author: Ellington, Judge. Andrews, Presiding Judge,

text:
    A00A0429.
    HOOTERS OF AUGUSTA, INC. v. NICHOLSON et al.
    (537 SE2d 468)
   Ellington, Judge.

Sam Nicholson filed a class action against Bambi Clark d/b/a Value-Fax of Augusta and Hooters of Augusta, Inc., alleging that Hooters used Clark to send unsolicited advertisements to facsimile machines in violation of the federal Telephone Consumer Protection Act (“TCPA”), 47 USC § 227. The class action complaint sought injunctive relief and statutory damages for each violation. The trial court certified the class. The trial court denied Hooters’ motion to dismiss and motion for summary judgment. Following the grant of its application for interlocutory review, Hooters appeals, contending that the plaintiffs have no private right of action under the TCPA; that the TCPA cannot reach purely intrastate communications; that Hooters is not liable for the conduct of an independent contractor; and that the class was improperly certified. For the reasons which follow, we affirm.

1. Hooters contends that Nicholson and the other class members may assert a claim under the TCPA only if Georgia law explicitly provides a private right of action for intrastate unsolicited facsimile advertisements and that, because Georgia law does not so provide, the trial court erred in denying Hooters’ motion to dismiss.

(a) We first examine whether consumers in general may bring private actions under the TCPA only if applicable state law explicitly provides such a right for intrastate transmissions. The TCPA prohibits a number of specific telemarketing activities, including in pertinent part “the use of any device to send an unsolicited advertisement to a telephone facsimile machine.” Erienet, Inc. v. Velocity Net, 156 F3d 513, 514-515 (3rd Cir. 1998); see 47 USC § 227 (b) (1) (C). With regard to enforcement, the TCPA authorizes states to bring civil actions in federal court on behalf of their residents for violations of the act. 47 USC § 227 (f). In addition to state enforcement, the subsection of the TCPA which prohibits unsolicited facsimile advertisements provides for a private right of action, as follows:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State — (A) an action based on a violation of this subsection ... to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.

(Emphasis supplied.) 47 USC § 227 (b) (3).

As the trial court recognized, whether the complaint states a cause of action turns on the interpretation of the clause “if otherwise permitted by the laws or rules of court of a State.” In opposing Hooters’ motion to dismiss for failure to state a claim, Nicholson argued that the clause means that state courts may automatically hear TCPA actions unless the state “opts out” and enacts a law prohibiting such private actions in its courts. The trial court agreed, adopting the construction set out in an opinion from the Court of Appeals for the Fourth Circuit, Intl. Science &c. Inst. v. Inacom Communications, 106 F3d 1146 (4th Cir. 1997). In Intl. Science, the Fourth Circuit explained in dicta:

The clause in 47 U.S.C. § 227 (b) (3) “if otherwise permitted by the laws or rules of court of a State” does not condition the substantive right to be free from unsolicited faxes on state approval. . . . Eather, the clause recognizes that states may refuse to exercise the jurisdiction authorized by the statute. Thus, a state could decide to prevent its courts from hearing private actions to enforce the TCPA’s substantive rights. . . . [Concerned over the potential impact of private actions on the administration of state courts, Congress included a provision to allow the states to prohibit private TCPA actions in their courts. . . . With those interests in mind and recognizing that other enforcement mechanisms are available in the TCPA, we believe Congress acted rationally in . . . allowing states to close [their courts] to the millions of private actions that could be filed if only a small portion of each year’s 6.57 billion telemarketing transmissions were illegal under the TCPA.

(Emphasis supplied.) Id. at 1156-1157. The Fourth Circuit concluded the TCPA “recognizes state power to reject Congress’ authorization” of private enforcement but does not require explicit enabling legislation. Id. at 1158. The trial court in this case applied the same opt-out analysis and concluded “even though Georgia law does not expressly allow private TCPA actions, it does not expressly prohibit them either,” and on this basis denied Hooters’ motion to dismiss for failure to state a claim.

The few state court decisions construing the clause are not in agreement. In the absence of clear and controlling authority, we will not construe the TCPA in a manner which leaves Georgia citizens without a remedy. We are persuaded by the analysis in Inti. Science quoted above and therefore construe the TCPA as creating a private right of action and conferring jurisdiction upon state courts.

(b) The trial court correctly determined that Georgia law does not expressly prohibit private TCPA actions for the transmission of unsolicited facsimile advertisements. The Georgia Public Utilities Code prohibits the transmission of unsolicited facsimile advertisements; private actions are neither explicitly authorized nor forbidden in the relevant Code section. OCGA § 46-5-25. In accordance with our conclusion in Division 1 (a), the absence of a statute declining to exercise the jurisdiction authorized by the TCPA gives Georgia citizens the right to seek the relief provided by the TCPA.

We believe the dissent reads too much into the explicit inclusion of a private cause of action in a related Code section, OCGA § 46-5-27 (i), which deals with telephone solicitations to residences. Section 46-5-27 was enacted in 1998 — after the TCPA had been in place for seven years. We can certainly presume the legislature drafted OCGA § 46-5-27 with awareness of the TCPA. OCGA § 46-5-25, on the other hand, was enacted in 1990 — the year before the TCPA — in the first wave of the Georgia General Assembly’s attempt to address the public’s frustration with telemarketing abuses. Obviously, we cannot presume the legislature drafted OCGA § 46-5-25 with the TCPA’s private right of action in mind.

Furthermore, until this year no state or federal court in a published opinion interpreted the clause “if otherwise permitted by the laws ... of a State” as signifying that the TCPA allows a private right of action to be brought in state court for interstate communications only if the state legislature passes legislation consenting to state court actions based on the TCPA. Autoflex Leasing v. Manufacturers Auto Leasing, 16 SW3d 815, 817 (Tex. App. 2000). As noted above, the interpretation of that clause remains the subject of dispute. See Kaplan v. Democrat & Chronicle, 698 NYS2d 799, 800 (App. Div. 1999); Kaplan v. First City Mtg., 701 NYS2d 859, 863 (City Ct. 1999). Our rule of statutory construction which requires us to presume that the legislature is aware of existing law does not require us to presume that the legislature’s failure to include a private right of action in OCGA § 46-5-25 “was a considered choice” under these circumstances.

Because we conclude that Georgia consumers may pursue private actions under the TCPA, the trial court correctly denied the motion to dismiss. See Cellular One v. Emanuel County, 227 Ga. App. 197-198 (489 SE2d 50) (1997).

2. Hooters contends that the TCPA cannot reach purely intrastate communications. See 47 USC § 152 (a) (limiting the Communications Act to interstate and foreign communications). As the trial court found, however, Congress expressed its intent to regulate both interstate and intrastate communications under the TCPA by amending 47 USC § 152 (b) to specifically except the TCPA from the “interstate” limitation of 47 USC § 152 (a). The Commission’s enabling rules further show that the TCPA governs both intrastate and interstate transmissions. See 47 CFR § 64.1200 et seq. The trial court did not err in denying Hooters’ motion to dismiss or for summary judgment on this basis.

3. Hooters contends it cannot be held liable under the TCPA for Clark’s conduct because she was an independent contractor. First, a jury question remains regarding Clark’s status as an independent contractor. Generally, an employer-employee relationship, and the possibility of vicarious liability under the theory of respondeat superior, exists when the employer has the right to control the time and manner of executing the work. Owens v. BarclaysAmerican/Mtg. Corp., 218 Ga. App. 160, 161 (460 SE2d 835) (1995). An independent contractor, on the other hand, has the right to perform the work by his own means, method and manner; the employer has the right merely to require certain results. Id. In this case, the trial court correctly determined that the evidence presented a jury question as to Hooters’ right to control the means, method and manner of executing the work, specifically in terms of designing and producing the ad and (more importantly for determining whether the advertisements were unsolicited and therefore in violation of the TCPA) in terms of deciding who would receive the newsletter. The court correctly denied Hooters’ motion for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

To provide some guidance to the trial court, we note that even if the jury finds that Clark was an independent contractor, Hooters may still be liable for unsolicited facsimile advertisements. Under the TCPA, “the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the [TCPA’s] rule banning unsolicited facsimile advertisements.” Release No. 95-310 of the Federal Communications Commission, CC Docket No. 92-90, 10 FCC Rcd 12391 (1995), Pars. 34-35. Based on this authority, we conclude that an advertiser may not avoid liability under the TCPA solely on the basis that the transmission was executed by an independent contractor.

4. Hooters contends that the class was improperly certified. The certification of a class action is a matter of discretion with the trial judge, and, absent an abuse of that discretion, we will not disturb the trial court’s decision. Taylor Auto Group v. Jessie, 241 Ga. App. 602, 603 (2) (527 SE2d 256) (1999). Under OCGA § 9-11-23, a class action is authorized if the members of the class share a common right, and common questions of law or fact predominate over individual questions of law or fact. Trend Star Continental, Ltd. v. Branham, 220 Ga. App. 781, 782 (1) (469 SE2d 750) (1996). In this case, the trial court conducted a hearing and certified the class upon concluding that the class is so numerous as to make it impracticable to bring all members before the court; that the questions of law and fact common to the class members predominate over any individual questions; that the claim of the named plaintiff is typical of the claims of the members of the class; that the named plaintiff and class counsel will adequately represent the interests of the class; and that a class action is superior to other available methods of achieving a fair and efficient adjudication of the controversy. The trial court did not abuse its discretion in certifying the class.

