text:
    A99A1447.
    BROWN v. THE STATE.
    (522 SE2d 41)
   Ruffin, Judge.

Jimmy Lee Brown was convicted of possession of cocaine with intent to distribute. He appeals, contending that he received ineffective assistance of trial counsel and that the trial court erred in allowing the jury to view a videotape of Brown’s traffic stop on three occasions during deliberations. We affirm.

1. Brown contends that trial counsel was ineffective for failing to pursue a motion to suppress evidence. As our Supreme Court has held,

[t]o prevail on a claim of ineffective assistance of counsel, a defendant has the burden to prove that his counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different.

(Punctuation omitted.) Columbus v. State, 270 Ga. 658, 660 (2) (a) (513 SE2d 498) (1999). The defendant has the burden of proof under both prongs of this test. Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994); Haynes v. State, 234 Ga. App. 272, 274-275 (4) (507 SE2d 151) (1998).

The evidence at trial showed that Special Agent Mark Mansfield of the Georgia Bureau of Investigation received a tip from an informant that Brown would be involved in illegal activity while traveling on Old Highway 41. The informant gave Mansfield a description of Brown’s vehicle and his direction of travel. Mansfield relayed this information by radio to Chief Deputy Mike Womack of the Lamar County Sheriff’s Office. Subsequently, Mansfield and Womack located Brown’s vehicle and began chasing it, with Womack activating his lights and siren. After Womack activated his lights, Brown accelerated and attempted to flee. During the chase, Brown threw two plastic bags out the passenger door. These were later recovered by Mansfield and another officer and were found to contain several smaller bags of cocaine. After about two miles, Brown stopped his car and was taken into custody.

Brown contends that trial counsel was ineffective in failing to pursue a motion to suppress evidence resulting from the stop. He contends that the stop of his vehicle was improper because the officers did not have an articulable suspicion that he was engaged in a specific criminal act.

It is undisputed in this case that the cocaine was thrown from Brown’s vehicle while he was fleeing from the police. In Hunt v. State, 205 Ga. App. 490 (422 SE2d 24) (1992), a defendant threw cocaine from his vehicle while being chased by the police. Relying on California v. Hodari D., 499 U. S. 621 (111 SC 1547, 113 LE2d 690) (1991), we held that

defendant was not “seized” when the cocaine was abandoned. He had not been touched by the officers; he did not submit to the officers’ “show of authority” — the flashing blue lights. Simply put, defendant was in a state of flight when the cocaine was discarded and it cannot be said that it was the fruit of an illegal arrest.

Hunt, supra at 491. Similarly, in Smith v. State, 217 Ga. App. 680 (2) (458 SE2d 704) (1995), we held that

[i]t is undisputed that Smith was in a state of flight when he discarded the cocaine he now seeks to suppress, and contrary to Smith’s arguments, being chased is not tantamount to being “seized” in violation of the Fourth Amendment. See California v. Hodari D., [supra]. Under such circumstances, even if we assume that Smith ultimately was illegally seized and detained after being chased, that would not serve as a basis to suppress the cocaine at issue, since the contraband was discarded before the seizure effectively occurred.

(Citation omitted.) See also Milton v. State, 232 Ga. App. 672, 677 (4) (503 SE2d 566) (1998).

“Where a defendant is in a state of flight when he discards or abandons property which he now seeks to suppress, his being pursued does not result in the ‘seizure’ of property he abandoned.” Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997). Because Brown was in a state of flight when he discarded the cocaine in question, and had not submitted to any show of authority by the police, the cocaine was not discovered as a result of an illegal search or seizure, regardless of whether the police had probable cause to stop Brown’s vehicle. Accordingly, “a motion to suppress would have been meritless, and [Brown’s] . . . counsel was therefore not ineffective for failing to [pursue] such motion.” Crews v. State, 226 Ga. App. 232, 233 (1) (486 SE2d 61) (1997).

2. During deliberations, in response to requests from the jury, the trial court allowed the jury on three occasions to view a videotape of the traffic stop. The jury indicated that it was interested in the two instances when Brown opened the car door to throw the cocaine out. After the tape had been replayed twice, one of the jurors stated that “[t]here is a difference of opinion about what some people are seeing and what is not seen and I wanted to . . . point out a particular part of the picture that is in question.” The trial court allowed the jurors to review the tape again, but stated that they could not take the tape into the jury room because that would “place [] undue emphasis on that piece of evidence rather than any other.” Brown’s attorney did not object to replaying the videotape.

Decided August 18, 1999.

Virgil L. Brown & Associates, Russell B. Mabrey, Jr., Larkin M. Lee, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

On appeal, Brown contends that the trial court erred in replaying the videotape for the jury, and that this constituted “plain error” so as to require reversal even absent an objection. See Sanchez v. State, 234 Ga. App. 809, 811 (3) (508 SE2d 185) (1998). However, “[i]t has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” (Punctuation omitted.) Nobles v. State, 233 Ga. App. 63, 65 (4) (503 SE2d 321) (1998). In this case, we cannot say that the trial court abused its discretion in allowing the jury to review the videotape several times, particularly since the jurors indicated that there was disagreement over what they believed the videotape showed. Accordingly, this enumeration is without merit.

Judgment affirmed.

McMurray, P. J, and Andrews, P. J, concur.

       After the stop, Deputy Womack searched Brown’s pocket and discovered a plastic bag containing a brownish sand-like material. However, this bag was not admitted into evidence at trial.

       Trial counsel initially filed a motion to suppress, but subsequently dismissed it on the grounds that it was without merit.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1628, A99A1629.
    HOWARD v. J. H. HARVEY COMPANY, INC. et al.; and vice versa.
    (521 SE2d 691)
   Johnson, Chief Judge.

Deborah Howard sued J. H. Harvey Company, Inc. (hereafter “Harvey”), Charlie Ross and Alvin Stephens for intentional infliction of emotional distress, false arrest, assault and battery, and defamation following an incident in Harvey’s grocery store. She also accused Ross of negligent hiring. These related cases involve the grant of summary judgment to Ross based on the borrowed servant doctrine. Harvey also appeals the trial court’s application of the doctrine of respondeat superior to it. For reasons which follow, we reverse the grant of summary judgment to Ross, appealed in both cases, and affirm the denial of summary judgment to Harvey based on the doctrine of respondeat superior, appealed in Case No. A99A1629.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record in this case shows that Alvin Stephens worked at Harvey’s store pursuant to the store’s agreement with Charlie Ross d/b/a Ross Security Agency. While providing security at Harvey’s store, Stephens followed the instructions of, and took directions from, store managers. However, Stephens was not Harvey’s employee, and he was trained and instructed regarding his job duties by Ross. Before beginning his job at Harvey’s store, Ross instructed Stephens that he was to serve only in a backup capacity to store managers in the arrest and detention of shoplifters. He was never to touch a suspected shoplifter, and unless immediate response was absolutely necessary, he was never to approach a suspected shoplifter without a store manager’s approval or without a witness. Stephens was aware of these instructions and specifically knew that if he suspected an individual of shoplifting, he was supposed to get a manager to handle the situation. However, Harvey store employees testified on deposition that Stephens had the authority to act immediately and was allowed to stop a store customer outside the presence of a manager if he actually saw the customer take an item from the store and either start eating it or start running for the door.

One evening, Howard stopped by Harvey’s store to pick up groceries. Stephens was asked by a Harvey store employee to keep an eye on Howard because she was a suspected shoplifter. The parties dispute what happened after Stephens began monitoring Howard.

According to Howard, she shopped for several items before proceeding to the floral display to look for a plant. While looking at plants, she was approached by Stephens, who told her the store manager had said she was shoplifting and ordered Stephens to get her. Harvey employees and Stephens testified on deposition that Stephens was requested only to watch Howard, was never told to approach Howard, and decided on his own to approach her. According to Howard, Stephens made Howard open her purse, show him the contents, and show him how she intended to pay for the items in her shopping cart. He threatened that she would go to jail if she did not cooperate and speak with a store manager.

As Howard turned to retrieve her shopping cart, Stephens grabbed her by her upper arm and turned her báck around, causing severe bruising. He held her by the arm “a minute or two” while he loudly ordered her several times to shut up, leave her shopping cart alone, and follow him to the front of the store or she would go to jail. Stephens denies that he ever touched Howard. According to Howard, when they got to the front of the store, Stephens told her to “shut up” in a loud voice in front of other customers and told her to stand by him or she would go to jail. Stephens denies ever raising his voice or telling her to “shut up.”

The store manager asked Stephens if he knew whether Howard had stolen anything. Stephens told the store manager that Howard was acting suspiciously, but admitted that he did not know if Howard had stolen anything. The store manager concluded there was no evidence that Howard had stolen anything, instructed Stephens to leave, and approved Howard’s check for her purchases. The entire incident lasted less than 15 minutes, and Ross was not present for any of the incident.

Both Harvey and Ross filed motions for summary judgment. After considering the briefs and conducting two separate hearings, the trial court granted Ross’ motion in its entirety and partially granted Harvey’s motion. The trial court found that Stephens was under the complete control and direction of Harvey during the alleged injury and that Ross had no such control. The court further found that part of the borrowed servant test had been met based on Harvey’s ability to discharge Stephens from the specific task assigned him. Howard and Harvey contend the trial court erred in applying the borrowed servant exception to the doctrine of respon-deat superior.

