text:
    A96A0230.
    ROBERTS v. THE STATE.
    (471 SE2d 27)
   Johnson, Judge.

A jury found James Roberts guilty of aggravated assault upon a police officer. He appeals from the conviction entered on the verdict and the denial of his motion for new trial.

1. Roberts argues that the evidence was insufficient to support the verdict, inasmuch as the State’s witnesses were not credible. “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; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Powell v. State, 218 Ga. App. 556 (462 SE2d 447) (1995).

Viewed in this light, the evidence shows that police officer Jim Jordan followed Roberts’ car until Roberts stopped at a residence. Jordan got out of the police car, identified himself and told Roberts that his music was too loud and that he would have to keep it down. Jordan then told Roberts that he heard that Roberts and others in his group were selling drugs in the area, and that he would be watching Roberts. Jordan testified that Roberts “talked back” and was belligerent toward him. That same evening, as several uniformed officers stood outside their patrol cars while handling a traffic matter, a group of people threw bottles at them. Shortly thereafter, a shotgun was fired, and three officers were struck with birdshot pellets.

Several witnesses testified about Roberts’ actions after his encounter with Jordan. La Jennie Roberts testified that she and the defendant sold crack cocaine in the area and that she heard him say on the day of the shooting that he was tired of the police riding around and that he was going to throw bottles at them. She added that later that evening she heard the defendant talking about how he had fired a gun at the police, how firing the gun “jerked” his arm and how he had been bitten by ants while lying in the bushes.

Another witness, Forest Foster, testified that Roberts said that he was tired of the police coming through the neighborhood. Foster admitted that he, Roberts and others threw bottles at the officers. About 15 minutes later, Roberts asked if anyone had a gun. One of the participants left, retrieved a shotgun, and gave it to Roberts. Roberts went outside, fired one shot, and the next day said that he shot the police.

Tyrone Rhone testified that on the day of the shooting, Roberts told him that officer Jordan had been harassing him and accusing him of selling drugs. Roberts told Rhone that he had “a good mind to blow [Jordan’s] head off.” That evening, Roberts told Rhone that he had been throwing bottles at the police and that if he had a gun, he would shoot the officers. Rhone stated that somebody left to get a gun and Roberts went into a back room to change into black clothing. Later, Rhone heard a gunshot. Roberts said that he fired one shot at the officers and thought that he hit someone, but decided to stop because he was being bitten by ants. The evidence was sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize the jury’s verdict that Roberts committed aggravated assault upon a police officer. See Humphrey v. State, 218 Ga. App. 574, 575 (1) (462 SE2d 641) (1995).

2. Roberts argues that the State improperly placed his character into issue by eliciting testimony from Officer Jordan that Roberts sold drugs. We find no error. The prosecutor asked Jordan about an encounter he had with Roberts the evening of the shooting. As part of his response, Jordan testified that he told Roberts that he had information that Roberts and others were selling drugs and that he would be watching Roberts. The trial court immediately instructed the jury that the testimony was to be considered only for the limited purpose of showing motive, intent or state of mind in connection with the charged offense and that Roberts was not on trial for any drug offense.

“Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. [Cit.]” Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990). “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense. The fact that such part of the res gestae incidentally placed [Roberts’] character in issue does not render it inadmissible. A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Mobley v. State, 218 Ga. App. 739, 741-742 (463 SE2d 166) (1995).

Testimony from a police officer that he confronted Roberts, accused him of selling drugs, and warned him that he would be watched, just before the police officers were assaulted with bottles and fired upon, was admissible as part of the crime and as res gestae, even though the aggravated assault may not have directly involved drug selling and even though the evidence incidentally puts Roberts’ character in issue. See Latham v. State, 195 Ga. App. 355, 356 (2) (393 SE2d 498) (1990). We find no error.

3. Roberts argues that the trial court erred in failing to charge the jury that the existence of a conspiracy must be proved before the statements and acts of a co-conspirator can be considered. Our review of the transcript reveals that Roberts did not request such a charge. “ ‘(T)hough present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving or the failure to give instructions to the jury [cits.] this does not relieve him from the necessity of requesting instructions except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. (Cits.)’ [Cits.]” Jefferson v. State, 191 Ga. App. 306 (2), 307 (381 SE2d 564) (1989). Roberts does not indicate how the omission was clearly harmful or erroneous as a matter of law. In fact, we find no harm or error in the court’s omission of the charge.

The statutory provision Roberts claims should have been charged, OCGA § 24-3-5, “does not render a conspirator incompetent to testify as to facts; it simply prohibits a conspirator from testifying as to declarations made by one conspirator outside the presence of, and upon the trial of, another conspirator. Voluntary, non-custodial, incriminating statements of defendants are admissible through the testimony of any one who heard the statements.” (Citations and punctuation omitted.) Duren v. State, 177 Ga. App. 421, 422 (1) (339 SE2d 394) (1986). As discussed in Division 1, the witnesses in this case testified as to incriminating statements Roberts made directly to them. Therefore, the charge at issue was inapplicable and its omission was neither erroneous nor harmful. Under these circumstances, Roberts’ failure to request the charge amounted to a waiver. See Weatherington v. State, 139 Ga. App. 795, 797 (4) (229 SE2d 676) (1976).

Decided April 29, 1996.

Janies B. Brogdon, for appellant.

Glenn Thomas, Jr., District Attorney, Thomas M. Browder III, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A96A0274.
    SPEED v. THE STATE.
    (471 SE2d 25)
   Johnson, Judge.

When police went to arrest Donald Joe Speed pursuant to a warrant, they found a .38 caliber revolver in his possession. Because he had a prior felony conviction, he was charged with possession of a firearm by a convicted felon. A jury found Speed guilty of the firearm charge. He appeals from the conviction entered on the verdict.

1. Speed argues that the trial court erred in denying his motion for a directed verdict of acquittal because there was a fatal variance between the allegations contained in the indictment and the proof introduced at trial. Specifically, he complains that while the indictment alleged that he had been convicted in Rankin County, Mississippi, for possession of marijuana with the intent to distribute, the evidence introduced at trial showed that he had been convicted in Lowndes County, Mississippi of possession of marijuana “greater than 1 oz., less than a kilo” This enumeration presents no ground for reversal.

“Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” (Citations and punctuation omitted.) Hutchison v. State, 218 Ga. App. 601, 602 (462 SE2d 648) (1995).

At trial, the prosecutor stated that Speed only had one Mississippi drug conviction on his record, which statement Speed did not dispute. On appeal, Speed does not argue, and we find nothing in the record to indicate, that he has any other convictions. We fail, therefore, to see how he could have been misled or prejudiced by the errors. The allegations definitely informed Speed of the charge against him with enough specificity that he could not have been prevented from preparing a defense and could not have been taken by surprise. Moreover, the variance did not expose him to the possibility of having to stand trial later for the same charge. Therefore, the variance did not affect Speed’s substantive rights and the trial court did not err in denying his motion for a directed verdict of acquittal on this ground. See Hesterlee v. State, 210 Ga. App. 330, 332-333 (1) (436 SE2d 32) (1993).

Decided April 29, 1996.

William W. West, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

2. In a similar enumeration, Speed argues that the trial court erred in admitting into evidence a certified copy of the Mississippi order accepting his guilty plea to the charge of possession of marijuana. Speed contends that the order was not relevant inasmuch as it evidenced a prior conviction in Lowndes County for possession of a certain quantity of marijuana, whereas the indictment alleged a prior conviction in Rankin County for possessing marijuana with intent to distribute. “Admissibility of evidence is a matter which rests largely within the discretion of the trial court. ... In the absence of abuse of discretion, we will not reverse when a trial court overrules a relevancy objection and allows the admission of evidence.” (Citations and punctuation omitted.) Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995). As discussed above, the variance between the allegata and probata in this case was not material. Because Speed’s felony conviction was clearly relevant to the issue of whether he was a convicted felon, the trial court did not abuse its discretion in admitting the order. See Mosley v. State, 261 Ga. 868, 869 (3) (b) (412 SE2d 529) (1992).

Judgment affirmed.

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


text:
    A96A0749, A96A0750.
    BROWN et al. v. JACKSON et al.; and vice versa.
    (470 SE2d 786)
   Johnson, Judge.

Representatives of the estate of Etheridge Brown filed this wrongful death suit against Deputy Sheriffs Cordel Jackson and Richard Vi rung and Peach County. The three defendants filed a motion for summary judgment. The trial court granted the motion with regard to the claims against Jackson and Vining, finding that the officers are entitled to official immunity for the allegedly negligent performance of their discretionary duties as law enforcement officers. The motion was denied as to Peach County.

Case No. A96A0749

1. Appellants’ appeal from the trial court’s grant of summary judgment in favor of the two deputy sheriffs was docketed on December 15,1995. Appellants’ brief and enumerations of error were due on January 4, 1996. Appellants did not request an extension of time to file enumerations of error and brief before the expiration of the time permitted for filing. See Court of Appeals Rules 13 and 26. No brief or enumerations of error have been filed as of this date. Accordingly, this appeal is hereby dismissed as abandoned.

