author: Andrews, Chief Judge.

text:
    A97A2144.
    BANKS v. THE STATE.
    (497 SE2d 821)
   Andrews, Chief Judge.

David D. Banks appeals from his convictions of DUI (less safe to drive) and burglary.

1. The first two enumerations deal with sufficiency of the evidence and are considered together.

‘“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.' (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993)." Etienne v. State, 219 Ga. App. 95, 97 (2) (464 SE2d 396) (1995).

So viewed, the evidence was that Officer Lewis was on patrol and stopped at a red light on November 23, 1995 (Thanksgiving), around 3:00 a.m. when he noticed a man standing near the Cotton Exchange, a retail store, smoking a cigarette. He was looking at the man, later identified as co-defendant Toney, when Toney looked up and saw the officer. Toney then turned around and went down the alley beside the building. The Cotton Exchange shared a parking area with another shop, a dental clinic, and an apartment duplex and Officer Lewis, finding the conduct suspicious, drove his patrol car into the alley where he saw a car with its trunk up and two other men, along with Toney. He returned to the front of the Cotton Exchange and summoned backup. The car was then blocked in by the officers, even though the car had begun moving toward the street. Banks was driving the car with Toney in the front seat and Parris in the back seat. In the back of the car, officers found a fax machine and another piece of office equipment. In the trunk, officers found a large screwdriver. Upon checking the area, the officers found that the padlocks and hinges on the door of the storeroom behind the Cotton Exchange had been torn off. Inside the storeroom were old office machines. Wade, the owner of the business, identified the fax machine as having been taken from the storeroom. He also said that he walked by the storage room daily when he emptied the trash and that he would have noticed if the storeroom had been disturbed. His business, which had opened on November 11, 1995, was full of stock for the holiday season and he was open the day before Thanksgiving.

The officers also found a manhole cover on the side of the Cotton Exchange, about three feet from the plate glass windows across its front. There were no manholes missing covers in the vicinity.

Officer Lewis noticed a strong smell of alcohol on Banks and that his eyes were bloodshot. Banks resisted getting into the police car and refused to perform an alcosensor test. Officer Lewis opined that Banks was less safe to drive and he was arrested for DUI. Upon arriving at the police station, Deputy Swindall, the Intoximeter 5000 operator, noticed that Banks’ speech was slurred, he was loud and boisterous, slightly staggering, and smelled of alcohol. Also, his eyes were glassy and bloodshot. Banks refused to take the test.

Toney had been arrested before by Officer Lewis in November 1992. During that incident, a manhole cover had been thrown through the plate glass window of a department store between 2:00 and 3:00 a.m. and clothing stolen. Toney was the passenger in the car stopped trying to leave the area and he was sitting on a large stack of clothing of which he denied knowledge. That store was located about one mile from the Cotton Exchange.

Banks contended that Parris had asked him for a ride and had the office machinery with him. Parris testified that he had received the equipment from Jerry, whose last name he did not know, several days before the incident. Parris’ testimony at trial contradicted statements given to the police and to the court when he pled guilty to receiving stolen property.

The issue of which version of these events to believe was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. This Court will not weigh the evidence or determine witness credibility, but only determines the sufficiency of the evidence. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991).

The evidence was sufficient for rational triers of fact to find all essential elements of burglary and DUI. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Cann-Hanson v. State, 223 Ga. App. 690 (1) (478 SE2d 460) (1996); Shy v. State, 220 Ga. App. 910, 911 (1) (470 SE2d 484) (1996).

2. Banks contends that the court’s denial of his motion to sever his trial from that of Toney was reversible error.

“When the death penalty is not sought, the severance of defendants’ trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4. The burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice. Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975).” Dixon v. State, 268 Ga. 81, 83 (485 SE2d 480) (1997).

Banks’ basis for the motion was that the similar evidence admissible as to Toney would be “confusing to the jury in that they will not be able to separate the evidence presented at trial” which would create a high risk of prejudice to Banks.

Admission of similar crimes evidence against a co-defendant does not mandate severance where, as here, the trial judge gave specific limiting instructions regarding that evidence and the evidence itself did not implicate Banks directly. Hightower v. State, 263 Ga. 375 (2) (434 SE2d 491) (1993); Randolph v. State, 198 Ga. App. 291, 292 (3) (401 SE2d 310) (1991).

There was no error.

3. Banks’ final enumeration is that his character was improperly placed into issue by a statement made by a prospective juror during voir dire.

The only statement of the juror contained in the record before this Court is that “I don’t know him [Banks] personally but I see him with a lot of people that I do know, a lot of friends of mine.” Thereafter, some statement was made by the juror in response to a followup question by the prosecutor, but it was not loud enough to be picked up by the court reporter. Immediately thereafter, Banks’ counsel asked that the entire panel be disqualified. As recalled by the trial judge, the statement made by the juror, known to the defense as a bondsman, was “I think that we might have gotten him out of jail once.” The discussion continued among counsel and the court, and then Banks’ counsel stated that “when he [the prosecutor] started asking him questions, I knew what was fixing to come out. He was about to go say, well, I’ve gotten him out on bond before. And I just knew when it came out, was going to object to it and I think the entire panel has to be excused.” (Emphasis supplied.)

(a) First, Banks has failed to show, by the record, harmful error. Colloquy among counsel and the court, although included in the record, is not sufficient to make a proper record of facts before this court for purposes of satisfying appellant’s burden. Kennedy v. State, 217 Ga. App. 18, 19 (456 SE2d 288) (1995); Shaw v. State, 201 Ga. App. 438, 440 (1) (411 SE2d 534) (1991).

Banks has not availed himself of the opportunity to complete the record under the provisions of OCGA § 5-6-41 (f) and, when this is not done, there is nothing for the appellate court to review. Harris v. State, 230 Ga. App. 403 (496 SE2d 277) (1998); Parker v. State, 220 Ga. App. 303, 305 (3) (469 SE2d 410) (1996).

(b) Further, even assuming the statement had been properly included in the record, Banks’ counsel acknowledged that he anticipated what was about to be said by the juror, but did nothing to prevent it. Such a tactic, if not induced error, is at least failure to object and waives any error, “ ‘for one must assert his rights properly or face the possibility of their being forever lost.’ [Cit.]” Price v. State, 222 Ga. App. 655, 656 (1) (475 SE2d 692) (1996). See, e.g., Tucker v. State, 225 Ga. App. 757, 758 (2) (484 SE2d 793) (1997).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided March 3, 1998.

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

David D. Banks, pro se.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

       These two were later identified as Banks and Parris.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A1764.
    BARNES v. THE STATE.
    (497 SE2d 594)
   Smith, Judge.

Tammy Telayne Barnes was indicted by a Floyd County grand jury for the offenses of possession of cocaine, OCGA § 16-13-30 (a), and violation of oath of public office, OCGA § 16-10-1. A jury found Barnes guilty of both charges. Barnes’s motion for a new trial was denied, and she appeals, raising two enumerations of error. We affirm.

Barnes was employed as a correctional officer at the Floyd County Correctional Institution. In January 1996, the warden of the institution, J. W. Scott, received the fourth in a series of complaints from an inmate who alleged that Barnes had offered to bring drugs into the facility for his use.

Warden Scott relayed the inmate’s complaint to the Floyd County Metro Drug Task Force, and a reverse sting operation was instigated with the assistance of the GBI. On January 12, 1996, special undercover GBI Agent Greg Ramey telephoned Barnes while she was working at the correctional institute and arranged to sell her cocaine later that evening after she left work. The telephone conversation between Barnes and the GBI agent was recorded. This tape was played for the jury during trial and a transcript of the recording, properly authenticated by Agent Ramey, was given to the jury with appropriate instructions that only the tape was evidence and the transcript could be used to assist them in listening to the tape.

As arranged, Agent Ramey drove to the meeting place in a car equipped with surveillance equipment and an electronic recording device. When Barnes arrived, she entered Agent Ramey’s vehicle and explained to the undercover agent that she was buying cocaine for one of the inmates who claimed he could make them a lot of money by selling drugs in the facility. Later in the conversation, Barnes asked the agent to supply her with prescription drugs and cocaine on a regular basis. The conversation between Barnes and Agent Ramey that took place in the car was recorded. During trial, the tape of this conversation was played for the jury. The jury again was given a properly authenticated transcript of the tape with limiting instructions that the tape, not the transcript, was considered evidence.

