text:
    A99A0801.
    LAWRENCE v. THE STATE.
    (517 SE2d 822)
   Judge Harold R. Banke.

Enumerating three errors, Jack Lawrence appeals his conviction for possession of cocaine with intent to distribute.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Lawrence no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence, when viewed in that manner, established that an undercover narcotics officer, William Hildebrand, set up surveillance inside an abandoned house at a known drug location. Through binoculars, Hildebrand observed Lawrence and his brother, Lee, for nearly an hour. Lawrence sat next to a concrete wall behind a storefront where he could see the parking lot and streets. During the surveillance period, three pedestrians walked up to Lee and handed bim something. Lee then handed that object over to his brother. Each time, Lawrence went to the “stash location” to retrieve an object concealed underneath a loose roof tile and handed it to his brother. Another man, whose identity was never ascertained, took what appeared to be “a handful of cash” from Lawrence before leaving.

When uniformed officers finally arrived, nearly everyone had scattered. Police managed to arrest Lee at the scene. They discovered 42 hits of crack cocaine packed in plastic bags under a roof tile next to where Lawrence had positioned himself. Officers arrested Lawrence outside a nearby apartment and found five hits of cocaine in his sock and $14 on his person.

Evidence from two similar transactions was admitted at trial. In one incident, an officer observed Lawrence and a partner transact five drug deals during which Lawrence repeatedly went into a wooded area to retrieve drugs from a paper bag. During the second similar transaction, Lawrence asked an undercover officer which drugs she wanted. The drug agent then gave Lawrence money to purchase cocaine and marijuana, and Lawrence’s partner handed the drugs to her. Their stash was concealed nearby in a brown paper bag underneath a dumpster.

Although Lawrence admitted to possessing the cocaine hidden in his sock, he denied having any connection to the cocaine found at the scene or having any involvement in drug sales. Lawrence claimed that the five hits of cocaine were strictly for his own personal consumption. Held'.

1. Lawrence contends that the evidence was insufficient to sustain his conviction because the undercover officer could not see the items being exchanged. We disagree. Possession of drugs may be joint or exclusive, and actual or constructive. Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). Where drugs are found in the immediate presence of a defendant, a jury is authorized to find that the defendant has constructive possession of the drugs. Id.

Here, police recovered 42 hits individually packaged for sale from the area Lawrence had vacated just moments before. The undercover officer testified that he saw Lawrence repeatedly remove the tile and remove an object stashed underneath it. Based on this evidence, a jury could have determined that Lawrence had constructive possession of the crack cocaine hidden under the tile. Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996). Further, by showing circumstantially that Lawrence had equal access to the cocaine and was in joint constructive possession of it, the State proved that Lawrence was, at a minimum, a party to the crime. Brownlee v. State, 173 Ga. App. 138, 139 (1) (325 SE2d 815) (1984).

Based on the evidence showing that Lawrence actively participated in several apparent drug transactions, the prior sales by Lawrence of illegal drugs to strangers, the discovery of cocaine hidden on Lawrence’s person, and the 42 hits concealed under the tiles, the jury could have decided that Lawrence intended to distribute the cocaine. This evidence was sufficient to satisfy the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Blaise v. State, 185 Ga. App. 653, 654 (365 SE2d 499) (1988).

2. Lawrence contends that the trial court erred by charging:

If upon consideration of the evidence in this case, you find there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it is your duty to settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do this, then it becomes your duty to believe that witness or those witnesses you think best entitled to belief.

While a charge instructing that witnesses are presumed to speak the truth has been disapproved as potentially misleading, it has not been found to be reversible error. Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175) (1986); Stinson v. State, 221 Ga. App. 758, 759 (2) (472 SE2d 538) (1996); see Frost v. State, 200 Ga. App. 267, 271 (5) (407 SE2d 765) (1991). In any event, the charge as a whole properly instructed the jury that it was the ultimate factfinder and was responsible for determining whether the witnesses spoke the truth. Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998). We find no error.

3. Lawrence contends that he was not afforded effective assistance of counsel at trial because his attorney at the last minute withdrew a request to charge on the lesser included offense of simple possession, thereby depriving him of his sole defense.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). Moreover, a defendant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct. Id.

At the motion for new trial hearing, Lawrence’s trial counsel explained that Lawrence’s defense was that he was a drug user but not a drug seller. She testified that the only reason she would have withdrawn the requested charge on the lesser offense would have been a decision to pursue an all or nothing defense because Lawrence did not want to risk a conviction for simple possession. The facts established by the evidence could conceivably have supported that strategy. Such a strategic decision does not equate with ineffectiveness of counsel. Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998). Since the trial court’s finding that Lawrence was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

Decided May 13, 1999.

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A0542.
    A99A0543.
    ADAMSON v. THE STATE. WATSON v. THE STATE.
    (516 SE2d 310)
   Barnes, Judge.

Suzanna Adamson and Letitia Watson were tried jointly and convicted of shoplifting. They appeal the convictions, contending that they purchased the items that were removed from the store and dispute in each of their enumerations the sufficiency of the evidence. We affirm.

Construed to support the verdict, the evidence showed that Adamson and Watson came into a Valdosta K-Mart together and shopped with each other for a couple of hours. K-Mart’s loss control manager, Clarence Miller, monitored the two women on the security cameras because the night was slow and the security team wanted to practice using the in-store surveillance equipment. Miller testified that Adamson’s purse was flat when she first entered the store, then became “very puffy as if it was full” while she was shopping. When the women went to a section of the store hidden from the cameras, Miller walked over to physically survey their activities. Through a hole cut in a display case, he saw Adamson conceal merchandise in her purse and saw Watson “standing and walking backwards and forth in front of her trying to shield her there.”

Miller radioed the control room regarding his observation, then asked a cashier to wait with him outside until the two women left the store. When they walked out, he asked them to come back inside with him. After reentering the store, Adamson resisted, but Miller grabbed her arm and escorted her to the office area, where Watson accompanied her. Adamson declined to empty her purse for the K-Mart employees and refused to take her hands out of her purse. As a result, the employees handcuffed her after a struggle and waited for the police.

Decided April 5, 1999

Reconsideration denied May 14, 1999.

Smith, Hannan & Parker, Bradley M. Hannan, for appellants.

J. David Miller, District Attorney, Jennifer A. Thomas, Assistant District Attorney, for appellee.

A police officer arrived and asked Adamson to show them what was in her purse. She dumped the contents out onto a table, and the officer watched the store employees inventory the unpaid K-Mart merchandise. The sales tickets, which the store employees scanned with a portable bar code reader, totaled $128, excluding the items that were paid for. Adamson was then arrested. Watson was not arrested at that time because K-Mart’s policy was to prosecute only people who had stolen merchandise in their possession, but not accomplices. Watson was later indicted as a co-defendant.

1. We find the evidence sufficient for a rational trier of fact to find Adamson guilty of the charges beyond a reasonable doubt, and to find that she did not purchase all the items with which she left the store. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Watson argues that no evidence shows she was a party to the crime. While mere presence at the scene of a crime is not enough evidence to sustain a conviction, presence, companionship, and conduct surrounding the events are circumstances from which criminal intent can be inferred. Carter v. State, 188 Ga. App. 464 (1) (373 SE2d 277) (1988). Further, when transactions involve relatives, slight circumstances can support the inference that the parties colluded. Carter, supra at 465. Here, Watson and Adamson, who were sisters, entered the store together, shopped together, and checked out together. The loss control manager testified that he saw Watson trying to shield Adamson from view while Adamson was stuffing merchandise into her purse. The evidence, though slight, was sufficient to sustain Watson’s conviction.

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Ruffin, Judge.

text:
    A99A0312.
    AUTUMN TRACE HOMEOWNERS ASSOCIATION, INC. v. BROOKS et al.
    (517 SE2d 836)
   Ruffin, Judge.

On August 6, 1997, Autumn Trace Homeowners Association (the Association) sued various former officers and directors of the Association, alleging that they negligently failed to prevent the Association’s property manager from embezzling the Association’s funds. The defendants moved for summary judgment based on the expiration of the statute of limitation, and the trial court granted their motion. We affirm.

Summary judgment is proper only when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from a grant of summary judgment, we must view the evidence, as well as all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

In 1990 or 1991, the Association hired Truesdale & Associates as its property manager. Truesdale & Associates and its president, Dorothy Truesdale, had control over the Association’s bank accounts. Dorothy Truesdale committed suicide on May 10, 1993. On May 11, 1993, the Association’s attorney, George Nowack, informed defendant Donna Patterson, the Association’s treasurer and a board member, of Truesdale’s suicide and advised her to check the Association’s bank accounts. Patterson testified that she went to the bank that day and found that a “very large sum of money” was missing from the Association’s bank account. At some point in May 1993, the Association hired Donald K. Elliott, a certified public accountant, to audit the Association’s financial records in an attempt to discover any improper activity. According to Elliott, whose affidavit was submitted by the Association in opposition to defendants’ motion for summary judgment, he was informed by the Association that a recent inquiry had revealed that the amount in the Association’s bank account was less than expected. On or before June 15, 1993, Elliott, Nowack, and certain of the Association’s directors met with the homeowners to discuss the situation. Elliott testified that he emphasized at the meeting that he would not know whether there had been any embezzlement until he had analyzed the Association’s financial records. Elliott issued his final report to the Association on August 30, 1993.

