where it provided that informant had provided truthful information in the past which led to seizure of controlled substances and the arrest of individuals, and that the informant saw defendant in possession of controlled substances within forty-eight hours).

Furthermore, there is no merit to Sanders’ contention that the veracity and reliability of the information were called into question by the informant’s statements that Sanders possessed a handgun and that there was a “quantity” of marijuana in the house (although the actual search revealed a quantity of less than one ounce). With respect to the handgun, there is no record evidence that the gun was not in Sanders’ possession when the informant was at his residence. The only mention of this issue is contained in Sanders’ counsels’ acknowledgment that Sanders had indeed had a gun in the house, but had pawned the gun “two to three weeks” prior to the search. Since the informant was in Sanders’ residence nine days prior to the search, an interpretation that most strongly supports the ruling of the magistrate as to the existence of probable cause is that Sanders was still in possession of the gun when the informant was at his residence, but in any event, such conflicts in evidence and the credibility of witnesses are for the jury to resolve.

Similarly, the informant’s statement that he saw a “quantity” of marijuana is not contradicted by the amount actually found later upon the execution of the search warrant. The informant was at Sanders’ residence nine days prior to the actual search. The interpretation that most strongly supports the issuance of the warrant is that Sanders had more marijuana in his residence when the informant was there. Sanders does not show that the outcome would have been any different if the informant stated that he saw “marijuana,” rather than a “quantity of marijuana.” See Dorminey v. State (“Even if the statements alleged to have been embellished are ‘excised from the affidavit, the remaining information is sufficient to show probable cause; therefore, the search warrant is valid.’ ”) (citation omitted).

Finally, Sanders argues that the information provided by the informant was not sufficiently corroborated. “Under a ‘totality of the circumstances’ approach, corroboration simply supplies an alternative ‘basis for finding probable cause, [where there are] deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge.’” (Citation omitted.) Crawford, supra at 327 (4). Here, because the informant’s veracity, reliability, and basis of knowledge were sufficiently established, corroboration was not required.

Accordingly, the affidavit sufficiently established probable cause to search Sanders’ residence, and the trial court did not err in denying Sanders’ motion to suppress.

2. We next address Sanders’ contention that the State failed to prove that venue was proper in Fayette County, Georgia. In response, the State maintains that in this bench trial, Sanders stipulated to all the elements to support his conviction, including venue, and sought to preserve only the issue of whether probable cause existed to issue a search warrant. The State argues that Sanders had therefore waived his right to raise this issue on appeal.

By entering a not guilty plea on February 27, 1999, Sanders challenged venue. “The act of pleading not guilty to an indictment is considered by law to be an irrefutable challenge to all the allegations set forth therein, including those allegations pertaining to venue.” Jones v. State. The State was thereafter required to prove venue beyond a reasonable doubt under Jackson v. Virginia.

Once the burden is placed upon the State to establish venue beyond a reasonable doubt, the burden never shifts to the defendant to disprove venue, as it is axiomatic that the evidentiary burden in a criminal prosecution is “upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.

(Footnote omitted.) Jones, supra. See also Tunarka v. State.

Sanders was convicted at a stipulated bench trial following his plea of not guilty. In Case No. A01A0764, Sanders initially appealed the trial court’s denial of his motion to suppress based on a lack of probable cause to issue the warrant. As the warrant and supporting affidavit were not a part of the trial record, the case was remanded at Sanders’ request, until such time as the record was complete. A hearing was held on Sanders’ motion to perfect record, and the present appeal followed that proceeding. The venue issue was raised for the first time in this appeal.

Sanders contends that the State failed to prove that venue was proper in Fayette County. Venue is an essential element of the crime charged, which the State was required to prove, absent a stipulation thereto. The State argues that the case had been tried by stipulation, and that Sanders had stipulated to all the facts required to support the elements required for conviction, including venue. The State contends that the only issue that Sanders sought to preserve for appeal was whether probable cause existed to issue the search warrant, the execution of which resulted in the subject charges.

“Parties may agree to stipulate to facts in criminal and civil cases. Stipulation should be in writing or made on the record.” (Footnote omitted.) Milich, Ga. Rules of Evidence (1995), p. 29. See In re Glenn (in criminal cases, the court should not accept a stipulation as to a material fact without a showing that it was authorized by the accused himself). In Tribble v. State, this court held that “The contention that a defendant cannot be convicted on a stipulation of facts agreed to and executed by him is not well taken. Under [OCGA § 24-4-24], a solemn admission in judicio is, at least until withdrawn after notice, conclusively binding upon the parties thereto.” Stipulated bench trials are an efficient way to reduce the expense of litigation and to reduce the time involved in resolving cases and are routinely utilized. See, e.g., Barnett v. State; Smith v. State; Edgerton v. State; Miller v. State; Furfano v. State. Defendants often stipulate to bench trials, appealing only the issue of the trial court’s refusal to suppress evidence. See Richards v. State.

We have rejected defendants’ attempts to appeal stipulated issues after bench trials. In Scott v. State, the defendant, on appeal from his conviction, raised both the issue of the trial court’s denial of the motion to suppress, the issue sought to be preserved, and the sufficiency of the evidence, an issue precluded by the stipulation. We concluded that defense counsel, through his conduct and representations to the court concerning the stipulated bench trial, had misled the court and the solicitor. In Scott, counsel for the defendant did not refute the State’s characterization of defendant’s desire to preserve only the question of the denial of her motion to suppress when asked specifically if she wished to do so. This court stated that:

It is obvious from a review of the record that the defense attorney led both the trial judge and the prosecuting attorney to think that the only issue contested by the defendant was whether the evidence, obtained by the search of defendant, should be suppressed. The defense attorney made it clear to both the prosecuting attorney and the trial judge that her main goal in defending this case was to preserve for appeal the denial of defendant’s motion to suppress. Defense counsel led the trial court to believe she conceded that the State had otherwise met its burden of proof. Defendant thus waived his right to challenge the sufficiency of the evidence of the elements of the crimes charged.

Id. at 163 (1).