Judgment affirmed.

Ruffin, Eldridge, Barnes and Mikell, JJ, concur. Andrews, P. J., and Blackburn, P. J., dissent.

Andrews, Presiding Judge,

dissenting.

Because Georgia does not provide for a private right of action under 47 USC § 227, I respectfully dissent.

The provision in question states that a person or entity may, “if otherwise permitted by the laws or rules of court of a State,” bring an action based on a violation of the Telephone Consumer Protection Act. Whether Nicholson’s class action suit is proper turns on the interpretation of “if otherwise permitted by the laws or rules of court of a State.”

When the language of a statute is plain and susceptible of but one reasonable construction, we have no authority to place a different construction on it but must construe it according to its terms. State Farm &c. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 742 (402 SE2d 759) (1991). Here, the plain language of the statute does not accord with the majority’s conclusion. The majority opinion ignores the language of the statute and changes “otherwise permitted by” to “unless prohibited by,” an unwarranted construction under the “plain language” rule.

Even if there were some ambiguity in the meaning, the rules of statutory interpretation do not support the majority’s conclusion. “The cardinal rule of statutory interpretation is to ascertain the legislative intent, keeping in view at all times the old law, the evil, and the remedy.” Kemp v. City of Claxton, 269 Ga. 173, 175 (496 SE2d 712) (1998). The legislative history shows that the purpose of the Act was to supplement State law in this area. “Over half the States now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operations; therefore, Federal law is needed to control residential telemarketing practices.” 47 USC § 227, Congressional Statement of Findings (7). Thus, the purpose of this statute was not to go beyond what the State was already doing to regulate the telemarketers, but rather to allow the States to reach those telemarketers which were evading state jurisdiction by operating interstate.

Unlike the New York opinion cited by the majority, a Texas appeals court determined that Congress intended that the States would pass their own legislation providing for these private rights of action. Autoflex Leasing v. Manufacturers Auto Leasing, 16 SW3d 815 (Tex. App. 2000). In reaching this conclusion, the Texas court noted the remarks of Senator Hollings, on this provision of the Act:

The substitute bill contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. . . . Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.

137 Cong. Rec. S16205-06 (daily ed. November 7, 1991) (statement of Sen. Hollings). Thus, we see that Congress intended that the States, if they chose to permit a private right of action, would implement guidelines providing for how and where these claims could be brought.

Moreover, it is interesting to note that when this case was removed to federal court, the district court granted Hooters’ motion to dismiss, holding that the plain language and legislative history of the TCPA support the conclusion that a private cause of action may not be brought under the TCPA unless the State has authorized private civil enforcement of its own telecommunications regulations. Nicholson v. Hooters of Augusta, No. 95-00101-Cv-1 (S.D. Ga. 1996).

Finally, even assuming the majority’s interpretation of the federal statute is correct, Georgia does not permit a private right of action for this claim, but rather has expressly stated that enforcement of this claim is entrusted to the public service commission. OCGA § 46-5-25, Transmission of unsolicited commercial facsimile messages, provides in pertinent part:

(e) The commission is charged with the responsibility of civil enforcement of this Code section and the commission shall require local exchange companies to file with the commission appropriate tariff revisions to implement this subsection. Any person who violates the provisions of this Code section shall be subject to disconnection of telephone service if the violation does not cease within ten days from the date of notification to such person by the local exchange company; and the tariff revisions filed by local exchange companies shall provide for the giving of such notification by local exchange companies and for such disconnection of service.

In contrast, the General Assembly did provide for a private right of action in OCGA § 46-5-27 which deals with telephone solicitations to residences:

(i) Any person who has received more than one telephone solicitation within any 12 month period by or on behalf of the same person or entity in violation of subsection (c) or (g) of this Code section may either bring an action to enjoin such violation; bring an action to recover for actual monetary loss from such knowing violation or to receive up to $2,000.00 in damages for each such knowing violation, whichever is greater; or bring both such actions.

Under the rules of statutory construction we must construe all related statutes together, giving meaning to each part of the statute. Also, we must presume that when the legislature enacted OCGA § 46-5-27 and included a private right of action, it was aware of existing law at the time and therefore aware that it did not include a private right of action in OCGA § 46-5-25. See Hart v. Owens-Illinois, Inc., 250 Ga. 397, 400 (297 SE2d 462) (1982). Therefore, we must also presume that the legislature’s failure to include a private right of action under OCGA § 46-5-25 was a matter of considered choice. Transp. Ins. Co. v. El Chico Restaurants, 271 Ga. 774, 776 (524 SE2d 486) (1999).

Decided July 14, 2000

Reconsideration denied July 27, 2000

Fulcher, Hagler, Reed, Hanks & Harper, Mark C. Wilby, Elizabeth McLeod, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Frank M. Lowrey IV, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellees.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Stacey Ferris-Smith, Assistant Attorney General, amici curiae.

Although there could be some ambiguity if this were simply a question of construing a federal statute, that does not arise in this case because the Georgia legislature has already spoken on this issue. Georgia has a statute in place that covers the claim in this lawsuit. Nicholson could not proceed under that statute because Georgia law does not permit a private right of action.

I am authorized to state that Presiding Judge Blackburn joins in this dissent.

       Since the trial court’s decision, New York adopted the Inti. Science analysis in the context of unsolicited facsimile advertisements. Kaplan v. Democrat & Chronicle, 698 NYS2d 799, 800 (App. Div. 1999); Kaplan v. First City Mtg., 701 NYS2d 859, 863 (City Ct. 1999). See also Charvat v. ATW, Inc., 127 Ohio App.3d 288 (712 NE2d 805) (1998); Szefczek v. Hillsborough Beacon, 286 N.J. Super. 247 (668 A2d 1099) (1995), cited by the trial court, recognizing a private right of action under another similar subsection of the TCPA, 47 USC § 227 (c), despite the absence of any enabling state legislation. Texas, on the other hand, recently adopted the opt-in analysis urged by Hooters. See Autoflex Leasing v. Manufacturers Auto Leasing, 16 SW3d 815, 817 (Tex. App. 2000).

       Actions brought under 47 USC § 227 by private citizens may not be brought in federal court. Intl. Science, 106 F3d at 1150; Chair King, Inc. v. Houston Cellular Corp., 131 F3d 507, 509 (5th Cir. 1997); Nicholson v. Hooters of Augusta, 136 F3d 1287-1288, modified, 140 F3d 898 (11th Cir. 1998); Erienet, 156 F3d at 516; Foxhall Realty Law Offices v. Telecommunications Premium Svcs., 156 F3d 432, 438 (2nd Cir. 1998); Murphey v. Lanier, 204 F3d 911 (9th Cir. 2000).

       Writing as amicus curiae, the Georgia Public Service Commission, the agency charged with civil enforcement of OCGA § 46-5-25, agreed that Georgia law does not forbid private actions for TCPA violations and that the right to bring a TCPA suit in Georgia applies to intrastate facsimiles.

       Ga. L. 1998, p. 505, § 1.

       Indeed, the legislative findings included in OCGA § 46-5-27 restated nearly verbatim many of the legislative findings of the TCPA. Compare OCGA § 46-5-27 (a) (1)-(6) and 47 USC § 227, Congressional Statement of Findings (1)-(3), (5)-(6), (9).

       Ga. L. 1990, p. 252, § 1.

       As amended, 47 USC § 152 (b) provides:
      Except as provided in sections 223 through 227 [the TCPA] . .. nothing in this Act shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier.

       Similarly, OCGA § 46-5-25 (b), which makes it unlawful to “employ or direct another person to initiate the transmission of, or contract for the initiation of the transmission of” an unsolicited advertisement by facsimile, clearly contemplates holding the advertiser liable for unsolicited facsimile advertisements, regardless of whether the person who pushes the “send” button is an employee or an independent contractor.

       On appeal, the Eleventh Circuit determined that federal courts lack subject matter jurisdiction of private actions under the Act. Nicholson v. Hooters of Augusta, 136 F3d 1287 (11th Cir. 1998).


source: Caselaw Access Project

author: Miller, Judge. Smith, Presiding Judge,

license: Public Domain

text:
    A00A0453.
    JACKSON v. WAFFLE HOUSE, INC.
    (537 SE2d 188)
   Miller, Judge.

Plaintiff Lois Donigan Jackson sued Waffle House, Inc. for personal injuries sustained when she tripped and fell in the parking lot of defendant’s restaurant. Waffle House moved for summary judgment, because Jackson admitted she was “well aware of the [rough and uneven] condition of the parking lot” and because she further admitted that she would have noticed the uneven pavement, had she been looking. The trial court granted defendant’s motion, concluding that Jackson was aware of any hazard created by the condition of the parking lot and failed, as a matter of law, to exercise the proper amount of caution in traversing the parking lot. Because it remains for a jury to determine whether plaintiff exercised ordinary care in this instance to avoid any hazard posed by the irregular surface of the parking lot, we reverse.

