author: Pope, Presiding Judge.

text:
    A99A1835.
    GRIFFETH et al. v. PRINCIPAL MUTUAL LIFE INSURANCE COMPANY et al.
    (533 SE2d 126)
   Pope, Presiding Judge.

Charles S. and Linda Griffeth filed a consumer class action complaint asserting various claims against Principal Mutual Life Insurance Company arising out of the Griffeths’ purchase of insurance. The Griffeths’ complaint asserts that in 1993 they approached an insurance agent in an effort to obtain group insurance coverage. The agent told them that Principal offered a group health insurance policy to individuals, like the Griffeths, who were self-employed. The Griffeths applied and were accepted for the Principal insurance. Following several years of substantial increases in their monthly insuranee premiums, the Griffeths chose to cancel their Principal insurance policy in 1996.

Previously, in the fall of 1995, the Griffeths had complained to the Insurance Commissioner about the increasing premiums. In response to this complaint, the Commissioner’s office sent Principal a letter expressing concern that the company was not complying with Georgia’s small group pooling laws. In February 1996, the Commissioner’s office notified Principal that it was referring the matter to its enforcement division for further action. In late 1996, Principal decided to terminate its coverage for all Georgia policyholders under the plan.

Shortly thereafter, the Griffeths filed their class action, asserting claims for fraud, Georgia Racketeer Influenced & Corrupt Organizations Act violation, and breach of contract against Principal. The Griffeths later amended their complaint to assert claims for unjust enrichment and conspiracy to aid and abet the breach of fiduciary duty. The complaint as amended alleges that Principal engaged in an illegal and fraudulent scheme to market group insurance policies that were, in effect, individual policies to farmers, small businessmen and other individuals. In furtherance of this scheme, the Griffeths allege that Principal set up an illusory trust to obtain a group policy that could be marketed to individuals. Then, instead of selling individual policies, the trust issued certificates to individuals like the Griffeths as members of the trust. The complaint also alleges that Principal misrepresented the nature of this policy in offering it to the public and committed various illegal and tortious acts, including violations of the Georgia Insurance Code, OCGA § 33-2-1 et seq.

The trial court held that the Georgia Insurance Commissioner had exclusive jurisdiction over the Griffeths’ claims and dismissed the complaint for lack of subject matter jurisdiction. The trial court also found that the Griffeths were required to exhaust their administrative remedies before the Insurance Commissioner before filing an action in court. Because we find that the Griffeths were not required to pursue an administrative remedy, we reverse.

This case is controlled by this Court’s decision in Provident Indent. Life Ins. Co. v. James, 234 Ga. App. 403 (506 SE2d 892) (1998), which involved similar allegations of a fraudulent insurance scheme. The Court held that the plaintiffs were not required to exhaust their administrative remedies before pursuing a class action even though the complaint alleged Insurance Code violations in support of the plaintiffs’ RICO and common law tort claims. Id. at 408. With regard to the RICO claim, the Court stated:

[S] imply alleging Insurance Code violations does not transform a civil RICO complaint into a cause of action which must be pursued exclusively through administrative channels, particularly when numerous other predicate acts are alleged in the complaint, including fraud.

Id. at 404-405. And the Court found that the plaintiffs’ tort claims also stood on their own merits:

While it is true that the complaint alleges [Insurance Code] violations, as well as numerous other allegations of fraudulent behavior, the tort claims presented in this case are separate and distinct causes of action from an administrative proceeding directed solely at violations of the Insurance Code. Compare OCGA § 51-6-1 with OCGA § 33-6-4 (b).

Id. at 406. The Court found that the plaintiffs’ tort causes of action “had fully vested as a legal action and not as an administrative action” and thus could be brought directly in court. Id. Accordingly, the Court reversed the trial court’s dismissal of the complaint for lack of subject matter jurisdiction. Id. at 408. Cf. Security Life Ins. Co. v. Clark, 239 Ga. App. 690, 691 (521 SE2d 434) (1999) (affirming $14.5 million verdict in RICO action based, in part, on similar allegations involving Insurance Code violations); Parris v. State Farm &c. Ins. Co., 229 Ga. App. 522, 525-526 (494 SE2d 244) (1997) (implying that cause of action may exist for violation of Insurance Code where plaintiff can prove damages).

As in Provident, here the Griffeths’ RICO claim alleges various predicate acts including mail fraud, wire fraud, theft by taking, and theft by deception, and we find it was sufficient to withstand Principal’s motion to dismiss. Similarly, we find that the Griffeths’ common law claims are separate and distinct causes of action that may be pursued directly in court. Accordingly, the trial court had jurisdiction over this matter, and it was error to dismiss the complaint.

In arguing against this result, Principal relies upon our broad statement in First Union Nat. Bank &c. v. Independent Ins. Agents &c., 197 Ga. App. 227, 228 (1) (398 SE2d 254) (1990) that “the Insurance Commissioner has exclusive authority to enforce the Insurance Code.” But because that statement was not necessary to the holding in the case and the opinion cites no authority to support it, we find that the holding in First Union must be limited to the facts of that case. There, the plaintiff had asked the Insurance Commissioner to investigate First Union’s insurance-related activities. The Commissioner appointed an examiner to investigate First Union’s activities, and the examiner’s report concluded that the bank was not in violation of the Insurance Code. The Insurance Commissioner then sent, a letter to the parties adopting the examiner’s findings. The plaintiff later filed suit seeking a judicial determination of the same matters investigated by the Insurance Commissioner. Id. at 227. This Court held that the plaintiff was required to pursue the administrative procedures for contesting that decision. Id. at 228-229.

Unlike this case, the First Union plaintiff was asking the court to consider a matter previously decided by the Insurance Commissioner without following the proper procedures for seeking judicial review. Here, the Griffeths are not seeking a review of an administrative action, but instead assert distinct legal causes of action. And as the Court stated in Provident. “With the exception of the unsupported statement in First Union ... we have found no Georgia statute or case law from which it might be inferred that the Insurance Commissioner has exclusive or even primary jurisdiction over such vested legal disputes.” (Citations and punctuation omitted.) 234 Ga. App. at 407. Therefore, nothing in the First Union decision prohibits the trial court from hearing the Griffeths’ claims.

For the same reason, we find that Cerulean Cos. v. Tiller, 271 Ga. 65, 68 (2) (516 SE2d 522) (1999) is not controlling. In that case, the Supreme Court of Georgia required a plaintiff to exhaust the administrative review process before seeking a judicial interpretation of a Plan of Conversion that had already been reviewed and approved by the Insurance Commissioner. The Supreme Court recognized that “[ljongstanding Georgia law” required that a party aggrieved by an agency decision must raise all issues before that agency and exhaust available administrative remedies before seeking judicial review of the decision. Id. at 66 (1).

In this case, however, there was no agency decision. Although the Griffeths and others complained to the Insurance Commissioner and the matter was to be referred to the enforcement division, Principal has conceded that the Insurance Commissioner never issued any formal finding or opinion on the matter. Therefore, the Griffeths are not parties aggrieved by an administrative decision, and they were not required to pursue any administrative review process before filing their lawsuit against Principal.

Judgment reversed.

Smith and Miller, JJ, concur.

Decided March 29, 2000

Doffermyre, Shields, Canfield, Knowles & Devine, Kenneth S. Canfield, David S. Hagy, Edward W. Klein III, for appellants.

Troutman Sanders, Alan W Loeffler, Lisa M. Beale, King & Spalding, Shannon F Cox, Michael R. Smith, Liesa L. Bernardin, for appellees.

       The Supreme Court of Georgia has granted certiorari in that case. Security Life Ins. Co. v. Clark, Case No. S00G0006 (2000).

       See our prior decision in Security Life Ins. Co. v. Clark, 229 Ga. App. 593 (494 SE2d 388) (1997), rev’d, 270 Ga. 165 (509 SE2d 602) (1998) for a more detailed statement of the underlying facts in that case.

       The Insurance Code provides a specific procedure for obtaining judicial review of the Insurance Commissioner’s actions. OCGA §§ 33-2-25 through 33-2-28.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A00A0685.
    RAHMAN v. DALKON SHIELD CLAIMANTS TRUST.
    (532 SE2d 699)
   McMurray, Presiding Judge.

Our Supreme Court transferred appellant-plaintiff Rasheeda H. Rahman’s appeal of the state court’s dismissal of the underlying product liability action for our consideration, as involving legal, rather than equitable, issues. Plaintiff filed her complaint therein on January 28, 1997, alleging that she suffered injuries as a result of defects in a Daikon Shield intrauterine device (“IUD”) placed in her uterus in 1972. The IUD was made by A. H. Robbins Company, Inc., predecessor-in-interest to appellee-defendant Daikon Shield Claimants Trust (“Trust”). On June 9, 1998, the state court granted summary judgment to the Trust, concluding that plaintiff’s claims were barred by the applicable statute of limitation and the doctrine of laches. Plaintiff appealed the state court’s orders granting the Trust’s motion for summary judgment and denying plaintiff’s motion for reconsideration on July 8, 1998 (the “July 1998 appeal”). The state court dismissed the July 1998 appeal on December 22, 1998, for plaintiff’s failure to timely pay appeal costs or submit an affidavit of indigence. Plaintiff appealed the state court’s order dismissing the July 1998 appeal to our Supreme Court on January 19, 1999. Concluding that plaintiff’s appeal of the order dismissing the July 1998 appeal involved legal, rather than equitable, issues, the Supreme Court thereafter transferred such appeal to this Court for consideration. Held:

1. Plaintiff contends the state court erred in dismissing her July 1998 appeal.

OCGA § 5-6-48 (c) authorizes a trial court, in its discretion, to dismiss an appeal if “there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of the party to pay costs in the trial court or file an affidavit of indigence.”

