text:
    A99A0690.
    HUMPHREYS v. KIPFMILLER.
    (515 SE2d 878)
   Johnson, Chief Judge.

Lisa Humphreys sued Jason Kipfmiller for injuries she allegedly sustained in an automobile collision. The case was tried before a jury and a verdict returned in favor of defendant Kipfmiller. Humphreys filed motions for judgment notwithstanding the verdict and new trial, which the trial court denied. Humphreys appeals. For the reasons set out below, we affirm.

1. This Court has consistently held that a motion for j.n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make it clear that only one judgment would be proper, j.n.o.v. should not be awarded. In considering the motion, both the trial court and the appellate court must view the evidence in the light most favorable to the party who secured the jury verdict. See U S. Fidelity &c. Co. v. Paul Assoc., 230 Ga. App. 243, 250 (6) (b) (496 SE2d 283) (1998). Applying this standard of review, we find the trial court did not err in denying Humphreys’ motion for j.n.o.v.

Construing the evidence in the light most favorable to Kipfmiller, the record shows that Humphreys was a passenger in a car driven by Henry Paulson. Paulson was traveling on a through street, and Kipfmiller was traveling on a side street controlled by a stop sign, approaching its intersection with the through street. The collision occurred when Kipfmiller, having first stopped at the stop sign, turned left onto the through street and into the path of Paulson’s car.

While Humphreys alleged the collision was solely due to Kipfmiller’s negligence, there was at least some evidence supporting Kipfmiller’s position that he acted with due care and was not negligent. Kipfmiller testified that he stopped at the stop sign and proceeded into the intersection only after looking twice for oncoming traffic and determining the intersection was clear. Although Kipfmiller testified that he had been driving all night, he also stated, contrary to Humphreys’ allegation, that at the time of the collision he did not feel fatigued.

There was sufficient conflict in the evidence as to causation to warrant sending the issue to the jury. Kipfmiller testified that the cars connected “hard and strong.” Paulson testified that the impact was so strong that it literally knocked the front two wheels of Kipfmiller’s vehicle out and flat on the ground. He further testified that, even though Humphreys wore a seat belt in the back seat, she hit the back window. While Paulson testified that he was traveling only 25 mph, he also testified that he last looked at his speedometer when he turned onto the through street and started up a hill some distance away from the intersection.

Since there was evidence Kipfmiller pulled into the intersection after stopping, the force of the impact creates an allowable inference that Paulson’s vehicle was moving at a fairly high rate of speed. While the photographs in the record show little damage to the vehicles and are consistent with Paulson’s assertion that he was not speeding at the time of the collision, the jury, nevertheless, could have found, based on the testimony of the two drivers that they did not see each other until immediately prior to the collision, as well as their testimony regarding damage to their vehicles, that Paulson was speeding and that the speed of Paulson’s vehicle was the sole proximate cause of the collision. The jury could also have concluded that Kipfmiller complied with OCGA § 40-6-72 (b), momentarily gaining the right of way to enter the intersection, and that Paulson’s speed was the proximate cause of the collision. See Flournoy v. Brown, 226 Ga. App. 857 (1) (487 SE2d 683) (1997).

We disagree with Humphreys’ argument that she, as a guest passenger, was entitled to j.n.o.v. because the evidence demanded a finding that Kipfmiller was solely or at least partially responsible for the collision. Unlike Moore v. TCI Cablevision, 235 Ga. App. 796 (510 SE2d 96) (1998), where we reversed a jury verdict for the defendants in a suit brought by the guest passenger, Humphreys sued only one driver in this case. Here, the jury had three options: (1) it could have concluded that both drivers violated the law and the negligence of each driver was a contributing proximate cause of the collision; (2) it could have concluded that Kipfmiller breached his duty under the law and was the sole proximate cause of the collision; or (3) it could have concluded that Kipfmiller did not breach his duty under the law and that Paulson’s speed was the sole proximate cause of the collision. While the evidence supporting the last option was not overwhelming, there was evidence to support the jury’s conclusion that Paulson’s negligence was the sole proximate cause of the collision. Except in plain, palpable and indisputable cases, all questions of negligence, contributory negligence, cause and proximate cause, and whose negligence constituted proximate cause of an injury are for the jury. And, on appeal the evidence is to be construed to sustain, rather than destroy, the verdict, for every presumption and inference is in its favor. See Roberts v. Dove, 234 Ga. App. 853, 854 (1) (508 SE2d 213) (1998). Under the standard of review which applies in this case, the evidence was sufficient to justify the trial court’s denial of Humphreys’ motion for j.n.o.v.

2. Humphreys alleges the trial court erred by denying her motion for new trial. This motion was based on the claim that the trial court erred in giving the following charge to the jury: “I further charge you that the Defendant has no duty to yield the right of way if you find that the Defendant, after stopping and looking, could not see the automobile in which the Plaintiff was riding as the Defendant entered the roadway.”

This charge was adopted in Simpson v. Reed, 186 Ga. App. 297 (367 SE2d 563) (1988), overruled on other grounds, Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 103-104 (1) (498 SE2d 524) (1998). Humphreys argues that the trial court erred in giving this charge because the Simpson case involves OCGA § 40-6-73 and the present case deals with OCGA § 40-6-72. We disagree.

OCGA § 40-6-72 mandates that a driver approaching a stop sign must, after stopping, yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways. OCGA § 40-6-73 mandates that a driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed. In Simpson, as in this case, the trial court merely gave the limiting instruction to explain the extent of the duty imposed upon a driver before entering a roadway. Just as the charge in Simpson explained why the duty created by OCGA § 40-6-73 might not have been breached under the facts in that case, the charge given by the trial court here explained why the duty created by OCGA § 40-6-72 might not have been breached under the evidence in this case. Both statutes impose a duty upon drivers who are about to enter a roadway; the charge is merely an attempt to instruct jurors to use their common sense in determining whether the driver satisfied the duty required by the statute. It would be illogical to allow a driver entering a roadway from a private drive to proceed in spite of a car that is not visible but not allow a driver who stopped at a stop sign to proceed under the same circumstances.

In discussing the extent of the duty required by OCGA § 40-6-72, we have previously held:

The plain and unambiguous language of this statute reveals that the legislature intended that preference of right of way would remain in the driver of a vehicle, being operated on a through street or highway, when such vehicle is in the intersection or is approaching the intersection under conditions which would constitute an immediate hazard to any vehicle attempting to enter the same intersection from a roadway controlled by a stop sign. Implicit within this language, however, is the legislature’s continued intent that the driver of a vehicle, being operated on a roadway controlled by a stop sign, may momentarily gain preference of right of way when, after having come to a complete stop at the stop sign and having diligently looked for oncoming traffic enters safely into the intersection. Any other statutory interpretation would lead to the absurd result that a driver legitimately stopped at a stop sign could never, under any circumstance, momentarily gain the right of way to cross the intersection. Statutory construction must square with common sense and reasoning.

(Citation and emphasis omitted.) Flournoy, supra at 858 (1).

Even assuming Kipfmiller violated OCGA § 40-6-72, Humphreys’ argument that this violation removes the issue of Paulson’s negligence from the jury lacks merit. Humphreys’ interpretation of OCGA § 40-6-72 would remove the issue of proximate cause from the jury. Negligence per se is not liability per se. Negligence per se is actionable negligence only where it is the proximate cause of the plaintiff’s injuries. See Sumner v. Otasco, Inc., 175 Ga. App. 177 (333 SE2d 28) (1985). Proximate cause is for the jury to decide. See DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811 (278 SE2d 712) (1981). An interpretation such as the one propounded by Humphreys, taken to its extreme, would result in an exiting automobile being absolutely liable for a collision, even if such vehicle exited onto a street at night and collided with a speeding vehicle which had its lights off. The instruction at issue was a correct statement of the law.

Contrary to Humphreys’ argument, the Simpson charge does not eliminate the legal duty imposed by OCGA § 40-6-72 upon a driver approaching a stop sign. The case of Strong v. Palmour, 113 Ga. App. 750 (149 SE2d 745) (1966), cited by Humphreys as controlling authority, is clearly distinguishable. In Strong, the trial court charged both the stop sign statute and another statute which generally stated that “ ‘[t]he driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.’ ” Id. at 751. We held that it was error to charge the general statute when the intersection was controlled by a stop sign. A charge containing two distinct propositions directly conflicting with each other is likely to leave the jury so confused that they cannot render an intelligent verdict. Id. at 754.

Here, the trial court did not charge two distinct, conflicting propositions. The jury was not given two different charges regarding which vehicle had the right of way. Rather, the trial court gave the Simpson charge to explain the extent of Kipfmiller’s duty under OCGA § 40-6-72, the stop sign statute. Humphreys argues that the trial court did, indeed, charge the jury on both OCGA §§ 40-6-72 and 40-6-73 because the Simpson charge is inseparable from OCGA § 40-6-73. However, the language of the case shows otherwise:

Decided April 8,1999

Wall & Noonan, Douglas T. Noonan, Patrick J. Gibbs, for appellant.

Downey & Cleveland, Russell B. Davis, for appellee.

Nor do we find merit in appellant’s argument that the trial court erred by instructing the jury that appellee had no duty to yield the right-of-way if the jury found that appellee, after stopping and looking, could not see appellant’s automobile as he entered the roadway. The jury was authorized to find that appellant’s automobile was not visible to appellee as he entered the roadway and thus a charge indicating the possible inapplicability of OCGA § 40-6-73 under such circumstances was adjusted to the evidence.

Simpson, supra at 299 (9).

