text:
    A01A1420.
    NEL v. THE STATE.
    (557 SE2d 44)
   Blackburn, Chief Judge.

A Forsyth County jury found Jan G. Nel guilty as charged of a single count of misdemeanor cruelty to animals, which charge arose when, at approximately 10:30 p.m. on October 16, 1999, Nel suspected that a group of teenage boys were raccoon hunting on his property with their dogs; he went into the woods in search of them with a 223 Thompson Contender pistol, saw a hunting dog running past, followed the dog into the woods, and shot it. Now, on appeal, Nel raises 30 enumerations of error that he contends require reversal of the jury’s verdict. Upon review, we find Nel’s contentions meritless and affirm his conviction.

1. Attorney James E. .Hardy II was specially appointed as a solicitor-general to try this case on behalf of the State because the Solicitor-General of Forsyth County (“SG”) had a conflict of interest that prevented her participation. In his first and second enumerations of error, Nel contends that such appointment rendered the jury’s verdict null and void because: (a) the SG’s conflict of interest was not disclosed to him, and thus the trial court failed to hold a hearing on the SG’s disqualification, and (b) attorney Hardy did not qualify for appointment because he practices criminal defense law in the State Court of Forsyth County in violation of OCGA § 15-18-63 (c).

(a) Nel fails to provide any legal basis for the notion that, when seeking disqualification and appointment of a special prosecutor, the SG’s conflict of interest must be disclosed to him. Certainly the statute does not require it. OCGA § 15-18-65. Indeed, it appears from the context of the arguments contained in the instant enumeration of error that Nel supposes success would have been more likely if he had tried the case against the SG instead of Hardy. However, Nel does not have a substantive right to have his case tried by a specific prosecutor so as to make notice necessary in order to oppose the SG’s disqualification. Nel does not claim any procedural error in the appointment of Hardy, nor does he claim that the SG’s conflict was feigned. Nel has not alleged — and we cannot perceive — any prejudice to him because the SG recognized a legitimate conflict, disqualified herself, and a special prosecutor was duly appointed. Accordingly, we find no basis for the trial court to hold a hearing on such subject.

(b) Contrary to Nel’s contention, OCGA § 15-18-63 is inapplicable in the instant case as Hardy was not a “part-time solicitor-general,” but was a solicitor-general pro tempore specially appointed specifically for the instant case. OCGA § 15-18-65 (a).

2. In enumerations of error 3 and 4, Nel claims reversible error in (a) the State’s failure to produce papers in the possession of a firearms expert; (b) the State’s failure to produce the collar removed from the dog; and (c) the trial court’s failure to mark the dog collar as an exhibit for this Court on appeal. We find no error.

(a) The State had an open file policy. Defense counsel reviewed the State’s file and declared it “basically an open file.” The papers about which Nel now complains were in the possession of the firearms expert and were not related specifically to this case; instead, they apparently contained general facts relating to the Thompson Contender brand of pistol. Nel was given copies of the papers and permitted to review them prior to cross-examination of the expert. He had no objection to this procedure. Further, the papers were not admitted into evidence. Under these circumstances, this claim of error is waived. Hunter v. State.

(b) Photographs showed that, at the time of its death, the dog was wearing a purple collar with identifying tags. This fact went undisputed. The State did not introduce the collar, and it was put before the jury only after the close of the State’s case, in rebuttal to Nel’s testimony. Pretermitting whether pretrial production is required for rebuttal evidence, we find no prejudice to Nel in the late production of the collar when its existence on the dog’s neck at the time of death was factually established, photographically documented, and undisputed. “Harm as well as error must be affirmatively shown by the record to obtain reversal.” Evans v. State.

(c) Based on the above disposition, we find no error in the trial court’s refusal to have the dog collar marked as an exhibit and sent to this Court for appellate purposes.

3. We likewise find no error in the trial court’s refusal to grant a mistrial based on the prosecutor’s question, “How many dogs have you shot in South Africa?” No motion for mistrial was made at the time of objection. “A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” Thaxton v. State. Further, such question went specifically to Nel’s representations that “they had the right to shoot wild dogs in South Africa where he lived at before.”

4. In enumerations of error 6 and 7, Nel complains about an episode of alleged prosecutorial misconduct when the prosecutor “paraded an exhibit, the firearm, throughout the Courtroom, dry fired it in the Courtroom, and generally made it the center of attention.” Thereafter, during defense counsel’s direct examination of Nel about the firearm, the prosecutor apparently embarrassed both defense counsel and Nel by asking, “Pardon me, Your Honor. Would the Court have him unbreach that weapon, please?” Defense counsel found such question to be “some insinuation that he’s [Nel] been dangerous here.”

We have reviewed the lengthy transcript of this misdemeanor trial thoroughly. The record reveals more than a little acrimony. Meritless claims of misconduct were repeatedly leveled by both prosecutor and defense counsel for various perceived slights. In fact, a large part of the four-day trial was taken up with attorney wrangling. And we specially find that the trial judge showed great patience as both parties carried on — and on.

The comment by the prosecutor about which Nel complains, while perhaps unwarranted, was not a personal “attack” as Nel characterizes it by brief. In fact, it is not out of the realm of possibility that defense counsel’s objection brought more unwanted jury attention to the prosecutor’s question than simply unbreaching the weapon would have done. And we note that the bulk of Nel’s complaint involves discussion that was held outside the presence of the jury. Prejudice based on the single complained-of question referenced above is completely speculative. We will not reverse on such merit-less ground.

Along these same lines, we also reject as factually and legally meritless Nel’s claims of prosecutorial misconduct as follows: enumeration of error 9 (alleging a dual claim that the prosecutor “withheld evidence,” which evidence Nel fails to identify to this Court, and that the prosecutor “duped the court into violating the freedom of the press and the First Amendment” when, at the prosecutor’s request, the trial court simply ordered that a local paper containing a favorable article about defense counsel be removed from the courthouse); enumeration of error 10 (alleging that the prosecutor made an improper comment on Nel’s “silence” when Nel was not silent but made a statement to a deputy, and to which alleged improper comment Nel objected at trial only on the basis of “relevance”); enumeration of error 11 (alleging that the prosecutor failed to reveal a “deal” with the victim that Nel assumes exists only by virtue of the State’s failure to prosecute the teenage victim for trespassing on Nel’s property in order to find his dog); and, finally, enumeration of error 12 (alleging that the prosecutor improperly asked two hypothetical questions not based on facts in evidence, when one complained-of question was based on facts within the personal knowledge that the witness obtained on the scene and the other complained-of question was based on tendered photographic exhibits and testimony from an eyewitness as to the direction the dog was traveling).

5. In enumeration of error 8, Nel complains that the trial court failed to declare him an expert witness on the subject of firearms.

It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an expert. Thus, the trial court’s decision as to a witness’ qualifications to testify as an expert will be reversed only if that discretion is abused.

(Punctuation and footnotes omitted.) Yount v. State. The voir dire of Nel’s qualifications showed him to be familiar with the weapons he owned, including the Thompson Contender he used to shoot the dog. But familiarity with one’s own weapons does not necessarily render one a firearms “expert.” Accordingly, under the facts of record, we find no abuse of the trial court’s discretion in refusing to recognize Nel as an expert in firearms.

6. Next, in two separate enumerations of error, Nel challenges the trial court’s denial of his motions for directed verdict. A trial court is authorized to grant a motion for directed verdict only when all of the reasonable deductions and inferences arising from the undisputed evidence demand a finding that the accused is not guilty. OCGA § 17-9-1 (a).

Here, it was undisputed that Nel shot the dog. However, he claimed justification and testified that the dog “came right at” him while he was standing beside his car, thus requiring him to shoot the dog in order to avoid injury. On the other hand, an eyewitness who was sitting in Nel’s car at the time of the incident testified that the dog “ran down the roadway” into the woods and, thereafter, the witness “lost sight” of both the dog and Nel prior to hearing the fatal shot. This evidence raises the inference that Nel followed the dog in order to shoot it. While there was additional evidence in support of the State’s case, the above-referenced evidence, alone, presents a question for jury resolution as to whether the shooting was justified as self-defense. Accordingly, under enumerations of error 13 and 14, the trial court correctly denied Nel’s motions for a directed verdict of acquittal.

7. The remaining 15 enumerations of error concern the trial court’s charge to the jury. In that regard, the trial court asked for objections at the conclusion of his jury charge. Defense counsel moved to the podium and articulated several specific objections to the charge, at the end of which he stated “that is my exceptions to the charge.” Defense counsel did not reserve his right to assert additional objections. “[D]efense counsel may object to such portions of jury instructions as are perceived at trial to be error and may also reserve the right to raise additional objections on motion for new trial or on appeal.” McCoy v. State. In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections and/or follow the procedure of reserving the right to object on motion for new trial or on appeal. Id.; Jackson v. State. Nel’s failure to reserve the right to raise additional objections to the jury charge waives those claims of error not specifically raised at trial.

