author: Blackburn, Chief Judge.

text:
    A01A0660.
    MANNING v. THE STATE.
    (550 SE2d 762)
   Blackburn, Chief Judge.

Following a jury trial, Marlando S. Manning appeals his convictions on a multiple of criminal charges, including two counts of rape, aggravated sodomy, kidnapping with bodily injury, false imprisonment, armed robbery, burglary, and using a false name. Manning was charged with raping two women in the same apartment complex where he lived with his grandparents in separate incidents occurring about five weeks apart. We affirm.

Investigators linked Manning to the crimes through a pawnshop receipt for a camera stolen during the second sexual assault. A bank surveillance tape captured Manning using one victim’s automated teller machine card about an hour after the rape. Both victims identified Manning as their assailant from a photographic array.

After his motion for new trial was denied, Manning sought to discharge his appointed appellate counsel. Following a hearing, the trial court refused to dismiss appellate counsel, finding that Manning did not present sufficient reasons for doing so. In this pro se appeal, Manning contends that the trial court erred by allowing the in-court identification of him by the two victims; by admitting into evidence certain documents seized from his residence; and by allowing trial counsel to make a statement in place instead of removing herself. Manning also claims that his trial counsel rendered ineffective assistance and that the evidence was insufficient to support the convictions because the evidence presented did not connect him to the charged conduct.

On appeal, the evidence must be viewed in a light most favorable to the verdict. Pollard v. State. So construed, the evidence shows that early one morning, D. M. was stepping out of the shower when she saw a man rushing toward her with a knife. She screamed in fear. Thinking more clearly, D. M. then repeatedly reassured her assailant that she had not seen his face even though she had. After placing a pillowcase over her head, binding her hands and feet, and yanking an electrical cord tight around her neck, the perpetrator raped D. M. at knifepoint. When he demanded the pin number for her ATM card, she provided an incorrect number. Later, in response to police questioning, D. M. initially told investigators that she did not get a good look at the rapist because she feared he would return and kill her if she identified him, as he had threatened to do. D. M. was able to recall details of her attacker’s appearance including his race, height, slender build, high cheekbones, discolored lips, and “real slim face.” D. M. expressed certainty when selecting Manning from an array of photographs. At trial, she testified that she had no doubt that Manning was her attacker, “because I will never forget his eyes. I will never forget his lips. I will never forget his face.”

The second assault occurred in the early morning as well. As C. M. was locking her door to leave home, a black male wearing gloves suddenly appeared and shoved her back inside her apartment. Placing a knife against her neck, her assailant warned her to “stop screaming or I’ll kill you.” Covering C. M.’s head with two shirts, he severed a telephone cord and used it to tie her hands. After rummaging through her purse, he demanded her pin number and threatened to kill her if she lied about her number. Holding a knife to her throat, he raped her twice. After sodomizing her, he dragged her to a bathtub and forced her into it. When C. M. wriggled loose and thought he had left, she saw him standing in the doorway of the bathroom. While retying her, he reiterated his threats to kill her. He then left.

About five weeks after the rape, C. M. viewed the same photographic lineup as D. M. After an investigator provided preliminary instructions, C. M. tentatively identified Manning as her attacker. She testified that she initially saw the rapist for only a second or two because her eyes were covered for most of the incident. She described his clothing, slim build, and facial features, noting a “very definite bone structure around his eyes.” At trial, she felt Manning looked “extremely similar” to her attacker.

An ATM card belonging to C. M. was used at four different teller machines on the morning of the attack. C. M. thought the man in the photographs taken by ATM surveillance cameras looked like the same man who raped her. The serial number on the pawnshop receipt for a Minolta camera matched the number recorded by C. M. for such camera on an insurance policy.

1. Manning contends that the trial court erred by allowing in-court identifications of him by both victims because such identifications were tainted by their earlier identifications of him in an unduly suggestive photographic lineup.

A conviction based on eyewitness identification at trial following a questionable pretrial identification will be set aside only if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. Miller v. State. When reviewing a ruling on a motion to suppress, this Court must construe the evidence most favorably toward upholding the trial court’s findings and judgment, unless they are clearly erroneous. Karim v. State.

Here, the trial court conducted a pretrial hearing on Manning’s motion to suppress the victims’ identifications of him. During the hearing, Detective Leonard Dreyer explained that before showing the photographic array to D. M., he read a comprehensive list of admonitions to her. Dreyer advised her that the lineup might not contain her assailant’s photo and that the guilty person might not have been caught. He instructed her that she did not have to select anyone and reminded her that hairstyles and facial hair could change. He also told her that the photographs might not depict the true complexion of a person. After carefully studying the pictures for three to five minutes, D. M. positively identified Manning as her assailant. Another investigator, Detective Michael Bailey, testified that he used the same array with the other victim. Before showing the photographs to C. M., Bailey likewise provided precautionary instructions. Then, after studying the pictures carefully, the victim eliminated everyone else and tentatively selected Manning’s photograph.

After examining the array and noting the similarities and differences among the six men depicted, the trial court found the array to be a “fairly balanced photographic lineup.” Although Manning claims that the heights of the men in the photographs varied, if this is so, it is not apparent from the photographs, which do not contain height bars and show the men only from the chest upward. The persons appearing in the photographs look similar, and no one person stands out. Even assuming arguendo that there are imperfections in the composition of this photographic lineup, they do not create the kind of suggestiveness that would inexorably lead the viewer toward the conclusion that Manning was the perpetrator. See Karim, supra at 286. Since the lineup was not impermissibly suggestive and was unlikely to have resulted in irreparable misidentification, its admission over objection was not improper. Anderson v. State.

2. Manning asserts that the trial court erred by admitting into evidence a notice from his bank sent to him at his grandparents’ address because the court already had allowed the admission of another bank statement of his, seized from his grandparents’ apartment. Manning claims that this evidence was irrelevant and duplicative. We disagree.

A trial judge may exercise discretion to exclude relevant evidence when its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice. Webster v. Boyett. But here, the evidence was used to establish that Manning lived with his grandparents in the same apartment complex where the attacks took place. The evidence was relevant, and the fact that it pointed toward Manning’s guilt did not preclude its introduction. See Hudson v. State.

3. Manning contends that the trial court abused its discretion in permitting his counsel to present a stipulated statement to the jury instead of removing herself from his case. Defense counsel’s statement arose in the following context. Aida Benitez, Manning’s girlfriend, testified that on July 23, the same day as the attack on C. M., Manning had some cameras and other items that were not his. After she accompanied Manning to her brother’s home, Ramon Benitez helped Manning pawn the cameras by allowing his name and identification to be used at a pawnshop. The pawned cameras were later identified by C. M. as having been stolen from her during the attack. When Ramon Benitez heard that police wanted to question him about the pawned cameras, he asked Manning, “what’s going on?” Benitez testified that Manning would not tell him anything, and “panicked,” leaving that same day on a bus for New York. After being arrested for theft by receiving, Ramon Benitez implicated Manning and told police where Manning lived. Investigators obtained a search warrant for Manning’s apartment and, in his bedroom, discovered two bank statements and a library card using that address.

On cross-examination, when Aida Benitez was asked whether she had lied to protect her brother in her statement made to police, she denied having done so. Prior to the close of evidence, Manning’s counsel announced that a stipulation had been reached with the State to allow the attorney to state that Aida Benitez had telephoned her and had admitted lying in a statement to police in order to protect her brother. Manning now argues that because his trial counsel announced the stipulation, rather than removing herself from the case and testifying, his counsel was not subject to cross-examination and he was, therefore, prejudiced.

At the motion for new trial hearing, defense counsel explained that she had chosen to make the stipulation rather than to testify because she had expended considerable time and effort in preparing for trial. According to counsel, Manning was “very active” in the preparation of his case and fully agreed with that decision. We fail to see, and Manning does not explain, how he was prejudiced by the decision of his counsel to remain on the case and make the stipulation, rather than to withdraw and testify. Harm and error must both be shown to authorize reversal. Honeycutt v. State. Neither has been shown here.

4. Manning contends that his trial counsel rendered ineffective assistance. To establish ineffective assistance of counsel within the meaning of Strickland v. Washington, an appellant must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Rucker v. State. Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim. Brewer v. State. Prejudice exists where “ ‘there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.’ ” Watson v. State. The trial court’s finding that the defendant was afforded effective assistance of counsel must be upheld unless it is clearly erroneous. Slade v. State. Although Manning asserts four grounds, we will consider only those that are not duplicative.

(a) Counsel’s failure to file a speedy trial demand. Since Manning did not file a statutory demand for speedy trial under OCGA § 17-7-170, his claim of a constitutional violation must be analyzed under the framework set forth in Barker v. Wingo. The factors to be considered, weighed, and balanced are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant. Jernigan v. State.

Manning’s trial counsel testified that Manning did not indicate that he wanted to demand a speedy trial until February 1999. Since the indictment was returned on October 9, 1997, any demand would have been untimely and would have required the trial court’s consent. See OCGA § 17-7-170. By then, the case was already set for trial in March 1999. In March, however, D. M. was injured in a car accident in another state and could not travel. The trial began in July 1999 when the victim was able to return to Georgia.

