author: Ruffin, Judge. Pope, Presiding Judge, Smith, Judge,

text:
    A96A0990.
    STRICKLAND v. THE STATE.
    (479 SE2d 125)
   Ruffin, Judge.

A jury convicted John Strickland of cruelty to children and child molestation. He appeals the judgment of conviction. For reasons which follow, we affirm.

1. Strickland contends that the trial court erred in denying his written request for a jury charge on the offense of sexual battery. He claims that on the facts of his case, sexual battery was a lesser included offense of child molestation as a matter of fact and that he was, therefore, entitled to a charge on that offense. We address this contention first and at length because it raises a number of issues regarding lesser included offenses that have confused our courts for many years. We believe that the resolution of these issues is-essential to the consistent administration of justice and to the preservation of fundamental rights.

Georgia law provides that a lesser offense can be included in a greater offense either as a matter of law or as a matter of fact. OCGA § 16-1-6; Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d 595) (1993). It is well established that, as a matter of law, the offense of sexual battery is not included in the offense bf child molestation. See Gordon v. State, 210 Ga. App. 224, 227 (435 SE2d 742) (1993). However, two questions remain: whether sexual battery can ever be a lesser included offense of child molestation as a matter of fact and, if so, whether sexual battery is such a lesser included offense based on the facts of this case.

Unfortunately, our cases have been inconsistent regarding whether sexual battery can be a lesser included offense of child molestation as a matter of fact. While cases such as Duck v. State, 210 Ga. App. 205, 207 (4) (435 SE2d 725) (1993), have suggested that sexual battery cannot be a lesser included offense of child molestation as a matter of fact, other cases such as Landrum v. State, 210 Ga. App. 275, 277 (6) (436 SE2d 40) (1993), have implied that sexual battery may be a lesser included offense in some cases. See also Shepherd v. State, 217 Ga. App. 893 (459 SE2d 608) (1995) (Beasley, C. J., and Ruffin, J., concurring). In Shepherd, Chief Judge Beasley and the author of this opinion wrote separate concurring opinions arguing that sexual battery was a lesser included offense of child molestation in that case as a matter of fact. Furthermore, it is apparent that many trial courts continue to instruct juries that sexual battery is a lesser included offense of child molestation. See Flowers v. State, 220 Ga. App. 814, 817 (6) (468 SE2d 199) (1996); Shepherd, supra; Paradise v. State, 212 Ga. App. 166, 169 (4) (441 SE2d 497) (1994). Thus, it should be readily apparent that a clarification of this issue is long overdue. >

(a) A crime is a lesser included offense of the crime charged as a matter of fact when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. . . OCGA § 16-1-6 (1). In construing this provision, this Court has held that “even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. [Cits.]” (Emphasis supplied.) Messick, supra at 460. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial. See id.

A person commits the offense of child molestation, a felony, when he or she “does any immoral or indecent act to or in the presence of or with any child under thé age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). In comparison, a person commits the offense of sexual battery, a misdemeanor, when he or she “intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.” OCGA § 16-6-22.1 (b). The elements of these two offenses clearly differ: child molestation requires specific intent, while sexual battery requires only general intent; child molestation includes non-physical conduct in the presence of a child under the age of 16 years, while sexual battery requires actual physical contact with a victim of any age.

As a result of the differences between these two offenses, it is possible to commit one offense without committing the other. For example, a person who engages in indecent acts in the presence of a child, but without actually touching the child, might be guilty of child molestation, whereas he would not be guilty of sexual battery. However, it is equally possible to engage in a single act which satisfies all of the elements of both offenses. For example, the act of fondling the genitalia of a 12-year-old child with only an inference of the intent to arouse sexual desires would satisfy all of the elements of both offenses. Yet, the substantive bar against double jeopardy would prohibit the State from convicting the defendant of both offenses on the basis of that singular act. See OCGA § 16-1-7 (a) (1); State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974). Thus, under OCGA § 16-1-6 (1) and Messick, supra, sexual battery can be a lesser included offense of child molestation in particular cases where the facts alleged in the indictment for child molestation also include all of the elements of sexual battery.

The State, on the contrary, cites this Court’s opinion in Duck, supra, for the proposition that sexual battery is not, and presumably never can be, a lesser included offense of child molestation as a matter of fact. In Duck, this Court concluded that the indictment, which specified the victim’s age, was “narrowly drawn to pertain only to a crime against a child[,]” and that sexual battery, therefore, could not be a lesser included offense of child molestation as a matter of fact. Id. at 208 (4). Duck is one in a line of cases stemming from Teasley v. State, 207 Ga. App. 719 (2) (429 SE2d 127) (1993).

Teasley held that the “indictment taken together with the evidence indicates that sexual battery was not a lesser included offense of child molestation in this case as a matter of fact” and that when the indictment and the evidence presented at trial does not warrant it, “it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense.” (Citation and punctuation omitted.) Id. at 720. Although broadly written, Teasley is a correct statement of the law when properly applied. See Messick, supra at 461; compare Bowers v. State, 177 Ga. App. 36 (338 SE2d 457) (1985). A lesser included offense as a matter of fact must be both adequately averred in the indictment and be supported by some evidence of record. State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

Nevertheless, while Teasley is a correct statement of the law when properly applied, its broad language has been read to hold that sexual battery can never be a lesser included offense of child molestation as a matter of fact, regardless of the language of the indictment and the proof at trial. See Proper v. State, 208 Ga. App. 471, n. 1 (431 SE2d 133) (1993); Duck, supra; and their progeny. Thus, to the extent that the following cases stand for the proposition that sexual battery cannot be a lesser included offense as a matter of fact, they are overruled: Division 6 of Flowers, Division 6 oí Perkins, Division 4 oí Duck, and Division 4 of Gordon. We also disapprove of any language in Division 2 of Teasley and footnote 1 of Proper that would support such an outcome.

Cases such as Landrum, that held a charge on sexual battery was not required based on an analysis of the evidence presented and not upon a rule that sexual battery could never be a lesser included offense of child molestation, are neither overruled nor disapproved. In the same manner, Division 2 of Chief Judge Beasley’s special concurrence in Shepherd correctly analyzed this issue. A charge on sexual battery as a lesser included offense of child molestation is required when the indictment puts the defendant on notice that he could be convicted of the lesser included offense and the evidence presented at trial is sufficient to establish the lesser included offense consistent with these averments.

(b) While we have concluded that sexual battery can be a lesser included offense of child molestation as a matter of fact, we further conclude that sexual battery was not a lesser included offense in the present case given the evidence presented at trial. Consequently, we find that a charge on sexual battery was not required despite Strickland’s written request. Compare Alvarado, supra. “[E]ven if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well.” (Emphasis supplied.) Messick, supra at 460; see McCrary v. State, 252 Ga. 521, 523-524 (314 SE2d 662) (1984).

In determining whether a lesser included offense charge is necessary under a given indictment, this Court is required to follow the most recent Supreme Court cases of Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), and Alvarado, supra. Based on these cases, an indictment for child molestation could be drawn to exclude sexual battery as a lesser included offense, e.g., when the indictment alleged child molestation by commission of indecent acts in the presence of a child. If, however, the indictment alleged child molestation by touching of the child’s intimate parts and the evidence presented at trial was sufficient to show an intentional touching of the child’s intimate parts but without the intent necessary to prove child molestation (e.g., Bridgers v. State, 183 Ga. App. 98, 99 (357 SE2d 894) (1987)), a charge on sexual battery as a lesser included offense would be required. Edwards, Supra; Alvarado, Supra.

In this case, the facts contaiñed in the indictment for child molestation are sufficient to put Strickland on notice that he may be convicted of the lesser offense of sexual battery. The indictment in this case charges Strickland with child molestation in that he “did unlawfully . . . commit an immoral and indecent act to [the victim], a child under the age of 14 years, with intent to arouse and satisfy his own sexual desires by touching her breast with his hand. . . .” The indictment includes all of the necessary elements of sexual battery. “That is, charging defendant with [touching the breast of the victim] intentionally (i.e., with general criminal intent) would constitute sexual battery if done without her consent. OCGA § 16-6-22.1 (b). Since a person under age 14 cannot legally consent, this element is contained in the indictment for child molestation.” Shepherd, supra at 895-896. Thus, based on the indictment in this case, sexual battery could be a lesser included offense of child molestation under OCGA § 16-1-6 because the lesser offense is established by less than all of the facts of the greater offense and by a less culpable mental state.

However, the evidence presented at trial in this case did not support a charge on sexual battery. In this case, the victim’s testimony, if believed, would establish that Strickland committed the crime of child molestation, yet no evidence presented by either side would authorize a finding that Strickland committed the crime of sexual battery. According to the victim, Strickland would, among other things, ask her “for a pinch” of her breast and ask her if he could lick her breast. The victim further testified that Strickland told her “it felt good” when he fondled her. This evidence establishes all the elements of child molestation: an immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. OCGA § 16-6-4 (a).

“Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.” Burley v. State, 172 Ga. App. 34, 35 (321 SE2d 783). “The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” (Citation omitted; emphasis in original.) Edwards, supra at 133. Thus, since the evidence presented in this case demanded a finding of child molestation or nothing, we conclude that the trial court did not err by refusing to give the requested charge. Landrum v. State, supra at 277-278; Brooks v. State, 197 Ga. App. 194, 195 (397 SE2d 622) (1990).

2. Strickland next contends the trial court erred in instructing the jury regarding evidence of Strickland’s character. We disagree. The State questioned Strickland’s character witness concerning bad acts committed by Strickland which the State claimed in good faith were supported by admissible evidence. The State informed the trial court of these bad acts and the way in which it could prove these bad acts outside the presence of the jury. Thus, the questioning was proper. See State v. Clark, 258 Ga. 464 (369 SE2d 900) (1988). To each question, the witness replied he was unaware of the acts and that they would not change his opinion. No other evidence of bad acts was introduced by the State. Strickland does not assert that the trial court erred by allowing the questioning; he merely asserts that the trial court’s jury charge regarding bad character was erroneous.

The trial court gave limiting instructions regarding the questions and answers and later charged the jury as follows: “The district attorney cross examined the character witness of the Defendant about certain matters which could or would affect the reputation and the character of the Defendant. This evidence can be used Only for the limited purpose of impeaching the testimony of the witness offering evidence of Defendant’s good character. This evidence can not be uáed in determining the guilt or innocence of the Defendant as to the crimes charged.” Later in the charge, the trial court defined evidence: “Evidence is the means by which any fact which is put in issue is established or disproved. Evidence includes the testimony of the witness dnd the exhibits admitted during the trial.”

There is no dispute that Strickland introduced evidence of good character through his witness. Therefore, it is clear the State was permitted to impeach Strickland’s character witness by asking questions related to bad acts committed by Strickland which the State could prove. See Clark, supra. Although the character witness stated he did not know of the bad acts and that the bad acts would not change his opinion, this testimony is still evidence which the jury may consider for impeachment purposes. Since the jury instruction is a correct statement of the law, and the charge as a whole would not mislead a jury of average intelligence, we find no error. Brown v. State, 197 Ga. App. 365, 366 (2) (398 SE2d 424) (1990). Moreover, the charge was harmless in light of the overwhelming evidence in this case and in light of the fact that the charge actually was given for Strickland’s benefit to ensure the jury did not use any testimony regarding Strickland’s bad acts in determining his guilt or innocence. Weatherby v. State, 213 Ga. 188, 192 (3) (97 SE2d 698) (1957).

3. Strickland also asserts the trial court erred in allowing testimony from an expert witness regarding the credibility of the victim. This enumeration miScharacterizes the testimony. Teresa Dean, who performed psychological evaluations on the victim, testified, “[the victim’s] reports were consistent each time she had been interviewed prior to my interview, basically cross time and cross interviewers she told the same story. The symptoms that she described are consistent with the post traumatic stress disorder and the testing confirmed her description of her symptoms.” Strickland contends these statements commented on the truthfulness of the victim and were inadmissible. See Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1980). We disagree.

First, Strickland failed to preserve this issue for appeal because he did not object to the testimony at trial. McGee v. State, 205 Ga. App. 722, 723 (2) (423 SE2d 666) (1992). Second, Dean’s statements regarding the consistency of the victim’s reports were merely statements relating the history of the case, her testing, and the foundation for her diagnosis of post traumatic stress disorder. They were not statements suggesting the truthfulness of the victim. See State v. Butler, 256 Ga. 448, 450, n. 4 (349 SE2d 684) (1986). A witness may express an opinion whether evidence is consistent with the victim’s story. Satterwhite v. State, 212 Ga. App. 543 (2) (442 SE2d 5) (1994). In addition, Strickland was permitted to cross-examine Dean regarding other factors which could have caused the victim’s post traumatic stress disorder, showing the victim may not have been truthful. Accordingly, the court did not err in admitting this testimony.

4. In his fourth enumeration of error, Strickland claims the trial court erred in allowing testimony in aggravation of punishment at thé presentence hearing when Strickland was not given notice of such evidence prior to the hearing. Citing OCGA § 17-10-2 (a), which provides that the only admissible evidence in aggravation is that which the State has made known to the defendant prior to trial, Strickland argues that the testimony was inadmissible. However, Strickland consented in advance to the trial court’s use of the probation report. Accordingly, we find this enumeration to be without merit.

5. In his final enumeration of error, Strickland asserts the evidence was insufficient to convict him. We disagree. The evidence presented was sufficient to sustain Strickland’s conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, C. J., McMurray, P. J, Birdsong, P. J., and Blackburn, J., concur. Pope, P. J., Andrews, Johnson, Smith, JJ, and Senior Appellate Judge Harold R. Banke concur specially.

Pope, Presiding Judge,

concurring specially.

I agree that the majority’s analysis in Division 1 (a) is a correct application of the general law of lesser included offenses to the specific situation involving child molestation and sexual battery. Arid I agree with the conclusion in Division 1 (b) that there was no evidence of sexual battery in this case, even though proof of intent will generally depend on inference in the absence of an actual statement, of intent on the part of the defendant.

Nonetheless, I deem it necessary to address the real problem presented in situations like this one: Although the statutes defining child molestation and sexual battery leave open the possibility that sexual battery may be a lesser included offense of child molestation as a matter of fact, it offends our sensibilities that the sexual touching of a child could be a misdemeanor. Moreover, it is totally illogical that the sexual touching of a child may warrant a charge on a misdemeanor offense, while the commission of an indecent act in the presence of a child must be a felony. Clearly this is not what the legislature intended when it failed to specify that the victim of a sexual battery should not be a child, and our efforts to avoid this offensive result have produced the somewhat inconsistent body of case law described by the majority.

The optimum solution would be for the legislature to redefine sexual battery to eliminate the possibility of a child victim. But in the meantime, a charge on sexual battery as a lesser included offense will have to be given upon request in some child molestation cases.

I am authorized to state that Senior Appellate Judge Harold R. Banke joins in this special concurrence.

Smith, Judge,

concurring specially.

. I concur fully with the conclusion that the trial court did not erroneously refuse to give Strickland’s requested charge. Given this conclusion, I do not agree that this case is an Appropriate vehicle for discussion of whether sexual battery may be a lesser included offense of child molestation as a matter of fact. Had evidence been presented that Strickland committed sexual battery, a discussion of this issue would likely be necessary because our holding then would depend on the issue of whether sexual battery could ever be included in the offense of child molestation. The opinion notes, though, that the evidence demanded one of only two conclusions: Strickland was guilty “of child molestation or nothing.” As in Rash v. State, 207 Ga. App. 585, 588 (6) (428 SE2d 799) (1993), our holding could be based on the simple fact that the evidence presented could not have supported a charge on sexual battery. Because the issue of whether sexual battery could ever be included as a matter of fact in the offense of child molestation is not dispositive of the issue in this case, the discussion in Division 1 (a) is premature.

Furthermore, I am concerned that the conclusion reached in Division 1 (a) might thwart the statutory scheme, embodied in OCGA §§ 16-6-3, 16-6-4, and 16-6-5, that protects children of tender years against sexual offenses. Although these statutes are mentioned in footnote 1, the opinion does not address and resolve the potential conflict of a holding that sexual battery may be a lesser included offense of child molestation with the special legislative considerations afforded to children under 16.

Decided December 4, 1996

William W. Keith III, Karen E. Luffman, for appellant.

Roger G. Queen, District Attorney, for appellee.

I am authorized to state that Judge Andrews, Judge Johnson and Senior Appellate Judge Harold R. Banke join in this special concurrence.

       “[W]e recently ... held that the offense of sexual battery is not included in the offense of child molestation as a matter of law as ‘(t)he crimes of child molestation and sexhal battery have different elements and protect different classifications of victims.’ [Cit.] In Barnes v. State, 244 Ga. 302, 305 (1) (260 SE2d 40) (1979), our Supreme Court specifically recognized that OCGA §§ 16-6-3; 16-6-4; 16-6-5, formerly Code Ann. §§ 26-2018; 26-2019; and 26-2020, together ‘provide a general statutory scheme giving protection to both male and female children under the age of fourteen. . . .’ ” Gordon v. State, supra at 227 (4).

       The majority decided Shepherd on other grounds and did not reach the issue of whether sexual battery was a lesser included offense as a matter of fact.

       Although the majority in Duck made it clear that their holding pertained only to the facts of that particular case, several of this Court’s more recent opinions seem to support the State’s broader assertion. For example, in Flowers, supra at 817 (6), this Court held that the trial court erred in charging the jury that sexual battery was a lesser included offense of all the counts charged because “[sjexual battery is not a lesser included offense of child molestation.” (Emphasis in original.)
      Similarly, in Perkins v. State, 212 Ga. App. 225 (441 SE2d 511) (1994), this Court held that in a case where the defendant is indicted only for child molestation, “ ‘there would never be any reason for the court to charge the jury on sexual battery as a lesser included offense. Such a charge would be error.’ [Cit.]” (Punctuation omitted; emphasis supplied.) This holding fails to consider OCGA § 16-1-6 (1) and assumes that sexual battery can never be a lesser included offense of child molestation as a matter of fact.