Viewed in the light most favorable to plaintiff as the nonmovant, the evidence revealed that on most every Friday since at least 1988, Jackson met her son and granddaughter at this Waffle House around noon for lunch. On rainless March 29,1996, 74-year-old Jackson drove her car to this Waffle House and entered without incident, although in Jackson’s opinion, this parking lot was in terrible condition. Specifically, the parking lot was not very level but was slanting and sloped and was not comfortable to walk on. When asked whether the parking lot had holes in it, plaintiff responded, “It was awfully rough,” meaning the entire parking lot needed repairs.

Plaintiff had no difficulty in entering the restaurant on this occasion because she is “very careful where [she] stepfs] [and because she does not] like to walk in puddles of water, either.” She was wearing crepe rubber sole shoes. As plaintiff’s party left the restaurant after their meal, workers were blocking the intended exit, so they used the other. Plaintiff stepped off the curb, which is a little high, took “one, two, or three steps, and the next thing [she] knew, bam and that was it.” Although plaintiff declined to identify the precise spot where she fell, relying on her son’s statement, she did confirm a photograph her son took represented “the direction [she] was in[,] . . . the area in which [plaintiff and her son] were in when [they] left the restaurant.” She fell because the area where she put her foot was defective, in that it was “sunk in, dug out.” In Jackson’s view, the owner or occupier “should have had that area smoothed,” and “[flilled in so it would be a smooth surface.” Jackson did not think that particular hole was highlighted with yellow paint.

Jackson was not taking any medication that day, nor drinking alcohol, and did not lose her balance simply by stepping off the curb. Jackson conceded the defect or depression was observable “[i]f [she] had been looking right straight down . . . , but you don’t walk [that way].” So although Jackson looked down when she stepped off the curb, she did not recall noticing anything out of the ordinary. She had not noticed that particular spot before and had not traversed this particular area on prior occasions. Jackson was unable to identify water, grease, or any slippery substance as a contributing cause of her fall.

Plaintiff’s adult son, Dugger Floyd Anderson, accompanied his mother out of the restaurant. He turned as they stepped off the curb “and the next thing [he knew] she was falling.” Anderson checked the asphalt and determined that it becomes “uneven as soon as you walk out. You can step about two steps, then it gets uneven.” He described the uneven pavement as a “belly-wash.” According to the angle of the light in some photographs of the pavement Anderson took, at “[o]ne angle you can see it, one angle you can’t.” Also, there is “a big washout right there where she fell,” with loose rocks. Anderson confirmed the area where his mother fell is painted as a “No Parking” area. He also confirmed he had complained to someone in management named Roger “numerous times about the lot. . . .”

1. Defendant’s knowledge. OCGA § 51-3-1 provides:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

And as the Supreme Court of Georgia recently reaffirmed,

in order to recover for injuries sustained in a slip-and-fall action, an 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 [defendant].

The specific defect or hazard in this “trip-and-fall” case is the cavity where plaintiff placed her foot after stepping down from the curb, caused by the uneven and unrepaired condition of defendant’s restaurant parking lot. The owner/occupier does not warrant the safety of an invitee, but nevertheless must

exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

An owner/occupier is on constructive notice of what a reasonable inspection would reveal. Evidence that the parking lot had been in disrepair for many years authorizes the finding that defendant failed in its duty to carry out periodic inspections and, to take reasonable steps to protect invitees from those dangers foreseeable from the uneven parking lot.

2. Plaintiff’s knowledge. “It is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which plaintiff observes and avoids.” Here, Jackson denied she had ever traversed this specific area of the parking lot before. Consequently, the evidence does not demand a finding that she had constructive notice of this specific hazardous cavity one or two steps from the edge of the curb, simply because she had traversed the parking lot many times over the years. And the fact that the rough uneven pavement is a static condition, ostensibly open and obvious, cannot automatically absolve the owner/occupier from liability, if any, from its failure to exercise ordinary care to keep the approaches safe. To do so would “relegate a business patron to licensee status by requiring the patron to be on the alert to discover [and avoid] defects [in the approaches].” “We do not understand this to be the law in [trip] and fall cases.”

Nor can we say the evidence demands a finding that Jackson failed to exercise ordinary care for her own safety.

In Robinson v. Kroger Co., the Supreme Court of Georgia rejected any requirement that an invitee look continuously at the floor [or ground] for defects because the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.

Jackson, testified that she is very careful where she steps and that she did not simply lose her balance. This is some evidence that she exercised ordinary care for her own safety to see and avoid the hazards posed by defendant’s failure to fulfill its duty to keep the approaches safe. The fact that Jackson agreed at her deposition she could have seen the cavity, had she looked straight at it, no longer is a viable basis for sustaining summary judgment. Thus, whether Jackson maintained a reasonable lookout for her own safety, whether she had greater or equal knowledge of the specific undulation in the pavement which constituted the hazard in this case, and whether she exercised ordinary care for her own safety are questions of fact to be resolved at trial.

Judgment reversed.

Pope, P. J., Blackburn, P. J., and Ellington, J., concur. Ruffin, J., concurs in judgment only. Andrews, P. J., and Smith, P. J., dissent.

Smith, Presiding Judge,

dissenting.

I respectfully dissent. The evidence is undisputed that Jackson had knowledge of the condition of the parking lot, as she unequivocally admitted her knowledge, before she fell, that “[i]t seemed to be in terrible condition.” She also testified that the entire parking lot was “slanting and slopey” and “awfully rough,” and that walking in it was not comfortable. The condition of the parking lot was obviously a static defect, open and obvious to Jackson for a period of time prior to her fall. Under these circumstances, she has not shown that Waffle House had superior knowledge of any defect. Instead, the record shows that she had knowledge of the condition of the parking lot at least equal to that of Waffle House. See, e.g., Gaines v. Ingles Markets, 241 Ga. App. 302, 304 (2) (524 SE2d 766) (1999); Tanner v. Larango, 232 Ga. App. 599, 600 (2) (502 SE2d 516) (1998); Denham v. Young Men’s Christian Assn. &c., 231 Ga. App. 197 (499 SE2d 94) (1998). Consequently, I would affirm the trial court’s order granting summary judgment to Waffle House.

Decided July 12, 2000

Reconsideration denied July 27, 2000

Thomas J Gustinella, for appellant.

Karsman, Brooks & Callaway, Stanley Karsman, for appellee.

I am authorized to state that Presiding Judge Andrews joins in this dissent.

       By failing to file any responsive brief contesting appellant’s statement of the facts, Waffle House consented to a decision based on the facts as stated in appellant’s brief, per Court of Appeals Rule 27 (b) (1). Biven Software v. Newman, 222 Ga. App. 112, 115 (1) (473 SE2d 527) (1996). Nevertheless, we undertake a de novo review of the record in this summary judgment appeal. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

        Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (493 SE2d 403) (1997).

       (Citations omitted.) Id. at 740 (1).

        Wesleyan College v. Weber, 238 Ga. App. 90, 94 (b) (517 SE2d 813) (1999) (whole court). And see Freyer v. Silver, 234 Ga. App. 243, 245-246 (2) (507 SE2d 7) (1998) (whole court), cert, vacated, 235 Ga. App. 905 (1999) (notice to owner of hazardous placement of parking space near steep and deceptive slope into drain culvert presumed under theory of defective construction).

       (Citations and punctuation omitted.) Gourley v. Food Concepts, 229 Ga. App. 180 (493 SE2d 587) (1997) (whole court).

       Id. at 182 (constructive knowledge is not conclusively imputed to patron who traverses different areas). Accord Dept. of Human Resources v. Thomas, 217 Ga. App. 174, 178 (1) (456 SE2d 724) (1995) (physical precedent only).

        Freyer v. Silver, supra, 234 Ga. App. at 246 (3). It should be noted that the prior decision of this Court in Freyer v. Silver, 227 Ga. App. 253 (488 SE2d 728) (1997), was vacated at the direction of the Supreme Court at 234 Ga. App. at 245 (1), and the “open and obvious” analysis employed therein and in MARTA v. Fife, 220 Ga. App. 298 (2) (469 SE2d 420) (1996), was disapproved by the majority in light of the Supreme Court’s ruling in Robinson v. Kroger Co., supra. Freyer v. Silver, supra, 234 Ga. App. at 246 (3). The dissent’s reliance on Tanner v. Larango, 232 Ga. App. 599, 600 (2) (502 SE2d 516) (1998), which depends on the superseded analysis of the vacated Freyer decision, is misplaced.

        Robinson v. Kroger Co., supra, 268 Ga. at 742 (1), n. 3.

       (Citation omitted). Telligman v. Monumental Properties, 161 Ga. App. 13, 17 (2) (288 SE2d 846) (1982).

       (Punctuation and footnote omitted.) Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 749 (2) (527 SE2d 36) (1999).

       “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7.

        Robinson v. Kroger Co., supra, 268 Ga. at 743 (1). Accord Freyer v. Silver, supra, 234 Ga. App. at 246 (3).

        Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145, 146 (495 SE2d 613) (1998).

       As pointed out by the majority, Tanner does cite to Freyer v. Silver, 227 Ga. App. 253 (488 SE2d 728) (1997), a case that was later vacated. See Freyer v. Silver, 234 Ga. App. 243 (507 SE2d 7) (1998). But this fact does not dispense with the general rule that an invitee who has equal knowledge of a hazard cannot recover for his or her injuries. See Gaines, supra at 304 (2). See also Wright v. JDN Structured Finance, 239 Ga. App. 685, 686-687 (522 SE2d 4) (1999).


author: Smith, Presiding Judge.

text:
    A00A0972.
    LONEY v. THE STATE.
    (537 SE2d 780)
   Smith, Presiding Judge.

