text:
    77498.
    HUNTER v. THE STATE.
    (378 SE2d 352)
   Benham, Judge.

This appeal is from appellant’s conviction for trafficking in cocaine and giving a false name to a law enforcement officer. She enumerates as error the trial court’s decision at her bench trial that the evidence was sufficient to convict her for giving a false name to a law enforcement officer, and the denial of her motion to suppress.

1. “A person who gives a false name ... to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity is guilty of a misdemeanor.” OCGA § 16-10-25. The basis of appellant’s argument that the evidence does not warrant her conviction for giving a false name is that she corrected her misstatement-before she became aware of the official nature of the arresting officer’s inquiry.

Her arrest arose from a confrontation between her and a Drug Enforcement Administration agent at the airport in Atlanta. After appellant was stopped in the airport by the DEA agent, who identified himself as a law enforcement officer, she showed the agent her ticket and told him that the name on it was hers. When he asked for identification, she produced a driver’s license with her correct name. The agent testified that the time between appellant’s assertion that the name on the ticket was hers and her production of identification with her correct name was one minute or less, and that he did not tell her he was investigating drug trafficking until after she had shown her correct name.

Appellant offers no authority, and we are aware of none, for the proposition that a law enforcement officer, in order to be in the lawful discharge of his official duties, must inform anyone to whom he speaks in the course of that duty of the nature of his inquiry. In this case, the evidence shows that a DEA agent approached appellant, showed her his identification, asked whether he could speak with her, and then asked to see her ticket. Those circumstances are clearly sufficient to raise an inference that the agent was in the discharge of his official duties, and there was nothing in the record to counter such an inference. The evidence was sufficient for a rational trier of fact to find that appellant gave a false name to a law enforcement officer in the discharge of his official duties and that she did so with the intent of misleading the officer as to her identity. Accordingly, the evidence was sufficient to support her conviction for the offense of giving a false name to a law enforcement officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-10-25.

Decided January 24, 1989.

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

2. The DEA agent who arrested appellant testified at the hearing on her motion to suppress that he asked her three times for consent to search her and her effects and that appellant deflected his inquiry each time without actually refusing or giving consent. After the third time, the agent arrested her for giving a false name to a law enforcement officer. Her argument in support of her contention that the trial court erred in denying her motion to suppress is that the arrest was merely pretextual, that she was arrested only for the purpose of conducting a search incident to the arrest.

In Taylor v. State, 181 Ga. App. 703 (353 SE2d 619) (1987), this court found to be legal an arrest for giving a false name where the arresting officer testified that he would not have arrested the defendant at all if the defendant had consented to a search of his person and had been found not to possess contraband. We hold, therefore, as we did in that case, “that there was probable cause to arrest the appellant for the offense of giving a false name to a law enforcement officer and consequently that the subsequent search of [her] person was permissible as a search incident to a valid arrest.” Id. at 704. We find no error in the denial of appellant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77504.
    GINJAUMA v. THE STATE.
    (378 SE2d 161)
   Pope, Judge.

Defendant Jesus Ginjauma was convicted of trafficking in cocaine in violation of the Georgia Controlled Substances Act. Co-defendant Norma Cubas was found not guilty of the same charge. On appeal defendant contends the trial court erred in charging the jury on both actual and constructive possession inasmuch as the indictment charged he was “knowingly [in] actual possession of cocaine in an amount greater than 28 grams. . . ,” See Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). The record reveals, however, that immediately after defining and distinguishing the two types of possession, the court charged the jury that they would be authorized to convict the defendants of the crime charged only “if you believe beyond a reasonable doubt that these defendants, or either of them, knowingly and were in actual possession of 28 grams or more of cocaine.-. . .” (Emphasis supplied.) Thus, contrary to defendant’s assertion, the trial court did not misstate the law, as the Supreme Court held in Lockwood, and the trial court’s charge provides no basis for reversal. Partridge v. State, 187 Ga. App. 325 (5) (370 SE2d 173) (1988); Raines v. State, 186 Ga. App. 239 (4 b) (366 SE2d 841) (1988).

Decided January 24, 1989.

Kinney, Kemp, Pickell, Sponcler & Joiner, Marcus R. Morris, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

       At the time defendant was indicted in the case at bar actual possession was required in order to authorize a conviction pursuant to OCGA § 16-13-31. That statute has since been amended and the word “actual” preceding possession has been deleted. Ga. L. 1988, p. 420, § 2.


author: Beasley, Judge.

text:
    77535.
    ALONSO v. THE STATE.
    (378 SE2d 354)
   Beasley, Judge.

Appellant and his co-defendant Roberts were convicted of possession of tools for the commission of a crime, OCGA § 16-7-20, and use of an article with an altered identification number, OCGA § 16-9-70.

On April 11, 1986 at approximately 12:30 a.m., Marietta Police Officer Clayton, working a second job as a security guard, was on surveillance behind a restaurant which had been robbed earlier. He saw a blue truck pull into the parking lot and someone get out and run into a wooded area. The truck left. Adjacent to the restaurant was Chris Imports, a car dealership. Also in the area, due to recent thefts from car dealerships, were members of the Marietta Police stakeout squad watching another dealership.

Officer Clayton called for backup and waited until the stakeout team arrived along with other officers called by them. The officers went into the woods in search of the man.

Officer Tritt heard crackling noises and found Roberts, crouched on his hands and knees near a pine tree. Roberts was dressed in dark green coveralls and a dark blue windbreaker. He had a pair of dark socks pulled over his shoes. Around his neck hung a walkie-talkie. A pair of black driving gloves, a screwdriver and a pair of pliers were found near where he was crouched. Although the tools were lying on the ground, they were not covered with dew as was the surrounding ground. A pen light and an extra battery were found in Roberts’ pocket. On his belt was the case for the walkie-talkie. A beeper and extra batteries for the walkie-talkie were also found.

While the officers were dealing with Roberts, from the walkietalkie sounded: “Are you ready?” One of the officers responded: “Come and get me.” About five minutes later, the blue truck pulled into the lot, driven by defendant Alonso.

Officers also found a pen light on defendant and he had a walkietalkie and extra batteries for it. In the truck were a pair of rolled up black socks, a small screwdriver, and a 16-channel scanner with an ear plug, set on the Cobb County police frequency. The location was on the city/county boundary line. The scanner was on. The serial number on the back of the scanner had been scraped off.

1. In his second enumeration, defendant contends that the trial court’s dismissal of his motion to suppress due to its untimely filing was a violation of the Federal Fourth Amendment. The State Constitution was not raised.

Defendant’s arraignment occurred in July 1986 and the motion to suppress was not filed until January 1987. Upon the State’s motion, it was dismissed as USCR 31.1 requires that such motions be filed “at or before arraignment.”

As far as is reflected by the record, the ground urged was not presented to the trial court and so presents nothing for our review. Smith v. State, 186 Ga. App. 303, 311 (5) (367 SE2d 573) (1988).

2. The third enumeration claims error in the denial of defendant’s discovery motion, which sought those items set out in OCGA §§ 17-7-110; 17-7-210; and 17-7-211, and his Brady motion, which were filed in July 1986. The court’s order of July 25, 1986 reflects that “defendant’s motion, to wit: general discovery is hereby complied with at arraignment.”

Apparently after new counsel entered the case for Alonso, another Brady motion was filed on January 7, 1987. This motion also was untimely, USCR 31.1, and the trial court’s failure to entertain it was not error. Van Huynh v. State, 258 Ga. 663, 664 (2) (373 SE2d 502) (1988). Also, defendant failed to make the showing required in order to prove a due process violation pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Wallin v. State, 248 Ga. 29, 33 (279 SE2d 687) (1981); Stevens v. State, 242 Ga. 34, 36 (1) (247 SE2d 838) (1978); Potts v. State, 241 Ga. 67, 74 (5) (243 SE2d 510) (1978).

3. The objection made in enumeration four is not the objection made at trial and will not be considered here for the first time. Smith, supra.

4. Enumerations 5 through 8 all deal with the introduction of the evidence bags, State’s exhibit numbers 1 through 3, and their contents, the items found on or near both defendants.

a) The fifth enumeration is aimed at the writing contained on the evidence bags which was placed there by Officer Maynor who did not testify. The objection is that the words “Victim: Cris [sic] Imports” improperly concluded that there was a victim and therefore a crime, so that allowing the bag to go to the jury deprived defendant of his Federal Sixth Amendment right to confrontation. Only Exhibits 1 and 3 contain these words; Exhibit 2 is not subject to such an objection.

The objections made at trial were made by Roberts’ counsel and adopted by defendant’s. Since they did not contain an objection based on the Sixth Amendment, it will not be addressed here for the first time. Smith, supra.

There was a hearsay objection made. Pretermitting the validity of such an objection, it appears that at least two witnesses testified to the fact that Chris Motors appeared to be the intended victim of the illegal activity. On neither of these occasions was an objection voiced. Also, Alonso testified that he was an employee of Chris at the time. Since the objected-to evidence was merely cumulative of other evidence that was not objected to and was admissible, any error in its admission was harmless. OCGA § 24-1-1 (2); Carpenter v. State, 252 Ga. 79, 80 (1) (310 SE2d 912) (1984); Anthony v. State, 184 Ga. App. 876, 877 (363 SE2d 171) (1987).

b) The eighth enumeration contends that the contents of Exhibits 1, 2, and 3 should not have been admitted because no chain of custody had been proven. All items in the bag being distinct and recognizable physical objects which could be identified upon mere observation, it was not necessary for the State to prove the chain. Ramey v. State, 238 Ga. 111, 113 (4) (230 SE2d 891) (1976); Duke v. State, 176 Ga. App. 125, 127 (2) (335 SE2d 400) (1985).

c) Enumerations 6 and 7 allege that the contents of the bag were erroneously admitted because they were not properly identified and the proper foundation was not laid. These objections were also based on the fact that Officer Maynor, who physically searched Roberts and removed the flashlight, one of the walkie-talkies, the extra batteries for the pen light and the pager, was not present to testify. Sgt. Ross testified that he was present when Maynor searched Roberts and when the items were placed in the evidence bags. He also identified the writing on the bags as that of his former partner Maynor. Sgt. Ross himself initialed Exhibits 1 and 3, which contained all of the evidence except the coveralls worn by Roberts. No objection was raised as to Exhibit 3 concerning foundation.

