text:
    A98A0471.
    DUNLAP v. THE STATE.
    (497 SE2d 640)
   Blackburn, Judge.

Tommy Lee Dunlap appeals the trial court’s denial of his motion to vacate void sentence. On March 27, 1992, Dunlap pled guilty to theft by taking and was sentenced to ten years imprisonment which was suspended upon the payment of a fine and the condition of banishment from Emanuel County. On April 3, 1992, after a hearing, the trial court ordered that Dunlap be confined for ten years after he violated the banishment condition by being present in Emanuel County. On May 15, 1997, Dunlap filed his motion to vacate void sentence which was denied by the trial court, after a hearing, on August 11, 1997. Dunlap contends OCGA § 42-8-34.1 (b) limits to two years the amount of a suspended sentence a court may revoke for a violation of the original sentence.

OCGA § 42-8-34.1 (b) provides: “At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.” Subsection (c) of such Code section pertinently provides, however, that the court may revoke the balance of probation “[i]f the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant’s admission is . . . the violation of a special condition imposed pursuant to this Code section.” Therefore, the issue in the present case is whether Dunlap’s banishment from Emanuel County was a special condition imposed pursuant to OCGA § 42-8-34.1, a violation of which would allow the revocation of his entire suspended sentence, rather than such revocation being limited to two years.

The State argues that banishment is a special condition because banishment is not a usual condition of a suspended sentence and it is rarely recommended. Although the State’s argument may be true as far as it goes, “[t]he statute limits qualifying special conditions to ones ‘imposed pursuant to this Code section.’ OCGA § 42-8-34.1 (c).” (Emphasis supplied.) Lawrence v. State, 228 Ga. App. 745, 747 (492 SE2d 727) (1997). In the present case, banishment from Emanuel County was not imposed pursuant to OCGA § 42-8-34.1, but was imposed at the time of the original sentence. Therefore, the trial court erred in revoking more than two years of Dunlap’s suspended sentence. See OCGA § 42-8-34.1 (b). Cf. Bryson v. State, 228 Ga. App. 84 (491 SE2d 184) (1997).

The State’s reliance on Gearinger v. Lee, 266 Ga. 167 (465 SE2d 440) (1996) and Manville v. Hampton, 266 Ga. 857 (471 SE2d 872) (1996) is misplaced. Neither Gearinger nor Manville addresses the issue presented in the present case.

In Gearinger, the defendant “was sentenced to five years probation on [a] theft charge and ten years probation on [a] possession charge. [The defendant’s] probation was thereafter modified and he was remanded to a detention center by an order that set forth as a ‘Special Condition of his probation,’ inter alia, that [he] obey ‘any and all rules, regulations, and policies’ of the center and specified that ‘any non-compliance with the Conditions of Probation Order and/or rules of the (detention center) will be considered sufficient cause to warrant disciplinary action and/or revocation.’ Within two months of the court’s order, one of [the defendant’s] detention center counselors filed a petition for revocation of probation against him, alleging [that the defendant] violated four disciplinary infraction code provisions.” Gearinger, supra at 168. The Supreme Court determined that the defendant’s violation of the special condition of his probation authorized the revocation of the balance of his probation. Id. at 170. The special condition in Gearinger, unlike the special condition in the present case, was imposed pursuant to the revocation of the defendant’s probation. OCGA § 42-8-34.1 (b). Thereafter, the violation of such special condition authorized the revocation of the entire balance of the defendant’s probation. OCGA § 42-8-34.1 (c).

In Manville, supra, the defendant “was convicted of two counts of selling cocaine, and parts of the sentences imposed were probated. As a special condition of such probation, [the defendant] was ordered to pay both a court-imposed fine in equal periodic increments, and a monthly probation supervision fee.” Id. at 857. See OCGA § 42-8-34.1 (d). The defendant’s probation was later revoked “due to both the violation of a special condition and the commission of a felony.” (Emphasis in original.) Id. at 859. The Supreme Court determined that the defendant’s entire probated sentence — approximately twenty-three years — could be revoked due to the violation of the special condition of probation, despite the fact that the commission of the felony authorized a revocation of only ten years of the probated sentence. Id. See OCGA § 42-8-34.1 (c). Therein, the court addressed the issue of amount of revocation authorized upon the violation of a special condition and the commission of a felony, not what constitutes a special condition pursuant to OCGA § 42-8-34.1.

Decided March 10, 1998.

Thomas O. Harper III, William G. Snider, Craig L. Cascio, for appellant.

Richard A. Malone, District Attorney, for appellee.

Because Dunlap violated a provision of his suspended sentence, OCGA § 42-8-34.1 (b) authorized the trial court to impose certain alternatives to incarceration or to revoke the lesser of the balance of the suspended sentence or two years of the suspended sentence. As banishment from Emanuel County was not a special condition of the sentence suspension imposed pursuant to OCGA § 42-8-34.1, the trial court was not authorized to revoke Dunlap’s entire ten-year suspended sentence. See OCGA § 42-8-34.1 (c). Therefore, the trial court erred in denying Dunlap’s motion to vacate void sentence.

Judgment reversed.

McMurray, P. J., and Eldridge, J, concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A98A0483.
    RABERN v. STATE OF GEORGIA.
    (497 SE2d 631)
   Blackburn, Judge.

After discovering 450 small marijuana plants and various gardening instruments on John Wesley Rabern’s property, the State instituted an in rem forfeiture proceeding under OCGA § 16-13-49, seeking forfeiture of Rabern’s residence and 5.2 acres of land upon which it stood. After a bench trial, the trial court ordered the property forfeited. In Rabern v. State of Ga., 221 Ga. App. 874 (473 SE2d 547) (1996), we vacated the trial court’s decision due to its failure to apply the three-factor analysis, adopted by the Supreme Court in Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), for determining whether a forfeiture violates the Eighth Amendment’s prohibition against excessive fines. On remand, the trial court did not conduct a new hearing, but merely entered a new order holding that the forfeiture was not excessive. Rabern appeals this order. For the reasons discussed below, we vacate the order and again remand this case to the trial court.

1. Rabern contends that the trial court violated our direction on remand by failing to hold a hearing. We agree. In our earlier decision, we expressly stated that “we must remand this case for further proceedings in the trial court. The trial court is directed to hold a post-trial hearing for the determination of the Eighth Amendment issue presented here. The trial court is authorized to conduct such additional factfinding as deemed necessary in the interests of the discovery of the truth (OCGA § 24-1-2) and to protect its judgment (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983).” (Emphasis supplied.) Rabern, supra at 878 (4).

Decided March 10, 1998.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Our direction to hold a hearing on the Eighth Amendment issue was mandatory, and the trial court had no discretion to refuse to comply with such direction. See OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be”). This Court is also bound by the decision in the prior appeal. See Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 630-631 (2) (493 SE2d 196) (1997). Therefore, we vacate the trial court’s order for failure to follow our clear instructions. On remand, the trial court shall hold a hearing to consider the Eighth Amendment issue, and at such hearing the parties shall be entitled to present additional evidence relevant to such issue.

2. Rabern’s remaining enumerations were decided adversely to him in the prior appeal, and there is no basis to address these issues here. See Rabern, supra at 874-875 (1), (2); Brown, supra.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Eldridge, J., concur.


author: POPE, Presiding Judge.

text:
    A97A2177.
    MIKELL v. THE STATE.
    (498 SE2d 531)
   POPE, Presiding Judge.

A jury convicted defendant Samuel Mikell, Jr. of selling a controlled substance (OCGA § 16-13-30 (b)), distributing a controlled substance within 1,000 feet of a public housing project (OCGA § 16-13-32.5 (b)), and obstructing a police officer by resisting arrest (OCGA § 16-10-24). Treating defendant as a recidivist, the trial court imposed a life sentence for the sale of the controlled substance; 40 years for distribution within 1,000 feet of a public housing project, to be served consecutively with the life sentence; and 12 months for obstruction, to be served concurrently with the life sentence. Following the denial of his motion for a new trial, defendant appeals his conviction and sentence for the above crimes. We affirm.

1. Construed most favorably to the verdict, the evidence adduced at trial shows that on January 4, 1996, narcotics agents were conducting a “drug-buy” operation in Savannah, Georgia. During the operation, they met Luther Houston and discussed purchasing cocaine with him. After telling the agents that he could assist them, Houston took the agents to an apartment located at 102 Garden Homes. An employee of the Housing Authority of Savannah testified that Garden Homes was a publicly owned housing project and that the apartment in question was within the project. The employee further testified that at least 20 percent of the families that lived in Garden Homes were “low income” families.