Dennis Ray Loney was convicted after a bench trial of operating a motor vehicle after being declared a habitual violator. He appeals, asserting as his sole enumeration of error that the police roadblock that apprehended him was improperly conducted under the standard of LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998) and that his motion to suppress therefore should have been granted. We disagree and affirm.

LaFontaine enunciates four factors to determine the validity of a roadblock:

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Id. These four factors help ensure that a permissible highway roadblock for the purpose of checking driver’s licenses is not “used as a subterfuge to detain citizens for the purpose of searching their automobiles” or as an arbitrary or oppressive scheme to single out motorists for investigation. Id. The four factors are “not absolute criteria which must be satisfied before a roadblock is legitimate. Rather, this Court looks to the totality of the circumstances surrounding the roadblock to determine whether the factors were satisfied.” (Citations and punctuation omitted.) Albert v. State, 236 Ga. App. 146, 148 (1) (511 SE2d 244) (1999).

Loney does not complain that the roadblock was a subterfuge or that it was arbitrary or oppressive. Unlike many defendants chailenging the validity of roadblocks, he was arrested for a driver’s license violation, not some other offense uncovered during a permissible driver’s license check. He simply recites that the requirements of LaFontaine were not met because the police vehicles did not have their blue lights activated.

Decided July 27, 2000.

Joel N. Shiver, for appellant.

Evidence was presented to the trial court that the area of the roadblock, on a county road approximately 50-75 feet from its intersection with a major highway, was well illuminated by streetlights. Four or five Sheriff’s Department cars, marked with orange stripes and reflective lettering on the sides, were parked on both sides of the road. The officers were all in uniform, wearing their badges and reflective vests with “Sheriff” printed on the front and back. The reflective vests were visible from 100 yards or more in car headlights. Every officer had a flashlight. Moreover, the police cars and the roadblock were visible from the main highway. During the time the roadblock was in operation, officers observed several cars activate their turn signals and enter the turn lane for the county road but turn away when they saw the roadblock.

The totality of the circumstances must show that the roadblock is not being used as a pretext to detain citizens in order to search their cars. And when viewing the totality of the circumstances, we must keep in mind that the relevant inquiry is whether the evidence shows that it was, in fact, a pretext to stop this driver, rather than a legitimate law enforcement technique.

(Citations and punctuation omitted.) Boyce v. State, 240 Ga. App. 388, 389 (523 SE2d 607) (1999). In reviewing a trial court’s decision on a motion to suppress, we must not disturb its decision as the trier of fact if there is any evidence to support it; we must accept its findings of fact if any evidence supports them; and we must construe the evidence in favor of its findings and judgment. Id. at 390. The evidence presented here supports the conclusion that the roadblock was “well identified as a police checkpoint,” and the trial court’s finding that the roadblock was valid must be affirmed.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.


author: POPE, Presiding Judge.

text:
    A00A1018.
    DUNN v. FIVE STAR DODGE-JEEP-EAGLE-MAZDA, INC.
    (537 SE2d 782)
   POPE, Presiding Judge.

On March 31, 1995, Dunn filed suit against Five Star Dodge-Jeep-Eagle-Mazda, Inc. and alleged that, by and through its agents, it wilfully misrepresented the age of a car that it sold to Dunn. Five Star denied the allegations. The case was tried to a jury, and on June 24, 1998, the jury awarded Dunn $2,000 in compensatory damages and $50,000 in punitive damages.

Five Star filed two post-trial motions: (1) a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial; and (2) a motion to reduce punitive damages. In the motion to reduce punitive damages, Five Star requested relief as follows: “In accordance with OCGA § 51-12-12, [Five Star] respectfully requests that the Court reduce the amount of punitive damages so it more adequately reflects the preponderance of the evidence or grant a new trial as to the damages only.” Over one year later, in separate orders, the court denied the first motion and granted the second. In the second order the court reduced the punitive damage award to $5,000 but did not grant a new trial.

Dunn appeals the court’s order reducing the punitive damage award. Five Star has neither appealed nor cross-appealed. Dunn contends that under OCGA § 51-12-12 the court was not authorized to simply reduce the punitive damage award.

Section 51-12-12 provides that a trial court may take action if it finds that the jury’s award is so inadequate or so excessive as to be inconsistent with the preponderance of the evidence. OCGA § 51-12-12 (a). But subsection (b) limits what the court may do. The court “may order a new trial as to damages only ... or may condition the grant of such a new trial upon any party’s refusal to accept an amount determined by the trial court.” OCGA § 51-12-12 (b). The Supreme Court has held that the plain language of this Code section does not authorize the trial judge to simply reduce a jury’s damage award and deny a motion for new trial. Spence v. Hilliard, 260 Ga. 107, 108 (1) (389 SE2d 753) (1990). The order was not proper under Spence, and the only remaining issue is whether we should simply reverse or also remand to allow the court to reconsider the OCGA § 51-12-12 motion.

Five Star did not appeal the order denying its motion for new trial or cross-appeal the order granting the reduction in the punitive damage award, but it contends that should we reverse the trial court’s order, we should also remand the case with an order that the trial judge reconsider the motion. Whether this court may consider Five Star’s argument is governed by the following rule:

Decided July 27, 2000.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Almand & Wiggins, O. Hale Almand, Jr., Samuel G. Alderman III, for appellee.

The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. OCGA § 5-6-38; [cit.] However, a ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal. [Cits.]

Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987). In the second motion, Five Star sought reduction of the punitive damage award or grant of a new trial as to damages in accordance with OCGA § 51-12-12. Thus it raised the issue in connection with the OCGA § 51-12-12 motion. Furthermore, the trial court obviously believed that the punitive damage award violated OCGA § 51-12-12, but it did not follow the requirements of that Code section. And, reducing the damage award and granting or conditionally granting a new trial on damages are interrelated remedies under OCGA § 51-12-12. Further, our decision rests on Spence. In that case the Supreme Court vacated the improper order and remanded the case for reconsideration in light of that court’s interpretation of OCGA § 51-12-12.

We find that the issue of the grant of a new trial on damages is material to the propriety of the court’s order reducing the damage award. Therefore we follow the remedy provided in Spence. The order reducing the damage award is vacated and the case remanded for reconsideration in light of OCGA § 51-12-12 and Spence.

Judgment vacated and case remanded.

Miller and Mikell, JJ, concur.


text:
    A00A1117.
    DIAZ v. THE STATE.
    (537 SE2d 784)
   Smith, Presiding Judge.

Kerwin Diaz was found guilty in a bench trial of driving under the influence of alcohol to the extent that he was a less safe driver, failing to maintain lane, and driving without a license. He appeals his conviction and sentence, contending that the evidence was insufficient to find him guilty of DUI and that the trial court erred in admitting certain evidence, in sentencing him, and in finding him guilty of violating OCGA § 40-5-20. We find no merit in these contentions, and we affirm the judgment.

The record shows that Gwinnett County Police Officer Gale Higginbotham Murray was on duty when she observed Diaz’s vehicle make a turn into the center lane of a three-lane highway without using a turn signal, then twice cross partially into the left lane and reenter the center lane. Murray initiated a traffic stop, and when she approached the open driver’s side window, she noticed a strong odor of alcohol. When requested to show a driver’s license and proof of insurance, Diaz produced a Tennessee driver’s license and insurance card. He told Murray that he had not had anything to drink and that he had lived in Georgia about a month and a half.

Murray checked Diaz’s license and found it valid. She then requested that Diaz step out and perform various field sobriety tests, which he did. When Diaz left the car, Murray still smelled a moderate odor of alcohol about him. She again questioned him about his drinking, and he again told her he had “nothing” to drink.

Diaz exhibited all six clues on the horizontal gaze nystagmus test, had difficulty maintaining his balance on the nine-step walk and turn test, and swayed back and forth twice on the one-leg stand. The alco-sensor test was positive for the presence of alcohol. Based on these field tests and Murray’s experience, training, and observations, she formed the opinion that Diaz was under the influence of alcohol to the extent that he was a less safe driver. Diaz was arrested and read his implied consent rights. Diaz agreed to submit to a state-administered breath test, and he was transported to the Gwinnett County Jail, where two tests were administered. Diaz’s blood alcohol level was 0.090 on the first test and 0.089 on the second test.

Diaz testified in his own defense. He admitted having three or four 12-ounce beers at a nightclub. He also admitted he had been living in Georgia for five years without obtaining a Georgia driver’s license.

1. Diaz contends the evidence was insufficient to support his conviction for DUI to the extent he was a less safe driver. On the contrary, Diaz’s conviction on this count was more than amply supported.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a 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.

(Citations and footnote omitted.) Byrd v. State, 240 Ga. App. 354 (523 SE2d 578) (1999). If a driver’s blood alcohol level is 0.08 grams or more, the trier of fact may infer that the driver is under the influence of alcohol. Stepic v. State, 226 Ga. App. 734, 735-736 (1) (487 SE2d 643) (1997). Here, in addition, when viewed in the light most favorable to the verdict, the evidence presented at trial showed that Officer Murray was trained and experienced in DUI detection. She observed Diaz driving erratically, and she detected the odor of alcohol on him. Diaz lied to the officer about his drinking and about how long he had lived in Georgia. Diaz’s eyes were red and glazed, he performed poorly on several field sobriety tests, and the alco-sensor test indicated the presence of alcohol. He admitted consuming three or four 12-ounce beers before driving, and his blood alcohol level was between 0.089 and 0.090.

