text:
    A96A0280.
    BRADFORD v. THE STATE.
    (471 SE2d 248)
   Ruffin, Judge.

Richard Bradford was convicted of theft by taking. He appeals the judgment of conviction and the denial of his motion for new trial with nine enumerations of error. For reasons which follow, we affirm.

1. Bradford first contends the evidence was insufficient to find him guilty beyond a reasonable doubt. We disagree.

Construed most favorably to uphold the verdict, the evidence shows that the victim placed an advertisement to sell her Chevrolet Blazer. A man named “Chris” contacted her to look at the vehicle. While Chris claimed he was calling from Douglasville, her call return service revealed that the call originated from Buford. Some time later, a man named Chris Stevens arrived at the victim’s business and asked to test drive the truck. The individual was gone for approximately 30 minutes. Later the same day, the victim noticed her truck was missing from the parking lot. A co-worker of the victim testified he saw someone with facial hair drive away in the victim’s truck.

The victim traced the telephone call she received from “Chris” and drove by that address after the theft of her truck. The victim saw her vehicle parked at this address and contacted police. A detective went to this address and found the victim’s vehicle with the wrong tag on it. Bradford’s parents lived at the address, and Bradford carried out his construction and renovation business there. The tag on the vehicle was registered to another vehicle, and the tag receipt was for a Mr. Charles Bradford of Gainesville, Georgia. The ignition on the vehicle did not appear to have been tampered with.

The victim identified Bradford as the man who test drove her truck. Bradford’s father testified he owned an automobile similar to the one the victim said Bradford drove to her business the day Bradford test drove the truck and the day the truck was stolen. Bradford’s parole officer testified that Bradford called him after warrants were issued in the present case. When asked by the parole officer about the warrants, Bradford admitted the warrants were for the stolen truck and credit cards he had. He told the parole officer he only used the credit card once. Regarding the truck, Bradford stated, “someone must have seen me take it.”

Bradford’s father testified that his son had been driving the Chevrolet Blazer for a few days and that a friend at work obtained the truck for him. Bradford testified that he obtained the truck from Chris Davis, one of his employees. According to Bradford, Chris Davis had a full beard. Bradford also testified it was common for employees to leave their vehicles overnight at his parent’s home and that employees were allowed to make phone calls from his parent’s house.

While Bradford contends that no rational trier of fact could find him guilty beyond a reasonable doubt of theft by taking based on the evidence, we find no merit in this argument. “An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. [Cits.]” Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993). The foregoing evidence, construed in a light most favorable to the State, was sufficient to authorize a rational trier of fact to find Bradford guilty beyond a reasonable doubt of theft by taking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Bradford contends the trial court erred in allowing the prosecution to interject evidence of his character into the trial. Specifically, Bradford argues that although he did not object to the admission of his statements to his parole officer, the prosecution should not have been permitted to identify Mr. Hillyer as Bradford’s parole officer. According to Bradford, allowing the prosecution to refer to Mr. Hillyer as his parole officer impermissibly placed his character into evidence because the jury could then surmise he had a prior criminal record. We disagree.

As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742 (1) (344 SE2d 536) (1986). Further, “[m]aterial evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. [Cits.]” Greer v. State, 199 Ga. App. 106, 107 (1) (403 SE2d 825) (1991). In Bragg v. State, 162 Ga. App. 264, 267 (3) (291 SE2d 112) (1982), the Court ruled that “[a]lthough the evidence as to the identity of the occupation of the parole officer and the testimony he gave would put the defendant’s character in issue, such evidence being otherwise relevant and material to the issues in the case sub judice it does not become inadmissible simply because it has this effect. [Cits.]” In the present case, Bradford called his parole officer at home after warrants for Bradford’s arrest were issued. In the course of his conversation with his parole officer, Bradford acknowledged that he stole the truck. Based on the foregoing, this Court will not disturb the trial court’s ruling that Bradford’s comments to the parole officer were relevant to the issues at hand.

3. Bradford further contends the trial court erred in overruling his motion for new trial based upon ineffective assistance of counsel. Bradford argues his counsel was ineffective for failing to (a) call as a witness Chris Davis, an employee and a former cell mate of Bradford, (b) meet with Bradford long enough or often enough, (c) adequately investigate the facts and law of the case, (d) prepare for the hearing on the motion in limine regarding the testimony of Bradford’s parole officer, and (e) move for a mistrial based on prosecutorial misconduct. After a hearing in which trial counsel testified, the court determined that trial counsel was effective. We agree.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). In addition, the trial court’s determination that a defendant has not been denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722 (2) (458 SE2d 894) (1995).

At the outset, we note that trial counsel secured an acquittal of the financial transaction card theft charge, with Bradford’s sole conviction being for the crime of theft by taking. This circumstance strongly supports the conclusion that the assistance actually rendered by Bradford’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render. See Bishop v. State, 155 Ga. App. 611, 613-614 (2) (271 SE2d 743) (1980). Moreover, the following facts demonstrate that Bradford failed to establish a claim for ineffective assistance of counsel.

(a) Trial counsel’s failure to call Chris Davis as a witness cannot provide the basis for an ineffective assistance of counsel claim. At the hearing on the motion for new trial, trial counsel testified that he decided not to call Chris Davis as a witness because he believed the testimony of Bradford’s former cell mate in prison would be highly damaging, unfavorable and not credible. As this testimony makes clear, trial counsel made a tactical decision based upon sound reasoning. The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. Keanum v. State, 212 Ga. App. 662 (3) (442 SE2d 790) (1994). “The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel. [Cit.]” Stewart v. State, 263 Ga. 843, 847 (6) (440 SE2d 452) (1994). In addition, Bradford has failed to demonstrate a reasonable probability that, but for trial counsel’s failure to call Chris Davis as a witness, the trial’s result would have been different.

(b) The record fails to support Bradford’s claim that trial counsel was ineffective because he did not meet with Bradford long or often enough. Trial counsel testified he met with Bradford and his parents numerous times. In any event, the amount of time trial counsel spent with Bradford is not determinative of whether counsel rendered ineffective assistance. Easter v. Estelle, 609 F2d 756, 759 (5th Cir. 1980). As previously noted, the record shows that trial counsel obtained an acquittal on the charge of financial transaction card theft. The record further shows that trial counsel met a number of times with Bradford and his parents. We fail to see a reasonable probability that the alleged deficiency had any effect on the outcome of the trial. Even if Bradford’s representation was less than desirable, Bradford has failed to satisfy his burden of affirmatively showing by the record the Strickland criteria for ineffectiveness. Jacobson v. State, 201 Ga. App. 749, 752-754 (5) (d) (412 SE2d 859) (1991).

(c) Bradford’s assertion that his trial counsel failed to investigate the case is not supported by the record. Considering the totality of the representation provided by trial counsel, including the fact that he obtained an acquittal on the financial transaction card theft charge, we find nothing, and Bradford has pointed to nothing, supporting this assertion. See Davis v. State, 209 Ga. App. 187, 190 (6) (433 SE2d 366) (1993). “Moreover, appellant’s counsel on appeal has failed to suggest what additional facts might have been revealed by further investigation or what additional defenses might have become apparent as the result of further research and preparation.” (Citations and punctuation omitted.) Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

(d) Likewise, we find no facts, and Bradford has pointed to no facts, supporting his assertion that trial counsel failed to prepare for the hearing on the motion in limine regarding the testimony of Bradford’s parole officer. Thus, we find no merit in this contention.

(e) The record shows that the prosecution asked Bradford a number of questions regarding the whereabouts of a truck Bradford owned. Bradford responded that the truck was in a warehouse because he was “incarcerated over this charge.” Trial counsel did not request a mistrial or object. Bradford failed to demonstrate any prejudice arising from counsel’s failure to object or request a mistrial based on this issue. In addition, we cannot conclude that the failure to object or move for a mistrial was not a matter of trial strategy. Trial counsel may have felt that no harm was done to him in the context of the testimony and that it was in his best interest for the trial to go forward without any further mention of the incident to the jury. See Sutton v. State, 238 Ga. 336, 338 (232 SE2d 569) (1977). Furthermore, any resulting error from the failure to object or request a mistrial was harmless in light of the other evidence in the case. Id.

4. In his fourth enumeration of error, Bradford alleges the trial court erred when it failed, sua sponte, to declare a mistrial on the grounds of prosecutorial misconduct. Specifically, Bradford claims the court should have declared a mistrial based on the comment stated in Division 3 (e). “A motion for mistrial is within the discretion of the trial court. This court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial is essential to the preservation of the right to a fair trial.” (Citations omitted.) Dowdy v. State, 209 Ga. App. 95 (1), 96 (432 SE2d 827) (1993). We are unable to conclude that the trial court abused its discretion in failing, sua sponte, to declare a mistrial based on the line of questioning asked by the prosecutor. Bradford’s comments were not responsive, and Bradford was not obligated from the questions to inform the jury that he was incarcerated. In fact, a bench conference was held during this line of questioning, and absent a transcript of that bench conference, we are unable to draw any conclusions regarding the ensuing discussion. We will not second-guess the trial judge’s decision to allow the questioning to continue.

5. In his fifth enumeration of error, Bradford contends the trial court erred in failing to give defense Request to Charge No. 4, a restatement of OCGA § 16-3-5. However, the record clearly shows that Bradford withdrew this specific charge. Moreover, after the court charged the jury, the trial judge asked Bradford if he had any exceptions and Bradford’s counsel responded “[n]ot from the Defense, Judge.” As there was no objection made at trial, we are unable to review this allegation on appeal. Pardo v. State, 215 Ga. App. 317 (3) (450 SE2d 440) (1994).

