author: Andrews, Presiding Judge.

text:
    A02A1017.
    LAKE et al. v. ATLANTA LANDMARKS, INC. et al.
    (570 SE2d 638)
   Andrews, Presiding Judge.

Jana and Christopher Lake appeal from the trial court’s order granting summary judgment to the Fox Theatre on their claim for damages. The Lakes filed suit after Jana Lake slipped and fell down the stairs while attending a performance at the theater. Because the trial court correctly held that Jana Lake’s knowledge of any risk involved in walking down the stairs was at least equal to that of the Theatre, we affirm.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows no issue of material fact remains and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue [of fact].

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, Jana Lake testified at her deposition that on the night' of the accident, she and her husband went to an opera at the Fox Theatre. Lake was approximately nine months pregnant at the time. When they entered the theater, they walked up the stairs to get to their seats. At intermission, they left their seats to walk down to the lobby. Lake said she walked down approximately twenty stairs to a landing, and then walked down another ten stairs, holding the handrail with one hand and her husband’s arm with the other. Lake said she recalled putting her foot on the first stair of the next flight, but could remember nothing else until she found herself at the bottom of the flight of steps. She said she had grasped the handrail and was holding on to her husband’s arm, but had no explanation of how she came to fall. When asked, “do you have any idea what may have caused you to slip?” Lake replied, “No, I don’t.” Lake said that she would not have stepped down if she had not thought it was safe.

Lake later submitted an affidavit stating that inadequate illumination in the stairwell caused her to slip and fall. She also presented testimony from a lighting expert that the lighting in the theater failed to meet the recommended levels of illumination as set out by the Illuminating Engineering Society of North America.

A Fox employee testified that he remembered two prior slip and fall accidents in which lighting was an issue. He stated that the problem was not one of insufficient lighting, but rather of an inconsistent level of light from one level to the next. The problem was corrected, and the employee stated that he was not aware of any falls on the level where Jana Lake fell nor of any complaints about the lighting or the stairs.

The trial court granted the Theatre’s motion for summary judgment, concluding that plaintiffs had not carried their burden because they had not shown that defendant had actual or constructive knowledge of any hazard nor that plaintiffs were ignorant of the danger. The court found no causal connection between any conduct by the defendant and Lake’s injury. This appeal followed.

An owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1. The invitee must , prove (1) that the defendant had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

In premises liability cases, proof of falling or slipping, without more, does not give rise to liability on the part of the property owner. Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997). Instead, a plaintiff may recover only if the property owner had knowledge of the condition and the plaintiff did not know about it. Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998). The true ground of liability is the defendant’s superior knowledge about the existence of a condition that may subject the invitee to an unreasonable risk of injury. Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). To fulfill the duty to inspect premises to keep them safe from defects including hidden defects, the law requires only the exercise of ordinary care, not extraordinary care. Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 593 (466 SE2d 58) (1995).

Hansen v. Cooper, 253 Ga. App. 533, 535-536 (559 SE2d 740) (2002).

Although the issue of a plaintiff’s exercise of due diligence for [her] own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. Plaintiff is charged with knowledge of those defects which [she] had actually observed or which were so transparently obvious that [her] failure to observe them cannot reasonably be excused.

(Citations omitted.) Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994).

In this case, although Jana Lake first stated at her deposition that she had no idea why she fell, she later submitted an affidavit stating that inadequate illumination in the stairwell caused her fall. But, it is well settled that in order to recover, Lake must show that the theater had knowledge of a dangerous condition and she had none. She has not done so. Lake was aware of the amount of light in the theater. She had already walked upstairs to get to her seat and then walked down several more stairs before she fell. Moreover, if she thought it was too dark for her to walk down the stairs, it was incumbent upon her, as the trial court pointed out in its order, to inquire about alternatives.

Accordingly, because Lake has come forward with no evidence tending to show that she was not at least as aware as the defendant of any danger to her in walking down the stairs, the Lakes are unable to show that there are genuine issues of material fact as to all essential elements of their claim. Lau’s Corp., supra. Therefore, the trial court did not err in granting summary judgment to the Fox The-atre.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

Decided August 28, 2002.

Kevin C. Ford, for appellants.

Swift, Currie, McGhee & Hiers, Charles B. Marsh, Sharon L. Neal, for appellees.

       Lake stated in her affidavit that she was unaware there was an elevator available.


source: Caselaw Access Project

license: Public Domain

text:
    A02A1071.
    BOLTON v. WAL-MART STORES, INC. et al.
    (570 SE2d 643)
   Andrews, Presiding Judge.

Christine Bolton appeals from the trial court’s grant of summary judgment to Wal-Mart Stores, Inc. and John Doe, an unidentified Wal-Mart manager, in her premises liability action.

Bolton testified in her deposition that she slipped and fell in a clear substance which she opined might have been dishwashing liquid while shopping at the store. She offered no evidence concerning how long the substance had been on the floor. Wal-Mart submitted the affidavit of the assistant manager of the store who stated that he was in the exact location of Bolton’s fall ten to fifteen minutes before the fall and that at that time the floor was free from any liquid soap or other foreign substance. The trial court granted Wal-Mart’s motion for summary judgment, finding that there was no evidence that Wal-Mart had either actual or constructive knowledge of the substance on the floor.

Bolton urges error in the trial court’s finding that Wal-Mart did not have constructive knowledge of the substance on the floor. Constructive knowledge may be shown in two ways: by showing that an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall; or by showing that the substance had been on the floor for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises. Wentworth v. Eckerd Corp., 248 Ga. App. 94, 95 (545 SE2d 647) (2001); Roberson v. Winn-Dixie Atlanta, 247 Ga. App. 825 (544 SE2d 494) (2001). Bolton argues that Wal-Mart’s knowledge is shown by the fact that there were employees in the immediate vicinity at the time of the fall.

Showing that an employee was in the vicinity of a foreign substance is not sufficient to preclude summary judgment. It must be shown that the employee was in a position to have easily seen the substance and removed it. Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866-867 (2) (a) (502 SE2d 738) (1998); Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998). Further, even Bolton stated that “[b]etween the lights and the color of that floor and where it was at, I would have never seen it in a million years.”

Decided August 28, 2002.

Hinton & Powell, Andrew J. Hinton, Jr., for appellant.

McLain & Merritt, Albert J. Decusati, for appellees.

Wal-Mart’s evidence that a different employee was in the exact area ten to fifteen minutes earlier and that the floor was clear of any substance at that time is unrefuted. We agree that in light of these facts Bolton has failed to establish either actual or constructive knowledge in this case, and that the trial court did not err in granting summary judgment to Wal-Mart. Wentworth, 248 Ga. App. at 97; Roberson, 247 Ga. App. 826; Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987).

Judgment affirmed.

Phipps and Mikell, JJ., concur.


author: Ruffin, Judge.

text:
    A02A1076.
    UPSHAW v. THE STATE.
    (570 SE2d 640)
   Ruffin, Judge.

A jury found Jerome Upshaw guilty of possession of cocaine, possession of cocaine with intent to distribute, possession of cocaine within 1,000 feet of a housing project, and possession of a firearm by a convicted felon. On appeal, Upshaw contends the trial court erred in denying bis motion to suppress, admitting evidence of a similar transaction, and permitting the State to introduce character evidence. Upshaw also asserts that he received ineffective assistance of both appellate and trial counsel. As Upshaw’s claims of error lack merit, we affirm.

The record demonstrates that federal law enforcement officers were investigating a bank robbery that occurred in Alabama. In connection with this investigation, the officers obtained a search warrant for an apartment in Columbus, Georgia, which was located in a public housing development. When the officers executed the warrant, they detained Upshaw, who was the only person in the apartment. During their search, the officers discovered crack cocaine, handguns, a scale, and approximately 200 plastic bags. The officers arrested Upshaw, searched him, and discovered a pager and over $800 in cash. Police took Upshaw to local police headquarters where he was told that drugs were found in the apartment. Upshaw immediately-responded, “[a] 11 of that stuff is mine.” Detective Charles Kennedy then read Upshaw his Miranda rights, which Upshaw waived before providing a written statement in which he, once again, admitted that the drugs and drug paraphernalia belonged to him.

1. Prior to trial, Upshaw filed a motion to suppress evidence discovered at the apartment, asserting that the search warrant was insufficient as a matter of law. The trial court denied the motion, and the evidence — including the crack cocaine, scales, and baggies — was admitted at trial. As each item of evidence was tendered, Upshaw’s attorney was asked if he had any objection to its admissibility. Each time, the attorney responded in the negative.

“When a motion to suppress has been filed, merely failing to object to the admission of the evidence does not constitute a waiver of the grounds asserted in the motion.” But “affirmatively stating there is no objection in effect concedes the point.” Thus, by stating that he had no objection to the admission of the evidence, Upshaw’s counsel conceded its admissibility, waiving any objection.

2. Upshaw contends that the trial court erred in admitting evidence of a similar transaction. Specifically, he asserts that the facts surrounding his prior guilty plea to possession of cocaine were not sufficiently similar to the offense for which he was on trial to warrant the admission of the similar transaction evidence. But while Upshaw objected to the introduction of this evidence during the pretrial hearing, he failed to object to its admission at trial. The rule requiring that a party object at trial to similar transaction evidence is firm, and we are bound to follow it. Here, by failing to object, Upshaw waived this issue on appeal.