This court has held that the smell of alcohol, intoxicated appearance, furtive conduct, and a positive alco-sensor test are sufficient to support a conviction for DUI to the extent of being a less safe driver. Byrd, supra. The evidence presented here was more than sufficient to support Diaz’s conviction on that charge.

2. Diaz maintains the trial court exceeded its authority in sentencing him to 48 hours confinement without credit for time served. He argues that OCGA § 17-10-11 provides expressly that a defendant is entitled to credit for time served. Diaz is correct that “each person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial and the credit or credits shall be applied toward the convicted person’s sentence.” (Citations and punctuation omitted.) Addo v. State, 212 Ga. App. 163 (1) (441 SE2d 486) (1994) (physical precedent only). But the amount of credit given for time served is computed by the pre-sentence custodian, and it is awarded by the post-sentence custodian. Id. The trial court is therefore not involved in this matter. And here, although the trial court did comment that she would not give Diaz credit for time served, that is not reflected on the conviction and sentence entered. Even if Addo had precedential value, this situation is unlike Addo; no conflict exists for Diaz’s post-trial custodian between enforcing Diaz’s sentence and complying with OCGA § 17-10-11 (a).

3. Diaz also asserts that the State failed to lay a proper foundation for admitting into evidence its Exhibit 6, which was admitted over objection. State’s Exhibit 6 is a certificate generated by the manufacturer of the Intoxilyzer 5000, certifying to the machine’s calibration after being repaired. The exhibit was offered to provide an explanation as to why the machine’s certificate of inspection was unavailable for the calendar quarter following that in which Diaz’s breath test was performed. Diaz appears to argue that without the certificate, the breath test results were inadmissible.

As best we understand it, Diaz’s contention is that the certificate was not admissible because no foundation was laid by someone with personal knowledge that it was in the manufacturer’s regular course of business to create the document at the time the machine was repaired and calibrated.

Sergeant J. T. Strickland, commander of the DUI task force, testified he was responsible for maintaining the records for the five Gwinnett County Intoxilyzer 5000 machines and ensuring that maintenance and quarterly inspections are completed. He personally investigated the malfunctioning machine, sent it to the manufacturer for repair, and received it back, along with the certificate of calibration. It was the police department’s practice to receive a certificate from the manufacturer each time a machine was returned from repair and to maintain these certificates. Although Diaz objected that it was necessary for a witness identifying business records to have personal knowledge of the correctness of the records or to have made the entries himself, that is not the law. The fact that the witness has no personal knowledge of the entries does not affect their admissibility, although it might affect the weight afforded them. Shoney’s, Inc. v. Hudson, 218 Ga. App. 171 (1) (460 SE2d 809) (1995).

Even without the certificate, the results of the breath tests would have been admissible. Under OCGA § 40-6-392 (a) (1) (A), a breath test must be performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine operating with all its components attached and in good working order. OCGA § 40-6-392 (f) provides that a properly prepared and executed inspection certificate is admissible to satisfy this requirement. But the requirements of OCGA § 40-6-392 (a) (1) (A) may be satisfied even without admission of such certificates. Gidey v. State, 228 Ga. App. 250, 251-252 (1) (491 SE2d 406) (1997).

Here, as in Gidey, the individual who conducted the breath tests, Deputy Sheriff Derrick Preston, testified that he was trained and certified to perform the test, and his operator’s permit was placed in evidence. He testified that the testing methods were those approved by the GBI; that he had used the machine before and after Diaz’s tests; that the machine functioned properly when testing Diaz, appeared to be in good working order, and did not appear to have any parts missing; and that the machine performed the usual self-tests before testing Diaz and revealed no problems. This evidence satisfied the requirements of OCGA § 40-6-392 (a) (1) (A). Gidey, supra. The trial court’s admission of the breath test results into evidence was therefore proper.

4. Diaz maintains that because OCGA § 40-5-1 (15) defines a “resident” to exclude undocumented aliens for purposes of Chapter 5 of Title 40, he was not a Georgia “resident” when he was arrested, and he therefore was not required to obtain a Georgia driver’s license within 30 days of moving here. We do not agree.

OCGA § 40-5-1 (15) does state that “no person shall be considered a resident for purposes of this chapter unless such person is either a United States citizen or an alien with legal authorization from the U. S. Immigration and Naturalization Service.” And Diaz testified that at the time of his arrest he “didn’t have papers” and thus could not get a driver’s license.

But this did not create an exception that gave Diaz the right to drive without a valid Georgia license. Our Code also provides: “No person, except those expressly exempted in this chapter, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under this chapter for the type or class of vehicle being driven.” OCGA § 40-5-20 (a). The cardinal rule in interpreting statutes is to discern the intention of the General Assembly. Johnson v. State, 267 Ga. 77, 78 (475 SE2d 595) (1996). And statutes relating to the same subject matter must be construed together and harmonized. Joiner v. State, 239 Ga. App. 843, 845 (522 SE2d 25) (1999). We agree with the State that, reading the two statutes in pari materia, the intention of the General Assembly was not to exempt undocumented aliens from the requirement of obtaining a Georgia driver’s license but to permit visitors, with no intention of becoming residents, to drive here without obtaining a Georgia license. Undocumented aliens who have been living in Georgia for five years, like Diaz, are simply prohibited from driving if they cannot obtain a valid Georgia driver’s license.

To interpret the statutes otherwise would create an absurdity: Citizens and documented aliens would be required to obtain valid Georgia licenses after living in this state for 30 days, while undocumented aliens would be permitted to drive forever without a valid Georgia license. The trial court’s finding of guilt on this charge was proper.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

Decided July 27, 2000.

Manuel S. Campano, for appellant.

Gerald N. Blaney, Jr., Solicitor, Emilien O. Loiselle, Jr., Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.


text:
    A00A1275.
    FREEMAN v. THE STATE.
    (537 SE2d 776)
   Smith, Presiding Judge.

Kenneth Freeman was convicted by a jury on charges of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. His motion for new trial was denied, and he appeals. We find no error, and we affirm.

1. Freeman contends the evidence was insufficient to convict him. We do not agree. The victim unequivocally identified Freeman as the man who drove up beside his car, asked him who he had just visited, and shot at the victim, damaging the victim’s car, after the victim told him the name of the woman whose home he had just left. One of the occupants of the home, the mother of the woman visited by the victim, testified that a man she recognized as Freeman called her home shortly after he had left and told her he had “shot the guy [who] just left my house.” Although this witness testified during the hearing on Freeman’s motion for new trial that she was no longer 100 percent certain that the caller was Freeman, the victim’s testimony alone was sufficient to convict Freeman. See, e.g., McDowell v. State, 239 Ga. App. 667, 670 (2) (522 SE2d 44) (1999).

2. Freeman contends the trial court erred in granting the State’s oral motion in limine to exclude the testimony of an alleged alibi witness. On the morning of trial, defense counsel informed the trial court that although he had “been appointed for some time” on Freeman’s case and had “talked to him a number of times,” just the day before Freeman first told him about an “alleged alibi witness.” According to defense counsel, this witness would have testified that on the date of the incident at issue, Freeman was with her at the hospital. The prosecutor pointed out, and the record shows, that the State had presented defense counsel a written demand pursuant to OCGA § 17-16-5 (a) for notice of alibi witnesses nearly a year before trial. The State moved in limine to prevent the witness’s testimony on the ground that it would be prejudicial.

Before ruling on the State’s motion, the court instructed the prosecutor to talk with the witness to “find out, if, in fact, it truly prejudices the State’s case.” Upon doing so, the prosecutor stated that the witness told him she was in the hospital on the date of the incident, “[t]hat she was there for five and a half days and that the Defendant was with her around the clock, twenty-four hours a day.” The prosecutor argued that if he had learned about this witness “in a timely fashion,” he would have tried to verify this alleged testimony with witnesses from the hospital but that he could not “do that at this point.” The court granted the State’s motion to exclude the witness’s testimony.

We find no error. Under OCGA § 17-16-6, a trial court may prohibit a defendant from presenting a witness not properly disclosed, “upon a showing of prejudice and bad faith.” Freeman presumably knew about the alleged alibi witness but failed to disclose her name to defense counsel until the day before trial, and the only excuse defense counsel offered for Freeman’s failure to notify him of the witness was that Freeman had “been in the system.” Prejudice to the State in such a circumstance is clear: “[T]he [S]tate is denied the ten days authorized by law in which to investigate and refute the alleged alibi, and the development of such evidence is clearly hampered, if not rendered impossible.” Todd v. State, 230 Ga. App. 849, 854 (3) (b) (498 SE2d 142) (1998), overruled on other grounds, Johnson v. State, 272 Ga. 468 (532 SE2d 377) (2000). Freeman had nearly a year before trial in which to inform his attorney about the existence of the alleged alibi witness, and he offered no justification or valid excuse for his failure to do so. Under these circumstances, evidence was presented authorizing a finding that Freeman acted in bad faith and that his actions prejudiced the State. We therefore cannot say the trial court abused its discretion in granting the State’s motion in limine. See Todd, supra; Davis v. State, 226 Ga. App. 83, 84-85 (1) (485 SE2d 508) (1997).

