author: Pope, Chief Judge.

text:
    A93A2202.
    PARADISE v. THE STATE.
    (441 SE2d 497)
   Pope, Chief Judge.

Defendant Bobby Joe Paradise was tried before a jury and found guilty of four counts of aggravated child molestation, four counts of aggravated sodomy, and four counts of child molestation for acts committed against his eight-year-old daughter and seven-year-old stepdaughter. At sentencing, the four counts of aggravated child molestation were merged into the four counts of aggravated sodomy. Defendant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Defendant confessed during a police interview. He argues the trial court erred in refusing to exclude his confession because it was the product of an unlawful arrest. “ ‘It is true that even though proper Miranda warnings may have been given prior to a defendant’s making an incriminatory statement and even though the statement may have been voluntary for Fifth Amendment purposes, [such a] statement is nonetheless inadmissible under the Fourth Amendment if it is the product of an illegal seizure. [Cit.]’ [Cit.]” Green v. State, 168 Ga. App. 558 (309 SE2d 687) (1983). The trial court must determine whether the statements sought to be excluded “ ‘were obtained by exploitation of the illegality of [defendant’s] arrest.’ ” Thompson v. State, 248 Ga. 343, 344 (2) (285 SE2d 685) (1981). In addition to whether a detainee has been warned of his rights, the factors which should be considered in determining whether a confession has been purged of the taint of an illegal arrest include “ ‘(t)he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct.’ [Cits.]” Taylor v. Alabama, 457 U. S. 687, 690 (II) (102 SC 2664, 73 LE2d 314) (1982). “ ‘Factual and credibility determinations of this sort made by a trial judge . . . must be accepted by appellate courts unless such determinations are clearly erroneous. [Cit.]’ ” Wilson v. State, 211 Ga. App. 457, 458 (1) (439 SE2d 685) (1993).

Although in conflict, the evidence adduced at the hearing held on defendant’s motion to exclude his confession would authorize a rational finder of fact to find the following facts: The defendant’s stepdaughter told a teacher that defendant had “messed” with her and this allegation was reported to an investigator for the Department of Family & Children Services (DFACS) and the police. Both the daughter and stepdaughter detailed incidents in which defendant made the girls perform and submit to acts of sodomy and other sexual contact.

The investigating officer, Detective West, attempted unsuccessfully to reach defendant by telephone. Defendant was later told by his brother-in-law, erroneously, that warrants for his arrest were outstanding based upon the allegations of the stepdaughter that he had “messed” with her. He then telephoned Detective West, telling her that he wanted to speak with the police about the allegations against him. Defendant agreed to come to the police station for an interview but told Detective West that he had no transportation and would require a ride. They agreed that a sheriffs deputy would meet defendant at his home and drive him to the station. Defendant was waiting at the end of his driveway when the deputy arrived. Mistakenly believing that he was to arrest defendant, the deputy, following departmental policy for transporting a prisoner, frisked and handcuffed defendant before placing him in the back of the police vehicle. When Detective West saw defendant in handcuffs at the police station, she immediately ordered them removed and explained to him before the interview began that he was not under arrest. As a preliminary matter, Detective West cautioned defendant of his rights and explained to him a written waiver of those rights. Although defendant had a tenth grade education, Detective West read the waiver form to him before he signed it. Defendant was not verbally coerced or physically threatened. During the interview, which lasted less than one hour, defendant initially denied molesting the girls before admitting the aliegations. At this point, defendant was formally arrested.

Assuming, without deciding, that defendant was subjected to a warrantless arrest without probable cause at the time he was handcuffed and placed in the police vehicle, it is clear that any taint arising therefrom became attenuated. It is undisputed that defendant was not subjected to any custodial questioning by the deputy. The trial court found that defendant knew he was in fact not under arrest at the time of the interview, and this determination is supported by the evidence. See Ferrell v. State, 261 Ga. 115, 118 (2) (b) (401 SE2d 741) (1991). The deputy’s actions, based upon the mistaken premise that arrest warrants already had issued, were intentional but were not designed to elicit a confession. Rather, the purpose was to protect the safety of the officer, in accordance with policy. The mistaken use of handcuffs while the officer transported a suspect who was appearing voluntarily for a police interview simply does not rise to the level of egregiousness or flagrant disregard of the rights of the defendant as would warrant application of the exclusionary rule to deter police misconduct. Cf. Ryals v. State, 186 Ga. App. 457, 459 (367 SE2d 309) (1988) (Birdsong, C. J., concurring specially); State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988). Defendant does not contend he wished to cancel the interview after Detective West ordered the handcuffs removed and informed him that he was not under arrest. See Dupree v. State, 247 Ga. 470 (2) (277 SE2d 18) (1981). Defendant signed a waiver of his rights after Detective West read and explained the form waiver to him. The evidence supports the conclusion that defendant’s confession was not the product of any illegal arrest prior to his confession. See Devier v. State, 253 Ga. 604, 616 (5) (a) (323 SE2d 150) (1984). The trial court did not err by overruling defendant’s motion to exclude evidence of his confession. Cf. State v. Harris, 256 Ga. 24, 26 (2) (343 SE2d 483) (1986).

2. The mother of the victims’ friend testified that one of the victims told her that defendant had “made them lick each other down there.” Defendant moved for a mistrial on the grounds that such testimony implicated his character and was “similar transactions” evidence for which the State gave no notice pursuant to Uniform Superior Court Rules (USCR) 31.1 and 31.3 (B). In related enumerations of error, defendant complains of the failure of the trial court to make findings as to admissibility after the hearing mandated by USCR 31.3 (B) and to the overruling of his motion for mistrial.

The acts mentioned were conduct contemporaneous with the offenses for which defendant was on trial. “Nothing in [USCR 31] is intended to prohibit the [S]tate from introducing evidence of similar transactions or occurrences which are . . . immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” USCR 31.3 (E). Consequently, the failure to conduct an admissibility hearing under USCR 31.3 (B) was not error with respect to this evidence. Cooper v. State, 188 Ga. App. 629 (1) (373 SE2d 796) (1988); see also Presley v. State, 177 Ga. App. 611, 614 (2) (b) (340 SE2d 253) (1986); cf. Cavender v. State, 208 Ga. App. 61 (2) (429 SE2d 711) (1993). This evidence was admissible as part of the res gestae. Cooper v. State, supra. Moreover, previous testimony of the same uncharged acts had been admitted without objection. The trial court did not abuse its discretion by refusing to declare a mistrial. See Miller v. State, 197 Ga. App. 691 (2) (399 SE2d 281) (1990). Defendant’s second and third enumerations are without merit.

3. Defendant called his ex-wife, Youlanda Hickman, as a defense witness and did not request that she be declared a hostile or adverse witness. Thereafter, on direct examination, defendant elicited from Hickman testimony that was not favorable to him. Defendant never asked her directly whether she was biased against him. On cross-examination by the State, Ms. Hickman admitted having no personal knowledge of the facts as alleged by the girls and denied having coached them in any way. After this witness had been excused, defendant tendered as exhibits certified copies of criminal convictions entered against Ms. Hickman. The trial court admitted her felony conviction for aggravated assault against defendant but excluded four misdemeanor convictions for bad checks on the ground that defendant was improperly attempting to impeach his own witness. This evidentiary ruling is enumerated as error.

The misdemeanor of issuing a bad check in violation of OCGA § 16-9-20 (a) is a crime of moral turpitude and the jury may consider evidence of a witness’ guilty plea to such a crime as proof of general bad moral character which tends to impeach the credibility of that' witness within the meaning of OCGA § 24-9-84. Carruth v. Brown, 202 Ga. App. 656 (415 SE2d 470) (1992). Nevertheless, “[a] party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.” OCGA § 24-9-81. The statutory requirement of “entrapment” which allows a party to impeach his own witness by proof of a previous contradictory statement no longer requires a showing of total surprise and affirmative prejudice. Wilson v. State, 235 Ga. 470, 475 (1) (219 SE2d 756) (1975); cf. Rollins v. State, 262 Ga. 698, 699 (1) (425 SE2d 285) (1993). OCGA § 24-9-81 provides that the exclusive method by which a party may impeach his own witness is by proof of a “previous contradictory statement.” The trial court, therefore, did not err by refusing to allow defendant to impeach his own witness, who had not been declared hostile, by proof of convictions of misdemeanors involving moral turpitude.

4. The trial court gave a charge on sexual battery as a lesser included offense to the charge of child molestation. That charge follows: “[I]f you do not believe beyond a reasonable doubt that the defendant is guilty of the charges against him as contained in the indictment, but do believe beyond a reasonable doubt that the defendant is guilty of sexual battery, then you would be forced to convict the defendant of the offense of sexual battery in that particular count.” Error is assigned to the emphasized portion of the charge.

Decided February 24, 1994.

Robert L. Stultz, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

(a) Although the State urges that this enumeration of error has been waived, we do not agree. Our Supreme Court recently clarified the available procedures for preserving exceptions to the charge. “[D]efense counsel may [except] to such portions of jury instructions as are perceived at trial to be error and may also reserve the right to raise additional [exceptions] on motion for new trial or on appeal.” McCoy v. State, 262 Ga. 699, 701 (2) (425 SE2d 646) (1993). Defendant reserved exceptions to the charge in this case.

(b) Without question, jury instructions on consideration of a lesser included offense should be couched in terms of what the jury is authorized to do (the wording of the pattern jury instruction) and not in terms of what a jury would be forced to do. Although the context here clearly shows that the use of the term “forced” is by way of limitation, precluding a verdict of guilt as to the greater offense, the word “forced” is language of command and so needlessly invites harmful error by appearing to direct a verdict of guilt on the lesser offense. See generally Isaacs v. State, 259 Ga. 717 (35) (b) (386 SE2d 316) (1989). However, any error in this instruction on the lesser included offense was rendered harmless by the jury’s verdicts finding defendant guilty of the greater offense of child molestation in each alleged instance. See Rodriguez v. State, 211 Ga. App. 256 (1) (439 SE2d 510) (1993).

Judgments affirmed.