3. Upshaw also alleges that the trial court abused its discretion in allowing the State to introduce evidence regarding “his involvement in an Alabama bank robbery.” Upshaw sought to exclude this evidence, arguing that it impermissibly placed his character in evidence. However, the trial court concluded that the evidence was necessary to explain why federal agents were executing the warrant, which led to the discovery of the cocaine and to Upshaw’s arrest.

As a general rule, “all the circumstances connected, with a defendant’s arrest are admissible as párt of the res gestae.” If relevant, such evidence will not be excluded simply because it incidentally puts the defendant’s character in issue. Here, the sole reason that federal agents were in the apartment was to execute a warrant that was issued in connection with a bank robbery. As the officers must have a legal basis for entering the apartment, we agree with the trial court that evidence regarding the issuance of the warrant was properly admitted. Moreover, assuming that such evidence does not come within res gestae, its admission provides no basis for reversal. Given the fact that Upshaw confessed to possessing the cocaine, any error in admitting evidence implicating Upshaw in an unrelated crime would be harmless.

4. Finally, Upshaw contends that he received ineffective assistance of counsel. The record shows that, following Upshaw’s conviction, he obtained a new attorney, William Nash, to represent him at his motion for new trial. Nash successfully argued that Upshaw’s conviction for theft by receiving should be reversed. Nash also asserted that Upshaw received ineffective assistance of trial counsel in that counsel failed to investigate and interview witnesses and failed to object to the admission of evidence in aggravation of sentencing. The trial court rejected these arguments and denied Upshaw’s motion for new trial.

Evidently, Nash withdrew from representing Upshaw as yet another attorney is representing him on this appeal. Upshaw’s current appellate counsel contends that Nash rendered ineffective assistance of appellate counsel based upon his “fail[ure] to raise any of the issues concerning ineffective assistance of trial counsel that present appellate counsel wishfes] to raise.” Present counsel asks that, if this Court cannot ascertain trial counsel’s ineffectiveness from the record, that we remand the case to the trial court for a hearing on the issue.

It is well settled that a defendant must raise all allegations of ineffective assistance of counsel as soon as practicable. As an attorney cannot reasonably be expected to assert his or her own ineffectiveness, the issue generally is raised when new counsel appears on behalf of the defendant. “The rule is consistent: New counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review.” When new counsel raises the issue of ineffective assistance, this Court will review only those allegations of ineffectiveness raised. Any remaining allegations are procedurally barred. Here, Upshaw raised the issue of ineffective assistance of trial counsel through his first appellate attorney, Nash. Accordingly, any additional allegations of ineffective assistance, are procedurally barred.

Decided August 28, 2002.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Stacey S. Jackson, Assistant District Attorney, for appellee.

The fact that Upshaw raises this issue under the guise of an ineffective assistance of appellate counsel claim does not alter our analysis. A defendant cannot resuscitate claims of ineffectiveness that are procedurally barred simply by bootstrapping them to a claim of ineffectiveness of appellate counsel. Once a claim is procedurally barred, there is nothing for this Court to review. To hold otherwise would eviscerate the rule requiring that ineffectiveness claims be raised at the earliest practicable moment. As Upshaw does not contend that his appellate attorney was ineffective in any other aspect of his representation, this claim of error presents no basis for reversal.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       Although the jury found Upshaw guilty of theft by receiving also, the trial court reversed this conviction on motion for new trial based upon insufficiency of the evidence.

        Crenshaw v. State, 248 Ga. App. 505, 508 (2) (546 SE2d 890) (2001).

       (Punctuation, omitted.) Id.

       See Mack v. State, 251 Ga. App. 407, 408 (1) (554 SE2d 542) (2001).

        McNair v. State, 240 Ga. App. 324, 325 (2) (523 SE2d 392) (1999).

       See id.; Giraudy v. State, 252 Ga. App. 219, 221 (3) (555 SE2d 874) (2001).

        Gober v. State, 249 Ga. App. 168, 173 (6) (547 SE2d 656) (2001).

       See id. at 173-174.

       See Jackson v. State, 251 Ga. App. 781, 782-783 (1) (555 SE2d 136) (2001).

       See Shelton v. State, 252 Ga. App. 444, 447-448 (3) (556 SE2d 540) (2001) (applying harmless error analysis to erroneous admission of evidence surrounding arrest).

       See White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991); Parker v. State, 249 Ga. App. 509, 512 (3) (548 SE2d 475) (2001); Massey v. State, 247 Ga. App. 827, 828 (2) (545 SE2d 66) (2001).

       See White, supra.

       Id.

       See Seese v. State, 235 Ga. App. 181, 183-184 (3) (509 SE2d 94) (1998).

       See id.

       See id.

        See Adams v. State, 239 Ga. App. 42, 43 (2) (520 SE2d 746) (1999).


author: Eldridge, Judge.

text:
    A01A0309.
    PARKER v. CRIDER POULTRY, INC. et al.
    (570 SE2d 668)
    Decided August 29, 2002.
   Eldridge, Judge.

In Parker v. Crider Poultry, 275 Ga. 361 (565 SE2d 797) (2002), the Supreme Court reversed the judgment of this Court’s opinion in Parker v. Crider Poultry, 249 Ga. App. 381 (549 SE2d 711) (2001). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

Capers, Dunbar, Sanders & Bruckner, Ziva P. Bruckner, for appellant.

Troutman Sanders, Steven J. Hewitson, William M. Droze, for appellees.


text:
    A02A0901.
    HODGE v. STATE OF GEORGIA.
    (570 SE2d 666)
   Andrews, Presiding Judge.

Cecil Ray Hodge, Jr. appeals the forfeiture of his 1993 Mercedes and 1994 Chevy Blazer pursuant to OCGA § 16-13-49 and the denial of his motion to suppress filed in that forfeiture action. Finding no error, we affirm.

The facts of the case are undisputed. In late February 2001, the Richmond County Sheriff’s Department received an anonymous letter postmarked February 23, 2001. The letter stated, £‘[T]o the good guys. There is a two story apartment behind 2408 Williams Street near ASU that you should take a look inside. I would not delay. Time is of the essence. Have a nice day.” Acting upon this letter, narcotics investigator Phares visited the address. The main house at this address was under renovation and located behind it was a two-story building containing upstairs and downstairs apartments. When Phares approached the front door of the downstairs apartment and knocked, he was overwhelmed by the smell of what he identified as marijuana coming from underneath the door. Receiving no response to his knocking, Phares started knocking on windows and observed the electric meter on the side of the house. The electric meter for the upstairs apartment was spinning very fast in comparison to the lower apartment indicating to the officer that an indoor marijuana growing operation might be present at the residence. Phares called a canine unit to the scene for further investigation, and, upon arrival, the narcotics dog immediately alerted to the presence of narcotics at the front door of the lower apartment. Phares then ascended a set of exterior stairs to the upper apartment and again noticed the strong smell of marijuana.

Subsequently, the investigator applied for and received a search warrant for the lower apartment, rented by Hodge. Upon executing the search warrant in the presence of Hodge on March 1, the sheriff’s department discovered several large bags of marijuana, as well as drug paraphernalia. The investigator then discovered that Hodge also rented the upstairs apartment. A search warrant was obtained for the upstairs apartment which led to the discovery of 44 mature marijuana plants growing in the rear bedroom. The police seized the marijuana, other paraphernalia related to the weighing and usage of marijuana, and Hodge’s Blazer and Mercedes.

1. In his first enumeration of error, Hodge argues that the trial court erred in failing to suppress the evidence obtained by the illegal search of his residence and curtilage based on Phares’ initial approach to his apartment to investigate the tip. We disagree.

‘Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated.” State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). By approaching the front door of the residence for the purpose of asking questions regarding the anonymous tip, the sheriff’s department made no more intrusion on Hodge’s privacy than would the average person and did not violate the Fourth Amendment. Gardner v. State, 255 Ga. App. 489 (566 SE2d 329) (2002); Strozier v. State, 244 Ga. App. 514, 515 (535 SE2d 847) (2000); State v. Zackery, supra.

Being where he had a right to be, Phares, based on his experience and training, encountered the strong smell of marijuana coming from the apartment, giving him probable cause to believe a crime was being committed there. Bigby v. State, 250 Ga. App. 529 (1) (552 SE2d 129) (2001); Strozier v. State, supra. Further, a trained drug dog alerted to the presence of the narcotics in the downstairs apartment, and this Court has held that the alert of a drug dog provides sufficient probable cause to issue a search warrant. Rivera v. State, 247 Ga. App. 713 (545 SE2d 105) (2001); see also Taylor v. State, 254 Ga. App. 150, 151 (1) (561 SE2d 833) (2002) (officers, investigating complaints of marijuana smoking in apartment building, who then smelled odor of marijuana coming from an apartment, saw two men leave this apartment, and smelled marijuana on their clothing, had probable cause to suspect there was marijuana in that apartment); Warren v. State, 254 Ga. App. 52, 55 (2) (561 SE2d 190) (2002) (odor of marijuana detected by officer standing outside vehicle provided probable cause to search vehicle).

There was no error in the trial court’s denial of the motion to suppress.