       We note that this decision does not address a factual situation where the jury must infer that the defendant was acting with the intent to arouse or satisfy the sexual desires of either the child or the defendant since there was unequivocal testimony in this case that Strickland told the victim “it felt good.”


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A1046.
    SIMMONS v. THE STATE.
    (479 SE2d 123)
   Blackburn, Judge.

James Simmons appeals the trial court’s denial of his motion to suppress evidence of cocaine found during a vehicle search.

On March 7, 1995, Simmon^ was headed north driving a rental vehicle with Florida tags on 1-75 in Butts County when he was pulled over by two police officers for tailgating and driving 77 mph in a 65 mph zone. The two officers, Scott Whitwell and Robbie Bishop, issued Simmons a traffic warning. Simmons’ documents were returned to him, and he began walking towards his car. One of the officers testified, “[tjhat was the end of the traffic stop.”

Before Simmons could leave, however, Officer Whitwell initiated further conversation with Simmons and told Simmons that there was a problem in the area with transporting illegal narcotics. Both officers, although designated as traffic enforcement, were dressed in fatigue-style uniforms. Additionally, the officers were accompanied by Whitwell’s personal dog, who was trained in narcotics detection. Whitwell stopped Simmons and asked him if he was transporting illegal narcotics, and Simmons replied that he was not. Officer Whit-well then advised Simmons that while he had him stopped he wanted to walk his narcotics detection dog around the exterior of his vehicle. Officer Whitwell contends and Simmons disputes that he consented to such walk-around. The officers then conducted a walk-around of Simmons’ car with Officer Whitwell’s narcotics detection dog. When the dog signaled that narcotics may be present, the officers searched the vehicle and found approximately 600 grams of cocaine.

1. Simmons contends that the trial court erred in denying his motion to suppress because the initial stop was merely pretextual. Simmons never denied, however, that he was speeding. A reasonable police officer would have stopped Simmons for traveling 12 miles over the speed limit, and thus this contention is without merit. See Roundtree v. State, 213 Ga. App. 793, 794 (446 SE2d 204) (1994).

2. Simmons contends that the trial court erred in denying his motion to suppress because the officers exceeded the scope of permissible investigation. The evidence is uncontroverted that when the officers conducted the walk-around of Simmons’ vehicle with the narcotics detection dog, the traffic stop for which Simmons had originally been pulled over had cqncluded.

In denying Simmons’ motion to suppress, the trial court held that “probable cause existed to conduct the ‘walk around.’ ” Probable cause, however, is not the applicable legal standard for determining the validity of a brief detention. The appropriate legal standard for determining whether the additional questioning and the walk-around exceeded the scope of permissible investigation, in the absence of consent, is whether the officers had a reasonable suspicion that Simmons was transporting illegal drugs. See State of Ga. v. Montford, 217 Ga. App. 339, 340-341 (457 SE2d 229) (1995). If the officers had no reasonable suspicion that Simmons was transporting drugs, and if Simmons did not consent to the search, then the deten-, tion following the conclusion of the traffic stop exceeded the scope of permissible investigation.

In this case, the State offered three factors to establish reasonable suspicion: (1) Simmons and his passenger both appeared nervous; (2) Simmons told the officers that the vehicle rental agreement was in Simmons’ wife’s name, and his wife was not present in the vehicle; and (3) Simmons told the officers that he was nervous because the passenger was his girl friend. These factors are insufficient to establish a reasonable suspicion that Simmons was transporting illegal drugs. See Rogers v. State, 206 Ga. App. 654, 659-660 (426 SE2d 209) (1992) (extreme nervousness exhibited during police questioning, standing alone, is not sufficient to establish reasonable suspicion of criminal activity); see also Miranda v. State, 189 Ga. App. 218, 220-221 (375 SE2d 295) (1988) (airport case where lack of identification, one-way ticket purchased with cash, and accused’s nervousness were found to be insufficient to establish reasonable suspicion of criminal activity); compare Montford, supra at 340-341.

In the absence of reasonable suspicion, the officers must have obtained Simmons’ consent in order to lawfully continue the stop while detaining him. See Smith v. State, 216 Ga. App. 453, 455 (454 SE2d 635) (1995). The trial court did not address the issue of consent below, and the record contains conflicting evidence as to whether or not Simmons consented to the additional questioning and to the walk-around. Therefore, this case must be remanded to determine whether Simmons consented to the police questioning on the subject of narcotics and to the dog walk-around. If the questioning and walk-around were consensual, Simmons’ motion to suppress must be denied. If found to be non-consensual, Simmons’ motion to suppress must be granted. See Smith, supra.

Decided December 4, 1996.

Garland & Milam, Richard G. Milam, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Judgment reversed and remanded with direction.

Beasley, C. J, and Senior Appellate Judge Harold R. Banke concur.

       Simmons also contends that, even if the additional questioning and the dog walk-around were valid, no probable cause existed to search his vehicle. This argument is without merit. “[B]ecause the drug dog alerted to the automobile, the officer had probable cause to believe that contraband was contained therein.” Roundtree, supra at 794-795.


author: Pope, Presiding Judge. Andrews, Judge, Smith, Judge,

text:
    A96A1119.
    GREELEY v. A. G. SPANOS COMPANIES.
    (479 SE2d 23)
   Pope, Presiding Judge.

Plaintiff Pamela Greeley worked in an office building owned and managed by defendant A. G. Spanos Companies. After falling on a slippery tile floor in a common area of the building, Greeley sued defendant to recover for the injuries she sustained in her fall. The trial court held that plaintiff had equal knowledge of the dangerous condition as a matter of law and granted summary judgment for defendant. We conclude that whether plaintiff had equal knowledge of the danger and whether she exercised due care for her own safety were properly questions for the jury,* and therefore reverse the grant of summary judgment.

We view the evidence in a light favorable to plaintiff (the party opposing the motion for summary judgment). See, e.g., Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). Prior to plaintiff’s fall, the building maintenance man had cleaned the elevator doors with a substance called “the Silencer,” which comes out of an aerosol can as a fine mist. When the building manager inspected his work, she noticed that the floor in front of the elevators seemed shiny. Realizing that the shiny areas might be hazardous, she directed the maintenance man to “hot mop” them, meaning to mop the shiny floors down with plain'hot water, and to put out “wet floor” warning signs. The maintenance man did mop the floor and put up the warning signs.

For two or three days before her accident, plaintiff had noticed the slick floor and the warning signs and had been particularly cautious while walking in front of the elevators. On the day she fell, however, the warning signs were not present. She therefore assumed the hazardous condition had been corrected and did not pay particular attention to the floor. She fell while exiting the elevator, seriously injuring her shoulder, and then discovered an oily substance on her clothes and hand.

Under these circumstances, a jury could conclude that defendant had actual or constructive knowledge that the floor was still unusually slippery in spots, and that plaintiff did not. Plaintiffs awareness of the danger on previous days does not compel the conclusion that she was aware of the danger on the day of her fall, particularly when the warning signs that had previously accompanied the danger were no longer present.

The dissent suggests that plaintiff’s statement in her deposition that she did not recall looking at the floor is fatal to her case. In Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), however, the Supreme Couqt held that even if a plaintiff admits he could have seen liquid on the floor if he had looked at it, a verdict for the defendant is not demanded. Rather, the question of whether the plaintiff exercised reasonable care for his safety under all the circumstances, despite his failure to look straight down at the floor while he was walking, was one for the jury to decide. This holding recognized the reality of everyday life, in which perfectly “reasonable” people fail to look straight down at the floor all the time. Instead, they look ahead or around, at a view that encompasses the floor but does riot necessarily focus on it unless they are warned that the floor is particularly dangerous. If the plaintiff’s admission in Barentine was not fatal, certainly plaintiff’s deposition statement here should not be, since unlike the plaintiff in Barentine, plaintiff here did not say she would have seen the hazard had she looked at the floor.

Accordingly, the trial court erred in granting summary judgment for defendant.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Birdsong, P. J, Andrews and Smith, JJ., dissent.

Andrews, Judge,

dissenting.

Because I believe the majority has misconstrued the holding in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), and ignored the mandate of Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), and the long line of cases holding the plaintiff must show that she was exercising ordinary care for her own safety, I respectfully dissent. Greeley maintains, throughout her deposition testimony, that she never looked down and does not know if there was any foreign substance visible on the- floor. She testified as follows: “Q: When you came into work on the morning of the incident, did you notice anything different about the floor, any different condition in the floor than it had been for the four or five days preceding other than the fact the sign wasn’t there? Was there anything changed about it? A: I can’t honestly say that I was concentrating on the floor. I didn’t notice — don’t recall specifically saying, you know —. Q: Were you looking at the floor when you came up that morning, the first time you came in the building? A: When I first came into the building, probably not. I come in on the first floor. Q: And I guess you went down to your office, and then at some point you came back down the hall, back to the elevators in order to go to the fifth floor? A: Right. Q: And at that time, do you remember noticing any difference in the condition of the floor as compared to the four or five days before? A: I only noticed that the sign wasn’t there. Q: Did you look at the floor when you came back to the fifth floor? A: I don’t recall examining the floor or looking at the floor. I just know that the sign wasn’t there.”

