text:
    A99A0989.
    KNIGHT v. THE STATE.
    (521 SE2d 851)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of two counts of aggravated child molestation and five counts of child molestation for sexual acts directed at N. N., defendant’s nine-year-old stepdaughter. Viewed in the light most favorable to the jury’s verdicts, the evidence at trial revealed the following:

On May 15, 1996, N. N. told her mother that, two weeks before, defendant pushed N. N.’s panties aside, “put his mouth on her and . . . blew into her.” Defendant then exposed himself to N. N., put a “white plastic baggie thing” over his private parts and ejaculated in front of the child. Another time, defendant again “put his tongue on [N. N.’s] private part . . . [and] showed [N. N.] his private part again.” Defendant again ejaculated in front of the child. Although at trial N. N. denied defendant ever put anything other than his tongue in her private parts, N. N. previously told her mother that “he put his fingers inside of her,” and again ejaculated. Once was before spring break, and once was after spring break. Defendant told N. N. “don’t tell mommy,” and N. N. was afraid defendant would hurt her. In an interview videotaped on the night of her outcry and played for the jury, N. N. confirmed that defendant penetrated her digitally each time, and that it hurt. She also related that, under the guise of innocent horseplay, defendant “bounced” N. N. on his chest such that, through their clothing, defendant’s private parts rubbed against N. N.’s private parts. During the second incident, defendant “bounced” N. N. again.

The jury found defendant guilty as charged for each offense. Pursuant to the grant of an out-of-time appeal, defendant appeals from the denial of his motion for new trial. Held:

1. Defendant’s first enumeration objects to the admission into evidence of “the testimony of four witnesses and the videotaped interview of [N. N.],” arguing there were insufficient indicia of reliability to authorize hearsay statements under the Child Hearsay Statute, OCGA § 24-3-16. Specifically, defendant argues the child’s outcry was not spontaneous but arose only when the child was confronted with possible discipline over an unrelated matter at school; the child had a poor history for truthfulness; the mother, a former investigator with the Georgia Bureau of Investigation, had the opportunity to coach the child and was present whenever N. N. spoke of these matters to other adults; and the child was manipulative by concealing her knowledge of the term “condom.”

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

OCGA § 24-3-16. In Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65), this Court noted ten nonexclusive factors the trial court should consider in determining whether the circumstances surrounding a child’s claim of molestation provide corroborating indicia of reliability. These factors are to be applied in neither mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Jones v. State, 226 Ga. App. 420, 422-423 (2) (487 SE2d 56).

Although there is an evidentiary basis for each of defendant’s specific challenges, they do not deprive the following salient circumstances of evidentiary value: The child’s outcry naming defendant arose within a month of the last act, after N. N. saw a television news item about a teacher who allegedly molested several children in his class. N. N. had an “uh-oh” feeling in the pit of her stomach that what defendant had done to her was wrong, and so, in accordance with general instructions from a school counselor, N. N. told a trusted adult (her mother) what had happened. The child had a calm demeanor during the videotaped interview, was responsive to the investigator’s questions, and appreciated the seriousness of the accusations. The trained investigator did not unnecessarily lead the child but allowed her to express her story in a narrative fashion. N. N. testified at trial and was cross-examined by defense counsel. In our view, there was an ample evidentiary basis to authorize the trial court’s ultimate conclusion that sufficient indicia of reliability corroborated the child’s outcry. Consequently, there was no error in admitting the videotape interview or the related testimony of adults to whom nine-year-old N. N. described the indecent liberties defendant took with her. Allen v. State, 263 Ga. 60-61 (2) (428 SE2d 73) (videotape); McCormick v. State, 228 Ga. App. 467, 468 (4) (491 SE2d 903) (statements to official investigator); Jones v. State, 226 Ga. App. at 422-423 (2), supra (statements to adults); Heard v. State, 221 Ga. App. 166, 167-168 (2) (471 SE2d 22) (videotape). Alleged inconsistencies or challenges to the truthfulness of the child are matters of credibility for the jury to resolve and do not render the admission of this relevant and material evidence erroneous. Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558).

2. Counts 3 and 5 of the indictment alleged defendant committed the indecent and immoral act of “touch [ing] the vaginal area of [N. N.] with his finger.” Defendant enumerates the denial of his motion for directed verdicts as to these two counts, arguing there is no competent evidence that defendant committed child molestation by the specific means alleged.

The standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) is the proper test for an appellate court to determine the sufficiency of the evidence to convict, whether the challenge arises from the overruling of a motion for directed verdict of acquittal or from the overruling of a motion for new trial based upon the general grounds. Humphrey v. State, 252 Ga. 525, 526-527 (1) (314 SE2d 436); Lovell v. State, 235 Ga. App. 140 (1) (508 SE2d 771).

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 [, supra]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847). In the case sub judice, defendant’s argument there is no competent evidence because the videotape interview of the child should have been excluded has been determined adversely to him in Division 1. N. N.’s statement that defendant penetrated her digitally, and that it hurt, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of child molestation as alleged in Counts 3 and 5 of the indictment. Miles v. State, 201 Ga. App. 568, 570-571 (9) (411 SE2d 566). The trial court did not err in overruling defendant’s motion for directed verdict of acquittal as to these two counts.

3. Defendant contends the trial court further erred in overruling his motion for directed verdict of acquittal as to Counts 4 and 6, arguing there was a fatal variance between the allegations of the indictment and the proof at trial.

The indictment charged defendant with committing an indecent and immoral act, in that he did “rub his penis against [the] child’s vaginal area.” In support of his contention, defendant points out that N. N. testified that both she and defendant were still fully clothed when defendant “bounced” N. N. on his chest. But the full import of N. N.’s testimony is that when defendant “bounced” N. N., she felt him place his private parts against her private parts.

“Skin-to-skin” contact is not a necessary element of child molestation under either OCGA § 16-6-4 (a) or the charge as laid by the State in this indictment. See Holland v. State, 209 Ga. App. 821, 823 (434 SE2d 808) (six judges concurring fully and specially). N. N.’s statement that she felt defendant’s privates against her own privates, even through clothing, is sufficient proof that defendant rubbed his penis against the child’s vaginal area with the intent to arouse his sexual desires, as alleged in Counts 4 and 6 of the indictment. Consequently, there was no fatal variance between the allegations and the proof. McGuire v. State, 209 Ga. App. 813, 8l4 (1) (a) (434 SE2d 802).

4. During deliberations, the jury sent out a note with the following question regarding Counts 4 and 6: “Does the act of rubbing have to be clothed or unclothed?” The trial court recharged the jury on the definition of child molestation and instructed them that the answer to their question is the question of fact the jury must decide.

(a) Defendant objected to both the recharge and the trial court’s explanatory comments. Consequently, the State’s contention that defendant waived any objection to the recharge by failing to pursue the same in a motion for new trial is without merit. Defense counsel may except to such portions of the jury instructions as are perceived at trial to be error and may also reserve the right to raise additional exceptions on motion for new trial or on appeal. McCoy v. State, 262 Ga. 699, 700-701 (2) (425 SE2d 646).

(b) Defendant contends the recharge was erroneous because the trial court failed to restate the State’s obligation to prove every material allegation of the indictment beyond a reasonable doubt, thus allowing the possibility that defendant was convicted of an act of molestation not charged in the indictment. We disagree.

A trial court is duty-bound to recharge on any part of the charge when the jury so requests, but does not err in limiting such recharge to the specific points raised by the jury’s inquiry. Sinkfield v. State, 266 Ga. 726, 727 (3) (470 SE2d 649). Where the jury requests further instructions, the court in its discretion may recharge them in full or only upon the points requested. Bovoley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97).

In the case sub judice, the recharge in the statutory language was a correct statement of the offense of child molestation. Long v. State, 189 Ga. App. 131, 132 (2) (375 SE2d 274). The trial court instructed the jury on the State’s burden to prove each essential element of the offense charged in the indictment beyond a reasonable doubt, both in its preliminary instructions and in the general charge. We have already held in Division 3, supra, that there was no fatal variance. There is also no reasonable possibility the recharge confused a juror of ordinary intelligence, or that defendant was found guilty under Counts 4 and 6 for committing child molestation in any manner except as alleged in the indictment. Pettway v. State, 204 Ga. App. 804, 805 (420 SE2d 619).

5. During closing argument, the trial court cautioned the State’s attorney not to mention defendant’s non-responses to police questioning. Nevertheless, the State’s attorney then referred to testimony by police investigators, indicating that, when defendant was formally arrested on multiple charges of molestation, defendant “asked if he could get his shoes. And that was his only comment.” Defendant objected, indicating he had a motion to make outside the presence of the jury. Without removing the jury, the trial court “overrule [d] the objection at this point, [but] caution[ed] [the State’s attorney] again.” Defendant requested no further instructions and did not renew his motion after this rebuke of the State’s attorney by the trial court.

Decided August 27, 1999.

Hyrum O. Pierce, for appellant.

Richard R. Read, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

If a court overrules a motion for a mistrial but gives corrective instructions, and thereafter counsel fails to request further instructions or fails to renew the motion for a mistrial, an enumeration raising this ground is without merit. Ross v. State, 233 Ga. App. 26, 27 (2) (503 SE2d 308). In the case sub judice, the alleged error enumerated was not preserved for appellate review and consequently presents nothing for decision on appeal.

Judgment affirmed.

Andrews, R J., and Ruffin, J., concur.


source: Caselaw Access Project

author: McMurbay, Presiding Judge.

license: Public Domain

text:
    A99A1369.
    SAMS v. THE STATE.
    (521 SE2d 848)
   McMurbay, Presiding Judge.

