author: Pope, Presiding Judge.

text:
    A98A2012.
    ALDRIDGE v. THE STATE.
    (515 SE2d 397)
   Pope, Presiding Judge.

A jury convicted William Nelson Aldridge of possession of methamphetamine with intent to distribute (OCGA § 16-13-30), possession of less than one ounce of marijuana (OCGA § 16-13-30), driving under the influence of drugs (OCGA § 40-6-391), operating a motor vehicle with an expired license plate (OCGA § 40-2-80), driving without headlights (OCGA § 40-8-20), and no proof of insurance (OCGA § 40-6-10). Aldridge appeals from the order denying his motion for new trial, raising eight enumerations of error. We affirm.

1. Aldridge contends the trial court erred in denying his motion for a directed verdict on Counts 1 and 2 of the indictment, possession of methamphetamine with intent to distribute and possession of less than one ounce of marijuana. The standard of review for a denial of a motion for directed verdict of acquittal when the sufficiency of evidence is challenged is whether, under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt the defendant guilty of the offenses charged. Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998); Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996). In reviewing the denial of a motion for directed verdict, we may consider all the evidence in the case, and we must view the evidence in the light most favorable to the verdict. Covington v. State, 226 Ga. App. 484 (1) (486 SE2d 706) (1997). Viewed in this light, the record reveals the following:

On September 23, 1997, at about 1:53 a.m., Mitchell County Sheriff’s Deputies Luckey and Hayes observed a car traveling toward them on Highway 300. The car was being operated without headlights. Just as the deputies activated their blue lights and turned the patrol car around to follow, the driver pulled over onto the shoulder of the highway. As the deputies drove up behind the car, they saw the driver reach over the seat as if he were placing something on the floorboard behind the passenger seat.

Although Aldridge was able to produce a valid driver’s license, he had no proof of insurance. Aldridge searched through the front of the vehicle, looking for an insurance card while explaining to the deputies that he was driving a car that belonged to a friend, Jody Cox. The deputies had their dispatcher telephone Cox; Cox claimed the car but admitted he had no insurance. While Aldridge was looking through the car trying to find an insurance card, the deputies noticed the car’s tag had expired. They also observed signs that Aldridge was intoxicated: his speech was slurred, his eyes were glassy, his gait was unbalanced, and he leaned frequently on the car. The deputies asked Aldridge if he was under the influence of alcohol. Aldridge said “no” and agreed to take an alco-sensor test. The deputies then radioed a senior deputy, Allegoode, who had the alco-sensor device. While awaiting Deputy Allegoode’s arrival, the deputies asked Aldridge if he would consent to a search of his car. Aldridge agreed.

While en route, Deputy Allegoode radioed for a wrecker to tow Aldridge’s car. When Allegoode arrived, he administered the alcosensor test, which Aldridge passed with a .00 test result. The deputies did not perform any other field sobriety tests because Aldridge was so unsteady on his feet. Although Aldridge passed the alcosensor test, the deputies still suspected Aldridge was under the influence of something because he had been driving without headlights and showed signs of intoxication. When asked if he was under the influence of any medication, Aldridge responded “no.” When asked if he had any contraband in the car, Aldridge again responded “no” and told the deputies they could search his car. He even agreed to sign a consent to search form. However, the deputies were out of consent forms.

Deputy Luckey searched Aldridge’s car. He found a black plastic glasses case on the floorboard behind the passenger’s seat. A plastic bag was sticking out from the corner of the case. Inside the bag was less than an ounce of a green leafy material which tested positive for marijuana. The deputies also found in the case a plastic bag containing a large chunk and several individually packaged smaller “rocks” of a white substance which tested positive for methamphetamine. The large chunk and the individually packaged rocks of methamphetamine had a combined weight of 18.8 grams and an estimated street value of $1,800. A drug task force agent testified that the amount of methamphetamine found, its street value, and the way it was packaged evidenced a plan to distribute the drug. The deputies also found a small glass vial and a butane torch in the car. The vial and the torch are often used to smoke methamphetamine. The vial contained methamphetamine residue.

Upon discovering the suspected contraband, deputies Hayes and Luckey placed Aldridge under arrest. Deputy Luckey read Aldridge the implied consent warning and asked him to submit to a urine test. Aldridge refused. When they arrived at the police station, the deputies again read Aldridge his implied consent warning and asked him to consent to a urine test. Again, Aldridge refused. During the course of the entire incident, Aldridge never offered an explanation for why he was driving without his headlights. The deputies found nothing wrong with the car. Aldridge did tell the officers he was driving to the gas station to get gasoline. However, the station he said he was going to had been closed for several hours.

At trial, Jody Cox testified that the car Aldridge was driving and the glasses case found in it belonged to him. But Cox testified that when Aldridge took the car Cox had no reason to believe there was any contraband in it. The drugs were not his. Further, he had no reason to believe that anyone else who had access to the car would have put drugs in it.

Aldridge argues that mere presence in the vicinity of contraband, without more, does not establish possession and there must be a showing of possession by him other than mere spatial proximity. While we agree with those principles of law, they are inapplicable here. Although Aldridge was driving a borrowed car and the drugs were discovered in a place out of Aldridge’s view, the circumstantial evidence was sufficient to show Aldridge had sole, actual possession of the drugs.

First, when the deputies blue-lighted the car, they saw Aldridge reach over the driver’s seat as if he were concealing something behind the passenger’s seat where the contraband was in fact found. Second, although others may have had access to the car prior to Aldridge’s driving it, Jody Cox testified that he had no knowledge of the drugs being in his car or in his glasses case. Further, Cox had no reason to believe that anyone else who may have had access to the car would have put drugs in it. Third, Aldridge appeared intoxicated. His speech was slurred; his eyes, glassy; his gait, impaired. Fourth, although Aldridge agreed to take an aleo-sensor test, and passed it, he declined to take a urine test. The jury was authorized to infer from this that a urine test would reveal the presence of methamphetamine or marijuana in Aldridge’s system. See Rayburn v. State, 234 Ga. App. 482 (506 SE2d 876) (1998); Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988). Further, if the jury inferred the presence of drugs in Aldridge’s system, they were authorized to infer that he previously possessed the drugs ingested. See Green v. State, 260 Ga. 625, 626 (1) (398 SE2d 360) (1990).

This evidence shows a connection between Aldridge and the contraband that goes beyond mere spatial proximity. In fact, the evidence and all the inferences logically drawn from the evidence supports a conclusion that Aldridge had direct, physical control over the drugs because he had been using them and had concealed them when the deputies pulled him over. Consequently, we believe this evidence, though largely circumstantial, was sufficient to support the jury’s finding that Aldridge was in sole, actual possession of the methamphetamine and marijuana found in the car. See, e.g., Noble v. State, 225 Ga. App. 470, 471 (484 SE2d 78) (1997); Heath v. State, 186 Ga. App. 655, 656-657 (1) (368 SE2d 346) (1988). Also, the state offered physical evidence and expert opinion testimony from which a jury could infer Aldridge’s intent to resell the methamphetamine he possessed, e.g., James v. State, 214 Ga. App. 763, 764 (1) (449 SE2d 126) (1994). Because the evidence is sufficient to support Counts 1 and 2 of the indictment, we find no error.

2. Aldridge argues that his refusal to submit to a urine test should not have been admitted into evidence because his arresting officers failed to read the implied consent warning in strict compliance with OCGA § 40-5-67.1 (b). Aldridge raised this as error for the first time in his motion for new trial. Aldridge has not shown, and the transcript before us does not reveal, that Aldridge filed a motion in limine or interposed a timely objection to this evidence on this basis at trial. Consequently, this allegation of error is not preserved for our review. Kollman v. State, 231 Ga. App. 630 (1) (498 SE2d 745) (1998).

3. Aldridge argues the trial court erred in denying his motion to suppress the methamphetamine and marijuana evidence because it was obtained as the result of an illegal, warrantless search of his car. Specifically, Aldridge argues that because he was detained for approximately 45 to 50 minutes before giving his consent to search, he was “in custody” and his consent was, therefore, invalid. We do not agree.

The fact that Aldridge’s car was being driven without headlights, creating a traffic hazard, authorized the officers to investigate Aldridge’s condition as well as that of the car. See Pupo v. State, 187 Ga. App. 765 (1) (371 SE2d 219) (1988); Gabbidon v. State, 184 Ga. App. 475, 476 (2) (361 SE2d 861) (1987). The deputies spent some time initially checking Aldridge’s license and searching for proof that Aldridge’s car was insured. During this initial investigation, Aldridge exhibited signs of intoxication. Upon request, Aldridge agreed to take an alco-sensor test. However, because Deputy Allegoode had the alcosensor device, Aldridge had to wait 15 to 30 minutes for him to arrive. When Aldridge passed the alco-sensor test, the deputies suspected his symptoms of intoxication were caused by a drug and, consequently, asked to search the car. Having effected a valid traffic stop, the officers were authorized to request consent to search the automobile. Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996). Aldridge agreed and offered to sign a consent form. Before the deputies actually searched the car, they spent about 10 to 15 minutes looking for the consent to search forms, but found none. The total elapsed time from the initial stop to the search was, at the most, approximately 45 to 50 minutes.

We do not believe that the delays occasioned by the wait for Deputy Allegoode and his alco-sensor device and by the deputies’ search for consent forms was unreasonable, evidenced a lack of diligence, or converted the investigation into a custodial situation. “The stop did not exceed the bounds of an investigative detention, so [Aldridge’s] consent to search was not the product of an illegal detention. The evidence supports the court’s finding that his consent was freely and voluntarily given.” Taylor v. State, 230 Ga. App. 749, 751 (1) (c) (498 SE2d 113) (1998); Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996); Mallarino v. State, 190 Ga. App. 398, 400 (2) (379 SE2d 210) (1989).

