author:
Barnes, Judge.
      ELDRIDGE, Judge,

text:
    A99A1783.
    In the Interest of N. T. S., a child.
    (528 SE2d 876)
   Barnes, Judge.

N. T. S. appeals from the judgment of delinquency entered by the juvenile court, which found that she committed the delinquent act of “disorderly conduct/affray” and sentenced her to two years on probation and ninety days in a youth detention center. N. T. S., who was 13 years old as of the judgment, asserts on appeal that insufficient evidence supports her adjudication and that venue was not proven. We agree that the State failed to prove venue beyond a reasonable doubt and, therefore, must reverse the adjudication.

On appeal, we view the evidence in a light most favorable to support the findings and judgment. We determine whether the evidence is sufficient, but we do not weigh the evidence or determine witness credibility. In the Interest of C. T., 197 Ga. App. 300, 301 (2) (398 SE2d 286) (1990). To affirm an adjudication based on circumstantial evidence, the facts must be consistent with guilt and exclude every other reasonable hypothesis except guilt. In the Interest of A. D. C., 228 Ga. App. 829, 830 (493 SE2d 38) (1997).

The only testimony at N. T. S.’s juvenile court hearing came from two investigating detectives. The first detective testified that he responded to a call regarding a fight and found N. T. S. in a parking lot with a small cut on her forehead. Her co-defendant, 13-year-old C. J., was nearby on a porch. The detective testified:

A toy truck was thrown by [N. T. S.] After the toy truck was thrown, [C. J.] reciprocated by swinging a broom stick at [N. T. S.] and it struck her in the left side of her forehead, causing a gash across her face. Basically, we’re saying, they both admitted to us that this fight started verbally. They both admitted the truck was thrown. They both admitted the stick was swung. They both admitted to each weapon they had. They both admitted there was a fight. The only problem was, their stories contradicted, so we ended up charging each one. Due to the disturbance of the peace, we filed complaints on both juveniles.

The detective confirmed in response to cross-examination that his testimony was based on information from witnesses who were not present at the hearing, as well as on what the two juveniles told him. The second detective’s entire testimony was as follows:

Recently on the 10th of September 98, at 1825 hours, we responded to Revis Street in reference to a fight involving [C. J.] and [N. T. S.] Both parties admitted the fight started verbally. [N. T. S.] stated that she had a truck and slung it at [C. J.] and [C. J.] hit her with a stick leaving a scratch on the left side of her face.

1. N. T. S. asserts that insufficient evidence supports her adjudication of delinquency based on the crime of affray. “Affray” is defined in OCGA § 16-11-32 (a) as “the fighting by two or more persons in some public place to the disturbance of the public tranquility.” In reversing a conviction for affray, this court recognized that

[o]ne may become involved in an affray; and may “fight together” with another in a public place without ever intending to be involved therein. It could not be unlawful to fight without the intention of doing so; and the automatic reflexes of any individual would cause him to push back the thing that is about to destroy him.

(Emphasis in original.) Johnson v. State, 135 Ga. App. 360, 361-362 (3) (217 SE2d 618) (1975).

The juveniles’ statements to the detectives were admissions and thus constitute admissible circumstantial evidence of their guilt. See Thompson v. State, 151 Ga. App. 128, 129 (1) (258 SE2d 776) (1979); Stephens v. State, 127 Ga. App. 416, 418-419 (1) (193 SE2d 870) (1972). The issue of intent is peculiarly within the province of the factfinder, OCGA § 16-2-6; M. J. W. v. State of Ga., 133 Ga. App. 350, 351 (1) (210 SE2d 842) (1974), and “intent may be inferred from conduct before, during, and after the commission of the crime.” (Citation and punctuation omitted.) Hanifa v. State, 269 Ga. 797, 809 (8) (505 SE2d 731) (1998).

N. T. S. admitted that she threw the toy truck at C. J. first, and from that admission the juvenile court could infer that she intended to start a fight. We find the evidence sufficient to uphold the adjudication of delinquency.

2. N. T. S. argues that the State failed to prove venue. Venue is an essential element of a criminal charge that must be proved beyond a reasonable doubt. Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998). “Only when the evidence is not conflicting and when no challenge to venue is raised at trial will slight evidence be sufficient to prove venue.” Id. N. T. S. not only challenged venue by pleading not guilty but also argued during the adjudication hearing that the State failed to prove venue. Under the Supreme Court’s directive in Graves, therefore, the slight evidence rule does not apply here.

The only references to venue during the trial were the two detectives’ testimony that they were called to “508-510 Revis Street,” and one detective’s testimony that he worked for the LaGrange Police Department.

The testimony relating to Revis Street, which failed to specify either the municipality or the county in which the street was located, is not sufficient to establish venue. Bradley v. State, 238 Ga. App. 490 (519 SE2d 261) (1999); Patterson v. State, 157 Ga. App. 233, 234 (276 SE2d 900) (1981). And while the trier of fact was entitled to infer that the officer acted within his territorial jurisdiction of the city of LaGrange, Joiner v. State, 231 Ga. App. 61, 62 (497 SE2d 642) (1998), and the trial court could have taken judicial notice that LaGrange was located in Troup County, nothing in the record indicates that the trial court took such judicial notice and gave the parties an opportunity to respond. Graves v. State, supra; Bradley v. State, supra. Therefore, the State failed to establish venue beyond a reasonable doubt in the Juvenile Court of Troup County.

Judgment reversed.

Blackburn, P. J., and Eldridge, J., concur specially in judgment only.

ELDRIDGE, Judge,

concurring specially in judgment only.

I concur in judgment only because the majority holds that, pursuant to the Supreme Court’s decision in Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998), the slight evidence rule “does not apply in here,” and that the “slight evidence rule is eliminated in every criminal trial.” See Division 2, n. 1, of the majority opinion. I disagree with these assertions.

In Graves, the Supreme Court held that a “not guilty” plea serves as a challenge to venue at a criminal trial. Id. at 774. The majority finds that such challenge to venue is all that is necessary to preclude the slight evidence rule. A fortiori, the rule would be eliminated in every criminal trial since every such trial includes a “not guilty” plea. In reaching its conclusion, however, the majority ignores the fact that the Supreme Court in Graves also cited the well-recognized principle that slight evidence will be sufficient to prove venue when no challenge to venue is raised at trial and when the evidence as to venue is not in conflict. Id. at 773; see also Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988); Bass v. State, 238 Ga. App. 503, 504 (2) (519 SE2d 294) (1999); Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999); Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998). This is a two-prong showing: to preclude the slight evidence rule there must be a challenge raised at trial and the evidence as to venue must conflict. Thus, contrary to the majority’s position, a challenge to venue by virtue of the entry of a “not guilty” plea cannot, alone, preclude the fact that slight evidence of venue is sufficient to sustain a verdict.

The presence of conflicting evidence of venue is a requisite of longstanding and, in fact, gave rise to the “slight evidence” rule, which reads as follows: “ ‘Evidence as to the venue, though slight, is sufficient where there is no conflicting evidence.’ ” This is because when evidence of venue is not conflicting, “no evidence conflicts with the conclusion that the crime was committed in [the challenged] County.” Minter v. State, supra at 630 (1); Frisbey v. State, supra at 886. In fact, the majority’s position that the slight evidence rule has been abolished in every criminal trial in Georgia makes little common sense: as a matter of law, where there is slight, competent, and uncontradicted evidence of venue — which a jury has found sufficient through the return of a guilty verdict — appellate courts cannot weigh the evidence of venue and find it “too slight,” substituting our judgment for the jury’s. Venue is a question to be decided by the jury, and its decision will not be set aside as long as there is any evidence to support it. McGee v. State, 209 Ga. App. 261, 262 (2) (433 SE2d 374) (1993); Jones v. State, 245 Ga. 592, 596 (266 SE2d 201) (1980). Thus, slight, competent, and uncontradicted evidence- of venue remains the appellate standard on review of a criminal trial. This is especially true since — following its abolition of the “slight evidence” rule — the majority neglects to explain any “new” standard for appellate review of slight, competent, and uncontradicted evidence of venue.

Decided January 28, 2000.

William L. Jones, for appellant.

Peter J. Skandalakis, District Attorney, L. Jack Kirby, Solicitor, for appellee.

Further, if the Supreme Court of Georgia had intended to take such sweeping action and abolish the longstanding “slight evidence” rule in every criminal trial in Georgia, it could be assumed they would have specifically stated so in Graves, instead of reiterating the principle that “when the evidence is not conflicting and when no challenge to venue is raised at trial . . . slight evidence [will] be sufficient to prove venue.” Graves v. State, supra at 773 (1). It seems the Supreme Court would have overruled the legion of cases that have repeatedly found it is well recognized in this state that slight evidence is sufficient to establish venue, where there is no conflicting evidence. Johns v. State, 239 Ga. 681, 682 (238 SE2d 372) (1977); Green v. State, 260 Ga. 625, 626 (398 SE2d 360) (1990). As it stands, the majority’s position conflicts with well-established precedent. Accordingly, I do not believe the majority has the authority to interpret Graves so as to abolish the “slight evidence” rule in every criminal trial in Georgia.

I am authorized to state that Presiding Judge Blackburn joins in this special concurrence.

       In other words, if either factor appears — a conflict in evidence or a challenge — slight evidence is insufficient to prove venue. The special concurrence rightly notes that, with such a reading, the “slight evidence” rule is eliminated in every criminal trial.

