text:
    A01A0941.
    KERR v. COHEN.
    (548 SE2d 17)
   Eldridge, Judge.

On March 24, 1998, appellee-defendant Ronnie Cohen a/k/a Ronald Alan Cohen, Ronald Allen Cohen, Ronald Cohen, R. Allan Cohen (“Cohen”); Robert Ian Newman; Arthur W. Householder a/k/a Art Householder, Jack Allenbach, George Riger, Earl Ferrell, Grin Utterbach (“Householder”); Jerrell Breslin; David W. Rogers; Robert Petrie; Jessica Jasmin Maun a/k/a Jessica Santos (“Maun”); and Barry Lichtman were indicted upon the charge of conspiracy to conduct financial transactions knowing that the funds involved therein represented the proceeds of wire fraud in violation of 18 USC § 1343 and knowing that the transactions were carried out with the intent to further and promote such unlawful activity in violation of 18 USC § 1956. Following a hearing on January 21, 1999, the United States District Court for the Northern District of Florida accepted Cohen’s plea of guilty to the charge. The case was heard in the district court on June 21 and 22, 2000.

This appeal arises out of the superior court’s grant of summary judgment to Cohen, upon a verified complaint, filed on November 18,

1999, by appellant-plaintiff Ivan Kerr averring conversion, fraud, and an action to set aside contract. Cohen timely filed his answer and counterclaim, denying the allegations of the complaint and seeking his court costs, attorney fees, and damages upon Kerr’s claims as false. By separate orders executed on March 6, 2000, and May 5,

2000, respectively, the superior court denied Kerr’s motion for summary judgment and granted Cohen’s motion for more definite statement of the complaint. On May 18, 2000, Kerr filed his verified amendment to complaint and response to the superior court’s order on motion for more definite statement.

Kerr first filed the instant appeal in the Supreme Court of Georgia. The Supreme Court transferred the appeal to this Court because the underlying issues of conversion, fraud, and whether a contract existed between the parties presented questions of law, not equity. See Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999). In the instant appeal, Kerr contends that the superior court erred: (1) in granting Cohen summary judgment since jury questions remain as to each count of his amended complaint, and (2) in failing to enforce its order compelling discovery before ruling upon Cohen’s motion for summary judgment. Finding these claims of error to be without merit, we affirm.

1. The superior court did not err in granting Cohen summary judgment as to each of his claims.

On a motion for summary judgment under OCGA § 9-11-56, the moving party may prevail by (1) presenting evidence which negates an essential element of the plaintiff’s claims, or (2) showing an absence of evidence to support the case as to any essential element. Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706 (434 SE2d 532) (1993). If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998).

(a) Conversion. At common law actions for trover for conversion related only to tangible things so that an action for conversion as to money would lie only as to “withholding specific bills or coins and does not lie on account of a mere failure to pay money under a contract.” Mack v. Nationwide &c. Ins. Co., 238 Ga. App. 149, 150 (517 SE2d 839) (1999), citing Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764, 766-767 (426 SE2d 601) (1992); Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (1) (365 SE2d 494) (1988). Money other than specific metal or paper representing money is not tangible property. Mack v. Nationwide &c. Ins. Co., supra at 151. Kerr does not here seek the recovery of specific money to which he had title, either in bills or coins. Rather, he seeks to recover a sum of money in the general sense. The record shows that he offered no evidence to the contrary in support of his conversion claim. Because a cause of action for conversion does not lie in the instant circumstances, the superior court did not err in granting Cohen summary judgment on this count. See Cooke v. Bryant, 103 Ga. 727, 731 (30 SE 435) (1898) (“ ‘Trover lies for the conversion of money, when there is an obligation on the part of the defendant to return specific coin or notes entrusted to [one’s] care.’ [Cit.]”).

(b) Fraud. To establish the tort of fraud, Kerr was required to show: (1) a false representation; (2) scienter; (3) intent to induce plaintiff to act or refrain from acting thereon; (4) justifiable reliance by plaintiff; and (5) proximate damage to the plaintiff. Scarbrough v. Hallam, 240 Ga. App. 829, 832 (3) (525 SE2d 377) (1999); Vester v. Mug A Bug Pest Control, 231 Ga. App. 644, 646 (1) (a) (500 SE2d 406) (1998), rev’d on other grounds, Mug A Bug Pest Control v. Vester, 270 Ga. 470 (509 SE2d 925) (1999); Lister v. Scriver, 216 Ga. App. 741, 745 (456 SE2d 83) (1995); Parsells v. Orkin Exterminating Co., 172 Ga. App. 74, 75 (322 SE2d 91) (1984). In response to Cohen’s motion for summary judgment, Kerr filed the transcript of his testimony in federal court against Cohen’s co-conspirators, having earlier tendered the transcript of Cohen’s guilty plea hearing in support of his motion for summary judgment and his amended verified complaint.

Pertinently, the evidence shows that in order to initiate a transaction to obtain venture capital, the co-conspirators required their clients to transmit fees of $50,000 to $2 million to an escrow agent at an offshore bank for the purpose of syndicating investors. Such fees were to be held in escrow until clients provided a bank payment guarantee or irrevocable letter of credit guaranteeing their fees. Typically, receipt of this guarantee was required within five to seven days, and failure to provide it resulted in the forfeiture of such fees as had been paid. In reality, the co-conspirators lacked access to the venture capital they held themselves out as having, and they designed their operation with a view to causing clients to forfeit the fees they had paid and divided these among themselves on an agreed-upon schedule.

In May 1995, Kerr received a letter from co-conspirator Householder offering him venture capital through an organization Householder referred to as the Centurion Group. Kerr responded the following month, indicating that he needed $1.5 to $2 million to expand his factoring and freight brokerage businesses, businesses he described as very successful, growing rapidly, and worth $3 to $6 million. Householder responded, guaranteeing Kerr funding in the amount of $5 million upon the payment of a retainer fee of $10,000 to the group’s escrow agent and an additional five percent charge on the funding he was to provide. Householder also required that Kerr provide his escrow agent a copy of a cashier’s check, bank payment guarantee, or irrevocable letter of credit in the amount of his fee.

Kerr paid the $10,000 fee on a second visit to Householder’s office. At that time, Householder told Kerr that he had funded a number of projects similar to Kerr’s over the years; however, he had earlier declined to provide Kerr with references, citing a confidentiality agreement with his clients while assuring him that he would nonetheless be comfortable with their names.

In early August 1995, Householder learned that Kerr was past due on a $150,000 line and operating account at his bank. Later that month, Kerr went to the bank seeking a letter of credit covering Householder’s fees on the transaction. There Kerr saw a loan officer who refused him saying, “It looks like a drug deal.” On August 24, 1995, Kerr, through his vice president, wrote Householder seeking a refund of the retainer fee he had paid and withdrew from the transaction. He also stated, however, that he would reapply at a later time. Thereafter, rather than exploring getting a Small Business Administration loan or pursuing other options, Kerr consulted an attorney to assist him in resolving the problem of his past due account at the bank. Kerr’s attorney likewise advised him not to further pursue venture capital financing.

On September 26, 1995, Kerr received a memorandum from another investment group. The memorandum, authored by co-conspirator Maun, offered to provide Kerr the venture capital Kerr needed through co-conspirator Newman, a man described as more experienced in syndicating venture capital than Householder. Although his attorney and his banker had indicated it was not a good idea, Kerr entered into negotiations with Newman for funding, ultimately wiring $100,000 to Cohen as Newman’s escrow agent and $13,500 to a Dennis McGregor who was to provide a bank letter of credit backing the $100,000 sent to Cohen. When the letter of credit was not forthcoming, Kerr paid an insurance company $50,000 and an additional $45,000 to Newman seeking the credit he needed to keep the transaction alive.

Kerr testified that although he was familiar with McGregor’s name, he never met him in person. In this regard, Kerr recalled that he was told that McGregor would provide him the bank credit he needed to cover Householder’s fees for getting him venture capital. On cross-examination, Kerr testified that he nevertheless wired $100,000 to Cohen upon Newman’s representation that McGregor would vouch for him.

Kerr’s amended verified complaint showed that in the spring of 1996, Newman’s group advised him that his funds had been forfeited for his failure to obtain the credit necessary to secure the $100,000 he wired Cohen. Newman demanded the payment of an additional $75,000 in order to proceed with the transaction, a portion of which Kerr paid, but these further efforts to obtain venture capital also failed. Kerr put his losses at “between 250 and $300,000[,]” forcing one of his businesses to go into bankruptcy.

We conclude that the foregoing evidence was sufficient to raise jury questions as to each of the elements of fraud, except that requiring Kerr to show that he justifiably acted, relying upon Cohen’s representations or representations made on Cohen’s behalf. The evidence showed that plaintiff had ignored warnings by both his banker and lawyer about the nature of the transaction, and there is no evidence that he exercised reasonable care to investigate before paying over such sums. Kerr having failed to come forward with evidence demonstrating a triable issue on this element of fraud, the grant of summary judgment to Cohen was proper on Kerr’s fraud claim. Speir v. Krieger, supra at 397.

(c) Contract. Cohen supported his motion for summary judgment by his own affidavit wherein he stated, as he had by his counterclaim, “I have never entered into any contract with Mr. Kerr, either oral or written.”

A contract is an agreement between two or more parties for the doing or not doing of some specified thing, [OCGA § 13-3-1], and to constitute a valid contract there must be a subject matter upon which it can operate. [OCGA § 13-3-1.] In order that it may allege an agreement, a [complaint] must set forth a contract of such certainty and completeness that either party may have a right of action upon it. [Cit.]