We must now consider whether there existed any evidence, direct or circumstantial, to support the giving of this charge. See Flournoy, supra at 859. Kipfmiller testified that he stopped at the stop sign, looked twice for oncoming cars and proceeded into the intersection only when he knew it was clear. The parties disagree as to whether a bush obstructed Kipfiniller’s view of the roadway or whether evidence regarding the existence of the bush was introduced. However, there is no dispute that Paulson did not see Kipfmiller as Paulson approached the intersection and that Paulson crested a hill prior to reaching the intersection. In Division 1, we pointed out that there is evidence from which a rational trier of fact could conclude that Paulson was speeding at the time of the collision. The evidence was sufficient to warrant the charge at issue. “To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” (Citations and punctuation omitted.) Id. Under the circumstances of this case, whether Kipfmiller knew or should have known that Paulson’s vehicle was so close as to pose an immediate hazard was a question of fact for jury determination. See Flournoy, supra at 860; Bowens v. State, 116 Ga. App. 577 (1) (158 SE2d 420) (1967).

Judgment affirmed.

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


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A99A0075.
    DALLY v. THE STATE.
    (516 SE2d 87)
   Judge Harold R. Banke.

John Carroll Dally was convicted of the offense of aggravated assault after firing a handgun at close range at his former spouse. On appeal, Dally asserts four errors.

The underlying case arose after the victim, an elementary school teacher, entered her school’s parking lot and noticed a white Ford truck she thought might belong to Dally, her ex-husband. Fearing that Dally might try to harm her as a result of their bitter divorce and unresolved conflicts over child support, the victim decided to confirm that it was Daily’s truck before calling police. As she attempted to drive closer, Dally suddenly pulled his truck out in front of her almost causing a head-on collision. Dally glared at her then reached toward his glove compartment. Fearing for her life, the victim tried to escape. As she attempted to leave, Dally exited his truck, walked toward her car and fired a single shot which barely missed her. The bullet lodged in the roof just above her head. The victim fled then dialed 911 from her car phone before proceeding to a police station.

An eyewitness, Lon Phillips, observed Dally attempt to shoot the victim. Phillips saw the victim flee and watched Dally return to his truck. As Phillips rushed outside, Dally looked directly at him before he escaped. Phillips pursued Dally, but after losing him in traffic, flagged down an approaching police car and reported the crime. Phillips identified Dally as the assailant.

On October 10, 1996, over a year after the attack, Houston Police Sergeant Steve Copeland, assigned to the FBI’s Violent Fugitive Task Force, apprehended Dally on a fugitive warrant in Houston, Texas. After his extradition to Georgia, Daily’s property remained in Texas. This property included the Ford truck and a cashier’s check for $18,000 payable to Dally, discovered during a search of Daily’s truck.

At a hearing on March 5, 1997, the State apprised the court of the existence of an outstanding judgment against Dally for approximately $5,000 for unpaid child support. For this reason and others, the trial court deferred ruling on Daily’s motion to return funds. The court heard additional motions on that day and the next and set the issue of recovery of funds down for a hearing on April 2, 1997.

Then on March 6, Dally filed a demand for speedy trial. On March 7, following the filing of that demand, Daily’s counsel was told to appear on Monday, March 10 to begin a jury trial. Dally objected to the case being called for trial and requested a seven-day continuance. When that was denied, he sought a two-day continuance, but the State objected. The State conditioned its agreement to a delay on Daily’s withdrawal of the demand for speedy trial which he refused to do. After the State agreed to a one-day continuance, Dally was told to report for trial the next day. Before trial, on March 11, Dally renewed his objections to proceeding.

During its case-in-chief, the State asked Sergeant Copeland, whether after being afforded the warnings required by Miranda, Dally had made any statements regarding the alleged aggravated assault. Without objection, Copeland responded, “[n]o, we didn’t attempt to interview him about that.” At this point, Dally objected and moved for a mistrial. After denying the motion, the court granted Daily’s request for a curative instruction. Dally did not immediately renew his motion for mistrial but waited until the completion of Copeland’s testimony and that of a subsequent witness before doing so. Held:

1. Dally contends that the trial court erred by not granting his motion for return of funds which he claims effectively precluded him from retaining counsel of his own choosing.

It is undisputed that the cashier’s check at issue remained in possession of law enforcement officials in Houston, Texas, until March 11, when an out-of-state witness brought the check with him to Georgia. As such, the Cobb County District Attorney’s office did not have possession, custody, or control over the funds. On March 11, when the court agreed to permit the deposit of the $18,000 into the registry of the court so that Dally could access the balance remaining after deduction of the child support lien, upon advice of counsel, Dally refused to endorse the check. By refusing to endorse the check to obtain the funds and by continuing to demand a speedy trial, Daily’s own actions precluded him from retaining private counsel. See Glover v. State, 230 Ga. App. 795, 797 (1) (498 SE2d 300) (1998) (a defendant cannot complain of a result caused by his own conduct).

2. In two enumerations of error, Dally contends that the trial court erred in denying his request for a continuance. He asserts that his counsel was deprived of proper notice and adequate time to prepare for trial. Dally claims that the court misconstrued his demand as constituting an announcement of ready for trial.

The granting of a continuance is a matter within the sound discretion of the trial court, and absent a clear showing of abuse, the lower court’s decision will not be reversed. Livingston v. State, 266 Ga. 501, 503 (1) (467 SE2d 886) (1996); Rhodes v. State, 200 Ga. App. 193, 194 (1) (407 SE2d 442) (1991). Without question, by submitting the demand for trial, Dally shortened the time available to try him. Croft v. State, 180 Ga. App. 705, 706 (350 SE2d 34) (1986).

Pretermitting consideration as to whether the notice requirement of Uniform Superior Court Rule 32.1 was violated or as to the legal effect of initiating the demand, Dally failed to establish that the court abused its discretion by refusing to grant the continuance. Dally obtained appointed counsel on November 4, 1996, who filed numerous motions on Daily’s behalf. Dally neither claimed nor showed that his appointed counsel’s trial performance was ineffective in his motion for new trial. Inasmuch as Dally and his counsel had several months to prepare for trial, the trial court did not manifestly abuse its discretion by refusing to grant additional time. Warren v. State, 232 Ga. App. 488, 490 (3) (a) (502 SE2d 336) (1998).

Decided April 9,1999.

Mitchell D. Durham, for appellant.

To attempt to establish why he needed more time to prepare for trial, Dally submitted two offers of proof under seal to the court which disclosed a defense strategy of claiming that his ex-wife concocted a scheme to frame him. But where, as here, a case is not convoluted and does not involve a large number of witnesses or intricate defenses, denial of a continuance merely because of shortness of time for preparation for trial does not constitute an abuse of discretion. Fulghum v. State, 180 Ga. App. 748 (1) (350 SE2d 268) (1986). Given the overwhelming evidence of Daily’s guilt, including the testimony of the victim, corroborated by a witness who saw the crime, as well as the testimony of two other witnesses revealing Daily’s earlier threats to kill the victim, and Daily’s flight from justice, Dally failed to establish that the trial court abused its discretion in denying the continuance. See Bragg v. State, 172 Ga. App. 133, 134 (322 SE2d 337) (1984); Clark v. State, 138 Ga. App. 266, 271 (7) (226 SE2d 89) (1976).

3. Dally claims that the trial court erred by denying his motion for a mistrial after a State witness improperly commented on his post-arrest silence after receiving Miranda warnings.

Notwithstanding Daily’s claim to the contrary, the witness did not comment about Daily’s post-arrest silence but rather testified that he never questioned Dally about the aggravated assault. Nor did the witness testify that Dally refused to give a statement. Compare Gibbs v. State, 217 Ga. App. 614, 615-616 (458 SE2d 407) (1995). After the trial court issued a curative instruction, Dally failed to timely renew his motion for mistrial. Maddox v. State, 227 Ga. App. 602, 603-604 (2) (490 SE2d 174) (1997); see Mansfield v. State, 214 Ga. App. 520, 521 (2) (448 SE2d 490) (1994). In these circumstances, the trial court properly denied the motion for mistrial. McDaniel v. State, 204 Ga. App. 753, 754 (2) (420 SE2d 636) (1992).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.

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

       The court ordered $1,000 for the services of a professional investigator for Daily’s use.


author: McMurray, Presiding Judge.

text:
    A99A0112.
    DAVIDSON v. THE STATE.
    (516 SE2d 90)
   McMurray, Presiding Judge.

Defendant was charged in uniform traffic citations with driving under the influence of alcohol (less safe driver), attempting to elude a police officer, no proof of insurance, and weaving over the roadway. Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial revealed the following:

Officer Michael Kreher of the City of Atlanta Police Department was notified by his dispatcher that a concerned citizen reported following an older model red pickup on Sylvan Road in the City of Atlanta “that was driving erratically [,] crossing over the center line.” Officer Kreher proceeded in behind such a vehicle as it turned left onto Melrose Drive. This street is only two lanes. Officer Kreher observed as the “truck had eased all the way over to where it had crossed over into the oncoming traffic lane, and it came back over into his lane . . .” without using any turn signal. Officer Kreher observed this a second time and activated his blue lights to pull the truck over. The driver “immediately pulled over to the side of the road,” but as Officer Kreher was radioing his location and the license number of the stopped vehicle, the truck took off again. Officer Kreher followed, with lights activated and siren on. The truck again pulled over but as Officer Kreher approached the “driver’s side door, the truck took off again.” Officer Kreher ran back to his patrol car and continued pursuit another 200 yards when the truck “pulled in left into a driveway on Melrose.” Although the driver shut off the engine and turned off all the lights, Officer Kreher was behind him the entire time and never lost sight. Defendant argued with the officer, saying he was in his driveway and did not do anything wrong, at which point, Officer Kreher “started to smell . . . [a] really strong odor of alcohol. . . .” Defendant was very loud, almost boisterous; his speech was slurred; and his eyes were bloodshot. When defendant exited his truck, he was “unsteady on his feet[,] holding onto the truck. . . .” After defendant refused to submit to field sobriety tests, Officer Kreher explained that defendant was under arrest for driving under the influence. Defendant had no proof of insurance in his wallet and insisted it was somewhere in the truck. But Officer Kreher was unable to locate any proof of insurance in the glove box, on the floorboard, or on the seat. At the jail, defendant was unable to walk steadily on his own more than a couple of steps. Based on his observations of defendant, coupled with his training and experience, it was Officer Kreher’s opinion that defendant was “[absolutely unsafe to drive that motor vehicle. He was a danger to . . . the citizens of Atlanta the way he was driving,” even though there was no oncoming traffic the whole time defendant was on Melrose.

