text:
    A99A2166.
    SIMS v. THE STATE.
    (530 SE2d 212)
   Smith, Judge.

Domingo Sims was convicted by a Chatham County jury of three counts of armed robbery. His amended motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Sims enumerates the general grounds. Construed to support the jury’s verdict, the evidence showed that one of the victims drove into downtown Savannah with two of his friends as passengers. After parking, the three remained in the car listening to the radio. A man later identified as Sims tapped at the passenger’s side window with a gun and ordered them out of the car. Once out of the car, the three were confronted by two men with guns. One was Sims wearing a bandanna over the lower portion of his face; the other was an unidentified man wearing a ski mask. The evidence showed that Sims took a wallet and cash from the passengers, while the other robber demanded the driver’s wallet. The driver was “positive” in his identification of Sims as the robber wearing the bandanna. He particularly remembered his “very distinguishing” eyebrows and nose.

Shortly before the robbery, a witness drove upon the scene. He observed two men preparing what he believed to be disguises for a robbery. The witness noticed one man tying a bandanna around his face as he and another man got out of a green Jeep Cherokee. The witness drove around the block and surprised the two men at the victims’ car; when he flashed his headlights, they fled. He was able to record the license plate number on the Jeep, and he reported the incident to the Savannah Police Department.

The victims identified the robber as a black man wearing a vertically striped yellow, blue, and white shirt with the words “South Pole” written on it. The police traced the Jeep to an apartment and were given permission to search by the tenant. Sims and several others were sleeping in the apartment. Police found a shirt identical to the one described by the victims in the “spare bedroom” in which Sims had been sleeping alone. Two ski masks and the wallets of two of the victims were also found in the same room. Of the three victims, only the driver was able to positively identify Sims in a photo lineup and at trial as the robber wearing the bandanna. However, all of the victims identified the striped shirt worn by appellant. Two victims identified the wallets found in the room with Sims as their property.

The day after the robbery, the green Jeep was located, and a business card that had been in the driver’s wallet was found inside. Sims gave a voluntary statement to police in which he stated that he was the only person in the spare bedroom.

The standard of review for purposes of sufficiency is whether a rational jury could have found Sims guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We must construe the evidence to support the jury’s verdict and determine only whether the evidence was sufficient to enable a rational trier of fact to find Sims guilty of the crime of armed robbery. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990), aff'd, 261 Ga. 311 (404 SE2d 787) (1991).

The positive identification of Sims as one of the robbers by his victim sufficiently supported the jury’s verdict. Johnson v. State, 213 Ga. App. 194, 195 (2) (444 SE2d 334) (1994). The testimony of the eyewitnesses and the physical evidence recovered from the apartment further supported a reasonable conclusion that Sims took the property of the victims with the intent to commit theft by use of a gun, an offensive weapon. OCGA § 16-8-41 (a). The evidence was sufficient to enable a rational finder of fact to conclude that Sims was guilty of the crime of armed robbery beyond a reasonable doubt. Id.

2. Sims contends that the trial court erred in admitting his statement to the police. He contends that he was under arrest at the time his statement was given and that Miranda warnings should have been given. We find no error for two reasons.

First, it does not appear that Sims preserved this issue for review. At the beginning of the trial, his counsel indicated that a Jackson-Denno hearing might be required at a later time, and counsel for the State disagreed, stating that Sims was not in custody and therefore no need existed for a hearing. Eventually, when the officer who took Sims’s statement began his testimony, Sims’s counsel approached the bench and stated, “It was my understanding that we were not going into that statement until we had a Jackson-Denno hearing.” The trial court excused the jury and told counsel, “Let me hear outside the presence of the jury a little bit more about the facts and circumstances concerning the statements, and I’ll make a decision on that.” The State questioned the officer about the circumstances of the interview, and Sims’s counsel then questioned the officer. But after concluding his questioning, counsel simply stated, “Okay. Your Honor, there’s one other thing that I would like to cover before the jury comes in.” Shortly afterward, he asked a few more questions of the officer, but after each additional question, his only response was, “Okay.” While the trial court commented to Sims’s counsel after the State’s questioning of the officer, “I mean, there’s nothing custodial about this whole situation at all,” Sims’s counsel never objected to Sims’s statement on the basis of failure to give Miranda warnings, then or at any other time.

In Backey v. State, 234 Ga. App. 265, 266 (2) (506 SE2d 435) (1998), a Jackson-Denno hearing was held regarding admissions made by Backey to the police. The trial court found that the statements were freely and voluntarily given, but Backey made no objection to their admission. We held that Backey had failed to preserve the issue for appeal: “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon the specific ground. As such, Backey has waived the right to raise such issues before this Court.” (Citation and punctuation omitted.) Id.

As in Backey, moreover, even if Sims had preserved this issue for appeal, it is without merit. “Factual and credibility determinations made by a trial court after a Jackson v. Denno hearing will not be disturbed on appeal unless they are clearly erroneous.” (Footnote omitted.) Dixon v. State, 267 Ga. 136, 139 (3) (475 SE2d 633) (1996). To the extent that the trial court ruled in the absence of an objection on this basis by Sims at trial, it found that the police questioning of Sims was not custodial.

“The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous. [Cit.]” Johnson v. State, 234 Ga. App. 116, 118 (2) (506 SE2d 234) (1998).

In determining whether [a suspect] was in custody [for Miranda purposes], a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

(Citations and punctuation omitted.) Stansbury v. California, 511 U. S. 318, 322 (114 SC 1526, 128 LE2d 293) (1994); Manchester v. State, 226 Ga. App. 653, 655 (1) (487 SE2d 449) (1997).

Sims and the other occupants of the apartment were questioned at the police station, but Sims was not arrested or forcibly detained at that time. One of the interviewing officers, Detective Doyle, testified that those questioned were not under arrest and were free to leave at any time. Doyle added that one of those at the station actually left before he was questioned. Doyle directly contradicted the claim made by Sims’s counsel that the door to the interview room was locked, stating, “We don’t lock those doors. I’ve been up there for a long time now and never once [has] one of those doors ever been locked.” Detective Doyle also testified with regard to the assertion made by Sims’s counsel that a videotape showed an officer knocking on the door of the interview room from the inside. In the officer’s opinion, this was not because the door was locked but because the other occupants of the apartment were congregated in the hall outside the interview room as they awaited their turn to be interviewed, and the officer “wanted to let them know he was coming out and maybe they didn’t want somebody to hear what was going on.” Finally, after the session, none of those who were questioned were arrested, and the police offered a ride home to each, including Sims, who apparently declined.

Decided February 22, 2000

C. Jackson Burch, Emory B. Bazemore, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Sims’s reliance on State v. Wintker, 223 Ga. App. 65 (476 SE2d 835) (1996), is without merit. Wintker involved a defendant involuntarily confined in the back of a locked police car with the driver of her parents’ car, who had been handcuffed and placed under arrest, while the police searched the car. Id. at 69. Not only are the facts in Wintker significantly different from those presented here, we examined those facts deferentially in light of the trial court’s ruling in favor of the defendant in that case.

Sims was asked to come down to the police station for questioning in an interview room, was told that he was free to leave, and in fact left after questioning without being charged or detained. He was not “in custody” for purposes of Miranda. See Hendrix v. State, 230 Ga. App. 604, 605-606 (1) (497 SE2d 236) (1997). The trial court’s finding that Sims was not in custody was not clearly erroneous.

Judgment affirmed.

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

       The transcript reveals that the primary aim of Sims’s counsel was the exclusion of Sims’s statement to police that he had been arrested for armed robbery the year before. Counsel was successful in excluding this remark.

       The trial court also ruled in response to Sims’s motion for new trial that “ [defendant's assertion that he was in a locked room during questioning has absolutely no basis in fact.”


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A2220.
    WILKINSON v. UDINSKY et al.
    (530 SE2d 215)
   Miller, Judge.

Acting pro se, James E. Wilkinson filed a complaint against the Chatham County Board of Assessors and Gary Udinsky, Chief Appraiser, alleging among other things an improper change in the fair market value of his property. The defendants moved to dismiss on several grounds. The trial court subsequently dismissed the complaint for failure to comply with the appeals process of OCGA § 48-5-311 and for failure to effectuate proper service in accordance with OCGA § 9-11-4. Wilkinson appeals this dismissal. We affirm.

1. Wilkinson claims that the trial court erred in dismissing his complaint due to the failure to properly serve the defendants. On the issue of improper service, the court is the trier of fact, and in the absence of legal error, we are without jurisdiction to interfere with a verdict supported by some evidence.

“A suit commences only after the filing of a petition and the proper service of process upon the defendant as required and authorized by law.” OCGA § 9-11-4 (c) restricts who may serve process, stating:

Process shall be served by the sheriff of the county . . . or by his deputy, or by the marshal or sheriff of the court, or by his deputy, or by any citizen . . . specially appointed by the court for that purpose or by someone who is not a party . . . and has been appointed as a permanent process server by the court.

Plainly stated, “personal service must be made by an authorized person.”

The record shows that Wilkinson filed his complaint and that a summons was signed by the clerk. But both Udinsky and his secretary submitted affidavits stating that “[a] man who did not identify himself or show any identification” delivered copies of the complaint to Udinsky’s office. Both stated that the complaint was not served by a sheriff or deputy nor did the person identify himself as someone specially or permanently appointed by the court to serve process. No special or permanent appointment appears in the record. Udinsky further stated that a summons did not accompany the complaint, a requirement under OCGA § 9-11-4 (d).

Decided February 22, 2000.

James E. Wilkinson, pro se.