The parties agree that this action is subject to a four-year statute of limitation. The Association filed this action on August 6,1997. Accordingly, if the cause of action accrued before August 6,1993, it is barred by the statute of limitation.

Decided May 14, 1999.

Mark W. Crouch, Ruth A. Carr, for appellant.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Joan G. Crumpler, for appellees.

The Association contends that its cause of action did not accrue until it received Elliott’s final report on August 30, 1993, when it discovered for certain that Truesdale had embezzled funds. However,

[p]laintiff[s’] ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation. Plaintiff [s’] reliance upon the discovery rule ... is misplaced since that rule has been confined to cases of bodily injury which develop only over an extended period of time. See Hanna v. McWilliams, 213 Ga. App. 648, 649 (2) (446 SE2d 741) [(1994)].

(Citations omitted.) Metlife v. Wright, 220 Ga. App. 827-828 (470 SE2d 717) (1996). See also Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988).

The Association’s cause of action accrued when it sustained an injury as a result of defendants’ alleged negligence. See Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 638 (1) (484 SE2d 659) (1997). Any injury to the Association occurred when Truesdale embezzled funds from the Association, and this embezzlement occurred no later than May 10, 1993, when Truesdale committed suicide. There is no evidence of fraud by defendants to prevent the Association from discovering its cause of action, so as to toll the running of the statute of limitation. See Metlife, supra. Accordingly, the Association’s cause of action accrued no later than May 10, 1993. Because this action was not brought until more than four years later, it is barred by the statute of limitation.

Judgment affirmed.

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

       The trial court held that the relevant statute is OCGA § 9-3-32, dealing with actions for the recovery of personal property or for damages for the conversion or destruction of the same. Although the Association suggests that this statute does not apply, it does not suggest an alternative and agrees that the limitation period is four years. While not mentioned by the parties, it is arguable that OCGA § 9-3-31, dealing with actions for injuries to personal property, is applicable. See Hardaway Co. v. Parsons, Brinckerhoff, Quade &c., Inc., 267 Ga. 424, 426-427 (1) (479 SE2d 727) (1997) (applying statute to claim for economic loss due to negligence). Regardless of which statute applies, however, they both require that the action be brought within four years after the right of action accrues.


author: Barnes, Judge. BLACKBURN, Presiding Judge,

text:
    A99A0321.
    SIMPSON v. THE STATE.
    (517 SE2d 830)
   Barnes, Judge.

A jury found Clenard Simpson guilty of theft by taking, theft by receiving stolen property, giving a false name, possession of open container, license revocation, and no proof of insurance. Simpson appeals, contending (1) he did not knowingly and intelligently waive his right to counsel; (2) his claim of ineffective assistance of counsel should not be barred because he did not knowingly and voluntarily waive his right to counsel; (3) he received ineffective assistance of counsel; and (4) the trial court erred by not inquiring into the results of a court-ordered psychiatric evaluation of his competency.

1. Simpson claims he did not knowingly and intelligently waive his right to counsel because the trial court failed to advise him (1) of the hazards arising from an ignorance of the rules of evidence, (2) that he would be bound by the same rules of evidence as a lawyer, (3) that he would not be allowed to argue ineffective assistance of counsel on appeal, (4) that his appointed counsel would not be able to speak, and (5) of the higher probability of conviction if he represented himself.

In this case, the record shows that appointed counsel was provided to Simpson on July 16, 1997. On December 3, 1997, Simpson’s counsel moved for permission to withdraw because Simpson told her the day before that she was terminated, he did not want to talk with her, he did not want her to say anything during his trial, and he would represent himself if the court did not give him time to hire another lawyer.

When Simpson’s case was called for trial on June 22,1998, Simpson appeared with his appointed counsel who reminded the judge that Simpson had terminated her in December 1997. She advised the trial court that she had talked with Simpson on other occasions since that time and his position had not changed. She further explained that Simpson wanted to represent himself, that he did not want her to say one word in his trial, and that he did not want her to file any papers, such as jury charges or voir dire questions, on his behalf. The trial court then asked Simpson if he agreed with the representations of his appointed counsel, and Simpson replied that he did. The trial court also inquired about Simpson’s education and learned that Simpson had a bachelor’s degree in computer engineering from the University of Texas.

The trial court advised Simpson that he had the right to represent himself even though “[fit’s considered to be extraordinarily unwise to do so.” It also told his appointed counsel to remain at the counsel table and be available to answer any questions Simpson may choose to ask her during the trial. At the trial court’s request, the State explained the maximum and minimum penalties for each of the charges against Simpson. Simpson was advised that his previous convictions would require the court to give him a 20-year sentence if he were convicted of either theft by receiving or theft by taking, but that the court could probate any portion of the 20-year sentence it deemed appropriate. The trial court also explained the possible sentences Simpson was facing, and Simpson acknowledged that he understood his potential sentences. The court also learned that Simpson was familiar with the court system as a result of previous convictions for burglary, possession of cocaine, theft by receiving an automobile, and driving under the influence.

The trial court then inquired about the State’s plea offer and explained the offer, as well as the sentencing process for a guilty plea, to Simpson. Simpson responded that he would like to enter a non-negotiated guilty plea and requested assistance from his appointed counsel to prepare the guilty plea paperwork. After the paperwork was completed, the State summarized the evidence supporting the guilty plea and requested the court to sentence Simpson to serve three years in prison. The defendant responded by telling the court that he did not agree with the sentence recommended by the State and that he wanted “credit for time served.” The trial court asked the defendant if he meant released on time served, and the defendant agreed that he did. The trial court then asked, “Do you see why you need a lawyer?” and Simpson responded that he did before continuing his argument as to why he should be released on time served. The trial court explained at length the reasons why it would not release him on time served, but would instead sentence him to three years with credit for the time he already served waiting for trial if he entered a negotiated guilty plea. The defendant then replied that he would not agree to be sentenced to three years, that he would rather go to trial and receive a twenty-year sentence. Before starting jury selection, the trial court clarified again that Simpson wanted to represent himself and that his appointed counsel would sit at counsel table and be available for his use throughout the trial.

The first day of Simpson’s trial concluded with the selection of the jury. On the second day of his trial, Simpson appeared in his prison clothes and refused to change into civilian clothes at the request of both the court and his appointed counsel, who explained the prejudice that could result. The court clarified again that he wanted to represent himself and that he understood his appointed counsel would be available to him throughout the trial. When the court also advised him, based on additional information presented by the State, that he faced a minimum sentence of three years if he were convicted of either theft charge, Simpson elected to proceed with the trial.

Before the jury was brought in on the second day of Simpson’s trial, his appointed counsel told the trial court:

Your Honor, I have talked repeatedly with Mr. Simpson. I have all but gotten on my knees in terms of him not representing himself and also in terms of him insisting on wearing his jail clothes. I have advised him that it is extremely prejudicial for the jury to see him in his jail clothes. It is extremely dangerous not to file any charges, not to file any papers, not to be represented by counsel. He has — it appears that he understands the risk he’s taking, and it is his sole decision not to be represented by counsel.

She concluded by asking Simpson if these statements were correct, and he replied that they were.

During his trial, Simpson did not make an opening or closing statement, cross-examine witnesses, or present any defense witnesses, including himself. He also refused to submit the jury charges prepared by his appointed counsel.

In Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), the Supreme Court held that in all future cases,

the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

Whether there has been an informed and intelligent waiver of a defendant’s right to counsel depends upon the peculiar facts and circumstances of each case. Callahan v. State, 175 Ga. App. 303, 304 (333 SE2d 179) (1985).

In this case, the record shows that Simpson was aware of his right to counsel and that he clearly wanted to proceed without counsel. Thus, the issue before us is whether the record shows he was adequately informed about the dangers of proceeding without counsel.

Simpson argues the record does not show that he was adequately advised about the dangers of proceeding pro se because the trial court did not provide him with the same information that supported a valid waiver of a defendant’s right to counsel in other cases. See Wright v. State, 222 Ga. App. 320, 321-322 (2) (474 SE2d 121) (1996) (defendant advised that he must abide by rules of evidence and that he would not be allowed to argue ineffective assistance of counsel on appeal); Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996) (judgment reversed because defendant not told the nature of the charges, the range of allowable punishment, and possible defenses); Shavers v. State, 179 Ga. App. 45, 46 (1) (345 SE2d 134) (1986) (defendant advised of hazards arising from ignorance of the rules of evidence and a higher probability of conviction).

The Supreme Court recently rejected a similar argument in Wayne v. State, 269 Ga. 36, 37-38 (2) (495 SE2d 34) (1998), finding “it is not incumbent upon a trial court to ask each of the questions set forth in Prater” Id. at 38. Instead, the record must show only “that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.” Id.

