text:
    A98A0319.
    WAITS v. THE STATE.
    (501 SE2d 870)
   Smith, Judge.

Donald Rivers Waits was found guilty by a jury of driving under the influence of alcohol to the extent that he was a less safe driver. OCGA § 40-6-391 (a) (1). He appeals from the judgment of conviction and sentence entered on the jury’s verdict, raising threé enumerations of error. We find that the evidence presented at trial was sufficient to authorize Waits’s conviction. But because we also conclude the trial court erred in refusing to give Waits’s requested jury charge on circumstantial evidence tracking the language of OCGA § 24-4-6, we reverse the judgment below.

1. The evidence presented at trial showed that Officer K. D. Daniels of the Atlanta Police Department was assigned to the DUI Countermeasures Team. He was working at a supervised roadblock, checking drivers for documentation such as licenses and proof of insurance. When Waits drove up and showed Daniels his driver’s license, Daniels detected a “strong odor of alcoholic beverage on his breath and person.” Daniels also observed that Waits had glassy eyes and slurred speech. Waits admitted “he did drink something earlier that night.” Waits agreed when Daniels asked if Waits would mind taking several field sobriety tests. Waits’s performance on the tests, which included the horizontal gaze nystagmus test, the nine-step walk and turn, and the one-leg stand, led Daniels to believe he was under the influence of alcohol and impaired. An alcosensor test was also positive. Once the tests were completed, Daniels “felt that Mr. Waits was definitely impaired, too impaired to be driving a motor vehicle,” and Waits was arrested.

Because Waits was charged with violating OCGA § 40-6-391 (a) (1), the State was required to show that he was a “less safe driver as a result of alcohol consumed before the driving ended.” Id. It is well established that police officers may offer opinion testimony in this regard. Church v. State, 210 Ga. App. 670, 671 (2) (436 SE2d 809) (1993). Waits argues, however, that before such testimony is admissible a sufficient evidentiary foundation must be laid, and in this case Daniels did not observe Waits drive erratically before stopping him and therefore the evidentiary foundation for his opinion is lacking. We do not agree.

A witness who demonstrates the opportunity to observe the condition of another and is competent to evaluate that condition may offer an opinion as to that condition. Chance v. State, 193 Ga. App. 242 (1) (387 SE2d 437) (1989). It is true that Daniels did not see Waits driving before the stop. But that is not dispositive of the issue, because Daniels’s evaluation concerned Waits’s condition, and whether it rendered him a less safe driver; it did not concern Waits’s actual driving. No requirement exists that the person actually commit an unsafe act. Lewis v. State, 214 Ga. App. 830, 831 (1) (449 SE2d 535) (1994). Daniels did have an opportunity to observe Waits’s behavior during his investigation. And this observation yielded numerous clues to Waits’s condition: the strong odor of alcohol on Waits’s breath, his red, glassy eyes, his slurred speech, and his inability to maintain his balance.

Daniels was trained to evaluate Waits’s condition. He had been an Atlanta police officer for five years, had been specially trained in this field, had been certified in DUI Standardized Field Testing by the NHTSA, had been assigned to the DUI Countermeasures Team for approximately two years, and had made 400-500 DUI arrests. He was therefore competent to give his opinion. Sieveking v. State, 220 Ga. App. 218, 219-220 (1) (469 SE2d 235) (1996). His opinion was also sufficient to authorize the jury to find Waits guilty of being under the influence of alcohol to the extent he was a less safe driver under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Sieveking, supra at 220-221 (3).

2. Waits contends the trial court erred in refusing to give his requested charge no. 8, which stated that “to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” The requested charge tracked the language of OCGA § 24-4-6, and it was a correct statement of the law. “Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) and Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) established the bright-line rule that it is error to fail to give a request to charge on the law of circumstantial evidence as set forth in OCGA § 24-4-6 when the State’s case includes both direct and circumstantial evidence.” (Emphasis omitted.) Yarn v. State, 265 Ga. 787 (1) (462 SE2d 359) (1995).

In this case, although the trial court instructed the jury on the definitions of direct and circumstantial evidence and the difference between them, no charge on the principle embodied in OCGA § 24-4-6 was given. Waits reserved his objection to the charge. “[T]he pivotal question is whether the State presented direct as well as circumstantial evidence of [Waits’s] guilt.” Stubbs v. State, 265 Ga. 883, 884 (1) (463 SE2d 686) (1995).

We first note that the very fact that the trial court deemed it necessary to instruct the jury on the definition of circumstantial evidence and on the difference between circumstantial evidence and direct evidence indicates that the trial court believed the State’s case depended on both circumstantial and direct evidence, lending credence to Waits’s argument.

“The distinction between direct and circumstantial evidence has best been explained this way: Direct evidence is that which is consistent with either the proposed conclusion or its opposite; circumstantial evidence is that which is consistent with both the proposed conclusion and its opposite. [Cit.]” Stubbs, supra at 885. In a DUI case, the result of a blood alcohol test of a driver showing alcohol content greater than 0.10 must be characterized as direct evidence; it is consistent only with the conclusion that the person from whom the blood was drawn was in violation of OCGA § 40-6-391 (a) (5) (driving while alcohol concentration is 0.10 grams or more). By the same token, the opinion testimony of a trained officer based upon his observation of an accused that the accused was impaired and a less safe driver is consistent only with the conclusion that the accused was driving in violation of OCGA § 40-6-391 (a) (1). It, too, is direct evidence.

But the evidence upon which the officer’s opinion is based must be characterized as circumstantial. Failing field sobriety tests, for instance, may be caused by illness or handicap; the odor of alcohol about one’s person may derive from alcohol inadvertently spilled on one’s clothing by another. This evidence is certainly admissible and sometimes sufficient. It is nevertheless circumstantial in nature. We conclude, therefore, that the State’s evidence of Waits’s guilt did include some circumstantial evidence and that the trial court should have given the requested charge on OCGA § 24-4-6. Mims; Robinson, supra.

Decided April 28, 1998.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, Larkin M. Lee, for appellant.

This omission was not harmless. The evidence of Waits’s guilt was not overwhelming. For instance, although he demonstrated all six “clues” on the HGN test, he did keep his leg raised for 30 seconds on the one leg stand, dropping it briefly only once. Failure to give this requested charge was therefore reversible error. Mims, supra at 273.

3. Because Waits must be retried, we address his remaining enumeration, in which he asserts error in the trial court’s charge concerning the HGN test. This test is based upon the principle that horizontal gaze nystagmus, an involuntary movement of the eyes, can be caused by the ingestion of alcohol. Hawkins v. State, 223 Ga. App. 34, 38 (476 SE2d 803) (1996). The trial court instructed the jury that “[t]he HGN is based on well known and medically accepted principles. That nystagmus can be caused by ingestion of alcohol. The HGN test is an accepted common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine whether a driver was impaired by alcohol.”

Waits maintains this charge violated OCGA § 17-8-57 by intimating the judge’s opinion regarding Waits’s guilt or what had been proved. Waits correctly notes this Court’s observation in Spivey v. State, 38 Ga. App. 213, 216 (143 SE 450) (1928), that jurors are “sensitive ... to the slightest judicial expression” of opinion. He argues this is particularly true when the State introduces “so called ‘scientific evidence’ with its aura of infallibility,” and asserts that the charge “tended to bolster the credibility of the state’s evidence” and suggested to the jury that Waits’s counsel was being untruthful when his argument discounted the accuracy and reliability of the test. We do not agree.

The charge did not express an opinion, either of Waits’s guilt or regarding what had been proved. It stated only that the test was based upon the accepted scientific principle that nystagmus “can be caused by” alcohol ingestion, and that the test had reached a state of verifiable certainty in the scientific community and was admissible in evidence as a basis for the conclusion of a police officer that a driver was impaired. That was the holding of this Court in Hawkins, supra, and as such was a correct statement of the law. The trial court did not err in giving this charge.

Judgment reversed.

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

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A0562.
    GREBEL v. PRINCE.
    (501 SE2d 538)
   McMurray, Presiding Judge.

K. W. Prince sold Daniel Mark Grebel over 430 acres in Lee County, Georgia, and financed most of the deal with a $125,607.50 purchase money note. This loan was payable in annual installments over a ten-year period and was secured by conveyance of Grebel’s realty to Prince in a deed to secure debt. Grebel failed to pay the second yearly installment when it came due and Prince accelerated the debt, notifying Grebel that “in the event you fail to pay the total of said indebtedness, less unearned interest, within ten (10) days after receipt of this letter, you will be liable for the total amount due, less unearned interest required by law to be rebated, plus an additional fifteen [percent] attorney’s fees. . . .” Although Grebel was unable to satisfy the loan within ten days after receipt of this notice, he refinanced the debt before a pending foreclosure sale and offered to pay the remaining principal balance, accrued interest, penalties and attorney fees. Prince rejected this offer because he believed Grebel also owed him over $50,000 in unearned interest. Seeking judicial resolution of this dispute, Grebel filed a declaratory judgment action in the Lee County Superior Court the day before the advertised foreclosure sale. He also filed a check for the amount he alleged was due under his promissory note and sought to restrain the foreclosure sale by way of an interlocutory injunction. The trial court granted an interlocutory injunction and ordered Prince to show cause “why this Injunction should not be continued and Declaratory Judgment entered.” Although Prince’s attorney notified Prince before the foreclosure sale “that a document had been faxed [to his office indicating] that something had happened to try to stop the foreclosure[,]” Prince proceeded with the foreclosure sale and purchased the property for $134,500. This amount, according to Prince, reflected the loan’s remaining principal balance, accrued interest, penalties and attorney fees.