At the apartment, two agents watched Houston purchase a small bag of cocaine directly from defendant with a $20 bill the agents had given to Houston. Unbeknownst to Houston, the bill previously had been photocopied. After delivering the cocaine to the agents, Houston was arrested. The agents then approached and confronted defendant, whom they both identified at trial. Defendant backed away from the agents, forcing them to wrestle him to the ground. He also exclaimed: “I don’t have anything.” Once on the ground, defendant continued to struggle against the agents until back-up arrived. Subsequently, the $20 bill was recovered from defendant.

Contrary to defendant’s assertion, any rational juror could have concluded from the above evidence that defendant was guilty of the crimes for which he was convicted in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, there is no merit to defendant’s seventh and ninth enumerations of error, which are both premised on general grounds.

2. In his fifth and sixth enumerations, defendant contends that his conviction on each of the offenses at issue must be reversed because there was a fatal variance between the date alleged in the indictment regarding those offenses, January 4, 1995, and the evidence presented at trial, which showed that the offenses actually occurred on January 4, 1996. We disagree.

The general rule is that when the exact date of a crime is not a material allegation of the indictment, the crime may be proved to have taken place on any date prior to the return of the indictment, so long as the date is within the applicable statute of limitation. Knight v. State, 210 Ga. App. 63, 65 (2) (435 SE2d 276) (1993); Martin v. State, 196 Ga. App. 145, 146 (1) (395 SE2d 391) (1990). In this case, the exact date of the crimes at issue was not a material part of the indictment because an exact date was not an essential element of any of the charged offenses, and because defendant offered no defense, such as alibi, that might make the date of the offenses material. See Caldwell v. State, 139 Ga. App. 279, 281 (2) (228 SE2d 219) (1976). The date proved at trial also was prior to the return of the indictment and was within the applicable statute of limitation. See OCGA § 17-3-1. Thus, no fatal variance exists. Moreover, we note that in cases where a time variance exists, to preserve the issue for appeal, it is incumbent upon the defendant to move for a continuance or postponement upon learning of the variance if the defendant claims surprise by the variance. Knight, 210 Ga. App. at 65 (2); Caldwell, 139 Ga. App. at 290 (2). Defendant had ample opportunity to do so in this case after discovering the variance, but chose not to follow the above course of action. There also is no indication below that he was surprised by the incorrect date in the indictment.

In light of the above, and the fact that the indictment clearly informed defendant as to the nature of the charges against him and did not leave him open to subsequent prosecution for the same crimes, we conclude that defendant’s fifth and sixth enumerations are meritless. See Denson v. State, 212 Ga. App. 883, 884 (2) (443 SE2d 300) (1994).

3. We reject the contention in defendant’s eighth enumeration that the trial court erred in sentencing him as a recidivist pursuant to OCGA § 17-10-7 (a) because he was not specifically indicted as a recidivist. It is undisputed that defendant had previously been convicted of possession with intent to distribute a controlled substance (OCGA § 16-3-30 (b)) and possession with intent to distribute cocaine within 1,000 feet of a public housing project (OCGA § 16-13-32.5 (b)). The State served notice on defendant well before trial, clearly identifying his previous convictions and setting forth its intent to seek recidivist treatment of defendant and offer the convictions as evidence in aggravation of punishment. And the prior convictions did no more than subject defendant to a greater risk of receiving the maximum sentence for the offenses with which he was charged in the case at bar. Under such circumstances, the State was not required to allege defendant’s recidivism in the indictment. State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984); Wainwright v. State, 208 Ga. App. 777, 779-780 (2) (a) (432 SE2d 555) (1993); Anderson v. State, 199 Ga. App. 559, 560-561 (3) (405 SE2d 558) (1991).

4. The trial court did not err in concluding that it was required to give defendant the maximum sentence of life in prison for selling cocaine in violation of OCGA § 16-13-30 (b) due to his prior drug convictions. At the time defendant violated OCGA § 16-13-30 (b), OCGA § 16-13-30 (d) required that repeat drug offenders receive a life sentence. Although OCGA § 16-13-30 (d) has been amended so as to allow trial courts greater discretion in imposing lesser sentences, the effective date of that amendment was after defendant’s commission of the crime in this case, and we have previously concluded that the amendment is not retroactive. See Maddox v. State, 227 Ga. App. 602, 605 (5) (490 SE2d 174) (1997); Jackson v. State, 223 Ga. App. 471 (477 SE2d 893) (1996).

Furthermore, even if the amendment to OCGA § 16-13-30 (d) was applicable, defendant’s life sentence in this case would still be mandated pursuant to OCGA § 17-10-7 (a). Although defendant is correct in his assertion that the amended version of OCGA § 16-13-30 (d) limits -the application of OCGA § 17-10-7, it does so only with regard to sentences imposed for second drug offenses under OCGA § 16-13-30 (b). As the trial court noted, defendant’s conviction in this case for violating OCGA § 16-13-30 (b) constitutes a third drug offense under the purview of that Code section. The fact that one of defendant’s two prior drug offenses involved a violation of OCGA § 16-13-32.5 (b), rather than OCGA § 16-13-30 (b), does not require a contrary conclusion. It would be illogical to treat defendant’s prior conviction under OCGA § 16-13-32.5 (b) differently from his prior conviction under OCGA § 16-13-30 (b), because defendant’s previous conviction under OCGA § 16-13-32.5 (b) required proof of the same basic elements required to prove his previous conviction under OCGA § 16-13-30 (b), plus proof of his presence within 1,000 feet of a housing project. Therefore, defendant’s prior conviction under OCGA § 16-13-32.5 (b) should be viewed as equivalent to his prior conviction under OCGA § 16-13-30 (b). Consequently, even under the amended version of OCGA § 16-13-30 (d), a life sentence was mandated because OCGA § 17-10-7 (a) was applicable and required the life sentence.

Accordingly, defendant’s first, third and fourth enumerations of error are meritless.

5. Finally, we find no merit to defendant’s second enumeration, wherein he contends that the trial court erred in concluding that it was required to consider OCGA § 17-10-7 (a) in determining defendant’s sentence for selling cocaine within 1,000 feet of a housing project in violation of OCGA § 16-13-32.5 (b). Although OCGA § 16-13-32.5 makes no mention of OCGA § 17-10-7, contrary to defendant’s assertion, such an omission does not mean that OCGA § 17-10-7 (a) is not applicable. We previously have found that other criminal statutes which provide for sentences within a range of years or life, as does OCGA § 16-13-32.5 (b), are amenable to the dictates of OCGA § 17-10-7 (a) even though they make no specific reference to that Code section. See Stone v. State, 218 Ga. App. 350, 351 (1) (461 SE2d 548) (1995); State v. Baldwin, 167 Ga. App. 737, 739-740 (3) (307 SE2d 679) (1983). Based on this, as well as the absence of any apparent legislative or case authority to the contrary, we hold that the trial court did not err in concluding that it was required to take OCGA § 17-10-7 (a) into consideration, and in accordance therewith, sentence defendant to the maximum time allowed for violating OCGA § 16-13-32.5 (b), which was 40 years, to run consecutively with any other imposed sentence.

Decided February 24, 1998

Reconsideration denied March 11, 1998

Wiseman, Blackburn & Futrell, Michael L. Edwards, C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Lori T. Loncon, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Johnson, Judge.

text:
    A97A2134.
    TRUITT OIL & GAS COMPANY, INC. v. RANGER INSURANCE COMPANY.
    (498 SE2d 572)
   Johnson, Judge.

Truitt Oil & Gas Company, Inc. sells petroleum products. When Truitt Oil’s underground storage tanks leaked gasoline into the ground and sewer system, the road on which the business was located had to be closed for several weeks while clean-up operations were undertaken.

Shortly thereafter, Sun N’ Shade, Inc., a neighboring garden center, sued Truitt Oil for damages it incurred as a result of the road being closed. The complaint alleged Truitt Oil negligently allowed gasoline to escape from its tanks and failed to timely correct the problem, resulting in lost profits for Sun N’ Shade. Sun N’ Shade and Truitt Oil eventually entered into a settlement agreement in the case.

Truitt Oil had demanded that its liability insurer, Ranger Insurance Company, defend it in the action. Ranger Insurance refused, arguing that the claim fell within the policy’s “pollution exclusion,” which specifically excludes coverage for bodily injury or property damage occurring due to the discharge or escape of pollutants.

Truitt Oil sued Ranger Insurance for breaching its agreement to defend or indemnify Truitt Oil. Ranger Insurance moved for summary judgment based on the pollution exclusion. Truitt Oil opposed the motion and filed a cross-motion for summary judgment, arguing that the pollution exclusion does not apply because gasoline is not a pollutant and the injury alleged was neither bodily injury nor property damage. The trial court granted Ranger Insurance’s motion for summary judgment and denied Truitt Oil’s motion. Truitt Oil appeals.

1. In several enumerations, Truitt Oil contends that the trial court erred in granting summary judgment to Ranger Insurance because (a) the damages claimed by Sun N’ Shade were not excluded by the pollution exclusion, and (b) gasoline does not constitute a pollutant. We disagree with both contentions.