Counsel explained that part of the delay was attributable to awaiting results of DNA testing, that Manning said would exonerate him. When the case was continued in March 1999, counsel noted in her file that “Mr. Manning indicated to me that that was fine because that will give us more time to try to investigate and try to find some more evidence in this case.” Manning provided her with information about a second pawnshop receipt that she thought might link Ramon Benitez to the crimes. In these circumstances, we find no abuse of discretion in the trial court’s determination that Manning’s Sixth Amendment right to a speedy trial was not violated. Judge v. State.

(b) Counsel’s failure to attack the arrest warrant and search warrant. “Whether to file pretrial motions and how to argue them are strategic decisions, and when reasonable in the context of the case, do not constitute error.” Stroud v. State. Manning’s trial counsel testified that probable cause was “established within the body of the search warrant.” She explained that she could find no reasonable legal basis for filing a motion to suppress the items found during the search of Manning’s apartment. She also noted that no inculpatory evidence was discovered during that search. Consequently, Manning’s claim that his trial counsel failed to contest the admission of two items found during the lawful search is devoid of merit. Trial counsel also testified that she could discern no legal basis for attacking the arrest warrant. Because trial counsel’s strategic decisions appear reasonable, the trial court’s finding that Manning was afforded effective assistance of counsel is not clearly erroneous. Slade, supra.

Decided June 25, 2001.

Marlando Manning, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.

5. Manning contends that the evidence was not sufficient to sustain his convictions. We disagree. The evidence established that at the time of the crimes, Manning was living in the same apartment complex as his victims. Both women identified Manning as their attacker, and both testified he threatened to kill them and brandished a knife. Camera equipment stolen during the second rape was pawned within hours by Manning and his friend, Ramon Benitez, who implicated Manning as the source of the stolen property. Manning’s flight to another state, the ATM videotape and photographs created from the video, as well as the testimony of Aida Benitez and Ramon Benitez, all pointed toward Manning’s guilt. Thus, the evidence supports the convictions. See Gadson v. State.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

        Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

        Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999).

        Karim v. State, 244 Ga. App. 282, 284 (2) (535 SE2d 296) (2000).

        Anderson v. State, 238 Ga. App. 866, 874 (5) (519 SE2d 463) (1999).

        Webster v. Boyett, 269 Ga. 191, 195 (1) (496 SE2d 459) (1998).

        Hudson v. State, 234 Ga. App. 895, 901 (3) (b) (508 SE2d 682) (1998).

        Honeycutt v. State, 245 Ga. App. 819, 821 (3) (538 SE2d 870) (2000).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

        Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 93) (2000).

        Slade v. State, 270 Ga. 305, 308 (2) (509 SE2d 618) (1998).

         Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

        Jernigan v. State, 239 Ga. App. 65 (517 SE2d 370) (1999).

        Judge v. State, 240 Ga. App. 541, 543 (1) (524 SE2d 4) (1999).

        Stroud v. State, 272 Ga. 76, 78 (4) (526 SE2d 344) (2000).

        Godson v. State, 223 Ga. App. 342, 343 (1) (477 SE2d 598) (1996).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0743.
    CALLAHAN v. THE STATE.
    (550 SE2d 757)
   Miller, Judge.

A jury found Victor Eugene Callahan guilty of kidnapping, armed robbery, and hijacking a motor vehicle. Following the denial of his motion for new trial, Callahan filed this pro se appeal. Callahan challenges the sufficiency of the evidence and also asserts that he was denied effective assistance of counsel. Callahan further contends that the trial court gave an incorrect charge to the jury and that constitutional guarantees against double jeopardy and illegal search and seizure were abrogated. Finally, he claims the prosecutor engaged in misconduct during his closing argument by referring to facts not in evidence. Finding no merit to any of these issues, we affirm.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and an appellant no longer enjoys the presumption of innocence. So construed, the evidence establishes that on the afternoon of April 24, 1998, Callahan entered an elevator with two young women (Jessica Booth and R. H.) at a downtown Athens parking deck. Booth exited at the second floor, leaving Callahan alone with the victim. After exiting at the third floor, R. H. went to her car, followed by Callahan. As she started to enter her vehicle, Callahan suddenly grabbed her from behind and shoved her into the car. When she began to scream, Callahan extracted a handgun from his right pocket and warned her to be quiet because he did not want to have to hurt her. He instructed her to drive him to “Athens Regency,” by which he meant Athens Regional Hospital. While en route Callahan, sitting directly behind R. H. and still armed with the pistol, told her that he needed money and would have to rob someone to get it. After Callahan demanded money, she gave him $11, all the cash she had. The victim testified that she would not have given him the money if he had not demanded it from her. As to the whereabouts of the gun while she was driving, she explained, “[h]e made me believe that it was in my back. But I could not see because he was directly behind me” She testified that she was scared of being hurt because “[w]ith that gun I wasn’t in control. He had the gun.” After warning her not to contact police and threatening to hurt her if she did so, Callahan exited her vehicle at the hospital. The victim immediately fled to seek help.

From surveillance cameras filming the parking deck, investigators obtained a photograph of the perpetrator and arranged for its local publication. Two days after the crimes, a flyer with the perpetrator’s photograph appeared in a local newspaper. The flyer described the incident and asked for help from the public in identifying the man. After seeing a newspaper, Booth realized that she was being sought as a witness and contacted police. From a photographic lineup, Booth selected a photo of Callahan. When shown the same array, R. H. said that number three “most closely resembles the guy that attacked me.” Number three, a photograph of Callahan with his head shaven, was taken four days after the crimes. Both women identified Callahan at trial. While executing a search warrant, investigators confiscated a shirt, some pants, a belt, and sunglasses belonging to Callahan. R. H. recognized the sunglasses and pants. Both women believed that the shirt exhibited at trial was the same one he wore that day. The jury watched the surveillance videotape. According to Sergeant Mark Durham, Callahan was the male seen on the videotape at four separate times: 3:21, 3:39, 3:47, and 4:02 p.m.

Prior to trial, Callahan sought to suppress incriminating remarks he made while in custody. At a Jackson-Denno hearing on the admissibility of the statement, Sergeant Durham testified that after being advised of his Miranda rights, Callahan agreed to speak with the officers. Durham testified that during the course of the interview, after initially denying any involvement, “he somewhat took me by surprise and startled me when he stood up all the sudden and said, ‘okay, I’m going to go ahead and tell /all what happened.’ ” Callahan then implicated himself in the armed robbery and kidnapping.

At trial, Sergeant Durham repeated much of this testimony. He explained that when shown two photographs taken from the videotape at the parking deck, Callahan identified himself saying, “that’s me in the pictures,” recounting that he was there to get a Coke from the vending machine. When shown pictures of the victim’s car, Callahan admitted sitting directly behind the driver in a “similar car.” Callahan offered information not otherwise publicly known — that the victim was planning to leave on a trip, that the perpetrator had referred to the hospital as “Athens Regency,” that the victim had $11, and the exact location where the perpetrator had exited the victim’s car. Finding that Callahan knowingly and voluntarily waived his rights, the trial court denied the motion to suppress.

1. Callahan claims that there was “insufficient credible evidence” and argues that his conviction was the result of peijured testimony and falsified documents. The victim and a witness, however, identified Callahan as the man on the elevator with them and as the person appearing on the surveillance video taken at the parking deck. Callahan implicated himself in the crimes when he admitted that he appeared in the photographs created from the surveillance tape. Callahan voluntarily confessed to the crimes and provided specific details known only to the perpetrator. His teenage son identified Callahan as the person in Exhibit 18, a photograph created from the surveillance videotape. During the ordeal, the victim testified that she had been afraid and upset, but cooperated and “tried to compose myself so I wouldn’t get hurt.” This evidence was sufficient to enable a rational trier of fact to find Callahan guilty of kidnapping, armed robbery, and hijacking a motor vehicle.

2. Listing 14 purported failures, Callahan contends that he was denied effective assistance of counsel at trial.

In reviewing a trial court’s ruling on a claim of ineffective assistance of counsel, the standard is whether the trial court clearly erred in finding either that counsel’s performance fell within an objective standard of reasonableness or that there was no reasonable probability that the results of the trial would have been different but for trial counsel’s errors. In other words, to prevail on this claim, an appellant must show not only that his trial counsel’s performance was deficient but also that the deficient performance prejudiced his defense.

Here, in denying the amended motion for new trial, the court expressly decided that the “Defendant failed to establish that his trial counsel’s performance was deficient, nor did Defendant provide sufficient evidence to support the numerous other grounds asserted in his Motion.” At the hearing addressing the ineffective assistance claim, Callahan raised ten purported errors by his trial counsel. In his appellate brief Callahan seeks to expand the scope of his ineffectiveness claim to add several additional claims of error. This he cannot do, for grounds not timely raised below are foreclosed. We consider only the grounds that were argued at the trial level.