Birdsong, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A2241.
    STRICKLAND v. THE STATE.
    (441 SE2d 494)
   Smith, Judge.

Elizabeth Strickland and her husband, Christopher Strickland, were convicted of cruelty to children for depriving Mr. Strickland’s four-year-old illegitimate son of necessary sustenance and maliciously causing him excessive physical pain. OCGA § 16-5-70 (a) and (b). Elizabeth Strickland appeals.

1. Strickland enumerates as error the failure of the trial court to direct a verdict in her favor on Count 2 of the indictment. The facts of the case are set forth in her husband’s earlier appeal. Strickland v. State, 211 Ga. App. 48 (438 SE2d 161) (1993). With respect to Strickland, the evidence at trial showed she had been appointed the guardian of the child. The child was “hefty” and “robust” before being delivered into the custody of Strickland and her husband by the Department of Family & Children Services (DFACS). Approximately five months later, Strickland called DFACS to report that the child was uncontrollable and possessed by a demon; she asked to return the child to the custody of DFACS. When he arrived at DFACS, the child was malnourished, and he had scars and wounds over most of his body consistent with being scratched with fingernails and being beaten with a switch and a metal or wooden rod.

In support of her contention that the trial court should have directed a verdict of acquittal, Strickland claims that there is no evidence she inflicted the injuries on the child. However, she admitted both to a witness and in court that she “whipped” the child with a switch, although she denied that she whipped him hard enough to produce marks. There was medical evidence that many of the scars and fresh wounds on the child’s body were produced by a switch or similar thin flexible object. The child, while first identifying the father as the person who hit him, on further questioning stated that Mrs. Strickland hit him, too.

“A motion for a directed verdict of acquittal should be granted only when there is no conflict in [the] evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. [Cits.] On appeal a reviewing court can consider all the evidence [cit.] and must view the evidence in the light most favorable to the verdict. [Cit.]” Jones v. State, 201 Ga. App. 102, 103-104 (2) (410 SE2d 199) (1991).

There is ample evidence in the record from which a rational trier of fact could find beyond a reasonable doubt that Strickland was guilty of cruelty to children by maliciously causing her ward excessive physical pain. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err by denying Strickland’s motion for directed verdict of acquittal.

2. Strickland enumerates as error the denial of her motion to sever her trial from that of her co-defendant husband. The grant or denial of a motion to sever is clearly within the discretion of the trial court, and absent an abuse of discretion, its denial is not grounds for reversal. Freeman v. State, 205 Ga. App. 112 (421 SE2d 308) (1992). The circumstances here are substantially similar to those in Story v. State, 194 Ga. App. 187 (1) (390 SE2d 96) (1990), in which a husband and wife were tried jointly for child molestation. As in Story, the charges against Strickland and her husband were essentially the same. Although there was some evidence that Mr. Strickland was primarily responsible for the beatings and more testimony connecting him with them, the mere fact that testimony as to one of two co-defendants is stronger does not demand a finding that denial of a motion to sever is an abuse of discretion. Martin v. State, 162 Ga. App. 703, 704 (2) (292 SE2d 864) (1982). The trial court instructed the jury that it should give separate verdicts with respect to each defendant as to each count, from the evidence applicable to each defendant alone, and that the guilt or innocence of one defendant should not control or influence the verdict respecting the other defendant. Strickland has not shown prejudice or abuse of the trial court’s discretion in denying her motion to sever. Story, supra at 187.

3. Strickland also enumerates as error the trial court’s denial of her motion for a continuance, made on the day of trial. She contends that the court should have allowed additional time for her to obtain an expert witness. She also contends that documents provided to her by DFACS through the trial court were illegible, and that the State did not identify certain witnesses to her until a few days before trial. She further contends that the failure of the State to comply with these requests violated her due process rights. A motion for continuance is addressed to the sound discretion of the trial court, OCGA § 17-8-22, and the trial court’s exercise of discretion will not be reversed on appeal without a showing of manifest abuse of that discretion. Rhodes v. State, 200 Ga. App. 193, 194 (1) (407 SE2d 442) (1991).

(a) Strickland first contends that a continuance should have been granted for her to obtain an expert witness. She asserts that such an expert was necessary to refute the testimony of a physician in the medical examiner’s office, who testified to the age and probable origin of the scars on the child based upon his examination of photographs. However, Strickland is not entitled to rely solely on information provided by the State for her pretrial investigation, and she must show the exercise of due diligence in order to obtain a continuance. Davis v. State, 204 Ga. App. 657, 658 (4) (420 SE2d 349) (1992).

It appears from the record that Strickland had viewed the photographs from which the expert testified by February 1992. She has not shown that she was unable to obtain an expert to examine the photographs at an earlier date. The record does not demand a finding that Strickland exercised diligence. OCGA § 17-8-20; Green v. State, 208 Ga. App. 1, 3 (4) (429 SE2d 694) (1993). Moreover, Strickland has made no showing as to who the expert would be, what his or her testimony would be expected to show, or how that testimony would benefit Strickland. Where there is no indication that a continuance would have benefited the defendant, there is no showing of necessity and no abuse of discretion. Johnson v. State, 255 Ga. 703, 704 (2) (342 SE2d 312) (1986).

Decided February 24, 1994.

(b) Similarly, the record does not appear to include the purportedly illegible documents produced by DFACS, and Strickland has not shown how those documents would have assisted her in the preparation of her case. The record does not show that the documents were subject to disclosure under OCGA § 17-7-210 or § 17-7-211, that they were provided by the State, or that the State delayed their production in any way. There is no showing of an abuse of discretion on the part of the trial court in denying Strickland’s motion for continuance on this ground. McMillan v. State, 257 Ga. 173, 174 (3) (356 SE2d 866) (1987).

(c) The final basis on which Strickland contends a continuance should have been granted was the State’s delivery of a supplemental witness list seven days before the trial began. However, the Georgia Supreme Court has found no error in the denial of a motion for a continuance where a supplemental list of witnesses was served “several hours prior to call of the case for trial,” as long as the defendant had the opportunity to interview the witnesses called by the State. Saylors v. State, 251 Ga. 735, 737-738 (4) (309 SE2d 796) (1983). Counsel for Strickland acknowledged that she had the opportunity to interview three witnesses on the supplemental list who were called by the State. The name of the physician who treated the child at Grady Hospital appeared in the medical records that were produced in February, including the medical history used as a defense exhibit. See Askew v. State, 192 Ga. App. 351 (1) (385 SE2d 21) (1989). We find no abuse of discretion in the trial court’s denial of Strickland’s motion for a continuance.

4. Strickland also complains that the trial court erred in failing to grant a motion for mistrial, contending that a witness for the State testified as to the ultimate issue in the case. This contention has no merit. The witness testified that with respect to the child’s condition at the time of his examination, his diagnosis'was “suspected child abuse.” However, he made no comment as to whether Strickland was the person who inflicted the injuries. He therefore did not testify as to the ultimate issue in the case. Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992). Moreover, the trial court instructed the jury to disregard the statement. This enumeration is without merit.

Judgment affirmed.

Beasleyi P. J., and Cooper, J., concur.

Avis K. Hornsby, for appellant.

Lewis R. Slaton, District Attorney, Carla E. Young, Vivian D. Hoard, Assistant District Attorneys, for appellee.


text:
    A93A2310.
    BROWNLEE v. CITY OF ATLANTA.
    (441 SE2d 492)
   Smith, Judge.

James Brownlee was issued a citation by the City of Atlanta for criminal trespass, OCGA § 16-7-21. Brownlee, without benefit of counsel, pled guilty to a city ordinance violation for disorderly conduct, 17-3001 (2), in Atlanta Municipal Court as a negotiated alternative to standing trial on the criminal trespass charge. The superior court denied Brownlee’s petition for writ of certiorari. OCGA § 5-4-3. Brownlee then applied to this court for discretionary review of the superior court’s decision, which was granted. OCGA § 5-6-35 (a) (1). This appeal followed.

In his petition to the superior court, Brownlee assigned as error, among other things, the municipal court’s failure to determine whether a factual basis existed for the plea entered. Brownlee was accused in the criminal trespass citation of “refus[ing] to leave Grady Hospital premise[s] after being told 2 to 3 times,” and of “panhandling when told to leave.” In the municipal court proceeding, Brownlee pled not guilty to criminal trespass, the officer issuing the citation was sworn, and the court was then informed of the negotiated plea. At that point, Brownlee pled guilty to “Disorderly Conducts Section Two.” The court then asked a series of questions dealing with Brownlee’s awareness of the rights he was waiving by entering the plea. Brownlee answered affirmatively to each question posed. Brownlee was asked if the sentence proposed was in accord with his understanding and whether he agreed to having the case handled “on the city level.” Brownlee again answered in the affirmative. The court then accepted the “reduced” plea.

The ordinance to which Brownlee pled guilty provides that it is unlawful for persons within the city limits “[t]o act in a violent or tumultuous manner toward another whereby the property of any person is placed in danger of being damaged or destroyed.” The record reveals only allegations that Brownlee refused to leave Grady Hospital when told to do so and that he was panhandling at that time. It does not appear from the record that Brownlee reacted in a violent or tumultuous manner toward anyone or placed any property in danger of being destroyed as required under the Atlanta ordinance.

A court “ ‘shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.’ ” Purvis v. Connell, 227 Ga. 764, 767 (182 SE2d 892) (1971); see Minchey v. State, 155 Ga. App. 632, 633 (1) (271 SE2d 885) (1980). The municipal court did not inquire into Brownlee’s understanding of the nature of the violation to which he confessed guilt, and the record likewise does not show any factual basis for the plea independent of such an inquiry. The superior court therefore erred in denying Brownlee’s writ of certiorari. See generally Collum v. State, 211 Ga. App. 158 (438 SE2d 401) (1993); Andrews v. State, 237 Ga. 66 (1) (226 SE2d 597) (1976).

Decided February 24, 1994.

Harry S. Gardner, Rosalie M. Joy, for appellant.

Raines F. Carter, Victor E. Hendeson, for appellee.