2. In his next enumeration of error, Hodge argues that the trial court erred in condemning Hodge’s Blazer and Mercedes.

The Mercedes was parked in the driveway of the apartment when officers arrived, and the Blazer was being driven by Hodge that day. Also, during the previous week, Hodge had been stopped by officers while driving the Blazer and a drug dog alerted on it, although officers were unable to locate any narcotics upon searching it. Hodge was contacted at work during the search of the downstairs apartment and drove the Blazer there. When he saw the officers had found marijuana and were obtaining a warrant for the upstairs apartment, he told them they should take a camera and also told them the reason they had been unable to find the marijuana when he was earlier stopped in the Blazer was because it was concealed in a piece of PVC pipe attached underneath.

Decided August 29, 2002.

Christopher G. Nicholson, for appellant.

Daniel J. Craig, District Attorney, Rebecca A. Wright, Charles R. Sheppard, Assistant District Attorneys, for appellee.

The total argument made here consists of the following sentence: “[t]here is no evidence in the record that these two automobiles were contraband under the applicable Code section.” Pretermitting whether the enumeration is abandoned by this cursory statement pursuant to Court of Appeals Rule 27 (c) (2), the evidence was sufficient. The State here did not allege that the vehicles were contraband, but that they had been, were being, or would be used to facilitate illegal drug activity or were in close proximity to the activity, two additional bases for forfeiture.

“A forfeiture action is a civil proceeding. The State, as plaintiff, was required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases.” (Citations and punctuation omitted; emphasis in original.) Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). The trial court in this case sat as the factfinder, and we will not disturb its findings unless they were clearly erroneous. Id. And a trial court’s findings of fact “are not clearly erroneous if there is any evidence to support them.” (Citation and punctuation omitted.) Id. This is true where, as here, “such findings are based upon circumstantial evidence and the reasonable inferences which flow therefrom.” (Citations and punctuation omitted.) Id.

Jones v. State of Ga., 249 Ga. App. 64, 68 (3) (547 SE2d 725) (2001).

Hodge presented no evidence in opposition to the State’s case, and the evidence presented by the State was sufficient. Jones v. State of Ga., supra.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0908.
    WILLIAMS v. THE STATE.
    (570 SE2d 645)
   Andrews, Presiding Judge.

Michael Lawrence Williams appeals from the judgment entered after a jury found him guilty of five counts of aggravated child molestation, one count of rape, one count of aggravated sodomy, and one count of child molestation. In his only enumeration of error, Williams claims the trial court erred in denying his special demurrer to the form of the indictment. For reasons which follow, we conclude there was no error and affirm.

Williams argued below and now on appeal that his indictment was flawed and subject to demurrer because it did not conform to the requirements of OCGA § 17-7-54. This Code section provides:

(a) Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct. The form of every indictment shall be substantially as follows:
Georgia,_County.
The grand jurors selected, chosen, and sworn for the County of_, to wit:_, in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of_; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.
(b) If there should be more than one count, each additional count shall state:
And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse (name of the accused) with having committed the offense of _; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same) contrary to the laws of said state, the good order, peace, and dignity thereof.

In this case, Counts 2 through 9 of the indictment omitted the phrase “And the jurors aforesaid.” Williams argues that the language of the statute, “each additional count shall state: And the jurors aforesaid,. . .” is mandatory and the omission of the required phrase makes the indictment technically flawed. Williams cites us to no authority on point in support of this claim, and we find none.

Decided August 29, 2002.

Monica T. Myles, Mary Erickson, for appellant.

David McDade, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

First, we note that Williams makes no claim that the indictment is not otherwise sufficient. This Court has consistently held that

“[t]he true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.”

Jordan v. State, 220 Ga. App. 627, 629 (2) (470 SE2d 242) (1996). Also, the Code section itself provides that ££[e]very indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct” to withstand a general demurrer. OCGA § 17-7-54 (a). Further, contrary to Williams’s contention, the first page of the indictment clearly shows that it is brought by the grand jurors.

In any event,

[w]hen an appellate court reviews the merits of a special demurrer after trial has been held and no prejudice to appellant has occurred even though the indictment is not perfect, “reversal is a mere windfall to defendant and contributes nothing to the administration of justice.” State v. Eubanks, 239 Ga. 483, 489 (238 SE2d 38) (1977).

Hambrick v. State, 175 Ga. App. 207, 209 (332 SE2d 907) (1985). Because Williams has shown no prejudice resulting from the alleged defect in the indictment, we find no error. Id.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


author: Phipps, Judge.

text:
    A02A1021.
    GRIFFIN v. THE STATE.
    (570 SE2d 646)
   Phipps, Judge.

Terrill Griffin was indicted for violating the Georgia Controlled Substances Act by selling cocaine “together with another, and as a party to a crime.” A jury found him guilty, and he appeals, challenging the sufficiency of the evidence. We affirm.

The evidence at trial included the testimony of a confidential informant, who stated that on March 28, 2001, she was working for a detective of the Calhoun Police Department and set out to make an undercover controlled buy of cocaine. Equipped with a hidden audiotape recorder, she drove to the residence of Walter Jones, where she encountered Griffin. She asked Griffin whether he had “anything.” Griffin answered that he did not, but that Jones had “something.” Jones motioned for the informant to come into the house. The informant testified that at that point, Griffin volunteered to “get the dope” for her, stating that he could make some money if she would allow him to go inside and get it. She handed Griffin $20, and Griffin met Jones at the door of the house, where Griffin gave Jones money and Jones gave Griffin a $20 piece of crack cocaine. Griffin returned to the informant and handed her the crack cocaine. The audiotape that recorded the incident was played for the jury.

Griffin testified that after he told the informant that he had no drugs, he walked away. He denied any involvement in the drug transaction.

We evaluate Griffin’s challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, construing the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine the credibility of the witnesses. As long as some competent evidence, even though contradicted, supports each element of the State’s case, we must affirm the judgment on the jury’s verdict. Further, a person can be convicted of a crime if he directly commits it or if he intentionally aids or abets in its commission.

Here, the jury heard the testimony of the undercover informant, who described the sale and identified Griffin as the person who handed her crack cocaine in exchange for money. The jury also heard the tape that captured the drug transaction. Although Griffin points to what he claims are weaknesses or inconsistencies in the evidence, we find that the evidence was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

Decided August 29, 2002.

Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Anderson v. State, 253 Ga. App. 129, 130 (558 SE2d 459) (2001).

       Id.

       Id.

       OCGA § 16-2-20.

       See Jackson, supra; OCGA § 16-13-30 (b); Anderson, supra at 130-131; see also Douglas v. State, 228 Ga. App. 368, 371 (5) (491 SE2d 821) (1997).


text:
    A02A1035.
    SHUMAKE v. THE STATE.
    (570 SE2d 648)
   Eldridge, Judge.

In 1999, Ivy Shumake pled guilty in the Superior Court of Clayton County to two counts of armed robbery and one count of possession of a firearm by a convicted felon. Over a year and a half later, Shumake filed a motion for an out-of-time direct appeal with regard to such guilty plea. The trial court denied the motion, finding that the claims of error asserted by Shumake in support of his request for an out-of-time appeal could not be resolved from facts appearing in the record and, thus, a direct appeal from Shumake’s guilty plea would not lie. Shumake, pro se, appeals from this judgment. We affirm.

1. Shumake had the burden to show that he was improperly denied a right to an out-of-time appeal by “showing] that he actually had a right to file a timely direct appeal.” In that regard,

[a] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Accordingly, the denial of [Shumake’s] motion for an out-of-time appeal can be reversed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.

As a. basis for appeal, Shumake claimed in the court below: (a) that he was coerced by his attorney to plead guilty; (b) that illegal evidence was presented to the grand jury in order to obtain the indictment against him; (c) that the State’s evidence would have been insufficient to convict Shumake of the indicted offenses; (d) that he received ineffective assistance of counsel; and (e) that the trial court failed to advise Shumake of his right to appeal from his guilty plea.

On their face, claims of error (a) through (d) above cannot be resolved on the facts of record, including the guilty plea transcript. These claims clearly require development at a further evidentiary hearing, including obtaining the testimony of Shumake’s defense attorney on the ineffective assistance of counsel claim. Thus — if properly the subject of anything at all — these claims are now properly the subject of a petition for writ of habeas corpus.

Further, the fact thát substantive claims (a) through (d) above cannot be resolved by facts of record and, thus, are not subject to direct appeal renders claim (e) above meritless. “If [Shumake] had no right to file even a timely notice of appeal from the judgment of conviction entered on his guilty plea, he was not entitled to be informed of a non-existent ‘right’ to appeal.”

Accordingly, Shumake’s failure to meet his burden of showing an entitlement to an out-of-time appeal requires affirmance of the trial court’s denial of his motion for such appeal.

2. We reject Shumake’s claim that the trial court erred by failing to hold an evidentiary hearing on his motion for out-of-time appeal. When, as in the instant case, the claims of error alleged in support of a motion for out-of-time appeal of a guilty plea fail on their face to demonstrate a proper basis for such appeal, an evidentiary hearing is unconstructive. Shumake’s reliance on our decision in Haynes v. State is misplaced. Haynes did not involve a guilty plea where there is no unqualified right to appeal and claims of error are confined to those appearing on the face of the record.

3. Likewise, we find no error in failing to appoint an attorney to represent Shumake on his motion for out-of-time appeal. “Because a motion for an out-of-time appeal cannot be construed as part of a criminal defendant’s first appeal of right, [Shumake] was not entitled to the assistance of appointed counsel.”