Case No. A96A0750

2. Peach County asserts in this appeal that the trial court erred in denying its motion for summary judgment because deputy sheriffs are employees of the sheriff rather than the county, and therefore the county cannot be liable for their actions as their principal. We agree. In Gilbert v. Richardson 264 Ga. 744 (452 SE2d 476) (1994), the Georgia Supreme Court held that “[s]ince deputy sheriffs are employed by the sheriff rather than the county, sheriffs may be liable in their official capacity for a deputy’s negligence in performing an official function.” Id. at 754 (7). This Court has addressed the issue as well. “Deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge. [Cit.j They have no duties save alone duties of the sheriff, which as his deputy and his agent they are by law authorized to perform. The sheriff, and not the county, is liable for the misconduct of his deputies.” (Citations and punctuation omitted.) Wayne County v. Herrin, 210 Ga. App. 747, 751 (3) (437 SE2d 793) (1993). Deputy Sheriffs Jackson and Vining, at all times relevant to this case, were employees of the sheriff and not Peach County. Therefore, the Peach County Sheriff, and not Peach County, would have been the proper party to have sued under a theory of respondeat superior. The trial court’s denial of Peach County’s motion for summary judgment was error and must be reversed.

3. Because of our holding in Division 2 above, we need not address Peach County’s additional allegations of error.

Appeal dismissed in Case No. A96A0749; judgment reversed in Case No. A96A0750.

Decided April 29, 1996.

Gordon L. Joyner, for appellants.

Chambless, Higdon & Carson, Thomas F. Richardson, Swift, Currie, McGhee & Hiers, Christopher D. Balch, for appellees.

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


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A0460.
    THE STATE v. WRIGHT.
    (470 SE2d 916)
   Birdsong, Presiding Judge.

This is an appeal by the State of the order of the trial court granting appellee Russell P. Wright’s motion to dismiss.

Appellee was issued a traffic citation for DUI. The trial court, citing State v. Golden, 210 Ga. App. 800 (437 SE2d 492), granted appellee’s motion to dismiss on the grounds the arresting officers had no particularized suspicion to justify the initial stop of appellee who was driving his motor vehicle; rather, the court concluded the initial stop was conducted “merely to make sure that no criminal violations had taken place.”

Investigator Lowry of the Houston County Sheriff’s Department was in his patrol unit when he monitored a call from dispatch regarding a lookout placed on a vehicle which had been observed “cutting doughnuts behind a church.” Dispatch provided the reported location and description of the vehicle and two uniformed officers in another patrol unit were sent to the church. As Lowry proceeded in his patrol unit toward his residence, a vehicle matching the description of the reported vehicle passed him. The vehicle was coming from and was approximately only 400 yards from the church. Lowry turned his unit around and was attempting to catch the subject vehicle when the other patrol unit caught up to Lowry. Lowry then observed the suspect vehicle definitely “weaving”; the vehicle “swung over” and made yet another turn. When the driver of the subject vehicle turned, “he made it so wide that he actually went off the right side of the road.” Lowry advised the trailing patrol unit that he was going to attempt to stop the vehicle and then activated his blue light. The vehicle proceeded to an intersection and stopped. The officers in the trailing patrol car handled the ensuing investigative detention which culminated in appellee’s DUI citation. When Lowry commenced to follow the vehicle, he did not suspect it was involved in any kind of criminal activity “other than it fit the general description of the lookout.” Lowry did not personally investigate the incident and did not issue any traffic citations.

The uniformed officers initially had been dispatched to the church after being informed by the dispatcher that a blue or green pickup truck with a cab cover was in the church’s back parking lot “spinning doughnuts.” The truck was not in the parking lot when they arrived at the scene; however, circular tracks were observed where the truck had been driving. The dispatched vehicle then received a call from Lowry stating that he was following a vehicle that matched the description of the vehicle in question and giving them his location. The dispatched vehicle caught up with Lowry and observed the subject vehicle “cross the center divider line approximately four times” and make “an erratic turn” or “erratically swerve” onto an adjoining road without using “a turn signal”; the vehicle “cut the curb because he ended up taking the other lane.” The officers followed the vehicle, as it turned, and “decided to do our vehicle pullover at that time.” The dispatched vehicle then activated its flasher lights and Lowry also activated his blue light. Appellee stopped and exited his vehicle, and investigative detention commenced. The apprehending officer asked if appellee knew why he was being stopped, and appellee responded he thought it was for the driving he was doing at the church.

When the apprehending officer was at the church, he believed a crime of “reckless driving had occurred” there; however, appellee was not charged with reckless driving or any other crime relating thereto. The apprehending officer did not issue appellee a ticket for reckless driving, because before he was Mirandized appellee admitted he had been driving at the church and the officer already had “probable cause for the DUI”; further, the officer did not see appellee driving at the church. The arresting officer also elected not to issue appellee a citation for failing to maintain his lane, for failing to signal a turn, or for making a wide turn, although the latter two incidents were recorded in his report. He did not issue a citation for these offenses because they were examples of incidents giving rise to probable cause for the DUI, and he saw no point in adding further charges to the DUI citation. The arresting officer’s shift supervisor, who also was in the dispatched patrol unit, testified and basically confirmed the testimony of the arresting officer. He further testified that after catching up with Lowry he saw that the pursued vehicle was weaving. The vehicle was kept under observation and was observed weaving over the centerline a couple of more times and, when it turned without giving a signal, his unit then called in and “initiated the traffic stop at that time.” (Emphasis supplied.) Appellee pulled his vehicle over in response to the units’ flashing lights. The shift supervisor was concerned because appellee’s driving conduct indicated he was under the influence of alcoholic beverages, could be having problems with his steering, or might be in need of help. Appellee’s driving conduct constituted technical violations of the uniform rules of the road. The investigation made at the church, before appellee was observed, revealed evidence that somebody had been there shortly before the officers and was driving in an unsafe manner in the parking lot. Held:

1. “This appeal does not involve a trial court’s rulings on disputed facts and credibility at a suppression hearing, which must be accepted by a reviewing court unless clearly erroneous, [cit.], as the facts in the case sub judice were not in conflict. Rather, ‘(t)his court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495 (411 SE2d 314).

2. The trial court’s reliance on Golden, supra, is misplaced; Golden is distinguishable. In Golden, the vehicle was not observed committing traffic violations before the stop; it was stopped merely to confirm that no crime had been committed. Also distinguishable is Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) where the officer detained defendant solely on his intuition that defendant had avoided a roadblock.

3. The suppression hearing testimony of the investigator and officers was not refuted. Appellee was stopped by the combined and simultaneous actions of Investigator Lowry and of the officers in the dispatched patrol unit.

“ Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)), and are invalid if based upon only (an) unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’. . . [Cit.] This specific, articulable suspicion must be based on the totality of the circumstances — e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer.” Cheatham v. State, 204 Ga. App. 483, 484 (1) (419 SE2d 920). When the police activated their flasher lights and caused appellee’s vehicle to stop, they unrefutedly were in possession of knowledge, gained from their individual personal observations, that appellee had committed at least two distinct traffic violations; specifically, both officers and the investigator had observed appellee repeatedly fail to maintain a single lane (weaving) (see generally Ramirez v. State, 192 Ga. App. 255 (384 SE2d 279); OCGA § 40-6-48 (1)), and had observed him turn without giving a turn signal (OCGA § 40-6-123). Compare Cunningham v. State, 216 Ga. App. 283 (454 SE2d 176) and Evans v. State, 216 Ga. App. 21 (453 SE2d 100) (articulable suspicion where vehicle driving with defective headlight). At the moment when appellee was signaled to stop his vehicle, the officers and the investigator each harbored an articulable suspicion, based on personal observation, that appellee had committed multiple traffic violations. Because they all simultaneously assisted in the stop, we emphasize that the existence of an articulable suspicion may be “based on the collective knowledge of law enforcement officials.” Tarwid v. State, 184 Ga. App. 853, 855 (363 SE2d 63). In this regard, any one of the apprehending officers “was entitled to rely on the information given him by a fellow officer” in the formation of an articulable suspicion. Chumbley v. State, 180 Ga. App. 603, 604 (349 SE2d 823).

Also, the arresting officer’s supervisor had an articulable suspicion, based on the manner in which appellee operated his vehicle, that appellee was driving under the influence of alcohol, driving a vehicle with steering problems, or was in need of help. Any one of these conditions could pose a real and present danger to both appellee and the public. Compare Cunningham, supra at 284.

“The fact that the officer[s] did not charge defendant with [these observed traffic offenses] but only with the more serious offense of driving under the influence is immaterial” (State v. Adams, 186 Ga. App. 87, 88 (366 SE2d 326)); it was in the arresting officer’s discretion which of the traffic offenses, if any, he would cite appellee for violating. Articulable suspicion is not negated nor is a traffic stop deemed to be a mere sham or pretext solely because an officer elects not to cite the defendant with any or all of his suspected traffic violations; failure to cite, at most, is but one factor among the totality of the circumstances to be considered in determining the legality of a traffic stop.

Additionally, the radio call received from dispatch by both police vehicles, apparently based on a concerned citizen’s observation, provided a description of the suspect vehicle, the location of the incident, and a description of the type of driving reported. Almost simultaneously Investigator Lowry observed a departing vehicle approximately 400 yards from the parking lot which matched the vehicle “lookout” description. He called the patrol unit and informed them of his location and that he was following the vehicle. “Information which police transmit to one another, by any accepted means of communication, can provide ‘sufficient grounds to create an articulable suspicion warranting reasonable cause to stop [appellee’s vehicle].’ [Cit.]” Walton v. State, 194 Ga. App. 490, 491 (2) (390 SE2d 896); see also State v. Thomason, 153 Ga. App. 345 (265 SE2d 312) (radio report to investigate person slumped over steering wheel). Also, the officers dispatched to the church were in possession of tire-track evidence that provided an indicia of reliability for the concerned citizen’s report. Compare McFarland, supra, with Johnson v. State, 197 Ga. App. 538 (398 SE2d 826). Based on information from the radio calls and their personal observation of the tire tracks, the officers in the patrol unit would have a basis for forming, prior to the stop, an articulable suspicion that the vehicle driver had committed the reported reckless driving offense. See generally OCGA §§ 40-6-390, 40-6-3 (a) (2) and (3); Chavous v. State, 205 Ga. App. 455 (422 SE2d 327).

