text:
    A97A0713.
    STIRRAT v. THE STATE.
    (486 SE2d 640)
   Blackburn, Judge.

Reno James Stirrat appeals his convictions on two counts of aggravated assault, contending that the evidence was insufficient to support the verdict. He also contends the court erred in allowing testimony regarding prior similar transactions and in failing to give a requested jury charge.

1. Stirrat argues that the evidence was insufficient to support the verdict, as there was insufficient evidence identifying him as the assailant. “On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the adjudication of guilt is supported by sufficient competent evidence.” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675) (1993).

Viewed in the light most favorable to the verdict, the evidence was as follows. Stirrat and the victim, Linda Gail McLeod, began dating in March 1994. In July 1994, Stirrat moved into McLeod’s condominium, where they lived with another couple, Richard Shell and Juliet Dickinson. In December 1994, McLeod asked Stirrat to move out of the condominium. Stirrat moved out in January 1995.

Shortly after Stirrat moved out, McLeod began receiving telephone calls late at night, and the caller would hang up. When confronted by Dickinson, Stirrat denied that he was making the calls. The hang-up calls stopped after this conversation.

On March 1, 1995, McLeod left her condominium about 5:45 a.m. to go swimming. She was a triathlete and swam several times a week at this time, including while she was living with Stirrat. As she left her condominium, she noticed that her car was missing from the parking lot. About a week previously, her car keys had been stolen from her coat pocket at the clinic where she worked. As she looked for her car, she saw a man dressed in dark clothing, wearing a ski mask, and holding a knife. The man said in a deep voice, “I’m gonna get you.” McLeod turned and ran back up the stairs toward her condominium. The man followed her and stabbed her several times with the knife in front of the door to her condominium.

Shell, one of McLeod’s roommates, was awakened by McLeod’s screams. He opened the front door and saw the man in black kneeling over McLeod. The man turned to Shell and said, “Don’t come out here, Richard, or I’ll kill you too.” Shell immediately recognized the voice as belonging to Stirrat. When Shell shut the glass door, the man reached out to grab the door handle, at which time Shell noticed that the man was holding a military-style knife. Shell saw the man stab McLeod with his left hand while holding the door with his right. Shell yelled at the man to leave, and told his girl friend, “Juliet, it’s Reno. Get the police. Call the police.” The man then ran off.

At trial, Shell testified that he immediately recognized Stirrat’s voice as soon as he spoke, and that he was certain of his identification. He also recognized Stirrat from the physical build of the man’s body. McLeod testified that she recognized Stirrat from his body motion as he ran away. Steven Goldschlager, a friend of McLeod and Stirrat, testified that in late January or early February 1995, Stirrat told him he was upset about his breakup with McLeod. Goldschlager testified that Stirrat said he had awakened one morning and felt so upset he could have killed McLeod.

Under the facts set forth above, “[t]he voice identification testimony and the circumstantial evidence were more than sufficient to enable a rational trier of fact to find defendant guilty of the offenses for which he was convicted beyond a reasonable doubt.” Stevanus v. State, 185 Ga. App. 7, 10 (1) (363 SE2d 322) (1987). See also Thomas v. State, 222 Ga. App. 120 (473 SE2d 251) (1996) (probative value to be accorded voice identification evidence is matter for jury’s determination).

2. Stirrat contends the trial court erred in allowing testimony regarding the hang-up calls and the theft of McLeod’s car and car keys. Stirrat contends that such testimony constituted evidence of similar transactions, and that the court erred in allowing such testimony because the State did not provide notice of its intent to present such testimony and because the court did not hold a similar transaction hearing pursuant to Uniform Superior Court Rule 31.3. Stirrat did not raise these objections at trial, but merely objected on the grounds of relevance.

(a) Assuming the evidence to be similar transaction evidence, we address the issue of whether Stirrat waived any objection to such evidence by failing to object thereto at trial. This Court has held that “the defendant’s failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal.” Riddle v. State, 208 Ga. App. 8, 11 (1) (b) (430 SE2d 153) (1993) ; see also White v. State, 213 Ga. App. 429, 430 (445 SE2d 309) (1994) . However, although the Supreme Court has not expressly overruled Riddle and its progeny, two recent Supreme Court cases have called into question the continued vitality of this rule, at least with respect to cases involving evidence of prior difficulties between the defendant and the victim.

In Hartman v. State, 266 Ga. 613, 614 (2) (469 SE2d 163) (1996), the defendant argued on appeal that the trial court improperly allowed evidence of prior difficulties between himself and the victim because “the state failed to follow the procedure set forth in Maxwell v. State,” which requires a hearing before introduction of prior difficulty evidence. In rejecting this argument, the Supreme Court held that “[the defendant], however, failed to raise this ground as an objection at trial, and may not raise it for the first time on appeal.” (Footnote omitted.) Hartman, supra at 614 (2).

In Williams v. State, 267 Ga. 308, 309-310 (477 SE2d 570) (1996), the defendant argued for the first time on appeal that the State had failed to provide notice of its intent to present evidence of prior difficulties under the procedure set forth in Maxwell. Citing Hartman, the Supreme Court held that the defendant, having failed to object at trial, could not raise the issue on appeal. Williams, supra at 310. As we are bound by the holdings of our Supreme Court, Stirrat would have waived any objection to the subject evidence if it were similar transaction or prior difficulties evidence.

(b) However, the testimony in question does not amount to similar transaction evidence requiring notice and a hearing. With respect to the theft of the car and car keys, the State presented evidence that, approximately a week before the attack, McLeod’s car keys were stolen from her lab coat while at work. Evidence was also presented that the car was missing from the parking lot on the morning of the attack and was found later that day with the steering mechanism undamaged. The State’s theory was that Stirrat moved McLeod’s car as part of his plan to surprise and attack her as she left her condominium. “[A]cts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense.” (Citation and punctuation omitted.) Mobley v. State, 218 Ga. App. 739, 741 (3) (463 SE2d 166) (1995). Accordingly, evidence regarding the theft of the car and car keys was admissible, not as similar transaction evidence, but as part of the main transaction.

Decided May 5, 1997

Before Judge Bodiford.

Jimmy D. Berry, Alan C. Manheim, for appellant.

Thomas J. Charron, District Attorney, Thomas A. Cole, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

With respect to the hang-up calls, McLeod did not testify as to who she believed made the calls. Her roommate, Dickinson, testified that Stirrat denied making the calls. “We do not think that the described conduct rises to the level of a [similar transaction or] prior difficulty,” requiring notice and a hearing under USCR 31.3. (Footnote omitted.) Wellons v. State, 266 Ga. 77, 86 (12) (463 SE2d 868) (1995). Moreover, given the direct identification of Stirrat as the assailant, “it is highly probable that admission of the evidence did not contribute to the verdict,” and any error in allowing the testimony was thus harmless. Id. at 86, n. 2.

3. Stirrat contends the court erred by failing to give his requested jury charge on voice identification. However, “[t]he trial court fully charged the jury on identification using the pattern charge which included the essential points in the proposed instruction. [Cit.] It is not necessary to charge the exact language requested when the pertinent principles are covered.” Rhodes v. State, 221 Ga. App. 792, 794 (5) (470 SE2d 790) (1996). Furthermore, Stirrat does not specify how he was harmed by the court’s failure to charge in the exact language requested. Accordingly, this enumeration is without merit.

4. Stirrat contends the court erred in failing to grant his motion for new trial. As such contention is based upon the alleged errors discussed above, this enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       Stirrat also enumerated as error the alleged ineffective assistance of his trial counsel. However, because the trial counsel did not testify at the hearing on Stirrat’s motion for new trial, Stirrat has not pursued this issue in his appellate brief. See Sterling v. State, 223 Ga. App. 490 (478 SE2d 145) (1996). Accordingly, this enumeration is deemed withdrawn.

       The Supreme Court has held that “[b]efore evidence of prior difficulties or quarrels [between the defendant and the victim] can be presented to a jury, the trial court must conduct a hearing pursuant to Uniform Superior Court Rule 31.3 (B) just as it must do with respect to independent offenses or acts.” Maxwell v. State, 262 Ga. 73, 75 (414 SE2d 470) (1992).


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A1253.
    DEPARTMENT OF TRANSPORTATION v. SHARPE et al.
    (486 SE2d 619)
   Blackburn, Judge.

This is the third appearance of this condemnation case before this Court. See Dept. of Transp. v. Sharpe, 213 Ga. App. 549 (445 SE2d 343) (1994) and Dept. of Transp. v. Sharpe, 219 Ga. App. 466 (465 SE2d 695) (1995). The Department of Transportation (DOT) condemned 19.289 acres of wooded land containing limestone deposits, and the jury awarded $850,000 to the condemnees for the value of the affected land and consequential damages. See Sharpe, 219 Ga. App. 466.

In Sharpe, 219 Ga. App. 466, we reversed the jury’s award, finding that the trial court improperly denied the DOT’s motion to strike the testimony of the condemnees’ experts. Although we criticized its wisdom, we were bound by our Supreme Court’s ruling in Patton v. Bank of LaFayette, 124 Ga. 965, 974 (53 SE 664) (1906), and held that the DOT’s failure to contemporaneously object to such testimony did not result in a waiver of its right to move to strike the testimony. Sharpe, 219 Ga. App. at 467 (1), n. 1. The Supreme Court granted certiorari and expressly overruled Patton. Accordingly, it reversed our decision and remanded the case for consideration of the DOT’s remaining enumerations of error. Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722) (1996). The Supreme Court further held that the experts’ testimony constituted secondary, not illegal, evidence, and that the DOT thus waived any objections to such testimony even under Patton. Sharpe, 267 Ga. at 270.

1. For the reasons set forth in the Supreme Court’s opinion, the trial court did not err in denying the DOT’s motion to strike the testimony of the condemnees’ experts.