That said, we have carefully reviewed Nel’s specific exceptions to the charge as alleged at trial and can detect no error. The following charges of the trial court about which Nel complains are correct statements of law: justification as an affirmative defense that the State must disprove; the jury’s duty to apply the law to the facts; incriminating statements; application of Miranda; reasonable fears provoking use of force; shooting a dog in defense of self; and that malice, wilfulness, and intent are not elements of cruelty to animals. See generally Porter v. State; Moore v. State; Morgan v. State; Readd v. State; Cox v. State.

Further, the trial court correctly refused to charge the jury on intent, mere suspicion/conjecture, misapprehension of a fact, lack of negative inference from a defendant’s failure to testify, and the Forsyth County ordinance regarding the proper handling of hunting dogs. Such charges were either irrelevant to the legal issues being tried, were not tailored to the evidence, or were factually inapplicable to a case wherein the defendant testified. “A trial judge in a criminal case is required to deliver a charge tailored to the indictment and adjusted to the evidence.” Freeman v. State.

Finally, we reject Nel’s claim that the trial court erred by failing to charge the jury on the principle of jury nullification. Nullification may be appropriate as a limited topic for closing argument. See Morrison v. State. It is not error, however, to refuse a jury instruction on such principle. Andrews v. State. While “the jury does possess a de facto power of nullification, i.e., a power to acquit the defendant regardless of the strength of the evidence against him, it nonetheless is true that if the evidence proves the defendant guilty beyond a reasonable doubt it is the jury’s duty to convict.” (Citation and punctuation omitted.) Miller v. State. overruled on other grounds, Woodard v. State; see Noggle v. State.

Judgment affirmed.

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

Decided November 20, 2001

Reconsideration denied December 4,2001

McCrimmon & McCrimmon, Edward W. McCrimmon, Lisa L. McCrimmon, for appellant.

Leslie C. Abernathy, Solicitor-General, for appellee.

       Nel concedes that there is evidence in the record to support disqualification in that the mother of the boy who owned the dog “was a nurse at Northside Hospital for one of Solicitor Abernathy’s babies which may have constituted a conflict for the solicitor to handle the case.”

        Hunter v. State, 202 Ga. App. 195, 197 (413 SE2d 526) (1991).

        Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998).

        Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841) (1990).

        Yount v. State, 249 Ga. App. 563, 564-565 (1) (548 SE2d 674) (2001).

        McCoy v. State, 262 Ga. 699, 701 (2) (425 SE2d 646) (1993).

        Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Porter v. State, 272 Ga. 533, 534 (3) (531 SE2d 97) (2000).

        Moore v. State, 228 Ga. 662, 666 (6) (187 SE2d 277) (1972).

        Morgan v. State, 271 Ga. 885, 886 (4) (525 SE2d 691) (2000).

        Readd v. State, 164 Ga. App. 97, 99 (296 SE2d 402) (1982).

        Cox v. State, 216 Ga. App. 86 (1) (453 SE2d 471) (1995).

        Freeman v. State, 194 Ga. App. 905, 906 (4) (392 SE2d 330) (1990).

        Morrison v. State, 272 Ga. 129, 130 (3) (526 SE2d 336) (2000).

        Andrews v. State, 222 Ga. App. 129, 130 (473 SE2d 247) (1996).

        Miller v. State, 260 Ga. 191, 196 (13) (391 SE2d 642) (1990).

        Woodard v. State, 269 Ga. 317, 319-320 (496 SE2d 896) (1998).

        Noggle v. State, 256 Ga. 383, 385 (2) (349 SE2d 175) (1986).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1609.
    GERRARD v. THE STATE.
    (556 SE2d 131)
   Ruffin, Judge.

Ronald Gerrard, Jr. was charged by accusation with theft by receiving stolen property, and following a jury trial, he was found guilty of the offense. Gerrard appeals, asserting that the trial court lacked jurisdiction because he did not waive his right to indictment by a grand jury, that the trial court erred in denying his motions to suppress evidence, and that he was denied effective assistance of trial counsel. For reasons which follow, we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence showed that on March 21, 2000, Gerrard drove a pickup truck to a business called Auto Quick and asked the attendants, Christopher Alley and Jason Ward, if they could change a flat tire on the truck. After looking at the tire, Alley told Gerrard that he needed the lug nut key to remove the wheel, and Gerrard responded that he did not have the key. According to Alley, Gerrard “was real jittery and rushing [him]” and stated: “I’ve just got to get this wheel off my truck and get it back to my boss.” Gerrard then asked Alley to cut the wheel off the truck. Alley pointed to a nearby business, Honey Creek Tire, and told Gerrard he would call and ask if someone there could remove the wheel.

When Alley returned to the truck after making the call, Gerrard was not there. As Alley and Ward looked at the truck, they noticed pry marks on the passenger door, that the ignition was punched out, that a window was broken out, and that the tag was expired. Suspecting that the truck had been stolen, Alley called the police. When Alley went back outside, Gerrard was driving away toward Honey Creek Tire.

Shortly thereafter, Deputy Sheriff Chad Frey responded to Auto Quick to investigate the report of a possible stolen vehicle. Alley and Ward described the truck to Deputy Frey, told him what aroused their suspicions, and informed him that Gerrard drove to Honey Creek Tire. Although both witnesses also started describing Gerrard, Frey testified that he “cut them off because [he] wanted to get [to Honey Creek Tire] to avoid a chase.” While en route to Honey Creek Tire, Deputy Frey received confirmation over the radio that the truck had been stolen.

Upon arriving at Honey Creek Tire, Deputy Frey saw Gerrard standing by the truck and asked him if he was with the vehicle. Gerrard answered yes, but told Frey that the truck belonged to his friend. Deputy Frey took Gerrard into custody. At some point, Gerrard insisted that his friend who owned the truck was next door at a gas station. After confirming that Gerrard did not have a friend at the gas station, Deputy Frey drove him back to Auto Quick where both Alley and Ward identified him as the driver of the pickup truck.

1. Relying on OCGA § 17-7-70, Gerrard asserts that the trial court lacked jurisdiction to proceed with a trial based upon the accusation because he did not waive his right to indictment by a grand jury. We disagree. The State charged Gerrard with theft by receiving stolen property under OCGA § 16-8-7, and our Code permits this offense to be tried upon accusation even when the defendant has not waived indictment. Accordingly, this assertion is without merit.

2. Gerrard asserts that the trial court erred in denying his motion to suppress evidence because Deputy Frey lacked probable cause to arrest him. Again we disagree. “A warrantless arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.” In this case, it is undisputed that prior to arresting Gerrard, Deputy Frey determined that he was driving a stolen vehicle. This information authorized Frey to arrest Gerrard for possessing stolen property. Accordingly, the trial court properly denied this motion to suppress.

3. Gerrard next asserts that the trial court erred in denying his motion to suppress evidence of Alley’s and Ward’s out-of-court identifications because they were the product of an impermissibly suggestive showup. In assessing the admissibility of this testimony, we must first inquire “whether the identification procedure was impermissibly suggestive.” In making this determination, we are mindful that, notwithstanding the dangers inherent in bringing a single suspect before an eyewitness for identification, under the circumstances of this case, such procedure not only aided law enforcement, but would also have benefitted an innocent subject by expediting his early release.

That said, we cannot ignore the inherent danger that, when presented with a single suspect, Alley and Ward could have misidentified Gerrard. Thus, we must evaluate “whether there was a very substantial likelihood of irreparable misidentification.” We consider “the opportunity of [Alley and Ward] to view [Gerrard] at the time of the crime, [their] degree of attention, the accuracy of [their] prior description of [Gerrard], the level of certainty demonstrated by [them] at the confrontation, and the length of time between the crime and the confrontation.”

The record shows that both witnesses initially saw Gerrard during the daytime when they attended to his request for assistance. Throughout the encounter, the witnesses focused their attention exclusively on Gerrard and his predicament. As for their description of Gerrard, the transcript merely shows that at trial, both witnesses described him racially, wearing a white t-shirt, baggy black jogging pants, and a rust-colored jacket. Both witnesses also testified that when they saw Gerrard in the back of the sheriff’s car, he was wearing the same clothes, but had removed the rust-colored jacket. Finally, the record shows that only about 20 minutes elapsed between the time Alley and Ward first encountered Gerrard and the time Deputy Frey brought him back for identification and that both witnesses were certain that he was the driver of the truck. Under these circumstances, there was not a substantial likelihood that Alley and Ward misidentified Gerrard, and the trial court therefore did not err in denying his motion to suppress the evidence. Furthermore, we are compelled to note that, assuming arguendo, there was a substantial likelihood of irreparable misidentification, Deputy Frey testified that he found Gerrard with the stolen vehicle. Thus, evidence of the showup did not add materially to the proof that Gerrard possessed the stolen truck.