Although defendant denied weaving and produced proof that he was insured on May 17, 1995, the vehicle identification number for the insured vehicle did not match the identification number of the vehicle defendant was driving at the time. The jury found defendant guilty as charged on each count. The trial court merged the weaving count at sentencing. From the judgments of conviction and sentences entered by the trial court on the jury’s verdicts, defendant brings this direct appeal. In four related enumerations, defendant urges the evidence is insufficient to support any of the four counts. Held:

1. “A person shall not drive . . . any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” OCGA § 40-6-391 (a) (1). In this case, evidence that defendant and his vehicle smelled of alcohol, that defendant’s speech was slurred, his eyes were bloodshot, and his stance was unsteady, coupled with the officer’s opinion of defendant’s impaired driving abilities, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that beyond a reasonable doubt defendant was under the influence of alcohol to the extent it was less safe for him to drive in violation of OCGA § 40-6-391 (a) (1), as alleged in the uniform traffic citation. Williams v. State, 190 Ga. App. 361 (1) (378 SE2d 886).

2. Defendant complains there is no evidence of his intent to elude Officer Kreher.

It is unlawful for any driver “willfully to fail or refuse to bring his . . . vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle,” when given a single visual or an audible sign to bring the vehicle to a stop. OCGA § 40-6-395 (a); Reynolds v. State, 209 Ga. App. 628, 629-630 (1) (434 SE2d 166).

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Whether an act is committed with the requisite criminal intent is a question for the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act. Cornelius v. State, 213 Ga. App. 766, 767-768 (1) (445 SE2d 800); OCGA § 16-2-6. Here, Officer Kreher’s testimony that defendant twice pulled over in response to the flashing blue lights but then drove off again, seeking refuge in his mother’s driveway, is sufficient to authorize the jury’s verdict that defendant wilfully fled and attempted to elude a police officer after receiving the visual signal to stop. Ray v. State, 233 Ga. App. 162, 163-164 (1) (503 SE2d 391).

Decided April 9,1999

Harvey T. Siegel, for appellant.

Charlie Davidson, pro se.

Joseph J. Drolet, Solicitor, Katherine Diamandis, Assistant Solicitor, for appellee.

3. Defendant’s challenge to the sufficiency of the evidence regarding the offense of weaving ostensibly in violation of OCGA § 40-6-48 (1) is rendered moot by the trial court’s merging of that count for sentencing. Edmonson v. State, 212 Ga. App. 449, 451 (3) (442 SE2d 300).

4. “The owner or operator of a motor vehicle shall keep proof or evidence of required minimum insurance coverage in the vehicle at all times during the operation of the vehicle.” OCGA § 40-6-10 (a) (1). The circumstance that Officer Kreher was unable to find any proof of insurance in the glove compartment, on the seat, or on the floor, coupled with defendant’s reliance on proof of insurance for a different vehicle, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that beyond a reasonable doubt defendant knowingly operated the vehicle in question without keeping proper proof of minimum insurance coverage therein. Nunn v. State, 224 Ga. App. 312, 313 (1) (b) (480 SE2d 614); Branch v. State, 182 Ga. App. 818-819 (1) (357 SE2d 136).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0324.
    SMITH v. THE STATE.
    (516 SE2d 92)
   Judge Harold R. Banke.

Gary McDonald Smith was convicted of aggravated assault. On appeal, Smith asserts six errors.

The evidence, when considered in a light most favorable to the verdict, showed that as the victim, Nicholas Coleman, was sitting in his vehicle conversing with a female friend, Smith suddenly drove up. Smith, who was romantically involved with the same woman, had previously instructed Coleman not to continue seeing her. Smith jumped out of his truck to confront Coleman. After threatening to kill him, Smith pulled out a knife and slashed Coleman in the left side of his neck, wrist, and leg as Coleman remained seated in his car. At this point, Coleman escaped out the passenger side door and managed to uproot a mailbox on a pole. Holding the mailbox, Coleman chased Smith up a hill striking him with it as Smith continued to brandish a knife. While Coleman was fending off further attack, the police arrived and arrested Smith. Police recovered four knives from Smith, including a knife with an open, exposed three-inch blade wet with blood.

At trial, Coleman testified that other than some family violence disputes, he had “a clean record on anything not harming anybody.” During cross-examination, Coleman described the circumstances leading to his conviction for the simple battery of his former fiancé and the details of two arrests. He admitted to receiving a probated sentence and being required to attend family counseling.

In its case-in-chief, the State introduced similar transaction evidence of another incident to show Smith’s state of mind, course of conduct, and common scheme. In that incident, Smith was charged with terroristic threats after threatening to slash the tires and kill Walter Ford, who had attempted to date the same woman. Police found two pocketknives on Smith.

According to Smith’s version of events, Coleman had been the aggressor and lunged at him with the mailbox. Smith testified that after being struck by the mailbox and knocked to the ground, he pulled out a knife, apparently cutting Coleman while defending himself. Smith presented evidence of Coleman’s prior acts of domestic violence against Coleman’s fiancé who testified that Coleman had slapped, shoved, pushed, and knocked her down on several occasions.

After Smith testified that he did not care who his former girlfriend dated and that he had never had a confrontation with Walter Ford, the State impeached Smith by recalling Ford, its earlier similar transaction witness, to describe two additional occurrences. On one occasion, when Ford attempted to visit the same woman, Smith had retrieved a knife from the kitchen and followed Ford outside. Before he could drive off, Smith hurled a shovel at his truck. During another incident, after Smith discovered Ford was visiting at the woman’s home, Smith made numerous threats, including one to blow up Ford’s truck. Held:

1. Smith contends that the trial court erred by precluding him from questioning a prospective juror about that juror’s prior service involving the presiding judge in the role of prosecuting attorney. When defense counsel attempted to ask the prospective juror, “[w]ould your opportunities of seeing Judge Jones before he ascended to the bench working as a prosecutor in any way influence your perception of the facts in this case?” the trial court deemed the question improper and irrelevant. After the court foreclosed Smith from pursuing this line of questioning, Smith did not object to the court’s ruling and later exercised a peremptory strike to excuse the juror. Generally, a failure to object forecloses appellate review of the trial court’s decision. Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994) (issues and grounds for objection must be raised and ruled upon in the trial court); Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981). Even assuming arguendo that the issue was not waived, in light of the overwhelming evidence of Smith’s guilt, we find it highly probable that the limitation on voir dire was harmless. Henderson v. State, 251 Ga. 398, 403 (2) (306 SE2d 645) (1983).

2. Smith claims that the trial court erred by precluding him from proving Coleman’s violent nature and from impeaching Coleman’s claim of peaceableness through evidence of his assault of a pregnant woman in August 1990.

Prior acts of violence committed by a victim may be admissible when certain preconditions are satisfied. Chandler v. State, 261 Ga. 402, 407-408 (3) (c) (405 SE2d 669) (1991). However, evidence of acts where the victim is not the aggressor are generally irrelevant and inadmissible. See Campbell v. State, 269 Ga. 186, 187 (4) (496 SE2d 724) (1998); Wells v. State, 261 Ga. 282, 283-284 (4) (b) (404 SE2d 106) (1991). Coleman admitted that during the incident at issue, he had hit his fiancé. He testified that during this fight both he and she had sustained injuries, including his broken thumb when she struck him with a bottle. But after Coleman’s ex-fiancé testified that she had physically assaulted Coleman before he struck her, the trial court refused to permit Coleman’s ex-fiancé to testify further about the August incident.

Notwithstanding this ruling, this witness was allowed to testify about two occasions where Coleman had been the aggressor and had struck her. Therefore, the excluded evidence would have been, at most, cumulative and was unlikely to have altered the verdict. Marks v. State, 210 Ga. App. 281, 283 (1) (435 SE2d 703) (1993); see Daniel v. State, 224 Ga. App. 673, 675 (3) (482 SE2d 409) (1997).

3. Smith contends that the trial court erred by precluding him from proving Coleman’s nature for violence and impeaching his claim for peaceableness through evidence that Coleman committed an assault on June 24, 1996.

Coleman admitted to kicking and striking his fiancé during a June 1996 argument. However, Coleman denied that two separate incidents of domestic violence occurred in June 1996, testifying that he could recall only one. He claimed that his conviction stemmed from an incident on June 21 not June 24, notwithstanding the latter date on the certified copy of his conviction.

When the State objected to any testimony by a defense witness, the responding officer who interviewed Coleman’s fiancé after the altercation on Juñe 24, Smith’s counsel stated that the testimony was being offered as additional evidence of the circumstances of the battery conviction including the fiancé’s physical injuries. Finding that Smith was attempting to introduce the evidence for an impermissible purpose, the trial court excluded it.