2. The DOT contends the court erred in responding to a jury question. During deliberations, the jury sent the judge a note reading as follows: “We request the dollar figures Mr. [Limb, one of the condemnees’ experts] quoted for each of the following areas: (1) The ‘take’ area actually condemned. (2) The acreage to the north of the condemned area. (3) Any other areas of the Sharpte] property allegedly damaged.” Over the DOT’s objection, the court responded by writing on the note: “1. Value of‘take’ — $595,605.00. 2 & 3. Total of north acreage & buffer: $838,713.00.” The DOT contends the court’s response improperly emphasized the expert’s testimony.

We agree that the court’s method of responding to the jury’s question was improper. In Dept. of Transp. v. Benton, 214 Ga. App. 221 (447 SE2d 159) (1994), we held that it was reversible error for the trial court to allow an expert’s written calculations to be sent out with the jury. We held that “[a] written summary of a witness’ testimony is properly excluded from evidence in the jury room. Continuing witness evidence is unfair on its face; it is illegal and prejudicial per se, as it necessarily emphasizes what is written down at the expense of what is oral and is heard only from the witness stand.” (Citation and punctuation omitted.) Id. at 223 (2).

Here, in addition to placing undue emphasis on the expert’s testimony by allowing a written summary of it to go out with the jury, the judge’s note also constituted his own characterization and summary of the expert’s testimony. Generally, “it is error for the judge to state to the jury what a witness has testified, such a statement being in effect an expression of opinion as to what has been proved.” Nelson v. State, 124 Ga. 8, 10 (52 SE 20) (1905). Furthermore, the judge’s note unduly emphasized the ultimate conclusions reached by the expert while omitting the many assumptions upon which those conclusions were based. Accordingly, the court erred in responding to the jury’s question as it did. As we cannot say that the error was harmless, the verdict must be reversed and the case remanded for a new trial. See Benton, supra. For purposes of retrial, we note that the court would have acted within its discretion if it had merely had the expert’s testimony read back to the jury. See Johns v. State, 239 Ga. 681, 683 (2) (238 SE2d 372) (1977); Dixie-Ohio Express v. Brackett, 106 Ga. App. 862, 869 (3) (128 SE2d 642) (1962).

Although this ruling is sufficient to dispose of this appeal, we will consider the DOT’s other enumerations of error as they could recur upon a retrial of this case.

3. The DOT contends the court erred in refusing to give a requested jury charge regarding speculative damages. The DOT requested that the court charge as follows: “I charge you that in your deliberations in determining compensation to be awarded the condemnee in this case, you are not authorized to, and should not, consider a vague, remote, imaginary, uncertain, contingent, sentimental or speculative item or contention of damage in this case.” The court instead charged as follows: “In determining compensation to be awarded the condemnee in this case, you are not authorized to and should not consider remote or sentimental — or sentimental items in doing so.”

The DOT contends the charge as given did not adequately advise the jury that it could not consider speculative items of damages. It contends the charge undercut its argument that evidence regarding possible future mining of limestone deposits on the property was too speculative for consideration, since the limestone in fact had never been mined.

The DOT cites Benton, supra, as authority for its speculativeness charge. However, Benton dealt with testimony regarding the value of raw land based upon the hypothetical future development of the land as subdivision lots. Benton, 214 Ga. App. at 221-222. We have previously recognized that “Benton has no application to mineral deposit cases” such as this, where “the only relevant inquiry is the overall value of the property on the date of taking with the presence of the limestone deposits being taken into account.” (Punctuation omitted.) Gunn v. Dept. of Transp., 222 Ga. App. 684, 685 (1) (476 SE2d 46) (1996).

The DOT’s argument is without merit. The fact that the property had not been mined for limestone does not render it speculative to consider the effect of the limestone, in its present unmined state, on the value of the property. Indeed, a jury is required to consider the presence of the limestone as a factor affecting the value of the property, notwithstanding the facts that it had not been mined previously and that there were no plans to mine it at the time of the taking. See Gunn, supra. Although a jury would not be authorized to make separate awards for the value of the surface property and the value of the limestone, “[t]he fact that [limestone] was present was a relevant factor to be considered in determining the overall value of the property.” Williams v. Mayor &c. of Carrollton, 195 Ga. App. 590, 591 (2) (394 SE2d 389) (1990).

The DOT’s proposed charge, in particular the portion advising the jury that it could not consider items of damage that are “uncertain,” had the tendency to mislead the jury into believing that, since the property had not previously been mined for its limestone, the jury could not take the limestone into consideration in valuing the property. Indeed, that is the very position taken by the DOT. Accordingly, the court did not err in refusing to give such charge. See Shilliday v. Dunaway, 220 Ga. App. 406 (469 SE2d 485) (1996) (request to charge must embody correct, applicable and complete statement of law, legal and perfect in form, and must not have tendency to confuse and mislead the jury or becloud issues in case).

4. The DOT also contends the court erred in responding to a second jury question. The jury sent the court the following note: “Can the court compute a dollar amount based on the following data. 8 million tons[,] 20 cents per ton[,] 20% discount[,] 8 years[.] We do not have the expertise to run these numbers.” The court responded by replaying a portion of the testimony of Robert Gerhart, an expert witness for the condemnees, explaining how to perform a present value calculation using similar variables.

The DOT’s only objection to the court’s response is that it unduly emphasized the expert’s testimony by repeating it to the jury. The DOT contends that the court should merely have informed the jury that the evidence was closed and that they must rely on their memories. This contention is without merit. A trial court has discretion in replaying portions of testimony in response to jury questions, and its discretion should not be controlled unless it is clearly shown to have been abused. See Dixie-Ohio Express, supra. Given the complexity of the mathematical formulation the jury sought to make, and of the testimony relating to such formulation, the judge clearly had discretion to replay the relevant testimony to enable the jury to make an informed decision. The DOT does not contend that the replayed testimony was not responsive to the jury’s question. Furthermore, the court informed the jury that it should not give the testimony any more weight because of the fact that it was hearing it twice. Accordingly, this enumeration is without merit.

Decided April 21, 1997

Reconsideration denied May 6, 1997

Before Judge McConnell.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Sell & Melton, John A. Draughon, Michelle W. Johnson, for appellant.

Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., for appellees.

Judgment reversed and remanded.

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


author: Judge Harold R. Banke.

text:
    A97A1102.
    SPENCE et al. v. HAMM et al.
    (487 SE2d 9)
   Judge Harold R. Banke.

William Spence, Jr., Luanne Spence Taylor, Craig H. Spence, William R. Wingate, Ruth Wingate Downs, and Harry L. Wingate, Jr. (collectively “the Spences”) sued the executors of the estate of Clara Davis Spence, including Clara Davis Hamm, Warren Allen Davis, and NationsBank of Georgia, alleging breach of an oral contract to make a will. The trial court granted the executors’ motion for summary judgment, and the Spences’ appeal, enumerating eight errors.

The following allegations provide the complaint’s sole evidentiary support. This case arose in 1968 after Harry L. Wingate, Jr., an attorney, made a deathbed visit to his uncle, Henry T. Spence, Clara Davis Spence’s husband of almost 30 years. Wingate and his secretary, a notary, came to finalize a power of attorney he drew up at Henry Spence’s request. After the power of attorney was executed, Wingate asked if there was anything more he could do. Henry Spence purportedly answered in the negative, explaining that he and his wife agreed to retain their existing mutual will devising everything to the survivor on the condition that Mrs. Spence would execute a new will after his death leaving half her estate to his nieces and nephews. Mrs. Spence then allegedly asked Wingate to draft such a will, but he declined due to his status as Mr. Spence’s beneficiary. During this exchange, Mr. Spence asked Wingate to handle the probate proceedings and assist Mrs. Spence. After Mrs. Spence died 25 years later, Wingate learned that, with one minor exception, she had bequested the entirety of her estate to her brother and his two children.

Wingate and Mr. Spence’s other alleged beneficiaries then commenced this action against the executors of Mrs. Spence’s estate, alleging breach of contract to make a will. They also sought the imposition of a constructive trust on half of the estate. In addition to the allegations of Wingate and his secretary, they supported their claim with the affidavit of Dorothy Spence, Mr. Spence’s 95-year-old sister, who corroborated Wingate’s assertions. The trial court granted the executors’ motion for summary judgment, finding, inter alia, that attorney-client privilege barred their testimony and Dorothy Spence’s affidavit consisted of inadmissible hearsay. Held:

1. The attorney-client privilege barred the admission of the statements of Wingate and his secretary. Communications between attorneys and clients arising from their professional relationship are privileged. OCGA § 24-9-25. The privilege belongs to the client and continues even after the client’s death. Moclaire v. State, 215 Ga. App. 360, 363 (5) (451 SE2d 68) (1994).

By his own admission, Wingate was acting as the couple’s lawyer when the conversation at issue occurred. On deposition, Wingate testified that Mr. Spence had told him, “Clara and I want to meet with you and talk about our affairs.” When asked if he understood that he was acting in his capacity as an attorney rather than as a nephew, Wingate answered, “Oh yes; absolutely.” This testimony is sufficient to show that the couple was acting as a unit to sort out their finances in the face of Mr. Spence’s impending death and belies the contention that Wingate’s representation was limited solely to his uncle. Win-gate’s own testimony, particularly his admission regarding his professional role, convinces us that the communications regarding the Spences’ financial affairs were privileged. See also Huddleston v. State, 259 Ga. 45, 46 (1) (376 SE2d 683) (1989) (attorney-client relationship arises when legal advice is sought and received). The privilege applies equally to Wingate’s secretary. Taylor v. Taylor, 179 Ga. 691, 693 (177 SE 582) (1934).

Decided April 18, 1997

Reconsideration denied May 6, 1997

Before Judge Gray.

Moore, Clarke, DuVall & Rodgers, James H. Moore III, Luanne Clarke, for appellants.