Thus, if dismissal of an appeal under OCGA § 5-6-48 (c) is to be proper, there must be an unreasonable and inexcusable delay and that delay must be due to the failure of a party to pay costs or file an affidavit of indigence. This determination lies in the legal discretion of the trial court as factfinder, and we review the exercise of such discretionary authority upon an abuse of discretion standard. In this regard, a delay in excess of 30 days is prima facie unreasonable and inexcusable. However, “the trial court must make findings on these issues before we may determine whether its discretion was abused.” In this case, upon its consideration of the briefs, pleadings, and the record, the state court found that “[pjlaintiff’s negligent failure to pay costs created an unreasonable and inexcusable delay making dismissal of the [July 1998] appeal proper under the circumstances. . . .” In support of the foregoing finding, the state court also correctly found that the clerk gave plaintiff notice by letter that her office stood ready to “expedite the preparation of the appellate record despite a backlog in its workload, that the record was not prepared expeditiously because [p]laintiff had not paid costs or submitted an affidavit of indigency. . . .” Further, the clerk, by affidavit, stated the date the cost bill was sent, the means by which it was sent, and that counsel for plaintiff received the cost bill. “[T]his creates a rebut-table presumption that the cost bill was delivered to counsel and creates a duty on [plaintiff] to show that the failure to pay was not a wilful refusal.” In response to the Trust’s motion to dismiss below, plaintiff argued only that any delay was attributable to the clerk and that costs were not due because the plaintiff was indigent. However, the record shows that the clerk duly noticed plaintiff of her requirement to pay costs. Plaintiff was under a statutory duty to pay costs in the trial court or file an affidavit of indigence. Plaintiff does not renew the foregoing arguments on appeal. Instead she argues for the first time on appeal that certain communications between the state court and counsel were violative of her right to due process as ex parte. The record reflects that the state court undertook these communications to determine whether the Trust would reimburse the clerk for additional costs in the event an order directing that the record on appeal be prepared on an expedited basis was issued. “[Constitutional issues not raised and ruled on below are not preserved for appeal.” Even if the contrary were true, the record reflects that the contacts complained of in the case sub judice are minimal and harmless as in aid of the plaintiff.

Decided March 27, 2000

Reconsideration denied April 17, 2000

Victor A. McLemore, for appellant.

Troutman Sanders, Nancy K. Deming, Carmie L. McCurry, for appellee.

Under these circumstances, we find that the state court did not abuse its discretion in dismissing plaintiff’s July 1998 appeal.

2. In light of our disposition of Division 1, we do not address plaintiff’s remaining claim of error.

Judgment affirmed.

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

       The Supreme Court of Georgia transferred the instant appeal to this Court citing Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328).

       Summary judgment was entered on June 9, 1998.

       Plaintiff’s motion for reconsideration was denied on July 2, 1998.

        Wood v. Notte, 238 Ga. App. 748, 749 (1) (519 SE2d 923).

       Id.

        Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415 SE2d 908); Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359).

        Wood v. Notte, 238 Ga. App. at 749 (1), supra; see also Beavers v. Gilstrap, 210 Ga. App. 46, 47 (1) (435 SE2d 267); Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915).

        Wood v. Notte, 238 Ga. App. at 749 (1), supra.

       Id., citing Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431).

        Style Craft Homes v. Chapman, 226 Ga. App. 634, 636 (487 SE2d 32), citing Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, supra.

       Plaintiff filed an affidavit of indigence on November 3, 1998, 71 days after receiving the clerk’s bill of costs on August 24, 1998.

       OCGA § 5-6-48 (c).

        Braden v. Bell, 222 Ga. App. 144, 146 (1) (473 SE2d 523), citing Ogletree v. State, 211 Ga. App. 845, 846 (440 SE2d 732).

        Crowe v. Smith, 151 F3d 217, 235 (IV) (A) (3) (c), cert. denied, 526 U. S. 1158 (119 SC 2047, 144 LE2d 214) (1999).


author: Miller, Judge.

text:
    A00A0024.
    In the Interest of L. S. D. et al., children.
    (534 SE2d 109)
   Miller, Judge.

The question in this case is whether a mother’s recent improvements in behavior require the juvenile court to deny a petition to terminate her parental rights. We hold they do not and affirm.

In 1994, appellant, the natural mother, twice struck her 14-year-old child, N. H., with a hammer and also attacked the child with a screwdriver, resulting in her guilty plea to a simple assault charge. N. H. was found to be deprived, and the reunification plan provided that appellant would develop coping skills and seek drug treatment.

In a 1996 deprivation hearing, appellant stipulated that she whipped and severely injured her two younger children (eight-year-old I. S. L. and eleven-year-old L. S. D.) with an electrical cord, resulting in her conviction on two counts of cruelty to children. Consequently, I. S. L. and L. S. D. were found deprived and placed in foster care while appellant worked on meeting the mandates of her reunification plans, including (1) improving her parental skills by attending parenting and anger management classes and (2) receiving evaluation and treatment for her chronic alcohol and drug abuse.

In November 1998, the Department of Family & Children Services (DFACS) petitioned to terminate appellant’s parental rights as to I. S. L. and L. S. D., alleging she failed to maintain a meaningful parental role and failed to comply with the court-ordered reunification plans. The juvenile court granted the petition, which appellant appeals on sufficiency of the evidence.

Appellate review of parental termination orders is clear:

Construing the evidence most favorably to the findings of the court, the question on appeal is whether a rational trier of fact could have found clear and convincing evidence (a) of parental misconduct or inability and (b) that terminating parental rights was in the best interest of the child. Parental misconduct or inability is shown by evidence (i) the child is deprived, (ii) lack of parental care caused the deprivation, (iii) such is likely to continue, and (iv) the continued deprivation is likely to cause serious harm to the child.

Appellant’s sole ground for appeal is that the evidence did not suffice to sustain a finding that her parental misconduct was likely to continue or would not likely be remedied. She does not contest that her parental misconduct caused her children to be deprived, that continued deprivation would seriously harm the children, or that termination of her parental rights would be in the best interests of the children.

“Evidence of past parental conduct resulting in deprivation may be considered in determining whether the deprivation is likely to continue and cause harm to the children.” The juvenile court need not reunite the children with the parent to obtain current evidence of deprivation. Evidence that is one or two years old is still relevant, as there will necessarily be some passage of time between the removal of the children and the termination hearing.

Here appellant engaged in egregious physical abuse of her children under the guise of discipline. For the felony offenses against I. S. L. and L. S. D., her 12 years of probation includes a condition that she have no unsupervised contact with the children. This condition precludes her from independently caring for the children or receiving custody of them during their minority and, thus, necessarily has a demonstrable negative effect on the quality of the parent-child relationship. Evidence also showed a history of excessive use of intoxicating liquors and drugs.

She also failed to meet reunification plan goals. Despite a June 1994 and a July 1997 case plan mandate that she receive substance abuse treatment, she did not complete an eight-week substance abuse course until after the November 1998 termination petition was filed. In fact, in February 1998 she admitted to the court that she continued to drink during her alleged rehabilitation, which led the court to delete her reunification goals. The 1994 and 1997 case plans also directed that she attend a parenting course, which six-week course she did not complete until, again, after the petition was filed.

Appellant also failed to meet the visitation goals of the case plans. She failed to visit any of the children until December 1997, and from then until the November 1998 petition, she visited them only twice (one instance was pure happenstance). After the filing of the petition, appellant became more diligent, but by then her children, who had bonded with the foster parent, wanted no contact with her and refused to attend. Finally, a 1997 psychological evaluation concluded that she had poor tolerance for stress and pressure and difficulties with impulse control.

Decided April 17, 2000.

Saunders P. Jones IV, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Robert G. Nardone, for appellee.

Appellant nevertheless claims that there was insufficient evidence that her deleterious behavior would continue. She testified at the February 1999 termination hearing that since June 1998 she had been sober and that for the last month she had been attending AA meetings three or four times a week. She also put on two witnesses who testified that she was a changed woman. And she documented her recent completion of the parenting and substance abuse courses.

Recent successful treatment for a disorder does not require the court to conclude that a parent’s long history of misconduct will now cease. First, the court need not accept that a disorder such as alcoholism was the sole cause of the misconduct, particularly where, as here, a psychological evaluation found other personality disorders independent of alcoholism. Second, a court may find that a parent’s conduct over the years is a better predictor of future conduct. “A few months of partial stability do not establish that the parent is capable of maintaining the progress.” In fact, improvement that takes place only after the termination petition is filed is often unconvincing. The evidence was also undisputed that during their minority appellant would not be able to care for the children, as her probation forbade her from having unsupervised contact with them.

What weight to give recent improvements is a question for the trier of fact. Thus, “[i]n considering recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” A rational trier of fact could have found clear and convincing evidence that appellant’s misconduct, the cause of the children’s deprivation, was likely to continue or would not likely be remedied.

Judgment affirmed.

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

       N. H. has since reached the age of majority.

       (Footnote and punctuation omitted.) In the Interest of A. M. L., 242 Ga. App. 121, 122 (1) (527 SE2d 614) (2000).

       (Citations omitted.) In the Interest of C. M., 236 Ga. App. 874, 877 (2) (513 SE2d 773) (1999).

       Id.

       Id.; see A. M. L., supra, 242 Ga. App. at 123 (1) (c).

       See OCGA § 15-11-81 (b) (4) (B) (iv).

       See OCGA § 15-11-81 (b) (4) (B) (iii).

       See OCGA § 15-11-81 (b) (4) (B) (ii).

       See OCGA § 15-11-81 (b) (4) (C) (iii).

       See also OCGA § 15-11-81 (b) (4) (C) (i).

       A. M. L., supra, 242 Ga. App. at 123 (1) (c).

       Id. at 124 (1) (c).

       See, e.g., In the Interest of K. D. S., 237 Ga. App. 865-867 (1) (b), (c) (517 SE2d 102) (1999) (completing parenting class after filing of termination petition may be discounted, for “[n]ew compliance efforts after the filing of the termination petition are of questionable significance. fCit.]”).

       (Footnote omitted.) A. M. L., supra, 242 Ga. App. at 124 (1) (c).


text:
    A00A0086.
    WELLS v. THE STATE.
    (534 SE2d 106)
   Miller, Judge.