Based on Wayne, supra, we find the Supreme Court has decided against specific guidelines outlining information that must be provided to defendants in order to demonstrate that they were adequately advised of the dangers of proceeding pro se. Instead, the analysis of whether a defendant has been sufficiently warned about the dangers of self-representation will turn on the peculiar facts and circumstances of each case. Clarke, supra, 247 Ga. at 197.

In this case, Simpson acknowledged that he had an ongoing dialogue with his appointed counsel about the dangers of representing himself and that he understood the risk he was taking by representing himself. The trial court also advised him that it would be “extraordinarily unwise” to represent himself and that he had excellent and competent counsel available to assist him.

Based on the facts and circumstances of this case, we find that Simpson knowingly and intelligently waived his right to counsel. See Mock v. State, 163 Ga. App. 320, 321-322 (293 SE2d 525) (1982); Evans v. State, 192 Ga. App. 832, 833 (2) (386 SE2d 712) (1989). “Intelligent waiver and foolishness are not mutually exclusive,” and a defendant’s right to counsel “does not include the right to manipulate, whether consciously or capriciously, the state’s attempt in good course to prosecute him for the offense.” Mock, supra, 163 Ga. App. at 321-322. Simpson was advised of his right to counsel and provided with counsel, yet he chose to ignore the advice of both the trial court and his appointed counsel and to represent himself. As a result, we find no merit in Simpson’s first two enumerations of error.

2. We cannot consider Simpson’s claim that he received ineffective assistance of counsel because it has been waived not once, but twice. Simpson waived his right to assert ineffective assistance of counsel when he chose to represent himself. Mullins v. Lavoie, 249 Ga. 411, 412-413 (290 SE2d 472) (1982). His appellate counsel waived it again by filing a timely notice of appeal without first raising this issue in the trial court through a motion for new trial. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Russell v. State, 230 Ga. App. 546, 550 (5) (497 SE2d 36) (1998).

3. In his remaining enumeration of error, Simpson claims the trial court erred by failing to inquire into the results of a psychiatric evaluation ordered by the court at the request of Simpson’s appointed counsel. He does not contend that he was incompetent to stand trial or that the results of this evaluation show that he was incompetent. Instead, he asserts that the trial court should have made an inquiry because the defendant argued that he should not be sentenced to prison if he entered a guilty plea because his daughter had “died this year” and he had already spent 13 months in jail while waiting for his trial. On appeal, Simpson argues that “[i]t is unknown to what degree, the death of [his] daughter affected [him].”

The record shows that Simpson’s appointed counsel moved the court to order a psychiatric evaluation on the same day that she also filed her motion to withdraw as counsel for Simpson. The motion did not include an outline of the facts underlying the request for a psychiatric evaluation; instead, it set forth the issues to be inquired into in the examination, such as whether Simpson could distinguish between right and wrong and comprehend the nature of the charges against him. The trial judge issued an order granting the motion on the same day that it was filed. This order does not explain why an evaluation of Simpson’s mental condition was needed.

The results of the court-ordered psychiatric evaluation are not in the record. However, on the first day of Simpson’s trial, six months later, the trial court asked if a psychiatric evaluation was needed when Simpson was apparently amused by the discussions about whether his appointed counsel should sit beside him or on the bench behind him. Both Simpson and the State advised the trial court that the evaluation had already been performed. The trial court then told the defendant: “My impression, I think you’re a little too smart. I think you’ll outsmart yourself if you’re not careful because you’re an educated man, and you’re acting like a child.” The trial court did not ask about the results of the evaluation, and none of the parties volunteered this information to the court. However, the trial court may have reviewed or recalled the results of Simpson’s psychiatric evaluation after it was told that the evaluation had already been performed, and this type of activity would not appear in the transcript.

We find no merit in this enumeration. A trial judge is not obligated to inquire into the results of a psychiatric evaluation when it issues an order for the evaluation at the request of the defendant. Cf. Strong v. State, 263 Ga. 587, 590 (5) (436 SE2d 213) (1993). Instead, a trial court is obligated to inquire into the issue of a defendant’s competency to stand trial if evidence of incompetence manifests itself during the proceedings. Singleton v. State, 194 Ga. App. 423, 424 (4) (390 SE2d 648) (1990).

In this case, there is no evidence in the record that would have required the trial court to make a sua sponte inquiry into Simpson’s competency. The mere fact that the trial court asked the parties if a psychiatric evaluation was needed before allowing a defendant to proceed pro se does not create a competency issue. See Strong, supra, 263 Ga. at 590. Likewise, Simpson’s request for sentencing leniency if he were to plead guilty does not demonstrate a competency issue.

Finally, by failing to put the results of the psychiatric testing in the record for our review, Simpson has failed to demonstrate that the trial court’s alleged error was harmful. See Polley v. State, 203 Ga. App. 825, 827 (4) (418 SE2d 107) (1992) (“Harm as well as error must be shown to warrant reversal.”). As we have previously noted, the trial court may have silently reviewed the test results or recalled that the test results showed that Simpson was competent to stand trial.

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur specially.

BLACKBURN, Presiding Judge,

concurring specially.

I fully concur with the excellent opinion authored by Judge Barnes. I write separately because this case uniquely demonstrates the level to which the protection of criminal defendants has risen by court rulings on criminal procedure. As the majority analysis demonstrates, we even place the responsibility to ensure the defendant does not harm himself upon the State. Criminal prosecution has evolved into a gauntlet of defendants’ “rights” through which the State must pass. While every other citizen is charged with knowledge of the law and with a duty not to injure himself, we do not judge criminal defendants by this same standard.

They often manipulate the system, as Simpson has attempted to do. This college graduate refused counsel. However, counsel was still required to remain at the defendant’s disposal throughout the trial at State expense. After Simpson’s conviction, he appealed, based solely on his own poor choices for which he seeks to blame the State. He caused additional taxpayers’ resources to be expended in attempting to correct his own errors. The case had an appropriate result based on the evidence.

After conviction, Simpson began the appeal process. Those who are on bond, pending appeal, remain free and are not punished until a ruling has been made on the appeal. Incarcerated defendants often have free legal services, a law library, and plenty of time. The process is often initiated whether or not the trial court committed error, for there is sometimes no cost to the defendants, and they have nothing to lose.

Decided May 14, 1999.

D. Kent Shelton, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, Carolyn M. Hodges, for appellee.

Without question, the appellate courts must protect the rights of Georgia citizens by reviewing the actions of the trial courts and correcting errors where found. We should, however, seek to minimize the abuse of the appellate process which occurs routinely. In the handling of criminal prosecutions, the courts should hold defendants to the levels of knowledge and conduct one would expect from a reasonable, educated adult, and stop dealing with them on a level more appropriate for the juvenile courts. Criminal defendants are often dealt with like children, who are protected individuals. Defendants enjoy the status of “victim,” as to criminal procedure, unless the State can prove otherwise. It is time for the appellate courts to treat adults as adults, even if they are criminal defendants, so that trial judges simply deal fairly with them with no parens patriae responsibility.

I am authorized to state that Senior Appellate Judge Harold R. Banke concurs in this opinion.

       In his brief before this court, Simpson notes that the “results do not appear in the record,” but makes no effort to explain their absence or his efforts to make them a part of the record.


author: Eldridge, Judge.

text:
    A99A0633.
    ESTATE OF SAM FARKAS, INC. v. CLARK et al.
    (517 SE2d 826)
   Eldridge, Judge.

This is an appeal from the October 2, 1997 judgment of $15,000 on a jury verdict of September 30, 1997, for Ray Clark and Robert M. Gosa, plaintiffs-appellees, who sued the Estate of Sam Farkas, Inc. (“Farkas Estate”), defendant-appellant, for fraud and breach of contract for sale of land.

The land had been owned for a number of years by the Farkas Estate and had also been occupied by William Taylor, a tenant at will, prior to the sale and who was in possession at the time of sale. The existence of a tenant in possession was known by the plaintiffs prior to the sale. On April 6, 1996, the land was sold for $36,850 to the plaintiffs, the highest bidders at public auction. On the same day upon the close of the auction, J. Durham & Associates, Inc., the auction company, had the plaintiffs sign a real estate sales contract based upon the terms of the auction, which contract was executed by Leonard Farkas on behalf of the Farkas Estate. The terms of the contract provided:

3. [possession of the property will be given to buyer as follows: “At Closing.” ... 4. The property is sold subject to the following conditions and stipulations: (a) At closing, Seller shall deliver to Buyer . . . said property . . . subject to the rights of any parties in possession pursuant to lease agreements as herein contemplated. . . . (d) The property . . . [is] being sold “as is-where is.” Buyer acknowledges he has had ample opportunity to inspect the property and to have same inspected by his agents, and Buyer accepts the property in its present condition. Neither Auctioneer nor Seller has made any representations concerning the property. . . . 5. Rental Property. If the property is rental property, the rents will be prorated as of the date of closing and the sale will be subject to the rights of the tenant in possession. If there is a written lease agreement with the tenant, said lease agreement shall be assigned by Seller to Buyer at closing.