1. In order for an employee of one employer to be a borrowed employee or servant of another employer, the evidence must show that (1) the borrowing employer had complete control and direction over the employee for the occasion; (2) the lending employer had no such control; and (3) the borrowing employer had the exclusive right to discharge the employee. Preston v. Ga. Power Co., 227 Ga. App. 449, 451 (1) (489 SE2d 573) (1997). All three prongs of the test must focus on the occasion when the injury occurred rather than the work relationship in general. Id.; Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821) (1988).

Where an employer can show that its employee who has been loaned to another is a borrowed servant, that employer is entitled to summary judgment as to the issue of respondeat superior liability concerning the employee’s alleged misconduct. Staffing Resources v. Nash, 218 Ga. App. 525 (462 SE2d 401) (1995).

Case No. A99A1628

2. Howard contends the trial court erred in applying the borrowed servant exception and granting summary judgment to Ross because the evidence does not prove that Harvey had the exclusive right to discharge Stephens on the occasion when the injury occurred. We agree.

The exclusive right to discharge must relate only to the temporary assignment. Nash, supra at 526 (1). The trial court found that this requirement of the borrowed servant doctrine was met because Harvey had the exclusive right to discharge Stephens from his specific task, namely, observing and/or detaining Howard. We disagree.

Although Harvey’s store manager told Stephens to return to his security job in the store after he had concluded there was insufficient evidence to detain Howard, this does not equate with discharging Stephens from his temporary assignment or his particular task of providing security. The parties have not pointed to any evidence, and we can locate no evidence in the record before us, establishing that Harvey had the exclusive right to discharge Stephens from his job at Harvey’s store or from his particular job of providing security. Compare Berry v. Davis Feed & Seed, 237 Ga. App. 768, 770 (516 SE2d 812) (1999) (lending employer testified that borrowing employer would have been the one to take the employee off the job); Lewis v. Ga.-Pacific Corp., 230 Ga. App. 201, 202 (496 SE2d 280) (1998) (lending employer stated by affidavit that borrowing employer had the exclusive right to discharge any of his employees from work at its facility and had exercised the right previously); Preston, supra (undisputed testimony was presented that borrowing employer had unilateral authority to discharge the employee from the particular work he was engaged in and had done so on occasion).

Consequently, the evidence of record does not establish as a matter of law that Stephens was a borrowed servant working for Harvey. See Southern R. Co. v. Hand, 216 Ga. App. 370, 371 (1) (454 SE2d 217) (1995); Shannon v. Combustion Engineering, 188 Ga. App. 239, 240 (1) (372 SE2d 818) (1988); Freeman v. Pumpco, Inc., 167 Ga. App. 312, 314 (306 SE2d 385) (1983). The grant of summary judgment in favor of Ross on the claims based on the borrowed servant exception (assault and battery, false arrest and intentional infliction of emotional distress) is hereby reversed. We need not address the grant of summary judgment in favor of Ross on all other claims since these issues have not been appealed.

3. Based on our decision in Division 2, we need not address Howard’s contention that the trial court erred in applying the borrowed servant exception because the evidence does not prove that Harvey had complete control over Stephens on the occasion when the injury occurred.

Case No. A99A1629

4. In this separate appeal, Harvey also challenges the trial court’s application of the borrowed servant exception and grant of summary judgment in favor of Ross as to Howard’s claims. This enumeration of error has already been addressed in Division 2 and is, therefore, rendered moot in this appeal. Thus, we need not even address whether Harvey has standing to appeal the grant of summary judgment to Ross, a co-defendant, where Ross moved for summary judgment strictly against the plaintiff and not against Harvey’s cross-claim.

5. Harvey also contends the trial court erred in applying the doctrine of respondeat superior to it. We disagree.

An employer can be held liable under the doctrine of respondeat superior for the intentional torts of an independent security guard only when they are committed in the scope of his employment against the employer’s invitees. U. S. Shoe Corp. v. Jones, 149 Ga. App. 595, 596 (1) (255 SE2d 73) (1979); see also Peachtree-Cain Co. v. McBee, 254 Ga. 91, 94 (2) (327 SE2d 188) (1985). “[T]he test of liability is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” (Punctuation and footnote omitted.) New Madison &c. v. Gardner, 231 Ga. App. 730, 732 (1) (499 SE2d 133) (1998). If the act is within the class of activities performed on behalf of the employer, the master is bound, even though the employee is not authorized to perform the particular act or is forbidden to perform the particular act. Bacon v. News-Press &c. Co., 188 Ga. App. 703, 705 (373 SE2d 797) (1988). Only where the employee’s alleged misconduct is entirely disconnected from his employer’s business and wholly personal to himself will the employer escape liability. Brown v. AMF Bowling Centers, 236 Ga. App. 277-278 (1) (511 SE2d 619) (1999).

In the present case, Stephens confronted Howard in his capacity as a security guard. He was attempting to accomplish the ends of his employment, saving Harvey from a shoplifter. While Stephens may have approached Howard on his own, without first getting a manager, it is clear that he was not acting for some personal motive. Except in plain and indisputable cases, the question of whether the employee is acting in the prosecution of his employer’s business and in the scope of his employment at the time of an injury to another is a jury question. Brown, supra at 277. The trial court did not err in applying the doctrine of respondeat superior to Harvey and denying Harvey’s motion for summary judgment on this ground.

Decided August 18, 1999.

Custer & Custer, Cawthon H. Custer, Eugene C. Black, Jr., for appellant.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for J. H. Harvey Co.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, William W. Horlock, Jr., for Ross.

Judgment affirmed in part and reversed in part in Case No. A99A1629. Judgment reversed in Case No. A99A1628.

McMurray, P. J, and Phipps, J., concur.


text:
    A99A1962.
    YEARWOOD v. THE STATE.
    (521 SE2d 689)
   Johnson, Chief Judge.

Shannon Yearwood appeals from his conviction of driving under the influence of alcohol. He claims the trial court erred in denying his motion to suppress evidence discovered after the illegal stop of his car. The claim is without merit because the stop was legal. We therefore affirm the trial court’s denial of Yearwood’s motion to suppress.

The evidence presented at the motion to suppress hearing shows that a deputy sheriff was on patrol when he received a telephone call from a truck stop employee whom he had known for more than a year and who had previously given him reliable information. The employee asked the deputy to come to the truck stop because a waitress had complained that a woman and a man, who smelled of alcohol, were causing a disturbance in the restaurant. As the deputy was driving to the truck stop, he received another call from the employee telling him that the man and the woman were leaving the truck stop in a car. The employee described the car and gave the sheriff its license plate number.

Upon arriving at the truck stop, the deputy saw the described car driving out of a nearby gas station. When the driver of the car saw the deputy, he stopped and backed up into the gas station. After the deputy drove past the station, the driver pulled the car out of the station and headed in the opposite direction. The deputy turned his car around and followed the other car onto an interstate highway. The deputy eventually stopped the car for exceeding the speed limit.

Yearwood was driving the car, the woman who had been with him at the truck stop was sitting in the front passenger seat, and her two small children were in the back seat. Yearwood was unable to produce a driver’s license, smelled of alcohol, stumbled as he got out of the car, tested positive for alcohol on a roadside breath test, and consented to submit to a chemical test of his breath at the county jail. When Yearwood failed that test, the deputy arrested him for driving under the influence of alcohol.

Decided August 18, 1999.

H. Samuel Atkins, Jr., for appellant.

Dennis C. Sanders, District Attorney, William P. Doupe, Assistant District Attorney, for appellee.

Contrary to Yearwood’s claim, the information provided to the deputy by the truck stop employee was credible even though it was hearsay information the employee had received from a waitress. When hearsay information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster; a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable. Hinson v. State, 229 Ga. App. 840, 842 (1) (c) (494 SE2d 693) (1997), rev’d on other grounds, 269 Ga. 862 (506 SE2d 870) (1998). The hearsay information in the current case was provided by a reliable and concerned citizen known to the deputy. Her credible information that Yearwood had caused a disturbance at the truck stop and was believed to be driving while under the influence of alcohol gave the deputy a reasonable and articulable suspicion justifying the stop of Yearwood’s car. See State v. Noble, 179 Ga. App. 785 (347 SE2d 722) (1986).

Moreover, even if that information had not been reliable, the stop of Yearwood’s car was lawful based on the deputy’s testimony that he pulled the car over for speeding. The observation of a traffic offense justifies a police officer’s stop of a vehicle. See Hennings v. State, 236 Ga. App. 473, 474 (1) (512 SE2d 357) (1999); State v. Hall, 235 Ga. App. 412, 414 (509 SE2d 701) (1998); Coop v. State, 186 Ga. App. 578, 579 (1) (a) (367 SE2d 836) (1988).

Because the deputy saw Yearwood speeding and also had reliable information from a known citizen, the trial court did not err in denying Yearwood’s motion to suppress evidence discovered after the legal automobile stop. See Cotton v. State, 237 Ga. App. 18 (513 SE2d 763) (1999); Dawson v. State, 227 Ga. App. 38, 39-40 (1) (488 SE2d 114) (1997).

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A1501.
    HARVEY et al. v. HIGHTOWER et al.
    (521 SE2d 367)
   McMurray, Presiding Judge.