Barnes was placed under arrest shortly after she paid Agent Ramey for the cocaine. Barnes did not deny that she arranged to buy cocaine from Agent Ramey, but claimed she was doing so in her capacity as a public officer. Specifically, Barnes claimed that she believed Warden Scott was selling drugs to inmates so she initiated her own undercover operation to “set up” Warden Scott and other superiors at the facility. Barnes also introduced testimony showing that she and the warden had a history of personality conflicts and that Barnes had filed a civil discrimination action against him during this period of time.

1. The trial court charged the jury on OCGA § 16-10-1 (violation of oath of public office), using the language of the statute. The trial court did not provide the jury with any other instructions regarding the elements of this offense. On appeal, Barnes enumerates as error the trial court’s failure to charge the jury that the prohibited conduct that violates the oath of public office must take place while the officer is on duty, and not during his or her private, non-working time.

Our review of the record and transcript of this case fails to reveal any written or oral request by Barnes’s counsel to charge the jury with this language, although he did object to the charge on other grounds. The transcript further shows that Barnes’s counsel actually stated during trial that he had no requests to charge of any kind. Absent such a request there can be no error. Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991).

Assuming, without deciding, that Barnes’s objection to the trial court’s charge at trial properly preserved this enumeration for appellate review, we still find no error because Barnes’s proposed charge is an incorrect statement of the law. The issue to be decided is hot whether the officer was on duty at the time of the prohibited act but whether there was some connection between the offense and the public officer’s official duties. State v. Tullis, 213 Ga. App. 581, 582 (445 SE2d 282) (1994).

2. While the jury was deliberating, the trial court received a note requesting “phone transcriptions and a copy of Agent Ramey’s testimony.” The trial court was unable to send in Agent Ramey’s testimony because it had not yet been transcribed. The trial court also initially declined to allow the jury to reread the transcripts of the two taped conversations but agreed to allow them to rehear the tapes. After the tapes could not be located, however, a juror asked if they could simply review the transcript, and the trial court agreed and allowed the jury to reread both transcripts of the conversations between Barnes and Agent Ramey. The jury was given appropriate cautionary instructions before the transcripts were given to them, and the transcripts did not leave the jury box.

Decided February 16, 1998

Reconsideration denied March 4, 1998

Barkley & Garner, Larry J. Barkley, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Barnes now enumerates as error the trial court’s decision to allow the jury to reread the transcripts on the grounds that the trial court summarily changed what the jury had initially requested — a transcript of the telephone conversations — and instead allowed them access to transcripts of both the telephone and car recordings.

“It has been recognized for more than a hundred years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” (Citations and punctuation omitted.) Payne v. State, 219 Ga. App. 318, 319 (2) (464 SE2d 884)

(1995) . Considering that the proper foundation was laid for admission of the tapes and use of the transcript earlier in the trial and that the court gave appropriate cautionary instructions to the jury before they reread the transcripts, we find no abuse of discretion in this case. See Butler v. State, 201 Ga. App. 58, 60 (2) (410 SE2d 168) (1991); Sledge v. State, 223 Ga. App. 488, 490 (4) (477 SE2d 898) (1996) . We specifically reject Barnes’s argument that the trial court erred in allowing the jury to reread both transcripts instead of hearing the testimony as they initially requested. Payne v. State, supra at 319. Finally, Barnes’s contention that the jury was allowed to take the transcripts into the jury room is belied by the record.

Judgment affirmed.

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

       Barnes’s codefendant, Cathy A. Wagner, a nurse at the correctional institute, was charged with one count of violation of the Georgia Controlled Substances Act. She was acquitted of the charge against her.

       Counsel insisted it was “absolutely vital that the jury receive a charge from the [cjourt to the effect that if they find that she was a certified police officer and, indeed, was working in that capacity, then it would be their duty to acquit.”


author: Johnson, Judge.

text:
    A97A1909.
    A. ATLANTA AUTOSAVE, INC. v. GENERALI — U. S. BRANCH.
    (498 SE2d 278)
   Johnson, Judge.

On January 12, 1995, A. Atlanta AutoSave, Inc. (“AutoSave”) rented an automobile to Danita Cabey. Tara Roberts was listed on the rental agreement as an additional driver of the rental car, but did not sign or co-sign the rental agreement. Cabey provided AutoSave with an insurance card showing she had automobile liability insurance coverage with Southern General Insurance Company through February 24, 1995. Her insurance information was entered on the contract under “Renter’s Applicable Insurance.” It is undisputed that this policy had been canceled with Cabey’s consent nearly three weeks before the rental. Roberts also provided AutoSave with an insurance card showing she had automobile liability insurance with Generali — U. S. through April 14, 1995. Roberts’ insurance information was handwritten in the middle of the contract under the heading “Local.”

While driving the car, Roberts was involved in an accident with a vehicle driven by Amina Williams. Williams and her passenger, Denise Jones, alleged they received injuries in the accident and filed claims for damages with Generali and AutoSave. Generali and AutoSave each claim the other has primary coverage for any bodily injury claims arising from the accident.

Generali filed the present declaratory judgment action naming AutoSave, Roberts, Jones and Williams as defendants. Williams subsequently moved for summary judgment on the issue of priority of coverage between Generali and AutoSave, arguing Generali’s policy was primary since Roberts was driving the vehicle at the time of the accident. Generali filed its motion for summary judgment, arguing the policy it issued to Roberts lists as the covered automobile a vehicle which was not involved in the accident. The trial court granted Generali’s motion and denied Williams’ motion, thus effectively declaring AutoSave’s coverage primary. AutoSave appeals from that judgment. For the reasons set out below, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. According to OCGA § 40-9-102: “Any person who rents motor vehicles from a U-drive-it owner is required to provide his own insurance, and insurance companies authorized to issue automobile policies in this state shall be required by the Commissioner of Insurance to provide ‘spot’ insurance, which shall be purchased by such person before the U-drive-it owner shall be authorized to turn a motor vehicle over to such person. If a U-drive-it owner turns over any motor vehicle to any person without first ascertaining that such 'spot’ insurance has been obtained, the U-drive-it owner shall not, as to that particular rental transaction, be exempted from the provisions of [the Motor Vehicle Safety Responsibility Act].” This statute requires a car rental company to determine whether a renter has obtained insurance for a rental vehicle before renting the vehicle. Atlanta Rent-A-Car v. Jackson, 204 Ga. App. 448, 450 (419 SE2d 489) (1992).

“[A] person who rents from a U-drive-it owner must provide insurance for the vehicle either through a vehicle insurance policy the renter already holds for his own vehicle that covers the renter while driving another car or by purchasing at the time of rental an insurance policy that covers the specific rental vehicle.” (Emphasis in original.) Id. at 450. “[T]he statute requires a U-drive-it owner to determine whether a renter has obtained insurance for the rental vehicle under one of these alternatives before furnishing a rental vehicle.” (Emphasis in original.) Id.

According to AutoSave’s manager, he called INSURGEORGIA, which was the agent for both Cabey and Roberts, and verified that both policies were in effect and included coverage for car rentals. This testimony, as well as the notations on the face of the rental contract at issue demonstrate that AutoSave ascertained that Cabey had insurance coverage before renting the car to her. Id. at 451. Therefore, AutoSave was not required to offer insurance to Cabey or to require Cabey to purchase insurance to be eligible for the exemption afforded by OCGA § 40-9-102. Id.

Despite AutoSave’s alleged verification of coverage, it is undisputed that Cabey did not have insurance at the time of the rental. Conflicting evidence regarding Cabey’s lack of insurance and evidence that AutoSave attempted to determine whether Cabey had insurance before renting the vehicle to her raise genuine issues of material fact as to AutoSave’s compliance with OCGA § 40-9-102. However, whether AutoSave fully complied with its duty to determine whether Cabey had insurance in force before renting the vehicle to her is irrelevant in this case, because it is undisputed that Cabey did not have insurance in effect at the time of the rental. While this is a case of first impression in Georgia, our prior holdings in rental cases and insurance cases in general provide support for our holding that the exemption afforded in OCGA § 40-9-102 does not apply under the circumstances presented in this case.

In Georgia, insurance “follows the car.” See Jackson, supra; Jones v. Wortham, 201 Ga. App. 668, 670 (411 SE2d 716) (1991); Indus. Indem. Co. v. Walck, 192 Ga. App. 754, 756 (386 SE2d 521) (1989). In line with this policy, OCGA § 33-34-4 mandates that “[n]o owner of a motor vehicle required to be registered in this state or any other person . . . shall operate or authorize any other person to operate the motor vehicle unless the owner has motor vehicle liability insurance” providing the Motor Vehicle Safety Responsibility Act’s minimum required coverage. Primary coverage should be provided by the insurer of the owner of the motor vehicle.