Defendant was tried before a jury and convicted of driving a motor vehicle after having been declared an habitual violator and receiving notice that his driver’s license had been revoked as an habitual violator in violation of OCGA § 40-5-58 (c) (1). The evidence which authorized this conviction, construed so as to uphold the jury’s verdict (Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646)), reveals the following:

At about 6:15 in the morning on December 22, 1996, Cobb County Police Officer Michael Rosine was dispatched to investigate a reported car collision at a mobile home park. The officer found defendant’s car abandoned on the side of the road. The driver had apparently left the car after colliding with a nearby stop sign. No key was in the car’s ignition, but the vehicle was directed toward defendant’s nearby mobile home — which was a block and a half away. Officer Rosine had defendant’s car impounded and then went to defendant’s home and “let the people inside the trailer know that if [defendant] wanted his vehicle, he would need to contact the Cobb County Police Department.”

Later, at 7:30 that morning, defendant appeared at the Cobb County Police Department asking about his car. Officer Rosine met defendant and “advised him it had been involved in a hit and rim accident.” While Officer Rosine was speaking to defendant, he noticed that defendant “had a very strong odor of an alcoholic beverage [; that his] eyes were bloodshot, [and that] he appeared unsteady on his feet.” The officer then asked defendant where he had been the previous night, and defendant responded, “Runaround Sue’s” — a bar located in Kennesaw. Defendant told the officer that “he had his vehicle with him at Runaround Sue’s.” Officer Rosine asked defendant if he drove home from the bar, but defendant explained “that he didn’t remember if he drove it home, that he blacked out.” Defendant said “that he had been drinking a lot the night before.” Officer Rosine then asked defendant if he had his car key and defendant responded, “of course I do, and he pulled them out of his pocket and showed them to [the officer].” At that point, Officer Rosine informed defendant that he was going to cite him for leaving the scene of an accident, but then learned that defendant’s driver’s license had been suspended, and Officer Rosine placed defendant under arrest.

This appeal followed the denial of defendant’s motion for a new trial. Held:

1. Defendant challenges the sufficiency of the evidence, arguing that the circumstantial evidence of his guilt was insufficient to exclude his own hypothesis that another person wrecked his car.

In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. It [is] the duty of the [jury], as the trier of fact, to determine if there was sufficient evidence, direct or circumstantial, to require a judgment of guilty. See Townsend v. State, 127 Ga. App. 797 (2) (195 SE2d 474) and cits.

Goode v. State, 130 Ga. App. 791 (2), 792 (204 SE2d 526). In the case sub judice, the jury was authorized in rejecting defendant’s explanation of his innocence — i.e., that an unidentified person wrecked his car. Defendant’s admissions that he was at a bar with his car, in a state of extreme intoxication and too drunk to remember how he got home during the evening before his arrest, and proof that defendant’s car was wrecked within a block and a half of his home; that defendant had possession of his car keys shortly after this collision, and that defendant’s driver’s license had been revoked based on his status as an habitual violator at the time of the collision are sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt of driving a motor vehicle after having been declared an habitual violator and receiving notice that his driver’s license had been revoked as an habitual violator in violation of OCGA § 40-5-58 (c) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Parker v. State, 170 Ga. App. 333, 334 (3) (317 SE2d 209).

2. Defendant contends the trial court erred by admitting statements he made to Officer Rosine before he was read his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694).

A suspect is not entitled to warnings under Miranda v. Arizona, 384 U. S. 436, supra, unless that suspect has been taken into police custody or has been deprived of freedom of action in another significant way. Carroll v. State, 208 Ga. App. 316, 317 (2) (430 SE2d 649). A trial court’s findings as to whether a suspect was unlawfully questioned while in police custody, without being advised of his Miranda rights, will be upheld on appeal unless clearly erroneous. Brown v. State, 262 Ga. 833, 834-835 (6) (426 SE2d 559). At a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), the trial court in the case sub judice found that defendant was not in police custody when he responded to Officer Rosine’s questioning at the Cobb County Police Department. The evidence which supported this finding was Officer Rosine’s testimony that he did not coerce defendant into coming to the police station; that defendant was free to leave during questioning and that, although defendant was questioned while behind closed doors, defendant was neither physically restrained nor unable to leave the interview room. This evidence supports the trial court’s findings that defendant’s statements were freely and voluntarily made, under noncustodial circumstances. See Mullís v. State, 248 Ga. 338, 340 (9) (282 SE2d 334); Hendrix v. State, 230 Ga. App. 604 (1), 605-606 (497 SE2d 236).

3. Defendant contends the trial court erred in failing to strike Officer Rosine’s opinion testimony regarding why he believed defendant wrecked his car while en route home from “Runaround Sue’s.” Citing Maxwell v. State, 262 Ga. 73, 76 (5) (414 SE2d 470), overruled on other grounds, Wall v. State, 269 Ga. 506, 507 (2), 509 (500 SE2d 904), defendant argues that this testimony should not have been permitted because it went to the ultimate issue of fact for the jury.

While we agree that Officer Rosine’s opinion testimony invaded the jury’s province as to an ultimate issue of fact in violation of the rule enunciated in Maxwell v. State, 262 Ga. at 76 (5), supra, we find no reversible error because the trial transcript reveals that defense counsel induced this error by asking Officer Rosine on cross-examination whether there is “any other link to [defendant] that you could place him in the vehicle other than a statement. . . ?” “Induced error cannot be complained of on appeal. [Cit.]” Chambley v. State, 111 Ga. App. 630 (1) (340 SE2d 635).

4. Defendant contends the trial court erred in not requiring Officer Rosine to elaborate on whether defendant’s memory lapse would authorize a conclusion that someone else wrecked defendant’s car. Defendant argues that defense counsel should have been permitted to inquire into theories that challenged the officer’s own stated opinion.

Decided August 27, 1999.

Roderick H. Martin, Russell J. Parker, Jr., for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Joel C. Pugh, Nancy I. Jordan, Assistant District Attorneys, for appellee.

The trial court determined that defense counsel’s question to Officer Rosine during cross-examination — “And it could mean that somebody had driven him home” — was inappropriate because it called for speculation. This reasoning reflects an appropriate basis for the trial court’s discretion in limiting the scope of defendant’s cross-examination. See Dick v. State, 246 Ga. 697, 706 (16) (273 SE2d 124). Finding no abuse of discretion, we affirm the trial court’s judgment.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: McMURRAY, Presiding Judge.

text:
    A99A1562.
    REDDING v. THE STATE. GAY v. THE STATE.
    A99A1563.
    (521 SE2d 840)
   McMURRAY, Presiding Judge.

Defendants Danny Redding and Durante Gay were tried jointly before a jury and convicted of possession of cocaine with intent to distribute. Defendant Redding was also convicted of felony obstruction of an officer. The evidence which authorized these convictions, construed so as to uphold these verdicts {Mills v. State, 137 Ga. App. 305 (1), 306 (223 SE2d 498)), reveals the following:

At about 10:00 in the morning on March 20, 1997, City of Atlantá Police Officers Michael Giugliano and A. L. Dorsey, while conducting a covert surveillance operation in an area known for illegal drug activity, observed defendants Redding and Gay execute several deals which appeared to be illegal curbside drug transactions. The officers observed defendant Gay collect money from approaching customers and then direct them to defendant Redding, who was standing nearby. The officers then watched defendant Redding open a clear plastic bag and give each customer what appeared “to be a hit of crack cocaine.” After one such customer began consuming his purchase (“hit the pipe”), Officers Giugliano and Dorsey moved in to investigate — but not without trouble.

When the officers approached, defendant Gay turned and walked away. But defendant Redding “turned and spit [a] clear plastic bag [from his mouth], which contained 21 hits of suspected crack cocaine to the ground, turned back and swung at [Officer Giugliano] and struck [him] in the chest.” Officers Giugliano and Dorsey wrestled with defendant Redding and exposed him to a debilitating “pepper spray.” The officers handcuffed Redding and then radioed for an ambulance and additional police support. After this help arrived, defendant Gay returned to the scene and joined a crowd of bystanders. Officer Giugliano spotted him and directed another officer to arrest defendant Gay. This officer complied, but a search of defendant Gay revealed no drugs or money.

Defendants filed these appeals after the denial of their motions for new trial. Held:

Case No. A99A1562

1. Defendant Redding’s sole defense at trial was that Officers Giugliano and Dorsey are falsely prosecuting him for the charged offenses because he refused to provide information against a suspected drug dealer whom the officers had targeted for arrest — Grady Blackwell. Citing Walker v. State, 260 Ga. 737 (399 SE2d 199), and Henderson v. State, 255 Ga. 687 (341 SE2d 439), Redding contends the trial court prevented him from developing this defense by cutting off his cross-examination of Officer Giugliano as to the officer’s motive for arresting defendant Redding. Defendant Redding proffered cross-examination of Officer Giugliano at trial showing that Grady Blackwell is a convicted felon (based on a firearms violation and two drug violations) and that Blackwell’s convictions were the result of Officer Giugliano’s law enforcement efforts.

Walker and Henderson provide that it is error to exclude evidence relevant to an accused’s sole defense, but explain that exclusion of such evidence is reversible only when the evidence would have been enough to raise a reasonable doubt of the accused’s guilt. Henderson v. State, 255 Ga. at 689 (1), supra; Walker v. State, 260 Ga. at 738 (1), supra. Evidence which can have no other effect but to cast a bare suspicion is not admissible. Croom v. State, 217 Ga. App. 596, 598-599 (3) (458 SE2d 679).