Decided April 10, 2001 —

Reconsideration denied April 26, 2001

Peachtree Med. Bldg. v. Keel, 107 Ga. App. 438, 439-440 (1) (130 SE2d 530) (1963). Kerr supports his contract claim by his verified complaint alone. However, inasmuch as Kerr provides no factual basis in support thereof, his complaint is conclusory in this regard and insufficient to avoid summary judgment. See Harrison v. Harrison, 159 Ga. App. 578 (284 SE2d 83) (1981) (“Verified pleadings have been held to be equivalent to a supporting or opposing affidavit for purposes of raising an issue of fact on summary judgment. [Cit.]”); see also Vanacore v. Citizens Bank, 228 Ga. App. 87, 88 (491 SE2d 181) (1997) (“Where no factual basis is provided for an averment appearing in an affidavit, it may be deemed conclusory and will not be sufficient to avoid summary judgment. [Cit.]”). Having failed to show this fundamental requisite to an enforceable contract by his complaint or in response to Cohen’s motion for summary judgment, the superior court did not err in granting Cohen summary judgment on Kerr’s contract claim. OCGA § 13-3-1; Speir v. Krieger, supra at 397. At best, Kerr established only his efforts at contract formation but never established a contract with definite essential terms, whether express or implied, i.e., the nature of the capital contribution, form of contribution, and when contribution would be made and by whom as well as the role of the defendant.

2. Even if the superior court erred in rendering its order on Cohen’s summary judgment motion without enforcing its order compelling discovery (and we find no error), such error would have been harmless. The materials sought — a copy of Cohen’s petition for voluntary disbarment, a copy of all responses from the Georgia Bar, including Cohen’s disbarment, a listing of Cohen’s victims, his co-conspirators, his aliases, his Social Security number, income and real estate information, and a listing of persons to whom Cohen transferred in excess of $100 since May 1997 — were immaterial under the circumstances of this case. Kramer v. Kroger Co., 243 Ga. App. 883, 889 (4) (534 SE2d 446) (2000).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Arthur J. Shelfer, Jr, for appellant.

T. Mark Thedieck, for appellee.

       Tangible things and monetary value are well distinguished in Vaughn v. Wright, 139 Ga. 736 (78 SE 123) (1913).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A0188.
    PUENTE v. THE STATE.
    (548 SE2d 109)
   Phipps, Judge.

Convicted of armed robbery, Robert Puente appeals, arguing that the evidence was insufficient. We find that the evidence was sufficient and affirm.

Viewed in the light most favorable to the verdict, the evidence authorized the jury to find that on July 27, 1999, Puente and Daniel Kenast entered a Fitzgerald’s Texaco gas station in Bartow County. Kenast wore over his face a hat with eye holes cut out. Puente’s face was uncovered.

Puente pulled a pistol from his waist area, approached the counter, pointed the gun at the cashier and told her, “How about fixing us up with some money.” The cashier took everything from the register drawer and handed it to Kenast when he reached over the counter. Puente and Kenast left the store in a car driven by Kenast’s girlfriend, Tommi Lee Dinkins.

The cashier immediately called the police and reported the robbery. She described the getaway car and the direction of its travel. Very shortly thereafter, a Bartow County deputy sheriff spotted the car traveling south on 1-75 as reported. A high-speed chase ensued, which ended when Dinkins crashed into a UPS truck parked alongside the roadway. Puente, Kenast and Dinkins were arrested.

A store manager testified that approximately $374 was taken in the robbery. Police found $131 in Puente’s pocket in denominations of thirty-six $1, seven $5, and three $20 bills. On the floorboard of the car near the console, police found a wad of fifty $1, six $5, seven $10 and five $20 bills totaling $250 and numerous credit card authorization slips from the gas station.

The cashier identified Puente, the credit card authorizations and the hat with cut-out eye holes that had been worn by Kenast.

The hat was retrieved from an area where the driver of another vehicle saw something being thrown from the getaway car. The gun was not found, but police found a box of .22 caliber ammunition in the trunk of the car.

Decided April 26, 2001.

Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Dinkins testified against Puente and Kenast, detailing their actions as the planners and perpetrators of the robbery. She testified that before the robbery Kenast had shown her a pistol, that Puente and Kenast had told her it was .22 caliber, that Puente had it during the robbery and that he threw it from the car during the chase. Dinkins’s car and its tag also matched the description given by the cashier.

We find that the evidence was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that Puente committed the offense of armed robbery. Thus, we affirm his conviction.

Judgment affirmed.

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

        Gunter v. State, 237 Ga. App. 863, 864 (517 SE2d 105) (1999).

       Kenast’s conviction for armed robbery was affirmed by unpublished opinion, 245 Ga. App. XXV (2000).

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


author: Smith, Presiding Judge.

text:
    A01A0136.
    PEREZ v. THE STATE.
    (547 SE2d 699)
   Smith, Presiding Judge.

We granted the interlocutory application of Jorge Antonio Perez to consider whether a search of his shoes conducted by narcotics agents at the Atlanta airport exceeded the scope of the consent to search given by Perez. We find that Perez responded to a permissible police inquiry by voluntarily consenting to a search of his person and bags and that the agents were still within the scope of consent given by Perez when they found evidence amounting to probable cause to search his shoes. We therefore affirm the trial court’s denial of Perez’s motion to suppress.

Three principles govern the appeal of a trial court’s ruling on a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [those findings]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Viewed in this light, the evidence shows that an agent working at the Atlanta airport with the Clayton County Narcotics Unit received information from a “documented confidential reliable informant” regarding three named individuals, including Perez, traveling on a particular flight from St. Thomas/St. Croix, U. S. Virgin Islands, on that day. Further investigation revealed that all three were passengers on the flight, that Perez had purchased a one-way ticket three days earlier from a travel agency, and that the other two individuals had also purchased one-way tickets from the same agency and within three minutes of Perez’s purchase, although they did not travel together. The agent testified that St. Croix is known to narcotics agents as a “drug source city,” especially for cocaine trafficking.

The agent testified that he was familiar with drug courier profiles or characteristics and that Perez met a number of these factors, including traveling on a one-way ticket from a known drug source city, checking either one bag or no bag at all, and traveling with others while attempting to make it appear that they were traveling apart.

The agent met Perez as he deplaned, displayed his badge, and asked Perez if he could speak with him. Perez responded, ‘Yes.” The agent was dressed casually; he was not in uniform and did not display a weapon. The agent asked to see Perez’s identification, and he agreed. Initially, Perez gave the agent a Florida identification but stated that he no longer lived in Florida. He then produced Virgin Islands identification. Questioned about his reasons for visiting Atlanta, Perez said he was visiting family, but did not know where they lived. At this point, the agent noticed that Perez “seemed extremely nervous”; his hands were shaking and his voice trembling. “To try to relax him,” the agent told him that he was not under arrest. Throughout this entire episode, the agent spoke in a normal, conversational tone and never demanded that Perez comply with his requests.

The agent then explained to Perez that he was a narcotics agent and that his job was to deter the flow of drugs through the airport. He then asked Perez “if it was okay for him to search him and his bag for drugs and drug proceeds.” Perez responded, ‘Yeah, yeah, go ahead.” After asking if Perez was carrying anything of value and receiving a negative response, the agent asked if it was “okay if I search you now,” and Perez responded, “Yeah,” and raised his arms up in the air. The agent told Perez that he could put his hands down because he was not under arrest. After briefly patting down Perez, the agent asked, “[W]ould you please take your shoes off.” Perez was wearing “hiking type boots” or “low-cut, trail, hiking type shoes.” Perez did not say anything, but turned around, knelt down, removed his shoes, and stepped back.

When the agent picked up the shoes, he discovered that they “seemed peculiarly heavy.” He was familiar with the type of shoe worn by Perez and in fact owned a pair himself. Upon closer examination, he observed that the shoes had been altered; it appeared that the factory insoles had been removed and reattached with a bead of black glue, as if someone had used a glue gun. He asked Perez what was in his shoes, and Perez responded, “Nothing.”

The agent testified that he had inspected shoes of all kinds in the course of his work and that smugglers often hide drugs in their shoes; he had made several arrests for drugs and drug proceeds concealed in this fashion. He showed them to another agent and a customs inspector, who agreed that “there’s something inside of these shoes.” They used a pocketknife to remove the insole and discovered a plastic bag containing suspected cocaine. A search of the other shoe revealed similar contents.

1. The uncontradicted evidence demonstrates that Perez voluntarily stopped to speak with the agent at the agent’s request. The agent was dressed in plainclothes, displayed a badge but no weapon, and did not threaten Perez or use other than a conversational tone of voice. He informed Perez on two separate occasions that he was not under arrest. This case therefore does not involve a Terry stop requiring an articulable suspicion on the part of the police officer but merely a “first tier” police-citizen encounter without coercion or detention. In such a situation, “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.” (Citations and punctuation omitted.) Gary v. State, 244 Ga. App. 535, 536 (536 SE2d 192) (2000).

2. We next consider Perez’s contention that his consent to search was not voluntarily given. When the State relies upon consent, it bears the burden of proving that under the totality of the circumstances surrounding the consent, it was “voluntary and not the result of duress or coercion.” Garcia v. State, 207 Ga. App. 653 (1) (a) (428 SE2d 666) (1993). Once a voluntary consent is given, it continues until it is either revoked or withdrawn. Id. at 656 (1) (d).

Here, when the agent asked Perez if he could search his person and luggage, Perez replied, “Yeah, yeah, go ahead.” Not only did Perez consent again to the search of his person, he gave a separate, nonverbal consent to the search of his shoes and never attempted to withdraw or revoke his consent. See Borda v. State, 187 Ga. App. 49, 50 (369 SE2d 327) (1988). Until this time, Perez had been stopped for only a brief police-citizen “first-tier” inquiry, and the agent had done nothing to create a coercive atmosphere. Viewed under the totality of the circumstances, Perez’s consent was voluntary and, once given, remained in effect until revoked. Garcia, supra.