(a) Arguing that the underlying affidavit was not founded on probable cause, Callahan contends that his trial counsel failed to seek to suppress two search warrants. From the execution of the search warrant at Callahan’s residence, investigators obtained Callahan’s sunglasses, three braided leather belts, and two pairs of solid green pants. Relying on the other warrant, police searched a jail locker and removed and photographed Callahan’s shirt, which Booth testified looked like the shirt worn by the perpetrator.

At trial, counsel argued that the evidence obtained during the execution of the warrants should be excluded because the affidavit, authored by Sergeant Durham, lacked probable cause. When asked to explain why a written motion to suppress had not been filed, trial counsel explained that he had considered that option but “I did not think I had grounds. Out of an abundance of caution in order to protect Mr. Callahan’s rights on review — I want to make sure I’ve preserved that ground for any counsel down the road who thinks maybe I should have done that.”

Callahan alleges that Sergeant Durham peijured himself in his affidavit and also claims that his trial counsel committed perjury at the motion hearing while being questioned about the search warrants. Callahan failed, however, to offer any probative admissible evidence to substantiate either allegation. Therefore, Callahan has not established the requisite deficiency and prejudice needed for reversal.

(b) Callahan contends that his counsel was ineffective for failing to raise an issue about the authentication of the videotape taken at the parking deck.

Before trial, defense counsel and the State entered into a stipulation about the surveillance videotape. That document provides in part:

Both parties have spoken with Gary Slaton of the Athens-Clarke County Parking Services and agree that he would testify under oath that the videotape recorder that was recording the Parking Deck during the noted time was not operated by an individual but was running continuously, that the videotape recorder was functioning properly, that the videotape provides the time for the desired period, and that he personally stopped the videotape from recording, removed the videotape and turned it over to police investigators. The parties agree that Gary Slaton is not a witness to the incident that occurred in this action.

Since Callahan has offered no evidence to establish that. Slaton would not have testified to these facts or that any of these facts were not true, it would be utter speculation to say the evidence would not otherwise have been admitted or that the outcome of the trial would have been different but for this stipulation, especially since Callahan identified himself in photographs created from the tape. Nor can it be assumed that the decision to enter into the stipulation was not a matter of trial strategy and tactics.

(c) Callahan claims that his trial counsel failed to move for a mistrial when the prosecutor injected newly discovered evidence into his closing argument by mentioning a bag and gun at the courthouse. He asserts that the argument constituted prosecutorial misconduct.

A charge of prosecutorial misconduct is serious and is not to be made lightly; “having raised it, appellant has the duty to prove it by the record and by legal authority.” This Callahan failed to do. Two witnesses testified that Callahan was in Athens-Clarke County State Court on the afternoon of the crimes. The defense tried to establish that Callahan could not have been the perpetrator because he was in court or in a meeting with his attorney or did not have a gun that day. The court reporter testified, however, that she had entered a notation that calendar call ended that day at 2:55 p.m. The deputy clerk also testified that Callahan had been in court that afternoon and confirmed that he had hair on his head at the time. On cross-examination she was asked whether anyone other than the deputies was allowed in the courthouse with a gun. Defense counsel also asked Sergeant Durham, “Is there any way Victor Callahan could have gotten in and out of court on April 24, 1998 without passing through a metal detector?”

During closing argument, the prosecutor pointed out that a firearm could have been stashed outside the courthouse or contained in a paper sack then placed into a lock box outside the metal detectors. At that point Callahan, who had replaced his trial counsel and conducted his own closing argument, interposed an objection to this argument as being “only mere speculation.” After the trial court overruled the objection, his defense counsel then objected. Callahan plainly opened the door to the issue by asking the deputy clerk and the lead investigator about gaining entry to the courthouse while having a gun and about the process for passing through the metal detectors. No prosecutorial misconduct has been shown. Since the trial court’s finding that Callahan was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed.

3. Callahan’s contention that the trial court erred in failing to charge on the lesser included offense of robbery by intimidation lacks merit. First, Callahan submitted no written request for such a charge. “A charge on a lesser included offense is waived in the absence of a written request.” Second, even if properly requested, an instruction on the lesser included offense of robbery by intimidation is not required when all evidence shows that the robbery occurred, as here, at gunpoint. The victim described the handgun that Callahan pointed at her, recalled his repeated threats, and testified that while she was driving, “he made me believe that [the gun] was in my back.” Therefore, a charge on robbery by intimidation was not demanded by the evidence. Callahan’s denials of having been at the parking deck or of having any involvement in the crimes do not alter this outcome.

Decided June 25, 2001.

Victor E. Callahan, pro se.

Kenneth W. Mauldin, District Attorney, for appellee.

Callahan’s other claims that the jury charge on identification impermissibly shifted the burden of proof and that the trial court expressed an opinion as to his guilt are simply not borne out by the record.

4. Callahan asserts that the trial court erred by refusing to disallow in-court identification because the identification procedures used by police were so suggestive that they rendered any subsequent identification unreliable.

A conviction based on eyewitness identification at trial following a questionable pre-trial identification will be set aside only if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. Even assuming arguendo that there are imperfections in the composition of this photographic lineup, we hold that they do not create the kind of suggestiveness as would inexorably lead the viewer toward the conclusion that Callahan was the perpetrator. The trial court’s determination that the lineup was not impermissibly suggestive was not clearly erroneous.

5. Notwithstanding Callahan’s claim to the contrary, no violation of the Fourth Amendment has been shown. The searches of the jail locker and his residence were both conducted pursuant to lawful warrants. No evidence proves otherwise.

6. Callahan mistakenly argues that carjacking was a lesser included offense in armed robbery. As a matter of law, the crime of motor vehicle hijacking does not merge with any other offense.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       At Callahan’s behest, his appellate counsel was replaced and Eric Norris was then appointed. During a hearing on the motion for new trial, Callahan discharged Norris and elected to proceed pro se. After Callahan filed a writ of mandamus, the trial judge voluntarily recused himself.

        Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

       See Anderson v. State, 246 Ga. App. 189, 190 (1) (539 SE2d 879) (2000).

        Hayes v. State, 262 Ga. 881, 883 (3) (426 SE2d 886) (1993).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

        McCant v. State, 234 Ga. App. 433, 435-436 (2) (506 SE2d 917) (1998).

       See Brewer, supra, 224 Ga. App. at 658 (2).

       See Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

        Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993).

        Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996); see Callahan v. State, 249 Ga. App. 108, 111 (3) (547 SE2d 741) (2001).

       (Citation and punctuation omitted.) Rogers v. State, 247 Ga. App. 219, 222 (4) (543 SE2d 81) (2000).

        Lightfoot v. State, 227 Ga. App. 605, 606 (490 SE2d 177) (1997).

       See Callahan, supra, 249 Ga. App. at 110 (2).

        Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999).

       See Karim v. State, 244 Ga. App. 282, 286 (2) (535 SE2d 296) (2000).

       OCGA § 16-5-44.1 (d); see Campbell v. State, 223 Ga. App. 484, 485 (2) (477 SE2d 905) (1996).


author: Andrews, Presiding Judge.

text:
    A01A0749.
    NORRIS et al. v. DEPARTMENT OF TRANSPORTATION.
    (551 SE2d 379)
   Andrews, Presiding Judge.

Anna Lois Norris was killed when the car she was driving collided with another car at the intersection of 26th Avenue and U. S. Highway 319 in Moultrie at the site of a road construction project recently completed under a contract between the Georgia Department of Transportation (DOT) and its contractor. Ms. Norris’s surviving spouse and the administrator of her estate, Steven Norris, sued the DOT under the Georgia Tort Claims Act for wrongful death and other damages contending that changes made to the intersection under the contract created a dangerous and confusing approach to the intersection which caused the collision.

The trial court granted the DOT’s motion for summary judgment asserting that Ms. Norris’s intentional disregard of a stop sign at the intersection was the sole proximate cause of the collision, and Mr. Norris appeals. Because we conclude that factual issues remain as to whether stop signs placed at the intersection under the contract were properly placed and clearly visible, we reverse the grant of summary judgment.

In Dept. of Transp. v. Jackson, 229 Ga. App. 321 (494 SE2d 20) (1997), relied upon by the DOT in its motion for summary judgment, we affirmed the grant of summary judgment in favor of the DOT in a similar intersection accident case where the evidence showed that the driver intentionally ran a clearly visible stop sign, and there was no allegation that the sign was obscured or that the driver was otherwise prevented from observing it. Under those circumstances, we concluded that the sole proximate cause of the ensuing collision with another car was the driver’s intentional disregard of the stop sign. Id.

In the present case, the record shows that the DOT project involved construction of two southbound lanes of traffic for Highway 319 at its intersection with 26th Avenue. The project expanded Highway 319 from two lanes to four lanes, creating two southbound lanes and two northbound lanes divided by a median. Until a few days prior to the collision, however, the southbound lanes had been closed due to construction, and Highway 319 traffic was maintained on the two lanes which had been previously constructed. While maintained as a two-lane highway during construction of the southbound lanes, cars approaching Highway 319 traveling eastbound on 26th Avenue drove across the closed southbound lanes and stopped at the median before encountering traffic on the two open lanes. When construction was finished on the southbound lanes, Highway 319 expanded to a four-lane highway, and stop signs were rearranged under the DOT contract to direct cars approaching eastbound on 26th Avenue to stop before encountering traffic on the newly opened southbound lanes.