OCGA § 40-9-102, which provides that lessees from rental agencies furnish their own insurance, does not exempt rental companies from their duty to procure liability insurance as owners of vehicles. Jones, supra. Compulsory liability insurance coverage is required not only for the benefit of the insured, but also to ensure compensation for innocent victims of negligent motorists. Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

We have previously established by case law that owners of rental vehicles are exempted from the general principle that insurance follows the car as long as they comply with OCGA § 40-9-102. In such a case, the lessee’s insurance should be primary and the car rental company’s insurance should afford excess coverage, if any. See Jones, supra. However, “[t]he mandate of OCGA § 40-9-102 is in the nature of a bond to guarantee the public against damages by some irresponsible renter of a car of the U-Drive-It.” (Citation and punctuation omitted.) Alamo Rent-A-Car v. Hamilton, 216 Ga. App. 659, 661 (455 SE2d 366) (1995). The purpose of the statute is to assure that lessees of rental vehicles are not uninsured. Id.

Since it is undisputed that Cabey, the lessee in this case, had no insurance in effect at the time she rented the car from AutoSave, the burden of primary insurance coverage could not have been shifted to her. Therefore, AutoSave’s insurance must become primary. This is true whether or not AutoSave complied with OCGA § 40-9-102, and such a holding effectuates the purpose of that statute. The permissive user or additional driver’s insurance is irrelevant, notwithstanding the fact that this person is the active tortfeasor under the circumstances. The trial court correctly determined that AutoSave is responsible for any claims made as a result of the collision between Roberts and Williams.

2. The trial court also did not err in determining that Roberts was not a party to the rental contract. Assent of the parties to the terms of a contract is essential to its validity. OCGA § 13-3-1. In the present case, Roberts did not sign the rental agreement and was not listed as an additional renter. She was merely listed as an additional driver. Thus, despite AutoSave’s arguments to the contrary, the rental agreement shows on its face that it was a contract only between Cabey and AutoSave.

While Roberts’ insurance would have been primarily applicable to the accident had Roberts signed the rental agreement as a renter or co-renter, Roberts was not a party to the rental agreement. Contrary to AutoSave’s contention, Jones, supra, is not controlling. In Jones, the driver of the rented automobile at the time of the collision was the renter and had his own insurance. In the present case, the driver and the renter of the vehicle are not the same person.

Decided February 20, 1998

Reconsideration denied March 4, 1998

McCrimmon & McCrimmon, Edward W. McCrimmon, Lisa L. McCrimmon, for appellant.

Lane, O’Brien & Caswell, Eugene O’Brien, Michael A. Penn, Richard L. Ormand, Matthew Berry, Pat D. Dixon, Jr., Steven W. Gardner, for appellee.

Generali correctly asserts that it is not responsible for primary coverage because the policy it issued to Roberts lists a vehicle as the covered automobile which was not involved in the accident. An insurance company may fix the terms of its policies and may insure against certain risks and exclude others. Lofton v. State Farm Mut. Auto. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989). In Lofton, the insurance company limited its payment of damages to bodily injury caused by its insured resulting from the ownership, maintenance or use of the insured’s car, which was specifically described in the declarations page. We held that “[b]y the terms of each of the policies, liability coverage exists only for the vehicle listed on the declarations page of each policy.” Id. at 155.

Based on the foregoing, even though Roberts was driving the vehicle at the time of the accident with Williams, AutoSave and not Generali is primarily responsible for providing insurance coverage for the accident.

Judgment affirmed.

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


text:
    A97A2343.
    MOSLEY v. THE STATE.
    (497 SE2d 608)
   Andrews, Chief Judge.

James D. Mosley appeals from the trial court’s denial of his plea of former jeopardy following the grant of his motion for mistrial in his trial for numerous sexual offenses.

After the trial court had ruled that pre-Miranda statements of Mosley to investigators were inadmissible, but post -Miranda statements were admissible, defense counsel and the prosecutor jointly engaged in the preparation of an agreed upon version of Mosley’s post -Miranda statements. In so doing, they went through five drafts, two typewritten and the remainder handwritten.

During the testimony of Investigator Weldon, the prosecutor handed him what the prosecutor believed was the correct version. It was, instead, the prohibited version. The prosecutor handed it to the investigator without first showing it to defense counsel, as he had been instructed to do with exhibits to be admitted into evidence. As the officer began to testify to the prohibited material, the prosecutor stated “Let me stop you for a second, investigator.” Mosely immediately made his motion for mistrial, which the court granted, over the prosecutor’s objection. After the grant of the mistrial, the prosecutor stated to the defense attorney that he “never really felt that he had this jury.”

The prosecutor stated he did not show the statement which he handed to the investigator to defense counsel because it was never his intention to introduce the document into evidence, only the investigator’s recitation of the statement. At defense counsel’s request, the prosecutor provided the court with his copy of the agreed upon statement, knowing he could get another copy from his folder containing the copies of the final version, as well as copies of all the previous versions, of the statement. As he stated, “I then reached into my file that’s listed as defendant’s statement and simply just grabbed the first thing that I saw. The two typed written statements, both the revised as well as the corrected copy. They look exactly alike on their face. ... I did not know that I was handing him an incorrect version. . . .” When he realized the mistake, he stopped the witness.

1. While double jeopardy prohibits retrial of a criminal defendant when the prosecution has failed to produce sufficient evidence in the first trial, it does not generally bar retrial after a mistrial or reversal on appeal. Dinning v. State, 267 Ga. 879, 880 (485 SE2d 464) (1997). “However, when a criminal defendant is granted a mistrial or his or her convictions are reversed because the prosecution engages in intentional misconduct purposefully designed to secure an opportunity to retry the case, a retrial will not be permitted. See Oregon v. Kennedy, [456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982)]; [cits.]. . . . What is critical is the objective of the prosecutor’s improper conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. [Cits.]” Id.

In the context of a granted motion for mistrial, the inquiry concerning the prosecutor’s motive is whether he “intended to goad or provoke the defendant into moving for a mistrial.” State v. D’Auria, 229 Ga. App. 34, 36 (492 SE2d 918) (1997). Improper intent to achieve a conviction or a “blunder” by the prosecutor is of no avail, the only relevant intent being the intent to terminate the trial. Williams v. State, 268 Ga. 488, 490 (491 SE2d 377) (1997).

Decided March 4, 1998.

Mark R. Pollard, for appellant.

Paul L. Howard, Jr., District Attorney, Gina Marshall, Assistant District Attorney, for appellee.

We concur with the trial court in finding that the only conduct shown here was at most a gross mistake by the prosecutor. Mobley v. State, 262 Ga. 808, 809 (426 SE2d 150) (1993). We are not persuaded by Mosley’s speculation about the excused jury’s leanings toward the defense nor do we find the prosecutor’s statement that he did not feel he had the jury conclusive of intent to provoke a mistrial. Id.

2. Mosley also objects to the trial court’s failure to allow a jury to resolve factual disputes concerning these issues. The issue of the prosecutor’s intent in this situation is a question of fact for the court. Reed v. State, 222 Ga. App. 376, 378 (1) (474 SE2d 264) (1996); State v. Whitehead, 184 Ga. App. 162 (361 SE2d 41) (1987).

Judgment affirmed.

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


author: Andrews, Chief Judge. Blackburn, Judge,

text:
    A97A1903.
    CANTWELL v. THE STATE.
    (497 SE2d 609)
   Andrews, Chief Judge.

James William Cantwell appeals his conviction entered after a jury found him guilty of driving under the influence to the extent that it was less safe to drive and red light violation. We affirm.

The evidence at trial showed that an officer stopped Cantwell after he saw Cantwell run a red light. When Cantwell complied with the officer’s request to get out and walk to the rear of the car, the officer noticed that Cantwell was unsteady on his feet and had a strong odor of alcohol about him. The officer asked Cantwell how much he had to drink and Cantwell at first replied three drinks, but then changed the answer to four beers. The officer gave Cantwell three field sobriety tests, the Horizontal Gaze Nystagmus, the walk and turn, and the leg stand. The officer testified that Cantwell was unable to keep his head still during the Horizontal Gaze Nystagmus, was unsteady, was unable to keep his balance, and was unable, to follow simple instructions. As a result of Cantwell’s performance on these tests, the officer arrested him for running a red light and DUI.

Prior to trial, the State made a motion in limine to exclude any mention of the National Highway Traffic Safety Administration (NHTSA) training the arresting officer had received in administering and evaluating field sobriety tests. The State said the officer would be testifying as a lay witness and only as to his observations of the defendant as he performed the test. The officer would not testify as to any “point system” or whether the defendant passed or failed the tests.