Emily E. Garrard, for appellees.

“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Here the defendants presented affidavits that service was improper. The burden then shifted to Wilkinson to provide additional evidence in support of proper service, which he failed to do. Here, the record contains no affidavit or certificate of service as required by OCGA § 9-11-4 (g) to prove that the summons and complaint were properly served.

Pretermitting whether Wilkinson followed the correct procedure for appealing from an assessment, the evidence shows that he failed to effectuate proper service of process. In the absence of service in conformity with OCGA § 9-11-4, the court does not obtain jurisdiction over the defendant.

Because there was some evidence to support the ruling, the court did not err in granting the defendants’ motion to dismiss.

2. Wilkinson contends that the court erred in dismissing his complaint “without specifying which section of the code [it] was referring to.” Pretermitting whether such is required, the record reflects that the court made sufficient reference to each Code section serving as the basis for the dismissal.

3. Wilkinson’s remaining enumeration of error has been considered and is found to be without merit.

Judgment affirmed.

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

        Yeary v. Bell, 228 Ga. App. 522, 524 (2) (492 SE2d 278) (1997).

       (Citations omitted.) Thorburn Co. v. Allied Media of Ga., 237 Ga. App. 800, 802 (1) (516 SE2d 833) (1999).

       See Yeary, supra, 228 Ga. App. at 522-523 (2).

       (Citations and punctuation omitted.) Zimmerman v. Hammer, 220 Ga. App. 864, 865 (470 SE2d 688) (1996).

       (Punctuation and footnote omitted.) Baughan v. Alaoui, 240 Ga. App. 661, 663 (1) (524 SE2d 536) (1999); Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995).

       See id.

       See Baughan, supra, 240 Ga. App. at 663 (1) (return of service is a prima facie showing of personal service); Yelle, supra, 216 Ga. App. at 47.

        DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 626 (4) (193 SE2d 852) (1972); Elmore v. Elmore, 177 Ga. App. 682, 683 (2) (340 SE2d 651) (1986).


author: Johnson, Chief Judge.

text:
    A99A2228.
    MULTIFAMILY MORTGAGE TRUST 1996-1 et al. v. ARA ASSOCIATES-SHANGRI-LA, LTD. et al.
    (530 SE2d 217)
   Johnson, Chief Judge.

In this case, the borrower and guarantor of a federally insured mortgage loan entered into a forbearance agreement designed to stop foreclosure on a security deed after the borrower defaulted on the loan payments. The forbearance agreement required that the borrower make minimum monthly payments to the lender and also pay the lender any funds the borrower had in an operating account each month in excess of $42,015 after the borrower paid operating expenses. The borrower was also responsible under the agreement for paying for and making repairs required by the guarantor. The borrower made the minimum monthly payments to the lender, but, after the borrower paid for extensive repairs and incurred other expenses, it claimed there were no excess funds with which to pay the lender. The lender declared the borrower in default and started foreclosure proceedings. Claiming there was no default, the borrower successfully moved to enjoin the foreclosure. We agree that there was no default and affirm the decision of the trial court.

In November 1980, ARA Associates-Shangri-La, Ltd. (“ARA”) granted a security deed and note to Trust Company Mortgage to secure a mortgage loan for financing the purchase of Shallowford Oaks Apartments. The loan was guaranteed by the U. S. Department of Housing & Urban Development (“HUD”) pursuant to Section 221 (d) (4) of the National Housing Act.

In March 1992, Altman Management Company, of which Joel Altman is managing partner, assumed management of the property. At the time Altman took over, many of the apartment units were vacant, and others were uninhabitable. ARA defaulted in its mortgage payments to Trust Company.

In 1993, the note was assigned to HUD. In November 1994, HUD and ARA entered into a provisional workout agreement, the purpose of which was to prevent foreclosure by eliminating the arrears on the note. It also required repairs to be made to the apartments during the workout period. The workout agreement became effective in December 1994 and is set to expire in November 2001.

Paragraph 3 (a) of the workout agreement provides that ARA will make minimum mortgage payments each month. Paragraph 3 (c) provides that “[a]ny funds over $42,015 . . . remaining in the operating account each month after payment of project operating expenses will be remitted in addition to the minimum monthly payment.” Paragraph 4 of the agreement provides that:

[t]he mortgagor agrees to maintain the premises and provide management services in accordance with the Regulatdry Agreement and the mortgage. In the event repairs are required which would normally fall within the reserve for replacement fund during this workout period, [ARA] agrees to make such repairs and make payment for such repairs from [its] own resources if the property cannot generate the necessary funds.

In June 1996, HUD sold the security deed and note to Multifamily Mortgage Trust 1996-1 (“MMT”). ARA continued operating under the workout agreement, utilizing funds from the operating account to make extensive repairs and making the minimum payments required under paragraph 3 (a) of the workout agreement. However, ARA did not make the payments provided for in paragraph 3 (c).

In November 1997, MMT declared ARA in default of the workout agreement, asserting that ARA had not complied with paragraphs 3 (c) and 4 of the workout agreement and had not complied with a provision contained in a separate plan purportedly setting limits on repair costs. In January 1998, MMT transferred the security deed and note to WMFMT Real Estate, L.P. (“WMFMT”). A month later, WMFMT started foreclosure proceedings. ARA and Altman filed an action to enjoin the foreclosure. The trial court granted the injunction, holding that ARA had not defaulted on the workout agreement because the funds from the operating account were spent on repairs and because incurred expenses could properly be deducted from the account balance in determining if there were excess funds in the account. The judgment was appealed to the Supreme Court, but the Supreme Court transferred the appeal to this court for consideration.

1. MMT, the Archon Group, L.P. (an asset manager for MMT), and WMFMT (collectively “the lenders”) argue that the trial court abused its discretion by refusing to apply the unambiguous terms of the provisional workout agreement. The lenders contend that: (a) the term “project operating expenses” means expenses required to keep the business running, not capital improvements like those made by ARA; (b) the plain language of paragraph 3 (c) requires ARA to have no more than $42,015 in its operating account each month and requires that any excess after ARA pays its operating expenses must be paid to the lenders; (c) paragraph 4 clearly requires ARA to pay for repairs itself if the project cannot generate enough funds to do so, meaning ARA cannot pay for repairs out of the operating account; and (d) “after payment” does not mean “after accrual,” so ARA cannot deduct expenses that have accrued but have not actually been paid when calculating its operating expense account balance each month.

We agree with the trial court that the phrase “operating expenses” is ambiguous. The term has no certain meaning, and it is not defined in the agreement. Cases that have addressed the meaning of “operating expenses” in HUD regulatory agreements consistently hold that to qualify as operating expenses, expenses must primarily benefit the project rather than the owner. Arizona OddfellowRebekah Housing v. U S. Dept. of Housing &c., 125 F3d 771, 774 (II) (A) (9th Cir. 1997). Repairs made to the property here benefit the project rather than the owner.

It is also helpful to consider the context in which the term is used and the nature of the business under consideration. See Thompson v. United States, 408 F2d 1075, 1080 (1) (c) (8th Cir. 1969). The business here is an apartment complex insured by HUD under the National Housing Act. One of the National Housing Act’s objectives is to make decent housing available for low-income people. United States v. Beacon Terrace Mut. Homes, 594 FSupp. 53, 57 (III) (Md. D.C. 1984). The provisional workout agreement states that ARA must make and pay for repairs. HUD inspections revealed the need for extensive repairs to improve the conditions of the apartments. For example, HUD inspected the apartments in 1994 and gave the project a rating of below average. The report required that ARA make extensive repairs to the 43-building, 204-unit complex, such as replacing wood trim and porch ceilings throughout the property; replacing entrance doors, roofs, canopies, gutters and downspouts; and repairing asphalt paving, decks, stairs, railings, and lawn areas. In light of the guarantor’s objectives, the terms of the agreement, the condition of the property, and the borrower’s responsibility to make repairs, the term “operating expenses” in the workout agreement reasonably includes the costs of making extensive repairs to the project.

We realize capital improvements are normally paid out of a reserve for replacement fund and that some of the' repairs may, under some circumstances, be considered capital improvements. However, the provisional workout agreement provides that required repairs normally paid for with reserve funds are, during the workout period, to be paid for with funds generated by the property or with ARA’s own resources. The funds in the operating account were generated by the property. ARA did not violate the workout agreement by paying for the required repairs out of the operating account.

We do not agree with the lenders that the “after payment of project operating expenses” language of the provisional workout agreement plainly prohibits ARA from considering charges incurred but not yet paid in calculating the account balance. We agree with the trial court that incurred operating expenses can reasonably come within that provision. As the court noted in Thompson, supra, operating expenses are those paid or incurred in connection with the actual operation of the project. Furthermore, contrary to the lenders’ argument, management fees may under some circumstances be considered operating expenses because they are expenses incidental to and incurred in connection with the day-to-day operation of the project. See generally In re Garden Manor Assoc., 70 B.R. 477, 481 (13) (Bankr. N.D. Cal. 1987).

Decided February 22, 2000.

Morris, Manning & Martin, Frank W. Deborde, Robert C. Threlkeld, Beth E. Rogers, for appellants.

The lenders also argue that ARA spent more on repairs than it proposed to spend in the management improvement and operating plan submitted to HUD in July 1994 (“the MIO plan”). The MIO plan is a budget designed by the borrower to show HUD the intended sources and uses of funds for a set time period. That plan, however, preceded the provisional workout agreement by about five months and was not incorporated into the workout agreement. In addition, there is some question as to whether HUD, which did not sign the plan, found it acceptable. Furthermore, the provisional workout agreement states that the written terms of the provisional workout agreement are complete in all respects (except that it refers to the note, mortgage and regulatory agreement), and a HUD expert testified that an MIO plan does not act as a ceiling. Thus, that ARA indicated in the MIO plan that it planned to spend less on repairs than it did is irrelevant to this case.