Grebel filed an amended complaint, seeking to set aside the foreclosure sale. He also filed (in the same action) a complaint for contempt, contending Prince unreasonably refused to settle the debt and wilfully violated the trial court’s interlocutory injunction. Prince responded by filing a motion to dismiss based on lack of personal jurisdiction. Acknowledging that Prince is a resident of Dougherty County, Georgia, Grebel filed a motion to transfer and change venue. The trial court granted this motion, but first denied Grebel’s contempt action based on a finding that “service was not perfected on [Prince] of either the Complaint or the Temporary Restraining Order prior to the foreclosure sale on the Lee County Courthouse steps on Tuesday, March 5, 1996.” The trial court also found that “[Prince’s] attorney had received via FAX a copy of both the Complaint and the Temporary Restraining Order at 4:26 p.m. on Monday, March 4, [1996,] but refused to acknowledge service on behalf of [Prince, and that the] property was sold at the foreclosure sale the following morning on the Lee County courthouse steps despite the Temporary Restraining Order.”

At a hearing in the Superior Court of Dougherty County on Grebel’s action to set aside the foreclosure sale, Prince asserted that Grebel is not entitled to relief because he did not tender an amount necessary to satisfy the loan. In opposition, the attorney who negotiated the foreclosure dispute for Grebel (no longer representing Grebel) testified that he informed the attorney who represented Prince during the foreclosure proceedings that Grebel stood ready, willing and able to satisfy the loan’s remaining principal balance, earned interest, penalties and attorney fees. Grebel’s former attorney explained that Prince’s foreclosure attorney rejected this offer because he believed Grebel’s accelerated debt to Prince included over $50,000 in unearned interest which Prince would have collected during the life of the ten-year loan. Grebel’s former attorney testified that he calculated the loan’s pay-off to be “somewhere a little above $130,000 — 131 — $132,000,” but that Prince’s foreclosure attorney “steadfastly refused” to accept anything less than a “cashier’s check” for “$185,647.22.” To this refusal, Grebel’s former attorney testified as follows: “[GREBEL’S TRIAL ATTORNEY:] Okay. At anytime, did [the attorney] on behalf of Mr. Prince ever tell you that he would accept that payoff? [GREBEL’S FORMER ATTORNEY:] He categorically told me he would not take it. He told me the figure it would take to pay it off and that figure would be the entire amount, including all interest that would accrue over the next seven, eight or nine years the note ran — however long it was. It was over $180,000.00 was the figure that he quoted me that it would take to pay the note off.”

Grebel’s former attorney further detailed his offer to satisfy the loan before the foreclosure sale during the following cross-examination: “[PRINCE’S TRIAL ATTORNEY:] Did y’all obviously believe that $130,992.47 was sufficient [to satisfy the debt]? [GREBEL’S FORMER ATTORNEY:] Yes. Q. Okay. Did anybody at anytime deliver a check or walk to, come in, deliver personally to K. W. Prince and say here’s a check for what we contend is owed, $130,992.47? A. No. Q. Did anyone at anytime to your knowledge communicate to Mr. Prince or any of his agents, being his attorney, that we stand ready, willing and able to pay $130,992.47? A. Not specifically that amount — we stated repeatedly we stand ready, willing and able to pay principal, interest, fifteen percent attorney’s fees, costs because at that time, we did not know what those were. Q. All right. And all of that you’ve talked about, you never mentioned the late fees — did you contend that the late fees were not owing at that time? A. No. I believe that we did include those as being part of what was owed. In fact, when I finally realized what the amount would be was when [Prince’s foreclosure attorney] sent the letter contending [Grebel] owed $185,000.00 but outlined actually what all the costs and fees would be. That showed me what all the fees would be except for interest on the principal because there would be a difference between his principal balance and the one we were using, but it gave me a reference on how to compute it. I think that’s — Q. Now, [Prince’s foreclosure attorney] sent you some case law that he contended supported his position that he was entitled to the unearned interest? A. Yes. Q. You just disagreed and found case law to the contrary? A. I found the case law that [Prince’s foreclosure attorney] was talking about totally irrelevant to the case at hand, quite honestly, but certainly respect his right to have that opinion. You know, I know there can be differences. Q. Y’all didn’t really rely on that then as — I mean you basically concluded differently, that it was a lesser amount? A. Yes, I concluded differently based on my belief that you could not under Georgia law add unearned interest if you were at the brink of foreclosure. Q. Now, I’ll repeat this question. I think I’ve asked you. At any point, did you or anybody else then actually, as I would define or you have just defined a tender, tendered an amount that you computed to be owing? A. I believe that we had tendered on the initial conversation to [Prince’s foreclosure attorney] and on several follow-up conversations a legal tender by saying we were ready, willing and able to pay. Once you will tell me what that figure is, we have the money and we will certainly pay it and giving the best guess estimate of about what that figure would be. Did I actually go with a check with the exact amount that was owed to [Prince’s foreclosure attorney]? No, I did not. I do know that one was filed with the [declaratory judgment] lawsuit on Monday[, the day before the foreclosure sale]. I did not personally deliver that. I really didn’t personally — it was not personally delivered on [Prince’s foreclosure attorney] or on Mr. Prince. Q. And do you happen to have knowledge of where that check is now that was delivered to the [Lee County Superior Court] Clerk’s office? A. I have no personal knowledge. I know it was supposedly delivered to Lee County Courthouse and if it is not in this file, I would assume or guess that it was still at Lee County.”

Prince’s foreclosure attorney posted a letter, dated February 29, 1996, to Grebel’s former attorney memorializing his view that Grebel owes Prince “$185,647.22.” Five days later, Prince successfully bid $134,500 for Grebel’s farm at the foreclosure sale. Prince testified that his bid satisfied Grebel’s debt, including the loan’s remaining principal balance, accrued interest, penalties and attorney fees.

The Dougherty County Superior Court granted Prince’s motion for directed verdict, finding that “no tender of an amount sufficient to satisfy [Grebel’s] obligation was properly or timely made by [Grebel] to [Prince] or his agents. . . .” Grebel appealed this judgment as well as the Lee County Superior Court’s judgment denying his contempt action against Prince. We transferred this appeal to the Supreme Court of Georgia because, in our view, Grebel’s second enumeration of error raises an equitable precept challenging the trial court’s decision not to set aside the Grebel farm’s foreclosure sale. Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (2). See R.R.R. Limited Partnership v. Recreational Svcs., 264 Ga. 494 (1) (448 SE2d 211). The Supreme Court of Georgia returned the case to the Court of Appeals with the following explanation:

“The issue before the trial court was whether foreclosure was proper and if not, whether the foreclosure should be set aside or whether damages should be awarded. The trial court held that the foreclosure was proper because Grebel failed to make an adequate tender. The only enumeration on appeal is whether there was sufficient evidence to support the trial court’s finding that there was a failure to tender the amount due under the note. Because the legality or propriety of equitable relief is not a substantive issue on appeal, this case was not properly transferred from the Court of Appeals. Beauchamp v. Knight, 261 Ga. 608 (1991). Case returned to the Court of Appeals.” Held:

1. Grebel first challenges the Lee County Superior Court’s order dismissing his action for contempt against Prince based on that court’s finding that “service was not perfected on [Prince] of either the Complaint or the Temporary Restraining Order prior to the foreclosure sale on the Lee County Courthouse steps on Tuesday, March 5, 1996.” We agree.

“A party is bound by a restraining order of which he has notice despite the fact that personal service of the order upon him may have been defective in some respect. Code Ann. § 81A-165 (d) [now OCGA § 9-11-65 (d)]; Murphey v. Harker, 115 Ga. 77 (5) (41 SE 585) (1902); Anderson v. Hall, 128 Ga. 525 (1) (58 SE 43) (1907); Patten v. Miller, 190 Ga. 152 (3) (8 SE2d 786) (1940).” Cameron v. Richards, 246 Ga. 231 (271 SE2d 146). It is undisputed, in the case sub judice, that Prince’s foreclosure attorney knew about that Lee County Superior Court’s interlocutory injunction the day before the nonjudicial foreclosure sale, but proceeded with the “foreclosure sale the following morning on the Lee County courthouse steps despite the Temporary Restraining Order.” Under such circumstances, and in light of Prince’s admission that his attorney notified him before the foreclosure sale “that something had happened to try to stop the foreclosure,” the trial court erred in not considering the substance of Grebel’s action for contempt against Prince and failing to follow the well settled policy that notice to an attorney is notice to the client employing him. Oseni v. Hambrick, 207 Ga. App. 166, 167 (427 SE2d 559). Accordingly, we reverse the Lee County Superior Court’s order denying Grebel’s action for contempt and remand the case sub judice for the Dougherty County Superior Court to consider whether Prince wilfully violated the Lee County Superior Court’s interlocutory injunction.

2. Grebel contends in his second enumeration of error that the trial court erred in granting Prince’s motion for directed verdict based on a finding that “no tender of an amount sufficient to satisfy [Grebel’s] obligation was properly or timely made by [Grebel] to [Prince] or his agents. . . .”

‘While the parties below and the [trial] court treated the motion as one for a directed verdict, since there was no jury and the [trial] court sat as factfinder, the ruling will be treated as an involuntary dismissal under OCGA § 9-11-41 (b), which operates as an adjudication upon the merits. Century 21 Mary Carr &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992). Therefore, the [trial] court’s findings are analogous to those of a jury and the evidence is so viewed by this court.” Emory Rent-All v. Lisle Assoc. Gen. Contractors, 212 Ga. App. 516 (1) (441 SE2d 926). But even viewing the evidence in the case sub judice from this liberal perspective, we find that the Dougherty County Superior Court erred in granting Prince’s motion for directed verdict based on its finding that Grebel failed to tender an amount sufficient to satisfy his debt.