Earlie Wells was convicted of armed robbery, kidnapping with bodily injury, and two counts of theft by taking. On appeal he alleges three errors: (1) the jury venire did not represent the county population — but he failed below to show purposeful discrimination; (2) over objection, the court allowed a prosecution witness on redirect to testify regarding a visit to the victim — but this testimony was to counter attacks on the witness’ credibility during cross-examination; and (3) the court denied his motion for mistrial based on a comment made in the prosecution’s closing argument — but he failed to renew the motion after curative instructions. Accordingly, we affirm.

The evidence showed that Wells forced the victim at gunpoint to drive Wells to a location, where Wells required him to get into the car’s trunk. Wells not only stole the victim’s personal money and business receipts, but also shot him twice when the victim tried to escape from the trunk. Thinking the victim was dead, Wells left him unattended in the trunk in a parking lot, and the victim escaped.

1. An accused may challenge the jury array in writing “for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him.” A defendant who attacks the racial makeup of the jury venire bears the burden of showing purposeful discrimination. Here Wells submitted no evidence other than his attorney’s observation that only three of the thirty-six venire in the array were African-Americans. The court sua sponte put the court clerk on the stand, who testified that of the 150 persons randomly selected by computer and summoned to jury duty that week, 35 (23.33 percent) were African-Americans. A computer then randomly selected equal groups of the venire to be sent to each courtroom. During the week 50 served as jurors, of which 15 (30 percent) were African-Americans. He also testified that 30 percent of the county’s adult population were African-Americans. No party cross-examined the clerk nor presented any other evidence on the matter.

This evidence amply supported the court’s finding that African-Americans were not systematically excluded from the jury venire and that the panels were randomly selected in a constitutional manner. Rather than pointing to any flaw in the jury selection process, Wells on appeal simply argues that the 1990 Census showed the overall African-American population in the county to be 33 percent and that this was substantially different from the percentage of African-Americans (23.33 percent) in the 150-person venire. The 1990 Census, which may be judicially noticed, in fact showed the overall African-American population to be 33.32 percent.

This does not support a claim of an unconstitutional disparity. First, unlike the clerk’s 30 percent figure for the county, the Census 33 percent figure cited by Wells is not restricted to the adult population from which juries are chosen. Second, even if it were, the difference that Wells points to as unconstitutional is the difference between 23.33 percent and 33.32 percent. Because this difference known as “absolute disparity” is less than ten percentage points (though just barely), as a general proposition it satisfies constitutional requirements. Third, Wells points to no flaw in the random selection system. Wells’ arguments lack merit.

2. Wells argues that the court erred in allowing a witness on redirect to testify regarding a visit with the victim. This witness had testified on direct that (a) Wells had asked her to lie so as to provide him with an alibi and (b) Wells stated he thought the victim was dead. On cross-examination, Wells’ counsel challenged her credibility by querying her at length about not discussing the incident or her testimony with anyone (besides her mother) until her testimony at trial. On redirect, the State sought to rebut any inference that this witness hid evidence, by asking her whether she discussed the incident with the victim. Over Wells’ relevancy objection, the court permitted the witness to respond. She testified that she had apologized to the victim for her inaction on the night of the crimes when he had approached her for help after finally escaping from the trunk.

“[A]dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” Even though alone it may not be sufficient, evidence which in connection with other evidence tends, even slightly, to prove, explain, or illustrate a fact is probative and relevant. “Doubt as to relevancy should be resolved in favor of admission and against exclusion,” with the evidence’s weight left to the jury. Because the inquiry here sought to explain or counter the adverse credibility inferences elicited by Wells’ cross-examination, we hold that the court did not manifestly abuse its discretion in allowing the witness to respond.

Decided April 17, 2000.

Carlton K. Nelson III, for appellant.

3. During closing argument, the prosecution referred to Wells as a “cold blooded killer.” Wells immediately moved for a mistrial on the grounds that no one had died and that the comment was inflammatory. Denying the motion, the court instead gave the jury curative instructions that they should disregard the statement concerning a killer and reminded them of the offenses with which Wells was actually charged. Wells did not renew his motion for mistrial or further object.

It is a longstanding rule in Georgia “that in order to preserve [the] issue for appellate review after curative instructions are given the motion for mistrial must be renewed. . . .” “If the trial court’s curative instructions were not sufficient, defendant should have sought additional relief.” Failure to do so waives appellate review of the matter, including complaints about improper comments in closing argument.

Judgment affirmed.

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

Ralph M. Walke, District Attorney, Trade J. Hobbs, Assistant District Attorney, for appellee.

       OCGA § 15-12-162. A timely oral challenge to the array followed by a written motion for new trial reiterating the challenge is a sufficient writing under this Code section. Morgan v. State, 161 Ga. App. 484 (1) (287 SE2d 739) (1982).

        Jewell v. State, 261 Ga. 861, 863 (3) (413 SE2d 201) (1992).

       See id. (“Random selection safeguards the selection process from manipulation and ensures the jury’s independence. [Cit.]”); Larmon v. State, 256 Ga. 228, 230-231 (345 SE2d 587) (1986) (random selection negates unsubstantiated allegations of a deliberate and systematic exclusion of an identifiable and distinct group).

       See Hansley v. State, 267 Ga. 48, 49 (2) (472 SE2d 305) (1996); Reese v. State, 241 Ga. App. 350, 351 (2) (526 SE2d 867) (1999).

        Cochran v. State, 256 Ga. 113, 115 (8) (344 SE2d 402) (1986).

       The Census supports the clerk’s figure.

       See Truitt v. State, 212 Ga. App. 286, 287, n. 1 (441 SE2d 800) (1994).

        Cook v. State, 255 Ga. 565, 571 (11) (340 SE2d 843) (1986).

       See Hansley, supra, 267 Ga. at 49 (2).

       (Citations and punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 221 (8) (489 SE2d 329) (1997).

        Fleming v. State, 169 Ga. App. 406, 407 (3) (312 SE2d 869) (1984).

       (Citations and punctuation omitted.) Id.

        Dalton Paving, supra, 227 Ga. App. at 221 (8).

       (Citations and footnote omitted.) Woodham v. State, 263 Ga. 580, 582 (3) (439 SE2d 471) (1993).

        Weems v. State, 268 Ga. 515, 516 (2) (491 SE2d 325) (1997).

        Miller v. State, 240 Ga. App. 18, 19 (2) (522 SE2d 519) (1999); Billups v. State, 234 Ga. App. 824, 829 (3) (507 SE2d 837) (1998); Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318) (1996); see Mullis v. State, 248 Ga. 338, 341-342 (13) (282 SE2d 334) (1981). Compare Bolden v. State, 272 Ga. 1, 2 (525 SE2d 690) (2000) (defendant not required to renew his objection or move for mistrial where direct objection to closing argument is overruled without curative instructions).


text:
    A00A0180.
    BROWN v. THE STATE.
    (534 SE2d 98)
   Miller, Judge.

The primary question on appeal is whether the trial court abused its discretion by not striking for cause a potential juror who expressed reservations about being impartial in adjudicating the charged crime but who ultimately indicated a willingness and ability to try the issues objectively. Because we hold that the trial court could find the juror to be eligible, we affirm.

Richard Brown was indicted for possessing cocaine with the intent to distribute and for doing so within 1,000 feet of a public housing project. At trial the evidence showed that an officer witnessed Brown repeatedly remove small plastic bags from his pocket and conduct hand-to-hand transactions with various individuals. With Brown’s consent, the officer patted him down and discovered 15 individually packaged bags of crack cocaine in a large bag and 28 similarly packaged bags of cocaine. The officer found no money on Brown. After the court directed a verdict in Brown’s favor on the count alleging possession with intent to distribute within 1,000 feet of a public housing project, the jury found him guilty on the other count. The court denied Brown’s motion for new trial.

1. Brown first complains that the court should have struck for cause a potential juror who expressed strong feelings against illegal drugs and illegal drug use. Because of this bias, the juror felt that he lacked the objectivity to adjudicate the case. When questioned by the judge, he said that he would be willing to try to be objective and that if impaneled he would decide the case without regard to his feelings against illegal drugs, but he noted that he was still uncomfortable. Based on this testimony, the court overruled Brown’s challenge for cause.

‘Whether to strike a juror for cause lies within the sound discretion of the trial court.” Unless the juror holds an opinion regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause. A potential juror’s doubts as to his or her own impartiality or reservations about his or her ability to set aside personal experiences do not require the court to strike the juror, as the judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict. A juror who expresses a willingness to “try” to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service. We hold that the trial court did not manifestly abuse its discretion in refusing to strike the juror in question.

2. Brown successfully moved in limine to exclude testimony about the substance of a tip from a so-called concerned citizen that prompted the officer to observe Brown. When the prosecutor asked at trial how Brown came to his attention, the officer responded, “I received a tip that this subject was selling — ,” whereupon the prosecutor immediately stopped the answer and attempted to move on. Brown objected and moved for a mistrial, which the court denied without issuing any curative instructions.

A mistrial based on prejudicial matter being improperly presented to the jury is appropriate if it is essential to the preservation of the accused’s right to a fair trial. “Whether the [statement is] so prejudicial as to warrant a mistrial is within the trial court’s discretion.” The statement’s nature, the other evidence in the case, and the actions of the court and counsel in dealing with the impropriety are all factors to be considered.

Here the officer never testified as to what the tipster said that Brown was selling. Moreover, the question posed did not call for the substance of the tip, and the prosecution immediately stopped the officer from violating the order on the motion in limine. In light of the other evidence that Brown conducted numerous hand-to-hand transactions from a bag containing cocaine packaged for sale, the trial court did not abuse its discretion in denying the motion for mistrial.

3. Conceding that the officer was adequately qualified as an expert in the illegal drug industry, Brown nevertheless argues that the officer’s testimony regarding the manner of conducting drug transactions was speculative and conclusory. Noting that he found no money on Brown, the officer had explained that often one person receives the money and then directs the buyer to the holder of the drugs. So-called conclusory opinion testimony about the illegal drug industry from expertly qualified officers is admissible to explain the circumstances surrounding the defendant’s actions. We discern no error here.