Identity having been sufficiently shown, the items were not subject to the objections raised.

5. Defendant’s ninth enumeration alleges failure in the trial court’s refusal to give “Defendant’s written Request to Charge # 3.”

There are no written requests to charge in the record, although the colloquy between court and counsel alludes to some filed by defendant Roberts and “relied on” by Alonso. We thus cannot regard this particular instruction as having been requested in writing by defendant Alonso or determine whether it was legal, apt, and precisely adjusted to the evidence, so as to make the court’s refusal to give it error. Lewis v. State, 186 Ga. App. 349, 352 (4) (367 SE2d 123) (1988); Estep v. State, 181 Ga. App. 842, 844 (2) (353 SE2d 913) (1987); Brinson v. State, 111 Ga. App. 608, 609 (1) (142 SE2d 393) (1965).

If the charge was verbatim in the language of OCGA § 24-4-22, as indicated in the discussion of it in the record, it was not error to refuse to give it. Radford v. State, 251 Ga. 50, 53 (7) (302 SE2d 555) (1983).

6. Denial of defendant’s motion for new trial on the general grounds was not error. Defendant admitted all of the facts as charged, except that he intended to commit burglary and that he was aware that the identification number was not on the scanner, which he admitted was his. Defendant contended that he was called by Roberts, a mere acquaintance, to come assist him with his car which had broken down. Defendant was a mechanic. Although he had to go to work the next morning, he went to Roberts’ rescue. They were unable to find the part necessary to fix the car. Defendant was going to take Roberts to a friend’s house in Smyrna, although Roberts’ wife was at home. Roberts had the walkie-talkie with him and suggested that, although it was nearly midnight, they “try them out.” Obligingly, defendant dropped Roberts off with one behind the restaurant and drove away. However, he was unable to work the walkie-talkie until he put new batteries in it, whereupon he heard the request to “come pick me up.” He had the scanner in his car, set to the Cobb police band, in an effort to keep abreast of weather and traffic reports to aid his travel home each day. Alonso claimed the scanner was not on this night.

Decided January 24, 1989.

Gale W. Mull, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Frank R. Cox, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Thus, credibility was the primary issue to be determined and was properly left to the jury. OCGA § 24-9-80. The evidence was sufficient. Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

7. Finally, defendant contends that sentencing him consecutively was improper on the grounds that one was a lesser included offense of the other or that he was subjected to double jeopardy in violation of the Federal Eighth Amendment.

There is no transcript of the sentencing hearing in the record. The only item concerning this issue is Paragraph 11 of defendant’s amendment to his motion for new trial. Assuming, without deciding, that this is a situation where the same conduct of a defendant establishes the commission of more than one offense, both may be submitted to the jury, although only one conviction may be entered. OCGA § 16-1-7 (a); New v. State, 179 Ga. App. 166, 167 (3) (345 SE2d 643)

(1986) . There is no indication that any objection to the consecutive sentences was made at the time of entry of the sentence and judgment and no motion for arrest of judgment was made. OCGA §§ 17-9-60; 17-9-61. We do not reach the merits, for “errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. [Cit.]” Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980); Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987) .

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

       Prior to the rule’s enactment, this was also required pursuant to holdings by this court and the Supreme Court. Waller v. State, 251 Ga. 124, 127 (5) (303 SE2d 437) (1983), rev’d on other grounds in Waller v. Ga., 467 U. S. 39 (1984); Lazarz v. State, 187 Ga. App. 107 (369 SE2d 355) (1988). Dismissal under the rule is appropriate. Van Huynh v. State, 258 Ga. 663, 664 (2) (373 SE2d 502) (1988).


author: Banke, Presiding Judge. Carley, Chief Judge, Birdsong, Judge,

text:
    77542.
    OLIVER et al. v. COMPLEMENTS, LTD. et al.
    (378 SE2d 154)
   Banke, Presiding Judge.

Mr. Oliver fell and was injured when a step tread gave way beneath him as he was descending a wooden stairway located behind his apartment building. He and his wife brought the present action against the owners of the building, alleging that they had failed in their duty to keep the premises and approaches safe for invitees. The trial court granted summary judgment to the defendants, based evidently on a conclusion that Mr. Oliver had equal knowledge of the alleged defect and of the danger presented by it. The Olivers appeal.

According to Mr. Oliver, one side of the tread pulled loose from the nails which had been holding it in place. He testified that for several months prior to the accident he and his wife had complained both to the management and to the city “about the nails pulling out and the boards pulling up on the stairway,” but that nothing was done to correct the defects until over a month after his accident, at which time the entire stairway was rebuilt. With regard to the specific location of the defects he had observed, Mr. Oliver testified as follows: “Q. Where exactly were those nails that you saw pulling out located? Were they on the vertical rise part of the stair or the horizontal platform? A. The horizontal. . . platform and then your railing was, you know, some of it had pulled out and the boards were laying on the ground. Q. So you were not referring to the step treads going up the stairs which fell? A. No, I was talking the platform that you walk on more or less.”

The stairway in question provided the most direct access between the plaintiffs’ apartment and the parking area, which, like the stairway, was located behind the building. There was another stairway located at the front of the building; however, Mr. Oliver testified that to reach the front entrance of the building from the parking lot required walking approximately 250 feet and that, for this reason, he routinely used the back stairway even though he considered it to be unsafe. Held:

“ ‘The true ground of liability of the owner or occupant of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.’ [Cit.] ‘The presumption of the law is that the owner of a lot is acquainted with the condition of his own property, if a natural person, and if an artificial one, that it has such knowledge through its agents and employees.’ [Cit.]” Herrington v. Stone Mtn. Memorial Assn., 119 Ga. App. 658, 661 (168 SE2d 633) (1969). The owner is thus under some duty to inspect for dangerous conditions existing on the premises, whereas the invitee “ ‘is not obliged to inspect the premises to discover latent defects nor even to observe all patent defects.’ ” Id. at 662. See generally Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 428-9 (263 SE2d 171) (1979).

It has been held that “[l]ooking continuously, without intermission, for defects in a floor is not required in all circumstances,” Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966), and that “[k]nowledge [on the part of the invitee] that one part of a floor is defective is not necessarily knowledge that an adjacent part is also defective.” Somers v. Tribble, 115 Ga. App. 282, 284 (154 SE2d 620) (1967). It has also been held that “ ‘mere knowledge’ [on the part of the invitee] of the existence of a dangerous or defective condition does not necessarily constitute ‘full appreciation of the risk involved.’ [Cits.]” Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477) (1986). “ ‘Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question.’ [Cits.]” Herrington v. Stone Mtn. Memorial Assn., supra, 119 Ga. App. at 661.

In view of the evidence that the defendants had been notified repeatedly during the months prior to the accident that the stairway was in need of repair, a jury might reasonably conclude that the defendants were constructively aware of each and every defect therein which would have been revealed by a close inspection. Mr. Oliver, on the other hand, can be charged only with knowledge of those defects which he had actually observed or which were so transparently obvious that his failure to observe them cannot reasonably be excused. See Sears, Roebuck & Co. v. Chandler, supra, 152 Ga. App. at 429. It is certainly not apparent as a matter of law from his testimony that he had previously observed nails pulling loose from the step treads as opposed to the horizontal platform; and even if he had, it would not automatically follow that he had a full appreciation of the danger created by that condition, for he might reasonably have believed that the nails were not actually supporting the treads but merely holding them in place on top of the stringers. For these reasons, we hold that the trial court erred in granting the defendants’ motion for summary judgment. To hold to the contrary under the circumstances of this case would, in effect, be to hold that a landlord may escape liability for personal injuries caused by dangerous conditions existing on his premises to the extent that he has previously ignored complaints by the injured party regarding those conditions. Cf. Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984).

Judgment reversed.

Deen, P. J., McMurray, P. J., Benham and Beasley, JJ., concur. Carley, C. J., Birdsong, Sognier, and Pope, JJ., dissent.

Carley, Chief Judge,

dissenting.

I join Judge Birdsong’s dissent. However, I want to point out that unlike Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984), there were no averments in this case that, in response to the complaints by the appellant concerning the stairway, the appellee made any assurances or promises. Thus, Richardson is distinguishable and the trial court’s judgment was correct for the reasons set forth in Judge Birdsong’s dissent.

Birdsong, Judge,

dissenting.

I respectfully dissent from the majority opinion. I would find the trial court was correct in granting summary judgment to the landlord. The tenant was fully aware of the alleged defect in the premises, in fact, even more so than the landlord, since the tenant admitted he used the stairs on which he was injured, to get to his apartment, four to five times daily and had been living in this apartment for several months.

Although a landlord is required to keep the premises in repair (OCGA § 44-7-13), the landlord is not an insurer of the tenant’s safety. Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 191 (210 SE2d 337). “When rented premises become defective and unsafe it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger. It is his duty to exercise ordinary care for his own safety, and where he is injured as a result of his failure to exercise such care, he can not recover damages from his landlord, even though the latter may have been negligent in failing to make repairs.” Jackson v. Davis, 39 Ga. App. 621 (147 SE 913); accord Kimball v. Morcock, 57 Ga. App. 750 (196 SE 125); Gallovitch v. Ellis, 55 Ga. App. 780 (3) (191 SE 384); Parker v. Miller, 41 Ga. App. 560 (153 SE 619); Kleinberg v. Lyons, 39 Ga. App. 774 (3) (148 SE 535); Williams v. Jones, 26 Ga. App. 558 (2) (106 SE 616); Ledbetter v. Gibbs, 19 Ga. App. 485 (2) (91 SE 875).