On May 20, 1996, the parties closed, but William Taylor refused to vacate and was a tenant holding over. Plaintiffs did not receive possession at closing. The Farkas Estate did not give the tenant notice to vacate or return the rent until after closing.

After the closing, William Taylor refused to vacate and claimed that he had rented the property for one year and had prepaid twelve months rent on April 5, 1996, to B & B, rental agents for the Farkas Estate. On April 16, 1996, B & B Rental Agency sought to return the unearned rent of $1,650 to Taylor, but he refused. Plaintiffs brought suit against Taylor for dispossession and received a writ of possession on July 8, 1996. Plaintiffs contended that a few days prior to the auction, they talked with Joe Durham and Wally Binns of the auction company about the tenant, and the plaintiffs stated that Leonard Farkas told them that there was a tenant on the property; that there was no lease; and that it would not be difficult to remove the tenant. Plaintiffs were assured that there would be no problem and that the tenant would be removed. They were not told when they would receive possession, but relied on the contract provision stating “at closing.” The Farkas Estate did not deliver possession of the property until September 21, 1996. After closing, plaintiffs were told that the tenant would not leave and that it was their problem.

Plaintiffs sued the Farkas Estate for breach of contract and fraud in the inducement for entering into a rental agreement with Taylor on April 5, 1996, one day prior to the auction. On September 16, 1996, plaintiffs amended the complaint to add a verification. On September 4, 1997, plaintiffs filed their second amendment setting forth a count for fraud in tort. The case was tried before a jury on September 30, 1997, and a verdict was returned for plaintiffs.

On October 27, 1997, the Farkas Estate filed its motion for judgment notwithstanding the verdict and, in the alternative, a new trial. On September 10, 1998, the trial court denied the motions. On October 12, 1998, the Farkas Estate filed its notice of appeal to the denial of its motion for j.n.o.v. and, in the alternative, a new trial.

1. The Farkas Estate contends that the trial court erred in allowing the plaintiffs to proceed to trial and present evidence on the tort of actual fraud and breach of contract, rather than making an election between fraud in the inducement to set aside the contract or to affirm the contract and to sue in tort or contract for damages. We agree.

In general, [when there is a merger provision in the contract], a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue [in contract] for breach; or (2) rescind the contract and sue in tort for fraud. (Cits.)

Jones v. Cartee, 227 Ga. App. 401, 402-403 (489 SE2d 141) (1997); accord Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977); City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974); Cotton v. Bank South, 231 Ga. App. 812, 813-814 (499 SE2d 129) (1998).

Depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery [in tort]. If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort theory.

(Citations and punctuation omitted.) Jones v. Cartee, supra at 403; accord Cotton v. Bank South, supra at 813-814. Stated another way,

[a] party claiming he or she was fraudulently induced to enter a contract has two possible remedies: (1) to promptly rescind the contract after discovering the fraud and sue in tort for the recovery of the contract’s consideration, as well as any other damages resulting from the fraud; or (2) affirm the contract and sue for damages resulting from the fraud [or contract]. Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523 (1) (448 SE2d 271) (1994). Where the party elects the second option and affirms the contract, however, he or she is bound by its terms. In this case, the contract’s “merger” provision would estop a party bound by the terms of the contract from arguing that he or she relied on representations other than those contained in the contract. See Rampey v. Jay Pontiac GMC Truck, 211 Ga. App. 632, 633 (440 SE2d 52) (1993); Carpenter v. Curtis, 196 Ga. App. 234, 236-237 (395 SE2d 653) (1990).

Kaye v. Ryland Group, 228 Ga. App. 742, 743 (492 SE2d 729) (1997).

This result obtains [as to a tort action for fraud] because where the allegedly defrauded party affirms a contract which contains a merger or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail.

(Citation and punctuation omitted.) Rampey v. Jay Pontiac GMC Truck, supra at 633.

If the purchaser affirms the sales contract, he is bound by the contract’s terms and is subject to any defenses which may be based on the contract. In the event the contract contains an entire agreement clause, that clause operates as a disclaimer, establishing that the written contract completely and comprehensively represents all the parties’ agreement. This clause then bars the purchaser from asserting reliance on the alleged misrepresentation not contained within the contract. Therefore, any fraud claim the purchaser might assert would be barred because reliance is an element essential to establishing fraud. . . . Ey contrast, entire agreement clauses generally concern contractual liability, and provide that all oral representations have merged into the written contract. While an entire agreement provision may, in some instances, result in a waiver of claims, the parties to the contract have ultimate control over its impact by reducing all the vital terms of their contract to writing. Also, a party signing a contract containing an entire agreement clause is not absolutely bound by it. If that party later learns of a fraud that induced the contract but is not reflected in the contract’s terms, the party has the choice of rescinding the contract and suing on the fraud or affirming the contract and being bound by its terms. The entire agreement clause will bar the fraud claim only in the latter instance.

(Citations and punctuation omitted.) Pennington v. Braxley, 224 Ga. App. 344, 346-347 (480 SE2d 357) (1997).

Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. (Cit.) Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 142 (384 SE2d 235) (1989) (physical precedent) [rev’d on other grounds, Jones v. Cartee, supra at 404-405 (1)]; see also Flair Fashions v. SW CR Eisenhower Drive, Inc., 207 Ga. App. 78, 79 (427 SE2d 56) (1993).

(Punctuation omitted.) Kaye v. Ryland Group, supra at 743-744.

In this case, the written contract contained a merger provision: “[t]he property . . . [is] being sold ‘as is-where is.’ . . . ‘Neither Auctioneer nor Seller has made any representations concerning the property. . . .” See Pennington v. Braxley, supra at 345 (purchasing the property “as is”); Kaye v. Ryland Group, supra at 743 (“no representations made”); Rampey v. Jay Pontiac GMC Truck, supra at 633 (“as is”); Hightower v. Century 21 Farish Realty, supra at 523 (no reliance upon a representation of either real estate agent or seller). Plaintiffs knew of the tenant prior to the sale, but relied upon oral representations made regarding the tenant by the auction company and by Farkas, which representations the contract plainly stated could not be relied upon. Plaintiffs did not rescind the contract, but instead affirmed the contract and sued for breach of contract, as well as for actual fraud. Thus, the trial court erred in allowing the evidence of fraud to be submitted to the jury, because plaintiffs, by their conduct, affirmed the contract and, as a matter of law, the element of reliance was negated by the terms of the contract. Thus, the trial court committed reversible, plain legal error, which harmed the Farkas Estate.

2. The Farkas Estate contends that the trial court erred in denying its motion for directed verdict for breach of contract. We agree.

“The construction of a contract is a question of law for the court.” OCGA § 13-2-1; Long v. City of Midway, 169 Ga. App. 72, 74 (311 SE2d 508) (1983); Smiths Properties v. RTM Enterprises, 160 Ga. App. 102, 103 (2) (286 SE2d 334) (1981). However, “[w]here the language of a [contract] is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible [by the trial court].” (Citation and punctuation omitted.) Reahard v. Ivester, 188 Ga. App. 17, 19 (1) (371 SE2d 905) (1988); Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 461 (3) (278 SE2d 33) (1981).

This contract was plain, clear, and certain in its terms and was not ambiguous. Therefore, there was nothing for either the trial court or jury to construe. Reahard v. Ivester, supra at 17. But see Salvatori Corp. v. Rubin, 159 Ga. App. 369, 371-372 (1) (283 SE2d 326) (1981). Therefore, its plain meaning was for the court to determine as a matter of law. It was error to submit the legal construction of the contract terms to the jury for determination as a factual matter.

The provision for possession at closing was a general provision which was subject to the specific provisions of the contract that possession was subject to the rights of possession of any tenant and that any rent was subject to proration between the seller and buyer. If this construction is not given, then such terms would be rendered meaningless when the existence of a tenant was known by all parties. Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671 (357 SE2d 100) (1987). These specific provisions made it clear that possession at closing was conditional upon the rights, if any, of the tenant and that actual possession would occur at the dispossession of the tenant. Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196) (1988); Griffin v. Barrett, 155 Ga. App. 509, 510 (271 SE2d 647) (1980); Broome v. Allstate Ins. Co., 144 Ga. App. 318, 319 (241 SE2d 34) (1977). The written or typed portion of the contract takes precedence over the printed portion of the contract only when the two are in conflict and cannot be reconciled. Stanley v. Greenfield, 207 Ga. 390 (2) (61 SE2d 818) (1950); Patellis v. 100 Galleria Parkway Assoc., 214 Ga. App. 154, 155 (2) (447 SE2d 113) (1994). There occurred no breach of contract when plaintiffs could not gain possession for four months, because the contract provided .for such known contingency and provided a remedy by proration of the rent. As a matter of law, the Farkas Estate was entitled to a directed verdict. Therefore, the trial court erred in failing to direct a verdict for the Farkas Estate. See England v. Ga.-Fla. Co., 198 Ga. App. 704, 705 (1) (402 SE2d 783) (1991); Davis v. Pachuilo, 169 Ga. App. 677 (1) (314 SE2d 692) (1984); Franchise Enterprises v. Ridgeway, supra at 461 (3); Guardian of Ga. v. Granite Equip. Leasing Corp., 130 Ga. App. 514, 518 (9) (203 SE2d 733) (1974). Likewise, as a matter of law, a judgment for the Farkas Estate was demanded, and the trial court erred in failing to grant j.n.o.v. Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 456 (1) (496 SE2d 546) (1998).