4. Brown contends the court erred in refusing to give his requested charge on the elements of the crimes of possessing cocaine with the intent to distribute and of doing so within 1,000 feet of a public housing project. This contention fails for two reasons. First, any objection to the instructions concerning possession of drugs within 1,000 feet of a public housing project is moot, because Brown received a directed verdict in his favor on this count. Second, the court adequately instructed the jury on the elements of the remaining count with the statutory language of OCGA § 16-13-30 (b).

But Brown argues that in instructing on the elements of the crime, the court erred in reading the entire statute, which deems unlawful not only possessing cocaine with the intent to distribute, but also (among other things) manufacturing, administering, and dispensing cocaine. Indeed, a jury instruction can be misleading which gives several definitions of the offense where the accused is charged with only one of those definitions. But if the jury subsequently receives remedial instructions properly confining the offense to that charged in the indictment, no fatal error is present. A limiting instruction that the State must prove the offense as alleged in the indictment can cure the problem.

Here the court read the indictment to the jury before voir dire; read the indictment again as it began the jury charge; sent the indictment out with the jury with the instruction that they should review it to inform themselves fully as to the charge made against Brown; told the jury that the State bore the burden of proving every material allegation of the indictment beyond a reasonable doubt; repeatedly reminded the jury throughout the instructions that the charged offense was possession of cocaine with intent to distribute; after reciting the Code language about the various methods of violating the statute, then immediately pointed out that in this case Brown was charged with the particular method of possessing cocaine with intent to distribute; and explained the jury verdict form, which specified the offense as possession of cocaine with intent to distribute. This verdict form and the instructions vitiate any valid concern that the jury was confused or might have convicted Brown of some offense other than that with which he was charged.

Decided April 17, 2000.

Sharon L. Hopkins, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

5. Finally, Brown claims that the court erred in giving an instruction on the lesser included charge of possession of cocaine that included a general instruction on the meaning of lesser included charges. This charge was taken verbatim from OCGA § 16-1-6 and was followed by an explanation that possession of cocaine here was a lesser included offense of possession of cocaine with the intent to distribute. These are correct statements of the law. Moreover, Brown was convicted of the greater indicted offense of possession of cocaine with the intent to distribute.

Conviction of the greater offense renders harmless any error, although we find none, in the charge as given for the lesser included offense of [possession of cocaine, OCGA § 16-13-30 (a)]. In this case no injury resulted, because the jury found the accused guilty of [possession of cocaine with intent to distribute under OCGA § 16-13-30 (b)] and that verdict is supported by sufficient competent evidence. If the jury had found the accused guilty of [the lesser included offense of possession of cocaine], there would be room for complaint of the allegedly inappropriate instructions. Smith v. State, 8 Ga. App. 680, 682 (2) (70 SE 42) (1911). Rodriguez v. State, 211 Ga. App. 256 (1), 257 (439 SE2d 510) [(1993)].

Judgment affirmed.

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

       OCGA § 16-13-30 (b).

       OCGA § 16-13-32.5 (b).

       (Citation omitted.) Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998).

       Id.; see Wilson v. State, 271 Ga. 811, 816 (5) (a) (525 SE2d 339) (1999); Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993).

        Wilson, supra, 271 Ga. at 815 (5) (a); Holmes, supra, 269 Ga. at 126 (2); see Dorillas v. State, 224 Ga. App. 336, 337 (1) (a) (480 SE2d 351) (1997).

        Holmes, supra, 269 Ga. at 126 (2); Garland v. State, 263 Ga. 495, 496-497 (1) (435 SE2d 431) (1993).

        Malone v. State, 240 Ga. App. 732, 735 (524 SE2d 770) (1999); Harris v. State, 178 Ga. App. 735, 736-737 (1) (344 SE2d 528) (1986).

       Cf. McClain v. State, 267 Ga. 378, 381 (1) (a) (477 SE2d 814) (1996) (distinguishing those cases where the potential juror had a close relationship with the parties or the victim).

        White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

       (Citation omitted.) Id.

       Id.

        O’Donnell v. State, 200 Ga. App. 829, 834 (2) (409 SE2d 579) (1991).

       See Mallory v. State, 271 Ga. 150, 153 (5) (517 SE2d 780) (1999), citing Nation v. State, 180 Ga. App. 460, 463 (6) (349 SE2d 479) (1986).

       See Golson v. State, 130 Ga. App. 577, 580 (2) (203 SE2d 917) (1974).

       OCGA § 16-13-30 (b).

        Caithaml v. State, 163 Ga. App. 429, 430 (2) (294 SE2d 674) (1982).

       Id. Accord Moses v. State, 270 Ga. 127, 129-130 (4) (508 SE2d 661) (1998).

        Salahuddin v. State, 241 Ga. App. 168, 170 (1) (525 SE2d 422) (1999). See Ceasar v. State, 239 Ga. App. 752, 753-754 (2) (521 SE2d 866) (1999); Buice v. State, 239 Ga. App. 52, 59 (5) (520 SE2d 258) (1999).

       OCGA § 16-13-30 (a).

       (Punctuation omitted.) Tucker v. State, 225 Ga. App. 757, 759 (3) (484 SE2d 793) (1997).


author: Ruffin, Judge.

text:
    A00A0229.
    WATSON v. THE STATE.
    (534 SE2d 93)
   Ruffin, Judge.

Anton Watson appeals his convictions of entering an automobile with intent to commit theft and theft by taking. Watson claims that his trial counsel was ineffective in several respects. We disagree and affirm.

The relevant facts follow. Jane Shaffner was returning to her car in the parking lot at Gwinnett Place Mall when she saw what she “thought was a break-in on a BMW” As she was walking, Shaffner heard glass shatter and a car alarm go off. She looked up and saw a man inside the BMW with his legs hanging out of the broken passenger-side window. The man was “going through stuff real quick” and seemed anxious. The BMW was parked next to a white van, which was next to Shaffner’s car. Shaffner scanned the parking lot and saw a police officer parked nearby. She then continued to her car, tried unsuccessfully to see the license number of the van, and drove over to the police officer, Lieutenant Edmunds of the Gwinnett County Police Department. Shaffner pointed to the van, which was pulling away.

As he left to pursue the van, Edmunds passed the BMW and saw that the window had been smashed. He followed the van, which was “weaving in and out of traffic at an accelerated rate of speed.” Eventually, he caught up with the van and saw that its license plate “had been bent up in order to keep people from seeing the numbers on the tag.” After Edmunds turned on his blue lights, the van continued driving and then turned onto another street. Eventually the van stopped and its two occupants — Watson, the driver, and Lonnie Evans, the passenger — were arrested. Police found a screwdriver in Evans’ pocket and a Palm Pilot mini-computer on the side of the road near the van. Papers inside the Palm Pilot’s case bore the name of the BMW’s owner, who confirmed that the Palm Pilot was his and that it had been taken from his car.

Shaffner, who had followed in her car, was taken by Sergeant Benson, another officer at the scene, to see Watson and Evans, who were sitting in the back of a police car. According to Benson, Shaffner identified Watson as the man she saw in the BMW. Shaffner testified at trial, however, that she could not remember whether she had identified either of the men in the police car and that she “didn’t see the face up close of the man that was in the BMW.” Shaffner was not asked to identify the perpetrator from the witness stand.

Evans, who was Watson’s father-in-law, testified that, on the day of the break-in, he and Watson drove the van to the mall, where Watson planned to buy a gift for his girlfriend. According to Evans, as Watson was driving in the parking lot, Evans “saw something” and told Watson to “hold for a minute.” Evans then stepped out of the van, broke the window of the BMW with a screwdriver, reached inside and grabbed “something,” returned to the van, and told Watson, “Let’s go.” Watson “was upset and seemed afraid,” but he drove away. Watson told Evans that police were following the van, and Evans tossed “that thing” out the window. According to Evans, Watson had nothing to do with the crime.

Watson and Evans were both charged with entering an automobile with intent to commit theft and misdemeanor theft by taking. Evans pled guilty before Watson’s trial. Watson was convicted on both counts.

To establish ineffective assistance of counsel, Watson must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Prejudice exists where “there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” We will affirm a trial court’s finding that counsel was effective unless it is clearly erroneous.

(a) First, Watson contends that trial counsel was ineffective because he erroneously told Watson and the trial court that the crime of entering an automobile was a misdemeanor. But Watson did not raise this argument in his motion for new trial and did not argue it at the hearing. Thus, it is waived, and we will not consider it on appeal.

(b) Next, Watson complains that counsel failed to file a motion challenging the legality of his arrest. We assume that Watson is arguing that counsel should have filed a motion to suppress the fruits of the arrest. To establish that counsel’s failure to file a motion to suppress constituted deficient performance, Watson must “make a strong showing that had the motion been filed, the evidence would have been suppressed.” This he failed to do.

Watson concedes that Lieutenant Edmunds was justified in stopping the van based on what Shaffner told him, but he contends that Edmunds did not have probable cause to immediately arrest the van’s occupants. Probable cause for an arrest exists where “the facts within the officer’s knowledge at the time of the arrest constituted reasonably trustworthy information which was sufficient to authorize a prudent person to believe that [the defendant] had committed an offense.” To determine whether Edmunds had probable cause for the arrest, we look to the information he had at the time of the arrest. Edmunds testified at trial that Shaffner “flagged [him] down” and said that she saw a man lean into a dark-colored BMW and then get into a white van and that she thought a theft was occurring. Shaffner pointed to the van, and Edmunds saw that it was near a dark car. He drove past the dark car, confirmed that it was a BMW, and saw that one of its windows had been broken. Edmunds followed the van, which weaved and sped through heavy traffic and continued on after he activated his blue lights. After the van finally stopped, Edmunds saw that the license plate had been tampered with. Under these circumstances, we conclude that Edmunds had probable cause to arrest Watson when he stopped the van. As the arrest was legal, counsel did not err in failing to challenge it.