Since we do not base our decision on Uniform Superior Court Rule 33.9, we need not consider the appellant’s contention that the rule is applicable in the Atlanta Municipal Court. See Collum, supra at 160 (Beasley, P. J., concurring specially).

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.

       “Notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.”


text:
    A93A2521.
    THOMPSON v. THE STATE.
    (442 SE2d 771)
   Pope, Chief Judge.

Defendant Moses L. Thompson was tried before a jury and found guilty of five counts of child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Defendant argues the trial court committed reversible error by refusing to excuse for cause a venireman who worked full-time at Phillips Correctional Institute. Although the record does not show whether defendant used a peremptory challenge to strike this potential juror, the use of peremptory challenges no longer is determinative of whether an accused has been harmed by the failure to excuse unqualified or disqualified venire. Hayes v. State, 261 Ga. 439, 441 (2) (405 SE2d 660) (1991). The transcript of voir dire shows that while this juror was a full-time corrections employee and maintained current certification as a Georgia peace officer, she possessed no powers of arrest and would require additional training and certification to work as a law enforcement officer.

Police officers employed full-time must be excused for cause in a criminal case if timely challenged. Hutcheson v. State, 246 Ga. 13 (268 SE2d 643) (1980). See also Cargill v. State, 255 Ga. 616, 626 (6) (340 SE2d 891) (1986), cert. denied 479 U. S. 1101 (107 SC 1328, 94 LE2d 180) (1987). However, this rule does not apply to corrections officers who do not have arrest powers. Kent v. State, 179 Ga. App. 131 (345 SE2d 669) (1986); see also Davis v. State, 255 Ga. 598, 601 (3) (340 SE2d 869), cert. denied 479 U. S. 870 (107 SC 245, 93 LE2d 170) (1986). The trial court did not abuse its discretion by refusing to excuse this potential juror for cause.

2. Defendant enumerates the denial of his motion for directed verdict of acquittal as to each molestation charge on the ground that there is no evidence that the acts proved at trial were within the applicable statute of limitation.

The indictments were returned on August 18, 1992. The alleged acts of molestation occurred between September 1, 1987 and August 31, 1989, the exact dates being unknown. These acts thus precede the effective date of OCGA § 17-3-2.1, which tolls the commencement of the limitation period where the victim of certain crimes is under the age of 16 on the date of the violation.

Defendant’s argument, both below and on appeal, that the limitation period is four years is incorrect. The applicable limitation period is set forth in OCGA § 17-3-1 (c) which provides in part that: “prosecution [s] for felonies committed against victims who aré at the time of the commission of the offense under the age of 14 years must be commenced within seven years after the commission of the crime.” Compare Martin v. State, 196 Ga. App. 145 (1) (395 SE2d 391) (1990) (four-year statute of limitation for acts of molestation occurring before July 1, 1987).

In this case, the victim was born on August 19, 1982. The evidence showed that the molestations began when the victim was five or six, while she lived in a Gwinnett County apartment. The mother testified that they lived in Gwinnett from 1986 to 1990. Accordingly, the evidence authorized the determination that the acts of molestation charged occurred in Gwinnett, after July 1, 1987, and within the applicable seven-year statute of limitation. The trial court correctly denied defendant’s motion for directed verdict on this ground.

3. From the stand, the victim recanted an earlier accusation that defendant had forced her to touch his genitals. Defendant moved for a directed verdict as to this charge and the denial of that motion is enumerated as error. However,'the victim’s earlier inconsistent statement to adults that defendant had so forced her to touch him became substantive evidence of the truth of that charge. Patterson v. State, 212 Ga. App. 257 (1) (441 SE2d 414) (1994). The trial court correctly denied defendant’s motion for directed verdict.

Decided February 24, 1994.

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1837.
    MARTIN et al. v. ROCCORP, INC.
    (441 SE2d 671)
   Pope, Chief Judge.

This case arises from a contract for the sale of most of the assets of A & W Pet Care Products to Petscription, Inc. (“purchaser”) by agreement dated December 29, 1987. As part of that agreement, the purchaser agreed to pay E. Thomas Martin and Rob R. Adams, Jr., certain sums in consideration for their agreement not to compete for a period of ten years. The agreement also contained an arbitration clause and a clause providing that the agreement should be construed in accordance with the laws of the State of Georgia. That agreement was subsequently modified several times by the parties in the manner provided by the agreement. One modification, a document titled “Purchase Agreement & Supply Contract Modification” (the “modification”), substituted RocCorp, Inc. as the purchaser. Disputes later arose between the parties to this litigation concerning the effect of this modification on the agreement.

The disputes were submitted for arbitration, with Adams and Martin asserting a breach of contract claim against RocCorp, and RocCorp submitting a claim for damages for alleged non-compete violations by Martin and Adams. After the arbitration hearing, the arbitrator issued an award ordering RocCorp to pay Adams and Martin a certain sum plus interest on their breach of contract claim, to be paid in accordance with the formula set forth in the arbitration award, and ordering Martin and Adams to pay RocCorp $75,990 for damages on RocCorp’s claim based on violations of the non-compete clause. Adams and Martin filed a motion in Gwinnett Superior Court to vacate the award. This appeal follows the denial of their motion.

Adams and Martin argue the superior court should have set aside the award of the arbitrator because the arbitrator considered parol evidence and in so doing ignored Georgia law concerning contract construction. They further argue that because the arbitrator overstepped his authority by ignoring applicable Georgia law concerning contract construction, they are entitled to vacation of the award of the arbitrator pursuant to OCGA § 9-9-13 (b) (3).

We do not agree. In reviewing the trial court’s order in this case we are mindful that “[t]he function of the trial court in proceedings to confirm or vacate an arbitration award should be severely limited in order not to frustrate the purpose of avoiding litigation by resorting to arbitration.” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (4) (335 SE2d 708) (1985). Assuming the choice of law provision in the agreement should be construed as a restriction on the arbitrator that he must adhere to the construction of contract rules applicable in Georgia as Martin and Adams argue, Georgia law provides that “ ‘[t]he construction [that] will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.’ OCGA § 13-2-2 (4).” Caribbean Lumber Co. v. Anderson, 205 Ga. App. 415, 417 (2) (422 SE2d 267) (1992). The argument advanced by Adams and Martin that “[u]nder the plain and unambiguous meaning of the words of the . . . agreement RocCorp, Inc. is obligated to pay to [Martin and Adams] 5% of the first $510,417 of the annual net sales of RocCorp, Inc. for the specified nine-year period,” ignores that rule of construction.

Although we agree with Martin and Adams that the language of the agreement is not ambiguous, paragraph 8 of the agreement cannot be read in a vacuum as they urge. That paragraph is titled “Payment for Non-Competition.” It must be read with paragraph 7 of the agreement, titled “Non-Competition,” which provides that Martin and Adams will not compete with the purchaser for a period of ten years with regard to the pet care products listed in Attachment # 1. In paragraph 8, the purchaser agrees to pay to Martin and Adams in consideration for their agreement not to compete as outlined in paragraph 7 the following amounts:

“A. For a period of twelve (12) months commencing with the closing date, 2½ % of the net sales of PURCHASER on the first $512,500 of such sales during said twelve month period.

“B. For a period of one hundred eight (108) months commencing twelve months and one day after closing, 5% of the net sales of PURCHASER on the first $510,417 of such sales in each calendar year.” (Emphasis supplied.)

When the language of paragraph 8 is construed in conjunction with paragraph 7, the intent of the payment provision in paragraph 8 is clear: the non-competition payments required by paragraph 8 shall be made from the proceeds realized from the sale of those products listed in Attachment # 1 (which were initially sold to Petscription, Inc.), up to a certain maximum amount each year.

Decided January 6, 1994

Reconsideration denied February 25, 1994.

R. Mansell McCord, Jr., Carl V. Kirsch, for appellants.

Shapiro, Fussell, Wedge & Smotherman, Seth R. Price, for appellee.

The arbitrator reached the same conclusion in his award. It provides in pertinent part “[o]n [Martin’s and Adams’] claim for damages for breach of contract, RocCorp, Inc. shall pay to each claimant, E. Thomas Martin and Rob R. Adams, Jr., five percent (5%) of the net sales of any . . . RocCorp products in which the product registrations have the word ‘Petscription’ in them; in which sales have been made using the ‘Petscription’ name or trademark in the advertising; or which have the word ‘Petscription’ in the name or the label. These payments are to be based on the net sales of such products sold in each calendar year from and after October 1, 1989 thru the termination of the obligations continuing in Section 8B of the Purchase Agreement dated December 29, 1987. The total net sales of such products . . . shall for the purpose of calculating the five percent (5%) payment, not exceed $510,417.00 in each calendar year.” Thus, regardless of whether the arbitrator exceeded his authority by considering parol evidence in this case, the superior court correctly refused to vacate the decision of the arbitrator, because when the rules applicable to contract construction are applied in this case, the arbitrator’s decision is correct. Neither Martin nor Adams suffered harm or prejudice as the result of the arbitrator’s alleged error and they are not entitled to vacation of the award pursuant to OCGA § 9-9-13. Bartlett v. Dimension Designs, Ltd,., 195 Ga. App. 845 (3) (395 SE2d 64) (1990). This court will affirm the judgment of a superior court if it is right for any reason.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A1966.
    STINSON et al. v. ALLSTATE INSURANCE COMPANY et al.
    (441 SE2d 453)
   Johnson, Judge.

While under the influence of drugs and alcohol, Richard Patrick Kaminski fired a high-powered hunting rifle seven times through the front door of the house in which his sister and former wife lived. One of the bullets hit and instantly killed Timothy Stinson, a cousin of his former wife. Kaminski pled guilty to one count of involuntary manslaughter and two counts of aggravated assault. Subsequently, John and Winifred Stinson, the parents of the deceased, brought a wrongful death action against Kaminski indirectly seeking recovery under a homeowner’s insurance policy issued by Allstate to Kaminski’s parents, with whom Kaminski allegedly lived at the time of the shooting. Allstate filed this declaratory judgment action, asserting that there is no coverage under the policy for the criminal acts committed by Kaminski while he was a resident of his parents’ household. Following a jury trial, the court entered judgment on the jury’s verdict, which found that Allstate has no duty to defend or indemnify its insured, Richard Patrick Kaminski, in any suit or for any damages arising from an incident in which Timothy Stinson sustained fatal injuries. The Stinsons appeal.