Judgment reversed.

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

Decided May 14, 1999.

Leonard Farkas, for appellant.

Mathis Law Offices, Billy C. Mathis, Jr., Caroline A. Cormack, for appellees.


text:
    A99A0763.
    HANDFORD v. THE STATE.
    (517 SE2d 838)
   Eldridge, Judge.

Defendant Alden Handford challenges his June 1998 conviction for selling cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. We affirm.

Handford’s sole enumeration of error contends that the evidence presented at trial was insufficient to support the jury’s guilty verdict. In reviewing the record on appeal,

the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]

Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

Viewed in such light, the evidence presented showed that, on February 20, 1997, the Early County Sheriff’s Department, in conjunction with the Seminole County Sheriff’s Department, conducted an undercover drug buy in Donalsonville, Georgia. The drug purchaser, Arthur Oliver, testified that he worked with various federal, state, and local law enforcement agencies by participating in such undercover operations. Oliver testified that, during this operation, he used his own car to drive to an area where he believed drugs could be purchased. A Sheriff’s Department employee thoroughly searched his car and his person for hidden contraband before sending him on the undercover operation. The Sheriff’s Department equipped the car with a videotape machine with which to record the drug transaction. The Sheriff’s Department gave him $40 in State funds with which to purchase drugs.

Oliver testified that he drove to an area of Donalsonville near “Frank’s Place,” a pool hall, and that two males approached his car. Handford was one of the individuals. Both individuals asked him what he wanted, and Oliver stated that he wanted a “twenty,” i.e., a $20 rock of crack cocaine. Handford offered some crack cocaine and, following some discussion about the size and cost of the drugs, agreed to sell the cocaine to Oliver for $20. Handford received $20 in State funds for the cocaine. A similar transaction occurred with the other individual. The entire transaction was recorded on videotape, which was played for the jury during trial. The court recorder was unable to transcribe most of the dialogue of the videotape. However, Oliver explained to the jury what was occurring during the videotaped transaction.

Decided May 14, 1999.

Robert M. Thomas, for appellant.

Charles M. Ferguson, District Attorney, Keith W. Day, Assistant District Attorney, for appellee.

Immediately after purchasing the cocaine, Oliver drove a short distance and recorded his observations on an index card, which he sealed in a plastic bag with the contraband. Following the transaction, Oliver turned the bag over to the Sheriff’s Department, who sent the contents of the envelope to the Georgia Crime Lab for testing. The Sheriff’s Department paid Oliver $25 for his participation in the transaction.

In addition to Oliver’s testimony, the State presented the testimony of various law enforcement agents involved in the operation, as well as the Georgia Crime Lab chemist who tested the contents of the envelope and determined it to be .10 gram of crack cocaine. The cocaine also was admitted into evidence.

Although Handford presented no evidence at trial, defense counsel asserted during closing arguments that the videotape did not clearly and specifically show a drug transaction between Handford and Oliver. However, this argument goes to the weight and credibility to be assigned to the evidence presented, which is solely within the purview of the jury. Jackson v. Virginia, supra; Grant v. State, supra. Regardless of the value that the jury assigned to the videotape, the testimony of the law enforcement officers, the Crime Lab employee, and Oliver, as well as the physical evidence of the cocaine, was sufficient for a rational factfinder to find Handford guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A0346.
    MURPHY v. THE STATE.
    (518 SE2d 430)
    Decided May 18, 1999.

      Thomason & Blackmon, Valerie C. Thomason, for appellant.

      Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

This Court’s judgment in this case in 233 Ga. App. 579 (504 SE2d 484), affirming the judgment of the trial court, having been reversed by the Supreme Court of Georgia in Murphy v. State, 270 Ga. 880 (515 SE2d 148), this Court’s judgment is vacated and set aside. The judgment of the Supreme Court of Georgia is made the judgment of this Court, and the trial court’s judgment is reversed.

Judgment reversed.

Blackburn, P. J., and Eldridge, J., concur.


author: Smith, Judge.

text:
    A99A0016.
    GANNY v. GANNY.
    (518 SE2d 148)
   Smith, Judge.

This case began as an action to establish paternity. We granted a discretionary appeal to address issues concerning the propriety of the trial court’s entry of an order resolving questions of custody and domestic violence as well as the correctness of those and other rulings on their merits. We conclude that under the facts presented here, it was proper for the trial court to address the issue of custody and to enter a protective order. We also affirm the trial court’s rulings regarding custody and visitation. But we conclude that the protective order was overbroad and the amount of child support ordered exceeds the guidelines established in OCGA § 19-6-15. We therefore vacate those portions of the order and remand the case to the trial court for the entry of a protective order consistent with this opinion and an order for child support in an amount consistent with the statute.

The record shows that Veronica Ganny and Austin Ganny were married and that they divorced in 1992. In that divorce action, Austin was granted custody of their son, Austin, Jr. (A. J.). Austin also had a daughter from a previous relationship, who lived with them while they were married. Another son, Malik, was born to Veronica after the divorce, in 1995. Austin saw Malik in the hospital on the day he was born, and that week he began paying Veronica $45 each week toward Malik’s support by mailing checks to the address of Veronica’s mother. The voluntary support payments continued until December 1997, when Veronica’s mother moved and her telephone was disconnected. Veronica then had Austin arrested for abandonment. Some time later, after Veronica had been abusive to his daughter, Austin filed a contempt action based upon Veronica’s failure to pay the child support she was ordered to pay Austin for A. J., and thereafter she refused to let him see Malik.

Veronica filed this action against Austin, seeking to establish paternity of Malik. Austin answered and counterclaimed for legitimation and custody. Both parties believed that Austin was Malik’s natural father, and when blood testing showed a 99.98 percent probability that this was true, the parties stipulated that Austin was Malik’s biological father at the beginning of trial. The case was tried before a judge without the intervention of a jury, and both parties presented evidence. At the conclusion of the trial, the court entered an order legitimating Malik and granting custody of Malik to Austin and visitation to Veronica. The order also provided that Veronica was to pay child support for Malik in the amount of $50 per week and enjoined Veronica from harassing Austin or his family and from approaching Austin or his daughter closer than 50 feet, except during authorized visitations.

1. Veronica contends the trial court erred in addressing the issue of custody. She argues, correctly, that custody of a minor illegitimate child is in the mother alone prior to legitimation. OCGA § 19-7-25. Upon legitimation, the father has an equal right to custody, but prior to a judgment of legitimation the father has no standing to raise the issue of custody. And although legitimation creates standing for the father, it does not itself effect a change of custody. Kennedy v. Adams, 218 Ga. App. 120-121 (1) (460 SE2d 540) (1995).

Nevertheless, it is well established that “[Consideration of the issue of custody ... is not precluded in a situation where that claim as well as legitimation is pending before the court by consent of the parties and there is jurisdiction of the parents, child, and subject matter in the court.” Gregg v. Barnes, 203 Ga. App. 549, 551 (417 SE2d 206) (1992). Although Veronica now states she did not consent to a determination of custody, her complaint itself raised the issue by alleging she was “entitled to custody of” Malik and child support from Austin.

It is also apparent from the transcript of the trial that custody was very much in issue throughout the proceeding, and that both parties addressed this issue and presented evidence to support their competing claims. Austin presented evidence to show Veronica’s unfitness, and Veronica, in turn, presented evidence to show that she was not unfit. We conclude, therefore, that the trial court correctly found that the parties had consented to adjudicate the issue of custody.

2. Relying on the holding in Jones v. Jones, 256 Ga. 742 (352 SE2d 754) (1987), Veronica also maintains that it was error for the trial court to entertain the counterclaim for custody because venue was improper. In Jones, the Supreme Court held that a noncustodial parent could not counterclaim for custody in an action to modify visitation rights brought by the custodial parent in the county of the noncustodial parent’s residence. But the holding in Jones is based upon the provisions of OCGA § 19-9-23, which apply only “after a court has determined who is to be the legal custodian of a child,” when a party seeks to change that determination. OCGA § 19-9-23 (a).

The provisions of OCGA § 19-9-23 are mandatory. But even when they apply, they are venue provisions, and venue may be waived. Houston v. Brown, 212 Ga. App. 834 (443 SE2d 3) (1994). Here, as in Houston and in Daust v. Daust, 204 Ga. App. 29 (418 SE2d 409) (1992), any challenge to venue was waived. Veronica consented to an adjudication of custody in her complaint and called witnesses on that issue. She made no objection to venue in the trial court until she apparently raised it during closing argument, after hearing the damaging evidence against her presented by Austin. The record does not include a transcript of closing argument, but it does show a colloquy in which Austin’s attorney objected to Veronica raising any challenge to jurisdiction or venue at that point, at the end of the hearing. A defense of improper venue to a claim for relief in any pleading, whether a claim or counterclaim, must be asserted in the responsive pleading or by motion, or it is waived. OCGA § 9-11-12 (b) (3) and (h) (1) (B). When it announced its ruling to the parties, the trial court correctly concluded that Veronica had waived any such challenge.