(c) Watson contends that counsel should have filed a motion to suppress Shaffner’s “showup” identification of him in the police car. But Watson failed to make a strong showing that he would have won such a motion. Identification evidence will be suppressed if (1) the identification procedure was impermissibly suggestive and (2) there was a very substantial likelihood of irreparable misidentification. On-the-scene “showup” identifications, like the one here, “have been held not to be impermissibly suggestive but necessary due to the practicabilities inherent in such situations.”

(d) Watson asserts that counsel was ineffective for failing to move for a mistrial after Lieutenant Edmunds commented on Watson’s right to remain silent. The testimony in question is as follows:

Q: Other than basically taking the defendants into custody at that time, did you perform any other police functions there at the scene?
A: Well, I Mirandized both Mr. Evans and Mr. Watson and asked them if they wanted to talk about it —

Q: That’s all. Did you have the van towed from the scene?

At the motion for new trial hearing, trial counsel testified that he did not object to Edmunds’ testimony because “the State did the proper thing” by cutting Edmunds off before he could comment on Watson’s silence, and counsel did not want to call attention to the issue. Pretermitting whether Edmunds’ testimony was objectionable, counsel’s decision not to object or move for a mistrial was a matter of trial strategy, and we cannot say that decision fell outside the wide range of reasonable professional conduct.

(e) Watson charges that trial counsel was ineffective for failing to move for a directed verdict at the close of the evidence. Counsel moved for a directed verdict at the close of the State’s case, asserting that there was no evidence that Watson was the man in the BMW The trial court denied the motion, and counsel did not renew it at the close of the evidence.

Pretermitting whether counsel should have renewed the motion, Watson has not shown any prejudice. A directed verdict should be granted only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” Watson’s only witness was Evans, who took full responsibility for the break-in. On cross-examination, however, Evans admitted that before the trial he told the prosecutor that he had not taken anything from the BMW nor thrown anything out of the van. Moreover, Shaffner identified Watson as the man in the BMW. And even if Watson was not the man in the BMW, the evidence showed that he was the getaway driver. Thus, Watson would not have been entitled to a directed verdict.

(f) Next, Watson argues that his lawyer’s trial strategy was bizarre and unrealistic. According to Watson,

the strategy was to counter the state’s circumstantial evidence of IWatson’s] participation in the break in with direct evidence by [Evans] that, in fact, [Watson] had no knowledge of the BMW break in. Trial counsel then expected the trial court to grant a motion for directed verdict based on the direct evidence rebutting the circumstantial evidence.

Despite counsel’s statements at the motion for new trial hearing, however, we focus on what counsel actually did at trial. In his motion for directed verdict, he argued that the evidence showed that Watson was merely present at the scene of the crime. And it is apparent from the record that counsel’s overall strategy was to blame the crime on Evans. Counsel discussed this strategy with Watson before the trial, and Watson agreed with it. “Substantial latitude is given during judicial review of trial counsel’s decisions regarding trial strategy,” and we cannot say that counsel’s “mere presence” defense was unreasonable.

Decided April 17, 2000.

Randolph G. Rich, for appellant.

Anton R. Watson, pro se.

Daniel J. Porter, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

(g) Watson asserts that counsel was ineffective for failing to object to certain hearsay testimony. Watson cites three examples: (1) Lieutenant Edmunds’ testimony that another officer, Officer McGrath, told him that a citizen had found the Palm Pilot near the stopped van; (2) Officer McGrath’s testimony to the same effect; and (3) Lieutenant Edmunds’ testimony that another officer told him that the owner of the BMW said his name was written on papers inside the computer’s case. These statements, however, are consistent with Watson’s defense that Evans was the perpetrator. In fact, Evans himself testified that he took the Palm Pilot from the BMW and later tossed it from the van. Under these circumstances, trial counsel’s failure to object to the officers’ statements was not ineffective.

(h) Lastly, Watson argues that his lawyer was ineffective for not presenting evidence about Watson’s distinctive physical appearance. Watson also asserts that counsel failed to effectively cross-examine Shaffner and Sergeant Benson concerning the accuracy of Shaffner’s identification. But Watson did not raise these arguments in his motion for new trial or argue them at hearing on that motion, and he has therefore waived them.

Judgment affirmed.

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

        Edenfield v. State, 238 Ga. App. 362, 363 (519 SE2d 452) (1999).

       (Punctuation omitted.) Id.

       Id.

       See, e.g., McGhee v. State, 237 Ga. App. 541, 544-545 (1) (b) (515 SE2d 656) (1999).

       Watson does not indicate what evidence he thinks should have been suppressed.

        Edenfield, supra.

        Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996).

       See id. at 672.

       As Watson points out, Shaffner testified that she did not actually see the man leave the BMW and get into the van. But our probable cause inquiry focuses on Lieutenant Edmunds’ state of mind at the time of the arrest. According to Edmunds, Shaffner told him that she saw the man enter the van.

       See OCGA § 17-4-20 (a); Youhoing v. State, 226 Ga. App. 475, 476 (1) (487 SE2d 86) (1997) (“An officer does not. . . actually have to see a suspect commit the act which constitutes a crime for the crime to be considered as having been committed within the officer’s presence or general knowledge.”).

        Barber v. State, 236 Ga. App. 294, 295-296 (1) (512 SE2d 48) (1999).

       (Punctuation omitted.) Gatling v. State, 203 Ga. App. 407, 409 (2) (416 SE2d 877) (1992).

       See, e.g., Rivers v. State, 271 Ga. 115, 118 (2) (b) (516 SE2d 525) (1999) (“An attorney’s failure to object to [inadmissible] testimony may be seen as trial strategy, i.e., avoiding an objection that would draw the jury’s attention to the statement.”).

       OCGA § 17-9-1 (a).

       (Punctuation omitted.) Rivers, supra.

       See, e.g., Aleman v. State, 227 Ga. App. 607, 612 (3) (b) (489 SE2d 867) (1997) (counsel was not ineffective for failing to object to evidence consistent with defense).

       See McGhee, supra.


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A00A0313.
    TANNER v. THE STATE.
    (533 SE2d 794)
   Blackburn, Presiding Judge.

Following a jury trial, Marvin Tanner appeals his conviction of violating the Georgia Controlled Substances Act for possession of cocaine. Tanner contends that the trial court erred by admitting evidence of his arrest for loitering in an area known for drug activity and by admitting evidence of similar transactions. We find that both the circumstances of Tanner’s arrest and the similar transaction evidence were properly admitted, and we affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and [Tanner] no longer enjoys a presumption of innocence.” (Punctuation omitted.) Eason v. State, 234 Ga. App. 595, 596 (1) (507 SE2d 175) (1998). So viewed, the evidence at trial shows that Tanner and two others were arrested for loitering in an area known for unlawful drug use and trafficking. During the book-in procedure, Tanner was asked to place his hands on the wall so an officer could search him. When Tanner removed his hands from his pockets, the arresting officer saw a rock of cocaine fall out of Tanner’s left pocket. Tanner was then placed under arrest for possession of cocaine. Ultimately, Tanner was not charged with the loitering offense.

1. Prior to trial, Tanner moved to suppress the evidence that he was arrested for loitering in an area known for illegal drug activity in violation of a county ordinance, contending that the evidence was irrelevant and improperly placed his character at issue. The trial court properly denied the motion.

On appeal from the grant or denial of a motion to suppress or motion in limine,

“an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing.” State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998). However, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

State v. Burks, 240 Ga. App. 425 (523 SE2d 648) (1999). At the pretrial hearing on the motion, the trial court determined that the circumstances which led to Tanner being at the jail were admissible as part of the res gestae of the arrest for the possession charge, and we agree.

It is well settled that all circumstances connected with the accused’s arrest are admissible, even though they incidentally put his character in issue. McClung v. State, 206 Ga. 421, 423 (1) (57 SE2d 559) (1950); Louis v. State, 230 Ga. App. 897 (497 SE2d 824) (1998); Hyatt v. State, 210 Ga. App. 425 (436 SE2d 540) (1993); Blackshear v. State, 199 Ga. App. 839 (406 SE2d 269) (1991); Jimerson v. State, 163 Ga. App. 54 (1) (293 SE2d 513) (1982).

Reynolds v. State, 234 Ga. App. 884, 886-887 (2) (508 SE2d 674) (1998). The trial court did not err by admitting this evidence.

2. Tanner contends the trial court erred by allowing the State to introduce similar transaction evidence because the prior offenses were not sufficiently similar, so that proof of the prior offenses did not prove anything about the possession charge. “On the question of similarity, the trial court’s findings will not be disturbed unless ‘clearly erroneous.’ ” Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992).

At trial, the State was allowed to introduce evidence that Tanner had pled guilty in 1989 to three counts of selling cocaine in violation of the Georgia Controlled Substances Act. Officer Barrion testified that while working as an undercover agent for the Gwinnett County Sheriff’s Department, he had purchased some “rocks” of cocaine from Tanner at a public housing apartment complex in Lawrenceville.

We have held that:

“[t]he test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.”

Evans v. State, 235 Ga. App. 577, 580-581 (3) (510 SE2d 313) (1998).

Tanner was on trial for possession of cocaine. The State was allowed to introduce evidence of Tanner’s sale of cocaine ten years previous for the purpose of showing bent of mind and course of conduct. Although there are differences between the prior sales and the possession, we focus on the factual similarities of the transactions. Evans, supra. In the prior offenses, Tanner pled guilty to selling rocks of cocaine from an apartment in a housing project known to have drug trafficking activity. In the charged offense, Tanner possessed a rock of cocaine shortly after having visited a low-income residential area known for unlawful drug use and trafficking. While the offenses occurred ten years apart, the lapse of time is but one factor in considering admissibility of similar transaction evidence. It is not determinative and does not automatically invalidate the similarity between the events. Mullins v. State, 269 Ga. 157 (2) (496 SE2d 252) (1998). For other cases where an extensive period of time had elapsed between the offenses, see id. (lapse of 17 years); Anderson v. State, 238 Ga. App. 866 (7) (519 SE2d 463) (1999) (lapse of 12 and 22 years); Condra v. State, 238 Ga. App. 174 (2) (518 SE2d 186) (1999) (lapse of 21 years); Gilham v. State, 232 Ga. App. 237 (1) (501 SE2d 586) (1998) (lapse of nine or ten years). Moreover, Tanner failed to object on the grounds that the incident was too remote in time. See Parrish v. State, 237 Ga. App. 274 (4) (514 SE2d 458) (1999). We cannot say that the trial court’s finding that the earlier transactions were sufficiently similar was clearly erroneous.