A review of the transcript of the February 24, 2000 bench trial does not contain a detailed stipulation agreement in this case. Much of what occurred in arriving at a stipulation occurred in chambers or was not otherwise reported in this misdemeanor case. There is clearly much that occurred that is not contained in the transcript of the February 24, 2000 bench trial. The transcript is simply a recitation by the solicitor-general of the facts relevant to the search and the crime committed. At one point, the court inquired of defense counsel if he was preserving his objection to the introduction of that evidence from the previous motion to suppress, to which counsel responded, “that’s correct.” There then followed a discussion of the State’s negotiated sentencing recommendation in which defense counsel participated. The court clearly understood that the case was to be appealed when he made a comment to the defendant relevant to probation requirements, “But if your conviction is overturned on appeal, that will not be necessary.” The clerk made reference to defense counsel providing probation with a copy of a notice of appeal. Sanders was present, and neither he nor his attorney objected to the above proceeding and each participated in same.

Because Sanders could not go forward with his original appeal based on the insufficiency of the affidavit and the search warrant because they had not been introduced at the bench trial and were not a part of the record, he filed a motion to remand the case for perfection of the record, which was granted. His motion to perfect the record was heard by the trial court on February 1, 2001.

It is obvious from a review of the transcript of the February 1, 2001 hearing that Sanders and his attorneys led the court, as well as the State, to continue to understand that the only contested issue there had been at trial was whether the evidence should be suppressed. The facts here are even more compelling than those in Scott. Here, the record reveals that Sanders agreed that (1) the elements of the offense had been proven, (2) in the trial of the case, the court properly considered the facts contained in the affidavit in support of the search warrant by stipulation, including venue in Fayette County, and (3) the only issue he wished to preserve for appeal was that of the sufficiency of the warrant affidavit to establish probable cause.

Defense trial counsel stated, “we stipulated to the facts in court, but preserved the right to go back up on the search warrant issue. So I think we’re where we want to be as far as the defense’s right to litigate the legitimacy of the search warrant.” Defense appellate counsel, when asked by the trial court if she had anything to add, stated:

In trying to take this up on appeal, I have discovered there was nothing put in the record as to the conference in chambers and that the parties agreed that the search warrant and affidavit would be reviewed by the Court. The search warrant nor the affidavit were placed into the record [sic]. So we don’t have a record of what the Court actually reviewed so that the appellate court can review it. I am just trying to get the record back to what transpired so that the appellate court can review what the trial court did.

The trial court then stated:

The record shall reflect that there were pretrial conferences concerning this case. It was represented that the chief defense was to the sufficiency or the legality of the search warrant. I examined that, and I denied the motion to suppress on those grounds. It having been represented that this issue would be dispositive of the case, I granted a certificate of immediate review, which was denied by the Court of Appeals. To expedite the matter and to also preserve that one issue of appeal, the parties agreed to [sic] stipulated bench trial where all the elements of the offense would be stipulated, but the defense would be allowed to appeal the search warrant and search warrant affidavit which had already been examined by the court in chambers with the consent of both parties. For that reason it was the intent of the parties and the court that the search warrant and the search warrant affidavit be made a part of the record. I think it was considered by all at that time that it would be. It was also relied upon by the court by stipulation that those elements would be considered, along with the proper factual statement, thereby also providing a factual basis for venue.

Transcript, Motion to Perfect Record Hearing, February 1, 2001.

The trial court then supplemented the original trial record with a copy of the affidavit and search warrant. A review of the search warrant affidavit indicates that the criminal violations occurred at 650 East Lanier Avenue, Fayetteville, Fayette County, Georgia.

At the conclusion of the hearing, the State asked: “Judge, is it your understanding that as part of the record that the only issue they were preserving for appeal was the validity of the search warrant and the affidavit?” After the court answered in the affirmative, Sanders’ counsel simply said, “thank you,” and the proceedings were concluded. It is clear that Sanders stipulated to all elements of the offense, including venue, stipulated to the trial court’s acceptance of the facts contained in the affidavit as true, and stipulated that the only issue he was preserving was that of the sufficiency of the affidavit to establish probable cause. Sanders therefore knowingly waived his right to raise the issue of venue on appeal. Even had Sanders not waived his right to raise the venue issue on appeal, the trial court did not err in determining that the State had proven that venue was in Fayette County in this case.

We note that Sanders’ stipulations were conditioned upon our affirmance with respect to the motion to suppress. Had we found that the trial court improperly suppressed the evidence obtained during a search of Sanders’ residence, Sanders’ stipulations would not have been considered in the determination of his guilt. See Richards, supra.

Decided November 14, 2001

Reconsideration denied November 29,2001.

Patricia A. Buttaro, for appellant.

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

Sanders’ reliance on Tunarka, supra, is misplaced. Tunarka did not address the issue of stipulations in connection with a bench trial. It simply affirmed the fact that where the defendant pleads not guilty, he challenges venue and the State must prove that element beyond a reasonable doubt. Furthermore, Sanders’ reliance upon Chandler v. State is misplaced, as that case addressed the application of the “slight evidence” rule, which our Supreme Court disallowed in Jones, supra.

Accordingly, the trial court did not err in denying Sanders’ motion to suppress or in determining that the State had established that venue was proper in Fayette County.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Claire v. State, 247 Ga. App. 648 (544 SE2d 537) (2001).

        Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).

        Munson v. State, 211 Ga. App. 80, 81 (438 SE2d 123) (1993).

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

       Contrary to Sanders’ argument that the affidavit did not provide that the information came from “personal knowledge,” the informant’s statement that he/she actually saw the marijuana is sufficient to establish his/her personal knowledge. In addition, the informant’s direct contact with the officer is sufficient to establish the officer’s personal knowledge of what the informant stated.

        Crawford v. State, 233 Ga. App. 323, 327 (4) (504 SE2d 19) (1998).

        Bowe v. State, 201 Ga. App. 127, 130 (3) (410 SE2d 765) (1991).

       Sanders cites no authority to support his contention that an affidavit is insufficient if it does not provide (1) information regarding payments made to the informant, (2) the informant’s motivation for volunteering the information, and (3) whether the informant has provided incorrect information in the past. Furthermore, in State v. Brown, 186 Ga. App. 155, 157 (2) (366 SE2d 816) (1988), the criminal background of the individual providing the information was deemed necessary to show whether the individual was indeed a “concerned citizen” informant. This case is distinguishable from Brown because it does not involve a “concerned citizen” informant, but rather, a veteran informant who had familiarity with the particular contraband at issue and had provided information leading to the arrest of several individuals in the past. The criminal history of the informant is not necessary where these other reliability factors are present.