Decided June 25, 2001.

Kirbo & McCalley, Thomas L. Kirbo III, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Susan J. Levy, for appellee.

On the day of the collision, Ms. Norris’s car approached the newly opened four-lane Highway 319 traveling eastbound on 26th Avenue. Ms. Norris’s 13-year-old son, James Norris, was a passenger in the car. He testified by deposition that, as the car came around a curve on 26th Avenue toward the intersection, the only stop sign he saw was one located in the median of Highway 319 and that his mother drove across the two southbound lanes of the highway and started to slow down to stop as she approached the stop sign in the median. As they were slowing down to stop, their car was struck by another car traveling with the right of way on Highway 319 in the newly opened southbound lanes. He also testified that there was another stop sign on 26th Avenue directing eastbound cars to stop before entering the southbound lanes of the highway. When asked if he was able to see that stop sign before his mother drove past it into the southbound lanes of the highway, he responded that the stop sign was only briefly visible, “if you just like look over real quick. . . .” He testified that, as his mother’s car approached the intersection, there was an obstruction blocking the view of the comer where this stop sign was located. Contrary to this testimony, the DOT points to testimony based on an accident reconstmction that concluded stop signs at the intersection were properly placed.

Viewing all the evidence in the light most favorable to Mr. Norris as the party responding to the motion for summary judgment, we conclude that this case is not controlled by Dept. of Transp. v. Jackson, supra, and that genuine issues of material fact exist as to whether Ms. Norris intentionally ran a clearly visible stop sign or whether she failed to see the stop sign because it was obscured. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment reversed.

Eldridge and Miller, JJ, concur.


author: Johnson, Presiding Judge.

text:
    A01A1332.
    PERDUE v. THE STATE.
    (551 SE2d 65)
   Johnson, Presiding Judge.

A jury convicted David Perdue of two counts of child molestation, two counts of aggravated child molestation, statutory rape, and cruelty to children in the first degree. Perdue appeals, alleging the evidence was insufficient to support the jury’s verdict. Because the evidence was sufficient to support the jury’s verdict, we affirm.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Perdue began nocturnal visits to his stepdaughter’s room when she was 12 years old, fondling and licking her breasts and vaginal area. She told a school counselor and a detective, but recanted almost immediately after her parents told her she would break up the family if she told the truth. At a family meeting, Perdue admitted he had improper sexual contact with his stepdaughter, cried, begged forgiveness, and promised it would never happen again.

After a brief respite, Perdue resumed almost nightly visits to his stepdaughter’s room, touching and licking her. He also made her kiss his chest and touch his private areas. The stepdaughter told her mother, but Perdue did not stop. Over the next three or four years, the fondling continued and progressed to mutual oral sodomy and eventually culminated in routine sexual intercourse. Perdue would remind his stepdaughter that if she revealed the truth, she would break up the family. The evidence further showed that Perdue and the mother would have sexual intercourse while the stepdaughter and her sister were in the bed with them.

At age 15, the stepdaughter eventually confided in her best friend. Her friend testified that she could tell the stepdaughter was struggling with the issue of whether she should tell and break up her family. The stepdaughter then told her boyfriend, who, against the stepdaughter’s wishes, told his mother. The stepdaughter then spoke with her boyfriend’s mother. The boyfriend’s mother testified that the stepdaughter “just kind of curled up. She was crying. . . . She said that she was afraid this was going to destroy her family. She was concerned about her sister.” The boyfriend’s mother initiated the police investigation.

Perdue initially denied any misconduct, but finally admitted touching his stepdaughter’s breasts on two occasions and touching her vaginal area once over her clothing. He claimed his stepdaughter enticed him by flashing her breasts and dropping her towel after a shower.

In a two-sentence argument, Perdue contends the evidence was insufficient to find him guilty of child molestation, aggravated child molestation, and statutory rape because “[h]e denied committing the offenses charged. The only corroboration was other persons repeating [his stepdaughter’s] allegations.” We find no merit to this argument.

First, there is no legal requirement that the stepdaughter’s statements be corroborated with respect to the child molestation and aggravated child molestation offenses. The testimony of one witness is generally sufficient to establish a fact. As for the statutory rape offense, testimony of the other witnesses confirming the stepdaughter’s accounts, as well as Perdue’s admission of some of the acts, was sufficient to corroborate the stepdaughter’s testimony.

Secondly, on appeal this Court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Child molestation is defined as doing an immoral or indecent act to, with, or in the presence of a child under 16 years of age, with the intent to arouse and satisfy the sexual desires of either the accused or the child. Aggravated child molestation is defined as an offense of child molestation which physically injures the child or involves an act of sodomy. Statutory rape occurs when a person engages in sexual intercourse with any child under the age of 16 years. We find sufficient evidence in this case to authorize a rational trier of fact to find Perdue guilty beyond a reasonable doubt of child molestation, aggravated child molestation, and statutory rape.

2. Perdue contends the evidence was insufficient to find him guilty of cruelty to children. Count 6 of the indictment charged Per-due with the offense of cruelty to children in the first degree in that he unlawfully, maliciously caused his stepdaughter cruel and excessive mental pain by telling her not to tell anyone about the sexual activities he was performing on, to, and with her because it would cause her family to break up. According to Perdue there was no evidence that his stepdaughter experienced excessive mental pain maliciously caused by him. We disagree.

To establish the offense of cruelty to children, the state must establish that the child was under the age of 18, that the child suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in doing so. In the present case, the evidence showed that Perdue told his stepdaughter that she would break up the family if she told anyone about the sexual abuse. The stepdaughter testified about her struggle between telling the truth to stop the sexual abuse and destroying her family. Two witnesses observed the stepdaughter cry and agonize over the decision of whether she should disclose the sexual abuse and possibly destroy her family. Another described her mental suffering after the sexual abuse had been reported and she had been put into a foster home.

Decided June 25, 2001.

Lawrence TV Daniel, for appellant.

Patrick H. Head, District Attorney, Frances D. Hakes, Amy H. McChesney, Assistant District Attorneys, for appellee.

The determination of what is cruel or excessive mental pain is to be made by the jury. Viewing the evidence in a light most favorable to support the jury’s verdict, the evidence was sufficient to enable a rational trier of fact to find Perdue guilty beyond a reasonable doubt of the offense of cruelty to children.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Vickers v. State, 241 Ga. App. 452, 453 (527 SE2d 217) (1999).

       OCGA § 24-4-8.

       See Trejo v. State, 245 Ga. App. 316, 318 (2) (537 SE2d 755) (2000); Wilson v. State, 241 Ga. App. 426, 429-430 (2) (526 SE2d 381) (1999).

        Vickers, supra.

       Id.

       OCGA § 16-6-4 (a).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-3 (a).

        Brewton v. State, 266 Ga. 160 (1) (465 SE2d 668) (1996); see OCGA § 16-5-70 (b).

        Sims v. State, 234 Ga. App. 678, 679 (1) (507 SE2d 845) (1998).

       See Wilhelm v. State, 237 Ga. App. 682, 685 (3) (516 SE2d 545) (1999); Goss v. State, 228 Ga. App. 411, 412 (1) (491 SE2d 859) (1997).


author: Pope, Presiding Judge.

text:
    A01A0463.
    WOODGRAIN MILLWORK/WINDSOR WOOD WINDOWS et al. v. MILLENDER.
    (551 SE2d 78)
   Pope, Presiding Judge.

This case involves issues of first impression in a workers’ compensation claim for occupational hearing loss. Following our grant of their application for discretionary appeal, Woodgrain Millwork/ Windsor Wood Windows and Liberty Mutual Insurance Company (collectively the “Employer”) appeal the order of the superior court affirming an award by the State Board of Workers’ Compensation (“Board”) to Donzi Millender. The Employer contends that, because Millender’s claim was prematurely filed, the administrative law judge (“AL J”) erred in denying the Employer’s motion to dismiss. The Employer also claims the ALJ misapplied the law and the evidence. For reasons which follow, we find that the superior court properly affirmed the Board award adopting the ALJ’s findings, and we affirm.

Viewed in the light most favorable to the findings of the ALJ, the record shows that Millender worked for the Employer from mid-1996 through June 1997. He drove a forklift. The mill was a noisy workplace, and the employees were required to wear hearing protection for their ears. Although hearing protection was available, Millender did not protect his right ear, because otherwise he could not hear the forklift-mounted radio which relayed delivery instructions. The Employer at the least condoned, and perhaps initiated, Millender’s practice of leaving his right ear unprotected while operating the forklift.