Furthermore, the prior guilty plea to the sale of cocaine is relevant in this case where Tanner’s defense turned on his credibility. Tanner testified at trial, denying that the cocaine fell from his pocket and denying that the cocaine was his.

It is clear in this case that based upon defendant’s denial of the commission of the subject crime (possession of crack cocaine), a past conviction involving the sale of crack cocaine would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant.

(Punctuation omitted.) Evans, supra at 581; Hatcher v. State, 224 Ga. App. 747, 751-752 (3) (482 SE2d 443) (1997).

Moreover, assuming without deciding that the trial court did err in admitting the similar transaction evidence, such error was not harmful in light of the eyewitness testimony by the police officer who saw the cocaine fall out of Tanner’s pocket. “[T]he error alone ‘is not automatically grounds for a new trial but is subject to scrutiny for harmless error.’ ” Buice v. State, 239 Ga. App. 52, 57 (3) (520 SE2d 258) (1999); see Brooks v. State, 232 Ga. App. 115, 116 (4) (501 SE2d 286) (1998) (applying the harmless error rule to admission of similar transaction evidence). The trial court did not err.

Judgment affirmed.

Eldridge, J., concurs. Barnes, J., concurs fully and specially.

Barnes, Judge,

concurring specially.

Although I have some appreciation for Tanner’s argument on similar transaction evidence (see my dissent in Roberts v. State, 241 Ga. App. 259, 263 (526 SE2d 597) (1999)), in Roberts, the majority held that similar transaction evidence may be admitted if the defendant denies commission of the subject crime because an earlier conviction of a somewhat similar crime “would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant.” Id. at 262. Therefore, as long as a defendant denies commission of the subject crime, evidence of a similar transaction is admissible if it would be helpful to the State regardless of whether the similar transaction evidence is connected logically to an actual issue in the subject case. Based upon this binding, whole court precedent, I am constrained to concur fully in the majority opinion.

Decided April 17, 2000.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.


text:
    A00A0855.
    In the Interest of J. D., a child.
    (534 SE2d 112)
   Miller, Judge.

The juvenile court adjudicated J. D. delinquent for acts which if committed by an adult would constitute child molestation and aggravated sodomy. J. D. appeals, challenging the sufficiency of the evidence. We affirm.

The evidence is examined under the standard of Jackson v. Virginia, and all reasonable inferences from the evidence are construed in favor of the juvenile court’s findings.

Viewed in this light, the evidence showed that J. D. and three other children were walking through a wooded area. The investigating officer testified that the first victim, D. D., then age six, was made to put J. D.’s penis in his mouth, after J. D. threatened to beat up D. D. Another six-year-old, D. H., reported that J. D. “humped” D. H. on the victim’s back, which involved contact between J. D.’s penis and the victim’s buttocks area. An accomplice corroborated each victim’s statements.

Under OCGA § 16-6-2 (a), “[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person.” Force means an act of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The testimony as to the victims’ statements, and that of the alleged accomplice, was sufficient evidence to show that J. D. threatened D. D. with physical harm into performing oral sex on him and that J. D. “humped” D. H., an indecent act, with the intent to arouse or satisfy the sexual desires of himself. We hold that this evidence is sufficient to warrant the juvenile court to adjudicate J. D. delinquent for the acts alleged.

Decided April 17, 2000.

Joseph W. Jones, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        In the Interest of T. T., 236 Ga. App. 46 (1) (510 SE2d 901) (1999); In the Interest of J. L., 229 Ga. App. 447, 448 (494 SE2d 274) (1997).

        See Knight v. State, 239 Ga. App. 710, 713 (3) (521 SE2d 851) (1999) (skin-to-skin contact is not a necessary element of child molestation).

        Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999).

       Under the Child Hearsay Statute, a child’s statement describing an act of sexual contact performed with or on the child is admissible if the child is available to testify and the court finds sufficient indicia of reliability. See OCGA § 24-3-16. Cf. Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998) (amendment allowing hearsay statements of child as to what happened to others is unconstitutional).

       See OCGA § 16-6-4 (a); In re W. S. S., 266 Ga. 685, 686 (470 SE2d 429) (1996) (sodomy); see also In re J. B., 183 Ga. App. 229, 230 (6) (358 SE2d 620) (1987) (child molestation).

       OCGA § 15-11-2 (6) (A).


author: Blackburn, Presiding Judge.

text:
    A00A0085.
    AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY v. POTTS et al.
    (534 SE2d 123)
   Blackburn, Presiding Judge.

American National Property & Casualty Company appeals the dismissal of its action to determine insurance coverage under a policy issued to Gerald and Brenda Taylor. The trial court dismissed the case for an -unreasonable delay in paying costs for the preparation and transmission of a transcript pursuant to OCGA § 5-6-48 (c). For the reasons set forth below, we affirm the dismissal.

OCGA § 5-6-48 (c) provides that a transcript must be filed within 30 days after the filing of a notice of appeal unless an extension of time is requested as provided by OCGA § 5-6-39. The trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such party. OCGA § 5-6-48; Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion.” (Citations and punctuation omitted.) Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991).

Kendall v. Burke, 237 Ga. App. 742 (516 SE2d 791) (1999).

The record shows that, on March 4, 1999, American National filed a notice of appeal regarding a finding by the trial court that an insurance policy issued to the Taylors extended certain coverage to them. Through its attorney, Steven Kreitzer, American National received notice from the Superior Court of Whitfield County that it owed appeal costs in the amount of $1,407 relating to the preparation and filing of the transcript. The notice, which was dated and mailed on March 12,1999, was received by Stephanie Buck, a receptionist in Kreitzer’s office at that time. Buck signed a receipt for certified mail attached to the notice on March 15, 1999, and she placed the envelope on Kreitzer’s desk that same day. Kreitzer, nevertheless, contends that for some unknown reason, he did not discover the notice until April 13,1999, and he did not pay the appeal fees until April 26, 1999, ten days after the opposing party filed a motion to dismiss American National’s action. The trial court, after conducting hearings, granted the motion to dismiss, finding that American National’s failure to comply with the requirements of OCGA § 5-6-48 (c) was unreasonable and inexcusable. We find no error in the trial court’s findings.

The threshold question of whether a delay in filing a transcript is unreasonable is a separate matter from the issue of whether such a delay is inexcusable, and refers principally to the length and effect of the delay rather than the cause of the delay. ... In Jackson v. Beech Aircraft Corp., 213 Ga. App. 172 [(444 SE2d 359) (1994), this Court] said that an unreasonable delay may be defined as a delay which may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale (see, e.g., Cousins Mtg. &c. v. Hamilton, 147 Ga. App. 210 (248 SE2d 516) [(1978)]), such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

(Punctuation omitted; emphasis in original.) Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884) (1996). Here, some evidence was presented that the delay precipitated by Kreitzer’s oversight prevented placement of this case on the earliest possible calendar and delayed its docketing and hearing. Therefore, the trial court did not abuse its discretion by finding the underlying appeal to be stale. Id.

American National contends that, even if unreasonable, its delay in paying court costs should not be considered inexcusable. In essence, Kreitzer argues that his inadvertence should be considered a good faith mistake. We cannot say that the trial court abused its discretion in this matter.

While good faith is a factor in determining whether conduct is inexcusable or excusable, it is but one factor to be considered; existence of good faith does not automatically render an unreasonable delay excusable. Whether conduct is incapable of being justified and thus inexcusable must be determined by examining the totality of the circumstances of a given appeal. Among the factors which should be considered is the existence of negligence on the part of the appealing party causing unreasonable delay, whether such delay reasonably should have been detected and timely corrected, and whether any such negligence was so severe as to prejudice the opposing party or to cause the appeal to become stale.

(Emphasis in original.) Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 500 (2) (458 SE2d 377) (1995).

Here, Kreitzer’s negligence has caused this appeal to become stale, as discussed above. Moreover, despite his claims otherwise, Kreitzer’s good faith in this matter is, at best, questionable, and the trial court has resolved this question contrary to Kreitzer’s position. On April 26, 1999, when he first answered the plaintiff’s motion to dismiss, Kreitzer stated: “Counsel for Plaintiff is advancing the court costs as apparently the payment has not yet been received from the Plaintiff for unknown reasons, whether it be lost in the mail or otherwise.” (Emphasis supplied.) In the first hearing regarding the motion to dismiss, however, Kreitzer testified that, rather than there being a delay in the delivery of the costs which were previously mailed, he had not even received the notice of such costs until April 13, 1999, and he further postulated that the notice had arrived in that day’s mail. When questioned about the returned notification of receipt, which clearly showed that someone named Stephanie B. had signed for the letter (the remainder of the last name was difficult to decipher), Kreitzer repeatedly stated that his office could not have received the notice on March 15, 1999, because there was no one named Stephanie working in his office. Later, when Buck, who worked for Kreitzer for over a month, came forward some time after the initial hearing on the motion to dismiss, Kreitzer suddenly remembered that he did have a receptionist named Stephanie at the time that the notice was received and argued that his failure to find the notice on his desk between March 15 and April 13, 1999, was a matter of “good faith” inadvertence. These facts do not support Kreitzer’s claim of good faith in this matter.

Decided April 18, 2000.

Davis & Kreitzer, Steven W. Kreitzer, for appellant.

Coppedge & Leman, Warren N. Coppedge, Jr., David L. McGuffey, for appellees.

It is undisputed that American National failed to pay for the preparation and transmission of the transcript. The trial court did not abuse its discretion in determining that the reasons therefor were unreasonable and inexcusable and in dismissing American National’s action.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A00A0415.
    THE STATE v. CORRIHER.
    (533 SE2d 800)
   Blackburn, Presiding Judge.