       “If an appellate court finds that an affidavit is susceptible to two or more reasonable factual interpretations, it should, in deference to the magistrate’s determination, adopt that interpretation [that] most strongly supports the ruling of the magistrate as to the existence of probable cause.” (Citations and emphasis omitted.) Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989), disapproved on other grounds, Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

        Dorminey v. State, 205 Ga. App. 806, 807 (1) (423 SE2d 698) (1992).

        Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Tunarka v. State, 247 Ga. App. 578, 579 (545 SE2d 15) (2001).

       We also note that in his motion to remand his original appeal, Sanders stated unequivocally that “the basis of Appellant’s appeal is the denial of his motion to suppress, which was based on an improper search warrant and associated affidavit.”

        In re Glenn, 200 Ga. App. 276 (407 SE2d 428) (1991).

        Tribble v. State, 89 Ga. App. 593, 598 (3) (80 SE2d 711) (1954).

        Barnett v. State, 245 Ga. App. 717 (538 SE2d 812) (2000).

        Smith v. State, 238 Ga. App. 558 (519 SE2d 474) (1999).

        Edgerton v. State, 237 Ga. App. 786 (516 SE2d 830) (1999).

        Miller v. State, 221 Ga. App. 494 (471 SE2d 565) (1996).

        Furfano v. State, 212 Ga. App. 472 (442 SE2d 305) (1994).

        Richards v. State, 269 Ga. 483, 485, n. 5 (500 SE2d 581) (1998).

        Scott v. State, 201 Ga. App. 162 (1) (410 SE2d 362) (1991).

        Chandler v. State, 248 Ga. App. 154 (546 SE2d 296) (2001).


author: Ruffin, Judge.

text:
    A01A1330.
    MOORE-DAVIS MOTORS, INC. v. JOYNER.
    (556 SE2d 137)
   Ruffin, Judge.

Gordon Joyner, an attorney, filed this pro se action against Moore-Davis Motors, Inc. d/b/a Toyota of Roswell (“Toyota of Roswell”), alleging the defendant engaged in deceptive and unfair trade practices which constituted fraud and violations of Georgia’s Uniform Deceptive Trade Practices Act (“UDTPA”) and Fair Business Practices Act (“FBPA”). On cross-motions for summary judgment, the trial court partially granted Joyner’s motion, finding as a matter of law that Toyota of Roswell violated the FBPA, and denied Toyota of Roswell’s motion. Toyota of Roswell appeals, and for reasons that follow, we reverse.

On appeal from a trial court’s ruling on a motion for summary judgment, we conduct a de novo review and construe the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.

In this case, the undisputed evidence shows that on Saturday morning, November 22, 1997, Joyner saw Toyota of Roswell’s newspaper advertisement for a 1998 Toyota 4Runner, with a lease price of $236 per month. Although the text of the advertisement described a base model Toyota 4Runner, a published picture depicted a Toyota 4Runner Limited, which had bumpers and fenders of the same color as the car body. In an affidavit, Joyner stated that the color-coordinated bumpers and fenders were “the major reason that the model pictured . . . appealed to [him],” and that based on the advertisement, he “decided that [he] wanted to lease the vehicle represented ... in accordance with the terms stated.” Accordingly, Joyner telephoned Toyota of Roswell and informed the sales manager that he would be in later that morning to lease the vehicle depicted in the advertisement.

When Joyner arrived at Toyota of Roswell, he showed the advertisement to the sales manager and told the sales manager he wanted to lease the car. After a salesperson showed Joyner a regular Toyota 4Runner, he noticed that the bumpers and fenders were not color-coordinated, as depicted in the advertisement. It soon became apparent that the newspaper, which selected the picture of the Toyota 4Runner Limited from a CD-ROM provided by the car manufacturer, published the wrong photograph. After the salesperson and sales manager told Joyner that Toyota of Roswell could not lease him a Toyota 4Runner Limited for the advertised price, Joyner left the dealership. In his deposition, Joyner stated that he spent only 15 minutes at the dealership.

Joyner eventually leased a 1998 Ford Explorer Sport for $397.85 per month. The Ford Explorer was red with gray bumpers and fenders. Joyner nevertheless sued Toyota of Roswell, alleging he was damaged by the erroneous newspaper advertisement.

1. The FBPA prohibits a business from “[Representing that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another [and from] [advertising goods or services with intent not to sell them as advertised.” Although the FBPA provides administrative remedies for any violation of the Act, a private right of action is available only to a person “who suffers injury or damages as a result of a violation.” Accordingly, we have held that to prevail on a private cause of action under the FBPA, a private individual must establish “three elements: a violation of the Act, causation, and injury.”

In this case, Toyota of Roswell moved for summary judgment on Joyner’s FBPA claim, arguing that there was no evidence that he was damaged by the alleged violation. In his response, Joyner failed to cite any evidence establishing how he was damaged, and because he has not filed a brief on appeal, we remain uninformed as to the basis for his damages claim. Moreover, Joyner cannot rely on a naked claim for nominal or general damages to sustain his cause of action. We have “consistently held that in accordance with the statutory requirements of the FBPA, the measure of damages to be applied for an FBPA violation is that of‘actual injury suffered.’ The general provisions of OCGA § 51-12-2 (a) damages recoverable without proof of amount are not applicable.”

It is patently clear that Joyner failed to present any evidence of damages to support his FBPA claim, and “[t]he absence of this single element of each part of the claim compelled summary judgment to [Toyota of Roswell] and correlative denial of judgment to [Joyner].” The trial court erred in ruling otherwise.

2. For the same reasons, we conclude that the trial court erred in failing to grant summary judgment to Toyota of Roswell on Joyner’s fraud claim. “[T]o establish a cause of action for fraud, a party must show that actual damages, not simply nominal damages, flowed from the fraud alleged.” Again, Joyner failed to present any such evidence.

3. Finally, we agree with Toyota of Roswell that the trial court erred in denying its motion for summary judgment on Joyner’s UDTPA claim. Like the FBPA, the UDTPA prohibits a business from representing “that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another [and from] [a]dvertis[ing] goods or services with intent not to sell them as advertised.” Unlike the FBPA, which permits a recovery of damages, the sole remedy available under the UDTPA is injunctive relief. However, to be entitled to injunctive relief, a plaintiff must establish that he is “[a] person likely to be damaged by a deceptive trade practice of another.”