Patricia O’Quinn Harvey acquired an access easement across her sister’s, Jo Edith Lindsey’s, adjoining property via her deceased father’s estate. Following this conveyance, Lindsey fenced her land and blocked Harvey’s easement with chained gates. Lindsey allowed her neighbor, R. M. Hightower, to construct a “satellite dish” on her property, in the path of Harvey’s easement.

Harvey brought an action against Lindsey and Hightower to remove these alleged obstructions. Lindsey answered and asserted a right to fence her property and gate Harvey’s easement so as to protect her property. Hightower neither answered the complaint, nor made an appearance at a subsequent bench trial. The trial court later entered an order pertinently providing that Lindsey may gate Harvey’s easement, but that she must provide Harvey with access keys. The trial court’s order also provides that Hightower’s satellite dish does not impair Harvey’s easement. This appeal followed. Held:

Harvey contends the trial court erred in finding that Lindsey’s gates do not obstruct her easement. She also contends the trial court erred in allowing Hightower’s satellite dish to remain in her easement. We are compelled to agree.

In Hill v. Miller, 144 Ga. 404 (87 SE 385), the Supreme Court of Georgia held that a servient tenant could not maintain a protective gate over the dominant tenant’s prescriptive access easement. This holding is based on the fact that the dominant tenant acquired the easement during the prescriptive period without a gate obstruction. Thus, rather than examining the circumstances of the servient tenant’s alleged need for protection, the Supreme Court of Georgia excluded the servient tenant’s alleged right to gate his property by viewing such an obstruction as an unauthorized encumbrance upon the dominant tenant’s easement. Id. at 407. The same logic appears to apply in the case sub judice.

Although Harvey’s access easement was conferred by grant rather than prescription, this difference does not appear to exclude the Supreme Court of Georgia’s reasoning in Hill. Because Harvey acquired her right-of-way over Lindsey’s property without Lindsey’s gates as an encumbrance, the trial court erred in ruling that Lindsey’s gates do not impair Harvey’s easement. And while the rule in Hill v. Miller, 144 Ga. at 407, supra, would likewise appear to require removal of Hightower’s satellite dish, we need not address this issue since Hightower failed to answer Harvey’s complaint, and thereby admitted that his satellite dish obstructs Harvey’s easement. Moss v. Wilkie, 210 Ga. App. 688 (2) (437 SE2d 367); see McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 677 (2) (504 SE2d 747).

Decided July 26, 1999

Reconsideration denied August 20, 1999.

Joseph I. Carter, for appellants.

Fred W. Rigdon, Jr., for Lindsey

R. M. Hightower, pro se.

Judgment reversed.

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

       Harve's spouse is a party to this action as well as the appeal in the case sub judice.


author: Blackburn, Presiding Judge.

text:
    A99A1538.
    WRIGHT v. JDN STRUCTURED FINANCE, INC.
    (522 SE2d 4)
   Blackburn, Presiding Judge.

Carolyn R. Wright appeals the trial court’s order granting summary judgment to the defendant, JDN Structured Finance, Inc. (JDN), in the underlying, static defect trip and fall case. For the reasons set forth below, we affirm.

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) (1997).

(Punctuation omitted.) Parker v. Welborn, 236 Ga. App. 344 (511 SE2d 917) (1999).

Wright contends that as she was walking toward a store in the defendant’s shopping area, she lost her footing when she tripped on the high curb to the sidewalk and then she stepped onto the comer of a low brick planter which caused her to fall to the ground and suffer injuries. She contends that her view of the planter was obstructed by overgrown shrubs. Her deposition testimony makes it clear, however, that her action in tripping over the curb is what set the incident in motion. The curb on which Wright tripped was painted yellow. Wright’s affidavit that she tripped over a planter and not the curb is not sufficient to create a genuine issue of material fact because this statement conflicts, without explanation, with her deposition in which she testified on at least six separate instances that she tripped on the curb or “curve.”

1. On motion for summary judgment a party’s self-conflicting testimony is to be construed against her unless a reasonable explanation for the contradiction is offered. Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossi-gnol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). As Wright offered no explanation for the contradiction between her affidavit and deposition testimony, the trial court was required to “eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” (Punctuation omitted.) Gentile, supra at 583.

In the present case, application of this rule does not change our primary analysis because whether Wright tripped over a planter or the curb, both obstacles are static conditions.

2. JDN contends that Wright failed to exercise reasonable care for her own safety to avoid the static conditions on its property.

In order for [Wright] to recover, two elements must exist: (1) fault on the part of the owner, [JDN], and (2) ignorance of the danger on the part of the invitee, [Wright]. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then[,] by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Under the conditions here set out, a person acting in the exercise of ordinary care for [her] own safety should have been aware that such a hazard to walking up onto a curbed sidewalk would be likely to exist, and should have accordingly exercised ordinary care to avoid it. Her means of knowledge being equal with that of [JDN], it follows that she has failed to show a right of recovery based upon the acts of negligence alleged.

(Punctuation omitted.) Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34 (449 SE2d 629) (1994).

Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.

Decided June 28, 1999

Reconsideration denied August 20, 1999

Blackmon & Dudley, Nathaniel H. Blackmon III, for appellant.

Carolyn Wright, pro se.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Jerome B. McNally, for appellee.

(Punctuation omitted.) Tanner v. Larango, 232 Ga. App. 599, 600 (2) (502 SE2d 516) (1998).

The ultimate issue is whether [JDN] was negligent in maintaining a hazardous condition on the property [,] and in everyday life, persons are required to negotiate floors, steps and doorways. Even if the curbed sidewalk was hazardous as [Wright] asserts, the condition was open and obvious, and thus, in the exercise of ordinary care, she could have avoided it. There is no duty to warn of the obvious.

(Citations and punctuation omitted.) Warnke, supra at 34.

Contrary to Wright’s argument, the trial court did not err in granting JDN’s motion for summary judgment based on Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Summary judgment was proper because Wright’s act of tripping on the yellow-painted curb or a planter constituted voluntary negligence on her part. See id. at 737. See also Tanner, supra at 600-601.

Judgment affirmed.

Barnes and Ellington, JJ, concur.


text:
    A99A1555.
    DUNN et al. v. CECCARELLI et al.
    (521 SE2d 237)
   McMurray, Presiding Judge.

This litigation appears before us for the second time. In Dunn v. Ceccarelli, 227 Ga. App. 505 (489 SE2d 563) (physical precedent only), this Court reversed the trial court’s grant of “summary judgment” to appellee-plaintiff timeshare members of the Lake Tara Townhouse Association III, Inc. (“Association”). In so doing, this Court held the trial court should have treated appellees’ complaint seeking injunctive relief and an accounting of appellant-defendant Association board members as a time-barred derivative action for failure to comply with the ante litem demand requirements set out in OCGA § 14-3-742. Id. at 510. In light of the foregoing, we further concluded that appellees’ cross-appeal of the trial court’s order denying their motion to set aside enforcement of supersedeas pending appeal was moot. Id. Following the return of the remittitur, the trial court entered judgment in favor of the appellants, disposing of the case in its entirety. Thereafter, the trial court denied appellants’ motion for attorney fees, and this appeal followed.

A detailed recitation of the facts giving rise to this litigation is set out in Dunn v. Ceccarelli, 227 Ga. App. 505, supra. Held:

In their sole enumeration of error, appellants contend the trial court erred in denying their motion for attorney fees, finding they were not the “prevailing party” in the underlying litigation in that “they successfully maintained their defense and suffered no judgment against them.”

Appellants base their claim for attorney fees upon Art. XXVIII (I) of the Association’s Declaration of Covenants & Restrictions* (“Declarations”) authorizing reasonable attorney fees to prevailing parties in actions brought to enforce compliance with the Declarations. Appellants, however, point to no extrinsic or parol evidence purporting to define the term “prevailing party” as used in Art. XXVIII (I).

When words are not defined in a restrictive covenant, they are to be “ ‘construed as to carry into effect the intention of the parties, which is to be collected from the whole instrument, and the circumstances surrounding its execution.’ [Cits.]” White v. Legodais, 249 Ga. 849 (1) (295 SE2d 99). Moreover, a trial judge is authorized to find the meaning of words thus undefined in accordance with their “common everyday sense.” Id. at 850. Viewed in this context, we conclude the trial judge was authorized to find that Art. XXVIII (I) authorized the award of attorney fees to the party prevailing on the merits of the claimed compliance violation in issue.

Decided July 28, 1999

Reconsideration denied August 20, 1999

Stevens & Associates, Ronald S. Stevens, James B. McClung, for appellants.

Erck, Dever & Merlin, Hayes M. Dever, Douglas M. Robinson, Donald B. Kuperman, for appellees.

This result is not inconsistent with the Black’s Law Dictionary definition of “prevailing party,” requiring that a party, in addition to successfully prosecuting or defending an action, “[prevail] on the main issue, even though not to the extent of his original contention.” Black’s Law Dictionary 1352 (4th ed.). Neither is it inconsistent with the well-settled rule requiring that the factfinder determine which is the prevailing party before attorney fees provided by statute may be awarded. Keeler v. Keeler, 263 Ga. 151 (1), 152 (430 SE2d 5); Hutchinson v. Composite State Bd. of Med. Examiners, 263 Ga. 186, 187 (1) (429 SE2d 661); Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

OCGA § 14-[3]-742 provides that a shareholder may not commence a derivative proceeding until a written demand is made and 90 days have expired after that demand. It has nothing to do with the merits of the shareholder’s claim but only with a procedural prerequisite for asserting such a claim. [Cits.]