3. We next consider Perez’s contention that the actions of the customs officer in using a knife to remove the insole of his shoe and discover the cocaine concealed below went beyond the scope of his consent to search. It is true, as Perez contends, that consent to a request to search a person “could not reasonably be understood to allow search of all body cavities, for example, or even a removal of defendant’s clothing.” Springsteen v. State, 206 Ga. App. 150, 152 (424 SE2d 832) (1992). But the State presented evidence that Perez consented to the removal of his shoes. And removing an interior component of an area searched, for example a vent or dashboard panel in a car, may remain within the scope of consent to a search. Semelis v. State, 228 Ga. App. 813, 815-816 (1) (b) (493 SE2d 17) (1997). Compare Amato v. State, 193 Ga. App. 459, 460 (1) (388 SE2d 54) (1989) (physical precedent only) (officer’s action in pulling off and breaking vent cover exceeded scope of consent for officer to “look in” passenger compartment).

But we need not reach the issue of whether removing the insole of Perez’s boot was beyond the scope of his consent to search him, his bags, and his shoes, because the agents’ knowledge before they removed the insole was sufficient to establish probable cause. “An individual’s conduct in response to questioning or attempted questioning may rise to the level of probable cause to conduct an arrest or search. The cumulative effect of the officers’ observations and [Perez’s] conduct was sufficient to meet this standard.” (Citation and punctuation omitted.) Richardson v. State, 232 Ga. App. 398, 401 (3) (501 SE2d 885) (1998).

We have held that the observation of “suspicious ‘leg bulges’ ” beneath an airline passenger’s boots, when coupled with an agent’s previous knowledge that such bulges probably “constituted two illegal caches of drugs,” and the passenger’s denial that he had anything in his boots, “provided not only reasonable suspicion but also probable cause for his arrest.” (Citations and punctuation omitted.) Miller v. State, 183 Ga. App. 702, 703 (359 SE2d 683) (1987). See also Clark v. State, 183 Ga. App. 838 (360 SE2d 447) (1987).

Decided April 9, 2001 —

Reconsideration denied April 27, 2001 —

Bruce S. Harvey, David S. West, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

The trial court was authorized to consider the totality of the circumstances in determining the existence of probable cause, and “[a] combination of suspicious circumstances evincing the conduct of a criminal act may amount to sufficient probable cause to uphold a warrantless arrest or search.” (Citations and punctuation omitted.) Gebremedhin v. State,^ 202 Ga. App. 811, 812 (415 SE2d 529) (1992). Not only was Perez identified by name by a confidential, reliable source, but investigation revealed the accuracy of the source’s information and additional facts corresponding with the drug courier profile. In combination with Perez’s increasing nervousness, the unusual weight of his shoes and apparent alteration of the insoles, and the agents’ knowledge that drug smugglers often carried drugs and drug proceeds in their shoes, these facts and observations “provided probable cause in the totality of circumstances to uphold this search.” Id.

A trial court’s ruling on a motion to suppress will be upheld if it is right for any reason. Benton v. State, 240 Ga. App. 243, 245 (1) (522 SE2d 726) (1999). We therefore find sufficient evidence to support the trial court’s denial of Perez’s motion to suppress.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       We note that the State’s failure to respond to the application for interlocutory appeal significantly limited the facts available to us on initial review.

       Perez points out that on cross-examination the agent’s account of the exact wording of this request varied. He argues that the agent asked, “Would you mind taking off your shoes,” and that he answered, “Yeah,” meaning that he did mind and therefore had refused consent. But this interpretation is belied by Perez’s undisputed action in turning around, removing his shoes, and stepping away from them. The trial court as the trier of fact was authorized to accept the State’s interpretation of the testimony, and some evidence supports that interpretation. Tate, supra.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).


author: Barnes, Judge.

text:
    A01A0124.
    MILLER et al. v. CRUMBLEY et al.
    (548 SE2d 657)
   Barnes, Judge.

Carolyn Miller sued Christy and Charles Crumbley, alleging Christy Crumbley negligently drove Charles Crumbley’s car across the centerline of the road, crashed into Miller’s car, and injured her. Miller also made an underinsured claim against her insurance carrier. Frank Miller brought a separate action against the Crumbleys for loss of consortium, but the trial court granted the Crumbleys’ motion for joinder and consolidated the two actions.

The trial court granted the Crumbleys’ motion for partial summary judgment on the Millers’ claim for punitive damages and denied the Millers’ motion to compel the Crumbleys to answer interrogatories concerning their financial status. The court also denied the Millers’ motion for partial summary judgment on liability. The Millers appeal the trial court’s orders granting the Crumbleys’ motions for joinder and partial summary judgment on punitive damages and denying the Millers’ motions to compel and for partial summary judgment on liability. For the reasons set forth below, we affirm.

1. The Millers argue that the trial court erred in granting the Crumbleys’ motion to join Frank Miller’s loss of consortium claim with his wife’s personal injury claim, pursuant to OCGA § 9-11-19 (a) (2) (B). That Code section provides:

A person who is subject to service of process shall be joined as a party in the action if. . . [h]e claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . [l]eave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

In a well-reasoned order, the trial court noted that “[a] loss of consortium claim is derivative of the spouse’s personal injury action.” It further held that “ ‘[a] 11 claims which derive from the personal injuries sustained by a single individual’ should be joined in a single action,” citing Stenger v. Grimes, 260 Ga. 838, 839 (1) (400 SE2d 318) (1991).

The trial court properly granted the defendants’ motion for joinder of the separate personal injury and loss of consortium claims. Stapleton v. Palmore, 250 Ga. 259, 260 (297 SE2d 270) (1982). We find no error.

2. The Millers contend the trial court erred in denying their motion for partial summary judgment on the issue of liability, arguing that Christy Crumbley’s guilty plea to the charge of following too closely was dispositive.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Crumbley testified in her deposition that the car in front of her stopped suddenly and she tried to swerve to the right to avoid hitting it. Her car slid to the left, into oncoming traffic, where she and Miller’s car collided. She did not appear for the traffic court hearing and forfeited her bond as payment of the ticket. The evidence of Crumbley’s guilty plea is not sufficient to establish conclusively her liability for Miller’s damages. “Although a guilty plea is an admission against interest and prima facie evidence of the facts admitted, it is not conclusive that defendant was negligent as it is only a circumstance to be considered along with the other evidence in the civil action for damages.” (Citations and punctuation omitted.) Peacock v. Strickland, 198 Ga. App. 406-407 (1) (401 SE2d 601) (1991). The Millers contend that Cannon v. Street, 220 Ga. App. 212, 214 (3) (469 SE2d 343) (1996), requires a different result, but in that case, the defendant admitted he ran a red light and presented no evidence that the plaintiff could have avoided the collision by exercising ordinary care. The trial court did not err in denying the Millers’ motion for partial summary judgment on the issue of liability.

3. The Millers assert the trial court erred in granting the Crumbleys’ motion for partial summary judgment on the issue of punitive damages. Carolyn Miller amended her complaint to assert “[t]hat as a result of those facts as set forth herein, Defendant’s actions show that entire want of care which would raise the presumption of conscious indifference to consequences, and the Plaintiff is therefore entitled to damages pursuant to OCGA § 51-12-5.1.” The Millers argue that Christy Crumbley’s failure to keep a proper lookout while driving coupled with her guilty plea to following too closely was sufficient to show a conscious indifference to consequences that would support a punitive damages award.

“In automobile collision cases decided under OCGA § 51-12-5.1, punitive damages are not recoverable where the driver at fault simply violated a rule of the road.” (Citation omitted.) Carter v. Spells, 229 Ga. App. 441, 442 (494 SE2d 279) (1997). We have found that “punitive damages are recoverable under the statute where the collision resulted from a pattern or policy of dangerous driving,” such as driving while intoxicated or speeding excessively. Id. A review of the record reveals no evidence that Christy Crumbley caused this collision through a “pattern or policy of dangerous driving.” The trial court did not err in granting the Crumbleys’ motion for partial summary judgment on the issue of punitive damages.

4. Finally, the Millers assert that the trial court erred in denying their motion to compel the Crumbleys to answer certain interrogatories relating to their financial condition. The Crumbleys contend that, in the absence of a claim for punitive damages, this information was not relevant or admissible. “[T]he [appellants] in this case [were] not entitled to discover information concerning the [appellees’] personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for [their] punitive damage claim.” Holman v. Burgess, 199 Ga. App. 61, 64 (404 SE2d 144) (1991). Because the trial court properly granted partial summary judgment to the Crumbleys on the Millers’ punitive damages claim, the court also properly denied the Millers’ motion to compel the Crumbleys to disclose information about their financial resources. Ledee v. Devoe, 225 Ga. App. 620, 624 (2) (484 SE2d 344) (1997).

Decided April 27, 2001.

Albert B. Wallace, Stephen B. Wallace II, William R. L. Latson, for appellants.

Mabry & McClelland, Beth S. Reeves, for appellees.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Eldridge, Judge.

text:
    A01A0467.
    SIMPSON et al. v. SOUTHWIRE COMPANY.
    (548 SE2d 660)
   Eldridge, Judge.

