text:
    A99A2095.
    In re MAULDIN.
    (529 SE2d 653)
   Andrews, Presiding Judge.

Having been convicted of criminal contempt for failure to appear for jury duty, Jermaine Dupri Mauldin appeals, contending that the evidence was insufficient to show wilfulness; the sentence imposed amounted to cruel and unusual punishment; and the trial court violated his right to due process by failing to allow him to address the court directly and present his defense in his own words. Finding no error, we affirm.

The following facts were stipulated by the parties. Mauldin was a Fayette County resident and received a summons for jury duty, requiring his presence for the Civil Jury Calendar of Fayette County Superior Court for the week of March 1, 1999. On March 1, he arrived at the superior court for jury duty at 9:00 a.m. and sat outside the jury room until a court official closed the door, at which time Mauldin entered the jury room. Mauldin was sworn in as a prospective juror and remained with the other jurors for several hours until he was informed that he was excused until March 3, 1999, at 9:00 a.m.

Mauldin, a professional music entertainer and producer, had a commitment to perform in the Hard Knock Life tour at the Meadow-lands in New Jersey on March 3. This commitment was made prior to receipt of his jury summons. On March 2, Watkins of So So Def Recordings, Inc., Mauldin’s company, notified Mauldin’s attorney, Dial, that he would be unable to attend jury duty because of his New Jersey obligation and asked Dial to notify the court and request a waiver of jury duty.

Dial spoke with Albritton in the superior court clerk’s office, conveyed this information, and requested a waiver of the March 3 jury service. Dial was informed that no waiver would be granted, and Dial so notified Watkins. Watkins attempted, but was unable, to contact Mauldin, and Mauldin did not receive this information before March 3. He did not appear for jury duty.

Mauldin, through his attorneys, had previously obtained three waivers of jury service from the Fayette County Superior Court. On September 14,1998, he had been granted a waiver in order to fulfill a prior professional commitment in Europe.

Mauldin acknowledged that he acted inappropriately in failing to ascertain whether the waiver had been granted before deciding not to return on March 3; that he acted inappropriately in failing to return on March 3; and that he, like all citizens, must adhere to all legally required civic obligations, including jury duty.

Additionally, at the contempt hearing, evidence was adduced that Dial, after being advised that no waiver would be given, inquired of the possible penalties for failure to appear. Dial then notified So So Def Recordings of the denial of waiver, but Dial did not have a phone number, beeper or cell phone number through which she could contact Mauldin directly. Dial never advised Mauldin that he could leave town.

1. Mauldin first challenges the evidence of wilfulness in his failing to appear.

On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court. (Citations and punctuation omitted; emphasis in original.) In re Gouge, 206 Ga. App. 462, 463 (1) (425 SE2d 882) (1992).

Barlow v. State, 237 Ga. App. 152, 157 (513 SE2d 273) (1999).

Mauldin’s argument is premised primarily on In re Hayes, 185 Ga. App. 818, 819 (1) (366 SE2d 204) (1988), in which the solicitor was 15 minutes late to court because he “had an office full of people all wanting to avoid court this afternoon. . . .” Id. In addition to finding this conduct alone insufficient, this Court noted that the trial court had also relied on evidence not contained in the record.

Further, as noted in In re Brant, 230 Ga. App. 283, 285 (1) (496 SE2d 321) (1998), Hayes involved a situation in which the contemnor was late due to circumstances beyond his control and, as noted in Hayes, supra, while the solicitor was going about the duties of the state court, although not present in the courtroom.

Brant is more factually similar to the present situation. There, attorney Brant was representing a client whose case was first on an 8:30 a.m. trial calendar. Brant was not present when the court called the calendar. The court then conducted other business and called the calendar a second time, but Brant still was not present. Brant stated he was in the bathroom during the first call and was going to his car to get some papers during the second, although he had been in court in the interim. Because Brant disrupted the court proceedings and interfered with the orderly administration of justice by disregarding the court’s command, his conviction of criminal contempt was upheld.

Here, Mauldin knew he was supposed to return at 9:00 a.m. on March 3 but instead made the conscious choice to honor a previously made commitment. That he asked his secretary to ask his lawyer to ask the court for another waiver before he left town does not, as argued by him, negate the wilfulness of his act in disregarding his duty to appear absent obtaining the waiver.

In this regard, his case is similar to In re Spruell, 227 Ga. App. 324, 325 (1) (489 SE2d 48) (1997). There, attorney Spruell was retained on the Thursday night preceding a DUI trial the following Monday. Spruell was already scheduled to leave the country on Friday for a remote area where he was going to take an extended vacation. Spruell filed a request for leave of absence and, subsequently, a motion for continuance but left town without knowing if the request had been granted.

Spruell contended that his conduct was not contemptuous because “it was impossible for him to appear on Monday, and one cannot be held in contempt for failing to do an act which is impossible for him to do.” Spruell, supra. Unlike Thomas v. Dept. of Human Resources, 228 Ga. App. 518 (492 SE2d 288) (1997), relied upon by Mauldin, in which the employee was without authority to alter the decision found contemptuous, both Spruell’s and Mauldin’s own conduct created the “impossibility” upon which they attempted to rely.

The evidence was sufficient.

2. Although acknowledging that the sentence imposed was within the statutory limits, Mauldin complains that three days of incarceration was cruel and unusual punishment, relying on Haygood v. State, 225 Ga. App. 81, 83 (2) (483 SE2d 302) (1997).

Haygood involved imposition of 12 months incarceration, a $1,000 fine (the maximum imprisonment and fine), and surcharges of $200 for Haygood’s criminal trespass by cutting her neighbor’s hedge and thereby encroaching a foot over their joint property line, which had been a matter of dispute. This Court found that sentence “grossly out of proportion to the severity of the crime.” Id. There, however, the trial court had initially offered Haygood a sentence of a fine of $625, 80 hours of community service on probation, and limited contact with her neighbor. When Haygood announced her intention to appeal, the maximum sentence was imposed. In light of this fact and because the dispute was basically over a property line, the maximum misdemeanor penalty was found cruel and unusual. McCrosky v. State, 234 Ga. App. 321, 323-324 (3) (506 SE2d 400) (1998).

Here, in contrast, the sentence imposed is rationally related to the contempt (failure to appear for his three remaining days of jury service), is within the statutory limits, does not appear grossly out of proportion to the conduct exhibited, and was not imposed after offering a lesser alternative which was withdrawn after the expression of the contemnor’s desire to appeal.

“ A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. (Cit.)’ [Cits.]” Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241) (1999). See McCrosky, supra.

That other sentencing options were put forward by the stipulations entered into by Mauldin and the State does not alter the conclusion that the trial court properly exercised its discretion in imposing sentence. Hunter v. State, 237 Ga. App. 803, 806 (3) (517 SE2d 534) (1999).

3. Finally, Mauldin contends he was deprived of due process by the trial court’s failure to “allow [him] to address the court directly and to present his defense in his own words,” based on In re Spruell, 200 Ga. App. 218 (407 SE2d 451) (1991).

At the beginning of the hearing, held pursuant to notice and based on a written petition for contempt, counsel for Mauldin stated to the court that “[i]t is not our intent to present any evidence other than what’s been included in the stipulation.”

Decided February 11, 2000

Kilpatrick Stockton, Michael W. Tyler, Audra A. Dial, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

The argument that he was thereafter deprived of due process is premised solely on the following statements of counsel:

[W]hat you’ve got is a person who had business commitments out of town but now recognizes and understands that his jury duty responsibility is the same as anybody else’s and, basically would like to appear to the court rather than in an evidentiary forum simply to apologize to the court for the error, and try to reach agreement as to what the appropriate response or penalty should be.

(Emphasis supplied.)

Thereafter, counsel said, “[h]e is here though and certainly is more than willing to express directly to the Court his sincere remorse and contrition over this.”

And finally, counsel stated, “[a]gain, Your Honor, nothing further from us, other, than to the extent the Court would like to hear directly from Mr. Mauldin.”

It is obvious from these statements that Mauldin was resting on the evidence as reflected in the stipulation and the argument made by his counsel. He was offering to further address the court, not to present evidence but to apologize, if the court so desired. That the court did not so desire cannot in any way be said to have deprived Mauldin of due process. Compare In re Spruell, 227 Ga. App. at 326 (2).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 15-6-8 (5) provides for imposition of a fine not exceeding $500 and imprisonment not exceeding 20 days.

       Mauldin missed his remaining three days of jury service.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A2161.
    GUERRERO v. TELLEZ et al.
    (529 SE2d 639)
   Smith, Judge.

We granted Olivares Guerrero’s application for interlocutory appeal to decide whether the trial court erred in denying his motion to dismiss a complaint filed against him. Guerrero sought dismissal on the ground that he had not been properly served and that the court lacked personal jurisdiction over him. We agree with Guerrero that he was not properly served, that the plaintiffs did not comply with the Georgia Nonresident Motorist Act, and that personal jurisdiction was lacking. We therefore reverse the trial court’s denial of Guerrero’s motion to dismiss.