McGregor v. Stachel, 200 Ga. App. at 324-325, supra.

Inasmuch as we reversed as a time-barred derivative action in Dunn v. Ceccarelli, 227 Ga. App. at 510, supra, a decision on the merits therein was not reached. Accordingly, there is yet no prevailing party within the meaning of Art. XXVIII (I) of the Declarations and the trial court properly denied appellants’ motion for attorney fees.

Judgment affirmed.

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

       At trial, defendants sought dismissal of appellees’ complaint for failure to follow the pre-suit demand requirements set out in the Non-Profit Corporation Code, OCGA § 14-3-740 et seq., erroneously styling their motion as a motion for summary judgment. We, in turn, concluded that the trial “court erred in not entering summary judgment in favor of [appellants].” Dunn v. Ceccarelli, 227 Ga. App. 510, supra. To the extent that the foregoing language suggested that summary judgment rather than dismissal without prejudice should have been entered in favor of appellants it is overruled. “[S]ummary judgment is appropriate only to matters relating to the merits of a proceeding and does not apply to matters in abatement. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974).” McGregor v. Stachel, 200 Ga. App. 324 (1) (408 SE2d 118).

       Art. XXVIII (I) pertinently provides:
      Each unit owner and unit week purchaser and the Association shall be governed by and shall comply with this Declaration and by-laws attached hereto. Failure to do so shall entitle the Association or unit owner or unit week purchaser to recover sums due for damages or injunctive relief or both. Such actions may be maintained by or against a unit owner, unit week purchaser, or the Association in a proper case by or against one or more unit owners and/or unit week purchasers, and the prevailing party shall be entitled to receive reasonable attorney’s fees. Such relief shall not be exclusive of other remedies provided by law.


author: Barnes, Judge.

text:
    A99A1552.
    SMITH et al. v. NASSERAZAD.
    (522 SE2d 60)
   Barnes, Judge.

Douglas T. Smith, Real Estate Services, Inc., and the Johnson Liverpool Family appeal from a writ of possession against them and in favor of Hooshang Nasserazad. In their sole enumeration of error, appellants contend that a notice of appeal they filed from a Fulton Superior Court order allowing Nasserazad to proceed with a foreclosure of appellants’ property “suspended the judgment” and therefore deprived the Fulton State Court of jurisdiction to grant a writ of possession against the appellants.

Decided August 20, 1999.

Giddens, Davidson & Mitchell, Earl A. Davidson, for appellants.

Douglas T. Smith, pro se.

King & Croft, Terrence L. Croft, Richard A. Coleman, Steven J. Higgins, for appellee.

We find no merit in this appeal. First, the notice of appeal from a judgment in one court, Fulton Superior Court, cannot suspend the jurisdiction of another court, Fulton State Court. Cf. Intl. Images v. Smith, 181 Ga. App. 543, 544 (352 SE2d 846) (1987) (“ ‘ “[t]he general rule is that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered” ’ ”). Second, the Fulton Superior Court order that was the subject of appellants’ notice of appeal is not included in the record. Without this order, we cannot determine how it and appellants’ notice of appeal might impact the jurisdiction of the court that issued the judgment that is the subject of this appeal. “[I]t is appellant’s obligation to provide the record substantiating his claim, OCGA § 5-6-41, and in its absence, we must affirm as to that issue. [Cit.]” Whiteley v. State, 188 Ga. App. 129, 132 (2) (372 SE2d 296) (1988).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Barnes, Judge. Andrews, Presiding Judge,

text:
    A97A1136.
    SECURITY LIFE INSURANCE COMPANY v. CLARK et al.
    (521 SE2d 434)
   Barnes, Judge.

In Clark v. Security Life Ins. Co., 270 Ga. 165 (509 SE2d 602) (1998), the Supreme Court reversed our decision in Security Life Ins. Co. v. Clark, 229 Ga. App. 593 (494 SE2d 388) (1997), in which we reversed the judgment of the trial court. Accordingly, we must conform that decision to our Supreme Court’s opinion in this case.

In reversing our prior decision, our Supreme Court expressly stated,

we conclude that the trial court did not err in submitting the issue of vicarious liability to the jury. There was some evidence from which the jury could conclude that Security Life recklessly tolerated the forgery by not investigating the charge of forgery and by pressing its rescission claim long after learning that Fipps forged the application.

(Emphasis supplied.) Clark v. Security Life, supra, 270 Ga. at 168 (2).

Further, even though the Supreme Court recognized that “the failure to file the policy, standing alone, cannot serve as a basis for liability under [the Racketeer Influenced & Corrupt Organizations Act],” Clark v. Security Life, supra, 270 Ga. at 168 (3), it also stated immediately thereafter, “This conclusion, however, does not preclude a plaintiff from establishing a RICO claim through proof of an insurance fraud scheme if that scheme as a whole meets the definition of racketeering activity under OCGA § 16-14-3 (9).” Id.

Consequently, the Supreme Court’s holding that the trial court properly submitted to the jury the issue of vicarious liability under RICO and its holding that RICO liability may be based on an insurance fraud scheme that meets the definition of racketeering activity under OCGA § 16-14-3 (9) require us to affirm the judgment of the trial court. Otherwise, Divisions 2 and 3 of the Supreme Court’s opinion would be merely advisory. To the extent that this result conflicts with Division 1 (c) of our original opinion which was not addressed directly by the Supreme Court, Division 1 (c) must yield to the Supreme Court’s decision. Atlanta Journal &c. v. Long, 259 Ga. 23, 24 (1) (376 SE2d 865) (1989).

Further, because the Supreme Court’s decision requires us to affirm the trial court’s judgment, we cannot address the other errors enumerated by Security Life. If the Supreme Court intended for this court to do otherwise, it would have reversed our opinion and remanded the case to us with direction. See, e.g., Roberts v. Burke County School Dist., 267 Ga. 665, 668 (482 SE2d 283) (1997) (“The case is remanded to the Court of Appeals for action consistent with this opinion.”); Coleman v. Columns Properties, 266 Ga. 310, 312 (467 SE2d 328) (1996) (“Accordingly, the judgment of the Court of Appeals cannot stand, and the case is remanded for consideration consistent with this opinion.”). Because the Supreme Court did not issue such direction in this case, our obligation is to carry out the decision of the Supreme Court.

The disposition proposed by the dissent cannot be adopted because it conflicts with the Supreme Court’s decision, and under our law we cannot overrule, modify, or deviate from our Supreme Court’s decisions: “The decisions of the Supreme Court shall bind all other courts as precedents.” Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. “The rule is also required by the Georgia Code, which states that ‘any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court. . . .’ OCGA § 9-11-60 (h)” Atlanta Journal &c. v. Long, supra, 259 Ga. at 24 (1). Here, the effect of the dissent would be to reach a result that is not authorized by the Supreme Court’s opinion in this case.

Accordingly, Division 1 (a), (c), and (d), to the extent it is inconsistent with the Supreme Court’s opinion, and the judgment of our earlier opinion are vacated, our Supreme Court’s opinion and judgment are made the judgment of this court, and the judgment of the trial court is affirmed. Divisions 1 (b) and 2 of our earlier opinion are not affected by this decision.

Judgment affirmed.

Johnson, C. J., and Eldridge, J., concur. Pope, P. J., concurs in the judgment only. Andrews, P. J., Blackburn, P. J., and Ruffin, J., dissent.

Andrews, Presiding Judge,

dissenting.

I must respectfully dissent from the majority’s opinion which affirms a judgment on a RICO claim against Security Life Insurance Company.

1. In light of the Supreme Court’s opinion, which affirmed in part and reversed in part our decision, and the law of the case as established in the remaining portions of our original opinion, that claim is now based solely upon the act of agent Fipps in forging the Clarks’ application for health insurance which was then submitted by Fipps to Security and Security’s later wrongful rescission of the insurance. The extensive record below and the transcript of the trial show unequivocally that the criminal acts relied upon and proven by the Clarks in order to show a “pattern of racketeering activity” were the forgery by Fipps and a series of regulatory and misdemeanor insurance law violations by Security in establishing the Insight Answer insurance plan. As set out by the Clarks in their outline of the case contained in the pretrial order pursuant to which the case was tried,

Mr. and Mrs. Clark claim that Security Life Insurance Company devised a scheme to defraud them and others and executed that scheme by unlawfully selling a life, accident and health insurance policy to them which had not been approved by the Georgia Insurance Commissioner’s office. They further claim that Security Life Insurance Company agents John Fipps . . . falsified their application for insurance and forged their signatures to it before they submitted it to Security Life Insurance Company requesting coverage under an insurance plan known as Insight Answer. After an insurance certificate was issued to Mr. and Mrs. Clark . . . they cancelled their prior insurance coverage. . . . [T]he Plaintiffs claim that Security Life Insurance Company [then] wrongfully rescinded their insurance coverage.

(Emphasis supplied.)