6. Bradford also contends the trial court’s instruction regarding knowledge of whether the items were stolen was so confusing and poorly stated that Bradford was deprived of the opportunity to have the jury rationally consider the lesser included charge of theft by receiving stolen property. Once again, trial counsel failed to object to the trial court’s charge or take any exception at the conclusion of the given charge, thus waiving his right to object on appeal. See Pardo, supra.

7. Bradford next claims the trial court tainted the entire jury array when it commented to them that the case “should be very straightforward . . . once we get the trial underway.” The record demonstrates that this comment was purely ministerial and not an expression of opinion regarding facts that had or had not been proven in the case. See OCGA § 17-8-57. Furthermore, no objection was asserted when this purportedly harmful comment was uttered. Consequently, this contention provides no basis for review. Whitt v. State, 215 Ga. App. 704 (5) (452 SE2d 125) (1994).

8. In his eighth enumeration of error, Bradford states the trial court erred when it pressured the jury into reaching a quick verdict by warning them that another jury was reporting at 1:30. We find this enumeration to be without merit.

A review of the record shows that after the jury was charged, the trial court commented as follows: “Jury members, for your information, we do have another jury reporting in at 1:30. I do have another case to start, so there may be some delay in getting back with you so bear with me, jury members, if you would, please.” We cannot con-elude that this comment put any pressure on the jury to reach a quick verdict. The trial court was merely anticipating possible questions and requesting the jury’s patience.

Decided May 2, 1996.

John H. Tarpley, Guy J. Notte, for appellant.

Daniel J. Porter, District Attorney, Todd C. Mohr, Assistant District Attorney, for appellee.

9. In his final enumeration of error, Bradford alleges the trial court erred in overruling his motion for new trial on the basis that the indictment as returned contained a fatal variance between the allegations and proof. Specifically, Bradford claims the indictment alleged the theft by taking on a date four days after the actual theft. A variance concerning time is not fatal unless time is an essential element of the offense. Moore v. State, 207 Ga. App. 892 (1) (429 SE2d 335) (1993). Here, Bradford was clearly informed through discovery and at trial that the actual theft alleged against him occurred on April 12, 1993, and not April 16, 1993. However, Bradford made no request for a continuance, and he did not claim an alibi defense might have been available to him based on the differing dates until his motion for new trial. Based on the foregoing, we do not believe the variance hindered Bradford’s ability to present his defense. See Battles v. State, 262 Ga. 415 (5) (420 SE2d 303) (1992). Accordingly, we affirm the trial court’s decision regarding Bradford’s motion for new trial on this ground.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A0368.
    LEDFORD v. THE STATE.
    (470 SE2d 796)
   Ruffin, Judge.

A jury convicted James Ledford of misdemeanor possession of marijuana. He appeals the judgment of conviction and the denial of his motion for new trial. For reasons which follow, we affirm.

1. Ledford contends the evidence was insufficient to find him guilty beyond a reasonable doubt. We disagree.

Construed most favorably to the prosecution, the evidence shows that the Douglas County Sheriff’s Office established a roadblock to obtain leads on burglaries which had occurred throughout the county. Ledford approached the roadblock with his brother Marion Ledford as a passenger. When Ledford was unable to produce his driver’s license, he was asked to pull over to the side of the road. The officer noticed both occupants had bloodshot and glassy eyes. The officer testified that during questioning regarding the absence of Ledford’s driver’s license, both occupants were nervous and fidgety, kept looking at each other, and appeared to be making a hard effort to remain calm and not show their nervousness. Both occupants appeared to be under the influence of something.

Ledford subsequently consented to a search of his vehicle. Prior to searching the car, the officer saw a roach clip hanging out of the ashtray. During the search, the officer found a cigarette box containing a plastic bag with what the officer suspected was marijuana and several burnt marijuana cigarettes. The State Crime Lab confirmed that the loose, leafy substance in the plastic bag was 1.1 grams of marijuana.

Although Ledford raises arguments concerning the officer’s poor memory and several other inconsistencies in the State’s evidence, we find no merit in these arguments. “An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993).

The foregoing evidence, construed in a light most favorable to the State, was sufficient to authorize a rational trier of fact to find Ledford guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Taylor v. State, 195 Ga. App. 651, 652 (394 SE2d 604) (1990). Accordingly, we find no error in the trial court’s refusal to grant a new trial based on the sufficiency of the evidence argument.

2. In his second enumeration of error, Ledford contends the trial court erred by not granting his motion to suppress the contraband seized as a result of the roadblock. He argues the roadblock was arbitrary, and therefore, the evidence obtained as a result of the roadblock should have been suppressed. We find no merit in this argument.

According to the record, the Sheriff’s Department set up the roadblock on a flat stretch of roadway before an intersection. There were marked cars with blue lights flashing, visible for up to 500 feet. Uniformed officers were present. Every noncommercial vehicle was stopped at the roadblock, with the exception of noncommercial vehicles which had been checked at the roadblock in one direction and soon came through again in the other direction. During the brief detention, officers checked driver’s licenses, insurance, and walked around the vehicle while performing a safety inspection.

While the officers testified that the primary purpose of the roadblock was to obtain leads on recent burglaries which had occurred within Douglas County, their testimony revealed that the roadblock was also used to perform routine traffic checks. During the inspection, drivers were asked to produce a valid driver’s license and insurance on the vehicle to ensure their compliance with state law. Drivers were requested to exit their vehicles only if they could not produce a license, at which point the officer would check the driver’s name on the computer to determine whether the driver had a valid license. The evidence shows that Ledford was requested to pull over and exit the vehicle because he could not produce a valid driver’s license.

In reviewing a trial court’s decision on a motion to suppress evidence, the reviewing court construes the evidence most favorably to uphold the findings and judgment, and the trial court’s decision should not be disturbed if there is any evidence to support it. Sapp v. State, 188 Ga. App. 700 (374 SE2d 114) (1988). Based on the evidence, we find that the trial judge was authorized to conclude from the evidence that the roadblock in question was valid and not arbitrary.

In State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984), the Court approved the use of roadblocks after considering several factors. The applicable factors to be considered in this case were whether (1) the decision to implement the roadblock was made by supervisory personnel; (2) all passing vehicles were stopped, leaving no discretion to the officers as to which vehicles to stop; (3) the delay experienced by passing motorists was minimal; and (4) the operation was well identified as a police check point. These factors are “not absolute ‘bright-line, black-letter’ requirements, but [are] factors to consider in deciding whether there was a valid routine roadblock or the kind of isolated vehicle stop rejected by Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660).” Mims v. State, 201 Ga. App. 277, 279 (2) (410 SE2d 824) (1991), overruled on other grounds, Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994). Ledford argues that the roadblock was not instituted for a valid reason and that it was arbitrary in that it did not stop every passing vehicle. We agree with the trial court that given the totality of the circumstances surrounding the roadblock, this roadblock satisfied the factors considered in Golden.

While a certain class of vehicles (commercial, 18 wheelers) were not stopped and certain noncommercial vehicles (those which had recently been through the check point in one direction and were returning in the other direction) were not stopped, we do not believe this is fatal to the roadblock’s reasonableness. This is especially true in light of the fact that there is no evidence this roadblock was initiated as a pretext or subterfuge to catch Ledford. See Brimer v. State, 201 Ga. App. 401 (2) (411 SE2d 128) (1991); Mims, supra at 280.

3. In his third enumeration of error, Ledford asserts the trial court erred in admitting the marijuana into evidence over his chain of custody objection. Specifically, Ledford argues that the officer’s initial report does not correspond with the evidence that was sent to the State Crime Lab 15 months after his arrest and that the officer’s memory concerning the evidence was “shaky.” However, a second officer at the scene confirmed that all the contraband evidence admitted by the State was the exact evidence found in Ledford’s vehicle. Furthermore, the crime lab expert testified she received all the evidence admitted by the State, which included rolling papers, a roach clip, a plastic bag containing marijuana, and several marijuana cigarette butts, and that there was no evidence of any tampering or substitution.

Any discrepancy as to the number of marijuana cigarettes or the type and amount of drugs seized from Ledford’s vehicle does not render the marijuana inadmissible. Conflicts in the details of testimony concerning the chain of custody go to the weight, credit, and effect of the evidence, not its admissibility. Allison v. State, 217 Ga. App. 580, 582 (3) (459 SE2d 557) (1995); Thomas v. State, 208 Ga. App. 476 (1) (430 SE2d 849) (1993). Accordingly, the trial court did not err'in admitting the drugs into evidence over Ledford’s objection.

4. Ledford’s fourth and fifth enumerations of error contend the trial court erred in failing to grant a mistrial following a prosecution and a witness comment concerning Ledford’s post-arrest silence.

During the State’s direct examination of one of the officers, the prosecutor asked the following: “Did either one of them say: What are you talking about? I don’t know what you’re talking about. I can’t believe it. I don’t know what you’re talking about. There’s — there’s no pot in the car, no drugs. Did either one of them say anything like that?” A short time later, while testifying about Ledford’s demeanor, the officer stated, “I mean, you know, normally people would be trying to talk to you and trying to get out of it. They didn’t even talk — .” Ledford moved for mistrials after both instances.