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

Decided August 29, 2002.

Ivy Shumake, pro se.

Robert E. Keller, District Attorney, Jack S. Jennings, Todd E. Naugle, Assistant District Attorneys, for appellee.

       (Emphasis in original.) Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). See also Smith v. State, 269 Ga. 21 (494 SE2d 668) (1998).

       (Citations and punctuation omitted.) Smith v. State, 266 Ga. at 687.

        Boney v. State, 236 Ga. App. 179, 180 (510 SE2d 892) (1999).

       (Punctuation omitted.) Smith v. State, 266 Ga. at 687; Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995).

       227 Ga. App. 64 (488 SE2d 119) (1997).

        Burroughs v. State, 239 Ga. App. 600, 602 (2) (521 SE2d 652) (1999).


author: Ellington, Judge.

text:
    A02A1189.
    WISE v. THE STATE.
    (570 SE2d 656)
   Ellington, Judge.

An Athens-Clarke County jury convicted Franklin Leon Wise of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and possession of a firearm by a convicted felon, OCGA § 16-11-131. Following the denial of his motion for a new trial, Wise appeals, contending the trial court erred in denying his motion to suppress, in denying his motion to vacate the order denying his motion to suppress, and in admitting certain opinion evidence. Wise also contends the evidence was insufficient to convict him of possession with intent to distribute. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence showed the following: on October 9, 1998, pursuant to a tip from a confidential informant, Athens-Clarke County police officers obtained a warrant to search Wise’s residence and his person. On October 15, 1998, police officers executed the search warrant and seized a solid slab of crack cocaine weighing four grams, 3.4 grams of powder cocaine, and a bag of marijuana from Wise’s person, as well as two handguns, three scales, and several razors from Wise’s residence. Wise filed a motion to suppress the evidence, contending the search warrant application, including the officer’s affidavit, failed to provide information material to the magistrate’s determination of the informant’s reliability. The trial court denied the motion to suppress.

1. Wise contends the trial court erred in denying his motion to suppress in that the magistrate issued the search warrant based on a misleading affidavit. Specifically, Wise contends the affidavit failed to reveal that the informant used drugs and received payment for the information.

When reviewing a trial court’s order concerning a motion to suppress evidence, we give substantial deference to the magistrate’s decision to issue the warrant, and we construe the evidence in favor of the court’s decision that probable cause existed. Roberson v. State, 246 Ga. App. 534, 535 (1) (540 SE2d 688) (2000). See also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (in reviewing denial of motion to suppress, appellate court must accept trial court’s decision with regard to the questions of fact and credibility unless clearly erroneous).

Where issuance of a search warrant is based primarily on an informant’s tip, the issuing magistrate must apply the “totality of the circumstances” test under Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), to determine whether there is probable cause for the search warrant.

The task of the issuing magistrate [under Gates] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citation and punctuation omitted.) State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984) (quoting from Gates). Under the totality of the circumstances test, the reliability of the informant is a relevant consideration. Perkins v. State, 220 Ga. App. 524, 525 (2) (469 SE2d 796) (1996). The magistrate should evaluate the informant’s reliability based on the type of information previously supplied by the informant, the use made of that information, and the elapsed time since the new information was furnished. Claire v. State, 247 Ga. App. 648 (544 SE2d 537) (2001); Mitchell v. State, 239 Ga. App. 735, 736 (1) (521 SE2d 873) (1999). Although attesting officers and magistrates should “make every effort to see that supporting affidavits reflect the maximum indication of reliability,” State v. Stephens, 252 Ga. at 184, we have upheld warrants where the officer failed to inform the magistrate that the informant had a felony history, Kessler v. State, 221 Ga. App. 368, 371 (471 SE2d 313) (1996); that the informant was a drug user, Hockman v. State, 226 Ga. App. 521, 523 (1) (487 SE2d 102) (1997) (physical precedent only); or that, in exchange for the information, the informant received payment, id., or favorable treatment in connection with pending charges, Roberson v. State, 246 Ga. App. at 536 (1).

In this case, the affidavit showed that the informant previously supplied information about drug dealers at least ten times within the preceding ten months which resulted in the seizure of drugs, that officers had used the informant’s tips to obtain warrants which resulted in at least ten arrests, and that the information in the subject warrant application was only a few days old. The only information not provided to the magistrate was the officer’s payment of $20 for the information and the officer’s unproven “gut feeling” that the informant himself used cocaine. Moreover, the record contains no evidence that the affidavit contained deliberate falsehoods, that the officer made it with reckless disregard for the truth, or that he “consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause.” Kessler v. State, 221 Ga. App. at 371. Finally, even if the omitted information had been included, we conclude under the totality of the circumstances that the information in the affidavit provided the magistrate a substantial basis for concluding that probable cause existed for issuing the search warrant. The trial court accordingly did not err in denying Wise’s motion to suppress. Galvan v. State, 240 Ga. App. 608, 609 (524 SE2d 297) (1999); Kessler v. State, 221 Ga. App. at 371.

2. Wise contends the trial court erred in denying his motion to vacate the order denying his motion to suppress in that the trial judge who entered the order was disqualified. At a calendar call nearly four months after the trial court denied Wise’s motion to suppress, the prosecutor informed the first trial judge that in his prior employment before becoming a judge he had represented the State in proceedings against Wise. Specifically, the judge, in his previous employment as an assistant district attorney, appeared for the State when Wise entered a not guilty plea to a drug charge in 1991 — but did not represent the State when Wise later withdrew that not guilty plea and pled guilty. When apprised at the calendar call of his involvement in a prior prosecution of Wise, the first trial judge determined that he was disqualified from presiding over the case and recused himself. On the day of trial, Wise filed a motion to vacate the order denying his motion to suppress. The second trial judge denied Wise’s motion on the basis that the motion was untimely and lacking in merit.

First, we are not persuaded that the motion to vacate was untimely. Although a motion to recuse must be filed within five days of discovery of the basis for recusal, Uniform Superior Court Rule 25.1, we have found no authority applying this five-day limitation to the filing of motions collateral to a trial judge’s sua sponte recusal. Further, “a court retains broad discretion over interlocutory eviden-tiary rulings which may be modified at any time until entry of final judgment. See, e.g., Tucker v. State, 231 Ga. App. 210[, 213] (1) (b) (498 SE2d 774) (1998) (trial court may reverse a ruling on a pretrial suppression motion at any time during the pendency of the case).” Ritter v. State, 272 Ga. 551, 553 (2) (532 SE2d 692) (2000). See also State v. Marcus, 206 Ga. App. 385 (1) (425 SE2d 351) (1992) (“The trial court may, within its sound discretion, consider anew a suppression motion previously denied.”) (citations omitted).

Secondly, a judge is not automatically disqualified from sitting or acting in criminal cases merely on the ground that the judge, in prior employment, has previously prosecuted the defendant in unrelated criminal proceedings. Gillman v. State, 239 Ga. App. 880, 883 (2) (b) (522 SE2d 284) (1999) (trial judge’s service as district attorney when defendant’s previous guilty plea was entered did not require recusal). See generally Zitter, Prior Representation or Activity as Prosecuting Attorney as Disqualifying Judge from Sitting or Acting in Criminal Case, 85 ALR5th 471, § 7 (2001). Cf. OCGA § 15-1-8 (a) (3) (“No judge ... of any court. . . shall. . . [s]it in any case or proceeding in which he has been of counsel [before his appointment as judge] . . . without the consent of all parties in interest.”); King v. State, 246 Ga. 386, 389 (7) (271 SE2d 630) (1980) (citing Georgia Code of Judicial Conduct) (“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where ... he served as a lawyer in the matter in controversy.”) (citations and punctuation omitted). In this case, the first trial judge did not represent the State in any aspect of the subject case or matter in controversy, that is, the 1998 charges against Wise. Accordingly, the circumstances did not require the first trial judge’s recusal. Gillman v. State, 239 Ga. App. at 883 (2) (b).

Furthermore, even if recusal had been required, Wise identified no authority, and we have found none, for the argument that recusal by a trial judge invalidates preliminary rulings entered before the judge became aware of the basis for recusal. To the contrary, recusal of a trial judge, for reasons other than bias or prejudice regarding the parties in the case, does not invalidate earlier pretrial rulings of that trial judge. Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 319-320 (3) (489 SE2d 310) (1997). The trial court did not err in denying Wise’s motion to vacate the order denying his motion to suppress.

3. Wise contends the trial court erred in admitting a police officer’s opinion evidence that the amount of cocaine seized would typically be intended for distribution rather than for personal use. “In our view, knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience. Therefore, the testimony was properly admissible under OCGA § 24-9-67.” (Citation omitted.) Davis v. State, 200 Ga. App. 44, 46 (2) (406 SE2d 555) (1991). The foundation for the officer’s qualifications as an expert included his extensive training in drug and vice investigation and undercover operations, his experience conducting many undercover operations, including “reverse sting” operations in which he posed as a drug dealer, and his experience executing thousands of search warrants. The trial court did not abuse its discretion in allowing the officer’s opinion testimony after the State laid this foundation. Tate v. State, 230 Ga. App. 186, 188-189 (3) (495 SE2d 658) (1998).

Decided August 29, 2002.

James W. Smith, Earl D. Clark, Jr., for appellant.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, for appellee.