Nowhere in her deposition does she indicate that she looked at the floor but could not see any substance on the floor.

Later, Greeley submitted an affidavit as a supplement to her brief in opposition to Spanos’ motion for summary judgment in which she states: “After I fell on November 17, 1992 I noticed an oily substance on my pants and hand. Prior to my fall I could not see this or any other substance on the floor of either the elevator or the walkway.” If we interpret this as not contradicting her deposition testimony, then we take this statement to mean she did not see anything on the floor because, as stated previously, she does not recall looking at the floor. If we take the statement to mean she did look at the floor and could not see any substance, then this is directly contradictory to her deposition testimony in which she consistently maintained she did not notice the condition of the walkway in front of the elevators and the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), applies.

Decided December 4, 1996

Slip and fall. Fulton Superior Court. Before Judge Wyatt Cummings Moore.

Bussey & Giudice, Mark E. Bussey, Raymond V. Giudice, for appellant.

Long, Weinberg, Ansley & Wheeler, John C. Bonnie, Kathryn S.

Accordingly, the uncontroverted evidence in the case is that Greeley did not look down and did not notice whether or not there was any foreign substance discernible on the floor. The majority opinion holds that Barentine stands for the proposition that even if Greeley admits she did not look down at the floor as she was stepping off the elevator, it is still a jury question as to whether she was exercising reasonable care. That is not the holding in Barentine; moreover, this finding flies in the face of long-established case law requiring a plaintiff to “make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” Alterman Foods, supra at 623. While Barentine states that it is possible to exercise ordinary care if the plaintiff offers “a specific reason” for not looking at the floor as he is walking, Barentine, supra at 225> that is not the case here. Greeley gives no reason why she did not look where she was stepping, she says only that she did not look. Accordingly, she was not exercising ordinary care for her own safety, and I would hold the trial court correctly granted Spanos’ motion for summary judgment.

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this dissent. ,

Smith, Judge,

dissenting.

While I join in Judge Andrews’s dissent, I write separately to point out that since Greeley had actual notice of the condition of the floor before any cautionary signs were in place, she had the minimal obligation to glance downward. The alternative is to hold that if a property owner ever uses cautionary signs, the eventual removal of those signs absolves an invitee of any further duty to look ahead or exercise reasonable care, even though the invitee was fully aware of a hazard before the signs were installed. Such reasoning makes the removal of warning signs in effect a warranty of safety and makes the property owner an insurer of the safety of invitees in contravention of wellr-established Georgia law.

I am authorized to state that Presiding Judge Birdsong and Judge Andrews join in this dissent.

Whitlock, J. Kenneth Moorman, for appellee.

       In many cases, including this one, these questions are flip-sides of the same inquiry: when we ask whether plaintiff’s failure to look down at the floor and notice the hazard was unreasonable as a matter of law, we are essentially asking whether plaintiff had constructive knowledge of the hazard.

       Indeed, in another portion of,her deposition plaintiff stated she could not see the substance on the floor prior to her fall. The dissent argues that this statement is inconsistent with her subsequent statement that she did not recall “concentrating on,” “examining,” or “looking at” the floor, and thus must be ignored under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). These statements are not necessarily inconsistent, however, as a person may see the floor as part of his surroundings when he looks ahead or around, even though he is not looking directly at the floor. Thus, Prophecy is inapplicable, and a jury should decide how to interpret and weigh the statements.


author: Andrews, Judge. Pope, Presiding Judge,

text:
    A96A1164.
    HARALSON v. THE STATE.
    (479 SE2d 115)
   Andrews, Judge.

Joseph Haralson appeals the judgment entered on a jury verdict finding him guilty of one count of violation of the Georgia Controlled Substances Act. We affirm the judgment of the trial court.

The evidence at trial, viewed in the light most favorable to the jury’s verdict, was that Officer Bartik, a Gwinnett County police officer in the narcotics unit, working through a confidential informant, set up a meeting with Haralson to buy ten pounds of marijuana. Debra Lane, the confidential informant, was a friend of Haralson’s from their high school days, and she asked Haralson to get ten pounds of marijuana to sell to a man who was coming into town from Savannah. According to Haralson’s testimony, Lane wanted ten pounds for the person coming from Savannah and one pound for her to sell herself. Bartik’s initial contact with Haralson was on the evening of June 15, 1994, when they spoke on the phone and arranged the sale for later that night. After agreeing to meet Haralson at a bar called Rudy’s, Bartik arranged for a cover team to accompany him to the meeting.

The two met in the parking lot at Rudy’s, and Bartik showed Haralson the $15,000 in cash. Bartik asked Haralson if they were going to do the deal there in the parking lot, and Haralson said no, that it would be across the street at the car wash. Haralson said he was waiting for two other men who would return in a. few minutes. While waiting for the men, Bartik testified that he asked Haralson about “doing business in the future together,” and Haralson said that would not be a problem. Bartik said he told Haralson he needed to get a better price in future deals, and Haralson told him if he bought a larger amount, the price would come down.

After waiting several minutes, Haralson told Bartik it was time to go over to the car wash. At the car wash, they went up to a pickup truck with two men in it, co-defendants Bowman and Hill. In the pickup truck was a red cooler with several ziplock plastic bags inside. After seeing the plastic bags, Bartik gave the signal to the cover team to arrest Haralson, Hill, and Bowman. After placing Haralson under arrest, Bartik searched him and found a nine-millimeter gun under his shirt, tucked in the front of his pants.

Bartik testified that he never attempted to entice Haralson to do anything against his will and that at no time during the phone conversation or at the scene of the marijuana sale did Haralson appear to be unwilling to engage in the deal.

In his defense, Haralson called two character witnesses, his mother and his uncle. Haralson’s mother testified that Debbie Lane would call Haralson “three, four, five times a week or maybe more.” Haralson’s mother stated that she never found any evidence of drugs in his room when she cleaned. Haralson also called a witness who testified that the nine-millimeter Ruger Haralson was carrying when he was arrested was won by Haralson at a raffle.

Haralson testified in his own defense. He stated he knew Debra Lane from high school and that approximately two months before his arrest, Lane started calling him, telling him her children were doing without and she needed money. Haralson said she asked him to get her some marijuana to sell. He said that at first he tried to avoid her calls, but decided to help Lane after she told him that some men were coming from out of town and she was afraid of them because a “deal” had fallen through and they were angry.

Haralson stated that prior to the calls from Lane, he was not “messing with anything,” nor was he “selling any marijuana at the time. . . .” Haralson testified that he was not going to make any money from the deal. He said Lane told him she was going to give him “a little something for [his] trouble.” In his search for the marijuana, Haralson said he called several people before talking to Bowman, an old school friend, who in turn called Billy Joe Hill, who provided the marijuana.

When asked about the gun he was carrying when he was arrested, Haralson said the subject of a gun came up in a three-way phone conversation with Lane and Bartik as they were arranging the sale. Bartik told Haralson he was afraid of being mugged, and Haralson said he could use his gun if he wanted to. Haralson said Debra Lane told him he should bring a gun to the sale for his own protection.

The State called Denver Bowman as a rebuttal witness. Bowman testified that when he told Haralson the price of the marijuana, Haralson commented that it “sounded kind of high.” Bowman said Haralson told him that he (Haralson) would be getting a pound of marijuana out of the deal.

The jury convicted Haralson on one count of possession with intent to distribute marijuana and acquitted him on the count of possession of a firearm during the commission of a felony. The court sentenced Haralson to ten years intensive probation and fined him $8,000.

1. Haralson’s sole defense at trial was that Debra Lane, the confidential informant, entrapped him into committing the crime. In his first enumeration of error, Haralson argues the State failed to rebut his defense of entrapment beyond a reasonable doubt. OCGA § 16-3-25 provides: “A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.”

The entrapment defense has three elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement or deceit; and (3) the defendant must not be predisposed to commit the crime. Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). “After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. That determination generally rests with the jury; however, where there is no conflict in the evidence, and all the evidence prior to the entrapment that is introduced, with all reasonable deductions and inferences, demands a verdict of acquittal, the trial judge must direct a verdict of acquittal. The government’s burden is far greater than merely impeaching the accused, it ‘must go further and contradict this witness’ testimony as to the affirmative defense.’ ” (Citations omitted.) Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991).

In the instant case, the State had an audio tape and a videotape of the marijuana sale. From Haralson’s conversation with Bartik at the sale, the jury could correctly infer that Haralson had prior, independent experience in the sale of marijuana. This evidence of familiarity with marijuana transactions can be used to show the defendant’s predisposition to commit the crime. Bennett v. State, 158 Ga. App. 421, 422 (280 SE2d 429) (1981); Chambers v. State, 154 Ga. App. 620, 625 (269 SE2d 42) (1980).

Haralson claims Lane’s repeated requests eventually played on his sympathy and induced him to set up the deal. But, this, without more, does not constitute entrapment. Paras v. State, 247 Ga. 75, 77 (274 SE2d 451) (1981); Pennyman v. State, 175 Ga. App. 405, 407 (333 SE2d 659) (1985).