On June 11, 1997, Millender visited the hospital emergency room with complaints of a right ear ache and nasal congestion. On June 17, 1997, Millender’s supervisor found Millender in his parked forklift with his head against the steering wheel. Millender told the plant manager that his pain medication made him sleepy. The manager told Millender to leave work and to return when he had written clearance from his doctor to operate the forklift.

Millender was subsequently treated by an ear, nose, and throat specialist. Millender was diagnosed with sensorineural hearing loss of approximately 52 decibels in his right ear and approximately 17 decibels in his left ear. This constitutes a moderate to severe hearing loss in the right ear and a mild hearing loss in the left ear.

Millender never returned to work after leaving on June 17,1997, and he was formally terminated on July 15, 1997, for failing to provide a medical explanation for his continued absence.

Millender filed his claim for workers’ compensation benefits on July 28, 1997. Nearly two years later, on July 7, 1999, the Employer filed a motion to dismiss Millender’s claim because, pursuant to OCGA § 34-9-264 (c), it was prematurely filed. The ALJ orally denied this motion at the beginning of the hearing on July 8, 1999. On September 7, 1999, the ALJ issued its written order finding that Mil-lender had suffered compensable partial occupational hearing loss as a result of exposure to harmful noise in his employment.

1. (a) OCGA § 34-9-264 governs claims for occupational loss of hearing. Subsection (c) provides that “[n]o claim for compensation for occupational hearing loss shall be filed until six months have elapsed since exposure to harmful noise with the last employer.” Millender’s claim was filed before this six-month period had elapsed. Nevertheless, the ALJ found that the Employer had waived the right to defend Millender’s claim on the basis of Millender’s improper filing:

Although the employee’s claim was filed on . . . July 28, 1997, less than six months after his last exposure to harmful noise, this motion [to dismiss] was denied because the employer/insurer unreasonably delayed asserting this claim. The employer/insurer were well aware that this was one of the bases on which the employee sought recovery by the Fall of 1997 when [the ear specialist’s] deposition was originally take [sic], but they delayed filing this motion until more than one year had elapsed from the time of the employee’s last exposure to allegedly hármful noise. The effect of granting the relief requested in this long delayed motion would have exposed the employee to a defense of the bar of the statute of limitations when the employer/insurer could have timely asserted this motion at a time when the employee would have been able to file an amended claim or new claim for alleged occupational hearing loss within one year from his last exposure to such noise.

We can find no legal authority to support the ALJ’s denial of the Employer’s motion on the basis that it was not timely filed. Although a defense is waived if raised after a workers’ compensation hearing, see generally St. Paul Mercury Indem. Co. v. Oakley, 73 Ga. App. 97, 101-102 (35 SE2d 562) (1945), we can find no precedent which would require that a defense to a claim be made before the first hearing.

Board Rule 82 (a) provides that “[a]ny defense as to the time of filing a claim is waived unless it is made not later than the first hearing.” The corollary to this rule would be that a defense based on a filing of a claim is not waived if it is made at or before the first hearing. We also note that in workers’ compensation proceedings there are no formal responsive pleadings where an affirmative defense would be required to be put forth. House v. Echota Cotton Mills, 129 Ga. App. 350, 352 (2) (199 SE2d 585) (1973).

The ALJ’s ruling suggests that the Employer should have made its motion to dismiss in sufficient time for Millender, who was represented by counsel, to refile his claim before the statute of limitation expired. This would improperly place the burden on the Employer to ascertain the statute of limitation applicable to an employee’s claim. It was not the Employer’s responsibility to ensure that Millender’s claim was properly filed.

Millender also argues that it was unconscionable for the Employer to take five depositions, create a voluminous file and then wait until the day before the hearing to file its motion to dismiss. He claims, without reference to supporting authority, that the Employer was guilty of laches and should be barred from pursuing its motion to dismiss. With respect to the depositions, the Employer was within its statutory rights to conduct discovery. OCGA § 34-9-102 (d). We have reviewed the record and see no basis for a finding that the prehearing depositions were abusive. Assuming the Employer proceeded with the intention of eventually making a motion to dismiss based on an untimely filing, it could not be certain of a favorable ruling on that motion. So it was not unwarranted for the Employer to plan on trying the claim and to pursue discovery. If Millender was concerned about the expense of accumulating a discovery file which might eventually be rendered moot, he had an equal opportunity with the Employer to request an early resolution of the premature filing issue.

(b) Because the ALJ should have considered the Employer’s motion to dismiss, we must determine whether Millender’s claim was valid even though it was prematurely filed. Although OCGA § 34-9-264 (c) prohibits the filing of a claim for occupational hearing loss during the six-month period after the employee’s last exposure to harmful noise, the statute is silent on the status of a premature claim. We must determine that status, keeping in mind that the workers’ compensation law “shall be construed and applied impartially to both employer! ] and employee[ ].” OCGA § 34-9-23.

It can be argued that a premature claim for occupational hearing loss is a nullity and that where the claim is not refiled within the allowed time limits, it is as if it were never advanced. But there is precedent in the law for treating a premature filing as ripening into effectiveness. For example, in some instances a prematurely filed appeal may be deemed effective upon the rendering of a final judgment. See McCulley v. State, 273 Ga. 40 (537 SE2d 340) (2000). And where a claim is prematurely filed, the danger of prejudice to a defendant because of surprise or delay is not present. “There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it must be.” (Emphasis omitted.) Livingston v. State, 221 Ga. App. 563, 566 (1) (472 SE2d 317) (1996).

In this case, the claim was not heard until the waiting period passed and there was no danger that the Employer would be called into court any sooner than would otherwise be allowed. The ALJ heard this case approximately two years after Millender’s last exposure and after thorough discovery on the part of the Employer. We note that under the framework of OCGA § 34-9-264, an employee with occupational hearing loss has only six months to file before the bar of the statute of limitation. See OCGA § 34-9-82 (a). Accordingly, we find that Millender’s prematurely filed claim ripened, and was deemed to be filed, at the expiration of the statutory six-month waiting period. It follows that although the ALJ should have considered the Employer’s motion to dismiss, the motion to dismiss did not have merit and the ALJ was correct in hearing the claim. The ruling must be upheld under the principle of “right for any reason.” Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988).

2. The Employer claims the ALJ erred in finding, within the meaning of OCGA § 34-9-264, that (1) Millender was exposed to harmful noise, (2) Millender’s hearing loss was caused by harmful noise, and (3) Millender had suffered an occupational loss of hearing. We disagree because there is some evidence to support the ALJ’s findings.

The ALJ is vested with the authority to make findings of fact in workers’ compensation claims. The appellate division of the workers’ compensation board must accept the ALJ’s findings where there is a “preponderance of competent and credible evidence” to support the decision. [If t]he appellate division accept [s] the ALJ’s finding[,] that. . . decision cannot be disturbed as long as there is any evidence to support it, because neither the superior court nor the appellate court has the power to find facts.

(Citations omitted.) Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 58-59 (1) (484 SE2d 653) (1997).

Under OCGA § 34-9-264 (a),

(1) “Harmful noise” means sound in employment capable of producing occupational loss of hearing as defined in paragraph (2) of this subsection. Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this Code section. (2) “Occupational loss of hearing” means a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment.

The Employer argues that sound tests showed that the average sound exposure to Millender over the course of the work day was 89.7 decibels in both ears, which the statute provides is “incapable of producing” this loss. However, the ALJ found that Millender had been exposed to harmful noise because testing showed that the workplace noise level at times exceeded 90 decibels. Furthermore, the tests showed that the average exposure to Millender’s right ear was 90.2 decibels. The evidence supports the ALJ’s finding that Millender was exposed to harmful noise.

The Employer raises various arguments regarding the sufficiency of the evidence as to Millender’s hearing loss and causation. Contrary to the Employer’s argument, we find that the evidence supported the ALJ’s findings. The evidence showed that Millender was required to leave his right ear unprotected and that he suffered the requisite loss because of noise in this occupation. Thus, we hold that, for purposes of OCGA § 34-9-264, the ALJ was authorized to find that Millender suffered occupational hearing loss caused by prolonged exposure to harmful noise at the Employer’s plant.

Decided June 26, 2001

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Gregory T. Talley, for appellants.

Wingate & Mitchell, William E. Mitchell TV, William L. Ray, for appellee.

3. The Employer argues that the ALJ was without authority to have Millender’s hearing retested. In support of this argument, they rely on Red Roof Inn v. Lynn, 203 Ga. App. 38, 39 (416 SE2d 307) (1992), in which we indicated that a party may not be forced to introduce evidence against his will. Red Roof stands for the proposition that the ALJ cannot make a deposition admissible only upon the condition that an employer submits a second deposition into evidence as well. The test here was ordered for the benefit of the Employer because an earlier test had showed inconsistencies in the level of hearing loss. Furthermore, considering the evidence that hearing loss did occur, and considering the testimony that a second hearing test could establish the extent of the damage more accurately, payment for the second test is consistent with the Employer’s duty to pay for an injured employee’s medical treatment. See Board Rule 205 (b).