The complaint sought damages incurred by Guillermo Tellez and Victor Moreno in an automobile collision in Chamblee, Georgia. In their response in opposition to Guerrero’s motion to dismiss, plaintiffs indicated they had originally filed suit in Whitfield County against Guerrero and Virginia Dominquez, the registered owner of the vehicle. They alleged that Dominquez had negligently entrusted her vehicle to Guerrero. Dominquez was served and answered but denied negligent entrustment. Plaintiffs’ counsel then received a letter from Dominquez’s counsel stating that Guerrero was a permissive user of Dominquez’s van and that Dominquez had no liability for negligent entrustment because she did not know Guerrero to be a reckless driver. Dominquez’s counsel further informed plaintiffs that they would not defend Guerrero unless he was first found and served. The plaintiffs subsequently dismissed the Whitfield County action.

Plaintiffs tried unsuccessfully to locate Guerrero. They attempted to verify the California address on his driver’s license and in the accident report through the post office and hired a skip tracer. In a report made nearly a year after the accident, the skip tracer indicated that Guerrero’s California driver’s license had expired, and she was unable to develop any information on his whereabouts. Plaintiffs then filed this action against Guerrero in DeKalb County.

Service of the complaint on Guerrero was attempted under the Georgia Nonresident Motorist Act, OCGA §§ 40-12-1 through 40-12-8. OCGA § 40-12-2 provides that service of process on a nonresident motorist is to be made by serving a copy of the complaint on the Georgia Secretary of State, and it is sufficient

provided that notice of such service and a copy of the complaint and process are forthwith sent by registered or certified mail by the plaintiff to the defendant, if his address is known, and the defendant’s return receipt and the plaintiff’s affidavit of compliance with this Code section are appended to the summons or other process and filed with the summons, complaint, and other papers in the case in the court wherein the action is pending.

Id.

Plaintiffs mailed a copy of the complaint and process by certified mail to Guerrero at the address on his driver’s license and in the accident report in Carlsbad, California. The certified mail was returned unclaimed after three attempts at delivery. Nevertheless, the plaintiffs then filed an affidavit of compliance with OCGA § 40-12-2, attaching a copy of the unsigned certified mail receipt and the envelope stamped “unclaimed.” Guerrero then filed his motion to dismiss on the grounds of insufficient service of process and lack of personal jurisdiction.

1. Guerrero contends the trial court erred in denying his motion to dismiss for insufficiency of service of process because the service requirements of OCGA § 40-12-2 were not met. We agree.

It is significant that the statute provides that service upon the Secretary of State is sufficient if notice is sent to the nonresident motorist defendant, “if his address is known,” and the “defendant’s” return receipt and the affidavit of compliance are attached to the complaint and filed. Since it is clear that Guerrero’s address was not known, his return receipt, indicating that he received the notice, could not have been filed. Because service by certified mail was not possible, service upon the Secretary of State under OCGA § 40-12-2 was insufficient. “Only when the notice authorized by statute is actually received can substituted service on an official of the State of venue become the equivalent of personal service. Failure to perfect service requires reversal.” (Citation and punctuation omitted.) Brown v. Meyer, 222 Ga. App. 133, 134 (2) (473 SE2d 521) (1996).

Although the trial court did not assign a reason for its finding of sufficient service, it apparently based its ruling on Bowers v. Winter, 228 Ga. App. 530 (492 SE2d 296) (1997), upon which the plaintiffs relied. In Bowers, this court held that service was sufficient under OCGA § 40-12-2 even though the return receipt indicated the letter was unclaimed after three attempts at delivery. Id. at 531. But in Bowers, the facts of the case were different. That defendant made little or no effort to receive or read his mail, which, unlike this case, was sent to the address where he actually resided. It was also undisputed that the plaintiff had complied strictly with the statute in all respects. We held there that the plaintiff should not be made to suffer the consequences of the “defendant’s nomadic lifestyle and defendant’s admitted neglect in collecting his mail.” Id. at 532. But Bowers does not provide authority for denying Guerrero’s motion to dismiss in this case. It is a basic requirement of due process that at least a reasonable probability must exist that the defendant received the notice of suit. Cheek v. Norton, 106 Ga. App. 280, 283 (126 SE2d 816) (1962). No evidence indicates that Guerrero ignored or refused the certified letter, which was sent to an address at which plaintiffs knew Guerrero did not reside.

2. We also agree with Guerrero that the trial court lacked personal jurisdiction. Personal service or valid substituted service is required before a court may obtain personal jurisdiction. See generally Nazli v. Scott, 203 Ga. App. 523, 525 (3) (417 SE2d 187) (1992). It is clear that in this case, Guerrero was never personally served. And we have determined that the substituted service attempted was insufficient because of plaintiffs’ inability to comply with the requirements of OCGA § 40-12-2. The trial court erred in denying Guerrero’s motion to dismiss on the ground of lack of personal jurisdiction. A contrary holding would not comport with due process. See Nat. Surety Corp. v. Hernandez, 120 Ga. App. 307, 309 (170 SE2d 318) (1969). The trial court erred in denying Guerrero’s motion to dismiss on the ground of lack of personal jurisdiction.

Decided February 11, 2000.

Hicks, Casey, Young & Barber, Mark A. Barber, Richard C. Foster, for appellant.

William H. Curtis, for appellees.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

       We note a plaintiff in this situation may not be without recourse. The uninsured motorist provisions in our law cover just such situations. OCGA § 33-7-11 (e) provides that a motor vehicle is deemed “uninsured” when the owner or operator is known and named as a defendant but resides out of state and cannot be found after due diligence. The complaint may then be served upon the plaintiff’s uninsured motorist carrier.


text:
    A99A2193.
    JONES v. THE STATE.
    (529 SE2d 644)
   Smith, Judge.

Garrett Delmar Jones, Jr. was convicted of both felony and misdemeanor obstruction of an officer. After the denial of his motion for new trial, Jones brought this appeal. Asserting five errors, Jones challenges the sufficiency of the evidence, the trial court’s refusal to give two charges he desired, and the court’s response to a question from the jury. Having determined that no reversible error occurred, we affirm.

The underlying case arose while two Richmond County sheriff’s deputies, Gary McCord and Richard Roundtree, wearing their full uniforms and badges, were performing security work at Smitty’s Lounge in Augusta. While so employed, McCord noticed Jones who was riding a bicycle in and around Smitty’s parking lot. Recognizing Jones and thinking that he remembered seeing outstanding felony warrants for him, McCord walked to his vehicle and by examining several warrant posters verified the existence of the warrants for Jones. McCord and Roundtree decided to approach Jones for an investigation. As McCord neared Jones, he called out, “Garrett,” and stepped in front of the bicycle. Jones immediately abandoned the bicycle and ran directly toward Roundtree who readied himself to intercept Jones. Jones struck the officer in the face with his fist as he attempted to run past him. At that point, McCord grabbed Jones. Jones struggled as both deputies attempted to subdue and restrain him. Jones continued to resist as the officers attempted to maneuver him toward a police cruiser, elbowing and kicking McCord repeatedly.

The commotion attracted a large crowd of about 200 people, and Jones started to incite the bystanders who began closing in menacingly upon the officers. Yelling obscenities, Jones challenged the crowd to intercede on his behalf. Roundtree radioed for help, and police units were summoned to the scene. Only with additional assistance could McCord and Roundtree manage to get Jones into the patrol car. By that time, McCord was bleeding and visibly injured.

At trial, Jones admitted fleeing from the officers but denied deliberately striking either officer. Jones testified that he was starting to leave “when the officer jumped . . . jumped in front of the bicycle like he was trying to arrest me, and that’s when I came off the bicycle and ran across the parking lot looking at him.” Jones testified that McCord, not he, had been the aggressor and McCord struck him. Jones claimed that McCord lied when testifying to the contrary. Jones denied hitting anyone or even struggling with the officers. He claimed that only after being knocked to the ground did he then attempt to get up. According to Jones’s version of events, he willingly walked to the patrol car. Jones testified that after the officers rushed him, he just instinctively attempted to get away.

1. Jones contends the evidence was not sufficient to sustain his conviction for felony obstruction.

A person commits the offense of felony obstruction of a law enforcement officer when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer. . . .” OCGA § 16-10-24 (b); Jackson v. State, 213 Ga. App. 520-521 (444 SE2d 875) (1994). Here, although the defendant’s testimony deviated significantly from the officers’, such differences were matters for the jury to resolve. Taylor v. State, 231 Ga. App. 73, 74 (1) (498 SE2d 552) (1998). When viewed in the light most favorable to the verdict, the evidence showed that when the officers attempted to interview Jones, for whom felony warrants were then outstanding, Jones obstructed that effort, attempted to flee, and refused to submit to their authority. In so doing, he struck and kicked them. See Pearson v. State, 224 Ga. App. 467, 468 (1) (480 SE2d 911) (1997). This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to sustain a conviction for felony obstruction. See Wilson v. State, 233 Ga. App. 688, 689 (1) (505 SE2d 774) (1998).