4. In his fourth enumeration of error, Aldridge claims the trial court erred in refusing to suppress the .00 alco-sensor test result because the test was administered before Aldridge was given Miranda warnings. Of course, as we have repeatedly stated, Miranda warnings are only required when a person is taken into custody or otherwise deprived of his freedom of action in some significant way. State v. Kirbabas, 232 Ga. App. 474 (502 SE2d 314) (1998). As we stated above, the investigatory delays in this case did not convert Aldridge’s detention into custody. Consequently, Miranda warnings were not required prior to administering the alco-sensor test. Id.

5. Aldridge also enumerates as error the trial court’s admission of a photograph taken of him at the Mitchell County jail shortly after his arrest. Aldridge objected, stating that the photograph improperly placed his character into evidence. The photograph was introduced to identify Aldridge and to show his appearance shortly after his arrest. The photograph does not suggest that he had been the subject of prior arrests or convictions for other offenses. “It is well settled that the mere admission into evidence of a picture of defendant with an identifying number does not indicate that the defendant was guilty of any previous crime and does not place his character in issue.” (Citations and punctuation omitted.) Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195) (1987). Further, the photograph did show Aldridge’s appearance shortly after his arrest and thus was relevant as some evidence of his intoxication. Mattarochia v. State, 200 Ga. App. 681, 683 (4) (409 SE2d 546) (1991). We find no error.

6. Aldridge argues the court erred in refusing to allow him both opening and closing final arguments in violation of OCGA § 17-8-71. OCGA § 17-8-71 provides: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.”

While cross-examining the State’s witnesses, Aldridge identified two exhibits and marked them as Defendant’s Exhibits 1 and 2. During his cross-examination of Deputy Hayes, Aldridge marked as Defendant’s Exhibit 1 Deputy Hayes’ supplemental report of Aldridge’s arrest. After doing so, he handed the report to Deputy Hayes and had him read into evidence highlighted portions of it. During his cross-examination of Deputy Allegoode, Aldridge marked as Defendant’s Exhibit 2 a copy of Deputy Allegoode’s arrest report. After doing so, he handed Allegoode the report and had him read highlighted portions of it into evidence. Although neither document was formally admitted into evidence, portions of the contents of both defense exhibits were presented to the jury, that is, they were “introduced” into evidence. Presenting the documents’ contents to the jury was “the equivalent of a formal tender of evidence divesting [Aldridge] of the right to open and close final arguments.” See Kennebrew v. State, 267 Ga. 400, 403-404 (4) (480 SE2d 1) (1996); Warnock v. State, 195 Ga. App. 537 (2) (394 SE2d 382) (1990). As the Supreme Court recently explained, it does not matter that the evidence was not formally tendered or was presented on cross-examination or for impeachment purposes because “[u]nder OCGA § 17-8-71, courts must inquire whether evidence other than the oral testimony of a criminal defendant is ‘introduced,’ not the purpose for which the evidence was offered.” Kennebrew v. State, 267 Ga. at 404 (4), in. 2. The Supreme Court’s holding was meant to prevent a defendant from circumventing OCGA § 17-8-71 by presenting evidence in informal or unorthodox ways and then attempting to retain the right to open and close final arguments simply by failing to make a formal motion for the introduction of the evidence. Id. at 404 (4). “[A] defendant cannot be permitted to present evidence to the jury which should otherwise be formally offered.” Id.

7. Aldridge contends the trial court erred in refusing to give his requested charge on “mere spatial proximity” to contraband. After completing its final jury charge, the trial court inquired if Aldridge had any exceptions to the charge. Aldridge noted his objection to a charge defining actual and constructive possession and then said “that’s the only exception I have about the possession charge.” After briefly discussing a portion of the charge pertaining to the DUI offense, Aldridge stated: “I have no other objections.” Consequently, any issue with respect to the request to charge on proximity was waived when Aldridge failed to object on this basis after the court asked for exceptions following the charge. Johnson v. State, 229 Ga. App. 586, 587 (2) (494 SE2d 382) (1997).

8. Finally, Aldridge complains that the court’s jury instruction defining joint or shared possession was misleading because it may have prompted the jury to believe they could convict Aldridge if they found he and Cox shared possession of the contraband. We do not agree.

In this case, the court twice charged the jury that they could only convict Aldridge if they found he was in sole, actual possession of the contraband. The jury instruction, taken from the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 136, simply explained what sole possession meant by contrasting it with the definition of joint possession. While under the circumstances of this case it may have been the better practice to adjust the charge by omitting the definition of joint possession, “[w]here a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” (Citations and punctuation omitted.) Callaway v. State, 230 Ga. App. 369, 370 (2) (496 SE2d 349) (1998). Consequently, we find no error.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Aldridge contends that Division 6 of our opinion cannot be reconciled with our recent decisions in Whitehead v. State, 232 Ga. App. 140, 141 (2) (499 SE2d 922) (1998) and Davis v. State, 235 Ga. App. 256, 257 (510 SE2d 537) (1998). Citing Whitehead, Aldridge contends he had Deputies Hayes and Allegoode read paragraphs from their police reports into evidence simply to lay the required evidentiary foundation pursuant to OCGA § 24-9-83 for impeaching the deputies with their prior inconsistent statements. Citing Davis, Aldridge argues that the information read into evidence was only “foundational” and therefore did not cause him to lose the right to open and conclude closing argument. We do not agree.

Before a witness may be impeached with a prior inconsistent statement, the statement must be “called to his mind with as much certainty as possible.” OCGA § 24-9-83. The purpose behind what at common law was known as “Queen Caroline’s Rule” is to allow the witness an opportunity to admit, explain, or deny the inconsistency before testimonial or documentary proof is offered regarding the statement. Horne v. State, 204 Ga. App. 81 (418 SE2d 441) (1992); Queen Caroline’s Case, 2 Brod. & Bing. 284, 313 (1820). To satisfy the foundational requirement for impeaching a witness with a prior, written statement, the cross-examiner must show or read the witness his inconsistent statement and ask him if he recalls making it. OCGA § 24-9-83; Daniels v. State, 203 Ga. App. 873, 874 (1) (418 SE2d 137) (1992). “[T]he statute does not require that the prior inconsistent statement be admitted into evidence before it is used for impeachment purposes.” Duckworth v. State, 268 Ga. 566, 568 (2) (492 SE2d 201) (1997); Whitehead v. State, 232 Ga. App. at 141 (2). Of course, if the written statement is admissible, the defendant may choose to introduce it into evidence and then cross-examine the witness on its contents. See Eppinger v. State, 231 Ga. App. 614 (1) (500 SE2d 383) (1998). However, a defendant does so at his own peril because by impeaching a witness in this manner, he introduces evidence and loses the right to open and conclude final arguments under OCGA § 17-8-71. Id.; Kennebrew v. State, 267 Ga. 400, 404 (4) (480 SE2d 1) (1996). See also Warnock v. State, 195 Ga. App. 537, 538-539 (2) (394 SE2d 382) (1990).

In Davis v. State, 235 Ga. App. at 257, we held that defense counsel’s reading a prior inconsistent statement to a witness before questioning him about it was simply “foundational” and did not constitute the introduction of evidence because this procedure comported with that set forth in OCGA § 24-9-83. In the instant case, however, defense counsel went beyond “mere cross-examination” and did more than recall a contradiction to the deputies by reading their prior inconsistent statements to them. Instead, counsel had each deputy read into evidence paragraphs taken from police reports that had been marked and handled before the jury as defense exhibits. Further, those paragraphs contained information addressing matters other than the challenged contradictory statements. Thus, testimony contained in the police report was presented to the jury just as any other item of evidence. Applying the Supreme Court’s analysis in Kennebrew v. State, 267 Ga. at 404 (4), presenting a document’s contents in this manner was the equivalent of a formal tender or “introduction of evidence” for purposes of OCGA § 17-8-71. By introducing evidence, Aldridge lost the right to open and conclude final closing argument. Id. Accordingly, we deny Aldridge’s motion for reconsideration.

Decided February 2,1999

Reconsideration denied March 24,1999

Vansant, Corriere & McClure, John M. Vansant, Jr., Michael W. Strahan, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A98A2454.
    A98A2455.
    A98A2456.
    DALTON v. THE STATE. BISHOP v. THE STATE. SIMMONS v. THE STATE.
    (513 SE2d 745)
   Pope, Presiding Judge.

James Ricky Dalton, Charles Edwin Bishop and Steven Bryan Simmons appeal from the trial court’s denial of their motions for new trial following their convictions for armed robbery, aggravated assault, possession of a firearm during the commission of a felony and possession of a sawed-off shotgun. We affirm. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [appellants] no longer enjoy[ ] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Short v. State, 234 Ga. App. 633 (507 SE2d 514) (1998); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Beaverdale Superette Robbery

Viewed in that light, the evidence shows that on September 1, 1995, Clyde Queen, owner of the Beaverdale Superette in Whitfield County, Georgia, reported that his small maroon pick-up truck had been stolen. Queen had left the truck in the parking lot of his store the previous evening, with a load of garbage and a weed-eater in the truck bed. When he returned the next morning, it was gone. Deborah Simmons testified that at or around this same time, her husband, appellant Steve Simmons, drove her from their home in Tennessee to the Beaverdale Superette to look for appellants Dalton and Bishop. Steve Simmons told her that Bishop and Dalton had gone there earlier in the day to rob a man, and they had not returned. He was concerned that the store owner had killed them. They found the store closed, so after driving around for a while, they drove back to Tennessee. When they returned home, they found Dalton and Bishop waiting for them, sitting on the tailgate of a red pick-up truck, with a weed-eater in the back.