3. In his final enumeration of error, Freeman contends the prosecutor made improper reference in closing argument to the fact that Freeman “may get prison time or probation.” A review of the transcript shows that the prosecutor did not violate OCGA § 17-8-76 (a), which prohibits argument that a defendant may not suffer the full penalty imposed by law as a result of being pardoned or paroled or receiving other clemency. The transcript clearly shows that the prosecutor simply argued to the jury that it was not to consider punishment, including whether Freeman received “prison time or probation.” The prosecutor also argued to the jury that if any juror attempted to consider such matters, that juror should be reported to the court. We find no merit in this contention. See generally Berrian v. State, 139 Ga. App. 571, 572-573 (1) (228 SE2d 737) (1976).

Decided July 27, 2000.

Ellis R. Garnett, for appellant.

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

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The prosecutor stated that the witness told him she was in the hospital during the week “that the 8th fell on.” Presumably, this is a reference to the date of the incident at issue here.


author: Johnson, Chief Judge.

text:
    A00A1301.
    SHEPHERD v. THE STATE.
    (537 SE2d 777)
   Johnson, Chief Judge.

Bernard Shepherd was charged with two counts of aggravated battery and two counts of aggravated assault based on the shooting of victim Kevin Roseberry. He pled not guilty to the charges and elected to be tried before a judge sitting without a jury.

At the bench trial, Roseberry testified that he saw Shepherd, whom he has known for many years, and another man, Eric Pressly, getting into a van. Roseberry walked up to the van and asked Shepherd for cocaine. Shepherd gave Roseberry some cocaine, and Rose-berry then asked if he could pay for it the next day. Shepherd said he could not pay for it the next day and told Roseberry to return the cocaine. When Roseberry did not return the cocaine and continued to ask if he could pay for it the next day, Shepherd got out of the van with a handgun. As Shepherd confronted Roseberry, Pressly shot Roseberry in the face with a shotgun. Shepherd then shot Roseberry in the chest and leg with the handgun. After the shootings, Shepherd and Pressly fled from the scene in the van. An ambulance arrived a short time later and took Roseberry to the hospital, where he told a police detective that Shepherd and Pressly had shot him. As a result of the shootings, Roseberry lost his left eye and has only ten percent vision in his right eye.

A police detective confirmed that he spoke with Roseberry at the hospital. The detective testified that Roseberry identified Shepherd and Pressly as the persons who had shot him, described the two men, and told him where they lived. Based on Roseberry’s information, the police secured arrest warrants for Shepherd and Pressly, although at the time of trial Pressly had not yet been apprehended.

Shepherd and the state stipulated that the results of Shepherd’s polygraph examination were admissible at the trial. The polygraph examiner testified that Shepherd was deceptive when questioned about the shooting of Roseberry and that, according to the polygraph results, Shepherd was involved in the shooting. The examiner stated that the results of such a properly administered test are 97 to 98 percent accurate.

In his defense, Shepherd presented the alibi that he was at his sister’s house at the time of the shooting. He and his sister testified that he had gotten off work several hours before the shooting and gone directly to his sister’s house. They claimed that he spent the night there and did not leave the house until the next morning, after the shooting had occurred.

After considering the evidence, the court found Shepherd guilty of two counts of aggravated battery and one count of aggravated assault and not guilty of the other aggravated assault count. The court merged the two aggravated battery counts and sentenced Shepherd to serve fifteen years in prison followed by five years on probation.

Shepherd appeals, arguing that there is insufficient evidence to support his convictions, that the court erred in not sequestering Roseberry before hearing his testimony, and that the court erred in not allowing Shepherd to cross-examine Roseberry about whether he paid court-ordered child support. Shepherd’s arguments are without merit, and we therefore affirm his convictions.

1. On appeal from a criminal conviction, we no longer presume that the appellant is innocent, and we view the evidence in the light most favorable to the verdict to determine if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In the instant case, a rational trier of fact could have found the essential elements of aggravated battery and aggravated assault beyond a reasonable doubt based on Roseberry’s in-court identification of Shepherd as one of the men who shot him, the detective’s confirmation that shortly after the shootings Roseberry identified Shepherd as one of his assailants, and the polygraph examiner’s testimony that the polygraph results show that Shepherd was involved in the shooting of Roseberry.

As for the believability of Shepherd’s alibi evidence and the credibility of the witnesses, those were matters to be resolved by the trial judge sitting as the factfinder. The trial judge was certainly authorized to disbelieve Shepherd’s claim of an alibi. Because there was sufficient evidence to support the trial court’s findings of guilt beyond a reasonable doubt, Shepherd’s convictions must be affirmed.

Decided July 27, 2000.

2. OCGA § 24-9-61, the rule of sequestration, provides that a party has the right to have the witnesses of the other party examined out of the hearing of each other, except as otherwise provided in OCGA § 24-9-61.1. Under OCGA § 24-9-61.1 (a), a trial judge has the discretion to allow a crime victim to be present in court and the discretion to determine the order in which the victim’s testimony will be given.

In this case, the trial judge allowed the victim Roseberry to remain in the courtroom while the detective and the polygraph examiner testified and then let him give his own testimony. Under OCGA §§ 24-9-61 and 24-9-61.1 (a), such a procedure was fully within the trial court’s discretion and does not constitute reversible error.

3. A trial court does not abuse its discretion in limiting a defendant’s cross-examination only to relevant matters.

(Although a defendant has a right to a thorough and sifting cross-examination of the witness, the scope of cross-examination is not unlimited, and the extent of examination is largely within the discretion of the trial judge and will not be controlled by an appellate court except for abuse of discretion. Moreover, although the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court.

In the present case, the trial court sustained the state’s relevancy objection to Shepherd’s attempt to cross-examine Roseberry about whether he was paying court-ordered child support. We agree with the trial court that the question of Roseberry’s child support was irrelevant to the ultimate issue in the case — whether Shepherd committed the charged offenses. The trial court did not abuse its discretion in prohibiting the cross-examination on an irrelevant matter.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

Richard W. Marks, for appellant.

J Tom Morgan, District Attorney, Barbara B. Conroy, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gafford v. State, 240 Ga. App. 251, 252 (1) (523 SE2d 336) (1999); Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       See OCGA § 16-5-24.

       See OCGA § 16-5-21.

       See Miller v. State, 226 Ga. App. 133, 134 (1) (486 SE2d 368) (1997).

       See Kellibrew, supra at 784 (1).

        Lewis v. State, 215 Ga. App. 161, 162 (1) (450 SE2d 448) (1994).

       See Hayes v. State, 182 Ga. App. 26, 28-29 (2) (354 SE2d 655) (1987).

        Harden v. State, 239 Ga. App. 700, 702 (4) (521 SE2d 829) (1999).

       See Bell v. State, 235 Ga. App. 825, 826 (510 SE2d 589) (1998).


author: Phipps, Judge.

text:
    A00A1348.
    BARREGO et al. v. OHM REMEDIATION SERVICES CORPORATION.
    (537 SE2d 774)
   Phipps, Judge.

The trial court dismissed Maria Barrego and Margaret Lugue’s lawsuit against OHM Remediation Services Corporation because the plaintiffs failed to respond to discovery requests directed to Barrego. Barrego and Lugue appeal. Initially, we find that, under the circumstances, OHM was not required to conduct a discovery conference prior to filing its motion for sanctions. Next, we find that the trial court improperly considered OHM’s motion for sanctions without conducting a hearing. We must therefore reverse the dismissal of Barrego’s claims and remand for an appropriate hearing. Finally, we reverse the dismissal of Lugue’s claims because she was never served with discovery requests.

Barrego and Lugue filed suit against OHM for trespass to real property. Although Barrego was the only plaintiff named in the caption, Lugue was included as a plaintiff in the body of the complaint. OHM answered the complaint and served discovery requests directed only to Barrego. When Barrego failed to respond, OHM’s counsel sent a letter to Barrego’s counsel notifying him that the responses were one month late and that if they were not received within ten days, he would file a motion for sanctions. Barrego’s counsel never responded to the discovery or to the letter from OHM’s counsel.

OHM filed a motion for sanctions, seeking expenses of the motion and dismissal of the complaint or an order compelling responses to the discovery requests. Barrego filed a one-sentence response, which merely requested that the motion for sanctions be denied. Both parties requested oral argument.

Upon a review of the record and without a hearing, the trial court found that the failure to respond to the discovery requests was wilful and dismissed the case with prejudice. The trial court also taxed costs against “the plaintiff.”

1. Barrego contends that OHM failed to conduct the conference required by Uniform Superior Court Rule 6.4 (B) prior to filing the motion for sanctions. We addressed this issue in Fisher v. Bd. of Commrs. of Douglas County and decided it adversely to Barrego’s position here. In Fisher, we determined that the conference requirement of Rule 6.4 applies more directly to a situation where the parties disagree about what is required by the request or, for example, whether the information sought is privileged, than to the complete failure to respond to discovery. OHM’s counsel established by affidavit that he sent a letter requesting the responses prior to filing a motion for sanctions. That was sufficient under the circumstances.