In 1993, plaintiffs Joey Simpson and his wife, Jeannette, filed a complaint for damages against the defendants, Transus, Inc., a Georgia corporation, and its insurer, Protective Insurance Company, an Indiana corporation, for personal injuries he sustained in a truck collision and her loss of consortium. Mr. Simpson’s employer at the time of the accident, appellee-plaintiff Southwire Company intervened seeking to protect and enforce its subrogation lien under OCGA § 34-9-11.1 (b) and to recover for property damage to its truck. Transus counterclaimed. Mr. Simpson’s estate was substituted as a plaintiff upon his death in June 1997, and the case was set for trial in January 1998. As the trial was about to begin, the case settled in the amount of $300,000. Pursuant to a contingency agreement, the attorney fees due the Simpsons’ attorneys on the settlement were $100,000. In May 1998, Southwire filed its application for apportionment and award of attorney fees under OCGA § 34-9-11.1 (d) of the workers’ compensation statute, seeking to recover a reasonable portion of the attorney fees on the settlement ($100,000) for its efforts in support of the underlying action.

Appellant-plaintiff Jeannette Simpson, individually and as executrix of the estate of Joey Simpson (“Simpsons”), appeals from the state court’s order apportioning attorney fees generated pursuant to the settlement, awarding counsel for Southwire attorney fees of $12,000. The Simpsons contend that the state court erred in apportioning attorney fees under OCGA § 34-9-11.1 (d) in that OCGA § 34-9-11.1 read as a whole does not permit an apportionment of attorney fees in the absence of the employer’s recovery on its subrogation lien after the injured employee has been fully and completely compensated. In the alternative, the Simpsons contend that any apportionment of attorney fees under OCGA § 34-9-11.1 (d) should extend to all attorney fees earned, i.e., not only to those earned on her third-party tortfeasor claim, but to those earned incident to Southwire’s failed attempt to recover the employer’s subrogation lien. Finding the Simpsons’ principal claim of error to be meritorious upon the plain meaning of OCGA § 34-9-11.1, we reverse.

1. The cardinal rule of statutory construction is to give effect to the purpose and intent of the legislature. See Thornton v. Clarke County School Dist., 270 Ga. 633, 634 (1) (514 SE2d 11) (1999). Moreover, “ ‘[t]he construction (of statutes) must square with common sense and sound reasoning.’ [Cit.]” Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367) (1992).

OCGA § 34-9-11.1 (d) provides:

In the event of a recovery from such other person by the injured employee or those to whom such employee’s right of action survives by judgment, ... or otherwise, the attorney representing such injured employee or those to whom such employee’s right of action survives shall be entitled to a reasonable fee for services; provided, however, that if the employer or insurer has engaged another attorney to represent the employer or insurer in effecting recovery against such other person, then a court of competent jurisdiction shall upon application apportion the reasonable attorney fee between the attorney for the injured employee and the attorney for the employer or insurer in proportion to services rendered.

(Emphasis supplied.) On its face, this subsection provides that attorney fees shall be apportioned upon satisfaction of three criteria.

First, the employee (or those to whom such employee’s right of action survives) must recover from the third-party tortfeasor both plaintiff’s damages and lien damages, i.e., lost earnings and medical expenses. OCGA § 34-9-11.1 (b). Southwire argues that there is no requirement that there first be recovery of the subrogation lien of the employer or the employer’s insurer or that the employee’s recovery be full and complete. However, by its own terms, OCGA § 34-9-11.1 (b) makes clear that there is no recovery for the employer or the employer’s insurer under OCGA § 34-9-11.1 as a whole apart from such subrogation lien as may lie after the payment of full and fair compensation to the injured employee. OCGA § 34-9-11.1 (b) pertinently provides that

the employer’s or the insurer’s recovery under this Code section shall be limited to the . . . amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

(Emphasis supplied.) Second, the employer or the employer’s insurer must have engaged another attorney to pursue its authorized recovery. And third, an application for apportionment of attorney fees attributable to such recovery must be filed.

“Language in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute.” Echols v. Thomas, 265 Ga. 474, 475 (458 SE2d 100) (1995), citing Bd. of Trustees &c. of Atlanta v. Christy, 246 Ga. 553, 554 (272 SE2d 288) (1980). Therefore, it would defy common sense and logic to interpret OCGA § 34-9-11.1 (d) as authorizing the employer or the employer’s insurer to hire an attorney to seek a recovery other than the limited recovery authorized by subsection (b). It likewise would ignore the self-evident to interpret OCGA § 34-9-11.1 (d) as authorizing the apportionment of attorney fees to the employer or employer’s insurer not attributable to effecting the limited lien share recovery authorized under subsection (b). To do so would be to put the legislature in the untenable position of having an interest in the private employment contract negotiated between the injured employee and his or her attorney. It would also give OCGA § 34-9-11.1 (d) a construction in conflict with the legislature’s intent as found in construing the statute as a whole, i.e., such a construction would allow the employer or employer’s insurer a recovery apart from its lien damages in violation of the full and fair compensation rule by requiring the injured employee to bear the legal expense of the employer or the employer’s insurer. In general, “an insurer may not obtain reimbursement unless and until its insured has been completely compensated for his losses.” Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647 (482 SE2d 325) (1997).

Decided April 27, 2001

Smith, Wallis & Scott, Kenneth A. Smith, James W. Wallis, Jr., Christopher B. Scott, for appellants.

Smith, Gambrell & Russell, James H. Bratton, Jr., Thomas M. Barton, Edward D. Burch, Jr., Dena Klopfenstein, for appellee.

O’Neal, Brown & Clark, John C. Clark, Jarome E. Gautreaux, Clifford C. Perkins, Jr., amici curiae.

It is undisputed that Southwire did not file its application for apportionment and award of attorney fees under OCGA § 34-9-11.1 (d) upon its subrogation lien or upon the claim that the injured employee was fully and completely compensated. Rather, Southwire sought to recover a reasonable portion of the attorney fees earned by the Simpsons’ attorneys upon the settlement of their third-party claim. That the state court nonetheless apportioned attorney fees earned on the settlement conferred a recovery on Southwire beyond its lien and at the Simpsons’ expense. Error requiring reversal resulted because this allowed Southwire a recovery beyond its limited entitlement to recovery under OCGA § 34-9-11.1. See OCGA § 34-9-11.1 (b). “ ‘[W]here a . . . statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.’ ” (Citations omitted.) Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); see also Dept. of Public Safety v. Schueman, 243 Ga. App. 369, 372-373 (532 SE2d 487) (2000) (gleaning legislative intent best accomplished by following literal language of statute unless contradiction, absurdity, or inconvenience results making a different statutory meaning obvious).

2. In light of our disposition of Division 1, we need not address the claim of error the Simpsons make in the alternative.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       This rule arises upon the rationale that
      [w]here the insurer or the insured must go unpaid to some extent, the loss should be borne by the insurer, since the insurer has already paid a premium for assuming this risk and would have been obligated to pay medical expenses regardless of its insured’s negligence and regardless of whether a culpable third party could have been found.

        Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647 (482 SE2d 325) (1997).


author: Andrews, Presiding Judge.

text:
    A01A0522.
    POOLE v. THE STATE.
    (548 SE2d 113)
   Andrews, Presiding Judge.

Jimmy Lee Poole appeals from the trial court’s denial of his motion for new trial following his conviction, after a bench trial, of two counts of driving under the influence of “any glue, aerosol, or other toxic vapor to the extent that it was less safe for him to drive” (OCGA § 40-6-391 (a) (3)); driving on the wrong side of the road; and improper stopping.

1. Poole’s second enumeration is that the trial court erred in failing to grant his motion for directed verdict because the State failed to prove the elements of the charges.

As a preliminary matter we note that the trial court could not have directed a verdict of acquittal because there is no verdict in a bench trial. Therefore, even if a motion for a directed verdict was made, such a motion has no meaning when a case is tried without a jury. See Blair v. State, 216 Ga. App. 545, 546 (1) (455 SE2d 97) (1995). As pointed out in Blair, the issue is whether the evidence was sufficient at trial to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997). See also Goodson v. State, 242 Ga. App. 167 (2) (529 SE2d 175) (2000).

Considering the legal sufficiency of the evidence under Jackson, supra, and viewing the evidence with all inferences in favor of the factfinder’s conclusions, the evidence was that on June 19, 1999, Atlanta Officer Skelton responded to a suspicious vehicle call. Upon arriving at the scene, he found Poole’s truck sitting in the middle of the road, headed in the wrong direction. Officer Baxter also responded, and the two officers found Poole slumped over the steering wheel, passed out. The truck’s motor was running, it was in gear, and Poole’s foot was on the brake pedal. The officers attempted to wake Poole, whereupon Poole immediately stuck a hose, attached to a canister in the passenger’s seat, up to his nose, and the officers heard a “hissing” sound. When the officers finally got Poole out of his truck, they had to hold him up, his speech was slurred, his pupils were dilated, and he appeared “out of it.” Poole told the officers that he was having family trouble and that he used and had a problem with Freon. The canister in the truck appeared to the officers to be marked “Freon.” In the opinion of the officers, Poole was under the influence of an inhalant to the extent that he was less safe to drive.

On July 13, 1999, at approximately 10:30 a.m., Shepherd was at work on Menlo Drive in Atlanta when he heard a crash. Running outside, he found his pickup truck had been run into by one driven by Poole. Poole was attempting to start his truck, which had water running out of the radiator and steam coming from the hood. Shepherd, a former commercial truck driver for 19 years, testified that he was familiar with impaired drivers. When asked what happened, Poole responded that his brakes gave way and he could not get the truck to crank. In Shepherd’s opinion, Poole seemed unaware that he had struck Shepherd’s truck. Poole had a red hose connected to a container labeled “R-22” draped across his leg. Poole would put his thumb over the end of the hose, turn the tank on, stick the hose up his nose, and inhale. Police were called, and Officer Goode arrived to find Poole with the rubber hose in his hand, incoherent, and unable to respond initially. Goode got Poole out of the truck, and he was unsteady on his feet. He said he had just come from court on a DUI charge. Asked for his license, he handed over a citation. Poole did not smell of alcohol, but was partially incoherent and unsteady on his feet. Goode observed the markings “R-22 refrigerant” on the canister, and Poole stated that he worked in air conditioning repair and that was the refrigerant. In Officer Goode’s opinion, Poole was under the influence of an inhaled substance which made him less safe to drive.