The Supreme Court granted a writ of certiorari specifically addressed to the subject matter of Divisions 1 (a) (judicial notice of acts of the insurance commissioner), (b) (failure to file the policy with the commissioner and other insurance code and regulatory violations as predicate acts), and (d) (vicarious liability of Security for Fipps’ forgery) of Security Life Ins. Co. v. Clark, 229 Ga. App. 593 (494 SE2d 388) (1997). See Monteith v. Story, 255 Ga. 528, 529 (341 SE2d 1) (1986); Rives v. Atlanta Newspapers, 111 Ga. App. 6 (2) (140 SE2d 304) (1965).

In Clark v. Security Life Ins. Co. &c., 270 Ga. 165 (509 SE2d 602) (1998), the Supreme Court held, regarding Division 1 (a), that this Court had improperly taken judicial notice of a purported filing with the Georgia Insurance Commissioner and, regarding Division 1 (d), had applied the incorrect standard in considering whether the trial court properly submitted to the jury the issue of vicarious liability of Security for the acts of Fipps, its agent, in falsifying and forging the Clarks’ application for insurance. The Supreme Court concluded that the proper standard was that of vicarious criminal liability, not the vicarious tort liability standard which had been applied by this Court. The Supreme Court found that there was some evidence that “Security Life recklessly tolerated the forgery by not investigating the charge of forgery and by pressing its rescission claim long after learning that Fipps forged the application,” thereby justifying submitting the issue of Security Life’s vicarious criminal liability for the forgery to the jury. Clark, 270 Ga. at 168 (2). Such a conclusion does not, however, as held by the majority, mandate reinstitution of the verdict and judgment for the Clarks on their RICO claim which required proof of a “pattern of racketeering.” One act of forgery does not make a pattern, and the Supreme Court did not say that it did.

While Divisions 1 (a) and (d) of our original opinion are vacated pursuant to Clark, supra, as correctly held by the majority, Division 1 (b) (failure to file the policy with the commissioner and other insurance code and regulatory violations as predicate acts) as affirmed by the Supreme Court is binding and compels the conclusion that the Clarks failed to prove the two requisite predicate acts. Division 1 (c) (failure of the Clarks to show proximate cause), which was not addressed by the Supreme Court, remains the law of the case. Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730 (514 SE2d 201) (1999); Dicks v. Zurich American Ins. Co., 231 Ga. App. 448 (499 SE2d 169) (1998).

Therefore, in my opinion, the judgment of the trial court entered on the Clarks’ RICO claim must be reversed because the Clarks failed to prove a RICO claim as a matter of law; Security moved for a directed verdict on this basis; and it should have been granted as a matter of law. Clark, supra. This matter should be remanded to the trial court with direction that judgment be entered in favor of Security Life on the RICO claim.

Additionally, Security’s motion for directed verdict specifically included as a ground that, even if there had been any other proof of acts which would constitute predicate acts under RICO, there was no proof of the causation required to be shown between those acts and harm to the Clarks, as fully discussed in Division 1 (c) of our original opinion, and Security was legally entitled to judgment. Division 1 (c) does not, as erroneously stated by the majority, have to “yield” to the Supreme Court since the Supreme Court did not in any way address the issue discussed therein; Division 1 (c) is in no way inconsistent with the Supreme Court’s opinion; and Division 1 (c) remains the law of the case. Ford, supra; Dicks, supra.

The majority’s reliance on obiter dicta of the Supreme Court’s Division 3 of Clark, supra, for affirming the judgment is disingenuous at best.

The Supreme Court held that:

Violations of the insurance code, which are misdemeanors, [OCGA § 33-1-7], are not included in this definition [of “racketeering activity,” OCGA § 16-14-4], and we decline to broaden the legislative definition of prohibited activities. Therefore, the court of appeals was correct in holding that the failure to file the policy, standing alone, cannot serve as a basis for liability under RICO. This conclusion, however, does not preclude a plaintiff from establishing a RICO claim through proof of an insurance fraud scheme if that scheme as a whole meets the definition of racketeering activity under OCGA § 16-14-3 (9).

Decided July 30, 1999

Reconsideration denied August 24, 1999

Sutherland, Asbill & Brennan, William D. Barwick, Teresa W. Roseborough, Robert J. Neis, Amelia T. Rudolph, for appellant.

(Footnotes omitted.) Clark, 270 Ga. at 168 (3).

As reflected by the pretrial order quoted supra, the only illegalities claimed by the Clarks in addition to the forgery of Fipps were those misdemeanor insurance code violations which were held not to provide a basis for RICO liability. In this case, the only judgment being considered by this Court and the Supreme Court, the Clarks failed to show an insurance fraud scheme as part of a RICO scheme or any other predicate act and failed to prove that any such scheme proximately caused their damages. That some other plaintiff in some other case on some other day might be able to show an insurance fraud scheme as racketeering activity does not assist the Clarks and is obiter dictum as to the judgment being reviewed. The statement was not necessary to the holding and was not supported by authority, Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996), constituted no ruling on the issue, Veal v. Barber, 197 Ga. 555, 560 (1) (30 SE2d 252) (1944), and is not binding on this Court. Peacock v. Peacock, 196 Ga. 441, 449 (26 SE2d 608) (1943); Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649, 652 (481 SE2d 612) (1997).

2. Additionally, the Supreme Court’s opinion did not address Division 2 of our original decision, dealing with the trial court’s direction of a verdict for the Clarks on their wrongful interference with property rights claim. Security Life Ins. Co. v. Clark, supra, 229 Ga. App. at 603 (2). Therefore, the most to which the Clarks are entitled on that claim is a new trial.

3. Security Life’s seventh enumeration of error was also meritorious because awarding the total face value of the Clarks’ insurance policies as damages on the RICO claim or the interference with property rights claim was error. See Walker v. Grand Intl. Brotherhood of Locomotive Engineers, 186 Ga. 811, 820 (199 SE 146) (1938); Brothers &c. of Charity v. Renfroe, 57 Ga. App. 646, 653 (4) (196 SE 135) (1938); Prudential Ins. Co. &c. v. Ferguson, 51 Ga. App. 341, 345 (180 SE 503) (1935).

At trial, the only damages proven by either Clark as a result of the forged application and later wrongful rescission of their coverage was that, as of February 1996, Mr. Clark had submitted to Security claims in the amount of $62,330.41 which had not been paid. Mrs. Clark did not testify at the trial, and there is no evidence of any damages suffered by her as a result of these acts.

I am authorized to state that Presiding Judge Blackburn and Judge Ruffin join in this dissent.

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Preyesh K. Maniklal, William S. Stone, Kevin R. Dean, for appellees.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Harold D. Melton, Alan Gantzhorn, Senior Assistant Attorneys General, Beckmann & Pinson, William H. Pinson, Jr., Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Morris, Manning & Martin, Lewis E. Hassett, Bovis, Kyle & Burch, Steven J. Kyle, Love & Willingham, Allen S. Willingham, Jones, Cork & Miller, Thomas C. Alexander, Duncan & Mangiafico, George E. Duncan, Jr., Douglas Campbell & Associates, Douglas N. Campbell, Edward H. Nicholson, Jr., amici curiae.

       The second agent is no longer a party to this case.

       We note that, in light of the Supreme Court’s footnote 11 of Division 2, proving a RICO violation against the corporation would be problematic at best because RICO is not a statute by which the legislature intended to impose criminal liability upon a corporation and there was no proof of any acts of directors or managerial officials of Security which constituted a crime chargeable by indictment pursuant to OCGA § 16-14-3 (9) (A). Cobb County v. Jones Group, 218 Ga. App. 149, 153 (3) (460 SE2d 516) (1995). In addition to the insurance code and regulatory violations, which the Supreme Court found were not predicate acts, the only predicate act proven was Fipps’ forgery. One incident of racketeering does not prove a RICO violation, even if legally attributable to the corporation. OCGA § 16-14-3 (8).


author: Ruffin, Judge.

text:
    A99A0793.
    BAIN v. THE STATE.
    (521 SE2d 832)
   Ruffin, Judge.

A jury found Tracy Lynn Bain guilty of criminal trespass by scratching the paint on the side of a vehicle. Bain appeals, arguing that the evidence was insufficient to support her conviction and that the trial court erred in admitting evidence of her threats against a witness for the State. Finding no error, we affirm.

1. The standard of review governing challenges to the sufficiency of the evidence following a criminal conviction is as follows:

[T]he evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

(Punctuation omitted.) Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

Viewed in the light most favorable to the verdict, the evidence showed as follows. On the afternoon of December 5, 1997, someone scratched the paint on the side of a GMC Yukon truck belonging to Rick Garland, the owner of Garland Sales, a rug manufacturer in Whitfield County. Around noon that day, Linda Haley and Tracy Durden, former employees of Garland Sales, came by the Garland Sales office to retrieve their paychecks. According to Teresa Ensley, Human Resources Manager at Garland Sales, it is company policy that paychecks are not available until after 2:30 p.m. Ensley told Haley and Durden that their checks were not ready, and the women grew angry and left.

At approximately 2:30 that afternoon, Garland arrived at work and parked his truck in front of the entrance to the office, about ten to fifteen feet from the building. Shortly thereafter, Haley and Dur-den returned to the office to pick up their paychecks, parking their car directly behind Garland’s truck. With them was a third woman, Tracy Bain, who did not work at Garland Sales. Ensley and Pamela Phelps, another office employee at Garland Sales, testified that Bain appeared to be drunk, as her speech was unclear and she was stumbling and bumping into things. Ensley gave Haley and Durden their checks, and they returned to the car.