The suppression hearing transcript contains no evidence to support a finding that the law enforcement officials simultaneously stopped appellee’s vehicle on mere pretext. Further, the trial court’s finding that the law enforcement officials had no articulable suspicion concerning appellee is without substantial basis; unrefuted evidence of record provides ample evidence of articulable suspicion of various traffic violations prior to the investigative stop. McFarland, supra. Also the record provides no substantial basis for the finding that the sole reason for the stop was to make sure that no criminal violations had taken place.

4. Appellee, citing Thomas v. State, 171 Ga. App. 306 (319 SE2d 511), and Smith v. State, 159 Ga. App. 20, 21 (2) (282 SE2d 677), asserts that a police officer is required to have an articulable suspicion before he can commence pursuit or even the mere following of a citizen. Specifically, appellee contends that the officers and investigator lacked any articulable suspicion before they commenced following his vehicle and thus the stopping of appellee, even after he committed observed traffic violations, was tainted.

This Court frequently has opined, “ ‘ “ £[w]here no circumstances at all appear which might give rise to an articulable suspicion . . . that the law has been violated, the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen.’ ” ’ ” (Citations omitted; emphasis supplied.) Weaver v. State, 208 Ga. App. 105, 106-107 (430 SE2d 60); State v. Holton, 205 Ga. App. 434, 435-436 (1) (422 SE2d 295); Fowler v. State, 195 Ga. App. 744, 745 (395 SE2d 254); Brooks v. State, 129 Ga. App. 109, 111-112 (198 SE2d 892). These cases, however, were focused on the intrusion caused by the ultimate detention of the citizen and are not authority supporting appellee’s contention.

Both Thomas, supra, and Smith, supra, also are factually distinguishable. Thomas holds the police had an articulable suspicion that the car they stopped was transporting robbery perpetrators. Smith, supra at 22 (2), merely held that the acts of the defendant in speeding from a suspected burglary site, and in “floorboarding” and making an evasive turn with the car after a policeman pointed at it, “would justify the police officers in following the car.” Neither Thomas nor Smith affirmatively addresses whether articulable suspicion is required before the police can follow a citizen-driven motor vehicle, and do not support such a contention; as “questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedent.” Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152).

The Fourth Amendment provides a constitutional safeguard against unreasonable searches and seizures, and unless police conduct in following a citizen-driven motor vehicle would, under the totality of the circumstances, result in an unreasonable seizure, no Fourth Amendment violation warranting evidence suppression occurs. Even absent articulable suspicion for a pursuit to constitute the seizure of a person, there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s “show of authority” to restrain the subject’s liberty. See generally California v. Hodari D., 499 U. S. 621 (1) (a), (1) (b) n. 1, (1) (g) (111 SC 1547, 113 LE2d 690); compare Conner v. State, 205 Ga. App. 564, 566 (3) (422 SE2d 872). This is consistent with the objective test that “the police can be said to have seized an individual ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave’ ” (Michigan v. Chesternut, 486 U. S. 567, 573 (108 SC 1975, 100 LE2d 565)); as the latter test merely states “a necessary, but not a sufficient, condition” for a seizure effected through show of authority (Hodari D., supra at 628). For a person to be seized through “show of authority,” it also is required that the subject yield to such showing. Id. at 626, 628. In Hodari D., supra at 629, it thus was concluded that “assuming [the officer’s] pursuit . . . constituted a ‘show of authority’ enjoining [defendant] to halt, since [defendant] did not comply with that injunction he was not seized until he was tackled.” Pretermitting whether the investigator had an articulable suspicion when he commenced following the vehicle, appellee never submitted to the show of police authority until the patrol units both activated their flasher lights; at that point, as above discussed, at least one or more of the officers had an articulable suspicion that appellee had committed various traffic offenses. It was not until appellee actually submitted to the show of authority that a seizure of his person occurred for Fourth Amendment purposes. Id. Compare the factors considered in Chesternut, supra at 575, with the operative facts of this case.

The result herein reached is consistent with Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294), where the Georgia Supreme Court, after having balanced the State’s interest in the maintenance of community peace and security and having found it outweighed the momentary inconvenience and indignity of investigative detention, concluded that “ ‘the state can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness.’ [Cit.]” A most effective preventive therapy prescription is that of the traffic police merely following citizens who are driving motor vehicles; such action is not unreasonable within the meaning of the Fourth Amendment when conducted within Hodari D., supra, parameters.

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the reversal of the trial court’s order but not with all that is contained in the opinion.

1. Defendant filed a motion to suppress the result of any breath test administered and a motion in limine to restrict testimony about it, on the ground that he was not properly informed of his rights under Georgia’s Implied Consent Law. He also filed a motion to dismiss the intoxicated driving charge altogether because, he alleged, the officer lacked an articulable suspicion to stop him. The court acted only on the latter motion and ordered the charge dismissed, relying on State v. Golden, 210 Ga. App. 800 (437 SE2d 492) (1993). That case reviewed the grant of a motion to suppress evidence.

Although the trial court procedurally could have granted a motion to suppress the evidence it deemed unlawfully obtained in this case, leaving the State to try the case without it, the conclusion that evidence was not obtained legally would not invalidate the charge itself. I find no authority for a court to dismiss a charge because of illegally seized evidence. All of the cases cited by Wright, both in the trial court and here, involve motions to suppress evidence.

As in or similar to the cases Wright depends on, he could have filed a motion to suppress evidence the legality of which was precluded by the lack of an articulable suspicion to stop his pickup truck. OCGA § 17-5-30. A motion in limine to exclude related testimony on the same ground would also be procedurally correct. See State v. Johnston, 249 Ga. 413, 414 (3) (291 SE2d 543) (1982). However, he did not do so, and his motions of this nature addressed another concern.

According to the statute, a motion to suppress “shall . . . state facts showing that the search and seizure v/ere unlawful.” The movant must state facts showing wherein the unlawfulness lay. Mosier v. State, 160 Ga. App. 415 (2) (287 SE2d 357) (1981). The legality of the stop “extended] beyond the boundaries of defendant’s motion to suppress,” which involved the officer’s compliance with the Implied Consent Law, and thus was not determinable in that context. Wilson v. State, 197 Ga. App. 181, 183 (397 SE2d 744) (1990). See also Davis v. State, 203 Ga. App. 315, 316 (2) (416 SE2d 789) (1992).

Decided April 30, 1996.

Robert E. Turner, Solicitor, Cynthia T. Adams, Assistant Solicitor, for appellant.

Sammons & Sammons, Walter G. Sammons, Jr., for appellee.

Thus, Wright was not entitled to suppression of the evidence on the ground ruled on by the trial court, because he had not pursued such in his motion to suppress and motion in limine, and he was not entitled to dismissal of the charge for the reason asserted and ruled on. On the procedural error alone, without our even considering the underlying substance of the ruling, reversal of the court’s order is warranted.

2. Even if the merits of the challenge to the traffic stop were properly before us, it is unrefuted that it was initiated because of erratic driving by Wright observed by all three officers. An objectively determined articulable suspicion of criminal behavior was present. Wright states that the sole issue is whether police officers are permitted to single out and follow an individual when they lack articulable suspicion of criminal wrongdoing. Assuming that issue was adequately presented before and preserved for review, I would agree with the majority’s answer to it.


author: Judge Harold R. Banke.

text:
    A96A0477.
    WAL-MART STORES, INC. v. FORKNER.
    (471 SE2d 30)
   Judge Harold R. Banke.

Wal-Mart Stores, Inc. (“Wal-Mart”) appeals the punitive damages awarded by the default judgment entered on behalf of Tommy O. Forkner.

Forkner sued Wal-Mart for assault and battery and false imprisonment and sought general and punitive damages. Forkner’s complaint alleged that Wal-Mart had acted wilfully with conscious indifference to consequences and an entire want of care. After Wal-Mart failed to file an answer or defensive pleadings, despite being properly served, the trial court entered a default judgment on the issue of liability. Prior to the trial to determine damages, Wal-Mart received notice of the default judgment and also of the pending damages hearing. Despite this notice, Wal-Mart failed to make an appearance, and Forkner, as the sole witness, testified at the bench trial on damages. In awarding damages, the trial court specifically determined that Wal-Mart’s “agents and employees acted in a grossly negligent manner by falsely accusing Plaintiff of committing theft by shoplifting and by falsely imprisoning Plaintiff” and that Wal-Mart’s conduct was “malicious and willful.” The court awarded Forkner general damages, punitive damages, and court costs in the amount of $50,110. Held:

1. We reject Wal-Mart’s contention that the trial court committed reversible error by failing to make a specific finding through a special verdict form that punitive damages were awardable as required by OCGA § 51-12-5.1 (d) (1). Wal-Mart’s argument pedantically seeks to exalt form over substance since the trial court’s choice of language on the face of the judgment shows an implicit finding that Wal-Mart’s wilful and malicious misconduct justified the award of punitive damages. See Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993). The trial court set forth four pages of findings of fact and conclusions of law making it abundantly clear that it deemed that WalMart’s actions in falsely imprisoning Forkner and engaging in assault and battery constituted wilful and malicious misconduct under OCGA § 51-12-5.1 (b). Even if we assume, without deciding, that the trial court erred by not making a specific finding on a verdict form that punitive damages were authorized, and in so doing deviated from the requirements of OCGA § 51-12-5.1 (d) (1), Wal-Mart has failed to show any harm due to that deviation. See Burnette v. McCarter, 211 Ga. App. 781 (440 SE2d 488) (1994); Hill, 210 Ga. App. at 825.