2. Jones asserts that the trial court erred in denying his motion for directed verdict. A motion for directed verdict is authorized only when there is no evidence to support a conviction. Yawn v. State, 237 Ga. App. 206, 207 (515 SE2d 182) (1999). Since there was sufficient evidence to sustain the conviction, the refusal to direct a verdict of acquittal based on sufficiency grounds was proper. Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996) (denial of directed verdict reviewed under sufficiency standard); see Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

3. Jones contends the trial court erred by refusing to give his requested charge on the use of force to resist an unlawful or illegal arrest.

Among other requirements, a jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law. Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997). When any part of the requested charge is confusing, inapt, incorrect, or not authorized by the evidence, denial of the request is proper. Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991).

The charge at issue provided: “One upon whom an illegal or unlawful arrest is being made has the right to resist the arrest with such force as is reasonably necessary to prevent the arrest.” But Jones made no showing that an unlawful or illegal arrest had taken place. See Singleton v. State, 194 Ga. App. 423 (1) (390 SE2d 648) (1990) (confirmation of an outstanding warrant establishes probable cause for arrest). Because the requested charge was not authorized by the evidence, the trial court properly refused to give it. Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992); Daniels v. State, 184 Ga. App. 689, 690 (1) (362 SE2d 775) (1987).

4. Jones maintains that the trial court erred by refusing to give his requested charge on one’s right to resist unlawful force used in making a legal arrest. The instruction at issue initially charged on the meaning of excessive force or an unlawful degree of force then stated:

A person being arrested, even though the arrest itself is lawful, has the right to resist the use of excessive and unlawful force by those making the arrest to the extent that the person reasonably believes that the degree of resistance used is necessary to defend against the officer’s use of unlawful or excessive force. In resisting, the person being arrested would not be authorized to use force which is unlawful or disproportionate to the amount of force necessary to prevent the unlawful force being used against the person.

Decided February 11, 2000.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Although Jones now argues that he had a right to resist the use of excessive force and that he was “unnecessarily pounded into submission by the police officers,” his own testimony belies that claim. While Jones did testify that police officers manhandled him with a choke hold and struck him in the mouth without provocation, Jones did not testify that he resisted arrest or used force to resist the force utilized by the officers. Instead, Jones testified, “I didn’t swing. I didn’t touch nobody.” In addition, Jones testified that he “didn’t refuse to go to that car or nothing” and had willingly walked to the patrol car. Since the evidence did not support the charge, the trial court properly refused to give it. Daniels, supra.

5. Jones asserts the trial court failed to respond properly to a question from the jury.

During deliberations, the jury sent two notes. The first one inquired, “[D]oes the felony charge require that the violence written in the indictment occurred or that any violence occurred?” The second note asked, “[P] lease restate the definition of felony obstruction.” The trial court then recharged the jury on the State’s burden to prove every material allegation of the indictment and to prove every essential element of the crime charged beyond a reasonable doubt and defined reasonable doubt. The court also reinstructed the jury as to felony obstruction and misdemeanor obstruction. After this recharge, the court inquired as to exceptions, and none were made. Defense counsel’s failure to object when given the opportunity to do so precludes Jones from raising this issue on appeal. Reynolds v. State, 231 Ga. App. 33, 37 (5) (497 SE2d 580) (1998).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Several of McCord’s teeth were knocked out, and Ms injuries required stitches. McCord, who had moved to Germany, did not appear at trial.


text:
    A99A2301.
    GRAHAM v. THE STATE.
    (529 SE2d 641)
   Smith, Judge.

William Thomas Graham was indicted on one count of possession of cocaine and one count of possession of more than an ounce of marijuana. He was tried by a jury jointly with a co-defendant, Allen Betsill, and he was found guilty on both counts. His motion for new trial was denied, and he appeals, alleging that the evidence was insufficient to support his convictions and that the trial court erred in charging the jury. Finding no error, we affirm.

1. Construed to support the jury’s verdict, the evidence presented at trial showed that at about 9:30 p.m. on March 18, 1997, Officer Allen Hastings of the Riverdale Police Department was on patrol when he observed a dark colored pickup truck pull in behind some businesses. Because the businesses were closed, Hastings’s suspicions were aroused. He pulled in behind the truck without activating his emergency lights and saw Graham leave the truck.

Approaching Graham, he advised him there had been several burglaries in the area and asked him why he was there. Graham replied that he was dropping the truck off to a friend, but he appeared unduly nervous to Hastings. In Hastings’s experience, this was more than the nervousness commonly displayed by those questioned by a police officer. He described Graham’s hands as “extremely trembling.” When asked for his driver’s license and proof of insurance, Graham turned over his license but said he did not know about proof of insurance because it was not his truck.

About that time, Betsill walked up from his shop and indicated the truck belonged to him. Hastings asked Betsill if he knew where his proof of insurance was, and he said he did. When asked to produce it, Betsill walked to the truck, leaned in, then hesitated, and looked back at Hastings. Betsill’s demeanor made Hastings “uncomfortable,” and he “felt like something was extremely wrong.” He therefore asked Betsill to step away from the truck and called for backup. In a few minutes, a backup officer arrived. Hastings asked Graham and Betsill for consent to search the truck, which was given. Hastings checked the console between the seats and discovered a large plastic bag containing marijuana and a small amount of cocaine wrapped in a lottery ticket. He then placed Graham under arrest. No drugs were found on Graham’s person.

After inventorying and impounding the truck and asking Betsill for consent to search the shop, the shop was searched quickly, using a dog, and nothing was found. The parties stipulated that the bag found in the truck’s console contained approximately 60 grams of marijuana and less than a gram of cocaine. The letters “TOM” were handwritten on the lottery ticket in which the cocaine was wrapped.

Graham argues that no evidence was presented that he had actual possession of the drugs because no contraband was found on his person and no evidence showed he had direct physical control of the contraband in the truck console. He contends that the State therefore was required to prove beyond a reasonable doubt that he was in constructive possession of the drugs, but that it showed only his spatial proximity to them, which was insufficient to support his conviction. We do not agree.

It is not required that the contraband be found on Graham’s person to show actual possession. Only direct physical control is necessary. Johnson v. State, 194 Ga. App. 743, 745 (3) (391 SE2d 716) (1990). The drugs were found in a console immediately adjacent to the driver’s seat. Hastings saw Graham drive the truck alone. No passengers were present, and the contraband was thus within Graham’s sole control. The lottery ticket in which the cocaine was wrapped bore Graham’s middle name. The record indicates that the jury asked whether it could consider this and that the judge instructed them that it was in evidence for their consideration.

Graham concedes that the State showed all this but argues that evidence was also presented to show equal access by Betsill. But the equal access rule applies only when the sole evidence of possession of contraband found in a vehicle is the defendant’s ownership or possession of the vehicle. Newman v. State, 216 Ga. App. 73, 75 (453 SE2d 117) (1995). Here, other evidence was presented as well. Graham was observed driving into the rear lot of a commercial and industrial area after normal business hours. His demeanor, as well as his presence, aroused suspicion, and his middle name on the lottery ticket was apparently considered by the jury. The equal access rule, as it pertains to Graham, was therefore not applicable.

2. Graham also contends that the trial court’s charge on equal access was incomplete and confusing because it was given only as to Betsill, as the owner of a vehicle, and not as to him, as the driver. This contention has no merit. Although Graham is correct that the equal access rule may sometimes apply to the driver of a vehicle, it is not applicable here because the jury was never charged on the presumption that Graham was in possession of the contraband because he was driving the truck. The equal access rule applies to overcome such a presumption, and where, as here, the jury is not charged as to such a presumption regarding the defendant, the equal access rule is not applicable. See Johnson, supra at 745 (3).

3. Graham also complains that the instruction to the jury contained an improper comment on the evidence in violation of OCGA § 17-8-57. We do not agree.

Decided February 11, 2000.

Emmett J. Arnold IV, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

At the end of the court’s charge on equal access as to Betsill, in which the court charged that ownership of an automobile permits an inference of possession of the vehicle and all its contents, the court charged the jury that if it found “that the automobile was used by others with a defendant, such evidence would not alone authorize a conviction but such a fact, is a fact, should be considered by you together with all the evidence in the case in passing upon the guilt or innocence of a defendant.” (Emphasis supplied.) As we understand it, Graham argues that this portion of the charge implied that the truck had, in fact, been used concurrently by the defendant and another person and, that in context, it led the jury to believe that he and Bet-sill had been in the truck at the same time, furthering the inference that the equal access defense was available only to Betsill.

It is clear, however, that this was not a comment on the evidence. The context surrounding the word “is” makes it evident that the word meant was “if.” The jury could not have been confused or misled by this slip of the tongue. “[A] mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury is not reversible error.” (Citation and punctuation omitted.) Fruhling v. State, 233 Ga. App. 544, 545 (5) (505 SE2d 47) (1998).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Betsill was arrested after Graham, and Betsill and Graham were indicted jointly. Betsill was acquitted at trial.


author: Phipps, Judge.

text:
    A00A0038.
    KNIGHT v. THE STATE.
    (528 SE2d 855)
   Phipps, Judge.

Following denial of his motion for new trial, Willie Knight appeals his conviction of trafficking in cocaine. He challenges the sufficiency of the evidence, the legality of the traffic stop through which the evidence was obtained, and the effectiveness of his attorneys’ representation.