Bain asked to use the restroom, which was reserved for the four women who worked in the front office, and Phelps agreed. Bain remained in the restroom for what appeared to be a long time. Upon emerging, she told Phelps and Ensley that she had thrown up and “made a mess.” Bain then left the building, walking past Garland’s truck on her way out to the car. As she left, Bain laughed and lifted her shirt up as if showing something to the women waiting in the car.

Phelps and Ensley went into the restroom to see if Bain had cleaned up the restroom. They discovered tampons and broken cosmetics strewn on the floor, and they noticed that several items, including a curling iron and some baby clothes, were missing. Both Phelps and Ensley testified that they had used the restroom within the previous 30 minutes and that it had been clean and no items were missing. Ensley testified that no one else had used the restroom during that period.

After inspecting the restroom, Ensley ran out the front door of the office to stop the women, but they were already driving away. Ensley then returned to the office and began to tell Garland what had happened. At that point Garland’s son, Ricky Garland, entered the office and announced that someone had scratched his father’s truck. Garland testified that Ricky delivered this news approximately five to ten minutes after Garland parked at the office. Garland further testified that the scratch marks were not present when he arrived, and Ricky testified that the marks had not been there when he saw his father’s truck that morning. None of the witnesses who testified actually saw the truck being scratched. Garland testified that the cost of repairing the scratches was between $200 and $300.

Monica Manis, an acquaintance of Bain’s who works at Garland Sales, testified that she saw Bain at the Golden Gallon, a local business, later that day. According to Manis, Bain bragged that she had scratched Garland’s truck, saying that she had “keyed the hell out of the S.O.B.” Linda Ralston, another employee of Garland Sales who is acquainted with Bain, testified that she saw Bain the following afternoon at the Golden Gallon. According to Ralston, Bain said, “Have you seen what I done to your bossman’s truck — or heard about what I done to your bossman’s truck?” Ralston, who had left work the previous day before the incident, replied that she had not. Bain said that she had “keyed the f — k out of it.” Ralston testified that Bain’s statement was the first time she learned about the scratches on Garland’s truck.

The essential elements of criminal trespass include (1) intentional damage to the property of another, (2) without the other person’s consent, (3) resulting in damage of $500 or less. OCGA § 16-7-21 (a). The evidence that Bain bragged to two acquaintances about having “keyed” the truck, coupled with the strong circumstantial evidence discussed more fully below, was sufficient to authorize the jury’s verdict. See In the Interest of R. L. W., 225 Ga. App. 253, 254-255 (2) (483 SE2d 361) (1997).

Bain argues that the testimony of Manis and Ralston must be discounted because both witnesses admitted that criminal charges were pending against them in Whitfield County. Both women also testified, however, that no one from law enforcement talked to them about their charges or promised them anything in exchange for testifying against Bain. In addition, Ralston testified that Bain made several threats against her after learning that she planned to testify. Specifically, Bain said that she could report Ralston to the Department of Family & Children Services, that she could “do to [Ralston] what [she] done to her brother one time,” and that she knew Ralston was on probation. Both Ralston and Manis testified that they did not want to be in court. Notwithstanding the pending charges against Manis and Ralston and their status as employees of Garland, the jury chose to believe them. Credibility determinations are solely within the province of the jurors, and we will not disturb such determinations on appeal. Williams v. State, 227 Ga. App. 147, 148 (1) (488 SE2d 708) (1997).

Decided August 24, 1999.

Coppedge, Leman & Ward, David L. McGuffey, for appellant.

Bain also argues that her alleged statements to Ralston and Manis were insufficient to sustain her conviction absent corroborating evidence of her guilt. Where the State relies on a defendant’s confession, the State must introduce “additional evidence which corroborates it.” Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998); see also OCGA § 24-3-53. We reject Bain’s contention that the State failed to present such evidence.

Although no witness saw Bain damage the truck, there was strong circumstantial evidence linking her to the crime. Based on Garland’s testimony, it appeared that the truck was scratched during a ten-minute period from the time Garland arrived at work and the time his son informed him of the damage. Both Phelps and Ensley testified that Bain walked past Garland’s truck during this period, and Ensley stated that she saw Bain near the truck. Bain’s companions reportedly were angry that their paychecks were not available sooner, giving Bain a possible motive for damaging the truck. In addition, Phelps and Ensley testified that Bain created a mess and took items from the restroom just before leaving, suggesting a destructive state of mind. This circumstantial evidence was sufficient to corroborate Bain’s confessions. See Stowers v. State, 205 Ga. App. 518-519 (1) (422 SE2d 870) (1992) (defendant’s admission to certain facts of crime, coupled with circumstantial evidence, was sufficient to support conviction).

2. In her second enumeration of error, Bain contends that the trial court erred by admitting evidence of her threats against Ral-ston. Bain argues that the alleged threats were character evidence unrelated to the criminal trespass. However, we have held that “[a]ny statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against [her] upon [her] trial for committing it.” (Punctuation omitted.) Conner v. State, 160 Ga. App. 202, 203 (4) (286 SE2d 441) (1981) (evidence that defendant procured a “hitman” to kill accomplice and co-indictee who planned to testify against him was properly admitted); see also Payne v. State, 152 Ga. App. 471, 473 (3) (263 SE2d 251) (1979); Smith v. State, 142 Ga. App. 1, 3-4 (4) (234 SE2d 816) (1977). Accordingly, the trial court did not err in admitting the evidence of the threats.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.

       Bain maintains that the evidence of her guilt was purely circumstantial. We disagree. Bain’s statements to Ralston and Manis that she “keyed” Garland’s truck constituted confessions, as they were “ ‘[a]n admission of the main fact, from which the essential elements of the criminal act charged may be inferred.’ ” (Punctuation omitted.) Sanford v. State, 153 Ga. App. 541, 543 (4) (265 SE2d 868) (1980); see also Piefer v. State, 228 Ga. App. 385, 386 (1) (491 SE2d 836) (1997) (defendants’ bragging statements to friends about committing armed robbery were “confession[s] to others”). As such, Bain’s statements were direct evidence of her guilt. Yarn v. State, 265 Ga. 787, 788 (2) (462 SE2d 359) (1995).


text:
    A99A1340.
    HARDEN v. THE STATE.
    (521 SE2d 829)
   Ruffin, Judge.

A jury found Odell Harden guilty of violating the Georgia Controlled Substances Act by selling cocaine. The trial court sentenced him to thirty years, with five years to serve and twenty-five years on probation. Harden appeals, asserting multiple errors. As Harden’s assertions lack merit, we affirm.

1. In his first enumeration of error, Harden challenges the sufficiency of the evidence. Following his criminal conviction, Harden no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Reviere v. State, 231 Ga. App. 329, 333 (6) (498 SE2d 332) (1998). In so doing, we neither weigh the evidence nor determine witness credibility, but merely determine whether the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Reviere, supra.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that on October 23, 1996, Police Officer Don Chapman was working as an undercover officer in an area known for drug sales. While driving a truck slowly through the neighborhood, Chapman made eye contact with a pedestrian, Carolyn Rowe. According to Chapman, he had a hunch that Rowe was a “bladerunner” — a person with a drug habit who facilitates drug sales for dealers in exchange for drugs.

Chapman stopped his truck, and Rowe approached him. Chapman told Rowe that he was looking for a “forty,” which, in street terms, means $40 worth of cocaine. Rowe directed Chapman to another location where he could obtain the drugs.

After Chapman drove to the location specified by Rowe, Rowe arrived on foot. Rowe indicated that she would return shortly, and she walked toward a house. Approximately five minutes later, Rowe returned to the truck with Harden. Rowe handed Chapman crack cocaine. Harden then said “Let me — let me hold it. . . . Let me hold the money. Come on man.” Chapman handed the money to Rowe, who was standing closer to him. As Rowe and Harden walked away, the two were arrested.

This evidence was sufficient to support the jury’s determination that Harden participated in the sale of cocaine to Chapman. Rowe told Chapman that she would have to get the crack cocaine elsewhere. When Rowe returned with the crack cocaine, she was accompanied by Harden, which supports an inference that Harden supplied the drugs. After Rowe, gave Chapman the cocaine, Harden demanded the money. Even if Harden was not treated as the actual seller, the jury was authorized under these circumstances to find Harden guilty of being a party to the sale of cocaine. See Clay v. State, 232 Ga. App. 541-542 (1) (502 SE2d 267) (1998).

At trial, Harden testified that he had loaned Rowe $10 and that he went with her to Chapman’s truck to get the money he was owed. He denied participating in the drug deal and claimed that he never saw Rowe hand Chapman the drugs. Although Harden denied any participation, “the credibility of witnesses and the resolution of such conflicts are for the jury.” (Punctuation omitted.) Al-Beti v. State, 210 Ga. App. 312 (1) (436 SE2d 50) (1993). The jury clearly found Harden’s testimony incredible, and we will not disturb this finding on appeal.