The following week, on September 7, 1995, Queen arrived at the Beaverdale Superette shortly before 7:00 a.m. to open the store. A small blue-gray car followed him into the store parking lot and pulled between the store and the gas pumps. As Queen walked to his store, he was carrying a brown paper sack with several blue bank bags inside containing around $25,000 in cash and $7,000 in checks. A man then got out of the passenger side of the blue-gray car and, without saying a word, shot Queen in the head with a sawed-off shotgun. The man took the paper bag and got back in the car, which sped away. Although seriously injured, Queen survived the shooting.

Later that morning, police officers recovered a shotgun and paper bag with fresh blood on it along the road between the store and the Tennessee state line. About a week later, three blue bank bags containing checks made out to the Beaverdale Superette were discovered in a ditch beside the same road. Subsequent testing by the GBI determined that the shotgun police found matched shotgun wadding found at the scene of the robbery and that the blood on the paper bag belonged to Queen.

Donald Ray Hyatt, who was indicted along with appellants and pled guilty to one count of armed robbery, testified at trial that early on the morning of September 7, he was out riding with Bishop in a blue car belonging to Bishop’s wife. After stopping to pick up Dalton and Steve Simmons, the four headed from Tennessee into Georgia. They sat at a church for a while, and when they saw Queen’s car go by, they pulled out and followed him into the store parking lot. Queen was walking to the store with a paper bag in his hand when Dalton jumped out of the back passenger seat and shot Queen in the side of the head. Dalton picked up the bag, jumped into the car and they sped off. As they drove back to Tennessee, they removed the money from the bags and threw the shotgun and the bags out the car window. They went to Steve Simmons’ apartment, where they divided the money. Hyatt testified that he got $2,000 to keep his mouth shut and the others divided the rest of the money. Bishop then drove Hyatt back to the motel where he was staying.

Debbie Simmons testified that on the morning of September 7, she received a call at work from Steve Simmons asking her to pick him up from a nearby fast food restaurant. He was locked out of their apartment, and a neighbor had given him a ride to the restaurant so he could call her. Steve Simmons told his wife over the phone that he had enough money to choke her. After she picked him up, they drove back to the apartment where Dalton was waiting. Steve Simmons then took her into the bathroom and showed her $7,000 in cash. Later that day, Debbie and Steve Simmons drove Dalton to his sister’s house so he could “lay low” for a few days. That evening, Debbie Simmons saw a television news report about the Beaverdale Superette robbery and asked Steve Simmons if they had shot a man for the money, and he said, “yes.” She also later heard Steve Simmons describing the shooting to someone in her presence and identifying Dalton as the shooter. Debbie Simmons testified that her husband used part of the $7,000 from the robbery to buy an old black Ford Mustang.

In addition, David Lee Couch, Debbie Simmons’s son-in-law, testified that Steve Simmons had told him about the robbery the day it happened. Steve Simmons said that Bishop had been driving and that Dalton had shot the man. David Couch also testified that Bishop himself had admitted his participation in the robbery.

The state also presented evidence that on the day that the appellants were arrested, Bishop’s father-in-law sold the small blue-gray Dodge car belonging to Bishop’s wife. Hyatt identified the car as the car used in the robbery, and various other witnesses identified the car as being similar to the car involved.

Deep Springs Superette Robbery

On the morning of September 21, 1995, Bill Lively, the owner of the Deep Springs Superette in Whitfield County, Georgia, arrived at his store shortly after 7:00 a.m. He carried several red bank bags as he walked to his store and began unlocking the gates covering the entrance. The bank bags contained about $5,000 in cash and $5,000 in food stamps and checks. As Lively got one lock undone and was in the process of unlocking the second one, he saw a black car pull up between the gas pumps and the store. A man got out with a sawed-off shotgun in his hand and said, “Give me that money bag.” Lively threw down the money bag and began running to his car. The man then shot him in the back of the head, grabbed the money bag and the car took off. Lively was able to summon help and survived the shooting.

At trial, a witness testified that sometime between 7:00 and 7:30 a.m., he observed a black Mustang, followed by a blue Dodge truck speeding down the road between the store and the Tennessee state line. He observed two people in the Mustang and one in the truck.

David Couch, who was indicted along with the appellants and pled guilty to one count of armed robbery, testified that Steve Simmons asked him to participate in the robbery at the Deep Springs Superette. About a week before the robbery, Steve Simmons drove David Couch and Dalton to Georgia, where they saw the Deep Springs Superette and the route they were going to take to and from Tennessee. David Couch and his wife, Stephanie, spent the night of September 20 with Steve and Debbie Simmons at their apartment. That night he and Steve Simmons discussed plans for the robbery. He also watched Steve Simmons saw off the barrel and stock of a 12-gauge shotgun to create a pistol grip.

On the morning of September 21, Dalton, Steve Simmons and David Couch left the apartment, with Steve Simmons driving his blue Dodge truck and David Couch driving Steve Simmons’ black Mustang. Dalton rode as a passenger in the Mustang and carried the shotgun. They arrived early and pulled onto a side street to wait. They saw Lively drive by a few minutes after 7:00 a.m., and David Couch and Dalton followed in the Mustang. Steve Simmons stayed in the truck further down the road. Lively was unlocking the gate when they arrived, and Dalton got out of the car with the shotgun. David Couch chose not to look at what transpired, but heard Dalton tell Lively to give him the money and heard the man trying to run. He then heard a gunshot. Dalton got back into the car with two red money bags, and they drove off. Steve Simmons pulled in behind them and they returned to Tennessee, where Dalton dropped the shotgun into a creek. They returned to the Simmons’ apartment where Stephanie Couch and Debbie Simmons remained, and the three men divided the money.

Debbie Simmons testified that prior to the September 21, 1995 robbery, she had gone with Steve Simmons to scout out locations and to obtain a shotgun from his mother. She said that the Couches spent the night with them the evening of September 20, and she heard Steve Simmons talking about how the robbery was going to occur: Steve Simmons and David Couch were to drive the vehicles and Dalton was to do the shooting. She also observed Steve Simmons and David Couch saw the barrel off the shotgun that night.

The next morning Steve Simmons and David Couch left, and she noticed that they had taken both the pick-up truck and the black Mustang. Later that morning, they returned with Dalton and David Couch, and Debbie Simmons saw two red money bags lying on the couch. She heard Steve Simmons and Dalton laughing and talking about how the man had screamed, and they made fun of David Couch because he was pale and quiet and appeared to be in shock. Debbie Simmons said that she and Steve Simmons later drove Dalton either home or to his job. On the way, they stopped at a wooded area on a back road near her apartment. Dalton had the red money bags hidden in a shirt, and Steve Simmons told him to go bury them. Dalton got out and hid them in the woods. Several months after the appellants were arrested, Debbie Simmons took authorities to the wooded area where they discovered the red bank bags.

Stephanie Couch also testified that she discussed the planned robbery with her husband on the evening of September 20 when they spent the night at her mother’s apartment. The next morning she heard sounds of Steve Simmons cooking, and heard him say that it was time to go pick up Rick. David Couch and Steve Simmons later left in the blue truck and the black Mustang. They returned about 7:20 that morning. David Couch handed her $1,600 in cash and was very pale and quiet.

Dalton took the stand to deny his involvement in the crimes. His employer also testified and produced work records, which he said indicated that Dalton had been at work on September 7 and 21,1995. However, on cross-examination, the state demonstrated that the records the employer had for September 7 actually reflected work done during July 1995, and that the records from September 21 did not indicate the time Dalton arrived at work.

Case No. A98A2454

1. As his first enumeration of error, Dalton argues that the trial court erred in allowing Debbie Simmons and Stephanie Couch to testify as to hearsay statements made by Steve Simmons and David Couch implicating Dalton. Dalton asserts that the state failed to prove a conspiracy to support the admission of these statements. The state argues that these statements were admissible under the exception to the hearsay rule allowing statements of co-conspirators. OCGA § 24-3-5.

“Hearsay statements made by a conspirator during the course of a conspiracy, including the concealment phase, are admissible against all conspirators. . . . Moreover, the trial judge may admit testimony or statements by co-conspirators before the conspiracy has been proved, provided that such existence is afterwards shown during the trial.” (Citations and punctuation omitted.) Guerra v. State, 210 Ga. App. 102, 105 (3) (a) (435 SE2d 476) (1993).

Blue v. State, 212 Ga. App. 847, 849 (3) (443 SE2d 635) (1994).

The state does not need to prove an express agreement between the parties in order to establish a conspiracy. “The essence of conspiracy is a common design, and conduct which discloses a common design may give rise to the inference of conspiracy. [Cit.]” Waldrip v. State, 267 Ga. 739, 747 (10) (b) (482 SE2d 299) (1997). “Presence, companionship and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy. [Cit.]” (Punctuation omitted.) Guerra v. State, 210 Ga. App. at 103 (1). Thus, a conspiracy may be proven by direct or circumstantial evidence. Id.

Dalton complains that the court erred in allowing Debbie Simmons to testify regarding Steve Simmons’ statement the week before the Beaverdale robbery that Dalton and Bishop had gone to Georgia to rob Queen. The state presented Hyatt’s testimony as to Dalton’s participation in the Beaverdale robbery. In addition, Debbie Simmons testified regarding Dalton’s presence at her apartment with Steve Simmons the morning of the robbery and that a week before the crime Steve Simmons took her to the Beaverdale Superette to look for Dalton and Bishop and that they returned to find Dalton and Bishop in possession of a truck remarkably similar to that stolen from the victim. The jury could have inferred from this evidence a common design among Steve Simmons, Dalton and Bishop to commit armed robbery, a design that could have begun at least a week before the crime actually occurred. See Waldrip v. State, 267 Ga. at 747. Accordingly, Steve Simmons’ statement explaining why they were going to look for Dalton and Bishop was admissible under the co-conspirator exception to the hearsay rule. See Waldrip v. State, 267 Ga. at 747 (10) (c); Fetty v. State, 268 Ga. 365, 371 (7) (489 SE2d 813) (1997).