4. Wise also contends the evidence was insufficient to convict him of possession with intent to distribute in that the evidence failed to exclude the hypothesis that Wise intended to consume, rather than to distribute, the cocaine. We disagree. The evidence, including the officer’s testimony that the amount of cocaine was more than one would generally possess for personal use and Wise’s possession of scales, weapons, and other items associated with the drug trade, was sufficient for a rational trier of fact to find Wise guilty beyond a reasonable doubt of possession with intent to distribute. Bacon v. State, 225 Ga. App. 326, 328 (483 SE2d 894) (1997).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A02A1227.
    YAGER v. WAL-MART STORES, INC. et al.
    (570 SE2d 650)
   Andrews, Presiding Judge.

Tracy Yager appeals from the trial court’s order granting summary judgment to Wal-Mart Stores, Inc. on Yager’s claim for damages after she was hit in the ear with a stream of water from a “super-soaker” water gun. Because the record shows that Wál-Mart did not have actual or constructive knowledge of the hazard, we affirm.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows no issue of material fact remains and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue [of fact].

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record shows that Tracy Wetherington, now Yager, and her fiancé Chris Yager arrived at Wal-Mart at approximately 11:00 on the night in question. They had come to buy a water gun for Tracy Yager’s son and went directly to the toy department. They did not see any Wal-Mart employees on the aisle while they were there.

The “super-soaker” water guns were displayed in open boxes with the guns fastened down with plastic ties. Chris Yager testified that one of the guns was not in a box and he took this gun off the shelf. Yager said he could not tell that the gun had water in it when he picked it up. He pulled the trigger and shot Tracy Yager in the ear from a distance of approximately 18 inches. Yager said he knew where the gun was pointing when he pulled the trigger but he “didn’t pay that much attention to it.”

Sara McMullen, the Wal-Mart employee responsible for the toy department that night, testified that her shift was over at 11:00 p.m. and she walked through the department at approximately ten minutes before 11:00. She said that she did not see any guns out of their boxes and if she had, she would have removed them from the aisle.

The trial court granted summary judgment to Wal-Mart, holding that Yager had not met her burden of pointing out evidence sufficient to raise any issue of fact for trial. This appeal followed.

An owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1. The invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). When undertaking the duty to keep the premises safe by the exercise of ordinary care, this includes inspecting the premises to discover anticipated dangerous conditions about which the owner does not have actual knowledge and taking reasonable precautions to protect invitees from dangers foreseeable from the use of the premises. OCGA § 51-3-1; Robinson, supra at 740.

Decided August 29, 2002.

Charles L. Day, for appellant.

McLain & Merritt, Albert J. Decusati, for appellees.

In this case, the Wal-Mart employee in charge of the toy department on the night in question stated that she did a walk-through inspection of the whole department approximately ten minutes before this accident and there were no super-soakers lying on the shelves outside of their boxes. But, even without this testimony, Wal-Mart is entitled to summary judgment because a water gun lying on a shelf in the toy department is not a hazard.

“ ‘[I]t is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.’ ” Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (1) (511 SE2d 579) (1999). Moreover, there is no duty to foresee dangers which are not reasonably expected and which would not occur except from unexpected acts. Sutton v. Sutton, 145 Ga. App. 22, 25 (243 SE2d 310) (1978). If a third party’s misconduct causes injury to a plaintiff while on the premises, the inquiry is whether the proprietor had superior knowledge of the danger that a third party would so act. Brownlee v. Winn-Dixie Atlanta, 240 Ga. App. 368, 370 (523 SE2d 596) (1999).

In the instant case, Yager has not pointed to any evidence of prior similar occurrences such that Wal-Mart could reasonably foresee that its actions or inactions would cause injury to Yager. McMul-len testified that although she had occasionally seen customers playing with toys in the toy department, she saw no one playing with the water guns before the accident and in all her time at Wal-Mart had never found anyone tampering with the guns and filling them with water.

Therefore it follows that Yager has not introduced evidence sufficient to raise an issue of triable fact on Wal-Mart’s superior knowledge of any dangerous condition. Accordingly, the trial court properly granted summary judgment to Wal-Mart on Yager’s claim.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       The Yagers were not married at the time of the accident but were at the time this case was filed.


author: Johnson, Presiding Judge.

text:
    A02A1229.
    In the Interest of J. R. H., a child.
    (570 SE2d 652)
   Johnson, Presiding Judge.

The father of minor J. R. H. appeals from the juvenile court order terminating his parental rights. He argues that there is insufficient evidence to support the termination order. The argument is without merit.

The standard of review in a termination of parental rights case is whether, upon viewing the evidence in the light most favorable to the appellee, a rational trier of fact could have found clear and convincing evidence that the parent’s rights should be lost. On appeal, we do not weigh the evidence or determine witness credibility; rather, we defer to the trial court’s findings of fact and simply determine the sufficiency of the evidence.

In the instant case, the evidence shows that minors J. J., J. R. H. and J. R. J. all have the same mother but different fathers. The mother also had a fourth child, K. J., who died in 2000. The mother first became involved with the Chatham County Department of Family & Children Services shortly after the birth of J. J. in 1992. The mother reported to a hospital that J. J. was having breathing problems, but the hospital staff eventually suspected that the mother was intentionally causing the problems. The hospital videotaped the mother smothering J. J. by tightly holding the child’s face against her chest. When the hospital monitor recording the child’s vital signs registered distress, the mother would place the child on her lap just before medical staff arrived.

Based on the hospital incident, the juvenile court found J. J. to be deprived and transferred temporary custody of the child to the Department. The mother was also convicted of felony cruelty to a child and sentenced to ten years on probation. The probation was later revoked, and the mother served a short term in jail.

In 1995, J. R. H. was born, and the mother gave permanent guardianship of the child to her own parents. The Department also transferred legal custody of J. J. to the maternal grandparents. In 1996, the mother gave birth to J. R. J., and K. J. was born in 1998.

When K. J. died in 2000, the Department discovered that the children had been residing with the mother. The Department filed a petition alleging deprivation of the three surviving children. The juvenile court determined that the children were deprived and gave the Department temporary legal custody of them.

J. R. H.’s father was convicted of forgery in 1997 and sentenced to eight years of probation. In 1999, his probation was revoked because he had committed the offense of aggravated assault with intent to rob. He is currently incarcerated, with a maximum parole date of 2005. The father has admitted that prior to his incarceration he did not provide financial support for the child, although he claims to have provided the mother with baby formula and other items. The father has further admitted that his felony conviction has adversely affected his relationship with the child.

In deciding whether to terminate parental rights, the court must first determine if there is present clear and convincing evidence of parental misconduct or inability. And if there is such evidence of misconduct, the court shall then consider whether termination of parental rights is in the best interest of the child.

Here, the juvenile court properly found clear and convincing evidence of misconduct by J. R. H.’s father. The court entered an order on June 15, 2000, finding that J. R. H. is deprived, and the child was later deemed deprived in various extension and custody orders. The father did not appeal from these orders and is thus bound by the finding that the child is deprived.

The court was further authorized to find that the deprivation is caused by the father’s lack of parental care or control, that the deprivation is likely to continue and that it will harm the child. The father was convicted of felony forgery, he violated his probation by committing an assault, he is now imprisoned with a maximum parole date of 2005 and his conviction has adversely affected his relationship with J. R. H. Except for a few months after the child’s birth, the father has not lived with the child, and he has failed to form a bond with the child. Both before and during his incarceration, he has not provided for the care and support of the child, and he has not consistently communicated with the child. Moreover, the father did not even seek to legitimate J. R. H. until the Department initiated termination proceedings, some six years after her birth. Based on all the circumstances, the juvenile court correctly found clear and convincing evidence of the father’s parental misconduct and inability.

Moreover, the same factors which show parental misconduct or inability can also support a finding that termination of parental rights is in the child’s best interest. Accordingly, given the father’s criminal record and incarceration, his neglect of the child, his failure to care for and support J. R. H. before being incarcerated and his failure to form any meaningful bond with the child, the juvenile court properly found that termination is in the best interest of J. R. H.

Decided August 29, 2002.

Darden, Burns & Burns, Richard M. Darden, Jennifer R. Burns, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        In the Interest of D. S. R., 246 Ga. App. 426, 427 (1) (541 SE2d 61) (2000).

       Id.

       OCGA § 15-11-94 (a).

       Id.

       OCGA § 15-11-94 (b) (4) (A) (i); In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

       OCGA § 15-11-94 (b) (4) (A) (ii)-(iv).

         OCGA § 15-11-94 (b) (4) (B) (iii).

       OCGA § 15-11-94 (b) (4) (C) (i).

       OCGA § 15-11-94 (b) (4) (C) (ii).

        In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996).


text:
    A02A1300.
    GALE INDUSTRIES, INC. v. O’HEARN.
    (570 SE2d 661)
   Phipps, Judge.

Gale Industries, Inc. (Gale) filed a complaint seeking to enjoin Troy O’Hearn from engaging in activities that it claimed violated the provisions of an Agreement to Preserve Corporate Opportunity (the Agreement). The trial court denied Gale’s application for a temporary injunction as to most of the activities prohibited by the Agreement. O’Hearn subsequently moved for summary judgment, and the trial court granted his motion. Gale appeals the summary judgment order. We find that summary judgment was appropriate and affirm.