Notwithstanding Wingate’s argument to the contrary, the “joint representation” exception to this rule does not alter our conclusion. This exception arises when two or more persons consult with the same counsel and relates to communications attendant to that representation. But it applies only during subsequent litigation between the parties. Peterson v. Baumwell, 202 Ga. App. 283, 284-285 (2) (414 SE2d 278) (1991). The litigation here is not between Mr. and Mrs. Spence or their estates.

Nor does the precept prohibiting the invocation of the privilege by strangers to the relationship require a different result. Compare Cleary v. Burlington Indus., 193 Ga. App. 81, 82 (387 SE2d 36) (1989). Clara Spence’s executors are no strangers to the relationship. See OCGA § 53-7-49; see Ga. Intl. &c. Ins. Co. v. Boney, 139 Ga. App. 575, 576-577 (1) (228 SE2d 731) (1976) (administrator of estate cannot waive decedent’s privilege). On the contrary, they “ ‘[stand] in the place of the deceased.’ ” (Citation omitted.) Ringer v. Lockhart, 240 Ga. 82, 84 (239 SE2d 349) (1977).

2. The trial court properly refused to admit Dorothy Spence’s affidavit into evidence. In her affidavit, Dorothy Spence attested that two of her brothers had visited the dying Mr. Spence, who told them he intended to leave his entire estate to his wife, provided she left half her estate to his nieces and nephews. She further attested that her brothers related this information to her. This evidence, clearly offered for its truth, constituted inadmissible hearsay within no cognizable exception to the rule. See Banks v. Patton, 202 Ga. App. 168, 169 (1) (413 SE2d 744) (1991). Absent any competent evidence supporting the Spences’ breach of contract claim or request for a constructive trust, summary judgment was appropriate.

3. In light of this finding, we need not reach the Spences’ remaining enumerations.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in the judgment only.

Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, for appellees.

       The Spences’ marriage produced no children.

       The trial court’s rejection of Wingate’s attempt to recant this testimony in a second deposition pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986), is not clearly erroneous. Rhodes v. ABC School Supply, 223 Ga. App. 134, 136 (1) (476 SE2d 773) (1996).


author: Eldridge, Judge.

text:
    A97A1173.
    CAREY v. BRADFORD et al.
    (486 SE2d 623)
   Eldridge, Judge.

A Clayton County jury found for appellees H. M. Brad Bradford, Sonja Whitaker, Brad Bradford Realty, and Parkway Properties, Inc. in a suit filed by appellant Ransom Carey against the owners and managers of his apartment building for injuries he sustained when he fell down the steps leading to his second floor apartment. Appellant’s complaint alleged that the fall, which occurred at approximately 10:00 p.m., was the result of appellees’ negligent maintenance of his apartment building in that the stairwell remained unlit, despite repeated requests by tenants to repair the three light fixtures contained therein. Carey appeals the jury’s verdict.

This case has been before us previously. In Carey v. Bradford, 218 Ga. App. 325 (461 SE2d 290) (1995), we reversed the trial court’s order directing a verdict for the defense on a theory of assumption of the risk. At that time we held, “[w]hen the dangerous area is the plaintiff’s only access or only safe or reasonable access to his home, the tenant’s . . . knowledge of the danger does not excuse the landlord of damages caused by his failure to keep the premises in repair. [Cit.] The position taken by the landlord and its agent, and the ruling of the trial court in granting them directed verdict in this case, is that Carey was a prisoner in his own home and had no right to go down the stairway at night except at his own risk. The landlord’s argument that the plaintiff cannot recover as a matter of law because he assumed the risk of going upon the dark stairs without providing himself with a flashlight is not well taken. This would remove the landlord’s statutory duty to keep the premises in repair, while at the same time requiring the plaintiff in individual cases to prove that he employed every conceivable means of protecting himself from the landlord’s negligence, or be held to have assumed the risk.” Carey, supra at 326 (2).

In light of the above holding, appellant now assigns reversible error to the following jury instruction given by the trial court in the case sub judice: “When rented premises become out of repair it is the duty of the tenant to notify the landlord and to stop using any part of the premises which would be dangerous to use. Where the tenant has knowledge of the defective condition of the rented premises and the defect is such that an ordinarily careful person would know that it would be dangerous to use that area, it is the tenant’s duty to stop using that portion of the premises or dangerous area. If the tenant should voluntarily use a portion of the premises known to be defective and dangerous and should be injured, the tenant would be guilty of such contributory negligence as would bar a recovery.” Held:

1. We are constrained to agree with appellant that, in the case sub judice, the above jury instruction constitutes reversible error. ‘While such a charge is abstractly a correct statement of the law, it is not adjusted to the facts of the case.” Harden v. Drost, 156 Ga. App. 363, 366 (4) (274 SE2d 748) (1980). Clearly, in the case before us, appellant could not “stop” using the egress and ingress to his second floor apartment, the stairs. This portion of the trial court’s charge, once again, makes Carey “a prisoner in his own home [who has] no right to go down the stairway at night except at his own risk.” Carey, supra at 326 (2).

In the instant case, the trial court correctly charged on numerous relevant aspects of the law regarding landlord/tenant tort liability, and it is important to note that a charge on contributory negligence would be appropriate in this case, when such charge is adjusted to the evidence, e.g., appellant cannot stop using the stairs, but must exercise ordinary care under the circumstances of use in the dark with the known dangers. However, the instruction about which appellant complains was not adjusted to the evidence, and “[instructions not warranted by the evidence are cause for new trial unless it is apparent that the jury could not have been misled thereby.” Harden, supra at 366 (4); Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (389 SE2d 355) (1989); Shipman v. Horizon Corp., 155 Ga. App. 126 (270 SE2d 473) (1980). Further, when a charging error is shown to have occurred, it is presumed to be prejudicial and harmful, unless it appears from the entire record that the error is harmless. Foskey v. Foskey, 257 Ga. 736 (2) (363 SE2d 547) (1988). Herein, this Court cannot say whether the jury’s verdict was based upon defense evidence that the stairwell lights were repaired prior to appellant’s fall, or upon a determination, based upon the court’s charge, that appellant could not recover because of a legal “duty to stop using” the stairs at night. Thus, “we cannot say that the charge would not have had an adverse impact on the question of [liability].” Harden, supra at 366 (4). Accordingly, we must reverse.

2. We find that the trial court correctly charged the jury on a landlord’s tort liability pursuant to OCGA § 44-7-13. Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989); see also Vason v. City of Augusta, 38 Ga. 542 (4) (1868). In addition, OCGA § 44-7-14, regarding a landlord’s tort liability to persons other than the tenant, is not applicable in the case sub judice. There was no error.

Decided April 23, 1997

Reconsideration denied May 6, 1997.

Before Judge Cowen.

Michael B. King, for appellant.

McLain & Merritt, William S. Sutton, Michael L. Miller, for appellees.

3. Our decision in Division 1 herein makes unnecessary a review of the sufficiency of the evidence.

Judgment reversed.

Ruffin, J., concurs. Birdsong, R J., concurs in judgment only.

       Contrary to appellant’s contentions, tort liability may arise out of obligations imposed by contract. “[W]here private duties arise from statute or flow from relations created by the contract, express or implied, [one may] elect to pursue a tort action for damages flowing from the exercise or failure to exercise that duty.” (Citations and punctuation omitted.) Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 87 (460 SE2d 545) (1995).


author: Ruffin, Judge.

text:
    A97A0304.
    DORROUGH v. THE STATE.
    (486 SE2d 644)
   Ruffin, Judge.

Jim Tom Dorrough was indicted in Clayton County for armed robbery, kidnapping, and sexual battery. Through a negotiated plea agreement, Dorrough pleaded guilty to armed robbery on June 1, 1994. The State nolle prossed the remaining kidnapping and sexual battery counts. Dorrough now challenges his guilty plea on appeal. For reasons which follow, we affirm in part and dismiss the appeal in part.

The record shows that Dorrough filed a timely notice of appeal following his plea. Because of significant confusion over Dorrough’s representation on appeal, however, we remanded the case for the Clayton County Superior Court to consider “[trial counsel’s] request to withdraw as [Dorrough’s] court-appointed attorney and determine whether another attorney should be appointed to represent [Dorrough] on appeal with appropriate findings thereon.” We further provided that upon resolution of these issues, Dorrough could reinitiate his appeal.

Following remand, the trial court permitted Dorrough’s trial counsel to withdraw and appointed new appellate counsel. Subsequently, on March 21, 1996, Dorrough filed a “Motion to Allow Arguably Out-of-Time Motion to Set Aside Guilty Plea.” He simultaneously filed a motion to set aside his plea. In response, the State moved to dismiss Dorrough’s motion to set aside as untimely. The trial court granted the State’s motion, finding that “many terms of the Court have passed preventing the Court from even considering ruling on [Dorrough’s] motion.” Dorrough then refiled his notice of appeal.

1. Dorrough argues that the trial court erred in denying his “Motion to Allow Arguably Out-of-Time Motion to Set Aside Guilty Plea” and dismissing his motion to set aside the plea. We disagree.

“During the term in which they are rendered, judgments of criminal conviction are in the breast of the trial court and may, therefore, be vacated for good cause shown. However, after the original term has passed, a motion to vacate and set aside the judgment is not an appropriate remedy in a criminal case. This rule applies equally to a withdrawal of a plea; otherwise, there would be no limit to time to withdraw a plea and no end to the case.” (Citations and punctuation omitted.) State v. James, 211 Ga. App. 149 (2), 150 (438 SE2d 399) (1993). Thus, “[t]he trial court’s authority to grant a motion to withdraw [or set aside] a guilty plea ends with the term of court in which the judgment of conviction is entered. [Cit.]” State v. Johnson, 222 Ga. App. 156 (473 SE2d 593) (1996).