Although Officer Giugliano’s proffered testimony reveals that he arrested Grady Blackwell on more than one occasion before the incident at issue in the case sub judice, this proffer does not directly or indirectly support defendant Redding’s theory that any law enforcement officer is falsely accusing him of the crimes charged based on his refusal to provide information against Grady Blackwell. Since proof of Officer Giugliano’s law enforcement efforts against Grady Blackwell would have done nothing but cast a bare suspicion in support of defendant Redding’s defense, the trial court did not err in excluding Officer Giugliano’s proffered testimony. See Croom v. State, 217 Ga. App. at 598 (3), supra.

2. Relying on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), defendant Redding contends the trial court erred in finding that racial bias did not motivate the State’s attorney’s use of a peremptory strike to remove a prospective African-American juror. The State’s attorney explained that he excluded this prospective juror because

all throughout individual voir dire . . . she had a bad attitude [and she] was continually banging on the podium thing there as if she didn’t want to be here in the first place [and] the State’s position is that she would not have made an attentive juror and give all consideration to the evidence presented. . . .

Defendant argues that this explanation was contrived, pointing out that this prospective juror was otherwise articulate, educated and straightforward.

Under Batson v. Kentucky, 476 U. S. 79, supra, the State’s explanation for striking a prospective juror must be neutral, related to the case to be tried, and reasonably specific. The trial court’s decision as to whether these factors are satisfied rests largely upon an assessment of the State’s attorney’s state of mind and credibility — issues which are peculiarly within a trial judge’s province. The trial court’s factual findings in this regard must therefore be given great deference on appeal and may be disregarded only if clearly erroneous. Sor-rells v. State, 218 Ga. App. 413-414 (2) (461 SE2d 904).

Although there are indications that the prospective juror in question would have been well suited for jury service, these factors alone do not demand a finding that the State’s attorney improperly employed a peremptory strike to exclude this prospective juror. Consequently, since the State’s attorney’s explanation for excluding the prospective juror in question — perceived hostility, impatience and inattentiveness — have been found to be a fair basis for exercising a peremptory strike (Jones v. State, 226 Ga. App. 428, 429 (1) (f) (487 SE2d 62); Moak v. State, 222 Ga. App. 36, 38-39 (3) (473 SE2d 576)), we cannot say the trial court erred in determining the State’s attorney’s peremptory strike was not improperly motivated by racial bias.

3. The trial court did not abuse its discretion in denying defendant Redding5s motion for mistrial based on Officer Dorsey’s testimony regarding defendant Redding’s custodial admission that he was selling drugs “for himself.” Although the State did not provide defendant with notice of this admission in accordance with OCGA § 17-16-4 (a) (1), defendant Redding made no showing at trial that he was prejudiced as a result of the State’s failure to make the custodial admission available to him prior to trial or that the State acted in bad faith in failing to comply with OCGA § 17-16-4 (a) (1). Indeed, the State did not even offer defendant Redding’s custodial admission into evidence at trial. Defendant Redding’s incriminating custodial statement was elicited by defendant Gay’s attorney during Officer Dorsey’s cross-examination. In the absence of a showing of prejudice and bad faith, the trial court is not authorized to sanction the State for failing to comply with OCGA § 17-16-4 (a) (1). Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241).

Case No. A99A1563

4. Because defendant Redding invoked the Fifth Amendment at trial, defendant Gay contends the trial court’s denial of his motion to sever the parties is reversible error because a joint trial excluded the possibility of testimony from defendant Redding that defendant Gay had nothing to do with the alleged curbside drug operation.

The decision to sever was within the trial court’s discretion, and we will not disturb that ruling absent a showing of clear abuse of that discretion. OCGA § 17-8-4; Stephens v. State, 170 Ga. App. 267 (1) (316 SE2d 847). Although defendant Redding was not available for cross-examination at trial, this alone does not demand a finding that the denial of defendant Gay’s motion to sever was an abuse of discretion. A defendant seeking severance on such grounds must at least show a bona fide need for a co-defendant’s testimony. Stevens v. State, 165 Ga. App. 814, 817 (3) (302 SE2d 724), rev’d on other grounds, Green v. State, 260 Ga. 625, 626 (398 SE2d 360). In the case sub judice, defendant Gay cannot meet this burden because he established during his cross-examination of Officers Giugliano and Dorsey the same fact that defendant Redding would have allegedly provided in support of his defense, i.e., defendant Redding’s custodial statements that defendant Gay had nothing to do with the alleged curbside drug operation. See Haynes v. State, 199 Ga. App. 288, 291 (4) (404 SE2d 585).

The factors a trial court must consider in exercising its discretion in regard to a motion to sever are (1) whether the number of defendants will create confusion as to the evidence and the law applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856). None of these factors is present in the case sub judice.

There was no danger of confusion based on the number of defendants because there were only two. There was no evidence admissible against one defendant which was inadmissible against the other. And the defenses of the respective defendants were not antagonistic. They both denied operating a curbside drug operation — defendant Gay alleged that he was an innocent bystander and defendant Redding alleged that he was being set up by the police. These circumstances demonstrate that the trial court did not abuse its discretion in denying defendant Gay’s motion to sever.

Decided August 27, 1999.

Zell & Zell, Rodney S. Zell, for appellant (case no. A99A1562).

Danny Redding, pro se.

Richard O. Allen, for appellant (case no. A99A1563).

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

5. Defendant Gay contends a proper chain of custody was not established so as to authenticate the bag of cocaine defendant Red-ding discharged from his mouth at the crime scene. There being no evidence of tampering, the chain of custody was adequately established by testimony indicating that proper security procedures were followed by law enforcement authorities at the police department and the State Crime Laboratory. Montgomery v. State, 155 Ga. App. 423, 425 (5) (270 SE2d 825).

Judgments affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: Johnson, Chief Judge.

text:
    A99A1742.
    THE STATE v. OWENS.
    (521 SE2d 860)
   Johnson, Chief Judge.

In this case, the state appeals the trial court’s grant of Timothy Owens’ motion to suppress. Owens argued that the initial stop of his vehicle was illegal because it was pretextual. For reasons which follow, we reverse.

The trial court’s order states as follows:

The Court finds that, although the Defendant was operating his vehicle at a speed slightly above the posted speed limit (61 miles per hour in a 55 mile per hour zone), this did not give the arresting officer the articulatible [sic] suspicion to stop the vehicle. The Court finds, therefore, that the stop is illegal.

This finding is clearly erroneous. The United States Supreme Court has held that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, 517 U. S. 806 (116 SC 1769,135 LE2d 89) (1996). Thus, if the driver of a stopped car has broken even a relatively minor traffic law, a motion to suppress arguing that the stop was pretextual must fail. See State v. Kirbabas, 232 Ga. App. 474, 477 (502 SE2d 314) (1998); Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997).

Decided August 27, 1999

James T. Irvin, Solicitor, for appellant.

Christopher W. Duncan, Sean A. Black, for appellee.

In this case, Owens was speeding. Therefore, the officer’s stop was not illegal. See Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997); Staley v. State, 224 Ga. App. 806 (1) (482 SE2d 459) (1997). Accordingly, the trial court’s order must be reversed.

Judgment reversed.

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


author: Miller, Judge.

text:
    A99A0815.
    HARRIS v. THE STATE.
    (521 SE2d 864)
   Miller, Judge.

Based on evidence that she was the lessee of the premises where stolen tools and equipment were found, Beverly Harris was convicted of two counts of theft by receiving stolen property. She challenges the conviction on the ground of insufficient evidence. We reverse.

Construed in favor of the verdict, the evidence showed that Harris’ husband with whom she lived participated in burglarizing Gunters Automotive. Another burglary at Gunters and at Dalton Industrial Systems also occurred shortly thereafter. The burglars took many of the stolen items to Harris’ leased residence, where two months later police discovered the stolen equipment (including a floor jack, a tool and die set, and a welder) and the stolen tools (including wrenches, a socket set, and a sledge hammer). All of these items were found in a storage room at the back of the house, with the exception of a full tool box found in the living room of the house. The only witness to testify to Harris’ knowledge of the items was her husband, who testified she knew nothing about them.

“Every person is presumed innocent until proved guilty. No person shall be convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.” OCGA § 16-1-5. OCGA § 16-8-7 (a) sets forth the elements of the crime of theft by receiving stolen property:

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

Scienter, i.e., the knowledge that the property was stolen, is an essential element of the crime. Dunbar v. State, 228 Ga. App. 104, 107 (1) (b) (491 SE2d 166) (1997). Here the only evidence presented by the State was that police found the stolen goods at the house Harris leased and occupied. Assuming such showed Harris possessed the goods, “evidence of unexplained possession of recently-stolen goods, standing alone, will not support a conviction for theft by receiving stolen goods, in that it is insufficient in itself to infer guilty knowledge.” Weldon v. Barnes, 251 Ga. 689, 691 (3) (309 SE2d 137) (1983).

The State argues that because the tools were unusual and expensive and were plainly visible in the living room and storage room, and because Harris’ husband was a burglar, the circumstantial evidence sufficed to provide the guilty knowledge. To support a conviction based on circumstantial evidence alone, the proved facts must exclude every reasonable hypothesis save that of defendant’s guilt. OCGA § 24-4-6; Patterson v. State, 159 Ga. App. 290, 294 (283 SE2d 294) (1981).