At both points, the trial judge gave curative instructions, charging the jury that a defendant has the right to remain silent and is not required to make a statement to the arresting officer, that any testimony to the contrary should be disregarded, that the jury should erase the question and answer from their mind, and that the comments should not be given any wbight in their consideration of the case. In addition, the trial court fully instructed the jury on the burden of proof, reasonable doubt, the presumption of innocence, the right of the defendant not to testify or present any evidence, and the rule that a defendant’s silence must not be held against him.

“A motion for mistrial is within the discretion of the trial court. This court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial is essential to the preservation of the right to a fair trial.” (Citations omitted.) Dowdy v. State, 209 Ga. App. 95 (1), 96 (432 SE2d 827) (1993). We are unable to con-elude that the trial court abused its discretion in denying Ledford’s motion for mistrial based on the comments of the prosecutor or the officer. “Improper reference to a defendant’s silence . . . does not automatically require reversal.” Hill v. State, 250 Ga. 277, 283 (4) (a) (295 SE2d 518) (1982). Here, the trial court promptly gave curative instructions on the right of the accused to remain silent and unambiguously instructed the jury to disregard the comments and not to draw any adverse inference from the fact that the accused has asserted his right to remain silent.

Decided May 2, 1996.

Camp & Camp, Scott K. Camp, for appellant.

David McDade, District Attorney, Bradley R. Malkin, Assistant District Attorney, for appellee.

5. In his final enumeration of error, Ledford contends the trial court erred in denying his motion to supplement the record. Specifically, Ledford asserts he should have been allowed to include Defendant’s Exhibit D-l, a copy of the arresting officer’s investigative report, as a part of the record on appeal. Ledford admits in his brief that “[f]or tactical reasons, Appellant’s counsel chose not to tender D-1 into evidence (he wanted to preserve the final closing argument).”

“It is elementary that documents upon which a party rests his case must be offered into evidence.” (Citation omitted.) Hadden v. Owens, 154 Ga. App. 467, 468 (2) (268 SE2d 760) (1980). In this case, Ledford neglected to tender Defendant’s Exhibit D-l into evidence after he rested his case. At this point, the trial judge plainly stated that no further exhibits would be introduced and “[t]he record as far as evidence is concerned is closed.” Moreover, Ledford voluntarily chose not to tender the exhibit into evidence for tactical reasons. Based on the foregoing, this Court will not disturb the trial court’s ruling that the transcript and record already conformed to the truth and no supplementation was necessary.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


author: Smith, Judge.

text:
    A96A0481.
    CHADWICK v. FOODMAX OF GEORGIA, INC. et al.
    (471 SE2d 40)
   Smith, Judge.

Janet Chadwick brought this action against Foodmax of Georgia, Inc., and D. & T. Services, Inc., a cleaning contractor, alleging that she suffered personal injuries in a fall in Foodmax’s grocery store. Appellees filed a joint motion for summary judgment, which was granted by the trial court. This appeal followed.

Chadwick was shopping in Foodmax’s grocery at 1:00 in the morning. As she walked around the store, she encountered an employee of D. & T. operating a large floor cleaning machine that “rides like a lawnmower.” She observed soapsuds on the brushes underneath the machine, and realized that the machine was cleaning a border or perimeter area of the store floor that was covered with wood-grain flooring. Upon seeing the cleaning machine, she turned to walk in the opposite direction; she testified she did this with the intention of avoiding it. After walking a short distance, she stepped onto the wood-grain flooring behind the machine, slipped, and fell. After she fell, she saw that she had slipped on the soapsuds left by the machine’s passage. She acknowledged that nothing obstructed her view of the floor, that she was looking at the shelves, not at the floor, and that had she looked down she would have seen the soapsuds on the floor. She realized the floor machine operator had just cleaned that area, but “figured it could have been dry, you know. I didn’t know it would have still been wet, you know.” She also testified she had intended to avoid the wood part of the floor: “I didn’t get on the wood I didn’t think, but I did, you know. I wasn’t meaning to.”

In order to recover for a slip and fall resulting from a “foreign substance,” such as soapsuds, “not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. [Cit.] ‘The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.’ [Cits.]” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

We need not reach the question of whether the knowledge of Foodmax’s independent contractor can be imputed to Foodmax without evidence of ratification of the contractor’s acts, see Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987), because the undisputed evidence shows that Chadwick failed to exercise ordinary care for her own safety.

First, Chadwick acknowledged that she saw soapsuds emanating from the floor cleaning machine, and she departed from her original path with the intention of avoiding it. While she contends she did not have knowledge of the soapsuds at the exact point of her fall, she nevertheless “was aware of the prevailing wet [and soapy] conditions. Under these circumstances it appears that appellant herself was not in the exercise of due care. Accordingly, it was not error to grant appellee[s] summary judgment.” (Citations and punctuation omitted.) Brownlow v. Six Flags Over Ga., 172 Ga. App. 242, 244 (322 SE2d 548) (1984). In Brownlow, the plaintiff contended she had no actual knowledge that an amusement park ramp was wet until after she fell. This Court affirmed the grant of summary judgment, however, because Brownlow was aware of the generally prevailing wet conditions in the area of a water ride, and it is common knowledge that a damp floor is likely to be more slippery than a dry floor. Brownlow, therefore, was not in the exercise of due care for her own safety. See also Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297) (1985). In Bowman, while the plaintiff may not have had actual knowledge of the wet condition of the manhole cover on which she slipped, she knew she was crossing an area where water had run or was likely to run because sprinklers were running in the area. “The plaintiff’s duty to take care in an area which she knows, or should expect, is wet, is too well established in these cases to bear repeating. [Cits.] The appellant here, who saw and knew that [a floor machine was] throwing [soapsuds] upon and around the pathway where she walked, shows no reason why she should not have seen .and avoided the slick [wood floor]. Under these circumstances, it appears she was not in the exercise of due care for her own safety and she cannot recover. [Cits.] We therefore have no need to determine whether the appellees breached their duty of care in the first place. [Cit.]” Id.

Decided May 2, 1996.

Robert D. Pope, for appellant.

Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, Frank F. Middleton TV, for appellees.

Second, Chadwick admitted that she failed to look at the floor as she walked behind the machine, despite her knowledge that it was generating suds, and she also admitted that she could have seen the suds at the point of her fall if she had looked. Chadwick’s “admission that the [suds] were visible is fatal. [Cit.] In Smith [v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991)], we held that summary judgment is appropriate if the plaintiff could have seen the hazardous condition had she looked. [Cit.] [Chadwick’s] admission that [s]he was scanning the shelves immediately prior to the fall demonstrates that [s]he was not looking at the floor ahead.” (Punctuation omitted.) Vermont American Corp. v. Day, 217 Ga. App. 65, 67 (456 SE2d 618) (1995). See also Foodmax v. Terry, 210 Ga. App. 511, 513 (436 SE2d 725) (1993). “This is a plain, palpable, and indisputable case not calling for resolution by a jury.” (Citations and punctuation omitted.) Smith v. Wal-Mart Stores, supra at 810.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


text:
    A96A0499.
    DOOLEY v. THE STATE.
    (470 SE2d 803)
   Ruffin, Judge.

Russell Hughes Dooley was arrested on August 26, 1994. He was charged with driving under the influence of alcohol and convicted by a jury. He appeals this conviction, alleging four errors. We disagree with Dooley’s contentions, and affirm.

1. In his first enumeration of error, Dooley contends the trial court erred in denying his motion to suppress evidence on the ground that the police officer’s stop of his car was pretextual. The officer stopped Dooley after observing him veer to his right and cut across the parking lot of a convenience store to avoid a stop sign.

Dooley notes that the traffic citation he received at the time of his arrest charged him only with driving under the influence of alcohol. However, even though the officer did not cite Dooley and the solicitor did not accuse Dooley of the offense of failure to stop for a stop sign, Dooley’s driving could have constituted probable cause for the officer’s stop. Hines v. State, 214 Ga. App. 476, 477-478 (448 SE2d 226) (1994). The citation does, in fact, specify that Dooley was stopped for a stop sign violation. “It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense.” Hines v. State, supra at 477. Notwithstanding the evidence of a convenience store at the location where Dooley veered from the roadway, the officer testified at the hearing that Dooley never came to a complete stop at the stop sign, the convenience store was closed at the time of this incident, and Dooley made no indication he intended to stop at the store. See OCGA § 40-6-20 (e).

“This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s,findings on disputed facts and credibility must be adopted unless they are clearly erroneous.” (Citations and punctuation omitted.) State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994). We are satisfied from our review of the transcript that the trial court considered all of the evidence and had a substantial basis for its decision.

2. In his second enumeration of error, Dooley contends the trial court erred by denying his motion to suppress evidence of the breath test that he took at the time of his arrest. Specifically, Dooley challenges the sufficiency of the implied consent warning read to him by the arresting officer in that the officer failed to inform Dooley of his right to independent testing by a “qualified” person of his own choosing. It is undisputed that the officer informed Dooley of his right to have a second test by personnel of his own choosing, merely omitting the word “qualified.”

In Howard v. State, 219 Ga. App. 228, 230 (2) (465 SE2d 281) (1995), the Court addressed this precise issue and concluded that OCGA § 40-5-67.1 (b), which mandates that specific language be read upon arrest, applies only to those cases in which the offense was committed on or after April 21, 1995. Since the offense in this case was committed on August 26, 1994, strict compliance with the warning was not required. The failure to inform Dooley that the independent test may be performed by a “qualified” person of his own choosing did not render the warning legally insufficient. See Howard v. Cofer, 150 Ga. App. 579, 580-581 (2) (258 SE2d 195) (1979). Accordingly, we find that the trial court did not err in denying Dooley’s motion to suppress.