Dalton also argues that the court erred in allowing Debbie Simmons and Stephanie Couch to testify regarding statements made by David Couch and Steve Simmons prior to the Deep Springs robbery. The state presented David Couch’s testimony of Dalton’s participation in the Deep Springs robbery, including a trip that David Couch, Steve Simmons and Dalton made a week before the crime to scout out the store. This evidence was corroborated by Debbie Simmons’ testimony that Dalton returned with David Couch and Steve Simmons on the day of the Deep Springs robbery and that Dalton hid the bank bags. The jury could have found from this evidence that Dalton, Steve Simmons and David Couch had come “to a mutual understanding to accomplish or pursue a criminal objective” and thus inferred that a conspiracy existed at least a week prior to the crime. See Duffy v. State, 262 Ga. 249, 250 (1) (416 SE2d 734) (1992). Therefore, statements by David Couch and Steve Simmons referring to Dalton’s planned involvement prior to the Deep Springs robbery were admissible against him. See Waldrip v. State, 267 Ga. at 747 (10) (c); Fetty v. State, 268 Ga. at 371 (7).

2. Dalton also contends that the evidence at trial was insufficient to support his conviction. The arguments raised by Dalton go to the weight and credibility of the evidence presented by the state. “[But] questions as to the credibility of witnesses are within the exclusive province of the jury. On appeal of a criminal conviction this Court does not weigh the evidence or determine the credibility of witnesses, but determines the sufficiency of evidence.” (Citations and punctuation omitted.) Horne v. State, 231 Ga. App. 864, 865 (1) (501 SE2d 47) (1998); Short v. State, 234 Ga. App. at 633; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Because we find that the evidence was sufficient to support the verdict against Dalton, we affirm the trial court’s denial of Dalton’s motion for new trial.

Case No. A98Á2455

3. Bishop raises two enumerations of error. First, he asserts that the evidence was insufficient to support the verdict against him and second, that the testimony of Hyatt regarding Bishop’s participation in the crime was uncorroborated. The primary evidence against Bishop came from the testimony of Hyatt, who was also charged in the Beaverdale robbery. While Georgia law does not allow a conviction based upon the uncorroborated testimony of an accomplice, OCGA § 24-4-8, such testimony may be corroborated by “[s]light evidence from an extraneous source identifying the accused as a participant in the criminal act.” Williams v. State, 234 Ga. App. 191 (1) (506 SE2d 237) (1998). The corroborating evidence may be circumstantial and may come from the testimony of other accomplices to the crime. Hanifa v. State, 269 Ga. 797, 808-809 (7) (505 SE2d 731) (1998); Williams v. State, 234 Ga. App. at 191.

At trial, Hyatt gave a detailed account of the events surrounding the Beaverdale robbery and Bishop’s role as driver. This testimony was corroborated by Debbie Simmons’ testimony that she and Steve Simmons drove to the Beaverdale Superette the week before the robbery to find Bishop and Dalton, who had gone there to rob Queen. When they did not find Bishop and Dalton, they returned home where they discovered Bishop and Dalton sitting on the tailgate of a truck matching the description of the one stolen from Queen at the time. Hyatt’s testimony was further corroborated by the testimony of Queen and others describing the car involved in the robbery and identifying a picture of Bishop’s wife’s car as being similar to the car involved. The evidence that Bishop’s father-in-law tried to sell this car the day Bishop was arrested for the Beaverdale robbery provided further support. Moreover, David Couch testified that Bishop admitted his participation in the robbery. We find that this evidence sufficiently corroborates Hyatt’s testimony and that the evidence at trial was sufficient to support Bishop’s conviction. See Hanifa v. State, 269 Ga. at 808-809 (7); Williams v. State, 234 Ga. App. at 192 (1); Horne v. State, 231 Ga. App. at 865 (1). Compare Brookshire v. State, 230 Ga. App. 418 (496 SE2d 757) (1998) (where the only corroborating evidence was the “mere spatial proximity” of the defendant to the contraband).

Case No. A98A2456

4. Simmons also raises as his first two enumerations of error that the evidence was insufficient to support his conviction and that the testimony of the accomplices to the robberies was not sufficiently corroborated.

Hyatt testified as to Simmons’ participation in the Beaverdale robbery. Hyatt’s testimony was corroborated by Debbie Simmons’ evidence that Simmons called her on the day of the robbery, showed her $7,000 and later that evening admitted that he had been involved in the Beaverdale robbery and the shooting of Queen. It was further corroborated by David Couch’s testimony that Simmons had admitted participating in the Beaverdale robbery.

David Couch testified regarding Simmons’ participation in the Deep Springs robbery. This testimony was corroborated by the testimony of Debbie Simmons and Stephanie Couch as to the events the evening before and the morning of the robbery. The evidence that Simmons owned a black Mustang and a blue Dodge truck and that witnesses could place two such vehicles in the vicinity of the robbery provided additional support.

We find that the record contains sufficient evidence both to corroborate the accomplice’s testimony and to support Simmons’ conviction. See Hanifa v. State, 269 Ga. at 808-809 (7); Smith v. State, 234 Ga. App. 586, 593-594 (7) (b), (c) (506,SE2d 406) (1998); Williams v. State, 234 Ga. App. at 192 (1); Horne v. State, 231 Ga. App. at 865 (1).

5. In his next enumeration of error, Simmons argues that the trial court erred in admitting into evidence a sketch of the Beaverdale robbery scene drawn by Deputy Bobby Elrod, based upon the testimony of Officer Bryan Dyer, who assisted Elrod in preparing the sketch by taking measurements. Even assuming that it was error to admit the sketch based on Dyer’s knowledge of the scene, such error was harmless because Deputy Elrod testified later in the trial and he authenticated the sketch himself.

6. Simmons’ next two enumerations assert that the trial court erred in allowing testimony by David Couch and Debbie Simmons as to statements that Steve Simmons made after the Beaverdale robbery, but before the Deep Springs robbery. He argues that these statements do not fit into any exception to the hearsay rule because the conspiracy with regard to the Beaverdale robbery was over at the time the statements were made.

However, Simmons raised no objection to this testimony at trial.

Although one of [Simmons’] co-defendants objected, that objection did not inure to [Simmons’] benefit because he did not join in it. Where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review. [Cit.]

(Punctuation omitted.) Williams v. State, 233 Ga. App. 217, 219 (2) (504 SE2d 53) (1998).

Even if the objection had been preserved, however, we find that this statement did fit within the conspiracy exception to the hearsay rule because the jury could have inferred from the evidence that (1) a conspiracy to conceal the Beaverdale robbery was still in place at the time the statement was made or (2) an agreement to engage in the Deep Springs robbery was already underway. Because Simmons was a party to both conspiracies, the evidence was properly admissible against him. See Waldrip v. State, 267 Ga. at 747 (10) (c); Fetty v. State, 268 Ga. at 371 (7).

7. Simmons also contends that the trial court erred in allowing Detective Wayne Saylors to testify regarding the consistency between information given to him by David Couch and Hyatt and by an unknown tipster. He argues that, in effect, the court allowed Saylors to give hearsay testimony as to what the tipster said.

Once again, Simmons failed to pose his own objection, and thus waived this ground for appeal. Williams v. State, 233 Ga. App. at 219 (2). Nevertheless, we find that even if the admission of this testimony was error, it was harmless because it was merely cumulative of other properly admitted evidence. Jenkins v. State, 268 Ga. 468, 470 (2) (491 SE2d 54) (1997); Smith v. State, 266 Ga. 827, 831 (4) (470 SE2d 674) (1996).

8. Simmons further contends that the trial court erred in admitting into evidence an empty shotgun shell because its connection to the crime was not established. David Couch testified that Dalton threw the 12-gauge shotgun used in the Deep Springs robbery into a creek just over the Tennessee line. Although authorities never located the gun, the state introduced into evidence a 12-gauge shell found at the site identified by David Couch. We find that the shotgun shell was properly admitted as evidence in support of David Couch’s testimony.

Decided February 19,1999

Reconsideration dismissed March 24,1999

Michael A. Corbin, for appellant (case no. A98A2454).

Coppedge, Leman & Ward, James T. Ward, for appellant (case no. A98A2455).

Goddard, Thames, Hammontree & Bolding, Matthew D. Thames, for appellant (case no. A98A2456).

Kermit N. McManus, District Attorney, for appellee.

Judgments affirmed.

Beasley, P. J, and Ruffin, J., concur.


author: Barnes, Judge.

text:
    A99A0521.
    MAYBERRY v. THE STATE.
    (514 SE2d 268)
   Barnes, Judge.

Following his indictment for aggravated assault, felony murder, and concealing the death of a person, Kevin Mayberry was tried before a jury. The trial court granted Mayberry’s motion for a directed verdict of acquittal on the concealing charge and the jury found him guilty only of the lesser included offense of voluntary manslaughter. On appeal, Mayberry contends there was insufficient evidence to support his conviction. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that the body of Royce Phillip Croft was found in Room 42 of the Big 7 Motel in Valdosta. A medical examiner, employed by the Georgia Bureau of Investigation, testified that he performed an autopsy on Croft and determined that the combined effect of crushing injuries to his neck, stab wounds to his chest, and blunt force injuries to his head caused Croft’s death. According to the medical examiner, any one of these three lethal injury sequences could have caused Croft’s death.