In discussing the entrapment defense in situations where the government has offered a defendant the opportunity to buy or sell drugs, the United States Supreme Court stated: “the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition.” Jacobson v. United States, 503 U. S. 540 (112 SC 1535, 118 LE2d 174, 185) (1992) . Here, we find that Haralson readily committed the criminal act and this, together with his conversation with Bartik showing his familiarity with the process of buying and selling marijuana, was sufficient to show Haralson’s predisposition to engage in the selling of marijuana. Accordingly, we hold the State submitted sufficient evidence to meet its burden of disproving entrapment beyond a reasonable doubt. See Rutledge v. State, 218 Ga. App. 130, 133 (460 SE2d 551) (1995); Hall v. State, 211 Ga. App. 310, 311 (439 SE2d 67) (1993) .

2. Second, Haralson claims the verdict was contrary to law and violated his rights to due process and fundamental fairness because of the jury’s conviction on Count 1 and acquittal on Count 2. During their deliberations, the jury sent a note to the court asking: “If we find entrapment does defendant automatically get acquitted on both counts?” The court answered: ‘Yes.” Haralson argues that since his only defense was entrapment and the jury was specifically instructed that if they found entrapment, Haralson would “automatically get acquitted on both counts,” the verdicts are inconsistent and mutually exclusive.

While agreeing that the inconsistent verdict rule has been abolished, Haralson argues that the verdicts are not only inconsistent but mutually exclusive. We disagree. As the State points out, the evidence at trial of entrapment as to possession of a firearm was different from the evidence of entrapment for possession with intent to distribute marijuana. Haralson described a three-way conversation with Lane, the confidential informant, and Bartik, in which Lane urged him to carry a gun that night. The jury could well have believed Haralson was entrapped under those circumstances but not have believed his defense of entrapment with regard to the sale of marijuana. The verdicts are not mutually exclusive.

3. Next, Haralson claims the trial court erred in expressing its opinion on the testimony of rebuttal witness Denver Bowman. The court was concerned over what appeared to be Bowman’s inconsistent testimony as to whether or not Haralson told Bowman he was being paid for the deal. Bowman initially testified on direct as follows: “Q. Did he tell you anything about wanting any of the marijuana? A. Yes. Q. What did he tell you? A. He said he was going to get a pound for doing it, instead of getting paid money or whatever.”

On cross-examination, when asked “isn’t it true that Mr. Haralson told you that the extra pound was going to Debra Lane and she was going to use the money,” Bowman replied, “I don’t recall.” On redirect, the prosecutor attempted to clarify Bowman’s testimony, and defense counsel objected, stating that the question had been asked and answered. The judge ruled he would allow the question because he was concerned by “the inconsistencies the Court has heard from this witness.” The court then reminded the witness that he was under oath.

We find no merit to this enumeration. The witness’s testimony was contradictory, and the trial judge has the right to question witnesses “for the purpose of developing fully the truth of the case. . . .” (Citation and punctuation omitted.) Harris v. State, 202 Ga. App. 618, 619 (414 SE2d 919) (1992).

In addition, the harm, if any, was remedied by the court’s instruction to the jury: “[b]y no ruling or comment which the Court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.” See Ellis v. State, 216 Ga. App. 232, 233 (453 SE2d 810) (1995); Harris, supra at 620.

4. Haralson also claims the trial court’s failure to instruct the jury pursuant to the dictates of Jacobson v. United States violated his due process and fundamental fairness protections. Haralson submitted the following request to charge: “Where the State has induced a defendant to break the law and the defense of entrapment is at issue, the State must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by agents of the State.” Jacobson, 118 LE2d at 184.

The trial court refused to give the above charge, giving instead the pattern charge as follows: “A person is not guilty of a crime if by entrapment that person’s conduct is induced or solicited by a government officer or employee or agent of either. . . . Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee or with an agent of either, and that officer or employee by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer or employee. To constitute entrapment the accused must have been induced to commit the criminal act which he would not have otherwise committed except by undue persuasion, incitement, or deceitful means practiced upon the accused by a government officer or employee, or agent of either.”

Haralson argues that Jacobson mandates a jury instruction specifically stating that the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the criminal act prior to first being approached by government agents. See, e.g., United States v. Reese, 60 F3d 660, 664 (9th Cir. 1995). But, in a case almost directly on point, the Eleventh Circuit rejected this argument. In upholding the giving of the pattern jury instruction, the court held that the phrase which “instructed the jury to acquit if the evidence ‘leaves you with a reasonable doubt whether a defendant had any intent to commit the crimes except for inducement or persuasion on the part of the Government officer or agent,’ ” correctly stated the “but for” nature of the predisposition inquiry. (Emphasis in original.) United States v. Brown, 43 F3d 618, 628 (11th Cir. 1995). The pattern instruction given by the court in the instant case has similar “but for” language; namely, “[ejntrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee or with an agent of either, and that officer or employee by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer or employee.” (Emphasis supplied.)

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Punctuation omitted.) Jordan v. State, 211 Ga. App. 86, 93 (438 SE2d 371) (1993), quoting Williams v. State, 249 Ga. 822, 825 (295 SE2d 293) (1982). Therefore, considering the charge as a whole, we find it fully and accurately charged the jury on the State’s burden when a defense of entrapment is raised. Jordan, supra at 93. Accordingly, we find no error in the trial court’s refusal to give the specific requested charge because the charge that was given adequately covered the applicable principle of law. McCane v. State, 147 Ga. App. 730, 731 (250 SE2d 181) (1978); Brown, supra at 627-628.

5. Haralson also enumerates as error the trial court’s refusal to allow character witness testimony as to Haralson’s reputation in the business community. Although the trial court allowed testimony from two character witnesses as to Haralson’s reputation for good character in the community, the court refused to allow testimony from four witnesses as to Haralson’s reputation in the business community. There was no error. “[Restricting counsel from asking a witness about an individual’s reputation at business and among the employees is not error, as this is not the correct test.” Foster v. State, 170 Ga. App. 222, 225 (316 SE2d 828) (1984); Bush v. State, 149 Ga. App. 448, 450 (254 SE2d 453) (1979).

6. In his next enumeration, Haralson claims the trial court erred when it refused to allow the testimony of Haralson’s sister, Janet Davis. At trial, defense counsel requested permission to call Davis to testify about conversations she had with Debra Lane three weeks or a month before Lane first called Haralson. These conversations did not involve Haralson in any way but allegedly concerned attempts by Lane to convince Davis to arrange a marijuana deal. The trial court properly excluded this evidence on the grounds that it was not relevant. “The trial court has wide discretion in determining what evidence is legally or logically relevant.” Lebis v. State, 212 Ga. App. 481, 484 (442 SE2d 786) (1994). This enumeration of error is without merit.

7. Last, Haralson contends the trial court improperly denied his motion in limine to exclude the testimony of Denver Bowman about Haralson’s prior use of marijuana. The testimony in question was elicited to rebut Haralson’s entrapment defense and described instances when Bowman and Haralson were in high school and would go in together to buy an ounce or half an ounce of marijuana and divide it between themselves.

Haralson argues the prejudicial value of evidence of simple possession 12 to 13 years ago outweighs any probative value in this case and the court erred in admitting it. We do not agree. Evidence of Haralson’s prior use and possession of marijuana is relevant to rebut his defense of entrapment. See Hall v. State, supra at 311 (testimony of defendant that he cooperated in drug sale because he would be able to keep some cocaine for his own use disclosed predisposition to sell drugs for drugs).

Haralson also claims the prior use and possession was too remote to be of any probative value. While lapse, of time is a factor to be considered when balancing the probative value with the prejudicial impact of the evidence, mere lapse of time between the prior use and the current offense does not render the evidence inadmissible. Williams v. State, 194 Ga. App. 822, 823 (392 SE2d 297) (1990). We find the probative value of this evidence was not outweighed by the prejudicial impact. The trial court did not abuse its discretion in admitting this evidence.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J, Johnson, Smith and Ruffin, JJ, concur. Pope, P. J., and Blackburn, J., dissent.

Pope, Presiding Judge,

dissenting.

I respectfully dissent. OCGA § 16-3-25 provides that “[a] person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” See also Emanuel v. State, 195 Ga. App. 302, 305 (393 SE2d 74) (1990) (Pope, J., dissenting), adopted in 260 Ga. 425 (396 SE2d 225) (1990). “After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt.” Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991). And, as the majority acknowledges, it is not enough for the State merely to impeach the defendant’s evidence making out the entrapment defense. Rather, “[t]he government’s burden is far greater than merely impeaching the accused, it ‘must go further and contradict this witness’ testimony as to the affirmative defense. (Cits.)’ [Cit.]” Id.