       In Graves, evidence as to venue was in conflict since the Atlanta city limits extend into both Fulton and DeKalb Counties, and our Supreme Court found that the Uniform Traffic Citations upon which the case was tried were unclear as to in which county the offenses occurred. Graves, supra at 772.

        Baker v. State, 55 Ga. App. 159 (189 SE 364) (1937); see also Minter v. State, supra at 629; Loftin v. State, 230 Ga. 92, 93-94 (2) (195 SE2d 402) (1973); Womble v. State, 107 Ga. 666, 669 (3) (33 SE 630) (1899); Porter v. State of Ga., 76 Ga. 658, 660 (2) (1886); Clark v. State, 213 Ga. App. 313, 315 (3) (444 SE2d 806) (1994); Inman v. State, 195 Ga. App. 805 (395 SE2d 52) (1990); In re J. B., 183 Ga. App. 229 (358 SE2d 620) (1987).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A2049.
    JACKSON v. THE STATE.
    (528 SE2d 864)
   Andrews, Presiding Judge.

Andre Jackson appeals from the judgment of conviction entered on a jury verdict finding him guilty of criminal trespass.

Decided January 28, 2000.

Cork & Cork, Patrick C. Cork, for appellant.

J. David Miller, District Attorney, Jennifer A. Thomas, Assistant District Attorney, for appellee.

The accusation charged Jackson with criminal trespass in violation of OCGA § 16-7-21 (b) (2) in that he “enter [ed] upon the land or premises of another person, to wit: 811 West Street, Apartment B8, . . . being the residence of Felisha Lester, after receiving, prior to such entry, notice from Patrolman Paul Tucker that such entry was forbidden. . . .”

We agree with Jackson that the evidence presented by the State in support of this charge was insufficient for two reasons:

First, OCGA § 16-7-21 (b) (2) requires that the notice not to enter the premises be given to the accused by the.owner or rightful occupant or by the authorized representative of the owner or rightful occupant. The State produced evidence that Officer Tucker notified Jackson not to enter the apartment based on a conversation the officer had with the manager of the apartment complex. The manager did not testify, and the substance of the conversation was not in evidence. Because there was no evidence that, when the officer gave the notice to Jackson, he was acting as the authorized representative of the owner or rightful occupant of the apartment, the evidence failed to establish an essential element of the offense. Perry v. State, 139 Ga. App. 207 (228 SE2d 195) (1976); Joiner v. State, 163 Ga. App. 521-522 (295 SE2d 219) (1982).

Second, Jackson established a defense to the charge of criminal trespass by showing that he entered the apartment with the permission of Lester, the tenant and rightful occupant of the apartment. “In the absence of a special contract, the landlord has no right to forbid a person to go upon the premises in the possession of a tenant, by the latter’s permission and for a lawful purpose.” Mitchell v. State, 12 Ga. App. 557, 559-560 (77 SE 889) (1913); Horsely v. State, 16 Ga. App. 136, 141-143 (84 SE 600) (1915).

Judgment reversed.

Ruffin and Ellington, JJ, concur.


author: Miller, Judge.

text:
    A99A1946.
    HOUSTON v. THE STATE.
    (527 SE2d 619)
   Miller, Judge.

Police executed a search warrant of Robert Lee Houston’s residence and discovered 470 grams of cocaine, more than $109,000 in cash, and a handgun. Houston moved to suppress the evidence on the ground that the search warrant lacked probable cause. He argued that the underlying affidavit contained misstatements and omitted material facts. After an evidentiary hearing, the trial court denied the motion, and Houston was convicted of trafficking in cocaine and possession of a firearm by a convicted felon. Houston appeals the denial of his motion to suppress. Because evidence supported the trial court’s findings that the misstatements and omissions were immaterial, we affirm.

1. Once an accused files a motion to suppress, the State bears the burden of proving the lawfulness of the warrant. The trial court’s duty is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In doing so, the trial court must pay substantial deference to the magistrate’s finding of probable cause. On appeal, we construe the evidence in favor of the trial court’s findings, which we will not disturb if there is any evidence to support them.

The underlying affidavit stated that police arrested a suspect with 86 hits of cocaine and a handgun. The suspect stated that he could have cocaine delivered to anywhere in Atlanta by paging Houston. Police listened to the suspect call Houston, who stated he would have to go home first to pick up the drugs. Houston delivered the drugs to an Atlanta location as promised. Upon his arrest, Houston gave a false address to police, but further investigation revealed his true residence in DeKalb County. Based on a previous conviction of possession of cocaine with intent to distribute, police knew Houston to have used his house as a stash house for additional drugs.

Finding probable cause, the magistrate issued a warrant to search the DeKalb address. Because the affiant officer confirmed all these facts at the motion to suppress hearing, the trial court had ample reason to uphold the magistrate’s finding of probable cause.

Houston contended, however, that the affidavit contained two false statements and omitted two material facts. He urged that if the false statements were excluded and the omitted material included, the affidavit would be insufficient to establish probable cause. Houston bore the burden of showing not only that the false and omitted information was material to the determination of probable cause but that any false information given or material information omitted was done so for the purpose of misleading the magistrate.

Evidence supported the trial court’s finding that Houston did not make these showings. The first alleged false statement by the affiant officer was that the suspect identified Houston as “Robert Lee Houston,” when in fact the officer admitted at the hearing that the suspect identified him only as “Robert Lee.” This statement was hardly material, as the other information contained in the affidavit (including Houston’s personal delivery of the cocaine) established that the person being paged was Robert Lee Houston. The second alleged false statement was that Houston gave police an incorrect address. Yet at the hearing Houston testified that he gave police the false address.

The first alleged omission was that the affidavit failed to mention that police had obtained a warrant from an Atlanta municipal judge to search the false Fulton County address and found nothing. This fact seems hardly relevant in determining whether the DeKalb magistrate had reason to find probable cause to search the true DeKalb residence. Moreover, Houston presented no evidence that the omission was intended to mislead the DeKalb magistrate. The second alleged omission was that the affidavit failed to state the basis for determining the correct DeKalb address. Once again Houston failed to show any evidence that this omission was intended to mislead the magistrate.

Finally, even assuming the omissions were relevant and intentionally left out to mislead the magistrate, revising the affidavit so as to include the omissions would not lead to a lack of probable cause. The fact that police first searched the false address adds nothing to the analysis. Including the information that the police determined the correct address through a conversation with Houston’s sister at the false address and through physically going to the DeKalb address and talking to Houston’s brother (who stated that Houston resided there with him) would only add credence to the affidavit and give more, not less, reason to find probable cause to search the residence.

The trial court did not err in upholding the magistrate’s finding of probable cause.

2. Houston contends that the court erred in excluding, on grounds of relevancy, two pieces of his evidence at the motion to suppress hearing. Whether to admit or exclude evidence on grounds of relevancy rests within the sound discretion of the trial court, which we will not disturb absent manifest abuse.

We discern no abuse here. The first piece of evidence was testimony from the Atlanta municipal judge as to the origin of certain handwritten statements contained in the margin of the affidavit underlying the Atlanta warrant, which statements confirmed that Houston provided a false address to police orally and by providing false identification. Not only would statements on the Atlanta affidavit have little to do with the validity of the DeKalb affidavit, but they would also confirm the information contained in the DeKalb affidavit. The second piece of evidence was testimony from Houston’s sister living at the Fulton address that she never told police Houston’s correct DeKalb address. As admitted by Houston in his appellate brief, this information would have “no direct bearing” on the determination of probable cause. The DeKalb affidavit did not reference the conversation with the sister, and before the officer executed the affidavit he spoke with the brother living at the DeKalb address and confirmed that Houston lived there.

Decided January 11, 2000 —

Reconsideration denied January 31,2000

King, King & Jones, David H. Jones, for appellant.

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

The court did not abuse its discretion in excluding this evidence on grounds of relevancy.

Judgment affirmed.

Pope, P. J, and Smith, J, concur.

        Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

        Rushing v. State, 271 Ga. 102, 104 (1) (515 SE2d 607) (1999).

       Id.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); see Rushing, supra, 271 Ga. at 104 (applying the “clearly erroneous” standard).

       See Redding v. State, 192 Ga. App. 87, 88 (383 SE2d 640) (1989).

        Bickley v. State, 227 Ga. App. 413, 414 (1) (a) (489 SE2d 167) (1997); Ferrell v. State, 198 Ga. App. 270 (1) (401 SE2d 301) (1991).

       See Redding, supra, 192 Ga. App. at 88.

        Morris v. State, 239 Ga. App. 100, 103 (3) (520 SE2d 485) (1999).

       Cf. Ivory v. State, 199 Ga. App. 283, 284 (3) (405 SE2d 90) (1991).


text:
    A99A2134.
    A99A2135.
    TOMLINSON v. THE STATE. POLLOCK v. THE STATE.
    (527 SE2d 626)
   Miller, Judge.

Jeffrey Mark Tomlinson and Brenda Louise Pollock were jointly charged with possession of cocaine and possession of marijuana with intent to distribute. After a bench trial based on stipulated evidence, Tomlinson was found guilty as charged and sentenced as a first offender to five years probation. Pollock was found guilty of possession of cocaine and possession of marijuana, more than one ounce, as a lesser included offense, and also received five years probation as a first offender. Their separate appeals each raise only one identical assertion of error and so are consolidated for disposition in this single opinion.