Cantwell opposed the motion, claiming that since the officer had received NHTSA training, he had the right to cross-examine him on this training and on the methods used when administering the field sobriety tests. Cantwell also argued that if he were prevented from questioning the officer on whether his method of administering the tests conformed with the training he received, he would be prevented also from calling an expert witness at trial to testify as to the proper methods of administering and evaluating the tests, thereby violating his right to a complete defense and a fair trial under the Sixth Amendment.

The trial court granted the State’s motion, finding that since the officer would be testifying as a layman, any mention of NHTSA training would not be relevant. This appeal followed.

1. This issue has already been decided adversely to Cantwell in Torrance v. State, 217 Ga. App. 562, 563 (458 SE2d 495) (1995). In Torrance, we held that since training in NHTSA rules and procedures is not required of police officers in Georgia, allowing the officer to be cross-examined on these methods would be irrelevant.

Cantwell argues that Torrance does not apply in this case because here the officer admitted he was trained in NHTSA procedures. This is also irrelevant. First, Torrance is silent as to whether or not the officer in that case received any NHTSA training. Further, if the State chooses to have the officer testify as a lay witness and describe the actions of the defendant in performing simple exercises such as the “leg lift” and “walk and turn” without referring to any “points” system or using the words “pass” or “fail,” cross-examination on NHTSA procedures is irrelevant, regardless of whether the officer is trained in them or not.

Moreover, it is perfectly proper to allow the officer to testify as a lay witness on these matters. “Physical manifestations of impairment” when performing the “walk and turn” and “leg lift” sobriety tests can be “as obvious to the layperson as to the expert.” Hawkins v. State, 223 Ga. App. 34, 36 (476 SE2d 803) (1996). Accordingly, the trial court did not abuse its discretion in prohibiting Cantwell from cross-examining the officer on NHTSA procedures. Park v. State, 220 Ga. App. 215, 218 (469 SE2d 353) (1996); Torrance, supra.

2. In light of the above holding and because Cantwell’s expert witness stated he would be unable to testify about the adequacy or inadequacy of the field sobriety tests in question if prevented from referring to the NHTSA standards, it follows the trial court did not abuse its discretion in restricting the expert witness’s testimony. Hawkins, supra at 40.

Judgment affirmed.

McMurray, P. J, Pope, P. J., Beasley and Johnson, JJ., concur. Blackburn and Smith, JJ, dissent.

Blackburn, Judge,

dissenting.

I must respectfully dissent from Division 1 and the judgment of the majority. The majority concludes that the trial court correctly restricted the defendant’s right to present evidence which related directly to the weight and credibility of the State’s evidence regarding the field sobriety tests administered by the arresting officer. I must dissent, because beyond the officer’s testimony regarding the defendant’s performance on the field sobriety tests, sufficient evidence of guilt was not presented.

In State v. Pastorini, 222 Ga. App. 316, 318 (2) (474 SE2d 122) (1996) and Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996), we held that the results of field sobriety tests were admissible despite evidence that the tests were not administered in compliance with the National Highway Traffic Safety Administration guidelines for such tests. In so holding, we stated that the defendant’s “expert testimony indicating that the officer had failed to administer the tests in accordance with his training,. . . affects only the weight to be given to the tests. . . . The weight and credibility of evidence such as this should be left for jury determination.” Pastorini, supra at 319.

In the present case, the defendant’s evidence went to the heart of his attack on the State’s case, i.e., the weight and credibility of the field sobriety tests. Under such circumstances, the trial court should have allowed the defendant the opportunity to present his case. We have previously held in many contexts that “[i]f there was doubt as to admissibility of the evidence, it was better admitted and its weight and credibility left to the jury.” Ochle v. State, 218 Ga. App. 69, 73 (459 SE2d 560) (1995). Such rule should have been followed in this case.

Torrance v. State, 217 Ga. App. 562 (1) (458 SE2d 495) (1995) is distinguishable from the present case in that there is evidence in the present case, unlike Torrance, that the officer had received training from the Georgia Peace Officer Standards and Training Council and the National Highway Traffic Safety Administration (NHTSA) which certified him to administer field sobriety evaluations. Therefore, the officer is subject to cross-examination on this training and the tests he administered, as it is within his knowledge. Defendant is also authorized to present the testimony of his own expert who was available for testimony, unlike Torrance. Torrance held that “The question whether to allow a NHTSA-trained expert witness to testify for appellant is also moot, as no such witness was available at the time of motion or trial.”

Decided March 5, 1998

William C. Head, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solictor, for appellee.

I am authorized to state that Judge Smith joins in this dissent.


author: Pope, Presiding Judge.

text:
    A97A1908.
    OSBORNE BONDING & SURETY COMPANY v. GLAZE.
    (497 SE2d 612)
   Pope, Presiding Judge.

On February 15, 1989, the Probate Court of Clayton County appointed Mary Esposito as guardian over the property of her minor son, who inherited money from his deceased father. Following her appointment, Esposito entered into an agreement with Osborne Bonding & Surety Company. Pursuant to the agreement, Osborne issued bonds in the amount of $80,000 to secure Esposito’s performance as guardian. After Esposito failed to file probate court ordered annual returns regarding her son’s property in 1994 and 1995, and failed to appear at a “show cause” hearing on the matter, the probate court revoked Esposito’s guardianship. The probate court then appointed George Glaze as guardian on March 6, 1995.

In May 1996, Esposito filed for bankruptcy. Thereafter, it is undisputed that Glaze obtained an order from the bankruptcy court lifting the automatic stay imposed by 11 USC § 362 so as to allow Glaze to proceed with a petition for accounting of Esposito’s son’s property in the probate court to determine if mismanagement had occurred for which Esposito and Osborne would be liable. Pursuant to his investigation regarding the petition of accounting, Glaze determined, and the undisputed record evidence shows, that Esposito had in fact mismanaged her son’s property, thereby causing a loss to his estate of $52,082.20. Accordingly, on September 23, 1996, Glaze filed a recommendation with the probate court requesting that judgment in the above amount be entered, jointly and severally, against Esposito and Osborne.

Following Glaze’s recommendation, on November 1, 1996, Osborne petitioned the probate court to relieve Osborne as surety under the bonds for Esposito’s pre-removal mismanagement. The probate court dismissed Osborne’s petition and entered judgment against Esposito and Osborne, jointly and severally, in the amount of $52,082.20 on February 6, 1997. On appeal, Osborne contends the probate court erred in dismissing its petition to be relieved as surety and in entering judgment against Osborne. We disagree and affirm.

1. There is no merit to Osborne’s argument that, based on Esposito’s pre-removal misconduct, the trial court was required under OCGA § 29-2-52 to grant Osborne’s petition for relief from any obligation undertaken by Osborne to act as surety under the bonds, and thereby discharge Osborne from any liability for Esposito’s preremoval misconduct. Under OCGA § 29-2-52 (a), “all acts, whether of commission or omission, which pertain to the mismanagement of an estate by a guardian or administrator . . . constitute misconduct. . . which [may] authorize the discharge of [a] surety.” Spradley v. St. Paul Fire &c. Ins. Co., 108 Ga. App. 865, 866 (1) (a) (134 SE2d 850) (1964). However, it is apparent under the express language of OCGA § 29-2-52 (b), that when such misconduct is brought to the attention of a probate court judge, that judge is not required to discharge the surety, but rather “in his [or her] discretion,” may do so. And in any event, even if the probate judge grants an order discharging a surety based on a guardian’s misconduct, such discharge only relieves the surety from liability for acts of misconduct by the guardian committed after the discharge. OCGA § 29-2-52 (b), (c) and (d); Snow v. Brown, 100 Ga. 117, 119-123 (28 SE 77) (1897); Spradley, 108 Ga. App. at 866. Any contention to the contrary is illogical in that it would totally defeat the very concept of a surety.

In this case, Osborne’s petition sought total relief from its obligation under the bonds based on misconduct that wholly occurred prior to the filing of its petition. As such, the discharge that Osborne requested in its petition was inappropriate, and the probate court properly dismissed the petition for that reason.