Decided September 24, 2001

Reconsideration denied November 29, 2001

Paul, Hastings, Janofsky & Walker, John G. Parker, Jeffrey L. Berhold, for appellant.

Gordon L. Joyner, pro se.

In this case, there is no evidence that Joyner is likely to be damaged by the defective advertisement. Again, Joyner has not pointed to any evidence establishing how he has been damaged in the past, and there is no indication that he would likely be damaged by the advertisement in the future. Moreover, the owner of Toyota of Roswell stated in an affidavit that the advertisement at issue “is no longer running in the newspaper [, and] at [his] instructions, the newspaper now includes a ‘pictures may vary’ disclaimer with every advertisement.” Under these circumstances, we can discern no reason why Joyner would be entitled to injunctive relief under the UDTPA, and the trial court should have granted summary judgment to Toyota of Roswell.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 10-1-370 et seq.

       OCGA § 10-1-390 et seq.

       Joyner did not file a brief with the Court.

       See Gresham v. Bell’s Food Market, 244 Ga. App. 240 (534 SE2d 537) (2000).

       OCGA § 10-1-393 (b) (7), (9).

       See OCGA § 10-1-397 (a).

       OCGA § 10-1-399 (a).

       (Punctuation omitted.) Agnew v. Great A & P Tea Co., 232 Ga. App. 708, 709 (502 SE2d 735) (1998).

       (Citations, punctuation and footnote omitted.) Id. at 710 (1).

       Id.

       (Punctuation omitted.) Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 713 (2) (507 SE2d 493) (1998).

       OCGA § 10-1-372 (a) (7), (9).

       See OCGA § 10-1-373 (a); Lauria v. Ford Motor Co., 169 Ga. App. 203, 206 (3) (312 SE2d 190) (1983).

       OCGA § 10-1-373 (a).


author: Phipps, Judge.

text:
    A01A1409.
    NATION v. THE STATE.
    (556 SE2d 196)
   Phipps, Judge.

Bobby Leon Nation was convicted of possession of marijuana with intent to sell and possession of more than one ounce of marijuana. He was sentenced as a recidivist. On appeal, Nation claims, that the trial court erred by: (1) allowing the State to introduce similar transaction evidence; (2) denying Nation’s motion to suppress; (3) allowing evidence of a taped conversation between Nation and his co-defendant, Michael Davis, who was convicted of possession of less than one ounce of marijuana; (4) charging the jury on parties to a crime; (5) failing to charge the jury on equal access and (6) sentencing him as a recidivist. Finding no harmful error, we affirm.

In April 2000, the Rome-Floyd Metro Task Force executed a search warrant for Davis’s residence and curtilage. When Investigator Couey approached the residence, he observed Nation facing the side door of a garage behind the residence, carrying beer and a white plastic bag. As Couey drove into the driveway, he saw Nation leaning into the front driver’s side of a station wagon parked in front of the garage. Nation then moved away from the car and shut the door. Couey detained Nation and informed him that he was there to execute a search warrant.

Task force investigators searched the residence and seized approximately 18 grams of marijuana and a handgun from Davis’s bedroom. They also seized $2,111 from Nation’s pocket. After the residence search was completed, Couey asked Nation who owned the station wagon. Nation denied ownership although a key to the car was found in his possession. When Couey searched the car, he found a white bag and two smaller plastic bags, which contained 51.6 grams of marijuana, protruding from under the driver’s seat. A search of the garage revealed a small set of scales and a small vacuum that emitted a strong odor of marijuana when its top was removed.

After the search, Nation and Davis were arrested, handcuffed, placed in the backseat of Officer Blalock’s patrol car and left unattended. Their ensuing conversation was surreptitiously recorded, and the taped conversation was played for the jury. During the conversation, Nation said, “I’m going to put that right here. Pull that sock back up.” After reviewing the tape, Blalock immediately searched the backseat of his patrol car and found wedged in the crevice of the seat a sandwich bag containing 9.1 grams of marijuana. He testified that his normal practice is to search his car at the beginning of every shift and every time someone exits the backseat.

The State introduced evidence of a similar transaction involving a search of Nation’s residence by Couey in March 1999. Prior to the search, Couey located Nation at the garage behind Davis’s residence. Couey informed Nation of the warrant and drove him to the residence. At some point, Nation told Couey that he had two bags of marijuana in the kitchen. While searching Nation’s residence, task force investigators located the marijuana (a total of 15 grams) and a small set of scales identical to the scales found in the garage in the present case. They also found $914 in Nation’s wallet. Couey testified that Nation told him that he was not working at the time and that he sold marijuana to help pay the bills. Before the similar transaction evidence was presented, the court instructed the jury that it was being admitted for the limited purpose of proving identity, state of mind and intent with respect to the elements of the offenses charged in this indictment and that it pertained only to Nation.

1. Nation challenges the admission of the similar transaction evidence, arguing that it was not sufficiently similar to prove bent of mind or course of conduct. His defense in this case was his lack of knowledge or possession of any of the marijuana seized in the searches.

We review a trial court’s findings on the question of similarity under the clearly erroneous standard.

“Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In order for any independent acts to be admissible [,] it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime.”

Although termed “similar transactions,” “[t]he ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case.” The independent crime and the charged offense need not be identical in character if there is a sufficient connection between them. “[And] ‘[d]rug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.’ ”

Here, both crimes involved possession of marijuana and possession of or access to scales that could not weigh anything heavier than four ounces. In addition, the State presented evidence that Nation was carrying large amounts of cash on both occasions and that he had admitted that he sold marijuana. The trial court’s conclusion that the crimes were sufficiently similar to justify admission of the prior offense was not clearly erroneous.

2. Nation sought to suppress the marijuana seized from the station wagon outside the garage because it was outside the scope of the search warrant. The trial court ruled that Nation had no standing to object and that, even if he did have standing, the officers had probable cause to search the car.

Prior to the search, Nation told Couey that the car did not belong to him, that he did not know who owned it and that he did not have a key to it. At the motion to suppress hearing, Nation testified that his sister-in-law had told him that someone was bringing a car down for him to service and would leave it outside the garage. He stated that he had taken a set of keys from the drop box outside the garage, but did not know they belonged to the station wagon. At trial, Nation testified that he did not discover to whom the car belonged until the day after the search and that he did not know what was in the white bag the investigators retrieved from the car.