Officer Corroto testified that he was certified by the National Traffic Safety Administration and International Association of Chiefs of Police as a drug recognition expert. As such, he had received training on inhalants used to produce mind altering results. He testified that there are three subgroups of inhalants: volatile solvents, aerosols, and anesthetic gases. Freon is an aerosol inhalant and, when inhaled, will cause the person to appear dazed and disoriented, lack muscle control, have a flushed appearance, and, in general, appear similar to someone suffering significant alcohol impairment. Officer Corroto opined that one found slumped over the wheel, passed out, with a poor ability to walk, slurred speech, and poor comprehension of events was consistent with one under the influence of Freon.

The evidence was legally sufficient. Jackson, supra.

2. In his first enumeration, Poole contends that the trial court erred in allowing inadmissible hearsay testimony of the three officers and Shepherd “as to what the canister contained,” based on Ledford v. State, 239 Ga. App. 237 (520 SE2d 225) (1999).

In Ledford, the accused, who acknowledged “huffing” paint from a spray can, was charged under OCGA § 16-13-91, with inhaling “paint containing acetone and toluene.” That Code section prohibits, for the purpose of causing, inter alia, intoxication, “intentionally smell [ing] or inhal[ing] the fumes from any model glue. . . .” In OCGA § 16-13-90, model glue is defined as any “glue, cement, solvent, or chemical substance containing one or more of the following chemicals: [numerous chemicals listed, including] toluene.”

The only proof at trial of the presence of toluene in the paint was the introduction of the spray paint can, the label of which listed the ingredients, including toluene. This Court found that this hearsay, alone, was legally insufficient to prove the presence of toluene, which was an essential element of the crime charged.

Decided April 27, 2001.

Joe Morris III, for appellant.

Joseph J. Drolet, Solicitor-General, Michael S. LaScala, Assistant Solicitor-General, for appellee.

Here, in contrast, the presence of a specific chemical was not an essential element of the crime. Poole was charged with being under the influence of “any glue, aerosol, or other toxic vapor to the extent that it [was] less safe for [him] to drive,” in violation of OCGA § 40-6-391 (a) (3). That Code section, unlike the Code section involved in Ledford, does not require proof of the chemical composition of the glue, aerosol, or other toxic vapor, only that the person is under the influence of such glue, aerosol, or toxic vapor to the extent that it is less safe for the person to drive.

Additionally, here there was proof in addition to the label to show that Poole had, in fact, been inhaling Freon. First, Poole was seen inhaling from a hose attached to a canister labeled “R-22” on July 13 by both Shepherd and the responding officer. Also, Poole acknowledged to the officer that he worked in air conditioning and that the canister was “the refrigerant.” On June 19, having been seen by Officers Skelton and Baxter inhaling from a hose attached to a canister marked “Freon,” Poole acknowledged to Officer Skelton that he had a problem with Freon. Finally, there was testimony by a drug recognition expert that Freon is an aerosol subject to abuse and that the actions of Poole were consistent with inhaling Freon.

There was no error here because there was proof that Poole was under the influence of an inhalant, circumstantially proven to be Freon, to the extent that it was less safe for him to drive. See Kevinezz v. State, 265 Ga. 78, 79 (2) (454 SE2d 441) (1995).

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       One count of DUI was alleged to have occurred on July 13, 1999. The second count of DUI and the remaining charges were alleged to have occurred on June 19,1999. The charge of improper stopping was merged for sentencing purposes.


text:
    A01A0563.
    AKIN v. THE STATE.
    (548 SE2d 655)
   Barnes, Judge.

A jury convicted Harvey L. Akin of felony public indecency under OCGA § 16-6-8. Akin appeals, contending that insufficient evidence supported the verdict. Because the State failed to present evidence that Akin exposed his genitals, as alleged in the indictment, we reverse.

The evidence at trial established that Akin watched two women park their van, then parked beside their van, and waited about an hour until they returned. One woman went to the passenger side to unlock it for her daughter-in-law, who glanced inside Akin’s car, saw the occupant masturbating, and turned away immediately. She testified she saw his hand inside his shorts but could not see any private parts. The mother-in-law testified that she saw Akin masturbating in his car with both hands inside his shorts while he looked at her and smiled. She began berating him, saying he was an animal and cursing at him, which made him laugh but did not make him stop masturbating. She testified that she never saw his genitals.

A probation officer testified that he interviewed Akin, who told him that he had been sitting in his car, saw. some beautiful women, and became sexually aroused. He said he began masturbating with his hands inside his shorts, but never exposed his penis to anyone. When the officer asked if he would make a written statement, Akin said he thought he needed an attorney, and the officer terminated the interview.

Akin argues that no evidence showed he exposed his penis and, therefore, the State did not present sufficient evidence to convict him of indecent exposure. OCGA § 16-6-8 (a) provides: “A person commits the offense of public indecency when he or she performs any of the following acts in a public place: (1) An act of sexual intercourse; (2) A lewd exposure of the sexual organs; (3) A lewd appearance in a state of partial or complete nudity; or (4) A lewd caress or indecent fondling of the body of another person.” The indictment charged Akin with

the offense of Public Indecency [(OCGA § 16-6-8)] for that the said accused, in the State and County aforesaid, on the 3rd day of July, 1998, did unlawfully, perform a lewd appearance in a state of partial nudity and a lewd exposure of the sexual organs in a public place, . . . said accused having at least three (3) prior convictions for Public Indecency, contrary to the laws of said State, the good order, peace and dignity thereof.

(Emphasis supplied.)

In Clark v. State, 169 Ga. App. 535, 536 (3) (313 SE2d 748) (1984), the appellant was charged with OCGA § 16-6-8 (a) (3), making a lewd appearance in a state of partial nudity in a public place. The evidence consisted of a police officer’s testimony that he saw the appellant urinating on the ground in a public shopping center parking lot, although he never saw the appellant’s genitals. The appellant argued the evidence was insufficient because no one testified they saw him in a state of partial nudity. We held that the State presented sufficient circumstantial evidence of partial nudity, “as the jury could reasonably have inferred from the police officer’s testimony that appellant was partially nude while performing the act of urination.” Id.

Decided April 27, 2001.

Kenneth D. Bruce, for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael Moeller, Assistant District Attorney, for appellee.

In this case, unlike Clark, not even circumstantial evidence exists that Akin was partially nude or had exposed his sex organs. To the contrary, both eyewitnesses testified specifically that they never saw Akin’s genitals because he had his hands inside his shorts. Although the General Assembly might have logically included the defendant’s misconduct within the prohibitions in OCGA § 16-6-8, it did not do so, and we are not free to interpret the statute to accomplish that end. A criminal statute’s unambiguous words may not be altered by judicial construction in order to extend punishment, however deserving of the punishment the person’s conduct may seem. Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896) (1944).

Further, criminal statutes must be strictly construed against the State, and we cannot resort to subtle and forced constructions to limit or to extend the operation of criminal statutes. Fleming u. State, 271 Ga. 587, 590 (523 SE2d 315) (1999). “The unambiguous words of a criminal statute are not to be altered by judicial construction so as to punish one not otherwise within its reach.” (Citation and punctuation omitted.) State v. Luster, 204 Ga. App. 156, 158 (1) (a) (ii) (419 SE2d 32) (1992).

We conclude that the evidence was insufficient for a rational trier of fact to find Akin guilty beyond a reasonable doubt of public indecency, as defined by the statute and charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment reversed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A0614.
    CARTER v. GLENN et al.
    (548 SE2d 110)
   Barnes, Judge.

Yula Carter appeals the trial court’s grant of summary judgment to Lithonia’s mayor and police chief in this action alleging that a former Lithonia police officer raped her. She contends that the two defendants were not entitled to official immunity. We disagree and affirm.

Carter sued Paul Wade, alleging that he raped her while he was on duty as a Lithonia police officer. She also sued Lithonia’s mayor, Marcia Woods Glenn, and its police chief, Jerome Woods, both officially and individually, as well as the City of Lithonia itself. We previously affirmed the trial court’s grant of summary judgment to the City, Glenn, and Woods on Carter’s federal civil rights claim under 42 USC § 1983, finding the trial court did not err in concluding that Carter presented no evidence the city had a custom or policy of condoning such actions. Carter v. Glenn, 243 Ga. App. 544 (533 SE2d 109) (2000). We farther affirmed the trial court’s grant of summary judgment to the city on Carter’s state law claims because Carter failed to give the required ante litem notice, but reversed as to Glenn and Woods because the ante litem notice issue applied only to the municipality. Id. at 550-551.

On remand, Glenn and Woods moved for summary judgment on the ground that they were entitled to official immunity, as well as on other grounds. The trial court granted the motion, finding that the

individual acts alleged and supported by the evidence constitute discretionary acts. Therefore, individual liability can attach only if those acts were done with actual malice or actual intent to cause injury. [Cit.] Absent evidence of actual malice, Glenn and Woods are entitled to immunity for the performance of these official discretionary duties. [Cit.] There is no evidence that these acts resulted from actual malice or intent to cause injury. Therefore, the individuals are clothed with official immunity and they can have no personal liability for the acts alleged, even if they occurred.

In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). As the movants for summary judgment, Glenn and Woods had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to the plaintiffs, warranted judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. We first consider Carter’s contention that the city’s purchase of liability insurance waived Glenn’s and Woods’ immunity under OCGA § 33-24-51 (b). That statute provides:

Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. ...