Case Nos. A99A2134 and A99A2135

Police executed a search warrant for defendants’ residence and discovered eight ounces of marijuana under a living room table in a bag. Cocaine residue was scattered on a glass table in the living room. Inside the freezer was additional marijuana. Defendants contend the trial court erred in denying their joint motion to suppress the contraband discovered in their home, arguing the affidavit given in support of the search warrant failed to provide probable cause. Because the affidavit gave the magistrate a substantial basis for crediting the hearsay information that defendants sold drugs out of their residence, we affirm the denial of their motion to suppress.

A search warrant will issue only upon facts sufficient to show probable cause that a crime is being committed or has been committed. In determining whether probable cause exists, the task of the 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.”

The appellate 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.

The affidavit in this case recited:

On 121396 at approximately 7:30 p.m. agents of the Cherokee Multi-Agency Narcotics Squad conducted a probation search at Lot 31 Pumpkin Vine Mobile Home Park, the residence of William Andrew Edwards. Agents located a bag containing marijuana in a . . . glass on an end table next to the television. After Mr. Edwards was read his Miranda warning, Mr. Edwards made statements against his penal interest stating that he purchased the marijuana within the last seven days from “Brenda and Jeff” at [their residence]. An independent investigation . . . confirmed that the residents of Lot 233 Shadowood Mobile Home Park are Jeff Tomlinson and Brenda [sic]. This information was discovered through Shadowood Mobile Home Park resident listing.

The search warrant was issued at 10:29 p.m. on December 13, 1996, and executed an hour later.

Defendants argue the hearsay information in the affidavit is unreliable, self-serving, not credible, and does not amount to a statement against penal interest. We disagree.

“When a named informant makes a declaration against . . . penal interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit that statement.”

When one makes an admission against his own penal interest, he tends to be telling the truth. Moreover, should he lie to the police, the person admitting a crime risks disfavor with the prosecution. One who knows the police are already in a position to charge him with a serious crime will not likely undertake to divert the police down blind alleys. We thus are satisfied that an admission against penal interest may form the basis for a magistrate’s conclusion that an informant is reliable.

The cases cited by defendants are all distinguishable on their material facts, in that all involve affidavits based upon tips from anonymous, unnamed, or confidential informants. Here, the trial court correctly concluded Edwards’ admission that he bought marijuana in the past week amounted to a reliable statement against his penal interest, for it established the elements of both a parole violation and subsequent substantive offense. That Edwards, a named informant, further stated he bought that marijuana from Tomlinson and Pollock at their residence in that week is sufficient to authorize the magistrate’s common sense decision that a crime had been committed and that proof of the crime might reasonably still be found in that residence. The trial court correctly denied defendants’ motion to suppress.

Decided January 11, 2000 —

Reconsideration denied January 31, 2000.

Zell & Zell, Rodney S. Zell, for appellants.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

Judgments affirmed.

Pope, P. J., and Smith, J., concur.

       OCGA § 17-5-21 (a).

        DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997).

        State v. Wesson, 237 Ga. App. 789, 790 (516 SE2d 826) (1999).

       (Emphasis supplied.) Sosebee v. State, 227 Ga. App. 21, 23 (488 SE2d 102) (1997). Accord Midura v. State, 183 Ga. App. 523, 525 (4) (359 SE2d 416) (1987); see also Williams v. State, 256 Ga. 609, 610 (1) (351 SE2d 454) (1987) (statements against penal interest, corroborated by reliable information from other witnesses, sufficient to authorize issuance of search warrant); compare State v. Wesson, supra, 237 Ga. App. at 791 (“statement against interest” rule will not be extended to credit uncorroborated statements by unnamed informants whose reliability has not been established).

       (Citations and punctuation omitted; emphasis supplied.) Victrum v. State, 203 Ga. App. 377, 379 (2) (416 SE2d 740) (1992).

        Miller v. State, 219 Ga. App. 213, 216 (2) (464 SE2d 621) (1995).


text:
    A99A2216.
    ROBERTS v. THE STATE.
    (527 SE2d 617)
   Miller, Judge.

After his motion to suppress was denied, Donald William Roberts stipulated to the evidence at a bench trial and was convicted of driving under the influence of alcohol, carrying a concealed weapon, driving with an open container, and improper stopping on a roadway. On appeal, Roberts’ sole assertion of error contends the motion to suppress should have been granted because the traffic stop leading to his arrest was not supported by any reasonable suspicion of criminal activity and so was pretextual.

Upon review of the denial of a motion to suppress, the appellate court construes the evidence in the light most favorable to the trial court’s judgment, and its findings of fact based upon conflicting evidence must be accepted unless clearly erroneous. Because the conflicting evidence adduced at the suppression hearing authorized the conclusion that Roberts committed the traffic offense of improper parking in the presence of the arresting officer, the forcible stop of defendant’s vehicle was not pretextual.

Although Roberts testified he only stopped for less than a minute to discharge a passenger and drove off before he realized a patrol car had pulled up behind him, Officer Greg Moore, then of the Jonesboro Police Department, testified that defendant was completely stopped in the roadway of a two-lane street for a period of “approximately four minutes,” at a place where no-parking signs were displayed. During that time, Officer Moore saw no one getting in or out of defendant’s car. As Officer Moore pulled up behind defendant’s vehicle, “[that] vehicle started to pull off[, so Officer Moore] activated [his] emergency lights to make a traffic stop.”

A police officer is authorized to make a brief, but nevertheless forcible, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity. What is demanded of the police officer, as an agent of the State, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense.

Decided January 11, 2000 —

Reconsideration denied January 31, 2000.

Emmett J. Arnold TV, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Here, the trial court was authorized to conclude that Officer Moore observed Roberts commit the offense of improper parking, in violation of OCGA §§ 40-6-200 (a) and 40-6-203 (a) (3) (B). The evidence does not demand a finding that Roberts’ four-minute stop was “momentary'” within the exception for discharging passengers. For this relatively minor traffic infraction committed in the presence of Officer Moore, the stop of Roberts’ vehicle was authorized. Even if Roberts’ behavior did not conclusively amount to the apparent traffic violation, we nevertheless hold that, under the totality of the circumstances, there was a reasonable, articulable suspicion that Roberts was committing the offense of improper parking. The trial court did not err in denying Roberts’ motion to suppress.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

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

        Morris v. State, 239 Ga. App. 100, 101-102 (1) (b) (520 SE2d 485) (1999).

        Vickers v. State, 234 Ga. App. 563, 565 (1) (507 SE2d 810) (1998).

        Taylor v. State, 230 Ga. App. 749, 750 (1) (b) (498 SE2d 113) (1998); accord Ridgeway v. State, 205 Ga. App. 218, 219 (422 SE2d 4) (1992).

        Howard v. State, 233 Ga. App. 861, 862 (505 SE2d 270) (1998); Roberson v. State, 230 Ga. App. 179, 181 (495 SE2d 643) (1998).


text:
    A99A2477.
    In the Interest of A. M. L., a child.
    (527 SE2d 614)
   Miller, Judge.

Because of his parents’ inability to care for him, A. M. L. has bounced from one caretaker to another, amounting to fifteen caretaker changes from the time he was four until he was eleven. The instability has caused him psychological damage and resulted in behavioral misconduct. Finding the mother’s disabling mental disorder is likely to continue, the juvenile court terminated her parental rights. She appeals, claiming insufficiency of the evidence. As there was evidence from which a factfinder could find clear and convincing evidence of the criteria set forth in OCGA § 15-11-81 (b), we affirm.

1. Our responsibility as an appellate court is clear:

Construing the evidence most favorably to the findings of the court, the question on appeal is whether a rational trier of fact could have found clear and convincing evidence (a) of parental misconduct or inability and (b) that terminating parental rights was in the best interest of the child. Parental misconduct or inability is shown by evidence (i) the child is deprived, (ii) lack of parental care caused the deprivation, (iii) such is likely to continue, and (iv) the continued deprivation is likely to cause serious harm to the child.

We will address the factors seriatim.

(a) Deprivation. Over the seven years of the child’s repeated displacement, the juvenile court found on five separate occasions, including a finding most recently in April 1998, that A. M. L. was deprived. As these orders were unappealed, the mother was bound by these findings for purposes of the termination hearing.

(b) Lack of Proper Parental Care and Control. Since each of the five orders found that the mother’s lack of paréntal care and control caused the deprivation, she was bound by these findings also. Moreover, the evidence established that the mother’s mental disorder, which was medically verified, caused the deprivation. Because of her disorder, she gave custody of all three of her children to her ex-husband soon after their divorce in 1992. Four years later, she recovered sufficiently to receive full legal custody of the children, only to return the children to the Department of Family & Children Services (“DFACS”) six months later on the ground that she felt that she could not control them due to her mental depression. After surreptitiously taking physical custody of A. M. L. from a foster home, she voluntarily returned him to DFACS in April 1998, again because of her mental condition.

A July 1998 psychological evaluation found she had a mood disorder with anxiety and an atypical personality disorder with borderline and cyclothymic features. An August 1998 medical evaluation diagnosed her as having a bipolar disorder with chronic depression. Although the July report indicated that she should have the cognitive skills to parent A. M. L., experience over the years proved otherwise. In addition to not being able to control A. M. L. when she did have him in her care, she had worked a total of only one day in the last two years and only hoped to start a job two weeks after the hearing; she had no car but planned on getting one; her anticipated day care provider had previously lost children to DFACS; her phone was disconnected; she had lived in four different locations in the last thirteen months; she had provided no child support in the last two years; she had cared for eleven-year-old A. M. L. only for the first four years of his life and for two short intervals that resulted in her giving him up again; and in explaining why she and her new husband were separated, she confessed, “I’ve got too many of my own [problems] to deal with to have to deal with his problems also.”