We agree with the trial court that the parties to the provisional workout agreement intended that the necessary repairs would be made from the operating account.

2. The lenders argue that even if the agreement is ambiguous, the trial court ignored the rules of contract construction. As the lenders admit, the court is to give effect to the intention of the parties. OCGA § 13-2-3. The trial court considered the intent of the parties in making the provisional workout agreement, which was to prevent foreclosure and allow ARA seven years to catch up on its payments while making necessary repairs to the property. The lenders declared a default after only three years and despite ARA’s compliance with the other terms of the provisional workout agreement, including making the minimum monthly payments. The trial court did not violate the rules of construction relied upon by the lenders.

3. The lenders argue that the trial court erred in implying that the lenders waived the defaults by not declaring the defaults sooner. The trial court did not hold that there was any waiver. Instead, it discussed the lenders’ and HUD’s conduct in determining the parties’ intent in entering into the agreement, which was a relevant consideration. See OCGA § 13-2-3; see generally Fox v. Washburn, 264 Ga. 617, 618 (1) (449 SE2d 513) (1994).

4. In light of the foregoing, the lenders’ argument that the trial court erred in denying their motion to alter or amend the judgment and to grant their motion for injunctive relief is without merit.

Judgment affirmed.

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

Troutman Sanders, James K. Quillian, William M. Droze, Thomas E. Reilly, for appellees.


author: Smith, Judge.

text:
    A99A2367.
    GILMORE v. THE STATE.
    (530 SE2d 221)
   Smith, Judge.

After a bench trial in the Probate Court of Butts County, Charles M. Gilmore, Jr. was convicted of the offenses of failure to yield and DUI. The Superior Court of Butts County affirmed the convictions, and Gilmore appeals. He appeals both convictions, raising three enumerations of error. We affirm Gilmore’s conviction for DUI, but we find that the trial court erred in denying his motion to quash the accusation for failing to yield; we therefore reverse that conviction.

The record shows that Gilmore was involved in a two-car collision at the intersection of Higgins Road and Highway 87 in Butts County on a rainy, foggy afternoon. The police were called at 2:00 p.m., and Trooper Daniel Fagan of the Georgia State Patrol arrived at the scene at 2:28 p.m. to find another officer already there. Fagan testified that when he arrived and began questioning Gilmore, he “did smell a strong beverage on his person.” Fagan testified that when he asked Gilmore when he had his last drink, Gilmore responded “about an hour before the accident.” Fagan then placed him under arrest for DUI and read him the implied consent rights. The Intoxilyzer 5000 test results were 0.131 on the first test and 0.133 on the second.

After the probate court denied his renewed motion to quash the accusation on the failure to yield charge and his motions for directed verdict on both charges at the end of the State’s case-in-chief, Gilmore testified in his own behalf. He admitted having “a couple of drinks earlier that day” and testified that he “finished off what [he] had in the bottle” (about a half-pint) after the accident.

1. Gilmore contends the evidence was insufficient to support his conviction for DUI both because no evidence was presented of impaired driving ability and because the Intoxilyzer test results had no probative value since Gilmore testified that he had consumed half a pint of alcohol after the accident. We do not agree.

When reviewing a conviction, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We determine only the sufficiency of the evidence under this standard and not the weight of the evidence or the credibility of the witnesses. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, the [factfinder’s] verdict will be upheld.

(Citations omitted.) Goodman v. State, 237 Ga. App. 795, 796 (516 SE2d 824) (1999). Driving under the influence of alcohol may be shown by circumstantial evidence. Duggan v. State, 225 Ga. App. 291, 293 (483 SE2d 373) (1997). In this case, Fagan’s detection of a strong odor of alcohol on Gilmore and Gilmore’s involvement in an accident constituted evidence of impaired driving ability caused by alcohol. It was within the province of the trial court to determine the credibility of the witnesses and the evidence they offered, including Gilmore’s testimony that after having been involved in an accident he knew would be investigated, he decided to drink half a pint of an alcoholic beverage. The evidence was sufficient to enable a rational trier of fact to find Gilmore guilty of DUI under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We find no merit in Gilmore’s contention that the trial court erred in failing to suppress his statement to Fagan regarding his drinking because Miranda warnings were necessary and none were given.

Miranda warnings must be given only when a suspect has been taken into custody and the police engage in a custodial interrogation. Turner v. State, 233 Ga. App. 413, 414-415 (1) (a) (504 SE2d 229) (1998). No evidence in the record indicates that Gilmore was in custody when he made the statement. Fagan was investigating an automobile accident, and Gilmore had a legal duty to remain while the investigation was in progress. Under these circumstances, a reasonable person would conclude that he was not under arrest but only temporarily detained. Gunn v. State, 236 Ga. App. 901, 902 (1) (514 SE2d 77) (1999); Morrissette v. State, 229 Ga. App. 420, 422 (1) (a) (494 SE2d 8) (1997).

3. We must conclude, however, that the trial court erred in denying Gilmore’s motion to quash the citation on the charge of failure to yield and in denying his motion for directed verdict on that charge. Gilmore maintains that the Uniform Traffic Citation charged Gilmore with “failure to yield right of way, OCGA § 40-6-72 (c).” OCGA § 40-6-72 pertains to stop signs and yield signs, and it includes a number of ways in which the statute may be violated.

Decided February 22, 2000.

Virgil L. Brown & Associates, Larkin M. Lee, Bentley C. Adams III, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Assistant District Attorney, for appellee.

The UTC is tantamount to a formal accusation. Majia v. State, 174 Ga. App. 432, 433 (1) (330 SE2d 171) (1985), aff’d, 254 Ga. 660 (333 SE2d 834) (1985). “Where a crime may be committed in more than one way, the failure to charge the manner in which the crime was committed subjects the indictment or accusation to a proper special demurrer. [Cits.]” Haska v. State, 240 Ga. App. 527 (1) (523 SE2d 589) (1999). The UTC charging Gilmore with failure to yield did not inform Gilmore how he violated the statute. Moreover, Fagan admitted on the stand that he should have charged Gilmore with violating OCGA § 40-6-73, not OCGA § 40-6-72, because no “yield” sign was present at the intersection and OCGA § 40-6-72 (c) applies only when one is present. It was therefore subject to a special demurrer. Although denominated a motion to quash, the motion filed was a special demurrer, and it was filed before arraignment, as required by Uniform Superior Court Rule 31.1. Compare Haska, supra.

Judgment affirmed in part and reversed in part.

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

       Gilmore maintains that the citation charged him with violating OCGA § 40-6-172, and that no such Code section exists. It is apparent, however, that what Gilmore is reading as a “1” is merely the lower portion of a “y” on the line above it.


author: Pope, Presiding Judge.

text:
    A99A2452.
    WILLINGHAM v. THE STATE.
    (530 SE2d 224)
   Pope, Presiding Judge.

Charles Willingham appeals his conviction for the offense of armed robbery (OCGA § 16-8-41), asserting that the trial court erroneously denied his motion for a directed verdict and his motion for a new trial. Willingham challenges the sufficiency of the evidence, specifically contending that his conviction must be reversed because it is based upon the uncorroborated testimony of an accomplice. But because there is evidence which, independently of the accomplice’s testimony, directly connects Willingham to the armed robbery, his contention is without merit. We affirm.

The standard of review for the sufficiency of evidence, in reviewing either a motion for a directed verdict or a motion for new trial, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984). We view the evidence in the light most favorable to the verdict, and Willingham 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. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. Shabazz v. State, 229 Ga. App. 465, 466 (1) (494 SE2d 257) (1997). 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. Id.

At trial, the State presented the testimony of Freddie McCaskill, who entered a plea for his participation in the robbery. McCaskill testified: On April 30, 1998, McCaskill, along with Willingham and a third man, approached and demanded money from the victim, who was working alone in the equipment room of a car wash. Willingham and the third man threatened the victim at gunpoint. Willingham struck the victim, and the victim fell to his knees. The victim begged for his life, offering his automated teller machine card, which the men took. Willingham took the victim’s keys and sped away in the victim’s truck. McCaskill and the third man left the scene in a separate vehicle.

Within a week of the robbery, police officers arrested McCaskill. On the day of his arrest, McCaskill gave a statement, supplying Willingham’s name to the detective. The detective used Willingham’s name, along with the victim’s description, to construct a photographic lineup. On May 5,1998, the detective presented to the victim the photographic lineup, which contained the photograph of Willing-ham and five other males of the same race, with similar facial features, hairstyles, and other physical characteristics. The victim testified that after examining the photographs, he identified the robber who put the gun to his head, forced him to his knees, and took his cash and wallet. The detective testified that it was Willingham’s photograph that the victim identified.

Willingham contends that the evidence cannot support his conviction because it is based upon the uncorroborated testimony of an accomplice. Willingham points out that it was McCaskill who provided Willingham’s name to the detective, who then used Willing-ham’s name in constructing the photographic lineup. Relying on Payne v. State, 135 Ga. App. 245 (217 SE2d 476) (1975), Willingham argues that the detective’s testimony cannot sufficiently corroborate McCaskill’s testimony as it is not independent of McCaskill’s testimony. But Payne is inapposite to this case. In Payne, Payne’s accomplice told the investigating police officer that tire treads on Payne’s truck matched tire imprints the officer found at the crime scene. Id. at 246. The police officer never looked at the tires on Payne’s truck but relied solely on the accomplice’s description. Id. Thus, in Payne, the accomplice’s testimony was the only evidence connecting Payne to the crime. Here, the accomplice’s testimony is not the only evidence connecting Willingham to the crime. Although the detective used information from the accomplice in constructing the photographic lineup, it was the testimony regarding the victim’s pretrial identification of Willingham that independently connected Willing-ham to the armed robbery.