2. Harden contends that, during the sentencing phase, the trial court erred in admitting a copy of his prior conviction for armed robbery absent a showing that he had voluntarily pled guilty. Thus, Harden maintains that the prior conviction should not have been considered as a basis for enhanced sentencing under OCGA § 17-10-7. “However, [Harden] failed to object to the use of [this] conviction! ] in the sentencing portion of the trial. As a result, we cannot review this alleged error on appeal.” McKay v. State, 234 Ga. App. 556, 560 (3) (507 SE2d 484) (1998).

3. Harden asserts that the trial court erred in sentencing him to the maximum penalty prescribed in OCGA § 16-13-30 based upon the sentencing mandate contained in OCGA § 17-10-7. Under OCGA § 16-13-30 (d), a person may be “punished by imprisonment for not less than five years nor more than 30 years” for a first conviction of selling cocaine. OCGA § 17-10-7 (a) provides, in pertinent part, that

any person convicted of a felony offense in this state . . . , who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

According to Harden, the lack of discretion in OCGA § 17-10-7 (a) “emasculates” the discretion contained in OCGA § 16-13-30 (d), thus creating a conflict. Harden argues that OCGA § 17-10-7 (a) should not apply to OCGA § 16-13-30 absent express instruction from the legislature. This argument has no merit.

Initially, we see no conflict between OCGA § 16-13-30 (d) and OCGA § 17-10-7 (a). “OCGA § 17-10-7 provide[s] for enhanced sentencing of repeat offenders where no other sentencing provision con-trolfs].” Mikell v..State, 270 Ga. 467, 468 (510 SE2d 523) (1999). In Mikell, the Supreme Court noted that OCGA § 16-13-32.5 (c) (2) provides specific sentencing provisions for repeat convictions under OCGA § 16-13-32.5 (b). Id. at 467-468. Here, however, OCGA § 17-10-7 is the only recidivist provision that governs the situation where a defendant, who has a prior felony conviction for armed robbery, is subsequently convicted of a felony for selling cocaine. Thus, the trial court correctly applied this Code section in sentencing Harden.

Moreover, we note that Harden’s 30-year sentence was within the statutory limits set by OCGA § 16-13-30 (d). “We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in OCGA § 17-10-6.” (Punctuation omitted.) Taylor v. State, 232 Ga. App. 825, 827 (7) (502 SE2d 540) (1998).

4. Harden argues that the trial court erred in depriving him of a thorough and sifting cross-examination of Chapman. On cross-examination, Harden’s attorney posed the following question to Chapman: “[M]ost of these people on these . . . crime busts are generally two things, poor and black, is that right?” The State objected on relevance grounds, and the trial court sustained the objection.

As we recently reiterated,

[although a defendant has a right to a thorough and sifting cross-examination of the witness, the scope of cross-examination is not unlimited, and the extent of examination is largely within the discretion of the trial judge and will not be controlled by an appellate court except for abuse of discretion. Moreover, although the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court.

(Citations and punctuation omitted.) Bell v. State, 235 Ga. App. 825 (510 SE2d 589) (1998). Here, the trial court did not abuse its discretion in refusing to allow Harden to question Chapman about the race and/or income level of other arrestees as the testimony was not relevant to Harden’s guilt or innocence. See Sandoval v. State, 264 Ga. 199, 200 (2) (a) (442 SE2d 746) (1994) (evidence as to race is not admissible where it is not relevant to any issue).

Decided August 24, 1999.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

5. Harden contends that the trial court erred in refusing to instruct the jury on mistake of fact pursuant to his written request. He contends that such charge was warranted because he “did not participate in the sale. He simply wanted the money that was owed him [by Rowe].” We disagree.

“When there is a timely written request for an instruction on an affirmative defense that is supported by evidence, it is reversible error to fail to give the instruction, whether verbatim or in substance.” (Punctuation omitted.) Sapp v. State, 179 Ga. App. 614, 615 (2) (347 SE2d 354) (1986). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998).

In this case, the evidence presented did not raise the issue of mistake of fact. “Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime.” (Punctuation omitted.) Randall v. State, 234 Ga. App. 704, 705 (1) (507 SE2d 511) (1998). Pursuant to OCGA § 16-3-5, a mistake of fact is “a misapprehension of fact which, if true, would have justified the act or omission.” Here, Harden’s defense was not a mistake of fact, but was to deny committing the crime alleged. “[Harden] cannot deny committing an act, while at the same time argue he committed the act by mistake.” (Punctuation omitted.) Willingham v. State, 235 Ga. App. 475, 477 (2) (509 SE2d 744) (1998). Moreover, if Harden participated in the drug sale, the fact that he did so because he was owed money by Rowe would not justify his act. Under these circumstances, the trial court did not err in refusing to instruct the jury on mistake of fact.

Judgment affirmed.

McMurray, P. J, and Andrews, P. J., concur.


text:
    A99A1866.
    TOLBERT v. THE STATE.
    (521 SE2d 827)
   Johnson, Chief Judge.

Following a retrial of his case, a jury found Henry Tolbert, Jr. guilty of aggravated assault. Tolbert appeals, and we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that the victim was driving some friends to get something to eat. After parking his car, the victim and the other occupants of the vehicle saw Tolbert walking across the street. Tolbert then started shooting into the car, striking the victim. Tolbert claimed someone in the car pointed a gun at him and that shots were fired from the car. All occupants of the vehicle denied speaking with, threatening or pointing a gun at Tolbert.

1. In his first enumeration of error, Tolbert claims the trial court erred in finding that one of the victims was unavailable to testify and in allowing his testimony from the previous trial to be presented at the retrial. We disagree. OCGA § 24-3-10 allows such evidence when the witness is inaccessible. Tolbert contends the state was not properly diligent in its search for the witness and therefore did not lay a proper foundation of inaccessibility.

The determination as to the inaccessibility of a witness and a party’s diligence in searching for a witness is within the sound discretion of the trial court and will not be disturbed unless a manifest abuse of discretion is shown. See Ortiz v. State, 222 Ga. App. 432, 433 (2) (474 SE2d 300) (1996); Barry v. State, 214 Ga. App. 418, 420 (2) (448 SE2d 243) (1994). To prove the witness’ inaccessibility and its own diligence, the state showed that the sheriff’s office began attempting to serve trial subpoenas upon the witness approximately two weeks before the trial started. During these attempts, the officers learned from the witness’ grandmother that the witness may have moved to New Jersey. The witness’ grandmother testified at the hearing held on this matter that she raised the witness and that in the last twenty-two years he had never been gone from her house more than two or three nights. She further testified that when the witness moved from her home over a month ago, he did not tell her where he was going. She had received only one phone call from the witness and he made no mention of where he was or when he would return. Based on this evidence, we cannot say that the trial court abused its discretion in determining that the state acted diligently and the witness was inaccessible. See Holmes v. State, 271 Ga. 138, 140 (2) (516 SE2d 61) (1999); Ortiz, supra; Barry, supra.

Contrary to Tolbert’s argument, this case is distinguishable from Rosser v. State, 211 Ga. App. 402, 403-406 (1) (439 SE2d 72) (1993), overruled on other grounds, Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997). In Rosser, unlike the present case, the witness’ name did not appear on any witness list, the defendant did not have an opportunity to cross-examine the witness, and the prosecutor did not begin to search for the witness until three to four days prior to trial. Id. This enumeration of error lacks merit.

2. Tolbert also contends the trial court erred in including the presumption of truthfulness in its charge to the jury. The record shows that the trial court charged the jury as follows:

Decided August 24, 1999.

Benjamin Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

I charge you, ladies and gentlemen of the jury, if upon consideration of the evidence in the case, if you find that there is a conflict in the testimony between one or more witnesses or a conflict between various witnesses, then it is your duty to reconcile this conflict, if you can, so as not to attribute a false statement to any witness sworn. All witnesses who take the stand and testify are presumed to speak the truth. However, if the evidence is so different or so irreconcilable that you cannot do this, then you should believe that witness or those witnesses whom you think are most entitled credit and belief.

While Tolbert correctly states that both this Court and the Supreme Court have recommended that such a charge not be used, the Supreme Court has found that the charge is neither unconstitutional nor reversible error. Whatley v. State, 270 Ga. 296, 300 (10) (b) (509 SE2d 45) (1998); Baxter v. Kemp, 260 Ga. 184,186 (5) (391 SE2d 754) (1990); Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175) (1986). Therefore, this enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: Phipps, Judge.

text:
    A99A0954.
    HUDSON v. MEHAFFEY.
    (521 SE2d 838)
   Phipps, Judge.

Appellant-plaintiff Cathy Hudson initially filed an action against appellee-defendant Barbara Mehaffey on July 18,1997, seeking to recover damages for personal injuries sustained in a July 20, 1995 automobile collision. On August 4, 1997, Hudson filed a voluntary dismissal without prejudice. The DeKalb County Sheriff’s Office served Mehaffey with the initial summons and complaint on August 20.

On April 15,1998, Hudson filed a separate action against Mehaf-fey for the same injuries and alleged that it was a renewal of the former action. The sheriff’s office served Mehaffey with the second action on April 16. In response, Mehaffey answered the complaint and filed a motion to dismiss based on Hudson’s failure to file the second action prior to the expiration of the two-year statute of limitation. In a one-sentence order, the trial court granted Mehaffey’s motion to dismiss. Hudson appeals that order.