The terms of court for the Superior Court of Clayton County commence on the first Monday in February, May, August, and November. OCGA § 15-6-3 (10). Dorrough’s guilty plea was entered on June 1, 1994, during the May 1994 term of court. See id. He moved to set aside that plea over 20 months and several terms later, on March 21, 1996. The trial court clearly lacked jurisdiction to set aside the plea as requested. Johnson, supra. Accordingly, we affirm the trial court’s decision dismissing Dorrough’s motion to set aside the plea and denying his motion to allow “out-of-time” motion to set aside the plea.

2. Dorrough also argues directly on appeal that his guilty plea was not voluntary and that he was denied effective assistance of counsel when entering the plea.

As recently reaffirmed by our Supreme Court, an appealing defendant may directly challenge a guilty plea where the question on appeal can be resolved through facts appearing in the record. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996). This rule applies to Dorrough’s allegation that his plea was involuntary, as well as his claim that he was denied effective assistance of counsel when entering the plea. Id. “Thus, the merits of [Dorrough’s] appeal can be addressed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.” Id.

Dorrough does not claim that the trial court followed an improper procedure in accepting his plea. He argues instead that his plea was based on “false and incorrect information” that trial counsel should have corrected. We find that the relevant issues cannot be resolved through review of the current record and guilty plea transcript. Rather, they “can be developed only in the context of a post-plea hearing” regarding the allegedly false information, its effect on the plea, and trial counsel’s actions. Id. at 422.

Decided May 6, 1997.

Before Judge Kilpatrick.

Martin L. Cowen III, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

We recognize that Dorrough sought an evidentiary hearing on these issues through his motion to set aside the guilty plea. As found in Division 1, however, the trial court properly dismissed that motion. Had Dorrough filed a timely motion to withdraw his plea, he could have fully aired his challenge below and pursued an appeal if unsuccessful. Id. Yet, “in this case there was no such [timely] motion or hearing and, thus, no appeal from an order denying the motion. The issues which [Dorrough] raises cannot be resolved only by facts appearing in the existing record. Accordingly, he was not entitled to file a notice of direct appeal.” Id.

As explained by the Supreme Court, “a delay in filing a motion .to withdraw the guilty plea beyond the term of court in which the guilty plea was accepted would have the same effect on the timely resolution of the issue as would a delay in filing a direct appeal beyond the expiration of the appeal period. In either instance, the defendant would be relegated to the remedy of habeas corpus. [Cits.]” Id. This portion of Dorrough’s appeal, including both challenges to his guilty plea, must be dismissed. Id.

Judgment affirmed in part and appeal dismissed in part.

Birdsong, P. J, and Eldridge, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A0403.
    In the Interest of D. T. C., a child.
    (487 SE2d 21)
   Birdsong, Presiding Judge.

The Gwinnett County Juvenile Court adjudicated 16-year-old D. T. C. delinquent after determining he committed acts which, were he an adult, would constitute the crimes of aggravated assault, possession of a firearm during the commission of a felony, and felony theft by taking.

Police called to a Gwinnett apartment complex found the victim and D. T. C. wrestling on the hood of a car. The 15-year-old victim testified that over the course of the preceding several days, he and D. T. C. had argued over a girl. Early on the morning of this incident, D. T. C. approached the victim at the bus stop wearing a black sweatshirt with the hood pulled over his face. He asked the victim to accompany him to a friend’s house. As they rounded the corner of a building, D. T. C. pulled a pistol and said, “You thought I was going to let this ride. I told you I was going to retaliate. . . . You are going to die, partner.” D. T. C. fired at the victim but missed. The victim ran, and D. T. C. chased him through the complex, firing the pistol several more times. When the pistol apparently jammed, the victim began wrestling with D. T. C., took the gun from him, and hit him in the head with it several times. A bystander picked up the gun and called police. The pistol was identified as the property of D. T. C.’s aunt, who testified D. T. C. had no permission to have it. After his arrest, D. T. C. gave an incriminating statement to police.

The court committed D. T. C. to detention for 60 months pursuant to OCGA § 15-11-37 (e). Held:

1. D. T. C. claims error in the admission of his videotaped custodial statement. See Riley v. State, 237 Ga. 124, 128 (226 SE2d 922); see also In the Interest of R. J. C., 210 Ga. App. 286, 287 (435 SE2d 759).

Evidence showed D. T. C. was 16 years old and taking tenth grade special education classes at the time of this incident. He had an I.Q. of 64 and was intellectually deficient. When an officer attempted to question D. T. C. at the hospital, D. T. C. said: ‘You know what happened.” The officer replied that he knew only one side of the story, and D. T. C. responded only: “well, you know the whole story.” According to his own testimony, the officer then informed D. T. C.’s mother that D. T. C. “didn’t want to talk about it. He didn’t want to say anything about what happened.” The officer then told D. T. C.’s mother that the boy would be taken to a police precinct to be interviewed, but appellant contends and there is supporting evidence that his mother was directed to the wrong jail. Appellant also contends his mother was never informed that she had a right to be present at any interrogation.

An investigator at police headquarters interviewed D. T. C. after contacting a juvenile intake officer. See OCGA § 15-11-19 (a) (3). Prior to the interview, the investigator explained to D. T. C. that juvenile charges would be brought against him. He then explained he wanted to make sure D. T. C. understood each of his rights. The investigator read to D. T. C. each right from a form, beginning with, “I have the right to remain silent.” However, the officer read these rights in first person so that it was voiced as if the officer had the right to remain silent. He asked D. T. C. if he understood each right, and D. T. C. responded affirmatively. At the Jackson-Denno hearing, however, D. T. C. testified that during the interview he knew what he said could be used in court and knew he could have his mother or an attorney there, but he was nervous and confused and did not understand he did not have to talk to the police. The investigator then asked “what happened,” and D. T. C. recounted the incident and answered questions.

The facts that D. T. C. has an I.Q. of 64, has an intellectual deficiency, and may be mentally retarded do not automatically invalidate his waiver of Miranda rights. J. E. W. v. State, 256 Ga. 464, 468 (4) (349 SE2d 713); Marlowe v. State, 187 Ga. App. 255, 256-257 (3) (370 SE2d 20). Weighing the credibility of the witnesses and the conflicting evidence presented, the juvenile court generally has discretion to admit a statement as knowingly, freely and voluntarily given, and we will not reverse such finding unless that discretion is manifestly abused. See J.E. W, supra.

Assuming for the sake of argument, however, that the court erred in admitting this statement, we shall not reverse the adjudication of D. T. C. as having committed the delinquent act charged. An appellant must show not merely error but also harm,; unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, we will not reverse. Stewart v. State, 180 Ga. App. 266, 267 (349 SE2d 18). We are troubled by the officer’s giving of the Miranda warning to this juvenile in the first person “I,” referring plainly to the officer and thus plainly indicating that the officer had the rights to remain silent and to have counsel present. We think this might naturally indicate to a person of low I.Q., or even an unsophisticated person of moderate I.Q., that the officer has the right to remain silent, and we expressly disapprove of that practice as potentially harmful error. Moreover, the psychologist’s testimony that he thought D. T. C. had an “adequate level of understanding” of his rights “as they’re read” by the officer in the videotape is fairly vague. However, it happens in this case that the other evidence against D. T. C. is so overwhelming that the admission of his statement probably did not affect the court’s adjudication; and moreover, evidence outside D. T. C.’s statement is so overwhelming as to his shooting at the victim and the circumstances of the shooting that any error, even constitutional error, in admitting D. T. C.’s statement probably did not affect the verdict. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

2. D. T. C.’s claim that the trial court erred in admitting booking photographs allegedly taken in violation of OCGA § 15-11-60 (e) is waived by his failure to object to this evidence before it was admitted. See Brewer v. State, 219 Ga. App. 16, 18 (3) (463 SE2d 906). Because D. T. C. was charged with a designated felony, admission of booking photographs was authorized by OCGA § 15-11-60 (a), and this objection would have been meritless even if an objection was properly raised.

3. We shall not consider D. T. C.’s claim that he had a right to demand that his case be transferred to adult court, because he made no motion for transfer and did not raise this issue with the juvenile court until his motion for new trial. This enumeration presents nothing for review. See Brewer, supra. Compare Thompson v. State, 258 Ga. 816, 817 (1) (375 SE2d 219).

4. The juvenile court found D. T. C. committed an offense which, had D. T. C. been an adult, would constitute the crime of “possession of a firearm during the commission of a felony” described in OCGA § 16-11-106 (b) (1). That statute states, in relevant part: “Any person who shall have on or within arm’s reach of his person a firearm . . . during the commission of . . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony.” (Emphasis supplied.)

D. T. C. argues, and the State acknowledges, that “[a] juvenile under the jurisdiction of the juvenile court is not charged with the commission of a crime, but rather with the commission of a delinquent act, which is not a crime but instead ‘[a]n act designated a crime by the laws of this state! OCGA § 15-11-2 (6) (A).” (Emphasis supplied.) In the Interest of M. B., 217 Ga. App. 660, 661 (458 SE2d 864).