4. Finally, Gerrard asserts that he was denied effective assistance of trial counsel. The record reveals that the trial court assigned a public defender to represent Gerrard. However, Gerrard did not want to be represented by a public defender and refused to speak with appointed counsel about the case. One week before trial, Gerrard informed the court that he wanted to represent himself. The trial judge informed Gerrard of his right to counsel and the possible adverse consequences of his request, but told him that if he still wanted to terminate appointed counsel when the trial commenced, the request would be granted. The day before trial, Gerrard again insisted that he wanted to represent himself. The trial court granted the request, but required appointed counsel to stand by in case Gerrard asked for assistance at trial.

Gerrard, who is represented by new counsel on appeal, now argues that his appointed counsel was ineffective because he failed to subpoena witnesses who could have refuted that there was any damage to the truck and because he failed to secure transcripts of a motion hearing and a probable cause hearing. Gerrard also argues that the court should have appointed him new counsel when he expressed dissatisfaction with appointed counsel.

To establish ineffective assistance of counsel, Gerrard must demonstrate both that his trial counsel’s performance was deficient and that he was prejudiced to the extent that, but for the deficiencies, there is a reasonable probability that the trial outcome would have been different. We review a trial court’s finding of effective assistance under the clearly erroneous standard.

In this case, it is clear that counsel's performance was reasonable and that if Gerrard was deprived of effective assistance, it was only because he refused to communicate with his appointed counsel and chose to represent himself at trial. The record reflects that Gerrard had unreasonable expectations of counsel based upon his own misconceptions about criminal procedure. Gerrard was entitled to reasonably effective assistance, he was offered such assistance, and he rejected the offer. Gerrard may not now complain that he should get a new trial because the court failed to appoint new counsel of his own choosing.

Furthermore, to the extent that the decision not to subpoena certain witnesses can be attributed to appointed counsel rather than Gerrard, we must assume that such decisions were matters of trial strategy which we will not second-guess on appeal. In addition, the record is devoid of any evidence that the uncalled witnesses would have testified that there was no damage to the truck. Thus, Gerrard has not shown that he was harmed by counsel’s performance. As for the transcripts, the record belies Gerrard’s claim that counsel failed to obtain them. During a colloquy with the trial judge, Gerrard acknowledged receiving a copy of the motion hearing transcript and a tape recording of the probable cause hearing.

Decided August 22, 2001

Reconsideration denied December 4,2001

Fred R. White, for appellant.

Ronald Gerrard, Jr., pro se.

Richard R. Read, District Attorney, Dabney Y. Kentner, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Loveless v. State, 245 Ga. App. 555 (1) (538 SE2d 464) (2000).

       See OCGA § 17-7-70.1 (a) (1) (B) (Supp. 2001).

       (Punctuation omitted.) Bishop v. State, 268 Ga. 286, 288 (2) (486 SE2d 887) (1997).

       See Watson v. State, 181 Ga. App. 512, 513-514 (3) (352 SE2d 828) (1987); see also Jackson v. State, 236 Ga. App. 492, 495 (2) (512 SE2d 24) (1999).

       (Punctuation omitted.) Barber v. State, 236 Ga. App. 294, 295 (1) (512 SE2d 48) (1999).

        Salazar v. State, 245 Ga. App. 878, 879 (1) (539 SE2d 231) (2000).

       (Punctuation omitted.) Barber, supra at 295-296 (1).

       (Punctuation omitted.) Id. at 296 (1).

       Id. at 297.

        Hall v. State, 243 Ga. App. 804, 805 (534 SE2d 196) (2000).

       Id.

       See Daughtry v. State, 225 Ga. App. 45, 46 (2) (482 SE2d 532) (1997); Rivers v. State, 250 Ga. 303, 308 (6) (298 SE2d 1) (1982).

       It appears that Gerrard misconstrued legal authorities he read and faulted counsel for failing to obtain an affidavit that did not exist, for failing to immediately appeal an interlocutory order, and for failing to prevent the State from complying with the speedy trial demand he asked counsel to file.

       See id.

        Hall, supra at 806.


author: Ellington, Judge.

text:
    A01A1900.
    HAWTHORNE GRADING & HAULING v. RAMPLEY.
    (556 SE2d 912)
   Ellington, Judge.

Hawthorne Grading & Hauling appeals the trial court’s order granting summary judgment in favor of Mike Rampley d/b/a Rampley Development in this suit for payment on an oral contract. Finding no error, we affirm.

Summary judgment is appropriate “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001). We apply a de novo standard of appellate review and “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Id.

Viewed in the light most favorable to Hawthorne, the evidence showed the following: Hawthorne orally agreed to clear the rights-of-way for Phase III of Rampley’s Whispering Hills residential real estate development. Hawthorne began work in October or November 1998. Hawthorne stopped work in March 1999 without completing the project. On April 30, 1999, Hawthorne billed Rampley for clearing and burning 12 acres for a total of $26,400. On June 23, 1999, Hawthorne filed a materialman’s lien against Rampley’s property. On September 15, 1999, Rampley, through counsel, sent a letter to Hawthorne, stating that Hawthorne had cleared only about 4.5 acres and therefore payment of $10,000 represented “full payment of all sums owed to Hawthorne.” The letter stated he intended “to compromise” “a disputed matter.” Rampley enclosed a check for $10,000 marked “payment in full WH III.” Hawthorne endorsed the check “with reservations” and deposited it.

The trial court granted summary judgment based on an accord and satisfaction. Hawthorne contends there was no accord and satisfaction as a matter of law because there was no independent agreement to compromise the debt and because no bona fide dispute as to the amount due existed before Rampley tendered a partial payment. OCGA § 13-4-103 (b) provides:

Acceptance by a creditor of a check, draft, or money order marked “payment in full” or with language of equivalent condition, in an amount less than the total indebtedness, shall not constitute an accord and satisfaction unless: (1) A bona fide dispute or controversy exists as to the amount due; or (2) Such payment is made pursuant to an independent agreement between the creditor and debtor that such payment shall satisfy the debt.

See OCGA § 13-4-101.

Hawthorne argues that an accord and satisfaction defense under OCGA § 13-4-103 (b) (1) requires proof that the debtor communicated to the creditor that he disputed the amount owed before he tendered an amount less than the total due under the parties’ agreement. Hawthorne contends, therefore, the trial court erred in granting Rampley’s motion for summary judgment because Rampley first communicated that he disputed the amount Hawthorne claimed due contemporaneously with his tender of a lesser amount. We have described OCGA § 13-4-103 (b) as a codification of the following pronouncement in Sylvania Elec. Products v. Electrical Wholesalers, 198 Ga. 870 (33 SE2d 5) (1945):

In the absence of an independent agreement by a creditor, that the acceptance of an amount less than the indebtedness will be taken, or is taken, in full satisfaction thereof, the mere acceptance [by a creditor] of a check for a less sum than the amount of an unliquidated debt, remitted by the debtor with notice that it is in full satisfaction of the debt, will not amount to an accord and satisfaction unless there existed previously to the tender a bona fide dispute by the debtor as to the correctness of the amount of the debt.

Id. at 870, hn. 1. See Treadwell v. Treadwell, 218 Ga. App. 823, 826 (1) (463 SE2d 497) (1995); Lewis v. Alfred L. Simpson & Co., 183 Ga. App. 166 (1) (358 SE2d 262) (1987); Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga. App. 628, 630 (337 SE2d 410) (1985) (physical precedent only). In many subsequent opinions, we have reiterated the requirement that the dispute exist prior to the debtor’s tender of any amount less than that due under the agreement.

In this case, Rampley, the debtor, disputed the amount of the debt and notified Hawthorne, the creditor, of the dispute in a letter in which he offered a lesser amount in full satisfaction of all sums owed under the parties’ agreement. Hawthorne accepted the partial payment with actual knowledge that Rampley disputed the total amount due and tendered the payment in full satisfaction of the debt. We have found no authority requiring the denial of summary judgment under these circumstances merely because such a letter and the check tendering the final payment were delivered in the same envelope, and we decline to reach such an absurd result here. OCGA § 13-4-103 (b) does not provide a mechanism for a creditor, who understands that the debtor disputes the amount due, to accept a partial payment marked “payment in full” and later avoid the defense of accord and satisfaction. See OCGA § 13-4-101.

Because no question of fact remained regarding whether a bona fide dispute as to the amount due existed between the parties when Hawthorne accepted the payment from Rampley, the trial court correctly granted Rampleyk motion for summary judgment. Bridges v. Mann, 247 Ga. App. 730, 733 (2) (544 SE2d 755) (2001); Kendrick v. Kalmanson, 244 Ga. App. 363, 365-366 (1) (534 SE2d 884) (2000); Rabenstein v. Cannizzo, 244 Ga. App. 107, 109 (534 SE2d 847) (2000); Mitchell v. W. S. Badcock Corp., 230 Ga. App. 352, 356 (4) (496 SE2d 502) (1998); Habachy v. Ga. Health Group, 207 Ga. App. 288, 289 (427 SE2d 808) (1993); Hadson Gas Systems v. Atlanta Airlines &c., 200 Ga. App. 363, 364 (1) (408 SE2d 454) (1991); Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517, 518 (292 SE2d 100) (1982).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

Decided December 4, 2001

Anthony J. Morgese, for appellant.