Here the State presented no evidence that Harris knew her husband was a burglar. The wrenches, socket sets, tool and die set, welder, sledge hammer, and car jack were not so inherently unusual or expensive (State witnesses estimated the combined value at $1,600) as to excite the suspicions of an ordinarily prudent person about their origin. Compare Dunbar, 228 Ga. App. at 107 (1) (b). To the contrary, Harris’ husband had worked in various types of construction and finishing work, which could explain an innocent knowledge by her about his possessing various tools and equipment. Her husband’s grandfather had owned a welding shop, and personal car maintenance was also presented as an alternative hypothesis. The State presented no evidence that would allow a jury to conclude that these other hypotheses as to Harris’ knowledge regarding the stolen items were not viable alternatives.

Because the verdict of guilty was unsupportable as a matter of law (see Patterson, 159 Ga. App. at 294), we must reverse the conviction.

Judgment reversed.

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

Decided August 30, 1999.

Coppedge, Leman & Ward, David L. McGuffey, for appellant.

Kermit N. McManus, District Attorney, for appellee.


author: Andrews, Presiding Judge.

text:
    A99A1129.
    In the Interest of C. A. C., a child.
    (522 SE2d 236)
   Andrews, Presiding Judge.

Samuel Deon Callahan appeals from the disposition order of the juvenile court which continued temporary legal custody of his daughter C. A. C. in the Oconee County Department of Family & Children Services and approved of the continued placement of C. A. C. with Larry and Susan Saxon, the paternal grandparents of D. S., C. A. C.’s half sister.

It was stipulated by C. A. C.’s mother, Nicole Saxon, Callahan’s former wife, that C. A. C. was a deprived child because Nicole Saxon was unable to care for her and was undergoing drug rehabilitation treatment. Saxon had custody of the child after her and Callahan’s divorce. The final judgment of divorce awarded joint legal custody to the parents, but gave physical custody of C. A. C. to Saxon.

C. A. C., seven years old, was the half sister of D. S., aged four. D. S. was the child of Nicole Saxon’s second husband, who committed suicide in 1997. D. S. was in the custody of Larry and Susan Saxon, D. S.’ paternal grandparents.

A petition alleging that C. A. C. was deprived was filed in August 1998, resulting from a domestic altercation between Callahan and Nicole Saxon. By order of August 21,1998, temporary custody of both D. S. and C. A. C. was placed with the Department and both children lived with the Saxons.

As a result of the initial 72-hour hearing, Callahan stipulated that, he was ordered to take parenting classes and to undergo anger management training and that he had done neither prior to the October 1998 hearing at issue here. Both the Saxons and Dickson, mother of Nicole Saxon, filed petitions to intervene in the deprivation matter, seeking visitation and custody of the children.

1. Callahan’s first enumeration is that the juvenile court erred in finding C. A. C. deprived “absent any evidence that [Callahan] was unfit or otherwise not entitled to custody of C. A. C.”

At the beginning of the hearing, Callahan’s attorney asked the court

whether or not, (a), we need to address that particular issue [whether C. A. C. was deprived as to Callahan]. I know there’s going to be a placement issue as to where [C. A. C.] is placed. But if there’s already a finding of deprivation and since Ms. Saxon is the legal custodial parent of the child, if our next step is to go into a hearing over the placement of the child?

Later, Callahan’s counsel stated that, since Ms. Saxon was the primary physical custodian of C. A. C. and the child had been found deprived as to her,

[e]ven if you found that . . . the child is not deprived as to Mr. Callahan, custody would not just return to Mr. Callahan if the petition were dismissed against Mr. Callahan. . . . Because he has joint legal custody. He still doesn’t have physical custody of the child.

The court then asked, since there had been a stipulation by Nicole Saxon as to deprivation “would there be any objection if we proceeded on with disposition?” Callahan’s counsel, in his presence in open court, stated “No, Your honor. . . . No objection.”

Having acquiesced in this procedure and failed to object when given the opportunity to do so, Callahan cannot here complain for the first time. Standard Guar. Ins. Co. v. Bundrage, 264 Ga. 632, 633 (452 SE2d 474) (1994); Allen v. Peachtree Airport Park &c. Co., 231 Ga. App. 549, 550 (2) (499 SE2d 690) (1998).

We do not recognize induced error. “Asserted prejudice based upon induced error is impermissible. (Cit.) [Cit.] Sharp v. State, 183 Ga. App. 641, 643 (3) (360 SE2d 50) (1987).” Martin v. State, 235 Ga. App. 844, 845 (2) (510 SE2d 602) (1998). See also Outdoor Systems v. Woodson, 221 Ga. App. 901 (473 SE2d 204) (1996).

2. Callahan’s second enumeration is that the court erred “when it placed temporary custody of C. A. C. with a third party [the Saxons] absent any evidence that [Callahan] was unfit or otherwise not entitled to custody.”

As reflected in Division 1, however, Callahan acknowledged that Nicole Saxon was the physical as well as joint legal custodian of C. A. C. and that the child was deprived as to the custodial parent.

Therefore, Callahan could not dispute the juvenile court’s conclusion that the child was deprived, OCGA § 15-11-2 (8), and there has been no error shown with regard to that finding and the court’s placement of temporary legal custody with the Department. As reflected in Division 1, this temporary custody began with the August 21,1998 order for shelter care for both children. OCGA § 15-11-34 (a) (2).

Once temporary legal custody is placed with the Department, the right to determine “where and with whom [the child] shall live” also vests with the Department. OCGA §§ 49-3-6; 49-5-3 (12) (D); In the Interest of J. N. T., 212 Ga. App. 498, 499 (441 SE2d 918) (1994); In the Interest of A. S., 185 Ga. App. 11, 12 (2) (363 SE2d 325) (1987). Any effort of the court to direct this decision is “merely exhortatory, and not binding. . . .” In the Interest of R. D., 141 Ga. App. 843 (234 SE2d 680) (1977); In the Interest of R. L. M., 171 Ga. App. 940, 942 (2) (321 SE2d 435) (1984).

Decided August 30, 1999.

Debra M. Finch, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Garcia & Powell, Tony D. Coy, for appellee.

Here, the juvenile court’s “approving the continued placement of the children” with the Saxons was not binding and provides no basis for finding of legal error by that court.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A1187.
    HUGGINS v. THE STATE.
    (521 SE2d 888)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of two counts of possession of a firearm by a convicted felon. The evidence which authorizes these convictions, construed so as to uphold the jury’s verdicts (Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398)), reveals that defendant was convicted of first degree forgery on March 16, 1993, and was thereafter found to be in possession of a handgun on June 7, 1997, and again on July 18, 1997. City of Palmetto Police Officer Ron Hilton investigated both incidents. His testimony reveals the following:

On June 7,1997, Officer Hilton arrived at the scene of a reported armed conflict and learned from eyewitnesses that defendant may have been involved. About one and one-half hours later, Officer Hilton spotted defendant in the driver’s seat of a parked car. The officer noticed that a woman was sitting next to defendant in the car’s front passenger seat and that three men were in the car’s rear passenger seat. Officer Hilton blocked defendant’s car with his police cruiser, stepped out with his gun drawn and “hollered where is the gun[?]” In response, defendant “slouched over the steering wheel [,] pulled . . . something out from under the seat and [handed] it over to the passenger which would have been a juvenile female.” The juvenile female then leaned “over to her left taking what was given to her and she straightened back up, slouched over in a position and she stuck what seemed to be something under the seat.” Defendant then denied being in possession of a gun. But after Officer Hilton found a handgun under the car’s front passenger seat, defendant explained, “man that’s my wife’s gun. You can’t charge me with my wife’s gun.”

On July 18, 1997, Officer Hilton was summoned to defendant’s home on a domestic disturbance call. Because defendant’s wife “had hand marks on her neck and looked like she had been shoved about the face,” Officer Hilton went looking for defendant and later spotted him in a car with defendant’s brother. A brief high-speed car chase ensued, but ended when Officer Hilton cornered the fleeing car in “a dead end cul-de-sac street.” Defendant “bailed out” of the car and ran. Officer Hilton gave chase, but stopped the pursuit when defendant reached for “a black automatic pistol [that was tucked] inside of his pants belt.”

This appeal followed the denial of defendant’s motion for new trial. Held:

1. A certified copy of defendant’s conviction for first degree forgery on March 16, 1993; Officer Hilton’s testimony regarding his discovery of a handgun under the passenger seat of defendant’s car on June 7, 1997; Officer Hilton’s testimony regarding his observation of a handgun in defendant’s belt on July 18, 1997; and similar transaction proof that defendant was in possession of his wife’s handgun again on August 4, 1997 are sufficient evidence to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of both counts of possession of a firearm by a convicted felon as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Defendant’s challenge to Officer Hilton’s credibility was a matter for submission to the jury — not for this appellate court. Thrasher v. State, 225 Ga. App. 717 (1) (484 SE2d 755).

2. Defendant contends he was entitled to a mistrial because Officer Hilton improperly injected defendant’s spouse’s on-the-scene statement regarding defendant’s possession of a handgun on July 18, 1997, in violation of the trial court’s pre-trial directive for the State not to mention this testimony. Although we agree that the State improperly violated the trial court’s directive not to mention defendant’s wife’s out-of-court statement — which is inadmissible under Momon v. State, 249 Ga. 865 (294 SE2d 482), the trial court’s instruction for the jury to disregard this testimony, and taking into consideration Officer Hilton’s positive testimony that he stopped chasing defendant when he observed defendant, at arm’s length, reach for a handgun that was tucked in defendant’s belt, renders it highly unlikely that Officer Hilton’s improper testimony regarding defendant’s wife’s out-of-court statement contributed to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided August 30, 1999.

Sanders, Haugen & Sears, Walter S. Haugen, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A1198.
    LENNEN v. DEPARTMENT OF TRANSPORTATION.
    (521 SE2d 885)
   McMurray, Presiding Judge.