The basis for a landlord’s liability is his superior knowledge of the defective or hazardous condition, and the danger resulting from it. Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770). However, it is not contested that the alleged defect, or hazard, was patent and appellant admitted full knowledge of the hazard and continued to use the stairs for his convenience, although he had another entrance which was safe — on the front side of the apartment. Hence, appellant’s testimony established that the route he chose was not one of necessity, but of convenience. Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13). Neither was appellant forced to assume the risk because there was no other means of ingress or egress. Smith v. Collins, 182 Ga. App. 564 (356 SE2d 530). In essence, if the tenant knows of the hazard there is no duty on the part of the landlord to warn him and there is no liability for resulting injury because the tenant has as much knowledge of the hazard as the landlord. Garnett v. Mathison, 179 Ga. App. 242, 243 (345 SE2d 919); Bell v. Abercorn Toyota, 175 Ga. App. 668, 669 (333 SE2d 880); Purvis v. Holiday Hills &c. Assn., 163 Ga. App. 387, 388 (294 SE2d 592). “By voluntarily acting in view of that knowledge, the [tenant] assumes the risk and dangers incident to the known condition.” Bell, supra at 669; accord Sumner v. Otasco, Inc., 175 Ga. App. 177, 178 (333 SE2d 28); Yankey v. Battle, 122 Ga. App. 275 (176 SE2d 714).

“ ‘Although the tenant may not have waived performance of the landlord’s duty to repair, or any right of action growing out of an injury caused by failure to repair, and even though ample notice of the defect may have been given by the tenant to the landlord, it is nevertheless the rule that neither the tenant nor any person lawfully upon the premises by his express or implied invitation can recover for injuries caused by such defect, where the tenant or such other person could have avoided the consequences of the landlord’s negligence in failing to repair, by the exercise of ordinary care on his own part. [Cits.]’ ... ‘A landlord is not liable for injuries to a tenant arising from a patent defect of which the tenant knew, or had means of knowing equal to those of the landlord. [Cit.] “ When rented premises become defective and unsafe it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger. It is his duty to exercise ordinary care for his own safety, and where he is injured as a result of his failure to exercise such care, he can not recover damages from his landlord, even though the latter may have been negligent in failing to make repairs.” [Cits.]’ ” (Emphasis supplied.) Thompson v. Crownover, 186 Ga. App. 633, 635 (368 SE2d 170); accord Richardson, supra at 205; Hearn v. Barden, 115 Ga. App. 708, 709-710 (155 SE2d 649); Williams v. Jones, supra. Here, there was full knowledge of the hazard by the appellant, equal or superior to that of the landlord (Garnett v. Mathison, supra), a duty to avoid using the defective or unsafe portion of the premises (Thompson, supra), knowledge of a safe but alternative route (Lindsey, supra), and an election to use the known defective route, thus assuming the risk (Bell, supra; Sumner, supra; Yankey, supra).

“Although the issue of the plaintiff’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable.” Soucy v. Alexander, 172 Ga. App. 501, 502 (323 SE2d 662); accord Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239); Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95 (6) (303 SE2d 284); Ga. Power Co. v. Purser, 152 Ga. App. 181, 182 (262 SE2d 473); Smith v. Bel-Arbor, 121 Ga. App. 739 (175 SE2d 146).

Accordingly, where, as here, it is clear and palpable that appellant was aware of the alleged defect and danger, and knew of the alternative and safe route, but voluntarily used the dangerous stairs for his own convenience, he assumed the risk and summary judgment for the landlord was appropriate.

I would affirm the trial court.

Decided January 24, 1989.

Charles L. Day, for appellants.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellees.

I respectfully dissent. I am authorized to state that Chief Judge Carley, Judge Sognier and Judge Pope join in this dissent.


author: Benham, Judge.

text:
    77671.
    PARKER v. THE STATE.
    (378 SE2d 157)
   Benham, Judge.

This appeal is from appellant’s conviction for four counts of the offense of selling cocaine. The State’s evidence showed that on four occasions appellant was asked to and did sell cocaine to undercover agents. Appellant’s testimony and that of a witness who claimed to be present at the transactions was that the agents asked appellant to obtain the cocaine and he merely acted as a go-between. On appeal, appellant complains of the trial court’s refusal to order disclosure of the identity of an informant, of the denial of his motion for directed verdict on his defense of entrapment, and of the State’s attorney’s allegedly improper argument. We find no error and affirm.

1. Appellant’s first enumeration of error is directed to the trial court’s refusal to require disclosure of the identity of an informant who introduced appellant to the agents to whom he sold cocaine. Appellant’s evidence, as well as that of the State, showed no more than that the informant introduced appellant to the agents and then witnessed the transaction. Although appellant put on evidence indicating that the informant, as well as one of the agents, used the drug after its purchase, there was no evidence that the informant was involved in the sales transaction itself. Under those circumstances, the trial court was invested with discretion to reveal or not reveal the identity of the informant. Statiras v. State, 170 Ga. App. 739 (318 SE2d 156) (1984). Considering that appellant and his witness both testified that a named person was accompanying the agents at the time of the transactions, thereby indicating that they already knew who the informant was, but that appellant did not call that person as a witness, we find no abuse of the trial court’s discretion.

2. In his second enumeration of error, appellant contends that the denial of his motion for directed verdict was error because the evidence demanded the conclusion that he was entrapped into criminal conduct by government agents. “ ‘A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in [OCGA § 17-9-1 (a)], would demand a finding of entrapment and, therefore, a directed verdict of acquittal.’ [Cit.] The evidence presented in the instant case clearly does not demand a finding of entrapment. Portions of appellant’s own testimony tended to rebut his entrapment defense [in that he testified on cross-examination that all the agents had to do was ask once for cocaine and he readily made it available]. Moreover, the testimony of . . . the GBI agents who witnessed the alleged salefs] further controverted appellant’s entrapment defense and provided evidence of appellant’s predisposition to deal in drugs. Accordingly, we find no error in the trial court’s failure to grant appellant’s motion for a directed verdict of acquittal.” Childs v. State, 158 Ga. App. 376 (2) (280 SE2d 401) (1981).

Decided January 24, 1989.

Morris & Webster, Craig A. Webster, for appellant.

David E. Perry, District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

3. The final issue in this case concerns the alleged improper argument of the prosecuting attorney. Appellant contended at trial and before this court that the prosecuting attorney read law to the jury in violation of the Supreme Court’s prohibition in Conklin v. State, 254 Ga. 558 (10) (331 SE2d 532) (1985). That contention is not borne out by the record. The transcript of the closing argument showed that the prosecuting attorney only told the jury that there are traps which legally can be set for criminals. Since the trial court subsequently charged the jury on entrapment, a charge which delineated the limits for traps that law enforcement agents can set, it is clear that the prosecuting attorney did no more than “refer to applicable law during closing argument (i.e., law that the court is going to give in charge). [Cit.]” Id. at 570. The third and final enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    77776.
    CITIZENS & SOUTHERN NATIONAL BANK v. RICHARDSON.
    (378 SE2d 159)
   Banke, Presiding Judge.

On December 6, 1985, the appellant bank extended a 90-day loan to one James Culver in the amount of $8,033.81, evidenced by his promissory note. The note contained a guaranty of payment to the extent of $8,000, signed by the appellee, Bernard Richardson. The note was renewed five times on terms which were identical to those of the original note except for changes in the interest rate, the cost of credit life insurance, and, of course, the ultimate due date. The maker, Culver, executed a separate note to the appellant bank on April 29, 1987, evidencing an entirely different loan indebtedness in the amount of $9,110.68. The final renewal note evidencing the original loan was executed on June 26, 1987, and thereafter went into default, prompting the bank to file the present action to collect it. The appellee was joined as a defendant based on his execution of the $8,000 guaranty.

Culver admitted liability, and summary judgment was consequently entered against him. The appellee, however, denied liability, contending that due to certain changes in the interest terms of the original note, a novation had occurred which entitled him to be discharged as surety. Both sides moved for summary judgment on this issue; and, in the same order by which summary judgment was entered against Culver, the trial court granted the appellee’s motion and denied the appellant’s, concluding that “the granting of additional credit to defendant Culver as particularly evidenced by the new indebtedness of $9,110.68 extended ... on 4-29-87 was a novation in the amounts owed by the principal Culver.” The bank contends on appeal that this conclusion was erroneous because, by the clear language of the guaranty agreement, the appellee had consented in advance to any extension of additional credit to Culver.

The guaranty agreement contained the following pertinent provisions: “The bank may, from time to time, without notice to the undersigned . . . extend or renew for any period (whether or not longer than the original period), alter or exchange any of the liabilities. . . . The creation or existence from time to time of liabilities in excess of the amount to which the right of recovery under this guaranty is hereby authorized, without notice to the undersigned (or any of them), and shall in no way affect or impair this guaranty. ... No action of the bank permitted hereunder shall in any way impair or affect this guaranty. . . .” (Indention omitted.) Held:

“ ‘ “Where, after the execution of a promissory note, a renewal or new note is executed for the same debt, it is the general rule that the second instrument does not of itself operate as a payment, or accord and satisfaction, or novation extinguishing the first note, unless there is an agreement between the parties to that effect. [Cits.] . . .” [Cit.]’ [Cit.]” Remler v. Coastal Bank, 179 Ga. App. 25, 27 (345 SE2d 79) (1986). “A surety or a guarantor may consent in advance to a course of conduct which would otherwise result in his discharge. [Cits.]” Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 896 (4) (216 SE2d 651) (1975). It has consistently been held that provisions authorizing the lender to take certain actions without impairing or affecting the guaranty constitute advance consent to such actions and operate as a waiver of the guarantor’s right to seek a discharge based on such actions. See, e.g., Smith v. Great Southern &c. Bank, 184 Ga. App. 433 (1) (361 SE2d 847) (1987). It follows from the foregoing authorities that, by the clear language of the guaranty agreement, the appellee in this case was not discharged as a surety by the bank’s extension of additional credit to the appellee in the form of another loan. Accord Dever v. Lee, 188 Ga. App. 483, 486 (3) (373 SE2d 224) (1988).