Although on appeal Smith urges that he wanted to use this witness to impeach Coleman, he did not make this claim at trial. We cannot consider a different argument asserted for the first time on appeal. Dukes v. State, 224 Ga. App. 305, 307 (2) (480 SE2d 340) (1997). Nor did Smith submit an offer of proof. Inasmuch as Coleman admitted to inflicting harm upon his fiancé and a certified copy of his battery conviction was entered into evidence, this testimony would likely have been merely cumulative and was unlikely to have altered the verdict. Marks, 210 Ga. App. at 283 (1).

4. Smith claims that the court erroneously permitted the State to introduce similar transaction evidence for impeachment purposes which was inadmissible as either direct or rebuttal evidence. We disagree. After Smith testified that he did not care who his former girlfriend dated and never confronted Ford, the State was entitled to impeach Smith with evidence of his untruthfulness. OCGA § 24-9-82. Laney v. State, 159 Ga. App. 609, 612 (9) (284 SE2d 114) (1981).

5. Smith asserts that the trial court erred in preventing him from rebutting the State’s allegation that he had slashed the tires belonging to the similar transaction witness.

When the State asked Smith’s former girlfriend whether Smith had threatened to cut the tires on Ford’s vehicle, she answered unresponsively, ‘Walter [Ford] really don’t know [who] cut his tires. He can’t say Gary [Smith] cut his tires.” She added, “[m]aybe his wife cut them or somebody.” Because the witness lacked knowledge of the identity of the tire slasher, her unresponsive comment was inadmissible speculation. White v. State, 268 Ga. 28, 31 (3) (486 SE2d 338) (1997). The court properly refused to permit the injection of additional speculation. Id.

6. Smith asserts that the court erred in instructing the jury that it could consider the similar transaction evidence as proof of a common scheme or plan.

The court “strictly limited” the jury’s consideration of the similar transaction evidence “as [to show] the state of mind, course of conduct, common scheme of the Defendant. . . .” See Watson v. State, 230 Ga. App. 79, 82 (5) (495 SE2d 305) (1998). Based on the testimony, the jurors may have discerned a common thread in Smith’s behavior that Smith was prone to jealous feelings about a certain woman and that this jealousy transformed into violent conduct. But Smith argues that his actions did not fit within the definition of “common scheme.” See Clemson v. State, 239 Ga. 357, 359 (1) (236 SE2d 663) (1977). Pretermitting whether the jurors who were presumably unschooled in legal nuances decided that the similar incident constituted a “common scheme,” or “course of conduct,” or evidenced Smith’s “state of mind,” in light of the overwhelming evidence of Smith’s guilt, we find no error. Harris v. State, 222 Ga. App. 52, 56 (2) (c) (473 SE2d 232) (1996); see Jordan v. State, 230 Ga. App. 560, 561 (497 SE2d 48) (1998).

Decided April 9,1999

Colin A. Fieman, for appellant.

Harry N. Gordon, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.

       During a hearing where defense counsel proffered his reasons for having struck this juror, he expressed concerns about the juror’s partiality and about the juror’s acquaintance with a law student assisting the defense.


author: Blackburn, Presiding Judge.

text:
    A99A0668.
    FLOYD v. THE STATE.
    (516 SE2d 96)
   Blackburn, Presiding Judge.

Booker Floyd appeals the trial court’s denial of his motion in limine and motion to suppress evidence obtained in a search of a motel room. Floyd was convicted of two counts of violating the Georgia Controlled Substances Act, following a bench trial. We affirm because Floyd had no standing to object to the search of a motel room in which he was merely visiting and had no expectation of privacy.

In reviewing a trial court’s denial of a motion to suppress, we are required to accept such court’s ruling on disputed facts unless it is clearly erroneous!, and] we must defer to the trial court’s judgment on the credibility of witnesses. Furthermore, the evidence is to be construed most favorably to the upholding of the findings and judgment made.

(Citation and punctuation omitted.) Cates v. State, 232 Ga. App. 262, 263 (501 SE2d 262) (1998).

Construing the evidence most favorably to the judgment of the trial court, Officer Morrison and Officer Short of the DeKalb County Police Department went to the Super 8 Motel around 10:00 p.m. to investigate drug activity there. As they pulled into the parking lot, they saw Floyd standing in the open door of room 109. When Floyd saw the officers, he shut the door and peered through the window of the motel room. Officer Morrison knocked on the door of room 109, and, after a minute, Floyd’s brother answered the door. When the door was opened, the officers smelled marijuana. Floyd was coming out of the bathroom with an item in his hand which he tossed back into the bathroom. Officer Morrison crossed the threshold and went into the bathroom where he found a cigarette pack and some cocaine. The officers also found drug paraphernalia in the room.

Neither Floyd nor his brother was a registered guest at the motel. The room had been rented by a woman, but she was not in the room at the time. Floyd testified that the room was not his or his brother’s, and he was there just to visit.

Floyd contends that the trial court erred by finding that he had no expectation of privacy in the motel room and, therefore, did not have standing to challenge the search. The Fourth Amendment right against unreasonable search and seizure is a personal right, so a defendant may challenge the legality of a search only where his or her own rights were violated. Robinson v. State, 226 Ga. App. 406, 408 (2) (486 SE2d 667) (1997); see Rakas v. Illinois, 439 U. S. 128, 132-133 (99 SC 421, 58 LE2d 387) (1978). The Fourth Amendment protects a defendant who can show that he or she had an expectation of privacy in the area searched which society recognizes as reasonable. Minnesota v. Olson, 495 U. S. 91 (110 SC 1684, 109 LE2d 85) (1990). Thus, the trial court properly focused on whether Floyd had a reasonable expectation of privacy in the motel room searched. See Robinson, supra.

The trial court found that Floyd had no reasonable expectation of privacy in the motel room because he was a transient visitor to the room. We agree. A defendant does not have a reasonable expectation of privacy in the premises of another where the defendant is a transient visitor who has no ownership or possessory interest. Thus, in Moody v. State, 232 Ga. App. 499, 504 (4) (a) (502 SE2d 323) (1998), the defendant who was briefly visiting an acquaintance’s apartment had no expectation of privacy and could not challenge the legality of a search of the apartment. Likewise, in Crisp v. State, 195 Ga. App. 786 (1) (395 SE2d 47) (1990), the defendant did not have standing to challenge the search of two different hotel rooms where he was not a registered guest and just happened to be present when the searches were conducted. See Cherry v. State, 230 Ga. App. 443, 445 (2) (496 SE2d 764) (1998) (visitor to restaurant had no standing to object to search of restaurant); Duque v. State, 228 Ga. App. 391, 392 (1) (491 SE2d 841) (1997) (visitor to apartment had no reasonable expectation of privacy in apartment searched); Delgado v. State, 192 Ga. App. 356 (384 SE2d 680) (1989) (visitor to hotel room who knocked on door while search was being conducted lacked standing to object to search of room).

Decided April 9,1999.

Corinne M. Mull, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Noah H. Pines, Assistant District Attorneys, for appellee.

The evidence shows that Floyd lacked a reasonable expectation of privacy in the motel room. Floyd testified that he had not rented the motel room and that it belonged to another person. He was not staying in the room, and he had only been visiting for a few minutes. He had no right of possession or interest in the motel room.

Floyd argues that one has a legitimate expectation of privacy as a guest in another’s home, citing to State v. Brown, 212 Ga. App. 800 (442 SE2d 818) (1994). However, the facts of Brown are distinguishable. The defendant in Brown was more than a transient visitor. In that case, the defendant was a regular social guest at the apartment which was searched. He had left possessions there and had spent the night on various occasions. At the time of the search, he was visiting with the hostess and her friends. “This sort of visiting is ‘a longstanding social custom that serves functions recognized as valuable by society.’ Minnesota v. Olson, supra at 98.” Id. at 803. See Minnesota v. Olson, supra (an overnight houseguest had a reasonable expectation of privacy in the hostess’ home); Jones v. United States, 362 U. S. 257 (80 SC 725, 4 LE2d 697) (1960) (an overnight guest in an apartment had a reasonable expectation of privacy in the apartment). The trial court did not err in finding that Floyd, as a transient visitor to the room, had no expectation of privacy and therefore lacked standing to challenge the search of the premises.

Judgment affirmed.

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

       The trial court held an evidentiary hearing on the motion to suppress. At the bench trial the parties stipulated to the evidence heard at the motion to suppress.

       It was disputed whether Floyd’s brother gave consent to Officer Morrison to search the room. The trial court did not reach this issue, so it is not an issue on appeal.


text:
    A99A0080, A99A0081.
    GRAVES v. BROWN et al. (two cases).
    (516 SE2d 324)
   Blackburn, Presiding Judge.

Thomas M. Graves appeals from the superior court’s grant of summary judgment to Raymond and Shirley Brown and its finding that Graves converted his daughters’ federal survivor annuity benefits to his own use. Graves contends that: (1) the court had no subject matter jurisdiction to determine the appropriate use of the federal funds; (2) the court erred by finding that he had any duty to use the federal funds for his daughters’ benefit; and (3) the court erred in determining that he converted the funds. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Graves had two daughters, S. G. and K. G., with Linda Ramsey, who died on March 27, 1994. Graves and Ramsey had been divorced for approximately ten years at the time of her death, and Ramsey had custody of the children. Because Ramsey was a federal employee, her daughters were entitled to certain survivorship benefits, including survivorship annuity payments under the Civil Service Retirement System (CSRS) and insurance benefits pursuant to a Federal Employees’ Group Life Insurance (FEGLI) policy.