On December 9, 1997, Gale entered into an Asset Purchase Agreement with Moultrie Insulation and Betty O’Heam, Moultrie Insulation’s sole stockholder,-whereby Gale purchased the assets of Moultrie Insulation. That same day, Gale entered into the Agreement and an Employment Agreement with Troy O’Hearn, the manager of Moultrie Insulation. Troy O’Hearn received $57,222 upon execution of the Agreement. O’Hearn testified that he signed the Agreement and the Employment Agreement because he was told that he had to sign them if he wanted to work for Gale. The Asset Purchase Agreement referenced both the Agreement and the Employment Agreement as ancillary agreements.

The Agreement provided that, for a period of five years, O’Hearn would not directly or indirectly engage in any restricted activities within a 100-mile radius of Moultrie Insulation’s location. The restricted activities included

the marketing, sale, installation and servicing of insulation products, fireplaces, fireplace surroundings, mantles, gas logs and fireplace accessories, mirrors, glass blocks, garage doors, acoustical ceilings, shelving, tub enclosures, wardrobe doors, gutters, glass/glazing, storefronts, firestopping materials, caulking, sealants, waterproofing materials, and any other activities that either [Moultrie Insulation] or Gale has engaged in from time to time.

The Agreement also provided that, for a period of five years, O’Hearn would not supply products or provide services covered by the definition of restricted activities to former customers of Moultrie Insulation or purchase products covered by the definition of restricted activities from former suppliers of Moultrie Insulation within a 100-mile radius of Moultrie Insulation’s location. O’Hearn was also prohibited from assisting others in engaging in restricted activities.

When employed by Moultrie Insulation, O’Hearn sold and installed insulation. When employed by Gale, O’Hearn sold and installed insulation, fireplaces, surrounds, shelving, mirrors, bath accessories, miniblinds and seamless gutters.

O’Heam admitted that, within the five-year period, he became part owner and an officer of Colquitt Insulation, which did business within a 100-mile radius of Moultrie Insulation. Colquitt Insulation’s business included the marketing, sale and installation of insulation products and seamless gutters.

1. Gale claims that the Agreement was ancillary to the sale of Moultrie Insulation and that its restrictions are reasonable. It further claims that any restrictions found to be unreasonable should be severed and the remaining restrictions upheld.

A covenant entered into as part of the sale of a business can generally be drafted more broadly than one entered into as part of an employment contract. “The rationale behind the distinction in analyzing covenants not to compete is that a contract of employment inherently involves parties of unequal bargaining power to the extent that the result is often a contract of adhesion. On the other hand, a contract for the sale of á business interest is far more likely to be one entered into by parties on equal footing.”

A different standard is applied in determining the validity of covenants contained in employment contracts and those which are a part of a contract to sell a business. When a portion of a covenant not to compete which is a part of a sale of a business interest is found to be unreasonable, the court has tended nevertheless to uphold the remaining portions of the covenant by “blue penciling” or severing the overly broad restrictions. On the other hand, the court has found covenants not to compete which are part of a contract of employment to be nonseverable and has held that overbreadth of one portion of the covenant so taints the entire covenant as to make it unenforceable.

However, “if a contract for the sale of a business and an employment contract are part of the same transaction they may be construed together to supply missing elements and blue penciled to make over-broad terms valid.”

In Lyle v. Memar, the Supreme Court of Georgia determined that a sales agreement and an employment agreement were not part of the same transaction because they were not executed contemporaneously and were not between the same parties. In Drumheller v. Drumheller Bag & Supply, this court held that a stock purchase agreement and employment agreements entered into by stockholders who were parties to the stock purchase agreement were part of the same transaction. We are presented with a situation that does not fit into either category — contemporaneous agreements entered into between different parties with the sole stockholder not a party to the agreement at issue.

We find that the Agreement and the Asset Purchase Agreement cannot be construed together as part of the same transaction. The agreements do not involve the same parties or the same subject matter. The Agreement is essentially a restatement of a provision of the Employment Agreement, whereas the Asset Purchase Agreement details the terms of the transfer of Moultrie Insulation’s assets to Gale. In addition, unlike the situation in Drumheller, the party subject to the restrictive covenant at issue was not a stockholder in the company sold. Thus, Gale possessed superior bargaining power when it came to negotiating the terms of the Agreement with O’Heam. We therefore analyze the restrictive covenants found in the Agreement under the stricter standard applicable to employment agreements and will not “blue pencil” or sever any overbroad restrictions.

Decided August 29, 2002

Ogletree, Deakins, Nash, Smoak & Stewart, Jay M. Barber, Erik S. Rodriguez, for appellant.

Whelchel, Whelchel & Carlton, James C. Whelchel, for appellee.

2. “Covenants not to compete in employment contracts are enforceable if they are reasonable in terms of duration, territorial coverage, and the scope of the activity precluded, considering the legitimate business interests the employer seeks to protect and the effect on the employee.”

Gale claims that O’Hearn violated the restriction precluding him from engaging in any restricted activities within a 100-mile radius of Moultrie Insulation’s location. We find that restriction unreasonable in terms of territory. Moultrie Insulation was located approximately 60 miles from the Florida state line. While employed by Gale, O’Heam did not perform sales or installation in or have contact with customers in Florida. “Where the restriction is broad — for example, not limited to clients the employee served — the territorial limitation must be specified and closely tied to the area in which the employee actually worked.” The restriction at issue is not limited to customers O’Hearn served or to the area where he actually worked. The 100-mile radiüs extends into Florida, where O’Hearn never performed services for Gale. In light of this defect, this restriction is unenforceable.

Gale also contends that O’Hearn violated the Agreement by assisting others in engaging in restricted activities within a 100-mile radius of Moultrie Insulation’s location and by doing business with current or former customers. Because both of these restrictions also contain the territorial limitation that we have determined to be unreasonable, they are also unenforceable.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       The Agreement contains other restrictions that we will not address because Gale has not mentioned them on appeal.

        Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 30 (2) (392 SE2d 717) (1990).

        Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985).

       Id. at 671-672.

        Lyle v. Memar, 259 Ga. 209, 210 (378 SE2d 465) (1989).

       Id.

       204 Ga. App. 623, 626-627 (1) (420 SE2d 331) (1992).

       Cf. Moran v. NAV Svcs., 189 Ga. App. 825, 826 (1) (377 SE2d 909) (1989) (contemporaneous agreements between the same parties with relation to the same subject matter may be construed together).

        Chaichimansour v. Pets Are People Too, 226 Ga. App. 69, 70 (1) (485 SE2d 248) (1997).

        Kuehn v. Selton & Assoc., 242 Ga. App. 662, 664 (1) (530 SE2d 787) (2000).

       See id. at 665.


text:
    A02A1594.
    SHAH v. TACO DEL SUR, INC.
    (570 SE2d 654)
   Phipps, Judge.

Navin Shah, defendant below, appeals from the grant of summary judgment to plaintiff Taco del Sur, Inc. in its action to enforce Shah’s guaranty obligation on a sublease. The trial court granted summary judgment to Taco del Sur, rejecting Shah’s argument that Taco del Sur failed to provide him with adequate notice of default on the sublease. We affirm.

In 1992, Taco del Sur subleased premises to Mahavir Corporation, and Shah guaranteed the performance of Mahavir’s obligations under the sublease. In 1998, Taco del Sur sued Mahavir for possession of the premises, and in September of that year those parties entered into a consent order under which Mahavir agreed to vacate the premises and Taco del Sur was entitled to a money judgment against Mahavir. In 2000, Taco del Sur sued Shah on his guaranty. Both parties moved for summary judgment, and the court granted Taco del Sur’s motion and denied Shah’s motion.

Shah’s guaranty provided that he “shall concurrently receive a copy of any written notices of default . . . which may be sent to [Mahavir].” Shah stipulated that he signed a certified mail return receipt for, and that Mahavir received, a notice of default dated May 7, 1998, written on behalf of Taco del Sur and addressed to “Mr. Navin M. Shah, Registered Agent/Mahavir Corporation/[address].” Shah has not disputed Taco del Sur’s claim, both below and here, that he was the registered agent for Mahavir. For its part, Taco del Sur does not dispute that it failed to send, concurrently or otherwise, a separate copy of this notice of default to Shah as guarantor.

1. Shah notes that OCGA § 10-7-3 provides that “[t]he contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation.” He also points out that OCGA § 10-7-1 provides, in part, that “[t]here shall be no distinction between contracts of suretyship and guaranty.” He thus argues that “[d]espite any seeming redundancy,” the court should not have granted summary judgment to Taco del Sur because it failed to send him concurrently copies of the notices it sent to Mahavir. He cites no authority involving any analogous factual situation, however.

Cohen v. Sandy Springs Crossing Assoc. involved, like this case, an action on a guaranty of a lease. There, in completing the guaranty form, the guarantor mistakenly filled in blanks for the dates of the lease and the guaranty with the current date even though the lease was not executed until two weeks later. The guarantor claimed that the discrepancy in dates relieved him of any obligation under the guaranty. We affirmed the grant of summary judgment against him, noting that “the guarantor admitted that he intended to guarantee the lease sued on.” Similarly, here Shah admitted that he guaranteed the sublease sued on.

In Cohen, we also noted that “[t]he only inconsistency between the guaranty and lease concerned the date of the lease,” holding that “the trial court properly considered parol evidence showing that in executing the guaranty [the guarantor] mistakenly inserted the wrong date for the lease.” Likewise, here Shah relies entirely on the fact that, although he received a notice of default addressed to him as registered agent of Mahavir, Taco del Sur failed to send him, as guarantor, a separate copy of that notice.