In my opinion the defendant in this case established a prima facie case of entrapment, and the State failed to rebut the defendant’s case beyond a reasonable doubt. The defendant testified that the informant was an old female friend of his who repeatedly (forty or fifty times) contacted him over a two-month period and requested that he obtain marijuana to sell. She would sometimes call two or three times a day. The defendant testified that when the informant first contacted him, she told him that she needed to make some money because “her children were doing without”; that at first she did not say what she wanted to do to make money to help her kids, but that she subsequently asked him to help her obtain some marijuana to sell; and that when defendant still did not respond to her requests, she then told him that she feared for her safety because of her inability to obtain drugs on a previous occasion for the people who were looking to buy drugs from her now. The defendant presented evidence that he did not possess marijuana to sell at the time the informant contacted him, that he did not transport the contraband to the arranged buy, and that he told the undercover officer he had to “pound the pavement” to obtain the drugs through the friend of a friend. The informant did not testify at trial, and the undercover officer’s testimony concerning his knowledge of what transpired in setting up the drug deal did not contradict the defendant’s testimony. The undercover officer testified that the informant talked with the defendant an undetermined number of times over a period of several weeks in setting up the deal, that he did not tell the informant specifically what to say to the defendant in order to set up the deal, although he did instruct her to try and get “as much as she could get” and that he did not have a recording of the informant’s conversations with the defendant. Based on the officer’s testimony alone, the State could not rebut the defendant’s claim of entrapment. “ ‘The record is absolutely devoid of evidence . . . that the circumstances surrounding the solicitations by the . . . informant occurred in a way other than that testified to by [the defendant].’ [Cit.]” Emanuel, 195 Ga. App. at 305. “If the informer’s testimony would have disproved the defendant’s testimony, the state should have produced him.” Perry v. State, 143 Ga. App. 227, 228 (1) (237 SE2d 705) (1977). See also Hill v. State, 261 Ga. at 378; Robinson v. State, 145 Ga. App. 17 (243 SE2d 257) (1978).

Decided December 4, 1996

Frank J. Petrella, for appellant.

Daniel J. Porter, District Attorney, Jefferson B. Blandford, Assistant District Attorney, for appellee.

Notwithstanding the foregoing, however, the majority would affirm defendant’s conviction because of evidence it says shows defendant’s predisposition to commit the crime. Specifically, the majority finds that defendant’s words and actions during the drug sale would allow the inference that defendant had prior experience in drug dealing. But “inferences and suggestion are not sufficient to meet the State’s burden of showing ‘beyond a reasonable doubt that the [defendant was] predisposed to commit the [offense].’ (Emphasis supplied.) [Cit.]” Emanuel v. State, 195 Ga. App. at 306. The State failed to show that the defendant possessed marijuana prior to the sale, had made drug sales on prior occasions, needed to transact the sale to get money, or any other facts that could create more than an inference of predisposition. See Chambers v. State, 154 Ga. App. 620, 625 (269 SE2d 42) (1980). All the State really showed about defendant’s predisposition was that defendant possessed marijuana in high school. However, a State’s witness testified that the defendant had never distributed marijuana. The defendant’s possession of marijuana approximately 12 years ago when he was in high school does not show beyond a reasonable doubt that the defendant had the predisposition to commit the crime of which he was convicted — possession with the intent to distribute. Emanuel, 195 Ga. App. at 306.

Since the Státe failed to rebut defendant’s testimony that he was entrapped and failed to present any more than an inference of the defendant’s predisposition, the defendant was entitled to a directed verdict of acquittal. Compare Rutledge v. State, 218 Ga. App. 130, 133 (460 SE2d 551) (1995) (affirming conviction since informant testified that he did not induce defendant into committing the act); Hall v. State, 211 Ga. App. 310, 311 (439 SE2d 67) (1993) (affirming conviction since defendant testified he had sold drugs because he needed the money). Therefore, I would find it unnecessary to reach the defendant’s remaining enumerations of error.

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

       Upon examination, the bags were found to contain ten pounds and seven ounces of a green leafy material which tested positive for marijuana.


author: Beasley, Chief Judge.

text:
    A96A1178.
    GRIFFIN v. THE STATE.
    (479 SE2d 21)
   Beasley, Chief Judge.

Griffin appeals his convictions of loitering and prowling (OCGA § 16-11-36) and obstruction of a law enforcement officer (OCGA § 16-10-24).

1. He challenges the sufficiency of the evidence to support his conviction of loitering and prowling. It is viewed on appeal in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

The arresting officer was patrolling an area in which numerous arrests had been made for drug transactions, primarily sales of crack cocaine. It was common there for a buyer to drive up and stop, the dealer to come up to the window, and a quick exchange of drugs for money to occur. On this night, the officer observed Griffin standing on the side of the street between two buildings in a lighted area. The officer suspected that Griffin was selling drugs because as he drove past Griffin repeatedly, Griffin would see the officer in the patrol car and back up into the shadows, apparently to avoid being seen or at least identified. The officer observed in his rearview mirror that after he left the immediate area, Griffin would step back out.

The officer parked his car so he could observe whether Griffin was approaching passing motorists. The officer saw a figure appearing to be Griffin approach a stopped car. When the officer circled back, the car was gone, but Griffin had resumed his position at the edge of the shadowy area. While still in his patrol car, the officer pulled up and called to Griffin in an attempt to speak to him to dispel his alarm and concern, but Griffin began to walk away. The officer exited his car and called again as he approached Griffin, who cursed and refused to talk and moved away farther until the officer caught up in an apartment parking lot. The officer stopped him by the arm because he suspected Griffin possessed crack cocaine, based on what he had observed and the circumstances. Griffin whirled around and reared back to hit the officer and attempted to flee. They engaged in a struggle when the officer tried to stop him. Griffin hit, pushed, and kicked the officer, trying to get away, and dragged the officer up the stairs. Eventually Griffin was arrested.

“A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” OCGA § 16-11-36 (a). “[T]he words ‘“under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity” mean those circumstances where peace and order are threatened or where the safety of persons or property is jeopardized.’ [Cit.]” Bell v. State, 252 Ga. 267, 271-272 (1) (313 SE2d 678) (1984).

Decided December 4, 1996.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

Kermit N. McManus, District Attorney, John S. Helton, Assistant District Attorney, for appellee.

While “ ‘criminal statutes must be strictly construed against the state,’ [cit.],” Doe v. Bd. of Regents &c., 215 Ga. App. 684, 688 (3) (452 SE2d 776) (1994), OCGA § 16-11-36 (a) does not require a threat to the safety of persons in the vicinity only from physical violence, either by its express terms or by construction.

Undeniably, the sale of illegal drugs threatens the safety of the persons to whom the drugs are sold and, in the words of Bell, supra, threatens “peace and order.” Also, activities associated with the illegal drug trade jeopardize the physical safety of persons who happen to live in, or find themselves in, the vicinity in which that trade is plied. Compare Blair v. State, 216 Ga. App. 545, 547 (2) (455 SE2d 97) (1995), where the alarm or concern was for the safety of property. Viewed in the light most favorable to upholding the verdict, the evidence was sufficient to enable a rational trier of fact to find Griffin guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Griffin complains of the trial court’s refusal to give two requests to charge the jury on the facts and holding in Brown v. Texas, 443 U S. 47 (99 SC 2637, 61 LE2d 357) (1979). The charges relate to the requirement of a reasonable suspicion as a basis for detention and questioning of a person.

The court did not err in refusing to give these requests. The first was not properly adjusted to the evidence. See Pruitt v. State, 211 Ga. App. 654 (2) (440 SE2d 248) (1994). The second was not entirely correct and accurate and concerned a dissimilar Texas statute. Ogles v. State, 218 Ga. App. 92, 93 (1) (c) (460 SE2d 866) (1995). The court’s charge on the two offenses was complete.

Griffin’s conviction for both crimes is affirmed.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J, concur.


author: Pope, Presiding Judge.

text:
    A96A1347.
    DEPARTMENT OF TRANSPORTATION v. PITMAN.
    (479 SE2d 112)
   Pope, Presiding Judge.

In 1987, condemnor Department of Transportation filed a condemnation petition acquiring .615 acres of land located on the east side of Interstate 75. The land was owned by condemnee Chevron U. S. A., Inc. and leased to condemnee Norman Jack Pitman, who operated a Chevron station on the land. Dissatisfied with the amount DOT offered for their respective property interests, both Chevron and Pitman appealed the condemnation in superior court. Chevron, however, resolved its dispute with DOT prior to trial, and it was dismissed as a party. The only issue at trial concerned Pitman’s claim for business damages resulting from the loss of his service station.

DOT argued that Pitman had no business damages as a result of the loss of the Chevron station because Pitman successfully relocated his business to a BP station on the west side of the interstate at the same exit as the Chevron station. The BP station was leased in 1980 by Linoco, Inc., whose sole shareholders were Pitman and his wife. After hearing all the evidence in the case, including that concerning Pitman’s purported relocation of the Chevron station’s business, the jury returned a $250,635 verdict .in Pitman’s favor. DOT appeals, asserting four enumerations of error. We affirm.

