author: Pope, Presiding Judge. McMurray, Presiding Judge,

text:
    A96A2227.
    CHAICHIMANSOUR et al. v. PETS ARE PEOPLE TOO, NO. 2, INC.
    (485 SE2d 248)
   Pope, Presiding Judge.

Plaintiff Pets Are People Too hired defendant Suzanne Chaichimansour as the manager of one of its veterinary clinics and as a veterinarian. In her employment contract, Chaichimansour agreed that for two years following termination of her employment, she would not manage a veterinary clinic or work as a veterinarian within five miles of the clinic she managed (and at which she worked as a veterinarian) for plaintiff. Nevertheless, she voluntarily left her job and through defendant Best Friend Veterinary Services, Inc., purchased Northeast Expressway Animal Clinic, Inc., an existing veterinary practice located within five miles of plaintiff’s clinic. Plaintiff brought this action to enjoin Chaichimansour from managing or providing veterinary services at the newly purchased clinic, and the trial court granted plaintiff’s request for a permanent injunction. Concluding that the covenant not to compete is reasonable and enforceable, we affirm.

1. Defendants argue that the covenant not to compete is over-broad, and thus unenforceable, because it prevents Chaichimansour from serving clients whom she never saw or had contact with while employed by plaintiff.

Covenants not to compete in employment contracts are enforceable if they are reasonable in terms of duration, territorial coverage, and the scope of activity precluded, considering the legitimate business interests the employer seeks to protect and the effect on the employee. See W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (1) (422 SE2d 529) (1992); Watson v. Waffle House, 253 Ga. 671 (2) (324 SE2d 175) (1985). Using this analysis, we have enforced covenants at least as restrictive as this one, including covenants which precluded competition with respect to clients with whom the employee had not had contact while working for the employer. See, e.g., Delli-Gatti v. Mansfield, 223 Ga. App. 76, 78 (3) (477 SE2d 134) (1996) (no provision of medical services for twelve months in Upson County); McAlpin v. Coweta Fayette Surgical Assoc., P.C., 217 Ga. App. 669, 672 (2) (458 SE2d 499) (1995) (no practice of medicine or surgery for two years in ten-county area, including part of Atlanta); Annis v. Tomberlin & Shellnutt Assoc., 195 Ga. App. 27, 30 (2) (392 SE2d 717) (1990) (no participation in competitive business for three years within fifty-mile radius); Moore v. Preferred Research, 191 Ga. App. 26 (381 SE2d 72) (1989) (no pursuit of similar business for one year in twenty-five-mile radius of any of employer’s places of business).

In support of their argument that the covenant is overbroad because it precludes competition with respect to clients with whom Chaichimansour did not deal while employed by plaintiff, defendants cite Darugar v. Hodges, 221 Ga. App. 227, 229 (471 SE2d 33) (1996) and Vortex Protective Svc. v. Dempsey, 218 Ga. App. 763, 766 (2) (a) (463 SE2d 67) (1995), in which we did hold covenants overbroad on this ground. Vortex and Darugar in turn relied on W. R. Grace & Co., 262 Ga. at 466-467 (2), in which the Supreme Court said that “the prohibition against post-employment solicitation of any customer of the employer located in a specific geographic area is an unreasonable and overbroad attempt to protect the employer’s interest in preventing the employee from exploiting the personal relationship the employee has enjoyed with the employer’s customers.” But this quote was preceded by the statement that a restriction is enforceable as a legitimate protection of the employer’s interest as long as it relates only to a specific area in which the employee actually did business for the employer prior to termination. Id. at 466.

The Court in W. R. Grace & Co. examined a covenant which had no geographical limitation but restricted only the employee’s contact with clients the employee had contacted while working for the employer. In concluding that the covenant was reasonable, it did not hold that all covenants must restrict only the employee’s contact with clients with whom he or she had contact while working for the employer in order to be reasonable. Rather, it focused on the interplay between the territorial limitation and the scope of the prohibition: if the scope of prohibited behavior is narrow enough (e.g., contacting those with whom the employee dealt while working for the employer), the covenant may be reasonable even if it has no territorial limitation or has a territorial limitation which is very broad. But if the scope of the prohibition is broader, the territorial limitation must be specified and closely tied to the area in which the employee actually worked.

In this case, the territorial limitation is specific, narrow, and closely tied to where Chaichimansour actually worked for plaintiff up until the time she left. Accordingly, this prohibition is reasonable even though it prohibits her from providing veterinary services to anyone within that limited area, without regard to whether she had contact with them when she was working for plaintiff.

In Vortex and Darugar, we held that covenants prohibiting competition for clients with whom the employee had not had a business relationship while employed by the employer were unreasonable, even though the covenants in those cases did have territorial limitations. It appears that these cases are distinguishable, since unlike the territorial limitation in this case, the territorial limitations in Vortex and Darugar were somewhat broader than the territory the employee’s activities actually covered. But the language in Vortex and Darugar suggesting that prohibitions on competition with respect to customers or potential customers beyond those with whom the employee dealt during his employment will always be unreasonable, even if in a specified and reasonable geographic area, is disapproved. See Darugar, 221 Ga. App. at 229; Vortex, 218 Ga. App. at 766-767.

2. Defendants also contend the covenant not to compete is unenforceable because the employment contract contains an unenforceable liquidated damages provision which cannot be severed. The liquidated damages provision is in a separate paragraph from the covenant not to compete, however, and that provision’s reference to the paragraph containing the covenant not to compete does not make it an integral part of that paragraph. Thus, even if we assume the liquidated damages provision is unenforceable, there would be no reason not to give effect to the severability agreement contained in the contract and enforce the contract without the liquidated damages clause. See OCGA § 13-1-8.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Beasley, Johnson, Blackburn, Smith, Ruffin and Eldridge, JJ, concur. McMurray, P. J., concurs in part and dissents in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

1. The majority in Division 1 would “disapprove” language in Vortex Protective Svc. v. Dempsey, 218 Ga. App. 763, 765 (2), 766-767 (2) (a) (463 SE2d 67), for “suggesting that prohibitions on competition with respect to customers or potential customers beyond those with whom the employee dealt during his employment will always be unreasonable, even if in a specified and reasonable geographic area. . . .” (Emphasis supplied.) Majority opinion, Division 1, p. 71, ante. But that is precisely the rationale employed by the Supreme Court in defining the parameters of permissible restrictions in post-employment non-compete covenants. “A restriction relating to the area where the employee did business on behalf of the employer has been enforced as a legitimate protection of the employer’s interest (Puritan/Churchill Chem. Co. v. McDaniel, [248 Ga. 850, 851 (1) (286 SE2d 297)]; Howard Shultz & Assoc. v. Broniec, [239 Ga. 181, 183 (236 SE2d 265)]), but the prohibition against post-employment solicitation of any customer of the employer located in a specific geographic area is an unreasonable and overbroad attempt to protect the employer’s interest in preventing the employee from exploiting the personal relationship the employee has enjoyed with the employer’s customers. Orkin Exterminating Co. v. Walker, [251 Ga. 536, 538 (2) (307 SE2d 914)], Singer v. Habif, Arogeti & Wynne, [250 Ga. 376 (297 SE2d 473)]. Compare Nunn v. Orkin Exterminating Co., 256 Ga. 558[, 559] (1a) (350 SE2d 425) (1986) (where the prohibition against soliciting any customer was limited to the geographic area the employee had serviced while employed by his employer).” (Emphasis in original and supplied.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (2), 466-467 (422 SE2d 529). That the Supreme Court did not there overrule Nunn v. Orkin Exterminating Co., 256 Ga. 558, supra, is immaterial, since that court expressly distinguished the Nunn case from others where, “[i]n essence, the court held that a prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad. The [Supreme Court] later specifically so held in Orkin Exterminating Co. v. Walker, supra.” (Emphasis in original.) W. R. Grace Co. v. Mouyal, 262 Ga. 464, 465 (2), 467, fn. 2, supra. Indeed, “a restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographic terms because that restriction, which does not take into account whether the employee had a business relationship with that client or whether it was the client who solicited the former employee, is otherwise unreasonable and overbroad. . . .” (Emphasis in original and supplied.) Id. at 467, fn. 3, supra. The ban on contact with “any customer” in the W. R. Grace & Co. situation expressly “ ‘provided that the restrictions . . . shall apply only to customers or prospects . . . with which Employee had contact during [the] two-year period [immediately preceding cessation of Employee’s employment],’ ” and so is not truly a forbidden blanket prohibition. Id. at 464. The Supreme Court has recently stated without qualification, “ ‘a prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad.’ (Emphasis in original.) [Cit.]” American Software USA v. Moore, 264 Ga. 480 (1), 483 (448 SE2d 206).

In my view, the case sub judice is not a proper vehicle for “disapproving” language from the Supreme Court authorities applied in Vortex Protective Svc. v. Dempsey, 218 Ga. App. 763, 765 (2), 766 (2) (a), supra. In Vortex, the post-employment restrictive covenant specified a readily identifiable geographical limitation but contained “no language limiting the application of this restriction to those customers or prospective customers [that employee had] contacted during his employment with Vortex.” Id. at 766. It is the continuing viability of Nunn v. Orkin Exterminating Co., 256 Ga. 558, 559 (1) (a), supra, (or perhaps its application) that should be questioned in light of the Supreme Court’s subsequent holdings. But the responsibility to “disapprove” language taken from an applicable Supreme Court decision does not rest with this Court.