2. Similarly, we reject Wal-Mart’s contention that the trial court committed reversible error by failing to state the specific amount of punitive damages and by failing to separate punitive damages from compensatory damages. As we have previously held, one cannot waive the right to participate in a damages hearing, passively acquiesce to deficient procedures under OCGA § 51-12-5.1, then contest the alleged deficiencies on appeal. Hill, 210 Ga. App. at 825. See also Erwin v. Gibson, 205 Ga. App. 136, 137 (421 SE2d 752) (1992).

Nor do we find persuasive Wal-Mart’s contention that the purported deficiencies rendered the judgment void on its face and that enforcement of the judgment would result in a manifest injustice. Although the judgment fails to separate general and punitive damages, we believe that this omission was harmless error under these facts. Compare Hill, 210 Ga. App. at 825; and Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656 (3) (402 SE2d 753) (1991) (judgment defective due to multiple flaws including a failure to find a specific intent to harm and an obvious error in the calculation of the amount of compensatory damages).

Decided April 30, 1996.

McLain & Merritt, Howard M. Lessinger, Anthony A. Rowell, for , appellant.

Donald B. Lowe III, Jan R. Gilbert, for appellee.

Because Wal-Mart failed to establish harm as well as error as required on appeal, we find Wal-Mart’s claims are without merit. OCGA § 9-11-61; Miller Grading Contractors v. Ga. Fed. Savings & Loan Assn., 247 Ga. 730, 733-734 (3) (279 SE2d 442) (1981); Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892) (1990). Nor do we choose to ignore the fact that Wal-Mart’s situation is of its own making due to its failure to appear at the damages hearing and participate in the proceedings despite being afforded an opportunity to do so.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A0594.
    DURFEE v. THE STATE.
    (471 SE2d 32)
   Judge Harold R. Banke.

After a bench trial, Vickie Hailey Durfee was convicted of one count of trafficking in cocaine and one count of criminal attempt to traffic in cocaine. On appeal, she argues that her convictions exposed her to double jeopardy and challenges the sufficiency of the evidence on the attempt charge.

Viewed in the light most favorable to the verdict, the State’s evidence showed that Durfee entered into a drug transaction with a confidential informant which involved the transfer of approximately two ounces of cocaine. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The transaction which provided the basis for the second count occurred when the confidential Informant delivered several ounces of “sham” cocaine to Durfee, who was arrested several moments later.

Prior to her convictions, federal authorities initiated a civil forfeiture proceeding against Durfee’s residence arising out of the same activity. After Durfee’s state court convictions, the forfeiture case culminated in a consent judgment requiring Durfee to pay $18,000 in lieu of forfeiting her property. Held:

1. The trial court properly rejected Durfee’s double jeopardy argument. Although the federal prohibition against double jeopardy may reach civil proceedings in “rare” instances when civil penalties may constitute punishments for double jeopardy purposes, it does not apply here because the double jeopardy clause reaches only subsequent punishments, not the initial punishment imposed for a criminal act. United States v. Halper, 490 U. S. 435, 448-449 (109 SC 1892, 104 LE2d 487) (1989); Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (1) (428 SE2d 71) (1993).

Decided May 1, 1996

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Although the issue is one of first impression in this State, we believe jeopardy attached in the federal civil forfeiture action when the judgment was entered and the sanction actually meted out, which occurred after Durfee’s criminal convictions. Accord United States v. Stanwood, 872 FSupp. 791 (D. Or. 1994). Because no other judgment had been rendered at the time of Durfee’s convictions, double jeopardy analysis has no application to this case.

This finding precludes Durfee’s arguments under state constitutional and statutory law. Moreover, Georgia’s statutory protections against double jeopardy have no application to civil proceedings. Murphy v. State, 219 Ga. App. 474 (465 SE2d 497) (1995).

2. We reject Durfee’s argument that, because the informant supplied her with “sham” cocaine, the evidence of attempted trafficking was insufficient. Jackson v. Virginia, 443 U. S. at 319-320. The fact that Durfee attempted to traffic imitation cocaine does not relieve her of culpability absent evidence that she knew the substance was not cocaine. Guzman v. State, 206 Ga. App. 170, 171-172 (2) (424 SE2d 849) (1992); OCGA § 16-4-4. No such evidence was presented.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


author: Smith, Judge.

text:
    A96A0113.
    PERGUSON v. THE STATE.
    (470 SE2d 909)
   Smith, Judge.

Herbert Eugene Perguson was indicted for two counts of child molestation and two counts of aggravated child molestation. A jury found Perguson guilty of all four offenses, and judgments of conviction and sentences were entered on the verdict. Perguson appeals following the denial of his motion for new trial.

Construed to support the verdict, the evidence presented at trial showed that Perguson was accused by his ten-year-old stepdaughter of having molested her since she was eight years old. She claimed he performed several acts of oral sodomy, licked her breasts, and penetrated her vagina with his penis on a number of occasions. The victim testified that Perguson required her to participate in these sexual activities as a condition of allowing her to participate in other activities, such as swimming or miniature golf. She also testified that she and Perguson watched sexually explicit videotapes together.

Before reporting this molestation to her mother, the victim told her mother that a school photographer touched her breast and commented about her breasts. The victim testified at trial that she falsely accused the photographer of making the comments, but she maintained that the touching did take place. Her mother testified, however, that the victim admitted to her that the allegations against the photographer were not true; she believed her daughter had accused the photographer in order to ascertain whether her mother would believe her if she accused Perguson.

Perguson testified and denied that he molested his stepdaughter. He admitted, however, that he allowed her to view the sexually explicit tapes when she discovered them, and that he sometimes viewed these tapes with her.

1. Perguson contends the trial court’s jury charge on the definition of aggravated child molestation was erroneous. In defining this offense for the jury, the court charged OCGA § 16-6-4 (c) in its entirety. That subsection defines aggravated child molestation as follows: “[a] person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”

The indictment charged Perguson only with committing aggravated child molestation by committing sodomy. Perguson argues that the court’s charge raised a reasonable possibility that the jury convicted him of aggravated child molestation by committing an act of child molestation that physically injured the victim, a crime with which he was not charged. We are constrained to agree.

It is generally not error to charge an entire Code section even though part of that section may be inapplicable to the allegations and the evidence. Cottingham v. State, 206 Ga. App. 197, 198 (2) (424 SE2d 794) (1992). In most cases, any inapplicable portions of a charged Code section are deemed merely unnecessary and not harmful. Our courts have consistently cautioned, however, that when the indictment specifies the commission of a crime by only one of several methods possible under the statute, if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a way not alleged in the indictment, it is reversible error to charge the entire Code section. See Childs v. State, 257 Ga. 243, 252-253 (17) (357 SE2d 48) (1987); Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992).

The Georgia Supreme Court addressed this issue recently in Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995). In Dukes, the defendant, a wrecking service and body shop owner, was charged with theft by taking of two cars by unlawfully taking them. At trial, the court charged the jury on the entire statute defining theft by taking, which provides that the crime may be committed in two ways: by unlawfully taking another’s property or by unlawfully appropriating another’s property while in lawful possession of it. The jury convicted the accused of two counts of theft by taking. The Supreme Court reversed one of the two convictions, reasoning that the evidence showed that one of the cars was placed in his possession lawfully; the charge therefore could have misled the jury into believing they could convict the defendant of theft by taking in that manner, despite the fact that the indictment accused him only of unlawful taking. Id. at 423-424.

The jury charge in Dukes violated the defendant’s due process rights because the court did not instruct the jury that although the entire Code section was being charged, their consideration must be limited to the manner of committing the crime specified in the indictment. Id. at 423. Under the charge as given, the jury could have relied upon the evidence presented at trial supporting a different method to convict the defendant of committing an uncharged crime.

The same is true here. Evidence was presented from which the jury could have convicted Perguson of aggravated child molestation by committing acts of sodomy, which was charged. Evidence was also presented, however, from which the jury also could have believed that Perguson committed acts of child molestation that physically injured the child. The doctor who examined the victim the day after she reported being molested testified that the physical examination revealed a “tear” in the child’s hymen indicative of a “severe penetrating injury” that would have been painful when it occurred. She testified that this injury was “very much” consistent with penile penetration. Contrary to the State’s protestations that this was not a physical injury, the doctor herself characterized this tear as a “healed injury.”

This evidence established the elements of the crime of aggravated child molestation by showing an act of child molestation that physically injured the victim. The court charged the entire Code section even though the indictment charged Perguson only with aggravated child molestation involving sodomy; the court gave no instruction limiting the jury’s consideration of aggravated child molestation to acts involving sodomy. Given the court’s charge, the evidence presented, and the absence of a limiting charge, the jury could well have believed that Perguson committed aggravated child molestation by committing an act of child molestation that physically injured the victim. Under these circumstances, Dukes mandates that the convictions for aggravated child molestation must be reversed.