Brock, Clay, Calhoun, Wilson & Rogers, Richard W. Calhoun, John K. Wells, for appellee.

       See Withington v. Valuation Group, 249 Ga. App. 8, 12 (547 SE2d 594) (2001); Kendrick v. Kalmanson, 244 Ga. App. 363, 365 (534 SE2d 884) (2000); Gouldstone v. Life Investors Ins. Co. &c., 236 Ga. App. 813, 818 (2) (514 SE2d 54) (1999); Quintanilla v. Rathur, 227 Ga. App. 788, 793 (3) (490 SE2d 471) (1997); Atlas Casing Co. v. Joyner, 192 Ga. App. 738, 741 (1) (386 SE2d 397) (1989).

       Cf. Withington, 249 Ga. App. at 12-13 (summary judgment inappropriate because evidence authorized finding that debtor’s dispute was not in good faith); Gouldstone, 236 Ga. App. at 819 (2) (summary judgment inappropriate because claim was not the subject of the alleged accord and satisfaction); Quintanilla, 227 Ga. App. at 793 (3) (summary judgment inappropriate because debtor did not dispute the amount owed); Treadwell, 218 Ga. App. at 826-827 (1) (a) (summary judgment inappropriate because debtor did not dispute the amount owed); Sunbelt Life Ins. Co., 176 Ga. App. at 631-632 (2) (summary judgment inappropriate because debtor did not communicate substance of dispute but merely included conditional language on check).


author: Barnes, Judge.

text:
    A01A0855.
    CONSECO FINANCE SERVICING CORPORATION v. HILL et al.
    (556 SE2d 468)
   Barnes, Judge.

After the grant of a discretionary appeal, Conseco Finance Servicing Corporation appeals several rulings by the trial court in favor of Johnson and Brenda Collins and Willie Hill concerning a default judgment entered against it for more than $1.28 million. As we find that the trial court erred for the reasons stated below, we must reverse.

After the Collinses and Hill became dissatisfied with a transaction involving the purchase of a mobile home, they filed this action against Allen Young Homes of Gray d/b/a All American Homes of Gray, David Wilhoit and Dino Flores (individually and as agents of Allen Young Homes), and Conseco, as successor in interest to Green Tree Financial Services Corporation, alleging violations of the Georgia Fair Business Practices Act (FBPA), the United States Bankruptcy Code, and the federal Truth in Lending Act. Although served with process, Conseco did not answer the complaint. The other defendants, however, answered the complaint.

Following a hearing on damages during which Johnson Collins testified, the trial court entered a default judgment of more than $1.28 million against Conseco. Collins’ entire testimony on damages follows:

Question by counsel: And did you find that over the — the amount of interest over the life of the loan was $106,834.80?
Answer by Collins: Right, yes, sir.
Question: And that you have — your attorneys have worked twenty hours on this and they told you it would be $150 an hour, is that right, $3,000?
Answer: That’s right.
Question: You are asking the Court to grant you triple damages for — triple actual damages under the Georgia Fair Business Act?
Answer: That’s right.
Question: In the amount of $320,504.40?
Answer: That’s right.
Question: And punitive damages you are asking to give you three times the actual damages of $961,513.20?
Answer: That’s right.
Question: And $3,000 attorneys fees?
Answer: That’s right.
Question: For a total of $1,285,017.60?
Answer: That’s right.
Question: And you — that is the damages you accrued under this deal — under this fraudulent deal here which is the allowance under the Georgia Fair Business Act.
Answer: Right, that’s it.

No other evidence on damages was presented at the hearing, the transcription of which totaled three pages. The trial court awarded treble damages of $320,504.40 (three times the interest over the life of the loan), punitive damages of $961,513.20 (three times the amount of treble damages), and attorney fees of $3,000.

After discovering the complaint was not answered, Conseco filed motions to set aside the judgment or in the alternative for new trial and to open the default. Conseco alleged the complaint was not answered because it had been forwarded to a local office that was being closed and the complaint was temporarily misplaced. The trial court denied the motions, but granted certificates of immediate review. Upon securing the default judgment, the plaintiffs attempted to dismiss the other defendants, prompting Conseco to move to dismiss or transfer on venue grounds, but the trial court held that the attempted dismissal was ineffective.

Conseco then filed an interlocutory appeal application challenging the denial of all three orders, a discretionary appeal application challenging the denial of its motion to set aside the judgment or in the alternative for new trial, and a notice of direct appeal.

1. As the case is still pending below against the other defendants and the trial court did not certify the judgment against Conseco as final under OCGA § 9-11-54 (b), Conseco correctly challenged the orders by interlocutory application. Scruggs v. Dept. of Human Resources, 261 Ga. 587 (1) (408 SE2d 103) (1991); Rogers v. Dept. of Human Resources, 195 Ga. App. 118 (392 SE2d 713) (1990); Daniell v. Heyn, 169 Ga. App. 772 (1) (315 SE2d 284) (1984).

2. Conseco contends the trial court erred by awarding damages because the facts admitted by its default do not support the elements required to sustain any cause of action against it, and because the evidence presented was insufficient to support an award of damages. Therefore, we first examine whether the complaint alleges a violation of the FBPA and a punitive damages claim and, if so, whether the plaintiffs presented evidence to support the damages awarded.

The Collinses’ complaint alleged that, in response to an advertisement by All American Homes of Gray stating that it could sell and finance mobile homes to anyone, including individuals like themselves who were in Chapter 13 bankruptcy proceedings, they visited All American Homes. The Collinses allege that they met with Wilhoit who suggested that they use a “straw man” or “buy for” to purchase the home on their behalf.

The Collinses asked plaintiff Hill to act on their behalf, and he entered into a contract to buy the mobile home. Wilhoit and his supervisor were aware of this arrangement, and the defendants told the Collinses that this arrangement was “legal.” The parties agreed that the payments on the home would be no more than $346.46, and by agreeing to this amount the defendants induced the plaintiffs to enter into the agreement. The Collinses were unaware that the interest rates and the monthly payments would increase in the future, and the defendants “intentionally removed from the copy of the contract” information about these increases. In addition to the necessary jurisdictional allegations, the complaint alleged that Conseco was “jointly and severally liable to the plaintiffs along with the other defendants” for the claims set forth in the complaint.

The complaint also alleged that Conseco purchased the Collinses’ loan from All American Homes knowing that the entire transaction was illegal and void. The Collinses became aware that Conseco had purchased the loan when they received notice that their monthly payments would increase to $430.86.

The complaint further alleges that the defendants “are jointly and severally liable to the plaintiffs for fraudulently inducing them to enter into an illegal contract, by knowingly making false and misleading representations, upon which plaintiffs relied, with the intention to deceive plaintiffs and causing damage to the plaintiffs.” Additionally, the complaint alleges that the defendants “have violated the provisions of the Georgia Fair Business Practices Act, the United States Bankruptcy Act, the federal Truth in Lending Act, and other statutes and laws all to the detriment of plaintiffs and for which plaintiffs have been damaged.”

The complaint concluded by praying that they “be awarded judgment against the defendants, in an amount to be determined by a jury [and] that they recover punitive damages and attorneys fees.”

(a) Under our law, “[a] defendant in default is in the position of having admitted each and every material allegation of the plaintiff’s petition except as to the amount of damages alleged. The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.” (Citation omitted.) Azarat Marketing Group v. Dept. of Admin. Affairs, 245 Ga. App. 256, 257 (1) (b) (537 SE2d 99) (2000). Although not apparent from the default judgment itself, the testimony at the hearing on the motion for default judgment makes clear that the judgment was entered solely under the FBPA and not for fraud or any of the other grounds alleged. This testimony also shows that the liability for any damages rests completely upon the allegations in the complaint, because the plaintiffs made no effort to connect any damages to any of the actions asserted in the complaint.

The FBPA provides that “[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful.” OCGA § 10-1-393 (a). The allegations in the complaint that the defendants fraudulently induced the Collinses to enter an illegal contract by knowingly making false representations and thus violating the Georgia FBPA, the United States Bankruptcy Code, the federal Truth in Lending Act, and other statutes do not establish violations of these acts. These allegations, standing alone, are legal conclusions and were therefore not admitted by Conseco’s default. Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46) (1981).

The complaint also alleges that the “defendants,” which can be construed to include Green Tree and its successor, Conseco, induced the plaintiffs to enter the illegal contract by telling them that the monthly payments would be no greater than $346.46, by failing to inform them of the “step interest rate,” by intentionally removing from their copy of the contract the page describing the “step interest rate,” and by advising them that the “buy for” arrangement was legal. These allegations in the complaint are sufficient to establish a violation of the FBPA.