After Ramsey’s death, Graves took custody of S. G. and K. G. In May 1994, Graves applied to the CSRS to receive the survivorship annuity payments for his daughters. In November 1994, the CSRS began paying annuity installments to Graves for the benefit of his daughters. Graves deposited all money received into his own accounts and used some of it for his own purposes. Graves kept no accounting reflecting the use of these funds.

In addition to the CSRS annuity payments, S. G. and K. G. were each entitled to receive $24,000 plus interest from their mother’s FEGLI life insurance policy. In order to collect this amount, Graves petitioned the Probate Court of Hall County to be appointed guardian of the property for his daughters, and his petition was granted on August 9, 1995. Subsequently, Graves collected the insurance proceeds, placed them in guardianship accounts, and filed petitions to encroach upon the corpus of each of his daughters’ accounts in the amounts of $2,869 to purchase orthodontic work for K. G. and $12,500 to send S. G. to a youth rehabilitation facility. When Graves requested these encroachments, he did not inform the probate court that he was receiving federal annuity payments, and he represented that he had no other means to pay for the expenses absent an encroachment. On this basis, the probate court granted Graves’ encroachment requests.

On June 3, 1997, Graves filed a petition to be dismissed from his appointed position as guardian of the property for his daughters. On that same day, Kaymond and Shirley Brown, S. G. and K. G.’s maternal grandparents, objected to Graves’ dismissal, claiming that Graves had mishandled his daughters’ property. After conducting a hearing on the matter, the probate court denied Graves’ petition to be dismissed and found that he failed to keep accurate records, failed to file annual returns, commingled his daughters’ funds with his own, and made misrepresentations to the court. Graves appealed this finding to the superior court, and the Browns moved for summary judgment. The superior court granted this motion, affirmed the findings of the probate court, and directed Graves to reimburse $20,438 to S. G. and $13,030 to K. G. In each case, the reimbursement amount was comprised of the improper encroachments Graves received from his daughters’ life insurance benefits in addition to the amount of survivorship annuity payments he received on their behalf.

In this appeal, Graves contests only the court’s findings with regard to the survivorship annuity payments, not the encroachments made from insurance proceeds. Therefore, we consider only whether the superior court properly ordered Graves to reimburse his daughters for such annuity payments, and the lower court’s determination that the encroachments on the FEGLI proceeds must be returned stands.

1. In his first enumeration, Graves contends that the superior court usurped federal jurisdiction by directing him to reimburse his daughters for funds he claims were payable directly from the federal government to him for his personal use. Even if we were to accept Graves’ contention that the annuity payments were for his personal use and that he had no obligation to use them for the benefit of his daughters, which we do not, Graves has not pointed this Court to any appropriate authority showing “exclusive federal jurisdiction by affirmative congressional divestment of state jurisdiction.” Garrett v. Ga. Higher Ed. Assistance Corp., 217 Ga. App. 415, 416 (3) (457 SE2d 677) (1995). Moreover, as discussed below, Graves was required to use the federal funds for his daughters’ benefit, and, as such, the order of the superior court neither usurps nor contradicts the applicable federal laws and regulations.

2. In his second enumeration of error, Graves contends that the superior court erred by overturning the CSRS’s decision to pay the annuity to Graves without requiring that he be appointed guardian. Graves argues that the mere fact that the checks were sent to him personally establishes that the federal government determined that such funds could be applied to his own uses, free of any fiduciary or parental obligations and without any accounting. He further argues that the superior court’s order fails to recognize the higher authority of federal regulations.

The internal handbook of the CSRS indicates that a child’s survivor annuity benefits are paid to: “1. The parent or other person who has care and custody of the child, if there is no court-appointed guardian; 2. The guardian, if one has been appointed by the court; or 3. A child over 18, upon request by the child or other payee on the claim.” Based on these provisions, Graves argues that, because the federal government decided to pay the annuity to him without requiring the establishment of a guardianship, Georgia courts cannot now impose any fiduciary duty on him to account for such funds or enforce their use for the benefit of his daughters. This argument, however, is myopic, as it fails to recognize the unambiguous intent behind the CSRS annuity payments in this case — to provide benefits for S. G. and K. G.

The evidence makes it clear that the federal annuity payments in this case were not for Graves’ personal use, but for the benefit of his daughters. The survivor annuity statement indicates unequivocally that the payments are for the children of the deceased employee, and the payments are calculated specifically upon the number of surviving children. The tax form issued by the federal government with regard to the payments, Form 1099R, indicates that such payments were made to “THOMAS M GRAVES FOR 2 CHILDREN” (Emphasis supplied.) Moreover, payment of the benefits is contingent on the status of the child. For example, if the child dies or marries, the benefits cease. As the annuity payments are intended to support the child, they are terminated when the need for such support does or should end. Thus, at every turn, the annuity payments in issue concern S. G. and K. G., not their father.

While it is true that CSRS annuity payments may also be available to the spouse of a deceased federal employee, Graves was not married to Ramsey at the time of her death, and payments are not available to ex-spouses. If we were to interpret payment of the funds to Graves in this case as he wishes, we would eviscerate the CSRS regulations by ignoring this patent exclusion, and Graves would be allowed to circumvent the federal scheme by taking benefits intended for his daughters. Therefore, Graves’ arguments are misguided, and the superior court’s order requiring him to reimburse his daughters follows the plain intent of the applicable federal regulations.

Graves also argues that the superior court overreached its authority by requiring him to account for survivorship annuity payments made before he became the guardian of his daughters’ property. This argument also lacks merit.

OCGA § 29-2-24 requires that a fiduciary determine and marshal the assets of a ward and make such inventory to the probate court in the same manner as an administrator within four months of qualifying. See Ga. L. 1996, p. 504, § 4; OCGA § 53-7-75. ... It is a well-settled principle of law, both in this State and other States, that it is the duty of a guardian to take possession and preserve for the benefit of [his] ward all property, real and personal, within [his] knowledge, that belongs to [his] ward. At common law the guardian is required to take possession of [his] ward’s property, and is therefore liable not only for what actually comes into [his] hands, but for such property as [he] might have taken possession of by the exercise of diligence, and without any wilful default on [his] part. The guardian should charge [himselfl for all the estate of the ward that came to [his] hands at any time, whether inventoried or not, in so far as [he] has not already accounted for the same; and is liable for all estate of [his] ward, that [he] might have collected or reduced to possession by the exercise of proper diligence and prudence.

(Punctuation omitted.) Head v. Head, 234 Ga. App. 469, 474 (1) (507 SE2d 214) (1998). Thus, in general, a fiduciary has a duty to account for his ward’s assets received prior to the imposition of a guardianship in the initial inventory of the estate.

3. In his third enumeration of error, Graves contends that the superior court erred in finding that he converted the annuity payments of his daughters to his own use.

A person commits the offense of theft by conversion when, having lawfully obtained funds ... of another . . . under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds ... to his own use in violation of the agreement or legal obligation.

OCGA § 16-8-4 (a).

Graves argues that he cannot be guilty of knowingly converting funds because he relied on the advice of counsel that the annuity payments were his to use freely. However, taking Graves at his word, he made a mistake of law, not a mistake of fact, and his ignorance of the law would not excuse his actions. See Turner v. State, 210 Ga. App. 303, 304 (2) (436 SE2d 229) (1993). Moreover, Graves had numerous sources of information which alerted him to the fact that the annuity payments were for the benefit of his daughters, not himself.

Decided April 12,1999.

Troy R. Millikan, for appellant.

Carey, Jarrard & Walker, Theodore W Robinson, for appellees.

Finally, Graves is appealing an order requiring him to account for funds as a guardian, not as a defendant in a criminal proceeding.

Judgments affirmed.

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


author: McMURRAY, Presiding Judge.

text:
    A99A0236.
    GOSS v. THE STATE.
    (516 SE2d 100)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of theft by taking (motor vehicle), theft by receiving (motor vehicle), and affixing a license plate with the intent to conceal the identity of the vehicle. He appeals directly from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts. In his sole enumeration of error, defendant contends the trial court erroneously refused to strike a juror for cause, thereby making defendant exercise a peremptory challenge.

The trial court began voir dire, propounding the statutory questions mandated by OCGA § 15-12-164 (a) (1) through (3). Juror 76, Geraldine Smith, responded affirmatively when defense counsel inquired whether any prospective juror was “opposed to the use of alcohol under any circumstances.” When queried by the State’s attorney as to what she did for the United States government, Juror 76 replied: “I cannot talk about my job, I’m sorry, but I’m under oath.” She confirmed she had worked for the federal government for 41 years, and that she had once served on a civil jury. During individual voir dire of Juror 76, defense counsel posed five questions, eliciting that the juror had worked out of Fort Meade, “between Washington, D.C. and Baltimore,” in Prince Georges County, Maryland; then moved to Georgia to be near family members; and that Juror 76 “don’t mind snow.”

Defense counsel subsequently challenged Juror 76 for cause, arguing that, because Juror 76 would not talk about her former position, the defense could not question her “about what she does or anything about her job,” depriving defendant of his right to a thorough and complete voir dire. For all defendant knew, this juror could have been a spy or with the military police. The trial court denied the challenge for cause, directing defendant to “deal with it on a peremptory basis.” Held:

In all criminal cases both the [S]tate and the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge. The examination shall be conducted ... in criminal cases after the usual voir dire questions have been put by the court. In the examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter ... or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.

OCGA § 15-12-133.

But in order to obtain a new trial because counsel lacked an item of information which objectively she should have received from a juror on voir dire,

a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. [Cit.]