Although it is a general rule that a tender must be certain and unconditional, “[u]nder the rule that equity will not require a useless formality,... a tender is unnecessary where the person to whom the money is due states that the tender would be refused if made. . . . Ansley v. Hightower, 120 Ga. 719 (4) (48 SE 197); Miller v. Watson, 139 Ga. 29, 32 (76 SE 585); Tolbert v. Short, 150 Ga. 413, 414 (5) (104 SE 245); Fraser v. Jarrett, 153 Ga. 441, 451 (112 SE 487).” Bank of LaFayette v. Giles, 208 Ga. 674, 679 (3) (69 SE2d 78). In the case sub judice, Grebel’s former attorney’s testimony regarding his efforts to tender Grebel’s debt before the foreclosure sale is unchallenged. This attorney testified that he informed Prince’s foreclosure attorney on several occasions before the foreclosure sale that Grebel stood ready, willing and able to satisfy the loan’s remaining principal balance, earned interest, penalties and attorney fees, but that Prince’s foreclosure attorney “steadfastly refused” to accept anything less than a “cashier’s check” for “$185,647.22.” Since Prince did not call his foreclosure attorney to testify at trial, the presumption is that Prince’s foreclosure attorney would completely corroborate Grebel’s former attorney’s testimony regarding his efforts to tender the undisputed amount of Grebel’s debt. OCGA § 24-4-22. Under such circumstances, and in view of the fact that Grebel filed a check in the Lee County Superior Court for the amount he alleged was due before petitioning that court for an interlocutory injunction, we find no basis in equity for obstructing Grebel’s claim to set aside the alleged wrongful foreclosure sale of his farm. Even if Grebel’s former attorney’s offer to pay Grebel’s debt before the foreclosure sale was insufficient, this proffer does not block Grebel’s path to equity. Where there is a bona fide controversy over the amount required to satisfy the debtor’s obligation, the debtor “[should be required] to tender only such sums as are admittedly due under the note, not all sums which may be claimed by the creditor as is due.” (Endnote omitted.) Frank S. Alexander, Ga. Real Estate Finance & Foreclosure Law (2nd ed.), § 8-10 (c), at p. 177. Accordingly, the trial court erred in granting Prince’s motion for directed verdict based on a finding that “no tender of an amount sufficient to satisfy [Grebel’s] obligation was properly or timely made by [Grebel] to [Prince] or his agents. . . .” The case sub judice is remanded for the trial court to consider Grebel’s claim to set aside the alleged wrongful foreclosure sale of his farm. See Isaacson v. House, 216 Ga. 698, 702 (1), 703-704 (119 SE2d 113).

Judgment reversed and case remanded.

Blackburn and Eldridge, JJ., concur.

Decided April 6, 1998

Reconsideration denied April 29, 1998

David J. Grindle, for appellant.

L. Clayton Smith, Jr., for appellee.

Moore, Clarke, DvVall & Rodgers, James H. Moore III, amicus curiae.

       The trial court entered a “CORRECTIVE ORDER” (approved and prepared by Prince’s attorney) several months later excluding the above quoted findings of fact. This “CORRECTIVE ORDER” is ineffectual, however, because Grebel filed a timely notice of appeal after the trial court’s original contempt and transfer order. See Argonaut Ins. Co. v. Atlantic Wood Indus., 187 Ga. App. 477, 478-479 (370 SE2d 770).

       Prince’s foreclosure attorney did not appear at this hearing, but Prince testified that this attorney never informed him before the foreclosure sale that Grebel had offered any amount toward satisfaction of the debt.

       Grebel filed a direct appeal in the Lee County Superior Court from that court’s order denying his application for contempt. Because this appeal was from an interlocutory order and Grebel did not file an application for appeal pursuant to OCGA § 5-6-34 (b), we were compelled to dismiss the direct appeal in Court of Appeals Case No. A97A0563.


author: McMueray, Presiding Judge.

text:
    A98A0681.
    WOODS v. THE STATE.
    (501 SE2d 832)
   McMueray, Presiding Judge.

Defendant Woods and co-defendant Eva Wilson were jointly indicted for selling cocaine in violation of Georgia’s Controlled Substances Act (Count 1), possessing and distributing cocaine within 1,000 feet of a housing project in violation of OCGA § 16-13-32.5 (b) (Count 2), and possessing and distributing cocaine within 1,000 feet of a school in violation of OCGA § 16-13-32.4 (Count 3). Defendant was tried before a jury and convicted of selling cocaine (Count 1) and possessing and distributing cocaine within 1,000 feet of a housing project (Count 2).

At trial, Officer Timothy Conrad of the Wayne County Narcotics Unit testified that, while working undercover on the evening of June 23, 1995, he drove to an intersection where several people were loitering; that co-defendant Wilson approached his truck; that he asked co-defendant Wilson for a specific amount of cocaine; that co-defendant Wilson walked over to a man, about six feet tall and wearing distinctive clothing; that this man gave co-defendant Wilson something, and that co-defendant Wilson immediately returned to the officer’s truck and gave him cocaine. Sergeant Kenny Poppell of the Wayne County Drug Interdiction Unit testified that he assisted Officer Conrad’s undercover drug buy on the evening of June 23, 1995; that he returned to the crime scene about 45 minutes after the illegal drug transaction; that he observed co-defendant Wilson and defendant standing in the area where Officer Conrad had purchased cocaine, and that he noticed that defendant’s physical description and clothing identically matched the description of the man who assisted co-defendant Wilson sell cocaine to Officer Conrad.

This appeal followed the denial of defendant’s motion for new trial. Held'.

1. Defendant contends that evidence of his presence at the crime scene is insufficient to authorize his conviction for selling cocaine.

“One who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. See Slaton v. State, 224 Ga. App. 422, 425 (3) (d) (480 SE2d 872) (1997). However, ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ (Citation and punctuation omitted.) Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993). See also OCGA § 16-2-6: ‘A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ ” Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370). The evidence adduced at trial, in the case sub judice, indicating that defendant handed co-defendant Wilson an object immediately after Officer Conrad placed an order with co-defendant Wilson for cocaine and that co-defendant Wilson returned to the undercover officer’s truck with cocaine immediately after defendant gave co-defendant Wilson this object authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of being a party to the crime of selling cocaine in violation of Georgia’s Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 17, 1998

Reconsideration denied April 29, 1998.

Howard, Carswell & Bennett, Kenneth R. Carswell, for appellant.

Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

2. The State concedes that the evidence adduced at trial was insufficient to authorize defendant’s conviction for possessing and distributing cocaine within 1,000 feet of a housing project in violation of OCGA § 16-13-32.5 (b) (Count 2). Accordingly, this part of the judgment of defendant’s conviction and sentence is reversed.

Judgment affirmed in part and reversed in part.

Blackburn and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A98A1074.
    HUTCHINSON v. THE STATE.
    (501 SE2d 873)
   Blackburn, Judge.

Cecil Hutchinson appeals from his conviction of burglary, contending that the evidence was insufficient to support the verdict. For the reasons discussed below, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citation and punctuation omitted.) Norris v. State, 227 Ga. App. 616, 619 (4) (489 SE2d 875) (1997). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation omitted.) Wilson v. State, 227 Ga. App. 59, 60 (1) (488 SE2d 121) (1997).

The evidence showed that, between October 6 and October 13, 1996, a box-type freezer was stolen from the house of Lillie Lovett. The intruder had cut a screen door and opened another door to enter the house. Lovett’s daughter reported the burglary to the sheriff.

Detective Carl James of the Ware County Sheriff’s Office testified that he received information from another deputy that the freezer was at Hutchinson’s house. On October 16, James went to Hutchinson’s house. After James explained what he was looking for, Hutchinson’s wife agreed to let James search the house. James discovered the freezer in the house. Lovett’s daughter identified the freezer as the one stolen from Lovett’s house.

On November 26, 1996, after Hutchinson was arrested, James interviewed Hutchinson at the sheriff’s office. Hutchinson was advised of his Miranda rights and waived his right to counsel. James testified that Hutchinson admitted committing the burglary with another individual, David Mock. However, Hutchinson refused to sign a written confession or allow James to tape the interview. Hutchinson denied that he had confessed to James, but admitted that he had refused to make a written statement or allow the interview to be recorded.

Under these facts, the jury was clearly authorized to conclude beyond a reasonable doubt that Hutchinson was guilty of the offense of burglary. See Jackson, supra. Although Hutchinson denies that he confessed to James, this is an issue of witness credibility and thus for the jury to resolve. See Hilburn v. State, 207 Ga. App. 127, 128 (427 SE2d 97) (1993).

Decided April 29, 1998.

McGee & McGee, James B. McGee III, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Lovett was unable to testify at the trial, as she was 93 years old and in poor health.

       Hutchinson offered conflicting testimony as to whether he knew James had a tape recorder at the interview. At one point Hutchinson stated that he saw the tape recorder sitting on the table, and at another point he claimed that he did not see any tape recorder.


author: Eldridge, Judge.

text:
    A98A0896.
    FORRISTER v. MANIS LUMBER COMPANY et al.
    (501 SE2d 606)
   Eldridge, Judge.

On June 30,1997, Manis Lumber Company and subsidiaries d/b/a Wheeler’s (“Manis Lumber”) filed this action for fraudulent conveyance to defeat creditors against Matthew Forrister d/b/a Matthew Forrister Builders (“Matthew Forrister”) and Vivian Forrister. Manis Lumber requested that a warranty deed from Matthew Forrister to Vivian Forrister, recorded in Deed Book 570, page 204 of the Paul-ding County deed records be set aside, or in the alternative, to have the default judgment entered in its favor against Matthew Forrister in Civil Action File No. 97CV0262 entered as a judgment against both Matthew Forrister and Vivian Forrister. Vivian Forrister was not a joint obligor in Civil Action File No. 97CV0262 with Matthew Forrister. Manis Lumber did not pray for actual damages arising out of the alleged fraudulent conveyance.