Plaintiff Ellen Lennen brought this tort action against the Georgia Department of Transportation (“DOT”) seeking to recover for personal injuries sustained in an October 1996 mishap, when plaintiff’s vehicle, traveling north on State Route 20 in Rockdale County, was struck by another vehicle traveling south on State Route 20 that was attempting to turn left (eastbound) onto Hi Roc Road. According to the complaint, DOT negligently designed the intersection without a “stop and go traffic signal or other traffic control devices,” allegedly in violation of generally accepted engineering and design standards in effect at the time the intersection was designed. DOT also negligently designed and maintained this intersection “at a vertical crest which caused inadequate sight distance.” Because of its alleged knowledge of other prior accidents at this same intersection, DOT was further negligent in failing to “reconsider its design and [thereafter] install traffic control devices.” Filed contemporaneously with the complaint was the affidavit of Herman A. Hill, P.E., a professional engineer licensed in Georgia, who deposed that, in his opinion, the “geometric layout . . . produced deficient sight distance” resulting in a hazardous blind spot that momentarily and partially hid a northbound vehicle. Also, there was “severe sight distance restriction of southbound vehicles for crossing or turning vehicles from ... Hi Roc Road,” causing southbound drivers turning left “grave concern for rear end crash.” In Engineer Hill’s opinion, DOT was negligent in failing to provide adequate warning and control devices to regulate the flow of traffic at this intersection “as required by [American Association of State Highway & Transportation Officials] and [Manual on Uniform Traffic Control Devices] standards to moderate the deficient sight distance.” Engineer Hill also opined that DOT was negligent in “failing to adhere to AASHTO standards for geometric design” at the time the passing lane project was prepared and constructed. Further, based upon a history of 44 accidents and 34 injuries since 1990, DOT was negligent “in failing to respond to this obvious and known defective intersection.”

DOT denied the material allegations of negligence and moved to dismiss the complaint on the ground that Engineer Hill’s affidavit failed to satisfy the combined requirements of OCGA §§ 9-11-9.1 and 50-21-24 (10). The trial court granted DOT’s motion to dismiss, concluding the affidavit was insufficient because it gave no time reference to the applicable engineering standards and also on the basis of sovereign immunity. This appeal followed. In 11 related enumerations of error, plaintiff complains of the dismissal of her complaint. Held:

1. OCGA § 9-11-9.1 (a) directs that, in any action alleging professional negligence, the plaintiff shall file an affidavit from a competent expert setting forth “specifically at least one negligent act or omission claimed to exist and the factual basis for such claim.” “The process of building and designing roads requires engineering services which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1. [Cits.]” Dept. of Transp. v. Gilmore, 209 Ga. App. 656, 657 (2) (434 SE2d 114). See OCGA § 9-11-9.1 (f) (19). Where and whether to install traffic lights or stop signs are design decisions, whereas whether to open a road without traffic lights is an operational decision. Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849). Despite the enactment of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., the State shall have no liability for losses resulting from the “plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” (Emphasis supplied.) OCGA § 50-21-24 (10). Consequently, an expert’s OCGA § 9-11-9.1 affidavit opining that DOT was professionally negligent in planning, designing, operating, or maintaining highways, roads, streets, bridges or other public works must set forth specifically at least one negligent act or omission for which the State, through the DOT, can be responsible. Specifically, that affidavit must allege such plan, design, operation or maintenance was not in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design, as required by OCGA § 50-21-24 (10). Compare Drawdy v. Dept. of Transp., 228 Ga. App. 338, 339 (491 SE2d 521) (allegations of ordinary negligence in the repair and maintenance of roadway do not require OCGA § 9-11-9.1 affidavit). Nevertheless, because OCGA § 9-11-9.1 merely imposes a pleading requirement, such a statement may be a conclusion of the affiant. Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233).

Decided August 30, 1999.

James A. Shea, Jr., for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for appellee.

2. When the expert’s affidavit is filed contemporaneously with the complaint, a plaintiff is allowed to supplement the affidavit if its sufficiency is challenged. Porquez v. Washington, 268 Ga. 649, 650-651 (1) (492 SE2d 665). In the case sub judice, plaintiff’s expert supplemented his affidavit to depose that if, in 1988, the SR 20 northbound passing lane project was completed in compliance with the project design plans, then “those plans were not in compliance with AASHTO Geometric Design Policies for the period of 1965 to the present.” This is certainly adequate to aver that DOT failed to comply substantially with the engineering standards applicable at the time this intersection was in fact planned and designed. See Dept. of Transp. v. Brown, 267 Ga. at 7-8 (2), supra, where the “expert testimony that some of DOT’s actions and failures to act with regard to the intersection involved in [that] case violated generally accepted engineering standards,” was sufficient to support a verdict against DOT, which defended on the basis of the OCGA § 50-21-24 (10) design standard exception. Consequently, the trial court in this case erred in dismissing plaintiff’s complaint on the ground that her expert’s affidavit was insufficient to meet the pleading requirements of OCGA § 9-11-9.1.

3. The question remains whether dismissal is correct for any reason. The underlying motion was not expressly treated as a motion for summary judgment, but even if it were, the existence of conflicting expert testimony as to whether DOT complied with the applicable engineering standards would preclude the total grant of summary judgment, based on the record before us. Dept. of Transp. v. Brown, 267 Ga. at 7-8 (2), supra, affirming the denial of a directed verdict.

Judgment reversed.

Ruffin, J., concurs. Andrews, P. J., concurs in the judgment only.


text:
    A99A1199.
    TANNER v. THE STATE.
    (521 SE2d 898)
   Miller, Judge.

Convicted of two counts of selling cocaine in violation of OCGA § 16-13-30, Bryant Tanner appeals on grounds of insufficiency of the evidence and improper admission of a similar transaction. We affirm.

Decided August 30, 1999.

William D. Patten, Jr., for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Gail M. Travillian, Assistant District Attorneys, for appellee.

1. Claiming that only one witness (Georgia Bureau of Investigation Agent Waters) testified regarding Tanner selling cocaine on the two dates in issue, Tanner argues that this evidence was insufficient to convict him. Tanner also contends that his alibi witnesses testified that he was not in Butts County on the two dates and therefore he could not have sold the cocaine to Agent Waters.

The appropriate standard for appellate review of a criminal case is whether, construing the evidence in favor of the State, any rational trier of fact could have found Tanner guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Agent Waters’ testimony that on two separate occasions he purchased cocaine from Tanner met this standard. Ivory v. State, 234 Ga. App. 858, 859 (1) (508 SE2d 421) (1998). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Moreover, Police Chief Riley placed Tanner in Butts County at the location in question, contrary to the testimony of Tanner’s witnesses. The jury resolves conflicts in trial testimony and assesses the credibility of the witnesses. Griffith v. State, 234 Ga. App. 326, 328 (1) (506 SE2d 676) (1998).

2. Tanner also argues that the trial court erred by admitting evidence of a prior similar transaction into evidence. Specifically, Tanner argues that the State failed to show the prior transaction was sufficiently similar to the crimes charged as required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

Agent McManus testified that during the night of March 4,1989, he purchased cocaine from Tanner in Butts County. The State also presented a certified copy of Tanner’s guilty plea and subsequent 1989 conviction for this sale of cocaine. Because all three incidents were hand-to-hand narcotic sales by Tanner, to undercover agents, at night, in Butts County, the evidence supported the trial court’s finding that the prior act was sufficiently similar.

Judgment affirmed.

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


text:
    A99A1214.
    JONES v. THE STATE.
    (521 SE2d 883)
   Miller, Judge.

Dale E. Jones was convicted of the aggravated stalking of his former wife. Following the denial of his motion for new trial, Jones appeals.

Jones and the victim married on March 1, 1997, and divorced on October 7, 1997. On three occasions during this brief marriage, Jones physically abused the victim. During the first incident in May, Jones knocked the victim to the floor, tried to choke her, and held a gun to her head saying that he was “going to blow [her] away.” The victim testified that she believed that he would have shot her but that he was unable to release the gun’s safety. On two subsequent occasions, Jones struck her while she was driving their car. Based on the physical abuse, the victim obtained a family violence temporary protective order on June 16,1997. This order required that Jones “stop [harassing], abusing, or interfering with [her] at [her] residence, workplace or any other place [she] may lawfully be.” The protective order became permanent for six months on July 8.

After being served with the temporary protective order, Jones telephoned the victim’s home at least 22 times, causing her to have her number changed. From late June until the time of arrest in early August, Jones repeatedly called the victim’s workplace and residence. Several co-workers from the nursing home where the victim worked as a registered nurse recounted telephone calls threatening physical violence made by Jones after the protective order became effective. Doug Anderson, the nursing home administrator, testified that his staff took Jones’ threats of physical violence seriously even to the point of almost refusing to report to work. Anderson testified that Jones disrupted business by calling as many as 50 times on a single day. On the advice of police, Anderson implemented certain precautions to foreclose possible violence. BellSouth traced incoming calls to the nursing home and documented numerous hang-up calls initiated by Jones. When the victim refused to accept calls from Jones at work, Jones increased the frequency of his calls and became more threatening and abusive. She testified, “it finally got to the point where I had to take at least one call a day from him or we couldn’t get any work done.” A co-worker attested that on one occasion, Jones called and specifically instructed that she tell the victim, “I’ll be over there in the morning, I’m going to scatter her brains all over the nursing home. [S]he knows I’ll do it, I was in Vietnam, she knows I’ll do it.” The accusation charged Jones with the commission of aggravated stalking between June 25 and August 12.