2. As to the merits of Division 1 of the majority, I concur in the judgment only that the restrictive covenant in this case, involving practitioners of a learned profession, is reasonable in time and scope, and so is enforceable among parties of roughly equal bargaining power and acumen. See Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 324 (2), 325 (320 SE2d 170); Delli-Gatti v. Mansfield, 223 Ga. App. 76, 78 (3), 80 (477 SE2d 134).

Decided March 20, 1997

Reconsiderations denied April 4, 1997

Before Judge Wheeler.

Garcia & Powell, Ralph W. Powell, Jr., John W. Daniel, for appellants.

James P. McCrary, for appellee.

        See American Software USA v. Moore, 264 Ga. 480 (448 SE2d 206) (1994) (where territory covered is “ ‘anywhere in the United States of America,’ ” prohibition on contacting customers with whom the employee did not have a relationship is too broad to be reasonable).

       Compare Orkin Exterminating Co. v. Walker, 251 Ga. 536 (307 SE2d 914) (1983) (covenant is overbroad if it is not limited to the employee’s contacts and it has geographical restriction which could be read to extend beyond the area in which the employee was actually working just prior to termination); Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376 (1) (297 SE2d 473) (1982) (covenant is overbroad if it is not limited to the employee’s contacts and the geographical area is tied to operations of the employer rather than the employee).


source: Caselaw Access Project

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

license: Public Domain

text:
    A96A2304.
    EVANS v. DEPARTMENT OF TRANSPORTATION.
    (485 SE2d 243)
   Andrews, Chief Judge.

This action arose as the result of an automobile accident in which 18-year-old Frances Evans was killed when she lost control of her car on a wet highway and collided with a tractor-trailer truck. Josephine Evans, Frances’ mother, sued the Georgia Department of Transportation (“DOT”), claiming that it negligently failed to repair and maintain the highway where the accident occurred. A jury found the DOT was not negligent, and Evans appeals, bringing three enumerations of error. Because we find the trial court erred in transferring this case to Columbia County, we reverse.

1. In her first enumeration, Evans contends the trial court erred in transferring venue from Richmond County, where her daughter was hospitalized after the accident and later died, to Columbia County, where the accident occurred. The claim in this case was a wrongful death action under OCGA § 51-4-1 against the DOT. Accordingly, venue is governed by OCGA § 50-21-28 which provides: “All tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred; provided, however, that, in any case in which an officer or employee of the state may be included as a defendant in his individual capacity, the action may be brought in the county of residence of such officer or employee. All actions against the state for losses sustained in any other state shall be brought in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.”

Evans claims the loss in this case is the death of her daughter, which occurred in Richmond County. The DOT contends the loss occurred in Columbia County where the accident took place, noting that Evans filed suit in Columbia County for injuries received in the accident and, therefore, in the interest of judicial economy, the wrongful death case also was properly tried there.

We need not speculate, however, as loss is clearly defined in the statute. The term “loss” as used in the Tort Claims Act is defined in OCGA § 50-21-22 (3) as follows: “ ‘Loss’ means personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” Accordingly, venue is proper where the death occurred, which is Richmond County.

“[W]here the language of the statute is plain and unambiguous, and does not lead to contradictory, absurd, or wholly impracticable results, it is the sole evidence of legislative intent and must be construed according to its terms.” Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga. App. 613, 614 (448 SE2d 476) (1994), citing Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Therefore, since Frances Evans died in Richmond County, venue in the wrongful death action was proper only in Richmond County, and the trial court erred in transferring the case to Columbia County.

Because Evans’ other enumerations of error are ones which may occur on re-trial, we will address them in this opinion.

2. Evans asserts as error the trial court’s charge to the jury on the defense of assumption of the risk. “The defense of assumption of the risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom; and (3) that he voluntarily exposed himself to that risk.” Smith v. Mangram, 222 Ga. App. 585, 586 (474 SE2d 758) (1996).

“When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue.” (Citation and punctuation omitted.) Hicks v. Doe, 206 Ga. App. 596, 598 (4) (426 SE2d 174) (1992). There was sufficient evidence introduced at trial to support a jury charge on assumption of the risk.

Mrs. Evans testified that she was a passenger in the car her daughter Fran was driving on the afternoon in question. It was raining, and Fran was driving in the left-hand lane of Interstate 20, passing a van and a tractor-trailer. Mrs. Evans stated they must have hit a patch of water and Fran must have “tapped” the brakes because the car went out of control and slammed into the tractor-trailer. The truck driver testified that the Evans’ car was in the left-hand lane, passed the van behind him, and then passed him, going “pretty fast,” about 75 mph.

Mrs. Evans testified that her daughter was an excellent student, a responsible mature person, and an experienced driver. Accordingly, there was evidence that Fran Evans was aware of the danger associated with driving too fast on rainy roads, appreciated the risk of that danger and voluntarily assumed that risk.

In addition, the DOT points out that Evans did not submit the entire trial transcript on appeal, omitting other eyewitness testimony as to the car’s speed and the weather conditions. “Where a determination of the merits of an enumeration of error requires a review of the entire transcript, and only a portion of the evidence at trial was forwarded on appeal, this court must affirm.” Prater v. Bertrand, 197 Ga. App. 169, 170 (3) (397 SE2d 562) (1990).

3. Lastly, Evans argues the trial court erred in redacting a portion of an entry from a DOT engineer’s job diary before allowing it to be admitted into evidence. Also, in the same enumeration, Evans contends the trial court erred in refusing to charge the definition of “admission.” Alleging multiple errors in the same enumeration is a violation of OCGA § 5-6-40. Accordingly, this Court may, in its discretion, elect to review none, or one or more, of the errors asserted within the single enumeration. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995). In any event, as previously discussed, we are unable to address the failure to charge as we do not have the entire transcript before us on appeal. Prater, supra.

The other error complained of concerns an entry in the job diary of Ron Hutto, a DOT engineer who investigated the accident. During his investigation he wrote in his diary, “Major problem to be corrected.” The court allowed into evidence the “major problem” portion of the record but redacted the “to be corrected.” The court correctly determined this was inadmissible because it dealt with the issue of subsequent repairs. “Generally, evidence of subsequent repairs following an injury is not admissible on the trial of negligence cases, the usual purpose of such evidence being as a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence. The reason for excluding such evidence lies in sound public policy that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.” (Citations and punctuation omitted.) Studard v. Dept. of Transp., 219 Ga. App. 643, 644-645 (466 SE2d 236) (1995). We find no abuse of discretion in the trial court’s decision not to admit this evidence.

Decided March 19, 1997

Reconsideration denied April 4, 1997

Before Judge Hart.

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., Preyesh K. Maniklal, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Eric A. Brewton, C. Latain Kell, Senior Assistant Attorneys General, for appellee.

Judgment reversed and case remanded.

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

Pope, Presiding Judge,

concurring specially.

I fully concur with the majority opinion on the venue issue, but I cannot agree that the trial court properly disallowed evidence of the DOT engineer’s notation in his diary that there was a major problem to be corrected. This was not evidence that subsequent repairs were made, and was not introduced to show that subsequent repairs were made. Rather, it was an admission, pure and simple, regarding the condition of the roadway. Compare Studard v. Dept. of Transp., 219 Ga. App. 643, 644 (2) (466 SE2d 236) (1995) (evidence that DOT employee actually ordered remedial measures was properly excluded).

I am authorized to state that Judge Smith joins in this special concurrence.

       Inexplicably, neither side argued this definitional section of the statute to the trial court or to this Court.

       We agree with the DOT that, under this venue provision, there may be instances when requiring the State to defend lawsuits arising out of the same occurrence in different counties will result in a waste of both State and judicial resources. Further, this literal interpretation of the statute could, in some cases, create problems in a personal injury action where there are various claims for damages, all equating to a “loss” as defined in the statute. For instance, losses arising from property damage, wrongful death, lost wages, funeral expenses, pain and suffering, and so on could all occur in separate counties, thus requiring the filing of myriad suits in multiple counties. Moreover, an estate’s claim for funeral expenses could occur in one county while the claim for pain and suffering could arise in another, seemingly requiring a violation of OCGA § 9-2-5 (a) which prohibits the splitting of a cause of action. But, as that is not an issue in this case, and because the language in the statute is plain and unambiguous, we will construe it accordingly.


author: Ruffin, Judge. Smith, Judge,

text:
    A96A2468.
    JOHNSON & JOHNSON et al. v. KAUFMAN et al.
    (485 SE2d 525)
   Ruffin, Judge.

Gary Kaufman, individually and as executor of the estate of Amy Kaufman, his deceased wife, sued Johnson & Johnson (“J&J”) and Janssen Pharmaceutica, Inc. (“Janssen”), alleging that his wife died as the result of taking the drug Hismanal, an antihistamine prescribed to her for allergies. Janssen, which is a wholly owned subsidiary of J&J, manufactures, markets and distributes Hismanal in the United States. Hismanal is also manufactured and distributed internationally through numerous other J&J subsidiaries. Kaufman contends that at the time of his wife’s death, the defendants were aware of serious dangers associated with Hismanal but failed to warn his wife of the dangers.