The State appeals the trial court’s order granting Ralph Sloan Corriher’s motion to suppress the results of his breath test. The trial court determined that the officer who administered the Intoxilyzer test to Corriher lacked a valid permit, thereby invalidating the test pursuant to OCGA § 52-7-12 (c) (1). For the reasons set forth below, we reverse the trial court.

On appeal from a trial court’s grant of a motion to suppress, the trial court’s findings of fact are accepted unless they are clearly erroneous; “however, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation omitted.) Helmeci v. State, 230 Ga. App. 866 (1) (498 SE2d 326) (1998). In the present case, Corriher was charged by accusation with two counts of boating under the influence of alcohol, see OCGA § 52-7-12 (a) (1) and (4), and one count each of possession of marijuana and pulling a skier without a mirror or observer. In moving to suppress the results of the Intoximeter 5000, Corriher argued that the Department of Natural Resources (DNR) could not meet the admissibility requirements of OCGA § 52-7-12 (c) (1), which requires that the breath analysis must have been performed “according to methods approved by the Division of Forensic Sciences [DFS] of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the [DFS] for this purpose.”

Generally, the Administrative Procedure Act (APA) applies to DFS. See Helmeci, supra at 867. See also State v. Holton, 173 Ga. App. 241, 242 (1) (326 SE2d 235) (1985); Corner v. State, 223 Ga. App. 353, 354 (477 SE2d 593) (1996). Helmeci, Holton, and Corner involved violations of OCGA § 40-6-392 (a) (1), driving while intoxicated, a provision substantially identical to OCGA § 52-7-12 (c), boating while intoxicated. “Among its other provisions, the APA declares invalid agency rules which are not ‘published or made available for public inspection.’ OCGA § 50-13-3 (b).” Helmeci, supra at 867.

Corriher contends that the State is unable to support its burden of proof regarding the proper administration of the bréath test because there were no policies and procedures promulgated by DFS which approved the instrument or the operator for its use by DNR. The State contends that the instrument and the operator fall within the exception to the APA requirements created in OCGA § 35-3-155 which was enacted as part of a comprehensive overhaul of the statutes dealing with DFS. This Code section provides:

Unless otherwise provided by law, technical, scientific, and similar processes, procedures, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the division shall not be subject to the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”

The trial court determined that this Code section exempted DFS from the publication requirements of the APA with regard to the method for administering the Intoxilyzer test (as previously determined in this Court by Helmeci, supra), but that the statute did not exempt it from publishing the procedure for becoming certified to administer an Intoxilyzer test, a question of first impression.

Citing to Dept. of Ed. v. Kitchens, 193 Ga. App. 229 (387 SE2d 579) (1989), the trial court determined that it must construe the exemption in OCGA § 35-3-155 narrowly. The subject exemption here, the Georgia Forensic Sciences Act of 1997, which is promulgated in OCGA § 35-3-155, was not addressed in Kitchens which simply interpreted the APA. It is a separate legislative act from the APA and was enacted after Kitchens. In Kitchens, this Court found that the Board of Education was not excluded from the requirements of the APA:

Decided April 18, 2000.

Construing the language of OCGA § 50-13-2 (1) as a whole so as to give effect to the legislative intent of the entire statute, we find that the exclusion of “any school, college, hospital, or other such educational, eleemosynary, or charitable institution” was intended to apply only to those institutions which provide educational or charitable services directly, and not to the administrative bodies through which they are regulated.

(Citation omitted.) Id. at 231. In Kitchens, this Court interpreted provisions of the APA; in the present case, we must interpret provisions of a separate act, the Georgia Forensic Sciences Act of 1997, which would have no application to the Board of Education issue raised in Kitchens. It is within this Act that the legislature specifically enacted additional exemptions to the APA. See Ga. L. 1997, p. 1421; OCGA § 35-3-155. The Georgia Forensic Sciences Act of 1997 was a comprehensive overhaul of statutes dealing with the DFS. See Helmeci, supra at 867.

Where the language of a statute consists of common, ordinary words, and there is nothing to show that any unusual meaning is to be attached thereto, the court cannot deny the language its ordinary, usual signification; nor is the court required to give the language a forced and strained interpretation.

Sheffield v. Cotton States Mut. Ins. Co., 141 Ga. App. 861, 863 (234 SE2d 695) (1977). OCGA § 35-3-155 excludes technical standards and procedures for the collection and testing of evidence. Even accepting a narrow construction of the statute, the officer’s training falls within the exception without expanding its plain language. Clearly, the procedure by which the officer obtained a DFS certificate to operate an Intoximeter 5000 is a technical procedure encompassed within the collection and testing of evidence. Our finding is also consistent with the legislature’s intent in streamlining DFS’ duties and responsibilities by enacting the Georgia Forensic Sciences Act of 1997.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

Jerry Rylee, Solicitor, Larry A. Baldwin II, Assistant Solicitor, for appellant.

Jeffrey R. Sliz, for appellee.


text:
    A00A0576.
    FEWOX et al. v. THE STATE.
    (534 SE2d 121)
   Blackburn, Presiding Judge.

After pleading guilty to burglary, Renee Fewox and Cherie Ste-gall appeal the trial court’s order requiring them to pay $3,405 in restitution to the victims of their crime, Sean and Charlotte Tomlinson. The appellants contend that the trial court inappropriately based its determination on the replacement cost of the items stolen rather than fair market value. For the reasons discussed below, we agree and remand the case for further consideration.

Under OCGA § 17-14-9, “(t)he amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages,” which are further defined in OCGA § 17-14-2 (2) as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” “ThusQ the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence.” Lawrenz v. State, 194 Ga. App. 724, 725 (391 SE2d 703) (1990).

Anderson v. State, 226 Ga. App. 286 (486 SE2d 410) (1997).

Determination of the amount of damages must be based upon fair market value, which must be determined exactly. Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988) (evidence insufficient when amount of restitution determined by approximation). The correct determination for the amount of restitution is the fair market value of the property rather than the replacement cost. See Sutton v. State, 190 Ga. App. 56, 57 (1) (378 SE2d 491) (1989) (value assigned to the property for which restitution ordered based upon a consideration of the fair market value of a truck of comparable age and condition). See also Hoard v. Wiley, 113 Ga. App. 328, 333-334 (2) (147 SE2d 782) (1966) (testimony regarding cost price must be coupled with evidence showing condition of item both at time of purchase and at time of loss).

Gaskin v. State, 221 Ga. App. 142, 145 (3) (b) (470 SE2d 531) (1996); Cardwell v. State, 225 Ga. App. 337 (484 SE2d 38) (1997).

At the restitution hearing in this case, the State called the Tomlinsons to testify regarding the property that had been taken from their home and the value of that property. During their examination, the Tomlinsons stated that the values which they were giving represented the replacement cost for the stolen property, except for a collection of compact discs for which the Tomlinsons calculated an average per disc worth based on their resale values. Therefore, with the exception of the collection of compact discs, the order of restitution was improperly based on replacement cost for the property. Gaskin, supra. As such, we must vacate the order of restitution and remand the case for further hearings to determine the fair market value of the stolen property. Id.

The State’s reliance on Maddox v. State, 157 Ga. App. 696 (278 SE2d 480) (1981) does not change this result. In Maddox, the defendant contended that the trial court erred by permitting the victim, whose home had been burglarized,

to testify as to her opinion of the value of an item without giving the basis for the formulation of that opinion, and that the trial court erred in permitting [the victim as a] lay witness to prove the alleged value of an item by the hearsay statement of a non-expert witness.

Id. We rejected the defendant’s contentions, finding that the owner of property is qualified to give testimony as to its value and that, “especially where an owner of stolen property is attempting to establish value for purposes of restitution by the thief . . . the question of whether [the owner] has given sufficient foundation[ ] should be left to the trier of fact.” (Emphasis supplied.) Id. at 697. Thus, Maddox dealt specifically with the ability of a victim of theft to testily regarding the value of stolen property. There was no contention in Maddox, however, that the restitution order therein was based on replacement rather than fair market value, and, as such, that opinion bears no application to the issue now before us.

Furthermore, the State’s attempt to distinguish Gaskin, supra, from the case at hand is unavailing. The State argues that the rule in Gaskin requiring the consideration of fair market value for determining restitution should apply only to damaged property and not stolen property. This distinction, however, overlooks the mandate of OCGA § 17-14-9 that a defendant can be required to pay restitution “equal to or less than, but not more than, the victim’s damages.” (Emphasis supplied.) As replacement value for stolen property may exceed its fair market value, the latter must be used to satisfy OCGA § 17-14-9.

Decided April 18, 2000.

Hudson & Montgomery, David R. Montgomery, Mark M. Wiggins, for appellants.

Timothy G. Madison, District Attorney, Barry E. King, Robin R. Riggs, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded.

Eldridge and Barnes, JJ, concur.


author: Johnson, Chief Judge.

text:
    A00A0584.
    CARTEL REALTY, INC. et al. v. SOUTHERN BEARINGS & PARTS COMPANY, INC. et al.
    (534 SE2d 119)
   Johnson, Chief Judge.

Cartel Realty, Inc. and Thomas Bond, Jr., an employee of Cartel Realty and a licensed real estate broker, sued Southern Bearings & Parts Company, Inc. and its owners Jerry and John Doyle (hereinafter referred to jointly as “owners”) for a real estate commission allegedly earned on the sale of property to a company owned and operated by Douglas Vachon (hereinafter referred to as “buyer”). Bond and Cartel Realty contend the trial court erred in granting summary judgment to the owners because questions of material fact exist regarding whether Bond and Cartel Realty procured the buyer.

The record shows that in early 1997 the buyer contacted the owners on his own to determine whether their property was for sale. He was told the property was not for sale. In November 1997, the buyer discussed his interest in the property with Peter Glover, his longtime real estate broker. Glover was told by another broker that Bond of Cartel Realty represented the owners. Glover then contacted Bond, who told Glover he had a listing on the property. Glover understood this to mean that Bond had an exclusive listing on the property.