Additionally, Shah fails to identify any actual harm he sustained by Taco del Sur’s failure to send him, as guarantor, a copy of the notice it sent him as registered agent for Mahavir. In Smith v. Hendrix, we noted that “when the forfeiture of a lease depends upon giving a written notice of breach, it must appear that such notice was given in strict compliance with the terms of the lease.” Nonetheless, after noting that “[t]he manifest purpose of the . . . regulations [regarding notice] is to afford procedural due process,” we held that “appellant must. . . show that [any] noncompliance [with the regulations] has harmed her. . . . This court . . . corrects only such errors as have practically wronged the complaining party.”

2. Shah also claims that Taco del Sur’s “failure to strictly adhere to the provisions of the guaranty increased [Shah’s] risk and liability under the agreement.” He thus contends his guaranty obligation was discharged under OCGA § 10-7-22, which provides that “[a]ny act of the creditor . . . which . . . increases [the surety’s (or guarantor’s — OCGA § 10-7-1)] risk or exposes him to greater liability shall discharge him. . . .” Shah fails, however, to identify any such increased risk or liability, and we perceive none.

3. Finally, Shah contends that- “the guaranty contained an unsatisfied condition precedent” — i.e., the notice provision. He relies on the portion of OCGA § 13-3-4 providing that “[a] condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.” As we held in Division 1, however, that the condition was performed (because the notice was effective as to Shah as guarantor), this contention is likewise without merit.

Decided August 29, 2002.

William A. Wehunt, for appellant.

Arnall, Golden & Gregory, James A. Gober, Henry R. Chalmers, Andrew B. Flake, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

       238 Ga. App. 711 (520 SE2d 17) (1999).

       We noted that the guarantor relied primarily on Avec Corp. v. Schmidt, 207 Ga. App. 374 (427 SE2d 850) (1993), and in that case we relied on OCGA § 10-7-3. Id. at 375.

        Cohen, supra, 238 Ga. App. at 712.

       Id. at 713.

       See Reeves v. Habersham Bank, 254 Ga. 615, 623-624 (6) (331 SE2d 589) (1985) (notice sent to parties because of one status effective to give notice in different status where purpose of notification in latter status satisfied).

       162 Ga. App. 299, 301-303 (2) (290 SE2d 504) (1982).

       (Citation omitted; emphasis supplied.) Id. at 301.

       Id. at 302.

       (Citation and punctuation omitted.) Id.


text:
    A02A1835.
    WILBANKS v. ARTHUR.
    (570 SE2d 664)
   Phipps, Judge.

Mary Elizabeth Wilbanks Arthur filed a dispossessory action to remove her brother, Sandy Bartley Wilbanks, from a tract of land in Rabun County, claiming that Wilbanks was a tenant at sufferance with no authority to occupy the property. The superior court awarded judgment to Arthur. Wilbanks appeals, arguing that the court erred in failing to find that Arthur had lost title to the property through the adverse possession of their mother. We vacate and remand for the court to consider the issue of adverse possession.

Marlor Wilbanks died intestate in 1968, leaving a widow (Wilda Wilbanks), one minor child (Mary Wilbanks, now Arthur), and several adult children, including Sandy Wilbanks. Wilda Wilbanks and her minor daughter were awarded a year’s support, which included the 4.86-acre tract where they lived. By warranty deed dated October 17, 1969, Wilda Wilbanks and all heirs at law of Marlor Wilbanks — including Sandy Wilbanks — transferred the property to Arthur in fee simple, but reserved a life estate for Wilda Wilbanks. On November 4, 1972, Wilda Wilbanks deeded her remaining interest in the property to Arthur.

Despite these transfers, Wilda Wilbanks continued living on the property by herself until 1995, when Sandy Wilbanks moved there. Wilbanks testified that, at his mother’s request and in order to take care of her, he moved into her house for a short time, and then into a mobile home he placed next to the house. He admitted that he had no title to the property. He claimed, however, that his mother had acquired title to the property by adverse possession, and that he occupied it with her permission.

After a bench trial, the court awarded possession to Arthur. It ruled that Wilbanks was a tenant at sufferance and therefore “cannot claim a defect in [Arthur’s] title as a defense to th[e] proceeding for possession.” Thus, the court did not consider whether Arthur lost title to the property through the adverse possession of her mother. Wilbanks argues that the court erred by failing to consider that question, and we agree.

We will not disturb a trial court’s factual findings made after a bench trial unless they are clearly erroneous, and we will affirm the court’s decision if it is right for any reason. But “where it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm.”

Under OCGA § 44-7-50 (a), a tenant at sufferance is subject to summary dispossession by the landlord. To prevail in its dispossessory action, the landlord must prove (1) that the parties stood in the relationship of landlord and tenant and (2) that she demanded possession of the tenant. Although an asserted defect in the landlord’s title is not a proper defense to a summary dispossessory action, the claim of no landlord-tenant relationship is an appropriate defense. Wilbanks is not challenging the validity of Arthur’s original title to the property; he is arguing that she lost that title through adverse possession by their mother. If he is correct, then Arthur was not his landlord and was not entitled to evict him from the premises under OCGA § 44-7-50. Accordingly, the court erred by failing to consider whether Wilda Wilbanks acquired the property through prescription.

Title may be acquired by adverse possession that is public, continuous, exclusive, uninterrupted, and peaceable. However, “[pier-missive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.” Conflicting evidence was presented concerning the nature of Wilda Wilbanks’s possession of the land. There was evidence that she had lived there openly, continuously, and peaceably since at least 1969; that she paid the property taxes; that she had borrowed money using the property as collateral; and even that she had purported to convey portions of the property to other people. There was also testimony that Arthur only recently had claimed to own the property and that she never expressly granted her mother permission to live there. Certain testimony from Arthur, however, suggests that her mother’s possession of the property was permissive, not adverse.

Decided August 29, 2002.

William B. Barker, for appellant.

Harrison & Harrison, G. Hughel Harrison, for appellee.

Because the court failed to address and resolve this conflicting evidence, we vacate its order and remand for a determination of whether Arthur was Wilbanks’s landlord or whether she lost title to the property through adverse possession.

Judgment vacated and case remanded.

Andrews, P. J., and Mikell, J, concur.

       He also asserted the equitable defenses of unclean hands, laches, and unjust enrichment, but those are not at issue on appeal.

        Allstate Ins. Co. v. Spillers, 252 Ga. App. 26, 28 (555 SE2d 489) (2001).

       (Punctuation and footnote omitted.) Id.

        Good Ol’ Days Commissary v. Longcrier Family Ltd. Partnership 1, 240 Ga. App. 111, 113 (1) (522 SE2d 249) (1999).

       See Holy Fellowship Church &c. v. Greater Travelers Rest Baptist Church, 236 Ga. App. 177, 178-179 (1) (511 SE2d 280) (1999); Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 593 (2) (409 SE2d 71) (1991).

       OCGA § 44-5-161 (a) (3).

       OCGA § 44-5-161 (b).


author: Barnes, Judge.

text:
    A02A1079.
    HASSEL v. THE STATE.
    (570 SE2d 685)
   Barnes, Judge.

A jury convicted Rolland W. Hassel of criminal attempt to commit armed robbery and aggravated assault. He appeals, contending that the trial court erred by admitting testimony about other armed robberies into evidence and that the evidence adduced at trial was insufficient to sustain his conviction of aggravated assault. We affirm.

1. We review the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence established that Hassel, Christopher Arthur, and Christopher Gills planned to commit an armed robbery. Hassel drove the two men to a liquor store and parked. Hassel then gave Arthur a .38 caliber revolver, which Hassel had loaded earlier in the day. The men then walked up to the liquor store, and Hassel scouted inside to see if anyone was there. He told Arthur and Gills that two men were in the store, and all three men donned masks.

Hassel expressed reservations about continuing with the robbery, because he had a “bad feeling that something wasn’t right and that he didn’t want to go into the store.” After the other two said they were going to rob the store anyway, he followed until he was about five to fifteen feet from the door.

Acting according to their original plan, Hassel stayed near the outside of the door as a lookout while Arthur, armed with the .38 caliber revolver Hassel gave him, and Gills entered the liquor store to commit the robbery while Hassel stood at the doorway with his mask on. Arthur and Gills ordered the men to “get on the ground.” One did so, but the other man, who was standing at the cash register, pulled a gun from beneath the counter and began firing. Arthur fired back striking the man and causing a fatal wound. The three men ran out and jumped in the car, and Hassel drove them away.

2. Hassel contends the trial court erred by admitting evidence of other armed robberies because he was not convicted of them and also because several distinct differences existed between those armed robberies and the one for which he was being tried. The trial court held, however, that the evidence was admissible because the State was not seeking to introduce the evidence of these independent offenses based on an improper reason, but rather for the purpose of showing method of operation and identity.

The evidence showed that several young men, including Hassel, Christopher Arthur, and Gills, as well as their friends, Shawn Arthur, Scott, and Neely, were all a part of a “robbing crew.” These individuals were familiar with each other because they all knew each other from the apartments in which they lived. Hassel, Christopher Arthur, and Gills were the three who took part in the robbery of the liquor store for which Hassel has been convicted and which is the subject of this appeal.