2. Pointing to conflicts in the testimony of the victim, Perguson complains of the trial court’s denial of his request to charge OCGA § 24-9-85 (b). That statute provides that “[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” The court ruled that the requested charge was covered in the charge on impeachment. Perguson correctly points out that the impeachment charge is different. It does not cover wilful and knowing false swearing; it provides that even when a witness is successfully impeached as to a material matter, the jury may give other portions of the witness’s testimony whatever credit they deem proper. OCGA § 24-9-85 (a). Although the trial court also charged on the credibility of witnesses, this Court has rejected the argument that the principle embodied in OCGA § 24-9-85 (b) is covered by such a charge. Blount v. State, 172 Ga. App. 120, 122 (4) (322 SE2d 323).

Nevertheless, we find that the trial court’s denial of the request to charge was correct for a different reason. “OCGA § 24-9-85 (b) is applicable where the witness admits that he wilfully and knowingly swore falsely, or where the testimony is such as to render the purpose to falsify manifest.” (Citations and punctuation omitted.) Fugitt v. State, 256 Ga. 292, 298 (6) (348 SE2d 451) (1986). To support his claim that OCGA § 24-9-85 (b) applies here, Perguson relies on evidence that the victim told the doctor no oral/penile contact had occurred, yet she testified at trial to exactly such contact. He also relies on her failure to report digital penetration until her testimony at trial and on the victim’s false accusation against the photographer. These circumstances certainly demanded a charge on impeachment, which was given. They do not, however, “render the [victim’s] purpose to falsify manifest.” Fugitt, supra. They do not lead to the conclusion that the victim wilfully and knowingly testified falsely. Under these circumstances, the victim’s credibility was for the jury under proper instruction from the court regarding credibility and impeachment. Id. The trial court correctly denied Perguson’s request to charge on OCGA § 24-9-85 (b), and a trial court’s ruling right for any reason must be affirmed. Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995).

3. Perguson was scheduled to testify on Wednesday morning. On Tuesday evening he became ill. On Wednesday morning, he was “wobbly” and “not alert,” and his attorney stated that he could not assist in his own defense. The trial court revoked Perguson’s bond and ordered Perguson taken into custody and delivered to the hospital so that his condition might be evaluated. The court then recessed. After the emergency room physician sent the court a letter explaining he believed the source of the problem had been found and was being treated, Perguson’s counsel moved for a mistrial, which was denied. Based on the information provided by the doctor, court was again recessed until the following Monday, when the court expected to hear from Perguson’s physician about his condition before deciding whether to resume the trial. Perguson was discharged from the hospital on Sunday.

On Monday, Perguson’s treating physician, Dr. William Martin, appeared before the court. He testified that laboratory tests showed Perguson suffered from a serious condition that could possibly lead to severe kidney damage if not treated properly. When Perguson was admitted to the hospital he was described as “mildly confused.” Dr. Martin testified, however, that Perguson was not confused when he first examined him on Wednesday evening, although he may have been “a little cloudy ... in responding.” Over the time Dr. Martin observed Perguson in the hospital, he appeared “clear” and “oriented and did not appear confused.”

Perguson did have a memory lapse concerning the events from Tuesday afternoon until Wednesday morning, but other than the memory loss for that short time period his memory appeared to Dr. Martin to be intact. A consulting neurologist did not find any mental disturbance or memory loss other than the short lapse from Tuesday afternoon to Wednesday morning. A psychiatrist believed Perguson’s mental condition could be caused by stress and prescribed medication for that condition; that medication, according to Dr. Martin’s testimony, can cause some drowsiness or possibly dizziness and could have affected Perguson’s memory. Nevertheless, Dr. Martin testified that he believed Perguson was able to continue the trial. At the conclusion of Dr. Martin’s testimony, Perguson renewed his motion for a mistrial. The court denied the motion and ordered that the trial resume immediately. At Perguson’s request, the court explained to the jury that the delay was caused by Perguson’s medical problem but that it was not his fault and the problem was being treated. Perguson was then called to the stand in his own defense.

Perguson recognizes that the issue of whether to grant a mistrial is within the sound discretion of the trial court and that this Court will not disturb the trial court’s ruling absent an abuse of discretion. Davis v. State, 262 Ga. 692, 693 (424 SE2d 628) (1993). He asserts, however, that the court abused its discretion in this case. He argues that his mental condition raised serious constitutional concerns, given that this trial amounted to a swearing contest between him and the victim, and that both his demeanor and the substance of his testimony were crucial. As grounds for a mistrial, he points to his medical condition, including his loss of memory and the effects of the prescribed medication, and the prejudicial effects of the delay on the jury before his testimony.

We agree with the State that Perguson’s argument that his condition affected his testimony is belied both by Dr. Martin’s testimony and by Perguson’s own testimony after the trial court’s ruling. Perguson testified with a clear grasp of details and never indicated any problems recalling information. As to prejudicing the jury, the trial court was careful to disclose to the jury only such information as was agreed to or even suggested by Perguson’s counsel. The issues raised by Perguson’s illness during this trial were unusual, and we find the court’s handling of the problems presented by these events to be exemplary. We find no error.

4. Perguson called the child’s maternal aunt, Susan Demorest, as a witness. When his counsel asked her what she observed about the victim’s relationship with Perguson, the State objected on the ground that this questioning sought to elicit testimony regarding specific acts of good character. A colloquy ensued between counsel and the court, during which both the court and the State appear to have been addressing the relevance of the evidence as well as the ground originally stated. The court agreed with the State that this line of questioning could not be pursued.

A character witness may not be questioned regarding specific instances of conduct. Ogletree v. State, 211 Ga. App. 845, 848 (440 SE2d 732) (1994). We agree with Perguson, however, that no objection was sustainable on that ground against the evidence proffered. Although Demorest was eventually called upon to be a “character” witness, that was not her only role; she was also a “fact” witness. In the challenged questions, she was asked to relate her observations regarding the nature of the relationship between Perguson and his stepdaughter and between Perguson and his wife. Some of the excluded evidence was doubtless either irrelevant or only marginally relevant, but we cannot agree with the trial court and the State that none of this evidence was relevant. The credibility of the victim was in issue, and information about her relationship with Perguson was relevant to the jury’s consideration of the truthfulness of her accusations against him.

But other evidence of the relationships also was admitted in this case. The child’s mother testified to the nature of her relationship to Perguson. She also testified that Perguson and his stepdaughter had engaged in a wide variety of activities together before the accusation. Demorest testified without objection about Perguson’s relationship with the child, describing him as a “very loving, kind, very giving, father figure.” Harm, as well as error, must be shown for reversal. McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995). Because other testimony bearing on this issue was admitted, we find it highly probable that the exclusion of this evidence did not contribute to the jury’s verdict. See Bennett v. State, 254 Ga. 162, 164-165 (3) (326 SE2d 438) (1985). Consequently, even if the court’s ruling was error, it was harmless.

Decided April 10, 1996

Reconsiderations denied May 2, 1996

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Pamela D. South, Assistant District Attorney, for appellee.

5. Perguson contends the trial court erred in preventing him from questioning the doctor who examined the victim regarding Georgia’s mandatory child abuse reporting law and the punishment for failing to report child abuse. See OCGA § 19-7-5. No issue was raised regarding the doctor’s report of the abuse; the victim’s mother called the police. This testimony was not relevant to the issues in the case.

6. Count 3 of the indictment charges Perguson with child molestation “by touching his penis to [the victim’s] vaginal area.” (Emphasis supplied.) Perguson asserts that a fatal variance exists between the allegations in the indictment and the proof at trial because the victim testified not that he touched her vagina with his penis but that he penetrated it. This is patently without merit. In order to penetrate the child, Perguson would, of necessity, have to touch her. An indictment is sufficient if it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of the charges he must defend. If the defendant is informed so that he may prepare his defense- and not be surprised at trial, the indictment is sufficient. Scott v. State, 207 Ga. App. 533, 534 (428 SE2d 359) (1993). This indictment meets that test. It placed Perguson on notice that he was charged with a particular type of contact constituting child molestation. It was therefore sufficient.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A96A0178.
    BRAY v. THE STATE.
    (471 SE2d 17)
   Andrews, Judge.

The sole issue raised on this appeal is whether the trial court erred in admitting into evidence those portions of Jeffrey Lynn Bray’s driving record listing his prior offenses. Bray was charged with DUI and driving after being declared an habitual violator. At trial, the court overruled his objection to the introduction of that portion of his driving record which listed his prior offenses. In the order on the motion for new trial, the trial court held that the error, if any, was harmless because the court set aside the DUI conviction and the error did not contribute to the judgment on the habitual violator offense. We disagree and reverse.

The evidence at trial was that Bray knocked on the door of Leroy Mann’s house on the evening of February 3, 1992, and said his car was in a ditch and asked to use the telephone. Mann testified that Bray was slurring his words and seemed unsteady on his feet. The officer who responded to the call testified that Bray told him he was turning around in a driveway and backed into the ditch.

Bray testified in his own defense, and while he admitted he was drunk the night of the accident, he claimed he was not driving the car. He stated that his girl friend, April, was driving and, after she backed into the ditch, she became extremely angry and left the scene. Bray said he was unable to locate his girl friend after the accident. A friend of Bray’s also testified that she had been with Bray earlier in the evening and, when she last saw him, he and April were in April’s car and April was driving.

The case went to the jury, and at one point during their deliberations, they asked the court: “relating to the second count, can we and do we consider evidence related to habitual offender as pertinent to the second count as well or not?” The court replied to the effect that they were to take all the evidence before them and apply it to each count.

The jury returned a verdict of guilty on both counts. But, the trial court later vacated the sentence on Count 2, DUI, out of concern that the jury may have considered the prior convictions for DUI in Bray’s driving record as evidence of guilt in this case, in violation of Uniform Superior Court Rule 31.3. The court rejected Bray’s claim that admitting the evidence of prior offenses also constituted harmful error in the habitual violator conviction.