1. In their first enumeration of error, the Stinsons assert that the trial court erred “in failing to construe the exclusionary clause against the insurer by instructing the jury that coverage is excluded only if the insured (Kaminski) should have known that injury would have likely resulted from acts which were intentional or criminal on his part.”

The exclusion in the policy is stated as follows: “We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.” The Stinsons and their co-defendants argued to the trial court that the language of the exclusion means that the bodily injury or property damage had to be reasonably expected by the actor who committed the intentional or criminal act. Stated differently, “[w]ould Kaminski have reasonably expected bodily injury or property damage to result from his intentional or criminal acts?” Allstate argues that the exclusion does not ask whether the insured reasonably expected the injury or property damage, but rather whether an objective factfinder would have reasonably expected the injury or damage to occur as a result of the insured’s acts. Stated differently, “Would an objective person reasonably expect injury or damage to result from the intentional or criminal acts of the actor?”

The trial court found that particular language of the exclusion to be ambiguous and submitted the issue to the jury. This particular part of the exclusion has not been analyzed in detail by this court as far as our research reveals. However, in construing the same exclusion, Judge Beasley noted in her special concurrence in Allstate Ins. Co. v. Jarvis, 195 Ga. App. 335 (393 SE2d 489) (1990) that “[t]he policy additionally provides that even where the insured did not have, in fact (that is to say, no actual), intent to injure, acts are excluded from coverage if they may ‘reasonably be expected to result. . . .’ The more universal objective test rather than the subjective intent of the insured pertains to this branch of the exclusion.” Id. at 338. The majority’s discussion in Jarvis, however, focuses upon the second phrase of the exclusion and the question of whether, under the facts of that case, the act itself was intentional or criminal. It allows a jury to consider an expert witness’ testimony regarding the state of mind of the insured.

We do not agree with the trial court in its finding that the phrase at issue in this case is ambiguous. The common understanding of the words “which may reasonably be expected to result from the intentional or criminal acts of an insured person” clearly creates a universal objective standard, as Judge Beasley noted in Jarvis. Therefore, this phrase being unambiguous, and its plain meaning being that urged here by Allstate, the refusal of the trial court to instruct the jury as the Stinsons requested was not error. The jury was thus properly allowed to determine whether the injury sustained by Stinson was to be reasonably expected from the act of firing a rifle seven times through a closed door from the perspective of the “reasonable person,” acting in the same or similar circumstances as Kaminski, a completely familiar objective standard in tort law. Furthermore, the court did charge the jury on the general principle that contracts of insurance are to be construed or interpreted most strongly against the insurer, particularly where the insurer denies coverage based upon a policy exclusion.

2. Appellants assert that the trial court erred in refusing to give two requested charges, numbers 13 and 15, in their entirety.

(a) Proffered charge number 13 reads: “I charge you that if you find that because of the influence of alcohol, drugs or narcotics Richard Patrick Kaminski’s mind became so impaired as to render him incapable of intentionally doing the act charged or of understanding that a certain consequence would likely result from it, then your verdict must be in favor of the defendants. Whether or not Richard Patrick Kaminski was capable of intentionally doing the act charged or of understanding the consequences of said act is a question for you to determine.” Appellants suggest that the proffered charge comes from State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (364 SE2d 62) (1987). The trial judge deleted the first sentence of the proffered charge when it was read to the jury.

One reading of the sentence, “[I]f you find that because of the influence of alcohol, drugs or narcotics Richard Patrick Kaminski’s mind became so impaired as to render him incapable ... of understanding that a certain consequence would likely result from it, then your verdict must be in favor of the defendants” construes the exclusion in accordance with the defendants’ theory of the case, which, for the reasons discussed in Division 1 above, the trial court correctly refused to do. Reading the first sentence in its alternative form, “if you find that because of the influence of alcohol, drugs or narcotics Richard Patrick Kaminski’s mind became so impaired as to render him incapable of intentionally doing the act charged . . . then your verdict must be in favor of the defendants” misstates the specific language of the policy at issue in this case, which specifically excludes coverage for criminal as well as intentional acts. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper. [Cits.]” (Emphasis in original.) Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839 (1) (418 SE2d 119) (1992). The trial court did not err in refusing to give the requested charge in its entirety.

Decided February 11, 1994

Reconsideration denied February 25, 1994

Sell & Melton, Russell M. Boston, for appellants.

Thompson & Smith, Larry I. Smith, for appellees.

(b) Requested charge 15 states: “I charge you that one commits intentional or criminal acts when the actor desires to cause certain consequences or the actor believes that certain consequences are substantially certain to result from his acts, but mere knowledge and appreciation of risk, short of substantial certainty is not the equivalent of such intentional or criminal act.” In their brief, appellants assert that this statement of law is from Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987). One judge specially concurred, and four judges dissented in Pennsylvania, and therefore it is not binding authority. Furthermore, the discussion of intent in the Pennsylvania case is limited to the context of intent with respect to tort and does not make any reference to intent with respect to criminal acts. The charge as requested goes beyond the holding of the case it purports to control the issue. The trial court did not err in refusing to give it. Morris v. State Farm Mut. Auto. Ins. Co., supra at (2).

3. Appellants’ assertion that the trial court erred in giving Allstate’s requested charges 4 and 5 is not supported in their brief by argument or citation of authority and is therefore deemed abandoned in accordance with Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2197.
    CHEELEY-TOWNS v. RAPID GROUP, INC.
    (441 SE2d 452)
    Decided February 11, 1994
    Reconsideration denied February 25, 1994

      George P. Graves, for appellant.
      Sidney L. Moore, Jr., for appellee.
   Smith, Judge.

Brenda Cheeley-Towns appeals from the trial court’s grant of summary judgment sua sponte to Rapid Group, Inc. The trial court entered its summary judgment order on January 20, 1993. On February 19, 1993, Rapid Group filed a motion seeking expenses of litigation pursuant to OCGA § 9-15-14. On March 5, 1993, Cheeley-Towns responded to Rapid Group’s motion for litigation expenses and filed a motion for reconsideration of the judgment of January 20. On June 8, 1993, the trial court entered an order granting Rapid Group’s motion for litigation expenses and denying Cheeley-Towns’ motion for reconsideration. Cheeley-Towns filed her notice of appeal on June 18, 1993.

1. The only directly appealable order of record is the order of January 20, 1993 granting summary judgment to Rapid Group. “ ‘The appeal was not filed within 30 days from this order, however, but was filed subsequent to the denial of a motion for reconsideration of this order several months later. It has repeatedly been held that, unlike a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict, a motion for reconsideration does not extend the time for filing a notice of appeal. (Cits.) . . . Thus we lack jurisdiction to entertain the appeal.’ [Cits.] ‘(E)ven if we were to construe appellant’s (motion for reconsideration) as a motion to set aside, this court would still have no jurisdiction over the appeal. Appeals from the denial of such motions are discretionary and appellant did not follow the applicable procedure to secure appellate review of the denial of (its) motion. (Cits.)’ [Cit.]” Alvin Lee Co. v. Garmon Electrical Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989).

2. An appeal from an award of expenses of litigation under OCGA § 9-15-14 is likewise discretionary, OCGA § 5-6-35 (a) (10), when not “appealed as part of a judgment that is directly appealable.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 526 (4a) (360 SE2d 566) (1987). Since, as held in Division 1, we lack jurisdiction of the underlying claim in the trial court, a direct appeal from the award of expenses of litigation will not lie. Haggard, supra; Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987).

Appeal dismissed.

Beasley, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A93A1613, A93A2227.
    BICE v. THE STATE (two cases).
    (441 SE2d 507)
   Cooper, Judge.

Appellant pled guilty to two counts of violating the Georgia Controlled Substances Act. After the trial court imposed sentence of eight years with three to serve and the balance probated, appellant orally moved to withdraw his guilty pleas. The trial court denied the motion in open court. Appellant subsequently filed a written motion to withdraw his guilty pleas and a petition for writ of habeas corpus. The trial court entered an order denying both motions, and appellant appeals that order.

1. The transcript from the plea hearing reflects that at the call of appellant’s case, the prosecutor announced that there would be a non-negotiated plea in the case and that appellant was represented by counsel. After summarizing the State’s evidence against appellant, the prosecutor informed the court that since it was a non-negotiated plea there was no recommendation by the State as to sentence. The trial judge then questioned appellant to determine if the pleas were intelligently and voluntarily given and specifically inquired as to appellant’s understanding that he was pleading guilty without a recommendation by the State. Appellant acknowledged his understanding of this, and the judge advised appellant and his counsel that he could sentence appellant up to 15 years in prison. Immediately following the pronouncement of sentence, appellant moved to withdraw the guilty pleas and after hearing argument the trial court orally denied the motion. Appellant subsequently filed a motion to withdraw the plea and after a second hearing, the motion was denied.