At trial, Robert Allen Pilkinton testified that he went to Room 45 of the Big 7 Motel around 2:30 p.m. on September 12, 1997. Later that evening, Pilkinton and Mayberry went to Croft’s room. According to Pilkinton, they drank beer in the room until Croft accused Pilkinton of taking some of his money. After hitting Pilkinton with his fist, Croft pulled out a knife and told Pilkinton he was going to kill him. Pilkinton then punched Croft in the mouth, threw him on the ground and started kicking him. Pilkinton testified that when Croft was “just laying there” and “still breathing,” he told Mayberry that they needed to get out of there. Mayberry replied, “[T]he man can identify us” and Pilkinton saw Mayberry stab Croft with a knife while Pilkinton walked out the door of the room. Pilkinton returned to Room 45 and told his brother what had happened. Approximately two minutes later, Mayberry also returned to Room 45 and asked for a ride. Pilkinton testified that he did not report what had happened to the police because he did not know that Croft was dead.

During Mayberry’s trial, Pilkinton admitted that he initially denied participating in the fight with Croft when he was questioned by police. In his first written statement to the police, he claimed that everything was fine when he left Mayberry and Croft in Room 42 and that when Mayberry returned to Room 45 approximately 35 minutes later, he told Pilkinton he had stabbed Croft. In his second written statement made 52 minutes later, Pilkinton claimed Mayberry stabbed Croft with no physical provocation from Croft. Three days later, Pilkinton gave a recorded statement to the police and admitted for the first time that he had punched and kicked Croft after Croft threatened him. He also told the police that Mayberry stabbed and kicked Croft when Croft was on the floor.

Kristina Jurkiewicz testified that on the evening of September 12, 1997, she visited her boyfriend at the Big 7 Motel. During the course of the evening, Mayberry, Pilkinton, and Croft visited in their room and drank beer. She further testified that after she fell asleep sometime after 4:00 a.m., Mayberry and Pilkinton flew into their room and told them “we just killed a man” and need to leave. May-berry pulled a knife out of his back pocket which was covered with “brown stuff” and told her it was blood. Jurkiewicz thought they were joking and Mayberry and Pilkinton left about two minutes after they entered the room. The next day, after Croft’s body was discovered, Pilkinton told her that Croft “had tried to make a sexual advance towards [Pilkinton] by putting his foot in between [Pilkinton’s] crotch and rubbing him.” Pilkinton then explained that when he started beating up Croft, Croft pulled a knife and things got out of hand from there.

Mayberry testified that after he fell asleep on the couch in Croft’s room, he woke up to find Croft and Pilkinton fighting. Because it appeared that Croft was getting the better of Pilkinton, Mayberry got up, hit Croft on the side of the face, and knocked him into the wall. When Croft pulled a knife and told him that he was going to kill him, Mayberry pulled his own knife and they “started going at it.” After Mayberry stabbed Croft twice in the chest, Croft let go of the knife and Mayberry backed away from him. Mayberry testified that Pilkinton then slammed Croft to the ground, grabbed the knife from May-berry’s hand, and stabbed Croft repeatedly. Mayberry claimed he then left the room, followed by Pilkinton about ten seconds later.

We find this evidence sufficient to sustain Mayberry’s voluntary manslaughter conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 24,1999.

James F. Council, Jr., for appellant.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A1914.
    LEE v. GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
    (513 SE2d 737)
   McMurray, Presiding Judge.

Plaintiff Sheridan A. Lee brought this tort action against defendant The Great Atlantic & Pacific Tea Company, Inc. (“A & P”), seeking to recover for personal injuries allegedly sustained when plaintiff slipped and fell in water accumulated on the floor of defendant’s premises. After discovery, defendant moved for summary judgment, arguing that plaintiff’s allegedly contradictory testimony should be construed against him, such that there is no evidence of defendant’s constructive knowledge. Viewed in the light most favorable to plaintiff as the non-movant, the evidence would authorize the following facts:

The incident report prepared by defendant’s store manager, Perry L. Livingston, notes: “water leaking from ceiling (air conditioner condensation). . . .” When Livingston was summoned to the place where plaintiff reported falling,

the courtesy clerk had already mopped up the water, [so] when [Livingston] got there, it was totally dry. [Livingston] did notice that there was water leaking from the ceiling, or there was some drippings up there. [Plaintiff] said it was a 15-foot puddle of water, and [Livingston] also made a note that [plaintiff] was not visibly wet. [W]hen [Livingston] talked to [plaintiff], he said his ankle was hurt and he could hardly put any weight on it. [The courtesy clerk] John [Lively] said that... it was [really just] a two- to three-foot area there with sprinkles of water on it.

Livingston confirmed that a couple of ceiling tiles were “moist-looking or wet-looking.” But apart from the incident report he prepared, Livingston has “no independent recollection whatsoever . . .” of this particular incident. He did, however, recall “an incident or two,” involving “a water condition in this area before [plaintiff’s] accident.” He could neither confirm nor deny telling plaintiff that there had been previous problems with water overflow from air conditioners. Livingston also identified “at least four work orders . . . that concern service performed to the office air conditioner and concerning water leaking into the store.”

In opposition to defendant’s motion, plaintiff submitted his affidavit, wherein he deposed that he was in this A & P store approximately ten minutes before he fell. During that time, plaintiff

saw no A & P employee who appeared to be inspecting the ceiling or the floor. . . . The combination of poor illumination, the highly polished gray-speckled floor, the clearness of the water and the shadow of the tall display rack made the water appear invisible prior to [his] fall. [Although plaintiff] saw no A & P employee in the immediate vicinity prior to [his] fall[, yet once he] fell, [and], as [he] lay in the puddle of water, [plaintiff] saw [an employee] Emma Jean Mitchell at an elevated customer service desk, approximately fifteen feet from [him also, as] he lay in the puddle of water, [plaintiff] could see the water on the floor beneath [him].

Despite Livingston’s observation that plaintiff did not appear visibly wet, plaintiff testified he had “water on [his] left hand, the side and bottom of [his] white athletic shoes, [his] long-sleeved shirt and pants.”

The trial court granted defendant’s motion for summary judgment, concluding that no genuine issue of material fact existed as to plaintiff’s claims, and plaintiff appeals. Held:

1. This is not a proper case to apply the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). “Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Douglas v. Sumner, [213 Ga. 82, 85 (3) (97 SE2d 122)].” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1), supra. But here, defendant’s manager, Livingston, confirmed that leaking condensation was the immediate cause of accumulated water covering a two- to three-foot area. Regardless of whether plaintiff’s own testimony in the case sub judice is accurately characterized as vague, equivocal, or self-contradictory on certain points such as whether he saw the water or a store employee before or after his fall, and pretermitting whether he offered a reasonable explanation for any contradictions such that the testimony will not be construed against the party-witness, it is clear that those cloudy evidentiary points are not the only evidence which would authorize a recovery in favor of the plaintiff.

2. Plaintiff contends summary judgment is unwarranted, arguing genuine issues of material fact remain for jury resolution. We agree there is objective evidence of defendant’s constructive knowledge. Since the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, supra, is neither applicable nor dispositive, we reverse the grant of summary judgment.

An owner of land is liable to invitees for his failure to exercise ordinary care in the maintenance of his premises. Code Ann. § 105-401 [now OCGA § 51-3-1]. However, [where] there is no evidence that the [defendant or its agents] had actual knowledge of the water on the floor, it is necessary that the plaintiff establish that the [defendant] had constructive knowledge of a dangerous condition. . . . Liability may ... be based on constructive knowledge by showing that the [defendant] failed to exercise reasonable care in inspecting and keeping the premises in a safe condition. Recovery based on this proposition requires the plaintiff to prove a period of time the dangerous condition has been allowed to exist. Without such proof it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard. The plaintiff must show that the substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.

(Citations and punctuation omitted.) Gold & White, Inc. v. Long, 159 Ga. App. 259, 260 (283 SE2d 45).

In the case sub judice, condensation leaked from the ceiling for a long enough period of time to cause a couple of ceiling tiles to become wet-looking while water dripped over a two- to three-foot area. This evidence authorizes the trier of fact to conclude the leak occurred over an extended period, sufficient to put defendant on notice that the previously known condensation hazard was recurring. Gold & White, Inc. v. Long, 159 Ga. App. 259, 260, supra.

Where the evidence raises the inference that the foreign substance was discoverable pursuant to a reasonable inspection, a jury issue arises as to whether the defendant had constructive knowledge of what reasonable inspection would have revealed and [neither summary judgment nor] a directed verdict is . . . appropriate.

(Punctuation omitted.) Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (1) (b), 655 (500 SE2d 391). In the case sub judice, the trial court erred in granting summary judgment on this evidentiary posture.

Decided January 27,1999

Reconsideration denied March 25,1999.

Bodker, Ramsey & Andrews, Stephen C. Andrews, Thomas Rosseland, David A. Webster, for appellant.

Hall, Booth, Smith & Slover, Alexander H. Booth, Jonathan Marigliano, Karl M. Braun, for appellee.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2317.
    BROWN v. THE STATE.
    (517 SE2d 529)
   Pope, Presiding Judge.

James Brown, Jr., appeals the denial of his motion for new trial following his conviction on one felony count of theft by taking. We affirm.

On the afternoon of October 20,1994, the Atlanta Police Department received a report that two men had a truck backed up to the loading dock of a closed warehouse. When police arrived they observed two men in a pickup truck loaded with aluminum pulling away from the bay doors of the warehouse. The officers stopped the truck, in which Brown was a passenger, as it pulled out of the warehouse driveway onto the public road. Police subsequently observed tire tracks on the grass leading away from the warehouse doors to the driveway and discovered that the doors to the warehouse had been broken open.

When questioned, Brown told the officers that “some dude,” whose name he did not know, had told him that there was some aluminum at this location he could pick up. He said that he had not broken into or gone inside the warehouse, but had just picked up aluminum off the loading dock. Upon investigation, S.C. Cartwright, the detective in charge of the case, determined that the aluminum in the pickup truck was similar to that found inside the warehouse and that it showed no signs of having been outside. The aluminum in the pickup truck was dusty, as was the aluminum still remaining in the warehouse. Both Brown and the pickup driver were arrested and charged with burglary and theft by taking. Brown was acquitted of the burglary charge, but convicted of felony theft by taking, and this appeal followed.