The admissibility of that portion of the driving record which lists prior offenses is controlled by Ragan v. State, 264 Ga. 190 (442 SE2d 750) (1994). Contrary to the State’s assertion, Ragan holds that “the entire driving record, and especially that portion listing Ragan’s numerous prior offenses, was immaterial to the offenses for which he was charged.” (Emphasis supplied.) Id. at 191-192. Therefore, we find the trial court erred in allowing these prior offenses into evidence.

The inquiry then becomes whether the error was harmless. The test for determining harmless error is whether “it is highly probable that the error did not contribute to the judgment.” (Citation and punctuation omitted.) Id. at 193.

Decided April 15, 1996

Reconsideration denied May 2, 1996

Bischoff & White, James E. Bischoff, Lloyd W. Walker, for appellant.

Bill McBroom, District Attorney, Michael G. Webb, Randall K. Coggin, Assistant District Attorneys, for appellee.

In Ragan, the Supreme Court found the admission of the prior offenses to be “inherently prejudicial” and held that it could have “served no purpose other than to unduly prejudice the jury” and reversed Ragan’s conviction on all counts. Ragan, supra at 193. In the instant case, a list of six offenses, four DUIs, driving with a suspended or revoked license, and felony with a vehicle were erroneously admitted into evidence. Because we do not find it is highly probable that this error did not contribute to the judgment, and in light of the Supreme Court’s directive in Ragan, we find the admission of the prior offenses in Bray’s driving record to be harmful error and reverse the conviction.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       Count 1 of the indictment charged Bray with driving after being declared an habitual violator; Count 2 charged Bray with DUI.


text:
    A96A0021.
    DOWDY v. EARTHWISE RESTAURANT MANAGEMENT, INC. et al.
    (471 SE2d 42)
   Smith, Judge.

On August 12, 1992, while exiting the Azalea restaurant in Atlanta, Pamela Dowdy allegedly fell and sustained injuries. She filed a workers’ compensation claim and subsequently negotiated a settlement with her employer’s insurer, Allstate Insurance Company.

On July 21, 1994, Dowdy filed this premises liability action against the restaurant, the owner of the restaurant, the owners of the shopping center in which the restaurant was located, and a valet parking service, among others. On February 21,1995, Allstate moved to intervene to protect its workers’ compensation lien. The trial court denied the motion. Also, without any motion to dismiss having been filed, the trial court found the action to be time-barred and dismissed it. Dowdy appeals the sua sponte dismissal of her action, contending that under OCGA § 34-9-11.1, her action is not time-barred.

When the trial court entered its order, former OCGA § 34-9-11.1 (c) provided that an employee suing a third-party tortfeasor must institute an action within one year of receiving the injury. Subsection (c) further provided in relevant part that “[flailure on the part of the injured employee ... to bring such action within the one-year period shall operate as an assignment to the employer or such employer’s insurer of any cause of action in tort which the injured employee . . . may have against any other person for such injury . . . and such employer or insurer may enforce same in its name or in the name of the injured employee.” Former OCGA § 34-9-11.1; see Ga. L. 1992, p. 1942, § 2.

Shortly after the order was entered, OCGA § 34-9-11.1 was amended. See Ga. L. 1995, p. 642, § 2. The new legislation, enacted April 18, 1995, and effective July 1, 1995, provides that an injured employee must institute a third-party action “within the applicable statute of limitations.” OCGA § 34-9-11.1 (c). In this case, the applicable statute of limitation is two years. OCGA § 9-3-33. Language regarding automatic assignment of the employee’s claim to the employer or insurer is not found in the new legislation. Subsection (c) now provides that if an action is not brought within one year of the injury, “then the employer or such employer’s insurer may but is not required to assert the employee’s cause of action in tort, either in its own name or in the name of the employee.” (Emphasis supplied.) Subsection (e) states, “It is the express intent of the General Assembly that the provisions of subsection (c) of this Code section be applied not only prospectively but also retroactively to injuries occurring on or after July 1, 1992.” Dowdy’s injury occurred on August 12, 1992.

1. Appellees argue that the trial court properly dismissed the complaint because Dowdy’s cause of action was automatically assigned away when she failed to bring the action within one year. Indeed, the statute in effect at the time Dowdy filed this action provided that failure to bring an action operated as an assignment to her employer or her employer’s insurer of any cause of action. The new legislation, though, deleted the automatic assignment language and expressly provided that the revised statute applied retroactively to injuries occurring after July 1, 1992. OCGA § 34-9-11.1 (c) and (e).

The revised statute and Moore v. Savannah Cocoa, 217 Ga. App. 869 (459 SE2d 580) (1995), control the issues in this case. Moore suffered a compensable injury and was paid workers’ compensation benefits. He filed suit against the owner of the premises, alleging that the owner’s failure to maintain safe working conditions caused his injuries. While the action was pending in the trial court, former OCGA § 34-9-11.1 was in effect. 217 Ga. App. at 870. The trial court granted summary judgment to the owner on the ground that Moore’s right to bring an action was assigned to his employer/insurer because of his failure to file the suit within one year. While the action was pending on appeal, the statute was revised. Relying on the new statute, this Court reversed, finding that the owner did not have a vested right in the prior statute’s one-year filing requirement. Id. at 871. We also held that the owner had no vested right in the assignment of the claim because the assignment was a statutory remedy rather than a contractual agreement. Id. “The fact that one obtains a status under the provisions of one law does not amount to a contract or create a vested right that prevents a subsequent legislature from repealing the old law and passing a new one.” (Citations and punctuation omitted.) Id. See also Vaughn v. Vulcan Materials Co., 266 Ga. 163 (465 SE2d 661) (1996); Conner v. Greene, 219 Ga. App. 860 (467 SE2d 199) (1996). We held that plaintiff brought the action within the applicable limitation “in accordance with his rights under the revised statute.” 217 Ga. App. at 871.

Here, appellees contend that Dowdy’s claim was never reassigned to her and that the revised statute does not provide for such a reassignment. Although Moore, supra, does not explicitly hold that an assignment provided for under the old statute becomes “reassigned” or “void” under the new statute, precisely that conclusion is implicit in the holding in Moore. In Moore, as here, the plaintiff filed an action outside the one-year period mandated under the old statute but within the statute of limitation mandated under the new statute. Any argument that no reassignment of the plaintiff’s cause of action had occurred was implicitly rejected; this Court concluded that the owner had no vested right in the assignment and that Moore could bring an action. See also Vaughn, supra, and Conner, supra.

Similarly, appellees had no vested right in the assignment of Dowdy’s claim under the prior statute. Unlike the statute discussed in Hollingsworth v. Hubbard, 184 Ga. App. 121, 122 (361 SE2d 12) (1987), the revised statute clearly provides for retroactive application of subsection (c), which deletes the assignment language and changes the limitation period. We recognize that a “statute is not to be construed retroactively in operation unless the language of the statute imperatively requires it” (Citations and punctuation omitted; emphasis in original.) Loveless v. Grooms, 180 Ga. App. 424, 425 (349 SE2d 281) (1986). The language of OCGA § 34-9-11.1 (e), however, could not be more imperative that the provisions of subsection (c) are to be applied retroactively. We must construe statutes so as not to render any portion meaningless. See Powell v. Studstill, 264 Ga. 109, 113 (3) (b) (441 SE2d 52) (1994). Application of appellees’ argument would render this unequivocal language meaningless. We find no merit to appellees’ contentions. Also, the assignment was statutory, unlike the assignment in Bank of Cave Spring v. Gold Kist, 173 Ga. App. 679, 680 (1) (327 SE2d 800) (1985), and Dowdy was entitled to bring this action against appellees.

Appellees’ reliance on Bennett v. Williams Elec. Constr. Co., 215 Ga. App. 423 (450 SE2d 873) (1994) to support their contention is misplaced. We are not bound by Bennett, as only two judges on a three-judge panel concurred fully in the opinion. Court of Appeals Rule 33 (a). Moreover, Bennett was decided December 2, 1994, prior to the revision of subsection (c) and the addition of subsection (e). The trial court erred in dismissing Dowdy’s complaint.

2. Along with the other appellees, Morris Krinsky and Paul Finkel maintain that Dowdy’s right of action passed to Allstate under the prior statute and that Dowdy thus has no standing to appeal. They also contend that the order denying Allstate’s motion to intervene became final June 12, 1995, three weeks before the amendments became effective and became vested. Citing Spengler v. Employers Commercial Union Ins. Co., 131 Ga. App. 443 (206 SE2d 693) (1974), they argue that a legislative change cannot be applied “once a right provided by the act has been fixed by judgment.”

Spengler■ is distinguished on its facts. Nothing in the repealing statute in Spengler expressed the legislative intent that the new law there apply retroactively. Id. at 447 (5). Moreover, Spengler makes clear that the test is whether the new legislation affects “vested rights.” Id. at 450 (5). We held in Moore, supra, that no vested rights were affected by the change in OCGA § 34-9-11.1. As discussed above, revised OCGA § 34-9-11.1 deleted the automatic assignment language in subsection (c), a change made retroactive to apply to injuries occurring after July 1, 1992. OCGA § 34-9-11.1 (e). These amendments conferred standing on Dowdy to pursue her claim against appellees, and the trial court had jurisdiction to entertain these claims.

Decided May 2, 1996.