Decided January 24, 1989.

Bruce A. Reynolds, Jeanette R. Halt, for appellant.

Warren W. Hoffman, for appellee.

Similarly, since the appellee had consented in advance to alterations as well as extensions or renewals of the original indebtedness, the mere renewal of the original note on different interest terms did not operate to discharge him as surety. Accord Rice v. Ga. R. Bank &c. Co., 183 Ga. App. 302 (1) (358 SE2d 882) (1987). Indeed, the record reflects that the interest rate remained the same in the first three renewals and actually decreased in the last two; and the appellee’s liability was, in any event, limited to $8,000. Thus, the renewals could not have increased his risk or liability in any way. See generally Bank of Terrell v. Webb, 177 Ga. App. 715 (3) (341 SE2d 258) (1986). For these reasons, we hold that the trial court erred in granting the appellee’s motion for summary judgment and in denying the appellant bank’s motion for summary judgment with respect to the claim on the guaranty agreement.

Judgment reversed.

Birdsong and Beasley, JJ., concur.


text:
    77903.
    BROWN v. THE STATE.
    (378 SE2d 357)
   Benham, Judge.

Following his arrest at Atlanta’s Hartsfield International Airport, appellant was found guilty in a bench trial of trafficking in cocaine. His sole enumerated error on appeal stems from the denial of his motion to suppress. Appellant contends that the evidence obtained by a search of his person, which netted 427 grams of pure cocaine, was the fruit of an illegal arrest.

The arresting officer testified that she was an Atlanta police officer temporarily assigned to the Drug Enforcement Administration Task Force at the airport. An airline employee in Atlanta informed the officer telephonically that two men with round-trip tickets from Little Rock to Miami and with only a small tote bag between them, had approached the Miami departure gate together. The employee noted that the tickets had been purchased with cash and that the two men, named Hill and Brown, were scheduled to complete their round-trip flight that evening. The officer investigated and found that the men had made their reservations together and had given a Little Rock telephone number as a contact number. When the officer called the Little Rock number, the woman who answered was “unfamiliar with a Mr. Hill,” but when asked about people named Hill and Brown traveling to Miami, mentioned a man named Hill and a woman named Brown.

Later that evening, accompanied by two task force agents to whom she imparted all the information she had gathered, the officer observed the two men previously described to her deplane together from a flight from Miami and ask for the location of the departing flight to Little Rock. The officer approached the duo and identified herself to appellant, who appeared startled but agreed to stop and talk with her. However, Hill, his companion, continued walking down the concourse. When one of the task force agents approached Hill, he shoved the agent and ran down the concourse. The officer with appellant noticed that Hill, while running, was “sticking his hand down his pants like he was trying to get something out of his pants.” Based on her previous experience that many drug couriers conceal contraband in the crotch area of their bodies, the officer believed that appellant’s fleeing companion was trying to remove contraband from his pants. The officer locked her arm through appellant’s arm and told him not to go anywhere. While they witnessed the chase of appellant’s companion, appellant volunteered to the officer that he did not know who the fleeing man was, a comment the officer categorized as “unusual,” since she knew they had made their reservations together and had traveled together from Little Rock to Miami to Atlanta, and she had seen them deplane together and converse with each other. The officer then escorted appellant to a private airline office, where she examined his ticket and asked for identification. The other agents then escorted the captured Hill into the room, where they noticed a bulge in his pants. A large wrapped package of suspected cocaine was removed from Hill’s groin area, and appellant was informed he was under arrest. Appellant consented to a search of his person and the tote bag, and his pants were unzipped when one of the agents noticed a bulge. A package, later determined to be cocaine, was removed from appellant’s groin area.

Appellant contends he was arrested without probable cause when the officer locked her arm through his and told him not to go anywhere. “A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. [Cits.]” Callaway v. State, 257 Ga. 12 (2) (354 SE2d 118) (1987). Assuming, without deciding, that appellant was arrested when the policewoman locked her arm with his, we conclude that her action was supported by probable cause. At the moment the arrest was made, assuming again that the officer’s action constituted an arrest, the officer knew that appellant and Hill had exhibited several characteristics which, in her experience, were usually exhibited by drug couriers; appellant and Hill were traveling together; Hill had assaulted a task force agent who asked to speak with him; and Hill had fled from the task force agents while attempting to remove something from inside his pants, a place the officer knew was often used by drug couriers to conceal contraband. Exhibition of drug courier characteristics, coupled with flight, constituted probable cause to arrest Hill. Brown v. State, 188 Ga. App. 417, 419 (373 SE2d 99) (1988); Banks v. State, 187 Ga. App. 280 (1) (370 SE2d 38) (1988). Appellant’s exhibition of drug courier characteristics, the officer’s knowledge that appellant and Hill had made their reservations together and were traveling together, when coupled with the flight of appellant’s companion and his attempt to rid himself of something in his pants, constituted probable cause to arrest appellant as a party to the crime. Thus, even if it is assumed appellant was arrested when the officer locked her arm in his, the arrest was supported by probable cause.

Decided January 24, 1989.

John W. Guest, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    77357, 77358.
    DEMER v. CAPITAL CITY CABLE, INC. et al.; and vice versa.
    (378 SE2d 162)
   McMurray, Presiding Judge.

Plaintiff Demer filed this action against seven defendants, each of whom is a corporation involved in the cable television industry. Count 1 of plaintiff’s complaint sought damages for the breach of an employment contract between plaintiff and defendant Cable America, Inc. The terms of the alleged contract were contained in a letter from defendant Cable America, Inc., to plaintiff, dated February 2, 1982. This action seeks to enforce Item 6 of the letter which states: “Equity Participation. You will be provided with an amount of stock or stock equivalents that, using current cable TV valuation techniques and financial projections, would be worth one million dollars ($1,000,000) two years from your commencement of employment with Cable America. The stock or stock equivalents would vest according to the following schedule:

“At the end of Year 1 — 5% Year 6 — 45%
Year 2 — 10% Year 7 — 60%
Year 3 — 15% Year 8 — 75%
Year 4 — 20% Year 9 — 90%
Year 5 — 30% Year 10 — 100%
“Certain conditions will apply to this arrangement, including restriction on the sale of this stock or stock equivalents and repurchase rights of Cable America if, for any reason, you leave the employ of Cable America. The amount would be reduced by the value of any pension plan which is purchased on your behalf.” Plaintiff alleges that he has completed two years of employment under this provision, thereby vesting in 10 percent of the one million dollars ($1,000,000) in equity and thus seeks damages for breach of contract of not less than $100,000. Count 2 of the complaint sought damages under the Georgia Securities Act of 1974 for material misrepresentations and omissions relating to the sale of a security. This claim was also based on the equity participation provision contained in the letter of February 2, 1982. Count 3 of the complaint sought damages for fraud against the defendants. Count 4 sought punitive damages and attorney fees.
Following discovery, summary judgment was granted to five of the defendants. This order is not contested on appeal.
Plaintiff moved for partial summary judgment contending that the letter of February 2, 1982, “constitutes an employment contract between Plaintiff and Defendant Cable America, Inc., which Defendants are estopped to deny.” The trial court denied plaintiff’s motion, after holding that the “letter does not contain all the essentials of a contract ...”

Upon the trial of the case sub judice, the trial court directed a verdict in favor of the remaining defendants, Cable America, Inc., and Capital City Cable, Inc., f/k/a Cable Atlanta, Inc. Plaintiff’s motion for new trial was denied. The trial court also denied the motions of the defendants Cable America, Inc. and Capital City Cable, Inc., f/k/a Cable Atlanta, Inc. for attorney fees and expenses of litigation pursuant to OCGA § 9-15-14.

In Case No. 77357, plaintiff appeals from the order denying his motion for new trial, from the directed verdict in favor of defendants Cable America, Inc., and Capital City Cable, Inc., f/k/a Cable Atlanta, Inc., and from the denial of plaintiff’s motion for partial summary judgment. In a cross appeal, Case No. 77358, defendants Cable America, Inc., and Capital City Cable, Inc., f/k/a Cable Atlanta, Inc., appeal from the denial of their motions to recover attorney fees and for expenses of litigation. Held:

1. Defendants raise the issue of an untimely appeal by contending that plaintiff’s motion for new trial was not the proper vehicle for challenging the trial court’s directed verdict. “Where a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447). However, it appears to be the settled rule that the party against whom the trial court has directed a verdict has the option of challenging that decision by direct appeal or by motion for new trial. Reed v. White, 207 Ga. 623, 627 (9) (63 SE2d 597); Jones v. Bank of Lula, 135 Ga. 680 (1), 681 (70 SE 640). The defendants’ motion to dismiss plaintiff’s appeal is denied.

2. Plaintiff contends the trial court erred in granting a directed verdict on the breach of contract claim contained in Count 1 of the complaint. This contention raises the issue of whether Item 6 of the letter of February 2, 1982, from defendant Cable America, Inc., to plaintiff, sets forth a provision of an enforceable contract between the parties. Plaintiff argues that a contract existed between the parties and that any ambiguity as to the agreement should be resolved by the jury after consideration of evidence as to the surrounding circumstances pursuant to OCGA § 13-2-2 (1).