OCGA § 15-11-2 (6) (A) clearly provides that a juvenile may be charged with commission of “[a]n act designated a crime by the laws of this state.” (Emphasis supplied.) However, appellant infers from In the Interest of M. B. and from In the Interest of J. B., 222 Ga. App. 252, 253 (1) (474 SE2d 111) that because juveniles do not commit “crimes” but rather “acts” which would be crimes if committed by an adult, a juvenile cannot be adjudicated for a delinquent act if the definition of the crime (as it would be if committed by an adult) requires a finding of another included or coincident “crime” or “felony.” This argument is erroneous. In the Interest ofM. B., supra at 662, merely held that the failure of a juvenile to appear as ordered does not amount to “felony-bail jumping” under a strict construction of OCGA § 16-10-51 (a), for that statute “does not embrace the failure of a juvenile to appear as ordered.” In the Interest ofJ. B. merely held that the juvenile could not be convicted of misdemeanor “escape” because he had not “been charged with a felony, misdemeanor, or violation of a municipal ordinance,” id. at 253 (1), and a close review of these facts shows that when J. B. removed himself from police custody he had not been charged with any act. The analysis of that case may have been different if the juvenile had been charged with an act “designated a crime” (OCGA § 15-11-2 (6) (A)) or with having committed a “designated felony act.” OCGA § 15-11-37 (a) (2) (B). In In the Interest of J. B. at 253, we stated that in In the Interest of M. B. “we held that the State could not show the juvenile had been ‘charged with ... a felony,’ as provided by the statute, even though the delinquency petition alleged facts which would constitute a felony had M. B. been an adult.” The reason J. B. could not be charged with a felony act in that case was that the crime of felony-bail jumping “does not embrace the failure of a juvenile to appear.” In the Interest of M. B., supra at 662.

The law balks at concluding that a juvenile has committed a “crime,” but it does not balk at calling his act a “designated felony act” (OCGA § 15-11-37 (a) (2) (B); see In the Interest of M. B., supra at 661), or an act which would be “designated a crime” if it were committed by an adult. OCGA § 15-11-2 (6) (A). We have never held that a juvenile cannot commit a “delinquent act” when the definition of the act as a crime (if committed by adults) includes a requirement of the commission of a “felony,” “designated felony,” or “crime.” See In the Interest of K. A. B., 188 Ga. App. 515 (373 SE2d 395). The “delinquent act” is an act which would be a “crime” if committed by an adult, and if this “crime” requires the finding of another or coincident “crime,” this likewise may be committed by a juvenile, although it is called a “delinquent act.” The use of these hard terms in the legislative definitions of crimes can cause no confusion in juvenile cases if they are understood always as allegations of a “delinquent act” when committed by a juvenile. In the Interest of M. B., supra.

Since appellant agrees he could be adjudicated of a “delinquent act” by committing an act which would be a crime if committed by an adult, his contention that he could not be adjudicated of a delinquent act if the “crime” contains within its definition another “crime” (which would also be a crime if committed by an adult) is inconsistent. The entire legislative scheme of adjudicating juveniles for committing “delinquent acts” is based on the fact that those acts would be crimes “if” committed by an adult (OCGA § 15-11-2 (6) (A); In the Interest of M. B., supra at 661), and this necessarily includes “crimes” which contain within their definition other acts designated as “crimes” or “felonies” if committed by an adult. It is necessary to an adjudication of a “delinquent act” that the act be one which is defined as, and would be, a “crime” if it were committed by an adult, and this includes “delinquent acts” which would include another or coincident “crime” if committed by an adult.

5. The trial court erred in its written finding that D. T. C. committed certain “offenses” The judgment below is affirmed on condition that the juvenile court’s finding that the child committed the offenses of aggravated assault, possession of a firearm during the commission of a felony, and theft by taking (felony) be amended to state that child committed “delinquent acts which would be crimes if committed by an adult, to wit, aggravated assault, possession of a firearm during the commission of a felony and theft by taking (felony).”

Decided May 6, 1997

Before Judge Rodatus.

Rich & Smith, Randolph G. Rich, for appellant.

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

Judgment affirmed on condition.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A0483.
    In the Interest of A. C., a child.
    (486 SE2d 646)
   Ruffin, Judge.

The juvenile court found A. C. delinquent for simple battery upon his schoolmate, C. D. In his sole enumeration of error, A. C. asserts that the juvenile court erred because there was insufficient evidence to rebut his claim of justification. We affirm.

Viewed in a light most favorable to support the court’s judgment, the evidence shows that A. C. and C. D. attended Griffin High School. On the day of the incident, A. C. and C. D. were arguing outside the school cafeteria, and C. D. told A. C. “I’m going to kick your butt. . . . [WJhere are all your boys. They ain’t here to help you.” A student observing the confrontation testified that at some point C. D. put bis hand up without touching A. C., “and then walked off.” According to the student, A. C. then “came up to [C. D.] and punched him and then they began to fight.”

Kevin Smith was a teacher at Griffin High School at the time of the incident. Smith testified that he ran outside his office when he heard students yelling. He stated that he saw C. D. “on his back . . . shaking a little bit and his eyes were rolled back and [A. C.] was stomping him in the head.” Smith then “restrained” A. C. and took him to the office. Two students similarly testified that they saw C. D. lying on the floor and A. C. kicking and stomping him around the face and chest area.

Although A. C. did not testify at trial, he presented testimony from a student that the fight started after C. D. pushed A. C. A. C. contends that his conduct was justified because he was attempting to defend himself against C. D.

“Our responsibility on appeal is not to weigh the evidence and give a de novo opinion as to the weight of the evidence but merely to determine if there is sufficient evidence to authorize the trial court’s judgment. . . . We will not speculate as to what evidence the trier of fact chose to believe or disbelieve. . . . Although the evidence was in conflict on the issue of whether [A. C. or C. D. initiated the physical confrontation], the trier of fact resolved that issue against [A. C.] and this court will not substitute its judgment for that of the trier of fact. [Cit.]” In re J.P., 169 Ga. App. 744, 745 (315 SE2d 259) (1984).

Decided May 6, 1997.

Before Judge Cook.

Alvin L. Kendall, Lisa R. Roberts, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

Finally, we note that although opprobrious remarks can justify a simple battery under OCGA § 16-5-25, such “battery can not be disproportionate to the opprobrious words used. . . .” Collum v. State, 65 Ga. App. 740, 742 (16 SE2d 483) (1941) (decided under former Code 1933, § 26-1409). It was for the trier of fact to determine whether the battery in this case was justified by C. D.’s opprobrious words, and the trial court apparently found that it was not. See id.; OCGA § 16-5-25.

We thus conclude that the foregoing evidence was sufficient for a rational trier of fact to find A. C. guilty beyond a reasonable doubt of simple battery. See OCGA § 16-5-23 (a) (2); In re J. P., supra.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A97A0502.
    DEAN v. NATIONSBANK.
    (486 SE2d 647)
   Pope, Presiding Judge.

Plaintiff Thomas Dean had a checking account with defendant NationsBank (“the bank”). When Dean failed to pay his federal income taxes, the IRS served the bank with a notice of levy. See 26 USCA §§ 6331 & 6332. After notifying Dean and waiting 21 days as required by § 6332 (c), the bank complied with the levy and surrendered the money in Dean’s account to the IRS. Despite notification that his access to automated teller machines (ATMs) was restricted during this 21-day period, Dean made several withdrawals from his account at ATMs, resulting in an overdraft of $2,500. Dean sued the bank for wrongfully surrendering his money to the IRS, and the bank counterclaimed for conversion of the $2,500. After Dean failed to respond to requests for admissions, the trial court granted the bank’s motion for summary judgment on Dean’s claim as well as the bank’s counterclaim. Concluding that Dean’s position is patently meritless, we affirm the judgment below and impose a penalty of $1,000 for a frivolous appeal under Court of Appeals Rule 15 (b).

1. Summary judgment on Dean’s claim was proper because the bank’s compliance with the IRS notice of levy was not wrongful as a matter of law. Under § 6332 (e), a bank which surrenders a delinquent taxpayer’s property in compliance with an IRS levy cannot be liable to the delinquent taxpayer. And if the bank had refused to pay the money in Dean’s account to the IRS, the bank would have been liable to the IRS for that amount plus a penalty. See 26 USCA § 6332 (d).

Dean suggests the levy was invalid because the IRS never initiated judicial proceedings against him. Contrary to Dean’s contention, however, § 6331 does not require the IRS to sue a delinquent taxpayer prior to levy. Rather, it provides for the administrative levy of any property of the taxpayer ten days after notice and demand for payment. See 26 USCA § 6331 (a).

Dean also argues that the bank violated OCGA § 7-1-353 (a) by denying him, as sole depositor, control over his bank account. But this subsection starts with the phrase “[e]xcept as provided in subsections (b) and (c),” and subsection (b) explicitly allows a bank to act and rely upon a levy.

2. Summary judgment on the bank’s counterclaim for conversion was also proper. The bank served Dean with requests for admissions on February 12,1996. The trial court’s order granting summary judgment for the bank was issued June 18, 1996, and at that time Dean had not responded to the requests for admissions. Accordingly, the trial court properly treated the matters addressed therein as admitted, see OCGA § 9-11-36; Hammett v. Bailey, 147 Ga. App. 105, 106 (248 SE2d 180) (1978), and these admissions conclusively established that Dean had converted the $2,500.

Dean, who has represented himself throughout this case, asserts he thought he did not need to respond to discovery because he had a pending “Motion for Judgment by Reason of Liquidated Damages.” Even if this were a valid excuse, however, that motion was denied in March 1996, in an order warning Dean to comply with discovery requests; and in June, Dean still had neither responded nor moved to withdraw or amend his admissions.

3. In filing this action and pursuing this appeal, Dean’s positions have consistently been without any valid basis in fact or law. And this is not the first time Dean has wasted the time and resources of others by filing frivolous pro se lawsuits and appeals. His legal activities before 1988 are chronicled in Dean v. ARA Environmental Svcs., 124 FRD 224 (N.D. Ga. 1988), and a sampling of his more recent litigation is described in Dean v. Schreeder, Wheeler & Flint, 222 Ga. App. 426, 427-428 (474 SE2d 648) (1996).

In light of the frivolous nature of this appeal, we assess a penalty of $1,000 against Dean, to partially recompense the bank and discourage Dean from filing further frivolous appeals. See Court of Appeals Rule 15 (b).

Decided May 6, 1997.

Before Judge Lane.

Thomas G. Dean, pro se.