The liability insurance policy provides: “This insurance does not apply to: f. (1) ‘Bodily injury’ or ‘property damage’ which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time. [Nor does it apply to] (2) Any loss, cost or expense arising out of any: (a) Request, demand or order [to] . . . clean up . . . the effects of pollutants.”

The policy endorsement defines “pollutants” as “any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.”

“Property damage” is defined in the policy as “a. [p]hysical injury to tangible property, including all resulting loss of use of that property . . .; or b. [l]oss of use of tangible property that is not physically injured.” (Emphasis supplied.)

“Personal injury,” for which coverage is not excluded by the pollution exclusion, includes false arrest, detention or imprisonment; malicious prosecution; wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling, or premises; defamation; and invasion of right to privacy by publication.

We hold that Sun N’ Shade’s claim for lost profits resulting from the gasoline leak and clean-up comes within the pollution exclusion.

“The words used in policies of insurance, as in all other contracts, bear their usual and common significance, and policies of insurance are, as in all other contracts, to be construed in their ordinary meaning.” (Citations and punctuation omitted.) Nalley v. Nationwide Mut. Fire Ins. Co., 221 Ga. App. 537, 538 (2) (472 SE2d 82) (1996). “An unambiguous policy, as here, requires no construction, and its plain terms must be given full effect even though they are beneficial to an insurer and detrimental to the insured. [Cit.]” Littrell v. Colony Ins. Co., 228 Ga. App. 552, 553 (492 SE2d 299) (1997). “The natural, obvious meaning [of a policy provision] is to be preferred over any curious, hidden meaning which nothing but the exigency of a hard case and the ingenuity of a trained and acute mind would discover.” (Citations and punctuation omitted.) Sun Ins. Office, Ltd. v. Thibadeau, 210 Ga. App. 479, 480 (436 SE2d 515) (1993).

(a) Under the policy, property damage includes “[l]oss of use of tangible property that is not physically injured.” Under the express terms of the policy, Sun N’ Shade’s damages resulting from its loss of use of the real property fall within the definition of “property damage.” Contrary to Truitt Oil’s argument, the policy does not require that there be physical injury to the property.

Decided March 11, 1998.

Steven M. Mills, for appellant.

Lane, O’Brien & Caswell, Stephen J. Caswell, Michael A. Penn, for appellee.

Truitt Oil’s contention that the damages alleged fall within the policy definition of “personal injury,” which claims are not excluded by the pollution provision, is without merit. Truitt Oil argues that two types of actions included in the policy’s definition of “personal injury,” namely wrongful entry and invasion of the right of private occupancy, apply in this case. However, neither is alleged by Sun N’ Shade in its complaint. Rather, the complaint allegations fall squarely within the “loss of use of property” section of the property damage definition.

(b) Truitt Oil also claims that gasoline does not come within the definition of “pollutants.” Truitt Oil argues that the policy language is ambiguous, inasmuch as it refers to “gasoline” in several different ways in the policy (e.g., “your product,” “liquid products,” “gas”).

The policy is not ambiguous. That “gasoline” is referred to by terms other than “gasoline” does not make the term “pollutants” ambiguous. “Pollutants” is clearly defined in the policy as including any liquid or gaseous contaminant. Gasoline is defined as a volatile flammable liquid hydrocarbon mixture blended from natural gas and petroleum. Webster’s Ninth New Collegiate Dictionary, 1991. Gasoline which has leaked from its storage container and has contaminated the surrounding environment constitutes a pollutant within the meaning of the policy. In light of the policy language and the usual significance of the words used in the policy, it was unnecessary for the policy to specifically list gasoline as a pollutant.

2. Although Truitt Oil has listed four separate enumerations of error, all of the enumerations raise matters discussed in Division 1 and are likewise without merit. Based on the plain and unambiguous terms of the insurance contract, the trial court did not err in granting summary judgment to Ranger Insurance. See generally Arkin v. Fireman’s Fund Ins. Co., 228 Ga. App. 564, 567 (492 SE2d 314) (1997).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A97A2330.
    THE STATE v. RODDY.
    (497 SE2d 653)
   Smith, Judge.

The Albany police made an investigative stop of a vehicle in which David L. Roddy was a front seat passenger. The driver gave the officers consent to search the vehicle, and during the search, one officer saw a gun under a rear seat passenger’s leg. Another passenger began fighting with the officers as a second officer attempted to remove him from the rear seat. The third rear seat passenger got out of the vehicle and, while being patted down, stated that he had “a little bit of weed”; the officer found marijuana and cocaine in his pants pocket. All three rear seat passengers were arrested on various charges.

An officer then conducted a protective patdown of Roddy and discovered a plastic bag of marijuana hidden in his clothing. Roddy was charged with possession of marijuana with the intent to distribute. He filed a motion to suppress. The trial court granted the motion, finding that the search was improper under the “plain feel” doctrine. The State appeals from the trial court’s order, and we vacate and remand because the State was not properly placed on notice of this basis for Roddy’s motion to suppress.

In his motion, Roddy specifically challenged the probable cause to search him, claiming that “[requiring Mr. Roddy to exit the vehicle, the interrogation and the search [were] without probable cause or reasonable suspicion that the Defendant had committed any crime.” In addition, the motion alleged that the search violated Fourth Amendment constitutional concerns because no warrant had issued. But Roddy raised no issue regarding the seizure of the drugs under the “plain feel” doctrine.

On April 15, 1997, an evidentiary hearing was held on the motion. The arresting officer testified in narrative fashion about the circumstances surrounding the stop and arrest. The officer testified that during the initial protective patdown of Roddy, he “felt a bag or something soft and smushy at that point.” Thereafter, a plastic bag containing eight individual baggies of marijuana and a quarter ounce bag of marijuana were seized from Roddy’s shorts. During the hearing, no questions were asked by either the State or the defense addressing the actual seizure of the plastic bag containing the contraband. The arguments of counsel were related solely to the issue of probable cause to search Roddy in the first place. Further, the trial court expressed concern only about the issue of a basis for the search: “But the question is . . . whether there was any reason to search this man. He wasn’t doing anything.”

Three weeks after the evidentiary hearing, Roddy filed a “Brief in Support of Defendant’s Motion to Suppress.” In this brief, Roddy for the first time raised the issue of the “plain feel” doctrine. He claimed the officer’s testimony at the suppression hearing did not support seizure under the “plain feel” doctrine based upon this Court’s decision in Boatright v. State, 225 Ga. App. 181 (483 SE2d 659) (1997).

Thereafter, citing Boatright, the trial court granted Roddy’s motion to suppress and found that “the search conducted exceeded the bounds of the ‘plain feel’ corollary to the ‘plain view’ doctrine.”

The State raises the issue that “[o]nly after the evidentiary hearing was held, did Appellee offer argument, via his brief in support of motion to suppress, that the State had violated the ‘plain feel’ doctrine.” The State’s complaint has merit.

As a matter of course, evidence exclusion is an extreme sanction and one not favored in the law. See, e.g., Bazemore v. State, 225 Ga. App. 741, 744 (484 SE2d 673) (1997). For this reason, the statutory procedure for the suppression of evidence requires that the motion to suppress “shall be in writing and state facts showing that the search and seizure were unlawful.” OCGA § 17-5-30 (b); Boatright v. State, 192 Ga. App. 112, 117-118 (385 SE2d 298) (1989). We have held that an issue raised in a brief in support of a motion to suppress may be considered as part of the motion. Stanley v. State, 206 Ga. App. 125 (1) (424 SE2d 90) (1992). But we emphasized in Stanley that the brief in that case was filed contemporaneously with the motion. Id.

Ultimately, the suppression motion must be “sufficient to put the [S]tate on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing” (Emphasis supplied.) Lavelle v. State, 250 Ga. 224, 227 (297 SE2d 234) (1982). Accord Seaman v. State, 214 Ga. App. 878, 879 (1) (449 SE2d 526) (1994). To hold otherwise would condone suppression by ambush and encourage the concealment of relevant issues until after the evidentiary hearing is completed and the witnesses cannot be questioned to address them. Testimony at an evidentiary hearing likely will be deficient as to a particular issue when that issue is not identified in time to be addressed.

Here, no argument based on the “plain feel” doctrine was raised so as to notify the State to question the officer specifically regarding the evidentiary standard for seizure under “plain feel.” In the middle of a long narrative, the officer testified generally as to what the plastic bag felt like “at that point” when he first discovered it on Roddy’s person. No one asked the officer about the contents of the plastic bag; no one inquired whether the officer could deduce the contents through his “sense of touch”; no one asked the officer whether the bag was, ultimately, “an object whose contour or mass [made] its identity immediately apparent” to the officer prior to its seizure. See Boatright, supra, 225 Ga. App. at 182; see also Howard v. State, 220 Ga. App. 579, 581-582 (469 SE2d 746) (1996) (plastic bag containing cocaine found in defendant’s crotch area properly admitted under Fourth Amendment “plain feel” doctrine because its nature “immediately apparent” to officer).