“Once sentence is orally pronounced by the judge, a defendant’s statutory right to withdraw a guilty plea disappears. [Cits.] At that point, a guilty plea may be withdrawn only upon the exercise of the judge’s discretion. As it is said: ‘After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion. [Cit.]’ [Cit.]” Covington v. State, 196 Ga. App. 498 (396 SE2d 298) (1990). Appellant’s counsel argues that during a non-transcribed bench conference held prior to the plea proceedings, he understood that the court would allow appellant to withdraw the guilty plea if appellant were unsatisfied with the sentence. At the hearing held on appellant’s motion to withdraw guilty pleas, the trial judge who pronounced sentence testified that during the bench conference, appellant’s counsel wanted to discuss plea negotiations, and the trial judge informed appellant’s counsel that he did not participate in plea negotiations. The judge further testified that he informed appellant’s counsel that if they entered a plea on a non-negotiated basis, he would not allow a withdrawal of the plea. In support of his motion to withdraw guilty pleas, appellant submitted his affidavit in which he stated that following a bench conference with the judge, his counsel informed him that he could withdraw his plea if he were not satisfied with the sentence. However, it is clear that during the plea hearing, the trial judge asked appellant if he understood that he was pleading guilty without a recommendation from the State, and even if there were a recommendation from the State, the judge could sentence appellant to whatever was authorized by the law. Furthermore, in light of the judge’s testimony as to what he told appellant’s counsel during the bench conference, it is hard to imagine that appellant’s counsel misunderstood the judge’s intention and thereby misinformed appellant about his ability to withdraw the guilty plea. See Wood v. State, 190 Ga. App. 179 (1) (378 SE2d 520) (1989); Marshall v. State, 128 Ga. App. 413 (197 SE2d 161) (1973). We have examined the record and the evidence and find that the trial judge did not abuse his discretion in denying appellant’s motion to withdraw his pleas of guilty.

Decided February 25, 1994.

Daniel B. Kane, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

2. Our consideration and disposition of Case No. A93A1613 renders Case No. A93A2227 moot, and that appeal is consequently dismissed.

Judgment affirmed in Case No. A93A1613. Appeal dismissed in Case No. A93A2227.

Beasley, P. J., and Smith, J., concur.

       We transferred this case to the Supreme Court as a case involving habeas corpus relief. Ga. Const, of 1983, Art. VI, Sec. VI, Par. III (4). However, the Supreme Court transferred the case back to this court, and from that transfer we conclude that we have jurisdiction to consider this appeal. See Bishop v. State, 179 Ga. App. 606 (1) (347 SE2d 350) (1986).


text:
    A93A2334.
    WOODY v. THE STATE.
    (441 SE2d 505)
   Smith, Judge.

Johnny Long Woody was indicted by a Fulton County grand jury on a felony charge of habitual violator, OCGA § 40-5-58. The indictment alleged that Woody “on the 17th day of September, 1992 did unlawfully operate a motor vehicle after accused had received notice that his driver’s license had been revoked under the provisions of Section 40-5-58 of the Driver’s Licensing Act, notice to accused having been given September 28, 1987, in accordance with said laws, and accused thereafter had not obtained a valid driver’s license.” Woody filed a “Motion to Dismiss/General Demurrer” in which he challenged the date of notice, contending that notice had actually been given to him on August 15, 1987. The State acknowledged that the August date of notice was correct. The trial court granted the motion as to the felony charge but allowed the case to proceed on a misdemeanor charge under the same Code section. Woody’s motion for a continuance was denied.

Woody then entered a plea of guilty to the misdemeanor charge under OCGA § 40-5-58, reserving his right to appeal the trial court’s refusal to dismiss the misdemeanor charge. See Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991).

1. Woody first enumerates as error the failure of the trial court to dismiss the indictment in toto for a fatal variance between the offense charged in the indictment and that for which he would have been tried absent his plea of guilty.

OCGA § 40-5-58 (c) (1) by its terms also defines a misdemeanor lesser included offense of operating a motor vehicle after revocation of a driver’s license and before issuance of a new license. This misdemeanor offense differs from the offense of felony habitual violator only in that it does not require the element of operating the motor vehicle within five years of notice of revocation. “A crime is ‘included’ within another if, as a matter of fact, or ‘alternatively’ as a matter of law, the conditions stipulated by OCGA § 16-1-6 are satisfied.” (Citations and punctuation omitted, emphasis in original.) Parks v. State, 180 Ga. App. 31, 32 (4) (348 SE2d 481) (1986) (driving with a suspended or revoked license under OCGA § 40-5-121 a lesser included offense of habitual violator under OCGA § 40-5-58). Since the misdemeanor offense does not contain the element of operating a motor vehicle within five years of notice of revocation, any allegations regarding the time at which Woody committed the offense of operating a motor vehicle after revocation of his license and before issuance of a new license were unnecessary. “In criminal law an unnecessarily minute description of a necessary fact must be proved as charged; but an unnecessary description of an unnecessary fact need not be proved.” (Citations and punctuation omitted.) Williams v. State, 196 Ga. App. 154, 156 (1) (395 SE2d 399) (1990).

Decided February 25, 1994.

Brian Steel, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

2. Woody also enumerates as error the trial court’s denial of his motion for a continuance, made on the day of trial. However, Woody did not expressly reserve this issue for appeal. The transcript reveals that the guilty plea was accepted conditioned on Woody’s right to appeal “based on an interpretation of Code Section 40-5-58 (c) (1).” Despite Woody’s contention that the issue was preserved, the transcript contains no reservation of the right to appeal the denial of Woody’s motion for a continuance. “[U]nless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved.” Mims v. State, supra at 279.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2554.
    MACK v. THE STATE.
    (441 SE2d 503)
   Smith, Judge.

Angel Mack was convicted by a jury of trafficking in cocaine, and her motion for new trial was denied. She appeals, enumerating as error only the trial court’s finding that her trial counsel was effective.

Mack asserts that her trial counsel was ineffective in six ways. However, only one is supported by argument and citation of authority. Consequently, the other enumerated alleged instances of ineffectiveness are deemed abandoned. Court of Appeals Rule 15 (c) (2). We address only Mack’s argument that trial counsel was ineffective in failing to file a motion to suppress the cocaine found in her car.

Under the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), in order to show ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense. Brogdon v. State, 255 Ga. 64, 67 (3) (335 SE2d 383) (1985). In the order denying Mack’s motion for a new trial, the trial court ruled that had a motion to suppress been filed it would not have been successful because Mack “freely and voluntarily consented to the search of her vehicle.” It may arguably have been better practice for trial counsel to file such a motion. However, if the trial court’s ruling is correct, trial counsel’s failure to do so did not prejudice Mack’s defense, and her burden under Strickland has not been met.

The relevant evidence presented at trial showed that an anonymous tip was telephoned to the Atlanta Police Department’s Red Dog Narcotics Unit. The tipster informed the police that a tan car was at a certain intersection and that its occupants were selling drugs. The license tag of the car was also given. Three officers observed a vehicle meeting the description, and they turned their patrol car around to determine whether the license tag matched as well. After confirming that the license tag matched the one described in the tip, the officers left the patrol car and approached the vehicle. Officer R. W. Anderson testified the car was parked on the wrong side of the street with its engine running and had two occupants. A woman, later identified as Mack, was in the driver’s seat, and a man was in the front passenger seat. Officer Anderson approached the driver and asked for her driver’s license and insurance card. The driver began looking for both. When she opened the glove compartment, Investigator J. Sellers, who was positioned on the passenger side, observed a gun and signaled Anderson. Concerned for their own safety, the officers then had the car’s occupants step out of the car. Anderson testified that the driver asked him why they had been stopped, and he told her about the anonymous tip. According to Anderson, the driver then told him she “didn’t have any drugs, and if I wanted to, I could look in the vehicle and see if there were any drugs in the vehicle.” Sellers testified that Anderson asked if he could search the car and Mack consented. Mack admitted she had given Anderson permission to search the car but denied she had been told they were looking for drugs.

Anderson looked under the driver’s seat and saw nothing. He then reached up and flipped down the sun visor on the driver’s side, and a gold and white box fell to the seat and spilled its contents: Mack’s driver’s license and several large “cookies” of crack cocaine. Mack and the passenger were then arrested. Sellers testified the cocaine weighed sixty-six grams and was packaged in nine plastic bags inside the box. A forensic chemist from the State Crime Laboratory testified that the nine pieces of plastic bags containing cocaine weighed fifty-eight grams.

1. Mack first argues that the initial stop of her car was unlawful. We agree with Mack that under Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990), an anonymous tip whose reliability may not be tested because it makes no prediction about future behavior does not by itself authorize officers to stop a vehicle. See, e.g., Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992); Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990). This court, however, has acknowledged that such a tip does warrant further police observation and investigation. Moreland, supra at 219; Johnson, supra at 539-540. Here, the police came upon the car described in the tip and observed that it was parked on the wrong side of the street with its engine running, a violation of OCGA § 40-6-200 (a). Although the officers were certainly conscious of the anonymous tip when they stopped Mack, they were not required to refrain from stopping her for the traffic violation merely because they suspected her of selling drugs. See generally State v. Tate, 208 Ga. App. 117, 121 (430 SE2d 9) (1993). They were authorized to stop Mack and check her driver’s license and insurance card.

2. Citing State v. Diaz, 191 Ga. App. 830, 832 (383 SE2d 195) (1989), Mack also contends that Anderson’s search exceeded the scope of her consent. She argues that she gave Anderson permission only to “look in” her car, but he turned down the sun visor. See also State v. Corley, 201 Ga. App. 320, 321 (411 SE2d 324) (1991).

The facts in Diaz are clearly distinguishable from those here. First, unlike the defendant in Diaz, Mack in her own testimony admitted that Anderson asked if he could “search” her car. Second, the decision in Diaz turned at least partly on the fact that “the officer, who merely asked for permission ‘to look inside’ the car, gave no indication of the purpose of his investigation,” and the defendant testified he thought the officer merely wished to see if anyone else was in the van. Gossett v. State, 199 Ga. App. 286, 287 (1) (c) (404 SE2d 595) (1991); see Diaz, supra at 831. Here, as in Gossett, the officer testified that he told Mack they had received a tip that she was selling drugs, indicating clearly the purpose of his proposed investigation. Although this testimony was contradicted by that of Mack, the trial court in deciding the merits of a motion to suppress would be authorized to believe the testimony of Anderson. See generally Wells v. State, 206 Ga. App. 513, 515 (1) (426 SE2d 231) (1992).

Finally, unlike either Diaz or Corley, the contraband was not found in the search of closed containers in the vehicle. The minor physical exertion required to turn down the sun visor caused the contraband to fall onto the seat in plain view. See Garcia v. State, 207 Ga. App. 653, 656 (1) (c) (428 SE2d 666) (1993).