1. Jones contends that the trial court erred in admitting any of the similar transaction evidence.

On appeal, a trial court’s decision to admit similar transaction evidence will be upheld unless clearly erroneous. Rehberger v. State, 235 Ga. App. 827, 829 (2) (510 SE2d 594) (1998). Similar transactions need not be identical to the offense being tried but must show sufficient similarity or connection between the independent incidents and the offense at issue. Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998).

In this case, the court conducted the pretriál hearing required by Uniform Superior Court Rule 31.3 (B) to decide the admissibility of six allegedly similar incidents. The State sought to introduce the three incidents of physical abuse described briefly above and three incidents in mid-June where Jones disregarded the protective order. The court determined that these prior incidents in which Jones either had subjected the victim to physical abuse or had attempted to harass or intimidate her were admissible to show Jones’ “motive, scheme, course of conduct.” The court found sufficient similarity and a legitimate purpose for their admission. Inasmuch as Jones failed to show that the trial court clearly erred in making its findings, we find no grounds for reversal. Evans v. State, 235 Ga. App. 577, 581 (3) (510 SE2d 313) (1998); see Rodriguez v. State, 211 Ga. App. 256, 259 (4) (b) (439 SE2d 510) (1993).

2. Jones contends that the evidence was insufficient to sustain his conviction because it showed at most merely an attempt to commit aggravated stalking. We disagree. Compare State v. Rooks, 266 Ga. 528, 529 (2) (468 SE2d 354) (1996) (offense of attempted aggravated stalking committed where defendant unable to make actual contact with victim).

The accusation charged Jones with the commission of aggravated stalking between June 25 and August 12. One form of aggravated stalking under OCGA § 16-5-91 (a) occurs when a person makes non-consensual contact with another person “for the purpose of harassing or intimidating the other person,” notwithstanding a protective order precluding such contact. Durant v. State, 222 Ga. App. 872, 873 (1) (476 SE2d 641) (1996). Contact, in this context, means to get in touch with or to communicate with. Wright v. State, 232 Ga. App. 646, 647 (1) (502 SE2d 756) (1998). The terms harassing or intimidating mean “ ‘a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to . . . herself. . . and which serves no legitimate purpose.’ ” Durant, supra at 873-874 (1); see Fly v. State, 229 Ga. App. 374, 376 (1) (494 SE2d 95) (1997). Overt threats of bodily harm are not required.

Here, a protective order required Jones to refrain from all harassment of his spouse. Notwithstanding that order, Jones continued to telephone the victim at her work and home, communicating threatening messages patently designed to inflict fear of violent injury and which served no legitimate purpose whatsoever. Johnson v. State, 264 Ga. 590, 592 (1) (449 SE2d 94) (1994); see Robinson v. State, 216 Ga. App. 816 (1) (456 SE2d 68) (1995) (victim feared for her life after enduring threatening telephone calls and other misdeeds). This evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to sustain Jones’ conviction for the crime of aggravated stalking.

Decided August 30, 1999.

James I. Collins, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth A. Over-camp, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A99A1325.
    MITCHELL v. THE STATE.
    (521 SE2d 873)
   Andrews, Presiding Judge.

Randy ONeal Mitchell appeals from the judgment entered after a jury found him guilty of trafficking in cocaine. Mitchell argues the trial court erred in denying his motion to suppress the evidence seized at his house because the search warrant was issued without probable cause. We disagree and affirm.

1. When reviewing a trial court’s order on a motion to suppress, the appellate court should be guided by three principles with regard to the trial court’s determination on the facts. Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994). First, the trial judge sits as the trier of facts, and his findings are analogous to a jury verdict and should not be disturbed if there is any evidence to support the findings. Second, the trial court’s decisions on the credibility of witnesses and questions of fact must be accepted unless clearly erroneous. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgments. Id.

In this case, the officer who swore out the affidavit testified at the hearing that a reliable confidential informant told officers he had been at Mitchell’s house several times when crack cocaine was sold and as recently as five days before had seen a drug buy of $100 worth of crack cocaine. Based on this information, the officer got a search warrant for Mitchell’s house and found various quantities of crack cocaine hidden throughout the house and $7,000 in cash.

Mitchell moved to suppress this evidence, claiming there was no probable cause to issue the search warrant. The trial court denied the motion, and Mitchell now appeals.

Under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the totality of the circumstances, including the veracity and basis of knowledge of the informant, there is a fair probability that contraband or evidence of a crime will be found in a particular place. While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.

(Citation and punctuation omitted.) Smith v. State, 218 Ga. App. 12, 14 (460 SE2d 114) (1995).

In determining the reliability of the information and the informant, when the information supplied by the informant is not corroborated, the magistrate must look to see whether the informant himself was reliable. Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978); Smith, supra at 14.

The type of information which should be furnished to the magistrate to enable the magistrate to determine the informant’s reliability is: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished. Bowe v. State, 201 Ga. App. 127, 130-131 (410 SE2d 765) (1991). But, “[i]t is not necessary in every case for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis.” Id.

In this case, the affidavit stated that the confidential informant had (1) furnished information concerning drug traffickers which had been confirmed, (2) furnished information leading to the seizure of contraband on at least one occasion, and (3) stated he purchased crack cocaine from Mitchell within the last five days.

Therefore, applying the guidelines set out in Bowe, the affidavit contained the type of information previously supplied by the informant, the use to which that information was put, and the elapsed time since the information was furnished.

Mitchell argues the officer omitted information on the informant’s relationship with another officer, including any agreements made with that officer, and also the informant’s criminal history and drug problem. But, beyond this conclusory allegation in the brief, Mitchell does not point out, nor do we find, anything in the record to support this allegation. Rather, the affiant testified at the hearing that he did not know whether the informant was being investigated for any crime and knew nothing about any arrangement with another officer arising out of the informant’s criminal past.

Therefore, Robertson v. State, 236 Ga. App. 68 (510 SE2d 914) (1999), relied on by Mitchell, is not on point. In Robertson, the police officer who submitted the affidavit had arrested the informant for DUI, and while this charge was pending, the informant called the officer and offered to give him information about Robertson if the officer would “help” him with the DUI charge. Moreover, the informant was angry with Robertson for making sexual advances to the informant’s girlfriend. Id. at 69. When the officer swore out the affidavit, he did not give any of this information to the magistrate. Therefore, this Court concluded that the magistrate was deprived of the opportunity to independently determine the reliability of the informant. Id. at 70.

Here, there is no evidence the officer withheld any relevant information from the magistrate. Instead, this case is similar to Clark v. State, 235 Ga. App. 569 (510 SE2d 319) (1998) and Pitts v. State, 212 Ga. App. 556 (442 SE2d 797) (1994). In Clark, the investigator had known the informant for three years, the informant had provided reliable information to the affiant, had been in the saloon within the past seventy-two hours and had seen the owners and a bartender with methamphetamines and cocaine. Clark, supra at 571.

Likewise in Pitts, the affiant, using information supplied by another officer, stated that the informant had given information in the past which resulted in arrests and seizures of controlled substances and had purchased a quantity of marijuana at the residence in question within the last ten days. This Court found the affidavit sufficient to demonstrate the informant’s reliability. Pitts, supra at 557.

Comparing the affidavit in this case to the affidavits found sufficient in Clark and Pitts, we conclude the information in the affidavit was sufficient to show that the confidential informant was reliable. Therefore, the magistrate was authorized to find that the affidavit contained reliable information providing probable cause to suspect that drugs would be found in Mitchell’s house. Clark, supra at 571.

2. In light of our holding in Division 1, we need not address Mitchell’s remaining enumeration of error.

Decided August 30, 1999.

Billy I. Daughtry, Jr., for appellant.

Robert W. Lavender, District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Mitchell also claims the warrant was “stale” but did not argue this to the trial court and does not argue it now on appeal. Therefore, this claim is deemed abandoned.


text:
    A99A1384.
    OFCHUS v. ISOM.
    (521 SE2d 871)
   McMurray, Presiding Judge.

Appellant-defendant Sonya Deneen Ofchus, formerly Sonya D. Isom, and appellee-plaintiff Orlando Isom divorced in 1996. The superior court which granted the divorce approved the Isoms’ settlement agreement and incorporated it in the final judgment and decree. The settlement agreement gave the parties joint custody of their minor daughter “as contemplated by OCGA § 19-9-6 (2),” and gave primary physical custody of the child to her mother, Sonya Ofchus.

In 1998, following a bench trial, the superior court issued an order modifying custody by shifting primary physical custody of the child to Orlando Isom. We granted this discretionary appeal to review this order.

In the modification order, the superior court gave the following reason for giving primary physical custody of the parties’ daughter to Orlando Isom:

[Sonya Ofchus] moved to the State of Virginia in May 1998. [She] took the minor child of the parties ... to Virginia with her in June 1998. [Her] relocation was over 500 miles from [Orlando Isom’s] residence, the former marital residence. [Her] move to Virginia was solely for the advancement of her current husband’s career. Said move effectively terminated any reasonable expectation of visitation of [Orlando Isom]. The Court finds said move is a change in circumstances materially and detrimentally affecting the welfare of the minor child.

In a subsequent order, the superior court amended its order modifying custody by finding the following additional facts:

“(1) the child has lived in the Atlanta, Georgia area all of her life until June, 1998, and (2) the child’s half brother, maternal grandparents, paternal grandfather, aunts, uncles and cousins live in the Atlanta area, and no similar relatives live in Virginia.”

Held:

1. Sonya Ofchus contends that the superior court erred in changing the original custody decree to make Orlando Isom the primary physical custodian of the child, arguing the only change in circumstances was Sonya Ofchus’s relocation from Georgia to Virginia and this does not amount to any finding of fact that Sonya Ofchus was unfit to continue as the primary custodial parent. We agree and reverse.