Isaacs v. State, 259 Ga. 717, 741 (44) (e) (386 SE2d 316). In the case sub judice, it is not farfetched to infer that, a prospective juror, under oath not to reveal specifics of her 41-year career with the federal government at Fort Meade, Maryland, was formerly employed in some capacity for the National Security Agency. But the truth of that inference, or that she might have worked for the military police, would not be a valid basis to disqualify Juror 76 for cause under any of the grounds enumerated by OCGA §§ 15-12-135 (a) (consanguinity); 15-12-163 (b) (statutory disqualifications, propter defectum); or 15-12-164 (a) (1) through (3) (fixed opinion or bias, disqualifications propter affectum). The trial court did not err in refusing to strike Juror 76 for cause. Hayes v. State, 261 Ga. 439, 441 (2) (405 SE2d 660).

Decided April 12,1999.

Summer & Summer, Elizabeth B. Reisman, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgments affirmed.

Andrews and Ruffin, JJ., concur.


text:
    A99A0328.
    A99A0465.
    ANDERSON v. THE STATE. HOLLINS v. THE STATE.
    (516 SE2d 315)
   Judge Harold R. Banke.

With guns in hand, Tracy Hollins and Anthony Anderson encouraged a friend holding his own gun to shoot a victim, which he did. Hollins was convicted of possession of a firearm by a first offender probationer (OCGA § 16-11-131), and both he and Anderson were convicted of aggravated assault (OCGA § 16-5-21) and possession of a firearm during commission of certain crimes (OCGA § 16-11-106). In Case No. A99A0328, Anderson contends (i) the court erred in charging the jury they could infer criminal intent from his conduct before, during, and after commission of the assault, and (ii) no evidence showed he possessed a firearm. In Case No. A99A0465, Hollins claims that conflicts between his stature and the pre-trial physical descriptions of him given by the victim and an eyewitness precluded a finding of guilt beyond reasonable doubt.

Case No. A99A0328

1. Anderson claims the following jury charge was improper and incomplete: “Mere presence at the scene is not sufficient to convict one of being a party to the crime, but criminal intent may be inferred from conduct before, during and after the commission of the crime.” Anderson urges that the instruction must be qualified with the statement that only that conduct raising an inference of guilt may be considered to infer criminal intent. This statement is unnecessary verbiage, for it is inherent within the instruction. Moreover, the jury charge viewed as a whole expressly included this concept. See Dasher v. State, 229 Ga. App. 41, 44 (3) (494 SE2d 192) (1997).

When Anderson’s counsel raised this argument in a previous case, the Supreme Court soundly rejected it and concluded that “[t]he instruction is a correct statement of the law. Sands v. State, 262 Ga. 367, 368 (2) (418 SE2d 55) (1992).” Hayes v. State, 268 Ga. 809, 814 (8) (493 SE2d 169) (1997); see also Johnson v. State, 269 Ga. 632, 634 (501 SE2d 815) (1998). Repeated raising of rejected arguments may lead to sanctions.

2. Anderson’s claim that no evidence showed he possessed a firearm during the commission of the aggravated assault is baseless. Not only did an eyewitness see him brandish a gun during the crime, but bis encouragement of the aggravated assault made him a party to not only that crime but also to his friend’s possession of a gun during the assault. See OCGA § 16-2-20. “Where a party has possessed a firearm during the commission of a felony, an accomplice who is concerned in the commission of the crime under OCGA § 16-2-20 is likewise guilty of both offenses. [Cit.]” Mitchell v. State, 225 Ga. App. 26, 28 (1) (482 SE2d 419) (1997); see Brooks v. State, 208 Ga. App. 869, 870 (432 SE2d 612) (1993) (person who encourages murder by gun is also guilty of possession of a firearm during the commission of a felony).

Case No. A99A0465

3. Hollins challenges the sufficiency of the evidence, arguing that the victim and eyewitness both gave pre-trial descriptions of him that differed substantially from his actual physique. The standard of review set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) is 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.

The victim and eyewitness were familiar with Hollins prior to the incident and identified him in the courtroom at trial. They testified unequivocally that Hollins was present at the crime and verbally encouraged his friend to shoot the victim. Hollins argues their identification conflicted with their pre-trial descriptions of him and precluded a finding of guilt beyond reasonable doubt. (Citations omitted.) Simpson v. State, 193 Ga. App. 439, 440-441 (2) (388 SE2d 39) (1989). The evidence sustained the verdict.

The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, or others, for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.

Decided April 12,1999.

Stanley C. House, for appellant (case no. A99A0328).

Charles L. Wilkinson III, for appellant (case no. A99A0465).

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgments affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A0427.
    BOWEN v. THE STATE.
    (516 SE2d 311)
   Johnson, Chief Judge.

A jury found Arnold Bowen guilty of five traffic violations: driving his commercial truck in other than the two right lanes of the highway; failing to adequately secure a load; driving a truck with no working brake lights; and operating both a truck and a trailer without current license plates. OCGA §§ 40-6-52; 40-6-254; 40-8-26; 40-2-8. He appeals from the judgment of conviction entered on the verdict and the denial of his motion for new trial.

1. Bowen contends the trial court erred in instructing the jury that it could consider a videotape of the traffic stop when the videotape was not introduced into evidence. This enumeration presents no grounds for reversal.

The trial transcript shows that the videotape of the traffic stop was shown to the jury as the police officer who made the stop described events depicted on the tape. Bowen did not object to the showing of the tape or the contemporaneous testimony. The state neglected to offer the tape into evidence.

After the jury started deliberating, it asked the trial court if it could view the videotape again. Bowen objected to the viewing, arguing that the videotape had not been admitted into evidence. The trial court sustained the objection, disallowing a second viewing. The jury then asked if the “previous viewing of the tape [is] admissible as evidence.” The trial court replied: “The answer is yes. They’ve seen it. Do you want to discuss it?” Bowen responded: “If it’s not too late to object to it.” The trial court said: “It is too late to object to it. They’ve seen it.” Bowen replied: “Okay.” When the trial court asked if anyone objected to the jurors being told that they could consider their previous viewing as evidence, Bowen did not voice any objection. By failing to object or reserve his right to later make exception in response to the trial court’s inquiry regarding the instruction, Bowen waived his right to seek appellate review of the instruction. See Woods v. State, 224 Ga. App. 52, 57 (9) (479 SE2d 414) (1996). Moreover, even if the trial court erred in instructing the jury that it could consider its earlier viewing of the tape as evidence, the evidence was cumulative, since a narrative of what was depicted on the tape was presented through the testimony of the arresting officer without objection. Any error was harmless. See Bowe v. State, 201 Ga. App. 127, 128-129 (2) (410 SE2d 765) (1991); see generally Kelly v. State, 197 Ga. App. 811, 814 (3) (399 SE2d 568) (1990).

2. Bowen claims the trial court erred in allowing the state to show the videotape at trial when the state did not list the tape in its response to his discovery motion. In the argument section of his brief, he also argues that he should have been given a copy of the original tape rather than a copy of a copy of the original.

Bowen relies upon OCGA § 17-16-4 as authority for his argument that the state was required to notify him of its intent to use the tape at trial. That statute, however, applies to felony cases. See OCGA § 17-16-2 (a), (d). In misdemeanor cases, like the case before us, the state is obligated to comply only with the discovery requirements set forth in OCGA §§ 17-16-20 through 17-16-23. Bowen has not shown that the state failed to comply with those requirements. Moreover, the state showed Bowen the videotape and gave him a copy of it 12 days before trial. We will not grant a new trial or reverse a case for error unless it is shown to be harmful. Johnson v. State, 234 Ga. App. 58, 60 (2) (a) (506 SE2d 212) (1998). Bowen has not shown harm.

Bowen bases his argument that he should have been given a copy from the original videotape rather than a copy from a copy of the tape on OCGA § 24-5-21. However, the statute cited applies to writings, not videotapes. Collins v. State, 232 Ga. App. 651, 655 (4) (502 SE2d 498) (1998). Bowen has shown neither error nor harm.

3. Bowen contends that his conviction for driving with no brake lights cannot stand because there was no proof that he intended to drive with no lights. In our view, the act of driving with no brake lights comes within that class of strict criminal liability motor vehicle safety statutes which can be violated and enforced without a showing of guilty intent on the part of the violator. See Queen v. State, 189 Ga. App. 161,163 (1) (c) (375 SE2d 287) (1988); Semones v. State, 200 Ga. App. 3 (406 SE2d 483) (1991) (physical precedent only).

4. We do not agree with Bowen’s complaint that the punishment imposed by the trial court for driving with no brake lights is excessive. The trial court fined Bowen $1,000 for the brake light violation. At the hearing on the motion for new trial, the trial court explained that Bowen’s truck, which towed a bulldozer and had no brake lights, presented a danger to other motorists. A misdemeanor traffic offense is punishable by as much as a $1,000 fine and 12 months in confinement. OCGA §§ 17-10-3 (a) (1); 40-13-26. The trial court’s sentence did not exceed the limits set out in the misdemeanor sentencing statute. There was no abuse of discretion. See Williams v. State, 221 Ga. App. 291, 294 (2) (b) (470 SE2d 922) (1996).

Decided April 12,1999.

Arnold Bowen, pro se.

Gwendolyn R. Keyes, Solicitor, Shannon P. Lanzone, Assistant Solicitor, for appellee.

Judgment affirmed.

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


text:
    A99A0535.
    COLTS v. THE STATE.
    (516 SE2d 313)
   Judge Harold R. Banke.

Citing insufficiency of evidence, Jerrod Colts appeals his convictions for robbery (OCGA § 16-8-40) and aggravated battery (OCGA § 16-5-24). The standard of review set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) is 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. “ 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. [Cits.]’ [Cit.]” Hight v. State, 221 Ga. App. 574-575 (1) (472 SE2d 113) (1996).