Parker, Hudson, Rainer & Dobbs, William J. Holley II, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A97A0520.
    HOWARD v. AMLI REALTY COMPANY.
    (486 SE2d 649)
   McMurray, Presiding Judge.

Plaintiff Howard filed this negligence action against defendant AMLI Realty Company. Defendant did not file a timely answer, and its motion to open default was denied. The case was placed on a non-jury default calendar, but when the case was called plaintiff was not present. Defendant’s motion to dismiss due to plaintiff’s failure to appear and prosecute the case was granted. The dismissal of the case with prejudice was entered on February 13, 1996.

On March 21, 1996, plaintiff filed his motion for reconsideration and motion to set aside the order of dismissal. Plaintiff’s allegations in support of these motions included assertions that non-amendable defects appeared on the face of the record. These motions were denied, and plaintiff’s application for discretionary review of the denial of his motion to set aside was granted. Held:

“Under Uniform Superior Court Rule 14, the trial ‘court may dismiss without prejudice any civil action . . . upon the failure to properly respond to the call of the action for trial. . . .’ (Emphasis supplied.) Pursuant to OCGA § 9-11-41 (b) and (c), the dismissal of a counterclaim ‘for failure ... to prosecute does not operate as an adjudication upon the merits. . . .’ These authorities restrict the dismissal of an action for failure to appear at the call of the case ‘to one without prejudice.’ Kraft, Inc. v. Abad, 262 Ga. 336 (417 SE2d 317) (1992).

“Because the trial court’s dismissal of the [plaintiff’s claim] with prejudice constituted a nonamendable defect on the face of the record, see generally Cooley v. All the World, 247 Ga. 459 (3) (276 SE2d 615) (1981); Murphy v. Murphy, 263 Ga. 280, 283, fn, 2 (430 SE2d 749) (1993); Brown v. C & S Nat. Bank, 245 Ga. 515, 517 (265 SE2d 791) (1980), the trial court erred in denying [plaintiff’s] motion to set aside the judgment under OCGA § 9-11-60 (d).” (Footnote omitted.) Bonner v. Green, 263 Ga. 773, 774 (438 SE2d 360).

Decided May 6, 1997.

Before Judge Glanville, pro hac vice.

Christopher J. McFadden, for appellant.

Baker & Shivers, Thurbert E. Baker, Eleanor L. Martel, for appellee.

Judgment reversed.

Beasley and Smith, JJ, concur.


text:
    A97A0797.
    A97A0798.
    LESTER v. THE STATE. PALMER v. THE STATE.
    (487 SE2d 25)
   Ruffin, Judge.

A jury found Charles Lester, Jr. and Clarence Jermaine Palmer guilty of possession of cocaine with intent to distribute. Palmer was also found guilty of selling cocaine. In Case No. A97A0797, Lester contends that his conviction should be reversed based on the general grounds and the trial court’s denial of his motion to suppress. In Case No. A97A0798, Palmer contends that his conviction should be reversed based on the general grounds. Finding no merit to either defendant’s contentions, we affirm.

Construed in a light most favorable to support the verdict, the record shows the following. Using a confidential informant, the Marietta Police Crime Interdiction Unit conducted a controlled buy at a house on Birney Street. Officers met the informant within walking distance from the house, confirmed that he did not have money or drugs in his possession, and gave him some money after recording the serial numbers from the currency. The officers maintained visual contact with the informant as he approached the house and saw that he did not stop or speak to anyone while en route.

The informant knocked on the door, but no one responded. As the informant was about to leave, a blue Chevette pulled into the driveway. Palmer and his co-defendant, Charles Lester, exited the passenger side, and a third male exited the driver’s side. The informant and the three men then entered the house. Officers observed Palmer and Lester speaking with the informant. Following their conversation, the informant left the house and gave the officers a small blue-tinted ziplock baggie containing cocaine. The informant no longer had the money which he previously had been furnished.

Approximately 30 minutes later, while waiting for a warrant to search the house, Officer Kelker saw Palmer, Lester, and the third male leave the house in the blue Chevette. He radioed Officer Craig Fowler, and Officer Fowler stopped the vehicle a few blocks from the house. Officer Fowler exited his police car and saw what he characterized as an “extremely large amount of movement” in the car. According to the officers, Palmer, who was seated in the right rear passenger seat, and Lester, who was seated in the front passenger seat, were moving their hands below their waists.

Fearful that the two men were reaching for weapons, Officer Fowler and Officer Shaddix drew their weapons and ordered the car’s occupants to raise their hands. Lester initially disregarded the officers’ command, dropping his left hand out of the officers’ view before complying. Palmer also disregarded the officers’ command, placing his hands up, dropping them between his legs, and then alternating raising each hand. As the officers approached the vehicle, they observed Palmer’s hand and fingers underneath the seat and saw the edge of a plastic bag when Palmer pulled his fingers out from under the seat. Two small blue-tinted ziplock baggies containing cocaine were inside the plastic bag. Officer Shaddix testified at trial that the small baggies were the type commonly used in the packaging and selling of cocaine.

Officer Shaddix found a work glove between the front passenger bucket seat and a center console, where Lester had dropped his left hand. It contained a sandwich bag with two small blue-tinted ziplock baggies and one small clear ziplock baggie inside. Another small blue-tinted ziplock baggie was stuffed further down in the glove. The baggies contained cocaine and benzocaine, a cutting agent. Officer Shaddix also seized $198, including the money which the police had given the informant, from Lester’s pocket.

According to the record, the driver of the car was Tracy Williams and the left rear passenger was a juvenile. The record is clear that both Williams and the juvenile immediately raised their hands when the police ordered them to do so, and no contraband was found on or in the vicinity of the juvenile. A small amount of marijuana was taken from Williams.

Palmer admitted stuffing the plastic bag under the seat, but claimed the bag did not belong to him. He also testified that he did not see or hear anyone come to the door shortly before he left the Birney Street house.

Ephram Jones, who testified on behalf of Palmer, claimed that he was at the Birney Street house when Palmer and Lester left with the other individuals. According to Jones, Marlin McHenry lived in and sold cocaine from the house. Jones testified that shortly before Palmer and Lester left, an individual knocked on the door and wanted to purchase cocaine, but was turned away. Jones also testified that Williams was carrying “a little glove or something” when he left the house.

Eric Neal, who testified on behalf of Lester, identified himself as the left rear passenger. He claimed he was with Palmer and Lester at the house and that no one came to the house or knocked on the door shortly before they left. He further testified that he did not see Lester with a glove and that he did not see Palmer stuff the plastic bag under the seat.

Case No. A97A0797

1. In his first enumeration of error, Lester contends the trial court erred in denying his motion to suppress on the grounds that “the stop, search and seizure of [Lester] violated [his] Fourth Amendment rights to unreasonable searches and seizures and was without probable cause.” We disagree.

“A trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. [Cit.]” Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996). This Court must construe the evidence most favorably to upholding the trial court’s judgment in this regard. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

So viewing the evidence, including that introduced at trial (State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995)), it was established that officers of the Marietta Police Department received information from an informant that Lester and Palmer were selling drugs from a house on Birney Street. The informant had previously given reliable information in at least 15 cases and stated that Lester and Palmer maintained the drugs they sold on their person. Based on this information, a controlled buy of cocaine by the informant was arranged.

The officers saw Lester and Palmer enter the house with the informant, saw the three individuals conversing inside the house, and then saw the informant exit the house in possession , of cocaine. Shortly thereafter, Lester, Palmer and a third male exited the house and left in the blue Chevette in which they had arrived. Officer Craig Fowler then stopped the vehicle.

“Based on the information received from the [informant, as well as the observations of the officers], the officer had ‘specific and articulable facts’ which reasonably warranted a brief stop of the vehicle. [Cit.]” Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69) (1990); Anthony v. State, 197 Ga. App. 297, 298 (1) (398 SE2d 580) (1990). “ ‘Because [Lester] had been identified as a possible suspect (in the distribution of illegal drugs) there was sufficient articulable suspicion for the (officer) to temporarily detain [him] and question him.’ [Cit.] The subsequent arrest and search were proper because they were made only after reason for the arrest arose during the legal investigative stop. [Cits.]” Id.

“Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. [Cit.] . . . When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search. [Cit.]” McKinney v. State, 184 Ga. App. 607, 608-609 (1) (362 SE2d 65) (1987). In the present case, the officers had sufficient articulable facts to make an investigatory stop of the vehicle in which Lester was a passenger. Thereafter, grounds for a warrantless search arose during the investigative stop.

The trial court did not err in denying Lester’s motion to suppress.

2. Lester further contends that the trial court erred in denying his motion for a directed verdict of acquittal and motion for a new trial based on the insufficiency of the evidence. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Lester] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). “The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. [Cit.]” Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996). Moreover, “the test established [in Jackson] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

While it is true that a defendant may not be found guilty of possession based solely on his spatial proximity to contraband, the evidence in the present case established that Lester was observed reaching his hand where a portion of the cocaine was located. This evidence was sufficient to authorize the finding of guilt beyond a reasonable doubt. Jackson v. Virginia, supra; Hicks v. State, 195 Ga. App. 887, 888 (1) (395 SE2d 341) (1990).

Moreover, Lester’s intent to distribute was evidenced by the earlier sale of cocaine in similar packaging, by his possession of a large sum of cash, including the bills from the earlier sale, by his possession of a cutting agent, and by testimony establishing that the cocaine was packaged for distribution. See Sams v. State, 197 Ga. App. 201 (1) (397 SE2d 751) (1990). A review of the evidence reveals that it was sufficient for a rational trier of fact to find Lester guilty beyond a reasonable doubt of possession with intent to distribute. Id. Lester’s argument that the trial court erred in denying his motion for a directed verdict and motion for a new trial is without merit.

Case No. A97A0798

The trial court did not err in denying Palmer’s motion for a directed verdict of acquittal and motion for new trial based on the evidence presented.