The subject of this appeal is a January 18, 1996 discovery order requiring J&J to provide virtually any document from any J&J foreign subsidiary concerning complaints about Hismanal, reports of adverse effects, marketing materials, post-marketing surveillance studies, packaging and labeling, alternative packaging options, risk utility analyses or similar studies, risk studies, drug and food interaction studies, and dosage level studies. The order requires J&J to produce the documents within 60 days and to supplement the production every 90 days. On January 19, 1996, the day after it issued the discovery order, the trial court also issued a protective order that restricted counsel for Kaufman from disseminating any confidential information obtained through discovery to anyone except individuals involved in the instant litigation or individuals involved in other pending litigation concerning Hismanal against the defendants.

J&J requested that the trial court issue a certificate of immediate review because of the sweeping nature of the discovery order. When the trial court failed to issue the certificate, J&J filed a direct appeal. In its appeal, J&J presents questions concerning the relevance of the discovery requests, the burden of producing the documents, and the interests of international comity where the laws of some countries prohibit the production of the requested documents by the foreign subsidiaries. J&J also asserts that the protective order does not adequately protect against widespread dissemination of confidential information.

As compelling as J&J’s assertions are, we must first deal with the issues presented by Kaufman’s motion to dismiss the appeal based on the argument that the discovery order was not directly appealable. Although we originally denied Kaufman’s motion to dismiss the appeal, Kaufman has since moved for reconsideration of that order. For the reasons stated below, we conclude that because the trial court’s discovery order was not directly appealable, the defendants’ appeal must be dismissed.

We note initially that discovery orders generally are interlocutory and therefore not directly appealable as final judgments. See OCGA § 5-6-34; see also Cornelius v. Finley, 204 Ga. App. 299 (418 SE2d 815) (1992). In Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541 (69 SC 1221, 93 LE 1528) (1949), however, the United States Supreme Court recognized an exception to the final judgment rule for appeal of “collateral orders.” Cohen was a shareholder derivative action in which the District Court refused to apply a state statute requiring plaintiffs in such actions to post security for costs to be incurred by defendants in the litigation. The Court found that because the trial court’s order was conclusive on the issue, the defendant’s right to appeal at the conclusion of the case would arise too late to effectively review the order. Id. at 546. Specifically, the Court stated that the decision fell within that “small class” of orders “which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. The Court held the order appealable “because it [was] a final disposition of a claimed right which [was] not an ingredient of the cause of action and [did] not require consideration with it. . . . If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question.” Id. at 546-547.

The Supreme Court of Georgia adopted the collateral order exception to the final judgment rule in Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). Patterson involved the trial court’s denial of the defendant’s plea of double jeopardy, and since that decision our appellate courts have applied the exception to only two other types of trial court orders. In two cases our Supreme Court allowed a direct appeal of trial court orders cancelling a notice of lis pendens. See Jay Jenkins Co. v. Financial Planning Dynamics, 256 Ga. 39, 41 (3) (343 SE2d 487) (1986); Scroggins v. Edmondson, 250 Ga. 430 (1) (297 SE2d 469) (1982). In another case, this Court applied the collateral order exception in allowing a direct appeal from the trial court’s order to produce attorney work product. Dept. of Transp. v. Hardaway Co., 216 Ga. App. 262 (454 SE2d 167) (1995).

In Hardaway Co., a party inadvertently included several pages of a discrepancy log in its response to a request for production of documents. Although the trial court found that the discrepancy log was work product prepared for other litigation, it ordered the party to produce the remainder of the log. We allowed a direct appeal from that order under the collateral order exception to the final judgment rule. As stated in Hardaway Co., the exception applies if the order: “(1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is ‘substantially separate’ from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is ‘effectively unreviewable on appeal.’ [Cit.]” Id. at 262 (1). Because we determined that the order in Hardaway Co. completely resolved the discovery issue, which was substantially separate from the main claim, and the discrepancy log, once produced, could not be returned to its previous confidential state, we found the exception applied and allowed a direct appeal.

Although the decision in Hardaway Co. appears consistent with the Supreme Court of Georgia’s earlier applications of the collateral order exception, conspicuously absent from the discussion in Hard-away Co. are any references to the numerous United States Supreme Court cases which address the issue of whether such discovery orders are directly appealable. As our Supreme Court noted in Scroggins, the collateral order exception applies to only “the small class of cases that Cohen has placed beyond the confines of the final-judgment rule.” (Citation and punctuation omitted.) Scroggins, supra at 432 (1) (c). Because the issue has not been previously decided by the Supreme Court of Georgia, we must now decide whether, like orders of lis pendens, the discovery orders at issue in Hardaway Co. and the instant case also fall within this small class of cases. In Scroggins, the Court looked to federal authority for assistance in applying the collateral order exception. Inasmuch as we adopted the collateral order exception from the United States Supreme Court’s decision in Cohen, supra, we likewise believe that a discussion of the Court’s cases which specifically address the appealability of discovery orders is both instructive and necessary to determine whether such discovery orders are directly appealable under Georgia law.

Two of the earlier cases in which the Court addressed the appealability of discovery orders were United States v. Ryan, 402 U. S. 530 (91 SC 1580, 29 LE2d 85) (1971), and Cobbledick v. United States, 309 U. S. 323 (60 SC 540, 84 LE 783) (1940). In both cases the Court cited numerous policy considerations underlying the final judgment rule and held that discovery orders are not directly appeal-able. In Cobhledick, the Court found that the final judgment rule avoids “the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.” Cobbledick, supra at 325.

The Court found that discovery orders are not final orders within the meaning of the final judgment rule and that a party who has been ordered to comply with a discovery request is not without remedy: “ Tn a certain sense finality can be asserted of [discovery] orders . . . , so, in a certain sense, finality can be asserted of any order of a court. And such an order may coerce a witness, leaving to him no alternative but to obey or be punished. . . . Let the court go further and punish the witness for contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the progress of the case. . . .’ [Cit.]” Id. at 327.

The rationale that discovery orders are not “final” because a party can refuse to comply and then appeal from a contempt order is not unique to Cobhledick. The Court employed the same rationale in Ryan, which was decided more than 20 years after Cohen. In Ryan, the respondent was served with a subpoena duces tecum commanding him to produce before a federal grand jury all the books and records of five named companies doing business in Kenya. The respondent moved to quash the subpoena on the ground that Kenyan law prohibited removal of the books and records from the country without government consent. The District Court denied the motion, and the Court of Appeals, having found the decision directly appealable, reversed. On appeal to the United States Supreme Court, the respondent argued that “unless immediate review of the District Court’s order is available to him, he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be ‘powerless to avert the mischief of the order.’ [Cit.]” Id. at 532. The Court responded that “respondent’s assertion misapprehends the thrust of our cases. Of course, if he complies with the subpoena he will not thereafter be able to undo the substantial effort he has exerted in order to comply. But compliance is not the only course open to respondent. If, as he claims the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review.” (Footnotes omitted.) Id.

Federal appellate courts addressing this issue have consistently held that “[a]s a general proposition most orders granting or denying discovery are not final orders within the meaning of section 1291 and therefore are not immediately appealable. [Cits.]” Rouse Constr. Intl. v. Rouse Constr. Corp., 680 F2d 743, 745 (11th Cir. 1982). See also In the Matter of Intl. Horizons, 689 F2d 996, 1000-1001 (11th Cir. 1982); but see Smith v. BIC Corp., 869 F2d 194 (3rd Cir. 1989). Smith, however, has been criticized for ignoring the United States Supreme Court’s precedent and because its blind application of the collateral order exception “has the potential for producing a very large hole in the doctrine limiting review of interlocutory discovery orders” without any conceivable “logical limiting principles.” 9 Moore’s Fed. Practice, p. 131, Par. 110.13 [2] (2nd ed. 1996).

In light of these decisions, we now conclude that Hardaway was wrongly decided and that the order in this case was not directly appealable. Like the federal appellate courts, our own appellate courts recognize the policy considerations which militate against application of the collateral order exception to review such orders. See Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676) (1975) (“ ‘The basic policy considerations underlying the limitation that a final judgment is a prerequisite to appealability are the excessive inconvenience and costs occasioned by piecemeal review on the one hand, and the danger of denying justice by needless delay on the other. . . .’ ”). Mindful that the resolution of discovery issues is generally within the trial court’s broad discretion (see In re Callaway, 212 Ga. App. 500, 501 (442 SE2d 309) (1994)), we do not believe that a rule allowing the direct appeal of such orders serves the greater interests of ensuring the effective and efficient administration of justice. It is clear that the United States Supreme Court did not intend for the Cohen collateral order exception to be applied in cases such as this or the circumstances under appeal in Hardaway Co. See Ryan, supra.

Accordingly, we now adopt the United States Supreme Court’s rationale “that in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. [Cit.]” Firestone Tire &c. Co. v. Risjord, 449 U. S. 368, 377 (101 SC 669, 66 LE2d 571) (1981). We thus overrule Hardaway Co., and find that the instant case was not directly appealable. Kaufman’s motion for reconsideration is granted, this Court’s September 4, 1996 Order is vacated, and the defendants’ appeal is hereby dismissed.

Appeal dismissed.