Plaintiff testified that the equity participation plan set forth in Item 6 of the letter of February 2, 1982, was an important inducement for him to leave his former employment and accept employment with defendant Cable America, Inc. Yet, plaintiff did not know what type of stock would be provided for the plan. Plaintiff did not know whether he would receive common or preferred stock, the number of shares, or the issuer of the stock. The meaning of the term “stock equivalents” as used in the letter was unknown to plaintiff. Plaintiff did not know what “valuation techniques and financial projections” were referred to in the letter. While the letter states that “[c]ertain conditions will apply to this arrangement . . . ,” those conditions were never discussed between plaintiff and defendant Cable America, Inc. Nor was there any discussion of the “repurchase rights of Cable America” if plaintiff for any reason left the employ of Cable America, Inc. Plaintiff did not know whether the one million dollar figure referred to in the letter was a valuation before or after consideration of stock restrictions and repurchase rights. Plaintiff conceded “there were a great number of things to be agreed upon in the future.” After the letter of February 2, 1982, plaintiff had no further discussion concerning an equity participation plan, nor was any other equity participation plan ever presented to plaintiff.

“The first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality [cits.], and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. [Cits.] A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible. There are instances when certain deficiencies or ambiguities may be explained by facts aliunde the instrument itself. However, information of such extrinsic nature may not be utilized to supply that which is essential to constitute a valid contract. [Cit.]” West v. Downer, 218 Ga. 235, 241, 242 (127 SE2d 359). “The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon. West v. Downer, 218 Ga. 235, 241 (127 SE2d 359) (1962).” Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438 (1) (292 SE2d 84). “In a contract of employment the compensation to be paid is a material part, and until the parties have agreed upon a definite amount to be paid the contract is incomplete; and until each party has assented to the material parts of the contract either party has a right to withdraw therefrom.” Pita v. Whitney, 190 Ga. 810, 814 (2) (10 SE2d 851). See also Weill v. Brown, 197 Ga. 328, 333 (29 SE2d 54); Gray v. Aiken, 205 Ga. 649, 651 (1) (54 SE2d 587); Dale’s Shoe Store v. Dale, 104 Ga. App. 371 (121 SE2d 695); and Wheeler v. Pan-American Petro. Corp., 48 Ga. App. 378, 379 (4) (172 SE 826).

“ ‘Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. (Cits.)’ Malone Constr. Co. v. Westbrook, 127 Ga. App. 709 (194 SE2d 619) (1972).” Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 881 (278 SE2d 750). See also Sierra Assoc. v. Continental Ill. Nat. Bank &c. Co., 169 Ga. App. 784, 788 (1) (315 SE2d 250).

In the case before us, the ambiguities in the letter not only remain following the receipt of plaintiff’s evidence, but it is clear from that evidence that there could not have been a meeting of the minds regarding an equity participation plan since several key elements of the plan mentioned in the letter have never been discussed, much less agreed upon by the parties. Plaintiff conceded many of the provisions of the equity participation plan remained to be determined. Thus, the letter did not constitute a complete and enforceable contract. The trial court did not err in directing a verdict in favor of defendants on Count 1 of plaintiff’s complaint which states a breach of contract claim predicated on Item 6 of the letter of February 2, 1982.

3. Next, plaintiff contends the trial court erred in granting a directed verdict as to Count 2 of the complaint, which states a cause of action for fraud. The essential elements of a cause of action for fraud include the making of a knowingly false representation. Eckerd’s Columbia v. Moore, 155 Ga. App. 4 (270 SE2d 249). However, “fraud cannot consist of mere broken promises, unfulfilled predictions or erroneous conjectures as to future events.” Curtis v. First Nat. Bank of Commerce, 158 Ga. App. 379, 381 (280 SE2d 404).

We find no evidence authorizing a recovery by plaintiff on his fraud claim. Surely defendant Cable America, Inc., and its subsidiary Cable Atlanta, Inc. (now defendant Capital City Cable, Inc.) did not prosper as predicted. Indeed, there is evidence that at the time plaintiff was employed, defendants were experiencing severe financial problems. However, prior to his employment plaintiff was furnished a prospectus which provided extensive information as to the business and financial conditions prevailing at that time. Plaintiff, a graduate of Cornell University and the Harvard Business School who possessed significant education and experience in the area of finance, could have ascertained defendant Cable America Inc.’s financial condition from the prospectus and was under a duty to use due diligence in ascertaining such circumstances for himself. There is no evidence that plaintiff was misled by the prospectus. Thus, we find no error in the trial court’s grant of a directed verdict as to plaintiff’s Count 2.

4. Plaintiff further contends the trial court erred in granting a directed verdict on Count 3 of the complaint, which states a claim of a fraudulent sale of securities under the Georgia Securities Act. This claim is barred by OCGA § 11-8-319 which provides that a contract for the sale of securities is not enforceable by way of action or defense unless one of four provisions is satisfied. OCGA § 11-8-319 (a) and (c) are not satisfied since there is no contract for the “sale of a stated quantity or described securities at a defined or stated price.” Nor are OCGA § 11-8-319 (b) or (d) satisfied. Consequently, the trial court did not err in granting a directed verdict for defendants as to Count 3.

5. In his second enumeration of error, plaintiff maintains that the trial court erred in failing to grant plaintiff’s motion for partial summary judgment. After verdict and judgment a decision denying a summary judgment is moot and presents nothing for review on appeal. Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579). This enumeration of error is without merit.

6. Lastly, plaintiff contends the trial court erred in failing to grant his motion for new trial. In addition to the grounds previously discussed in this opinion, the motion for new trial raised issues as to the exclusion from evidence of seven of plaintiff’s exhibits. We have reviewed the circumstances relating to each of the excluded exhibits and find no error.

Decided January 25, 1989.

Robert J. Hippie, Thomas A. Soderberg, for appellant.

Long, Aldridge & Norman, J. Allen Maines, L. Catharine Cox, for appellees.

7. In the cross appeal, defendants contend via five enumerations of error that the trial court erred in denying their motion to recover attorney fees and expenses of litigation pursuant to OCGA § 9-15-14. “The remedy created by [OCGA § 9-15-14] ... is available only with respect to ‘any claim, defense, or other position which is first raised in an action on or after July 1, 1986.’ Ga. L. 1986, pp. 1591, 1593, § 3.” Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (2), 433 (367 SE2d .551). In the case before us, the complaint raising all of plaintiff’s claims presented at trial was filed prior to July 1, 1986, and was not amended. Consequently, OCGA § 9-15-14 is not applicable to plaintiff’s claims in this case. The trial court did not err in denying defendants’ motions for attorney fees and for expenses of litigation predicated on OCGA § 9-15-14.

Judgments affirmed.

Pope and Benham, JJ., concur.


text:
    75527.
    CRAWFORD W. LONG MEMORIAL HOSPITAL OF EMORY UNIVERSITY v. YERBY.
    (379 SE2d 237)
    Decided January 25, 1989.

      Gerald F. Handley, K. Scott Graham, Sidney F. Wheeler, J. M. Hudgins TV, for appellant.

      Michael T. Bennett, H. A. Stephens, Jr., Hunter S. Allen, Jr., Thomas S. Carlock, E. Jane Simpson, for appellee.
   Benham, Judge.

This court having entered on March 4, 1988, a judgment in the above-styled case (186 Ga. App. 407 (367 SE2d 245) (1988)), afiirming the judgment of the trial court; and the judgment of this court having been reversed by the Supreme Court in Crawford W. Long Memorial Hosp. of Emory Univ. v. Yerby, 258 Ga. 720 (373 SE2d 749) (1988), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


text:
    77758.
    DAY v. FANTASTIC FITNESS, INC.
    (378 SE2d 166)
   Banke, Presiding Judge.

The appellant, Norma H. Day, sued the appellee, Fantastic Fitness, Inc., to recover for injuries she allegedly sustained when she slipped and fell while exiting a shower stall on the premises of a health and fitness facility operated by the appellee. The appellee is alleged to have been negligent in allowing an unusually slippery and hazardous substance to build up on the floor of the shower. This appeal is from the grant of the appellee’s motion for summary judgment.

The appellee’s motion for summary judgment was based in part upon the following exculpatory language contained in the membership agreement executed by the parties: “[A]ll exercises, treatments, and use of all club facilities shall be undertaken at the member’s own risk . . . and . . . the [appellee] shall not be liable for any claims, demands, injuries, damages, actions or causes of action . . . which arise wholly or partially due to the negligence of the [appellee] arising out of or connected with use of any of the services and/or facilities of [appellee], and the member does hereby expressly release and discharge [appellee] from all such claims, demands, injuries, damages, actions or causes of action.” Held:

1. It is well settled that public policy does not prohibit the inclusion of a clause such as the one under consideration here in a fitness or health club membership contract. See Lovelace v. Figure Salon, 179 Ga. App. 51 (1) (345 SE2d 139) (1986); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 SE2d 580) (1988). See generally OCGA § 1-3-7. Compare Emory Univ. v. Porubiansky, 248 Ga. 391 (282 SE2d 903) (1981) (contractual provision purporting to discharge physician or dentist from liability for future professional malpractice held unenforceable); Smith v. Hosp. Auth. of Walker &c. Counties, 160 Ga. App. 387 (287 SE2d 99) (1981) (provision purporting to discharge hospital from liability for future negligence in drawing blood held unenforceable).

2. Although there is no dispute that the membership contract was in force at the time the accident occurred, the appellant contends that, because she cancelled her membership after the accident and obtained a complete refund of her membership fee, the situation is the same as if the contract had never existed. We do not agree.