In Civil Action File No. 97CV0262, Manis Lumber brought suit against Matthew Forrister to collect on an overdue account balance and to perfect the materialman’s liens securing such account balance. In such prior action, Manis Lumber obtained a default judgment against Matthew Forrister for the amounts it was owed plus interest, attorney fees, and costs and obtained a writ of execution on such judgment.

Manis Lumber then filed this action and alleged that, four days after it sent Matthew Forrister notice that his account balance was overdue and copies of the materialman’s liens securing such account, Matthew Forrister fraudulently transferred the subject property to his mother, Vivian Forrister, for “love and affection,” i.e., without monetary consideration, for the purpose of hindering and delaying Manis Lumber’s collection of the debt that Matthew Forrister owed to Manis Lumber. Attached as Exhibit A to the complaint was a copy of the warranty deed which showed on its face that no transfer tax was paid.

Matthew Forrister timely answered the complaint, pro se, and denied that the conveyance of the subject property was fraudulently made to hinder or defeat creditors. Vivian Forrister was personally served, but did not timely answer and went into default. On August 22, 1997, after the time ran to open the default as a matter of right, Vivian Forrister filed a motion to open default. On September 22, 1997, Manis Lumber filed a response to Vivian Forrister’s motion to open default and filed a motion requesting that a default judgment be entered.

The trial court entered an order denying Vivian Forrister’s motion to open default, granting Manis Lumber’s motion for entry of a default judgment against Vivian Forrister, and entering judgment “setting aside the warranty deed from Matthew Forrister to Vivian Forrister recorded February 14,1997, in Deed Book 570, Page 204, of Paulding County deed records, placing said property back in the name of the defendant Matthew Forrister and subject to his debts with said reversion being retractively [sic] prior to February 14, 1997.” It is from this order and judgment that Vivian Forrister appeals.

1. Manis Lumber moves to dismiss this appeal on the grounds that the order appealed from was not a final judgment and thus an application for interlocutory appeal was required under OCGA § 5-6-34 (b). Manis Lumber argues that the judgment appealed from is against less than all the defendants and for less than all the relief prayed for, i.e., money damages.

“Even if an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of OCGA § 5-6-34 (a) (1) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.” (Citations and punctuation omitted.) R. J. Reynolds Tobacco Co. v. Fischer, 207 Ga. App. 292, 293 (427 SE2d 810) (1993). The only issue before the trial court at the entry of the default judgment was the prayer to set aside the fraudulent conveyance or in the alternative to have the default judgment, which was entered in Manis Lumber’s favor against Matthew Forrister in Civil Action File No. 97CV0262, entered also as a judgment against both Matthew Forrister and Vivian Forrister, even though Vivian Forrister was not a joint obligor in Civil Action File No. 97CV0262. There was no request for money damages in the complaint or in the motion for default judgment. When the trial court set aside the conveyance as fraudulent to hinder creditors, Manis Lumber had no prayer for further relief. Therefore, the order and judgment entered by the trial court on October 16, 1997, was a final judgment on the merits within the meaning of OCGA § 5-6-34 (a) (1) and directly appealable.

2. In her first enumeration of error, Vivian Forrister alleges that the trial court erred in holding that the Superior Court of Paulding County had personal jurisdiction over her and that she was properly served in this in rem proceeding as a resident of the State of Tennessee.

“The Long Arm Statute [OCGA § 9-10-91 et seq.] contemplates that jurisdiction shall be exercised over non-resident parties to the maximum extent permitted by procedural due process.” (Citations and punctuation omitted.) Cox v. Long, 143 Ga. App. 182, 183 (237 SE2d 672) (1977). Under the Long Arm Statute, a court of this state may exercise personal jurisdiction over a non-resident as if he was a resident of this state if such person “[o]wns, uses, or possesses any real property situated within this state.” OCGA § 9-10-91 (4); Goodman v. Vilston, 197 Ga. App. 718, 719 (399 SE2d 241) (1990). Therefore, since this action is an in rem action to set aside an alleged fraudulent conveyance of property owned by Vivian Forrister within the state, jurisdiction over Vivian Forrister is proper. Minimum contact requirements are satisfied because a substantial connection existed between Vivian Forrister, the controversy, and property within the state. See Goodman v. Vilston, supra; Regante v. Reliable-Triple Cee of North Jersey, 251 Ga. 629 (308 SE2d 372) (1983).

OCGA § 9-11-4 (i) allows for methods of alternative service and provides specifically that “[t]he methods of service provided in [OCGA § 9-11-4] are cumulative and may be utilized with, after, or independently of other methods of service. Whenever a statute provides for another method of service, service may be made under the circumstances and in the manner prescribed by the statute or under any other methods prescribed in [OCGA § 9-11-4].” OCGA § 9-11-4 (i).

Since there was personal jurisdiction over Vivian Forrister as a non-resident under the Long Arm Statute in this case, Manis Lumber was authorized to serve Vivian Forrister under the method of service provided in OCGA § 9-10-94. OCGA § 9-10-94 provides that a person who is subject to the jurisdiction of the courts under the Long Arm Statute “may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state ... in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.” OCGA § 9-10-94. Vivian Forrister was personally served by Randy Swafford, a duly sworn and appointed deputy sheriff of Polk County, Tennessee, who was authorized by Tennessee law to serve process and summons in civil cases. This was proper service under OCGA § 9-10-94.

3. In her final enumeration of error, Vivian Forrister alleges that the trial court erred in holding that she failed to set up a meritorious defense that would allow the default to be opened pursuant to OCGA § 9-11-55 (b).

“Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds ¿/four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. This court has previously held that the ‘showing1 required by this Code section to be made ‘under oath’ includes the showing of a ‘meritorious defense.’ Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.” (Citations and punctuation omitted; emphasis in original.) Stewart v. Turner, 229 Ga. App. 119, 121 (493 SE2d 251) (1997).

In this case, the trial court did not err in refusing to open default because Vivian Forrister failed to show the existence of a meritorious defense. In order to make a “showing” that a meritorious defense exists, the defendant must set forth facts that show the existence of the essential elements of such defense even though “there is no requirement that the affidavit [or verified answer] contain in great detail the factual basis of the proposed defense.” (Citations and punctuation omitted.) Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 261 (450 SE2d 307) (1994). The trial court must, however, have sufficient facts before it to determine if a meritorious defense is factually raised so that the judge can exercise discretion.

Vivian Forrister’s counsel attached to the motion to open default an affidavit stating that the facts set forth in the motion were true and correct. The motion alleged that the defendant had a meritorious defense as set forth in her proposed answer, which answer was not under oath, and attempted to set forth two meritorious defenses: (1) lack of jurisdiction over the person and (2) that she was a bona fide purchaser of the property. For the reasons set forth in Division 2, supra, it is clear that there was personal jurisdiction over Vivian Forrister, and this defense was not meritorious.

There are two essential elements to the defense of a bona fide purchaser: (1) that the taking party paid valuable consideration for the property and (2) that “the taking party [was] without notice or ground for reasonable suspicion of [the] intent of the debtor” to delay, hinder, or defraud the creditor. OCGA § 18-2-22 (2); see Hall v. Hidy, 263 Ga. 422, 423 (435 SE2d 215) (1993); Nicol & Davidson v. Crittenden, 55 Ga. 497 (1875). While Vivian Forrister asserted in her motion to open default and in her unsworn answer that she gave valuable consideration for the property, i.e., the satisfaction of an unrecorded purchase money indebtedness owed by Matthew Forrister to her, she failed to assert that she was without notice or did not have grounds for reasonable suspicion of the intent of Matthew Forrister. She only made a general denial in her answer. Therefore, an essential element of her meritorious defense was not asserted under oath.

Decided April 15, 1998

Reconsideration denied April 30, 1998

Lane & Sanders, Thomas C. Sanders, for appellant.

Barry V. Smith, for appellee.

While her counsel swore in his affidavit that everything in the motion to open default was true and attached a copy of her answer as an Exhibit to the motion, this did not supply the missing element. A general denial in her attached unverified answer to the plaintiff’s assertion that “[s]aid conveyance of real estate was knowingly made and accepted for the purpose of defrauding plaintiff, and for the purpose of hindering and delaying plaintiff’s collection of the debt” is not sufficient to set forth a meritorious defense under oath. See C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (398 SE2d 297) (1990); Grayson & Hollingsworth v. C. Henning Studios, 194 Ga. App. 531, 532-533 (391 SE2d 8) (1990); Barone v. McRae & Holloway, P.C., 179 Ga. App. 812, 814 (348 SE2d 320) (1986).

“Because the failure to plead a meritorious defense is alone fatal to the opening of a default, we are forced to conclude that the trial court was without discretion to grant [Vivian Forrister’s] motion.” (Citations omitted.) C. W. Matthews Contracting Co. v. Walker, supra at 346.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A98A0505.
    SMITH et al. v. HUCKEBA.
    (501 SE2d 877)
   Beasley, Judge.

Huckeba purchased a mobile home from the Smiths. In consideration, the Smiths leased certain acreage to Huckeba for a number of years and granted him an option to renew the lease for additional years. Huckeba was given the right to erect and maintain improvements on the leased property, and he was not required to pay rent during the original term of the lease. The renewal option would be on the same terms and conditions as the original lease “except that the rental shall be the fair market rental value of the property herein leased.”