3. Veronica asserts the trial court erred in awarding custody to Austin. But this court will not reweigh the evidence. “The comparative weight of the evidence relevant to the issue of the best interest of the child being appropriate for decision by the trier of fact, this contention clearly lacks merit. [Cit.]” Kennedy, supra at 122 (2).

Austin’s daughter was about four years old when her father married Veronica. She testified that Veronica told her at once that she did not want her in her new home and locked her in the garage and the basement. The daughter testified that Veronica beat her and spanked her with a belt for no reason or for trivial reasons like losing her keys. Veronica testified she never did any of these things. But Austin’s daughter once recorded a telephone conversation with Veronica, and the tape, which was played in court, showed that Veronica made numerous threats and admitted beating her and not wanting her.

Veronica was questioned about past behavior that allegedly displayed her violent temper, including one incident when she flew into a rage about a tow truck bill and the police had to be called. In response, Veronica denied under oath that she lied to or kicked police officers. A police officer testified, however, that she did those things.

Veronica also denied that she pursued Austin and threatened him and his current girlfriend. But the tape of another recorded conversation revealed that she lied. She also attempted to have Malik believe that her current husband was his father.

The trial court found none of Veronica’s testimony credible because of her repeated lying. The trial court concluded that she was “a person of great anger and potential for violence” who resorts to intimidation and terrorization when she does not get her way. The court also found that she had “made an affirmative effort to prevent Malik’s natural father from having a relationship with him.” Finding Austin to be the “virtual opposite” of Veronica, the trial court determined that it was in the best interest of Malik to award custody of him to Austin. The evidence did not demand a contrary finding.

4. Given the evidence at trial concerning Veronica’s potential for violent outbursts and her attempt to create a substitute “father” for Malik, the trial court’s award of supervised visitation for two hours every Sunday was not error. In deciding issues of custody and visitation, the best interest of the child must be paramount. In a bench trial, because the trial judge is the trier of fact, he or she has the exclusive right to determine the credibility of witnesses. To that judge falls the duty of observing the parties’ demeanor and attitudes, hearing the evidence, and performing the “Solomonic task” of determining a child’s fate with respect to two people with competing interests. See generally Phillips v. Drake, 215 Ga. App. 210, 211 (1) (449 SE2d 879) (1994). Unless the record indicates clearly that the trial court relied upon illegal evidence or shows legal error, we will not reverse. Id. In this case, the record does not reveal error, and we affirm the ruling.

5. Veronica alleges that the entry of a family violence protective order was error, because the trial court did not have jurisdiction over her and because a verified petition had not been filed, as required by OCGA §§ 19-13-3; 19-13-4 (a). We do not agree. As to personal jurisdiction, Veronica submitted herself to the jurisdiction of the court when she filed this action. Although no petition was filed, it is well established that “there is no magic in nomenclature. A document is to be construed by its substance or function, rather than by its name. [Cits.]” Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 SE2d 252) (1998). Regardless of whether the order was denominated a family violence order, it was surely within the power and authority of the superior court, after hearing the evidence of Veronica’s conduct, to enjoin her from approaching or harassing Austin and his family. See generally OCGA § 15-6-9.

Decided May 18, 1999 — Cert. applied for.

Amelia G. Pray, for appellant.

Winn, Price & Winn, Frank C. Winn, for appellee.

The trial court’s order provided as follows:

The court expressly enjoins Veronica Ganny Lamar from harassing the defendant or any member of his family. The court enjoins her from approaching closer than fifty feet to Pamela Ganny or Austin Ganny (defendant) except during times of court authorized visitation with AJ and Malik. This portion of this order is to be treated by law enforcement as a FAMILY VIOLENCE PROTECTIVE ORDER. Any violation of this order may be treated as aggravated stalking.

Although such equitable relief was within the trial court’s power, we are concerned that the order states that unspecified future conduct will be deemed to fall within the ambit of a particular criminal statute. We therefore vacate that portion of the order specifying that any violation may be treated as aggravated stalking. We also find that because it lacks an expiration date, the order may be overbroad in duration, particularly given the trial court’s order mandating counseling for Veronica. We therefore remand this case to the trial court for inclusion of an expiration date on this restriction.

6. We agree with Veronica that the trial court ordered her to pay child support for Malik in an amount that violates the guidelines set forth in OCGA § 19-6-15. These guidelines must be considered by any court setting child support, and a court may depart from the guidelines only upon a written finding of “special circumstances.” OCGA § 19-6-15 (c). In this case, the award departed from the guidelines without such a written finding. We therefore vacate the award of child support and direct the trial court that upon remand child support be set within the guidelines set forth in OCGA § 19-6-15 (b) (5). In the alternative, the trial court is directed to enter written findings supporting a departure from the guidelines. See Ehlers v. Ehlers, 264 Ga. 668, 669 (1) (449 SE2d 840) (1994).

Judgment affirmed in part and reversed in part, and case remanded with direction.

Pope, P. J., and Eldridge, J., concur.


author: Andrews, Judge.

text:
    A99A0190.
    TODD v. MARTINEZ PAINT & BODY, INC. et al.
    (517 SE2d 844)
   Andrews, Judge.

William F. Todd sued Martinez Paint & Body Shop, Inc. and its president, Rubert R. Marshall, for the alleged breach of an agreement employing Todd to manage the corporation’s paint and body business. In a counterclaim, Martinez Paint & Body alleged that Todd fraudulently induced it to enter into the employment agreement by misrepresenting his qualifications and business reputation. Marshall also counterclaimed alleging that Todd fraudulently altered a lease under which Marshall rented space adjacent to Martinez Paint & Body to an automotive repair business of which Todd was president. The case was tried before a jury. The jury rendered a verdict in favor of Martinez Paint & Body and Marshall on Todd’s claim for breach of contract. On Martinez Paint & Body’s counterclaim, the jury rendered a verdict in favor of Martinez awarding $100,000 in general damages and $135,000 in punitive damages. After the close of the evidence, the trial court directed a verdict in favor of Todd on Marshall’s counterclaim. Todd appeals from the judgment entered on both verdicts in favor of Martinez Paint & Body.

1. Todd claims that his motion for a new trial should have been granted on Martinez Paint & Body’s counterclaim against him alleging that he misrepresented his qualifications and business reputation and thereby fraudulently induced it to enter into an agreement employing him as manager of its paint and body business. Todd contends that a merger clause in the employment agreement precluded the fraud claim, and that there was no evidence to show that Martinez Paint & Body justifiably relied on the misrepresentations, an essential element of the fraud claim.

In alleging fraud in the inducement in its counterclaim, Martinez Paint & Body sought rescission of the employment agreement and offered to restore any benefit it had received under the agreement. So contrary to Todd’s contention, Martinez Paint & Body was not prevented by the merger clause in the agreement from attempting to prove in its counterclaim that it relied on antecedent oral misrepresentations outside the written agreement. City Dodge v. Gardner, 232 Ga. 766, 769-770 (208 SE2d 794) (1974); Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (354 SE2d 210) (1987). In order to prove its claim for fraudulent inducement, Martinez Paint & Body was required to show: (1) false representations made by Todd; (2) that Todd knew the representations were false; (3) that Todd intended to deceive Martinez; (4) that Martinez justifiably relied upon the representations; and (5) damages to Martinez proximately caused by the representations. City Dodge, 232 Ga. at 769-770, n. 1.

As to the element of justifiable reliance, it is not sufficient to show that false representations were knowingly made with an intent to deceive — there must also be proof that due care was exercised to discover the fraud. Charter Med. Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 380 (283 SE2d 330) (1981). “Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.” (Citation and punctuation omitted.) Id. at 383. Moreover, a party is not justified in relying on and assuming to be true representations consisting of mere expressions of opinion, hope, expectation, puffing, and the like; rather, representations of this nature must be inquired into and examined to ascertain the truth. Id.; Wilkinson v. Walker, 143 Ga. App. 838, 839 (240 SE2d 210) (1977).

On appeal, the verdict and judgment in favor of Martinez Paint & Body must be affirmed if there is any evidence to support it, and the evidence must be construed with every inference and presumption in favor of upholding the verdict. Dept. of Transp. v. Mikell, 229 Ga. App. 54-55 (493 SE2d 219) (1997).