We must construe the evidence most favorably to support the trial court’s ruling on a motion to suppress. When a defendant “ ‘disavows ownership of or other legitimate possessory interest in the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.’ ” Nation claimed neither an ownership nor a possessory interest in the station wagon or the marijuana found in the station wagon. Thus, the trial court properly ruled that he lacked standing to challenge the search.

3. Nation claims that the trial court erred by admitting the taped conversation between him and Davis in the back of the police car because the conversation was taped without his knowledge or permission. At trial, Nation argued that the taping was improper because he had a reasonable expectation of privacy while in the police car.

In Burgeson v. State, the Supreme Court of Georgia addressed a similar claim and held that a person seated in a police car has no reasonable expectation of privacy. Here, as in Burgeson, “there is no evidence that the police did anything to foster a belief that post-arrest conversation in the back seat of the patrol car would be private in any regard.” The trial court did not err by admitting the taped conversation.

4. Nation claims that the trial court erred by charging the jury on parties to a crime because all of the marijuana seized in this case was possessed solely by one person.

A charge on parties to a crime is error only where there is insufficient evidence, circumstantial or otherwise, to support the theory. Here, the task force located marijuana in three separate locations — the station wagon, Davis’s bedroom and the police car. There was no evidence tying Davis to the marijuana in the station wagon and no evidence tying Nation to the marijuana in Davis’s bedroom. As for the marijuana found in the police car, there is no evidence that it was possessed jointly by Nation and Davis. Thus, we agree that the facts do not support a charge on parties to a crime.

But where there is no reasonable possibility that an erroneous charge on parties to a crime misled the jury or permitted a defendant’s conviction on an erroneous theory, the error is harmless. By its verdict, the jury demonstrated its ability to differentiate between the marijuana linked to Nation and that linked to Davis. The indictment charged Nation and Davis with possession of marijuana with intent to sell and possession of more than one ounce of marijuana. The jury found Davis not guilty of possession of marijuana with intent to sell and guilty of possession of less than one ounce of marijuana. Nation was found guilty of possession with intent to sell and possession of more than one ounce of marijuana. The only marijuana that weighed more than one ounce was found in the station wagon, and evidence was presented linking that marijuana to Nation, not to Davis. Nation has failed to show any harm caused by the erroneous charge, and we find it “highly probable” that the error did not contribute to the verdict.

5. Nation argues that the trial court erred by failing to charge the jury on equal access because other people owned and had access to the station wagon and the garage.

“The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle.” “It is simply a defense available to the accused to whom a presumption of possession flows.”

Because the State made no attempt to show that Nation owned or had exclusive control of the station wagon or the garage, no presumption of ownership arose and there was no triggering of the equal access defense. Thus, the trial court did not err by failing to charge the jury on equal access.

6. Nation was indicted and sentenced as a recidivist. He claims that because he was not provided with a copy of the prior conviction before sentencing, the trial court should not have sentenced him as a recidivist.

OCGA § 17-10-2 (a) requires that any evidence in aggravation be disclosed by the State to the defendant prior to trial for such evidence to be admitted at a presentence hearing. Here, the indictment contained a separate count charging Nation with recidivism based on a January 21,1986 conviction for violating the Georgia Controlled Substances Act. Under the circumstances, he cannot claim lack of notice.

Decided November 5, 2001

Reconsideration denied November 29, 2001.

James C. Wyatt, for appellant.

Bobby L. Nation, pro se.

Tambra P. Colston, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Tate v. State, 230 Ga. App. 186, 188 (2) (495 SE2d 658) (1998).

       (Citation omitted.) Jones v. State, 236 Ga. App. 330, 332 (1) (b) (511 SE2d 883) (1999).

        Williams v. State, 251 Ga. 749, 784 (4) (312 SE2d 40) (1984).

        Wells v. State, 237 Ga. App. 109, 113 (4) (514 SE2d 245) (1999).

       (Footnote omitted.) Evans v. State, 235 Ga. App. 577, 581 (3) (510 SE2d 313) (1998).

       See Tate, supra.

        Henderson v. State, 211 Ga. App. 102, 103 (2) (438 SE2d 181) (1993).

       (Footnote omitted.) Scandrett v. State, 244 Ga. App. 200, 201 (534 SE2d 908) (2000).

        Albarran v. State, 249 Ga. App. 331, 332 (1) (548 SE2d 440) (2001).

       267 Ga. 102, 106-107 (3) (d) (475 SE2d 580) (1996).

       Id.; see United States v. McKinnon, 985 F2d 525, 527 (11th Cir. 1993) (relied on in Burgeson', under federal law, a person seated in a police car has no reasonable expectation of privacy).

        Evans v. State, 138 Ga. App. 460, 461 (3) (226 SE2d 303) (1976).

       See OCGA § 16-2-20.

        Newton a State, 154 Ga. App. 98, 100 (2) (267 SE2d 641) (1980); see State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984) (the only reason for including prior convictions in an indictment is “to give to the accused unmistakable advance warning that [they] will be used against him at sentencing”).

        Welch v. State, 163 Ga. App. 383 (2) (294 SE2d 596) (1982).

       Id.; see also Barnes v. State, 164 Ga. App. 631, 632 (1) (298 SE2d 311) (1982).

        Wright v. State, 194 Ga. App. 739, 741 (2) (391 SE2d 791) (1990).

       (Citations and punctuation omitted.) Jackson v. State, 216 Ga. App. 842, 845 (2) (456 SE2d 229) (1995).

       Id.

       Id.


author: Eldridge, Judge.

text:
    A02A0017.
    JOHNSON et al. v. COMCAR INDUSTRIES, INC. et al.
    (556 SE2d 148)
   Eldridge, Judge.