Even though the plaintiffs were entitled to recover their actual damages for a violation of the FBPA (Regency Nissan v. Taylor, 194 Ga. App. 645 (391 SE2d 467) (1990)), they were also required to present evidence establishing those damages. See Agnevo v. Great A & P Tea Co., 232 Ga. App. 708, 710 (1) (502 SE2d 735) (1998). A review of the hearing transcript, however, shows that they failed to do so. Their attorney merely asked Johnson Collins whether the interest over the life of the loan was $106,834.80, which the trial court then tripled. Nothing in the testimony or the complaint shows why the amount of interest over the life of the loan would be the actual damages. For example, as the Collinses did not contend that the defendants represented to them that they would pay no interest on the loan, the total amount of interest on the loan, without adjustment, cannot be the actual damages in this case. Accordingly, we must reverse the trial court’s judgment awarding $320,504.40 in compensatory damages.

(b) We next consider the punitive damages award.

(i) The FBPA provides that a claimant is entitled to recover “general and exemplary damages sustained as a consequence” of a violation of the Act. OCGA § 10-1-399 (a). It also provides that, subject to certain exceptions, “a court shall award three times actual damages for an intentional violation.” OCGA § 10-1-399 (c). In Colonial Lincoln-Mercury Sales v. Molina, 152 Ga. App. 379, 382 (7) (262 SE2d 820) (1979), this court ruled that by the plain terms of the statute, “if an intentional violation is found, then treble damages are mandatory and exemplary damages are permissible.” See, e.g., Miles Rich Chrysler-Plymouth v. Mass, 201 Ga. App. 693, 699 (411 SE2d 901) (1991). By default, Conseco admitted the plaintiffs’ allegation that it intentionally removed from the plaintiffs’ copy of the contract the page describing the “step interest rate,” an intentional violation of the FBPA. Therefore, the trial court was authorized to award punitive damages, but not required to award three times the compensatory damages, or any amount at all.

(ii) The allegation that the trial court committed legal error by awarding punitive damages in addition to exemplary damages of three times the compensatory damages for the same conduct is without merit. The FBPA authorizes punitive damages in addition to mandating treble, damages for intentional violations. Colonial Lincoln-Mercury Sales v. Molina, supra, 152 Ga. App. at 382.

(iii‘) Conseco further contends, however, that the trial court erred by awarding punitive damages because it failed to make the findings required by the punitive damages statute, OCGA § 51-12-5.1 (d) (1). We agree.

In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings. Pretermitting the question of whether appellee [s’] allegation in the body of [their] complaint satisfies the statute’s requirement that punitive damages be “specifically prayed for,” the judgment reveals on its face that the trier of fact failed ... to make a specific finding that punitive damages were awardable here ... in accordance with the mandate of OCGA § 51-12-5.1 (d) (2).

(Citation and punctuation omitted.) Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656 (3) (402 SE2d 753) (1991). We conclude that this defect violated OCGA § 51-12-5.1 (d). As the transcript and record demonstrate that the trial court failed to follow the procedures required by OCGA § 51-12-5.1, the award of punitive damages cannot stand for this reason.

(c) Conseco also contends the evidence introduced at the hearing on damages did not sustain an award of attorney fees. We agree. Neither the allegations of the complaint nor the client’s testimony that the attorneys worked 20 hours and that they told him that they worked for $150 an hour constitutes appropriate evidence of the amount or the reasonableness of the fees to sustain the award of attorney fees. Moreover, as we have reversed the trial court’s judgment, an award of attorney fees at this time would be premature.

3. Conseco further contends the trial court violated basic notions of due process by failing to require and insure that notice of the bench trial be provided to all defendants and committed errors of law in failing to set aside the judgment based upon a failure to give notice of the hearing. “It is well settled that the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial, and all service in the action.” (Citation and punctuation omitted.) T.A.I. Computer v. CLN Enterprises, 237 Ga. App. 646, 649 (3) (516 SE2d 340) (1999). Additionally, “OCGA § 9-11-5 (a) specifically provides that ‘the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial.’ ” Chrysler Credit Corp. v. Brown, supra, 198 Ga. App. at 654 (1). Also, to the extent Conseco claims error because of the failure to provide notice to the other defendants who filed responsive pleadings, Conseco lacks standing to assert this claim because it has not shown how any failure to give notice to co-defendants affected its rights. Hodges v. Grange Mut. Ins. Co., 227 Ga. App. 897, 898 (490 SE2d 213) (1997) (physical precedent); Stonica v. State Farm Fire &c. Co., 198 Ga. App. 717 (402 SE2d 553) (1991). Under the circumstances, we find no error under either reason asserted by Conseco.

4. Conseco further contends the trial court erred by entering judgment because of the mandatory arbitration clause in the contract upon which this action is based. “An arbitration clause of a contract may be repudiated, waived, or abandoned, by either or both parties to a contract. [Cit.] An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration. [Cits.]” McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 12-13 (345 SE2d 53) (1986). By failing to answer the complaint, Conseco waived this defense. Azarat Marketing Group. v. Dept. of Admin. Affairs, supra, 245 Ga. App. at 257.

5. Conseco’s other claims regarding the denial of its motion to set aside or for new trial lack merit. By failing to answer, Conseco waived its defense that the plaintiffs did not give the notice required by OCGA § 10-1-399 (b) of the FBPA. Azarat Marketing Group v. Dept. of Admin. Affairs, supra, 245 Ga. App. at 257. Although Conseco contends that it was not liable under the Truth in Lending Act because a violation was not apparent on its face, the judgment was entered under the FBPA, not the Truth in Lending Act or the Bankruptcy Code, or any other laws generally alleged in the complaint.

6. Conseco’s contention that the trial court erred by denying its motion to transfer the case because of lack of venue is also without merit. Conseco argues that the trial court should have transferred the case once the plaintiffs dismissed the other defendants. Conseco acknowledges, however, that the trial court found the dismissals were ineffective. Therefore, the other defendants, upon whom venue was predicated, are still parties to the action, and there is no reason to transfer or dismiss the action at this time.

7. Conseco’s allegation that the trial court erred by failing to exercise its discretion and open the default is without merit. The record shows that the motion to open the default was not filed until after final judgment was entered in this case. Under those circumstances, the procedures of OCGA § 9-11-55 (b) were inapplicable, and OCGA § 9-11-60 (d) applies. Marsh v. Way, 255 Ga. 284, 285 (2) (336 SE2d 795) (1985). Further, Conseco does not argue on appeal that it is otherwise entitled to have the trial court exercise its inherent authority to set aside or modify a judgment within the same term of court in which the judgment was rendered. See Piggly Wiggly Southern v. McCook, 216 Ga. App. 335 (454 SE2d 203) (1995).

Additionally, our decision in this case

invalidates the final judgment and returns this case to the posture it occupied before final judgment was entered, i.e., in default as to liability. We must consequently address appellant’s contention that the trial court erred by denying its motion to open the default. Generally, whether the trial court opens a default is a matter resting within its sound discretion, but under OCGA § 9-11-55 (b) the movant must show, inter alia, some legal excuse for failing to answer. In order for this court to intervene in this proceeding, we must find as a matter of law that there is nothing less than reasonable evidence of excusable neglect on the part of [Conseco] and that perforce the trial court acted arbitrarily and abused its discretion. As the record shows that [Conseco] failed to demonstrate any semblance of a legal excuse for failing to answer, but showed at best only that its failure was inadvertent rather than willful, the trial court did not abuse its discretion by failing to grant [Conseco’s] motion to open the default.

Decided November 8, 2001

Reconsideration denied December 5,2001.

Kenney & Solomon, Thomas S. Kenney, Robert J. Solomon, for appellant.

Fowler & Wills, Samuel A. Fowler, Jr., Joseph H. Briley, F. Robert Raley, for appellees.

(Citations and punctuation omitted.) Chrysler Credit Corp. v. Brown, supra, 198 Ga. App. at 657 (4).

Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court.

Judgment reversed and case remanded.

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


author: Blackburn, Chief Judge.

text:
    A01A1810.
    RILEY v. THE STATE.
    (556 SE2d 917)
   Blackburn, Chief Judge.

Following a jury trial, Kinte Riley appeals his conviction for burglary, contending that: (1) the trial court erred by conducting the trial in his absence; (2) the evidence was insufficient to support the verdict; and (3) the trial court erred by refusing his request to instruct the jury on the lesser included offense of criminal trespass. For the reasons set forth below, we reverse.

1. Riley contends, and the State concedes, that the trial court violated his Sixth Amendment right to confrontation of witnesses by conducting the trial in his absence. We agree.

The record shows that, on the morning of November 4, 1999, Riley’s case was called for trial, and the attorneys argued certain motions before the trial court. Riley was present in the courtroom at this time. Following the motions, the trial court recessed for lunch, and, after this break, Riley did not return to the courtroom. Then, the attorneys for the defendant and the State announced that they were ready for trial. Voir dire was conducted, and a jury was chosen and seated. At that point, the trial court noted:

Very well. A couple of matters I wanted to put on the record before we proceed further. It is now 2:35. When the court recessed for lunch at 5 minutes after 12:00,1 recessed until 1:15. . . . The defendant, Kinte Riley, also known as Kinte Mayes, has not returned. It is now an hour and 20 minutes beyond the time that he was ordered to return.