Andrews, C. J., Pope, P. J., Beasley, Blackburn, and Eldridge, JJ., concur. McMurray, P. J., Birdsong, P. J., Johnson and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. The United States Supreme Court cases cited in the majority are federal court decisions applying federal law. United States v. Ryan, 402 U. S. 530 (91 SC 1580, 29 LE2d 85) (1971), and Cobbledick v. United States, 309 U. S. 323 (60 SC 540, 84 LE 783) (1940), are attempted appeals of federal grand jury subpoenas from the Ninth Circuit. Firestone Tire &c. Co. v. Risjord, 449 U. S. 368 (101 SC 669, 66 LE2d 571) (1981), is a civil products liability appeal from the Eighth Circuit. The majority also relies on a number of federal circuit court decisions.

It is well established that state court procedural matters are governed by state and not federal law “The U. S. Supreme Court settled the issue irrefutably in the case of Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (58 SC 817, 82 LE 1188) where it was held that except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state.” Gormong v. Cleveland Elec. Co. &c., 180 Ga. App. 481, 482 (349 SE2d 500) (1986) (service of process). Appellate procedure by its very terms is “procedural.” The procedures of this Court are established by the Georgia Constitution and statutes, our Supreme Court, and our rules, not by Congress or the federal courts. “While we are bound by the United States Supreme Court’s interpretation of Rule 56 (c) of the Federal Rules of Civil Procedure, we must, of course, follow the decisions of our own Supreme Court with respect to the meaning of Rule 56 (c) of the Georgia Civil Practice Act, OCGA § 9-11-56 (c). [Cit.]” First Union Nat. Bank &c. v. J. Reisbaum Co., 190 Ga. App. 234, 236 (378 SE2d 317) (1989).

Decided March 20, 1997

Reconsideration denied April 4, 1997

Before Judge Goger.

Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, Zoe I. Martinez, for appellants.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Joel O. Wooten, Jr., Downey & Cleveland, Y. Kevin Willliams, Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, James I. Seifter, for appellees.

This Court must follow the Supreme Court of Georgia’s rule established in Scroggins v. Edmondson, 250 Ga. 430, 431 (1) (c) (297 SE2d 469) (1982). Dept. of Transp. v. Hardaway Co., 216 Ga. App. 262 (1) (454 SE2d 167) (1995) is a direct application, not an extension, of the rule established by the Supreme Court of Georgia. The criteria established in Scroggins are clearly stated: (1) the order appealed from must completely and conclusively resolve the issue it addresses; (2) that issue must be “substantially separate from the basic issues presented in the complaint”; and (3) “an important right might be lost if review had to await final judgment.” 250 Ga. at 432 (1) (c). An interim discovery order releasing a privileged document or protected work product meets all these requirements. Hardaway Co., 216 Ga. App. at 262.

Regardless of the origin or underpinnings of the reasoning employed by our Supreme Court, we cannot look behind its clear announcement of a procedural rule to overrule, amend, or modify it on the basis of federal decisions, regardless of how attractive their reasoning may be in terms of limiting appellate caseload.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Johnson join in this dissent.


author: Blackburn, Judge.

text:
    A97A0267.
    DAVIS v. THE STATE.
    (485 SE2d 508)
   Blackburn, Judge.

Leon Davis was convicted of armed robbery, aggravated assault, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and driving without a license in connection with his robbery of a convenience store. On appeal, he claims the trial court erred in granting the State’s motion in limine and in denying his motion to suppress. He also argues that the trial court erroneously admitted similar transaction evidence of a prior robbery he committed. For the reasons set forth below, we affirm.

1. Pursuant to OCGA § 17-16-5, Davis served the State with written notice of his intent to present an alibi defense, including the names of six potential alibi witnesses. Although OCGA § 17-16-5 also requires disclosure of addresses and telephone numbers of alibi witnesses if known, Davis listed addresses and telephone numbers for only two of the witnesses named. After supplementing his notice with one additional address and phone number, he failed to provide any more information regarding the remaining three witnesses listed. In response, the State filed a motion in limine to prevent Davis from presenting the testimony of the alibi witnesses “not properly disclosed to the State.” The court found that Davis had acted in bad faith in failing to provide the information, that the State had been prejudiced thereby, and pursuant to OCGA § 17-16-6, granted the State’s motion in limine. Davis enumerates this ruling as error.

In reviewing a trial court’s decision on a motion in limine, “we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995). Pursuant to OCGA § 17-16-6, upon a showing of prejudice and bad faith, a trial court may prohibit a defendant from presenting witnesses not disclosed. The trial court also has discretion to enter “such other order as it deems just under the circumstances.” OCGA § 17-16-6.

Arguing that he was required to disclose only those addresses and phone numbers which he knew, Davis maintains that he did not act in bad faith because he did not know the addresses and phone numbers requested. See OCGA § 17-16-5 (a). In rejecting this argument, the trial court found that because the subject witnesses were actually Davis’ brothers, it was highly unlikely that Davis did not know their addresses and telephone numbers, especially when he needed them to testify in his defense. Another brother, Wilson Davis, assisted Davis by personally serving two of the witnesses with subpoenas, yet Davis still failed to disclose to the State any information regarding how these witnesses could be contacted prior to trial. The record also reveals that the court granted Davis a continuance one month before trial in order to allow him to “get addresses and phone numbers for the witnesses that he [believed would] provide him with a defense in this matter.”

In addition to its finding that Davis acted in bad faith, the court also found that the State was prejudiced by Davis’ failure to supply the requested information. See OCGA § 17-16-6; Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996) (bad faith of one side and prejudice to the other a prerequisite for imposition of OCGA § 17-16-6 sanctions). The State argued that without these addresses and phone numbers, it was denied “a fair opportunity to investigate” Davis’ alibi defense, and would be “ambushed” at trial. The trial court agreed, finding that the State would have suffered undue prejudice had the witnesses been allowed to testify at trial. Because evidence exists to support the trial court’s findings regarding Davis’ bad faith and the resulting prejudice to the State, the court did not err in granting the State’s motion in limine, and its factual findings in this regard were not clearly erroneous.

2. Davis enumerates as error the denial of his motion to suppress a custodial statement he made to the Federal Bureau of Investigation (FBI). While awaiting trial, Davis contacted the FBI from prison to see if he could supply information regarding drug trafficking in exchange for leniency in this case. Davis’ statement is not contained in the record, but the transcript of the hearing on the motion to suppress indicates that he told the FBI that his four alibi witnesses and brothers, James Rodney Davis, Tommy Chandler, Tim Davis, and Kevin Davis, were his employees in the drug trafficking business.

Davis moved to suppress this statement because the FBI failed to Mirandize him, notify his attorney of the interview, or allow the attorney to be present at the interview. The court denied Davis’ motion, and ruled that the State could introduce the statement solely for impeachment of Davis’ alibi witnesses should he call them. Davis then informed the court that due to this ruling, he would not call any of the four alibi witnesses. He now argues that the court’s ruling was erroneous, and that it prevented him from calling his alibi witnesses.

Because of our holding in División 1, this enumeration of error is moot as to each alibi witness except James Rodney Davis. With respect to James Davis, the record indicates that Davis did attempt to serve this witness with a subpoena, but was unable to do so. Davis’ inability to get James Davis subpoenaed prevented him from calling this witness at trial, not the trial court’s ruling on the motion to suppress. Had James Davis been subpoenaed, the trial court would have permitted him to testify, but like any other witness, he would have been subject to impeachment.

Even assuming arguendo that the ruling prevented Davis from calling James Davis, Davis presented testimony at trial from two other alibi witnesses. “Appellant’s alibi defense was fully and fairly presented to the jury, which rejected it. Any testimony by [another] alibi [witness] would have been cumulative of other testimony in the case.” Ealy v. State, 251 Ga. 426, 428 (2) (306 SE2d 275) (1983). This enumeration is therefore without merit.

3. The trial court admitted prior similar transaction evidence of an armed robbery Davis committed in 1984. Claiming that the transactions were not sufficiently similar and that the prior transaction was too remote in time to be admissible, Davis enumerates the admission of this evidence as error.

“There are two conditions for admissibility of similar transaction evidence: (1) there must be some evidence establishing that the independent crime was committed by the defendant, and (2) there must be sufficient similarity or connection between the independent crime and the offense charged so that proof of the former tends to prove the latter. . . . The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar.” Harris v. State, 222 Ga. App. 52, 54 (473 SE2d 232) (1996).

The armed robbery involved in this case occurred in 1994 when Davis pulled a gun on the owner of Carter’s One-Stop, a combination service station and salvage yard. The victim, who was over age 60, was alone in the store minding the register when Davis approached the counter with a purchase. Once the victim rang up the sale, Davis threatened him with a gun. Davis stole only bills, no coins, and robbed the store during daylight hours. He then fled in a vehicle parked nearby.

With respect to the prior similar transaction, the State introduced evidence that Davis had been convicted for the 1984 armed robbery of Casper’s Produce, a small, family-owned store. The victim in that case, who was also over age 60, was approached by Davis while she was alone in the store minding the register. After asking her the price of french fries, Davis pulled a knife on the victim and robbed the store. The robbery occurred during the daytime, and Davis stole only bills, no coins. Davis left the produce stand in a vehicle which was parked nearby.

Decided March 6, 1997

Reconsideration dismissed April 4, 1997

Before Judge Sorrells.

Dickinson, Noel & Mixson, Scott P. Willis, for appellant.

Leon Davis, pro se.