We granted appellants-defendants William F. Johnson’s, Blue Tee Corporation’s, National Union Fire Insurance Company’s, and Southco Company of North Carolina’s application for interlocutory review of the DeKalb County State Court’s order denying their motion for partial summary judgment grounded upon the claim that appellees-plaintiffs Comear Industries, Inc. d/b/a Coastal Transport and Protective Insurance Company, its insurer, were not entitled to assert a subrogation claim in this workers’ compensation case. Pertinently, the instant case arises out of a motor vehicle collision in DeKalb County between Johnson and appellee-plaintiff-intervenor Richard S. Poe, a Comear employee at the time of the accident. Poe was injured in the accident; however, because he then lived in Virginia, Protective paid Poe workers’ compensation benefits under the Virginia Workers’ Compensation Act. Subsequently, Comear and Protective, as Poe’s subrogees, filed the instant action against Johnson, Blue Tee, National Union, and Southco, seeking to recover the workers’ compensation benefits paid Poe in Virginia. Poe, in turn, voluntarily dismissed the damages action he had filed against Johnson, and, on February 4,1999, the state court granted Poe’s motion to intervene herein. Johnson, Blue Tee, National Union, and Southco appeal the denial of their motion for partial summary judgment, contending that Georgia law bars the subrogation claim against them made by Comear and Protective. Finding that the law of Georgia governs and that the plain meaning of OCGA § 34-9-11.1 (b) allows subrogee employers and their insurers to recover workers’ compensation benefits only to the extent that these have been paid injured employees under the Georgia Workers’ Compensation Act, we reverse.

Lex loci delictis, i.e., the place of the wrong, is the Georgia conflict of law rule here applicable. Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 760 (437 SE2d 616) (1993), citing Sargent Indus. v. Delta Air Lines, 251 Ga. 91, 93 (303 SE2d 108) (1983). Mindful of the foregoing, the state court notes, and the parties agree, that Georgia law governs any right to subrogation which Comear and Protective may have in this case. In this regard, OCGA § 34-9-11.1 sets out the employer’s or insurer’s right to be subrogated to an employee’s claim against a third-party tortfeasor in Georgia. Subsection (b) thereof provides:

In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

(Emphasis supplied.) OCGA § 34-9-11.1 (b).

By its own terms, given emphasis above, OCGA § 34-9-11.1 (b) plainly provides the employer or insurer a right of subrogation limited to benefits paid under the Georgia Workers’ Compensation Act. “When, as here, the plain language of the statute is susceptible of only one meaning, the courts must follow that meaning unless to do so would produce contradiction or absurdity. [Cit.]” Chives v. State, 214 Ga. App. 786, 787 (449 SE2d 152) (1994); accord Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227) (1990). Benefits having been paid Poe under Virginia law alone, Comear and Protective have no Georgia subrogation right in this case. OCGA § 34-9-11.1; Maryland Cas. Ins. Co. v. Glomski, supra at 761. It follows that the state court erred in denying Johnson, Blue Tee, National Union, and Southco partial summary judgment, requiring reversal. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (“If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.”).

Decided October 19, 2001

Reconsideration denied November 29,2001

Goldner, Sommers, Scrudder & Bass, Thomas E. McCarter, for appellants.

Robert L. Kiser, Robert A. Eisner, for appellees.

Judgment reversed.

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

       Va. Code § 65.2-309.

       On January 22, 1999, Comear dismissed its complaint against Blue Tee without prejudice.


text:
    A02A0180.
    FRAZIER v. THE STATE.
    (557 SE2d 12)
   Eldridge, Judge.

A DeKalb County jury found David Earl Frazier guilty of two counts of child molestation for acts he committed against the three-year-old daughter of his ex-girliriend, which offenses came to light when the then four-year-old child spontaneously told her mother that a pair of pantyhose her mother had rolled into a ball “looked like David Frazier’s penis.” This is the second appearance of this case before us. We reversed the judgment entered on the first jury’s verdict of guilty, finding that certain evidence was improperly admitted at trial. Frazier now appeals the judgment entered on the second jury’s guilty verdict. Finding no merit to Frazier’s lengthy claims of error, we affirm his conviction.

1. Frazier contends that the trial court erred in permitting the introduction of a videotape of the victim’s outcry; he argues that the videotape did not have the requisite “indicia of reliability” necessary for admission. We disagree.

(a) Under OCGA § 24-3-16, a videotaped statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on her by a defendant is admissible in evidence “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” In determining whether such video contains sufficient “indicia of reliability,” a trial court may consider many factors, some of which were identified in our decision in Gregg v. State. These

include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Of course, because “[i]ndicia of reliability must spring from the circumstances of the statement,” the above-referenced factors are certainly not exhaustive; there may be other relevant aspects of a child’s statement that demonstrate reliability in a fashion unique to that child under the circumstances. Further, each factor does not have to be present as some may not be applicable in any given circumstance. Instead, in Gregg, we endeavored to provide a fluid — not rigid — guide with which to aid the trial court in its determination as to the validity of a child’s outcry hearsay, a determination which is really a credibility decision as to the reliability of the child’s statement based on the totality of the circumstances. And, as always, “[credibility as it relates to the admissibility of evidence is an issue for the trial court; a trial court’s findings as to credibility will be upheld on appeal unless clearly erroneous.”

In this case, the trial court viewed the videotape with both parties. Thereafter, applying several of the factors suggested in Gregg, the trial court explained its reasons for concluding that sufficient indicia of reliability existed for admission. Among such reasons were the lack of “coaching” by any adult; the lack of contact with anyone about the incident until the victim’s spontaneous statement to her mother a year later; the appropriate demeanor of the child; the fact that the child was “extremely bright”; and the lack of any inducement to malee such outcry. Under such circumstances, we do not find as error the trial court’s conclusion that the videotape contained sufficient indicia of reliability to support its admission.

(b) The victim, ten years old at time of trial, took the stand so that any inconsistencies in her videotaped statement could be explored on cross-examination. Accordingly, the videotaped statement was admissible.

2. The indictment in this case alleged that the offenses occurred “between the 1st day of January, 1995 and the 31st day of March, 1995.” Pursuant thereto, the trial court charged the jury that “the dates alleged within this bill of indictment are not a material allegation. It is sufficient if the State proves beyond a reasonable doubt that the crime was committed within seven years prior to the return of the indictment.” Frazier contends that such charge was error in light of his alibi defense that he no longer lived at the victim’s residence during the time period reflected in the bill of indictment. We find no error.

It is well established that where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial.