After Huckeba notified the Smiths of his intention to exercise the option, they proposed a monthly rental of $200. When he responded that this was excessive and asked them to show how the figure was derived, they revoked any prior offer to extend the lease and informed him that dispossessory proceedings would be instituted if he remained on the property following expiration of the original lease.

Huckeba filed a three-count complaint against the Smiths, charging them with breach of the agreement to extend the lease, seeking its specific performance, and claiming his improvement of the premises had unjustly enriched the Smiths. Along with their answer, the Smiths countered that they were entitled to summary judgment or partial summary judgment on the ground of unenforceability of the option due to vagueness. The trial court denied their motion with an explanation, and we have permitted an interlocutory appeal.

1. “A provision for the renewal of a lease must specify the terms and conditions of the renewal with such definite terms and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.”

More explicitly, the Court explained in Wiley v. Tom Howell & Assoc.: “ ‘Option agreements have generally been held or recognized to be sufficiently definite as to price to justify their enforcement if either a specific price is provided for in the agreement or a practicable mode is provided by which the price can be determined by the court without any new expression by the parties themselves.’ [Cit.] Accordingly, . . . the agreement must be complete within itself as to the essential elements or a ‘key’ or ‘practical mode’ provided within the contract by which a definite price may be ascertained, and if there is such a deficiency parol evidence is not admissible to add to, take away from, or vary the written contract ([cit.]), but would be admissible to explain ambiguities.”

The option agreement in Wiley established the price at the “appraised” value of the property. Although the term “appraised” was not deemed ambiguous, the court held that it does not provide sufficient certainty, standing alone, to provide a key or mode by which a sale price can be determined by a court without any new expression of the parties. The basic deficiency of this term lies in the incompleteness of the manner by which the property is to be appraised. As noted in Wiley, the appraisal method could have been made certain by designating by whom or how the appraisal was to be conducted. That was the case in Miller v. McCullough, where the option contract provided that the selling price would be “ ‘the appraised value of the property at the time of purchase based on an MAI appraisal.’ ”

Decided April 30, 1998.

T. Michael Flinn, for appellants.

Smith, Wallis & Scott, James W. Wallis, Jr., for appellee.

The Smith-Huckeba agreement suffers from the same deficiency as the one in Wiley. Although the term “fair market rental value” is not ambiguous, the monetary sum it represents is obviously a contested question. Fair market value would have to be determined by an undesignated party, presumably a third party. The contract is too indefinite to be enforced without a further specification by Smith and Huckeba of who was to establish the fair market value or, absent that, a mathematical or other objective method which would supply the figure. The point is proved by the facts: two parties disagree as to whether $200 is a fair market rental value, and the agreement does not supply the answer. Either or neither may be correct. A jury would have to guess.

2. Nevertheless, the court did not err in denying the Smiths’ motion for summary judgment. The unenforceability of the deficient option does not bar Huckeba’s claim against them for unjust enrichment.

“ ‘ “Unjust enrichment applies when as a matter of fact there is no legal contract . . ., but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” (Cit.)’ [Cit.]”

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations and punctuation omitted.) Patellis v. 100 Galleria Parkway Assoc., 214 Ga. App. 154 (1) (447 SE2d 113) (1994).

       (Emphasis omitted.) 154 Ga. App. 235 (267 SE2d 816) (1980).

       236 Ga. 666 (224 SE2d 916) (1976).

        Wright v. MARTA, 248 Ga. 372 (283 SE2d 466) (1981) (definition).

       See, e.g., Dept. of Transp. v. Woods, 269 Ga. 53 (494 SE2d 507) (1998).

        Engram v. Engram, 265 Ga. 804, 807 (2) (463 SE2d 12) (1995).


text:
    A98A0520.
    HOLT v. LEITER.
    (501 SE2d 879)
   Beasley, Judge.

Jerry Holt, father of a boy born February 2, 1991, appeals an order modifying a previous custody order and granting primary physical custody to the son’s mother Constance Diane Leiter. Her petition was prompted by Holt and the child’s move from Augusta to Alabama without notice to Leiter. Holt raises several procedural issues and contends there is no evidence of a change in the child’s condition sufficient to order a change in custody.

The parties were divorced in late 1994, and the separation agreement provided Holt would have custody of the three-year-old boy subject to certain visitation rights. The next year near Christmas, when Leiter attempted to get him from Holt’s residence for her court-ordered visit, she was told by Holt’s family that he moved with the child to an unknown location. The family warned her not to return to the house or call anymore. Holt had moved the day before. He contended in the trial court that he left Leiter an answering machine message about his plans, but Leiter denied receiving it, and Holt apparently has abandoned this assertion on appeal. According to him, the message contained no address or phone number where he could be reached anyway.

Three months after the aborted visit, on March 11, 1996, Leiter filed a verified petition to modify the McDuffie County custody order. She alleged she was unable to locate the child and sought custody and control. She filed the petition in Richmond County, where Holt and the child had resided before the sudden move to Alabama, and she told the court that service on Holt was unnecessary because Holt’s whereabouts were unknown. The court entered an ex parte order awarding custody and control to Leiter and directing all law enforcement officers and officials of the State of Georgia, in the event they could locate the child, immediately to take custody and deliver him to Leiter.

About June 11, Leiter filed an action in Alabama to obtain a writ of assistance to regain physical custody, attaching a copy of the Georgia petition and affidavit. This was apparently Holt’s first knowledge of the Georgia action. A hearing was held, and the Alabama court ordered that Holt have an opportunity to challenge the Georgia March order. The order explained that if he did not do so, the child would be turned over to Leiter pursuant to the Georgia order. In the meantime, the child was placed with the Department of Family & Children Services in Alabama.

On June 24, Holt moved to set aside the March order on the grounds that he did not receive notice of the action nor of any hearing. Holt’s motion requested that the court set a hearing “concerning the best interests of the child.” One week later he moved to dismiss the petition to change custody altogether, contending he was never served with it and no attempt at service had ever been made.

A hearing was held in Richmond County on July 1 to address the two motions. Both parties were present and represented by counsel. The child was still in DFACS custody in Alabama. At the hearing, Leiter attempted to serve Holt by giving a copy of the petition to his attorney. The parties agreed at this hearing that the Uniform Child Custody Jurisdiction Act (UCCJA) applied to the proceedings.

The court first addressed the question of subject matter jurisdiction, then venue in Richmond County, then service of process, then whether filing a motion to set aside waives service, and finally, whether the temporary order should remain in effect pending final resolution of the case. Holt and Leiter testified on the merits of the custody issue.

Leiter testified that up until a week or so before the hearing, she had not seen her son since December 11, 1995, a period of over six months. Holt had refused to allow court-ordered visitation on at least five previous occasions. The court received evidence that Leiter obtained contempt citations against Holt for some of these refusals. She described the steps she took to try to locate Holt and their son after Holt left without word. On cross-examination Holt admitted he was not listed in any Alabama phone book, that he had never notified the McDuffie court of his new address, and that he gave no notice of his move or new address to his former employer.

In its order following the hearing the court specifically held it had subject matter jurisdiction of the case pursuant to the UCCJA. The court amended its March order and granted Leiter immediate and extended visitation rights to the child at her home in McDuffie County, in conformity with the Alabama court order. Holt was given limited visitation rights and ordered not to take the child out of Georgia. The court reserved its ruling as to permanent custody until a final hearing could be held. The court apparently also ordered the appointment of a guardian ad litem.

On October 25, Holt’s new attorney filed an answer and counterclaim to the petition denying the court had subject matter jurisdiction and raising only one affirmative defense, failure to state a claim.

A hearing was held on October 29 at which both parties, their counsel, and the guardian ad litem were present. The court stated that Holt’s procedural motions had been addressed and denied, but Holt pressed the issue of personal jurisdiction, urging there had been no service. The court took the question under advisement, allowed further briefing on it, and decided only the issue of visitation.

On November 1, Holt was formally served with the Georgia petition by personal service and certified mail.

The court entered an order on November 26 stating that in July it had reserved a ruling on personal jurisdiction. It ruled that the action did not commence until proper service on November 1 and that it had personal and subject matter jurisdiction. The court ordered the parties to schedule the matter for final hearing.

On December 20, Holt moved to set aside the November 26 order on the ground that subject matter jurisdiction could not be based on events occurring after Leiter’s petition was filed on March 11, 1996.

The final hearing was held on April 4, 1997, before a different judge. The court confirmed the earlier denial of Holt’s procedural motions. It gave each party opportunity to review the report of the guardian ad litem. The parties presented evidence on the merits. Leiter reiterated Holt’s obstinate prevention of the fulfillment of her visitation rights, the contempt orders against him, and how Holt and the child were gone when she went for the child at Christmas time.

During her testimony she explained that she had begun to deny Holt visitation rights in January 1997 on her attorney’s instruction, in response to learning things from the child that led her to believe Holt was about to take the child again and not . bring him back. The child had told her Holt was taking him to Alabama during his visitation, which Holt was not allowed to do.

The court in its final order stated that it had previously overruled and denied the motions to set aside and dismiss, and it affirmed those rulings. It found there had been a change in the circumstances affecting the child’s welfare and that a change to joint custody would be in the child’s best interest. Leiter was designated as the primary physical custodian with visitation rights for Holt.

1. In one enumeration, Holt contends the court did not have subject matter jurisdiction because he was not a resident of Georgia and that venue was not proper in Richmond County.

The parties agree the UCCJA applies to the case. The court determined that a Georgia court had jurisdiction under the UCCJA because it was in the best interest of the child, at least one parent had a significant connection with the state, and there was available in Georgia substantial evidence concerning the child’s present or future needs and concerns. Jurisdiction is properly grounded on this finding. Holt does not present any argument or citation of authority to rebut this decision. The only reason the child had a growing connection with Alabama was that Holt improperly moved him there from Georgia without notice.