The trial court found that these transactions were similar because in both cases, a small, family-owned business was robbed, the victims were both elderly and in their stores alone when the incidents occurred, both robberies took place during daylight hours, in ■neighboring counties, by use of an offensive weapon, and in each case, Davis passed up checks and change, stealing only bills. Because these two transactions are similar enough that commission of the earlier armed robbery tends to prove the latter, the trial court did not err in admitting this evidence. See Harris, supra. The fact that a gun was used in one robbery and a knife in the other is not dispositive. Both are offensive weapons which were used to threaten the victims, and “[w]hile some differences between the two armed robberies exist, there is no requirement that the transactions be identical in every aspect.” Murphy v. State, 212 Ga. App. 153, 154 (1) (442 SE2d 2) (1994). Additionally, as the State introduced Davis’ conviction for the earlier crime into evidence, there is no question that Davis committed the earlier armed robbery. See Harris, supra at 54.

The fact that the prior similar transaction occurred ten years before the offense charged does not change this result. “Although lapse of time is one of the more important factors to weigh in considering the admissibility of the evidence in question it is not wholly determinative.” (Citations and punctuation omitted.) Wilson v. State, 220 Ga. App. 487, 490 (2) (a) (469 SE2d 516) (1996) (12-year lapse between rape offenses not too remote); see also Anderson v. State, 183 Ga. App. 669, 670 (359 SE2d 688) (1987) (12-year lapse between armed robberies not too remote). Additionally, Davis was incarcerated for some period during the ten years separating the two offenses, “thus circumscribing his ability to commit similar offenses” during part of the intervening ten-year period. (Citations and punctuation omitted.) Wilson, supra at 490 (2) (a). Under these circumstances, the prior similar transaction was not too remote to be admissible, and this enumeration is therefore without merit.

Judgment affirmed.

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

Alan A. Cook, District Attorney, Anne M. Templeton, Assistant District Attorney, for appellee.

       In the notice of intent, Davis’ counsel stated that he did not have addresses and telephone numbers for four of the six alibi witnesses listed. After providing James Rodney Davis’ address by supplemental response, Davis maintained to the court through counsel at the motion in limine that the addresses and telephone numbers of remaining alibi witnesses Tommy Chandler, Tim Davis, and Kevin Davis were unknown.

       Although Davis’ enumeration of error claims the trial court’s order prevented four of the alibi witnesses from testifying, the motion in limine was granted as to only three witnesses: Tommy Chandler, Tim Davis, and Kevin Davis. This is so because the address and telephone number of the fourth witness, James Rodney Davis, was timely provided to the State.

       Davis was not represented by counsel when he initially contacted the FBI, but by the time the FBI came to the prison to interview him, counsel had been appointed.


author: Andrews, Chief Judge.

text:
    A97A0163.
    SWEAT v. THE STATE.
    (485 SE2d 259)
   Andrews, Chief Judge.

Michael Todd Sweat was found guilty by a jury of driving a vehicle under the influence of alcohol to the extent that it was less safe for him to drive, driving a vehicle with an unlawful alcohol level, and driving a vehicle without his driver’s license in his immediate possession. The trial court merged the two DUI charges and sentenced Sweat only for driving under the influence of alcohol to the extent it was less safe to drive and for the license charge. On appeal, Sweat claims the trial court erroneously instructed the jury to disregard testimony from a defense witness, improperly commented on the evidence, and erred in the charge it gave to the jury. We find no error and affirm the judgment of conviction.

A police officer was called to the scene of an automobile accident and found Sweat’s truck upside down on the side of the road. The officer testified that Sweat was walking around at the scene, appeared uninjured, and told him that he owned the truck and was driving by himself when the accident occurred. Sweat told the officer that, as he drove around a curve in the road, another car swerved into his path, and when he swerved to avoid the other car he lost control of his truck and it flipped over. The other car described by Sweat was not at the scene. As Sweat spoke to the officer, the officer noticed that he had an odor of alcohol on his person and breath and appeared unsteady on his feet. Sweat was unable to produce a driver’s license. After Sweat failed a field sobriety test conducted at the scene, the officer placed him under arrest for driving under the influence and read him his implied consent rights. A subsequent test of Sweat’s breath produced a blood alcohol level of .16 grams. The officer testified that, based on his observations, Sweat was under the influence of alcohol to the extent that it was less safe for him to drive.

1. The evidence produced by the State was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Sweat was guilty of the offenses on which he was charged and sentenced. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Sweat did not testify and called only one witness in his defense, David Smith. After Smith testified that he had known Sweat for about ten years and that he recalled the accident in question, defense counsel asked Smith if he was the person driving the truck at the time of the accident. Smith responded that he declined to answer the question on the ground that it might incriminate him. The State immediately moved the court to exclude Smith’s testimony on the basis that the defense had no right to call a witness and ask questions designed to have the witness invoke his Fifth Amendment right against self-incrimination in front of the jury. During argument on the motion, defense counsel statéd that he had no further questions for Smith. The record also reflects that, although defense counsel subpoenaed Smith and conceded he knew Smith might assert the Fifth Amendment in response to questioning, counsel made no effort to bring this to the trial court’s attention prior to questioning the witness in front of the jury. The trial court granted the State’s motion and instructed the jury to disregard the witness’ testimony.

Sweat claims he had a right to have the witness assert the Fifth Amendment privilege in the presence of the jury, and that the trial court’s instruction to the jury to disregard Smith’s testimony violated his compulsory process rights under the United States Constitution (Sixth Amendment) and the Georgia Constitution (Art. I, Sec. I, Par. XTV) to present the testimony of a favorable witness and compel the witness’ attendance at trial. We disagree. Assuming Smith’s Fifth Amendment claim was valid, as a general rule, the defense is not entitled to call a witness for the purpose of having the witness exercise his privilege against self-incrimination before the jury. Dodd v. State, 236 Ga. 572, 575 (224 SE2d 408) (1976); King v. State, 202 Ga. App. 817, 819 (415 SE2d 684) (1992). “ Tf it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him.’ United States v. Lacouture, 495 F2d 1237, 1240 (5th Cir.). . . . [0]ne reason for this rule is that reliable inferences do not ordinarily follow from a witness’ invocation of the Fifth Amendment.” Davis v. State, 255 Ga. 598, 604 (340 SE2d 869) (1986). As noted by the court in Lacouture, supra at 1240, “a claim of Fifth Amendment protection is likely to be regarded by the jury as high courtroom drama and a focus of ineradicable interest, when in fact its probative force is weak and it cannot be tested by cross-examination.” Sweat’s only purpose in calling Smith as a witness was to encourage the jury to infer solely from Smith’s invocation of the Fifth Amendment that Smith was the driver — an inference insulated from the prosecutor’s cross-examination by Smith’s invocation of the privilege. Under these circumstances, Sweat had no right to parade Smith in front of the jury for the sole purpose of having him invoke the Fifth Amendment. Jordan v. State, 195 Ga. App. 405, 406-407 (393 SE2d 461) (1990). There was no violation of Sweat’s right to compulsory process, and the trial court did not abuse its discretion by instructing the jury to disregard Smith’s testimony.

Decided April 4, 1997.

Before Judge Douglass.

Lane & Crowe, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.

3. We find no merit to Sweat’s assertion that the manner in which the trial court instructed the jury to disregard Smith’s testimony constituted an improper expression of opinion by the trial court as to what had or had not been proved or as to Sweat’s guilt. OCGA § 17-8-57.

4. Sweat contends the trial court erred by failing to charge the jury to separately consider each charge and reach a separate finding of guilt or innocence on each charge.

The charge specifically stated that Sweat could not be convicted of any crime unless each element of the crime is proven beyond a reasonable doubt. The charge further stated that the State had the burden of proving every material allegation of the accusation and every essential element of the crime charged beyond a reasonable doubt. The charge also described the elements of each charge against Sweat. Moreover, the verdict forms indicate that the jury reached separate verdicts of guilty on each charge. The charge as a whole was adequate to instruct the jury to consider the evidence and reach separate verdicts as to the charge that Sweat failed to have his driver’s license in his immediate possession and as to both methods by which Sweat was charged with driving under the influence of alcohol. Minor v. State, 264 Ga. 195, 196 (442 SE2d 754) (1994).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A97A0214.
    McSEARS v. THE STATE.
    (485 SE2d 589)
   Beasley, Judge.

Following denial of his motion for new trial, McSears appeals his conviction of aggravated assault. OCGA § 16-5-21 (a) (2).

1. He first enumerates as error the admission into evidence of photographs of the victim taken by a law enforcement officer shortly after the assault.

Prior to arraignment, McSears filed a Brady motion in which he sought any and all tangible objects intended to be introduced into evidence by the State. He also filed a motion for discovery under the Criminal Procedure Discovery Act. OCGA § 17-16-1 et seq. Pursuant to OCGA § 17-16-4 (a) (3), he requested the State to permit him to “inspect and copy” photographs in its possession. Under OCGA § 17-16-1 (1), an item within the possession, custody, or control of a law enforcement agency involved in the investigation of the case being prosecuted is within the possession, custody, or control of the state or prosecution. At arraignment, the prosecuting attorney served defense counsel with a written certificate stating that he had examined the documents in the district attorney’s office, had served copies of all non-work documents on defense counsel, and had made the case file available to defense counsel for comparison (except for work-product and privileged material). He further certified that the office had no physical evidence in its possession but that any and all physical evidence associated with the case was available for examination upon defense counsel’s making proper arrangements with the evidence custodian. Counsel did not contact the prosecuting attorney or the evidence custodian to do so.