In this case, however, the evidence of the State conformed to the dates alleged in the indictment. The State’s evidence showed that Frazier was the boyfriend of the victim’s mother and lived in the victim’s home. The acts of molestation occurred in the afternoon at the victim’s home during a “school day,” while Frazier was alone with her. The State’s evidence showed that the only time Frazier was alone at home with the victim during a school day was between January and March 1995, when Frazier was between jobs and picked the victim up from school for her mother; he moved out of the victim’s home at the end of March 1995 and did not return. Frazier’s alibi evidence covered the same three-month period. Thus, “the defendant’s ability to present a defense was not materially affected when the indictment charged the date of child molestation as [between January 1, 1995, and March 31, 1995], and the evidence showed that acts of molestation occurred [between such dates].” The trial court’s charge, otherwise a correct statement of law, does not require reversal when the State’s proof and the defendant’s alibi cover the same period of time as alleged in the indictment. Indeed, with regard to this claim of error, Frazier stated at trial only that “what I am asking the court to do is require the State to prove its case within those alleged dates that are on the indictment.” The State did so.

3. We also find no error in the admission of similar transaction evidence in this case.

(a) “[Frazier] failed to object to the introduction of the evidence at trial, which waived the issue on appeal. The rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.”

(b) The similar transaction evidence was admissible under the standard of Williams v. State. The similar act occurred five months after the instant offense and consisted of a molestation of the seven-year-old daughter of a woman Frazier married following his separation from the mother of the current victim, for which subsequent offense Frazier was convicted in Fulton County. In each instance, Frazier was involved with the mother of the victim and was living in the victim’s home. He used his relationship with the mother to prey upon the young daughter thereof. The fact that in one incident Frazier made the three-year-old victim touch his penis and in the other Frazier touched the seven-year-old victim’s vagina does not render the offenses dissimilar so as to affect admissibility. “[T]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts or other conduct perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Both incidents demonstrate Frazier’s bent of mind and course of conduct in performing sexual acts upon the young girls who were under his control and custody.

4. We reject Frazier’s contention that reversal is required because the trial court did not conduct a second similar transaction hearing with regard to the same similar transaction evidence admitted during the first trial. This contention was not raised below and thus is waived. In addition, our review of the record shows that a second hearing was conducted during which Frazier argued against the admissibility of the similar transaction evidence. Accordingly, this contention is without factual basis.

5. Frazier claims error in the trial court’s refusal to permit a jury voir dire question as to whether evidence that Frazier had been convicted of child molestation in Fulton County would “affect your ability to fairly and impartially decide this matter on its merits?” However, evidence of Frazier’s Fulton County conviction for child molestation was admissible to demonstrate Frazier’s bent of mind and course of conduct with regard to the victim in the case-in-chief. Thus, the purpose of such evidence was to affect the jury’s decision on the merits of the case; impartiality remains throughout a trial “unless and until overcome by evidence.” Frazier’s voir dire question in essence asked the jury to prejudge evidence they had not yet heard with regard to its effect on the verdict. As such, the question was not permissible. “A trial court does not abuse its broad discretion in limiting questions to those that do not require the juror to prejudge the case.”

6. Next, Frazier contends he was denied a thorough and sifting cross-examination of the similar transaction victim’s mother, A. R, because the trial court would not permit him to question A. R about her cocaine use. Frazier claims that A. R opened the door to such questioning when she testified that her daughter “told me that she had wanted to tell me before [about the molestation], but she never could get me alone to tell me because he [Frazier] didn’t want her to tell.” Frazier asserted at trial that evidence of A. R’s cocaine use was relevant “[t]o explain why [the victim] was not allowed to have access to her mother at certain times by David Frazier. ... To allow us to explain why there were times when [the victim] was kept apart from her mother.” We find no error precluding the cross-examination of A. P. about her alleged cocaine use. “A defendant’s right to a thorough and sifting cross examination is not violated by a trial court’s confining questioning to relevant, material matters, and the trial court, in determining the scope of relevant cross-examination, has a broad discretion.”

Here, the testimony cited by Frazier did not assert that the victim was “not allowed access to her mother at certain times by David Frazier” or that the victim “was kept apart from her mother” by Frazier. To the contrary, the gist of A. P.’s testimony was that the victim was with her mother, but she was never with her alone-, that Frazier was constantly present in order to prevent the victim from telling A. P. about his acts. The trial court did not abuse its discretion in refusing to permit Frazier to cross-examine A. P. about cocaine use in order to “explain” an issue not raised by A. P.’s testimony.

Moreover, the trial court did not rule out evidence of cocaine use by A. P., but found that such was not admissible on the basis asserted above. The court determined that if evidence later came in that Frazier kept the similar transaction victim away from A. R, then the issue of A. P.’s alleged cocaine use to explain Frazier’s actions could be revisited. However, no such evidence was introduced, even by Frazier who testified at trial. Thus, the basis for the instant claim of error is factually meritless.

7. Frazier contends that, based on our prior holding in his first appeal, it was reversible error to permit testimony that the similar transaction victim was watching a pornographic videotape at the time Frazier molested her. We disagree.

(a) Frazier’s failure to object to the similar transaction evidence prior to its admission at trial waives the instant claim of error.

(b) In Frazier’s first appeal, we found that the State’s introduction of certain sexually explicit demonstrative evidence, including videotape, was not admissible simply to show Frazier’s “lustful disposition,” because such evidence had no connection to the indicted acts: “None of the materials depicted or referred to the sexual activity with which Frazier was charged.” However, our prior ruling had nothing whatsoever to do with the similar transaction offense and cannot be used to bootstrap reversible error. Here, no videotape or other material was introduced to show “lustful disposition.” And the young victim’s testimony that Frazier forced her to watch a pornographic video with him at the same time that he sexually molested her was part of circumstances surrounding the independent act of child molestation. As such, it was admissible.

8. In his final enumeration of error, Frazier claims that he received ineffective assistance of counsel at trial. Frazier made such claim in his first appeal against the defense counsel who secured an acquittal for Frazier on aggravated child molestation during the first trial. As such, we will entertain only those issues that pertain to trial counsel’s representation on retrial, since all allegations of ineffective assistance of counsel must be raised at the earliest practicable moment, and any allegation not so raised is deemed waived.

In order to prevail, [Frazier] must show both deficient performance by trial counsel and actual prejudice. To show deficient performance, he must demonstrate that trial counsel’s performance was not reasonable under the circumstances confronting them before and during the trial, without using hindsight. [Frazier’s] burden is high because trial counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. To show actual prejudice, [Frazier] must demonstrate that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Further, “[t]he trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous.”