Knight’s co-indictee Evans pled guilty to possession of cocaine with intent to distribute and appeared as a State’s witness at Knight’s trial. He testified as follows. On July 22, 1994, he agreed to accompany Knight on an unspecified errand which Knight said he had to run. At approximately 2:30 to 3:00 p.m., Knight drove them to a restaurant in a rental car. At the restaurant, Knight informed Evans that he needed to go to a Smile gasoline station on Fifteenth Street to consummate a drug transaction. En route, Knight stopped the car at a church, took out a set of scales, weighed an amount of cocaine, and sold it to a man who had approached the car. As Knight drove away, he gave Evans a plastic bag containing the remaining cocaine, money, and the scale and asked Evans to hold them. Knight then informed Evans that they were going to the Smile station to make the other cocaine sale. While stopped at a traffic light on the way there, they were abruptly surrounded by police vehicles.

City of Augusta Police Detectives Howell and Patterson emerged from one of the vehicles and approached Knight’s car. Howell effectuated the stop based on information from a confidential source that a described individual would be driving a certain vehicle in which he would be transporting approximately two ounces of cocaine to a Smile gas station on Fifteenth Street between 3:00 and 4:00 p.m. on the day in question. Knight fit the description that was given and was driving the described car to the specified location during the predicted time interval.

After Howell and Patterson approached Knight’s car, the plastic bag containing the cocaine was observed in plain view in Evans’s lap. Evans, Knight, and the car were then searched. The electronic scale was found in Evans’s pants pocket, and another electronic scale and a hand-held scale were found in the glove compartment. Evans was also found to be in possession of $903. He testified that Knight had given him $900. The officers discovered paperwork which showed that Knight had rented the car. They also found a key to a local motel room where Knight had been staying. Evans testified that Knight later offered him a large sum of money if he would implicate only himself in the crime.

1. Knight challenges the sufficiency of the evidence to support his conviction of trafficking in cocaine on the ground that the only evidence against him was the uncorroborated testimony of accomplice Evans.

“Any person who ... is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... in violation of [the Georgia Controlled Substances Act] commits the felony offense of trafficking in cocaine. . . ,”

Here, the cocaine was found in plain view of Knight in the lap of the front seat passenger of the car Knight was driving. Under the circumstances, the jury was authorized to find that the cocaine was in Knight’s joint, constructive possession. Indisputably, the cocaine consisted of more than twenty-eight grams of a mixture with a purity of more than ten percent of cocaine. Testimony given by Howell provided circumstantial evidence of Knight’s trafficking in cocaine by showing that his possession of the scale and his use of a rental car and motel room are characteristic of methods of operation employed by drug traffickers.

[T]he sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. [T]he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

There was ample corroborating evidence to support the verdict. Viewed in a light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to find Knight guilty beyond a reasonable doubt.

2. Asserting that the stop of his vehicle was unsupported by probable cause or reasonable suspicion and was thus unlawful, Knight contends that the court erred in denying his motions to suppress physical evidence seized and his motion in limine to exclude testimony derived as a result of the stop.

Knight argues that the stop was unlawful because it was based on information from an informant of unproven reliability. This argument is without merit. Howell testified that he had ascertained that the source had provided information to the Richmond County Sheriff’s Department that led to at least three felony arrests. Contrary to arguments advanced by Knight, the information provided by the source thus bore more indicia of reliability than information provided by an anonymous informant. And even if the stop had been based on an anonymous tip, the information proved reliable enough to provide reasonable suspicion of criminal activity. The information, as corroborated, included “a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.”

Decided January 26, 2000 —

Reconsideration denied February 14, 2000

3. Finally, Knight contends that the court erred in denying his motion for new trial on the basis of ineffective assistance of counsel.

To establish a claim of ineffective assistance of counsel, [Knight] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Knight] must establish both the performance and the prejudice components of the Strickland test.

The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

Knight was originally represented by attorney Fleming. He charges Fleming with ineffective assistance because he allowed co-counsel to question witnesses and present oral argument at the hearing on the motion to suppress and because he waived Knight’s right to a preliminary hearing. Although Knight argues that he would have been exonerated at the preliminary hearing, he was convicted at trial. Knight has not pointed to anything that Fleming could or would have done differently than his co-counsel at the suppression hearing and, therefore, has shown no prejudice by counsel’s actions.

Before trial, attorney Dunstan became Knight’s defense counsel because Fleming was also representing Evans. Knight charges Dunstan with ineffective assistance because he did not spend sufficient time consulting with him in preparation for trial and because he did not request a charge on the lesser included offense of cocaine possession. In his testimony, Dunstan averred that he spent ample time with Knight in preparing for trial and that he did not request a jury instruction on the lesser included offense because Knight was unequivocally opposed to the idea. The trial court’s determination that Knight was not denied effective assistance is not clearly erroneous.

Judgment affirmed.

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

Sam B. Sibley, Jr., for appellant.

Willie F. Knight, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

       OCGA § 16-13-31 (a) (1).

       (Citations and punctuation omitted.) Harrison v. State, 259 Ga. 486, 488 (1) (384 SE2d 643) (1989).

       See Sharpe v. State, 213 Ga. App. 280, 282 (1) (444 SE2d 600) (1994) and cits.

       See id. and cits.; compare Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994).

       See Bentley v. State, 214 Ga. App. 580, 582 (2) (448 SE2d 479) (1994).

       (Citations and punctuation omitted.) VonLinsowe v. State, 213 Ga. App. 619, 621 (1) (445 SE2d 371) (1994); see Thomas v. State, 231 Ga. App. 173 (498 SE2d 760) (1998).

        Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996).

        Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).


text:
    A99A1882.
    ALLEN v. THE STATE.
    (533 SE2d 401)
   Phipps, Judge.

Calvin Allen was convicted of child molestation and enticing a child for indecent purposes. Allen appeals, raising two enumerations of error. First, he asserts that the trial court erroneously instructed the jury that statements the victim made to him regarding her age were irrelevant. We find that in the context of the court’s instruction, it was a correct statement of the law and did not mislead the jury. Second, he asserts that similar transaction evidence was erroneously admitted because the State did not announce a purpose for the evidence in its notice of intent to present such evidence. We find that Allen has failed to show that he was prejudiced by the State’s failure to include a statement of purpose in its notice. For these reasons, we affirm Allen’s convictions.

On December 13, 1997, the victim, V. S., went to the home of a friend, T. G., to get her hair done. V. S. was 14 years of age, and T. G. was 15. Allen, the 25-year-old boyfriend of T. G.’s mothér, was. at T. G.’s home while V. S. was there. After V. S. got her hair done, Allen took her and T. G. to visit friends and to a mall. Later, under the guise of giving V. S. a ride home, Allen drove her down a dirt road and attempted to have sexual intercourse with her.

1. After the jury retired for deliberations, it returned with a question about “what type of proof is required by the adult figure to satisfy his thoughts and the state law” to show that he believed in good faith that the complainant was not a child, i.e., that she was 16 years of age or older. The judge recessed the proceedings for the day to research the jury’s question, and the next morning, he instructed them:

[A] [d]efendant’s knowledge of the age of an alleged victim in the charges contained in this indictment is not an essential element of the crimes charged in this bill of indictment. And, therefore, it is not a defense that an accused reasonably believed that an alleged victim was not under the age of sixteen years. Our law does not prescribe any particular proof in regards to the question that you asked yesterday in a matter such as this, because that matter is not relevant for the question or issues for you to decide in this case.

On appeal, Allen concedes that under Georgia law his mistaken belief regarding V. S.’s age was not a defense. But he argues that any statements made by V. S. regarding her age were relevant to determining her actual age. And he argues that the judge misled the jury to believe that V. S.’s statements about her age had no relevance to any issues in the case.

These arguments are without merit. The clear focus of both the jury’s question and the court’s response was Allen’s perception of V. S.’s age. Taken in context, “ ‘[w]e do not believe that the charge as a whole would mislead a jury of average intelligence.’ [Cit.]”

2. Uniform Superior Court Rule 31.3 (B) provides general content requirements for notices of the prosecution’s intent to present similar transaction evidence. It does not include a requirement that the notice state the purpose for which the evidence is sought to be admitted. However, “ ‘the notice of intent to introduce evidence of similar crimes should clearly specify the proper purpose for which' introduction of such evidence is sought. . . . (Cit.)’ [Cit.]” A statement of purpose advances two aims. First, it allows the defendant the opportunity to investigate the validity, relevancy, and other aspects of the prior offenses. Second, it assists the court in making the essential preliminary determination of whether the State is seeking to introduce the evidence for an appropriate purpose. Reversible error does not automatically accrue from the absence of a purpose declaration in the notice, however.

The State presented evidence that on July 18, 1993, while Allen was supposed to be taking a woman home from a nightclub, he drove her out of the way to a dirt road and sexually assaulted her. Although no purpose for the evidence was declared in the notice to Allen, the prosecutor did say at the beginning of the Rule 31.3 (B) pretrial hearing that he was seeking to show a common bent of mind, motive, modus operandi, and lustful disposition. After hearing evidence of the prior offense and argument from counsel, the court found that evidence of the prior offense was admissible to show bent of mind, course of conduct, and lustful predisposition.