1. As his first enumeration of error, Brown contends that the state failed to produce sufficient evidence to prove that the value of the aluminum exceeded $500 as required to sustain his felony conviction. On appeal we view the evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bereznak v. State, 223 Ga. App. 584 (478 SE2d 386) (1996).

The evidence at trial showed that the warehouse belonged to Shower-Lux, a company that manufactured shower doors. Although the company had closed its Atlanta manufacturing operation in 1992, it maintained the warehouse to store aluminum. The company’s one remaining employee, Tanya Brock, testified that she had worked with Shower-Lux since 1986 and held the position of supervisor of the Euro Collection Department prior to the closing of the Atlanta operations. Since that time, Brock had been employed by the company to pick up their mail and oversee the maintenance of the warehouse. Brock explained that the company kept scrap aluminum in a back room of the warehouse in barrels, but kept raw aluminum used to manufacture shower doors on racks in the front and back of the warehouse.

She identified the aluminum in the back of the truck as raw aluminum, not scrap. When asked to place a value on the aluminum, she testified, “I would say just in the back of the truck, not to be scrap but to buy at our costs was probably around $2,000.” In addition to Brock’s testimony, Detective Cartwright testified that when he arrived on the scene, he observed a truck full of “new aluminum,” and the state introduced pictures taken of the truck with the aluminum.

Generally, an opinion of value based solely on the cost of an item is considered to have no probative value. Ragsdale v. State, 170 Ga. App. 448, 449 (317 SE2d 288) (1984). However, “[c]ost price of an item coupled properly with other evidence such as a showing of the condition of the item at the time of purchase and at the time its value is in issue may be admitted as an element upon which an opinion may be formed as to the item’s value. [Cit.]” Id. “It has been held that direct proof of value is not essential in prosecutions for theft by taking but proof of value may be shown by inference. [Cit.] This is but a restatement of the principle that circumstantial evidence is sufficient to establish value.” Id. at 450.

Brock had been an employee of Shower-Lux for more than eight years at the time of her testimony and had supervised the collections department. And her testimony showed a knowledge of the aluminum products maintained by the company at its warehouse. Based upon this information, the jury was entitled to infer that Brock had at least some working knowledge of the value of the aluminum at issue. Further, Brock’s statement, along with Detective Cartwright’s, that the aluminum was new, not scrap, and the photographs showing the quantity and condition of the aluminum gave the jury additional information upon which to value the aluminum. We find that this evidence would support an inference that the value of the aluminum exceeded $500. See Moncus v. State, 229 Ga. App. 803, 804 (1) (a) (495 SE2d 118) (1997); Ragsdale v. State, 170 Ga. App. at 450. Compare Pate v. State, 158 Ga. App. 395, 397 (2) (280 SE2d 414) (1981) (holding that evidence of purchase price of railroad signs insufficient to place value on signs that were no longer new or useable).

Accordingly, we affirm the trial court’s denial of Brown’s motion for new trial on this ground.

2. Brown next contends that he was denied effective assistance of counsel because his attorney failed to present what he claims was his “sole viable” defense. Brown contends that his counsel should have presented an abandoned property defense, as it was consistent with the statement he made to the police that he received a call from an unknown person telling Brown he could come pick up the aluminum. Instead, Brown argues that his counsel’s decision to pursue a “mere presence” defense conflicted with his statement and deprived him of a fair trial.

“To succeed on an ineffective assistance of counsel claim, [Brown] must show that trial counsel’s performance was deficient and that it prejudiced [him] so as to deprive [him] of a fair trial. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992).

Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. In addition, there is a strong presumption that the trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations, punctuation and emphasis omitted.) Brooks v. State, 232 Ga. App. 115, 119 (15) (501 SE2d 286) (1998).

At the hearing on the motion for new trial, Brown’s trial counsel testified that she spoke at length with Brown about his case and that they discussed the defense of abandoned property. However, counsel felt that the defense of mere presence was a better defense than that of abandoned property and explained her reasoning to Brown.

An attorney’s decision to pursue one defense over another is a question of trial strategy with which this Court generally will not interfere. Phillips v. State, 233 Ga: App. 557, 559 (504 SE2d 762) (1998). “Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Punctuation omitted.) Id. “This is true even if trial counsel’s tactics or strategy may have been unwise.” Ross v. State, 231 Ga. App. 793, 799 (7) (499 SE2d 642) (1998). Brown, therefore, has failed to overcome the presumption that his counsel’s strategic decision falls within the range of “reasonable professional assistance.” Brooks v. State, 232 Ga. App. at 119 (15).

Moreover, Brown has failed to establish that he was prejudiced by this strategy. Even if he had asserted a defense of abandoned property, it is not certain that the case would have had a different outcome. A defense of abandoned property would have been contradicted by evidence that the aluminum he took came from inside the building through a broken door.

Accordingly, we find no clear error in the trial court’s decision to deny Brown a new trial on this ground.

3. Brown next contends that the trial court erred in responding to a jury question outside of his presence. During deliberations, the jury sent the trial judge a note requesting a transcript of Detective Cartwright’s testimony. The judge replied in writing that the transcript was not available and that the jury would have to rely upon their memories. The record in this case is silent as to who was present when the trial court received the jury’s request and made its response. However, even assuming that this exchange occurred outside the presence of Brown and his counsel, we find no ground for reversing the trial court’s denial of Brown’s motion for new trial.

The Supreme Court recently addressed this very issue in Burtts v. State, 269 Ga. 402, 403 (2) (499 SE2d 326) (1998). In Burtts, the jury requested a transcript of an eyewitness’ statements to police. Without consulting with the defendant or counsel for either side, the trial judge denied the jury’s request in writing and told the jury to rely upon their recollection and notes from the trial. The Supreme Court held that the trial court committed error in communicating with the jury in the absence of the defendant and his counsel because it is “a well-established rule of law that a defendant on trial must be present when the court takes any action materially affecting his case.” Burtts v. State, 269 Ga. at 403 (2). Although the Supreme Court found that the trial court committed error, it held that the error was harmless because “the nature of the communication did not hasten the verdict against appellant or cause a juror to yield their convictions.” Id. The Court further found that the decision was within the discretion of the trial judge and that no abuse of discretion occurred. Id.

Decided February 10,1999

Reconsideration denied March 25,1999

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Similarly, we find that even if the trial court in this case committed error in communicating with the jury outside the presence of Brown and his counsel, the error was harmless. Moreover, we hold that the trial judge did not abuse her discretion in denying the jury’s request to review the detective’s testimony.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

On Motion for Reconsideration.

Brown filed a motion for reconsideration, which we have denied. However, his motion raised a point regarding his claim of ineffective assistance of counsel that requires further discussion.

Brown argues that our opinion applied the wrong standard on this issue. A defendant claiming ineffective assistance of counsel must prove both that his trial counsel’s performance was deficient and that he was prejudiced because there is a reasonable probability that without the counsel’s deficiencies, the results of the trial would have been different. Peeples v. State, 234 Ga. App. 454, 457 (3) (507 SE2d 197) (1998); Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

We held that Brown failed to prove either requirement. But in determining that Brown had failed to prove prejudice from his trial counsel’s performance, we stated “Even if he had asserted a defense of abandoned property, it is not certain that the case would have had a different outcome.” Brown is correct that he need not prove to a certainty that his case would have had a different outcome in order to establish ineffective assistance of counsel. He need only show a reasonable probability that his trial would have had a different result if his counsel had asserted an abandoned property defense. However, as we find that Brown failed to establish such a reasonable probability, his claim for ineffective assistance of counsel fails.


author: Blackburn, Judge.

text:
    A99A0059.
    KOMALA v. THE STATE.
    (515 SE2d 185)
   Blackburn, Judge.

Angela Komala appeals her conviction, following a jury trial, for driving under the influence. Komala contends that (1) the evidence was insufficient to support the verdict and (2) the trial court erred by instructing the jury regarding the evidentiary ramifications of the refusal of a breath test because Komala’s actions did not constitute such a refusal. For the reasons set forth below, we affirm the conviction.

1.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Komala] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

During the early morning hours of August 13, 1996, Komala, who was leaving a restaurant where she admitted to having alcoholic beverages, drove her car into a toll booth located at the exit of a commercial parking deck. Shortly after the accident, a private security guard reached the scene, and he described Komala as being “very intoxicated.” The guard testified that Komala’s speech was slurred, that she was jittery and nervous, and that she smelled like an alcoholic beverage. Later, an Atlanta police officer arrived, investigated the accident, and arrested Komala for driving under the influence. This officer testified that Komala was so inebriated that she had trouble standing up, that her speech was slurred, that she had extreme trouble in reciting the alphabet, and that she smelled like an alcoholic beverage.

Following her arrest, Komala was taken to a detention center where she was asked to undergo a breathalyzer test. Komala submitted to the test twice, but she did not blow hard enough in the machine to register a result on either try. The officer who arrested Komala testified that he believed that Komala was too intoxicated to give an adequate sample.

We find that the evidence in this case amply supported Komala’s conviction for driving under the influence. See Jackson, supra.

Decided March 25,1999.

L. Paul Cobb, Jr., for appellant.

2. In three separate enumerations of error, Komala contends that the trial court erred by instructing the jury regarding the evidentiary ramifications of the refusal of a breath test because Komala’s actions did not constitute such a refusal. We disagree. OCGA § 40-6-392 (a) (1) (B) provides:

In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. . . . No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath . . . test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

(Emphasis supplied.)