Decided March 11, 1998.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellant.

Willie C. Weaver, for appellee.

Because an issue regarding “plain feel” was not raised in the motion to suppress and the State was not properly placed on notice that this issue would be raised at the hearing on the motion, the evidentiary basis upon which the trial court found the search exceeded the bounds of the “plain feel” doctrine was not fully developed. See, e.g., Seaman, supra at 878-880 (2); see generally State v: Armstrong, 203 Ga. App. 159, 160 (1) (416 SE2d 537) (1992).

A motion to suppress may be amended at the discretion of the trial court. See generally Kessler v. State, 221 Ga. App. 368, 369 (471 SE2d 313) (1996); Davis v. State, 203 Ga. App. 315, 316 (3) (416 SE2d 789) (1992). Roddy raised the “plain feel” issue prior to the trial court’s ruling on the motion, and the trial court ruled on this basis, thus in effect granting the amendment. But the trial court did not allow the State the opportunity to respond with additional evidence. We conclude that these circumstances demand a second evidentiary hearing be held. Accordingly, we vacate the trial court’s order granting Roddy’s motion to suppress and remand this case with the direction that the trial court conduct another hearing on the motion, with the further direction that the trial court set forth its reasoning in its written order ultimately granting or denying Roddy’s motion to suppress. We do not hereby express any opinion as to whether Roddy’s motion should be granted or denied.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Beasley, J., concur.

       The stop was allegedly pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       We note that the standard for a Terry stop is “reasonable, articulable suspicion” rather than probable cause.

       See generally State v. Lawrence, 264 Ga. 262 (443 SE2d 270) (1994).


author: Ruffin, Judge.

text:
    A97A2393.
    THE STATE v. BOWEN.
    (498 SE2d 570)
   Ruffin, Judge.

Sylvia Gayle Bowen was arrested for driving under the influence (OCGA § 40-6-391) and weaving in traffic (OCGA § 40-6-48). Bowen moved to suppress the evidence stemming from the arrest, asserting that the arresting officer did not have “reasonable trustworthy information to believe that [she] had committed any criminal offense. . . .” The trial court granted the motion and the State appealed. We reverse.

“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. [Cits.]” Wells v. State, 227 Ga. App. 521 (489 SE2d 307) (1997).

Viewed in this light, the evidence at the motion to suppress hearing showed that the arresting officer was traveling northbound on Moody Road during the early morning hours of December 20, 1996. As the officer approached the intersection of Moody Road and Russell Parkway, he noticed a white Jeep Cherokee sitting in the turn lane on Moody Road. Bowen, the driver of the Cherokee, had a green arrow indicating that she could turn left. The officer testified that there appeared to be no reason why Bowen was not turning. As the officer entered the turn lane, Bowen turned left and entered the far right lane of Russell Parkway. The officer followed her. He testified that he saw her drift to her right into the curb lane on at least two occasions. She would then drift back towards the lane divider on her left. Based on Bowen’s weaving in the road, the officer initiated the traffic stop, which resulted in Bowen’s arrest.

April Lewis, a passenger in Bowen’s car, testified at the suppression hearing that as they were exiting the parking lot of a bar to travel on Moody Road, she noticed the arresting officer drive by traveling in the direction that Bowen was heading. As Bowen was driving on Moody Road, Lewis saw the officer, who was traveling some distance in front of them, pull into a convenience store and then pull back onto Moody Road behind Bowen’s car. She said that the officer stayed behind Bowen’s automobile until initiating the traffic stop. The arresting officer denied that he pulled into the convenience store and turned around and followed Bowen.

Relying on Lewis’ testimony concerning the officer’s actions in turning around to follow Bowen’s car, the trial court found the traffic stop was pretextual.

“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. [Cits.]” Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996). See also Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994) (stop of vehicle authorized if officer observes commission of traffic offense). Moreover, we have “specifically determined that an officer’s observation of a motorist’s ‘weaving’ may serve as sufficient reason to warrant an investigative stop for a possible DUI violation. [Cits.]” State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996).

Decided March 11, 1998.

John W. Geiger, Solicitor, Cynthia T. Adams, Assistant Solicitor, for appellant.

Michael J. Moore, for appellee.

The arresting officer in the instant case witnessed Bowen weaving in her lane of travel and veer into the curb lane. As he witnessed the commission of a traffic offense, the stop was authorized. Whren, supra. See also Allenbrand v. State, 217 Ga. App. 609 (458 SE2d 382) (1995) (traffic stop made after officer saw defendant weaving within the defendant’s lane of travel and going onto the centerline was not pretextual).

Furthermore, even if the arresting officer had an ulterior motive in following Bowen, it is of no consequence as he had probable cause to believe she had violated the traffic laws. The U. S. Supreme Court concluded in Whren “that the constitutional reasonableness of traffic stops [does not depend] on the actual motivations of the individual officers involved. . . . Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren, 517 U. S. at 813.

Accordingly, we find that the traffic stop was not pretextual as the arresting officer witnessed Bowen commit a traffic offense, and thus the trial court erred in granting Bowen’s motion to suppress. Whren, supra; Hines, supra.

Judgment reversed.

Birdsong, P. J, and Eldridge, J., concur.


author: Birdsong, Presiding Judge.

text:
    A98A0054.
    PEARSON et al. v. CITY OF ATLANTA.
    (499 SE2d 89)
   Birdsong, Presiding Judge.

Appellants Dorothy Pearson, individually and as administratrix of the estate of Sherwood R. Pearson, and Phillip Pearson, individually, appeal that portion of the superior court’s order granting partial summary judgment to the City of Atlanta.

Appellants are the parents of decedent. This is a suit for damages based on the wrongful death of decedent and also averring inter alia causes of action for nuisance and a violation of 42 USC § 1983. Decedent was killed when the car which he was driving was struck by another car driven by a suspect who was attempting to elude a City of Atlanta policeman, Officer McCain, during a high-speed police pursuit conducted in Midtown Atlanta during evening rush hour traffic. Michelle Wilson was a passenger in appellants’ vehicle and was injured in the collision.

Michelle Wilson subsequently brought an independent suit against Officer McCain and the City; she averred inter alia causes of action for negligence, nuisance and violation of 42 USC § 1983. The trial court granted summary judgment on behalf of the defendants; Michelle Wilson appealed and this Court affirmed the grant of summary judgment in Wilson v. City of Atlanta, 223 Ga. App. 144 (476 SE2d 892).

Appellants enumerate as error the trial court’s grant of appellee’s motion for summary judgment. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Since the Supreme Court’s holding in Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761), OCGA § 40-6-6, the statute underpinning the Court’s holding, has been substantially and significantly amended, particularly as to subsection (d). This amendment was in direct response to the decision of the Supreme Court in Mixon, supra. 12 Ga. State U. L. Rev. 295. Although the 1995 amendment to OCGA § 40-6-6 was not in effect at the time of this collision, as a general rule, an appellate court applies the applicable law as it exists at the time of its judgment, as long as no vested rights under the previous law will be impaired. Cheeley v. Henderson, 261 Ga. 498 (1) (405 SE2d 865). This Court already has applied the new statutory requirements in the resolution of an appeal brought by the injured passenger, Michelle Wilson. Compare Wilson, supra at 148 (to survive summary judgment respondent had to point to or come forward with facts showing McCain failed to properly balance the risks inherent in the pursuit and that he violated OCGA § 40-6-6 (c) — driving in reckless disregard for the safety of the driving public).