Decided February 15, 2000.

Closson & Bass, J. Michael Bass, for appellant.

J. David Miller, District Attorney, Jennifer A. Thomas, Assistant District Attorney, for appellee.

Allen has never stated that he was surprised by the purposes articulated by the State. Upon hearing the purposes for which the evidence would be offered, he did not move for a continuance to investigate the validity, relevancy, or other aspects of admissibility of the prior offense. Although the State’s notice should have specified the proper purpose for which introduction of the evidence was sought, Allen has failed to show that he was prejudiced by the State’s failure to include a statement of purpose in its notice of intent to present similar transaction evidence.

Judgment affirmed.

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

       See Veasey v. State, 234 Ga. App. 795, 796-797 (4) (507 SE2d 799) (1998) (defendant’s knowledge of complainant’s age not an element for child molestation); OCGA § 16-6-5 (statute for enticing a child for indecent purposes does not contain a knowledge element); see also Phagan v. State, 268 Ga. 272, 278 (3) (c) (486 SE2d 876) (1997) (knowledge of the age of the victim not an essential element of statutory rape); Brown v. State, 233 Ga. App. 195 (504 SE2d 35) (1998) (because codification of contributing to the delinquency of a minor contains the word “knowingly,” knowledge of the subject’s age must be proven).

        Leigh v. State, 223 Ga. App. 726, 731 (3) (478 SE2d 905) (1996).

        Rodriguez v. State, 211 Ga. App. 256, 258 (4) (a) (439 SE2d 510) (1993).

       Id.; Hawks v. State, 223 Ga. App. 890, 891 (1) (479 SE2d 186) (1996).

       Compare id.


author: Ellington, Judge.

text:
    A00A0140.
    NEIDIGER/TUCKER/BRUNER, INC. v. SUNTRUST BANK.
    (530 SE2d 18)
   Ellington, Judge.

In this action, Neidiger/Tucker/Bruner, Inc. (“NTB”), a broker-dealer, sought damages from SunTrust Bank, as transfer agent for Allegiant Physicians Services, Inc., in connection with the sale of certain shares of Allegiant stock pledged by two customers of NTB as collateral for margin trading accounts. The trial court dismissed NTB’s complaint against SunTrust for failure to state a claim. NTB appeals and contends that the trial court erred in concluding that SunTrust owed no common law or statutory duty to NTB. We agree and reverse.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

When examining a complaint to determine whether the facts asserted therein state a claim for relief under which the plaintiff may recover, it is not necessary to find that the complaint is perfect in form or that it sets out all of the issues with particularity. It is only necessary that the complaint place the defendant on notice of the claim against him.

(Citations and punctuation omitted.) Andemeskel v. Waffle House, 227 Ga. App. 887 (2) (490 SE2d 550) (1997).

Construed in favor of NTB as the nonmovant, the facts are assumed to be as follows: two companies controlled by Dr. Jay Gilon, Los Angeles Neurophysical Center, Inc. (“LAN”) and Western Financial Research Corporation, each purchased 500,000 shares of Allegiant stock directly from Allegiant, the “issuer” of the stock as defined by the Georgia Commercial Code. See OCGA § 11-8-201. LAN and Western did not pay for the Allegiant stock but gave Allegiant promissory notes totaling $1 million. LAN and Western agreed not to sell, pledge or hypothecate the Allegiant shares until the notes were paid in full and the shares were registered under applicable securities laws. SunTrust had actual knowledge of the restrictions on the transfer of the LAN and Western shares. Acting as Allegiant’s “transfer agent,” SunTrust prepared stock certificates for the LAN and Western shares which did not bear a legend referring to the restrictions on the transfer of those shares. In violation of their agreement with Allegiant and the restrictions on transfer, LAN and Western pledged the shares and delivered the stock certificates to NTB as collateral for margin trading accounts. Before accepting the stock as collateral, NTB called SunTrust to confirm that there were no restrictions on transfer, and a representative of SunTrust said there were none. NTB sold 310,000 of the pledged shares to cover margin calls on the LAN and Western accounts. SunTrust then informed NTB that the shares were unregistered, that there were restrictions on the shares and that Allegiant had issued a stop transfer order. NTB had to spend $508,000 to buy enough shares of Allegiant on the open market to cover the shares it had contracted to sell before it learned of the restrictions and stop transfer order.

NTB framed its complaint in four counts: (1) a claim for general negligence; (2) a claim for negligent misrepresentation for SunTrust’s failure to note the transfer restrictions on the certificates and its failure to disclose restrictions in response to the telephone inquiry; (3) a claim for conversion for SunTrust’s refusal to register the transfer of the shares NTB sold to cover the margin calls; and (4) a claim for violation of OCGA § 11-8-204 for SunTrust’s refusal to register the transfer of the shares. As to the simple negligence and negligent misrepresentation claims, the trial court found that SunTrust owed no duties directly to NTB in that it was not among the limited class of persons whom SunTrust was actually aware would rely on the information SunTrust prepared in its professional capacity. As to the conversion claim, the trial court found that NTB did not allege an essential element: an act of dominion by SunTrust over NTB’s property. As to the OCGA § 11-8-204 claim, the trial court found that the section does not impose any duty on a transfer agent.

1. We conclude that NTB’s complaint stated a cause of action for negligent misrepresentation. Georgia adopted the standard for negligent misrepresentation set out in Restatement of Torts 2d, § 552 (1977). See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983).

Under this standard, one who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.

Id. The Supreme Court later clarified that professional liability for negligence did not extend

to an unlimited class of persons whose presence is merely “foreseeable.” Rather, professional liability for negligence . . . extends to those persons, or the limited class of persons who the professional is actually aware will rely upon the information he prepared.

Badische Corp. v. Caylor, 257 Ga. 131, 133 (356 SE2d 198) (1987). Although NTB does not contend that SunTrust was actually aware that NTB specifically would rely on the stock certificates, the Uniform Commercial Code (UCC) goes beyond the general duty on professionals who supply information and imposes a specific duty on those who prepare and issue stock certificates to accurately disclose restrictions on the transfer of the shares. OCGA § 11-8-204 (UCC 8-204) provides:

[a] restriction on transfer of a [certificated] security imposed by the issuer, even if otherwise lawful, is ineffective against a person without knowledge of the restriction unless: . . . [t]he restriction is noted conspicuously on the security certificate.

Dean Witter Reynolds, Inc. v. Selectronics, 594 NYS2d 174, 177 (App. Div. 1993) (purchaser without knowledge). The protection provided by UCC 8-204 against a restriction not conspicuously noted on the security extends to a pledgee such as a broker-dealer with whom stock is deposited and who sells the stock at the instruction of the depositor. Edina State Bank v. Mr. Steak, 487 F2d 640, 644 (10th Cir. 1973) (Colorado law), cert. denied, 419 U. S. 883 (95 SC 150, 42 LE2d 123) (1974). This section “places the risk upon the issuer of consequences flowing from its failure to note restrictions on transfer on the face of a security” and thereby subjects the issuer to a claim for damages. DeWitt v. American Stock Transfer Co., 433 FSupp. 994, 1001 (S.D. N.Y. 1977).

The transfer agent may also be liable under OCGA § 11-8-204 via OCGA § 11-8-406 which imposes a duty upon the transfer agent co-extensive with that of the issuer. DeWitt, 433 FSupp. at 1001. Thus we conclude that the class of persons for whom information regarding restrictions on the transfer of certificated securities was intended, either directly or indirectly, includes, at a minimum, those who regularly buy and sell such securities and those who regularly accept pledges of such securities as collateral for loans, margin accounts and similar transactions. As a result, NTB’s complaint stated a cause of action for negligent misrepresentation for Sun-Trust’s failure to disclose restrictions on the transfer of the Allegiant certificates, and the trial court erred in dismissing that claim.

2. We hold that NTB’s complaint also stated a cause of action in the nature of a claim for conversion, the parties’ respective rights and obligations being rooted in OCGA §§ 11-8-204,11-8-401 and 11-8-406 taken together. We conclude that as a transfer agent SunTrust had a duty to register transfers of certificated securities despite restrictions on the transfer of the securities imposed by the issuer where the restriction was not noted conspicuously on the security certificates and where the buyers lacked knowledge of the restrictions.

Decided February 15, 2000.

OCGA § 11-8-401 (a) (UCC 8-401 (a)) requires an issuer to register transfers of securities which meet certain conditions. The wrongful refusal to transfer gives the transferor a claim in the nature of conversion against the issuer. Edina State Bank, 487 F2d at 644. Under proper circumstances, the transferee may also pursue a claim for conversion. DeWitt, 433 FSupp. at 1000.

As discussed above in Division 1, the protection provided by UCC 8-204 against a restriction not conspicuously noted on the security extends to purchasers and pledgees. Edina State Bank, 487 F2d at 644; Dean Witter, 594 NYS2d at 177; DeWitt, 433 FSupp. at 1000. Taken together, OCGA §§ 11-8-204 and 11-8-401 (UCC 8-204 and 8-401) require the issuer to register a transfer presented in proper form, even if there were secret restrictions, if the purchaser or pledgee was ignorant of the restrictions. See Dean Witter, 594 NYS2d at 177; Broadcort Capital Corp. v. Summa Med. Corp., 972 F2d 1183, 1188-1189 (10th Cir. 1992) (New Mexico law). The issuer may be held liable for conversion for refusing to register a transfer under these circumstances. Id. at 1192; Edina State Bank, 487 F2d at 644; Dean Witter, 594 NYS2d at 177; DeWitt, 433 FSupp. at 1000.