Unless encumbered by a physical or medical limitation, a person submitting to the breathalyzer test may be considered to have refused to comply if an adequate breath sample has not been provided. Komala produced no evidence at any time that she had any physical or medical difficulties which prevented her from providing adequate breath samples. “However, the arresting officer . . . testified unequivocally that [Komala] failed ... to provide adequate breath samples and that the instrument did not produce a printed alcohol concentration analysis, which was objective evidence of [her] refusal.” Allen v. State, 229 Ga. App. 435, 437 (1) (494 SE2d 229) (1997). As such, Komala’s failure to provide an adequate breath sample was properly considered a refusal, and the instructions given by the trial court regarding the evidentiary ramifications of such a refusal were both proper and warranted.

Judgment affirmed.

Beasley, P. J, and Senior Appellate Judge Harold R. Banke concur.

Joseph J. Drolet, Solicitor, Ronda K. Currie, Assistant Solicitor, for appellee.


text:
    A99A0249.
    HAMMOND v. THE STATE.
    (515 SE2d 183)
   Blackburn, Judge.

Ronald Hammond appeals from his conviction for criminal trespass following a bench trial. Hammond contends that there was insufficient evidence to support the conviction. He also contends that the trial court erred (1) by finding the criminal trespass statute could bar entry on property for the purpose of sleeping and (2) by excluding certain witness testimony. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hammond] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)(1979).

The evidence shows that Hammond awoke after midnight on July 25, 1997, to find that he had been locked in the University of Georgia’s (UGA) main library. Hammond activated an alarm in the building to alert UGA personnel. Officer Decocq of the UGA Police Department responded to the call. After Officer Decocq checked Hammond’s identification and determined that he was not a student, Officer Decocq issued to Hammond a barring notice for a period of one year. The notice read:

In accordance with Section 16-7-21 of the Official Code of Georgia, you are hereby notified that you are prohibited from going upon the property specified below: All UGA buildings. For the purpose of sleeping inside the buildings. Was found in the Main Library on 072597 at 0100 hrs. He stated that he fell asleep. You are prohibited from entering upon the above-described property. If you enter such property, you will be subject to being arrested and charged with Criminal Trespass as provided in Section 16-7-21 of the Official Code of Georgia.

Thereafter, Hammond spoke with Captain Lisa Boone of the UGA Police Department who told him that the notice barred him from entering UGA buildings for the purpose of sleeping. Hammond was arrested on November 16, 1997, and charged with criminal trespass after he was found asleep on a couch in the Tate Student Center around midnight.

1. Hammond contends there was insufficient evidence to convict him of criminal trespass.

A person commits the offense of criminal trespass when he or she knowingly and without authority: . . . [e]nters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden.

OCGA § 16-7-21 (b) (2). Here Hammond had been warned that he could not enter UGA property for the purpose of sleeping. He was found sleeping on UGA property late at night. The evidence was sufficient to authorize his conviction for criminal trespass. See Jackson, supra.

2. Hammond contends the trial court erred in finding that he violated the criminal trespass statute, arguing that the barring notice was invalid and vague. Hammond contends that the barring notice was invalid because, while a barring notice can bar entry completely, it cannot bar entry for a specific purpose. We disagree. A property owner can bar entry completely or can choose to be more lenient and bar entry for a specific purpose, so long as the notice requirements of OCGA § 16-7-21 (b) are met. Similarly, Hammond argues that because the barring notice did not completely prohibit entry onto UGA property, it was vague. However, Hammond testified that he understood that the notice barred entry upon UGA property for the purpose of sleeping and that he risked arrest for criminal trespass for such behavior. Clearly, the barring notice provided Hammond with adequate notice. The trial court did not err.

3. Hammond contends the trial court erroneously excluded certain witness testimony about Hammond’s conversation with Captain Boone. However, the substance of Hammond’s conversation with Captain Boone was introduced into evidence by Hammond’s own testimony, and therefore, the excluded evidence was cumulative. “The admissibility of evidence is within the sound discretion of the trial judge and in view of the cumulative nature of the excluded evidence, any error in excluding same was harmless.” Stewart v. State, 210 Ga. App. 474, 478 (10) (436 SE2d 679) (1993).

Decided March 25,1999.

Deborah L. Gowen, for appellant.

Kenneth W. Mauldin, Solicitor, Karl D. Cooke, Jr., Assistant Solicitor, for appellee.

Judgment affirmed.

Beasley, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The underlined portion was written by Officer Decocq on the barring notice form.


author: Johnson, Chief Judge.

text:
    A98A1775.
    EAGLE GLEN UNIT OWNERS ASSOCIATION, INC. v. LEE et al.
    (514 SE2d 40)
   Johnson, Chief Judge.

This appeal involves the issue of whether the foreclosure of a deed to secure debt encumbering one tract of land terminates an easement on an adjoining tract. We hold that, under the circumstances in this case, the easement over the adjoining tract was not terminated and, for that reason, affirm the trial court’s grant of summary judgment to the owners of the foreclosed property.

Ultima/R. B. M. Nesbitt Associates (“Ultima”) owned two adjacent parcels of real property. Ultima borrowed money from Great Southern Federal Savings & Loan (“Great Southern”), giving Great Southern a deed to secure debt encumbering both parcels. A year later, Ultima filed a condominium declaration in superior court. In the declaration, Ultima provided that one of the parcels was being submitted to the Georgia Condominium Act and that the adjacent “additional property” might later be developed and submitted to the Act.

The declaration provides, in pertinent part, that the property being submitted to the Georgia Condominium Act and the additional property are “benefitted and burdened by mutual, non-exclusive, and perpetual easements for pedestrian and vehicular ingress and egress, as reasonably necessary or appropriate to permit access to the [properties].” Specifically, the easements allow use of a private road running from a public street through the property submitted to the Act and ending just inside the additional property; according to the Lees, the road provides the only means of getting to and from their property.

The declaration of condominium further provides that the road would be maintained by the owners of the submitted property, that the owners of the additional property would use and pay a fee for maintaining the road and the owners of the additional property would allow the owners of the submitted property to use the easement across their property.

One of the parcels was developed into condominiums (“the association property”), but the additional property was not. When the association property was sold, Great Southern released it from the encumbrance of the security deed. The additional property was not released.

Ultima subsequently defaulted on the loan secured by the additional property. Great Southern foreclosed on the security deed and bought the parcel at the foreclosure sale. The Lees purchased the property and entered into a contract to sell it to a developer. The developer informed the Eagle Glen Unit Owners Association (“the unit owners”) of its intent to use the road to access the additional property.

Concerned that the developer’s use of the private road would cause traffic-related problems, the unit owners filed a declaratory action against the Lees and Homeland Communities, Inc. (collectively “the Lees”), contending the foreclosure of the additional property extinguished the easements on both properties. The unit owners sought a judgment declaring that the easement across its property terminated when, due to foreclosure, their right to use the easement over the additional property ended. Both sides moved for summary judgment. The trial court granted the Lees’ motion and denied the unit owners’ motion. The unit owners appeal from the grant of summary judgment to the Lees.

1. Easements may be terminated only by operation of law or by the express terms of the instrument granting the easement. See Khamis Enterprises v. Boone, 224 Ga. App. 348, 350 (1) (480 SE2d 364) (1997). For the following reasons, we find that the easement over the additional property terminated by operation of law, while the easement over the association property continued in existence.

(a) Unit owners’ easement over the additional property. A deed to secure debt conveys legal title in the real property to the grantee with the grantor retaining an equitable estate. Rhodes v. Anchor Rode Condo. &c., 270 Ga. 139-140 (1) (508 SE2d 648) (1998). Because legal title remains in the grantee until the terms of the security deed are satisfied, all subsequent conveyances of the real property after the deed to secure debt is executed remain subject to the security deed, unless the grantee releases the property by conveyance or contractually subordinates its rights. Id. In this case, the security deed was executed before the condominium declaration which created the subject easement. Inasmuch as Great Southern did not release the additional property from the security deed or contractually subordinate its rights, the easement over that property remained subject to the security deed. See id. at 140 (1).

A valid foreclosure of a security deed not only vests legal title in the purchaser, it also divests all of the grantor’s rights in the property as well as the rights of those claiming through the grantor. Rhodes, supra. Since the easement over the additional property was subject to the security deed, the unit owners’ easement was extinguished by the foreclosure. See id. at 140 (2); Massey Assoc., Ltd. v. Whitehorse Inns &c., 265 Ga. 320, 321 (454 SE2d 513) (1995) (easement is lost by foreclosure of security deed where security deed was executed prior to the creation of the easement).

(b) Lees’ easement over association property. While the easement over the additional property terminated by operation of law, namely, through the legal effect of the foreclosure of the security deed which predated the granting of the easement, the easement over the association property did not. Therefore, this easement can be terminated only if the instrument granting it expressly so provides. See Khamis Enterprises, supra at 350.

In interpreting an express easement, the cardinal rule is to ascertain the parties’ intent. Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d 510) (1996). Arriving at this intention requires consideration of the whole instrument, the contract, the subject matter, the object, the purpose, the nature of restrictions or limitations, the attendant facts and circumstances at the time of making the instrument, and the consideration involved. Khamis Enterprises, supra at 349 (1).