“ ‘Parties may by mutual consent abandon a contract so as to make it not thereafter binding. . . .’ [Cit.]” Hennessy v. Woodruff, 210 Ga. 742, 744 (2) (82 SE2d 859) (1954). (Emphasis supplied.) “ ‘ “Where under the contract a party may terminate it at his option, he is not liable after termination for further transactions thereunder, but obligations which have already accrued are not affected.” ’ ” Stafford v. Fitness for Life, 171 Ga. App. 422, 424 (319 SE2d 891) (1984), citing J. R. Watkins Co. v. Brewer, 73 Ga. App. 331, 343 (36 SE2d 442) (1945). (Emphasis supplied.)

Decided January 25, 1989.

Woodson & Hanofee, H. Clifton Woodson, for appellant.

Hogan, Casey, Chalker & Cooper, William T. Casey, Jr., William D. Cooper, for appellee.

Having acquired access to the appellee’s premises by agreeing to release the appellee from liability for ordinary negligence arising out of the use of its services or facilities, the appellant could not retroactively change the terms of the relationship merely by cancelling the contract and receiving a refund of her membership fee after being injured. Once a known right, benefit, or advantage has been waived, it cannot be reclaimed. See Aaron Rents v. Corr, 133 Ga. App. 296, 302-303 (211 SE2d 156) (1974); New York Underwriters Ins. Co. v. Noles, 101 Ga. App. 922, 924-925 (115 SE2d 474) (1960). Furthermore, assuming arguendo that the appellant did retroactively eliminate the effect of the membership contract by cancelling it after the accident, it logically follows that in doing so she retroactively changed her status on the premises from that of an invitee to that of a licensee or trespasser, with the result that the appellee could be held liable to her only for wilful or wanton negligence, which is not alleged in this case. See generally Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988). For these reasons, we hold that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


text:
    77526.
    AUSTELL ROAD DEVELOPMENT ASSOCIATES v. DEPARTMENT OF TRANSPORTATION.
    (378 SE2d 128)
   Banke, Presiding Judge.

In connection with the widening of Austell Road in Cobb County, the Department of Transportation condemned approximately 30,000 square feet of a 25-acre tract owned by the appellant. The tract was zoned for shopping center development. The appellant sought compensation for the taking in the total amount of $348,250, which included $160,000 in alleged consequential damages resulting from the reduction in the size of the shopping center which could be built on the property. This appeal is from a judgment entered on a jury verdict awarding compensation in the total amount of $61,410.

The appellant-condemnee’s sole enumeration of error is directed to the court’s refusal to exclude certain testimony revealing that, at a time subsequent to the taking, an altogether different road known as the “East-West Connector” had been extended across Austell Road and through a portion of the condemnee’s remaining property. At the time of the taking, the East-West Connector had terminated at Austell Road directly across from the condemnee’s property. The condemnee contends that because the extension of the connector increased the value of its remaining property at a date subsequent to the taking, any discussion of it would have confused the jurors and led them to discount the amount of consequential damages caused by the taking under consideration in the present case. Held:

We find this enumeration of error to be without merit for at least two reasons. First, the expert testimony offered by the condemnee in support of its claim for consequential damages did not in fact purport to establish the amount, if any, by which the value of the remainder had diminished as a result of the taking. See generally Wright v. MARTA, 248 Ga. 372, 373 (283 SE2d 466) (1981). Rather, it purported to show the extent to which the value of the entire tract, including the land taken, had diminished as a result of the fact that the taking had reduced the total amount of land available to the condemnee for shopping center development. Clearly, an award based on this testimony would not have compensated the appellee for any diminution in the value of the remainder but would instead have compensated him twice for the value of the land taken.

A second reason this enumeration of error is without merit is because testimony concerning the placement of the East-West Connector had already been elicited without objection. In an effort to show that the condemnor had undervalued the land taken, the condemnee had introduced evidence showing that, subsequent to the taking, it had received a much larger per-acre price from the sale of a portion of its remainder to Exxon Corporation. The sale price of this parcel had been set in an option agreement signed six months prior to the taking, at a time when, according to the condemnee, the extension of the East-West Connector had not yet been funded. However, attached to and forming a part of the option agreement was a drawing which showed that the parcel was located precisely at the intersection of Austell Road and the proposed connector extension. While cross-examining one of the condemnee’s principals regarding this sale, counsel for the condemnor sought to establish, as he was entitled to do, that one of the factors influencing the relatively high sale price received for this property had been the purchaser’s evident expectation that the connector would ultimately be extended across the condemnee’s property. Inasmuch as testimony concerning the connector extension was thus already before the jury, we conclude that the subsequent admission of the testimony objected to would not have constituted ground for reversal, even had it constituted error. See generally Converse v. O’Keefe, 148 Ga. App. 675, 677 (2) (252 SE2d 92) (1979).

Decided January 3, 1989

Land condemnation. Cobb Superior Court. Before Judge White. Johnson & Montgomery, Harmon W. Caldwell, Jr., Karen K. Karabinos, Wade H. Watson III, for appellant.

Flournoy & Evans, Charles A. Evans, Michael J. Bowers, Attorney General, for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    77548.
    ATLANTA BRAVES, INC. et al. v. LESLIE et al.
    (378 SE2d 133)
   Carley, Chief Judge.

Appellant-defendant City of Atlanta-Fulton County Recreation Authority (The Authority) leased the Atlanta-Fulton County Stadium facility to appellant-defendant Atlanta National League Baseball Club, Inc. (Braves). The Braves, in turn, contracted with appellant-defendant ARA Leisure Services, Inc. (ARA) to provide concession services at the stadium facility during home games. Appellee-plaintiff Nathaniel Leslie is a full-time police officer, but he also worked as a security guard for ARA during his off-duty hours. When performing his duties for ARA, Mr. Leslie wore his police officer’s uniform and carried a gun. While he was engaged in guarding a portion of the stadium premises where ARA’s employees deposited their daily receipts, Leslie was shot by an armed robber.

As the result of this occurrence, Leslie filed suit against appellants, alleging the negligent breach of the duty to keep the stadium premises safe for invitees. His wife, appellee Mrs. Janice Leslie, also brought suit, seeking to recover for the loss of consortium. Appellants answered, denying the material allegations of appellees’ complaints. All appellants moved for summary judgment. The trial court denied appellants’ motions, but certified its orders for immediate review. This appeal results from the grant of appellants’ applications for interlocutory appeals from the denial of their motions for summary judgment.

1. Appellants The Authority and Braves enumerate the denial of their motions for summary judgment as error, urging that, in their respective capacities as landlord and tenant, no genuine issue of material fact remains as to their liability for the injuries suffered by Leslie.

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. At the time that he was shot, Leslie was not on the stadium premises as a patron of the baseball game. He was on the premises in his capacity as an employee of ARA. However, this factor, standing alone, does not establish that, as a matter of law, The Authority and Braves owed no duty to Leslie and have no liability for the injuries that he suffered. In guarding ARA’s concession receipts, Leslie was engaged in a facet of the business for which The Authority had leased the stadium premises to the Braves. “It is well to observe that where, as in this case, an owner of property leases it to be used in the conduct of a business, those coming upon the premises in connection with the conduct of the business are invitees of the owner and proprietor alike.” Cooper v. Anderson, 96 Ga. App. 800, 808 (101 SE2d 770) (1957). See also Lowe v. Atlanta Masonic &c. Co., 79 Ga. App. 575 (54 SE2d 677) (1949).

In this case, however, Leslie was on the premises in his capacity as ARA’s armed security guard and he was shot by an armed robber while acting in that capacity. “In the absence of any allegation to the contrary, it must be assumed that [Leslie] was of ordinary intelligence and laboring under no disability which rendered him incapable of knowing and appreciating the dangers incident to his employment. The ordinary risks of the employment, though there be dangers attendant thereon, are assumed by the servant, and especially is this true where the dangers are obvious.” Self v. West, 82 Ga. App. 708, 711-712 (1) (62 SE2d 424) (1950). See also Hollingsworth v. Thomas, 148 Ga. App. 38 (250 SE2d 791) (1978); Thigpen v. Executive Committee &c. of Ga., 114 Ga. App. 839 (152 SE2d 920) (1966). “The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious. [Cit.] . . . Likewise there is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them. [Cits.]” Amear v. Hall, 164 Ga. App. 163, 169 (2) (296 SE2d 611) (1982). The possibility of a face-to-face encounter with a criminal is an ordinary and obvious risk incident to employment as an armed security guard. Accordingly, as a matter of law, Leslie, by accepting employment as ARA’s security guard, assumed the risk that he would have such encounters on the stadium premises. Leslie was, in effect, hired to provide an element of the very security that he alleges was negligently lacking. “[T]o place a duty on [appellants] to protect an armed guard from a generalized potential of harm is to engage in circular reasoning, ‘i.e., there is a potential danger so [Leslie is hired as an] armed guard, [the] hiring [of] armed guards shows a potential danger, thus armed guards or other protective measures must be taken to protect the first armed guard from the original po- ■ tential danger that he was hired to guard against in the first place.’ ” Hewett v. First Nat. Bank of Atlanta, 155 Ga. App. 773, 774 (272 SE2d 744) (1980). See also Carter v. Mercury Theater Co., 146 Mich. App. 165 (379 NW2d 409) (1985); Turner v. Northwest Gen. Hosp., 97 Mich. App. 1 (293 NW2d 713) (1980).

“There being no duty to exercise extraordinary care, there is no liability for an injury resulting to an invitee from a danger best known to the invitee who assumes the obvious risks and dangers inherent in the known circumstances, ([cit.]).” Tect Constr. Co. v. Frymyer, 146 Ga. App. 300, 303 (1) (246 SE2d 334) (1978). The. evidence of record establishes that Leslie was injured when he encountered a risk which, as a matter of law, he had assumed upon accepting employment as an armed security guard. Accordingly, the trial court erred in denying The Authority’s and Braves’ motions for summary judgment.