The issuer’s duties are extended to the transfer agent under OCGA § 11-8-406 (UCC § 8-406) which imposes on a transfer agent, with regard to the particular functions performed, the same obligation to the holder or owner of a certificated security as the issuer has in regard to those functions. DeWitt, 433 FSupp. at 1001; see also American Securities Transfer v. Pantheon Indus., 871 FSupp. 400, 403-405 (D. Colo. 1994); Dean Witter, 594 NYS2d at 177.

NTB’s complaint put SunTrust on notice of its claims for relief: that Dr. Gilon, through LAN and Western, used Allegiant certificates prepared by SunTrust to defraud NTB and that NTB’s damages flowed from SunTrust’s failure to indicate restrictions on the transfer of the Allegiant stock on the certificates it prepared, as the Commercial Code required it to do. Under the Commercial Code and the persuasive authorities cited herein, evidence could be introduced which would sustain a grant of relief to NTB, and the trial court erred in dismissing the complaint for failure to state a claim.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

Brock, Clay, Wilson & Rogers, David J. Larson, for appellant.

Arnall, Golden & Gregory, Robert L. Rothman, Aaron M. Danzig, for appellee.

       Article 8 of the UCC and the corresponding part of the Georgia Commercial Code were amended in 1998. As all events relevant to NTB’s action occurred in 1995, the 1998 revisions do not apply in this case.


text:
    A00A0195.
    GALLIMORE v. THE STATE.
    (529 SE2d 668)
   Phipps, Judge.

Following denial of his motion for new trial, Elvin Gallimore appeals his conviction of driving under the influence of alcohol to the extent that he was a less safe driver. Consistent with Georgia law, the trial court charged the jury that defendant’s refusal to permit a chemical analysis of his blood at the time of his arrest gave rise to a rebuttable inference that the test would show the presence of alcohol or some other prohibited substance. The issues raised by Gallimore are whether there is probative evidence that he refused to submit to testing and whether there is sufficient evidence to support the verdict.

In evaluating a challenge to the sufficiency of the evidence, we construe the evidence in the light most favorable to uphold the verdict. It is a function of the jury and not of the appellate court to weigh conflicting evidence and judge the credibility of witnesses.

Viewed in accordance with these principles, the evidence shows that at approximately 1:00 a.m. on April 28, 1997, City of Atlanta Police Officer Mathis responded to the scene of an accident. Officer Mathis observed Gallimore standing by an overturned pickup truck. The road was wet due to rain, and Gallimore acknowledged that he had been driving the truck. Officer Mathis testified that as he spoke with Gallimore, he detected a strong odor of alcoholic beverage on Gallimore’s breath, an odor which pervaded his patrol car after he placed Gallimore there. According to Officer Mathis, Gallimore could not maintain his balance even though he did not appear to be injured or sick. Moreover, his speech was irregular, and his eyes were glassy. Officer Mathis testified that Gallimore admitted that he had been drinking, but, because of road conditions, no field sobriety evaluations were performed. Instead, Officer Mathis gave Gallimore implied consent warnings and asked if he would submit to a state-administered blood test. Gallimore agreed, and Officer Mathis summoned another officer to transport Gallimore to the detention center where the test could be administered.

Decided February 15, 2000.

L. Paul Cobb, Jr., for appellant.

Joseph J. Drolet, Solicitor, Gerald Mason, Assistant Solicitor, for appellee.

When Officer Mathis began testifying as to events that transpired at the center while he was not there, Gallimore’s hearsay objection was sustained. Officer Mathis then testified without objection that after he was summoned to the detention center, he signed a form verifying that Gallimore had refused to submit to a blood test.

Mathis’s testimony as to his own conduct and observations authorized the jury to find that Gallimore had refused to submit to testing. And the evidence was sufficient for a rational trier of fact to conclude beyond a. reasonable doubt that Gallimore was guilty of being a less safe driver because he was under the influence of alcohol.

Judgment affirmed.

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

       See OCGA § 40-6-392 (d); Mendoza v. State, 196 Ga. App. 627, 629 (2) (396 SE2d 576) (1990).

        Anderson v. State, 237 Ga. App. 595, 596 (3) (516 SE2d 315) (1999).

        Porter v. State, 224 Ga. App. 276, 279 (2) (480 SE2d 291) (1997).

        Garrett v. State, 230 Ga. App. 97 (2) (495 SE2d 579) (1998); compare Groom v. State, 187 Ga. App. 398 (2) (370 SE2d 643) (1988).


author: Blackburn, Presiding Judge.

text:
    A00A0257.
    LOWERY v. THE STATE.
    (530 SE2d 22)
   Blackburn, Presiding Judge.

Following a jury trial, Londrako Lowery appeals his conviction of aggravated assault contending that the evidence was insufficient to support the verdict.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Lowery] 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 standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jack son is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

1. In the present case, several eyewitnesses testified that Lowery shot a gun at the victim during a fight in a parking lot. The victim testified that while he and Lowery were fighting, Lowery hit him several times with a gun before Lowery fired the gun, wounding him. Melissa Gilreath testified that Lowery hit the victim several times with the butt of a gun during a fight. Gilreath also testified that she saw Lowery put the gun to the victim’s head before she heard the gun fire. Marcelino Miller testified that Lowery walked off after he and the victim had been fighting. Lowery then came back to the area with a gun. Lowery then hit the victim with the gun before "the gun went off.”

The jury convicted Lowery of aggravated assault but acquitted him on a simple battery charge. The offense of aggravated assault is committed by a person who assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Based upon the eyewitness testimony, we conclude that a rational trier of fact could have found Lowery guilty of aggravated assault beyond a reasonable doubt. See Jackson, supra.

2. Lowery contends that the evidence was insufficient because the jury acquitted him of a simple battery count also resulting from the subject incident. Lowery contends that the verdict cannot stand because the conviction of aggravated assault is inconsistent with an acquittal of the simple battery count because the same witnesses testified as to conduct showing both the simple battery and the aggravated assault. Lowery’s argument is without merit.

[I]n Milam v. State, 255 Ga. 560[, 562 (2)] (341 SE2d 216) [(1986)], [the Supreme Court of Georgia] rejected the inconsistent verdict rule in criminal cases. Milam involved a criminal defendant charged with two murders committed at the same time. The jury returned a verdict of not guilty by reason of insanity as to one murder, and guilty but mentally ill as to the other murder. [The Supreme Court] affirmed, ruling that there was no error inherent in the inconsistency between the conviction and acquittal. The Milam ruling stands for the proposition that a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count. Likewise, virtually all other Georgia cases affirming Georgia’s abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.

Decided February 15, 2000.

William A. O’Dell, for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

(Footnotes omitted.) Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996).

As the Supreme Court of Georgia has previously rejected Lowery’s argument regarding inconsistent verdicts, we find that it is without merit.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       An assault is committed by a person who “[attempts to commit a violent injury to the person of another; or . . . [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2).


author: McMURRAY, Presiding Judge.

text:
    A00A0368.
    WATTS v. PROMINA GWINNETT HEALTH SYSTEM, INC. et al.
    (530 SE2d 14)
   McMURRAY, Presiding Judge.

Maggie Watts was taken by ambulance to the emergency room of Gwinnett Medical Center (“Gwinnett”) after sustaining injuries in a vehicular collision. She was treated and released. The total bill for services rendered was $786.10. Watts had health insurance coverage through Kaiser Permanente Insurance Company (“Kaiser”). Kaiser and Promina Gwinnett Health System, Inc., on behalf of its participating hospitals, including Gwinnett, have entered into an “Agreement for Hospital Services” (“Agreement”), which requires Gwinnett to charge a flat fee of $216 to Kaiser’s insureds for “[a]ny treatments) performed in the emergency room that does not result in an admission or any outpatient surgery.” Gwinnett billed Kaiser $786.10; Kaiser paid $166; and Watts made a co-payment of $50, leaving a balance of $570.10. Gwinnett also filed a hospital lien in the Superior Court of Gwinnett County in the amount of $786.10. Watts later sued the tortfeasor and settled that action for $15,000. Kaiser asserted a subrogation claim for $539. Watts paid the hospital’s lien in full and settled Kaiser’s subrogation claim for $400. Gwinnett refunded $50 to Watts and $166 to Kaiser. Kaiser thus recovered a total of $566.