The court did not err in finding under OCGA § 15-11-81 (b) (4) (B) (i) that the mother’s mental and emotional deficiencies left A. M. L. without proper parental care and control.

(c) Cause of Deprivation Likely to Continue. Past conduct of the mother may reflect whether the cause of deprivation is likely to continue. Evidence that is a couple of years old is not necessarily outdated, as there will be some passage of time between the removal of the child and the termination hearing.

Here, as of the date of the termination hearing, the mother still had not started a job or obtained a car; she confessed to having so many problems that she could not deal with another’s; her son had psychological problems and was rambunctious; she continued to take medication and therapy to treat her depression; one of her other two children (also in foster care) would visit with her only for a maximum of thirty minutes; and when visiting the foster home for her other two children during the six months prior to the termination hearing, she would leave before the children got home from school. The juvenile court hearing the mother’s testimony specifically found that her actions in court demonstrated ongoing mental problems and that the mother’s courtroom demeanor convinced the court that she would let her son down again. The court did not err in finding clear and convincing evidence that the cause of the deprivation would likely continue.

The mother presented evidence that recent treatment for her disorder was having success. But the court could find that her conduct over the seven years, the medical reference to her condition as chronic, and the totality of the evidence set forth above were better predictors of her future conduct. A few months of partial stability do not establish that the parent is capable of maintaining the progress. In considering recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.

Decided January 11, 2000 —

Reconsideration denied January 31, 2000.

Amelia G. Pray, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sanders B. Deen, for appellee.

(d) Continued Deprivation Likely to Cause Harm. The same evidence authorized the factfinder to conclude that the continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the child. A. M. L., who had been repeatedly abandoned by his caregivers, consequently had serious behavioral problems and felt animosity toward his mother who had so often disappointed him in the past. His fragile psyche could not handle another disappointment from his mother.

2. The evidence showing the existence of parental misconduct or inability also supported a finding that the termination of the mother’s parental rights would be in the child’s best interest. Moreover, visits to the mother caused psychological trauma to her other two children, and A. M. L. was doing well in the custody of DFACS.

Because a rational trier of fact could have found clear and convincing evidence of the statutory factors, the court did not err in terminating the mother’s parental rights.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       (Citations omitted.) In the Interest of K. D. S., 237 Ga. App. 865 (1) (517 SE2d 102) (1999); see OCGA § 15-11-81.

        K. D. S., supra, 237 Ga. App. at 865 (1) (a); see In the Interest of S. C. M. H., 238 Ga. App. 159, 160 (1) (517 SE2d 598) (1999).

        K. D. S., supra, 237 Ga. App. at 866 (1) (c); see S. C. M. H., supra, 238 Ga. App. at 162 (2).

        In the Interest of C. M., 236 Ga. App. 874, 877 (2) (513 SE2d 773) (1999).

       Compare In the Interest of C. G., 235 Ga. App. 23, 24 (508 SE2d 246) (1998) (no medical evidence of mental condition or of possibility it would continue).

        In the Interest of J. S., 232 Ga. App. 876, 880 (1) (502 SE2d 788) (1998).

        In the Interest of C. D. R., 238 Ga. App. 393, 395 (519 SE2d 37) (1999).

        K. D. S., supra, 237 Ga. App. at 867 (1) (d).

       See id. at 867 (2); see also In the Interest of A. S. H., 239 Ga. App. 565, 571 (2) (521 SE2d 604) (1999).


text:
    A99A1740.
    BLUAIN v. THE STATE.
    (529 SE2d 155)
   Andrews, Presiding Judge.

Donnell Bluain appeals following the denial of his motion for new trial after conviction of three counts of rape, two counts of burglary, one count of aggravated sodomy, one count of attempting to commit aggravated sodomy, and one count of kidnapping with bodily injury.

1. Bluain’s fourth enumeration of error challenges the legal sufficiency of the evidence, and we consider it first.

On appeal [,] the evidence must be viewed in the light most favorable to support the verdict, and [Bluain] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . [T]he test established in Jackson [v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence. [Cit.]

(Punctuation omitted.) Carter v. State, 235 Ga. App. 260 (1) (510 SE2d 539) (1998).

So viewed, the evidence was that, on April 14, 1992, V. Robinson was awakened in her Doraville home around 3:30 a.m. by a noise she initially believed was made by her cat. She was dressed in a knee-length T-shirt nightgown and was wearing panties and socks. She got out of bed to check and was immediately grabbed from behind by a man. He placed one hand around her neck and the other over her mouth and whispered that if she screamed he would kill her. He said he wanted money, and she told him to take what she had, which was not much because she had been on vacation. He then walked her down the hall, with his chest pressed against her back and some object, which could have been a screwdriver, pressed into her side. The man was carrying a flashlight, larger than a penlight, and used it as they went down the hallway.

Although she was unaware of it at the time, her cash had already been removed from her purse, apparently by the intruder. She told him there might be some cash in a kitchen drawer, but he said she was trying to trick him. He did check the drawer, but there was no money there. He attempted to engage her in conversation, asking what she did for a living. He then said, “Since I can’t have any money[,] I’m going to take something else.”

Admonishing her not to look at him, he walked her into the living room and directed her to lie down and pull her gown over her face, which she did. He then placed a throw pillow over her face and took off her panties and socks. He sucked her toes and then performed oral sodomy on her. He then had intercourse with her while saying that he wanted to be with a white woman. He asked her if her roommate, asleep upstairs, would want some, and she told him that she wanted him all to herself, in order to protect her roommate. During these acts, V. Robinson was able to see the man’s arm and determine that he was African-American. She asked him to use a condom which she had upstairs, but he refused, saying she was trying to trick, him. He did withdraw before ejaculating after she told him she might have a sexually transmitted disease. She took him in her hand, and he ejaculated onto her stomach. She asked him to leave, but he said no, he was going to do it again and this time she “was going to take it up the ass.” He then tried to enter her from the rear, and although he touched her anus, she was able to guide him into her vagina. Only one or two minutes had elapsed between the man’s erections. He again withdrew and ejaculated onto her. He was wearing some type of cloth gardening glove which V. Robinson described as smelling of dirt.

She again asked if he would leave, and he directed her to stay on the floor, not to try to see him, not to call the police, and to give him two or ten minutes to get away.

V. Robinson described the man as extremely lean and very muscular with broad shoulders and approximately 5'9" or 5'10" tall. She believed he had a mustache and might have had a beard or five o’clock shadow.

After he left, she discovered that the window next to the front door had been inadvertently left open. She locked it after he left, wakened her roommate and called the police. As they were waiting for the police, they saw an old silver or light color Datsun drive by slowly. Later, she found the screen which had been on the front window lying outside on the ground.

V. Robinson’s nightgown and vaginal swabs taken from her were sent to the Georgia Bureau of Investigation laboratory where DNA testing was conducted on them and on blood taken from Bluain after his arrest in 1996. DNA analyst Fyffe testified that, while she could not say with reasonable scientific certainty that Bluain was the donor of the semen sample removed from the nightgown, she could say that only one in 1,000 African-American men would have the test results she obtained and that two bands on the questioned DNA did match or were consistent with Bluain’s DNA and he could not be excluded as the donor.

On June 3,1992, in east DeKalb County, C. Robinson was awakened about 2:15 a.m. by someone shining a penlight in her eyes and saying that, if she screamed, he would cut her throat. He placed his hand over her mouth and told her to get up slowly, which she did* He put his hand around her neck and told her to walk toward the living room, which she did, with him walking behind her, his chest to her back. He asked where her purse was and was told on the dining room table. He rifled through it, taking the few dollars in it. He then pushed her back toward her daughter’s bedroom. Hearing a car, he ordered her to face the wall, and he looked out the window. Then, he told her to lift her nightgown and lie on the bed, which she did. He directed her to pull her gown over her face and then asked if she and her boyfriend used condoms and if she wanted him to use one. She was crying, and he asked why. She begged him not to hurt her. She heard him rustling with a condom package, and he did use one that time. He told her to move, and she complied. After he ejaculated, he told her to get up but keep the gown over her face. After she complied, he grabbed her, was behind her again, and pushed her out into the living room. He told her to unlock the front door and looked outside. Then, he told her to close the door but leave it cracked, which she did.

He told her to bend over the couch and asked her if she had ever been “f- — d in the ass.” C. Robinson told him that if he did that, she would scream, and she begged him not to. He then had vaginal sex with her from the rear. He then made her lie face down on the couch and fondled her. Then, he told her not to move or he would kill her. After she heard the door open and felt air from it, C. Robinson got up, looked out, and saw him run into some woods. She discovered the window raised in her daughter’s room, although she knew it had been down when she went to bed. The screen had been removed and was underneath the window.

C. Robinson, who was African-American, saw the man’s leg at some point and described it as tan in color. She said he was very muscular, about S'8" tall, and was wearing a stocking mask or hose over his face. She detected what she described as a “petroleum, chemical smell on him.” She had bruises on her neck which she attributed to the man’s having sucked on her neck or “whatever he was doing.” He told her that he lived in her apartment complex and had been watching her for a long time.