We also point out that the law does not favor the termination of easements. See 25 AmJur2d, Easements & Licenses, § 110; 28A CJS, Easements, § 117. This principle, though not expressly stated in any Georgia cases we found, is consistent with our appellate court decisions. For example, our courts have stated that “[e]quity seeks to relieve against forfeitures where the rules of construction will allow. [Cit.]” Kiser v. Warner Robins &c. Estates, 237 Ga. 385, 386-387 (2) (228 SE2d 795) (1976) (easement not forfeited where grantee failed to keep easement repaired despite provision in instrument requiring grantee to do so). And that forfeitures are abhorred in equity and are never favored in law. Chapman v. Ayer, 95 Ga. 581, 582-583 (1) (23 SE 131) (1895). If forfeiture or termination of an estate based on breach of covenant or failure to use property as provided in the instrument is desired, the instrument should specifically so provide. City of Atlanta v. Jones, 135 Ga. 376 (69 SE 571) (1910). Likewise, an easement acquired by grant is not extinguished by nonuse without clear, unequivocal and decisive evidence of an intent to abandon the easement. Hardigree v. Hardigree, 244 Ga. 830, 831 (2) (262 SE2d 127) (1979). Nor is an easement extinguished by a tax sale. Smith v. Gwinnett County, 248 Ga. 882 (286 SE2d 739) (1982). Our courts resolve doubtful cases in favor of that construction of the instrument which causes a right of ingress and egress to run with the land rather than merely with the original grantee of the easement. Feckoury v. Askew, 244 Ga. 128, 129 (259 SE2d 70) (1979).

The instrument in this case provides for a “perpetual easement” of indefinite duration and does not manifest any intention for the easement to be terminated. Compare Weaver v. Henry, 222 Ga. App. 103, 105 (3) (a) (473 SE2d 495) (1996) (where the instrument clearly limited the duration of the easement). Although the declaration provides that the easement over the association property is mutual, we cannot agree with the unit owners that “mutual” as used in this case means contingent or interdependent.

First, the declaration contains no language indicating that the continued existence of each easement depends upon the continued existence of the other. In fact, the declaration provides that the easements are to be perpetual unless and until all of the additional property is submitted to the declaration, a condition which no one claims occurred.

Second, it is clear from a review of the entire section on the ingress and egress easements that the primary purpose of the section is to provide the owners of the additional property with an easement over the association property; indeed, the clause contains provisions regarding responsibilities for maintaining and paying to use the easement over the association property, but makes no such provisions as to the easement over the additional property. That the easement over the association property was the primary easement involved is supported in the record by a copy of the plat and by testimony from the Lees that the road provided their sole means of accessing their property. We do not see any indication in the record that Ultima intended “mutual” to mean that the continued existence of each easement would be contingent upon the continued existence of the other, particularly given the evidence that the primary objective of the grants was to provide the (subsequent) owners of the additional property with an easement over the association property, not to provide the unit owners with an easement over the additional property. We note that the easement over the association property was supported by consideration, namely the obligation to pay for maintaining the road.

In this case, it is not at all likely that Ultima, which owned both properties and granted both easements, intended that subsequent owners of the additional property would not be able to use the private road connecting their property to the public road if the owners of the association property lost their right to use the section of the road located on the additional property. The trial court did not err in granting summary judgment to the Lees.

Decided February 26,1999

Reconsideration denied March 29,1999.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Paula B. Smith, for appellant.

Schreeder, Wheeler & Flint, Timothy C. Batten, Dillard & Galloway, Andrea C. Jones, for appellees.

2. The unit owners contend that the trial court erred in deciding the case based on OCGA § 44-3-95 (a), when that section is inapplicable because the declaration does not include a sufficient description of the easements. The trial court does not indicate in its order that it relied upon OCGA § 44-3-95 (a) in granting summary judgment. As discussed above, summary judgment to the Lees was authorized because the easement was not terminated by the express terms of the declaration or by operation of law. A grant of summary judgment which is right for any reason will be affirmed. Sellers Bros., Inc. v. Imperial Flowers, 232 Ga. App. 687, 689 (3) (503 SE2d 573) (1998).

3. Inasmuch as the unit owners did not meet their burden of showing they were entitled to judgment as a matter of law, the trial court did not err in denying their motion for summary judgment.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


author: Johnson, Chief Judge. Smith, Judge,

text:
    A98A2145.
    PATTERSON et al. v. PROCTOR et al.
    (514 SE2d 37)
   Johnson, Chief Judge.

Albert and Carol Patterson sued James Proctor d/b/a Proctor Logging Company, Pine Timber Wood Procurement & Management, Inc., Pine Timber Wood Production, Inc., and Southern Wood Suppliers, Inc., alleging the defendants cut and removed timber from the Pattersons’ property without their consent. In their complaint, the Pattersons alleged that the defendants committed trespass to realty, converted their timber and, in committing acts of theft by taking and theft by receiving, violated the Georgia Racketeer Influenced & Corrupt Organizations (“RICO”) Act. Proctor moved for partial summary judgment as to the RICO claim arguing that the Pattersons failed to show that the defendants engaged in a pattern of racketeering activity. Without stating its reasons therefor, the trial court granted Proctor’s motion. The Pattersons appeal.

1. The Pattersons argue that Proctor was not entitled to summary judgment on the RICO claim because there was evidence of a pattern of racketeering activity, namely that the defendants cut and removed timber from two other properties without the owners’ consent. We agree and reverse.

OCGA § 16-14-4 (a) pertinently provides that it is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire any interest in or control of real or personal property of any nature.

“Pattern of racketeering activity” means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents.

OCGA § 16-14-3 (8). “Racketeering activity” includes the offenses of theft by taking and theft by receiving. OCGA §§ 16-14-3 (9) (A) (ix); 16-8-1 through 16-8-21.

In his motion for partial summary judgment, Proctor argued that the two other incidents referred to in the complaint as separate incidents of racketeering activity were actually part of the same transaction as the one which formed the basis for the Pattersons’ complaint. To support this contention, Proctor submitted evidence showing, among other things: Pine Timber Wood Production contracted to cut and remove timber from land owned by Douglas and Danny Adams. Pine Timber Wood marked the Adamses’ property line, then subcontracted with Proctor to cut and remove the timber. While working on the Adamses’ property, Proctor’s employees cut trees from property adjoining the Adamses’ property on the north. This property was owned by the Hale family. Also while working on the Adams parcel, Proctor cut trees on properties owned by the Patterson and Spurlock families; these properties were adjacent to but south of the Adamses’ property. Proctor averred that the trespass, cutting and tree removal were accidental. However, evidence that Proctor’s actions were accidental is contradicted by testimony that the property lines were clearly marked every ten to twenty feet by brightly colored ribbon and testimony that a Pine Timber Wood employee showed Proctor where to cut and told him not to cut beyond the ribbons.

Because proving a pattern of racketeering activity is an element of their cause of action, a jury must decide whether the Pattersons met this burden unless Proctor can show, as a matter of law, that the predicate acts alleged by the Pattersons do not constitute a pattern of racketeering activity. See generally Cobb v. Kennon Realty Sues., 191 Ga. App. 740, 742 (2) (382 SE2d 697) (1989). Although Proctor contends the lower court properly granted summary judgment because the acts alleged did not constitute a pattern of racketeering activity since the acts were merely part of the same transaction, a question of fact remains and the trial court erred by granting summary judgment because courts cannot resolve facts or reconcile issues in summary judgment proceedings. See generally Brown v. Freedman, 222 Ga. App. 213, 217-218 (3) (474 SE2d 73) (1996); Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981).

As the party opposing summary judgment, the Pattersons are entitled to the benefit of all reasonable doubts, and courts are required to construe the evidence and all inferences and conclusions therefrom in their favor. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). So viewed, the evidence shows that, despite clearly marked boundaries, Proctor cut timber on two different dates, at three different locations, and from the property of three different owners. Such conduct is sufficient to prove separate crimes against each property owner. Even if the three alleged thefts were part of the same basic scheme, we cannot say that they were one transaction when they occurred at different times, at different locations, and with different victims. See Breland v. State, 135 Ga. App. 478, 479 (1) (a) (218 SE2d 153) (1975). The acts alleged were not merely integral parts of the same transaction. In Adams v. State, 231 Ga. App. 279, 282 (2) (499 SE2d 105) (1998), this Court found that 14 theft offenses were sufficient to establish a pattern of racketeering activity even though the predicate acts all involved the same victim. The acts allegedly committed by Proctor, if proved, would constitute separate crimes against separate victims (see OCGA § 16-8-2), who merely owned land in the same area, but did not participate jointly in this endeavor. Therefore, this case is different from Emrich v. Winsor, 198 Ga. App. 333 (401 SE2d 76) (1991), in which the defendant induced two co-investors to participate jointly in a single investment. The trial court erred in granting summary judgment to Proctor on this issue because genuine issues of material fact remain for trial.

2. Proctor also claimed in his motion for partial summary judgment that there was no evidence that he conspired with anyone to violate the Georgia RICO Act or any other criminal statute, nor any evidence that he was part of an “organized criminal element.” Conspiracy is not an essential element of a RICO claim brought under parts (a) or (b) of OCGA § 16-14-4, and may not be an essential element of part (c), depending upon the allegations. The Pattersons did not allege conspiracy.

Nor is it necessary to show any nexus with organized crime. See OCGA § 16-14-4 (a); Dee v. Sweet, 218 Ga. App. 18, 19 (1) (460 SE2d 110) (1995). We note that the question of whether Proctor intended to violate the RICO Act or any other statute is properly left to the trier of fact. See OCGA § 16-2-6; Wells v. State, 226 Ga. App. 172, 174 (1) (486 SE2d 390) (1997). Summary judgment was not authorized on these bases.

Decided February 22,1999

Reconsideration denied March 29,1999

Allen W. Bodiford, John L. Watson, Jr., Martin C. Jones, for appellants.

Self, Mullins, Robinson, Marchetti & Kamensky, Richard A. Marchetti, for appellees.

Judgment reversed.

Barnes, J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I agree with the majority that the allegations made in this action fall within the scope of the RICO statute as interpreted by the Georgia courts, particularly in the context of a summary judgment. I write separately to note the expansion of the RICO statute beyond what the legislature may have originally intended. The civil remedy of trespass to land seems a more reasonable remedy for the cutting of timber on property adjacent to a single tract of land, even if it occurs on two sides of the tract. See, e.g., Young v. Faulkner, 228 Ga. App. 587 (492 SE2d 331) (1997).