2. There is also no merit to Osborne’s contention that the probate court erred in granting a judgment against it in this case in light of Esposito’s bankruptcy filing. As set forth above, prior to the filing of his petition for an accounting in the probate court, and his ensuing investigation, Glaze sought and obtained the permission of the bankruptcy court. Pursuant to his authorized investigation, it is undisputed that mismanagement by Esposito was discovered, which resulted in a substantial loss to her son’s estate. At the time of that mismanagement, Osborne became jointly and severally liable with Esposito to her son’s estate under OCGA § 29-2-76 and the express terms of its agreement with Esposito. As such, Osborne’s liability was based on “‘independent’ and primary [obligations], not derivative of those of the debtor [Esposito].” In the Matter of Lockard, 884 F2d 1171, 1178-1179 (IV) (B) (9th Cir. 1989); see Paul v. Joseph, 212 Ga. App. 122, 123-124 (1) (441 SE2d 762) (1994); GMAC v. Yates Motor Co., 159 Ga. App. 215, 217-218 (2) (283 SE2d 74) (1981). Accordingly, the automatic stay provisions of 11 USC § 362 do not constitute a bar to the issuance or enforcement of the judgment against Osborne as the surety over Esposito’s son’s estate.

Decided March 5, 1998.

Boswell & Teske, Stephen E. Boswell, for appellant.

Glaze, Glaze & Fincher, George E. Glaze, pro se.

Larry King, Jr., for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Beasley, Judge.

text:
    A97A2014.
    A98A0127.
    LOUIS v. THE STATE. PHILBERT v. THE STATE.
    (497 SE2d 824)
   Beasley, Judge.

Nimrod Louis and Lindy Philbert were convicted of three counts of aggravated assault (OCGA § 16-5-21), one count of first-degree criminal damage to property (OCGA § 16-7-22), and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106). Philbert challenges the sufficiency of the evidence to support the verdict. Louis’ appeal revolves around his statement when arrested.

Louis owns a teal green Honda Accord with tinted windows. On the evening of March 10, 1996, Philbert was riding around in the car with Louis and Ken Charles. That same evening, Tauras James was driving a Pontiac with Brent Sanders and Kristan Charles as passengers. A green Honda Accord with tinted windows pulled in front of the Pontiac, causing the front bumper of the Pontiac to hit the right side of the Honda. A man jumped out of the Honda and began shooting at the Pontiac. Although neither Sanders nor Charles could identify the man, James positively identified Philbert as the shooter both during a pretrial photographic lineup and at trial. Philbert injured both James and Sanders and damaged the car.

Police investigated, arrested Louis and obtained a warrant to search his car. A microanalyst employed by the GBI crime laboratory compared paint removed from the Pontiac’s front bumper with paint scrapings taken from the"'searched Honda’s right side. The witness described the microscopic composition of these paint samples as “virtually indistinguishable” and deduced that the paint could only have originated from a 1990 or 1991 Honda Accord manufactured in this country.

Although Louis and Philbert denied involvement in the crimes, Louis admitted to police that he was in possession of his car at the time in question. Evidence was presented showing that shell casings recovered from the scene were typically fired from an assault rifle, such as one Louis owned. When questioned by police after being advised of his rights, he could not account for his rifle’s whereabouts. The officer testified that Louis stated repeatedly, “ T don’t deal in violence,’ and that he did not understand why he was being charged, explaining that things like the shooting he was being asked about happen all the time in the homeland. He recounted his whereabouts that evening over and over again although he did not know the times.”

1. Louis challenges the admission of his statement to law enforcement officers when arrested March 13, three days after the incident, that the police “had better not let him out or that he would do what he was accused of doing.” The statement prompted a warrant charging Louis with terroristic threats. The issue, as framed by appellant, is whether admission of this statement was too remote in time from the alleged crime, violated Shields v. State, 223 Ga. App. 169 (477 SE2d 342) (1996), and violated USCR 31.3.

Statements spontaneously uttered by a defendant at the time of his arrest have been held admissible either as part of the res gestae of the criminal transaction or “to prove the circumstances surrounding the arrest.” See Lebis v. State, 212 Ga. App. 481, 482 (3) (a) (442 SE2d 786) (1994); Bogan v. State, 206 Ga. App. 696, 697 (1) (426 SE2d 392) (1992). Louis’ arrest did not occur until three days after the crimes were committed, so his arrest was not part of the res gestae. See DeCastro v. State, 221 Ga. App. 83, 85-86 (1) (470 SE2d 748) (1996) (physical precedent only).

On the question of whether his statement was nonetheless admissible as showing the circumstances of his arrest, Ivester v. State, 252 Ga. 333, 334 (2) (313 SE2d 674) (1984), “makes abundantly clear that the evidence must be otherwise relevant: ‘the conduct must involve matters concerning which the truth must be found (i.e. are relevant to the issues on trial).’ [Cit.]” (Emphasis in original.) DeCastro v. State, supra at 85.

Louis’ statement fit the condition. Although he denied his involvement in the crimes charged, the evidence placed him in his car with Philbert at the time Philbert jumped out and shot at the other car. The fact that when arrested Louis threatened to engage in this very conduct was a proper matter to be submitted to the jury to be weighed by them on the issue of his bent of mind. Middlebrooks v. State, 208 Ga. App. 625, 626 (2) (431 SE2d 425) (1993). We find no abuse of discretion, for it involved a matter “ ‘concerning which the truth must be found.’ ” Ivester, supra at 33. See Clements v. State, 226 Ga. 66 (1) (172 SE2d 600) (1970) (when arrested, defendant had a weapon tucked in his belt and two on the seat of the auto which resembled weapons used in robberies); Wayne v. State 56 Ga. 113, 119 (5) (1876) (when arrested, defendant in possession of bloodstained knife with which fatal blow probably inflicted and two guns); McClung v. State, 206 Ga. 421, 423 (1) (57 SE2d 559) (1950) (circumstances of arrest relevant to explain conduct and ascertain motives).

Shields, supra, is distinguishable. It condemned the admission in evidence of a statement by the defendant, couched in unseemly language, constituting a denial of his role in the incident giving rise to his convictions.

In Mattox v. State, 204 Ga. App. 750, 752 (1) (421 SE2d 97) (1992), as here, the defendant complained that the admission of testimony concerning his arrest days after the incidents on trial improperly placed his character in issue by showing the commission of another crime. Regardless of whether the challenged testimony was admissible under criteria for the admission of similar transaction evidence, we held it was relevant in that case to show the circumstances of arrest. It follows that where the evidence is admitted on the latter ground, the procedure in USCR 31.3 for the admission of evidence of similar transactions is not presently required.

Louis’ complaint that he was surprised by the introduction of his statement at trial is contrary to fact. Before trial, he requested under OCGA § 17-7-210 any statements made by him while in police custody. The statement was furnished in response. Prior to its admission at trial, Louis orally moved in limine to exclude it. The statement was introduced after the court determined its admissibility at a hearing held outside the presence of the jury.

2. Philbert challenges the sufficiency of the evidence because only two of the three occupants of the Pontiac could identify him and because of certain alleged conflicts in the State’s evidence.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). [Cits.] ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. (Cit.)’ [Cit.]” Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995). Judged by these principles, the evidence presented to the jury was sufficient to support its verdict.

Decided March 5, 1998

Akin & Tate, S. Lester Tate III, for appellant (case no. A97A2014).

Thomas N. Brunt, for appellant (case no. A98A0127).

T Joseph Campbell, District Attorney, for appellee.

Judgments affirmed.

McMurray, P. J., and Smith, J., concur.

        Terrell v. State, 138 Ga. App. 74 (1) (225 SE2d 470) (1976), gives a clear explanation of the meaning of res gestae and an application of the concept.


text:
    A97A2510.
    SIMMONS v. PILKENTON.
    (497 SE2d 613)
   Pope, Presiding Judge.

In 1991, plaintiff Robert Pilkenton, Jr. entered into an installment land sale contract with defendant J. E. Simmons in order to purchase some property owned by defendant, which defendant had previously advertised on a sign as being 1.5 acres. The purchase price for the property was $3,000. At that time, plaintiff also executed a promissory note in favor of defendant. After making improvements to the property in 1993 and later placing a trailer on it, plaintiff was advised that the property was apparently smaller than advertised, and by county ordinance, was not large enough to house a trailer. Consequently, in 1995, plaintiff filed a claim in magistrate court seeking to rescind his contract with defendant based on fraud in the inducement. The magistrate court ruled in plaintiff’s favor, ordering that the property be returned to defendant and that defendant return to plaintiff the money he had received from plaintiff up to that time, plus interest.

Defendant appealed to the superior court. In doing so, he also asserted a counterclaim alleging that plaintiff had defaulted on the promissory note and owed him the balance due under the note, plus the interest and attorney fees provided for therein. On de novo review, the superior court rescinded the contract on the ground that plaintiff had not gotten what he bargained for due to an admitted mistake on defendant’s part concerning the advertised acreage of the property. It then ordered defendant to repay plaintiff the amount plaintiff had paid to defendant, plus legal interest. The superior court also ordered defendant to reimburse plaintiff for the expenditures plaintiff had made in improving the property, and denied defendant’s counterclaim for recovery against plaintiff under the promissory note.