An examination of the plain wording of OCGA § 40-6-6 in its totality reveals that the statute currently addresses the driver of two distinct vehicle classes — “emergency vehicle” or “law enforcement vehicle.” While OCGA § 40-6-6 (d) (1) addresses the general statutory duty to drive with due care imposed upon the driver of “an authorized emergency vehicle,” OCGA § 40-6-6 (d) (2) expressly pertains to those special circumstances where “a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit.” In such circumstances, “the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but. the existence of such reckless disregard shall not in and of itself establish causation.” (Emphasis supplied.) OCGA § 40-6-6 (d) (2). That is, under amended OCGA § 40-6-6, a finding of proximate cause or contributing proximate cause must be supported by evidence that “the officer acts with reckless disregard for proper law enforcement procedures in initiating or continuing the pursuit and this reckless disregard actually causes the damage, injury, or death.” 12 Ga. State U. L. Rev., supra at 298. (This statutory provision was not in effect when the Supreme Court issued its opinion in Mixon, supra.) It is abundantly clear from the plain language of this unambiguous, statutory provision, which this court is required to construe and follow according to its terms (Telecom*USA v. Collins, 260 Ga. 362, 363 (1) (393 SE2d 235)), that Officer McCain’s conduct, even if constituting a failure to drive with due regard for the safety of others, cannot be deemed the proximate cause of the collision and resulting death, unless Officer McCain also was acting with reckless disregard for proper law enforcement procedures at the time of the incident and that recklessness was the actual cause of the damage, injury or death. Thus, OCGA § 40-6-6 (d), as enacted, has promulgated a reckless disregard standard rather than a standard of mere negligence. See, e.g., 12 Ga. State U. L. Rev., supra at 300, n. 39 (legislation passed Senate with reckless disregard standard intact). The testimony of Officer McCain, as to the significant actions which he took during the chase are not controverted by admissible evidence of record. These actions of slowing before going through a red light, exceeding the speed limit during light or non-existent traffic, and disregarding regulations governing direction of traffic movement when oncoming traffic was light or non-existent, as a matter of law, do not constitute a reckless disregard of law enforcement procedures, and were all actions expressly authorized by statute (OCGA § 40-6-6 (b) (2)-(4)). As in Wilson, supra at 148, we find that appellant has failed to point to or come forward with facts showing that McCain failed to properly balance the risks inherent in the pursuit of a fleeing suspect and that he violated OCGA § 40-6-6 (d). As a matter of law, there exists no evidence of record establishing that McCain’s conduct ever arose to the level of “reckless disregard.”

Additionally, we agree with the trial court that pursuit did not commence until after the suspect’s vehicle suddenly began to accelerate and Officer McCain thereafter activated his siren and lights. Prior to that time, McCain merely had the suspect’s vehicle under surveillance in a non-pursuit mode and had executed no show of authority to effect a vehicle stop. Thus, as in Wilson, supra, the facts in this case are closer to the facts in Sammor v. Mayor &c., 176 Ga. App. 176, 177 (2) (335 SE2d 434) than in Mixon, supra, and that the latter is not controlling. (Note: We would be compelled to question any unmodified application oí. Mixon, supra, to police pursuits in view of the substantial 1995 statutory amendment to OCGA § 40-6-6 since the date of that opinion.) As in Sammor, supra, the danger to the public had commenced before a pursuit was initiated. Further, Officer McCain testified, without contradiction by direct evidence, and his testimony was corroborated, at least in part, by other evidence, that prior to the collision he had terminated the high-speed pursuit and had deactivated his siren and lights. While there exists some evidence that his siren was still operating at the time of the collision, this evidence is, at most, only circumstantial evidence from which an inference might be drawn that the high-speed pursuit was still in progress. We have consistently held that “findings of fact which may be inferred but are not demanded by circumstantial evidence have no probative value against positive and uncontradicted evidence that no such fact exists.” Johnson v. Rogers, 214 Ga. App. 557, 559 (4) (448 SE2d 710) and cases cited therein. Moreover even if the pursuit was still underway at the time of the incident, it was the suspect and not Officer McCain who was driving in a reckless manner; the uncontroverted facts establish that McCain was, during the pursuit, acting with adequate regard for proper law enforcement procedures within the meaning of OCGA § 40-6-6 (d).

For the independent reasons above, appellants’ fourth enumeration of error is without merit.

3. Appellants’ third enumeration of error is without merit. “As for [appellants’] nuisance claim against the City, because McCain was not liable, no basis of liability exists.” Wilson, supra at 148. Further, the City previously had taken action to duly promulgate a standard operating procedure for pursuit driving, BPS.SOP.4.11, effective November 22, 1989. The purpose of this SOP was to “establish guidelines for officers in pursuit of motor vehicles within and outside the city.” The policy of the SOP is expressly stated as follows: “The Atlanta Bureau of Police Services places its highest value upon the fife and safety of each of its police officers and the public at large. The methods used to enforce laws should minimize the risk of injury to officers and citizens alike.” The dangerous condition which this policy was promulgated to alleviate was the inherent risk of injury to officers and citizens during police pursuits. Assuming arguendo, appellants had pointed to evidence giving rise to an issue whether the City had maintained a dangerous condition on a regular basis over a period of time, they fail to point to admissible evidence establishing that the City took no action to correct such a condition after learning of it. Wilson, supra.

4. Appellants’ first and second enumerations of error are without merit.

(a) Appellants contend that the City maintained an inadequate high-speed pursuit policy thereby violating the deceased’s constitutionally protected rights under 42 USC § 1983. In support of this contention, appellants presented an affidavit of an expert in criminology who opined, inter alia, that the pursuit policy was inadequate. As in Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569), appellants’ expert affidavit is insufficient to create a genuine issue of material fact as to the inadequacy of the high-speed pursuit policy, because “no objective guidelines which might have been appropriate or facts which show the department’s guidelines and training are inadequate were set out in his affidavit.” (Emphasis supplied.) Id. at 304 (3).

(b) Appellants also contend that the city violated 42 USC § 1983 by failing to enforce its policy. Automobile negligence actions, even when the negligence is gross, do not rise per se to the level of a constitutional deprivation under the Fourteenth Amendment. Cannon v. Taylor, 782 F2d 947, 949-950 (11th Cir.); accord Rooney v. Watson, 101 F3d 1378, 1381 [2] (11th Cir.). Since Officer McCain’s conduct did not cause the deceased or others to suffer a constitutional deprivation, we need not inquire into the City’s policy. “[A]n inquiry into a governmental entity’s custom or policy is relevant only when a constitutional deprivation has occurred.” Id. at 1381 (II); compare Vineyard v. County of Murray &c., 990 F2d 1207, 1211 (11th Cir.) (clear violation of specific rights required before question of § 1983 municipal liability arises). Further, the “very existence” of the City’s high-speed policy is sufficient to rebut any unsubstantiated allegations that the City was deliberately indifferent or grossly negligent in respecting citizens rights or that the City tacitly authorized constitutionally offensive conduct. McBride v. Bd. of Corrections, 221 Ga. App. 796, 797 (2) (472 SE2d 693). “Under the law applicable to actions under 42 USC § 1983 against local governments, the doctrine of respondeat superior is not a basis for imposing liability. To impose liability, it must be shown that some policy of [the City of Atlanta] was responsible for the violation of [the deceased’s] federally protected rights.” Gwinnett County v. King, 218 Ga. App. 800, 802 (3) (463 SE2d 511). The record supports no such showing.

Additionally, for an action under 42 USC § 1983 to lie for failure to adequately enforce a policy through proper training or otherwise, “the failure to take remedial steps must amount to deliberate indifference or tacit authorization of the offensive acts [or omissions]”; and “at least a showing of gross negligence will be necessary to establish liability for inadequate training.” Cannon v. Taylor, supra at 951 [3].

Decided March 11, 1998

Brownlow & Schaefer, Ira B. Brownlow, Jr., Williston C. White, for appellants.

Vincent D. Hyman, William H. McLean TV, for appellee.

“The record is barren of any evidence of [gross negligence in providing adequate training, or] ‘implementation of an intentional policy or a constitutional deprivation resulting from an intentionally corrupt or impermissible policy’ so as to find a cause of action under 42 USC § 1983.” Holloway v. Rogers, 181 Ga. App. 11, 13 (2) (351 SE2d 240); compare Cannon, supra, and Rooney, supra.

5. OCGA § 40-6-6 (d) (3) now expressly clarifies the General Assembly’s pre-existing intent that this statute does not constitute any form of waiver of any applicable defense of governmental (sovereign) or official immunity to which the law enforcement officer and the state, county or municipal government would be entitled under other provisions of the State’s statutes or constitution. As to state tort claims, except to the extent to which it has waived the defense, see generally OCGA §§ 33-24-51 (b); 36-33-1, appellee City is entitled to assert the defense of sovereign immunity. Moreover, as clarified in Gilbert v. Richardson, 264 Ga. 744, 750 (4), 753 (7) (452 SE2d 476), any cause of action averred against a municipal police officer in his official, as opposed to his personal/individual, capacity is “ ‘in reality suits against the [municipality] and, therefore, involve sovereign [governmental] immunity.’ ” Compare Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512); but compare the pre-Gilbert cases of Banks v. Patton, 202 Ga. App. 168 (413 SE2d 744) (negligent performance of official discretionary act in responding to an emergency call) and Acker v. City of Elberton, 176 Ga. App. 580 (336 SE2d 842). If, however, the officer is sued in his individual/personal capacity, any defense of immunity would have to be grounded upon a legitimate claim of official immunity. See Gilbert, supra at 750 (4).

Judgment affirmed.

Johnson and Smith, JJ, concur.


author: Eldridge, Judge.

text:
    A98A0078.
    JONES v. KRYSTAL COMPANY.
    (498 SE2d 565)
   Eldridge, Judge.