A trial court’s finding that a defendant has been afforded effective assistance of counsel must be affirmed unless clearly erroneous. Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991). The trial court’s determination that the cocaine was found in a search of Mack’s car pursuant to Mack’s valid consent to the search was supported by evidence. It was not, therefore, clearly erroneous. Consequently, the contraband would not have been suppressed had a motion to suppress been filed. It follows that Mack’s trial counsel was not ineffective in failing to file such a motion. The trial court correctly denied Mack’s motion for new trial on that ground.

Decided February 25, 1994.

Daniel B. Kane, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Donald P. Geary, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge. Pope, Chief Judge,

text:
    A93A2570.
    JOHNSON v. THE STATE.
    (441 SE2d 508)
   Birdsong, Presiding Judge.

Kenneth Johnson appeals his conviction for aggravated assault. He contends the trial court erred by giving erroneous charges, by denying his motion for a mistrial, and by denying his request for a limiting instruction. Held:

1. Johnson’s first enumeration of error alleges “the trial court committed harmful error when it instructed the jury that the State need not prove the allegations in the indictment, but instead could alter the allegations so as to reduce the burden of proof.” Review of the charge given by the trial court shows that no such charge was given. Instead, this argument is based on the trial court’s instruction that when an indictment alleges a crime was committed in more than one way, proof that the crime was committed in one of the separate ways alleged is sufficient. As this instruction is a correct statement of the law, the enumeration of error is without merit. Lubiano v. State, 192 Ga. App. 272, 276-277 (384 SE2d 410); Chapman v. State, 173 Ga. App. 824, 825 (328 SE2d 425).

2. The second enumeration of error asserts that “the trial court committed harmful error when it gave erroneous instructions on the law in its final charge to the jury.” This enumeration does not set out separately each error relied upon (OCGA § 5-6-40), and, moreover, such a broad allegation of error is too general to present any question for review. A reviewing court has no authority to decide any issue on appeal unless the error is enumerated plainly and specifically. An error “so indefinitely stated as to leave a reviewing court uncertain as to the error complained of can not be considered.” Pepper v. Pepper, 169 Ga. 832, 833 (10) (152 SE 103).

3. Johnson’s third enumeration of error contends that the trial court erred by denying his motion for a mistrial and by allowing the State to make improper, prejudicial comments in closing argument regarding objections by defense counsel and inferences which might be drawn from Johnson’s testimony. Although counsel may not argue prejudicial facts which are not in evidence ... it is permissible for counsel to draw deductions from the evidence regardless how illogical and unreasonable. Adams v. State, 260 Ga. 298, 299 (392 SE2d 866). We find that the prosecutor’s arguments regarding Johnson’s supervised visitation and his willingness to accept probation falls well within this rule. Moreover, we do not find that the record supports Johnson’s allegation that the prosecution argued that appellant’s objections were an attempt to hide or conceal evidence from the jury. Further, considering the prosecutor’s argument in light of the overwhelming evidence of appellant’s guilt, we find that any error was harmless. Alexander v. State, 263 Ga. 474, 477-478 (435 SE2d 187). Accordingly, this enumeration of error is without merit.

4. Finally, Johnson alleges the trial court erred by denying his request for a limiting instruction regarding the improper evidence of subsequent difficulties between the victim and Johnson. As the transcript shows that the trial court gave a limiting instruction in its final charge to the jury on the purposes for which this evidence could be considered and it is not error to give the limiting instruction in the final charge, there was no error. McCann v. State, 203 Ga. App. 880, 883-884 (418 SE2d 144); Ross v. State, 199 Ga. App. 767, 769 (406 SE2d 101). Although Johnson also asserts that the limiting instruction given by the trial court was defective, we cannot consider this issue because it was not enumerated as error. Appellate review cannot be enlarged or transformed to include errors not enumerated. Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507); Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396).

Judgment affirmed.

Andrews, J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

Although I agree the trial court’s judgment should be affirmed, I write separately to comment on the majority’s disposition of defendant’s second enumeration of error. This enumeration was stated very generally: “The trial court committed harmful error when it gave erroneous instructions on the law in its final charge to the jury.” Yet this general enumeration of error was then elucidated by defendant in his brief, in which he set forth specific and detailed arguments challenging two of the trial court’s jury instructions.

Under the Appellate Practice Act, an enumeration of error can and often will indicate the subject matter of the appellant’s argument “ ‘only in the most general way.’ ” MacDonald v. MacDonald, 156 Ga. App. 565, 568 (1c) (275 SE2d 142) (1980). “It follows that without the aid of the brief of counsel, this court frequently cannot identify or pass upon the contention which the appellant seeks to urge as cause for reversal. Indubitably, where the error enumerated is not intelligible in itself the brief must make it so, or this court has nothing before it for decision.” Wall v. Rhodes, 112 Ga. App. 572 (1) (145 SE2d 756) (1965). See also MacDonald, 156 Ga. App. at 566-569 (noting that although every enumeration had to clearly specify the error alleged before passage of the Appellate Practice Act of 1965, courts will now look to the notice of appeal, the record and the brief to ascertain the error complained of). We cannot consider an appellant’s argument if he has enlarged or changed an enumeration of error, but we can and should if he states his enumeration in the generality and then presents his argument in his brief with greater specificity. I therefore do not agree that we cannot consider defendant’s arguments under his second enumeration of error because they were not plainly and specifically set forth in his enumeration.

Defendant also set forth two assertions of error within one enumeration of error. We have held that because the practice of including more than one assertion of error in' a single enumeration of error “creates a fair risk that ambiguity, misdirection, or confusion as to the errors asserted will occur,” we may, in the exercise of our sound discretion, elect to treat one or more of the asserted errors as abandoned. West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567) (1990). Here, there is no risk of ambiguity or confusion because although two errors are asserted under the second enumeration of error, they are clearly delineated and separately discussed as “2A” and “2B.” Under these circumstances, I think we should address the merits of both the asserted errors.

Defendant argues in this enumeration of error that the trial court erred in (a) giving an unrequested charge on good character and (b) defining the offense of aggravated assault in his charge to include assault with intent to murder as well as assault with a deadly weapon, even though defendant was only charged in the indictment with assault with a deadly weapon. The trial court did not err in charging on good character because defendant presented evidence of his good character and the instruction given was a correct statement of the law. See Barfoot v. State, 173 Ga. App. 461 (326 SE2d 791) (1985). And the allegedly overbroad definition of aggravated assault in the charge was not harmful error, as the trial court read the indictment to the jury, provided the jury with the indictment for its deliberations, and instructed the jury that the indictment formed the issue they were impaneled to decide. See Wimby v. State, 200 Ga. App. 217 (407 SE2d 773) (1991). Accordingly, both of the errors asserted in defendant’s second enumeration of error are without merit, and I agree that defendant’s conviction should be affirmed.

Decided February 25, 1994.

Shandor S. Badaruddin, for appellant.

Lewis R. Slaton, District Attorney, Nate Dobson, Jr., Vivian D. Hoard, Assistant District Attorneys, for appellee.

        Pepper v. Pepper, 169 Ga. 832 (152 SE 103), cited by the majority, is a 1930 case.


text:
    A93A1974.
    MILLER v. THE STATE.
    (441 SE2d 443)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and appeals from the judgment of conviction entered on the jury verdict.

Viewed in favor of the jury’s verdict, the evidence reveals that on November 28, 1992, Kim Dorsey and Bernay Brown were working at a convenience store in Clayton County, Georgia. At approximately 9:30 p.m., a man entered the store and demanded at gunpoint that they turn over the money from the register. Dorsey gave the money to the man and he left the store. Both Brown and Dorsey gave a description of the man to the police. The next day, Cassandra Pitts was working in the store when she noticed a man who fit the general description of the robber standing on the outside of the store. Pitts called Dorsey to describe the man, and while they were on the telephone, the man came in the store and asked for the key to the men’s room. When the man left, Pitts called the police and gave them his description, and Dorsey went to the store to view a videotape which showed the man in the store with Pitts. Dorsey identified the man in the tape as the man who robbed the store the previous night. Later that night, the police officer investigating the case saw a man in the area of the convenience store who fit the general description of the robber. The police officer questioned the man, who was subsequently identified as appellant. Appellant was very cooperative and accompanied the police officer to the police station so that the officer could take his picture. Appellant was released that night but was subsequently arrested and charged with the armed robbery. At trial, Dorsey and Brown identified appellant as the man who robbed the store, and Pitts identified appellant as the man who was in the store the day following the robbery. Appellant testified and denied committing the robbery.

1. Appellant enumerates as error the general grounds and the denial of his motion for directed verdict of acquittal. He argues that Dorsey and Brown were only able to give general descriptions of the robber and their descriptions had discrepancies. Appellant also argues that the evidence was insufficient as to venue. The investigating officer testified that Dorsey and Brown both described the robber as a black male with a thick moustache, approximately 5'8”, one hundred and fifty pounds, wearing a blue hat, a glove, a dark, bulky jacket and thick glasses. “The testimony of the [two] victims amply supported the verdict, although there were [minor] discrepancies in the descriptions which the victims had given in their reports to the police. . . .” Reese v. State, 145 Ga. App. 453, 459 (8) (243 SE2d 650) (1978). We also find Dorsey’s testimony sufficient to establish venue in Clayton County. The evidence was sufficient to enable a rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant also contends that the trial court erred in failing to give a complete charge on circumstantial evidence. The trial judge charged the jury that “[circumstantial evidence is the proof of facts or circumstances by direct evidence from which you infer other related or connected facts which are reasonable and justified in the light of your experience.” Although not entirely clear from appellant’s brief, appellant apparently contends the trial judge should have charged the jury pursuant to OCGA § 24-4-6 that to warrant a conviction on circumstantial evidence, the facts must exclude every hypothesis save that of the guilt of the accused. In Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), the Supreme Court of Georgia held that this charge should be given upon request where the State’s case depends in whole or in part on circumstantial evidence. However, the State’s case consisted solely of the direct evidence of the victims of the robbery. Appellant argues that the victims were impeached based on the discrepancies in their respective descriptions. However, such discrepancies were matters for the jury to consider in judging the credibility of the witnesses and weighing the evidence. See Turner v. State, 206 Ga. App. 683, 684 (426 SE2d 168) (1992). Even if the victims were impeached, a charge on circumstantial evidence was not warranted because there was no other evidence authorizing a verdict of guilty. Mayfield v. State, 153 Ga. App. 459 (3) (265 SE2d 366) (1980).