GBI DNA analyst Goff conducted testing on the vaginal swabs from C. Robinson and Bluain’s blood, finding matches. He opined, based on his testing and computer-conducted statistical analysis, that only “one in one billion” African-American men would have sperm matching this DNA pattern.

On October 2, 1992, DeKalb County Undercover Officer Violette was conducting surveillance at a Starvin’ Marvin store at the intersection of Pleasantdale and Britt Roads, no more than a mile from the residence of V. Robinson. It was around 10:30 p.m., and Violette was parked in an unmarked car at a Jiffy Lube next to the store, approximately 40 feet from the well-lighted fuel pumps. He observed a Pontiac Sunbird matching the description of the one he was looking for stop, back up, make a U-turn, and pull next to a car parked at the pumps. The African-American male driver got out of his car and crouched over, attempting to enter the other car, which was locked. Officer Violette observed his profile for approximately five seconds and said the man’s facial features “stuck out” and were “easily identifiable to me.” The man then jumped into his car and left at a high rate of speed, pursued by Violette and uniformed officers and marked cars. The Pontiac Sunbird crashed into a ditch, and the driver escaped. Found in the car were binoculars, two packs of pantyhose, a camera and case, a screwdriver set, a watch, a white purse, a pack of unopened Lifestyles condoms, a package of opened Lifestyles condoms, food stamps, and a bottle of cologne. After Bluain’s arrest, Violette was shown a photo spread on August 26, 1996. It had been prepared by the detective investigating the sexual assaults. Violette studied the array and identified Bluain as the man he saw at the Starvin’ Marvin in 1992. He stated that he was “pretty positive” in his identification.

On July 9, 1996, around 4:30 a.m., Clayton police officer Monteau was dispatched to a possible prowler call. He arrived at the address at 4:41 a.m. and was met by Mr. and Mrs. Smith, who ran out their front door and said the man was running through the back yard. The officer pursued and saw a flashlight in the man’s hand. He momentarily lost sight of the man but stood still and heard a rustling in the brush. Although he saw Bluain lying in the brush, he radioed that he had lost the prowler. Then, he and another officer rushed Bluain’s location. Although Bluain ran, he was eventually captured. A mid-size flashlight was found on the ground where he was caught. A flat head screwdriver, a Lifestyles condom, jewelry, and cash were found on Bluain. A screen had been removed from a rear window of the Smiths’ home, and pry marks were found on the window.

Bluain’s sole argument regarding sufficiency of the evidence of all the counts except the kidnapping with bodily injury is that the evidence was “contradictory and conflicting.” Conflicts in testimony of witnesses, including the State’s witnesses, are a matter of credibility for the jury’s resolution. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997). Here, although conflicting, there was competent evidence to support the burglary and rape counts (V. and C. Robinson), the aggravated sodomy of V. Robinson (oral sex), and the attempted aggravated sodomy of V. Robinson (anal sex). Jackson, supra; Shelnutt v. State, 234 Ga. App. 655, 656 (2) (506 SE2d 643) (1998).

With regard to the kidnapping with bodily injury count, Bluain argues that the State failed to prove any bodily injury of C. Robinson aside from the rapes committed against her. The State agreed, and the court instructed the jury that an injury aside from the rapes was necessary to constitute kidnapping with bodily injury. OCGA § 16-5-40 (b).

C. Robinson testified that she had bruises on her neck. Although she attributed them to the sucking or “whatever he was doing,” there was also evidence that he kept his hand tightly around her neck while he moved her from room to room. “Any physical injury, however slight, suffices to support a conviction of kidnapping with bodily injury. [Cit.]” McDougal v. State, 239 Ga. App. 808, 809 (1) (521 SE2d 458) (1999) (scratches or abrasions sufficient). See also Roberson v. State, 219 Ga. App. 160, 162 (2) (464 SE2d 262) (1995) (bruising sufficient); Ferguson a State, 211 Ga. App. 218, 221 (3) (438 SE2d 682) (1993) (choking sufficient).

The evidence was legally sufficient. Jackson, supra.

2. In his first enumeration of error, Bluain contends that the DNA evidence was improperly admitted because there was insufficient proof that the general scientific principles and techniques involved in the testing were capable of producing reliable results and that the DNA testers themselves substantially performed the scientific procedures in an acceptable manner, as required by, e.g., Johnson v. State, 264 Ga. 456, 458 (5) (448 SE2d 177) (1994).

To the contrary, a substantial record was made both before trial and during the trial regarding DNA testing by the GBI. Goff, a DNA analyst who conducted the restriction fragment length polymorphism (RFLP) testing on the samples of Bluain and C. Robinson, testified at length regarding the protocols and methodology used in extracting, fragmenting, testing, and matching the DNA fragments. See generally Caldwell v. State, 260 Ga. 278 (1) (393 SE2d 436) (1990). RFLP testing has been accepted in this state. Chapel v. State, 270 Ga. 151, 156 (5) (510 SE2d 802) (1998).

Fyffe was the DNA analyst who conducted the polymerase chain reaction (PCR) testing on the samples of Bluain and V. Robinson. She also testified at length on the protocols and methodology of this method of testing. This method has also been accepted as valid in this state. Redding v. State, 219 Ga. App. 182, 184 (4) (464 SE2d 824) (1995).

The trial court did not err in admitting the results. The deficiencies argued below by Bluain, lack of national accreditation of the GBI lab by the National Association of Crime Lab Directors and failure to use the “highest standards” in testing, went to the weight of the testing results and not their admissibility. Chapel, supra; Ross v. State, 231 Ga. App. 793, 801 (14) (499 SE2d 642) (Í998); Redding, supra.

3. In his second enumeration of error, Bluain contends that the trial court erred in not granting his motion to sever the counts involving V. Robinson from those involving C. Robinson. The indictment against Bluain originally contained not only those counts but 15 other counts involving additional rapes and assaults against other victims. Only those involving V. and C. Robinson occurred in private homes, while the others occurred in public places and involved two victims at a time.

A written motion to sever was filed and sought severance of the counts involving each victim from counts involving any other victim. At the hearing on the motion, however, Bluain’s argument was directed at severing Counts 9 through 23 from Counts 1 through 8 on the ground that the latter involved residential settings while the others involved public places and multiple victims. Counsel asked the court to “sever out those two [victims].”

Counsel for the State then agreed to sever the first eight counts from the remaining counts if the State could introduce the circumstances of Bluain’s arrest.

Since the case was tried as to only the two Robinson victims, as requested by Bluain at the hearing, there is no error for this Court to review.

Even pretermitting this issue, however, because of the similarities in the two assaults, although they were not identical, the evidence regarding each would have been admissible in the trial of the other even if they had been severed. Scroggins v. State, 237 Ga. App. 122, 124 (3) (514 SE2d 252) (1999); Redding, supra at 184 (3).

4. Bluain also contends that the trial court erred in allowing the items found in the abandoned Sunbird on October 2, 1992, to be admitted into evidence.

Decided January 31, 2000.

Lynn M. Friedewald, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Maria Murder-Ashley, Thomas S. Clegg, Assistant District Attorneys, for appellee.

This error, however, is not the subject of an objection appearing below on the record, and there is nothing in this regard for our review. Although there is a notation during the testimony of Detective Brown, the officer who seized the items, of a bench conference requested by Bluain’s trial counsel, the record does not contain this bench conference. Had Bluain desired that we consider this objection, steps should have been taken to ensure that the court reporter took down the conference or the objection restated into the record after this conference. Spivey v. State, 237 Ga. App. 626, 627 (1) (516 SE2d 332) (1999); Prine v. State, 237 Ga. App. 679, 680, n. 1 (515 SE2d 425) (1999).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       Counts 1 through 4 of the indictment involved victim V. Robinson and alleged burglary, rape, and two counts of aggravated sodomy. Counts 5 through 8 involved victim C. Robinson (no relation to V. Robinson) and alleged burglary, kidnapping with bodily injury, and two counts of rape. The jury returned a verdict of guilty of attempt to commit aggravated sodomy on Count 4.

       She and her daughter were preparing to move, and most of their belongings were packed. Her daughter was spending the night with someone else.

       It was stipulated that Bluain pled guilty to criminal attempt to commit burglary, possession of burglary tools, and obstruction of an officer as a result of his attempt to enter the Smiths’ home and the ensuing chase.


text:
    A99A1760.
    PATTERSON v. STATE OF GEORGIA.
    (528 SE2d 884)
   Andrews, Presiding Judge.

Jackie Patterson, an attorney proceeding pro se, appeals from the trial court’s dismissal of his declaratory judgment action based on lack of standing. Patterson sought a declaration that OCGA § 40-6-14 was unconstitutional as a violation of the Due Process Clause because it was void for vagueness and was unenforceable due to the Department of Public Safety’s failure to promulgate rules defining “plainly audible” or to establish standards regarding measurement of sound by law enforcement personnel, as mandated by OCGA § 40-6-14 (d).

The trial court concluded that Patterson lacked standing to pursue these issues because there was no “actual controversy” between the parties, as required by OCGA § 9-4-2 (a). We agree.

Although OCGA § 9-4-2 (c) provides that “[r]elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies [,]” this provision does not mean that a declaratory judgment action is available for any and all justiciable controversies. Instead, a plaintiff must demonstrate

facts or circumstances whereby [he] is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize [his] interest.