On May 18,1994, Marvin Jones, plaintiff-appellant, and his boss entered a Krystal restaurant at 12:25 a.m., ordered, were served, and sat at a table. When they were ready to leave after about 20 minutes, they took their trash to a trash receptacle near the front counter.

As plaintiff approached the trash receptacle, his feet shot out from under him, and he fell on his back. The fall occurred at 12:45 a.m., when the restaurant was not busy. Immediately prior to the fall, there were several Krystal employees at the front counter near the trash receptacle behind the counter. During the 20 minutes that the plaintiff had been in the Krystal, several other customers had been served by employees, which required employees to come to the counter near the trash receptacle where the spill was observable by them.

Plaintiff slipped on cola and melting ice on the floor, which he did not see in front of the counter. Plaintiff did not know how long it had been there or where the cola and ice came from. He was not looking at the floor at the time of the fall and was not distracted; the lighting was normal. However, the plaintiff testified that, had he looked at the floor, he would not be able to see the cola on the floor, because the cola blended in with brown floor color. The floor was made of tiles of brown, tan, and white, which hid the substance on the floor from normal observation. During the 20 minutes that the plaintiff was in the Krystal, he did not see any employee either inspect or clean the floor. The color of the floor and the placement of the trash receptacle opposite the counter where customers came and went raise issues as to the need for more frequent inspections.

Plaintiff filed suit against The Krystal Company, defendantappellee (“Krystal”), in the State Court of Fulton County. Krystal answered and later filed a motion for summary judgment based only on plaintiff’s deposition and did not file any affidavits as to the maintenance schedule followed on that or any other day. Summary judgment was granted. Plaintiff timely filed his notice of appeal.

The plaintiff’s enumerations of error all assert that the trial court erred in granting summary judgment for different reasons. We agree, because the defendant failed to pierce the complaint and to show that no evidence could be produced by the plaintiff to create a jury issue on the essential issue of knowledge of the danger by the defendant. The evidence raised the issue of constructive notice for jury determination.

(a) This is a classic slip and fall case in which the defendant relies upon plaintiff’s deposition only and in which the plaintiff in response to the motion for summary judgment under OCGA § 9-11-56 (e) produces evidence that the floor was of such construction that the brown, tan, and white floor tiles made the spill unnoticeable by customers but increased the duty to inspect upon the employees. There are no depositions of the Krystal employees to show the extent of their knowledge of the spill; plaintiff failed to file the interrogatory responses of the defendant. Thus, the case turns on constructive knowledge only. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980); see also Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994).

(b) There was no evidence in the record regarding how or when maintenance was normally conducted. Therefore, constructive knowledge arising from the duty to inspect was not negated by evidence of a policy of regular inspection and testimony that no foreign substance had been found at the last inspection. FoodMax v. Terry, 210 Ga. App. 511, 512 (1) (436 SE2d 725) (1993); Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (1) (408 SE2d 443) (1991); Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987). However, the nature of the floor, so that it would hide spills, the placement of the trash receptacle opposite the counter, and the size of the serving area that was frequently filled with customers entering and leaving, gave rise to a jury question on the part of the owner/occupier as to the duty to conduct more frequent inspections and to anticipate spills, leaks, or dropped food around the trash receptacle, because such conditions made the premises unusually dangerous. Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (226 SE2d 142) (1976); Colonial Stores v. Turner, 117 Ga. App. 331, 334 (160 SE2d 672) (1968); Angel v. Varsity, Inc., 113 Ga. App. 507, 508-509 (148 SE2d 451) (1966).

The record does show from plaintiff’s evidence that, during the 20 minutes that plaintiff was in the Krystal prior to his injury, he did not see any inspection or maintenance performed. “Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist.” (Citations and punctuation omitted; emphasis in original.) Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (1) (432 SE2d 230) (1993); accord Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994). Plaintiff’s evidence raised a factual question as to the length of time that the spill had remained on the floor, i.e., 20 minutes at a minimum or the time within which the ice could partially melt at normal room temperature.

(c) Plaintiff and his -witness established that the floor camouflaged the ice and cola, so that it could not be seen by them. This insulates the plaintiff from the consequences of his failure to exercise ordinary care for his owm safety in not looking at the floor. Because plaintiff may not have been able to see the spill and to avoid it, he was -without knowledge or the ability to discover the danger, which satisfies the second prong of the Alterman standard. See Alterman Foods v. Ligon, supra at 623; see also Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997); Sarantis v. Kroger Co., 201 Ga. App. 552 (411 SE2d 758) (1991).

Constructive knowledge of the owmer/occupier of the hazard arises by inference when employees were in the immediate vicinity and had the opportunity to discover and remove the hazard. Drake v. Kroger Co., 213 Ga. App. 72 (443 SE2d 698) (1994); Mallory v. Piggly-Wiggly Southern Stores, 200 Ga. App. 428 (408 SE2d 443) (1991); Queen v. Kroger Co., 191 Ga. App. 249 (381 SE2d 413) (1989); Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142) (1976); Sharpton v. Great A & P Tea Co., 112 Ga. App. 283, 285-286 (145 SE2d 101) (1965); S. H. Kress & Co. v. Flanigan, 103 Ga. App. 301, 303 (1) (119 SE2d 32) (1976). Here, the evidence gives rise to the inference of constructive knowledge by the presence of the employees at the counter to serve the other customers during the 20 minutes that the plaintiff was there.

(d) However, constructive knowledge can also arise from the failure to exercise reasonable care in inspecting the premises to keep them safe. Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992); Queen v. Kroger Co., supra at 249-250.

“As to [the duty to keep the premises safe], the owner has a duty to exercise ordinary care in keeping the premises safe. (Cits.) This includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. (Cits.) Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992).” (Punctuation omitted.) Strickland v. Howard, 214 Ga. App. 307, 308 (447 SE2d 637) (1994).

The facts and circumstances of this case give rise to a jury question regarding the reasonableness of the frequency of the inspections by the store owner as compared to food stores or even ordinary restaurants, i.e., non-fast food. This arises from the greater danger under the circumstances of this case. The reasons for the greater need for inspections in the exercise of ordinary care under the circumstances arise from the unique nature of fast food restaurants in general, which is evident in this case. First, the time between inspections in this case was greater than ten minutes; second, the floor design camouflaged the presence of a foreign substance on the floor by its three-color floor tile pattern with grout separations; third, the dispensing of beverages and food to people in a hurry had increased the risk of spills; fourth, the trash receptacle was located in front of the counter, making it more likely that spills of beverages and food, or leaks in the trash receptacle, would allow beverages and ice to get on the floor and be seen by employees at the counter; fifth, the service counter generally would be continuously occupied by employees, who should be aware of any beverage or food spilled; sixth, the site of the fall was the area of greatest traffic in people coming or going; and seventh the area was small and as in the case of most fast food restaurants crowded during peak times in this small area, which would prevent customers being able to see the floor and cause distractions by the employees asking for orders. See Robinson v. Kroger Co., supra; Angel v. Varsity, Inc., supra at 508-509.

In this case, 20 minutes elapsed during which neither inspection nor cleaning occurred. Strickland v. Howard, supra at 308; Rush v. Food Giant, 183 Ga. App. 388, 392 (1) (358 SE2d 919) (1987); Mazur v. Food Giant, supra. The melting ice, at room temperature, showed that the spill had not been on the floor for a sufficient time for the ice to totally melt, but had been on the floor a sufficient time to partially melt. In the absence of direct testimony as to the last inspection, as in the cases of the other substances, i.e., butter or ice cream, the incomplete melting of the ice raised a jury issue as to the length the melting ice had been present. See Brown v. Piggly Wiggly Southern, 210 Ga. App. 459 (436 SE2d 513) (1993); Mitchell v. Rainey, 187 Ga. App. 510 (370 SE2d 673) (1988). Thus, a jury may find constructive knowledge in this case, because the foreign substance must be shown to have been on the floor a sufficiently known length of time to infer knowledge through routine inspection. See Johnson v. AutoZone, 219 Ga. App. 390, 394 (465 SE2d 463) (1995); Cook v. Home Depot, 214 Ga. App. 133, 134 (447 SE2d 35) (1994); see also Alterman Foods v. Ligón, supra at 623; Wiley v. Winn-Dixie Stores, 204 Ga. App. 570 (420 SE2d 20) (1992).

(e) Since there is no evidence in the record that Krystal employees conducted any inspection at any time on the evening in question or that an inspection and maintenance policy existed, and since the melting ice and cola were detectable in a reasonable inspection (because plaintiff was able to discover the spill after he searched for it), then it follows that, for purposes of the motion for summary judgment and a determination of constructive knowledge, a reasonable inspection by Krystal employees would have revealed the spill. Therefore, constructive knowledge can be inferred. Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223 (460 SE2d 838) (1995); Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992); Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781) (1988); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785). (1988). “In the absence of evidence that [the Krystal employees] conducted [any] reasonable inspection of the premises that would have discovered the foreign substance that caused the slickness on the floor, [plaintiff] was not required to present evidence establishing the length of time that the substance had been allowed to remain on the floor.” Jackson v. Wal-Mart Stores, supra at 169; see Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989); Winn-Dixie of Greenville v. Ramey, supra at 259; see also Robinson v. Kroger Co., supra.