Decided February 22, 2000.

Patricia F. Angelí, for appellant.

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

Willingham next points to the victim’s failure to provide an in-court identification of Willingham as one of the robbers and argues that the victim’s testimony cannot provide sufficient independent evidence connecting him to the armed robbery. We disagree. The victim testified that the equipment room was well lit and that the three men did not wear masks. Within a week of the robbery, the victim positively identified Willingham during a pretrial photographic lineup as one of the individuals who robbed him. This argument is without merit. See Harper v. State, 213 Ga. App. 444, 445-446 (1) (445 SE2d 303) (1994).

The rule that a felony conviction may not be based upon the uncorroborated testimony of an accomplice, see OCGA § 24-4-8, applies only when the accomplice is the sole witness upon whose testimony the State relies. Telfair v. State, 234 Ga. App. 444, 445 (507 SE2d 195) (1998). Here, the State introduced evidence, including testimony of the victim’s pretrial identification of Willingham as one of the robbers, which, independently of the accomplice’s testimony, directly connects Willingham to the armed robbery. We conclude that the evidence is sufficient to support Willingham’s conviction. Jackson v. Virginia, 443 U. S. 307. The trial judge did not err in denying Willing-ham’s motions for a directed verdict of acquittal and for a new trial.

Judgment affirmed.

Smith and Miller, JJ, concur.


author: Eldridge, Judge.

text:
    A00A0348.
    ELLIS et al. v. FIVE STAR DODGE, INC.
    (529 SE2d 904)
   Eldridge, Judge.

In this contract action, plaintiffs Davis and Sheila Ellis appeal from the grant of summary judgment in favor of defendant Five Star Dodge, Inc. Finding that the trial court abused its discretion in opening the default of the defendant, we reverse the grant of summary judgment and remand for entry of default judgment and the determination of damages.

1. In their first enumeration of error, the plaintiffs assert that the trial court abused its discretion in granting the defendant’s motion to open default because the defendant failed to establish excusable neglect.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge. The sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.

(Citations and punctuation omitted.) K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999). See also Follmer v. Perry, 229 Ga. App. 257, 258 (1) (493 SE2d 631) (1997); First Union Nat. Bank &c. v. Floyd, 198 Ga. App. 99, 101 (2) (400 SE2d 393) (1990); C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990).

The evidence in this case shows that, in October 1995, the plaintiffs purchased a vehicle from defendant Five Star Dodge. After experiencing numerous problems with the car, they attempted to rescind the purchase. When the defendant refused to rescind, the plaintiffs filed suit against the dealership on March 7, 1997. On March 10,1997, the plaintiffs served Jeff Smith, General Manager of Five Star Dodge. The defendant failed to answer, and the case went into default on April 9, 1997.

On May 12, 1997, the defendant’s attorney filed a notice of appearance in the case, and, on May 15, 1997, the attorney filed an answer. The defendant filed a motion to open default on May 23, 1997. The motion alleged that the failure to file an answer was due to excusable neglect, because the defendant “believed it had referred the action to its insurance carrier for defense, and was not aware that the insurance carrier had not received the complaint.” (Emphasis supplied.) Attached to the motion was an affidavit of defendant’s employee, Bobby Cramer, who admitted that Jeff Smith had given the complaint to him after being served. Cramer then consulted with another employee, Bo Willis, who “advised” him that he had forwarded the documents to the insurance carrier and that the lawsuit was “being handled.” After having been so “assured,” Cramer admitted that “I did nothing further with the complaint.” The record contains no affidavits from either Smith or Willis; no evidence that any officer or employee of the defendant took any affirmative action to ensure that an answer was filed in this lawsuit; and no evidence of communication from the insurance company that it had received the complaint, had undertaken to defend this case, or otherwise had contacted the defendant about the case. See Follmer v. Perry, supra at 259. Four days after the motion was filed, however, the trial court granted the defendant’s motion to open the default on the basis of excusable neglect.

This ruling was an abuse of discretion, because the defendant’s actions failed to demonstrate excusable neglect as a matter of law. This conclusion is best illustrated in the remarkably similar case of Follmer v. Perry, supra. In Follmer, the defendant delivered the complaint to the insurer, then repeatedly and unsuccessfully attempted to contact the insurance agent before learning that the case was in default. Id. at 258-259. Even so, the trial court denied Follmer’s motion to open default, finding that he had not demonstrated his own diligence or any communications by the insurance company to ensure that the case was being handled. Id. This Court affirmed the decision, distinguishing it from previous default cases that demonstrated the “defendant’s diligence and the insurer’s assurance that it is handling the case.” Id. at 259.

Neither aspect is present in this case. First, the defendant herein cannot establish that it, in fact, forwarded the complaint to the insurance company. Second, if the defendant mailed the complaint,

[b]ecause of the many methods which now exist for communicating and transmitting documents, exclusive reliance on the postal service for communicating the existence of a legal complaint between client and attorney is insufficient to show providential cause or excusable neglect. Truck & Trailer Sales Corp. v. East Coast Transp. Co., 141 Ga. App. 85 (232 SE2d 578) (1977).

Decided February 22, 2000

Lane & Jarriel, Thomas F. Jarriel, for appellants.

Almand & Wiggins, O. Hale Almand, Jr., Sarah Harper, Samuel G. Alderman III, for appellee.

First Union Nat. Bank &c. v. Floyd, supra at 101 (2). Third, it is undisputed that the defendant did nothing to ensure that the case had been received by the insurance company or that an answer would be filed. This Court cannot condone such inaction.

Since the defendant failed to establish a ground for opening the default under OCGA § 9-11-55 (b) as a matter of law, the trial court abused its discretion in so ruling. This case is reversed and remanded to the trial court for reinstatement of the default judgment and the determination of damages thereon.

2. Plaintiffs’ remaining enumerations are moot.

Judgment reversed and remanded.

Blackburn, P. J, and Barnes, J., concur.

       Notably, the plaintiffs were not served with the order and filed a response to the motion. After realizing that the trial court had opened the default, the plaintiffs filed a motion to set aside the order on the basis that they had not had an opportunity to respond to the motion before it was decided. In its response to the plaintiffs’ motion, the defendant again admitted that the defendant “cannot be certain that it forwarded the complaint in this matter to its carrier in light of the fact that the complaint was never received [by the insurance carrier].” (Emphasis supplied.)


author: McMURRAY, Presiding Judge.

text:
    A00A0472.
    BRADFORD v. CITY OF ALBANY.
    (529 SE2d 906)
   McMURRAY, Presiding Judge.

Appellee-plaintiff City of Albany (the “City”) brought a complaint on a promissory note against appellant-defendant Jimmy Bradford, a subcontractor indebted to the City upon start-up funds in the amount of $137,485.28 loaned him for work on a City project to renovate certain apartments. Defendant answered pleading payment of the debt by entitlement to set-off for materials left on the job site after the City’s action terminating him as a subcontractor. The trial court granted plaintiff’s motion for directed verdict, finding that “there was no testimony or evidence establishing the value of merchandise and items abandoned to the City or the precise nature of the items and merchandise abandoned to the City.” Defendant appeals from the trial court’s order denying his motion for new trial, contending the trial court erred in directing a verdict for the City in that there was sufficient evidence upon which the jury could have determined the value of his set-off claim. Held-.

A verdict shall be directed when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983); OCGA § 9-11-50 (a).

Joiner v. Lane, 235 Ga. App. 121, 122 (1) (508 SE2d 203). Further in considering a motion for directed verdict, “an appellate court must view the evidence in the light most favorable to the party who secured the . . . verdict. [Cit.]” Pendley v. Pendley, 251 Ga. at 31 (1), supra.

In support of his set-off claim, defendant testified at trial that he used all of the money he borrowed from the City to pay for air conditioning equipment, light fixtures, and meter boxes and that he was required to leave these items on the job site upon his barment therefrom. While defendant thus testified as to the price he paid for the property he left on the job site, he did so in the aggregate only, providing no basis for his conclusion.

“An owner of property may not testify as to his opinion of the value of the property in a single or gross amount without ‘giving his reasons therefor’ or else showing that he has had ‘an opportunity for forming a correct opinion.’ ” Hoard v. Wiley, 113 Ga. App. 328, 329, hn. 1 (b) (147 SE2d 782).

Opinion evidence, to have probative value, must be based upon a foundation that the witness “has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. . . . Absent this foundation, the opinion as to value is inadmissible as it is nothing more than an ‘unsupported conclusion or guess of the witness.’ ” Sisk v. Carney, 121 Ga. App. 560, 563 (174 SE2d 456).