1. DOT contends that the trial court committed reversible error in refusing to instruct the jury that Pitman had a duty to minimize or mitigate any business damages he might have suffered. We disagree. A mitigation charge is only required in cases like this when there is evidence that a condemnee has failed to mitigate its damages. Fountain v. MARTA, 147 Ga. App. 465, 471 (10) (249 SE2d 296) (1978). In fact, in Fountain, we held that it was reversible error for a trial court to give such a charge absent evidence that it was both possible for a condemnee to mitigate its damages and that the condemnee had failed to do so. Id. In the instant case, DOT presented no evidence that Pitman could have mitigated his damages, but failed to do so. Instead, as mentioned above, it argued that Pitman had no damages whatsoever. Accordingly, we conclude that the trial court did not err in failing to charge the jury that Pitman had a duty to minimize or mitigate his 'damages. The charge clearly was not adjusted to the evidence adduced at trial. For refusal of a charge to constitute error, the charge must be adjusted to the evidence. Sharp v. Fagan, 215 Ga. App. 44, 46 (4) (449 SE2d 648) (1994).

2. During trial, Pitman testified without objection concerning the origin of the Chevron station’s business. Specifically, Pitman testified that 90 percent of the Chevron station’s business came from northbound traffic on 1-75, and that the rest of the business came from local traffic. Pitman also testified that only three percent of the business came from southbound traffic on 1-75. DOT contends that Pit-man’s testimony amounts to opinion testimony from a non-expert witness and that Pitman failed to state the facts upon which his opinion testimony was based. Based on this contention, DOT argues that the trial court erred in failing to instruct the jury that: “A non-expert witness cannot give his opinion unless he also gives the facts upon which he bases his opinion. When an opinion is not supported by the facts testified to as the basis for the opinion, it has no probative value and cannot support a verdict.” We cannot agree.

It is clear from the record that Pitman’s testimony regarding the origin of the Chevron station’s business was based on his personal experience working at the Chevron station on a daily basis for almost 18 years. This personal experience certainly qualified Pitman as an expert with regard to the origin of the station’s business. Even if this were not the case, Pitman’s actual personal experience and observations would constitute a factual basis for his opinion. Consequently, we conclude that the trial court did not err in failing to give DOT’s requested charge on non-expert opinion testimony.

3. We also conclude that the trial court did not err in failing to charge the jury that “the reluctance of the condemnee to part with the property is not the subject matter of consideration for the jury and the same does not constitute compensable damage.” Although this charge appears to be a correct statement of law, see Central Ga. Power Co. v. Mays, 137 Ga. 120, 122 (2) (72 SE 900) (1911); Fountain v. MARTA, 147 Ga. App. at 470 (9), the charge was not justified by the evidence of record. Unlike the condemnee in Fountain, a review of the record in the instant case demonstrates that Pitman never attempted to place a value on his business damages based on any reluctance or unwillingness to part with the Chevron station. He never testified that he objected to the taking, and he claimed no damage from any reluctance to part with his business interest. The only damage claim Pitman made was based on the difference between the value of his business interest in the Chevron station before and after the taking. Contrary to DOT’S contention, the mere fact that Pitman stated that the BP station had originally been leased with the intent that one day Pitman’s son would run that station while Pitman and his wife ran the Chevron station does not evince an attempt by Pit-man to place a value on the property interest taken based on any reluctance or unwillingness to part with the Chevron station. The statement was not made during any discussion as to value, and the statement only informed the jury about the reason the BP station originally had been purchased in 1980.

4. During the course of the trial, Pitman called certified public accountant Ross Lane to testify as an expert witness. The record shows that after Lane testified about his appraisal of Pitman’s Chevron station’s business both before and after the taking, Pitman asked him why he did not take into account income information from the BP station in his appraisal. In explaining that the two stations were unrelated, independent businesses, and that the appraisal of one was not relevant to the other, Lane relied in part on the fact that the stations were on different sides of the interstate. When asked what difference it made to his evaluation which side of the interstate the stations were on, DOT objected on the ground that such testimony was outside the scope of Lane’s field of expertise. The trial court overruled the objection. DOT contends that the trial court committed reversible error in doing so. We disagree.

Decided December 4, 1996.

Michael J. Bowers, Attorney General, Harris & James, William C. Harris, Lisa D. Neill-Beckmann, for appellant.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., for appellee.

The record shows that Lane was an expert qualified to appraise the value of service stations. When an expert has been qualified, the expert may give his opinion without stating the facts upon which the opinion is based, but it always is proper for the expert witness to state the facts relied on in forming an opinion when requested to do so. McDaniel v. Dept. of Transp., 200 Ga. App. 674, 675 (1) (409 SE2d 552) (1991); State Hwy. Dept. v. Howard, 119 Ga. App. 298, 303 (6) (167 SE2d 177) (1969). In fact, it is error not to allow an expert to testify as to the facts upon which an opinion is based. Id.

In the instant case, Lane’s testimony regarding the differences between the Chevron and BP stations, based on their locations, on opposite sides of the interstate, was offered as part of the factual basis regarding why, in his opinion, the stations should not be appraised together. Moreover, the testimony regarding the distinction to be made between stations on opposite sides of a road was based on Lane’s personal experience as an accountant. Consequently, it was not error to allow Lane to testify concerning such matters.

Judgment affirmed.

Andrews and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A96A1458.
    BENFORD et al. v. RDL, INC.
    (479 SE2d 110)
   Andrews, Judge.

Mr. Benford and his wife appeal from the trial court’s grant of summary judgmeht to RDL, Inc. d/b/a Rocky Mountain Ski Shop in Mr. Benford’s suit alleging breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium.

1. Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence on summary judgment was that Mr. Benford went to the ski shop on December 12, 1992 to rent skis and boots for an upcoming ski trip. He was assisted by Cooper, who asked Benford to pick out a pair of boots and to complete and sign a Rental Agreement and Release of Liability. Benford acknowledged reading, initialling, and signing the document which states that:

“I accept for use as is the equipment listed on this form and accept full responsibility for the care of this equipment. I have made no misrepresentations to this ski shop regarding my height, weight, age or skiing ability.

“I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the use of this ski equipmént involve a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.

“I understand that the ski equipment being furnished forms a part or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my safety or freedom from injury while skiing. I further agree and understand that this ski-boot-binding system may reduce but NOT eliminate the risk of injuries to the lower portion of my leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my knees or any other parts of my body.

“I agree that I will release this ski shop from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any other person. I agree NOT to make a claim against or sue this ski shop for injuries or damages relating to skiing and/or the use of this equipment. (Please initial_) [Ben-ford’s initials].

“In consideration for being able to rent this ski equipment, I hereby agree to accept the terms and conditions of this contract. This document constitutes the final and entire agreement between this ski shop and the undersigned. There are NO WARRANTIES, express or implied, which extend beyond the description of the ski equipment listed on this form.

“I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this ski shop and I sign it of my own free will.”

Pursuant to the height, weight, and skill level information provided by Benford, Cooper set the bindings of the skis at 5V2. This setting was based on a chart used in the business which the person doing the settings consults and then makes adjustments to the bindings, toes and heels of the boots.

Benford picked the skis up on December 26 and left with his wife and some friends on a ski trip. On the first day of the trip, Benford had made six or seven ski runs and had fallen uneventfully a couple of times. These falls did not cause the bindings to release. On his last run, Benford was in the process of coming to a stop to assist his wife who had fallen. Because of a change in the slope where he stopped, his center of gravity got out over his skis and he fell. While the right ski did release, the left one did not and he tore ligaments in his left knee. When he returned the skis to the shop, he was given a free week ski rental, good any time.

Because Benford was injured and contended the skis did not release, Jackson, the store manager, had the bindings tested with the Vermont Calibrator, a device used to measure the torque it takes to remove a boot from its binding, and the skis rented by Benford passed the test. All skis rented by the ski shop were tested on this device once a year, and randomly selected sets were tested periodically.

2. Benford acknowledges that these facts establish the relationship of bailor-bailee, pursuant to OCGA § 44-12-60. Therefore, the relationship between them is governed by the terms of the Rental Agreement and the statutory obligations of a bailor under OCGA § 44-12-63. Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 632 (1) (391 SE2d 435) (1990); Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 SE2d 67) (1984).

3. Benford has failed totally to come forward with evidence concerning negligence by the ski shop. Lau’s Corp., supra; Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108, 109 (1) (435 SE2d 482) (1993).

Also, even assuming some negligence had been shown, “[i]n Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy. [Cits.]” Hall, supra at 179. Here, the agreement clearly and prominently did just that. Mercedes-Benz Credit Corp. v. Shields, 199 Ga. App. 89, 91 (403 SE2d 891) (1991).

4. Benford’s claims of breach of warranty and contract suffer the same fate. There is no showing by Benford of any latent defect in the skis or bindings, such as that in Hall, supra. Therefore, the covenant not to sue is not in contravention of OCGA § 44-12-63 (3). Mercedes-Benz, supra; Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 422 (2) (364 SE2d 65) (1987). It is difficult to envision how the waiver language here could have been any clearer.

Decided December 4, 1996

James B. Gurley, for appellants.

Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, for appellee.

Judgment affirmed.