This action was filed at a time when the child’s home state under the UCCJA was Georgia, but Holt was not formally served until almost eight months later. Because the court had jurisdiction under the best interest test, moot are the questions of whether the court had subject matter jurisdiction based on the child’s “home state” under OCGA § 19-9-43 (a) (1) and whether a delay in service of process affects when a proceeding under the UCCJA has commenced for the purposes of determining the home state.

The general purposes of the UCCJA are to: “(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody, which competition and conflict have in the past resulted in the shifting of children from state to state with harmful effects on the children’s well-being; . . . [and] (5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.”

Holt waived any question of improper venue by not objecting in writing to the case being brought in Richmond County either in his motion to dismiss, his motion to set aside, or his answer and counterclaim. The affirmative defense of improper venue in a child custody case may be waived.

Also, “[t]his court has long recognized that OCGA § 5-6-40 requires that an enumeration of errors ‘shall set out separately each error relied upon.’. . . [I]n the exercise of our sound discretion, [we] may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned.” Holt’s procedural error eliminates any cause to complain of our ruling on the venue issue.

2. The next enumeration is that the March ex parte order was not authorized because Holt had no notice of the hearing and thus it contravened the UCCJA. Although it is true that Holt was unaware of the petition and the March hearing, the validity of the March order is a moot question. It was superseded by the July order which was entered after a hearing attended by Holt and his attorney. Holt had actual and reasonable notice of the July hearing and does not contend otherwise. The UCCJA does not require more. The lack of at least 30 days notice was not raised in either of his motions, at the July hearing, or in his answer. It is deemed waived.

3. Holt contends he was not properly served until November 1, 1996, that Leiter was not diligent in attempting to serve him between March and November, that Leiter’s petition should have been dismissed, and that the orders issued before November 1 are null and void.

Holt was properly served on November 1 and has not objected to this service. The order appealed from was entered June 16, 1997, nunc pro time April 4, 1997, based on a hearing held that date. There is no limitation period on filing a petition under the UCCJA. The issues of lack of service and diligence before November 1 are moot. The earlier orders are no longer in effect and had no permanent provisions. The June 1997 order is fully supported by proper service.

Robinson v. Robinson is not on point. That case addressed the requirement of showing plaintiffs diligence in ascertaining the defendant’s whereabouts necessary to justify service by publication.

4. Holt contends “the mere fact that he had chosen to move to another state was an insufficient basis for a change in custody.”

Before child custody can be changed, the trial court must find that, since the last award, there has been a change in any material conditions or circumstances affecting the well-being of the child. “Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child.” The court is authorized to “look into all the circumstances of the parties” when ruling on a custody modification.

To support a custody change, the court must affirmatively find “that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare.” Such a change will be affirmed “if there is reasonable evidence to support the decision.”

Despite Holt’s attempts to downplay the significance of his actions, it is inescapable that he improperly absconded with the child without proper notice to Leiter. One of the purposes of the UCCJA, quoted above, is to deter just such behavior. Second, Holt had denied the mother visitation rights on at least five or six prior occasions, with contempt orders resulting in some of them. The child was deprived of his mother in all these instances.

Third, Leiter testified the child was doing well in school since he had been back in Augusta; Holt had not communicated with their son for more than a month before the hearing; Holt and his father were very possessive and did not want Leiter to have any relationship with the boy; he became more social since returning to Georgia and wanted to watch television less; and he exhibited a demeanor of greater satisfaction and less apprehension than when he just came for visitations. Leiter testified she overheard Holt tell the child “that he could not like his mommy . . . [or] his mommy’s husband, his stepfather [or] . . . his cousins.”

Holt testified he moved to get-more “space” between him and his ex-wife and because he did not like getting served with contempt citations “every time I turned around.” He testified he was not worried about his son’s contact with his mother after he moved to Alabama. He did admit he violated the Georgia court’s temporary order by taking the child to Alabama on one occasion.

The guardian ad litem interviewed the child, Leiter and her husband, Holt and his father, and DFACS personnel from Alabama and Georgia. Her involvement spanned August 15,1996 through January 2, 1997. Her reports indicate growing concern about the child spending time in Alabama with Holt and his parents. She also reported her concerns that Holt and his family were attempting to brainwash the child against his mother and that Holt regularly takes pictures and videotape of the boy looking for marks of abuse, but he never responded to requests that Leiter be allowed to see them.

“ £(T)he repeated denial of the non-custodial parent’s visitation rights’ authorizes a change [in custody].” In Arp, the mother sought to modify a prior custody order in the father’s favor in part because he had repeatedly refused visitation to the mother and refused visitation over the phone, and this and other things amounted to a pattern of violations of the divorce decree. As in Arp, based on the evidence in this case, “the trial judge could draw the reasonable inference that the types of behavior exhibited by the father towards the mother, which in large measure were contemptuous of court authority, and his negative attitude and overt antipathy towards the [boy’s] relationship with her, demonstrated by his repeated insulation of [the boy] from contact with her, adversely affected [the boy’s] natural relationship with [his] mother because of [the father’s] influence on [the boy]. This could be deemed harmful to the [boy]. . . . [The court] could also draw the reasonable inference that the father’s repeated interference with the mother’s participation in child-rearing dis-served [the boy’s] welfare. These support the conclusion that it was not in the little [boy’s] best interest to remain in this environment.” Further, the guardian’s report provided a factual basis for a finding that the child’s circumstances and conditions in Alabama-negatively affected the welfare of the child.

Decided April 30, 1998

M. V. Booker, for appellant.

William M. Wheeler, for appellee.

Where there is evidence of a change of condition affecting the child’s welfare, a change in custody is justified without a showing that the adverse condition had a measurable effect on the child.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 19-9-43 (a) (2) (A) and (B); Garrett v. Garrett, 267 Ga. 356, 358 (2) (477 SE2d 804) (1996) (“Alabama is among those states which have enacted the Uniform Child Custody Jurisdiction Act (UCCJA). Section 30-3-20 et seq. of Ala. Code of 1975”).

       OCGA § 19-9-41 (a).

       OCGA § 9-11-12 (g) and (h).

        Houston v. Brown, 212 Ga. App. 834 (443 SE2d 3) (1994); Daust v. Daust, 204 Ga. App. 29, 31 (418 SE2d 409) (1992).

        West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990).

       See OCGA § 19-9-44.

       OCGA § 19-9-45 (b).

       260 Ga. 731 (399 SE2d 64) (1991).

       OCGA § 19-9-1 (b) (Supp. 1997); Gazaway v. Brackett, 241 Ga. 127, 128 (244 SE2d 238) (1978); Haralson v. Moore, 237 Ga. 257 (227 SE2d 247) (1976); Robinson v. Ashmore, 232 Ga. 498, 500 (207 SE2d 484) (1974).

        Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).

       OCGA § 19-9-1 (a) (1) (Supp. 1997).

        Ormandy v. Odom, 217 Ga. App. 780, 781 (1) (459 SE2d 439) (1995).

        Blackburn v. Blackburn, 168 Ga. App. 66, 71 (1) (308 SE2d 193) (1983); Haralson, supra, 237 Ga. at 258; Robinson, supra, 232 Ga. at 500-501.

       See OCGA § 19-9-1 (c) (2) and (3) (Supp. 1997) (parent must give notice of change of address, including full address of the new residence, at least 30 days prior to the anticipated change).

       OCGA § 19-9-41 (a) (5).

        Arp v. Hammonds, 200 Ga. App. 715, 718 (409 SE2d 275) (1991) quoting Bull v. Bull, 243 Ga. 72 (2) (252 SE2d 494) (1979). See also Moore v. Wiggins, 230 Ga. 51, 55 (195 SE2d 404) (1973) (“a pattern of continued wilful acts ... intended to thwart and nullify the visitation provisions of the decree” will support a change in custody from one parent to another).

       200 Ga. App. at 718.

       Id.

       See In the Interest of S. D. J., 215 Ga. App. 779, 780 (452 SE2d 155) (1994).


text:
    A98A1273.
    TAYLOR v. THE STATE.
    (501 SE2d 875)
   Eldridge, Judge.

The appellant, William Eugene Taylor, was convicted of burglary, robbery, and theft by taking. In three enumerations of error, Taylor challenges the sufficiency of the evidence.

Viewing the evidence in the light most favorable to the jury’s verdict, it shows that on August 7, 1996, at approximately 5:00 p.m., Mozelle Harding’s pickup truck broke down at a liquor store on Cedar Grove Road where she was picking up cardboard boxes for recycling. When Harding’s truck would not start, Taylor approached Harding and offered to assist her in the repair of her truck. Taylor indicated to Harding that he knew someone who could fix the truck for her. Harding left the liquor store with Taylor driving her truck.

They drove to Harding’s house, which she shared with her elderly twin sister, Rozelle Askew, so that Harding could get some money to buy a part for the truck. After leaving Harding’s house, they went to the recycling center and then to a small country store on Highway 54 where Taylor said the truck could be repaired. During the trip, Taylor identified himself to Harding as William Eugene Taylor and stated that he was from Ohio.

At the store on Highway 54, Harding gave Taylor approximately $140 to purchase the part for her truck. Taylor left the store with another man to allegedly purchase the truck part and never returned. At approximately 7:00 p.m., Harding called a tow truck, which arrived several hours later. Harding finally arrived back at her home at approximately 11:30 p.m.