Hagin v. Powers, 140 Ga. App. 300, 304 (3) (231 SE2d 780). See also OCGA §§ 24-9-65; 24-9-66; Vitello v. Stott, 222 Ga. App. 134, 136-137 (1) (473 SE2d 504) (value necessarily a matter of opinion, and such opinion admissible if witness provides the foundation underlying the opinion). Because defendant failed to support his opinion by a proper foundation as to the value of the property left on the job site in the case sub judice, his opinion as to value was without probative value. Hagin v. Powers, 140 Ga. App. at 304 (3), supra. Accordingly, the trial court properly directed a verdict for plaintiff. Joiner v. Lane, 235 Ga. App. at 122 (1), supra; Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 581 (2) (260 SE2d 523) (“[Ijf a defendant produces no evidence to counter plaintiff’s prima facie case, direction of a verdict would be proper — even where defendant pleads the defense of setoff. [Cit.]”). Compare Interstate Dev. Svcs. &c. v. Patel, 218 Ga. App. 898 (463 SE2d 516) (“The jury is not permitted to speculate as to what the allegedly lost profits might have been. [Cit.]”).

Decided February 22, 2000.

Farkas & Ledford, Leonard Farkas, for appellant.

Henry E. Williams, for appellee.

Since we do not find that defendant filed this appeal only for purposes of delay, the City’s motion for assessment of damages for frivolous appeal is denied.

Judgment affirmed.

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


text:
    A00A0490.
    HOLDER v. THE STATE.
    (529 SE2d 907)
   Eldridge, Judge.

A Forsyth County jury found Michael Drew Holder guilty of three counts of deposit account fraud, OCGA § 16-9-20 (a), which charges arose when Holder issued several bad checks to a contract employee. Holder was sentenced to probation and ordered to make the checks good. He appeals.

1. We find no merit to Holder’s related claims that, because the dates alleged for the delivery of the checks in Counts 1 and 3 of the indictment were different from the dates proved at trial, (a) the evidence was insufficient to prove the charged offenses; and (b) there was a fatal variance between the indictment and the State’s proof.

The date on which the checks were delivered is not an essential element of the offense of deposit account fraud; the State may prove the offense by the act and the intent. Berry v. State, 153 Ga. 169, 172-173 (2) (111 SE 669) (1922).

The general rule is that when the exact date of a crime is not a material allegation of the indictment, the crime may be proved to have taken place on any date prior to the return of the indictment, so long as the date is within the applicable statute of limitation. In this case, the exact date of the crimes at issue was not a material part of the indictment because an exact date was not an essential element of any of the charged offenses. . . . The date proved at trial. . . was prior to the return of the indictment and was within the applicable statute of limitation. See OCGA § 17-3-1.

(Citations omitted.) Mikell v. State, 231 Ga. App. 85, 86-87 (498 SE2d 531) (1998), rev’d on other grounds, 270 Ga. 467 (510 SE2d 523) (1999).

Moreover, Holder did not deny that he wrote the checks and delivered them to the victim for services rendered. His defense was lack of intent to defraud, which the jury rejected. Thus, Holder’s defense did not render the variance between the dates alleged in the indictment and the proof at trial material or prejudicial.

On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

(Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Upon review, we find the evidence sufficient for a rational trier of fact to have found Holder guilty beyond a reasonable doubt under Counts 1 and 3 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Likewise, we do not find as “fatal” the variance between indictment and proof on Count 1 simply because the indictment alleged the check amount to be $1,730 and the amount proved at trial was $1,730.60.

Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.

(Citation and punctuation omitted.) Denson v. State, 212 Ga. App. 883, 884 (2) (443 SE2d 300) (1994). The 60$ discrepancy did not substantially affect Holder’s rights. The check, itself, was introduced into evidence, and thus, Holder cannot face another prosecution based thereon. See id.

3. (a) We find the evidence sufficient to support the jury’s finding under Count 3 of the indictment that Check No. 1859 was issued for “present consideration.” OCGA § 16-9-20 (a). “The requisite of present consideration may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction.” (Citation, punctuation and emphasis omitted.) Watson v. State, 235 Ga. App. 381, 384 (509 SE2d 87) (1998). In this case, the victim testified that Check No. 1859 for $2,000 was issued on the day he left the business, Saturday, June 14, 1997, in compensation for the prior week’s services. The interval between work and payment was slight, and the exchange can be characterized as a single contemporaneous transaction. As such, Check No. 1859 was issued for present consideration. Singletary v. State, 192 Ga. App. 653 (385 SE2d 791) (1989).

(b) Holder makes the same claim with regard to Check No. 1812 for $299 under Count 2 of the indictment. We are constrained to agree with him. The evidence does not show that such check was given in exchange for “present consideration.” “Present consideration in this context means that the check must be in exchange for something of value. The law requires a contemporaneous transaction because the payee must give up something of value in reliance on the check in question.” (Citations omitted.) Griffith v. State, 249 Ga. 19, 20-21 (287 SE2d 187) (1982); McNeal v. State, 204 Ga. App. 791 (420 SE2d 653) (1992). Here, even in a light most favorable to the verdict, the evidence shows that the victim was a member of Holder’s membership corporation, Golfer’s Dream Network. Check No. 1812 for $299 was issued to cover the victim’s share of “membership compensation” realized from the growth of Holder’s business. The victim did not give up anything of value in reliance on the check. The business earned the money, not the victim. Further, while the victim had to pay to become a member, such payment occurred long before the issuance of the check, making the transaction anything but “contemporaneous.” As such, the check was not “in exchange for a present consideration or wages” as contemplated by the statute. OCGA § 16-9-20 (a). Holder’s conviction on Count 2 must be reversed. Griffith v. State, supra.

4. The State’s proof showed that Holder delivered the checks to the victim on June 14, 1997; that the checks were returned to the victim for insufficient funds on June 19, 1997; that the victim issued ten-day notices on July 7, 1997; and that payment was not tendered thereon within ten days. Although Holder testified to a different sequence of events, such is a jury question. Accordingly, there is no merit to Holder’s claim that the trial court erred in charging the jury regarding prima facie evidence of intent pursuant to OCGA § 16-9-20 (a) (2).

5. The following exchange occurred during the defense case-in-chief: “[Defense attorney:] And because of these negotiations were you ever — were you advised to stop doing anything further? [Holder:] Yes.” The State made a hearsay objection. The trial court sustained it. The defense made no argument with regard to the court’s ruling. Holder now asserts error in the ruling, claiming that “the above-statement was being offered to show why Mr. Holder did not comply with the ten day rule and pay the check based on what he was told by another Officer of the company.” Holder contends that such testimony was admissible to explain his conduct under OCGA § 24-3-1.

However, Holder did not make such proffer following the trial court’s ruling. The trial court was not informed that the hearsay was being offered to demonstrate conduct pursuant to OCGA § 24-3-1 and did not have an opportunity to rule upon such grounds.

Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this court.

(Citations and punctuation omitted.) Thomas v. State, 224 Ga. App. 816, 817 (1) (482 SE2d 472) (1997). Our scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching or shifting. Parrish v. State, 237 Ga. App. 274, 280-281 (514 SE2d 458) (1999).

Further, even with proper objection, there would be no reversible error. The gist of the omitted evidence went before the jury. In fact, in his brief, Holder asserts that the evidence which was put before the jury showed “that Mr. Holder took the action he did based on the company being taken over by the individuals who eventually broke in to the business and stole all the equipment and records.” The record supports this assertion because at trial Holder testified that he did not have access to the books in order to respond to the ten-day notice; that others had taken over the business; and that much of the equipment and all records had been stolen. Because the hearsay sought to be admitted was cumulative of other direct evidence, it is “highly probable” that its omission did not affect the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); see also, e.g., Glass v. State, 235 Ga. 17, 19 (2) (218 SE2d 776) (1975).

6. As a corollary to Division 5, Holder claims that the jury should have been allowed to rehear his testimony on direct examination so that “they would have learned that Mr. Holder took the action he did based on the company being taken over by the individuals who eventually broke in to the business and stole all the equipment and records.” Holder makes this claim in relation to a note from the jury asking, inter alia, “Why did Michael. Drew Holder not respond within ten days to tender payment?” However, Holder did not object to the trial court’s recharge that “[t]he answer to your questions, if any, must come from the evidence presented as you recall it.” Accordingly, this claim of error is waived. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750) (1994).

7. On September 8, 1998, almost two months before trial, Holder appeared pro se at a pretrial motions hearing and asked for a continuance in order to hire an attorney. The trial court denied the request since the case had been pending for over a year and, only the week before, the trial court had impressed upon Holder the necessity to hire an attorney in time for the motions hearing.

Thereafter, on September 21, 1998, five weeks before trial, attorney Dennis Murphy made an appearance on Holder’s behalf and asked for a continuance in the trial of the case for investigative purposes. The trial court denied the motion since the case had been pending for over a year; Holder had been told there would be no more continuances; the State had an open file policy; and the prosecutor intended to call only one or two witnesses “and we may just be content with one” (which he was).

Holder claims error in the trial court’s denial of both motions for continuance. But we find no error.

The grant or denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed unless it clearly appears the trial court abused that discretion. Denial of a continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay.

(Citations and punctuation omitted.) Wilson v. State, 231 Ga. App. 621 (1) (500 SE2d 387) (1998). Further, motions for a continuance predicated on the basis that counsel had insufficient time to prepare for trial address themselves to the sound discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Nave v. State, 171 Ga. App. 165, 167 (2) (318 SE2d 753) (1984).

Holder has not shown an abuse of discretion and does not allege before this Court how a continuance would have altered the outcome of either the motions hearing or the trial. The trial court gave leave for further motions to be filed once Holder finally hired an attorney. And, at the motion for new trial, attorney Murphy stated that he asked for a continuance because, at the time — five weeks before trial — he felt unprepared to try the case. Murphy did not say, nor does the record show, that he was unprepared to try the case five weeks later.

Decided February 22, 2000.

John P. Rutkowski, for appellant.