A clerk at a CVS Pharmacy testified that one night around midnight as she was stocking shelves, she turned around and saw a man wearing a ski mask pointing a gun at her. He told her to go up front, but she was too scared to move. The robber went back to the pharmacy and got the pharmacist. He forced the clerk and the pharmacist, at gunpoint, upstairs into the manager’s office. The store manager and a second masked robber were already there. This second robber was taking money out of the safe. A gun was on the floor beside him. The two robbers put the money in their pockets and left the store. The clerk, however, was unable to identify either robber.

At trial, Christopher Arthur testified that he, Hassel, and Neely committed an armed robbery of this CVS Pharmacy. He testified that he, Hassel, and Neely planned the robbery. He also testified that he acted as a lookout, while Hassel and Neely went inside the store. Arthur then stated that Neely had a rifle and both were masked. They came out of the store about five minutes after they went in with some money that they had obtained from the robbery. Arthur also testified that Hassel told him that Neely went to the office part of the CVS to get all the money while he went back to see if any customers were there.

Neely testified that he had been charged in a number of robberies in January and February 2000. Some of the charges arose from the armed robbery of a Chinese restaurant, some from the CVS robbery, and some from the robbery of a Vietnamese grocery store. Neely pled guilty to the armed robbery of the CVS Pharmacy. He testified that Arthur drove him and Hassel to the pharmacy in his car, and that he and Hassel, both armed with guns and wearing masks, robbed the store. Neely obtained the money, which was split three ways between himself, Hassel, and Arthur.

Neely also testified that he, Hassel, and Shawn Arthur committed an armed robbery of a Vietnamese grocery store in Clarkston. Neely testified that the three of them planned the robbery, and that Arthur’s girlfriend drove them to the scene. He and Hassel entered the store, Neely with a gun and Hassel without one. The two robbed the store, left, and then divided the money three ways.

The owner of a Vietnamese grocery store in Clarkston testified that two robbers came into his store wearing masks and gloves. One had a small square gun. They ordered him to open his cash drawer. At first he refused, but when they showed him the gun, he opened the cash drawer. The gunman pointed the gun at his face while the other man removed money from the register and took a cigarette lighter from the case behind the owner. When a customer entered the store, the gunman put the gun to her head and took the money in her purse.

Concluding that the evidence was relevant to show the method of operation of the robberies and Hassel’s identity, the trial court admitted the evidence of the two similar transactions. The court also found “sufficient similarities in that the two other incidents were relatively close in time, as well as geographic location. They involved multiple individuals. They all involved the use of a handgun or firearm, as the weapon, and involved commercial establishments.”

It is well settled that there need not be criminal charges or conviction relating to a similar offense for it to be admissible. Johnson v. State, 193 Ga. App. 618 (388 SE2d 866) (1989). Consequently, Has-sel’s argument based on the lack of conviction is without merit.

Decided August 30, 2002.

Robert J. Storms, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Assistant District Attorneys, for appellee.

Further, his argument that the various robberies were not similar enough is also without merit. “The test... is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citation and punctuation omitted.) Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). Pretermitting whether the similarities between the robberies were enough to show that the crime on trial bore the defendant’s criminal signature, the trial court also allowed the similar transaction evidence in to show the method of operation of the robberies. In particular, the evidence of these other robberies tended to show that it was not unusual for one of the robbers to remain outside the store as a lookout. Therefore, while the crimes differed in some respects, the trial court did not err in concluding that the similarities were sufficient to tend to prove the method of operation Hassel and his accomplices used to commit armed robberies.

3. Hassel further contends the evidence presented at trial is insufficient to sustain his conviction because he withdrew from the criminal enterprise before it happened and did not personally assault the victim. Hassel need not actually assault a victim, however, to be guilty of aggravated assault. The State need only show that Hassel intentionally aided or abetted in the commission of the assault, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime for the jury to find him guilty of aggravated assault as a party to the crime. See OCGA § 16-2-20. The evidence here showed Hassel planned the robbery, furnished the gun, and acted as a lookout. Therefore, the evidence was sufficient to sustain Hassel’s conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

       Hassel was also indicted for malice murder and felony murder, but a directed verdict of acquittal was granted on the malice murder count and a mistrial was declared on the felony murder after the jury could not reach a verdict.

       Arthur pled guilty to felony murder and received a life sentence.


author: MlKELL, Judge.

text:
    A02A1226.
    FREEMAN v. THE STATE.
    (570 SE2d 669)
   MlKELL, Judge.

A jury convicted Leondra Freeman of aggravated assault. On appeal from the denial of his motion for new trial, Freeman argues that the trial court erred in sustaining the state’s objection to a question posed on recross-examination and in refusing to charge the jury on reckless conduct. Freeman also raises the general grounds. Finding no error, we affirm.

On appeal the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that at approximately 11:30 p.m. on January 1, 1999, Gerald Lavon Baker went to a bar after work. Baker testified that when the bar closed at 2:00 a.m., he walked to the rear of the parking lot to speak with an old high school friend named “Michelle.”

According to Baker, while he was talking to Michelle, Freeman and three other men approached them, tried to engage Michelle in conversation, and urged Baker to leave. When Michelle ignored Freeman and continued talking to Baker, Freeman became aggravated and violent, swearing at Baker. Freeman pulled a gun from his waistband and told Baker he had three seconds to get out of there. Then Freeman fired one shot in the air. Baker testified that he tried to defuse the situation. However, according to Baker, Freeman said, “oh, you haven’t left yet? You’re not running yet FN?” Then he pointed the gun at Baker and shot him. The bullet went through Baker’s wrist and then entered his thigh.

Baker went to his car to retrieve his firearm. He testified that he was afraid that Freeman might be “coming to finish the job.” Baker also admitted that retaliation might have been in his mind. He fired a shot in the air, but then the gun jammed. In any event, by the time Baker returned to where he had been shot, Freeman was gone.

Baker was accompanied in the parking lot by a friend, Kirby Cooper. Cooper testified that Freeman, whom he knew as “Tyree,” told Baker, “M give you three seconds to move from this area.” According to Cooper, Freeman then pointed a pistol at Baker and shot him. Cooper testified that Baker did not have a gun on his person at the time.

Latrish M. Baldwin, a cousin of Baker, was also in the parking lot when the shooting occurred. She testified that she heard two gunshots, and that when she looked up, she heard Baker say that he had been shot. Baldwin then saw Freeman run in front of her car with a gun in his right hand. Baldwin accompanied Baker to his car, trying to calm him down. Baldwin also testified that Baker retrieved his gun and shot it once in the air, and that the gun jammed.

Corporal Chuck Murray of the Brunswick Police Department, the lead investigator on the case, testified that Freeman made a voluntary, spontaneous statement when he was served with the arrest warrants. Freeman inquired, “what can I do about this?” When Murray asked what Freeman meant, he replied, “I didn’t have the gun on me. Someone- gave me the gun.”

Freeman testified that when he approached the young lady to whom Baker was speaking, Baker was “pulling on her and she was trying to tell him to leave.” Freeman claimed that Baker began cursing at him and threatened to blow his brains out. According to Freeman, Baker then reached inside his pants “like he was reaching for a gun. . . . So I fired a shot up in the air and told him to take his hand out his pants. He was like you just better get away. So I shot down at the ground.” Freeman testified that when he shot at the ground, “you could see the dust. I know he wasn’t hit.” Freeman claimed Baker walked off and fired two shots “and that’s when I started walking.”

1. OCGA § 16-5-21 (a) (2) provides that aggravated assault is committed when a person assaults “[w]ith a deadly weapon or with any . . . instrument which, when used offensively against a person, is likely to or actually does [cause] serious bodily injury.” As Freeman correctly notes, the crime requires proof of only a general intent to injure. General intent to injure may be proven by circumstantial evidence and is a question of fact for the jury to decide. Contrary to Freeman’s argument, the evidence presented at trial was more than sufficient for the jury to find this essential element of the crime beyond a reasonable doubt.

2. On recross-examination, defense counsel asked Baker whether he was right-handed or left-handed. The state objected, arguing that the question was outside the scope of redirect examination. The court sustained the objection. Counsel thanked the court, did not except to the ruling, and did not argue the relevance of the testimony. Appellate counsel concedes that the question exceeded the scope of redirect examination and that defense counsel overlooked it while cross-examining Baker. “The trial court has discretion to limit the scope of recross-examination, which is not intended for the introduction of new matter.” In the instant case, we conclude that the trial court did not abuse its discretion by prohibiting the question as beyond the scope of redirect. Moreover, having failed to make any exception to this ruling, Freeman has waived his right to object to the ruling on appeal.

Decided August 30, 2002.

Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

3. Finally, Freeman argues that the trial court erred in refusing his oral request to charge the jury on reckless conduct as a lesser included offense. “Absent a written request for a charge on a lesser included offense, made at or before the close of the evidence, the failure to so charge is not error. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).” This enumeration is meritless.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Grant v. State, 248 Ga. App. 203 (1) (546 SE2d 339) (2001), citing Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991).

       Id.

        Scott v. State, 227 Ga. App. 900, 902 (4) (d) (490 SE2d 208) (1997).

        Gober v. State, 249 Ga. App. 168, 173 (3) (547 SE2d 656) (2001).

        Howe v. State, 250 Ga. 811, 813 (2) (301 SE2d 280) (1983).