3. Dooley further contends that the trial court erred in its charge to the jury regarding the ways that the allegations could be proved. Dooley challenges the charge as being burden-shifting. However, the specific grounds Dooley raises on appeal were not raised at trial during the charge conference or after the charge was given to the jury. Since Dooley failed to preserve this ground for appeal, we need not address it. Kuptz v. State, 179 Ga. App. 150 (1) (345 SE2d 670) (1986).

Even if Dooley had properly preserved this ground for appeal, we further conclude that the trial court correctly instructed the jury regarding the driving under the influence charge. See Jones v. State, 75 Ga. App. 610, 615 (4) (44 SE2d 174) (1947). Moreover, the court explained the law on OCGA § 40-6-391 (a) (1) and (4) and emphasized that the burden of proof remained on the State to prove Dooley’s guilt beyond a reasonable doubt regardless of the manner of violation under which the State chose to proceed. As the charges given were correct statements of the law, and we do not believe that the charge as a whole would mislead a jury of average intelligence, we find no error. Brown v. State, 197 Ga. App. 365 (2) (398 SE2d 424) (1990).

4. Dooley’s final enumeration of error asserts that the trial court abused its discretion by limiting his cross-examination of the arresting officer on the allegedly superior testing capabilities of the Intoximeter 5000 over the Intoximeter 3000. While Dooley was permitted to cross-examine the arresting officer extensively, the trial court did not permit Dooley to question the arresting officer concerning the alleged superiority of the Intoximeter 5000 over the Intoximeter 3000. The record shows that Dooley was not precluded from directly attacking the Intoximeter 3000’s accuracy and technical capabilities. The scientific accuracy and reliability of the Intoximeter 3000 has been judicially recognized, and the legislature has by statute created procedural safeguards to minimize the possibility of erroneous test results. Lattarulo v. State, 261 Ga. 124 (3) (401 SE2d 516) (1991); OCGA § 40-6-392. Cross-examination regarding the Intoximeter 5000 would be irrelevant in a case where only the Intoximeter 3000 was utilized. “The right of cross-examination is not abridged where examination is limited by the trial judge to relevant matters by proper questioning. Controlling the scope or extent of cross-examination is a matter resting within the sound discretion of the trial court and, in the absence of an abuse of discretion in controlling the scope or extent thereof, an appellate court will not interfere.” (Citations omitted.) Stephens v. State, 207 Ga. App. 645, 646 (1) (428 SE2d 661) (1993). In the present case, the trial court did not err in limiting this aspect of Dooley’s cross-examination of the arresting officer.

Decided May 2, 1996.

Bruce & Hentz, Kenneth D. Bruce, for appellant.

Stephen F. Lanier, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge. Ruffin, Judge,

text:
    A96A0539.
    AHN et al. v. LEE et al.
    (471 SE2d 38)
   McMurray, Presiding Judge.

This is a declaratory judgment action brought to determine which of two groups is the duly constituted board of directors authorized to govern the affairs of a non-profit corporation known as “Our Firm Foundation For Koreans, Inc.,” which apparently operates a Christian church. The articles of incorporation designate, as the initial board of directors, Byung Kook Kang, Moon Sik Kwon, Chong Cheol Lee, Clinton Kim, and Andrew Ahn. On March 10, 1993, Kang purported to orally resign from the board of directors and the minutes of a board meeting of that date reflect the acceptance of that resignation. At that time, Clinton Kim and Moon Sik Kwon had not been involved in the corporation’s affairs for some time. On March 18, 1993, the two remaining active members of the board of directors, Chong Cheol Lee and Andrew Ahn, held a meeting at which Jong Chul Bae, Jin Oh Kim, and Kuk Joo Ahn were elected to fill the apparent vacancies on the five member board of directors. On June 21, 1993, at a board of directors meeting called by Kang and Lee, the number of members on the board of directors was increased to nine members: Andrew Ahn, Jong Chul Bae, Jin Oh Kim, Kuk Joo Ahn, Chong Cheol Lee, Byung Kook Kang, In Mo Chung, Young He Lee, and Sung Bok Seo. It should be noted that several individuals are members of both the March 18 and the June 21 boards of directors.

Plaintiffs Andrew Ahn, Jong Chul Bae, Jin Oh Kim, and Kuk Joo Ahn are plaintiffs who allege that the March 18 board of directors is entitled to control of the corporation. Defendants Chong Cheol Lee, Byung Kook Kang, In Mo Chung, Young He Lee, and Sung Bok Seo maintain that the oral resignation of Byung Kook Kang was legally insufficient and void, so that he remained a member of the board of directors, and that since Kang did not receive notice of the March 18, 1993 meeting of the board of directors the actions taken in that meeting including the election of three of the plaintiffs to the board of directors was a nullity. Defendants further maintain that the board of directors meeting of June 21, 1993 was legal and proper in all respects. The superior court adopted the substance of defendants’ argument and granted summary judgment in favor of defendants and against plaintiffs. Held:

We reverse since the analysis by which it was determined that Byung Kook Kang remained a member of the board of directors despite the purported oral resignation is equally applicable to Moon Sik Kwon and Clinton Kim. These three individuals, along with Andrew Ahn and Chong Cheol Lee, were named as directors in the articles of incorporation of the corporation. Such designated directors may resign in writing pursuant to OCGA § 14-3-807 or may be removed pursuant to OCGA § 14-3-809. Since there has apparently been no compliance with the requirements of either of these statutes as to any of these individuals, they all remain directors of the corporation. This was recognized by the superior court with regard to Byung Kook Kang, but not as to the two remaining individuals, Moon Sik Kwon and Clinton Kim, perhaps due to their long absence from an active role in the affairs of the corporation. It follows that defendants have not been shown to comprise the lawful board of directors of the corporation and that the superior court erred in granting defendants’ motion for summary judgment.

Defendants’ “Motion for Imposition of Penalty” for frivolous appeal by plaintiffs is denied.

Judgment reversed.

Johnson, J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

Although I concur in the judgment reversing the trial court’s grant of summary judgment, I do not agree with the majority’s holding that a director of a nonprofit corporation may resign only by giving written notice.

Two sets of “resignations” are central to this case: those of Moon Sik Kwon and Clinton Kim, who apparently moved away from Georgia, and that of Byung Kook Kang, who allegedly resigned at a meeting. Because all of these directors were appointed in the original articles of incorporation, they could be removed only by amending the articles. That leaves the question of whether, in fact, they resigned.

The statute regarding resignations by directors of nonprofit corporations, OCGA § 14-3-807 (a), states: “A director may resign at any time by delivering written notice to the board of directors, its presiding officer, or to the president or secretary, or in such other manner as the articles or bylaws may provide.” Its interpretation presents a case of first impression in this state. Although the majority opinion’s holding finds persuasive support in the federal case of Dillon v. Berg, 326 FSupp. 1214, 1222-1224 (D. Del.), aff’d, 453 F2d 876 (3rd Cir. 1971), it does not discuss that case. See also Rare Earth, Inc. v. Hoorelbeke, 401 FSupp. 26, 31-32 (SDNY 1975). But several other courts, interpreting nearly identical language, have found the “in writing” language to be permissive rather than mandatory.

These opinions point out that this particular statute, found in numerous corporation codes, was designed primarily to allow directors to resign without the board’s approval, not to dictate the form of their resignation. Wylie v. Marley Co., 891 F2d 1463, 1467-1470 (10th Cir. 1989); Smith v. Great Basin Grain Co., 561 P2d 1299, 1310-1311 (Idaho 1977). At common law, for example, a director could resign orally. Veg-Mix, Inc. v. USDA, 832 F2d 601, 613 (D.C. Cir. 1987). At least one leading corporate authority seems to agree the “written notice” provision provides permission, not a mandate. See Fletcher Cyc. Corps., § 3:10. The corporation’s articles or bylaws may dispose of this “requirement,” demonstrating its permissive character. OCGA § 14-3-807 (a). Construing the “written notice” language to be permissive rather than mandatory would prevent nonprofit corporations from having to secure the written resignation of directors who have otherwise clearly shown their intent to resign and would harmonize our interpretation of this law with the weight of authority.

Even under this reading of the statute, a director must take some action showing he intends to resign, and whether he has resigned is a question of fact. Smith, 561 P2d at 1310-1311. If he has, he may not revoke that resignation without being re-elected to the board. In re Hawaii Times Ltd., 53 BR 560, 563 (Bkrtcy. Hawaii 1985). Therefore, a jury should determine whether, by moving away and abandoning the church, Clinton Kim and Moon Sik Kwon intended to resign. A jury should further determine whether Kang intended to resign at the heated meeting or was, in all likelihood, simply sulking, with his verbal resignation capping the matter. Thus, I concur in the majority’s holding.

Decided May 2, 1996.

Forrester & Brim, Weymon H. Forrester, Richard C. Bellows, for appellants.

David W Graybeal, Jr., for appellees.


text:
    A96A0545.
    THE STATE v. GANONG.
    (470 SE2d 794)
   Ruffin, Judge.

On November 7, 1994, a Forsyth County grand jury indicted Thomas Ganong for the offense of rape. On February 2, 1995, Ganong filed a demand for trial pursuant to OCGA § 17-7-170. On September 7, 1995, Ganong moved for acquittal because he did not receive a trial within two terms of court. The trial court granted Ganong’s motion, and the State appealed. For reasons which follow, we affirm.