The victim and another eyewitness both testified that Colts violently pushed the victim into a deep ditch, fracturing her arm in three places. Seven months passed before the victim could use her arm again, and at trial eleven months after the incident she still had not regained feeling in three fingers. In addition to both witnesses identifying Colts in court, the victim, who had known 19-year-old Colts since his childhood, identified him by name to police immediately after the incident and that same day unhesitatingly picked Colts out of a photo lineup of similar looking individuals.

The victim further testified that while she was disabled in the ditch, Colts forcibly took a gold necklace and cash from her. The other eyewitness testified that Colts later admitted to taking cash from the victim. When Colts testified in his own defense, he admitted to knowing facts only the assailant could have known, such as how the fractured arm looked, the amount of money in one of the victim’s hands, and her cries for help.

Decided April 12,1999.

Farless & Newton, William H. Newton III, for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

Colts points to evidence that challenges or weakens the State’s evidence, including his own testimony and the testimony of a friend of Colts that the eyewitness committed the crime, the criminal background of the victim, the self-interest of the eyewitness in exculpating himself from the crimes, inconsistencies between the eyewitness and the victim, and a pre-trial statement by the victim that the eyewitness may have committed the crimes. The victim explained the latter statement arose out of her fear Colts would make good on threats to harm her if she testified against him. All of this evidence was presented to the jury, whose function was to resolve the conflicts in the evidence. Holzendorf v. State, 235 Ga. App. 462, 464 (509 SE2d 737) (1998). Colts’ dissatisfaction with that resolution is not ground for appeal.

Colts maliciously caused bodily harm to the victim by rendering her arm useless. He took her property by force. The evidence sufficed to sustain the convictions. See OCGA §§ 16-5-24; 16-8-40.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A99A0540.
    ALDRIDGE v. TILLMAN.
    (516 SE2d 303)
   Eldridge, Judge.

Appellant, Jay Aldridge, brought a premises liability suit against appellee, Geraldine Tillman, who is his grandmother, for injuries he incurred at her home during an altercation which occurred between him and his stepgrandfather, Gary Tillman. Aldridge alleged that Mrs. Tillman was negligent in failing to keep her premises safe by not warning Aldridge of a known danger on her premises, i.e., that Mr. Tillman was contemplating physical violence toward him. In his sole enumeration of error, Aldridge contends that the trial court erred in granting summary judgment to Mrs. Tillman.

Construed most favorably to Aldridge, the non-movant, the facts of the case show the following: Aldridge was raised by Mr. and Mrs. Tillman. On December 24, 1994, Aldridge, who was 21 years of age and no longer resided in the Tillmans’ home, attended a family gathering at the Tillman home. Aldridge arrived at the Tillman home between noon and 1:00 p.m. The family had an oyster roast and exchanged Christmas gifts. Aldridge testified that Mr. Tillman had been drinking throughout the day and that Mr. Tillman had appeared to be intoxicated since about 5:00 p.m. Aldridge also testified that he was aware Mr. Tillman had a violent personality when he was drinking. Aldridge went on to testify that he could tell when they were outside in the yard that Mr. Tillman was drunk and “wanted to start something.” Although, he knew that Mr. Tillman was drunk and apt to start trouble, Aldridge, along with several other people, remained at the Tillman home to watch a movie after the rest of the family departed.

Between 7:00 p.m. and 8:00 p.m., Aldridge’s roommate arrived to pick up Aldridge and joined the remaining guests in the Tillman living room. Aldridge testified that Mr. Tillman went into the kitchen area and “mumbled” something to Mrs. Tillman, which Aldridge could not understand. Mrs. Tillman told Mr. Tillman that he was drunk and that he should go to bed. Aldridge further testified that, as Mr. Tillman walked by him on Mr. Tillman’s way into the bedroom, Mr. Tillman gave him a “mean” look. Aldridge testified that the next thing he knew, Mr. Tillman was coming up the hall with a knife in his hand.

Aldridge testified that Mrs. Tillman yelled “watch out Jay, he’s got a knife” and attempted to stop Mr. Tillman from injuring him by physically putting her body between Aldridge and Mr. Tillman. Mr. Tillman made a six-inch cut on Jay’s side and punctured his lung with the knife. Mrs. Tillman was also injured in the altercation.

Aldridge testified that, having grown up in the Tillman home, he was aware of previous incidents during which Mr. Tillman had behaved in a violent manner. Aldridge testified, that when he was between ten and twelve years of age, he would go to work with Mr. Tillman. When Aldridge did not know how to perform a task, Mr. Tillman would get “aggravated” and threaten to hit him with a 2" x 4" board or a pipe. Aldridge further testified that, on one occasion when he was four or five years of age, his grandparents were “fussing” as his aunt came to pick up him and his grandmother. As they were leaving in his aunt’s vehicle, Mr. Tillman pulled out a gun and fired it. Aldridge did not know where Mr. Tillman shot the gun while they were leaving. Aldridge also testified that, even though he was not present, he had heard that Mr. Tillman had become angry at some police officers he had summoned to his home and had pulled a gun on the officers. Aldridge went on to testify that Mr. Tillman had hit Mrs. Tillman on one occasion, which resulted in her being treated at the hospital.

Aldridge further testified that when he was young, Mrs. Tillman would try to protect him by sending him to a relative’s house or to bed when Mr. Tillman became violent. Aldridge also testified that once he was old enough to understand that Mr. Tillman often became violent when he was drinking, he would try to stay away from him when he was intoxicated and upset.

By way of affidavit, Mrs. Tillman denied having any prior knowledge that Mr. Tillman planned to hurt Aldridge. Mrs. Tillman averred that she was in the kitchen when Mr. Tillman walked by Aldridge on his way to bed and did not see Mr. Tillman stare at Aldridge in a “mean” way and had no reason to believe Mr. Tillman was going to “start something” with Aldridge. Mrs. Tillman further averred that, when Mr. Tillman left the kitchen, she thought he was going to bed, and the first indication she had that Mr. Tillman might assault Aldridge was when Mr. Tillman emerged from the bedroom with a knife. Mrs. Tillman went on to aver that when she saw Mr. Tillman with the knife, she yelled at Aldridge to “watch out” and attempted to physically stop Mr. Tillman from assaulting Aldridge, which resulted in her being injured.

Aldridge testified that, prior to this incident, Mr. Tillman had merely threatened him and that, even though he was aware that Mr. Tillman was drunk and upset on the evening of December 24, 1994, he never expected Mr. Tillman to do more than “mouth off” or threaten him. Aldridge testified that he never expected Mr. Tillman to physically attack him. Aldridge further testified that Mrs. Tillman told him for the first time at some point after the December 24, 1994 incident that Mr. Tillman had made specific threats to harm Aldridge on two recent occasions: (1) approximately one to two months earlier, Mr. Tillman had hidden a crowbar under the sofa and was going to “jump on [Aldridge] with it” and (2) that Mr. Tillman had stated to her “he was mad and was going to start some trouble.” On appeal, Aldridge argues that Mrs. Tillman failed to exercise ordinary care for his safety when she invited him to the Christmas party at her home and when she allowed him to stay after the other guests left without warning him of these specific recent threats made by Mr. Tillman toward him. Held:

1. “As a social guest [at the Tillmans’] home, [Aldridge] occupied the legal status of licensee. [Cit.]” Strickland v. Strickland, 198 Ga. App. 440, 441 (402 SE2d 66) (1991); Hemphill v. Johnson, 230 Ga. App. 478 (497 SE2d 16) (1998). “ ‘The owner of the premises is liable to a licensee only for willful or wanton injury.’ OCGA § 51-3-2 (b).” Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998). However,

it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises. Thus as to a licensee ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated.

(Citations and punctuation omitted; emphasis in original.) Wade v. Mitchell, 206 Ga. App. 265, 267 (424 SE2d 810) (1992); Lipham v. Federated Dept. Stores, 208 Ga. App. 385 (430 SE2d 590) (1993), rev’d on other grounds, 263 Ga. 865 (440 SE2d 193) (1994); Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 823 (415 SE2d 654) (1992). This rule applies to cases involving active negligence, as distinguished from static negligence. Wade v. Mitchell, supra, 206 Ga. App. at 266-267; Lipham v. Federated Dept. Stores, supra, 208 Ga. App. at 387. Therefore, the danger must be known and foreseen by the property owner before a duty to protect exists. Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 444 (382 SE2d 180) (1989); Great A & P Tea Co. v. Cox, 51 Ga. App. 880 (181 SE 788) (1935).

2. Ordinarily, even “where the [property owner’s] negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury.” (Citations and punctuation omitted.) Burdine v. Linguist, 177 Ga. App. 545, 546 (340 SE2d 198) (1986). Generally, “[a]n intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury.” (Citation and punctuation omitted.) Alexander v. Sportslife, 232 Ga. App. 538, 540 (502 SE2d 280) (1998); Tucker Fed. &c. Assn. v. Balogh, 228 Ga. App. 482, 484 (491 SE2d 915) (1997).

However,

[Mrs. Tillman] is bound to exercise ordinary care to protect [Aldridge] from unreasonable risks of which [she] has superior knowledge, and if [she] has reason to anticipate criminal acts, [she] has the duty to exercise ordinary care to guard against injury caused by dangerous characters.

(Citations and punctuation omitted.) Millan v. Residence Inn by Marriott, 226 Ga. App. 826, 827-828 (487 SE2d 431) (1997); Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994), aff’d, Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

[Mrs. Tillman’s] duty to exercise ordinary care to protect [Aldridge] against third-party criminal attacks extends only to foreseeable criminal acts. And, only if [Mrs. Tillman] has reason to anticipate a criminal act, does . . . she then have a duty to exercise ordinary care to guard against injury from dangerous characters.