Georgia law does not permit a modification of custody based solely on a custodial parent’s relocation to another state. Moore v. Wiggins, 230 Ga. 51, 53 (1), 55 (195 SE2d 404); Grubbs v. Dowse, 226 Ga. 763 (177 SE2d 237); Hirsh v. Dobb, 224 Ga. 130, 134 (3) (b) (160 SE2d 386); Mercer v. Foster, 210 Ga. 546, 548 (3) (81 SE2d 458); In the Interest of R. R., 222 Ga. App. 301, 305 (3) (474 SE2d 12); Ormandy v. Odom, 217 Ga. App. 780 (459 SE2d 439).

“In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. (Cit.) Ordinarily, the trial court should favor the parent having such a right. (Cit.) What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting [its] welfare. (Cit.) It is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory. (Cits.) Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion. [Cit.]” (Punctuation omitted.) Ormandy v. Odom, [supra at] 781 (1).

Tenney v. Tenney, 235 Ga. App. 128, 129 (1) (508 SE2d 487).

In the case sub judice, the superior court was required to give deference to Sonya Ofchus’s prima facie right to be the primary custodial parent under the terms of the original custody decree. There is no evidence in the record that Sonya Ofchus is unable or unsuited to retain custody of the parties’ child. Neither is there evidence of changed conditions for the worse in the child’s present home environment with Sonya Ofchus. No evidence shows that making Orlando Isom the primary physical custodian would promote the child’s welfare. The superior court abused its broad discretion in the instant case.

Decided August 30, 1999.

Turner, Turner & Turner, Nelson G. Turner, for appellant.

Darrel L. Hopson, for appellee.

While the evidence does not support a change in custody from the mother to the father, relocation of the child may warrant modification of the father’s visitation rights. Ormandy v. Odom, supra at 782. On remand, the superior court is directed to hear testimony concerning this issue and to enter an order modifying visitation, as appropriate.

2. In light of the foregoing, we do not reach Sonya Ofchus’s remaining enumerations of error.

Judgment reversed and case remanded with direction.

Ruffin, J., concurs. Andrews, P. J., concurs in the judgment only.


author:
McMurray, Presiding Judge.
      Ruffin, Judge,

text:
    A99A1462.
    COBB COUNTY BOARD OF TAX ASSESSORS v. MARIETTA EDUCATIONAL GARDEN CENTER, INC.
    (521 SE2d 892)
   McMurray, Presiding Judge.

The Cobb County Board of Tax Assessors and the Board of Equalization (the “Board”) denied applications for ad valorem tax exemption as a purely public charity under OCGA § 48-5-41 (a) (4) filed by the Marietta Educational Garden Center, Inc. (the “Garden Center”). The Garden Center appealed to the superior court for a de novo determination pursuant to OCGA § 48-5-311 (g) (3). On cross-motions for summary judgment, the following undisputed facts were adduced:

The Garden Center is the owner of certain real property located at 505 Kennesaw Avenue N.W., Marietta, Georgia. After receiving the property as a gift in 1967, the Garden Center restored it, and the property thereafter was placed on the National Register of Historic Places. For the first time in nearly 30 years, the Garden Center applied for exemption from ad valorem property taxes in 1996 upon notice of reassessment issued by the Cobb Board of Tax Assessors doubling its taxes.

The Garden Center’s Articles of Incorporation and Bylaws provide that its objective is to “receive gifts and grants of money and property of every kind and to administer the same for charitable, educational, civic, and philanthropic uses and to do anything necessary and proper for the accomplishment of these purposes.” Programs and projects promoted by the Marietta Garden Center include:

Continuing education [;] Close association with other members to foster ideas and ideals [;] Growing and exhibiting flowers, fruits, and vegetables [;] Environmental studies [;] Beautification of parks, schools, etc.[;] Assisting other civic clubs in their projects [;] Paper drives for revenue and conservation of trees!;] Tour of homes, showing tasteful decorations [;] Planning lovely lawns and gardens [;] Flower Show Schools, Landscape Design Schools and Gardening Study Courses[;] A library of all phases of garden club activities!; and] Establishing woodland trails for the blind.

The Marietta Council of Garden Clubs, Inc. (the “Council”) operates and maintains the Garden Center “for the benefit of the member clubs and the community.” The Council’s bylaws also pertinently provide:

The objects of the Council shall be to coordinate the interests of the Garden Clubs of Marietta and Cobb County; to bring them into close relations for mutual helpfulness by association, conference and correspondence; to promote the love of gardening; to promote the study of horticulture; to protect our native trees, wild flowers and birds; and to encourage civic beautification, conservation and pollution control.

The Council assesses its 34 affiliated garden clubs annual dues of $5 per year per club member. Additionally, except in the month of January, the Council rents the Garden Center for weddings, social events, and other activities. Income derived from rental fees is used directly to offset expenses incurred in operating and maintaining the Garden Center. The Center was rented 51 times in 1995; 56 times in 1996; and 51 times in 1997. For 1995, the Garden Center’s rental income was $59,450 or 87.5 percent of its 1995 budget. In 1996, rental income was $48,331 or 87.8 percent of that year’s budget. In 1997, rental income as a percentage of the annual budget, was 72.4 percent or $60,700.

No private shareholder, person, or entity benefits from any of the fees collected by the Garden Center. When the Garden Center is not rented, it is used as a monthly meeting place for member garden clubs and club activities, rent free. While the public may not use the Garden Center on a no-fee basis, the visiting public is allowed to tour its buildings and grounds without charge.

The superior court granted the Marietta Garden Center’s cross-motion for summary judgment and denied the Board’s motion for summary judgment, concluding that: (a) the Board violated the equal protection doctrine of the Georgia and United States Constitutions taxing the property of the Garden Center while exempting like property of another owner; and (b) the Garden Center qualified as an institution of purely public charity whose property was entitled to exemption from taxation under OCGA § 48-5-41 (a) (4). Held:

In two related enumerations of error, the Board complains of the grant of the Garden Center’s cross-motion for summary judgment and the denial of its own motion, arguing the Garden Center failed to preserve its equal protection claim on appeal and failed to establish its status as a purely public charity entitled to exemption from ad valorem property taxation.

1. The record reflects the Garden Center first raised its equal protection claim in support of its motion for summary judgment in the superior court, arguing the Board’s grant of tax exemptions to the Young Men’s Christian Association and the Young Women’s Christian Association as institutions of purely public charity as to their Cobb County properties entitled the Garden Center to similar tax treatment.

Where the taxpayer appeals an assessment of the Board of Tax Assessors to the Board of Equalization, and from the decision of the latter to the superior court for a de novo hearing [OCGA § 48-5-311 (g)], he is not permitted to raise in the superior court appeal issues which were not raised in the original appeal to the Board of Equalization. Camp v. Boggs, 240 Ga. 127 (1) (239 SE2d 530) (1977).

Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473 (2) (246 SE2d 479).

The Garden Center’s notice of appeal to the Board failed to raise the matter of the denial of equal protection as entitling it to exemption from taxation as a purely public charity under OCGA § 48-5-41 (a). Consequently, the Garden Center failed to preserve its equal protection claim on appeal, whether to the Board or thereafter to the superior court. Since the Garden Center’s equal protection claim was not before the superior court for de novo review of the parties’ contentions before the Board of Equalization, the trial court lacked authority to rule the Garden Center had been denied equal protection as a basis for granting its cross-motion for summary judgment. Camp v. Boggs, 240 Ga. 127 (1), 128, supra.

2. The Board contends the Garden Center is not a purely public charity entitled to exemption from ad valorem taxation, arguing the Garden Center fails to meet the controlling three-prong test established by York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558 (2) (408 SE2d 699).

“In determining whether property qualifies as an institution of ‘purely public charity5 as set forth in OCGA § 48-5-41 (a) (4), three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits.” York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558 (2)[, supra].

Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48, 51 (1) (510 SE2d 844).

The Garden Center urges its entitlement to ad valorem tax exemption in that: (a) its articles of incorporation and bylaws are directed at charitable purposes; (b) its programs and activities in the Marietta-Cobb County community are charitable in nature; (c) its restored property, an historical landmark, is open to the touring public in addition to its dues-paying membership and those renting the property for use as a reception facility; and (d) its rental income is used exclusively to offset operations and maintenance expenses.

“ ‘A familiar meaning of the word “charity” is almsgiv-ing, but as used in the law it may include “substantially any scheme or effort to better the condition of society or any considerable part of it.” (Cit.) “ ‘Charity,’ as used in tax exemption statutes, is not restricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mankind.” 61 CJ 455, § 505,’ Sharpe v. Central Ga. Council, B.S.A., 185 Ga. 813 (196 SE 762, 116 ALR 373).” Peachtree on Peachtree Inn v. Camp, 120 Ga. App. 403, 409 (170 SE2d 709). But of the infinite charities that deserve the plaudits of mankind, our law “restricts tax exemption of institutions of charity to those and those only that are ‘purely5 charitable and also that are ‘public’ charity.” United Hosp. Svc. Assn. v. Fulton County, 216 Ga. 30, 32 (114 SE2d 524).

Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. at 52, supra.

The test of whether property is exempt from taxation ... as an institution of “purely public charity” is not whether the owner is an organization of purely public charity, but whether the property is dedicated to charity and used exclusively as an institution of “purely public charity.” Tharpe v. Central Ga. Council of Boy Scouts of America, 185 Ga. 810 (196 SE 762, 116 ALR 373). That the organization is nonprofit, is not used for commercial purposes, and its charter declares it to be a charitable and benevolent institution, do not make it a charitable institution. Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124 (14 SE2d 744). Nor does the fact that it may serve a benevolent purpose make it such. Taylor v. Trustees of Jesse Parker Williams Hospital, 190 Ga. 349 (9 SE2d 165). See United [Hosp. Svc.] Assn. v. Fulton County, 216 Ga. 30[, supra].