Duncan & Mangiafico, Leslie P. Becknell, George E. Duncan, Jr., for appellant.

Carter & Ansley, Rebecca J. Schmidt, Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Beth L. Singletary, Webb, Carlock, Copeland, Semler & Stair, John W. Sandifer, Wayne D. McGrew III, for appellees.

3. Krinsky and Finkel also contend that retroactive application of the new statute would render the Act unconstitutional because such application will impair vested rights under the prior act. See Canton Textile Mills v. Lathem, 253 Ga. 102, 103 (1) (317 SE2d 189) (1984). As held in Division 1, however, appellees’ rights in the one-year period for bringing an action and the assignment language were not vested. These were not substantive rights as described in Glover v. Colbert, 210 Ga. App. 666, 669 (437 SE2d 363) (1993) and Browning v. Maytag Corp., 261 Ga. 20 (401 SE2d 725) (1991). Because no substantive rights in these provisions existed, the new statute did not violate “our constitutional prohibition against retroactive laws.” Canton Textile Mills v. Lathem, supra, 253 Ga. at 105 (1). See also Vaughn v. Vulcan Materials, supra.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

       Dowdy, a paralegal for a Tennessee law firm, was entertaining her law firm’s clients at the restaurant where the incident occurred.

       The trial court found the action to be time-barred under both Georgia law, OCGA § 34-9-11.1, and Tennessee law, TCA § 50-6-112. We apply only Georgia law; under the doctrine of lex loci delicti, which provides that the substantive law of the state where the tort was committed applies, and lex fori, which provides that procedural questions are governed by the law of the state where the action is brought, Georgia law governs. See Lloyd v. Prudential Securities, 211 Ga. App. 247 (1), 248 (438 SE2d 703) (1993).

       We concluded that we must apply the revised statute. “A reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right. .. under the prior law.” (Citations and punctuation omitted; emphasis in original.) 217 Ga. App. at 870 (1).

       Krinsky and Finkel are the owners of the shopping center where the Azalea restaurant is located.


author: Ruffin, Judge.

text:
    A96A0063.
    LOONEY v. THE STATE.
    (471 SE2d 243)
   Ruffin, Judge.

A Hall County jury convicted Larry Looney on two counts as a party to an aggravated assault under OCGA §§ 16-5-21 (a) (2) and 16-2-21, and the court sentenced him to twenty years. We affirm the conviction.

1. In three enumerations of error, Looney contends the evidence was not sufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdiet. Jackson, supra at 319; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). In another enumeration he contends the court should have granted his motion for a directed verdict of acquittal. The same standard applies to all three enumerations. Blackwell v. State, 264 Ga. 517 (448 SE2d 359) (1994); Griffin v. State, 212 Ga. App. 411, 412 (441 SE2d 897) (1994).

The victim was driving home in his car from a softball game with two of his daughters while his wife and other two daughters followed in a van. On a country road, they slowed behind a white Jeep driven by Looney and a green Jeep driven by an unidentified person. The victim testified that both Jeeps stopped, side by side, on the edge of the road at an intersection. The victim had pulled across the intersection and stopped to wait for his wife when Looney got out of his Jeep, stuck his face in the window of the victim’s car, and said, ‘You can see the man’s having trouble with his vehicle, can’t you?” The unidentified man then pulled a baseball bat from his green Jeep and began striking at the victim’s car window, spraying glass on his daughter.

The victim grabbed his own softball bat and ran after the unknown assailant, who looked at Looney and yelled, “Pull your piece,” “Shoot him,” and “Run him over.” Looney, who had by then pulled behind the van of the victim’s wife and blocked her in, “popped his clutch” and drove in the victim’s direction. The victim had to jump to avoid Looney’s Jeep. The victim got back into his car, and Looney followed him closely to a convenience store. His wife followed Looney, and the green Jeep followed her. When the victim and his wife pulled into the convenience store, Looney and the man in the other Jeep left together. Although Looney denied knowing the man in the other Jeep and denied the witnesses’ accusations, he admitted the other man asked Looney to follow him because his Jeep was having mechanical problems.

This evidence sufficiently supports the conviction. Looney was with the unknown driver of the green Jeep before and after these crimes, and he got out of his Jeep and verbally assaulted the victim before his companion physically assaulted him. It appears both men chased the victim from the scene and then left together. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. . . . [Cits.]” (Punctuation omitted.) Grace v. State, 210 Ga. App. 718 (1), 719 (437 SE2d 485) (1993). The jury also could find Looney assisted the other driver by blocking any escape route for the victim’s wife and that Looney was responding to the other man’s call when he drove his Jeep toward the victim. See Moore v. State, 216 Ga. App. 450 (1), 451 (454 SE2d 638) (1995); Henderson v. State, 200 Ga. App. 200 (1), 201 (407 SE2d 448) (1991).

2. Looney also contends the trial court erred by failing to instruct the jury on the State’s burden of proving, beyond a reasonable doubt, that he was not legally justified in driving his Jeep toward the victim to protect the driver of the green Jeep. He correctly asserts that even without a request to charge, the trial court must instruct the jury on this specific burden. Anderson v. State, 262 Ga. 7, 8-9 (2) (413 SE2d 722) (1992); Nelson v. State, 213 Ga. App. 641, 643-644 (3) (445 SE2d 543) (1994). But under the particular circumstances of this case, we find no error.

Looney’s counsel submitted no written requests to charge, but requested a charge on justification at the charge conference. The trial judge read a proposed charge that fully explained the circumstances under which a person might be justified in using force “to prevent death or great bodily injury to himself or a third party or to prevent the commission of a forcible felony.” The last sentence of that proposed charge, which the court later gave to the jury, read: “The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” After hearing this proposed charge, Looney’s counsel replied, “[T]hat’s the charge we ask for, your Honor.”

The court’s use of the narrow term “self-defense,” rather than the broader term “justification,” appears to be a slip of the tongue. See Rodriguez v. State, 211 Ga. App. 256, 257 (3) (439 SE2d 510) (1993). Under the circumstances, the court’s reference to justification as “self-defense,” in light of the immediately preceding discussion of one’s right to defend “himself or a third party,” likely did not mislead the jury and constituted harmless error. Gober v. State, 247 Ga. 652, 655-656 (3) (278 SE2d 386) (1981); Rodriguez, 211 Ga. App. at 258 (3). The charge given substantially relates the principle in question such that a jury of average intelligence would understand the State has the burden of proving that Looney did not justifiably use force to protect himself or anyone else. See Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 115-116 (3) (460 SE2d 800) (1995).

Even if the court’s error were harmful, Looney waived any right to object because his counsel specifically agreed with the trial court’s proposed charge containing this exact language. This is not a case in which trial counsel failed to request the charge or in which the trial court failed to give a requested charge. “[W]e find a waiver of objection under the principle that a party may not ignore error at trial or manufacture it.” Victorine v. State, 264 Ga. 580, 581 (4) (a) (449 SE2d 91) (1994); Edwards v. State, 235 Ga. 603 (2), 604 (221 SE2d 28) (1975); Morales v. State, 210 Ga. App. 414, 417 (3) (436 SE2d 528) (1993).

Decided May 2, 1996.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, Lucy K. Henry, James V. Branch, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       Another requirement mentioned in those cases, that the court instruct the jury on its duty to acquit if it believes the defendant acted with justification, was overruled in Coleman v. State, 264 Ga. 253, 254 (3) (443 SE2d 626) (1994).


text:
    A96A0081.
    DARUGAR v. HODGES.
    (471 SE2d 33)
   Ruffin, Judge.

In this action involving the enforcement of a non-competition clause in an employment contract between two physicians, defendant B. Barry Darugar appeals the trial court’s grant of plaintiff Elaine S. Hodges’ motion for an injunction. We affirm.

In July 1991, Hodges and Oconee Medical & Surgical Associates, RC. (“the corporation”) entered into the employment agreement at issue. Darugar executed the contract as the corporation’s president and Deborah Darugar signed as its secretary. The agreement, which was to continue in force for ten years, set out Hodges’ duties, benefits, and compensation, including a provision for the gradual acquisition of up to 20 percent of the corporate stock. The agreement contained a non-competition clause which prohibited Hodges from competing with Darugar for two years following the agreement’s termination.

In 1995, Hodges notified Darugar of her desire to terminate the agreement. Darugar subsequently informed her of his intent to enforce the non-competition provision.

Hodges then filed this action against Darugar in his individual capacity, alleging that (1) because Oconee Medical & Surgical Associates, P.C. was not a professional corporation or entity entitled to contract, the entire agreement was void, and (2) Darugar defrauded her by promising her stock in a non-existent corporation. She sought damages and injunctive relief to prevent Darugar from enforcing the non-competition agreement. Darugar answered and counterclaimed for breach of contract and slander, seeking damages and injunctive relief. One of Darugar’s professional corporations, B. Barry Darugar, M.D., F.A.C.S., P.C., moved to intervene without opposition.

After a hearing, the trial court enjoined Darugar from enforcing the contract, finding that it was void because Oconee Medical & Surgical Associates, P.C. was not a party able to contract. In reaching this conclusion, the court noted that Oconee Medical & Surgical Associates, P.C. had defended an earlier lawsuit by arguing that it was not subject to suit because it was “not a partnership, a professional corporation, a professional association, or an entity of any kind. . . .”

Darugar argues that the trial court erred in enjoining him from enforcing the non-competition clause because Oconee Medical & Surgical Associates, P.C. is a trade name for B. Barry Darugar M.D., F.A.C.S., P.C. and is therefore an entity able to contract.