2. Barrego contends that the trial court erred in dismissing the action without conducting a hearing.

Although it is not necessary to issue an order compelling discovery as provided for in OCGA § 9-11-37 (b) prior to imposing the sanction of dismissal under OCGA § 9-11-37 (d), a motion, notice and hearing are required. Because the final element is missing here, we must reverse the dismissal of Barrego’s claims and remand the case to allow the trial court to conduct a hearing on OHM’s motion for sanctions against Barrego.

3. Lugue contends that the trial court erred in dismissing her complaint against OHM because she was never served with any discovery requests. We agree.

Arguing in support of the trial court’s order, OHM does not contend that it served Lugue with discovery requests but relies on the trial court’s broad discretion in discovery matters and the fact that Lugue’s name was not included in the caption to the complaint. A trial court’s discretion is not broad enough to allow dismissal of a plaintiff’s complaint based on her co-plaintiff’s failure to respond to discovery requests. Nor is the fact that Lugue’s name was not included in the caption to the complaint sufficient to allow dismissal of her claims.

It is not clear from the trial court’s order whether the court intentionally dismissed Lugue’s claims or did not realize that the case involved more than one plaintiff. Because the effect of the order is dismissal of the entire case, we reverse it to the extent that it also dismisses Lugue’s claims.

Decided July 27, 2000.

Walter D. Adams, for appellants.

Cruser & Mitchell, Joseph R. Cruser, Drew, Eckl & Farnham, Jennifer M. McBath, for appellee.

Judgment reversed and case remanded.

Johnson, C. J., and Smith, P. J, concur.

       200 Ga. App. 353, 354 (2) (c) (408 SE2d 120) (1991).

       Id.

       Id.; Daniel v. Corporate Property Investors, 234 Ga. App. 148, 149 (1) (505 SE2d 576) (1998).

        Rivers v. Almand, 241 Ga. App. 565, 566 (1) (527 SE2d 572) (1999) (citing Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981)).

       Id.

       See Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (2) (384 SE2d 202) (1989) (co-defendant cannot become the beneficiary of a dismissal under OCGA § 9-11-37 (d) (1) based on plaintiff’s failure to respond to the other co-defendant’s discovery).

       See Bolton Road Med. Center v. Strother & Co., 140 Ga. App. 724 (231 SE2d 533) (1976) (failure to name individual partners in the caption of the case is an amendable defect and will not authorize setting aside a judgment).


author: Miller, Judge.

text:
    A00A0893.
    HOOD v. THE STATE.
    (537 SE2d 788)
   Miller, Judge.

Jamie Hood was tried before a jury and found guilty of armed robbery. On appeal he challenges the sufficiency of the evidence and further contends the trial court erred in (1) denying his motion in limine, (2) denying a motion for mistrial, and (3) overruling his challenge to the State’s use of peremptory strikes. We affirm.

1. George McKeehan identified Hood as the man who put a gun to McKeehan’s head, demanding money and threatening to kill McKeehan. McKeehan gave him $3, and Hood ran off. The victim’s in-court identification of defendant is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict that Hood is guilty, beyond a reasonable doubt, of the armed robbery alleged in the indictment. The enumeration of the general grounds is without merit.

2. Hood next enumerates the denial of his motion in limine to exclude cross-examination of an alibi witness about when she had accused him of kidnapping and raping her.

In general, “[t]he state of a witness’s feelings toward the parties and [her] relationship to them may always be proved for the consideration of the jury.” In this case, proof that the alibi witness had accused Hood, her boyfriend, of kidnapping and rape but then declined to prosecute her paramour was relevant and admissible to show bias on her part as an alibi witness. Such evidence does not impermissibly place a defendant’s character in issue. The trial court did not err in denying Hood’s motion in limine.

3. After a previous trial and guilty verdict in December 1997, Hood was granted a new trial due to ineffective assistance of counsel. At the second trial, Hood took the stand and claimed that, on the evening in question, he was at his mother’s house until he drove to Athens Regional Hospital to pick up his girlfriend, who clocks out at 11:30 p.m. During cross-examination, the following transpired:

[STATE’S ATTORNEY]: Mr. Hood, we’ve already had one trial. Remember that? [DEFENDANT]: Yes, sir. [STATE’S ATTORNEY]: You didn’t cry at that one. [DEFENDANT]: I’m not crying. [STATE’S ATTORNEY]: You teared up a little bit. You didn’t do any of that at the first one. Why are you doing it today? [DEFENDANT]: Doing what? [STATE’S ATTORNEY]: Starting to tear up here on us. Why are you doing that? You didn’t do any of that at the first trial. [DEFENSE COUNSEL]: Your Honor, I’m going to object. . . .

Counsel moved for a mistrial due to “the fact that they now know that it’s a retrial is prejudicing Mr. Hood’s chance of getting a fair trial.” The trial court instructed the jury to disregard any reference to a previous trial and to determine the case based on the evidence presented in this trial. Hood excepted to the adequacy of curative instructions.

Where there is no mention of the result of a prior judicial proceeding, the bare reference to an earlier trial does not necessarily imply a conviction and reversal on appeal. The equally rational inference is a mistrial due to the inability to achieve a unanimous verdict. Since the record contains no reference to the earlier verdict of guilt, the trial court’s curative instructions were adequate to remove the subject from the jury’s consideration.

4. The fourth enumeration contends the trial court erred in concluding that the State had established a race-neutral reason for one of the five African-American venire excused by peremptory challenges. Although one African-American female was accepted by the State, the trial court determined that a prima facie case of discrimination was made. The proffered reason for striking juror 12 was that she

Decided July 28, 2000.

Thomas J. Killeen, for appellant.

sat back there and slept most of the time. I didn’t like her responses to my questions. She seemed to be evasive, but mainly just her sitting there and sleeping through the entire voir dire selection. If she has that much trouble . . . staying awake, then she’ll have a problem staying awake more during the case.

When given an opportunity to rebut or refate these reasons, Hood pointed to the absence of support in the record for four jurors but had no reply regarding the contention that juror 12 had a hard time staying awake. Hood chose instead to stand on the stated objections. The trial court concluded that Hood had failed to carry his burden of proof as the opponent of the strikes.

On appeal, Hood argues that the record is inadequate to support the stated reason because the State did not bring the sleeping juror to the attention of the court. Hood’s reliance on Parker v. State for this proposition is misplaced, for that case is not binding precedent under Court of Appeals Rule 33 (a). It is true that during trial, a party who desires to object to a sleeping juror must bring that fact to the attention of the court. But in making the initial selection of the jurors to try a case, the inattentiveness of an apparently sleeping prospective juror is certainly a case-related, race-neutral reason for exercising a peremptory challenge. As the opponent of the strike, Hood bore the onus to make a record supporting his contentions. The trial court did not err in overruling Hood’s challenge to the State’s use of peremptory strikes.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

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

        Ferguson v. State, 221 Ga. App. 415, 419 (2) (471 SE2d 528) (1996).

       OCGA § 24-9-68.

       See, e.g., Perdue v. State, 126 Ga. 112, 113 (14) (54 SE 820) (1906).

        Mitchell v. State, 207 Ga. App. 306, 307 (1) (427 SE2d 814) (1993).

        Carroll v. State, 147 Ga. App. 332, 335 (5) (248 SE2d 702) (1978).

        Burnett v. State, 240 Ga. 681, 686-687 (6) (242 SE2d 79) (1978). See Pruitt v. State, 176 Ga. App. 317, 318-319 (2) (335 SE2d 724) (1985) (curative instructions sufficient to neutralize prejudice from irrelevant reference to finding by prison disciplinary committee that the accused was guilty of escape).

       In noncapital felony cases, OCGA § 15-12-165 grants the accused 12 peremptory challenges and the State half that number.

       219 Ga. App. 361, 363 (1) (464 SE2d 910) (1995) (physical precedent only).

       If there is a special concurrence without a statement of agreement with all that is said in the opinion, “the opinion is a physical precedent only.”

        Foster v. State, 255 Ga. 425, 426 (2) (339 SE2d 256) (1986) (what a litigant may not do is observe a juror sleeping, fail to bring this to the judge’s attention at a time when corrective action may be had, take a chance on a favorable verdict, and only when the verdict is unfavorable move for a mistrial or new trial because of the otiose juror).

        Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995).

       “As in any equal protection case, the burden is, of course, on the [party] who alleges discriminatory selection of the venire [or petit jury] to prove the existence of purposeful discrimination.” (Citations and punctuation omitted.) Batson v. Kentucky, 476 U. S. 79, 93 (III) (B) (106 SC 1712, 90 LE2d 69) (1986).


author: Ellington, Judge.

text:
    A00A1013.
    ODUM v. GIBSON et al.
    (537 SE2d 801)
   Ellington, Judge.

Reatha Odum sued Charles and Annie Gibson to recover for injuries she sustained when she tripped and fell at the Gibsons’ home. The trial court granted the Gibsons’ motion for summary judgment, and Odum appeals. Because Odum failed to adduce evidence from which the jury could infer that the Gibsons had superior knowledge of the defect which allegedly caused her fall, we affirm.