After indicating that he could not locate the defendant, Riley’s trial counsel stated: “I’d just like to note also, your honor, in my brief research, I cannot waive his presence because he has a constitutional right and, therefore, he has to waive his constitutional rights.” The trial court then revoked Riley’s bond, issued a bench warrant for his arrest, found that Riley had waived his Sixth Amendment rights, and decided to proceed in his absence. Subsequently, the jury was sworn, and the trial was conducted.

Contrary to the trial court’s finding, however, a defendant does not waive his Sixth Amendment rights by voluntarily absenting himself prior to the attachment of jeopardy during his trial.

[F]or Sixth Amendment waiver purposes, trial begins when jeopardy attaches, and thereafter a defendant can waive his constitutional right of confrontation by voluntarily absenting himself from the proceedings. The record in the present case clearly shows that the jury had not been impaneled and sworn before defendant’s disappearance, so jeopardy had not attached and the trial had not begun. In the absence of jeopardy attaching, the waiver principles are inapplicable, and we must conclude that appellant is entitled to a new trial since his Sixth Amendment right to confrontation was violated by trial proceeding in his absence.

Pollard v. State. See also Loper v. State; Deal v. State.

Here, as in Pollard, supra, the defendant voluntarily absented himself from the proceedings before jeopardy attached. As such, we find that Riley’s conviction must be reversed and he is entitled to a new trial. Id.

2. Riley contends that the evidence was insufficient to support the verdict against him.

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

Kovacs v. State. See Jackson v. Virginia.

Viewing the evidence in this light, the record shows that, on November 3, 1998, Artie Miller observed Riley and Raymond Logan knock on the door of the home of his neighbor, Chauman Edwards. When no one answered the door, Riley and Logan left, walked past Miller’s house, and entered Logan’s house which was located just up the street from Miller. A few minutes later, Miller saw Riley and Logan walk out of his view around the side of Edwards’ house, and when they emerged from the same side of the house and returned to the street, they were carrying a pair of hedge clippers and a VCR. Miller testified that he did not see Riley and Logan actually entering Edwards’ home. Miller then witnessed Riley and Logan go back to Logan’s house.

Shortly after witnessing the incident, Miller called the police. Officer Sonya Hill responded to the call and discovered that the side door of Edwards’ house had been kicked in and portions of the interior had been ransacked. Hill, with the assistance of other officers, then apprehended Riley and Logan at Logan’s house, and Miller positively identified the suspects at the scene.

Edwards testified that, during the break-in, a pair of hedge clippers was taken from his den and a VCR was taken from his bedroom. Although the house was dusted for fingerprints, none were discovered. And, because the arresting officers did not have a search warrant at the time that Riley and Logan were apprehended, the house in which they were arrested was not searched and the items stolen from Edwards’ home were never recovered.

This evidence was sufficient to support Riley’s conviction. Although based partially on circumstantial evidence that Riley actually entered the burglarized home, the direct evidence that Riley was seen approaching the house and then leaving with the same type of property that was stolen renders such circumstantial evidence inconsistent with Riley’s innocence. In the Interest of G.P.

3. Riley contends that the trial court erred by refusing his written request to charge the jury on the lesser included offense of criminal trespass. However,

where the defendant has denied entering the burglarized premises, we have held that trespass instructions are not appropriate. . . . [T]he jury [has] the choice either to convict the defendant of burglary if it believed the State’s evidence or to acquit the defendant if the State did not meet its burden; however, the jury [will] not be permitted the compromise choice of disbelieving the defendant and returning a verdict of guilty on the lesser offense of criminal trespass, differing from burglary only in criminal intent.

Decided December 5, 2001.

Demetria N. Williams, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

(Punctuation omitted.) Underwood v. State.

Judgment reversed.

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

        Pollard v. State, 175 Ga. App. 269, 270 (333 SE2d 152) (1985).

        Loper v. State, 191 Ga. App. 515 (382 SE2d 212) (1989).

        Deal v. State, 213 Ga. App. 131 (443 SE2d 713) (1994).

        Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997).

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

        In the Interest of G. P., 242 Ga. App. 745, 746 (531 SE2d 162) (2000).

        Underwood v. State, 221 Ga. App. 93, 95-96 (3) (470 SE2d 699) (1996).


author: Phipps, Judge.

text:
    A02A0042.
    BOWDEN v. THE STATE.
    (556 SE2d 919)
   Phipps, Judge.

Ernest Bowden appeals his convictions of aggravated assault and battery and the denial of his motion for new trial on evidentiary grounds. He challenges the sufficiency of the evidence to support his convictions. Finding the evidence sufficient, we affirm.

The victim was Diane Smith, Bowden’s common law wife. The evidence showed that during a domestic dispute while both parties were drinking, Bowden burned Smith with an iron and battered her with his hands and fists. Bowden argues that the evidence was insufficient to support his aggravated assault conviction, because Smith testified at trial that she was burned by the iron accidentally after she had lunged at him with it. Nonetheless, pretrial statements Smith made to her daughter and to police authorized the jury to find that Bowden intentionally burned Smith with the iron after pushing her onto the floor. In an affidavit in support of Bowden’s motion for new trial, Smith claimed, somewhat inconsistently with her trial testimony, that she fell on the iron after Bowden pushed her.

Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. Because there is competent evidence supporting each fact necessary to make out the State’s case, the jury’s verdict must be upheld. The evidence supports both convictions, and the trial court did not err in denying Bowden’s motion for new trial.

Decided December 5, 2001.

Hurl R. Taylor, Jr., for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Id.

        Peek v. State, 247 Ga. App. 364, 365 (1) (542 SE2d 517) (2000).


text:
    A02A0052.
    PROFESSIONAL STANDARDS COMMISSION v. DENHAM.
    (556 SE2d 920)
   Phipps, Judge.

Mary Denham is a public school teacher. The Professional Standards Commission (PSC) is responsible for adoption and enforcement of performance standards and a code of ethics for educators in Georgia. The PSC suspended Denham’s teaching certificate for six months because she violated the code of ethics it adopted. On appeal by Denham under the Administrative Procedure Act (APA), the Superior Court of Turner County reversed the suspension and instead directed that Denham be reprimanded. We granted the PSC’s application for discretionary appeal. Because we conclude that the superior court exceeded its authority under the APA, we reverse.

Denham had been a teacher for over 25 years. During the 1998-1999 school year, she was employed as a kindergarten teacher at Turner County Elementary School. After administering a standardized test known as the Iowa Test of Basic Skills (ITBS) to her students, Denham told a paraprofessional with whom she worked that she was going to do something she had never done before, that is: change some of the answers on a child’s test from correct to incorrect. After the paraprofessional reported the matter to the elementary school principal, Denham admitted her actions to the principal. The school board issued a written reprimand to Denham and barred her from administering the ITBS.

The PSC referred the matter to the Office of State Administrative Hearings with a recommendation that Denham’s teaching certificate be suspended for six months. Following a hearing, a special assistant administrative law judge (ALJ) rendered an initial decision adopting the PSC’s recommendation. The findings of the ALJ show that Denham changed the test answers, not out of any desire to harm the child, but rather because the test was designed to establish entitlement to entry into a program for gifted children and Denham thought the child had simply guessed all of the answers correctly and was not in fact gifted. The ALJ also recognized that Denham had an otherwise exemplary teaching record, that she enjoyed support in the community, that the local school superintendent felt that Denham’s absence from the school for six months would be detrimental to the school system, and that such suspension would create a financial hardship for Denham. Nonetheless, the ALJ adopted the PSC’s recommendation, after concluding that the PSC had carried its burden of showing that Denham had violated PSC ethical rules and that the PSC has the legal authority to suspend her teaching certificate for such rules violations. The ALJ’s initial decision was adopted by and made the final decision of the PSC.

On appeal, the superior court concluded that the PSC had “acted in an arbitrary and capricious manner or used a clearly unwarranted exercise of discretion.” The superior court’s order was based primarily on findings that Denham had been a valued member of the educational community for over 25 years with an unblemished record before this infraction and that the PSC had failed to consider the impact of its decision on the school system and its students.

The superior court reversed the PSC’s decision under the authority of the section of the APA codified at OCGA § 50-13-19 (h) (6). This provision authorizes a court to reverse or modify a decision of an administrative agency “if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: . . . [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” If arbitrary and capricious action is alleged, the superior court must determine whether a rational basis exists for the decision.

Contrary to findings by the superior court, the record in this case shows that the PSC did take into consideration Denham’s otherwise spotless teaching record and the impact of her suspension on operation of the local school system. The PSC nonetheless determined that the state’s interest in ensuring the integrity of standardized test results outweighed these other considerations, so that temporary suspension of Denham’s teaching certificate was the appropriate sanction for her misconduct. Because the PSC’s decision has a rational basis, the superior court exceeded its authority in overturning it.