Philip C. Smith, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

In view of what is stated above as to appellant’s failure to show substantive matters of evidence or preparation which would have resulted in a different verdict, no showing has been made that a postponement would have improved appellant’s defense or his trial position, so it cannot be said in retrospect that the trial court abused its discretion in this regard.

Patton v. State, 206 Ga. App. 59, 61 (2) (424 SE2d 350) (1992).

8. We have reviewed Holder’s claim' of ineffective assistance of counsel based on a cumulative reiteration of all of the enumerations of error alleged above, excluding that contained in Division 7. Holder has failed to provide argument and citation of authority in support of his bare allegations of error. As such, this enumeration of error is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed as to Counts 1 and 3 and reversed as to Count 2.

Blackburn, P. J, and Barnes, J., concur.

       The checks were for $1,730.60, $299, and $2,000, respectively. Apparently, restitution for the check amounts has not yet been tendered.

       Further, since all of the enumerations of error above are meritless (with the exception of Division 3 (b) which, as a challenge to the sufficiency of the evidence, need not be preserved or raised by trial counsel), they provide no basis for reversal under the guise of “ineffective assistance of counsel.”


text:
    A00A0597.
    STILES v. THE STATE.
    (529 SE2d 913)
   Eldridge, Judge.

On November 19, 1998, Dale E. Stiles was convicted by a jury of battery and cruelty to children in Habersham County Superior Court. Following his motion for new trial, the trial court granted a new trial on the battery count because there had been no charge on self-defense but denied the motion as to the cruelty to children conviction. Stiles appeals from the trial court’s order. This Court finds that the trial court erred in denying a new trial on the cruelty to children conviction. Therefore, we reverse and remand with direction.

The relevant facts, viewed in a light most favorable to the jury’s verdict, are as follows: On December 7, 1997, Stiles and his ex-wife, Diane Jones, argued in the presence of her 11-year-old son, S. G. Jones claimed that Stiles severely beat her after she told him to leave her home. She testified that Stiles knocked her to the ground while she was holding their eight-month-old baby; the baby fell out of her arms and rolled under the piano. According to Jones, Stiles then repeatedly punched, kicked, and choked her before dragging her to the bedroom and pulling off her clothes. Jones testified that Stiles started to rape her, but she lost consciousness and did not know if he actually penetrated her. When she regained consciousness, Jones grabbed a paring knife from a bedside table and cut Stiles several times.

Jones and S. G. also testified that Stiles forced S. G. to sit in a chair and watch the entire incident. As Jones screamed and begged S. G. to go next door to get help, Stiles threatened S. G. that he would kill Jones if S. G. got out of the chair. Jones testified that S. G. was crying and screaming at Stiles to stop beating Jones. S. G. testified that he saw Stiles beat and rape Jones.

Stiles admitted that he hit Jones two or three times but claimed self-defense. He testified that Jones was the primary aggressor when she became intoxicated and threatened him with a knife as he tried to stop her from leaving the house with their baby. Stiles also denied that he forced S. G. to watch the beating, although he admitted that S. G. was in the dining room at the time of the incident; that S. G. could see into the bedroom from the dining room; and that S. G. was upset and crying during and after the incident.

The jury acquitted Stiles on the aggravated assault charge but convicted him on the lesser included offense of battery. The jury also convicted Stiles of the cruelty to children charge based upon his actions toward S. G. but acquitted him on a second cruelty to children charge relating to his treatment of the baby. In his motion for new trial, Stiles claimed, inter alia, that he was entitled to a jury charge on self-defense and that his counsel was ineffective for failing to request such charge. The trial court agreed in part and granted a new trial on the battery charge only. Stiles appeals from this order. Held:

1. Stiles asserts that he was entitled to a jury instruction on self-defense as to Count 2, cruelty to children, and that his trial counsel was ineffective for failing to request such instruction. We agree that Stiles was entitled to a self-defense charge as his sole defense and, therefore, reverse his conviction for cruelty to children.

Stiles claimed that his sole defense to his violent acts against Jones was that such acts were performed in self-defense to her prior attack on him with a knife. As such, the trial court correctly ruled that the failure to charge on self-defense was harmful as a matter of law, even absent a request. See Jefferson v. State, 191 Ga. App. 306, 307 (2) (381 SE2d 564) (1989). However, this Court finds that the failure to charge self-defense as to the cruelty charge also constituted harmful error, because Stiles’ claim of self-defense would have negated the essential element of malice if believed by the jury. See OCGA § 16-5-70 (b); Brewton v. State, 266 Ga. 160, 162 (465 SE2d 668) (1996). Malice imports the absence of all elements of justification or excuse and the presence of an actual intent to cause harm. See Chastain v. State, 239 Ga. App. 602, 604 (1) (521 SE2d 657) (1999); Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25) (1990). Child cruelty must arise from malicious conduct rather than negligence or justified conduct. Woodbury v. State, 264 Ga. 31, 33 (440 SE2d 461) (1994) (Sears-Collins, J., concurring).

Further, Stiles’ failure to request the self-defense charge did not act as a waiver, because the overlooked charge was “clearly harmful and erroneous as a matter of law in that it fail[ed] to provide the jury with the proper guidelines for determining guilt or innocence.” (Citations and punctuation omitted.) Jefferson v. State, supra at 307. See also Roberts v. State, 221 Ga. App. 196, 198 (3) (471 SE2d 27) (1996); Pearson v. State, 216 Ga. App. 333, 334-335 (454 SE2d 205) (1995). Accordingly, Stiles is entitled to a new trial on the cruelty to children charge.

2. Stiles’ remaining enumerations involve the admissibility of evidence of prior difficulties between the parties. Although such evidence is relevant only to Count 1, for which a new trial was granted by the trial court, there is a significant likelihood that the question of the admissibility of such evidence will arise again on retrial. Therefore, this Court has considered the issues and rules as follows:

(a) The State is not required to give prior notice, pursuant to Uniform Superior Court Rules 31.1 and 31.3, of its intent to introduce evidence of prior difficulties between Stiles and Jones. Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998).

[E]vidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted. . . . However, the admission of such evidence should be accompanied by an instruction from the trial judge explaining the limited use to which the jury may put such evidence.

Decided February 22, 2000.

McDonald & Cody, Phillip G. Cody, Jr., for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

(Citations omitted.) Id.

(b) As Stiles set forth a prima facie case of self-defense, he was entitled to present evidence of his prior difficulties with Jones in order to support his justification claim and was not required to give prior notice to the State pursuant to USCR 31.1 and 31.6. Owens v. State, 270 Ga. 199, 202 (509 SE2d 905) (1998).

Judgment reversed and remanded with direction.

Blackburn, P. J., and Barnes, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: McMurray, Presiding Judge.

text:
    A00A0697.
    SANDERS v. THE STATE.
    (530 SE2d 203)
   McMurray, Presiding Judge.

Tommy Lee Sanders was indicted for armed robbery (Count 1), possession of a firearm during the commission of a crime (Counts 2 and 4), and aggravated assault (Count 3). Evidence adduced at trial reveals that shortly after midnight on July 17, 1994, the defendant entered Piggly Wiggly in Moultrie. He walked by the victim, an employee, turned and greeted her, and continued to walk toward the front of the store. The victim followed him, and the defendant started running.

The store’s assistant stock manager had also spotted Sanders. The employees blocked him between two cash registers. The victim testified that the defendant then “started fumbling around and dropping cartons of cigarettes and he reached into his pants and pulled out a gun.” She testified that Sanders threatened to kill her, dropped some of the cigarettes, and ran out of the store.

The assistant stock manager and a cashier also testified that the defendant pointed a gun at the victim and threatened to kill her. The cashier said the defendant fled the store carrying cigarettes and she called the police.

Officer Michael A. Snyder, Jr. arrived within five minutes but was unable to locate Sanders. The officer was familiar with Sanders and his vehicle, however, and spotted him putting gas in the car at approximately 4:30 a.m. Sanders fled on foot as the officer was driving toward him.

Based on this evidence, a jury convicted the defendant on all counts. The trial court ruled that the aggravated assault merged with the armed robbery and that the firearms charges merged. In view of the defendant’s prior convictions, the trial court sentenced him to life imprisonment for the armed robbery and five years for the firearms charge, to be served consecutively. Sanders’ motion for new trial was denied, and he appeals. We affirm. Held:

1. After behaving disruptively, Sanders was removed from the courtroom. He assigns three errors to his ejection: (a) the trial court violated his constitutional rights to confront witnesses against him and testify on his own behalf; (b) the trial court failed to mitigate the effects of his absence; and (c) the trial court should have returned him to the courtroom for an in-court identification. We will address these arguments seriatim.

(a) The trial court did not abuse its discretion in removing Sanders from the courtroom.

“(A) defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. . . . (T)here are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . . : (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” Illinois v. Allen, 397 U. S. 337, 343-44 (90 SC 1057, 25 LE2d 353) (1970).

Williams v. State, 183 Ga. App. 373, 375 (2) (358 SE2d 914).

After the first panel of jurors was called, the defendant stated to the court that his appointed counsel was not prepared for trial. Upon inquiry by the court, counsel indicated that he had interviewed witnesses, conferred with the defendant, and independently investigated the facts of the case. The trial court deemed the defendant’s statement a motion for continuance and denied it.