Following jury selection on the afternoon the case was called for trial, defendant objected to the admission of any photographic evidence on the ground the State had not complied with its obligation to “furnish[]” copies. The trial court ruled that the State had fulfilled its obligations under the criminal discovery statute and defendant’s motion for discovery, by making the photographs available to the defense to inspect and copy. Defendant was given an opportunity to view the photographs before the next day’s commencement of the presentation of evidence.

The court did not err in overruling McSears’ objection. OCGA § 17-16-4 (a) (3) does require the prosecuting attorney to “permit the defendant ... to inspect and copy or photograph” certain items including photographs which are within the possession, custody, or control of the State or prosecution. In keeping with this straightforward statutory duty placed on the State and authorization given to defendant, defendant requested the State to “permit [him] to inspect and copy” such items. The plain language of the statute does not require the State to take the initiative and “furnish” the defense with copies of photographs. See also Lawson v. State, 224 Ga. App. 645, 646 (3) (481 SE2d 856) (1997).

There is no merit in the argument that defense counsel was misled by statements in the certificate that there was no tangible evidence in this case. The certificate could not reasonably be interpreted as containing such a representation. It directly stated that any and all physical evidence was available for examination upon counsel’s making proper arrangements with the evidence custodian. Defendant does not argue that counsel was unable to make such arrangements. We thus conclude that the State complied with its obligation to make the photographs available to the defendant for inspection and copying or photographing, whatever he chose.

Nor was the State required to give defendant copies of the photographs pursuant to his Brady motion. Brady only applies to exculpatory material. Jenkins v. State, 215 Ga. App. 540, 543 (3) (451 SE2d 457) (1994).

2. McSears next enumerates as error the admission in evidence of his statement to the investigating officer.

The officer testified that he first informed McSears he wanted to talk to him about a case other than this one, and that McSears agreed to do so but stated he wanted to talk about this case as well. McSears first discussed the other case and then this one. Regarding it, he admitted he had hit the victim and stabbed her with a knife after discovering she had been involved with his friend. He was read his Miranda rights and signed a waiver of those rights at the beginning of the interview.

McSears argues that since his Miranda rights were not repeated before he gave the statement concerning this case, such statement should have been excluded. This issue was decided adversely to him in Heard v. State, 165 Ga. App. 252 (1) (300 SE2d 213) (1983), and Gardner v. State, 172 Ga. App. 677, 679 (5) (324 SE2d 535) (1984). As in those instances, the evidence authorized the trial court to conclude that the advice at the beginning of the continuous interview sufficed for the duration of the interrogation even though the subject was two separate crimes.

3. The final challenge is to the sufficiency of the evidence.

The victim testified that McSears hit her with his fists, cut her hair with a butcher knife and scissors, and stabbed her arm twice after learning she had gone out with his best friend. Although the photographs taken of her after the assault show she was covered in blood, it was her opinion that McSears had not intended to hurt her. McSears testified likewise, stating that he was only trying to scare her.

“A person commits the offense of simple assault when he . . . [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon. . . .” OCGA § 16-5-21 (a) (2). McSears acknowledged during cross-examination that he intentionally swung the knife at the victim so as to place her in reasonable apprehension of receiving a serious bodily injury. The evidence was sufficient to authorize a rational trier of fact to conclude that McSears was guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

Decided April 4, 1997.

Before Judge Hill.

Bruce & Hentz, Kenneth D. Bruce, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael J. Moeller, John P. Webb, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A0600.
    NELSON v. THE STATE.
    (485 SE2d 582)
   Birdsong, Presiding Judge.

A Muscogee County jury convicted James Rodney Nelson of selling cocaine, possessing cocaine with intent to distribute, and using a communication device to commit a felony. Narcotics agents testified a confidential informant told them he had obtained cocaine from someone named “Rodney.” They met with the informant at his home and arranged for him to page “Rodney” and set up a sale. Someone who identified himself as Rodney called the informant and said he was on the way; the defendant drove up approximately 15 minutes later. After searching the informant to ensure he had no drugs, the agents sent him to Nelson’s car wearing a recording device and carrying $40 in marked bills. The agents audiotaped a conversation during which the informant gave the $40 in exchange for crack cocaine. The informant returned to the house and gave the agents the cocaine. After Nelson drove away, other officers stopped him and found additional cocaine under the dashboard of his car. The jury heard the tape of the conversations between Nelson and the informant.

Nelson claimed he had not sold any cocaine to the informant and testified he received the $40 from the informant in repayment of a debt. In support of his case, Nelson sought to introduce a written, notarized statement the informant gave to Nelson’s attorney. Because the informant did not appear to testify at trial, the court excluded the document as hearsay. Nelson’s only contention on appeal is that the trial court improperly excluded the informant’s written statement. Held:

As the parties agree, the informant’s written statement was inadmissible hearsay unless it fell within the “necessity” exception to the hearsay rule. See OCGA § 24-3-1 (b). “[T]o admit hearsay statements under the necessity exception, two prerequisites must be satisfied: (1) there must be a necessity for admitting the out-of-court statement, and (2) there must be a guarantee of the trustworthiness of the statement which the law will consider a substitute for the oath and cross-examination.” Smith v. State, 266 Ga. 827, 830 (4) (470 SE2d 674).

Nelson contends that the informant was “unavailable to testify” because he did not appear in response to a subpoena; therefore, the introduction of his statement was necessary. We need not address this argument, although prior cases have generally held that a witness is “unavailable” only when the witness has died, has invoked a privilege, or has not been located after a diligent search. See, e.g., Hayes v. State, 265 Ga. 1, 2-3 (3) (453 SE2d 11) (witness dead); Higgs v. State, 256 Ga. 606, 608 (4) (351 SE2d 448) (witness invoked privilege); Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69) (child witness could not be located because her family deliberately hid her). In this case, the informant’s statements did not meet the requirement of “trustworthiness.”

Decided April 4, 1997.

Before Judge Smith.

Robert L. Wadkins, for appellant.

J. Gray Conger, District Attorney, for appellee.

Although the informant made his written statement to an attorney who notarized it, the statement was not made until two weeks after Nelson’s arraignment on these charges. Similarly, in Turner v. State, 216 Ga. App. 896, 899 (2) (456 SE2d 241), the defendant sought to introduce a hearsay statement a witness made to her attorney after the defendant’s preliminary hearing. We found that statement, made sometime after the incident and not made as part of any official investigation, insufficiently trustworthy. Furthermore, as Nelson’s counsel agreed, the State possessed a tape recording of an “absolutely contradictory” statement the informant made to police. See Mallory v. State, 261 Ga. 625, 628 (2) (409 SE2d 839) (out-of-court statement not trustworthy where witness made contradictory statements). Under these circumstances, the trial court did not err in excluding this evidence.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A97A0609.
    WRIGHT v. BARNETT MORTGAGE COMPANY.
    (485 SE2d 583)
   McMurray, Presiding Judge.

Appellant-plaintiff Mattie Wright filed this tort action against appellee-defendant Barnett Mortgage Company (“Barnett”), alleging Barnett wrongfully foreclosed on a security interest in real property located at 395 Tazor Street in Fulton County, Georgia, which property was “owned by Plaintiff and mortgaged by [sic] Defendant.” Plaintiff contended “she never received notice of the foreclosure sale, although the previous law firm for [Barnett] knew of Plaintiff’s home address [because it] had sent previous foreclosure notice to that home address . . . [in] Hephzibah, Georgia.” Plaintiff reasoned that a different “law firm handling [this subsequent] foreclosure for [Barnett] knew or should have known the correct address for giving notice to plaintiff.” “Prior to 9 a.m. on the morning of the foreclosure date (March 5, 1996), the attorney for Plaintiff faxed to the attorney for [Barnett] information explaining that Plaintiff had never received notice.” Nevertheless, Barnett “went ahead and foreclosed on March 5, 1996.” “On April 1, 1996, Plaintiff received [a] Possession of Premises Notice from [Barnett].” Plaintiff demanded that “the foreclosure sale be set aside and that proper notice be given to Plaintiff at [her] home address.”

On April 12, 1996, the superior court entered a temporary restraining order, prohibiting interference with plaintiff’s possession and enjoyment of the property, provided that a “re-instatement amount of $6,000.00 shall be paid into the Court by Plaintiff no later than 5:00 p.m., April 16, 1996[; and further provided that plaintiff] shall pay monthly mortgage notes into the Court starting June 1, 1996 and continuing thereafter,” until the case is resolved.

Barnett denied the material allegations and promptly moved for summary judgment. In support of its motion, Barnett submitted a copy of a 1982 security deed to the Tazor Street property executed by James C. Story as grantor in favor of Citizens Mortgage Service Corporation as grantee, securing a loan in the principal amount of $27,100. By warranty deed executed in Davidson County, Tennessee, on November 23, 1983, James C. Story conveyed the Tazor Street property to plaintiff. This conveyance was expressly “made subject to . . .” the security deed from James C. Story to Citizens Mortgage Service Corporation, as assigned to American Savings & Loan Association of Florida. James C. Story’s promissory note and security deed ultimately were assigned to Barnett on November 1, 1990. Barnett declared the note to be in default for failure to make payments on the indebtedness as and when due and accelerated the balance.