OCGA § 17-7-170 (b) provides that if a defendant “is not tried when the demand [for trial] is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” In this case, the State concedes that Ganong properly demanded a speedy trial, that juries were impaneled which could have tried him, and that no trial was provided to him within the required time. The State argues, however, that the trial court did not have jurisdiction over the case because venue did not lie in Forsyth County. See Trogdon v. State, 176 Ga. App. 246 (1) (335 SE2d 481) (1985). The State argues that absent jurisdiction, the trial court’s judgment of acquittal is void. See id.

However, the only evidence of venue the State produced in support of its argument is a letter attached to its brief. “This procedure is not an authorized method to supplement the record. [Cit.] ‘This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. (Cit.) Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs. (Cit.)’ [Cit.]” Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994). As appellate judges we cannot take cases by their smooth handle; we accept cases on their facts as shown by the record as developed in the crucible of battle below. We cannot change, alter or amend facts; we can only examine them for evidentiary bases.

Inasmuch as the record supports the trial court’s judgment acquitting Ganong due to the State’s failure to provide him a speedy trial, and the State has presented nothing showing the trial court did not have jurisdiction to enter such a judgment, we find no error. See Scott v. State, 206 Ga. App. 17 (424 SE2d 325) (1992).

Decided May 2, 1996.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellant.

Banks & Stubbs, Rafe Banks III, for appellee.

The State’s efforts to supplement the record in this case are without effect.

On January 24, 1996, more than four months after the State filed its notice of appeal, the trial court granted the State’s motion for reconsideration. On March 26, 1996, the trial court granted the State’s motion to have the appellate record supplemented to include the order granting reconsideration. While the trial court generally has the power to supplement the record on appeal, the trial court lost jurisdiction of this case when the State filed its notice of appeal. King v. State, 208 Ga. App. 623 (1) (432 SE2d 109) (1993). Without jurisdiction, the trial court was without power to grant the State’s motion for reconsideration, and subsequent proceedings to supplement the record with that order are without effect. See id.; Kidd v. Unger, 207 Ga. App. 109 (3) (427 SE2d 82) (1993).

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A0610.
    STYMEST v. THE STATE.
    (470 SE2d 806)
   Ruffin, Judge.

On January 7, 1995, an officer stopped James Stymest for speeding. He was subsequently convicted of driving under the influence. Stymest filed a motion to suppress his Intoximeter test results on the ground that the implied consent warning administered by the arresting officer did not track the language of OCGA § 40-5-67.1 (b) as amended in April 1995 (“the April amendment”). Ga. L. 1995, p. 1160. This motion was denied by the Probate Court of Douglas County. Stymest petitioned the Superior Court of Douglas County by writ of certiorari to review the probate court’s denial of his motion to suppress. The superior court affirmed the probate court. Stymest appealed, asserting as his sole enumeration of error the denial of his motion to suppress based on the arresting officer’s failure to administer an implied consent warning which contained the language of the April amendment. In August 1995, the legislature further amended OCGA § 40-5-67.1 by adding subsection (b) (3) (b.l), which provides that the April amendment is applicable only to stops made after April 21, 1995 (“the August amendment”). Because the Supreme Court upheld the August amendment as constitutional (State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996)), and Stymest was stopped on January 7, 1995, we find his enumeration to be without merit and affirm the superior court. See Howard v. State, 219 Ga. App. 228 (2) (465 SE2d 281) (1995).

Decided May 2, 1996.

Sherrod & Bernard, John W. Sherrod, for appellant.

Hartley, Rowe & Fowler, Jeffrey P. Richards, for appellee.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


author: Pope, Presiding Judge.

text:
    A96A0717.
    JELLICO v. EFFINGHAM COUNTY et al.
    (471 SE2d 36)
   Pope, Presiding Judge.

Plaintiff Francis E. Jellico, Jr., who was a certified building inspector for Effingham County, Georgia, sued defendants Effing-ham County, the County’s Board of Commissioners and the County’s chief building inspector for constructive wrongful termination. In his complaint, plaintiff alleged that in 1992 he discovered that certain buildings were being constructed in violation of applicable building codes. After plaintiff refused to certify the buildings for habitation, he learned that the buildings were being certified, over his objection, by his immediate supervisor — the chief building inspector. Plaintiff confronted his supervisor about the matter, but the supervisor continued to certify the buildings. Subsequently, plaintiff complained about the alleged violations and certification of the buildings to the Board of Commissioners. The Board, however, ignored plaintiff’s complaints and failed to take any action. Believing that he potentially might be liable for any improper building certification, plaintiff contends that he felt compelled to resign from his position as a building inspector, and that his resignation amounted to a constructive wrongful termination.

Defendants answered plaintiff’s complaint, denying the material allegations contained therein, and moved to dismiss the complaint. The trial court granted defendants’ motion to dismiss on the ground that plaintiff had no basis for recovery for alleged wrongful termination because he was merely an “at-will” employee. Finding no error in the trial court’s judgment, we affirm.

In this State the general rule is that “[a]n employee, employed at will and not by contract, cannot bring an action against his employer for wrongful discharge from employment or wrongful interference with the employment contract when and where he is an at will employee with no definite and certain contract of employment. . . . The employer, with or without cause and regardless of its motives may discharge the employee without liability. [Cits.]” Troy v. Interfinancial, 171 Ga. App. 763, 766 (1) (320 SE2d 872) (1984); see also OCGA § 34-7-1; Ikemiya v. Shibamoto America, 213 Ga. App. 271, 273 (1) (444 SE2d 351) (1994); Moore v. Barge, 210 Ga. App. 552, 553 (1) (436 SE2d 746) (1993); Mr. B’s Oil Co. v. Register, 181 Ga. App. 166, 167 (351 SE2d 533) (1986). Recognizing this rule, plaintiff nevertheless contends that under the facts of this case we should create a public policy exception to the rule which would allow him to maintain his cause of action. We cannot agree.

“It has been recognized that an employer’s immunity from liability for discharge of an at-will employee ‘may not apply to discharge for a reason that is impermissible on grounds of public policy. . . .’A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767, 769 (3c), fn. 4 (386 SE2d 151) (1989). There is, however, a major difference between a general recognition, on the one hand, that there may exist ‘public policy’ exceptions to a long-recognized proposition of state law and a specific recognition, on the other hand, that the determination of the existence of a ‘public policy’ and how to enforce it is a judicial function. The courts of this state have consistently held that they will not usurp the legislative function and, under the rubric that they are the propounders of ‘public policy,’ undertake to create exceptions to the legal proposition that there can be no recovery in tort for the alleged ‘wrongful’ termination of the employment of an at-will employee. That the courts of other jurisdictions may have done so is of no consequence because ‘in Georgia . . . this rule is statutory. . . . (Cit.)’ Goodroe v. Ga. Power Co., 148 Ga. App. 193, 194 (1) (251 SE2d 51) (1978). Accordingly, ‘Georgia courts have refused to acknowledge any exceptions not encompassed by OCGA § 34-7-1, (cit.), and in the absence of any express statutory provision for such a civil remedy . . ., we decline ... to create judicially such a remedy. “Courts may interpret laws, but may not change them. (Cit.)” (Cit.) “These inadequacies in our existing law, however, if they be such, cannot be supplied by the courts, and may only be corrected by the General Assembly.” (Cit.)’ Evans v. Bibb Co., 178 Ga. App. 139-140 (1) (342 SE2d 484) (1986).” Borden v. Johnson, 196 Ga. App. 288, 289 (1) (395 SE2d 628) (1990).

In the instant case, it is undisputed that the legislature has not created a specific public policy exception to OCGA § 34-7-1 that would allow plaintiff to recover on his claim of constructive wrongful termination. As such, it follows that the trial court correctly granted defendants’ motion to dismiss. Id. at 290 (1).

Decided May 2, 1996

Wallace & Tetreault, Matthew W. Wallace, for appellant.

Painter, Ratterree & Bart, Sarah B. Akins, for appellees.

Judgment affirmed.

Andrews and Smith, JJ, concur.

       Plaintiff also originally asserted a claim against defendants for intentional infliction of emotional distress, but he voluntarily dismissed that claim.


author: McMurray, Presiding Judge.

text:
    A96A0043.
    SCOTT v. AARON.
    (471 SE2d 55)
   McMurray, Presiding Judge.

Plaintiff Aaron filed this action in the magistrate court alleging that defendant Scott was indebted to him due to damage to a truck. Defendant answered and filed a counterclaim. After a trial before the magistrate, a judgment in favor of plaintiff was entered.

Defendant appealed to the state court where on April 5, 1995, an order was entered which stated in part: “This civil action being called in its regular order, and there being no response by the plaintiff or defendant, the same is hereby dismissed for want of prosecution. -Appeal. . .” The word “appeal” and the preceding hyphen appear to have been handwritten while the remainder of the language of the order apparently originated from a rubber stamp. The order charged costs on the plaintiff.

On July 11, 1995, an order was entered which stated that the earlier order was a dismissal of only the appeal, and maintained that the dismissal of the appeal returned the case to the magistrate court in the same posture it had been prior to the appeal to the state court.