At approximately 6:00 the next morning, Taylor returned to the home of Harding and Askew, broke out a pane of glass near the lock on the front door and entered the house. Askew heard Taylor’s forced entry and yelled “who is it” from her bedroom. Taylor pushed the door open to Askew’s room, grabbed her, and demanded that she give him money. Askew gave him all the money she had, which was located in the pockets of a pair of pants she had lying on a chair. Askew could not state at trial the exact amount of money Taylor took, but knew it was in excess of $100 because she had “some $100 bills in there.”

Harding woke to the sound of her sister’s screams. She got out of bed and started down the hallway, turning on the lights. She found her sister being escorted up the hall by Taylor. Taylor grabbed Harding and threatened to kill her if she did not give him money. After taking what money Harding had, Taylor fled out the front door.

Harding testified that, when Taylor grabbed her, she was able to see him clearly and recognized him as the man who had taken her money the previous day. Harding also testified that, while Taylor was holding her, she noticed a tattoo on his right arm that read “William.” She had noticed the same tattoo on Taylor the previous day while she was riding in the truck with him.

Both Harding and Askew were separately able to identify Taylor in a photographic lineup as the perpetrator of the crimes against them. Askew positively identified Taylor at trial. At trial, Harding testified that her distance vision was poor and she could not see well enough at a distance to identify Taylor. However, when the prosecutor showed Harding the photographic lineup that she had previously viewed, she once more made a positive identification of Taylor.

In a statement given to police, Taylor admitted that he had met an older black female at Wood’s package store and helped her when her vehicle broke down. He further stated that he went to her house in the process of helping her. Taylor denied robbing anyone. Investigator Scott Crumbly of the Clayton County Police Department testified that, during the interview, Taylor showed him the tattoo on his right arm which read “William” and he took a picture of it. Harding testified at trial that the tattoo of the perpetrator was identical to the tattoo in the picture taken by Investigator Crumbly.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Any inconsistencies in the victims’ testimony, as well as the inability of Harding, who had prior to trial made a positive identification of Taylor from a photographic lineup and had testified she had poor distance vision, to make a positive identification of Taylor in the courtroom other than from the photographic lineup, go to the weight and credibility of the witnesses’ testimony; such issues are for the jury to weigh. Sherman v. State, 225 Ga. App. 869 (485 SE2d 557) (1997); Jones v. State, 220 Ga. App. 236 (469 SE2d 379) (1996). “This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997).

Decided April 30, 1998.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Taylor guilty of burglary, robbery, and theft by taking beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A0224.
    CHANDLER et al. v. MVM CONSTRUCTION, INC. et al.
    (501 SE2d 533)
   Judge Harold R. Banke.

Seeking damages for fraud and attempting to rescind a home improvement contract, William Chandler and Marie Chandler sued MVM Construction, Inc. (“MVM”) and Green Tree Financial Corporation f7k/a Green Tree Acceptance, Inc. (“Green Tree”). The Chandlers appeal the summary judgment awarded to Green Tree and the denial of their motion for partial summary judgment.

On September 11, 1991, the Chandlers contracted with MVM for some minor construction work and home repairs. To finance the work, the Chandlers signed a retail installment contract secured by their home of more than 40 years. MVM later assigned the retail installment contract and the deed to secure debt to Green Tree.

The Chandlers made a cash down payment of $1,200 and became obligated for $27,402 in 132 monthly payments of $204.85. When the Chandlers filed the underlying action, they had paid approximately $7,500 more. At the time of the initial transaction, both Marie Chandler and William Chandler were over 75 years old and on an extremely limited income. Marie Chandler had been completely bedridden for several years. Neither had graduated from high school and William Chandler was barely literate. When they signed the five “papers,” neither had any idea that they were giving MVM a deed to their home.

During a videotaped deposition conducted in their house, William Chandler pointed out various deficiencies in MVM’s work, ranging from poor performance to nonperformance. He claimed that MVM did not install an awning on the front porch or weather stripping on the back door or a fence or gutters. According to Chandler, the windows would not stay up, plaster washed off in the rain leaving a hole, and interior paint began peeling within six months’ time. Although he admitted that he did not contact MVM to complain about or report the problems, he claimed he did not know whom to call. He testified that he could only read his name and his wife’s on the paperwork. Marie Chandler, a long-term diabetic, testified that she was unable to read the print because it was too fine for her to see.

The Chandlers alleged certain violations of the Consumer Credit Protection Act of 1968 (15 USC § 1601 et seq.) and the Truth in Lending Act (“TILA”) (15 USC § 1605 and “Regulation Z”) (12 CFR § 226.4 (c) (7) (iii)), and, inter alia, fraudulent misrepresentation of the value of the goods and services. As to the federal law violations, the Chandlers claimed that because the contract violated 15 USC § 1605 (a) by designating a $50 inspection fee as part of the amount financed instead of as a finance charge, they were entitled to rescind the agreement. They claimed that because the installment contract failed to specify when the payments were to commence, the agreement was impermissibly vague and violated CFR § 226.4 (a). They further asserted that MVM misrepresented the true value of the goods and services which the Chandlers professed were worth a mere $4,000. The Chandlers appeal the trial court’s adverse judgment. Held-.

1. MVM’s designation of the $50 inspection fee as part of the amount financed did not entitle the Chandlers to rescind the contract. Even assuming arguendo that MVM improperly included the fee in the section on the amount financed, the alleged error would not constitute such a material nondisclosure as to entitle the Chandlers to rescind the contract. The total amount financed is plainly stated and the $50 fee is clearly listed on the form within the financing section. See Malfa v. Household Bank, 825 FSupp. 1018 (S.D. Fla. 1993) (remedy of rescission under USC § 1535 is applicable to material violations of TILA and not to technical violations). Compare Steele v. Ford Motor Credit Co., 783 F2d 1016, 1019 (11th Cir. 1986) (any overcharging of interest, even $24, can be deemed to be a material nondisclosure).

2. The Chandlers contend that a jury must resolve whether the contract’s failure to provide a specific date for the start of monthly payments entitles them to exercise their right to rescind.

As a general rule, TILA disclosures are required prior to the consummation of a credit transaction. 15 USC § 1601 et seq. “The Truth in Lending Act grants a consumer the right to rescind a transaction until midnight of the third business day following the consummation of the transaction, delivery of the required notice of the right to rescind, or delivery of all ‘material disclosures,’ whichever occurs last. 15 U.S.C. § 1635; 12 C. F. R. § 226.23. If the required notice or ‘material disclosures’ are not delivered, the right to rescind is extended until three years after consummation of the transaction.” Malfa, 825 FSupp. at 1020.

The Chandlers claim that the contract they signed violated the TILA because it failed to disclose the due dates or period of payments scheduled and failed to disclose the date on which the first installment was due and payable. 15 USC § 1638 (a) (6); Reg. Z § 226.18 (g) (1). They maintain that due to this material nondisclosure, their right to rescind was extended to three years from when they signed the contract with MVM. In Graves v. Tru-Link Fence Co., 905 FSupp. 515, 521-522 (N.D. Ill. 1995), under similar facts, the court determined that a construction installment contract’s failure to specify an exact date or an estimated date for the start of payments was sufficient to set forth a prima facie case for a TILA violation.

Here, the trial court disregarded the Chandlers’ evidence of a possible TILA violation, by refusing to consider the exhibit they offered. It is undisputed that Exhibit A, a copy of the Retail Installment Contract and Security Agreement, which the Chandlers attached to their complaint, fails to disclose any particular starting date for payments. Whereas, Green Tree’s Exhibit 2, a copy of the same contract, states, “[pjayments are due monthly beginning approximately 11/5/91, 30 days from completion date.” Thus, the exhibit offered by the Chandlers does not appear to satisfy the TILA disclosure requirement; whereas, the exhibit offered by Green Tree does designate a date.

The trial court held the Chandlers culpable for the disparity between the two exhibits. Relying on Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), the trial court construed the inconsistencies between the exhibits against the Chandlers. The court found that at their depositions, the “[p]laintiffs also introduced, identified, and authenticated a contract which contains the approximate date for the first payment [the copy relied upon by the appellees].”

However, during a cursory review of the two exhibits, it is virtually impossible to discern the differences. Only upon close examination, is it detectable that the copy upon which Green Tree relies is materially inconsistent. Although 11/5/91 and the account number 77613499 do not appear on Exhibit A, the contract provided by the Chandlers, Green Tree’s Exhibit 2 contains these numbers. In the block “Where Payments Are Due” the date 11/5/91 appears in a type size larger than the rest of the typed words in that space. On line 3 of the Chandlers’ exhibit, the date 9-20-91 has a line running through the typed numbers; whereas, on Green Tree’s exhibit, the same date is more perfectly typed and is positioned just above the line. When the two exhibits are held up to the light, the signature blocks fail to properly align. Only upon close scrutiny does it become apparent that these two exhibits are not replicas of each other.

According to William Chandler’s uncontroverted testimony, he could only read the signatures on the document. At no time during Marie Chandler’s deposition was she asked to authenticate the contract or asked about any date or discrepancy. She was only asked to identify her signature. Given the inherent difficulty in detecting the inconsistency in the exhibits and given the discernment problems of the Chandlers, we cannot agree that this evidence must be construed against the Chandlers. In light of the existence of the material factual discrepancies exposed on the face of the two purported copies of the same contract, we believe that a jury must resolve how and why these variances occurred and the authenticity of these two exhibits. See Sewell v. Akins, 147 Ga. App. 454, 456 (3) (B) (249 SE2d 274) (1978) (whether the alteration of the document was fraudulent was a fact question for the jury).

We must reject Green Tree’s contention that as an assignee, it is hable for a TILA violation “only if the violation ... is apparent on the face of the disclosure statement.” 15 USC § 1641 (a). In light of the apparent conflict in the two exhibits, we cannot determine whether a material nondisclosure occurred.