After swearing in the fourth panel of jurors, the defendant asked to make another statement. The judge asked the defendant to wait until jury selection was completed. The defendant refused, continually interrupting the proceedings to state that he would not proceed with his appointed counsel. The judge warned the defendant that if he could not behave, he would be removed from the courtroom. The defendant continued to argue with the judge, who finally ordered him taken to a holding cell adjacent to the courtroom. Voir dire was conducted, and the court advised the panels as follows:

THE COURT: . . . Ladies and gentlemen, the removal of the defendant from this courtroom this morning has no bearing whatsoever on the defendant’s guilt or innocence in this case. And it must not be considered by you in any manner during your deliberations in reaching a verdict. You are to disabuse your minds entirely of such and give it no consideration whatsoever in reaching your verdict. It simply has no bearing on whether or not he is guilty or not guilty of the charges for which he is accused. . . .

After the jury was impaneled and pretrial matters disposed of, the judge ordered the defendant returned to the courtroom to give him another opportunity to rejoin the trial.

THE COURT: . . . Mr. Sanders, you have a right to be here in this courtroom during your trial so long as you behave yourself and do not interrupt the proceedings. I tried to tell you that a few minutes ago and you just kept right on interrupting and being disruptive. I’m telling you again. I would like to see you stay here in the courtroom for your trial, but that’s up to you. Now, if you can behave yourself and not interrupt the proceedings and not be disruptive to the proceedings you are welcome to be here. I would like for you to be here. But, if you cannot do that, then we’re going to proceed with your trial while you are not in the courtroom. . . . Now, do you think you can behave yourself and not interrupt the proceedings?
DEFENDANT SANDERS: Well, can I say this Judge Horkan? I —
THE COURT: Do you think you can behave yourself and not interrupt the proceedings?
DEFENDANT SANDERS: I don’t think so up under these circumstances, Your Honor, because I would like to — I would like to get me another lawyer if I have to pay for it myself.
THE COURT: I’ve heard you on that and I’ve overruled it. Sufficient grounds have not been shown for that. Now, you’re telling me you cannot behave yourself and not interrupt the proceedings? Is that what you’re telling me?
DEFENDANT SANDERS: Yes, sir.

The judge then informed the defendant that if he changed his mind and decided to behave, he would be permitted to return to the courtroom. The defendant was again taken from the courtroom. He never asked to return. The record reflects that counsel met with the defendant during trial and explained to him the disadvantages of refusing to appear, but the defendant still declined to attend.

The judge gave the defendant every possible opportunity to remain in the courtroom. On each occasion the defendant continued to argue with the judge and stated specifically that he would not remain quiet. Accordingly, the trial court did not err in removing the defendant from the courtroom. See Smith v. State, 161 Ga. App. 512 (288 SE2d 754).

(b) The trial court’s admonition to the jury pool to disregard the defendant’s removal from the courtroom, which was repeated during the charge to the jury, sufficiently mitigated the effect of his absence on the jury. Williams v. State, 183 Ga. App. at 373, supra. The defendant erroneously relies on United States v. Ives, 504 F2d 935 (9th Cir. 1974), in support of his argument that the trial court should have ordered breaks in the trial for the purpose of keeping Sanders apprised of its progress. Ives is not binding on this Court and is inapposite. First, as noted earlier, counsel did meet with the defendant during trial. Moreover, knowing that the defendant was dissatisfied with him, counsel enlisted the assistance of another defense attorney to speak with his client, but to no avail. The defendant would not return to the courtroom and never asserted his right to testify. Unlike the case sub judice, in Ives, the defendant, a paranoid schizophrenic, insisted that he be allowed to return to the courtroom to testify in his own behalf. The judge refused after Ives attacked the United States attorneys.

Finally, we note that Sanders failed to object in the trial court that additional measures were required to mitigate his absence. Thus, the defendant has waived the right to complain on appeal. Newton v. State, 226 Ga. App. 501, 502 (1) (486 SE2d 715); Walker v. State, 216 Ga. App. 236 (454 SE2d 156).

(c) The trial court did not abuse its discretion by failing to insist that Sanders be returned to the courtroom for the purpose of identification by the State’s witnesses. As the defendant stated his intention to continually interrupt the trial and refused to return despite counsel’s entreaty, the judge would have been obliged to bind and gag him in order for the witnesses to make an in-court identification. This likely would have had a significant prejudicial impact upon the jury. Illinois v. Allen, 397 U. S. at 344, supra. Therefore, under the circumstances of this case, the absence of a face-to-face, in-court identifica: tion does not warrant reversal of the defendant’s conviction.

2. Sanders’ contention that the State failed to prove identity beyond a reasonable doubt is meritless. Both the victim and the cashier testified that the man they saw in the courtroom prior to trial was the same man who brandished a pistol in the store on the night in question. The victim testified that she was “absolutely sure” the robber was the defendant because she was acquainted with him prior to the incident. The assistant stock manager also testified that he saw the defendant in court shortly before trial and had no trouble recognizing him as the robber.

We are mindful that the incident report Officer Snyder completed after the robbery indicated that the defendant was six feet tall and weighed 160 pounds. After viewing him in the courtroom, the officer admitted that the defendant was at least seven inches shorter. However, the officer also testified that none of the witnesses to this incident had given him that description; rather, he copied it from a previous incident report.

It was for the jury to determine the weight of the evidence and the credibility of the State’s witnesses. Nealy v. State, 239 Ga. App. 651, 656 (9) (522 SE2d 34). On appeal from a conviction, this Court must view the evidence in the light most favorable, to the verdict. Parker v. State, 220 Ga. App. 303 (1) (469 SE2d 410). Under these standards, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of armed robbery and possession of a firearm during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Nor do we agree with Sanders’ contention that the State failed to prove a taking occurred within the meaning of OCGA § 16-8-41. The statute provides that armed robbery is committed when a person, with intent to commit a theft, takes another’s property from the person or immediate presence of another by use of an offensive weapon. Here, the victim testified that when Sanders pointed the gun at her, she froze and Sanders ran out of the store dropping cigarettes he had taken. Although the evidence does not show Sanders escaped with any cigarettes, the statute does not require that the property taken be permanently appropriated.

“Under OCGA § 16-8-41 the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion. (Cits.) It is not required that the property taken be permanently appropriated. (Cits.)” (Punctuation omitted.) Peoples v. State, 184 Ga. App. 439 (361 SE2d 848) (1987).

Miller v. State, 223 Ga. App. 453, 454 (1) (477 SE2d 878).

The evidence of asportation amply supported the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307, supra.

4. Finally, Sanders enumerates as error the trial court’s denial of his motion for new trial based on ineffective assistance of counsel. To prove that trial counsel was so ineffective as to deny him a fair trial under the Sixth and Fourteenth Amendments, the defendant must show

(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 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. (Citation and punctuation omitted.) Ivory v. State, 234 Ga. App. 858, 861 (4) (508 SE2d 421).

(Punctuation omitted.) Lowe v. State, 241 Ga. App. 335 (1) (526 SE2d 634).

Sanders’ primary contention in this regard is that trial counsel did not call as witnesses Sanders’ mother and a female friend, who would have testified that the friend accompanied him to put gas in his mother’s car around 11:15 p.m. on the night of the incident, instead of at 4:30 a.m., as Officer Snyder reported.

During the hearing on Sanders’ motion for new trial, trial counsel testified that when he interviewed Sanders, the defendant “did not dispute” that Officer Snyder “saw him at 4:00 in the morning.” Counsel therefore made a tactical decision not to call these alibi witnesses.

The defendant also alleges that trial counsel was ineffective for failing to explain to the jury the reason that he fled from Officer Snyder. Such an explanation would have included the prejudicial statement that Sanders had missed a court date on a separate charge. “Deciding what evidence should be presented ‘is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. [Cit.]’ Bradford v. State, 221 Ga. App. 232, 235 (3) (a) (471 SE2d 248) (1996).” Sewell v. State, 229 Ga. App. 685, 688-689 (1) (c) (494 SE2d 512).

Decided February 22, 2000.

Moore, Tyndall & Castellow, David R. Tyndall, for appellant.

J. David Miller, District Attorney, A. Scott Gunn, Wesley J. Lewis, Andrew W. Pope, Assistant District Attorneys, for appellee.

The record discloses that trial counsel was prepared and vigorously cross-examined all prosecution witnesses, particularly on the crucial identification issue. Thus, the trial court’s determination that counsel provided effective representation is not clearly erroneous.

Judgment affirmed.

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

       Sanders’ friend was incarcerated at the time of the hearing on Sanders’ motion for new trial.


text:
    A00A0852.
    SAMPSON v. INTELLECTUAL TECHNOLOGIES, INC.
    (529 SE2d 921)
   McMurray, Presiding Judge.

G. Scott Sampson sued C. Earl Peek and Intellectual Technologies, Inc. (“ITI”), alleging breach of contract. Sampson sought to recover royalties allegedly due him under a licensing agreement for a board game he invented called “Travel Buff.” He also sought to terminate the agreement. ITI and Peek, who is president and chief executive officer of ITI, counterclaimed for declaratory and injunctive relief, as well as restitution of excess royalties allegedly paid to Sampson.

The jury returned a verdict finding that the contract permitted ITI to deduct certain costs when calculating royalties. The jury also found that ITI had failed to pay Sampson all the royalties he was owed. However, the jury declined to award damages. Next, the jury found that ITI breached the agreement. However, the jury determined that the breach did not constitute sufficient cause for Sampson to terminate the agreement. Finally, the jury ruled against ITI on its restitution claim. Sampson moved for judgment notwithstanding the verdict, which was denied. He appeals. Held:

1. Sampson has failed to comply with Court of Appeals Rule 27 (c) (3) (i), which provides: “Each enumerated error shall be supported in the brief by specific reference to the record or transcript.” While the rule authorizes this Court to dismiss any appeal for failure to cite to the record, as ITI urges, we are not required to do so. Accordingly, we decline ITI’s request to hold Sampson in contempt.