Although trade names are not legal entities, a contract which is otherwise enforceable will not be invalidated merely because it was entered into under a trade name, so long as the underlying entity involved in the agreement is legally capable of contracting. American Express &c. Co. v. Berlye, 202 Ga. App. 358, 359 (1) (414 SE2d 499) (1991); see OCGA § 10-1-491 (failure to register a trade name does not invalidate an otherwise acceptable contract). This is because the trade name is merely descriptive of the underlying entity. Id. This rule applies even when the trade name used is not totally identical to the registered name, so long as the identities of the registered trade name and underlying entity are “clear or can be ascertained by proof.” (Emphasis omitted.) Atlanta Indoor &c. v. World Class Fitness, 213 Ga. App. 295, 296 (1) (444 SE2d 385) (1994). Given the descriptive purpose of trade names, “ ‘[i]f one undertakes an obligation in a fictitious or trade name, the obligation is his own individually. [Cit.r [Cit.]” Berlye, 202 Ga. App. at 360 (1).

The record shows that “B. Barry Darugar” registered the trade name “Oconee Medical & Surgical Assoc” in 1988. It appears that “Oconee Medical & Surgical Associates, P.C.” is a misnomer for the registered trade name. Darugar is clearly an entity capable of contracting. Because Darugar acted in his individual capacity when he registered the trade name, we find that he entered into the contract in his individual capacity. Therefore, the trial court erred in concluding that the contract was void.

However, we agree with Hodges that the non-competition clause was unreasonable. Non-competition clauses in employment contracts, disfavored as covenants deemed in partial restraint of trade, are enforceable only “if they are reasonable, founded on a valuable consideration, . . . reasonably necessary to the protected interest, [and] do not unduly prejudice the public interest.” American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282, 283 (1) (430 SE2d 166) (1993).

A non-competition clause’s reasonableness “is determined by ‘analyzing it in terms of time, territorial effect, and the business interest of the employer sought to be protected. (Cit.)’ [Cit.]” Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 62 (2) (449 SE2d 858) (1994). Consideration must also be given to the employee’s right to earn a living and ability to determine with certainty the boundaries of the geographic area in which her post-employment activities are restricted. Vortex Protective Svc. v. Dempsey, 218 Ga. App. 763, 765-766 (2) (463 SE2d 67) (1995). These considerations must be balanced against the employer’s concurrent interest in the customer relationships its former employee established at work and its right to protect itself from the risk that the former employee might use contacts so cultivated to unfairly appropriate customers. W. R. Grace & Co., Dearborn Div. v. Mouyal, 262 Ga. 464, 465 (2) (422 SE2d 529) (1992). However, a restriction against doing business with any of an employer’s potential customers located in a specific geographical area, without regard to whether the employee ever made contacts with those prospects, is overbroad and unreasonable. Vortex, supra at 766.

In the clause at issue, Hodges agreed to refrain from competing with her employer for two years “anywhere within a 25 mile radius of Putnam County, Georgia in the practice of medicine and surgery. . . .” The provision also stated that “[e]mployer has established and currently engages in the Practice of Medicine and Surgery within a 25 mile radius of Eatonton, Putnam County, Georgia.”

The clause contained no language limiting its application to those patients or prospective patients Hodges encountered during her employment with Darugar. Thus, the restriction is overbroad. Id. at 766. Moreover, the contract stated that Hodges’ employer practiced medicine within a 25-mile radius of Eatonton, but the restriction extends to a 25-mile radius of Putnam County. Thus, the clause covered territory in which Darugar failed to show he engaged in substantial business. Id. at 766-767. Under these circumstances, we find the non-competition clause unreasonable and, therefore, unenforceable. Accordingly, we affirm the trial court’s order granting Hodges’ motion for an injunction. A judgment right for any reason will be affirmed. Mail & Media v. Rotenberry, 213 Ga. App. 826, 832 (446 SE2d 517) (1994).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided May 2, 1996.

Lawrence, Ford & Ridgeway, George D. Lawrence, Francis N. Ford, for appellant.

Huskins & Huskins, Donald W. Huskins, for appellee.

       According to the trial court, the previously filed lawsuit involved allegations by a former patient that Darugar committed acts of sexual misconduct and over-prescribed drugs.


text:
    A96A0118.
    McMICHEN v. MOATTAR.
    (470 SE2d 800)
   Ruffin, Judge.

Mildred McMichen sued Iman Moattar for injuries she sustained when the car Moattar was driving struck her as she walked across a five-lane highway. Two eyewitnesses to the accident and the investigating officer testified at trial. The jury returned a verdict in favor of Moattar. McMichen moved for a new trial, arguing that the trial court, over objections, erroneously admitted certain opinion testimony from Poland and the investigating officer. The trial court denied McMichen’s motion, and she appealed. For reasons which follow, we reverse.

1. McMichen asserts that the trial court erred in admitting testimony from the investigating officer concerning the cause of the accident.

The record shows that over McMichen’s objection, the trial court allowed the following testimony from the investigating officer: “Q: Did Mr. Moattar contribute to or cause the collision, the driver of the vehicle? A: No, sir, I would say no.” Under the circumstances of this case, we agree that the trial court erred in admitting this testimony.

In denying McMichen’s motion for new trial, the trial court relied on Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385 (3) (414 SE2d 521) (1991). Although we find that the legal principles expressed in Clark control the issue in this case, the trial court misapplied those principles.

In Clark, we found that as a general rule, where an investigating officer’s training and experience qualify him as an expert, it is proper for the officer to testify concerning the cause of an accident. Id. at 392. The trial court in this case applied that general rule in admitting the investigating officer’s testimony. However, our analysis in Clark did not stop there. In Clark, we also discussed whether the subject of the officer’s opinion was a proper one for opinion testimony. Even in light of the general rule expressed above, “ ‘[e]xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is [only] admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.’ [Cit.]” Id.

This same principle was more recently espoused in Emory v. Dobson, 206 Ga. App. 482 (426 SE2d 50) (1992). There, we affirmed the trial court’s order prohibiting the parties from asking the investigating officer who caused the collision. We found that the officer was properly allowed “to testify fully about what he observed at the accident scene and to opine based on that evidence about how the collision occurred.” Id. at 483-484. However, under the facts of that case, we concluded that questions concerning who was at fault “are conclusions that average jurors should be able to reach for themselves. [Cits.]” Id. at 484.

It is apparent from both of these cases that a trial court’s determination regarding admission of an investigating officer’s testimony concerning the cause of an accident should depend in part on the specific facts of the case. In some cases, the circumstances may permit the officer to describe with clarity what he observed and how the collision occurred. In such cases, jurors are likely able and should be permitted to reach their own conclusions as to who was at fault. See, e.g., Smith v. Fee, 197 Ga. App. 483 (398 SE2d 801) (1990) (trial court erroneously admitted officer’s conclusion accident was caused by the victim stepping in front of the truck).

The record in this case shows that the officer’s conclusion was unnecessary and improper testimony. The collision involved only Moattar’s car and the defendant. Both eyewitnesses and the officer testified concerning their observations of how the accident occurred. From this testimony, the jurors should have been able to reach their own conclusions as to who was at fault. See Emory, supra. Because the subject of the officer’s opinion was not a proper one for opinion testimony, the trial court erred in admitting it over McMichen’s objections.

2. Since the issue may arise upon retrial, we address McMichen’s contention that the trial court erred in admitting certain opinion testimony from eyewitness Thomas Poland. The record shows that over McMichen’s objections, the trial court permitted the following testimony during Moattar’s cross-examination of Poland: “Q: Mr. Poland, do you know of anything Mr. Moattar could have done to avoid that collision? A: I don’t see how he could have avoided the collision.”

It is obvious from a reading of earlier cases before this Court that we issued seemingly inconsistent opinions regarding the admissibility of such testimony. See Williams v. Williams, 115 Ga. App. 168 (2) (154 SE2d 33) (1967); and the cases cited therein. At odds in those cases were the principles that “where a lay witness has stated all the facts on which his opinion is based it is not error for him to state his opinion as a conclusion based on such facts [cit.] . . . [and that] the opinion of a witness is not admissible when all the facts and circumstances are capable of being clearly described so that the jury may as readily as the witness form a correct conclusion from them. [Cits.]” Id. at 170.

Decided May 2, 1996

Hughes & Gibson, Ralph E. Hughes, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, Sharon W. Ware & Associates, Lynn D. Heath, for appellee.

In Dual S. Enterprises v. Webb, 138 Ga. App. 810 (2) (227 SE2d 418) (1976), we observed “that when the subject matter of an inquiry relates to numerous facts perceived by the senses, to a series of instances passing under the observation of a witness, or to a variety of circumstances and a combination of appearances, which, under the limitations of language, cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness, the witness may state his impressions drawn from, and opinions baséd upon, the facts and circumstances observed by him or the effect which they produced upon his mind.” Id. at 811. The true test is that “[i]f the circumstances are such as to render the inference superfluous, it is excluded; if not, it is admitted.” Pride v. State, 133 Ga. 438, 440 (1) (66 SE 259) (1909).

Under this test, the trial court did not err in admitting Poland’s testimony. Although Poland described with detail his observations of what occurred, his opinion that he did not see how Moattar could have avoided the collision was not readily ascertainable from his description. Rather, under the circumstances of this case, the conclusion was an impression drawn from a totality of the circumstances, and one that Poland, who was there, was in a unique position to form. Because his testimony was not superfluous, the trial court did not err in admitting it. See id. See also Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174 (2) (421 SE2d 767) (1992).

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.