(a) We find no error in defense counsel’s decision to call DeKalb County Assistant District Attorney Sheila Connors as a witness in order to emphasize both the inconsistencies in the victim’s testimony and the repetition thereof. Such was a strategic decision made after agreement by Frazier and does not demonstrate error. Any credibility matter with regard to Frazier’s desire to call Connors as a witness was resolved by the trier of fact.

(b) We find no basis for objection to the State’s cross-examination of Connors as to her training. Further, defense counsel made timely objection when Connors’ testimony appeared to be straying into the child abuse accommodation syndrome, and such was corrected pursuant to counsel’s objection.

(c) There is no evidence in the record demonstrating that a “September 2, 1995 videotape” was either available to defense counsel or would have been helpful to Frazier’s case. Current counsel did not obtain the videotape for the motion for new trial. Thus, neither error nor prejudice has been shown by the fact Frazier’s trial attorney failed to obtain said videotape.

(d) The victim’s testimony that Frazier threatened to kill her family if she told anyone about the molestation was part of the res gestae and was admissible. Further, such statement was not required to be revealed under the criminal discovery act, since it was neither a custodial statement of the defendant nor a recorded statement by the victim “in the possession, custody, or control of the state or prosecution.” Accordingly, there was no basis for objection. “Failure to make a meritless objection cannot be evidence of ineffective assistance.”

(e) In the first trial, the jury acquitted Frazier under Count 1 of the original indictment of the offense of aggravated child molestation and returned a guilty verdict on the remaining two counts of child molestation under Counts 2 and 3. Upon retrial and by agreement of the parties, the State redacted the original indictment and removed the offense of aggravated child molestation. The indictment was further redacted so that it contained only the two remaining counts of child molestation, renamed as Counts 1 and 2. Now, Frazier contends that defense counsel should have filed a “plea in abatement” to a “defective indictment.” He claims that removing the original Count 1, aggravated child molestation, for which Frazier was acquitted and replacing it with Count 1, child molestation, for which Frazier was subsequently convicted, “gives the appearance of nullifying his acquittal” under the original Count 1.

To this contention we can only inquire, “To whom is such ‘appearance’ given? And where is the harm?” The jury had neither the original indictment nor knowledge of the original Count 1 so as to be affected by such “appearance”; certainly, the parties knew that Frazier had been acquitted under the original Count 1 and would not be fooled by such “appearance”; and Frazier does not contend that the redaction actually served to nullify his acquittal on the original Count 1 in fact or in law. Clearly, Frazier was subject to retrial under the original indictment; if such had not been redacted to remove all suggestion of a first trial, a more plausible claim of error and prejudice could be made. Under the circumstances, however, the instant claim is so patently meritless as to require no further discussion.

Decided November 13, 2001

Reconsideration denied November 29,2001.

Maria Murder-Ashley, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

(f) Any remaining claims of error are waived for failure to raise them at the earliest practicable moment.

Judgment affirmed.

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

        Frazier v. State, 241 Ga. App. 125 (524 SE2d 768) (1999).

       OCGA § 24-3-16.

       201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       (Emphasis omitted.) Id.

       Id.

        Martin v. State, 235 Ga. App. 844, 845-846 (4) (510 SE2d 602) (1998) (the Gregg factors are to be applied neither in mechanical nor mathematical fashion).

       (Citation and punctuation omitted.) Wesley v. State, 228 Ga. App. 342, 343 (1) (491 SE2d 824) (1997). See also Singleton v. State, 236 Ga. App. 438, 441 (2) (511 SE2d 541) (1999); Atwater v. State, 233 Ga. App. 339, 343 (4) (503 SE2d 919) (1998); Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995).

        Myrick v. State, 242 Ga. App. 892, 895 (2) (531 SE2d 766) (2000).

       Id.; Medina v. State, 234 Ga. App. 13, 15 (1) (b) (505 SE2d 558) (1998); Calloway v. State, 199 Ga. App. 272, 273 (2) (404 SE2d 811) (1991).

       (Citations and punctuation omitted; emphasis supplied.) Turner v. State, 202 Ga. App. 799, 800 (415 SE2d 524) (1992).

       Id.; Henson v. State, 182 Ga. App. 617, 618 (3) (356 SE2d 556) (1987).

        Arnold v. State, 236 Ga. App. 380, 384 (7) (511 SE2d 219) (1999).

        Price v. State, 223 Ga. App. 185, 187 (4) (477 SE2d 353) (1996).

       (Punctuation and footnotes omitted.) Cowan v. State, 243 Ga. App. 388, 392 (2) (d) (531 SE2d 785) (2000). See Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       (Punctuation omitted.) Myrick v. State, supra at 894 (1).

       See Miller v. State, 226 Ga. App. 509, 513 (486 SE2d 911) (1997) (prior crimes evidence demonstrating the sexual exploitation of young family members admissible). '

        Lambropoulous v. State, 234 Ga. App. 625, 626 (507 SE2d 225) (1998).

        Reeves v. State, 241 Ga. 44, 48 (4) (243 SE2d 24) (1978); Mitchell v. State, 223 Ga. App. 319 (1) (477 SE2d 612) (1996).

        McCannon v. State, 268 Ga. 393, 395 (3) (489 SE2d 801) (1997).

       (Punctuation omitted.) King v. State, 273 Ga. 258, 274 (31) (539 SE2d 783) (2000).

        Young v. State, supra at 479.

        Frazier v. State, supra at 126.

        Guild, v. State, 234 Ga. App. 862, 868 (7) (a) (508 SE2d 231) (1998).

        Bagwell v. State, 270 Ga. 175, 179 (1) (f) (508 SE2d 385) (1998).

       (Citations and punctuation omitted.) Head v. Carr, 273 Ga. 613, 615-616 (4) (544 SE2d 409) (2001).

        Chapman v. State, 273 Ga. 348, 349-350 (2) (541 SE2d 634) (2001).

        Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999).

        Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997).

       OCGA §§ 17-16-7; 17-16-4; State v. Lucious, 271 Ga. 361, 362 (518 SE2d 677) (1999).

       (Punctuation and footnote omitted.) Demetrios v. State, 246 Ga. App. 506, 513 (7) (a) (541 SE2d 83) (2000).

        Bagwell v. State, supra at 179 (1) (f).