3. In his final enumeration of error, appellant argues that the victims’ in-court identifications were tainted by an impermissibly suggestive identification which occurred at the preliminary hearing. During a hearing on appellant’s motion to suppress the in-court identifications, both victims testified that they had sufficient time to view appellant at the time of the robbery and their identifications of appellant at trial were based on their independent recollections of appellant from the night of the robbery. Even if the pretrial identification were tainted, the in-court identifications were admissible since the victims’ in-court identifications had an independent origin. Taylor v. State, 203 Ga. App. 210 (2) (416 SE2d 554) (1992). Accordingly, we find no merit to appellant’s argument.

Decided February 10, 1994

Reconsideration denied February 28, 1994

John G. Walrath, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A93A2076.
    A93A2077.
    BIGGS v. LONG. HORNE, UPCHURCH, WATERS & ASSOCIATES, INC. v. LONG.
    (441 SE2d 677)
   Andrews, Judge.

Biggs, the owner, and Horne, Upchurch, Waters & Associates, Inc. (Horne), the real estate broker/manager of the rental property, separately appeal from the judgment entered on the jury’s verdict in Long’s suit for damages arising from her fall from the third story porch of her rented apartment. The appeals are considered together.

1. Viewing the evidence in favor of the jury’s verdict for Long, as we are compelled to do, Ailion v. Wade, 190 Ga. App. 151, 155 (4) (378 SE2d 507) (1989), it was that the residence had been in the Biggs’ family since at least the 1940’s and had been built in 1904. The structure was originally a two-story wooden Victorian home. A wooden stairwell went up the rear of the house to the first landing where the stairwell made a 90 degree turn around the side of the house and proceeded upward to the then second floor. This stairwell was part of the original construction. The landing outside the apartment door was 28 inches wide. There were two wooden railings on the landing and the upper one was 36 inches above the landing.

In the late 1940’s, the house was raised by adding a third story of brick under the original house. A new metal staircase to the second floor was added to the front of the house, providing the main entrance to the second and third floor apartments. Also, at that time, the original wooden stairwell up the rear of the house was lengthened to accommodate the added level.

Biggs’ husband had taken care of the property from 1974 until his death in September 1986, when Biggs was bequeathed a life estate in the house. Until July 1987, the Biggs’ daughter, Kennedy, managed the rental property which contained three units, one on each floor. In July 1987, LCH Rentals, a division of Horne, entered into a management contract with Kennedy, on behalf of Biggs, whereby Horne would handle the rental, operation, and maintenance of the premises. Horne was authorized to make any repairs up to the sum of $100 without prior approval of the owner. Approval was required for repairs over that amount. Kennedy never refused to give such approval. The property was inspected by Hazard, an agent of Horne, prior to entering into the management agreement. When the then tenants moved out, Ms. Horne, one of the principals of Horne, personally went to the apartment on September 25, 1990 and inspected it. At that time, she walked out on the third floor landing, grasped the upper wooden railing, and attempted to shake it. It did not appear unstable or deficient in any way to her. She was aware that, because the landing was narrow, the wooden screen door would touch the upper of the two railings when it was opened. She descended the rear stairway and noticed no problems with it.

In November 1990, Burke and Long were sharing an apartment in Cypress Landings and decided to move closer to downtown. Both filled out a rental application for Horne. Burke went to the offices of Horne, put down a $25 deposit, and was given a key to go and inspect the third floor apartment, which she did. On November 8, 1990, a one-year lease was signed by both Burke and Long with LCH Rentals. The typed portion of the lease on the front page lists as tenant “Rebecca Davis.” On the second page, the document is signed by both Burke and Long on two lines labeled “TENANT.” A key was made by Burke for Long and Harvey, another friend who occasionally stayed at the apartment. The attached and incorporated two-page list of rules and regulations was also signed by both Long and “Davis” (Burke) on the lines labeled “Tenant.”

Long lived there full-time until at least Christmas 1990. In January 1991, she told Horne that she was “leaving.” She returned her key to Burke. Thereafter, she continued to stay overnight in the apartment two or three nights a week, generally on the weekends. Burke and Long were both aware that the screen door would strike the top railing when opened. Both had used the rear stairs and door before. During the time that Long lived there, the apartment was burglarized twice, with the burglar entering through the small window above the landing and to the left of the railing on the rear stairwell landing. After the first burglary, Burke notified Horne and the broken glass from the window was repaired. The second break-in was not reported to Horne by Burke. Burke owned a dog, which was in violation of the lease, and resulted in a complaint by a neighbor after the accident.

On Saturday, February 16, Long was picked up by Harvey at her parents’ home in Effingham County at noon. They shopped for several hours and Long returned to her parents’ home to eat dinner. Around 9:00 p.m., Harvey again picked her up and they proceeded to Savannah with the intention of later going to Malones, a local bar which they and their friends frequented. They stopped and bought a bottle of wine and each consumed a 12 to 14-ounce cup of wine during the several hours which they drove around the city. At 12:30 a.m., they picked up Faust and proceeded to Malones. They stayed about 15 or 20 minutes during which they did not consume additional alcohol. Burke was there and invited Harvey, Long and Jackson to come by the apartment after the club closed. These three proceeded to the apartment.

There was a light on the upper landing, but it had not worked for some time according to Burke. She had not reported this to Horne or requested that it be repaired. She had not replaced the bulb herself. Harvey, Long and Jackson proceeded up the rear stairs in that order. Harvey stepped onto the landing and was in the process of opening the screen door. Long stepped onto the landing and, as she testified, “ [Harvey] and I were standing on the landing, and [Harvey] went to reach for — or to open the screen, and I stepped back out the way and leaned back on the railing, and that’s when the railing gave way.” (Emphasis supplied.) The screen door opened from the left side of the landing out toward the railing on the right side as anyone approached it from the stairwell.

Long fell to the concrete below and was seriously injured. The police and ambulance were called and when the officer arrived, he found Long on the ground and the upper railing nearby. As stated in the incident report, proffered by Long and admitted by the court as part of the res gestae, the three “were on the 3rd floor fire escape/ back porch. One of the other girls opened the door and [Long] stepped back with her back to the railing. The railing broke away and [Long] fell.”

The stairs and the lower landing were all constructed of pressure-treated unpainted lumber. The upper landing and railing were constructed earlier than the stairs and were painted lumber.

The complaint alleged ordinary negligence. The four counts were that the defendants “knew of the hazardous condition of the railing which gave way”; that the “hazardous condition . . . had existed for such a long period of time that defendants had constructive knowledge of the hazardous condition”; that, “upon a reasonable and prudent inspection of the premises, defendants would have discovered the hazardous condition of the railing”; and that the railing “was defectively designed and/or defectively constructed and defendants were thus negligent for allowing the premises to be in this condition.”

In the pretrial order, Long states that the hazardous condition consisted of the use of “toenailing” to attach the end of the rail to the corner of the house.

2. Long argued below that, since she was not named in the printed and typed portion of the lease, even though she signed it as a tenant and lived there for a period, she was not legally a tenant. Further, she argued that, even if a tenant, the stairwell and landing were “common areas” subject to the duty imposed on landlords under OCGA § 44-7-14.

(a) Biggs’ first enumeration and Horne’s fourth enumeration both allege that the trial court erred in allowing the jury to decide whether Long was a tenant or an invitee for purposes of defining the duty owed. Motions for directed verdict and j.n.o.v. were made on this ground by defendants.

“As with other contracts, the construction of the provisions of a lease is generally one for the court to determine as a matter of law. OCGA § 13-2-1; Peachtree on Peachtree Investors v. Reed Drug Co., 251 Ga. 692, 694 (1) (308 SE2d 825) (1983). ‘Where the language of a [lease] is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible. (Cit.)’ Stern’s Gallery of Gifts v. Corp. Property Investors, 176 Ga. App. 586, 593 (4) (337 SE2d 29) (1985).” Reahard v. Ivester, 188 Ga. App. 17, 19 (1) (371 SE2d 905) (1988).

Here, the only alleged ambiguity in the lease was that Long’s name, although appearing at the end of the lease signed in her handwriting on a line labeled “Tenant,” was not included in the blank space on the first page where Davis’ name had been typed in. Here, there is no legal ambiguity in the lease, merely an omission from the typed portion supplied by the last and handwritten notations of the parties. See American Cyanamid Co. v. Ring, 248 Ga. 673, 675 (286 SE2d 1) (1982) (typed effective date of contract differed from handwritten date of execution by one party, written under his signature).

Long did not deny that, she signed the lease at a time when she was sharing another apartment with Davis and that she had her clothes at the apartment and lived there for at least a month. At most, she contends she terminated the lease before the accident. The lease, however, provides for a one-year term not subject to termination. It allows for release of the obligation to pay rent for the entire year only with written permission of the landlord, which was not given here. “ ‘A surrender of premises by a lessee has no legal effect until accepted by the lessor. (Cits.)’ [Cit.]” Reahard, supra.

Therefore, the court erred in not determining as a matter of law that Long was a tenant at the time of her accident.

(b) In the rules and regulations signed by Long and Davis, Paragraph 19 provided that “No part of the yards, . . . walks or stairs shall be reserved for the private use of any tenant. . . .” (Emphasis supplied.)

Based upon this language, it was not error for the court to allow the question of whether the stairs, including the landings, were a common area to go to the jury. Therefore, we cannot say that, as a matter of law, the stairs were part of the leased premises.

3. Horne’s second and third enumerations and Biggs’ fifth and sixth enumerations allege the court erred in admitting into evidence the Standard Building Codes which had been adopted by Savannah in 1979 and 1985; in not determining the applicability of the ordinances to the premises involved as a matter of law; and in not properly instructing the jury as to the ordinances.