The counterclaim was based on evidence of representations made by Todd to Marshall. Marshall testified that in August or September 1991, he was in the process of building a paint and body shop and intended to hire Phil Brock to manage it for him. Marshall said Todd approached him saying he had two wreckers for sale. Marshall, who remembered Todd’s name because they had gone to school together, began to question Todd about what he had been doing over the years. Todd replied that he lost everything he had in a lawsuit over a business where people had tricked him into signing some papers. Marshall asked him what else he had done, and Todd said he had worked for a company called “Go Between” for several years and that they had let him go. Marshall persisted, asking what happened after that, and Todd related that he had worked for an insurance company for several years and that they had also let him go. Marshall then asked, “[H]ow did you come by these wreckers?” Todd replied that he had gone into the paint and body business about three years ago in Martinez. Marshall asked Todd to tell him what happened in the business. Todd replied that “the first year he was in business he did fine,” the second year “he did pretty good,” and the third year “his business had really boomed” and “he had outgrown the place.” Marshall testified that Todd told him he thereafter went into another paint and body business with a partner for about six months, but he lost all his money because the partner cheated him. Todd told Marshall he needed to sell the wreckers because he needed the money and that he was “looking for a job or something to do.” Marshall told Todd he needed to check with Brock to see if he was interested in buying the wreckers and asked Todd to contact him in a few days. After contacting Brock, Marshall not only agreed to buy the wreckers, but also hired Todd to operate the wreckers.

In support of its fraudulent inducement claim, Martinez Paint & Body produced evidence that the total amount of time Todd had previously been in the paint and body business was not three years but only about nine or ten months.

After Todd had successfully operated the wreckers for about three or four weeks, Marshall testified that Todd approached him and suggested that lie let him run the paint and body shop, saying “I got all this experience.” Marshall did not initially agree to this suggestion, but after learning that Brock was no longer available to run the paint and body shop, Marshall testified he was getting desperate. At that point, he told Todd: “Well, if you’ve had three years experience and you know what you’re doing. . . . You got any references?” Todd told Marshall to talk to Charlie Allen (Marshall’s first cousin) and Bill Bailey. Marshall testified that, after talking with Allen and Bailey around November 1991, he decided “to go into business with [Todd].”

Thereafter, a corporation named Martinez Paint & Body, Inc. was created (owned 75 percent by Marshall and 25 percent by Todd’s wife) for the purpose of operating a paint and body business. Marshall knew that Todd’s 25 percent ownership was put in the name of Todd’s wife because Todd had been sued and had been in a construction business that had some problems. Marshall testified that the name Martinez Paint & Body was selected because it had been the name of a previous paint and body shop run by Todd, and Todd said the business had a good name. On December 20, 1991, Martinez Paint & Body, Inc. entered into an agreement employing Todd as the manager of the corporation’s paint and body business. On the same day, Marshall, who owned the building which was being constructed to house the business, leased space in the building to Martinez Paint & Body. The evidence also shows that Marshall and Todd agreed to joint ownership in an automotive repair business to be located in the building.

Marshall testified that around mid-February 1992, he began to have concerns about Todd’s ability to manage a paint and body shop because of reports he was getting on Todd’s bad reputation and bis inability to run a paint and body shop. At this point, the paint and body shop had still not opened for business. Marshall testified that, as a result of his concerns, he and Todd made a new agreement superseding the prior agreement in which he gave all of his interest in the automotive repair business to Todd, and Todd gave him all of the interest in Martinez Paint & Body, Inc. Marshall said it was his belief that, if Todd retained his interest in the paint and body business, “nobody else would touch it,” and that it was his intent to “lease [the paint and body shop] to someone else . . . later on if it didn’t work out.” Marshall testified that, after a long conversation during which Todd told him, “I ran a business for three years. ... I know how to run a paint and body shop,” Todd “sort of conned me into thinking he was a super nice guy again” and “convinced me that these other people had misinformed me, that [he] really knew how to run a paint and body shop[,] and he had all the experience and qualifications required.” Marshall stated that, even though he had acquired knowledge as to Todd’s inability to run a paint and body shop and had information that he lacked a good reputation in the business, he had not yet seen him perform.

Thereafter, on March 30,1992, Martinez Paint & Body, Inc. commenced business and entered into a new employment agreement with Todd in which Todd was employed for a period of 15 years to manage the paint and body business. The employment agreement contained no requirements relating to qualifications, experience or reputation. Marshall testified that he allowed Todd to manage the paint and body business until he decided that he was incapable of running it, and he “had to hire a professional to come in and run it.” Marshall also testified that the business had difficulty opening credit accounts in the name of Martinez Paint & Body because that name had a bad credit reputation. After Marshall hired another person on May 15,1992, to manage the paint and body business, he terminated Todd by letter dated June 5, 1992, stating, among other reasons, that, “You misrepresented your capabilities and reputation to operate a paint and body shop. . . .”

Based on this record, Martinez Paint & Body contended that Todd’s statements to Marshall that he had three years prior experience in the paint and body business and that his prior business had a good reputation were false, that it justifiably relied on these statements, and that the statements fraudulently induced it, through Marshall, to enter into the March 30, 1992 agreement employing Todd to manage the paint and body business for 15 years. Todd contended that, even if he made statements which misrepresented his qualifications and reputation, they were expressions of opinion upon which Marshall could not rely, and that Marshall had information the statements were false before he was hired to manage the paint and body business.

Construing the above record in favor of the verdict, we find an absence of any evidence establishing that Martinez Paint & Body, acting through Marshall, justifiably relied on any misrepresentations made by Todd as to his qualifications and reputation in the paint and body business when it entered into the employment agreement on March 30, 1992.

In the initial conversation between Todd and Marshall in August or September 1991, Todd misrepresented his prior experience in the paint and body business by stating that he had been in that business for three years when, in fact, he had only nine or ten months of prior experience in that business. The record shows that these initial statements were made as part of a conversation in which Todd was trying to sell Marshall two wreckers, and Marshall was inquiring as to what his old high school acquaintance had been doing over the years. At that point Marshall had an agreement with Brock to manage his paint and body business, so this conversation had nothing to do with hiring Todd to manage the business. Todd’s overstatements as to his experience in that conversation amounted to no more than “puffing” up his background in response to general inquiries from an old schoolmate. Moreover, in the absence of any evidence that employing Todd to manage the paint and body business was even a consideration at that point, there is no evidence that Todd made the misrepresentations with an intent to fraudulently induce Marshall to hire him for that purpose.

After the deal with Brock fell through, Marshall eventually hired Todd to manage the paint and body business in the December 20, 1991 employment agreement. The only evidence of representations made by Todd made in furtherance of the December 20 employment agreement was the suggestion that Marshall hire him because “I got all this experience.” Marshall, who said he was desperate to hire somebody at that point, said, “Well, if you’ve had three years experience and you know what you’re doing. . . . You got any references?” Todd responded by giving him two references, and, after checking out Todd’s references, Marshall agreed to hire him to manage the paint and body business.

Nothing in the record up to this point would support a claim that Todd fraudulently induced Marshall to hire him. In fact, counsel for Martinez Paint & Body conceded in closing arguments that the fraudulent inducement claim was based on misrepresentations made by Todd to Marshall immediately prior to the March 30, 1992 employment agreement.

After the December 20 agreement employing Todd to manage Martinez Paint & Body, Marshall began to second-guess his decision to hire Todd because he was getting reports around mid-February 1992 that Todd was incapable of running a paint and body shop and that he had a bad reputation. Marshall already knew that Todd had been involved in prior suits over business relations and had problems in other businesses — problems so severe that Todd’s 25 percent ownership interest in Martinez Paint & Body was put in his wife’s name. At that point, Martinez Paint & Body liad not yet opened for business, and Marshall and Todd agreed to put all of the ownership interest of Martinez Paint & Body into Marshall’s name because, as Marshall testified, “nobody else would touch it” as long as Todd had an interest. Nevertheless, with all this knowledge, Marshall again agreed on March 30, 1992 to employ Todd to manage Martinez Paint & Body, this time for a term of 15 years. Marshall explained that he entered into the March 30 agreement because Todd told him that, “I ran a business for three years. ... I know how to run a paint and body shop,” that Todd “conned” him into thinking he was a nice guy, and “convinced” him that he really had the experience and qualifications to run a paint and body shop. Marshall further stated that he was waiting to see how Todd would perform after the business opened, even though he had been informed that Todd lacked the ability to run a paint and body shop and lacked a good reputation in the business.

This record does not support the conclusion that Marshall justifiably relied on any misrepresentations made by Todd as to his qualifications and reputation when he hired him on behalf of Martinez Paint & Body on March 30. Todd’s only arguable misrepresentation of fact was his statement that, “I ran a business for three years,” which under the circumstances could reasonably have been interpreted by Marshall to mean that Todd ran a paint and body business for three years. Todd’s other statements convincing Marshall he was a nice guy, that he had all the experience and qualifications to run a paint and body shop, and that his reputation was good were mere expressions of opinion upon which Marshall was not entitled to blindly rely. Charter Med., 159 Ga. App. at 383. Rather than relying on these representations, Marshall acquired information that Todd’s claims about his qualifications and reputation were false before he employed Todd to manage the paint and body business on March 30. With knowledge that Todd had misrepresented himself, Marshall hired Todd either choosing to believe Todd’s expressions of opinion or choosing to take the chance that Todd’s performance would prove satisfactory.