3. Palmer argues that the evidence was insufficient regarding the possession with intent to distribute charge because Officer Fowler was the only officer who actually saw Palmer’s fingers in contact with the plastic bag containing cocaine. However, “[t]he testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8; Mooney v. State, 221 Ga. App. 420, 423 (1) (471 SE2d 904) (1996) (physical precedent only). Officer Fowler’s testimony that he saw Palmer’s hands on the plastic bag containing cocaine was sufficient to authorize a rational trier of fact to find that Palmer possessed the cocaine found under his seat. Moreover, Palmer actually admitted that he stuffed the bag containing cocaine under his seat.

Palmer’s reliance on the equal access rule is misplaced. “ ‘The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. (Cit.)’ [Cit.]” Bowen v. State, 203 Ga. App. 371 (1), 372 (417 SE2d 18) (1992). Because the State did not rely on a presumption to prove Palmer’s possession of the cocaine, but presented direct evidence of such, the equal access rule was not triggered. Id.

Moreover, even if the equal access rule was triggered, it would not bar Palmer’s conviction. “[M]erely finding contraband in a car occupied by [Palmer] is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than [Palmer] had equal opportunity to commit the crime. . . . However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the jury.” (Citations and punctuation omitted.) Griggs v. State, 198 Ga. App. 522, 523 (402 SE2d 118) (1991). In the present case, the State presented evidence that Palmer was observed with his hand and fingers on the plastic bag containing the small blue-tinted ziplock baggies underneath his seat. Although Palmer denied that the bag was his, it was for the jury to weigh Palmer’s argument concerning why he placed the plastic bag under his seat and to determine Palmer’s guilt or innocence.

Palmer further contends that the evidence was insufficient to support his conviction for possession with intent to distribute because of the nominal amount of cocaine actually possessed by him. While it is true that to support a conviction for possession of cocaine with intent to distribute the State must prove more than mere possession (Sams, supra), we find no merit in Palmer’s contention that he possessed only a nominal amount of cocaine. The testimony of the officers regarding Palmer’s conversation with the informant, as well as Palmer’s actions when the Chevette was pulled over, authorized the jury to find Palmer guilty of possession of cocaine with intent to distribute, despite the fact that the total amount of cocaine found under Palmer’s seat may have been nominal. Id. The jury was farther authorized to conclude that Palmer was in joint constructive possession of the cocaine found next to Lester. See Blaise v. State, 185 Ga. App. 653 (1) (365 SE2d 499) (1988).

Moreover, the evidence shows that the cocaine under Palmer’s seat was divided into two small ziplock baggies, and the cocaine located next to Lester was divided into four small ziplock baggies. “This manner of packaging being commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that [Palmer] possessed cocaine with intent to distribute. [Cit.]” Williams v. State, 199 Ga. App. 544, 545 (1) (405 SE2d 539) (1991). See also Sims v. State, 213 Ga. App. 151, 153 (3) (444 SE2d 121) (1994). This inference is further supported by the evidence establishing Palmer’s participation in the sale of similarly packaged cocaine to the informant.

Viewing the evidence in the light most favorable to uphold the jury’s verdict, we find the evidence sufficient to authorize a rational trier of fact to find Palmer guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, supra; Curtis, supra. Palmer’s argument that the trial court erred in denying his motion for a directed verdict and motion for a new trial is without merit.

4. Palmer further argues that the evidence was insufficient with regard to the sale of cocaine charge. We disagree.

Although there was conflicting evidence presented by Palmer regarding his involvement with the cocaine, “ ‘(i)t is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses. (Cits.)’ [Cit.]” Vick v. State, 211 Ga. App. 735, 736 (1) (440 SE2d 508) (1994). The record shows that Officer Kelker saw Palmer and the informant conversing during the time the sale was taking place, and Palmer’s participation in the sale was corroborated by proof of his possession of similarly packaged cocaine shortly thereafter. See Hammond v. State, 212 Ga. App. 145 (1) (441 SE2d 675) (1994); Winkfield v. State, 186 Ga. App. 396, 397 (1) (367 SE2d 283) (1988). The foregoing evidence, construed in a light most favorable to support the verdict, was sufficient to authorize a rational trier of fact to find Palmer guilty beyond a reasonable doubt of the sale of cocaine. Jackson v. Virginia, supra; Owens v. State, 213 Ga. App. 693, 694 (5) (445 SE2d 818) (1994). Palmer’s argument that the trial court erred in denying his motion for a directed verdict and motion for a new trial on this ground is without merit.

Decided May 6, 1997.

Before Judge White.

John R. Greco, for appellant (case no. A97A0797).

Roger L. Curry, for appellant (case no. A97A0798).

Thomas J. Charron, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A1539.
    KAPPELMEIER v. HOMER.
    (486 SE2d 612)
   McMurray, Presiding Judge.

Plaintiff Gottfried A. Kappelmeier filed a pro se complaint alleging defendant Speros D. Homer “libeled the Plaintiff by publishing with actual malice and reckless disregard for truth a false and defamatory letter. . . .” Defendant denied the material allegations and filed a counterclaim, alleging that plaintiff’s complaint lacked substantial justification and was frivolous, groundless and vexatious. This counterclaim was dismissed in an order entered on April 15, 1996.

Thereafter, defendant moved for summary judgment on the basis of privilege, which motion was granted in an order entered November 4, 1996. On November 27, 1996, plaintiff moved to set aside the trial court’s order granting summary judgment but this motion was denied on January 30, 1997. This direct appeal followed. Held:

Under OCGA § 5-6-35 (a) (8), orders denying “all motions to set aside a judgment, including those predicated on a nonamendable defect or lack of jurisdiction, may be appealed only by discretionary grant unless the motion to set aside was combined with a motion for new trial or a motion for j.n.o.v. See Martin v. Williams, 263 Ga. 707, 710 (438 SE2d 353); OCGA § 5-6-34 (d).” MMT Enterprises v. Cullars, 218 Ga. App. 559, 561 (462 SE2d 771). In the case sub judice, plaintiff’s notice of direct appeal does not confer appellate jurisdiction on this Court to consider the trial court’s denial of plaintiff’s motion to set aside, in the absence of a proper and timely order granting plaintiff permission to pursue a discretionary appeal. Consequently, Case No. Á97A1539 must be dismissed.

Decided April 9, 1997

Reconsideration denied May 7, 1997

Before Judge Stark.

Gottfried A. Kappelmeier, pro se.

Speros D. Homer, Jr., pro se.

Appeal dismissed.

Beasley and Smith, JJ, concur.


text:
    A97A1248.
    HALL v. THE STATE.
    (487 SE2d 41)
   Eldridge, Judge.

The appellant, Larry Hall, was charged with two counts of stalking and one count of harassing phone calls by an accusation dated June 26, 1996. On June 27, 1996, the jury returned a verdict of not guilty on Count 1, stalking, and a verdict of guilty on Count 2, stalking, and Count 3, harassing phone calls.

The appellant, in his sole enumeration of error, alleges that there is insufficient evidence to support the verdict rendered on Counts 2 and 3 of the accusation.

It is for the trier of fact to weigh the evidence and assess the witnesses’ credibility. “Upon the finding of guilt, the presumption of innocence no longer applies, and on appeal, we construe the evidence in favor of the findings of the trier of fact; we do not weigh the evidence or determine witness credibility but merely determine the sufficiency of the evidence. [Cit.T Adkins v. State, 221 Ga. App. 460 (471 SE2d 896) (1996).

(a) “A person commits the offense of harassing phone calls if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person . . .; uses over the telephone language threatening bodily harm; [or] telephones and intentionally fails to hang up or disengage the connection. . . .” OCGA § 16-11-39.1 (a). The evidence presented at trial showed the following:

The appellant was engaged in a romantic relationship with the victim, Sybil Coston, from December 1993, or January 1994, through August 1995. The couple “broke-up” in April 1995, but soon got back together. In August 1995, Coston ended the relationship, telling the appellant that she did not wish to see him or talk with him again.

After the appellant and Coston ceased dating in August 1995, the appellant started telephoning Coston, her parents, and her friends. Coston testified that she believed that she received approximately 150 telephone calls from the appellant, despite the fact she had asked him not to call her any longer; that initially he would talk or leave a “tape full of messages” on her answering machine; that she was able to recognize his voice over the telephone because of the many times in the past she had spoken to the appellant on the telephone; that of these 150 telephone calls, she recognized his voice on at least 50 to 60 of the calls; that she received telephone calls all through the day and night, up until 1:00 or 2:00 a.m.; and that she finally had her telephone number changed. Coston further testified that the appellant obtained her new telephone number within a few days and that after she had her number changed, the appellant would often not speak and hang up; however, Coston’s caller I.D. often recorded that the calls were coming from the telephone number for the appellant’s place of employment. Coston went on to testify that the appellant had both his mother and his daughter call her. Further, Coston testified that on some days the calls would come one after the other. However, there were times when a couple of days would go by without the appellant calling.

Coston also received telephone calls from the appellant on her cellular phone and had to have that number changed. Coston received such a large number of telephone calls that she contacted the annoyance call center for the telephone company and requested its assistance in stopping the telephone calls, and she also began keeping a handwritten log of all incoming telephone calls, which showed the telephone number that appeared on her caller I.D. On two separate occasions, the appellant telephoned Coston collect and gave a false name. When Coston accepted the telephone calls, the appellant responded with, “Oh, you will take a call from them but you won’t take one from me.”