The buyer instructed Bond to make an offer to purchase the property. Bond made an offer, but it was rejected. Believing that Bond had an exclusive listing on the property, the buyer made several telephone calls in an effort to continue negotiations, but neither Bond nor any agent of Cartel Realty ever returned his calls. Bond claims he presented the owners with a subsequent offer by the buyer, but no action was taken on this offer.

Sometime after January 14, 1998, the buyer saw a sign on the property indicating that Terminus Real Estate had an exclusive listing of the property. The buyer informed Glover of this fact, and Glover called Bond. Bond then admitted to Glover that he only had an open listing on the property and that he did not have an exclusive agreement to sell the property. At no time did the owners have an exclusive agreement with Bond or Cartel Realty to sell the property.

The buyer then authorized Glover to negotiate the purchase of the property through the exclusive listing agency, and a contract for sale was entered into and executed on April 30, 1998. Bond and Cartel Realty did not receive any real estate commission on the sale of the property.

1. Bond and Cartel Realty contend the trial court failed to consider Bond’s affidavit, filed the day before the hearing on the motion for summary judgment, and that such failure mandates a reversal of the grant of summary judgment to the owners. However, neither the transcript nor the trial court’s order granting summary judgment supports this contention. While the trial court questioned the timeliness of the affidavit, the owners did not object or move to strike Bond’s affidavit. And the trial court directed Bond and Cartel Realty to give the affidavit to the law clerk. There is no evidence in the record that the trial judge did not review or consider Bond’s affidavit prior to rendering her ruling from the bench, and the unsupported conclusions and self-serving representations in the appellants’ brief do not entitle them to a review of the issue. This enumeration of error lacks merit.

2. The trial court did not err in granting summary judgment to the owners. There is no dispute that Bond and Cartel Realty did not have an exclusive listing. In fact, Bond’s affidavit specifically states that he asked for an exclusive listing, but the owners would not give him one. At most, Bond had an open listing, which entitles him to a commission only if he was the procuring cause of the sale. In determining whether a real estate broker is the procuring cause of a sale where there is no exclusive listing to sell, the broker must prove “that there were negotiations still pending between the broker and the prospective purchaser and that the owner was aware that negotiations were still pending at the time he consummated the sale.” Even if a realtor procures the ultimate buyer of the property, he is not entitled to a commission unless he effects the sale or is the procuring cause of the sale.

According to the undisputed evidence, the buyer attempted to purchase the property from the owners before Bond ever contacted the owners regarding a listing. At some point, Bond approached the owners and was told that he could not have an exclusive listing. The only reason Bond was involved at all in negotiations between the buyer and the owners was because the buyer and Glover mistakenly believed Bond had an exclusive listing to sell the property. After the buyer’s offer was rejected by the owners, the buyer saw a sign on the property showing that another real estate agency had an exclusive listing of the property, and he and Glover learned that Bond only had an open listing. Subsequently, they began dealing with the exclusive listing agency and ultimately negotiated a contract for sale through the exclusive listing agency. It is undisputed that Bond was not involved in the ultimate negotiations which consummated the sale.

Clearly, no party to the sale was bound by contract to utilize Bond’s or Cartel Realty’s services. The owners were bound only to refrain from interfering with negotiations between Bond and any buyers procured by Bond, and the buyer was not bound in any regard. Here, not only did the buyer independently attempt to purchase the property from the owners prior to dealing with Bond, but the evidence shows that the owners did not undercut Bond; they did not take over negotiations and sell the property themselves, thus avoiding the obligation of paying a real estate commission. The buyer and Glover independently contacted the exclusive listing agency upon seeing the sign on the property. The exclusive listing agency then consummated a sale, and the owners paid the exclusive listing agency a real estate commission. Given these facts it cannot be said that Bond or Cartel Realty was the procuring cause of the buyer.

None of the affidavits filed by Bond and Cartel Realty create an issue of fact as to the essential element of procurement. Although Bond’s affidavit shows that he attempted to negotiate with the owners after the buyer’s initial offer was refused, both the buyer and Glover stated that once they learned Bond did not have an exclusive listing, they began dealing with the exclusive listing agency. The other affidavits, showing that the buyer was not licensed in Georgia as a real estate broker as stated in his affidavit, bear no relation to the determinative element of procurement. The trial court did not err in granting summary judgment to the owners.

3. Since the evidence demonstrated that Bond and Cartel Realty were not the procuring cause of the sale, summary judgment in favor of the owners on the quantum meruit count was proper.

Decided April 18, 2000.

James R. Mills, for appellants.

Newman, Sapp & Davis, Allen E. Lockerman TV, for appellees.

4. Likewise, the demonstration that Bond and Cartel Realty were not the procuring cause of the sale under the facts of this case is fatal to any conspiracy count which they might have alleged.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

        Pruitt v. Tyler, 181 Ga. App. 174, 175-176 (1) (351 SE2d 539) (1986).

        Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358, 363 (1) (300 SE2d 186) (1983).

       (Citations and punctuation omitted.) Kraft, supra; Gibbs v. Nixon, 154 Ga. App. 463, 466 (268 SE2d 670) (1980).

        Fields Realty & Ins. Co. v. Teper, 165 Ga. App. 28, 29 (1) (299 SE2d 74) (1983).

       See id. at 30.

       Id.

       Compare Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49, 51 (2) (207 SE2d 567) (1974).

       See Crawley v. Sexton, 207 Ga. App. 360, 363-364 (1) (427 SE2d 804) (1993).

       Id. at 364 (2); Booth v. Watson, 153 Ga. App. 672, 677-678 (2) (266 SE2d 326) (1980).

        Fields Realty, supra at 30 (2); Booth, supra at 678 (3).


text:
    A00A0632.
    PALMER v. THE STATE.
    (533 SE2d 802)
   Johnson, Chief Judge.

A jury found Richard Allen Palmer guilty of entering an automobile with the intent to commit theft. The question on appeal is whether the state presented sufficient evidence to prove that he intended to commit theft. We find that the evidence is sufficient and affirm the conviction.

On appeal, this Court views the evidence in a light most favorable to the verdict; we determine evidence sufficiency and do not weigh the evidence or determine witness credibility. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve.

So viewed, the evidence shows that the car owner’s son was inside his apartment just after midnight when he heard glass shattering outside. He looked out the window and saw two males in the parking lot. One of the men was standing outside of the witness’ mother’s car, bending over such that his head and upper body were inside the car. The other man was sitting in the driver’s seat of a nearby car. The witness went outside and asked the man who was leaning inside his mother’s car what he was doing. The man stood up, paused for a moment, then got into the waiting car. The men drove away.

The witness called police who, minutes later, stopped the suspects’ car at a gas station. Upon stopping the car, the officer saw a bent screwdriver, pliers, a small baseball bat and a pair of gloves on the car’s floorboard. The officer also noticed that Palmer’s companion had glass fragments on his clothing and fresh cuts on his hands. The officer brought the witness to the gas station, where he identified Palmer as, the person he saw leaning into the car.

After Palmer and his companion were arrested, the companion gave police a written statement in which he admitted that be and Palmer broke into a car that night. At trial, however, the companion denied that he or Palmer broke into any cars and claimed that he lied earlier because the police promised to let him go if he cooperated with them. The companion admitted at trial that he pled guilty to two counts of entering an automobile with intent to commit theft; one of the counts involved the car at issue here. He added, however, that he was not guilty of the crimes and that he pled guilty only because his attorney convinced him that he needed to.

Contrary to Palmer’s contention, the state was not required to prove intent to commit theft by showing that valuables were present in the vehicle or that he admitted breaking into an area of the vehicle in which valuables might be stored. While evidence that valuables were present in the area of the auto entered is sufficient to support a finding of the requisite intent, lack of such evidence does not mean that there is no evidence from which intent may be inferred. Certainly, intent may be inferred from evidence that valuables were present or that the defendant admitted breaking into an area of a car in which valuables might be stored. However, criminal intent may also be inferred from other evidence. Intent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted. Whether a defendant has the requisite intent to commit a crime is a question for the jury.

There was evidence from which the jury could find that Palmer intended to commit theft. Palmer was seen leaning into the car, the window of which had been broken out, though the owner did not know him and did not give him permission to enter the car. When confronted by the owner’s son, Palmer stopped what he was doing and immediately left the scene. Palmer’s companion told police at the time of his arrest that he and Palmer had broken into a car that night. And the companion pled guilty to entering the automobile at issue here with intent to commit theft. A rational trier of fact could have found beyond a reasonable doubt that Palmer entered the vehicle with the intent to commit theft.

Palmer also argues that the evidence is consistent with innocence. He says that he may have just happened upon the car and leaned inside the already broken window, not intending to take anything. He offers no explanation as to why he would do this nor any explanation for the witness’ having heard glass shattering just before he saw Palmer leaning into the car. In fact, this hypothesis conflicts with his testimony at trial, in which he altogether denied seeing or entering the victim’s car. In any event, questions as to the reasonableness of a hypothesis are generally to be decided by the jury who heard the evidence; where the jury is authorized to find that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt, we will not disturb that finding, unless the verdict is unsupportable as a matter of law. A rational trier of fact could have found from the evidence that Palmer was guilty beyond a reasonable doubt of entering an automobile with the intent of committing theft.

Decided April 18, 2000.

Michael B. King, Billy J. Dixon, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

        Millwood v. State, 237 Ga. App. 748 (1) (516 SE2d 799) (1999).

       Id.

       See Heflin v. State, 183 Ga. App. 149, 150 (2) (358 SE2d 298) (1987).

       See Pound v. State, 230 Ga. App. 467, 468 (2) (496 SE2d 769) (1998).

        Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97) (1988).

        Mills v. State, 198 Ga. App. 527, 529 (2) (402 SE2d 123) (1991).

        Williams v. State, 208 Ga. App. 572, 573 (2) (430 SE2d 883) (1993).

       See Truax v. State, 207 Ga. App. 506, 507 (1) (428 SE2d 611) (1993).