Watts then filed suit against Kaiser and Gwinnett. The allegations against Gwinnett include breach of contract for charging fees in excess of the flat fee set out in the Agreement and failing to pay attorney fees under OCGA § 15-19-14 (b); breach of good faith and fair dealing; violation of the Georgia Racketeer Influenced & Corrupt Organizations Act; conversion; fraudulent concealment; money had and received; and unjust enrichment. The claims were based on Gwinnett’s recovery of $570.10 more than the flat fee in the Agreement. At the heart of this dispute is Article C, Compensation, Section C-l, which states in relevant part:

No Charges to Members: Participating Hospitals will look solely to [Kaiser] for compensation for Hospital Services rendered to Members under this Agreement. . . . Participating Hospitals agree that in no event . . . shall Participating Hospitals bill, charge, collect a deposit from, seek compensation, remuneration or reimbursement from, or have any recourse against any Member for Hospital Services provided pursuant to this Agreement.

Gwinnett answered and counterclaimed for declaratory judgment, asserting affirmative defenses of waiver, estoppel, preemption pursuant to 29 USC § 1001 et seq., and accord and satisfaction. In its counterclaim, Gwinnett sought a declaration that the Agreement did not prohibit it from filing a lien to recover fees for services rendered to Watts out of her recovery from the tortfeasor. Gwinnett also alleged the assignment of benefits Watts executed in the emergency room permitted Gwinnett to recover full payment pursuant to the lien. The assignment states in relevant part:

I hereby irrevocably assign and transfer to Gwinnett Hospital System and treating Physicians all benefits and payments now due and payable or to become due and payable to me under any insurance policy or policies. ... I understand and acknowledge that this assignment does not relieve me of my financial responsibility for all hospital charges and treating Physicians charges incurred by me . . . , and I hereby accept such responsibility, including but not limited to payment of those fees and charges not directly reimbursed to the Hospital and treating Physicians by any insurance policy. . . .

Summary judgment was granted to Gwinnett on all claims, and this appeal followed. Held:

1. Watts’ first and third enumerations will be considered together. She first enumerates as error the trial court’s implicit ruling that the Agreement did not preclude Gwinnett from recovering, pursuant to its lien, the entire amount of its bill. In her third enumeration, she claims that the trial court erred in impliedly finding that the hospital’s charges were reasonable. Her arguments are not persuasive.

Initially, we note that summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684).

Gwinnett filed a lien pursuant to OCGA § 44-14-470 (b), which provides that a hospital “shall have a lien for the reasonable charges for hospital . . . care and treatment. . . upon any and all causes of action accruing to the [injured] person to whom the care was furnished. . . .” Under the statute, Gwinnett had a valid lien on Watts’ cause of action against the tortfeasor for the reasonable charges for the care it provided to Watts. Thomas v. McClure, 236 Ga. App. 622, 623 (1) (513 SE2d 43). As for Gwinnett’s bill, “the hospital established a prima facie case in its favor when it showed every element of service and its cost, a prior agreement by the patient to pay for the hospital’s services, and a failure to object to the billing, followed by [full] payment.” LaVeau v. Republic Health Corp. &c., 181 Ga. App. 106, 107 (1) (351 SE2d 506).

Viewing the evidence most favorably to Watts, the record reveals a bill showing all services provided and their costs, a guaranty of payment executed by Watts, and payment.

Under OCGA § 13-1-13,

[p]ayments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.

Pursuant to the voluntary payment doctrine embodied in the statute,

“the party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. (Cit.)” Ins. Co. of North America v. Kyla, Inc., 193 Ga. App. 555, 556 (388 SE2d 530) (1989).

Rod’s Auto Finance v. Finance Co., 211 Ga. App. 63 (1) (438 SE2d 175).

In the case sub judice, it is undisputed that Watts possessed all the material facts when she satisfied Gwinnett’s lien in full. Indeed, she was represented by counsel, who certainly was in a position to determine the truth. Watts argues only that she was “required” to pay the lien upon settlement of her personal injury action, without offering any reason therefor. Accordingly, Watts cannot now complain that the hospital’s charges either exceeded those permitted by the Agreement or were unreasonable.

No case cited by Watts mandates a contrary result. Unlike the case sub judice, the challenge to the hospital’s bill was timely preserved in each cited case. Labombard v. Samaritan Health System, 275 Ariz. Adv. Rep. 28 (991 P2d 246), for example, is an interpleader action filed by an insurer to determine whether the hospital or the patient was entitled to funds remaining after settlement with the tortfeasor. In Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425 (597 NW2d 462), the tortfeasor’s insurer satisfied the hospital’s lien over the patient’s protest upon settlement of the patient’s personal injury action against the tortfeasor, and the patient then sued the hospital to recover a disputed amount. In Nahom v. Scottsdale Mem. Hosp., 180 Ariz. 548 (885 P2d 1113), the insured’s estate sued to recoup monies the decedent’s two insurers paid to the hospital in excess of the flat fee the hospital had agreed to charge under its contract with one of the insurers. The contract did not contain a coordination of benefits clause. The court held that the hospital could not recover the excess fees because the contract stated that the hospital had agreed to accept the fixed amount “as payment in full for covered services.”

Watts has cited no case in which a patient successfully challenged the hospital’s bill after voluntarily paying it in its entirety. She has, therefore, waived any such challenge.

2. In her fourth enumeration, she alleges that the assignment of benefits clause she executed did not permit Gwinnett to recover its charges from her settlement with the tortfeasor. As we held in Division 1, having failed to object to Gwinnett’s recovery from the settlement proceeds prior to payment of Gwinnett’s lien in full, Watts has waived this complaint.

3. Next, she asserts Gwinnett improperly used its lien to collect nonhospital charges on behalf of Kaiser. In effect, she claims that Kaiser was overpaid $27. Any claim she may have in this regard must be asserted against Kaiser, not Gwinnett.

4. In her final enumeration, Watts contends that Gwinnett is required to pay a pro rata share of the attorney fees she incurred in obtaining a settlement from the tortfeasor on the basis that her attorneys made possible Gwinnett’s full recovery of its bill. We disagree.

We note that the law firm of Harkins & Henry filed the hospital lien on Gwinnett’s behalf, for which the firm received 15 percent of the $786.10 it collected. Therefore, Harkins & Henry deserves equal credit with Watts’ counsel for obtaining full payment for medical services Gwinnett provided to Watts. Also, Gwinnett’s payment was reduced by the attorney fees paid to Harkins & Henry. As Watts acknowledges in her appellate brief, it is well established that each litigant is generally obliged to bear his or her own attorney fees. Dee v. Sweet, 268 Ga. 346, 348, n. 1 (489 SE2d 823). That is what happened here.

Contrary to Watts’ contention, Ramsey v. Sumner, 211 Ga. App. 202, 203 (3) (438 SE2d 676), does not support her claim. In Ramsey, the hospital and the patient’s attorney were competing for insurance proceeds which were insufficient to satisfy both the hospital’s lien and the attorney’s lien. Construing OCGA §§ 15-19-14 (b) and 44-14-470 (b), the court ruled simply that the attorney’s lien had priority over the hospital’s lien. Accordingly, Ramsey does not obligate Gwinnett to pay a portion of Watts’ attorney fees. In any event, as we held in Division 1, she has waived this claim by satisfying the hospital’s lien without protest.

5. We now consider whether the trial court erred in granting summary judgment to Gwinnett on its counterclaim for declaratory judgment. OCGA § 9-4-2 (c) provides that “[r]elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.” However,

Decided February 15, 2000.

McKenney & Froelich, Jerome J. Froelich, Jr., David M. Kupsky, Spix, Krup & Reece, William R. Reece III, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert G. Tanner, for appellees.

“ ‘[a] declaratory judgment may not be granted in the absence of a justiciable controversy. (Cits.) “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. (Cits.)” (Cit.)’ (Emphasis supplied.) Loyd v. City of Irwinton, 142 Ga. App. 626-627 (1) (236 SE2d 889) (1977).” Oxford Finance Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614).

Farm &c. Ins. Cos. v. Skelton, 235 Ga. App. 507, 508 (510 SE2d 76).

In accordance with our holding in Division 1 that Watts has waived her claims against Gwinnett, it is clear that all possible rights between the parties have accrued and all possible obligations have attached. Thus, Gwinnett requires no direction from the trial court concerning its future conduct which might increase its liability or otherwise affect its interests with respect to Watts. We, therefore, reverse the grant of summary judgment to Gwinnett on its counterclaim for declaratory relief and remand to the trial court with direction that the counterclaim be dismissed.

Judgment affirmed in part and reversed in part and case remanded with direction.

Johnson, C. J., and Phipps, J., concur.

       Kaiser remains a defendant below and is not a party to this appeal.

        See Reich v. Collins, 262 Ga. 625 (422 SE2d 846), vacated, 509 U. S. 918 (113 SC 3028, 125 LE2d 717), on remand, 263 Ga. 602 (437 SE2d 320) (voluntary payment of state income taxes on federal military retirement benefits precluded refund after tax was found unconstitutional); Henson v. Columbus Bank &c. Co., 144 Ga. App. 80, 82 (3) (240 SE2d 284) (voluntary payment of demand notes barred recovery of money based on alleged breach of contract).


text:
    A00A0492.
    HUNT v. THE STATE.
    (533 SE2d 95)
   Phipps, Judge.

Danny Hunt was charged with two counts of cruelty to children based on allegations that he maliciously caused two-month-old Jordan Berry excessive physical pain by deliberately breaking her arm and by failing to seek medical attention for her afterward. In this appeal of his convictions, he challenges the sufficiency of the evidence.