In an affidavit, Sarah A. Murphy, a foreclosure paralegal with the law firm handling this subsequent foreclosure, deposed that both plaintiff as current record owner of the encumbered property and James C. Story as borrower-grantor were sent Notices of Foreclosure by regular and certified mail to the Tazor Street address. The notice sent to plaintiff by certified mail at the Tazor Street address was accepted and signed for on “12-29-95,” although the signature for the “Addressee or Agent” is indecipherable. Additionally, plaintiff was served with an additional notice at an. address on Adams Drive in Atlanta, Georgia. This duplicate notice was returned as “UNCLAIMED” on January 18, 1996. According to the affidavit of Kathreen Smith, with Barnett’s foreclosure department, plaintiff “Mattie Wright never provided written notice to Barnett to send correspondence regarding loan number 664844 to [her] address 5133 Farmers Bridge Road, Huphzibah [sic], Georgia 30815.”

In opposition, plaintiff submitted foreclosure notices the first law firm had sent to plaintiff at her addresses in Hephzibah, Georgia and Atlanta, Georgia, regarding an earlier default. The trial court granted Barnett’s motion for summary judgment and plaintiff appeals. Held-.

1. Plaintiff’s first two enumerations of error urge that OCGA § 44-14-162.2 is unconstitutional. She first argues that a non-judicial foreclosure by exercising a power of sale contained in a deed is nevertheless a civil “action” involving property under OCGA § 9-11-4 (e) (1) (B), and that plaintiff was entitled to personal service under OCGA § 9-11-4 (d). Also, she argues that OCGA § 44-14-162.2 “is unconstitutional (Federal/State) because it is vague, ambiguous, and confusing. . . .” For aught that appears of record, however, these issues were never presented to the trial court for a ruling. “It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) English v. Liberty Mtg. Corp., 205 Ga. App. 141, 142 (1), 143 (421 SE2d 286).

2. Relying on OCGA § 44-14-180, plaintiff next contends the notice of foreclosure was defective because it failed to provide a reinstatement balance.

There is considerable doubt that OCGA § 44-14-180, specifying the manner to foreclose on a true mortgage, is applicable to the case sub judice, where Barnett foreclosed under a power of sale contained in a deed to secure debt. See OCGA § 44-14-162. “It is our opinion that when a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” (Citations and punctuation omitted.) Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327 (1), 330 (270 SE2d 867). Moreover, plaintiff failed to demonstrate by the record that she sustained any harm from this alleged omission, since the trial court did grant a rule specifying a reinstatement amount of $6,000, payable into the registry of the court by a date certain. See OCGA § 44-14-180 (2). This enumeration is without merit.

3. Plaintiff’s fourth enumeration contends that, “as a matter of equity, the foreclosure should be set aside[, since the] second attorney for [Barnett] had or should have had file documents indicating where the [plaintiff] expected to receive notice.”

Notice of initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract “shall be in writing and shall be sent by registered or certified mail, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor.” OCGA § 44-14-162.2 (a). As transferee and current owner of the property encumbered by the debt, whose identity was known to the creditor, plaintiff was a “debtor” within the meaning of OCGA § 44-14-162.1 and so was entitled to receive the notice prescribed by OCGA § 44-14-162.2.

In our view, plaintiffs argument that Barnett’s constructive knowledge of her Hephzibah address triggered a duty to send the OCGA § 44-14-162.2 (a) notice of foreclosure to that Hephzibah address is controlled adversely to her by Zeller v. Home Federal Savings &c., 220 Ga. App. 843, 844 (1), 845 (471 SE2d 1). In Zeller, this Court held: “[a] telephone call, a notation on a file by an employee of [the Creditor], and the receipt of payment by check with the new address, do not show compliance with the requirement that [the debtor] designate an address [other than that of the property encumbered] by ‘written notice.’ ” Id. Consequently, in the case sub judice, we hold that plaintiff’s undisputed failure to provide written notice to Barnett that she wanted her Hephzibah address to be the proper address for notice of foreclosure defeats her claim that Barnett was obligated under OCGA § 44-14-162.2 to notify her at the Hephzibah address. The trial court correctly granted Barnett’s motion for summary judgment.

4. As we cannot say that plaintiff’s arguments, although ultimately without merit, were entirely frivolous or interposed solely for the purpose of delay, Barnett’s motion for frivolous appeal sanctions, pursuant to Court of Appeals Rule 15 (b), is denied. See, e.g., Gardiner v. McDaniel, 202 Ga. App. 663, 664 (2) (415 SE2d 303) (interpreting OCGA § 5-6-6). Compare Moore & Jester v. Smith Machine Co., 4 Ga. App. 151, 153 (5) (60 SE 1035).

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Smith, J, concurs specially.

Smith, Judge,

concurring specially.

I agree with the majority that the trial court correctly granted summary judgment to Barnett Mortgage Company.

I respectfully disagree, however, with the majority’s conclusion that sanctions are not warranted. This case is controlled adversely to Wright by Zeller v. Home Federal Savings &c., 220 Ga. App. 843 (471 SE2d 1) (1996). As noted by Barnett Mortgage, the similarity between the two cases is “uncanny.” Despite the applicability of Zeller, Wright attempts to show error by citing inapt statutes and by raising arguments not raised below, while ignoring Zeller. Although Barnett Mortgage relied on Zeller in its motion for summary judgment, Wright did not address that case or attempt to distinguish it in response to the motion. Likewise, Barnett Mortgage relies on Zeller here, and again Wright has ignored the remarkable resemblance between the two cases. If Wright were unaware below that Zeller controls her contentions, she certainly should have recognized the importance of that case on appeal, when Barnett Mortgage raised it again. Her refusal to address Zeller despite at least two opportunities to do so is testament to her knowledge of its importance and reveals clearly the frivolous nature of her arguments.

Decided April 4, 1997.

Before Judge Wyatt Cummings Moore.

Roy Miller, for appellant.

McCalla, Raymer, Padrick, Cobh, Nichols & Clark, John G. Aldridge, Jr., Daniel D. Phelan, for appellee.

Because the law is indisputably clear on the issues raised by Wright, Suchnick v. Southern Gen. Ins. Co., 196 Ga. App. 687, 688 (396 SE2d 609) (1990), and because there was no reasonable basis on which she could have anticipated reversal, Powell v. Bank South, 202 Ga. App. 852, 854 (2) (415 SE2d 543) (1992), I would assess a frivolous appeal penalty against Wright in the amount of $1,000. Court of Appeals Rule 15 (b).


author: McMurray, Presiding Judge.

text:
    A97A0873.
    LEACHMAN v. THE STATE.
    (485 SE2d 587)
   McMurray, Presiding Judge.

Defendant was charged in a special presentment with theft by receiving stolen property, in that between September 28, 1994, and October 30, 1994, he and three others received “a Browning Shotgun and a Remington Woodmaster Rifle, property which he knew or should have known was stolen property, without the intent of returning said property to Randall Franks, the owner of said property.” At defendant’s jury trial, Randall Franks testified that on September 28, 1994, he “had three guns stolen . . .” from his home in Cartersville, Bartow County, Georgia. One was a “Browning Auto 5 and one was a Remington 742, and ... a Marlin 30-30.” The police were summoned and Randall Franks gave police the serial “numbers for all three guns.” The first two weapons were recovered by police and returned to Randall Franks. Randall Franks did not give any defendant his permission to possess, have, or to hold these two guns.

Mike Chambers, then a patrol deputy with Bartow County, investigated the incident. In addition to taking the description of the stolen guns and their serial numbers, Mike Chambers observed “a pathway. You could see where someone had left the rear of the home and, obviously, come through the weeds and so forth in the back of the residence to another driveway. And you could see where [someone] had pulled [a] car off the edge of the road, but you couldn’t make out any kind of tracks.”

On September 28, 1994, Allison Griffin watched as Jeff McMillan came to her house in Dallas, Paulding County, Georgia, where Jeff McMillan “gave [her] husband [two] guns.” She knew “there was no money or anything exchanged. The Sheriff’s Department subsequently confiscated “the guns that Mr. McMillan brought to [Allison Griffin’s] husband[.]” Defendant’s then son-in-law and co-defendant, Jimmy Dean Ray, testified that, on the first weekend in October, defendant “just dropped by [Jimmy Dean Ray’s] house that Sunday and had a gun and asked [him] did [he] want to buy it, and [Jimmy Dean Ray] told him, Yeah.’ ” The gun in question was a Browning .20 gauge shotgun. Jimmy Dean Ray “asked him [defendant] was it stolen, and he [defendant] said, ‘No.’ ” Jimmy Dean Ray paid defendant $300 for the Browning shotgun.

According to Investigator Wade Allen Pilcher of the Bartow County Sheriff’s Office, an “Auto 5 recovered from Mr. [Jimmy Dean] Ray is the same Auto 5 that was taken from Mr. Franks’ residence^ because the] serial numbers match up.” Contrary to his subsequent testimony at trial, Jimmy Dean Ray told Investigator Pilcher that “he got it [the Browning shotgun] from Jeff McMillan.” On October 20, 1994, “Mr. McMillan and Mr. Leachman [defendant] showed up at the Sheriff’s Office.” Until that time, Investigator Pilcher “had no idea that [defendant] was involved in the case.”