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       An employee is normally allowed one year from the time of injury to make a workers’ compensation claim. OCGA § 34-9-82 (a).


author: Ellington, Judge.

text:
    A01A0492.
    ROCHA v. THE STATE.
    (551 SE2d 82)
   Ellington, Judge.

Luiza M. Rocha appeals from her conviction of driving without a valid license, OCGA § 40-5-20 (a). For the reasons which follow, we affirm.

At the bench trial on Rocha’s traffic citation, the following undisputed evidence was presented: Rocha is a Brazilian citizen who speaks Portuguese. Because she does not speak English, a translator was present at trial. Through the translator, Rocha testified that she has been visiting the United States since October 1999. On January 13, 2000, Rocha was driving a vehicle that was involved in an automobile collision on Barrett Parkway in Cobb County. Rocha did not have a driver’s license with her at the time of the collision. Therefore, a police officer ticketed her for driving without a license.

At trial, the State argued that Rocha’s failure to have a driver’s license in her possession at the time of the collision was sufficient to establish a presumption that she was driving without a license in violation of OCGA § 40-5-20. See OCGA § 40-5-29. This presumption may be defeated, however, if the defendant produces at trial their driver’s license and demonstrates that it was valid at the time of the collision. See Johnson v. State, 165 Ga. App. 773, 776 (2) (302 SE2d 626) (1983); McCook v. State, 145 Ga. App. 3, 4 (1) (243 SE2d 289) (1978). To that end, Rocha testified that she possessed an “official” Brazilian driver’s license, and she tendered a copy of the alleged license into evidence. The license was written entirely in Portuguese. Rocha argued that it was legal for her to drive in the United States under the authority of her Brazilian license and cited as authority Article VI of the 1943 Convention on the Regulation of Inter-American Automotive Traffic (hereinafter “Treaty”). The purpose of the Treaty was to establish uniform rules “to control and regulate international automotive traffic on their highways, and to facilitate the movement of motor vehicles” among the participating countries. Article VI of the Treaty reads, in part, as follows:

Every motor vehicle operator before admission to international traffic shall have such driving license as may be required by the laws of his [country] or such as may be issued by any political subdivision thereof having legal authority to issue driving licenses. ... No operator shall be admitted to international travel who is less than 18 years of age.

Notably, Article III of the Treaty provides that “[t]he operator of a motor vehicle circulating in any [country] which is a party to this Convention is subject to the traffic laws and regulations in force in that [country] or subdivision thereof.”

After considering counsels’ arguments and supplemental briefs, the trial court ruled that, even though Rocha testified about her Brazilian license, the license itself was the “highest and best evidence as to whether Ms. Rocha had a driver’s license and whether . . . that driver’s license would fall under the [Treaty] would be a question that would have to be answered by the ability to read the document itself.” The trial court noted that he was not able to read, write, or speak Portuguese and was, therefore, unable to read the document. Although a translator was present at trial, no translation of the license was submitted to the court. Finding that it was “unable to determine the validity of the document that has been presented and whether or not it is what it is purported to be,” the trial court found Rocha guilty of driving without a valid driver’s license.

On appeal, Rocha argues that, under the Treaty, the presentation of the alleged Brazilian license is all that is required to establish that she was driving legally on the streets of Georgia. However, the Treaty specifically subjects an international driver “to the traffic laws and regulations” of the state or country in which they are driving. This provision, therefore, supports a requirement that Rocha comply with OCGA § 40-5-20 (a), which requires drivers to have a “valid driver’s license ... for the type or class of vehicle being driven.” See Schofield v. Hertz Corp., 201 Ga. App. 830, 832 (2) (412 SE2d 853) (1991) (the treaty supersedes Georgia’s statutory provisions only to the extent the provisions conflict with the treaty).

Since the State presented a prima facie case that Rocha did not have a Georgia license and, in fact, had no license in her possession at the time of the collision, Rocha bore the burden of establishing that she did, in fact, have a valid driver’s license at that time. See Jordan v. State, 166 Ga. App. 417, 419 (1) (304 SE2d 522) (1983); Days v. State, 134 Ga. App. 585 (1) (215 SE2d 520) (1975); see also OCGA § 24-7-1 (proof of execution of an original writing must be proved); Anderson v. Cuthbert, 103 Ga. 767, 773 (30 SE 244) (1898) (the burden of proving the authenticity of an original writing falls on the party offering the evidence). Assuming, without deciding, that the Treaty applied herein, in order to demonstrate compliance with the Treaty, Rocha was required to show that the Brazilian driver’s license in evidence fulfilled the requirements of the laws of Brazil, that the driver’s license was issued by a Brazilian governmental agency that is authorized to issue such licenses, and that she was at least 18 years old. Further, since the license itself was the best evidence of its validity and, therefore, its compliance with Georgia law, it must show on its face that it was valid on the date of the collision and authorized Rocha to drive the type or class of vehicle being driven. For lack of translation, the license showed neither. Cf. Schofield v. Hertz Corp., 201 Ga. App. at 830, n. 1 (driver possessed a valid British driver’s license, presumably written in English).

Decided June 26, 2001.

Robert E. Turner, for appellant.

Barry E. Morgan, Solicitor-General, Sandra G. Dawson, Jessica K. Moss, Assistant Solicitors-General, for appellee.

Therefore, the trial court was authorized to find that Rocha failed to establish that she possessed a valid driver’s license at the time of the collision. Her conviction for driving without a valid license is affirmed.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       OCGA § 40-5-20 (a) states as follows:
      No person, except those expressly exempted in this chapter, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under this chapter for the type or class of vehicle being driven. Any person who is a resident of this state for 30 days shall obtain a Georgia driver’s license before operating-a motor vehicle in this state.

       OCGA § 40-5-29 states as follows:
      (a) Every licensee shall have his driver’s license in his immediate possession at all times when operating a motor vehicle, (b) Every licensee shall display his license upon the demand of a law enforcement officer. A refusal to comply with such demand not only shall constitute a violation of this subsection but shall also give rise to a presumption of a violation of subsection (a) of this Code section and of Code Section 40-5-20.

       See OCGA § 24-5-4. “The best evidence rule, or the ‘original document rule,’ provides that in order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” (Punctuation and footnote omitted.) Smith v. State, 247 Ga. App. 516, 517 (1) (544 SE2d 208) (2001).


text:
    A01A0334.
    A01A0335.
    STROZZO et al. v. COFFEE BLUFF MARINA PROPERTY. ROSSO CORSA ENTERPRISES, INC. v. COFFEE BLUFF MARINE RESCUE SQUADRON OF AMERICA, NO. 2A.
    (550 SE2d 122)
   Miller, Judge.

Rosso Corsa Enterprises, Inc., grantee under a trustee’s deed after foreclosure, filed this quia timet petition under OCGA § 23-3-60 to establish itself as the fee simple title holder to real property commonly known as Coffee Bluff Marina, fronting on the Forrest River in Chatham County. Tony Strozzo and other property owners in the so-called Town of Rosedew asserted an express easement and also claimed a general right-of-way, alleging the land had been dedicated and accepted as a public park. Coffee Bluff Marine Rescue Squadron of America, No. 2A (MRS) also responded, claiming a prescriptive easement to a portion of the property.

The case was referred to a special master, who considered cross-motions for summary judgment and recommended that summary judgment be granted to Rosso Corsa as against the residents because as property owners they abandoned any express easement and as members of the public at large they acquired no easement. The special master further recommended that fee simple title to the entire property be established in Rosso Corsa but subject to a prescriptive easement in favor of MRS to access, use, and maintain improvements it made which exceeded the scope of the original permissive use granted to it by Mrs. Phillip Falligant, Rosso Corsa’s predecessor in title. The trial court adopted the special master’s report and entered summary judgment in accordance with its recommendations. In Case No. A01A0334, the residents appeal the grant of summary judgment in favor of Rosso Corsa, and in Case No. A01A0335, Rosso Corsa appeals the grant of summary judgment establishing a prescriptive easement in favor of the MRS.

Case No. A01A0334

1. Appellants, as Falligant Subdivision landowners and also as members of the public at large, enumerate the grant of summary judgment against their claims to an easement. When reviewing the grant or denial of summary judgment, this Court conducts a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the nonmovant. Viewed in this light, the record shows the following.

According to a copy of the recorded 1887 plat of the Falligant Subdivision of the Coffee Bluff Plantation in the Town of Rosedew, Chatham County, Dr. L. A. Falligant (the common owner in appellant-residents’ chains of title) set aside Park Place East, Rosedew Park, and Park Place West from the numbered lots of the subdivision. Park Place East and West are narrow rectangular strips 30 feet wide and running approximately 480 feet south from the edge of Back Street to the low water mark of the river. Rosedew Park is approximately 80 feet wide and 480 feet long. Rosso Corsa claims only the outermost 20 feet on each side of Rosedew Park because in 1955, Phillip L. Falligant deeded to Chatham County a right-of-way to the middle 40 feet for an extension of Coffee Bluff Road, and the City of Savannah has since annexed the property.