Because there was no evidence which could support a conclusion that Martinez Paint & Body justifiably relied on any misrepresentations made by Todd, the fraudulent inducement claim was not proved, and the trial court erred by denying Todd’s motion for a new trial on this claim.

2. We find no error in the trial court’s denial of Todd’s motion for a new trial on his claim that Martinez Paint & Body and Marshall breached the March 30, 1992 employment agreement when he was terminated on June 5, 1992, for dishonesty and incompetence in the performance of his job.

(a) Todd claims he is entitled to a new trial because, over his objection, the trial court erroneously refused to remove certain evidence from the record related to Marshall’s counterclaim against him after the trial court had directed a verdict in his favor on the counterclaim at the close of the evidence. Todd contends that, after the directed verdict was granted, the evidence was irrelevant to any issue in the case, and the trial court’s refusal to remove it from the record prejudiced the jury’s consideration of the remaining issues.

Decided May 18, 1999.

During the course of the trial, evidence was admitted for the purpose of showing that Todd had fraudulently handled invoices for the automotive repair business which he owned and operated and which was located adjacent to Martinez Paint & Body. The automotive repair business leased space in the building from Marshall, and lease payments were calculated in part as a percentage of the gross business receipts. The invoice evidence was relevant to Marshall’s counterclaim against Todd for fraud relating to the lease. However, at the close of the evidence, the trial court granted a directed verdict in favor of Todd on Marshall’s counterclaim on the basis that the lease claim had been previously adjudicated in a bankruptcy proceeding filed by Todd on behalf of the automotive repair business.

The trial court did not err by refusing to remove the invoice evidence from the record. Evidence that Todd fraudulently handled invoices in the adjacent automotive repair business was also relevant to the defense of Todd’s claim for breach of the employment agreement, which relied on evidence that Todd was terminated because of dishonest behavior as well as incompetence after he was hired as manager of Martinez Paint & Body. John W. Rooker & Assoc. v. Wilen Mfg. Co., 211 Ga. App. 519 (439 SE2d 740) (1993).

(b) Todd also contends he is entitled to a new trial because the trial court erroneously excluded proffered evidence in support of his effort to pierce the corporate veil between Marshall and Martinez Paint & Body, Inc. and hold Marshall personally liable on his claim for breach of the employment agreement. We find no error in the trial court’s ruling. In support of the effort to pierce the corporate veil, the trial court allowed Todd to produce evidence that Marshall spent corporate funds for personal purposes, but properly excluded other highly prejudicial evidence related to the alleged purpose of the spending which had little or no relevance. In any event, this issue was rendered moot by the jury’s verdict finding no breach of the employment agreement.

3. We need not address Todd’s remaining enumerations of error relating to the amount of the damages awarded on the counterclaim for fraudulent inducement brought by Martinez Paint & Body, Inc.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Ruffin, J., concur.

John P. Batson, for appellant.

Fleming, Blanchard, Jackson & Durham, James G. Blanchard, Jr., J. David Roper, for appellees.


text:
    A99A0239.
    HONEA v. THE STATE.
    (517 SE2d 841)
   Andrews, Judge.

Timothy Wayne Honea claims the trial court erred by denying his plea of double jeopardy. Finding no error in the denial, we affirm.

On May 26, 1996, an accusation was filed in the State Court of Cobb County against Honea by the solicitor general. The accusation charged Honea with misdemeanor theft by receiving stolen property in that on January 31, 1996, he retained stolen property, to wit: an Alpine power amp having a value of less than $500, the property of Jeff Timothy. On August 5, 1996, Honea entered a plea of nolo contendere and was sentenced on the state court accusation.

On December 17, 1997, a two-count accusation was filed in the Superior Court of Cobb County against Honea by the district attorney. The first count charged Honea with felony theft by receiving stolen property in that on January 31, 1996, he retained stolen property, to wit: a Blaupunkt CD receiver with a value of more than $500. The second count charged Honea with misdemeanor theft by receiving stolen property in that on January 31, 1996, he retained stolen property, to wit: an Alpine power amp having a value of less than $500, the property of Jeff Timothy.

Honea filed a plea of double jeopardy on June 15,1998, citing his prior plea to the state court theft by receiving charge and seeking dismissal of both theft by receiving counts in the superior court accusation. The State conceded that the second count of the superior court accusation was the same charge that Honea had previously pled to in state court. Accordingly, the State entered a nolle prosequi as to the second count. This case concerns the felony charge in the first count, which Honea contended was also barred by double jeopardy on procedural and substantive grounds.

As to the procedural double jeopardy claim, OCGA § 16-1-7 (b) provides that the State must prosecute crimes in a single prosecution “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court. ...” A subsequent prosecution is barred by OCGA § 16-1-8 (b) (1) for any crime that should have been prosecuted in the first prosecution under the requirements of OCGA § 16-1-7 (b). Hill v. State, 234 Ga. App. 173, 175 (507 SE2d 3) (1998).

Honea contends that when the state court prosecuting officer (the solicitor general) commenced the theft by receiving prosecution in the state court, he knew of the facts which supported the felony theft by receiving charge subsequently brought in the superior court accusation. The record shows that the state court accusation was based on Warrant No. 96W3291 issued by the magistrate court on March 9, 1996, for the arrest of Honea. The arrest warrant was supported by a police officer’s sworn statement that between January 31, 1996 and February 2, 1996, Honea had stolen property in his possession at his residence, to wit: an Alpine power amp having a value of $150, the property of Jeff Timothy. The record also shows that the subsequent superior court felony accusation was based on Warrant No. 96W3198 issued by the magistrate court on March 7, 1996, for the arrest of Honea. This arrest warrant was supported by a sworn statement by the same police officer that between January 31, 1996 and February 21, 1996, Honea had stolen property in his possession at his residence, to wit: in excess of 40 items of stereo equipment having a value of approximately $20,000. Furthermore, the record shows that the superior court entered an order on March 19,1996, prepared by Honea’s defense counsel, which stated that, because Honea had already posted an $11,000 bond on the superior court charges arising from Warrant No. 96W3198, no further cash bond would be required on the state court charges arising out of Warrant No. 96W3291. The order contains the further statement that it “appeared] to the Court that the present Warrant 96W3291 charges the theft of an item that could have been included in Warrant 96W3198.”

Even assuming this record shows that both the state court charge for theft by receiving and the subsequent superior court felony charge for theft by receiving were for separate items of property seized by the same police officer from the same location at the samé time, this showing alone would not be sufficient on the present record to invoke the bar of double jeopardy. Honea had the burden of showing that, when the solicitor general commenced the misdemeanor prosecution for theft by receiving, he had actual knowledge of the felony charge arising from the same conduct. Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987). Even if the arrest warrant referencing the 40 items of stereo equipment valued at $20,000 or the bond order prepared by defense counsel which associated the two arrest warrants contained information which would have informed the solicitor general as to the existence of the felony charges, nothing in the record establishes that the solicitor general had actual knowledge of these documents when he commenced the prosecution. Cates v. State, 206 Ga. App. 694, 695 (426 SE2d 576) (1992); compare Billups v. State, 228 Ga. App. 804 (493 SE2d 8) (1997). The trial court correctly denied Honea’s procedural double jeopardy claim.

Decided May 18, 1999.

Jack J. Menendez, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Nancy I. Jordan, Andrew J. Saliba, Assistant District Attorneys, for appellee.

In his substantive double jeopardy claim, Honea argued alternatively that the subsequent felony charge for theft by receiving was barred because all the charges at issue for theft by receiving were allegedly committed by the same act and so should have been prosecuted as a single charged offense. “[W]ith respect to receiving or concealing stolen property ... [if] articles stolen at different times from several persons [are] received and concealed by the same act . . . then there is but one offense.” (Punctuation omitted.) Hardin v. State, 141 Ga. App. 115, 117-118 (232 SE2d 631) (1977); Westmoreland v. State, 151 Ga. App. 850, 851 (261 SE2d 761) (1979). Where, however, the evidence shows that a defendant charged with two separate counts of theft by receiving stolen property actually received the property alleged in each count on two separate occasions, then two separate offenses are shown. Smith v. State, 159 Ga. App. 349-350 (283 SE2d 324) (1981).

Honea’s argument is based on the provision of OCGA § 16-1-7 (a) prohibiting multiple prosecutions for the same conduct. Johnson v. State, 130 Ga. App. 134, 135-137 (202 SE2d 525) (1973); Breland v. State, 135 Ga. App. 478, 479 (218 SE2d 153) (1975). In seeking dismissal of the pending felony charge on this basis, Honea had the burden of proving the facts necessary to establish that the felony accusation was committed by the same act and thus constituted the same offense as the misdemeanor accusation under which he was put in jeopardy. State v. Gillespie, 206 Ga. App. 427, 428 (425 SE2d 418) (1992). Since there are no facts in the present record establishing that there was only one offense, Honea failed to carry his burden, and the trial court correctly denied the substantive double jeopardy claim.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

       This was a scrivener’s error. The trial court was obviously referring, not to a theft charge, but to a theft by receiving charge.