Carter fails to point out, however, that OCGA § 33-24-51 (a) limits the immunity waiver to insurance covering liability “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation.” Because Carter’s cause of action does not arise out of the use of a motor vehicle, the city’s purchase of liability insurance did not waive the immunity of its mayor and police chief. Harry v. Glynn County, 269 Ga. 503, 504 (1) (501 SE2d 196) (1998); Lincoln County v. Edmond, 231 Ga. App. 871, 873 (1) (501 SE2d 38) (1998).

2. We next consider whether the trial court correctly held that Glenn and Woods, who were sued individually, are entitled to official immunity from claims brought against them in their personal capacities. The 1991 amendment to the Georgia Constitution provides that such officials “may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” Art. I, Sec. II, Par. IX (d), Ga. Const. (1983). In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury. Schmidt v. Adams, 211 Ga. App. 156 (438 SE2d 659) (1993). Carter does not allege that Glenn or Woods acted with malice or intent to cause injury, so if the damages complained of arise from discretionary actions, the employees have official immunity. If the damages arise from tire performance or nonperformance of ministerial duties, the employees do not have official immunity.

[The decision of whether acts of a public official] are ministerial or discretionary is determined by the facts of the particular case. A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citations and punctuation omitted.) Stone v. Taylor, 233 Ga. App. 886, 888 (2) (506 SE2d 161) (1998).

Decided April 27, 2001.

James C. West III, for appellant.

Hawkins & Parnell, Michael J. Goldman, Michelle D. Coburn, for appellees.

While the act of establishing a policy in the first place is discretionary, the acts of following established policies of inspecting and monitoring are ministerial tasks. Woodard v. Laurens County, 265 Ga. 404, 407 (2) (456 SE2d 581) (1995); Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Carter alleges that Glenn and Woods negligently hired and retained Wade. She further argues that Glenn and Woods failed to perform adequate background checks on Wade and that such background checks were ministerial functions.

“The operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function. [Cits.]” McDay v. City of Atlanta, 204 Ga. App. 621 (1) (420 SE2d 75) (1992). Liability may be imposed as a result of the exercise of such a discretionary function only when the acts complained of are done within the scope of the officer’s authority and with wilfulness, malice or corruption. Id. There has been no showing of any conduct by [Mayor Glenn or Police Chief Woods that] would amount to wilfulness, malice or corruption. Both were entitled to official immunity as a matter of law.

(Footnote omitted.) Lowe v. Jones County, 231 Ga. App. 372, 373 (3) (499 SE2d 348) (1998).

3. Finally, Carter argues that the trial court erred in granting summary judgment because it did not construe the evidence in the light most favorable to Carter as the nonmoving party and therefore usurped the jury’s function. But if the relevant facts are not in dispute, whether official immunity is applicable is a question of law. Keenan v. Plouffe, 267 Ga. 791, 793, n. 1 (482 SE2d 253) (1997). Here, the facts relevant to whether immunity is applicable are not in dispute; no factual issue exists regarding whether the acts of the mayor and police chief in hiring and retaining Wade are discretionary or ministerial. The trial court did not err.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A0019.
    BROWN et al. v. MACHEERS.
    (547 SE2d 759)
   Phipps, Judge.

Lonnie Brown, individually and as administrator of his wife’s estate, brought this wrongful death and medical malpractice action against Dr. Steven Macheers. The jury returned a verdict in favor of Dr. Macheers. Brown contends in this appeal that the trial court erred or abused its discretion in various rulings concerning examination of witnesses, admission of evidence, and jury instructions. We agree and reverse.

Mrs. Brown was born with a ventricular septal heart defect which, in her childhood, necessitated an operation known as a sternotomy. As an adult, she required another sternotomy, which was performed by Dr. Macheers. Due to the serious nature of Mrs. Brown’s condition, complications arose during and after the operation, and she died from coagulopathy or excessive bleeding.

Evidence was presented showing that administration of the drugs Amicar or Aprotinin before surgery diminishes the risk of excessive bleeding, whereas ingestion of aspirin enhances such risk. Brown’s medical expert, Dr. Webb, testified that because repeat sternotomies are generally prolonged procedures, and particularly because Mrs. Brown had taken aspirin when she was catheterized near the time of her surgery, Dr. Macheers committed professional negligence by not giving her Amicar or Aprotinin before the operation. Dr. Macheers testified that Aprotinin was contraindicated in this case because one of the primary risks to Mrs. Brown was blood clotting, and administration of Aprotinin has been known to result in the formation of blood clots and to cause death. Dr. Macheers’s medical expert, Dr. Rosengart, testified that no applicable standard of care required Dr. Macheers to administer Amicar or Aprotinin in this case.

1. The trial court abused its discretion, Brown charges, by refusing to allow him to question Dr. Macheers about his reaction when Dr. Webb testified that Mrs. Brown had taken aspirin before her operation.

Brown maintains that Dr. Macheers registered surprise by hurriedly flipping through his papers when the question was asked, thereby indicating that he had not realized that she had taken the drug. Brown sought to question Dr. Macheers about his reaction, but counsel for Dr. Macheers objected. The court sustained the objection “as to drawing inferences from rattling papers.” The court should not have sustained the objection on that ground, because “ ‘the conduct of a party . . . with respect to the case is the subject of legitimate comment. . . .’ [Cit.]”

2. Brown contends that the court violated the fairness doctrine by refusing to require Dr. Macheers’s attorney to introduce all parts of Dr. Webb’s deposition relevant to a matter on which Dr. Webb was being impeached.

The fairness doctrine is based on OCGA § 9-11-32 (a) (5). In pertinent part, this statute provides that “[i]f only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.” This court, in Wells v. Aider-man, held that “[f]airness demands that no less than all portions relevant to that interrogated about be introduced at the same time.” The court in Wells explained that “[t]hese may fully explain any apparent conflict, or at least place' the witness in better position to reconcile or explain it,” and that “[a] statement out of context and without accompanying explanatory matter may be damaging and unfairly so.” Consequently, Wells concluded that where the plaintiff was cross-examining a witness about a statement he had made in a deposition, the defendant could require the plaintiff to introduce other relevant parts of the deposition during cross-examination, even though the statute also permits the defendant’s later introduction of the other parts of the deposition.

While questioning Dr. Webb, Dr. Macheers’s attorney observed that in his deposition Dr. Webb had not criticized Dr. Macheers for failing to use Amicar or Aprotinin prophylactically. Dr. Webb responded that, at the time, he was not aware that Mrs. Brown had ingested aspirin and that, in light of the presence of aspirin in her system, Dr. Macheers should have given her Amicar or Aprotinin. Invoking the fairness doctrine, Brown’s attorney thereupon objected to counsel’s not reading other parts of Dr. Webb’s deposition during cross-examination. The court overruled the objection after Dr. Macheers’s attorney stated that Brown’s attorney could read other parts of the deposition on redirect examination. Under Wells, the court erred in so ruling.

3. Brown contends that the court abused its discretion by refusing to allow him to cross-examine Dr. Macheers about whether the cost of Aprotinin affected his decision not to administer it.

During his cross-examination of Dr. Kauten, who assisted Dr. Macheers in performing the operation, Brown’s attorney elicited testimony showing that one reason physicians do not make extensive use of Aprotinin is that it is an expensive drug, and there is a risk that health care plans will deny reimbursement. However, Dr. Kauten explained that the expense of the drug is borne by the patient or hospital and does not affect the physician’s fee. When Dr. Kauten testified that Aprotinin costs between $500 and $1,000 per patient, Brown’s attorney asked if that was too much to spend for a drug that might have saved Mrs. Brown’s life. Dr. Kauten responded in the affirmative, noting that effectiveness of the drug has not been proven.

Before Dr. Macheers testified, the trial court sustained defense counsel’s objection to Brown’s posing questions to Dr. Macheers concerning the expense of Aprotinin. The court ruled that the matter had been adequately covered during the cross-examination of Dr. Kauten and that questioning Dr. Macheers on the same subject would be repetitive. We cannot agree with this ruling. Cross-examination of Dr. Kauten concerning how the cost of the drug might have affected the defendant’s decision not to prescribe it did not adequately substitute for questioning the defendant himself. By refusing to permit Brown’s attorney to engage in any inquiry of Dr. Macheers on this highly relevant issue, the trial court committed a harmful abuse of discretion necessitating a reversal of the judgment.

4. Brown charges the court abused its discretion by refusing to allow him to establish bias on the part of Dr. Kauten by showing that in his deposition he was represented by the same attorneys who represented Dr. Macheers at trial.

The court ruled that Brown could adequately impeach Dr. Kauten for bias by showing that he and Dr. Macheers are partners in the same group practice. As Dr. Kauten’s relationship to Dr. Macheers was thereby proved, the court did not abuse its discretion.

5. Brown claims that the court abused its discretion in sustaining defense counsel’s objection when Brown’s attorney asked Dr. Macheers whether he could rule out that Aprotinin “could have had an impact, causally” on Mrs. Brown’s excessive bleeding.

The court sustained the objection under the rule that “there can be no recovery in a wrongful death action based on medical negligence, where there is no showing to any reasonable degree of medical certainty that the patient’s death could have been avoided.” In other words, the plaintiff must prove that the death of the patient proximately resulted from the defendant’s negligence; a bare possibility of such result is insufficient. Nonetheless, “[t]o recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury.” Because Brown’s attorney’s question was relevant to the issue of cause in fact, the court erred in sustaining the objection.

6. Brown charges the court with abuse of discretion in ruling that he opened the door to admission of evidence concerning Mrs. Brown’s health insurance coverage when he injected the issue of whether the cost of Aprotinin affected Dr. Macheers’s decision not to prescribe it.