2. ARA enumerates the denial of its motion for summary judgment as error, urging that, as against it, Leslie’s exclusive remedy is under the Workers’ Compensation Act. See OCGA § 34-9-11; Atlanta Cas. Co. v. Sharpton, 158 Ga. App. 758, 760 (282 SE2d 214) (1981).

According to Leslie, the evidence shows that he was an independent contractor rather than a servant of ARA and, as an independent contractor, he would thus be entitled to bring this action in tort. “ ‘ “The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. [Cits.]” [Cit.]’ [Cits.]” Bexley v. Southwire Co., 168 Ga. App. 431, 433 (1) (309 SE2d 379) (1983). See also Spell v. Port City Adhesives, 183 Ga. App. 816 (1) (360 SE2d 63) (1987). “ ‘Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.’ The test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract. [Cit.]” (Emphasis in original.) Golosh v. Cherokee Cab Co., 226 Ga. 636, 638-639 (176 SE2d 925) (1970).

Decided January 12, 1989

Rehearing denied January 26, 1989

Neely & Player, Donald D. Reemsnyder, David C. Marshall, Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Mary M. House, Eve A. Appelbaum, for appellants.

Walbert & Hermann, David H. Bedingfield, David F. Walbert, for appellees.

A review of the evidence of record shows that Leslie was controlled by ARA’s security coordinator as to when to report to work, when to leave work, and what areas of ARA’s operation he was to guard. Construing the evidence most strongly against ARA as the moving party, no genuine issue of material fact remains as to Leslie’s status as ARA’s servant. Moreover, even assuming that such a question of fact did remain, it would not be material to ARA’s liability. Our holding in Division 1 of this opinion that, by accepting employment as an armed security guard, Leslie has no cause of action for injuries resulting from the ordinary and obvious danger of encountering a criminal on the premises is equally as applicable to ARA as it is to the other appellants. See generally Amear v. Hall, supra; Self v. West, supra. Accordingly, the trial court erred in denying ARA’s motion for summary judgment.

3. “Since [appellants] are not liable for injuries to [Leslie], they are not liable to [Mrs. Leslie] for loss of consortium attributable to those injuries.” Douberly v. Okefenokee Rural Elec. &c. Corp., 146 Ga. App. 568, 570 (3) (246 SE2d 708) (1978). See also Henderson v. Hercules, Inc., 253 Ga. 685 (324 SE2d 453) (1985).

Judgments reversed.

Deen, P. J., and Sognier, J., concur.


text:
    77679.
    HUNTER v. THE STATE.
    (378 SE2d 338)
   Carley, Chief Judge.

After a bench trial, appellant was found guilty of possession of cocaine with intent to distribute, possession of diazepam, and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences entered by the trial court on its findings of guilt.

1. Appellant filed a pre-trial motion to suppress evidence seized in the search of his automobile. The trial court conducted a hearing and, finding that the search had been conducted with appellant’s consent, denied the motion to suppress. Appellant enumerates the denial of his motion as error. His specific enumeration is: “Absent suspicion or probable cause to believe an automobile is transporting contraband or weapons, it is a violation of a citizen[’s] 4th Amendment right[s] to request that he consent to a search of his vehicle and any evidence obtained from said illegal search must be suppressed.”

“It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ [Cits.]” Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SC 2041, 36 LE2d 854) (1973). Included among those “specifically established and well-delineated exceptions” to the warrant requirement are the full-scale search of an automobile on probable cause and, after a valid traffic stop, a protective search of the passenger compartment on suspicion that the occupant or occupants are dangerous and might gain control of weapons. See generally Baker v. State, 170 Ga. App. 700 (1) (318 SE2d 178) (1984); Holmes v. State, 163 Ga. App. 753, 754 (4) (294 SE2d 719) (1982). Accordingly, were either of those exceptions to the warrant requirement at issue in the present case, an inquiry into the officer’s probable cause or suspicion for conducting the search of appellant’s automobile would be relevant.

The search of appellant’s car was, however, found to be consensual. “It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. [Cits.]” Schneckloth v. Bustamonte, supra at 219. Consent, as an entirely separate exception to the warrant requirement, turns not on the officer’s probable cause or suspicion to conduct the search, but on the voluntariness of the individual’s waiver of his Fourth Amendment rights. “Where the [S]tate seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ [Cit.] A valid consent eliminates the need for either probable cause or a search warrant. [Cit.] The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances,’ [cit.], including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. [Cit.]” Dean v. State, 250 Ga. 77, 79-80 (la) (295 SE2d 306) (1982). “A free and voluntary consent that one’s belongings be searched is a waiver of objection to the evidence produced as a result of the search. [Cit.] . . . When the permission is granted (whether the defendant ‘gives up’ and admits guilt, or whether he feels that by expressing unconcern he may yet escape detection) and on request he himself unlocks his automobile, gives the keys to the officers, or expresses verbal permission for the search to be made, a waiver results. [Cits.]” Young v. State, 113 Ga. App. 497, 498 (148 SE2d 461) (1966).

Decided January 12, 1989

Rehearing denied January 26, 1989

Sonja L. Salo, for appellant.

There is no contention that appellant’s subsequent consent to the search was the tainted product of an initial pretextual stop of his vehicle. Compare Brown v. State, 188 Ga. App. 184 (372 SE2d 574) (1988); Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987). Assuming the existence of an otherwise valid non-pretextual initial investigatory stop of appellant’s vehicle, the determination of the validity of the subsequent consensual search is not dependent upon the existence of probable cause or suspicion to support the officer’s request to conduct the search, but upon the voluntariness of appellant’s waiver of his expectation of privacy in the vehicle in response to that request. Under the “totality of the circumstances,” the trial court was authorized to find that appellant’s consent was freely and voluntarily given. Accordingly, the motion to suppress was correctly denied.

2. Appellant enumerates the general grounds as to his conviction of possession of cocaine with intent to distribute.

“Circumstantial evidence that the total quantity of [cocaine] possessed by defendant was packaged in numerous small [plastic bags] is sufficient for a rational trier of fact to find defendant guilty of possession with intent to distribute. [Cits.]” Henderson v. State, 184 Ga. App. 834, 836 (2) (363 SE2d 52) (1987). See also McDade v. State, 175 Ga. App. 204 (2) (332 SE2d 672) (1985). Moreover, there was evidence that, after his arrest, appellant made a statement wherein he admitted that he had purchased the “stuff a couple of months ago for a party.” This statement constituted direct evidence of appellant’s intent to distribute the drugs. From the evidence produced at trial, any rational trior of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Henderson v. State, supra.

3. Payment of a fine of $10,000 was imposed as an element of the sentence for each of the three convictions. Appellant enumerates as error the trial court’s imposition of fines totalling $30,000.

This enumeration is controlled adversely to appellant by the decisions in Todd v. State, 172 Ga. App. 231 (1) (323 SE2d 6) (1984), Shelton v. State, 161 Ga. App. 524, 525 (2) (289 SE2d 768) (1982), and Printup v. State, 159 Ga. App. 574 (284 SE2d 82) (1981).

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.

Thomas C. Lawler III, District Attorney, Tracy A. Lorowitz, Assistant District Attorney, for appellee.


text:
    77257.
    GORDON v. THE STATE.
    (378 SE2d 362)
   Beasley, Judge.

Defendant appeals his conviction of driving under the influence of alcohol. His sole enumeration of error is that the trial court erred in admitting the results of an intoximeter test in violation of OCGA § 40-6-392 (a) (3)i That code section authorizes an accused to obtain a test in addition to any administered at the direction of a law enforcement officer. It further provides: “The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.”

Coupled with the right of an accused to have a chemical analysis of his blood and urine by a qualified person of his own choosing, there is a corresponding duty on the part of law enforcement officers not to deny him that right. Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978). The results of a test taken in violation of the protections afforded by OCGA § 40-6-392 may not be used in evidence against a defendant. State v. Johnston, 160 Ga. App. 71, 73 (286 SE2d 47) (1981). But the mere fact that the accused was unable to obtain a chemical test of his own choosing will not require the suppression of the State’s test. Grizzle v. State, 153 Ga. App. 364 (1) (265 SE2d 324) (1980).

Defendant was taken to a medical center where the receptionist was unable to change the $100 bill he offered in payment for the test. An employee of the center testified the officer stated that since the bill could not be changed defendant could not have the test. Defendant was not permitted to go elsewhere in the medical center or outside for change or to make a phone call to arrange change. He was returned to the station and shortly thereafter was released on bail. He returned with his father to the medical center and paid for a test. However, he was then told that the blood sample taken could not be sent to the crime laboratory for analysis unless the arresting officer witnessed it and signed the request. The officer refused to return to the medical center to do so.

The director of the laboratory at the medical center, as well as the assistant chief of police, testified there was an arrangement between the police department and the medical center requiring the arresting officer to sign the request in order for the crime laboratory to analyze the sample. The officer was aware of this policy and the need for his authorization but was of the opinion that he did not have to witness a blood test performed at the accused’s own expense. The officer related that he was staying within the guidelines of his department.

Decided January 26, 1989.

Word & Flinn, Gerald P. Word, for appellant.

Henry C. Head, Solicitor, for appellee.

We are cited no statutory or regulatory authorization for the procedural policy established by the police and the medical center. Instead of “justifiable failure” or “inability” to obtain an additional test, the evidence shows a course of conduct which created barriers at both junctures and denied defendant the opportunity to obtain a test of his own choosing. Defendant made arrangements for an analysis but was prevented from accomplishing this by the officer acting under what he believed to be the predetermined policy of the policy department and the medical center. Whether he was right or wrong in his interpretation of the policy, the result was the same, because the blood drawn was not analyzed. This amounted to a refusal to permit defendant an alternate test. State v. Buffington, 189 Ga. App. 800 (377 SE2d 548) (1989). See in this regard State v. White, 188 Ga. App. 658 (373 SE2d 840) (1988).