(Citations and punctuation omitted; emphasis in original.) Doe v. Briargate Apts., 227 Ga. App. 408, 409 (489 SE2d 170) (1997).

A criminal act by a third party may be foreseeable if the incident causing the injury is

substantially similar in type to previous criminal activities occurring on or near the premises at issue so that a reasonable owner or occupier of those premises would take ordinary precautions to protect his or her [guest] against the risk posed by that type of activity [because the risk of harm is reasonably foreseeable from such prior acts]. [Cits.]

Doe v. Briargate Apts., supra, 227 Ga. App. at 409. For a criminal act to be substantially similar, it does not have to be identical. However, the prior crimes “should have put an ordinarily prudent person on notice that [Aldridge was] facing increased risks.” Matt v. Days Inns of America, supra, 212 Ga. App. at 794. “All that is required is that the prior incident be sufficient to attract [Mrs. Tillman’s] attention to the dangerous condition which resulted in the litigated incident.” (Citation and punctuation omitted.) Id. at 794-795.

The test is whether the prior criminal activity was sufficiently and substantially similar to demonstrate [Mrs. Tillman’s] knowledge that conditions on [her] property subjected [Aldridge] to unreasonable risk of criminal attack so that [Mrs. Tillman] had reasonable grounds to apprehend that the present criminal act was foreseeable.

(Citations and punctuation omitted.) Millan v. Residence Inn by Marriott, supra, 226 Ga. App. at 828.

In this case, there was no evidence showing that Mrs. Tillman had any basis to know, or reasonably to foresee from prior similar criminal acts, the danger of Mr. Tillman physically attacking Aldridge with a knife. The evidence shows that, in the past when Mr. Tillman became intoxicated and angry, he made threats to Aldridge, but that he had never acted on such threats. Because there was no similarity between Mr. Tillman’s prior threats, which were never acted upon, and the present incident of aggravated assault with a deadly weapon, such prior threats were not sufficiently similar to put Mrs. Tillman on notice of a dangerous condition that might subject Aldridge to an unreasonable risk of criminal injury by Mr. Tillman.

The act of Mr. Tillman discharging a gun 16 years earlier was not a substantially similar criminal act to make Mr. Tillman’s present assault on Aldridge with a knife reasonably foreseeable to Mrs. Tillman. There was no evidence that Mr. Tillman discharged the gun at either Aldridge or Mrs. Tillman; to infer such facts would be mere speculation and conjecture based upon the pyramiding of inferences. Miller v. Gerber Products Co., 207 Ga. 385, 388 (62 SE2d 174) (1950); Ga. R. &c. Co. v. Harris, 1 Ga. App. 714, hn. 3 (57 SE 1076) (1907). Even though Aldridge testified that Mr. Tillman shot a gun as Aldridge and Mrs. Tillman were leaving the house, Aldridge did not know if Mr. Tillman had shot the gun at him, Mrs. Tillman, or the car in which they were leaving, or whether Mr. Tillman had simply shot the gun into the air. “[S]peculation and conjecture [are] insufficient to create even an inference which would bar summary judgment in favor of [Mrs. Tillman].” (Citations omitted.) Bunn v. Landers, 230 Ga. App. 744, 745 (498 SE2d 109) (1998).

Once Mrs. Tillman saw Mr. Tillman coming up the hall with a knife, she exercised ordinary care to guard Aldridge against injury. Mrs. Tillman both verbally shouted a warning to Aldridge and attempted to physically stop Mr. Tillman from injuring him and received an injury herself in her attempt to protect him.

3. Moreover, in this case, Aldridge had equal or superior knowledge, as compared to Mrs. Tillman, of the possibility of a violent physical confrontation with Mr. Tillman. Both Mrs. Tillman and Aldridge were aware that Mr. Tillman had a violent personality when he was drinking and were both aware of incidents in the past when Mr. Tillman had made threats against Aldridge. In addition, they both were aware that Mr. Tillman was intoxicated on the day of the incident.

However, in addition to the knowledge that they both had in common, the evidence shows that Aldridge and not Mrs. Tillman was aware that Mr. Tillman was angry at him on the day of the incident. It was Aldridge, not Mrs. Tillman, who witnessed Mr. Tillman walk by and give Aldridge a “mean” look on the way to the bedroom, and Aldridge admitted that, prior to Mr. Tillman and him coming into the house, he knew that Mr. Tillman was acting like he wanted to “start something.” There is no evidence that Mrs. Tillman was aware that Mr. Tillman was acting like he was going to “start something” while Mr. Tillman and Aldridge were outside. Aldridge alone knew of Mr. Tillman’s threats to him with the pipes and boards at work.

Aldridge contends that Mrs. Tillman had superior knowledge based on her knowledge that: (1) Mr. Tillman had hidden a crowbar under the sofa approximately one to two months earlier and stated that he was going to “jump on [Aldridge] with it” and (2) Mr. Tillman’s statement that “he was mad and was going to start some trouble” is without merit. Aldridge’s testimony concerning what Mrs. Tillman may have told him after this incident is hearsay and has no probative value. “It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment. [Cits.]” (Punctuation omitted.) State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538, 539 (492 SE2d 678) (1997).

Such statements would not be a hearsay exception as an admission against interest. “Such admissions generally consist of voluntary out-of-court statements made by a party of the existence or truth of certain facts which are inconsistent with his contentions and which constitute prima facie evidence of the existence of those facts.” (Citations omitted.) United Waste, Ltd. v. Fulton County, 184 Ga. App. 694, 696 (362 SE2d 476) (1987). The two alleged statements upon which Aldridge relies are not inconsistent with Mrs. Tillman’s contentions, and they are not prima facie evidence that Mrs. Tillman had superior knowledge. See Freeman v. Farr, 184 Ga. App. 830 (363 SE2d 48) (1987). The statements Mrs. Tillman allegedly related to Aldridge after this incident are simply cumulative evidence of similar statements made by Mr. Tillman in the past that, even by Aldridge’s admission, neither party expected Mr. Tillman to carry through with and could be construed any differently only in hindsight. Further, such státements would not be admissible as prior inconsistent statements as they did not contradict or were not inconsistent with Mrs. Tillman’s affidavit, which was the only sworn statement by her that was part of the record on summary judgment. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). Mrs. Tillman was never deposed and asked if she made such statements.

Here the facts conclusively show by plain, palpable, and undisputed evidence that: (1) Mrs. Tillman did not have reasonable grounds from prior similar criminal acts to apprehend that the present criminal act was foreseeable, and (2) Aldridge had equal, if not superior knowledge, of the dangerous possibility of Mr. Tillman’s assault. Thus, the grant of summary judgment by the trial court in favor of Mrs. Tillman was proper.

Judgment affirmed.

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

Decided April 12,1999.

Gibson & Spivey, Andrew C. Spivey, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Bradley J. Watkins, for appellee.

       Geraldine Tillman and Gary Tillman were divorced subsequent to the incident alleged in Aldridge’s complaint.

       A unique legal relationship exists between a landlord and his tenant and a hotel/motel owner and his patrons, which is contractual in nature. The legal relationship between a business owner and his customers has no contractual basis and is based solely upon an invitorinvitee relationship. While this case is different from the cases cited regarding the duties of these individuals and entities to protect their invitees from third-party criminal attack, the general principles of law for which they are cited are applicable to this case.


text:
    A99A0559.
    FIDES v. THE STATE.
    (516 SE2d 101)
   McMURRAY, Presiding Judge.

Following a jury trial, Ian Keith Fides was convicted of driving under the influence of alcohol. Fides contends the trial court erred in denying his motion to suppress field sobriety and blood alcohol test results and in refusing to allow one of his attorneys to testify at trial. We affirm.

1. Although Fides filed a motion to suppress, we find nothing in the record to indicate the court either heard testimony or argument on the motion or ruled on it. Further, neither Fides nor the State provides any citation to a motion to suppress hearing; rather, they depend on the trial transcript to support their arguments. “This Court is a court for the correction of legal errors and has no jurisdiction to address issues that are raised for the first time on appeal.” McDaniel v. State, 221 Ga. App. 43, 47 (1) (470 SE2d 719) (1996). Also, Fides may not abandon an issue in the trial court and on appeal raise questions on which the trial court has not ruled. Angell v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998). Moreover, even if a suppression hearing was held and the motion ruled on, there is no transcript of the hearing in the appellate record. Because we must uphold the trial court’s findings of fact and credibility determinations at a suppression hearing unless shown to be clearly erroneous, and because the absence of the transcript from the record makes that showing impossible, “ ‘we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s denial of the motion to suppress. [Cit.]’ ” Lambropoulous v. State, 234 Ga. App. 625, 626 (2) (507 SE2d 225) (1998).

2. The trial court did not err in refusing to let one of defendant Fides’ attorneys testify that defense counsel had difficulty obtaining the police report of Fides’ arrest. Pretermitting whether the attorney was competent to testify, his testimony was irrelevant. The report was available to defendant Fides before trial. The arresting officer was available for cross-examination about the arrest and about any discrepancies that may have appeared in the report. The fact that Fides’ attorney initially had trouble getting the report did not bear on any issue to be tried by the jury and was, therefore, irrelevant. OCGA § 24-2-1. The exclusion of irrelevant evidence is not error. Muse v. State, 160 Ga. App. 272, 273 (2) (287 SE2d 224) (1981).

Decided April 12,1999.

Chestney Hawkins Law Firm, Michael M. Hawkins, for appellant.

Joseph J. Drolet, Solicitor, Ronda K. Currie, Assistant Solicitor, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.