Defendant filed a petition for discretionary review of the superior court’s order. We granted defendant’s petition, and upon consideration of the matter, reverse.

1. Contrary to defendant’s contention, the magistrate court did have the subject matter jurisdiction to address plaintiff’s claim for rescission. The record shows that plaintiff’s magistrate court claim undeniably was premised on alleged fraud in the inducement and a mistaken belief that the property at issue contained 1.5 acres. As such, the claim was legal in nature and not equitable, as argued by defendant. See Brown v. Techdata Corp., 238 Ga. 622, 626-627 (234 SE2d 787) (1977); Lundin v. Hill, 105 Ga. App. 449, 450 (2) (125 SE2d 105) (1962). Therefore, contrary to defendant’s assertion, the superior court also had the subject matter jurisdiction it needed to address plaintiff’s claim upon de novo review of the magistrate court’s ruling. This is so because, upon such review, the superior court possessed the same jurisdiction as the magistrate court. Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 21 (477 SE2d 141) (1996). Accordingly, we find no merit to defendant’s first enumeration of error.

2. There is merit to defendant’s second and third enumerations, wherein he contends that the superior court erred in determining that the contract should be rescinded. As the superior court found, defendant clearly made a misrepresentation by advertising the property on a sign as being 1.5 acres, based on his own mistaken calculations. This, however, did not relieve plaintiff of the burden of demonstrating sufficient evidence of the existence of all of the elements of fraud in support of his claim for rescission based on fraud in the inducement. See Fowler v. Overby, 223 Ga. App. 803 (478 SE2d 919) (1996). And plaintiff failed to meet this burden by failing to demonstrate evidence of the essential element of justifiable reliance on the misrepresentation. Id.

In the absence of a special relationship, as is the case here, see Gardiner v. McDaniel, 202 Ga. App. 663, 664 (1) (415 SE2d 303) (1992), “[t]he law of Georgia is well-settled that in the purchase and sale of real estate there is an underlying principle of law thát one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage. When the means of knowledge are at hand and equally available to both parties[,] if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller. In order to prove the element of justifiable reliance, the plaintiff must show that [he] exercised [his] duty of due diligence. . . .” (Citations and punctuation omitted.) Fowler, 223 Ga. App. at 803-804.

Decided March 5, 1998.

Reagan W. Dean, for appellant.

Walker L. Chandler, for appellee.

In the instant case, plaintiff made no such showing. The record evidence demonstrates that the property in question was depicted on a plat in existence at the time of the sale. The plat listed the property as being approximately .8 acres, which clearly was less than the 1.5 acres mistakenly listed on the sign defendant had set up prior to the sale. Additionally, the description of the property contained in the contract made specific reference to the plat, which was purported to be attached to the contract. And it is undisputed that the contract itself was given to plaintiff to read before its execution. If plaintiff would have given the contract more than an admitted cursory review, he would have learned that the very description of the property was based in part on the abovementioned plat, and that the description in the contract, the plat itself, and his own investigation were all that he should rely on regarding the extent of the property in question. Armed with such knowledge, he could have avoided all of his woes by simply demanding to see the plat before executing the contract. Yet plaintiff failed to do this.

In light of plaintiff’s failure to use due diligence as set forth above, rescission of the contract for fraud in the inducement was not authorized. Likewise, plaintiff’s failure to use due diligence in this case also makes rescission based on mutual mistake of fact improper. See Vickers v. Roadway Express, 210 Ga. App. 78, 80 (3) (435 SE2d 253) (1993). Accordingly, we conclude that the superior court erred in rescinding the contract in this case, and in awarding damages to plaintiff in the amount of the expenditures he had made in improving the property.

3. Based on our holding in Division 2, defendant’s fourth enumeration that the trial court erred in dismissing his counterclaim premised on plaintiff’s default on the promissory note, also has merit. The contract and promissory note plaintiff admittedly signed are enforceable. As such, defendant is entitled to recover the sums owed to him under the promissory note based on plaintiff’s admitted failure to pay the balance due on the note after receiving a letter from defendant specifically demanding that he do so.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


text:
    A97A2302.
    AMERICAN PETROLEUM PRODUCTS, INC. v. MOM AND POP STORES, INC.
    (497 SE2d 616)
   Johnson, Judge.

American Petroleum Products, Inc. (“American”) filed suit against Mom and Pop Stores, Inc. (“Mom and Pop”) for the balance due on an account. Mom and Pop counterclaimed, alleging fraud and seeking overcharges for freight, Florida pollution taxes and volume incentives. A jury awarded Mom and Pop $71,000. American appeals, and we affirm.

On October 26, 1988, Mom and Pop, a corporation which owns and operates convenience stores, entered into a dealer supply contract with Golden Isles Petroleum, Inc. (“Golden Isles”), a distributor of Amoco petroleum products, which obligated it to purchase all of its fuel needs from Golden Isles. The contract stated the fuel was to be priced on a cost plus a specified mark-up basis. The contract further stated that taxes and freight charges were to be added to the price. Golden Isles took the net Amoco price it paid for the fuel and added its mark-up according to the pricing policy, deducting allowances and credits due Mom and Pop under the contract and then adding “applicable” taxes and freight charges.

On January 1, 1991, American advised Mom and Pop it had purchased the Amoco franchise from Golden Isles and that “[tjhere will be very few changes in the overall operation.” Mom and Pop knew that the petroleum it received was being exported by American from the state of Florida.

Florida imposes three separate pollution taxes on petroleum produced within the state: (1) a water quality tax; (2) a coastal protection tax; and (3) an inland protection tax. The taxes are originally collected when the product is purchased at the refinery. However, an application can be made by the distributor for a refund of the water quality tax and inland protection tax if the product is ultimately exported from Florida. Mom and Pop was unaware of these pollution taxes and the refund procedure. In addition, while Florida law requires that any pollution taxes due are shown on an invoice relating to the wholesale transaction, the Florida pollution taxes were not shown on the invoices American sent to Mom and Pop.

Beginning in January 1991, American was being charged the three pollution taxes and passing this cost on to Mom and Pop as part of the purchase price. American began making monthly applications to Florida for refunds on two of the pollution taxes. It received its first refund in May 1992. American does not deny that it received refunds for pollution taxes which were included in the price of fuel charged to and paid by Mom and Pop. For the period of time American sold fuel to Mom and Pop and passed on the pollution taxes, it received refunds from Florida totaling nearly $144,000.

In April 1992, Mom and Pop discovered that it was losing money on its petroleum sales and asked American’s representative why it was not making a profit. American provided Mom and Pop with a breakdown of its bills and paid Mom and Pop a “competitive allowance” for May and June 1992. The breakdown documents did not mention the Florida pollution taxes. In fact, the breakdown documents stated that American had sustained a loss as the result of giving Mom and Pop the allowance. However, American admitted at trial that it did make a profit on these months in the amount of the undisclosed pollution tax refunds.

Mom and Pop attempted to obtain Amoco invoices from American so it could compare American’s actual cost of fuel to the prices being charged to Mom and Pop. American refused to produce or share the invoices it received from Amoco. The Amoco invoices for fuel sold to American contained an itemization of the pollution taxes. In December 1992, Mom and Pop began subscribing to a service which allowed it to check the daily price that Amoco was charging American. Mom and Pop concluded there were discrepancies between the prices American actually charged and the prices it should have charged. On February 11, 1993, Mom and Pop informed American that it was terminating the dealer supply contract.

Subsequently, Mom and Pop learned of the Florida pollution taxes and met with American regarding those taxes and the refund procedure. At the March 31, 1993 meeting, American admitted that it had been including refundable Florida pollution taxes in the price of fuel. However, American stated that it had not obtained any refunds of the pollution taxes. In addition, an American document discovered by Mom and Pop after the meeting indicated that the first application for pollution tax refunds would be April 1993. It is undisputed that American had been filing for pollution tax refunds since January 1991 and had received $62,000 in refunds by the time of the March 31, 1993 meeting.

The parties agreed to try and negotiate another dealer supply contract with a new pricing policy which specifically addressed the issue of how the pollution taxes would be handled. From April 1993 through July 1993, the parties attempted to reach an agreement and Mom and Pop continued to accept and pay for petroleum from American.