It is undisputed that the 1887 plat is referred to in subsequent deeds to various lots in the Falligant Subdivision, including Rosso Corsa’s deed from the trustee. There is also evidence that, while the park was originally intended exclusively for Rosedew residents, the general public has used the bluff and beach for recreational purposes, at least since the 1920s. Either the county or the city once built a boat ramp at the water’s edge, but since at least 1976 that ramp was condemned and access to it blocked by a fence. Only remnants of the paving for the extension of Coffee Bluff Road remain. Since 1972, a chain-link fence along the northern portion blocks all entrance to the property except an opening to a privately operated marina, erected by Rosso Corsa’s predecessor in title. The property is not posted as a public park nor maintained by any local government.

(a) Members of the public at large. “After an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes.” Nevertheless, an easement in favor of the public may be voluntarily abandoned. The time sufficient to raise the presumption of abandonment of land accepted for public use generally follows the 20-year prescriptive period. While there is evidence that a small portion of the public has used the so-called park for recreational purposes since a “ ‘time whereof the memory of man runneth not to the contrary!,] ’ ” yet the evidence is undisputed that any acceptance by the public at large has been abandoned because for more than 20 years the governing authority has fenced and locked the access to the condemned and unsafe public ramp rather than repair or maintain that ramp or the park itself. The trial court correctly granted summary judgment to Rosso Corsa on appellants’ claims based on their being members of the public at large.

(b) Assigns of Dr. Falligant. “It is well established that when property is subdivided and a conveyance is made according to a recorded plat, the purchaser acquires an easement in areas set aside for the purchaser’s use.” The recorded plat here is evidence that Rosedew Park and its adjacent areas were expressly dedicated to the subdivision property owners. Mere nonuse of an easement acquired by deed, for a period however long, will not amount to an abandonment. So any current property owner whose deed incorporates the 1887 plat by reference has an express easement in the areas set aside, namely, Park Place East, Rosedew Park, and Park Place West, regardless of whether there was an acceptance of the presumed dedication by the governing authority or by the public. There is, in our view, no evidence other than mere nonuse that any current beneficiary of the easement demonstrated the requisite intent to abandon that interest. Consequently, the trial court erred in granting summary judgment against the right-of-way claims of any appellant who is an assignee in the chain of title from Dr. Falligant or his heirs.

Case No. A01A0335

2. Rosso Corsa enumerates the trial court’s conclusion that MRS acquired a prescriptive easement in Park Place East and the eastern portion of Rosedew Park, arguing that all possession and use were permissive.

It is quite true that permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice are given to the other party. Pretermitting whether any material fact questions exist under this assignment of error, we nevertheless affirm the grant of summary judgment to MRS because the express parol license Mrs. Falligant granted MRS subsequently became an easement due to the expenses MRS incurred. “A parol license to use another’s land is revocable at any time if its revocation does no harm to the person to whom it [was] granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.”

It is undisputed that in 1960 Mrs. Falligant “graciously agreed to permit . . .” MRS to conduct its marine rescue operations from her riverfront property and to erect a gear shack identified in a building plan so long as her property taxes would not be increased and her tenant would not be disturbed. That same year, MRS built the envisioned one-story concrete block gear shack of approximately 900 square feet. In 1961, MRS constructed a dock and hoist on the premises, which are still in use today. Mrs. Falligant died or disposed of the property in 1968 or 1969. In 1974, MRS added a barbeque pit and patio to the rear of the gear shack, and in 1980 a metal canopy over the patio area was added. In 1989, MRS added a bulkhead to the dock and landscaped the grounds. Access to the dock is limited by a locked chain-link fence, to which members of MRS have a key.

Decided June 12, 2001

Reconsideration denied June 27, 2001

Cletus W. Bergen II, for appellants (case no. A01A0334).

Buchsbaum & Lowe, Alan S. Lowe, James W. Krembs, for appellant (case no. A01A0335).

Todd E. Schwartz, C. James McCallar, Jr., for appellees.

The outermost limits of Mrs. Falligant’s generosity may be ambiguous at this remote time, but it is undisputed that she expressly consented to the use of her land for marine rescue operations and expressly permitted the erection of the gear shack. This was not a mere license to walk in a park, to use a roadway, to fish in the waters of another, or the like, but was a license to construct something permanent and enduring attended with expense. “If the enjoyment of [a parol license] must be preceded necessarily by the expenditure of money, and the grantee has made improvements or invested capital in consequence of it, it becomes an agreement for . . . valuable consideration, and he a purchaser for value.”

As it is undisputed that MRS expended capital by making an improvement to Mrs. Falligant’s property acting in reliance upon her parol license, MRS became a purchaser for value, and the parol license became an easement running with the land. The trial court correctly granted summary judgment to MRS on this record.

Judgment affirmed in Case No. A01A0335. Judgment affirmed in part and reversed in part in Case No. A01A0334.

Johnson, P. J., and Eldridge, J., concur. Andrews, P. J., not participating.

       Notwithstanding the express language of the Georgia Constitution of 1983, Art. VI, Sec. VI, Par. Ill (1) (“Cases involving title to land”) and Par. Ill (2) (“All equity cases”), and over the dissent of Chief Justice Benham, Presiding Justice Fletcher, and Justice Carley, a majority of the Supreme Court of Georgia transferred these cases to the Court of Appeals. Compare Childs v. Sammons, 272 Ga. 737 (534 SE2d 409) (2000) (petition to quiet title).

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997) (whole court).

       OCGA § 44-5-230.

        Mayor &c. of Savannah v. Barnes, 148 Ga. 317, 321 (96 SE 625) (1918); OCGA § 44-9-6.

        Calfee v. Jones, 54 Ga. App. 481, 483 (3) (188 SE 307) (1936); OCGA § 44-5-163.

       This is the common law period for prescription. Seaboard Air-Line R. v. Sikes, 4 Ga. App. 7, 10 (3) (60 SE 868) (1908).

       (Citations omitted.) Sadler v. First Nat. Bank &c., 267 Ga. 122 (1) (475 SE2d 643) (1996).

        Northpark Assoc. No. 2 v. Homart Dev. Co., 262 Ga. 138, 139 (1) (414 SE2d 214) (1992).

        Mayor &c. of Savannah, supra, 148 Ga. at 321. Accord Tietjen v. Meldrim, 169 Ga. 678, 695 (2) (151 SE 349) (1930).

        Sadler, supra, 267 Ga. at 122-123 (1).

        Stanfield v. Brewton, 228 Ga. 92, 94-95 (1) (a), (b) (184 SE2d 352) (1971).

       See Sadler, supra, 267 Ga. at 123 (2).

       OCGA § 44-5-161 (b). Accord Rucker v. Rucker, 136 Ga. 830 (2) (72 SE 241) (1911).

       For example, it would be for the jury to determine whether, in the first instance, MRS exceeded the scope of Mrs. Falligant’s permission to use the land for marine rescue operations. Even if the jury were to find that MRS exceeded that initial permissive scope by erecting the dock and boat hoist, then the question would remain whether MRS ever gave actual notice of an adverse claim and subsequently held possession for 20 years.

         (Emphasis supplied.) OCGA § 44-9-4.

        Sheffield, v. Collier, 3 Ga. 82, 86 (1847).

        Mayor &c. of Macon v. Franklin, 12 Ga. 239, 243 (1) (1852). Accord Mathis v. Holcomb, 215 Ga. 488-489 (1) (111 SE2d 50) (1959).


text:
    A01A0139.
    SHARPLE v. AIRTOUCH CELLULAR OF GEORGIA, INC.
    (551 SE2d 87)
   Pope, Presiding Judge.

Marlane Sharpie brought this class action suit against AirTouch Cellular of Georgia, Inc. alleging that AirTouch’s form contract for subscribing customers does not authorize AirTouch to always round up partial minutes when it bills for cellular usage. Sharpie alleges that AirTouch’s billing technique results in millions of dollars of overcharges.

In January 1997, Sharpie contracted with AirTouch for cellular telephone service. The form contract provides that AirTouch would charge Sharpie $14 per month plus usage fees of “460/Min” during peak time and “290/Min” during off-peak times. The contract does not say anything else about how partial minutes will be billed. It is uncontested that AirTouch bills only in whole minute increments; AirTouch stipulated that:

“AirTouch bills for cellular air time in whole minute increments. If a customer is connected to the AirTouch cellular network for all or a portion of a minute, the customer is charged for the entire minute. For example, a customer is charged for three minutes if air time usage is either 2 minutes and 1 second or 2 minutes and 45 seconds.”

The form contract contains a merger clause that states that: “This Agreement contains the entire agreement of the parties relating to the subject matter hereof and supersedes all prior discussions and agreements. Except as otherwise specifically set forth herein, this Agreement may not be amended except by a writing signed by both parties hereto.” The agreement provides that it is to be governed by Georgia law.