Defendant’s application for discretionary appeal was granted in order that we might consider several allegations of error with respect to the order entered July 11, 1995. In this case, the merits of defendant’s enumerations of error are closely interwoven with issues concerning our own jurisdiction. Held:

First, we must note the posture of the case in the state court. An appeal from the magistrate court to the state court is a de novo appeal. OCGA § 15-10-41 (b) (1). Upon a de novo appeal, the state court is to “ ‘try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.’ [Cit.]” Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800). Once a de novo appeal from a magistrate court in proper form is taken to a state or superior court, there is no statutory provision for the remand of the case or for reinstatement of the judgment of the magistrate court. Thus, “the appeal itself may not be dismissed simply because of the absence of one of the parties to the cause. [Cits.]” Thomas v. Bartlett, 142 Ga. App. 694 (237 SE2d 7).

Decided May 3, 1996.

Allen W. Bodiford, Martin C. Jones, for appellant.

Howard T. Aaron, pro se.

Turning now to the construction of the April 5, 1995, order, we note that in the absence of the handwritten word “appeal” at the end of the order, there could be no doubt that the order was a dismissal of the entire action pending in the state court. If the addition of the handwritten word creates any ambiguity, by suggesting that only a dismissal of the appeal was intended, it must be resolved in favor of the construction which will render the judgment legal rather than illegal. Clark v. Bd. of Dental Examiners &c., 240 Ga. 289, 294 (5) (240 SE2d 250).

Thus, we construe the order of April 5,1995, as being a dismissal of the action pending in the state court rather than of the de novo appeal of defendant. Therefore, the order of July 11, 1995, represents an attempt to change the judgment rather than a simple clarification of an earlier final judgment, and is an appealable final judgment.

The final judgment entered July 11, 1995, is error for at least two reasons. First, as earlier noted, the absence of the parties provided no basis for dismissal of the de novo appeal from the magistrate court. Thomas v. Bartlett, 142 Ga. App. 694, supra. Also, since the April 5, 1995, order was a final judgment in the case and was entered in a term of court which had ended prior to the entry of the later final judgment on July 11, 1995, the state court lacked jurisdiction in the subsequent term to change the judgment. City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489).

Thus, the present circumstances of the case sub judice are governed by the order entered April 5, 1995, dismissing the action for want of prosecution. Since defendant has acknowledged that this dismissal was without prejudice, there are no further issues remaining for our decision. See also Singer Mfg. Co. v. Walker & Co., 77 Ga. 649, 650 (1).

Judgment reversed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0066.
    THE STATE v. BOONE.
    (471 SE2d 53)
   McMurray, Presiding Judge.

On April 6, 1995, defendant was arrested for driving under the influence of alcohol. He was later charged in an accusation with driving under the influence of alcohol, underage possession of alcohol and reckless driving. The trial court granted defendant’s pretrial motion in limine to suppress the results of his State-administered breath test, relying on the parties’ stipulation that defendant was not advised of the implied consent warnings prescribed in an April 21, 1995, amendment to OCGA § 40-5-67.1 (b), Ga. L. 1995, p. 1160 (“the April amendment”), “which mandates that specific language be read upon arrest.” State v. Holcomb, 219 Ga. App. 231 (464 SE2d 651). While the April amendment was enacted after defendant’s arrest, the trial court correctly determined that it was bound to suppress the results of defendant’s breath test because the April amendment provided that the statute was applicable “to all cases pending at the time of its approval by the Governor, [cit.] to-wit, April 21, 1995.” State v. Martin, 266 Ga. 244 (1) (466 SE2d 216).

The State filed this appeal from the trial court’s order granting defendant’s motion in limine. Held:

Since entry of the trial court’s order granting defendant’s motion in limine, “the General Assembly has . . . amended OCGA § 40-5-67.1 to include a subsection (b.l), which provides that the new version of OCGA § 40-5-67.1 (b) shall apply only to cases in which the offense was committed on or after April 21, 1995. 1995 Act EX1 (HB 10EX, effective upon Governor’s signature, August 18, 1995) [(“the August amendment”)]. Subsection (b.l) specifically applies to all cases pending oro the date it became effective by the Governor’s signature, August 18, 1995. 1995 Act EX1, § 2. See Miller v. Ga. Ports Auth., 217 Ga. App. 876, 878 (2) (460 SE2d 100) (1995). It is OCGA § 40-5-67.1 (b) which mandates specific language be used. . . . Any application of that subsection to a defendant such as [defendant in the case sub judice], whose offense was committed prior to April 21, 1995, and whose case was pending on August 18, 1995, has been effectively repealed by the General Assembly. An appellate court applies the law as it exists when the case is before it. (Cit.)’ Rucker v. State, 191 Ga. App. 108, 109 (381 SE2d 91) (1989). The law as it stands does not apply the mandatory language of OCGA § 40-5-67.1 (b) (2) to [defendant in the case sub judice], and that amendment has no effect on his case.” Howard v. State, 219 Ga. App. 228, 229 (2) (465 SE2d 281).

Notwithstanding, defendant asserts in the case sub judice that the August amendment has no impact upon the trial court’s order granting his motion in limine because the August amendment violates ex post facto constitutional provisions and “is invalid as an unreasonable special law which seeks to amend general law.” These assertions were rejected by the Georgia Supreme Court in State v. Martin, 266 Ga. 244, 245-246 (3), (4) and (5), supra. Consequently, since the record in the case sub judice establishes that the implied consent warnings the arresting officer read to defendant when defendant was arrested on April 6, 1995, satisfied the statutory requirements then in effect (former OCGA §§ 40-5-67.1 and 40-6-392), we must vacate the trial court’s judgment, in the case sub judice, wherein defendant’s motion in limine was granted. Howard v. State, 219 Ga. App. 228, 229 (2), 230-231, supra. Consequently, the case sub judice is remanded for the trial court to consider issues that were asserted by defendant in his motion in limine, but were not considered by the trial court previously.

Decided May 3, 1996.

Kenneth W. Mauldin, Solicitor, Kelley M. Matthews, Assistant Solicitor, for appellant.

Lawrence S. McLarty, for appellee.

Judgment vacated and case remanded.

Johnson and Ruffin, JJ., concur.


text:
    A96A0083.
    SMOAK v. DEPARTMENT OF HUMAN RESOURCES.
    (471 SE2d 60)
   McMurray, Presiding Judge.

Eugene Smoak, Jr. appeals from an order for his arrest predicated on his failure to purge himself of contempt by paying a child support arrears. Held:

OCGA § 5-6-35 (a) (2), (b) and (d) require that appeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases must be taken by application, and that application must be filed within 30 days of the entry of the order complained of. This discretionary appeals procedure is applicable to cases involving petitions to establish paternity, Brown v. Dept. of Human Resources, 204 Ga. App. 27 (418 SE2d 404); and judgments of contempt regarding a domestic relations decree, Russo v. Manning, 252 Ga. 155 (312 SE2d 319). “Regardless how this case was couched or pursued, it involves collection of child support moneys and it is a domestic relations matter.” Davis v. Welch, 205 Ga. App. 462, 463 (422 SE2d 323). Thus, an application for discretionary appeal was required in the case sub judice. Compliance with the discretionary appeals procedure is jurisdictional. Fabe v. Floyd, 199 Ga. App. 322, 332 (405 SE2d 265). Since Smoak has not followed the mandatory appeal procedures, his appeal must be dismissed.

Decided May 3, 1996.

Emerson Carey, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin O’Connor, Assistant Attorney General, Harold H. Hobbs, for appellee.

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0237.
    THIBADEAU v. HENDON et al.
    (471 SE2d 52)
   McMurray, Presiding Judge.

On June 5, 1995, plaintiff Richard A. Thibadeau filed a civil action in the Superior Court of DeKalb County, Georgia, captioned: “MOTION TO SET ASIDE, CORRECT AND EXPUNGE THE RECORD,” with respect to Pyles v. Henley, DeKalb Superior Court Case No. 69478, and Thibadeau v. Henley, DeKalb Superior Court Case No. 70985, two quo warranto proceedings initiated in 1972. See Pyles v. Henley, 230 Ga. 811 (199 SE2d 249) (Supreme Court Case No. 27800). See also Thibadeau v. Henley, 230 Ga. 811 (199 SE2d 249) (Supreme Court Case No. 27891). The substance of the present action is that the judgment in “Pyles v. Henley, [DeKalb Superior Court Case No. 69478] is void for lack of jurisdiction[,]” as a consequence, petitioner argues that the judgment in Thibadeau v. Henley, DeKalb Superior Court Case No. 70985, also is void. Petitioner prayed that “Pyles v. Henley, case number 69478, be set aside and expunged from the records” and also that “Thibadeau v. Henley, case number 70985, be set aside and expunged from the records[.]” In a final order entered August 3, 1995, the superior court denied petitioner’s motion to set aside and expunge the record, and, on August 30, 1995, petitioner filed a notice of appeal. Held:

‘ “It is the duty of this court on its own motion to inquire into its jurisdiction.” (Cit.)’ Anthony v. Anthony, 120 Ga. App. 261, 264 (2) (170 SE2d 273) (1969).” Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230). It appears that an appeal from the denial of a motion “that [a] court correct its own records and expunge certain matters therefrom,” is within the appellate subject matter jurisdiction of the Georgia Court of Appeals. Kelley v. Tanksley, 217 Ga. 183 (121 SE2d 647). But the relief sought by petitioner in the case sub judice could not be granted unless and until the underlying judgment is set aside for lack of jurisdiction. The procedure for obtaining such relief is through a motion under OCGA § 9-11-60 (d) (1). The denial of a motion to set aside a judgment brought pursuant to OCGA § 9-11-60 (d) (1) is not directly appealable but requires an application to this Court for discretionary appeal. OCGA § 5-6-35 (a) (8); Guy v. Roberson, 214 Ga. App. 391, 392 (2), 393 (448 SE2d 60). In the case sub judice, it is our view that the substance of this action is a motion to set aside and that the prayer to expunge the record is ancillary to relief under OCGA § 9-11-60 (d) (1). Since petitioner attempted a direct appeal and did not comply with the application procedures for discretionary appeal, this Court has no jurisdiction over the instant appeal. Consequently, Case No. A96A0237 must be dismissed for lack of appellate jurisdiction.