(a) As to the admissibility of the ordinances tendered in court, the only objection voiced by defendants was that, as originally tendered, the proper foundation had not been laid because the ordinances were not certified. OCGA § 24-7-21. The ordinances were tendered again, with a certification, and no objection was voiced by defendants. Therefore, there is nothing in this regard for this court to review.

(b) Whether or not an ordinance, properly proven, applies to a certain property, however, is a question of law. Connell v. Long, 248 Ga. 716, 718 (1) (286 SE2d 287) (1982).

If applicable to the premises, the court should have instructed the jury that if a violation of the municipal ordinance had occurred, with such violation being the proximate cause of Long’s injury, a verdict for Long would be appropriate. Thompson v. Crownover, 259 Ga. 126, 129 (4) (381 SE2d 283) (1989); Atlanta Recycled Fiber Co. v. TriCities Steel Co., 152 Ga. App. 259, 266 (4) (262 SE2d 554) (1979).

Kern, a professional structural engineer, testified as Long’s expert. He testified that he examined the upper landing and railing and made a review of the provisions of the 1979 and 1985 Building Codes. In his opinion, the landing and railing violated these provisions because the width of the landing was eight inches narrower than required; the top railing was six inches lower than required; there was no covering over the porch landing; and the load-bearing sufficiency of the railing was less than the required fifty pounds per foot applied laterally.

Kern testified at length concerning “toenailing,” a process used by carpenters to attach a railing. The end of the rail attached to the corner of the house near the window was toenailed with three nails, which protruded into the siding and the abutting 4" by 4" corner post from a minimum of slightly less than two inches to a maximum of two-and-one-half inches. The other end of the rail attached to the descending banister was attached by nailing two nails from the top directly into a 2" by 4" which was also nailed to an abutting 2" by 4”. Kern stated that, in his opinion, the fall was caused when Long’s lateral force against the rail caused the toenailed end, which was rotted, to pull off the wall, causing the other end to disconnect.

Kern opined that, because of the rot, the rail, on February 17, 1991, would not bear the required 50 pounds per foot. He further testified, however, that toenailing was an accepted practice in carpentry and was not prohibited by the Codes. Further, he acknowledged that if toenailing were used on a good solid 2" by 4" it would, as constructed, bear the required 50 pounds. He further stated that the other end of the rail was constructed in compliance with applicable standards.

Kern said it was apparent that the house had been built before 1979 and that the stairway had obviously undergone several renovations. He opined that the landing and stairway were “rebuilt” in the mid 1980’s.

Section 101.4 (a) and (c) of both Codes provides that if, within any 12-month period “alterations or repairs costing in excess of fifty (50) percent of the then physical value of the building are made to an existing building, such building shall be made to conform to the requirements of this code for new buildings, . . .” and if the cost of such alterations or repairs within any 12-month period “is more than twenty-five (25) but not more than fifty (50) percent of the then physical value of the building the portions to be altered or repaired shall be made to conform to the requirements of this code for new buildings. . . .” Subsection (f) allowed repairs not covered by subsections (a) and (c) which restored the building to its previous condition to be made with the “same kind of materials as those of which the building is constructed. . . .” Therefore, defects are required to be remedied in compliance with the Code only if these prerequisites are met. See Watson v. Ellis, 261 Ga. 434, 436 (406 SE2d 473) (1991) (affirmance by Rule 59 of the trial court’s holding to this effect).

Accepting Kern’s premise that the stairway and landing were “rebuilt” in the mid 1980’s, there was no proof of the cost of the repairs or the physical value of the house so that a determination of the applicability of the Code requirements could be made. Therefore, it was error for the court to allow the jury to consider these provisions.

4. Next we consider the issue of Horne’s and Biggs’ motions for directed verdict, denial of which is asserted as error in Horne’s first and Biggs’ second and third enumerations.

(a) As to the negligent design and construction count, there was no evidence concerning Horne that showed any participation in any construction of the stairs and landing, either originally or in the way of repairs. See Cherry v. Ward, 204 Ga. App. 833 (420 SE2d 763) (1992). As to Biggs, there was no evidence that, at the time of the original construction of the stairway in 1904 and the addition of the extension in the mid-1940’s, there was any defect in the design and construction so that she would be liable as a successor in title. See Spence v. C & S Nat. Bank, 195 Ga. App. 294, 295 (393 SE2d 1) (1990). In fact, Kern stated that toenailing would have been a proper method of construction if done properly with sound wood.

Neither was there any evidence that Biggs or her agent Horne had any actual knowledge that the rail was rotten, as alleged in the first count.

Therefore, as to these two counts, defendants were entitled to a directed verdict. Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 760 (2) (409 SE2d 852) (1991).

(b) As discussed in Division 2 (b), supra, there was evidence to support Long’s contention that the stairs were a “common area.” So considering the evidence in Long’s favor under the directed verdict standard, id., and there being no proven violation of an applicable housing code, liability as to the remaining two counts (constructive knowledge and duty to inspect) must be predicated upon OCGA § 51-3-1. Commerce Properties v. Linthicum, 209 Ga. App. 853 (434 SE2d 769) (1993). Compare Thompson, supra, and Bastien v. Metropolitan &c. Assoc., 209 Ga. App. 881 (434 SE2d 736) (1993).

Considering Long’s claim that the dimensions of the landing and railing, the banging of the screen on the railing, the lack of cover, and the presence of noticeable rot created a hazardous condition, whether or not in violation of any ordinance, it is apparent that Long had full and equal knowledge of these facts. Further, neither Long nor Burke made any report of this dangerous condition to either defendant. “ ‘The decisive issues are: “(1) fault on the part of [Biggs and Horne], and (2) ignorance of the danger on the part of [Long].” ’ ” (Emphasis supplied; citations omitted.) Powell v. Woodridge Condo. Assn., 206 Ga. App. 176 (424 SE2d 855) (1992).

In Powell, a tenant had lived in the unit for eight weeks and had regularly parked in an upper parking lot requiring her to use a set of stairs composed of weathered railroad ties which had no handrail. Powell considered the steps unsafe due to cracking and unevenness, but did not report her concerns and continued using the steps. She fell and injured herself. “Where the case involves a static [and patent] dangerous condition, the rule is well established that ‘the basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ (Citations and punctuation omitted.) [Cit.]” Powell at 177. See also, e.g., Gyles v. Turner, 184 Ga. App. 376 (361 SE2d 538) (1987); Emory Univ. v. Duncan, 182 Ga. App. 326 (355 SE2d 446) (1987) (physical precedent); Folks, Inc. v. Dobbs, 181 Ga. App. 311 (352 SE2d 212) (1986).

Therefore, defendants were entitled to a directed verdict on this theory.

The remaining legal theory is that of the rot in the railing, a “latent condition” which should have been discovered by the owner or her agent.

“ ‘[A] landlord impliedly warrants that the rented premises are in good repair at the time they are rented; and if they are not, by reason of a latent defect ... he is liable if he actually knew they were not, or if by the exercise of ordinary care he could have discovered that they were not, if the defective condition is latent and is the proximate cause of the injury. [Cit.]”’ (Emphasis in original.) Country Club Apts. v. Scott, 154 Ga. App. 217, 219 (2) (267 SE2d 811) (1980), aff'd 246 Ga. 443 (271 SE2d 841) (1980). See Bazemore v. Burnet, 117 Ga. App. 849, 851 (161 SE2d 924) (1968). Here, there is no evidence that, in November when the apartment was rented, there was such a latent defect or that defendants actually knew of it.

“When a landlord is put on notice of a patent defect, he is also charged with knowledge of any latent dangerous condition that a reasonable inspection would have revealed. If he does not make any necessary repairs within a reasonable time, he can be held liable for any injuries resulting from the dangerous condition. [Cits.]” Brandywine Townhouses v. Morrison, 200 Ga. App. 425, 427 (1) (408 SE2d 422) (1991). Here, again, there is no evidence that notice of any patent problem was given to Horne, the investigation of which would have revealed the latent rot. The only evidence at trial was that, after the railing was down, the end of it evidenced some rot.

“[P]laintiff was well aware of the condition of the [porch and railing] and [her] knowledge was, or at least should have been, equal to that of defendants. (‘ “An invitee is under an equal duty with the owner to use [her] sight to discover any defect or dangers. (Cits.)” [Cit.]’ Roberts v. Gardens Sues., 182 Ga. App. 573, 574 [(356 SE2d 669) (1987)].)” Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988).

Decided February 7, 1994

Reconsideration denied February 28, 1994

Forbes & Bowman, Morton G. Forbes, Catherine M. Bowman, for Biggs.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for Horne, Upchurch, Waters & Associates.

John M. Cullum, Bergen & Bergen, Frederick S. Bergen, Joseph B. Bergen, for Long.

5. We need not consider the remaining enumerations of error.

6. Long’s motion to dismiss the appeal of Horne, Case No. A93A2077, or to hold appellee Horne in contempt for filing the appellee’s brief four days after the expiration of the extended filing date, is denied.

Judgment reversed.

Pope, C. J., and Birdsong, P. J., concur.

       The house was located in Savannah’s Historic District and, while eligible for the Historic Register, was not on it.

       Burke’s maiden name was Davis. She had married between the time of the accident and trial.

       Alterations were made in 1985 to the 1979 Code, but these are not at issue here. Therefore, as far as this situation is concerned, the requirements are the same.

       If such an ordinance is applicable and there has been a violation which is the proximate cause of any injury, there is a possibility of a claim for negligence per se. See Northwestern Mat. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 301 (2) (208 SE2d 258) (1974). Here, however, Long’s only claim was for ordinary negligence.

       In toenailing, the rail is attached by driving nails into the rail from an angle so that the nails protrude into the siding.

       Although this theory was not included in the pretrial order, evidence and argument were taken on it and the issue was actually litigated. OCGA § 9-11-16 (b); Dunkin’ Donuts of America v. Gebar, Inc., 202 Ga. App. 450, 451 (lb) (414 SE2d 683) (1992).