Decided December 5, 2001.

Thurbert E. Baker, Attorney General, Langley & Lee, William W. Calhoun, Christina L. Folsom, for appellant.

Benson & Phillips, Melinda B. Phillips, for appellee.

Judgment reversed.

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

       OCGA § 20-2-982 (5).

        Sawyer v. Reheis, 213 Ga. App. 727, 729 (2) (445 SE2d 837) (1994).


text:
    A02A0238.
    SOLOMAN v. THE STATE.
    (556 SE2d 914)
   Phipps, Judge.

At a bench trial, Naquonn Soloman was convicted of trafficking in cocaine, possession of a firearm during the commission of a crime, operating a vehicle with an improper tag, and other offenses. His motion for new trial was denied, and he appeals. He contends that the trial court erred in denying his motion to suppress evidence, and he charges his trial lawyer with constitutionally ineffective assistance. We do not find error in the denial of Soloman’s motion to suppress or deficient performance by counsel. We, therefore, affirm.

The evidence showed that at approximately 1:00 a.m. Officer Amanda McGruder was investigating suspicious activity in a high crime area in Savannah, when she observed Soloman driving a Camaro with an expired tag. After concluding her investigation of the suspicious activity, McGruder continued to patrol the area and saw the Camaro stopped in a roadway. As McGruder drove her police cruiser in the Camaro’s direction, Soloman moved the Camaro onto the side of the road, opened the car door, and exited the vehicle. As the Camaro door opened the interior light came on, and from the seat of her patrol vehicle, McGruder observed an open glass bottle in a paper bag on the console of the Camaro. To investigate, Officers McGruder and Fann (who had suddenly appeared on the scene) then converged on the Camaro and exited their vehicles. McGruder testified that as she approached Soloman, who was standing next to the Camaro, she smelled a strong odor of burnt marijuana in the area. As she got closer to Soloman, McGruder could detect the odor of marijuana emanating from him. When McGruder asked Soloman about the marijuana odor, he claimed not to know what she was talking about. She then handcuffed him and looked inside the windows of the Camaro with a flashlight. She observed a large revolver on the driver’s seat and a large wine bottle on the console. After placing Soloman in her patrol car, McGruder conducted a further search of the Camaro and found over 30 grams of cocaine.

1. The court did not err in denying Soloman’s motion to suppress.

“At least three types of police-citizen encounters exist: verbal communications that involve no coercion or detention; brief ‘stops’ or ‘seizures’ that must be accompanied by a reasonable suspicion; and ‘arrests,’ which can be supported only by probable cause. [Cit.]” “While an officer may simply approach a stopped vehicle and inquire as to what is going on without initiating a ‘stop’ or ‘seizure,’ [cit.], the inquiry may become a stop or seizure if the officer restrains the citizen’s movement by physical force, command, or show of authority. [Cits.]” Assuming that the officers’ approach to Soloman’s car constituted a stop or seizure, they were authorized to do so to investigate the expired tag on the Camaro and the open container in the car. Detection of the odor of burnt marijuana in the vicinity of the car provided probable cause for its search.

2. Soloman contends that his trial lawyer rendered constitutionally ineffective assistance by encouraging him to waive his right to a jury trial because of counsel’s own pecuniary interest, by unilaterally deciding that Soloman should not testify, and by being poorly prepared to argue the motion to suppress and try the case.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Cits.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.]

“[C]ounsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment.” “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous. [Cit.]”

At the hearing on Soloman’s motion for new trial, counsel testified that he advised Soloman to waive his right to a jury trial and to elect a bench trial because Soloman’s application for bail bond had been denied, a bench trial could be scheduled sooner than a jury trial, and counsel felt that Soloman’s best and quickest hope for getting out of jail was through a favorable ruling on his motion to suppress either by the trial court or, more probably, by the appellate court. Counsel further testified that he advised Soloman that if he wanted a jury trial, he must either pay counsel more than the $650 he was then being charged or obtain the services of a court-appointed lawyer. Counsel testified that, based on this advice, Soloman decided to proceed with a bench trial rather than a jury trial. The trial court was authorized to find that counsel advised Soloman to opt for a bench trial in the exercise of reasonable professional judgment and not because of counsel’s own financial interest.

Although Soloman charges counsel with deficient performance for waiving his right to testify without consulting with him, counsel testified that he advised Soloman against testifying because his testimony was not needed and the State could have used his prior criminal record to impeach him. Soloman’s claim that counsel did not advise him of his right to testify is contradicted by a written waiver of trial by jury signed by Soloman and appearing in the record. On the waiver form, Soloman acknowledged that counsel had advised him of his rights and answered all his questions. The trial court’s determination that counsel was not ineffective in failing to inform Soloman of his right to testify is not clearly erroneous.

Although Soloman generally complains of counsel’s lack of preparation to argue the motion to suppress and try the case, he has made no showing of how any omission by counsel prejudiced his case.

3. Soloman also challenges the sufficiency of the evidence, but this challenge is premised on the assertion that his motion to suppress should have been granted. As the motion to suppress was properly denied, Soloman’s evidentiary challenge is without merit.

Decided December 5, 2001

Martin G. Hilliard, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        In the Interest of M. J. H., 239 Ga. App. 894, 895 (522 SE2d 491) (1999).

       Id.

       See Smith v. State, 240 Ga. App. 150, 151 (1) (522 SE2d 744) (1999) (expired tag); Wynn v. State, 236 Ga. App. 98, 100 (2) (511 SE2d 201) (1999) (open container).

         See State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999).

        Chapman v. State, 273 Ga. 348, 349-350 (2) (541 SE2d 634) (2001).

        Brogdon v. State of Ga., 255 Ga. 64, 68 (3) (335 SE2d 383) (1985).

        Chapman v. State, supra at 350 (2).

       See generally Van Alstine v. State, 263 Ga. 1, 2 (426 SE2d 360) (1993) (whether to testify in his own behalf is a decision to be made by the accused after full consultation with counsel).

       Apparently for the first time on appeal, Soloman also suggests that counsel was ineffective in not presenting the testimony of Officer Fann at trial. Although this claim of ineffective assistance presents nothing for review, because it does not appear that it was raised below, we note that according to Soloman, Fann testified at the preliminary hearing in this case without mentioning anything about smelling the odor of marijuana at the time of Soloman’s arrest. There is, however, nothing in the record showing that Fann so testified.


author: Eldridge, Judge.

text:
    A01A2103.
    WINTER v. THE STATE.
    (557 SE2d 436)
   Eldridge, Judge.

A McDuffie County jury convicted Charles Edward Winter of child molestation (Count 1) and sexual exploitation of a child (Counts 2-4). Counts 3 and 4 alleged sexual exploitation of a child by unlawfully creating and reproducing a photograph of a minor depicting sexually explicit conduct and by bringing or causing such material to be brought into the State of Georgia, respectively. He was sentenced as a recidivist to life imprisonment as to Count 1, to ten years confinement consecutive to Count 1 as to Count 2, and to ten years confinement as to Counts 3 and 4, respectively.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that the defendant molested his underage stepdaughter as alleged by exposing his penis to her, by masturbating in her presence, by having her place her hand on his penis, or by fondling her vagina and breast (Count 1). Other evidence showed that the defendant sexually exploited his stepdaughter by causing her to engage in sexually explicit conduct for the purpose of photographing her (Count 2); that the defendant sexually exploited minor children by thus photographing his stepdaughter and by downloading photographic images from video diskettes of other minor children engaged in similarly explicit conduct (Count 3); and that the defendant sexually exploited minor children by bringing their images as engaged in sexually explicit conduct to this State over the Internet (Count 4).

1. The defendant asserts that the superior court erred by entering in evidence his prior conviction in Kentucky because the State failed to show that the conviction was admissible under Kentucky law. While by his brief on appeal the defendant contends that he objected on this basis below, we find no such objection in the record before us. “It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial.” (Citations and punctuation omitted.) Carradine v. State, 234 Ga. App. 330, 331 (506 SE2d 688) (1998). In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground. See Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991). Accordingly, this issue has not been preserved for appellate review.

2. The superior court’s admission into evidence of certain video diskettes and illicit pictures downloaded from the Internet was not error due to a break in the chain of custody.

To show a chain of custody adequate to preserve the identity of fungible evidence, the State has the burden of proving with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not foreclose every possibility of tampering, however, and need only show “reasonable assurance” of the identity of the evidence.