This case is distinguishable on both the law and facts from Blake v. Kroger Co., 224 Ga. App. 140, 141-145 (2) (480 SE2d 199) (1996), which was expressly overruled by Robinson v. Kroger Co., supra, because “Defendant Kroger contends its employees inspect and sweep its floors on a regular basis and are instructed to clean up any foreign substance they see on the floor.” Id. at 141. As such, there was evidence of an inspection policy in Blake; in this case, there was no evidence of either a policy or inspection and there was “evidence that actual inspecting and cleaning would have discovered and removed the foreign substance,” which was not present in Blake. Id. at 142. Further, importantly, Robinson v. Kroger Co., supra at 747-748, held in regard to Blake quoting, “ ‘[u]nder Lau’s Corp., the defendant proprietor has no burden whatsoever on summary judgment to produce evidence to negate the plaintiff’s theory of recovery’; [cits.] Because the Lau’s Corp. decision modified the practical application of the Alterman Foods’ standard, we must modify Alterman Foods somewhat in order to regain balance in the allocation of the burden of proof. A slip-and-fall plaintiff need not necessarily produce evidence which disproves the plaintiff’s negligence to withstand a motion for summary judgment — the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence, i.e., plaintiff’s intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by the plaintiff’s casual negligence, i.e., the plaintiff’s failure to exercise ordinary care for personal safety. In this way, the defendant has the evidentiary burden as to the issue of the plaintiff’s negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises. . . . By re-establishing the evidentiary burdens to where they were at the time Alterman Foods was decided, we lighten the load placed on plaintiffs by more recent judicial decisions, and place on defendants that which is normally required of a defendant — the establishment of a defense to liability.”

(f) “On [defendant’s] motion for summary judgment [cit.], even assuming [defendant] had knowledge of the peril, it was [plaintiff’s] burden to come forward with specific evidence that [defendant’s] knowledge of the peril was superior, for that is the true ground of the proprietor’s liability.” Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993); accord Cook v. Home Depot, supra at 135.

While the plaintiff had the duty to come forward with evidence on summary judgment to create a material issue of fact on an essential issue under attack, i.e., knowledge of the danger by the defendant, on motion for summary judgment the plaintiff was entitled to all reasonable, favorable inferences drawn from the evidence. See Lau’s Corp. v. Haskins, supra at 491; Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245) (1990); see also Robinson v. Kroger Co., supra.

The defendant cannot fail to produce evidence regarding its knowledge or lack of knowledge, without the risk that the presumption will arise that such evidence withheld was unfavorable. OCGA § 24-4-22 reads: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” The legislative intent of OCGA § 24-4-22 was that a party should be penalized by the presumption for withholding evidence within their power to produce, and relying on evidence of an inferior nature. Fields v: Yellow Cab Co., 80 Ga. App. 569 (56 SE2d 845) (1949). It is irrelevant which party has the burden to produce evidence, because the public policy favors producing evidence from which the factfinder can determine where the truth lies. Shiver & Barnett v. Firemens Ins. Co., 60 Ga. App. 57 (2 SE2d 760) (1939). The presumption arising from suppression of evidence is one of fact, not of law. Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475 (170 SE2d 848), aff’d, 226 Ga. 221 (173 SE2d 691) (1970). The presumption arises, as in this case, only when the party has evidence within its control, i.e., employees on duty and details of the last inspection, and fails to produce the evidence to negate constructive knowledge. See Dunaway v. Parker, 215 Ga. App. 841, 850 (5) (453 SE2d 43) (1994); Eddie Parker Interests v. Booth, 160 Ga. App. 15 (285 SE2d 753) (1981); Maloy v. Dixon, 127 Ga. App. 151, 154-160 (2) (193 SE2d 19) (1972).

Decided March 11, 1998

David L. Smith, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Matthew L. Hilt, for appellee.

On motion for summary judgment, the defendant, as movant, must either present evidence that pierces plaintiff’s complaint as to an essential element or “must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, supra at 495; Jackson v. Wal-Mart Stores, supra at 168. “The burden was upon [Krystal] as movant for summary judgment to establish no genuine issue remained as to its lack of constructive knowledge under both these theories either by adducing evidence, Food Giant [u Cook, supra], or by pointing out by reference to the record that there is an absence of evidence to support the case of [the plaintiff], the nonmoving party.” Jackson v. Wal-Mart Stores, supra at 168.

In this case, the defendant presented no evidence as to any inspection schedule or as to what the last inspection revealed; no employee testified. Spilling a drink and ice in front of the counter serviced by Krystal employees should have been seen or heard by them and would therefore give rise to a duty to inspect immediately and to clean up the spill. The plaintiff was entitled to have the presumption arise in his favor on summary judgment that defendant had actual knowledge of the spill or should have the inference of constructive knowledge. See Shipley v. Handicaps Mobility Systems, 222 Ga. App. 101 (473 SE2d 533) (1996). Therefore, the presumption raised a question of fact for the jury as to defendant Krystal’s constructive knowledge, and the trial court erred in granting summary judgment.

“In sum, we remind members of the judiciary that ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.”Robinson v. Kroger Co., supra at 748. This case fails to satisfy such high standard for the grant of summary judgment.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       A policy of inspection may be inadequate under the facts and circumstances of the case to guard against a known or foreseeable danger so that the existence of a policy does not automatically bar liability. Further, a reasonable and adequate policy of inspection may not have been, in fact, followed on that occasion.


author: Judge Harold R. Banke.

text:
    A98A0145.
    SMITH et al. v. SIMPSON et al.
    (497 SE2d 663)
   Judge Harold R. Banke.

Ulysses Smith, Spencer Driskell, and Tonecia Catchings, who filed the underlying negligence action against Alvin Simpson and Nataki Suda, contest the dismissal of their appeal pursuant to OCGA § 5-6-48 (c). After the jury rendered a defense verdict, the appellants filed a timely notice of appeal on July 8, 1996. When no transcript was filed by December 12, 1996, Simpson and Suda successfully moved to dismiss. Appellants then filed a second notice of appeal assigning the dismissal as error. Held:

The trial court did not abuse its discretion in dismissing this appeal. Boveland v. Young Women’s Christian Assn., 227 Ga. App. 241 (1) (489 SE2d 35) (1997). Transcripts must be filed within 30 days after the filing of a notice of appeal, unless an extension of time is properly requested. OCGA § 5-6-42. After a notice and a hearing, appeals may be dismissed for failure to timely file a transcript if the delay was (1) unreasonable; (2) inexcusable; and (3) caused by the party bearing responsibility for obtaining the transcript. OCGA § 5-6-48; Dalton v. Vo, 224 Ga. App. 382 (480 SE2d 377) (1997). Once the movant makes a prima facie showing that OCGA § 5-6-42 was violated, the nonmovant must come forward with proof showing that the delay was neither unreasonable nor inexcusable. Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994); see Gay v. City of Rome, 157 Ga. App. 368, 369 (1) (277 SE2d 741) (1981); see also Style Craft Homes v. Chapman, 226 Ga. App. 634, 636 (487 SE2d 32) (1997). Appellants failed to meet this burden.

After a hearing, the trial court found that on or about August 29, 1996, the appellants paid for the cost of preparing the appellate record. They neither ordered nor paid for the trial transcript until October 28, 1996. They sought no extension of time. Appellants admitted that their inability to simultaneously pay for the preparation of the appellate record and the transcript caused the delay. They also argued that they relied on an October 30 letter from the Clerk’s office informing them that the record would not be completed for six to eight weeks.

In dismissing the appeal, the trial court found this reliance unreasonable in light of their delay in failing to pay the supplemental costs of ordering the trial transcript until the end of October. The trial court further found that appellants caused the unreasonable and inexcusable delay of 112 days between the filing of the notice of appeal and the completion of the transcript.

It is undisputed that appellants caused the delay. Their counsel was charged with knowledge that they bore the responsibility for timely arranging for a transcript. See Leonard v. Ognio, 201 Ga. App. 260, 262 (410 SE2d 814) (1991); see also State v. Hart, 246 Ga. 212, 213 (1) (271 SE2d 133) (1980); OCGA § 5-6-42. Appellants offered no evidence justifying their failure to order the transcript. See Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 500 (2) (458 SE2d 377) (1995). This Court has found unreasonable delays of much shorter duration. See, e.g., Neese v. Long, 178 Ga. App. 105, 106 (341 SE2d 861) (1986) (51-day delay); Taylor v. Thompson, 152 Ga. App. 547, 548 (263 SE2d 487) (1979) (30-day delay). These circumstances confirm that the trial court did not abuse its discretion.