Decided May 3, 1996.

Richard A. Thibadeau, pro se.

Wright & King, Judy C. King, Edward E. Garriere, Jr., for appellees.

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


author: Johnson, Judge.

text:
    A96A0239, A96A0240.
    COHEN v. LOWE AVIATION COMPANY, INC.; and vice versa.
    (470 SE2d 813)
   Johnson, Judge.

Norman Cohen and Edward Hill, both licensed pilots, were killed instantly when a Cessna 172 airplane crashed during takeoff. Ellen Cohen, as surviving spouse and executrix under her late husband’s will, brought this negligence action against Lowe Aviation Company, Inc. seeking damages for the wrongful death of her husband. She alleged that Lowe negligently failed to maintain the plane rented to Norman Cohen, and that Lowe’s employee, Edward Hill, was negligent in failing to provide adequate flight supervision resulting in Norman Cohen’s death. After hearing eight days of evidence, a jury returned a verdict in favor of defendant Lowe which is appealed by Cohen in Case No. A96A0239.

Case No. A96A0239

1. In five separate enumerations of error, Cohen argues that the verdict is contrary to the evidence, justice, and equity, against the weight of the evidence, and contrary to the law as charged. She asserts the trial court erred in failing to direct a verdict in her favor and in denying her motion for new trial. Because the standard of review on appeal, the “any evidence” rule, is the same for all of these allegations, we will treat them together. “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 [plaintiff’s] motion for new trial . . . will not be disturbed.” (Citations and punctuation omitted.) Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

Viewed in this light, the evidence supports the facts as follows. Norman Cohen had obtained his private pilot license. He had subsequently logged approximately 50 hours of flight time. He wanted to get an instrument rating, an advanced flight rating. The purpose of the flight on March 17, 1990, was to work on the requirements for that rating. Norman Cohen was seated in the left-hand pilot’s seat of the dual-control Cessna when it began its takeoff roll from the midpoint of the runway of the Montezuma airport. Witnesses testified the plane began a steep climb and made a left turn. This was described as a “short field” or maximum performance takeoff, a maneuver which Norman Cohen was required to be familiar with and proficient at executing as a prerequisite to receiving his private pilot license. The plane, apparently in a departure stall-spin situation, suddenly plunged downward and crashed.

Plaintiff Cohen claimed that the probable cause of the loss of control of the aircraft was a defective pilot’s seat which, allegedly due to improper maintenance, slipped backwards without warning during takeoff. Although Cohen submitted evidence in support of this contention, Lowe Aviation offered evidence to the contrary for the jury’s consideration. For example, Henry Lowe, president of Lowe Aviation, testified that he had inspected the seat latching mechanisms three flight hours before the crash and found them to be in proper working order. The jury also heard from three expert witnesses who testified: 1) That a seat slip would have caused an abrupt change in the climb angle during takeoff, which the expert concluded did not occur in this case; 2) that the seat latching pins were properly engaged at the time of impact and immediately prior thereto; and 3) that the seat was in a normal position at the time of impact and rated the possibility that the seat had moved prior to the crash and then returned to its original position as “very unlikely.”

Similarly, conflicting evidence was introduced at trial regarding whether flight instruction was in progress at the time of the crash. The purpose of the flight was to receive instrument flight instruction, but some evidence was presented that the takeoff phase of the flight did not involve instrument flight instruction. Even if Hill was providing flight instruction, he was not strictly liable for the death of Cohen. The jury heard evidence that both Norman Cohen and Hill regularly logged in as pilot-in-command. They also heard that the pilot sitting in the left seat generally flies the plane, that is to say, is actually physically controlling the plane. It is uncontroverted that Norman Cohen was in the left seat. A witness testified that it looked as though the crash was caused by the pilot cross-controlling the aircraft, “and the minute you do that it’s impossible to recover, and it’s so quick that anyone else in there [even in a dual-control aircraft] could not recover from it. . . . The onset is extremely rapid, and it’s a violent maneuver, and at that point it’s impossible for anyone to recover the airplane.” Therefore, there was some evidence before the jury from which it could conclude that Hill, even if he was providing instruction, was not negligently doing so.

We agree with the trial judge’s observation that there were questions of fact regarding all of the major issues in this case. Because the jury heard conflicting evidence with regard to all of those issues, and there was some evidence upon which the jury could rely in forming their verdict, we do not find reversible error on any of the general grounds asserted in these enumerations of error.

2. Cohen alleges that the verdict was the product of bias and prejudice. Specifically she complains that defense counsel improperly interjected plaintiff’s religion and economic status into the case. Cohen points to a portion of the trial at which defense counsel asked a question, the answer to which he purportedly knew would be that Norman Cohen had eaten lunch at a synagogue on the day of the crash. Counsel did not object to the question or move to strike the response. “Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal. Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.” (Citations and punctuation omitted.) Minton v. State, 205 Ga. App. 430, 432 (3) (422 SE2d 300) (1992).

This Court recognizes the deleterious effects on society of any form of racial, religious, or ethnic bias. The presumption on the part of Cohen’s counsel that this response was solicited solely as a means of telegraphing to the members of the jury that the decedent was Jewish and thereby influencing them to return a defense verdict is unsettling. Whether that was, in fact, the purpose of the question is for the conscience of defense counsel to examine. The absence of any objection to the question or the answer and the lack of any ruling by the trial court, however, leaves this Court with nothing to review.

Decided May 3, 1996.

Brown, Katz, Flatau & Hasty, Richard M. Katz, for appellant.

Sell & Melton, Joseph W. Popper, Jr., Jeffrey B. Hanson, John D. Comer, for appellee.

Similarly, Cohen’s assertion that a reference to a country club was a prejudicial reference to her husband’s economic status was not properly preserved for appellate review. However, we note that the argument is somewhat specious in light of evidence introduced by Cohen herself that her late husband had an annual salary of $126,000 and future earnings estimated to rise to $400,000 annually.

In a related enumeration of error, Cohen complains that defense counsel used regionalisms which were grossly improper and prejudicial to his client in order to align himself with the jury. Specifically she complains that counsel exhorted the jury, during closing argument, not to “send her counsel back to New York with a croker sack full of money.” Such trial strategy is at a minimum impolite and arguably unprofessional. But even had the issue been properly preserved for our review, which it was not, we do not believe that it was so inflammatory as to have blinded the jury to the eight days of evidence which was otherwise competently presented.

3. We likewise find no merit in Cohen’s final assertion that the trial court erred in failing to charge the jury that, because she proved that flight instruction was being provided at the time of the crash, the burden of proof shifted to Lowe to disprove flight instruction. Because contradictory evidence was introduced regarding whether Hill was providing flight instruction at the time of the crash, the burden did not shift and the trial court did not err in refusing to give the jury such an instruction.

Case No. A96A0240

Our affirmance of the jury’s verdict in Case No. A96A0239 renders the errors enumerated in Lowe’s cross-appeal moot. Accordingly, this appeal is dismissed.

Judgment affirmed in Case No. A96A0239. Case No. A96A0240 is dismissed.

McMurray, P. J, and Ruffin, J., concur.


text:
    A96A0315.
    A96A0842.
    GAY v. THE STATE. ROGERS v. THE STATE.
    (471 SE2d 49)
   McMurray, Presiding Judge.

Defendant Dean Rogers was charged in an indictment with seven counts of violating the Georgia Controlled Substances Act. Counts 1 through 6 alleged the sale of cocaine while Count 7 alleged that defendant did “knowingly sell a non-controlled substance, to wit: chunky material, having the nature and appearance of crack cocaine, with the express representation to an undercover police officer that said non-controlled substance was a narcotic, controlled substance, to wit: crack cocaine.” In Counts 2 and 3, defendant Virgil Gay, Jr. was jointly indicted with Dean Rogers for the sale of cocaine.

The evidence presented at their joint jury trial included videotapes of four of the sales, as well as the testimony of David L. Sullivan, the special agent with the Tri-Circuit Drug Task Force, stationed in Claxton, Georgia, who made all seven of the purchases at issue. Special Agent Sullivan testified that, “[sjeven times . . .” he purchased what he felt was cocaine from Dean Rogers. On two of those occasions, Virgil Gay, Jr. was present and involved. Specifically, at approximately 4:18 p.m. on December 29, 1992, Special Agent Sullivan “observed the defendant, Mr. Gay, standing at [the] intersection . . .” of Williams and Clark streets in Reidsville, Georgia. Special Agent Sullivan “pulled up and stopped and the defendant [Virgil Gay, Jr.] asked me what I needed and I told him a rock. He asked . . . how many rocks. [Special Agent Sullivan] said, ‘Just one.’ At this point, defendant never actually walked all the way . . . [into] the view of the camera, which was shining out the driver’s side window. . . . [Defendant Gay] walked back to the stop sign, . . . and he motioned for another individual to come to him. At this point, [Special Agent Sullivan] observed the other defendant Dean Rogers, run from the area of the BP Station down the road. [Special Agent Sullivan] observed the two defendants converse for a short time, both of which had their backs turned to [him]. [He] could not see their hand movements.” Dean Rogers shortly approached Special Agent Sullivan’s car and “produced one white rock-like substance, which he handed to [Special Agent Sullivan, . . . who] gave [Dean Rogers] $20.00 of Task Force funds. . . .” This substance “tested positive for cocaine. . . .” At 5:22 p.m. that same afternoon, Special Agent Sullivan returned to the “BP Station off of Highway 23 on John E. Clark Drive and was flagged down by the defendant Dean Rogers, [from whom Special Agent Sullivan] purchased $40.00 worth of crack cocaine, or suspected crack cocaine.” This also “tested positive being cocaine.”