Phoenix Assurance Co. v. Glens Falls Ins. Co., 101 Ga. App. 530, 532-533 (114 SE2d 389) (1960). See also Cramer v. Spalding County, 261 Ga. 570, 572 (2) (409 SE2d 30) (1991); Farm &c. Ins. Co. v. Skelton, 235 Ga. App. 507, 508 (510 SE2d 76) (1998).

Here, Patterson acknowledged that he had not been charged with violation of the statute nor had there been any showing of intent by authorities to take any action pursuant to the statute. He argues, nonetheless, that, based upon Steffel v. Thompson, 415 U. S. 452 (94 SC 1209, 39 LE2d 505) (1974) and Total Vending Svc. v. Gwinnett County, 153 Ga. App. 109 (264 SE2d 574) (1980), there is an actual controversy.

Both those cases, however, are readily distinguishable from Patterson’s situation. In Steffel, an anti-Vietnam protestor and his companion were handing out leaflets at a shopping center in 1970. Shopping center employees asked them to stop and summoned police when they refused. Police advised they would be arrested if they continued, and the two left. They returned, however, in two days and were again told to cease or be arrested. Steffel’s companion continued and was arrested. Steffel left and instituted his federal declaratory judgment action in which he alleged that he wished to return and leaflet, as guaranteed by the First Amendment, but had not for fear of being arrested.

Under these circumstances, the Supreme Court concluded a viable declaratory judgment action could be alleged absent actual prosecution because of the continuing threat of arrest. The case was remanded for a determination as to whether there existed a “ ‘substantial controversy, between parties having adverse legal interests, of sufficient, immediacy and reality to warrant the issuance of a declaratory judgment.’ [Cit.]” Steffel, supra at 459. See Calderon v. Ashmus, 523 U. S. 740, 749 (118 SC 1694, 140 LE2d 970) (1998).

Patterson has not alleged any facts which can be said to be in any way similar to Steffel’s situation. Instead, the challenge here is merely anticipatory. Compare State of Ga. v. Café Erotica, 269 Ga. 486, 487, n. 1 (500 SE2d 574) (1998) with American Booksellers Assn, v. Webb, 254 Ga. 399, 401 (2) (329 SE2d 495) (1985).

Decided January 31, 2000.

Patterson & Patterson, Yasma Patterson, for appellant.

Jackie G. Patterson, pro se.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Christopher S. Brasher, Senior Assistant Attorney General, James J. Phillips, Assistant Attorney General, for appellee.

In Total Vending, supra, the company sold and leased coin-operated amusement devices which it contracted to supply for a Gwinnett County bowling facility. The company had also been informed that, if the machines were installed, the county would prosecute it for violation of a county anti-pinball law, violation of which was a misdemeanor. Total Vending contended the local law was in conflict with a state law and sought a declaratory judgment.

An actual controversy was found there due to the company’s existing contract to install the machines and the fact that there was an actual controversy regarding the effect of the later-passed state statute on the local legislation.

Again, Patterson has alleged no such controversy. We agree that, under the allegations made, Patterson has no standing. Medlin v. Mickle, 240 Ga. 552 (242 SE2d 38) (1978).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 40-6-14 (a) states that “[i]t is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical sound-making device or instrument from within the motor vehicle so that the sound is plainly audible at a distance of 100 feet or more from the motor vehicle.” Violation of the statute is a misdemeanor.

       OCGA § 9-4-2 (b), which is also relied upon by Patterson, is not applicable because, by its terms, it applies only “in any civil case in which it appears to the court that the ends of justice require that the declaration should be made. . . .” Patterson, instead, seeks to foreclose a potential criminal prosecution.

       Patterson acknowledges that, in situations where a criminal act has already been done or charges are already pending, there is no standing to bring a declaratory judgment action. Shantha v. Municipal Court &c. of Atlanta, 240 Ga. 280, 281 (240 SE2d 32) (1977); Pendleton v. City of Atlanta, 236 Ga. 479 (224 SE2d 357) (1976).


author: Smith, Judge.

text:
    A99A1796.
    SMITHSON v. PARKER.
    (528 SE2d 886)
   Smith, Judge.

Lynda Parker brought suit against Susan Smithson, alleging breach of contract, fraud, and intentional infliction of emotional distress in connection with Smithson’s sale to her of a wedding dress. Her complaint sought compensatory and punitive damages. Smithson answered, and the case was tried by a jury, which found in favor of Parker in the amount of $1,625.80 compensatory damages and $10,000 punitive damages. Judgment was entered on the verdict, and Smithson filed this appeal, contending that the trial court erred in denying her motion for directed verdict and in its charge to the jury. We find no error, and we affirm.

The record shows that the parties held differing views of what transpired leading to this lawsuit and at trial each presented evidence supporting her version of the facts. It is undisputed that four weeks before her wedding, on August 24, Parker ordered a wedding dress from Smithson’s shop, paying $901. The details of the transaction, however, and what transpired after that are in dispute. According to Parker, Smithson told her the dress she viewed was a sample that had been worn in a fashion show. She also said it could be ordered from Hong Kong in the proper size in three days. Because Parker needed a sample of the fabric to coordinate bridesmaids’ dresses and flowers, Smithson cut a small swatch from the hem of the sample to give her. Several days later, she returned to the shop and borrowed the sample dress for a few hours so her hairdresser could see the neckline and coordinate her hairstyle for the wedding.

A few days after that, having given the small swatch to the florist, she again borrowed the sample dress so her seamstress could match fabric for the bridesmaids’ dresses. On that occasion, the seamstress pointed out to her that the “sample” now had tags on it from a local department store. According to Parker, the tags had not been present when she tried the sample on and ordered the dress. When she returned the dress to the shop, she noticed a similar gown in the alteration area of the shop. When she questioned Smithson about the tags, Smithson’s explanation was that the tags had been taken off the other gown to alter it after another customer bought it, and someone in the shop had replaced the tags on the wrong dress.

Although Parker had been promised the dress in three days, it did not come in until three days before her wedding. Parker testified that Smithson used various pretexts to prevent her from coming in for a fitting until the day before her wedding. The dress was not ready until two hours before the wedding, and although she wore the dress to her wedding, Parker and her seamstress testified that it did not fit properly, looked terrible, and “ruined” her wedding day She paid for a professional to photograph the wedding but did not order any photographs because of the dress. When Parker returned from her wedding trip, she tried to return the dress, but Smithson would not accept telephone calls or registered letters.

Parker, the seamstress, and a friend of Parker’s with experience working in retail and bridal fashions, all testified that the dress she wore to the wedding was not identical to the sample but was of inferior materials and workmanship. Parker testified that about two weeks before the wedding, she noticed the sample dress in the local department store. She recognized it immediately as the sample from Smithson’s shop. The hem was similarly dirty, and a small piece of fabric had been cut from the hem. She spoke to the manager of the department, and the dress was taken off the floor. A month after the wedding, Parker bought the dress from the department store to use for comparison purposes in this lawsuit, and the dress was entered into evidence at the trial, along with the dress purchased from Smithson’s shop. Parker theorizes that Smithson showed her a more expensive dress but sold her a cheaper “knockoff,” charging her full price. She further theorizes that Smithson kept her from noticing the substitution by refusing to allow her to view the dress until the day before her wedding, when it was too late for Parker to purchase a dress elsewhere.

Smithson, on the other hand, testified that Parker received what she bargained for and attempted to return the dress after it had been altered for her and after she wore it at her wedding and had no further use for it. Smithson testified that the dress Parker tried on before she bought was not a sample. It was simply a dress in a smaller size. She testified that when the dress arrived in Parker’s size, she was present at the fitting, and Parker made no complaint about the dress being different from the sample. She denied keeping Parker from seeing the dress until the last minute and offered into evidence a charge slip for alterations dated several days before the wedding. She also denied that the dress Parker purchased from the department store was the dress that had originally been in her shop; she maintained that the one in her shop had been much smaller. That dress had been purchased by a customer. She explained the price discrepancy by indicating that a department store could buy and sell the same dress for less because of volume. She also denied cutting the small swatch from the hem.

1. Smithson contends the trial court erred in denying her motion for directed verdict. We cannot agree. A motion for directed verdict may be granted only when no conflict exists in the evidence on any material issue and the undisputed evidence demands the requested verdict. OCGA § 9-11-50 (a). Here, it is obvious that the evidence was in conflict on not one but several material issues. If any evidence supports the trial court’s denial of a motion for directed verdict, this court may not disturb the jury’s verdict. Grindle v. Chastain, 229 Ga. App. 386, 389 (2) (493 SE2d 714) (1997). Some evidence presented by Parker supported her claim that Smithson intentionally deceived her by substituting a lower quality dress for the one Parker ordered and preventing her from detecting the substitution until it was too late. The trial court therefore did not err in denying Smithson’s motion for directed verdict. Indeed, the jury apparently believed Parker’s testimony and that of her witnesses and rejected that of Smithson.

2. Smithson next contends the trial court erred in charging the jury. She argues that because Parker accepted the dress the day before her wedding, knowing of its flaws, the trial court should not have charged the jury on breach of contract or fraud. We disagree for several reasons.

First, Smithson has waived objection to the charge as given because she failed to except to the charge before the verdict. When asked if there were any exceptions, counsel for Smithson replied: “None, Your Honor.” This reply constituted a waiver of objection.