Although Hunt is not Jordan’s father, he was engaged to marry her mother, Jillian Berry, and lived with the mother and helped her care for the child. Shortly before Hunt and Berry were married, she noticed that her daughter was not using her left arm and that the arm was limp. When she asked Hunt if he knew why, he responded that Jordan had probably slept on it the wrong way. When Jordan began using the arm a day or two later, Berry thought nothing more of it. But after she and Hunt returned from their honeymoon, they attended a wedding shower where a nurse observed Jordan and commented that she thought her arm might be broken. Again, Berry asked Hunt how it might have happened, and he said he did not know.

The next day, Jordan was taken to the hospital and was diagnosed with a fractured humerus in her left arm. At the hospital, Hunt was questioned by Department of Family & Children Services (DFACS) Investigator Gillette and Dade County Sheriff’s Department Investigator Hicks. Hunt acknowledged that he had noticed something wrong with the child’s arm but again attributed it to her sleeping on it.

Later, DFACS workers called Hunt and Berry’s home to inform them that it had been determined that Jordan also had a fractured rib. Upon being interviewed again by Investigator Hicks, Hunt gave a taped statement in which he admitted that he had caused the injury to the child’s arm. Hunt told the investigator that when he was alone with Jordan, he had become frustrated, grabbed her arm, pushed it downward in a twisting motion, and then heard a bone break. But Hunt also stated that when Jordan began using her arm again, he decided she was not injured.

Hunt has since recanted his pretrial statement to police. At trial he claimed that he made the statement only because he and Berry had been threatened with loss of custody of the child. He said he had been promised that if he admitted causing the child’s injury he would be provided counseling and would not be arrested. Hicks, however, testified that Hunt’s statement was induced by neither threats nor promises, and Berry testified that after Hunt was arrested, he called her and again admitted that he had caused the injury to the child’s arm.

The weight to be given Hunt’s pretrial incriminatory statements was for the jury to decide. Viewed in a light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Hunt acted maliciously in breaking the child’s arm and failing to seek medical attention for her injury.

Decided February 15, 2000.

H. Robert Hannah III, for appellant.

Herbert E. Franklin, Jr., District Attorney, John L. O’Dell, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See Simmons v. State, 236 Ga. App. 83, 85 (1) (510 SE2d 925) (1999).

       Id. at 86.


author: Ruffin, Judge.

text:
    A99A1746.
    THE STATE v. GEHRIS.
    (528 SE2d 300)
   Ruffin, Judge.

A DeKalb County police officer investigated a traffic accident involving Peter Gehris. After the DeKalb officer released Gehris, two Doraville police officers further detained him to investigate whether he had been driving under the influence. Gehris was arrested and charged for this offense.* Prior to trial, he moved to suppress the evidence of his intoxication. The trial court granted Gehris’ motion, finding that the Doraville officers lacked articulable suspicion to “re-seize” Gehris after he had been released by the DeKalb County officer. We find the trial court erred in its analysis and reverse and remand.

In reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. But where the evidence is uncontroverted and there is no question regarding the credibility of witnesses, we conduct a de novo review of the trial court’s application of the law to undisputed facts. Here, the material facts are undisputed.

On June 10, 1997, Corporal R. O. Brinkley and Lieutenant John Bussell of the Doraville Police Department were standing in the parking lot at Barnacles restaurant, which is located outside the city limits of Doraville in DeKalb County. As the two were talking, they saw a van, driven by Gehris, back into Brinkley’s patrol car. Although the impact was not severe, it scratched the car.

Gehris drove away without stopping. Both Brinkley and Bussell got into their cars and followed Gehris. After Brinkley turned on his siren, Gehris pulled into the parking lot of a Waffle House located within the Doraville city limits. As Brinkley approached Gehris, he smelled a strong odor of alcohol on his person.

While Brinkley was speaking to Gehris, Bussell called the DeKalb County Police Department. Because the collision occurred outside Doraville city limits and involved damage to city property, the Doraville officers decided to have DeKalb County investigate the incident. Officer K. L. Wyatt from DeKalb County arrived, completed a private property accident report and released Gehris without issuing any citations. Gehris then entered the Waffle House.

Upon learning that Wyatt was not going to investigate a possible driving under the influence charge, Bussell decided to investigate. After Wyatt brought Gehris back out of the Waffle House, Bussell administered several field sobriety tests before arresting Gehris for driving under the influence.

Prior to trial, Gehris moved to suppress the evidence gathered by Bussell, arguing that the Doraville officer lacked jurisdiction because the original incident occurred outside city limits. Gehris also argued that the officer lacked reasonable, articulable suspicion to detain him because the officer did not see him drive erratically or commit any moving violations.

Following a hearing on Gehris’ motion, the trial court found that the Doraville officers relinquished their authority over Gehris by turning the investigation over to DeKalb County. Because Wyatt released Gehris without issuing a citation, the court found that Gehris was free to leave. Thus, the court reasoned, any subsequent detention of Gehris needed to have been based on reasonable suspicion formed after Wyatt released him. As both Doraville officers testified that Gehris did not do anything suspicious after Wyatt released him, the trial court suppressed the evidence.

In its order, the trial court stated that, because the Doraville officers relinquished their authority over Gehris, the jurisdiction issue was moot. As the jurisdiction issue lies at the heart of the matter, however, we disagree. Implicit in the trial court’s order is a finding that the officers did have jurisdiction. This finding is correct.

As a general rule, a municipal police officer is authorized to investigate crimes and/or arrest suspects only for those infractions that occur within that officer’s territorial jurisdiction. But there is an exception to this rule. An officer has authority “to arrest a person accused of violating any law or ordinance governing the operation of a vehicle . . . where the offense is committed in his presence” regardless of territorial limitations. By failing to stop after backing into Brinkley’s car, Gehris committed a traffic violation. Accordingly, Brinkley and Bussell, who witnessed the incident, were authorized to pursue and, if need be, arrest Gehris.

We must next address whether, by calling a DeKalb officer to investigate the accident, the two Doraville officers somehow relinquished their authority to investigate and to arrest Gehris. The trial court concluded that the officers did so. We disagree.

Although the Doraville officers called for assistance from a DeKalb officer, we are unaware of any rule that such a call divests them of their independent authority. To the contrary, separate law enforcement agencies often work together. We see no reason for creating a rule that, by asking another agency for assistance, the officers from the first agency relinquish their authority.

Additionally, we see no reason why the Doraville officers should be limited to events occurring after the DeKalb officer released Gehris in establishing reasonable suspicion. We have held that once a normal traffic stop has ended and an officer has told a motorist that he is free to leave, the officer must have reasonable suspicion of criminal conduct before detaining the motorist for additional questioning or for searching the vehicle. Implicit in this holding, however, is the idea that, from the outset of the stop, the officer lacked reasonable suspicion for such questioning. Thus, the officer must have based his decision to further detain the motorist on suspicion that arose after he released him. This does not mean, however, that when officers from multiple law enforcement agencies work together to investigate a traffic violation, and an officer from one agency releases the motorist without conducting a complete investigation, that the officers from the other agency are precluded from further investigating the motorist unless he does something new to arouse suspicion. If the Doraville officers had reasonable suspicion that Gehris was driving under the influence, the fact that Wyatt chose not to investigate that issue does not deprive Brinkley or Bussell of their independent authority to investigate.

Decided January 19, 2000 —

Reconsideration denied February 16,2000

Gwendolyn R. Keyes, Solicitor, David M. Zagoria, Pilar Gigante, Assistant Solicitors, for appellant.

Monte K. Davis, for appellee.

Accordingly, the trial court erred in concluding that the Doraville officers had to base their reasonable suspicion on activities that occurred after Gehris was released by Wyatt. For this reason, we reverse the order of the trial court granting Gehris’ motion to suppress and remand the issue of whether, based on the totality of the circumstances, the Doraville officers had a reasonable basis for further detaining Gehris for questioning.

Judgment reversed and remanded.

Andrews, P. J., and Ellington, J., concur.

       Gehris also was charged with: (1) violating OCGA § 40-6-391 (a) (5) for being in physical control of a moving vehicle while having an alcohol concentration of 0.1 grams or more; and (2) violating OCGA § 40-6-271 for failing to stop and leave his name after striking another car and improper backing.

        Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

        In the Interest of B. C. G., 235 Ga. App. 1, 4 (2) (508 SE2d 239) (1998).

       According to Brinkley, department policy required that another law enforcement agency investigate accidents involving damage to a city-owned vehicle. But Bussell testified that it was not required.

       See OCGA § 40-13-30.

        Edge v. State, 226 Ga. App. 559, 562 (2) (487 SE2d 117) (1997) (construing OCGA § 17-4-23 (a)).

       OCGA § 40-6-271.

        Edge, supra; Glazner v. State, 170 Ga. App. 810, 811 (318 SE2d 233) (1984) (physical precedent only).

       In fact, both Brinkley and Bussell testified that, under an informal agreement with DeKalb County, Doraville officers patrol a portion of unincorporated DeKalb County.

        Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998).