The appellant argues that the State failed to prove that he was, in fact, the person who called Coston because none of the calls was made from the appellant’s home telephone; that the calls from the Farmers’ Market were not from the telephone of the Farmers’ Market Police Department where the appellant was employed; and that the remainder of the calls originated from coin telephones or from telephones in places of business other than appellant’s employment. However, these arguments are without merit in light of Coston’s testimony that she recognized the appellant’s voice on approximately 50 to 60 of the telephone calls and the appellant’s own testimony that he did, in fact, call Coston after they broke up in August 1995. The jury chose to reject the appellant’s testimony that Coston had never requested him not to call her after August 1995. Viewed in a light most favorable to upholding the jury’s verdict, the evidence presented at trial was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of harassing phone calls. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) “A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. For the purpose of this article, the term ‘place or places’ shall include any public or private property occupied by the victim other than the residence of the defendant. For the purposes of this article, the term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself. . . and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.” OCGA § 16-5-90 (a). The evidence presented at trial showed the following:

After the relationship between Coston and the appellant ceased in August 1995, the appellant followed Coston on four different occasions. On the first occasion, Coston was driving down the street and when she looked in her rearview mirror, she saw the appellant behind her. Coston testified that she increased the speed at which she was driving and made several turns but that the appellant continued to follow her; that when she got to Memorial Drive the appellant tried to pull up beside her, but she was able to drive away. Finally, Coston drove into the parking lot of a Blockbuster Video store and ran inside the building. Coston testified that she was frightened and asked the employees of the store “to look at him.” When Coston left the store, the appellant was standing at her car and would not allow her to shut the car door.

The second incident occurred when Coston went to a Cub Food store which was attached to a K-Mart. When Coston entered Cub Food, the appellant was at the front of the store, and he spoke to Cos-ton. When Coston went to check out, the appellant was still at the front of the store and started to walk toward her. Coston testified that she paid for the items and went through K-Mart so that she could exit at a door other than the one at which the appellant was standing. When Coston started across the parking lot, she saw the appellant walking toward her. The appellant met Coston at her car and tried to talk with her as she got into her car.

The third incident occurred when Coston and her roommate were returning home. The appellant followed them into their apartment complex but did not exit his car.

The fourth incident occurred when Coston was unloading groceries from her car at her home. The appellant drove up in his car. Coston testified that she was frightened “because he startled me just by saying something when I was in the trunk of my car.”

Coston further testified that there were many incidents after August 1995, when she came home from work, and the appellant would be sitting at the gas station down the street, or coming out of her apartment complex. Coston further testified that her apartment complex is on a dead-end street that has no outlet and that the appellant lived approximately one mile away.

The appellant also sent things to Coston’s place of employment, sent Coston numerous greeting cards, and left teddy bears, flowers, and cards on her doorstep. In October 1995, Coston went to Magistrate Court and requested a warrant be issued against the appellant. When she arrived in the parking lot for the hearing, the appellant was waiting for her and attempted to give her “a bag or something,” which she refused. Coston also testified that the appellant proposed to her that day outside the courthouse. The judge ordered the appellant to stay away from Coston.

The appellant’s argument that his behavior toward Coston was neither “harassing or intimidating” because his actions did not place Coston in reasonable fear of death or bodily harm is without merit. Coston testified that the appellant’s behavior frightened her; that even though the appellant had never been physically violent toward her, he would get upset and yell and scream, and he was verbally abusive toward her; and that her fear further stemmed from her knowledge that the appellant was a police officer and owned three guns. Although the appellant testified that he was only seeking to rekindle a relationship and gave testimony that sought to undermine Coston’s testimony that she was in fear, the jury was authorized to believe Coston’s testimony. Clearly, the appellant’s behavior went beyond what would be considered normal efforts to rekindle a relationship. Viewed in a light most favorable to upholding the jury’s verdict, the evidence presented at trial was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of stalking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided May 7, 1997.

Before Judge Majette.

H & M Johnson, Henry C. Johnson, Jr., for appellant.

Ralph T. Bowden, Jr., Solicitor, Noah H. Pines, W. Cliff Howard, Assistant Solicitors, for appellee.

       Coston was unaware that the appellant was employed by this K-Mart to perform undercover work.


text:
    A97A1266.
    SALTER v. GREENE.
    (486 SE2d 650)
   Eldridge, Judge.

On November 26, 1996, appellant Mary Salter was held in contempt of court for allegedly violating an alleged court order; she was sentenced to 20 days confinement and fined $500. Finding that the trial court failed to provide the appellant with even the most basic requirements of due process, we reverse the trial court’s judgment. Further, we find that the trial court erred as a matter of law in finding the appellant in contempt of the court order at issue.

On or about February 20, 1996, appellant’s husband at that time, Larry Salter (“Salter”), was charged with violating the Battery/ Family Violence Act, OCGA §§ 16-5-23 and 19-13-1. Salter was released on bond, but the Magistrate Court of Upson County revoked Salter’s bond in April 1996 for alleged violations of the conditions of his bond. Salter filed a habeas corpus petition, which was heard by the trial court in May 1996, and he was released on a $20,000 bond. The trial court imposed a special condition of the bond which required that Salter was “to have no contact directly or indirectly with Mary Jean Salter [the appellant] nor is he to have anyone make contact with her on his behalf.” The court order granting bond was not worded as an injunction or restraining order applicable to anyone other than Larry Salter; it appears only for the protection of the appellant and does not state that she cannot waive such protection.

On September 26, 1996, Salter was charged with, inter alia, aggravated stalking and making terroristic threats toward the appellant. Part of the basis for such charges involved a trip to Florida Salter made with the appellant, allegedly to discuss issues in their pending divorce action. A hearing was set to determine whether, in making such contact with the appellant, Salter violated the conditions of his previous bond. The appellant was ordered to appear at the hearing as a material witness. The order did not cite the appellant for any alleged contempt on her part, nor did it advise the appellant that she would be called upon to defend herself against a charge of criminal contempt.

However, at the time of the court’s order, the appellant was hospitalized in a psychiatric facility and was receiving treatment for severe depression. The trial court was aware of the appellant’s hospitalization and issued an order to the facility to produce the appellant so that she could testify at the hearing. The facility, on behalf of the appellant, moved to quash the order, attaching a physician’s affidavit which asserted that the appellant was incapable of testifying because of her mental condition and that forcing her to testify would be detrimental to her health.

During the November 26, 1996 hearing, the trial court granted the motion to quash the order because the appellant was neither competent nor capable of testifying; the appellant was not compelled to testify. However, after hearing testimony that Salter and the appellant had mutual voluntary contact with each other during a trip to Florida, the trial court found both Salter and the appellant in criminal contempt of the trial court’s May 1996 order which had reinstated Salter’s bond and which, as a special condition of bond, had prohibited Salter from contacting the appellant. Appellant was not notified of the alleged contumacious conduct and was provided no opportunity to secure counsel, present evidence, argue, testify, or otherwise defend herself against the criminal contempt charge. Held:

1. The appellant asserts as error the trial court’s finding that she was in criminal contempt of a court order absent any notice or opportunity to defend against such charge. We agree.

The appellant was found in constructive criminal contempt of court, in that her alleged violation, i.e., voluntarily accompanying Salter on a trip to Florida, was outside the presence of the court. “In cases of constructive contempt of court, where the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused,” thereby giving the accused notice of the pending contempt charge, providing an opportunity for the accused to be heard, and affording a reasonable time for the accused to prepare a defense to the charge. Crocker v. Crocker, 132 Ga. App. 587, 589 (208 SE2d 602) (1974); see also Anthony v. Anthony, 240 Ga. 155, 157 (240 SE2d 45) (1977) and cases cited therein; McDaniel v. State, 202 Ga. App. 409, 412 (414 SE2d 536) (1992); Mijajlovic v. State, 179 Ga. App. 506, 507 (347 SE2d 325) (1986); Martin v. Waters, 151 Ga. App. 149, 150 (259 SE2d 153) (1979).

Further, “ ‘[cjriminal contempt is a crime in the ordinary sense’ . . . [and] the evidence of the contempt must be beyond a reasonable doubt.” Garland v. State, 253 Ga. 789, 790 (325 SE2d 131) (1985). “Contempt is a drastic remedy which ought not to deprive one of [her] liberty unless it rests upon a firm and proper basis.” (Citations and punctuation omitted.) Martin, supra at 150.

No rule nisi was issued in the case sub judice. The trial court order mandating the appellant’s appearance as a material witness offered no indication that the appellant should be prepared to defend herself against contempt charges for her participation in the Florida trip with Salter.

Decided May 7, 1997.

Before Judge Caldwell.

William A. Adams, Jr., for appellant.

William T. McBroom III, District Attorney, Mallory & Trice, Truitt A. Mallory, for appellee.

Further, during the November 1996 hearing, the trial court was aware that the appellant was without legal representation, was not advised of the contempt charge against her, and was, in fact, physically and mentally incapable of participating in her own defense. Even so, the trial court suddenly and unexpectedly announced that the appellant was in contempt of a court order. Under the circumstances, it is clear that the appellant was denied even the most fundamental requirements of due process. Therefore, the trial court’s order finding that she was in contempt must be reversed.

2. In the second enumeration of error, the appellant asserts that the trial court erred in finding her in contempt, as the order which she allegedly violated did not prohibit her from having voluntary contact with her ex-husband, Salter. We agree and find that, as a matter of law, she cannot be charged with contempt for violating the order at issue.

In May 1996, the trial court prohibited Salter from having any contact with the appellant. Such prohibition was a special condition of Salter’s bond; it was not a restraining order, as the trial court contended in its November 26, 1996 order holding Salter and the appellant in contempt. As such, the language of the order’s condition would not put a reasonable person on notice that the condition applied to anyone other than Salter. Further, as a condition of Salter’s bond, the penalty for his violation of the prohibition is bond revocation, not a contempt citation. See generally Heard v. State, 154 Ga. App. 420 (268 SE2d 757) (1980).

The appellant was not subject to the bond condition, which, in fact, was issued for her protection. As a matter of law, the appellant cannot be found in contempt for violating a condition of another person’s bond.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.