Decided February 22, 2000.

G. Scott Sampson, pro se.

Arnall, Golden & Gregory, Ligia P. Arias, Stephen M. Dorvee, for appellee.

2. As best this Court can determine, Sampson, an attorney who is proceeding pro se, enumerates as error the trial court’s decision to uphold the jury’s finding that ITI’s breach of the agreement did not entitle Sampson to terminate it. In his amended notice of appeal, Sampson directed the clerk of the trial court to omit from the record on appeal a transcript of the testimony presented at trial.

“It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.”

“[A]n appeal with enumerations dependent upon a consideration of the evidence heard by the trial court will, absent a transcript, be affirmed.”

Without a transcript of the testimony below, we cannot review the basis for the jury’s finding that the breach was insufficient cause to terminate the agreement. In any event, “[a] jury’s verdict is presumed to be valid and should, if possible, be construed as such. [Cit.]”

We presume that the jury’s verdict, as construed by the trial court, is valid.

Judgment affirmed.

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

        Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354).

       (Citations omitted.) Trevino v. Flanders, 231 Ga. App. 782 (1) (501 SE2d 13).

        Bhatia v. West Cash &c. of Savannah, 157 Ga. App. 145-146 (276 SE2d 656).

        Voxcom, Inc. v. Boda, 221 Ga. App. 619, 620 (472 SE2d 155).


author: Barnes, Judge.

text:
    A99A1638.
    GILSTRAP v. HEAD.
    (529 SE2d 661)
   Barnes, Judge.

Cecil Gilstrap sued Dean Head, alleging that Head’s negligence proximately caused him to fall while trimming a tree limb on Head’s property. Head denied liability and moved for summary judgment. The trial court granted Head’s motion, ruling that, as to the defense of contributory negligence, the evidence showed that Gilstrap “failed to use ordinary care for his own safety, and in doing so, failed to avoid any negligence of the Defendant which was apparent to him by his own testimony. His negligence was the proximate cause of his injuries.” Gilstrap appeals, arguing that genuine issues of material fact exist for a jury to decide. We agree and reverse.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Head’s motion for summary judgment was based on his affidavit, portions of Gilstrap’s deposition testimony, and Gilstrap’s answers to Head’s interrogatories. Those documents reveal that Gilstrap was doing yard work for Head when Head asked him to climb a ladder with a chain saw and trim an oak limb. Head agreed to hold the ladder. Gilstrap demurred at first but then agreed to perform the task. While he was sawing through the limb, it bent and caught the chain saw, then swung toward him. Gilstrap was not sure exactly what happened, but he thought that the tree limb hit him in the head and pushed the ladder away from the tree. Head averred in his affidavit that as Gilstrap cut through the limb with the chain saw, the limb “flopped down” and hit the ladder, knocking it off the tree and out of Head’s hands. Finally, Gilstrap said in an interrogatory answer that Head “turned loose of the ladder and ran off.”

Head points out that in his deposition, Gilstrap said nothing about Head having let go of the ladder and testified at deposition that the only thing Head could have done to prevent the injury might have been to tie a rope to the back of the limb to pull it away as it fell. Head concludes that these statements are contradictory and, thus, Gilstrap’s interrogatory answer must be construed against him under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

In Prophecy Corp., the Supreme Court of Georgia held that a trial court must decide as a matter of law if the testimony of a party-witness is contradictory. Id. at 30. The testimony “ ‘is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.’ ” Smith v. Vencare, Inc., 238 Ga. App. 621 (1) (519 SE2d 735) (1999). Here, the fact omitted from Gilstrap’s deposition testimony, that Head let go of the ladder, does not conflict with his earlier interrogatory answer; the answer is “merely fuller, more expansive, and complete.” Id. Because we perceive no contradiction between Gilstrap’s deposition testimony and his earlier filed interrogatory answers, we find no cause to construe his deposition testimony against him. Therefore, the trial court erred in granting summary judgment to Head, because genuine issues of material fact remain for a jury to consider.

Decided February 14, 2000 —

Reconsideration denied February 23, 2000

Charles B. Brown, for appellant.

Carey, Jarrard & Walker, Christopher J. Walker III, for appellee.

Judgment reversed. Eldridge, J., concurs.

Blackburn, P. J., concurs in the judgment only.


text:
    A99A2314.
    JOHNSON v. RODIER.
    (529 SE2d 442)
   Barnes, Judge.

Donald K. Johnson, a Harris County deputy sheriff, sued James Barton Rodier, M.D., for tortious interference with his employment, invasion of privacy, and fraud, stemming from a conversation Dr. Rodier had with Johnson’s employer regarding Johnson’s mental state. Dr. Rodier answered and moved to dismiss the unverified complaint on the ground that Johnson had failed to attach an expert affidavit as required by OCGA § 9-11-9.1. The trial court granted the motion as to the tortious interference and invasion of privacy claims and later granted summary judgment to Rodier on the fraud claim. Johnson appeals, arguing that the first two claims did not allege a violation of professional standards that required an expert’s supporting affidavit and that issues of fact remained for a jury on the fraud claim. For the reasons that follow, we reverse the dismissal of the counts alleging invasion of privacy and tortious interference with employment and affirm the grant of summary judgment to defendant Rodier on the fraud count.

1. In his complaint, Johnson alleged that on August 30, 1996, he visited Dr. Rodier, his personal physician, to discuss a physical problem. After the visit, Rodier contacted Johnson’s employer and told him Johnson “should not be allowed to carry a firearm, deal with the public in a stressful situation, or control a motor vehicle under high speed stressful driving situations because he was mentally unfit.” Johnson claimed that Rodier’s communication with the sheriff breached his duty to protect Johnson’s privacy and constituted tortious interference with Johnson’s employment because the allegation that he was not mentally fit was untrue. Dr. Rodier successfully moved to dismiss these two counts, arguing that Johnson’s allegations against him arose out of his medical care and treatment, making Johnson’s failure to attach an expert affidavit to his complaint fatal to his claim.

Johnson argues on appeal that he did not need to attach an expert affidavit to his complaint because he was not suing Dr. Rodier for the exercise of his medical judgment, but for “independent tort[s] separate and distinct from the tort of medical malpractice.”

OCGA § 9-11-9.1 (a) provides that, in an action for damages alleging professional malpractice, the plaintiff must file with the complaint an expert’s affidavit setting out “specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The Supreme Court of Georgia recently examined the parameters of the statute, holding that the legislature “limited § 9-11-9.1 to only those actions for professional negligence by enacting a statute which stated that the necessary expert affidavit had to set forth ‘a negligent act or omission claimed to exist and the factual basis for each claim.’ ” (Citations and punctuation omitted; emphasis in original.) Labovitz v. Hopkinson, 271 Ga. 330, 336 (3) (519 SE2d 672) (1999). However, “[t]hose claims grounded on a professional’s intentional acts which allegedly resulted in injury to one with whom the professional had a professional relationship are not required to be accompanied by an expert affidavit.” (Emphasis in original.) Id. at 336-337. As a result, the Supreme Court concluded that the plaintiff was not required to submit an expert affidavit in support of her fraud and misrepresentation claims. Id. at 337.

Johnson claims Dr. Rodier invaded his privacy and tortiously interfered with his employment. These claims are based on Rodier’s intentional act of telling Johnson’s employer about Johnson’s medical condition. Because Johnson makes no claim against Rodier based on professional negligence, he did not have to attach an expert affidavit to his complaint, and the trial court erred in granting Rodier’s motion to dismiss the invasion of privacy and tortious interference with employment claims. See Labovitz, supra.

2. Johnson contends that the trial court erred in granting summary judgment to Dr. Rodier on the fraud count. The fraud arose, Johnson contends, when Rodier concealed from him the state of his mental condition and that Rodier “was not the appropriate physician to treat a severe mental condition and by failing to refer Plaintiff to a psychiatrist or a psychologist.” Johnson contends that he relied on Rodier’s reassurances of good health and that Rodier’s concealment of his diagnosis resulted in Johnson being fired. Rodier denied these allegations in his answer.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and .that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Concealment of a material fact with the intention to deceive and mislead supports an action for fraud. OCGA § 51-6-2 (a). And when a confidential relationship exists, as between a patient and physician, “a person’s silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation.” (Citations omitted.) Cleveland v. Albany Urology Clinic, 235 Ga. App. 838, 840 (1) (509 SE2d 664) (1998), cert, granted, S99G0600.

The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. Because summary judgment is appropriate if only one essential element of [Johnson’s] claim is eliminated, we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal.

(Citations and punctuation omitted.) Fuller v. Perry, 223 Ga. App. 129, 131 (1) (476 SE2d 793) (1996).

In his motion for summary judgment, Dr. Rodier argued that the record contains no evidence from which a jury could find each element of fraud. The first element of fraud is that the defendant made a false representation, and once Rodier pointed to the absence of evidence to support this element of Johnson’s fraud claim, Johnson had to come forward with “specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, supra, 261 Ga. at 491. He did not do so and in fact presented no evidence at all in response to Rodier’s motion for summary judgment. Therefore, the trial court did not err in granting summary judgment to Rodier on Johnson’s fraud claim.

Decided February 10, 2000 —

Reconsideration denied February 23, 2000 —

David J. Grindle, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Carter R. Page, for appellee.

Judgment affirmed in part and reversed in part.

Blackburn, P. J., and Eldridge, J., concur.