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

       Even had he been able to do so, this is one of those rare cases where, as a matter of law, it can be said that Benford assumed the risk of exactly what happened to him. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 SE2d 524) (1991).


author: Johnson, Judge. McMurray, Presiding Judge,

text:
    A96A1604.
    FOWLER v. OVERBY.
    (478 SE2d 919)
   Johnson, Judge.

Mary Overby expressed an interest in buying a six-acre parcel of land from Aubrey Fowler. After inspecting only the front one-third of the property, Overby decided to purchase it. At closing, Fowler executed an affidavit in which he made several attestations as to the condition of the property, the one relevant to this litigation being that to his knowledge no portion of the property had ever been used as a landfill or as a dump to receive garbage, refuse, or waste.

After occupying the land for five months, Overby sought to rescind the contract claiming that Fowler fraudulently induced her to purchase the property. She contended that the property was covered with debris and had been used as a dump, and that Fowler failed to reveal this fact to her. Overby contended that she relied upon, to her detriment, Fowler’s statement in the affidavit that the land had not been used as a dump. In his defense, Fowler argued that while the land was in his possession, it was not used as a dump and, furthermore, Overby did not justifiably rely on his affidavit. Fowler appeals from the jury verdict awarding Overby damages and setting aside the deeds transferred in the transaction, and from the denial of his motion for judgment n.o.v.

To maintain an action in fraud, a claimant must prove: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damages. Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995). The plaintiff must present some evidence as to each of the five elements to survive a motion for j.n.o.v. Id. See generally Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164; 166 (397 SE2d 720) (1990).

1. Fowler claims that the trial court erred in denying his motion for j.n.o.v. because Overby failed to show justifiable reliance upon the owner’s affidavit. We agree and reverse.

“The law in Georgia is well-settled that in the purchase and sale of real estate there is an underlying principle of law .. . that one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage. . . . When the means of knowledge are at hand and equally available to both parties ... if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.” (Citations and punctuation omitted.) Hanlon, supra at 501-502 (1). “In order to prove the element of justifiable reliance, the plaintiff must show that [she] exercised [her] duty of due diligence.” Id. at 501 (1). “While questions of due diligence often must be resolved by the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law.” (Citations and punctuation omitted.) Jung v. Cheoun, 216 Ga. App. 490, 492 (455 SE2d 310) (1995). See Hardage v. Lewis, 199 Ga. App. 632, 633 (405 SE2d 732) (1991).

We note at the outset that it is questionable whether Overby actually relied upon the affidavit. She testified that she went to the closing ready to close the deal and that she had not seen the affidavit prior to the closing. When asked whether she would have completed the purchase had the affidavit not been presented, she responded: “Most likely, yes.” However, Overby also stated that she would not have closed the deal if Fowler had refused to sign the document. Viewing the evidence most favorably to Overby, and assuming she did rely upon the affidavit, it is nonetheless clear that her reliance was not justified.

The truthfulness of Fowler’s statement that the property had not been used as a landfill or as a dump to receive garbage, refuse, or waste, could have been discovered through the exercise of the slightest degree of diligence by Overby before she purchased the property. The record shows that Overby drove by the property one time and that she “believe[s]” that she actually walked on the property once before she bought it. Overby testified that she went onto the front area of the property and saw trash on the front one-third of the property, but that she did not know what was on the back two-thirds because she did not want to walk through it. She testified that the weeds were knee-high and that she was “just not dressed usually to go walking in that kind of thing.” Overby added that there was a “mound” covered with magazines, dead plants and “just a lot of trash.” She made no further inspection of the property before closing. Nor did she ask Fowler any questions about trash on the property before she bought it. She testified that after the purchase she inspected the back part of the lot and saw a car frame, pots, and other debris. Overby added that when she cleaned up the property, the surface debris filled three 20-cubic foot dumpsters.

Darryl Floyd, her employee, testified that he walked what he believed was the entire property and saw “a lot of trash,” including plastic pots, irrigation pipe, plastic sheets, and at least one old car frame. A witness from the Macon-Bibb County Emergency Management Agency testified that about six to eight containers marked “radio activity” were found lying on the creek bank at the rear of the property. The record further indicates that Daniel Rothwell, a Bibb County employee, could see trash on the property from a nearby bridge. Rothwell added that most of the car frame was aboveground and not covered with weeds, and that it appeared that building materials had been dumped in the back of the property. The debris lay on the surface and Rothwell did not have to do any digging to uncover it.

Despite the fact that Overby saw -trash on the property, she made no effort to inspect two-thirds of the property before she purchased it. As she and the other witnesses testified, trash was visible to everyone who walked around the property. There was no evidence that Overby was prevented from - inspecting the property before purchasing it. Thus, any damage Overby may have suffered due to the condition of the property must be charged to her own lack of diligence and not to her reliance upon any misrepresentation by Fowler. See Hardage, supra at 634. See also Tingle v. Seignious, 212 Ga. 71 (90 SE2d 408) (1955), where the Georgia Supreme Court sustained a general demurrer of a petition seeking rescission of a real estate sale based on fraud where nothing prevented the purchaser from investigating statements made by the seller concerning the property’s value and character; and see Crawford v. Williams, 258 Ga. 806, 808 (375 SE2d 223) (1989), where the court held that “[a] party buying real property who makes no attempt to discover the boundaries of the property cannot be said to have justifiably relied’ on a misrepresentation by the seller regarding those boundaries.”

Overby claims that some of the debris was buried and she could not have been expected to see it upon inspecting the property. Assuming some trash was covered, she was certainly put on notice of the possibility by the presence of surface debris. Due diligence in such a case would require a closer inspection than she made of the property. See Delk v. Tom Peterson Realtors, 220 Ga. App. 576 (469 SE2d 741) (1996). Moreover, we find no evidence that any trash was buried, and none of Overby’s cites to the transcript indicate that anything was buried. In fact, the witnesses whose testimony Overby references do not say that they did any digging to uncover the trash, just that kudzu covered some of it, but they could still see it. And though Fowler testified that he “pushed down” and “leveled out” an old restaurant foundation on the property, he did not say that it was buried. Indeed, he stated that one of the walls is still in place. He also stated that the foundation was made of concrete block or “jumbo” brick, and another witness testified that he saw cinder-block type brick on the property. Due diligence would have revealed the debris described at trial.

Overby points to, and we are aware of, no authority holding that where a representation as to the condition of property is made in an affidavit rather than verbally, a buyer has no duty to use due diligence to determine if the representation is true. “[I]n the sale of land, the purchaser contracts with [her] eyes open; and, if [she] is not in some way deprived of the opportunity of inspecting the land for [herself] by the fraudulent acts or conduct of the vendor, [she] will not be heard to complain. As to such things as quality and condition which are open to inspection, [she] is wilfully negligent if [she] fails to look and see for [herself], and [she] cannot be heard, either in law or equity, to complain of the conduct of the seller, the effects of which could have been averted by slight diligence on [her] part. [Cits.]” Hays v. McGinness, 208 Ga. 547, 550 (67 SE2d 720) (1951).

A motion for j.n.o.v. may be granted when, viewing the evidence in the light most favorable to the verdict, there can be but one reasonable conclusion as to the proper judgment. Famiglietti at 164. There being no evidence of justifiable reliance on Fowler’s affidavit, the trial court erred in not granting Fowler’s motion for j.n.o.v.

2. Because the trial court erred in not granting Fowler’s motion for j.n.o.v., we need not address his remaining enumerations of error.

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Andrews, Smith and Ruffin, JJ, concur. McMurray, P. J., Pope, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for . . . j.n.o.v. will not be disturbed.” (Citations and punctuation omitted.) Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733). While I must readily acknowledge that plaintiff presented a weak case in several respects, I do not agree with the conclusion of the majority that there was a complete failure of proof such as would warrant reversal. As I would uphold the verdict of the jury, I respectfully dissent.

Both plaintiff and her husband conducted some inspection of the premises. While these inspections were limited in scope, the parameters were determined by the nature of the property. The land was covered by a thick and impassable undergrowth. Those who testified as to actually traversing the land testified as to their difficulty in doing so and as to the nature of the work which would be necessary to clear the land for reasonable access. The jury may have concluded that plaintiff exercised due diligence under the circumstances.

Decided December 4, 1996.

Jones, Cork & Miller, Thomas C. James III, for appellant.

Adams & Hemingway, Ward Stone, Jr., for appellee.

Also, the jury could have reasonably determined that even a higher degree of diligence on the part of plaintiff would have been unlikely to have disclosed the presence of the landfill on the property. See Hanlon v. Thornton, 218 Ga. App. 500, 503 (462 SE2d 154). That landfill consisted of a “wash” which had been filled in with debris and the site was obscured by the undergrowth. Contrary to the majority opinion, I do not view the surface debris as providing any notice of the landfill and consequently maintain that there was no heightened duty on the part of plaintiff to search for such a defect. Whether the plaintiff was required to walk every foot of the property in order to satisfy the due diligence requirement was a question for the jury. Similarly, the question of whether the inspection actually conducted by plaintiff was sufficient is also a jury matter and should not be overturned on appeal under the circumstances of this case.

I am authorized to state that Presiding Judge Pope and Judge Blackburn join in this dissent.