Historic House Museum Corp. v. Camp, 223 Ga. 510, 511 (156 SE2d 361).

Certainly no one would dispute that the Garden Center’s contribution to aesthetics and appreciation for the environment in Marietta and Cobb County benefits all who visit the Garden Center. Nevertheless, in our view, such benefit to the public must inevitably be regarded as subordinate to those benefits the Garden Center provides the memberships of 34 member clubs through the free use of its facilities and those renting them. Historic House Museum Corp. v. Camp, 223 Ga. 510, supra.

The Garden Center’s reliance on Chatham County Bd. of Tax Assessors v. Southside Communities Fire Protection, 217 Ga. App. 361, 365 (457 SE2d 267), and Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489, 492 (53 SE2d 751), for the proposition that rental income does not foreclose entitlement to exemption from ad valorem taxes as a purely public charity is misplaced. The Garden Center correctly notes that the evidence in these cases showed exemption from ad valorem taxation despite the use of property for the production of money used thereafter only to offset expenses. Unlike the circumstances in the case sub judice, the services provided by those charities were provided to “all” requiring assistance, rather than as incident to status as a dues-paying member or private person having purchased a service for a fee. Inasmuch as the undisputed evidence of record shows the contrary in the case sub judice, we conclude the Garden Center is not dispensing purely public charity. In the context of the three-prong test established by York Rite, supra, the evidence shows that the payment of member club dues and rent to the Garden Center results in the provision of substantial services and benefits not available to the general public, that is, the free use of the Garden Center to dues-paying member clubs and their memberships in support of a wide variety of club activities and programs and the use of the facility to non-members paying a rental fee. To the extent this is true, the Garden Center may neither be deemed entirely engaged in charitable pursuits nor its charitable pursuits deemed purely public. For the same reasons, it follows that the Garden Center’s property is not used exclusively for charitable objectives. Since the Garden Center failed to meet the three-prong test of York Rite, supra, the superior court erred in determining the Garden Center was purely a charitable institution entitled to exemption from ad valorem taxes. Under the undisputed facts, the superior court further erred in denying the Board’s motion for summary judgment.

Judgment reversed.

Andrews, P. J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

I concur fully with Division 2 of the majority opinion, holding that the Garden Center does not qualify as a “purely public charity” so as to be entitled to an exemption from ad valorem taxation. I also agree that the trial court erred in relying on the Garden Center’s equal protection argument as a basis for its ruling, but write separately to express my reasoning on this issue.

In Camp v. Boggs, 240 Ga. 127, 128 (1) (239 SE2d 530) (1977), the Supreme Court noted that Code Ann. § 92-6912 (5) (A) (now OCGA § 48-5-311 (e) (1)) allowed a taxpayer, in an appeal to a county board of equalization, to raise “ ‘matters of taxability, uniformity of assessment, and value.’ ” The Court further noted that (1) the statute required the notice of appeal to “ ‘specifically state the grounds for appeal,’ ” (2) the board of equalization was required to specifically decide in writing all questions presented to it, and (3) the statute allowed the taxpayer to appeal decisions of the board of equalization to the superior court. Id. The Supreme Court construed the statute to mean that a taxpayer may not, in an appeal to the superior court, assert a different basis for appeal from that raised before the board of equalization. Thus, for example, where the sole, issue presented to the board of equalization is the taxability of the subject property, the taxpayer may not raise the separate issue of uniformity of assessments in a de novo appeal to the superior court.

Since the Supreme Court’s decision in Camp, the statute has been amended to delete the requirement that a notice of appeal to the board of equalization “ ‘specifically state the grounds for appeal.’ ” See Ga. L. 1990, pp. 1361-1362, § 1. The statute now provides that

[a] written objection to an assessment of real property received by a county board of tax assessors stating the location of the real property and the identification number, if any, contained in the tax notice shall be deemed a notice of appeal by the taxpayer under the grounds listed in paragraph (1) of this subsection [i.e., taxability, uniformity of assessment, and value].

(Emphasis supplied.) OCGA § 48-5-311 (e) (2) (A). Under the current statute, therefore, where a taxpayer files a proper notice of appeal without specifying the grounds for the appeal, the notice of appeal is deemed to raise each of the three statutory grounds.

In this case, however, the notice of appeal filed by the Garden Center clearly indicated that the only ground for appeal was the tax-ability of the subject property. The Garden Center admits in its appellate brief that its appeal to the board of equalization was based on the issue of taxability. Moreover, its notice of appeal to the superior court also indicated that the only issue raised was taxability. Accordingly, it is clear that the only issue presented to the board of equalization for decision was the taxability of the subject property.

The Garden Center concedes that, under Camp, a taxpayer may not appeal to the board of equalization based on one of the three statutory grounds and then raise a different ground on appeal to the superior court. However, it asserts that its equal protection argument in fact relates to the issue of taxability that was presented to the board of equalization. This assertion is without merit.

Reduced to its essence, the Garden Center’s equal protection argument is as follows: (1) regardless of whether the Garden Center meets the criteria for a “purely public charity’ as set forth in York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558 (2) (408 SE2d 699) (1991), two other entities in allegedly similar circumstances were previously approved for tax-exempt status by the Cobb County Board of Tax Assessors; (2) by not giving the Garden Center tax-exempt status, the board of tax assessors unlawfully treated the Garden Center differently from similarly situated taxpayers. The success or failure of the Garden Center’s equal protection argument thus turns not on whether the Garden Center in fact meets the criteria for a “purely public charity,” but on whether it is unlawful to treat the Garden Center differently from other similarly situated taxpayers. It is thus clear that the Garden Center’s equal protection argument is in fact a challenge to the uniformity of the Board’s assessments rather than to the taxability of the Garden Center’s property. The fact that the equal protection argument is couched in constitutional terms does not change the analysis, as county boards of equalization are authorized to consider constitutional challenges to tax assessments. See Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 210 (1) (367 SE2d 43) (1988). As the Supreme Court noted in Delta Air Lines v. Coleman, 219 Ga. 12, 19 (4) (131 SE2d 768) (1963),

[t]he discrimination in taxation which the equal protection clauses forbid is the failure of the taxing authorities to tax all like property which is subject to taxation equally or to tax the property of one owner and exempt like property belonging to another owner.

That the Garden Center’s equal protection argument does not in fact go to the taxability of its property is made more clear when we consider that

Decided August 30, 1999

Haynie & Litchfield, Douglas R. Haynie, Emilie K. Petrovich, for appellant.

Moore, Ingram, Johnson & Steele, John H. Moore, J. Kevin Moore, for appellee.

county boards of equalization have ample authority to remedy deficiencies in the uniformity of assessments required . by the Constitution, including the authority to order the entire digest recompiled if such action is necessary to obtain uniformity.

Butts County v. Briscoe, 236 Ga. 233, 235 (1) (223 SE2d 199) (1976). See also OCGA § 48-5-311 (d) (2). Thus, even if the Garden Center could show that it was treated differently from a similarly situated taxpayer, this would not automatically lead to the conclusion that its property was not taxable. As the majority correctly notes in Division 2, the Garden Center does not meet the criteria for a purely public charity as laid down by the Supreme Court in York Rite Bodies, supra. Had the Garden Center raised the issue of uniformity before the board of equalization, and established that it was treated differently from other similarly situated taxpayers, the Board could have remedied the situation by reexamining the taxability of the other taxpayers’ property, rather than by giving the Garden Center an unauthorized tax exemption.

Because the Garden Center’s equal protection argument is in fact a challenge to the uniformity of the Board’s assessments rather than a challenge to the taxability of the subject property, and because the issue of uniformity was not presented to the board of equalization for decision, I agree with the majority that the trial court erred in considering such issue in ruling on the parties’ motions for summary judgment.

       The Garden Center’s appeal to the Board pertinently provided:
      Please allow this correspondence to serve as formal notice of our client’s appeal of the decision rendered by the Board of Tax Assessors denying the Center’s application for exemption. Our client believes that its property is most eligible to receive tax exempt status in that it is not operated for profit and provides educational, civic, and charitable services to not only the City of Marietta and Cobb County, but to the entire state. In addition, the Center does not have paid employees and is operated through the volunteer efforts of members of the community who realize the great needs which the operation of the Center fulfills.

       In reaching this conclusion in Elder v. Henrietta Egleston Hosp., 205 Ga. at 491, supra, the Supreme Court noted that a contrary result would have been required had the case been decided before the adoption of the Constitution of 1945 under such cases as Trustees of the Academy of Richmond County v. Bohler, 80 Ga. 159 (7 SE 633) which held the property of purely public charitable institutions was taxable “when used for private or corporate profit or income.” Elder, supra.
      Art. VII, Sec. I, Par. IV of the State Constitution of 1945 pertinently provided:
      “[A]ll institutions of purely public charity;... provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institution.”

        Elder v. Henrietta Egleston Hosp., 205 Ga. at 492, supra.
      The use of property to produce income as not defeating entitlement to exemption from ad valorem property taxation is reflected today by the third prong of York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558 (2), supra. (“[T]he use of the property must be exclusively devoted to those charitable pursuits.”).

       Contrary to the Garden Center’s contention, I believe this issue, which was addressed in the Board’s brief, comes within the scope of the Board’s first enumeration of error, which contends that it was entitled to summary judgment because the Garden Center was not a purely public charity.