In this suit, Sharpie alleges that AirTouch breached its contract and violated the Uniform Deceptive Trade Practices Act by rounding all partial minutes up to the next minute. Sharpie moved for partial summary judgment, and AirTouch moved for complete summary judgment on these claims. The court denied Sharpie’s motion and granted AirTouch’s. In its order, the court reasoned that the contract provides that one minute is the “billing unit,” that “the telecommunications industry historically has used this ‘whole-minute’ pricing and billing concept,” and that Sharpie’s contract did not contain a provision for conventional rounding. Further, the court stated that, if it were to find a conventional rounding provision by implication, it would conflict with another provision of the contract that provides that the customer is responsible for all charges and fees on all calls. Under Sharpie’s argument, the court reasoned, she would pay nothing for calls less than 30 seconds. The court concluded that the contract “unambiguously provided that a minute was the unit by which air time would be sold.” Sharpie appeals.

“An issue of contract construction is at the outset a question of law for the court.” Grier v. Brogdon, 234 Ga. App. 79, 80 (2) (505 SE2d 512) (1998). The first step is to look to the four corners of the instrument to determine the meaning of the agreement from the language employed. Terry v. State Farm Fire &c. Ins. Co., 269 Ga. 777, 778-779 (2) (504 SE2d 194) (1998). “The cardinal rule of contract construction is to ascertain the intention of the parties.” (Punctuation omitted.) Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 242 (1) (503 SE2d 877) (1998); OCGA § 13-2-3.

If the contract language is ambiguous, the court must apply the applicable rules of construction. Grier, 234 Ga. App. at 80; OCGA § 13-2-2. Even in the case of ambiguous contracts, unless such ambiguity remains after the trial court has applied all rules of construction, there is no jury question. Dorsey v. Clements, 202 Ga. 820, 823 (44 SE2d 783) (1947). See also Kobryn v. McGee, 232 Ga. App. 754, 755-756 (1) (503 SE2d 630) (1998) (“When the trial court can apply statutory rules of construction to the express terms of the [contract] to reach only one legal meaning, no ambiguity exists.”). And, normally, only if the ambiguity is not resolved by application of the rules of construction may parol evidence be introduced to explain the agreement. Id. at 756 (4). See also OCGA §§ 13-2-2 (1); 24-6-1. “Parol evidence is admissible to explain all ambiguities, the question as to what was intended being an issue of fact for the jury.” (Citations and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. 713, 715-716 (1) (415 SE2d 319) (1992).

Sharpie asserts that the contract is silent about how partial minutes will be billed, and that accordingly, the contract implies that conventional rounding will be used. AirTouch argues that there is no ambiguity. It offers services by the minute, the customer buys them by the minute, and, therefore, “because a whole unit is sold, there is nothing to ‘round.’ ” We disagree with both parties.

The essence of AirTouch’s argument is that the unit of measure contained in the price provision of the contract, i.e., minutes, necessarily establishes that AirTouch sells and bills only in whole minute increments of time. But, there is simply nothing in the contract to support that conclusion. Nor is there any indication of how fractional minutes will be handled. Moreover, there are too many everyday examples of situations where AirTouch’s interpretation is not commonly accepted to justify AirTouch’s position. In numerous situations where the customer is quoted a price per a certain unit of measure, the unit of measure given does not indicate that the seller sells only in whole unit increments. For example, a quote of the price per pound for produce in the grocery store does not imply that the store is selling produce only in whole pound increments. The same holds true for auto fuel by the gallon, hardware items by the pound or by the foot, attorney fees by the hour, and numerous other items that are not obviously packaged and sold in certain quantities. In all of these situations, it is quite reasonable to conclude that although the good is priced in a certain unit, if you wish to purchase a fraction of that unit, you will be charged only for the fractional amount. AirTouch’s preferred construction of its agreement is not in line with common experience.

The analogies offered by AirTouch are not persuasive. AirTouch argues that if a store offers oranges for “$2.00 per bag,” “the shopper must pay for the entire bag, even if he or she wants less than all the oranges.” But, in this example, oranges are obviously packaged and sold in a certain quantity, by the bag. A bag is a container, not just a unit of measure. And, the indication “per bag” reasonably shows both the price and that the quantity offered is a whole bag: But, in AirTouch’s contract, the indication “460/Min,” standing alone, simply cannot be read to indicate that AirTouch offers time only in whole minute increments.

AirTouch contends that parking garages “typically charge by the hour or by the month, selling in whole hour or whole month increments, without any provision for rounding.” But Sharpie offered photographs of several examples, including some cited by AirTouch, that show that many parking garage signs state that a person will be billed by a certain unit of time “or any portion of the next [unit of time].” There is no such indication in AirTouch’s form contract.

Sharpie’s preferred construction of the agreement is also not clear from the face of the agreement. There is nothing in the agreement to indicate that conventional rounding will be used. And, as noted by the trial court, conventional rounding could lead to some anomalous results such as there being no charge for a call of less than 30 seconds.

Therefore, we find that the agreement is ambiguous. See also Mann v. GTE Mobilnet of Birmingham, 730 S2d 150, 155 (Ala. 1999) (cellular contract providing for a rate “per minute” was ambiguous with regard to rounding). We further conclude that the court’s finding that “the telecommunication industry historically has used this ‘whole-minute’ pricing and billing concept” to be unsupported in the record. The only evidence in the record is two tariffs for land-line long distance carriers, not cellular carriers, and they represent the tariffs of those two carriers at only one point in time. Traditional long distance carriers and cellular providers face somewhat different federal regulations regarding tariffs, and therefore, this evidence is only marginally relevant to the question at hand. Furthermore, both tariffs clearly state that the customer will be billed an amount per minute “or any fraction of a minute.” We find no information in the record about the history of cellular billing practices.

The Uniform Commercial Code explains: “A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts.” OCGA § 11-1-205 (2). Similarly, “[t]he custom of any business or trade shall be binding only when it is of such universal practice as to justify the conclusion that it became, by implication, a part of the contract.” (Citation and punctuation omitted.) Wood v. Frank Graham Co., 91 Ga. App. 621, 624 (86 SE2d 691) (1955). The evidence presented here is insufficient to establish a practice with a “regularity of observance.” See, e.g., All Angles Constr. &c. v. MARTA, 246 Ga. App. 114, 115-116 (1) (539 SE2d 831) (2000).

The quotation from Alicke v. MCI Communications Corp., 111 F3d 909 (D.C. App. 1997), cited by AirTouch is taken out of context and does not establish an industry practice as a matter of fact in this case. Finally, no one requested that the trial court take judicial notice of any usage of trade. See Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998).

Accordingly, there is an issue of fact regarding whether there was a usage of trade that Sharpie either knew or had reason to know. If there was, that usage would preclude use of the rule whereby an ambiguous agreement is construed against the maker.

Decided June 27, 2001.

Roberts, Erck & Schklar, Edwin J. Schklar, Carr, Tabb, Pope & Freeman, W. Pitts Carr, Render C. Freeman, for appellant.

Sutherland, Asbill & Brennan, James R. McGibbon, Kristen J. Indermark, for appellee.

Because there are material issues of fact regarding the meaning of the contract, the court erred by granting AirTouch’s motion for summary judgment but correctly denied Sharpie’s motion.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Mikell, J., concur.

       Sharpie represents a class of Georgia AirTouch customers who were not members of a similar class of plaintiffs in Cohen v. AirTouch Cellular, Civil Action No. 972438, California Superior Court of San Francisco County. See Smith v. AirTouch Cellular of Ga., 244 Ga. App. 71 (534 SE2d 832) (2000) (physical precedent only). The record in this case shows that only members of the class in the Cohen case were affected by the summary judgment order at issue in Smith.

       We are not called to address any possible federal preemption issues. See, e.g., Ball v. GTE Mobilnet of California, 81 Cal. App.4th 529 (96 Cal. Rptr.2d 801) (2000); In re Comcast Cellular Telecommunications Litigation, 949 FSupp. 1193 (E.D. Pa. 1996).

       See generally Tenore v. AT&T Wireless Svcs., 136 Wn.2d 322, 334, n. 51 (962 P2d 104, 109-110) (1998) (cellular telephone service providers are specifically exempted from tariff filing requirements by the Federal Communications Commission).

       In Alicke, the court stated, “MCI lists the length of each phone call in whole-minute increments — which, the court notes and counsel for Alicke confirmed at oral argument, is how long-distance service has always been listed and billed until some companies began recently to bill in smaller increments.” Alicke, 111 F3d at 912. First, this quotation refers to the invoices themselves, not the contract to pay for the services. Second, the quotation refers to long distance carriers, not cellular. Third, the quotation indicates that some companies have begun to bill in smaller increments. Alicke was decided in 1997, which is the year that Sharpie entered into a contract with AirTouch. Trade usage can change with time. The Alicke decision hardly establishes as a matter of fact the regular practice of the cellular industry relative to Sharpie’s claims.

       “[Cjustom of the trade may be shown notwithstanding ... a provision in the contract that all conditions and agreements between the parties thereto, either oral or written, are contained in the contract.” (Citation and punctuation omitted.) Wood, 91 Ga. App. at 625. And, the burden of proving a usage of trade is upon the party asserting it. All Angles, 246 Ga. App. at 115 (1).