In April 1993, Mom and Pop contacted the Florida Department of Revenue to learn how to apply for and obtain refunds for the pollution taxes. Mom and Pop then contacted American, informed it that only American could obtain the refunds and stated that American had to attach the Amoco invoices showing the pollution taxes had been paid to the application for refund that it sent to the Florida Department of Revenue. American complained that doing this would entail a lot of work and that it would have to find the Amoco invoices. When Mom and Pop offered to assist American in preparing the refund applications, American responded that it would not allow Mom and Pop to see the Amoco invoices. American stated that while it might be able to obtain the refunds for future purchases, it could not receive refunds for back purchases. Mom and Pop specifically asked if American had already applied for the refunds, and American stated that it had not.

On June 7,1993, Mom and Pop again spoke with American in an effort to obtain refunds of the prior pollution taxes paid by Mom and Pop and to discuss a new dealer supply contract. When Mom and Pop asked American why the pollution taxes were not shown on its invoices, American’s representative responded, “Well, I just don’t want to show it on the invoice.” Later that month, American informed Mom and Pop that it would apply for a refund of the pollution taxes already paid and reimburse Mom and Pop for the taxes paid if Mom and Pop would sign a long-term contract. American admitted that it routinely withheld returning refund money so it could coerce customers into signing long-term contracts.

On June 15, 1993, Mom and Pop wrote a letter advising American that it would be doing business with another Amoco franchise. Mom and Pop faxed the same letter to American on July 8, 1993, because American continued to call Mom and Pop’s store managers to obtain gas inventory levels. American stated that as long as its signs were on Mom and Pop’s property, it would not allow Mom and Pop to receive gasoline from anyone else. Mom and Pop then instructed American to remove its signs, at which point American instructed Mom and Pop’s new supplier not to deliver gasoline to the store.

In August 1993, Mom and Pop discovered from the Florida Department of Revenue that American had been receiving refunds since December 1991. As a result, Mom and Pop opened an escrow account and deposited an amount of money equal to the total invoices which American had rendered for fuel delivered from July 2, 1993 through July 8, 1993. American’s deliveries during this period totaled approximately $71,000.

At trial, a certified public accountant in both Georgia and Florida agreed that regardless of whether the parties had a contract or not, the pollution taxes should not have been passed on to a dealer and then a rebate obtained and not given to the dealer. The expert also performed a comparative analysis of the prices for gasoline actually charged by American to Mom and Pop and the prices as they should have been computed pursuant to the dealer supply contract. The expert concluded that the total overcharges for the pollution taxes were $105,000 and the total for freight overcharges resulting from a ten percent volume discount from White’s Fuel Oil to American was $5,000. Mom and Pop had also been overcharged $21,000 due to American’s practice of rounding up pollution taxes. Finally, the expert found that Mom and Pop had been overcharged $15,000 due to American’s failure to pass along volume incentives Mom and Pop was entitled to receive.

The evidence showed that the Florida pollution tax was not charged on fuel which American purchased from Amoco’s Savannah, Georgia terminal and delivered to Mom and Pop, yet in at least one case American added an overcharge equal to the rate of the Florida pollution tax to Mom and Pop’s fuel costs. Likewise, the tax was not imposed by Florida for fuel shipped in Amoco fuel trucks or by a subcontractor of Amoco, yet American charged Mom and Pop.

1. In its first enumeration of error, American contends the trial court erred in denying its motion for a partial directed verdict with regard to Mom and Pop’s counterclaim for fraud. American argued that everyone is presumed to know the law and that Mom and Pop’s president and bookkeeper admitted that if they had known the Florida tax law, they would have made further inquiry and would not have been misled. However, the record shows that Mom and Pop’s president and bookkeeper actually stated that they would have made further inquiry if they had known they were being charged the Florida pollution taxes.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [American’s] motion for directed verdict. . . will not be disturbed.” (Citations and punctuation omitted.) John Crane, Inc. v. Wommack, 227 Ga. App. 538 (2) (489 SE2d 527) (1997).

American did not, as the Florida statute specifies, separately state the amount of the pollution taxes paid on the invoices it sent to Mom arid Pop. In addition, evidence established that American specifically informed Mom and Pop it had not applied for or received any refunds for pollution taxes paid when, in fact, it had already received a substantial amount in refunds. American’s failure to disclose the tax did not constitute a misrepresentation of the law, but a concealment of the fact that the tax was included in Mom and Pop’s cost and . that it was being passed on to Mom and Pop. Thus, even if Mom and Pop was aware of the Florida tax law, a jury could have found that American fraudulently concealed or misrepresented that it was secretly passing along the pollution taxes it paid to Mom and Pop and then collecting the refunds, thus obtaining a profit equal to the amount of pollution taxes it added to Mom and Pop’s fuel charge. Mom and Pop’s knowledge of the pollution tax law would have made no difference unless the tax had been disclosed on the invoice so that Mom and Pop could then inquire about refunds or credits.

Moreover, the evidence showed that the Florida pollution tax did not apply to fuel which American purchased from Amoco’s Savannah, Georgia terminal and delivered to Mom and Pop. Yet, in at least one case, American added an overcharge equal to the rate of the Florida pollution tax to Mom and Pop’s fuel cost. Likewise, the tax was not imposed by Florida for fuel shipped in Amoco fuel trucks or by a subcontractor of Amoco, yet American charged Mom and Pop the pollution taxes.

“Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. Furthermore, “concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded.” (Citation, punctuation and emphasis omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (1) (392 SE2d 268) (1990). The evidence showed that on at least one occasion Mom and Pop asked American if it had already filed for pollution tax refunds, and American responded that it had not when, in fact, it had already received refunds. In the present case, a jury was authorized to conclude that American suppressed and concealed the fact of the pollution tax under the particular circumstances of this case. Such suppression constitutes actionable fraud. The trial court did not err in denying American’s motion for directed verdict on this issue.

2. American also asserts Mom and Pop’s counterclaim for fraud should have been dismissed because Mom and Pop failed to exercise due diligence to verify the components of American’s price when it discovered it was losing money on petroleum sales. We disagree. “Questions of fraud, the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury. [Cits.]” Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) (1977).

The evidence showed that when Mom and Pop discovered it was losing money on the sale of gasoline, it requested cost data and invoices from American. These requests began in April 1992 and continued through June 1993. It is undisputed that American’s invoices, contrary to the Florida statute, did not specifically set out the pollution taxes paid by American. In addition, Mom and Pop requested the invoices sent by Amoco to American so it could compare the amount Amoco charged American with the amount American charged Mom and Pop, but its requests were refused. Without the Amoco invoices or access to Amoco’s prices, Mom and Pop could not judge the accuracy of American’s billing.

In order to obtain Amoco price data, Mom and Pop subscribed to a reporting service in December 1992. It then discovered the discrepancies between the amount American should have been charging Mom and Pop and the amount it actually charged. In February 1993, Mom and Pop sought the assistance of another Amoco franchise to determine the cause of the pricing discrepancy it discovered. When Mom and Pop learned of the pollution tax as a possible source of the overcharge, it immediately called the Florida Department of Revenue to obtain more information about the tax and met with American about the tax. While American admitted it was passing the pollution tax on to Mom and Pop, it denied filing for or receiving pollution tax refunds. It was not until receipt of a Florida Department of Revenue official’s letter dated August 5, 1993 that Mom and Pop learned that American had, in fact, filed for and received pollution tax refunds since December 1991.

“While a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations. Ordinarily the question whether the complaining party could ascertain the falsity of the representations by proper diligence is for determination by the jury.” (Citations and punctuation omitted.) Bennett v. D. L. Claborn Buick, 202 Ga. App. 308, 309-310 (2) (414 SE2d 12) (1991). The above facts were more than sufficient for a jury to conclude that Mom and Pop exercised due diligence, and a directed verdict on the issue of fraud would not have been proper.

3. The trial court did not err in denying American’s motion in limine to exclude evidence of American’s overcharges after March 31, 1993. “By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. [Cit.] In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995). Furthermore, the “[ajdmission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion. Evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” (Citations and punctuation omitted.) Martin v. Williams, 215 Ga. App. 649, 651 (3) (451 SE2d 822) (1994).

While Mom and Pop knew as of March 31, 1993 that American charged it the pollution taxes, American still denied that the refunds had been or could be obtained. It was not until August 5, 1993, when Mom and Pop received the Florida Department of Revenue letter, that it realized American had been applying for and receiving pollution tax refunds since December 1991. In addition, there was further evidence submitted that during the spring and into the summer of 1993, American was attempting to use its ability to apply for refunds to coerce Mom and Pop into signing a long-term contract. Thus, the jury could reasonably have concluded that American continued and furthered its scheme to defraud Mom and Pop even after March 31, 1993.