Defendant agreed to give a statement to Investigator Pilcher. “He stated that he had purchased the firearms from [co-defendant] Donnie Pruiett for $450, and that was on September the 27th. . . . He [defendant] also gave [Investigator Pilcher] a receipt showing the sale to him from Donnie Pruiett for the two firearms for $450. And he also had in his possession a bill of sale that Donnie Pruiett had given him to, in turn, give to me [Investigator Pilcher] showing that he [Donnie Pruiett] had purchased these two firearms from a [third] person [Billy Wade Hiram] that he stated was at the gas station at Harris Food store.” Defendant further stated that “he, in turn, sold the guns to Mr. McMillan for $350.” The substance of these trades was that defendant “purchase[d] the guns for $450 and then turn[ed] around and sold [them] for $350, [i.e.,] ‘$100 less than what he paid for the guns.’ ”

Co-defendant Donnie Pruiett also gave a statement to Investigator Pilcher in which, despite some initial reluctance and contradiction, Donnie Pruiett admitted that on the day of the burglary of Randall Franks’ home, he “went to see a friend by the name of Rose who lives on Hatfield Road.” The victims’ next-door neighbor is Rose Branton, who lives “[m]aybe 500 yards . . .” away.

Decided April 4, 1997.

Before Judge Pope.

Lorie A. Moss, for appellant.

The jury found defendant guilty of theft by receiving stolen property. His motion for new trial was denied and this appeal followed. Defendant’s sole enumeration of error urges the general grounds. Held: '

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . . .” OCGA § 16-8-7 (a). “ ‘Knowledge that goods are stolen is an essential element of the crime of receiving stolen goods (Sanford v. State, 4 Ga. App. 449, 61 SE 741; O’Connell v. State, 55 Ga. 191), and this knowledge on the part of the accused must be proved, to warrant a conviction under the Penal Code [OCGA § 16-8-7 (a)] (Stripland v. State, 114 Ga. 843, 40 SE 993); but it may be inferred from circumstances (Birdsong v. State, 120 Ga. 850, 48 SE 329; Rivers v. State, 118 Ga. 42-45, 44 SE 859), where the circumstances shown would excite suspicion in the minds of ordinarily prudent [persons] (Cobb v. State, 76 Ga. 664; Cobb v. State, 78 Ga. 801, [3] SE 628)[.] . . .’” Nichols v. State, 111 Ga. App. 699, 701 (2) (143 SE2d 41), overruled on other grounds, Gaskin v. State, 119 Ga. App. 593, 594 (1), 595 (168 SE2d 183).

Defendant’s unverified documentation indicates on September 27, 1994, he purchased firearms identified by serial numbers as those stolen from Randall Franks’ residence. But these firearms were not even stolen until September 28, 1994. This conflict in the evidence presented a credibility question which the jury determined adversely to defendant, authorizing a finding that defendant knew such documents were manufactured after the fact. Evidence that defendant immediately disposed of the stolen firearms by selling them for what would amount to a loss of $100 “was sufficient [under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)] to establish the guilty knowledge essential to support [defendant’s] conviction for theft by receiving stolen property [as alleged in the indictment]. See generally Higginbotham v. State, 124 Ga. App. 489 (3) (184 SE2d 231) (1971); Hilton v. State, 134 Ga. App. 590 (2) (215 SE2d 261) (1975).” Callahan v. State, 148 Ga. App. 555, 556 (4), 557 (251 SE2d 790). The enumeration of the general grounds is without merit.

Judgment affirmed.

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

T Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.


text:
    A97A0402.
    BURDEN v. THE STATE.
    (485 SE2d 228)
   McMurray, Presiding Judge.

Defendant Romona Burden was charged in an accusation with theft by shoplifting and contributing to the deprivation of a minor. The evidence adduced at her jury trial revealed that on August 15, 1994, Melinda Davis was employed as the Loss Control Manager at the K-Mart on Commerce Avenue in LaGrange, Georgia. Connie Harris was the Layaway Manager. Davis was watching “a particular female [, defendant, who] had been in there earlier; [because Harris had been informed that] she [defendant] comes in there regular[; that] she takes a lot of clothes in the dressing room; and every time [defendant] leaves, [a floor manager or sales associate] goes in there behind her and picks up a bunch of hangers and a bunch of racks. And that particular morning [defendant] had been in the store.” Around 4:00 p.m., Davis spotted defendant in the store, with “a lot of clothing in her buggy and she had a purse and a little boy with her.” As defendant walked into the dressing room with several items, Davis “saw the purse still had the tags on it.” Davis positioned herself behind the dressing room “and [she] heard the paper coming out of the pocketbook and the hangers hitting the floor. . . .” That paper is the “stuffing that goes into a pocketbook.” When defendant came back out of the dressing room, “she ha[d] the purse on her shoulder and then she put[] it in the buggy and she [did not] bring — she [brought] maybe one or two items back out with her[, i.e., fewer] items than what she went in with.” Davis sent Harris “into the dressing room,” while Davis herself “followed [defendant] up to the front of the store, keeping [defendant] in view the whole time. [Defendant] didn’t get rid of nothing. She didn’t discard nothing. She went to the checkout and bought a few small items. She proceeded out the front door, went out the front door on the sidewalk, and a car came up. . . .”

Davis approached defendant, identifying herself and displaying her loss control badge. When defendant “turned around and saw [Davis] and heard what [Davis] was saying, she got in the car [which sped off leaving her] little boy standing right there on the sidewalk.” As Davis was approaching the car, “it sped off, [while defendant] was pulling stuff out that she had, like, rolled up under her pants.” Davis saw defendant throwing clothing items and the purse “in the floorboard. . . .” Finally, after the car backed up, defendant “got out after she’d realized that [K-Mart associates had] taken her little boy inside.” As an assistant took defendant inside, Davis “went over trying to get the stuff out of the car. And [she] didn’t know who the guy was, but he just looked at me and said a few choice words or ugly words, and then he left and then went around the store.” Davis “put a lookout on the vehicle, on the tag number.”

Davis identified State’s Exhibit 1 as a “K-Mart tag . . . [that] goes on a pocketbook. It came out of the dressing room with all that other stuff.” When Davis found this tag, she “went over to this department where the purses are and got one off the shelf like the same one that she [defendant] had, and it’s the same thing[, i.e., it matched].” A videotape showed defendant entering the dressing room carrying “the small purse [with which she entered the store] coming in and the big purse going out.” Davis confirmed that this particular K-Mart store did not “have any kind of warning system at the door that if somebody leaves it will beep.”

Connie Harris testified that, after defendant exited, she and a sales associate went “right in afterwards to see if anything was in the dressing room. . . . [They] found four or five clothes racks . . . and the empty paper and a little price tag off the purse.” For sentencing purposes only, certified copies of three prior shoplifting convictions were introduced without objection.

Although acquitting defendant of contributing to the deprivation of a minor, the jury found her guilty of theft by shoplifting. She was sentenced to ten years for her fourth such offense, under OCGA § IBS'14 (b) (1) (C). Defendant’s motion for new trial was denied, and permission was granted to file this out-of-time appeal. Held:

1. The applicable standard of review for the sufficiency of the evidence in a criminal appeal is whether a rational trier of fact could reasonably find proof of every element of the offense beyond a reasonable doubt, as enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In Humphrey v. State, 252 Ga. 525, 526 (1), 527 (314 SE2d 436), the Supreme Court of Georgia recognized that the “any evidence” standard no longer is the appropriate test in criminal appeals.

Decided March 17, 1997

Reconsideration denied April 7, 1997

Before Judge Keeble.

Kenneth D. Teal, for appellant.

Romona Burden, pro se.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

2. In two related enumerations of error, defendant urges only the general grounds.

“A person commits the offense of theft by shoplifting when he . . ., with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof . . . [c]onceals or takes possession of the goods or merchandise of any store or retail establishment.” OCGA § 16-8-14 (a) (1).

We hold that the evidence adduced in the case sub judice was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of shoplifting as alleged in the accusation. Parham v. State, 218 Ga. App. 42, 43 (1) (460 SE2d 78); Winn v. State, 215 Ga. App. 120 (1) (449 SE2d 667).

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A0720.
    ZAMORA v. THE STATE.
    (485 SE2d 214)
   McMurray, Presiding Judge.

This is a direct appeal from an order of adjudication of guilt and imposition of sentence in a first offender case. The two enumerations of error complain of the sentence imposed on defendant Zamora following the revocation of his probation. Held:

In Dean v. State, 177 Ga. App. 123, 124 (1) (338 SE2d 711), this Court concluded that the discretionary appeal procedure of OCGA § 5-6-35 is applicable to the revocation of “first-offender” probation. OCGA § 5-6-35 (a) (5). And this rule has been previously recognized in an appeal where all issues related only to the sentence imposed rather than to the revocation of probation. Tallant v. State, 187 Ga. App. 138 (369 SE2d 789). Thus, Zamora’s failure to comply with those requisite discretionary procedures deprive this Court of jurisdiction to consider this appeal. The appeal must be dismissed. Merciers v. State, 212 Ga. App. 424 (444 SE2d 416).

Decided March 12, 1997

Reconsideration denied April 7, 1997

Before Judge Caldwell.

Peter J. Ross, Larry H. Tatum, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Appeal dismissed.

Smith, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I am compelled to concur because of the controlling whole court case of Dean v. State, 177 Ga. App. 123 (338 SE2d 711) (1985). However, relegating these cases to the probation revocation category, where permission to appeal is required, denies the right to appeal to a first offender who becomes adjudicated guilty of the crime and sentenced to incarceration. Defendants should not lose this valuable right as a consequence of first offender treatment.