Because evidence of insurance is so prejudicial, it should not be admitted unless it is clearly relevant. [Cits.] In this type of case, this means that evidence of insurance should not be admitted unless it is clearly impeaching (i.e., unless the testimony which purportedly “opens the door” is clearly inconsistent with the existence of insurance).

Here, the only testimony that might have opened the door to admission of evidence concerning Mrs. Brown’s insurance coverage was that given by Dr. Kauten. Because Kauten’s testimony was not inconsistent with the existence of insurance coverage, Brown did not open the door to admission of evidence that she was covered by insurance.

7. Brown contends that the trial court erred in charging the jurors that if they found that there was “any doubt” as to where the preponderance of the evidence lay, it was their duty to resolve the issue against the party having the burden of proving it. Brown excepted to this charge on the ground that it could unduly confuse the preponderance of the evidence standard with the beyond a reasonable doubt standard in criminal cases.

The trial court’s general charge on this subject was substantially the same as that found in the Council of Superior Court Judges Suggested Pattern Jury Instructions. In this charge, the court accurately defined the term “preponderance” as meaning the “superior weight of the evidence” and instructed the jury that this “need not be enough to completely free the mind from reasonable doubt” but “must be sufficient to incline a reasonable and impartial mind toward one side of the issue, rather than the other.” By reference to a “scales of justice” analogy, the court further explained that to satisfy the burden of proof by a preponderance of the evidence, there must be a definite tilt or incline of the scales to one side, and, “if the scales are evenly balanced or going back and forth with no real tilt, then the burden of proof by a preponderance of the evidence could not be satisfied. . . .” The part of the charge complained of by Brown directed the jury to resolve an issue against the party having the burden of proving that issue “[i]f you find that the evidence is evenly balanced on any issue in this case, or if there is any doubt as to where the preponderance of the evidence lies” In another part of the charge, the court instructed the jury, “If you find that the weight of the evidence inclines your mind to one side of the issue rather than the other, although some doubt may remain, then you may still find that the burden of proving that issue has been satisfied.”

This charge accurately differentiated the preponderance of the evidence standard from the beyond a reasonable doubt standard. The complained-of portion of the charge instructed the jury to find against the plaintiff if there was any doubt as to whether he had carried his burden of proving his case by the degree of probability required by the preponderance standard. This did not have the effect of burdening the plaintiff with a requirement that he prove his case by the degree of certainty mandated by the reasonable doubt standard. The charge to the jury on the “any doubt” language, though arguably in conflict with the “some doubt” language in another part of the charge, did not constitute “prejudicial error.”

8. The trial court erred by refusing to give requested jury instructions that because a physician must bring to the exercise of his profession the requisite degree of care and skill, he may be held liable for failure to exercise either the required care or the required skill.

OCGA § 51-1-27 provides that a physician must “bring to the exercise of his profession a reasonable degree of care and skill.” “A failure to exercise care and skill may be accomplished by a failure to exercise care only, or by a failure to exercise skill only, or it may be accomplished by a failure to do both.” The court in Richards v. Harpe thus recognized that a charge in the conjunctive language of the statute is ambiguous in the absence of an additional explanation that the plaintiff may carry his burden of proof disjunctively. The trial court erred in refusing to give the additional explanation here.

Decided April 11, 2001 —

Reconsideration denied April 30,2001

O’Neal, Brown & Clark, Manley F. Brown, John C. Clark, Jarome E. Gautreaux, Adams & Adams, Charles R. Adams III, Tracey L. Dellacona, for appellants.

9. The court did not err in refusing to charge the jury that a recovery would be authorized if it found that negligence of the defendant was the proximate cause “or a contributing proximate cause” of Mrs. Brown’s death.

The concept of “contributing proximate cause” was in issue in this case because the jury could have found that Mrs. Brown’s death arose from her preexisting physical condition, or from negligence by Dr. Macheers, or from a combination of both. The trial court did not charge on contributing proximate cause as such. It instructed the jury that “[t]he fact that a patient has a physical condition which triggers an injury will not prevent such injury from being regarded as the proximate cause,” and that plaintiff is precluded from recovering “damages for injuries which are not attributable to a wrongful act or omission of defendant but which result [ ] solely from the patient’s original condition.” Because the charge thereby adequately explained the concept of contributing proximate cause as applied to this case, we find no error in the court’s refusal to give Brown’s requested charge.

10. The court did not err in refusing to give Brown’s requested jury charge, under the authority of Gusky v. Candler Gen. Hosp., that damage awards are not to be based on investments which can be purchased with proceeds from such awards.

Contrary to argument advanced by Brown, this issue was not injected into the case by Dr. Macheers’s attorney in his cross-examination of Brown’s economist. Our review of the transcript reveals that counsel cross-examined the witness concerning his methodology for computing the present value of Mrs. Brown’s future earnings.

11. The remaining enumeration of error involves matters unlikely to recur on retrial and need not be reviewed.

Judgment reversed.

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

Hall, Booth, Smith & Slover, John E. Hall, Jr., Deborah S. Moses, for appellee.

        Findlay v. Griffin, 225 Ga. App. 475, 477 (5) (484 SE2d 80) (1997).

       117 Ga. App. 724 (162 SE2d 18) (1968).

       (Emphasis supplied.) Id. at 735 (10); see also State Farm &c. Ins. Co. v. U. S. Fidelity &c. Co., 190 Ga. App. 220, 223 (4) (378 SE2d 400) (1989).

       Id.

       See generally Canada v. Shropshire, 232 Ga. App. 341, 342 (501 SE2d 860) (1998) (citing OCGA § 24-9-68).

        Dowling v. Lopez, 211 Ga. App. 578, 580 (2) (440 SE2d 205) (1993); compare Herr v. Withers, 237 Ga. App. 420 (515 SE2d 174) (1999) (where both the plurality and dissent agreed that “reasonable degree of medical certainty” language should not be injected into a charge on causation in an ordinary negligence case).

        Dowling v. Lopez, supra.

        Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990).

        Luke v. Suber, 217 Ga. App. 84, 86 (1) (456 SE2d 598) (1995).

       Suggested Pattern Jury Instructions, Vol. I: Civil Cases (3rd ed. 1991), pp. 3-4.

       (Emphasis supplied.)

       (Emphasis supplied.)

        Richards v. Harpe, 42 Ga. App. 123, 126 (12) (155 SE 85) (1930).

       Id. at 125-126 (11); see Goggin v. Goldman, 209 Ga. App. 251, 252-253 (433 SE2d 85) (1993), and cits.

       Supra.

       See generally Kammin v. O’Neal, 206 Ga. App. 855, 857 (2) (426 SE2d 633) (1992) (physical precedent only), rev’d on other grounds, 263 Ga. 218 (430 SE2d 586) (1993).

       192 Ga. App. 521, 524 (3) (385 SE2d 698) (1989).


text:
    A01A0835.
    MACK v. THE STATE.
    (547 SE2d 697)
   Phipps, Judge.

By accusation filed in the State Court of Dougherty County, and later by indictment returned in the Superior Court of Dougherty County, Willie Charles Mack was charged with criminal trespass onto a Food Lion grocery store in Albany on September 27, 1999. The indictment additionally charged Mack with other more serious offenses arising from the same incident. Following Mack’s conviction of criminal trespass in state court, he filed a plea of double jeopardy and motion to dismiss the charges in superior court. The superior court granted the plea as to the criminal trespass charge but denied the plea as to the remaining charges. Under Georgia law, double jeopardy bars Mack’s prosecution in superior court for all of the offenses. We, therefore, reverse.

On September 27, an employee of the grocery store observed Mack on the premises even though he had been banished from the store due to a prior shoplifting arrest. When Mack was confronted about his presence in the store and informed that he was trespassing, he allegedly battered and assaulted various individuals. The state court accusation was filed on October 15, 1999, as a result of a citizen’s warrant sworn out by an employee of the store. As a result of warrants issued to the Albany Police Department, the indictment was returned on December 16, 1999, charging Mack with battery, simple battery, and aggravated assault, as well as criminal trespass. Mack was tried for criminal trespass on the accusation in state court on April 4, 2000.

In the Dougherty Judicial Circuit, unlike most other judicial circuits in this state, the district attorney functions as chief prosecutor in both superior and state courts. However, the district attorney has delegated his prosecutorial responsibilities in state court to the chief assistant district attorney of the state court division, who functions as de facto solicitor-general of the county. Nonetheless, the district attorney’s preprinted name, though not his signature, appeared on Mack’s accusation and indictment. The state court prosecution was assigned to one of the assistant district attorneys in the state court division, and the superior court prosecution was assigned to an assistant district attorney in the superior court division.

The chief assistant district attorney of the state court division testified that the documentation received by the prosecutor’s office in state court in no way indicated that Mack had committed any offenses on September 27 other than criminal trespass. The assistant district attorney who handled the case in state court testified that he first became aware of the charges being prosecuted in superior court through testimony given by a prosecution witness during Mack’s state court trial. Similarly, the assistant district attorney prosecuting the superior court case was unaware of the state court prosecution. And the district attorney testified that he had no personal knowledge concerning either prosecution until he was informed of Mack’s double jeopardy plea.

In reliance on Smith v. State and State v. Smith Mack argues that his superior court prosecution is barred by OCGA § 16-1-7 (b), which provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” “[T]he requirements of [this] code section, that all offenses arising from the same conduct be tried together, apply ‘only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.’ ” The burden is on the defendant to show such knowledge on the part of the prosecuting officer.