The State had the burden of demonstrating compliance with the statutory requirements. Munda v. State, 172 Ga. App. 857, 858 (324 SE2d 799) (1984), which it did not meet. State v. Hughes, 181 Ga. App. 464, 467 (352 SE2d 643) (1987). The results of the test should have been suppressed.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.


text:
    77447.
    SUTTON v. THE STATE.
    (378 SE2d 491)
   Beasley, Judge.

Defendant appeals his convictions of theft by receiving stolen property, OCGA § 16-8-7, and carrying a concealed weapon, OCGA § 16-11-126. His sole enumeration of error is that the trial court erred in requiring him to pay restitution in the amount of $3,108.

The trial court failed to enter written findings of fact concerning the factors specified in OCGA § 17-14-10, Garrett v. State, 175 Ga. App. 400, 401 (1) (333 SE2d 432) (1985), but defendant has not raised this issue which will therefore not be considered. Morrison v. State, 181 Ga. App. 400, 441 (352 SE2d 622) (1987).

The subject of theft by receiving was a truck owned by the victim and insured by Prudential Insurance Company. Prudential paid the victim $6,302 for the vehicle and $450 as rental reimbursement. After the truck was recovered, it was auctioned for salvage in the amount of $3,894. The order to pay restitution awarded $250 to the victim, which was the amount of the insurance deductible, and $2,858 to Prudential, which constituted the difference between the amount it paid the victim, $6,752, and the amount it received for the truck as salvage.

Defendant contends the evidence does not support the award of restitution because: 1) there was no showing as to the market value of the truck and no basis to credit the value assigned, in that there was a large discrepancy resulting from the difference at which it was valued and the amount it brought at auction; 2) the $450 rental reimbursement was not recoverable since one cannot claim as damages both the actual market value of a vehicle and rental for loss of use; 3) there was no evidence that $250 was deducted from the amount of the victim’s recovery from Prudential.

1. An employee of Prudential testified that the value assigned to the truck was based upon a consideration of the fair market value of a truck of comparable age and condition, utilizing a survey predicated on representative samples. He noted that the value received from the auction resulted from the “forced sale” nature of the transaction. We discern no violation of OCGA § 17-14-9 which limits the amount of restitution to not more than the victim’s damages.

2. The $450 rental reimbursement was properly included in the amount of restitution although in a suit for damages to a vehicle one cannot ordinarily recover an amount in excess of the fair market value of the vehicle before it was damaged. Lamon v. Perry, 33 Ga. App. 248, 249 (125 SE 907) (1924).

“ ‘Damages’ means all damages which a victim could recover against an offender in a civil action.” OCGA § 17-14-2 (2). “[T]he statutory scheme requires the court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action.” Garrett, supra at 404. The victim could maintain an action for conversion. Under that legal theory recovery of the value of the vehicle plus hire was permitted, even though the amount for rental might exceed the value of the property converted. Ford Motor Credit Co. v. Spicer, 156 Ga. App. 541, 542 (5) (275 SE2d 116) (1980). Accord General Fin. Corp. of Ga. v. Henderson, 160 Ga. App. 242 (286 SE2d 454) (1981).

3. There was no evidence that $250 was deducted from the amount tendered to the victim by Prudential. Prudential’s employee testified that $6,752 (including $6,302 as market value of the truck and $450 rental reimbursement) was paid to the victim. Although the State argues that the record reveals that there was a $250 deductible under the policy and one would reasonably assume that the insurance company would not offer a gratuity to the victim, such an assumption cannot serve as a replacement for evidence. This amount is not sustainable.

Decided January 26, 1989.

John 0. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The judgment imposing restitution is affirmed on condition that the amount of $250 be eliminated; otherwise reversed.

Judgment affirmed on condition.

Banke, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    77578.
    STITT v. THE STATE.
    (378 SE2d 168)
   Sognier, Judge.

Roger Lee Stitt appeals on the general grounds from his convictions for armed robbery and aggravated assault.

In the early morning hours of January 18, 1985, a service station in Jackson County was robbed and its lone clerk assaulted. Although appellant initially denied knowledge of the assault and robbery, he eventually admitted that he had committed the crimes but claimed that he had been coerced. Appellant testified that after he had been abandoned by friends with whom he had been out drinking on the evening of January 17th, he was picked up by the driver of a U-Haul truck who coerced him at gunpoint first to “check out” or “case” the service station, and then to rob it and turn over all but $20 of the money taken in the robbery. Other evidence at trial revealed that the alleged driver of the U-Haul truck was never found, and when appellant was apprehended after a chase a search of his person yielded approximately $300, including bills containing bloodstains matching the blood type of the victim. The victim testified that he had seen the U-Haul truck stop at the service station twice that evening before the robbery, and positively identified appellant as the man who had come in twice to buy various small food items and ask directions, and as the man who crawled through the window of the security cage and assaulted him. He testified that he could see the U-Haul truck clearly each time it stopped and never saw another person in the truck. Both Deputy Evans and Investigator Scoggins of the Jackson County Sheriff’s Department, who participated in the chase and apprehension of appellant, testified that only one person was in the U-Haul, and that they were sure it was appellant.

Decided January 26, 1989.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Coercion is, of course, a defense to any crime except murder. OCGA § 16-3-26. However, the fear engendered by the coercion must be of present and immediate violence at the time the coerced crime is being committed. Slater v. State, 185 Ga. App. 889-890 (2) (366 SE2d 240) (1988). Coercion is a defense only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm. Barnes v. State, 178 Ga. App. 205-206 (1) (342 SE2d 388) (1986). That question is for the jury, id., as are questions of the credibility of the witnesses. Boose v. State, 185 Ga. App. 728 (365 SE2d 534) (1988).

In the case sub judice, even if the jury had believed appellant’s testimony regarding coercion, they would have been authorized to reject coercion as an affirmative defense, because appellant had ample opportunity, while in possession of the gun and away from the U-Haul, either to call upon the victim for assistance or to call the authorities himself rather than committing the crimes. Accordingly, we find that the evidence authorized the jury to convict appellant of the crimes charged, under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, C. J., and Deen, P. J., concur.


text:
    77580.
    LESTER v. THE STATE.
    (378 SE2d 364)
   Beasley, Judge.

On count one of a three-count indictment, defendant was originally sentenced for the sale of cocaine (OCGA § 16-13-30 (b)) to thirty years and a $10,000 fine. He received the same sentence on count two, possession of cocaine (OCGA § 16-13-30 (a)), the term of imprisonment to be consecutive, so that the two sentences totalled sixty years imprisonment and $20,000. The sentence on count three, possession of marijuana (OCGA § 16-13-30 (j) (1)), was twelve months. Defendant was a repeat offender as to possession.

He filed a motion to vacate the fine on the basis that OCGA § 16-13-30 does not provide for a fine and, in addition, that where the maximum sentence is imposed without probation a fine may not be imposed. In the original sentencing hearing, the court indicated its intent, that defendant be sentenced to the maximum allowed by law, by agreeing with the district attorney’s request for the maximum. During the hearing on the motion, the district attorney conceded that the sentence was “technically incorrect” in not providing a period of probation since a fine was imposed. The trial court, in the context of what was being argued by both sides, orally announced that the sentence would be reduced on each count to twenty-five years to run consecutively. The written judgment provided sentences on each of the first two counts of thirty years, twenty-five years in confinement and five years on probation, plus a $10,000 fine. It specified that the sentence on count two was to be consecutive.

Defendant raises two alleged errors: that the imposition of a sentence in excess of that announced orally is not permitted after execution of his sentence began; that imposing a fine is not allowed because no part of the term of imprisonment was probated.

As to the first, he relies upon OCGA § 17-10-1 and several cases which support the proposition, including Inman v. State, 124 Ga. App. 190, 192 (183 SE2d 413) (1971). There it was recognized that while an oral sentence is not a binding judgment, “once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy.” See also Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451) (1981).

During the motion hearing the State requested a sentence for each of the first two counts of twenty-nine years with one year of probation and a $10,000 fine. It was in this context that the court stated that it was going to reduce the sentences to twenty-five years to run consecutively. The court specifically declined to reduce or eliminate the fines, and reiterated the intent to impose the maximum sentence allowed by law. This would be thirty years. Reasonably construed, the sentences orally announced as to each of counts one and two were thirty years, with twenty-five to serve plus five on probation, and a fine of $10,000. Under these circumstances, the sentence as finally entered did not vary from that which was orally announced by the trial court and the cited cases are not applicable because there was no “increase.” See Henderson v. State, 162 Ga. App. 320, 324 (5) (292 SE2d 77) (1982).

Defendant also urges that since defendant’s sentence was orally set at twenty-five years to serve and there was no provision for probation, a fine could not be imposed under OCGA § 16-13-30. This would be correct if defendant’s premise were true. Castillo v. State, 166 Ga. App. 817, 824 (7) (305 SE2d 629) (1983); Young v. State, 163 Ga. App. 507, 509 (4) (295 SE2d 175) (1982); Taylor v. State, 149 Ga. App. 362, 364 (3) (254 SE2d 432) (1979).

Decided January 26, 1989.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

However, since a portion of defendant’s sentence was reduced from imprisonment to probation, a fine of up to $10,000 was authorized as a condition of probation. OCGA § 17-10-8. The court did not violate OCGA § 17-10-2 (a). Both Castillo and Young, supra, acknowledge this distinction. The punishments provided in OCGA § 16-13-30 do not preclude probation as a punishment. OCGA § 17-10-1 (a); Knight v. State, 243 Ga. 770, 772 (2) (257 SE2d 182) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.