There is no dispute that Hudson’s initial action was filed prior to expiration of the applicable two-year statute of limitation, OCGA § 9-3-33, or that the dismissal of that action was filed after the limitation period had expired. Pursuant to OCGA § 9-2-61 (a), an action initially brought within the statute of limitation and dismissed by the plaintiff may be recommenced within six months after the dismissal; however, if the dismissal occurs outside the statute of limitation, the renewal privilege may be exercised only once.

The renewal statute applies only to actions that are valid prior to dismissal. Osborne v. Hughes, 200 Ga. App. 558, 559 (409 SE2d 58) (1991). To constitute a “valid action,” the complaint must be served personally on the defendant. Id.; see also Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994) (original suit is void if service is not perfected because filing of complaint without perfecting service does not constitute pending suit). Thus, if Hudson did not serve Mehaffey in the original suit prior to dismissal, she cannot utilize the renewal statute to avoid the statute of limitation bar to her second suit.

Hudson argues that the dismissal, although filed on August 4, 1997, was not effective until October 20, 1997, when Hudson contends Mehaffey’s counsel was first served with the dismissal. According to Hudson, the renewal statute applies because the first suit was never effectively dismissed until after service on Mehaffey, making the first suit valid prior to dismissal. Hudson relies on Moore v. Candler Gen. Hosp., 185 Ga. App. 280, 281 (1) (363 SE2d 793) (1987); Patterson v. Professional Resources, 140 Ga. App. 315, 317 (4) (a) (231 SE2d 88) (1976); and Jones v. Jones, 230 Ga. 738, 740 (2) (199 SE2d 239) (1973), for the proposition that a complaint is not dismissed until opposing counsel is served with or receives notice of the dismissal. In Jones, the court expressed the rationale behind the rule — it would be unfair to allow a plaintiff to voluntarily dismiss a case without notice to the defendant who may continue to expend time and money in investigating and pursuing a defense in a case that no longer exists.

However, none of those cases involved a situation where the dismissal was filed prior to service of the complaint. Where an action is dismissed before service of the complaint, there is no pending action to serve. In addition, we are not presented with the policy concerns expressed in Jones because Mehaffey claims no prejudice based on any lack of notice of the dismissal. Moreover, the facts here differ greatly from those in Moore, supra (defendants first learned of notice of dismissal at hearing on their motions for summary judgment); Patterson, supra (defendant moved to strike dismissal filed after entry and filing of final order and judgment); and Jones, supra (defendant filed counterclaim prior to service of voluntary dismissal). There is no evidence that Mehaffey expended time or incurred expense prior to receiving notice of Hudson’s dismissal or that Mehaffey lost the opportunity to pursue potential claims against Hudson based on lack of notice of the dismissal. In these circumstances, Hudson cannot take advantage of her failure to serve the dismissal upon filing to extend the statute of limitation.

Decided August 26, 1999.

Yokely & Associates, Daryl V. Yokely, Tracy L. Parsons, for appellant.

Harper, Waldon & Craig, Russell D. Waldon, Jonathan M. Adel-man, for appellee.

If Hudson had waited until service was perfected prior to filing the dismissal of the first action, she could have preserved her right to renew the action within six months. However, because the complaint was not served on the defendant prior to dismissal, the first action is not valid. Osborne, supra at 559. Therefore, the renewal statute is not available to allow Hudson to avoid the statute of limitation bar to her second suit.

Judgment affirmed.

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

       The record contains no evidence regarding the actual date or manner in which Mehaffey or her counsel first received notice of the dismissal. We cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Hixson v. Hickson, 236 Ga. App. 894, 895 (1) (512 SE2d 648) (1999).


text:
    A99A1874.
    WOOD v. THE STATE.
    (522 SE2d 51)
   Johnson, Chief Judge.

After a jury trial, Kenneth Wood was convicted of burglary. He appeals from the conviction.

1. Wood claims the evidence is insufficient to support the conviction. The claim is without merit.

Two participants in the burglary, a woman who is the sister of the victims’ son-in-law and a man who was Wood’s roommate, testified at trial against Wood. The two accomplices testified that they, two other women and Wood drove to the victims’ unoccupied house late one night for the purpose of burglarizing it. Wood tried to gain entry to the house by breaking a door window, but he was then unable to unlock and open the door. The group eventually found an unlocked bedroom window which they opened and through which they gained access to the house. All five members of the group entered the house and stole various items. They left the house with the stolen items and then returned a short time later to steal more things from inside the house.

The owner of the house testified that he and his wife were on vacation at the time of the burglary, that their housekeeper called them to report the burglary, that they returned to find their house ransacked and approximately $32,000 worth of property missing. He contacted the police several days after the burglary to inform them that he had discovered that one of the burglars was his son-in-law’s sister.

A police investigator testified that the son-in-law’s sister gave a statement admitting her participation in the burglary and identifying all the burglary participants, including Wood. She also helped the police recover some of the stolen property. Wood’s roommate also gave a statement to police identifying Wood as a participant in the burglary. The investigator further confirmed that entry into the burglarized house had not been made through the locked door with the broken window, but had been made through an unlocked bedroom window.

Contrary to Wood’s claim, the corroborating testimony of his two accomplices, along with the further corroboration of the victim and the investigator, was sufficient evidence to authorize the jury’s finding that he is guilty beyond a reasonable doubt of burglary. See Sparks v. State, 234 Ga. App. 11, 12 (1) (505 SE2d 555) (1998); Flanders v. State, 230 Ga. App. 316, 317-318 (1) (496 SE2d 344) (1998). The judgment of conviction is therefore not reversible based on the claim of insufficient evidence. See Brady v. State, 169 Ga. App. 316, 317 (1) (312 SE2d 632) (1983).

2. Wood complains the court erred in overruling his hearsay objection to the investigator’s testimony that the sister of the victims’ son-in-law told the investigator that Wood had participated in the burglary. Wood argues the court improperly ruled that the testimony was admissible to explain the investigator’s conduct. We agree with Wood that this is not one of those rare instances in which the investigator’s conduct was in issue and needed to be explained, and thus the testimony was not admissible on that basis. See Arnold v. State, 228 Ga. App. 137, 139 (2) (491 SE2d 205) (1997). Nevertheless, the testimony was admissible for another reason.

Under Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998), a witness’s prior consistent statement is admissible where (1) the veracity of the witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.

(Punctuation omitted.) Casillas v. State, 233 Ga. App. 752, 757 (2) (505 SE2d 251) (1998).

In the instant case, the declarant was present at trial and was available for cross-examination. Further, the veracity of her testimony was placed in issue by Wood’s cross-examination attempts to show that she had been under the influence of drugs and alcohol on the night of the burglary and that she was motivated to testify against him by a lenient plea agreement she had entered into with the state. Consequently, her statement to the police investigator identifying Wood as a burglary participant was admissible as a prior consistent statement. See Moore v. State, 234 Ga. App. 424, 426-427 (2) (506 SE2d 925) (1998).

Although this was not the basis expressed by the trial court for admitting evidence of the statement, a trial court’s ruling must be affirmed if it is right for any reason. Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995). We therefore uphold the admission of the investigator’s testimony regarding the accomplice’s prior consistent statement.

3. Wood contends the court erred in denying his motion for a mistrial after one of his accomplices testified that the police found items stolen during the burglary in Wood’s house, which violated a court ruling that there be no such testimony about burglary items found in Wood’s house. The contention provides no basis for reversing the trial court because Wood’s motion for a mistrial was untimely.

Immediately after the accomplice testified that burglary items were found in Wood’s house, Wood objected to the testimony but did not move for a mistrial. The court sustained the objection and instructed the jury to disregard any testimony about items found in Wood’s house. Wood thanked the judge and thereafter conducted a thorough cross-examination of the witness. The state then presented four more witnesses. It was only after the state rested that Wood moved for a mistrial on the basis of the accomplice’s testimony concerning burglary items found in his house.

The trial court correctly denied the untimely motion. “A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” (Citations and punctuation omitted.) Worley v. State, 201 Ga. App. 704, 705 (2) (411 SE2d 760) (1991).

4. Wood argues that the court erred in charging the jury that the intent necessary for the commission of burglary need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator remains on the premises. Wood concedes that this is a correct statement of the law. See Stephens v. State, 232 Ga. App. 738, 739 (1) (503 SE2d 643) (1998). He contends, however, that the charge was inappropriate in this case because the indictment specifically alleges that Wood entered the victims’ house with the requisite intent, and it does not allege that he formed the intent after entry while remaining on the premises. The contention is specious.

Decided August 18, 1999

Reconsideration denied August 27, 1999.

Sam B. Sibley, Jr., for appellant.

Kenneth Wood, pro se.

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

The court read the indictment to the jurors and further instructed them that the state had the burden of proving beyond a reasonable doubt all the essential elements of the crime as alleged in the indictment. The jurors had the indictment with them in the jury room during deliberations and wrote their guilty verdict on the face of the indictment. Considering the entire charge, it is apparent that the court properly limited the jury’s consideration to the manner of burglary set forth in the indictment. Crawford v. State, 188 Ga. App. 841, 842 (2) (374 SE2d 781) (1988). Moreover, given the overwhelming evidence of Wood’s guilt, even if the court’s charge had been erroneous, the error would be harmless. See Earnest v. State, 216 Ga. App. 271, 272 (2) (453 SE2d 818) (1995).

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.