In Smith v. State, an accusation was preferred and an indictment returned against the defendant in superior court. The accusation charged the defendant with a traffic offense. The indictment charged him with violations of the Controlled Substances Act based on drugs seized at the time of his arrest on the traffic charge. As here, both the accusation and indictment bore the name but not the signature of the district attorney. After disposition of the traffic charge, the defendant filed a double jeopardy plea to the drug charges. The superior court denied the plea based on undisputed evidence that the assistant district attorney handling the traffic case lacked actual knowledge of the drug offenses.

This court reversed because the inquiry under OCGA § 16-1-7 (b) concerns the knowledge of the prosecuting officer at the time the prosecution is commenced; a prosecution is commenced with the return of the indictment or the filing of the accusation; and the district attorney, by virtue of his name appearing on the accusation, was the prosecuting officer when the prosecution began. We held that the accusation and indictment constituted “conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions, [cits.], but chose to proceed separately as to each.” Our Supreme Court granted certiorari in the Smith case. Agreeing with our conclusion, the Court affirmed our decision in a plurality opinion.

In this case, the superior court found Smith to be distinguishable because of the undisputed testimony showing the absence of actual knowledge of the various prosecutions and offenses by the district attorney and assistant district attorneys. As a result, the court concluded that although Mack carried his initial burden of showing that the district attorney’s preprinted name appeared on both the accusation and indictment, the State rebutted this proof through the affirmative testimony of the prosecuting attorneys.

The court erred in distinguishing Smith on these grounds. We interpret Smith as holding that the appearance of the district attorney’s name on both an accusation and indictment constitutes circumstantial evidence which conclusively establishes his actual knowledge of the pendency of the prosecutions and of the offenses charged in each. This interpretation is shown by the fact that Smith, in support of its holding, cited cases such as Roebuck v. Payne. Roebuck holds that in certain circumstances actual knowledge of a fact will be imputed to a party notwithstanding his assertion of ignorance of the fact.

The State’s reliance on Blackwell v. State and Turner v. State is misplaced. In. Blackwell, the defendant filed a double jeopardy plea to hit and run and other charges after he had entered a plea of nolo contendere to a charge of no insurance arising from the same incident. It did not appear that the solicitor-general who was prosecuting the hit and run charges signed the traffic citation, and the defendant did not carry his burden of showing that the proper prosecuting officer for the no insurance charge had actual knowledge of the hit and run charges. Consequently, the state court’s denial of the defendant’s plea in bar to the hit and run prosecution was affirmed. It appears that in Turner there were different prosecutors for state court misdemeanor and superior court felony charges arising from the same incident; the defendant was indicted in superior court after pleading guilty to the charges in state court; and the defendant did not carry his burden of showing that the prosecutor of the misdemeanor offenses had actual knowledge of the felonies. Accordingly, it was held that disposition of the misdemeanor charges did not bar the felony prosecution.

Decided April 6, 2001 —

Reconsideration denied April 30, 2001

Ingrid P. Driskell, for appellant.

Kenneth B. Hodges III, District Attorney, Kenneth A. Dasher, Assistant District Attorney, for appellee.

Here, the district attorney was the prosecuting attorney for both the accusation and the indictment when they were filed or returned. The appearance of his name on both charging instruments conclusively establishes his knowledge that prosecutions against Mack for offenses arising from the same conduct were being brought simultaneously. Undisputably, the superior court had jurisdiction of all the offenses. Consequently, Mack’s conviction of the one offense in the state court proceeding raised a bar to his prosecution for all offenses charged in the superior court.

Judgment reversed.

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

       190 Ga. App. 246 (378 SE2d 493) (1989).

       259 Ga. 352 (381 SE2d 37) (1989).

       (Emphasis in original.) Smith v. State, supra at 247.

        Lewis v. State, 207 Ga. App. 212, 214 (427 SE2d 578) (1993).

        Smith v. State, supra at 247.

        State v. Smith, supra at 353.

       109 Ga. App. 525 (136 SE2d 399) (1964).

       Id. at 527 (3).

       232 Ga. App. 884 (502 SE2d 774) (1998).

         238 Ga. App. 438 (518 SE2d 923) (1999).


text:
    A01A1057.
    SMITH v. THE STATE.
    (548 SE2d 21)
   Phipps, Judge.

Chigiger Smith and his co-defendants Brown and Johnson were charged with two counts of aggravated assault for shooting Steven Aaron twice with a handgun and with one count of burglary for entering and remaining in “the building of Steven Aaron” with intent to commit theft. In this appeal of his convictions, Smith claims that the evidence was insufficient to show that he intended to commit theft in the building referred to in the indictment or that such building belonged to Aaron. Smith also contends that the trial court erred in allowing a police officer to testify that Aaron identified him from a pretrial photographic lineup. We find no merit in these claims of error and affirm.

State’s evidence showed that Smith, Brown, and Johnson, acting individually and in concert, accosted Aaron on the street, robbed him at gunpoint of approximately $1,300, forced him into a car, and drove him to a house owned by his mother. Although no one resided in the house at the time, Aaron stored his personal property there and had authority from his mother to enter the premises.

Upon arriving at the house, one of Aaron’s abductors shot him in the hip as he tried to escape. The other two kicked in the front door of the house, activating the burglar alarm. They then forced Aaron into the house and began to ransack it. When the police arrived in response to the burglar alarm, Aaron was shot in the back while trying to escape again.

His three assailants then fled the scene on foot. Within minutes, a police officer observed Smith in a shopping plaza located in the direction the suspects had run. The officer stopped Smith because his clothing fit the description of one of the suspects and he was sweating. Smith attempted unsuccessfully to escape the officer’s detention. Approximately $1,500 was found in his possession.

When returned to the scene of the crimes, Smith was identified by an officer who had seen him exit the house. Approximately two weeks later, Aaron viewed a photographic lineup and positively identified Smith as the man who had shot him. At trial, approximately one year later, Aaron identified Johnson as the person who had shot him. Over hearsay objection by Smith’s attorney, the officer who had shown Aaron the photographic lineup was allowed to present evidence concerning Aaron’s pretrial identification of Smith.

1. Evidence that Smith and his cohorts had robbed Aaron once and were ransacking the house when interrupted by the police authorized the jury to find that their intent in entering and remaining in the house was to commit theft again.

2. Although Aaron’s mother was the owner of the house, the evidence showed that Aaron had a possessory interest in it superior to that of the burglars. Therefore, as between Aaron and Smith, it was the “building of Steven Aaron.” Because a building may be the situs of a burglary even if it is not being used as a dwelling house, proof that Aaron was an occupant of the building was not necessary to sustain Smith’s burglary conviction.

3. Smith’s claim that the officer’s identification testimony constituted impermissible hearsay raises troublesome questions.

Because the testimony was admitted to prove the truth of the matter asserted, it “certainly appears to be hearsay.” But this court has repeatedly held that “[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.”

Decided April 11, 2001

Reconsideration denied April 30,2001.

Gregory J. Lohmeier, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Joseph N. Walden III, Assistant District Attorneys, for appellee.

In Tuten v. State, Neal v. State, and Wade v. State, we questioned the soundness of this rule but found ourselves bound by it, because it was established by the Supreme Court of Georgia in Haralson v. State. In this case, as in Hassan v. State, the defendant argues that Haralson has been implicitly overruled by more recent Supreme Court cases, such as Brown v. State After Brown, however, the Supreme Court decided Peebles v. State in conformity with Haralson. For this reason, the Supreme Court subsequently held in Painter v. State that it would not follow Brown.

Therefore, we remain bound by Haralson. And even if we were not so bound, this case does not present a proper vehicle to reconsider the correctness of the rule announced in Haralson, because Aaron did testify at trial and “presumably could have been cross-examined by the defendant following the officer’s testimony had the defendant so requested.” Therefore, the purpose of the hearsay rule was satisfied.

Judgment affirmed.

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

       See generally Legg v. State, 204 Ga. App. 356, 357 (1) (419 SE2d 151) (1992).

       See OCGA § 16-7-1 (a); Franks v. State, 240 Ga. App. 685, 687 (1) (524 SE2d 545) (1999).

       Compare Murphy v. State, 238 Ga. 725, 728 (2) (234 SE2d 911) (1977) (law requires indictment to show that dwelling was occupied by the victim).

       See Neal v. State, 211 Ga. App. 829, 830 (1) (b) (440 SE2d 717) (1994).

       Id.

       (Citations and punctuation omitted.) Id.; White v. State, 244 Ga. App. 54, 55 (1) (537 SE2d 364) (2000), cert, granted; Tuten v. State, 242 Ga. App. 223, 227 (6) (529 SE2d 221) (2000); Thompson v. State, 240 Ga. App. 26, 31 (6) (521 SE2d 876) (1999); Ingram v. State, 233 Ga. App. 356, 357 (1) (504 SE2d 254) (1998); Abrams v. State, 229 Ga. App. 152, 153 (1) (493 SE2d 561) (1997); Holt v. State, 210 Ga. App. 81 (2) (435 SE2d 288) (1993); Wade v. State, 208 Ga. App. 700 (1) (431 SE2d 398) (1993); Woodard v. State, 175 Ga. App. 449, 450 (3) (333 SE2d 645) (1985); see Williams v. State, 224 Ga. App. 665 (2) (482 SE2d 415) (1997); Hassan v. State, 216 Ga. App. 484 (455 SE2d 314) (1995); Barker v. State, 211 Ga. App. 279, 280 (5) (438 SE2d 649) (1993).

       Supra.

       Supra.

       Supra.

       234 Ga. 406, 408 (4) (216 SE2d 304) (1975).

       Supra.

       234 Ga. 632, 633 (1) (217 SE2d 150) (1975).

       236 Ga. 93, 95 (1) (222 SE2d 376) (1976).

       237 Ga. 30, 32 (226 SE2d 578) (1976).

        Hassan, supra at 484-485.

        Abrams, supra, citing Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).