Furthermore, the installment contract imposes potential liability on Green Tree as follows: “NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECTED TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HEREOF. . . .” For these reasons, a jury must décide whether Green Tree has liability under the TILA or under the terms of the contract.

Decided April 6, 1998

Reconsideration denied May 1, 1998.

David G. Crockett, Tait O. Norton, Douglas L. Brooks, for appellants.

Kenney & Solomon, Thomas S. Kenney, Charles M. Hall, for appellees.

3. The Chandlers assert that a jury must resolve their fraud claim. We agree. See Stiefel v. Schick, 260 Ga. 638, 639 (1) (398 SE2d 194) (1990); OCGA § 51-6-1. Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. OCGA § 23-2-57; McNeil v. Cowart, 186 Ga. App. 411, 412 (1) (367 SE2d 291) (1988). Although Green Tree argues that the Chandlers failed to show that MVM prevented them from reading the contract or from comparison shopping, we believe that a jury must determine whether the Chandlers failed to use proper diligence. Elliott v. Marshall, 179 Ga. 639, 640 (176 SE 770) (1934). Moreover, whether the Chandlers were misled by MVM’s alleged misrepresentations and whether their reliance on MVM’s statements was justifiable are issues which necessitate jury resolution. LeBrook, Inc. v. Jefferson, 210 Ga. App. 650, 652 (4) (437 SE2d 360) (1993). See Farmers State Bank v. Huguenin, 220 Ga. App. 657, 661 (2) (469 SE2d 34) (1996); King v. Towns, 102 Ga. App. 895, 901 (2) (118 SE2d 121) (1960) (where contract resulted from the exercise of undue influence, plaintiff’s entitlement to rescission required jury resolution).

4. In light of the above divisions, we need not reach the Chandlers’ remaining enumerations of error.

Judgment reversed.

McMurray, P. J, and Eldridge, J., concur.

       According to the sales agreement, MVM agreed to perform miscellaneous tasks including, inter alia, patching and painting specified areas, replacing some rotted flooring, sheetrocking the front porch ceiling, installing a doorbell with chimes and a front porch awning, and weatherstripping the back door.

       She testified that she was unable to read the handwritten list of items to be performed other than the first line of print.

       She expressed some hesitancy about the signatures on Defendant’s Exhibit 2, the completion certificate. On this document, her signature appears as “Marie Chandler” whereas on all the other documents her signature appears as “Mrs. Marie Chandler.”

       Green Tree claims that its Notice of Assignment duly notified the Chandlers of the payment date of 11/05/91. However, the record is not clear that they received a copy of this form.

       A representative of MVM testified that the total job cost $7,469, not including overhead. The contract price for the job was $15,200 of which $14,000 was to be financed.

       Marie Chandler testified that the salesman promised them as senior citizens, a free ceiling fan. The skimpy documentation for the materials billed on this contract does not show whether they received a free fan or were charged for it.


author: Smith, Judge.

text:
    A98A0060.
    DEAN v. THE STATE.
    (501 SE2d 895)
   Smith, Judge.

William Michael Dean was charged by accusation with DUI. A jury found him guilty, and judgment and sentence were entered on the jury’s verdict. Dean appeals following the denial of his motion for new trial. We affirm.

1. Dean contends the trial court erred for several reasons in admitting into evidence the results of a State-administered blood test showing that Dean’s blood alcohol concentration was .15 grams.

(a) Dean first argues that the qualifications of the person who drew the blood were not proved as required by OCGA § 40-6-392 (a) (2). We do not agree.

Dean’s blood was drawn at Floyd Medical Center, and the phlebotomy coordinator at the hospital testified at trial. She testified that she did not draw Dean’s blood but produced hospital business records showing the identity of the person who drew the blood; that person was on medical leave from the hospital at the time of trial. She stated that the person who drew the blood had been under the witness’s supervision for two years, was a State-certified phlebotomist, and was still employed by the hospital. She later identified a facsimile copy of a document from the hospital’s records indicating that the person who drew Dean’s blood had passed the State examination for phlebotomists.

OCGA § 40-6-392 (a) (2) provides that when blood is drawn at the request of a law enforcement officer for the purpose of determining alcohol content, “only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood.” When the State seeks to prove a violation of OCGA § 40-6-391 (a) by using a chemical test, it must prove the blood was drawn by a person who was “qualified” within the meaning of the statute. Harden v. State, 210 Ga. App. 673, 674 (1) (436 SE2d 756) (1993). But contrary to Dean’s assertion, Harden did not limit the ways in which such qualifications may be shown. We described in Harden “at least two ways” for the State to carry its burden: by calling as a witness the person who drew the blood and having that person testify as to his or her qualifications; or by presenting a certification from the Secretary of State or the Department of Human Resources showing that the person who drew blood was licensed or certified in a profession listed in OCGA § 40-6-392 (a) (2). Id.

It is clear from the choice of words in Harden, as well as from case law, however, that these two methods are by no means the exclusive ways of satisfying the State’s evidentiary burden. “The words ‘at least’ imply that other ways exist, and the case law makes clear that the State’s burden may be carried in other ways.” Brahm v. State, 230 Ga. App. 407, 408 (1) (497 SE2d 240) (1998). A full-time hospital employee trained to draw blood whose only job is to do so is a qualified person under the statute. Gooch v. State, 155 Ga. App. 708, 711 (6) (272 SE2d 572) (1980). In this case, the State established, through hospital business records and the testimony of a supervisor, that the person who drew Dean’s blood was an employee of the hospital, trained as a phlebotomist, who passed the State’s qualifying examination for phlebotomists. This was sufficient to carry the State’s burden of proving her qualifications pursuant to the statute.

(b) Dean also argues that the test results should not have been admitted because an inadequate chain of custody was shown with regard to the blood sample. The record belies this contention.

The arresting officer, John Burnette of the Floyd County Police Department, testified that he witnessed the blood being drawn. He then secured the test tube in a sealed plastic bag, carried it with him while he booked Dean at the jail, and deposited it in the locked evidence refrigerator at the police department. The police evidence custodian testified he removed the sample from the refrigerator and took it to the state crime laboratory in Decatur, where he placed it in the locked drop box provided for this purpose. The supervisor of the implied consent section at the Atlanta Crime Lab, a forensic chemist in charge of alcohol testing for the State, testified that the evidence technician at the lab cut open the outer plastic bag, and the sealed test tube was identified and stored in the laboratory refrigerator until ready for analysis. The forensic chemist testified that the tube was still properly sealed when he opened it to perform the analysis. He testified that this sample was handled routinely in the laboratory’s usual manner.

This was sufficient to show the chain of custody. When the State wishes to introduce fungible evidence, it must show a chain of custody adequate to preserve its identity to demonstrate with reasonable certainty that the evidence introduced is the same as that seized and that no substitution or tampering has taken place. Slade v. State, 222 Ga. App. 407, 408 (1) (474 SE2d 204) (1996). But the State need not exclude all possibility of tampering or show that the substance was guarded closely at every moment. If no showing of tampering is made and only a bare speculation of possible tampering exists, the chain of custody is not broken and the evidence is admissible, with any doubts going to its weight. Buffington v. State, 190 Ga. App. 365, 366 (3) (378 SE2d 884) (1989), overruled on other grounds, Green v. State, 260 Ga. 625, 626 (1) (398 SE2d 360) (1990). Accord Slade, supra. Here, as in Buffington and Slade, no showing was made of tampering or substitution. At most, only a bare speculation of tampering existed and the evidence therefore was properly admitted.

Decided May 1, 1998.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

2. Dean maintains the trial court committed reversible error in its jury charge regarding entry of a verdict by instructing the jury to return a special verdict in violation of OCGA § 17-9-2, which provides that the jury “shall give a general verdict of ‘guilty’ or ‘not guilty.’ ” We do not agree.

The accusation charged Dean in the conjunctive with being a less safe driver and with having a blood alcohol content over 0.10. This was proper. It is well established that when a defendant is charged with violating a penal statute containing several ways in which a crime may be committed, in order to withstand a special demurrer the accusation or indictment must charge the different ways conjunctively if it charges more than one of them. Jones v. State, 75 Ga. App. 610, 614-615 (4) (44 SE2d 174) (1947). See also Lubiano v. State, 192 Ga. App. 272, 274 (1) (384 SE2d 410) (1989).

Because the accusation was drawn in the conjunctive, it was necessary for the trial court to explain the conjunctive form of the accusation to the jury and to ensure that the jury members understood they could find Dean either “guilty” or “not guilty” as to each of the alternatives. This was accomplished by providing the jury with a verdict form that listed separately each of the two methods by which Dean was accused of violating OCGA § 40-6-391 and instructing the jury to indicate “guilty” or “not guilty” as to each method.

We find neither a violation of OCGA § 17-9-2 nor an error in the trial court’s instruction or the verdict form. Moreover, even if this verdict form was error, Dean did not object to it at trial and he cannot now complain. Wilkes v. State, 210 Ga. App. 898, 899 (2) (437 SE2d 837) (1993).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       We note that although the accusation charged Dean with violating OCGA § 40-6-391 in two ways, the State was required to prove only that Dean violated it in one way in order to obtain a conviction. Even if the blood test results were inadmissible, their admission would be harmless error, because the record also contains sufficient evidence to support the jury’s finding that Dean was guilty of driving under the influence of alcohol such that he was a less safe driver. We nevertheless address the merits of Dean’s enumerations.

       Although Dean now appears to challenge the use of a fax transmission of a photocopy of this record, it is clear from the transcript that he did not object on this basis at trial.