Except as otherwise provided in this Code section, in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

OCGA § 5-5-24 (a); see Moody v. Dykes, 269 Ga. 217, 219-220 (3) (496 SE2d 907) (1998).

Second, the trial court’s charge was a correct statement of the law on both subjects. If any evidence in a case supports giving a charge, it must be given. As indicated in Division 1, Parker presented evidence supporting both breach of contract and fraud. Although it was in conflict with evidence presented by Smithson, the trial court did not err in giving charges on these theories.

3. Smithson also maintains that the evidence did not support a jury charge on punitive damages. Once again, however, Smithson expressly waived any objection to the charge by failing to except, even when asked specifically.

Moreover, we concluded in Division 1 that sufficient evidence was presented to allow the jury to decide the issue of fraud. Punitive damages are not applicable to a claim for breach of contract. Mikart, Inc. v. Marquez, 211 Ga. App. 209, 212 (6) (438 SE2d 633) (1993). But punitive damages are awardable in tort actions in which the plaintiff proves by clear and convincing evidence that the defendant’s actions demonstrated “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). It is clear, therefore, that they may be awarded for fraud. Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 776 (4) (503 SE2d 649) (1998). Applying the “any evidence” standard, we conclude that the trial court did not err in submitting the punitive damages issue to the jury. H & H Subs v. Lim, 223 Ga. App. 656, 658 (1) (478 SE2d 632) (1996). The charge on punitive damages was therefore necessary.

Decided January 31, 2000

Varner, Stephens, Humphries & White, James T. White, Brendan J. McCarthy, for appellant.

Mozley, Finlayson & Loggins, R. Ann Grier, Melvin Drukman, for appellee.

4. Parker’s motion to impose a penalty for frivolous appeal is denied.

Judgment affirmed.

Pope, P. J., and Ellington, J., concur. Miller, J., disqualified.


author: Eldridge, Judge.

text:
    A00A0211.
    FEBUARY et al. v. AVERITT PROPERTIES, INC. et al.
    (528 SE2d 880)
   Eldridge, Judge.

Monty Febuary sued Averitt Properties, Inc., and Averitt Express, Inc. (collectively “Averitt Express”) for injuries received when he fell off a loading ramp while picking up supplies for his business. The trial court granted Averitt Express’ motion for summary judgment, and Febuary appeals. Because we find that no jury issue exists as to whether Averitt Express had superior knowledge of the alleged hazard, we affirm. (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal, this Court conducts a de novo review. Hannah v. Hampton Auto Parts, 234 Ga. App. 392 (506 SE2d 910) (1998).

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

The facts of this case show that, in October 1995, Febuary went to Averitt Express in Macon, Bibb County, to pick up supplies for his company, Cable Direct. When he arrived at Averitt Express at noon on a clear day, he was directed to pull his truck around the back of the building to the loading ramps. Febuary drove his truck to the ramp and backed the truck up the loading ramp, so that the truck bed extended approximately three feet into the building. The ramp was eight to ten feet wide and graduated to a height of fifty inches above ground level. Ledges or curbs ran the length of each side of the ramp. These ledges were five and ohe-half inches in height and six inches in width and were the same color as the ramp. When parked, the driver’s side of Febuary’s truck was 12 to 18 inches from the ledge.

After parking the truck, Febuary claims that Ronnie Williams, an employee of Averitt Express, asked him to help load boxes into the truck bed. Febuary exited the truck on the driver’s side and walked into the building. Febuary and Williams agreed that the boxes needed to be tied down, so Febuary walked down the ramp on the driver’s side of the truck to retrieve a rope in the truck bed. Febuary stated that he did not remember where he was looking as he walked but admitted that there was nothing which interfered with his vision or view of the ramp.

Febuary did not remember what happened next but deposed that he thought that he may have tripped on the ledge. The only thing he could remember was that he felt himself falling and reached out with his right hand to steady himself. Febuary stated that his right hand was pointing away from the truck, to the outside of the ramp. He fell off the ramp and sustained injuries to his right side, including a broken right wrist.

Williams deposed, however, that he witnessed Febuary walk down the ledge of the ramp on the driver’s side of the truck to get the rope. According to Williams’ deposition, Febuary reached into the truck, and when he turned around, he appeared to lose his balance and fell. Williams stated that Febuary did not trip over the ledge before falling. Williams’ written accident report, completed the day after the incident, restated these observations. Febuary did not dispute the facts in the report when it was shown to him during his deposition.

Williams took Febuary to the hospital for treatment. According to Williams, on the way to the hospital, Febuary admitted that he had lost his balance and fallen; that the accident was not Averitt Express’ fault; that he did not blame Averitt Express; and that he only wanted Averitt Express to pay his medical bills. During his own deposition, Febuary restated that “I wasn’t blaming anybody. It was just an accident that happened.” He deposed that he originally only wanted the company to pay his medical bills but sued when the company refused to discuss payments with him.

In October 1996, Febuary sued Averitt Express, claiming that it failed to maintain and operate its premises in a safe manner. Averitt Express’ motion for summary judgment was denied. After additional discovery, however, Averitt Express filed a renewed motion for summary judgment. Febuary appeals from the trial court’s grant of the renewed motion. Held:

In his two enumerations of error, Febuary claims that jury issues exist as to (1) whether the loading ramp from which he fell constituted a hazardous condition of which Averitt Express had superior knowledge, and (2) whether he intentionally and unreasonably exposed himself to a known hazard.

Under Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997),

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

Id. at 748-749. Notwithstanding this analysis,

(Citations and punctuation omitted.) Herrin v. Peeches Neighborhood Grill &c., 235 Ga. App. 528, 532 (509 SE2d 103) (1998). See also Hannah v. Hampton Auto Parts, supra at 394; Hickman v. South City Mgmt., 229 Ga. App. 289, 291 (494 SE2d 64) (1997) (physical precedent only); Echols v. Whisker’s Food & Spirits, 229 Ga. App. 240 (493 SE2d 722) (1997) (physical precedent only).

[a] claim involving a static defect differs from other [trip] and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.

1. In this case, Febuary raised a jury issue as to whether the design of the ramp and/or ledge constituted a violation of various construction regulations and whether Averitt Express had knowledge of such alleged violations. But even if a regulatory violation existed and Averitt Express had knowledge thereof, Febuary cannot recover if he had equal or superior knowledge of the hazard and failed to exercise ordinary care for his own safety. Herrin v. Peeches Neighborhood, supra at 533, n. 3; Hannah v. Hampton Auto Parts, supra at 395; Brantley v. Custom Sprinkler Systems, 218 Ga. App. 431, 433 (461 SE2d 592) (1995); see also Parks-Nietzold v. J. C. Penney, 227 Ga. App. 724, 726 (2) (490 SE2d 133) (1997) (noting that “negligence per se is not liability per se”).

2. (a) To this end, Averitt Express pierced Febuary’s complaint by presenting undisputed evidence that Febuary had already successfully negotiated the ramp. For example, it is undisputed that Febuary had backed his truck up the ramp and into the building only minutes before the fall. Having done so, he had actual knowledge of the approximate dimensions and elevation of the ramp, as well as the potentially dangerous consequences of exceeding the parameters of the ramp. Once he parked the truck, he walked up the ramp on the driver’s side of the truck, where the width of the exposed ramp was, at most, 18 inches. Moments later, he walked down the ramp on the same side to retrieve the rope. Under the circumstances, Febuary knew or should have known of the presence and potential danger of the ramp.

(b) As to whether the ramp’s ledge constituted an allegedly hidden hazard of which Febuary was unaware, Averitt Express presented evidence that Febuary knew or should have known of the presence of the ledge along the ramp under the “plain view” doctrine.

The “plain view” doctrine is the equivalent of the “constructive knowledge” aspect of voluntary negligence on the part of the plaintiff. Voluntary negligence is applicable when the invitee knew or should have known of the hazard and proceeded . . . , and the “plain view” doctrine is applied to a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall. Even [if] the invitee had no actual knowledge of the hazard before being injured, the invitee should have known of the hazard’s presence.

Decided January 31, 2000

Buzzell, Graham & Welsh, Stephen M. Welsh, for appellants.

Chambless, Higdon & Carson, Joseph H. Chambless, David N. Nelson, for appellees.

Robinson v. Kroger Co., supra at 743. See also Tanner v. Larango, 232 Ga. App. 599, 600-601 (502 SE2d 516) (1998); Echols v. Whiskers Food & Spirits, supra at 241 (wherein the plaintiff “could not have been ignorant of the step’s existence but was inevitably required to negotiate it” in order to reach her destination). Compare Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791, 792-793 (504 SE2d 198) (1998) (the ramp was damp, and its nonskid coating was worn down).

On this issue, Williams deposed that he witnessed Febuary walk down the ledge to retrieve the rope. Williams stated that he watched as Febuary appeared to lose his balance and fall from the ledge and confirmed that Febuary did not trip on the ledge before falling. In response, Febuary admitted that he could not remember what happened immediately prior to the fall or where he was looking while walking. Febuary acknowledged that nothing blocked his view of the ramp or otherwise distracted him. It is undisputed that the weather was clear that day and that the fall occurred around noon. Febuary claimed, however, that the ledge was difficult to see and that he thought he may have tripped on the ledge before falling.