On Wednesday, December 30, 1992, at 4:05 p.m., Special Agent Sullivan observed the defendants, Dean Rogers and Virgil Gay, Jr., riding in a small blue, Chevrolet Chevette. Dean Rogers exited from the driver’s side and flagged down Special Agent Sullivan, who told Dean Rogers he “needed to get a 40.” Defendant Virgil Gay, Jr. exited the car and inquired: “ ‘What does he want?’ And as Dean Rogers walks to him he [(Rogers)] says, ‘A 40.’ . . . Virgil Gay, Jr. remove[d] a blue stocking cap, . . . reach[ed] into this hat and remove[d] a white rock-like substance. In turn, he [gave] that white rock-like substance to Dean Rogers, who immediately [turned to Special Agent Sullivan] and walk[ed] right back and [put] it in [Special Agent Sullivan’s] hand.” This substance “tested positive being cocaine.”

On January 12, 1993, Special Agent Sullivan again purchased $20 worth of crack cocaine from Dean Rogers. Dean Rogers asked Special Agent Sullivan to deal exclusively with him, advising Special Agent Sullivan, “ ‘Look for the guy with the black rim hat and no teeth.’ And [Dean Rogers] showed [Special Agent Sullivan] that his teeth were missing.” On January 14, 1993, he again purchased $40 worth of crack cocaine from Dean Rogers. On February 8, 1993, Special Agent Sullivan purchased “two small, rock-like substances . . .” produced by Dean Rogers, which tested positive for cocaine. On February 17, 1993, at approximately 8:52 p.m., Dean Rogers approached Special Agent Sullivan’s vehicle and “produced two small, rock-like substances. . . . [H]e put one in [Special Agent Sullivan’s] hand[.] . . . [Special Agent Sullivan] said, ‘That’s . . . too small. You can do better than that. You got anything bigger?’ And [Dean Rogers] said, ‘Here,’ and he placed another in [Special Agent Sullivan’s] hand. [Special Agent Sullivan] viewed these substances for a short time. The tint on the substance was a little darker than what [Dean Rogers] normally sold . . .” to Special Agent Sullivan. Since Dean Rogers “had never sold [him] anything that wasn’t real, [Special Agent Sullivan] bought it with $20.00 of Task Force funds.” But when Special Agent Sullivan field-tested this purchase, “it tested negative.”

The jury found them guilty as charged on all counts. In Case No. A96A0315, Virgil Gay, Jr. appeals from the denial of his motion for new trial. In Case No. A96A0842, Dean Rogers appeals from the denial of his motion for new trial. The two cases are hereby consolidated for disposition on appeal. Held:

Case No. A96A0315

1. In two related enumerations of error, defendant Virgil Gay, Jr. urges the general grounds.

(a) With respect to Count 2, Virgil Gay, Jr. argues there was no evidence that he “performed any act which facilitated or furthered the transaction. . . .” This contention is without merit.

Evidence that on December 29, 1992, Virgil Gay, Jr. approached Special Agent Sullivan, asked what he wanted, and then introduced Special Agent Sullivan to Dean Rogers, who actually passed the contraband and collected the money is sufficient proof that defendant is guilty, beyond a reasonable doubt, as a party to the crime of selling cocaine as alleged. OCGA § 16-2-20 (a) and (b) (3). “[T]he theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this [C]ourt. See Singletary v. State, 194 Ga. App. 266 (3) (390 SE2d 611) (1990). The evidence as to Count 2 [in the case sub judice] meets the standard of Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560)]. Moss v. State, 206 Ga. App. 310, 311-312 (4) (425 SE2d 386) (1992).” Hood v. State, 209 Ga. App. 383 (433 SE2d 699).

(b) Next, Virgil Gay, Jr. contends that Special Agent Sullivan’s “testimony alone was insufficient. . .” with respect to Count 3. We do not agree.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Special Agent Sullivan’s testimony revealed that, after Dean Rogers approached the officer’s vehicle, Virgil Gay, Jr. inquired what Special Agent Sullivan wanted and then produced crack cocaine from the recesses of the hat defendant was wearing. The theory that one may use a conduit or agent and thereby escape culpability as a seller has been considered and rejected by this Court. Farley v. State, 210 Ga. App. 580 (436 SE2d 770). The evidence in the case sub judice is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that Virgil Gay, Jr. is guilty, beyond a reasonable doubt, of selling crack cocaine as alleged in Count 3 of the indictment.

Case No. A96A0842

2. With respect to defendant Dean Rogers, he concedes in his brief that “[flour of the seven transactions were videotaped, and [these tapes] were shown to the jury.” He argues that, since the State “failed to produce video tape evidence of all the transactions in which [Dean Rogers] was accused of selling controlled and non-controlled substances to the undercover agent . . . the evidence is insufficient to support a conviction on all counts of the indictment.”

Special Agent Sullivan itemized for the jury the five separate instances when Dean Rogers sold Special Agent Sullivan crack cocaine or else what defendant represented was cocaine. “The in-court identification of [defendant Dean Rogers] as the seller of [that] crack cocaine [or a non-controlled substitute for crack cocaine] was sufficient to authorize a rational trier of fact reasonably to find proof of his guilt beyond a reasonable doubt [as to each instance alleged in the indictment]. Hill v. State, 205 Ga. App. 475, 476 (1) (422 SE2d 564) (1992).” Rauls v. State, 209 Ga. App. 101, 102 (3) (432 SE2d 677). The absence of videotaped corroboration does not deprive Special Agent Sullivan’s testimony of its probative value. The enumeration of the general grounds is without merit.

Decided May 3, 1996.

Joel E. Williams, Jr., for appellant (case no. A96A0315).

Hal T. Peel, for appellant (case no. A96A0842).

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Judgments affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0394.
    JOHNSON v. THE STATE.
    (471 SE2d 58)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of violating the Georgia Controlled Substances Act in that he did “possess [cocaine] with intent to distribute. . . .” After defendant showed a large amount of “cocaine . . . in a black bag . . .” to a police confidential informant in his motel room, police “secured” the scene by proceeding to break down the door with a battering ram when the door just opened and the defendant came out. Defendant was forcibly detained while a search warrant was obtained. Detectives conducted a protective sweep, and Sergeant Michael F. Volk found a large “black suitcase type object in the bathtub. . . . [I]t was opened. There was a brick shaped object which was wrapped in brown plastic tape[, which in Sergeant Volk’s experience in narcotics investigations,] is the type of package a kilo of cocaine is in.” During the subsequent investigative search conducted pursuant to a warrant, this black bag containing the kilogram of cocaine was seized. Forensic analysis showed that it was “80 percent pure cocaine.”

Defendant moved to suppress evidence seized from his motel room on the ground that “the correct procedures for effectuating searches were not duly followed.” After a hearing, this motion was denied. The jury found him guilty of violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute) and also of “Conspiracy to Commit Trafficking in Cocaine.” His motion for new trial was denied, and this appeal followed. Held:

In his sole enumeration of error, defendant contends the trial court erred in denying his motion to suppress the contraband found in his motel room during a search conducted pursuant to a warrant. He argues that a prior warrantless search of his room tainted the application for a warrant to search that motel room. In its brief, the State “concedes that the initial entry was unlawful,” but argues that the evidence seized during the subsequent search is admissible under the “independent source” doctrine. We agree.

Decided May 3, 1996

Emerson Carey, Jr., Cathy M. Alterman, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Robert E. Statham III, Tamar P. Stern, Assistant District Attorneys, for appellee.

“Even if the original entry were illegal, that would not require the suppression of drugs found during the search incident to the warrant, [if] the probable cause for the warrant contained no information from the entry into the [motel room] and the evidence sought to be suppressed was seized pursuant to [that] warrant. Murray v. United States, [487 U. S. 533 (108 SC 2529, 101 LE2d 472) (1988)]; Sequra v. United States, 468 U. S. 796 (104 SC 3380, 82 LE2d 599) (1984); Mack v. State, 189 Ga. App. 261, 262 (1) (375 SE2d 458) (1988); see Ehrlich v. State, 189 Ga. App. 294, 295 (375 SE2d 272) (1988).” Anderson v. State, 193 Ga. App. 6, 7 (2), 8 (387 SE2d 148). In the case sub judice, the evidence supports the trial court’s determination that the issuance of the warrant was supported by ample probable cause to believe that defendant had cocaine for sale in his motel room. This proof was supplied by the confidential informant before the police attempted to “secure” the scene by breaking down the door. Thus, probable cause was established independently of any facts revealed by the unlawful entry into defendant’s motel room. Consequently, the denial of defendant’s motion to suppress was correct.

Judgment affirmed.

Johnson, J., concurs. Ruffin, J., concurs in judgment only.