Decided March 11, 1998.

Michael B. King, for appellants.

Smith, Howard & Ajax, James T. Brieske, Fain, Major & Wiley, John K. Miles, Jr., Kim M. Jackson, for appellees.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0173.
    JONES et al. v. DYKES et al.
    (497 SE2d 828)
   Judge Harold R. Banke.

Jeff and Margaret Dykes filed this action against Susan L. Jones, Selena May, Alan May, and Terry May (collectively “Jones”) seeking cancellation of a deed and a writ of possession. After the jury rendered a plaintiffs’ verdict, Jones initiated this appeal, enumerating four errors.

At the outset, we note that the appellate record does not include a trial transcript. Although Jones attempted to reconstruct the transcript, the parties could not agree on her version of events. See OCGA § 5-6-41 (g). Jones filed a petition to approve defendant’s recollection of evidence at trial, but the trial court denied it on a finding that Jones’ recollection was “not a full, complete, and accurate presentation of the evidence.” Jones has not appealed that finding. Doster v. State, 218 Ga. App. 174, 175 (460 SE2d 818) (1995).

This case purportedly arose after a fire destroyed the home of Ezra Logue, Susan Jones’ father. Logue’s good friend, Mrs. J. H. Smith, Sr., purportedly permitted him to move into a house on the property at issue in 1970. Two years later, Susan Jones joined him. On June 18, 1973, after Logue had died, Mrs. Smith’s son, J. H. Smith, Jr., purportedly executed and recorded a deed conveying the property at issue to Susan Jones (nee Cravey). However, when Mrs. Smith died in 1975, she left the property at issue to another son, Eugene, who properly conveyed it to the Dykes. Held:

1. We reject Jones’ contention that a seven-year statute of repose bars Dykes’ action. “[TJhere is now no statute of limitation per se on the bringing of actions for recovery of land.” Pindar & Pindar, Ga. Real Estate Law & Procedure (4th ed.), § 12-3 (1993); Hughes v. Purcell, 135 Ga. 174, 175 (7) (68 SE 1111) (1910). Although Georgia law recognizes an equitable seven-year limit on suits for cancellation of deeds, the absence of a transcript prevents us from reviewing whether that issue was properly rejected by the trial court, particularly when the Dykes alleged both fraud and incompetence. Hosseini v. Donino, 222 Ga. App. 697 (1) (475 SE2d 665) (1996) (In the absence of a trial transcript, we must assume the correctness of the trial court’s rulings); Payton v. Daughtry, 223 Ga. 438, 439 (1) (156 SE2d 29) (1967).

2. The lack of a transcript likewise precludes our review of Jones’ contention that the trial court violated OCGA § 44-2-20 by admitting Mrs. Smith’s son’s “ex parte unrecorded affidavit.” A finding of the requisite harm is not possible in its absence. CSX Transp. v. Barnett, 199 Ga. App. 611, 612 (1) (405 SE2d 506) (1991).

3. Nor can we review Jones’ third enumeration which challenges a jury charge. Absent a showing that Jones properly raised and preserved this argument, we cannot reach it. See Smith v. State, 268 Ga. 42, 43 (2) (485 SE2d 189) (1997). This Court reviews enumerations to correct errors committed by trial courts. It lacks jurisdiction to consider arguments presented for the first time on appeal. Jackson v. Ga. Lottery Corp., 228 Ga. App. 239, 245 (2) (491 SE2d 408) (1997); McDaniel v. State, 221 Ga. App. 43, 46 (1) (470 SE2d 719) (1996).

4. Jones’ final enumeration asserts that the trial court’s decision to cancel the deed from J. H. Smith, Jr. to Susan Jones (nee Cravey) was error because J. H. Smith, Jr. was not a party to this action. ‘Where it is claimed that the plaintiff has failed to join an indispensable party, the issue must be raised by motion to dismiss filed pursuant to OCGA § 9-11-19. . . . Otherwise, such defenses are deemed waived. [Cit.]” Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 (1) (304 SE2d 442) (1983). The record fails to reveal that this issue was properly presented to the trial court, a fact which distinguishes North American Acceptance Corp. v. Ramey, 217 Ga. 476 (123 SE2d 253) (1961), the sole case on which Jones relies. In any event, we fail to see how Smith’s absence harmed Jones. Barnett, 199 Ga. App. at 612 (1); compare S. D. H. Co. v. Stewart, 135 Ga. App. 505, 508 (2) (218 SE2d 268) (1975). Jones’ claim of harm arising from her inability to cross-examine Smith is undermined by her failure to subpoena him. Bass v. State, 208 Ga. App. 859, 861 (2) (432 SE2d 602) (1993); OCGA § 24-9-63.

Decided March 11, 1998.

Dewey N. Hayes, Jr., for appellants.

Tom K. Smith, for appellees.

5. We reject the Dykes’ request for sanctions pursuant to Court of Appeals Rule 15 (b). Although we discern no reasonable ground upon which Jones could have anticipated a reversal, the appeal was not entirely frivolous. Blomberg v. Cox Enterprises, 228 Ga. App. 178, 181 (2) (491 SE2d 430) (1997).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Mrs. J. H. Smith, Sr. was Margaret Dykes’ grandmother.


text:
    A98A0178.
    FRANCIS v. THE STATE.
    (497 SE2d 827)
   Judge Harold R. Banke.

Amad Anthony Francis, a 17-year-old high school student, was convicted of possessing less than an ounce of marijuana. He enumerates three errors on appeal.

This case arose after customs officers notified the Tri-Cities Narcotics Task Force that a package containing cocaine had been shipped from the Virgin Islands to Francis’ address, the apartment he had shared with his father and stepmother for less than four months. Task Force officers procured the package and obtained a search warrant. After the magistrate issued the warrant, agents arranged a controlled delivery. They hand-delivered the package to Francis’ father, who signed for it. Shortly thereafter, seven plainclothes officers converged on the apartment. One used a battering ram on the door, which was partially open. Upon entering with guns drawn, the agents yelled, “Police, search warrant.” The first two agents pursued Francis’ father, who ran out the back door. The third arrested Francis, who was standing in the living room. The agents retrieved the 261 grams of cocaine they had delivered and discovered less than an ounce of marijuana, including seeds and butts, in an ashtray. Francis and his father were arrested for trafficking in cocaine and possession of marijuana. Held:

1. The evidence, viewed in the light most favorable to the verdict, was insufficient to permit the jury to find Francis guilty of possession of marijuana beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). “ ‘Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in [an] illegal act, is insufficient to support a conviction.’ ” Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995).

The record shows that agents discovered marijuana seeds in the upstairs bedroom, but presented no evidence connecting Francis with the bedroom. Although they also found marijuana butts in an ashtray on an end table in the living room and loose marijuana in a Macy’s box under the coffee table, they found nothing on Francis to connect him with it. The area where the butts and loose marijuana were located was freely accessible to all residents of the apartment. Francis made no inculpatory or false statements, possessed no incriminating paraphernalia, had no prior drug convictions, and did not try to flee. See Ryans v. State, 226 Ga. App. 595, 596-597 (1) (487 SE2d 130) (1997). Francis’ co-defendant did not implicate him. See Williams v. State, 207 Ga. App. 782, 784 (4) (429 SE2d 153) (1993). Nor did the State establish that Francis was under the influence of marijuana. Although there was conflicting testimony about the odor of marijuana in the apartment, an agent who recalled it conceded that the smell could linger for days.

Where, as here, the State provides no direct evidence of actual possession, a conviction may be sustained with proof of constructive possession. But spatial proximity to contraband, without more, is insufficient to support a finding of constructive possession. Ryans, 226 Ga. App. at 596 (1). Moreover, when proof of constructive possession depends on circumstantial evidence, such evidence “ ‘must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis.’ ” Paden, 216 Ga. App. at 189 (1). Here, the State presented no evidence meeting that criteria. See Ryans, 226 Ga. App. at 596-597 (1). Although officers found less than $200 in small bills on Francis, that and his mere presence in the apartment is insufficient to exclude every other reasonable hypothesis other than he possessed the marijuana.

2. In light of this finding, we need not reach the remaining enumerations.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.

Decided March 11, 1998.

Elizabeth A. Baker, for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

       The trial court directed a verdict on the trafficking charge against Francis.

       The people were not well served by the State’s efforts in this appeal. The State’s response to the important issues raised in this enumeration consisted of three conclusory sentences. The first stated, without citation to the record, that Francis was “standing roughly three feet from marijuana” sitting on a coffee table. See Court of Appeals Rule 27 (c) (3) (i). The second stated, without citation to legal authority, the dubious conclusion that such evidence was sufficient to raise an inference of constructive possession. The third erroneously concluded that such inference satisfied the requisites of Jackson v. Virginia.