Under the circumstances, Averitt Express pierced Febuary’s pleadings by demonstrating that Febuary walked down the ramp’s ledge even though he had actual or constructive knowledge of the potentially hazardous static condition. Febuary’s pure speculation as to the cause of his fall failed to present a jury issue as to whether he had equal knowledge of the condition. See Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (511 SE2d 579) (1999); see also Clemmons v. Griffin, 230 Ga. App. 721 (498 SE2d 99) (1998). Therefore, the trial court did not err in granting Averitt Express’ motion for summary judgment.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       It is undisputed that there were no foreign objects or cracks in the concrete on the ramp that may have created an uneven surface.

       Notably, Williams deposed that no one other than Febuary had fallen from the ramp since it was built in 1992, despite its regular use for pickups and deliveries.


text:
    A00A0268.
    SUMMERHILL NEIGHBORHOOD DEVELOPMENT CORPORATION v. TELERENT LEASING CORPORATION.
    (528 SE2d 889)
   Eldridge, Judge.

On June 18, 1996, Summerhill Neighborhood Development Corporation, under a written agreement, had installed a telephone system and other equipment from Telerent Leasing Corporation to be paid for monthly for 60 months. However, on August 1, 1997, Summerhill stopped making payments. Telerent recovered all of its equipment in November 1997 and re-leased or sold the personal property. Upon suit, Summerhill contended that the agreement was a purchase agreement with a secured transaction worded as a lease with the option to buy to provide security for Telerent; Telerent contended that the agreement constituted a valid lease and not a secured transaction agreement. On summary judgment the trial court found that the agreement constituted a valid lease. In de novo examination of the evidence, we find that the agreement constituted a lease and affirm.

Summerhill contended that the option to purchase at the end of the lease was for $1, a nominal price that indicated a security agreement under OCGA § 11-1-201 (37), but Telerent countered that the addendum signed by Summerhill on August 3, 1996, before the system had been installed, required purchase at fair market value and provided consideration as a true lease. Summerhill, however, argued that no consideration was given for the addendum and argued that it had to make a down payment, to have automatic renewal, to pay applicable taxes and insurance, and to make repairs on the telephone system. Telerent filed a Uniform Commercial Code-1 financing statement. However, the trial court looked to the provisions for the option to purchase at the fair market value at the termination of the lease period to find a true lease.

1. Summerhill’s first enumeration of error is that the trial court erred in ruling that the agreement was a lease and not a secured transaction sale. We do not agree.

The agreement clearly and unambiguously states that Telerent owned the property and that Summerhill had only the right to use the equipment under the lease. “Lessee shall have no property interest [in the property].” The agreement provided that, at the termination of the lease, “the lessee shall remove the equipment from the premises referred to herein and surrender the equipment in good operating condition to Telerent or its assignee.” The agreement by its express terms did not become effective or require Summerhill to pay until the date of delivery and completion of installation, which did not occur until after August 5, 1996.

Prior to the delivery and installation of the telephone system by Telerent and first payment by Summerhill on September 1,1996, the parties mutually entered into the addendum which imposed mutual obligations that required, at the termination of the lease, payment of the fair market value for the property rather than a nominal sum if the option to purchase was exercised. Telerent assumed the risk of ownership and depreciation of the property, retained liability as lessor for the property, surrendered any potential security interest protection, and granted an option right of purchase at the fair market value; Summerhill assumed a lease obligation and surrendered any benefits of ownership and liability as purchaser. Both mutually agreed to the changes in the statutory rights and liabilities under the UCC. Clearly, a mutual exchange of rights and obligations occurred between the parties in an arm’s length transaction, which incidentally changed the evidence as to the legal effect of the agreement. Contrary to the contentions of Summerhill, new consideration for the written addendum existed, thereby modifying the agreement. Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 681 (305 SE2d 361) (1983); J. E. M. Enterprises v. Taco Pronto, 145 Ga. App. 573, 574 (1) (244 SE2d 253) (1978); Houston v. Jefferson Standard Life Ins. Co., 119 Ga. App. 729, 733 (d) (168 SE2d 843) (1969).

While the terms of the agreement created a lease rather than a secured transaction, any ambiguity caused by the option purchase price at the end of the lease ceased to exist when the parties entered into the addendum, which made the purchase price the fair market value. See Carter v. Tokai Financial Svcs., 231 Ga. App. 755, 757 (500 SE2d 638) (1998); Mejia v. C & S Bank, 175 Ga. App. 80, 82 (332 SE2d 170) (1985). Such term constitutes the strongest evidence of the intent of the parties. Since this term was changed by the parties prior to performance by either party, this term gives stronger evidence of the intent of the parties that the agreement constituted a true lease and not a disguised secured transaction.

Payment by the lessee of maintenance, taxes, and insurance does not determine whether this constituted a secured transaction. Mejia v. C & S Bank, supra at 82. Likewise, a down payment on the lease does not create a secured transaction. Third Century v. Morgan, 187 Ga. App. 718, 719 (371 SE2d 262) (1988); Mejia v. C & S Bank, supra at 81. While Telerent made an informational filing, the agreement did not require a financing statement; such UCC filing did not make the agreement a secured transaction. Woods v. Gen. Elec. &c. Lease, 187 Ga. App. 57, 59 (1) (369 SE2d 334) (1988).

The trial court properly found that the agreement was a true lease and granted summary judgment to Telerent. See Carter v. Tokai Financial Svcs., supra at 757; Third Century v. Morgan, supra at 720; Woods v. Gen. Elec. &c. Lease, supra at 59-60; Mejia v. C & S Bank, supra at 82.

2. Summerhill’s second enumeration of error is that the trial court erred in finding that the lease acceleration provision was not a penalty. We do not agree.

OCGA § 11-2A-101 et seq. was enacted by the General Assembly in 1993 to deal with the lease of personal property. Therefore, OCGA § 11-2A-504 (1) governs liquidated damages in a personal property lease and provides:

Damages payable by either party for default, or any other act or omission, including indemnity for loss or diminution of anticipated tax benefits or loss or damage to lessor’s residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission.

The drafters of the Uniform Commercial Code commented that:

[a] liquidated damage formula that is common in leasing practice provides that the sum of lease payments past due, accelerated future lease payments, and the lessor’s estimated residual interest, less the net proceeds of disposition (whether by sale or re-lease) of the leased goods is the lessor’s damages. Tax indemnities, costs, interest and attorney’s fees are also added to determine the lessor’s damages. . . . This section does not incorporate two other tests that under sales law determine enforcibility [sic] of liquidated damages, i.e., difficulties of proof of loss and inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. The ability to liquidate damages is critical to modern leasing practice; given the parties’ freedom to contract at common law, the policy behind retaining these two additional requirements here was thought to be outweighed. Further, given the expansion of subsection (1) to enable the parties to liquidate the amount payable with respect to an indemnity for loss or diminution of anticipated tax benefits resulted in another change: the last sentence of § 2-718 (1), providing that a term fixing unreasonably large liquidated damages is void as a penalty was also not incorporated. The impact of local, state, and federal tax laws on a leasing transaction can result in an amount payable with respect to the tax indemnity many times greater than the original purchase price of the goods. By deleting the reference to unreasonably large liquidated damagesl,] the parties are free to negotiate a formula, restrained by the rule of reasonableness in this section. These changes should invite the parties to liquidate damages.

Decided January 31, 2000.

Hipes & Norton, Albert L. Norton, Jr., Sherrod J. Waites II, for appellant.

Saveli & Williams, William E. Turnipseed, for appellee.

(Emphasis supplied.) Selected Commercial Statutes, Uniform Commercial Code Official Comments (West Pub. Co. 1996 ed.), pp. 207-208.

The liquidated damages provisions of the personal property lease used a formula in compliance with the drafter’s formula and in compliance with the provisions enacted by the General Assembly. Thus, the liquidated damages provision is enforceable under Georgia law. While the liquidated damages clause did not require the present value of the balance of rentals which had been accelerated upon default, Telerent sought only such sum consistent with OCGA §§ 11-2A-527 (1) and 11-2A-528 (1) when an OCGA § 11-2A-504 liquidated damage clause was not used. In this contract, Summerhill had credited the sale or re-lease proceeds of the personal property under the terms of the agreement. Thus, the liquidated damages provision does not act as a penalty, because Telerent waived any right to receive anything other than present value for the personal property. See generally Carter v. Tokai Financial Svcs., supra at 759. Therefore, the trial court did not err.

Judgment affirmed.

Blackburn, P. J., and Barnes, J, concur.

       Ga. L. 1993, p. 633, § 1. The Act became effective on July 1, 1993, as to all lease contracts “that are first made or that first become effective between the parties on or after that date.” Ga. L. 1993, p. 697, § 5. See also Colonial Pacific Leasing Corp. v. McNatt, 268 Ga. 265, 268 (486 SE2d 804) (1997).

        Warren’s Kiddie Shoppe v. Casual Slacks, 120 Ga. App. 578, 580 (171 SE2d 643) (1969), holds that official comments of the UCC should be given due consideration in determining the intent of the General Assembly in enacting the provisions verbatim.

        Adams v. D & D Leasing Co. of Ga., 191 Ga. App. 121, 123-124 (381 SE2d 94) (1989) does not apply, because OCGA § 11-2A-504 legislatively radically changed the statutes dealing with liquidated damages as to leased personalty existing at the time of its decision. Further, Adams relied on Jones v. Clark, 147 Ga. App. 657, 659 (2) (249 SE2d 619) (1978) as authority, which involved the liquidated damages provision in a lease of realty.