On appeal of a grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by

showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in this light, the record reveals that Mrs. Gibson invited Odum to dinner at her house. As Odum opened the screen door and walked onto the front porch, she caught her heel on the frayed edge of the carpet at the threshold and fell. Odum concedes that she had been to the Gibsons’ home approximately ten to fifteen times during the year before her fall and that on each occasion she had entered and exited through the same doorway. Odum also admitted that she tripped at the threshold on one prior occasion, most likely because of the carpet. Odum also stated that the frayed condition of the carpet was patent and that she would have seen it had she looked down. Odum stated she believed the carpet had been in that condition for some time because dirt had accumulated under the frayed edge.

Odum contends that the trial court erred in granting the Gibsons’ motion for summary judgment because material issues of fact remain for trial.

Odum was visiting the Gibsons as a social guest and, as such, occupied the legal status of licensee. OCGA § 51-3-2 (a); Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998); Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331) (1968). A homeowner is liable to a licensee only for wilful or wanton injury. OCGA § 51-3-2 (b); Davis, supra, 232 Ga. App. at 494. However, it is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is known to be or may reasonably be expected to be near a hidden peril on one’s premises. Brooks v. Logan, 134 Ga. App. 226, 228 (1) (213 SE2d 916) (1975). But a homeowner is liable to a licensee injured by a condition on the land only if (1) the homeowner knows or has reason to know of the condition, should realize that it involves an unreasonable risk of harm to the licensee, and should expect that the licensee will not discover or realize the danger; (2) the homeowner fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and risk involved; and (3) the licensee does not know or have reason to know of the condition and the risk involved. Patterson v. Thomas, 118 Ga. App. at 328. Given the evidence in this case, Odum either knew of or should have known of the condition of the carpet and the risk it posed.

First, given Odum’s deposition testimony that the carpet had been frayed long enough for dirt to accumulate and that she believed the carpet was likely the cause of her previous stumble, the trial court correctly concluded that the frayed carpet was a static condition. “A static condition, by definition, is simply one that does not change.” Poythress v. Savannah Airport Comm., 229 Ga. App. 303 (494 SE2d 76) (1997); Wade v. Mitchell, 206 Ga. App. 265, 266-267 (2) (b) (424 SE2d 810) (1992).

Second, when a person has successfully negotiated an alleged dangerous static condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. See O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (1) (390 SE2d 248) (1990). Here, Odum successfully traversed the frayed carpet at the porch door’s threshold at least 20 times. Moreover, Odum stated that on one of those visits, she stumbled while exiting through the same doorway and that she believed that the frayed carpet had also caused that stumble. Here, Odum’s deposition testimony makes it clear that she knew or should have known of the risks associated with the frayed carpet at the threshold. See Wright v. JDN Structured Finance, 239 Ga. App. 685, 686 (1) (522 SE2d 4) (1999). The grant of summary judgment by the trial court in favor of the Gibsons was, therefore, proper.

Decided July 28, 2000.

W Jason Uchitel, for appellant.

Hawkins & Parnell, Alycen G. Adams, William H. Major III, for appellees.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       In her affidavit opposing the Gibsons’ motion for summary judgment, Odum stated that her previous stumble did not occur because of the carpet. On motion for summary judgment, a party’s self-conflicting testimony is to be construed against her unless a reasonable explanation for the contradiction is offered. Gentile v. Miller, Stevenson &c., Inc., 257 Ga. 583 (361 SE2d 383) (1987). Odum has offered no explanation for the contradiction between her affidavit and deposition testimony. Therefore, the trial court was required to eliminate the favorable portions of the contradictory testimony, take all testimony on motion for summary judgment as it then stood, and construe it in favor of the party opposing the motion in determining whether summary judgment should be granted. Id.


text:
    A00A1082.
    THOMPSON v. THE STATE.
    (537 SE2d 807)
   Johnson, Chief Judge.

After a bench trial, Joseph Thompson III was convicted of interference with child custody and sexual battery. Thompson challenges the sufficiency of the evidence to support the convictions and the admission of similar transaction evidence to prove the interference with custody charge. We agree that the evidence was insufficient to support the interference with custody conviction, and that conviction is reversed. However, the evidence was sufficient to support the sexual battery conviction, and that conviction is affirmed.

1. Under OCGA § 16-5-45 (b) (1) (A), a person commits the offense of interference with custody when, without lawful authority to do so, he knowingly or recklessly takes or entices a child away from the individual who has lawful custody of the child. OCGA § 16-5-45 (a) (1) defines “child” as an individual under the age of 17 years, and subsection (a) (3) defines “lawful custody” as, inter alia, that custody inherent in the natural parents. In the accusation, the state charged Thompson with enticing a child away from her mother, the lawful custodian.

On appeal, we.view the evidence in a light most favorable to support the verdict. So viewed, the evidence shows that on December 19, 1997, 15-year-old M. S. and some friends were “skipping” school and were on their way to a party at a classmate’s apartment. Thompson, a 26-year-old who knew M. S. from church and was a friend of M. S.’s family, saw her walking away from the school and told her to get into his car. She complied, and Thompson drove her to his apartment. Thompson tried to persuade M. S. to go inside with him, saying that he was not “going to try nothing,” but she refused. Thompson then drove M. S. to another apartment complex where her friends had gathered and dropped her off.

M. S.’s mother testified that she had sole custody of her daughter. She also testified that she did not authorize Thompson to pick up M. S. from school or any other location.

The state introduced, as a similar transaction, the testimony of a 19-year-old girl who had known Thompson from church. The witness testified that in 1992, when she was 14 or 15 years old and Thompson was 21 years old, he signed her out of school and drove her to his apartment, where they stayed for several hours before he drove her back to school. Thompson pled nolo contendere to interference with custody in that case.

As Thompson and the state note in their briefs, there are apparently no reported interference with custody cases in Georgia involving facts which are even remotely similar to those presented here. In fact, most cases brought under OCGA § 16-5-45 involve one parent not returning a child to the custodial parent at the proper time after a lawful visit.

While we certainly do not condone the conduct of Thompson in taking 15-year-old M. S. to his apartment when she was supposed to be in school, we do not believe that his actions are the type prohibited by the statute. The purpose of OCGA § 16-5-45 is to protect the custody interests of the child’s lawful custodian from interference by another person. There is no evidence that Thompson interfered with the mother’s custody of M. S. The child was supposed to be in school at the time of the incident, though she had voluntarily removed herself from school. At the time she went with Thompson, she was not, and indeed was not supposed to be, in her mother’s custody. And there is no evidence that the mother desired to exercise custody over M. S. at the time but, because of Thompson’s actions, was unable to do so. Because the conduct complained of does not constitute a violation of OCGA § 16-5-45, the conviction for interference with custody must be reversed.

2. Because we are reversing the interference with custody conviction, we need not address Thompson’s claim that the trial court erred in admitting similar transaction evidence as to the interference with custody charge. And, because the sexual battery charge was proved through evidence other than the similar transaction evidence, any error in admitting the similar transaction testimony was harmless as to that offense and does not require reversal.

3. Thompson also challenges the sufficiency of the evidence to support the sexual battery conviction. The evidence was sufficient to support this conviction.

A person commits sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without that person’s consent. “Intimate parts” includes the buttocks. The state charged that on July 18, 1998, Thompson intentionally made physical contact with the intimate parts of M. S.’s body by touching her buttocks without her consent.

At trial, M. S. testified that while she and Thompson were at a swimming party, he came up behind her and touched her on her buttocks as she climbed up the ladder to get out of the pool. M. S. had not told Thompson he could touch her. A witness testified that she saw Thompson touch M. S. on her “hip bottoms” as she climbed out of the pool and that afterward M. S. was visibly upset and did not want to get back into the water.

In arguing that the evidence was insufficient, Thompson points to the same witness’ testimony that she saw him touch M. S.’s hip as proof that he did not touch her buttocks. The witness said she saw Thompson touch M. S. “[f]rom her hip bottoms, like from the butt, from the hip,” that he “touched her on the side,” “like someone is going [to] catch you and hold you from the hip.”

We do not agree that this testimony is inconsistent with M. S.’s testimony that Thompson touched her on the buttocks. In any event, conflicts in the testimony are a matter of credibility for the trier of fact to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the conviction will be upheld. The evidence was sufficient under the standard set forth in Jackson v. Virginia to support the conviction for sexual battery.

Judgment affirmed in part and reversed in part.

Smith, P. J, and Phipps, J., concur.

Decided July 28, 2000.

William R. Hurst, for appellant.

Keith C. Martin, Solicitor, Michael T. Lesutis, Assistant Solicitor, for appellee.

        Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996).

       See, e.g., Brassell v. State, 259 Ga. 590 (385 SE2d 665) (1989); State v. Evans, 212 Ga. App. 415 (442 SE2d 287) (1994); Scott v. State, 198 Ga. App. 10 (400 SE2d 677) (1990).

       See Evans, supra at 417; Stroud v. State, 200 Ga. App. 387, 390 (1) (408 SE2d 175) (1991).

       See generally Brassell, supra at 591.

         See discussion in Division 3, infra.

       See Smith v. State, 232 Ga. App. 290, 293 (1) (501 SE2d 523) (1998).

       OCGA § 16-6-22.1 (b).

       OCGA § 16-6-22.1 (a).

        Vickers v. State, 241 Ga. App. 452, 454 (527 SE2d 217) (1999).

       Id.

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

       See Clark v. State, 234 Ga. App. 503, 504 (507 SE2d 241) (1998).