In addition, Mom and Pop counterclaimed for unjust enrichment, and this claim was charged to the jury. Since American admitted at trial that the pollution tax refunds belonged to Mom and Pop, evidence of overcharges after March 31, 1993 would have been relevant to this cause of action. It is not erroneous to admit evidence which is competent for any purpose. Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 221 (8) (489 SE2d 329) (1997). We find no abuse of discretion in the trial court’s decision to admit evidence of American’s overcharges after March 31, 1993.

4. The jury verdict was not inconsistent and void. “Verdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” OCGA § 9-12-4. “The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. Even if the verdict is ambiguous and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied.” (Citations and punctuation omitted.) Harrison v. Martin, 213 Ga. App. 337, 344 (1) (444 SE2d 618) (1994); see Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 164 (1) (e) (473 SE2d 256) (1996).

The pleadings and evidence in the case show that American sought to recover $71,000 for gasoline sold to Mom and Pop. Mom and Pop sought to recover damages totaling $147,000, of which $5,000 represented damages for freight discounts not passed on to Mom and Pop.

The jury returned a general verdict in favor of Mom and Pop in the amount of $71,000. The verdict stated, “We, the Jury find as follows: As to the [sic] Defendant, Mom and Pop Stores, Inc.’s counterclaim, we find in favor [of] the Defendant, Mom and Pop Stores, Inc., and against the Plaintiff, American Petroleum Products, Inc. in the total amount of $71,026.69. This award represents $0 in damages; $0 in attorneys fees and cost of litigation.” The verdict form included the word “OR” between the first part of the verdict form, relating to American’s recovery, and the second part of the verdict form, relating to Mom and Pop’s recovery, and the jury crossed out the first part of the verdict form.

After American objected to the verdict, the trial court questioned the foreperson regarding the jury’s intent. The foreperson explained that the jury found that both parties had committed fraud, but that he did not know how to fill out the form. The foreperson further explained that the jury intended for Mom and Pop to recover the amount specified and that in making the award, the jury took into consideration American’s claim regarding the value of the gasoline.

After questioning the foreperson, the trial judge asked both attorneys if they now understood the verdict. Both attorneys stated they did, and no further objection was made to the verdict form. The verdict was then received by the trial court and made the judgment of the court. The jury reasonably could have concluded based on the evidence presented that Mom and Pop was entitled to recover the total amount of damages it sought, less the value of the fuel for which it had not paid and less the freight discounts it sought. “We will not substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses. [Cit.]” Efstathiou v. Reiss, 227 Ga. App. 735, 738 (5) (490 SE2d 426) (1997). The trial court did not err in entering a judgment based on the jury’s verdict.

Judgment affirmed.

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

Decided March 6, 1998.

Henderson & Henderson, Michael P. Ludwiczak, for appellant.

Smith & Floyd, Terry K. Floyd, for appellee.


author: Ruffin, Judge.

text:
    A97A2462.
    PITTS v. THE STATE.
    (498 SE2d 534)
   Ruffin, Judge.

Roger Dale Pitts was arrested and charged with driving under the influence (OCGA § 40-6-391), failure to dim headlights (OCGA § 40-8-31), violation of the open container statute (OCGA § 40-6-253), and speeding (OCGA § 40-6-181). A jury found Pitts guilty of all the charges except the DUI offense. After the trial court sentenced him, Pitts moved to have the sentence reduced. The trial court denied the motion and Pitts appealed, arguing that the sentences for the failure to dim headlights and speeding convictions were excessive and amounted to cruel and unusual punishment. For reasons which follow, we affirm.

“ ‘The trial court has the discretion to impose sentence within the parameters prescribed by the statute and if the sentence is within the statutory limits, the appellate courts will not review it. (Cits.)’ [Cit.]” Stephens v. State, 185 Ga. App. 546, 547 (3) (365 SE2d 136) (1988). Furthermore, “ ‘[t]he probation and suspension statutes . in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement.’ [Cit.]” Brock v. State, 165 Ga. App. 150, 151 (299 SE2d 71) (1983).

Viewed with these principles in mind, the record reveals that at approximately 9:30 p.m. on April 12, 1996, the arresting officer was traveling on Highway 138 when he noticed a vehicle approaching in the opposite direction at a high rate of speed and with the high beam headlights activated. The officer testified that Pitts, the driver of the vehicle, never dimmed his headlights and was traveling approximately 65 to 70 mph in a 50 mph zone. The officer stopped Pitts, who smelled of alcohol and had red and watery eyes. Given Pitts’ condition and his poor performance on field sobriety tests, the officer arrested him, believing him to be under the influence of alcohol to the extent that it was less safe for him to drive. The officer testified that he found an open can of beer in Pitts’ car, along with a bottle of Crown Royal, a bottle of Kahlua and eight to rune beers in a cooler. Pitts’ blood-alcohol level was between .096 and .099.

The trial court sentenced Pitts to 12 months probation and fined him $50 on the failure to dim headlights charge. Regarding the speeding count, the court sentenced him to 12 months probation to run concurrently with the probation on the headlights offense and fined him $75. Finally, the court fined Pitts $200 for violating the open container law. The trial court imposed various conditions of probation, including requiring Pitts to be under house arrest between the hours of 8:00 p.m. and 6:00 a.m. for 90 days, to attend Alcoholics Anonymous meetings twice a week for 90 days, and to submit to random breath tests.

At the hearing on Pitts’ motion to reduce his sentence, the trial court noted that Pitts had “two prior DUIs.” The court also noted that prior to trial, Pitts was willing to be placed on probation under similar conditions for the charges. The trial judge stated that in sentencing Pitts, he was attempting to address Pitts’ apparent drinking problem. The judge believed that he used the least punitive measures available to ensure that Pitts would receive help for his drinking condition and to prevent Pitts from driving at night in an inebriated condition.

On appeal, Pitts asserts that 12 months probation on the failure to dim headlights and speeding convictions was excessive when most people convicted of these offenses receive only fines. Pitts also claims that certain conditions of his probation, including the house arrest, random breath tests and attendance of Alcoholics Anonymous meetings are not rationally related to the convictions of speeding and failure to dim headlights.

Violations of OCGA §§ 40-8-31 and 40-6-181 are treated as misdemeanors. OCGA § 40-6-1. Pursuant to OCGA § 17-10-3 (a), “every crime declared to be a misdemeanor shall be punished ... (1) [b]y a fine not to exceed $1,000.00 or by confinement . . . for a total term not to exceed 12 months, or both. . . .” Furthermore, “[i]n addition to or instead of any penalty provided for the punishment of a misdemeanor involving a traffic offense, ... a judge may impose any one or more of the following sentences: (4) [probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge. The conditions may include . . . reporting periodically to the court or a specified agency; and performing, or refraining from performing, such acts as may be ordered by the judge.” OCGA § 17-10-3 (e).

In the instant case, 12 months probation and a $75 fine for the speeding conviction were within the statutory sentencing limits for misdemeanors. See OCGA § 17-10-3. The 12-month probationary period and $50 fine for the failure to dim headlights were also within the statutory guidelines. Id. Accordingly, we will not review these portions of the sentences as they are within the requisite statutory parameters. Stephens, supra.

Decided February 25, 1998

Reconsideration denied March 9, 1998.

Terry N. Massey, for appellant.

Cheryl F. Custer, District Attorney, Mirza A. Baig, Assistant District Attorney, for appellee.

Regarding Pitts’ argument that the conditions of probation were not rationally related to the convictions, we point out that in Brock, supra, the defendant pled guilty to disregarding a stop sign and received a sentence of 12 months probation and a $1,000 fine. A condition of his probation was suspension of his driver’s license for 12 months. We held that the sentence and condition of probation were reasonable. 165 Ga. App. at 151.

Moreover, in Means v. State, 255 Ga. 537 (340 SE2d 612) (1986), the defendant was convicted of permitting an unlicensed person to drive his automobile on a public street. He was sentenced to six months in jail, six months on probation and a $1,000 fine. The Supreme Court affirmed the sentence, finding that the defendant’s claim that his sentence constituted cruel and unusual punishment was without merit. Id. at 538.

In light of Brock and Means, and evidence that Pitts had two prior DUI arrests, a blood-alcohol concentration of .096 to .099, an open container of beer and that he violated other traffic ordinances, we conclude that the trial court did not abuse its discretion in sentencing Pitts, including its imposition of the conditions of probation. Brock, supra; Stephens, supra. See also Tuttle v. State, 215 Ga. App. 396, 397 (2) (450 SE2d 863) (1994).

Judgment affirmed.

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