Stone v. State, 229 Ga. App. 367, 369 (1) (a) (494 SE2d 48) (1997). Moreover, in the event no showing of tampering has been made and only a bare speculation of possible tampering exists, the chain of custody is not broken and the evidence is admissible, with any doubts going to its weight. Buffington v. State, 190 Ga. App. 365, 366 (3) (378 SE2d 884) (1989), overruled on other grounds, Green v. State, 260 Ga. 625, 626 (1) (398 SE2d 360) (1990). Accord Slade v. State, 222 Ga. App. 407, 408 (1) (474 SE2d 204) (1996). Here, as in Buffington and Slade, no showing was made of tampering or substitution. At most, only a bare speculation of tampering existed, and the evidence therefore was properly admitted.

3. The defendant contends that the superior court erred in denying his request for a Jaekson-Denno hearing as to his confession to the State’s similar transaction evidence, a Kentucky judgment of conviction entered upon his guilty plea to sexual abuse of a minor.

The admissibility of similar transaction evidence is contingent upon three affirmative showings.

First, the State must demonstrate that the evidence is not brought forth to raise an improper reference to character but, rather, for an appropriate purpose deemed an exception to the general rule prohibiting this type of evidence; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 [, 642 (2)] (409 SE2d 649) (1991).

Huff v. State, 248 Ga. App. 233 (546 SE2d 24) (2001). It is undisputed that the State sought to introduce the defendant’s Kentucky conviction for a proper purpose, i.e., course of conduct and bent of mind, and that such conviction tended to prove the instant charges on the basis of similarity. Inasmuch as the defendant does not challenge his Kentucky conviction as not regularly entered upon his plea of guilty, we presume that such plea was informed, voluntary, and made upon an articulated waiver of the three rights under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). See Nash v. State, 271 Ga. 281, 284 (519 SE2d 893) (1999) (all proceedings in Georgia courts presumed regular and legal). In light of the foregoing, the superior court properly denied the defendant’s request for a further determination of the voluntariness of his confession as to his Kentucky conviction as waived, and his status as the perpetrator of the independent Kentucky offense was established by admission indicating that he there had his minor stepdaughter masturbate him four to five times in 1994 to early 1995, immediately before the family moved to Georgia. “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. [Cit.]” Boykin v. Alabama, supra at 242. The State having met its evidentiary burden under Williams, the superior court properly admitted the defendant’s Kentucky conviction as similar transaction evidence.

4. “[Ejvidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt. [Cits.]” (Punctuation omitted.) Donaldson v. State, 244 Ga. App. 89, 90 (1) (534 SE2d 839) (2000). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Further, to support a verdict, circumstantial evidence need only exclude reasonable hypotheses, not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987); Tweedell v. State, 248 Ga. App. 187, 189 (546 SE2d 306) (2001). Whether circumstances were sufficient in this case to exclude every reasonable hypothesis except that of the defendant’s guilt was a question for the jury. Brown v. State, 245 Ga. App. 706, 709 (1) (538 SE2d 788) (2000). This Court determines the sufficiency of the evidence and does not weigh the credibility of the witnesses. Grant v. State, 239 Ga. App. 608 (521 SE2d 654) (1999). We find this evidence sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided December 6, 2001.

Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

Judgment affirmed.

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

       “A person, commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4(a).

       “It is unlawful for any person knowingly to possess or control any material which depicts a minor engaged in sexually explicit conduct.” OCGA § 16-12-100 (b) (8).

       The defendant objected to the admissibility of the Kentucky conviction in the context of similar transaction evidence alone.


text:
    A01A2132.
    CORNISH v. BYRD WELDING SERVICE, INC.
    (557 SE2d 432)
   Eldridge, Judge.

Appellee-defendant Byrd Welding Service, Inc. manufactured metal stairs installed on the premises of ADCHEM, Inc., a chemical plant located in Kennesaw, as a means of reaching a second-floor storage platform. ADCHEM employee, appellant-plaintiff Thomas Cornish slipped and fell on the stairs while bringing supplies from the platform to ground level for a production chemical batch, suffering spinal injuries to his neck. Cornish brought the instant action for damages, as amended, against Byrd Welding, averring that the stairs had been defectively designed and manufactured in that they rose vertically in excess of 12 feet from the floor at ground level to the storage platform above. Cornish filed his motion for new trial upon the jury’s verdict for Byrd Welding and the state court’s judgment entered thereon, arguing that the state court erred in charging the jury it could consider the open and obvious danger of the product stairs as an additional factor pertinent to risk-utility analysis in determining liability for design defect. Cornish contended that open and obvious danger as a defense to strict liability improperly shifted the burden of proof to the plaintiff. On appeal, Cornish seeks reversal of the state court’s judgment for Byrd Welding, renewing his argument below. Finding no merit therein, we affirm.

Decided December 6, 2001.

Hertz, Link & Smith, Eric J. Hertz, Mark D. Link, Houston D. Smith III, for appellant.

Cornish correctly points out that the pattern risk-utility jury charge does not explicitly set out the open and obvious nature of the danger of a product as a risk-utility factor. Suggested Pattern Jury Instructions, Vol. I: Civil Cases (3rd ed. rev. 1999), pp. 258a-258b. However, it does not follow that a charge explicitly doing so impermissibly shifts the burden of proof to the plaintiff as Cornish urges it does. An instruction authorizing a jury to consider open and obvious danger in a product as one among many risk-utility factors in a design defect case, as here, is not the functional equivalent of an instruction as to the open and obvious danger rule, a rule no longer proper in design defect cases “whether brought in strict liability or in negligence. 5 Harper, James & Gray, [The Law of Torts,] § 28.5, p. 73 (Supp. 1998).” Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443, 446 (500 SE2d 570) (1998). Neither can the instant instruction making explicit what is implicit in the law be deemed to make less accurate that which otherwise accurately states the law of the case. See Harris v. State, 141 Ga. App. 213, 215 (3) (233 SE2d 21) (1977) (charge making explicit that which is implicit in a statute is proper). “[T]he risk-utility factors which were explicitly mentioned in Banks [v. ICI Americas, 264 Ga. 732, 736-737 (1), n. 6 (450 SE2d 671) (1994), and restated by the instant pattern jury charge, see Suggested Pattern Jury Instructions, supra,] encompass the degree to which the danger in the product is open and obvious.” Ogletree v. Navistar Intl. Transp. Corp., supra at 444. In light of the foregoing, we conclude that no error obtained upon the complained-of charge as given by the state court.

Judgment affirmed.

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

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, for appellee.

       “Under the obvious danger rule, the patent absence of a safety device is dispositive and the manufacturer will not be liable for damages based on a consumer’s injury which allegedly would not have occurred had such device been present.” Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443, 444 (500 SE2d 570) (1998).

       “The open and obvious nature of the danger in a product is logically only one of many factors which affect the product’s risk and, therefore, making that single factor dispositive is not consistent with this Court’s mandate in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994), that the product’s risk must be weighed against its utility. Raymond v. Amada Co.[, 925 FSupp. 1572, 1577 (II) (B) (1) (N.D. Ga. 1996)].” Id. at 445.


text:
    A01A2152.
    GRANT v. FAIRCLOTH et al.
    (556 SE2d 928)
   Eldridge, Judge.

Gordon Grant brought a tort action against Timothy Faircloth, Jr. for negligently running into him with a golf cart on September 29, 1997, while acting within the scope of his employment with Georgia Southern University; the Board of Regents; and John Does 1-5. The defendants, after service, answered and moved for dismissal for lack of subject matter jurisdiction in this action under the Georgia Tort Claims Act, OCGA § 50-21-26 (a) (3). The trial court granted the motion, and we affirm.

Plaintiff sued Faircloth and other unknown individuals who were acting in the scope of their employment for the State when the alleged unintentional tort occurred. Sovereign immunity of the State is waived only in strict compliance with the Act. Kim v. Dept. of Transp., 235 Ga. App. 480, 481-482 (2) (510 SE2d 50) (1998); McGee v. State of Ga., 227 Ga. App. 107, 108-109 (1) (487 SE2d 671) (1997); Howard v. State of Ga., 226 Ga. App. 543, 544-545 (1) (487 SE2d 112) (1997). The Act expressly prohibits suits against State employees absent a showing of malice. OCGA § 50-21-25 (a); Merrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996). Under the Act, Fair-cloth and any other employees are immune from tort liability. Ga. Const, of 1983, Art. I, Sec. Ií, Par. IX (d); OCGA § 50-21-25 (a); Riddle v. Ashe, 269 Ga. 65, 66 (1) (495 SE2d 287) (1998).

While the State employee or agent cannot be sued, the State, its agencies, and authorities can be liable under a limited waiver of sovereign immunity when the conditions precedent to waiver under the Act have been satisfied. See OCGA §§ 50-21-23; 50-21-24; 50-21-26; Riddle v. Ashe, supra at 67.

However, in this case, plaintiff failed to give the ante litem notice to the Risk Management Division of the Department of Administrative Services with a copy sent to the Board of Regents within 12 months of the occurrence as mandated by OCGA § 50-21-26 (a), which bars this action unless the plaintiff is a minor. Howard v. State of Ga., supra at 545-546 (2); Howard v. Miller, 222 Ga. App. 868, 871 (1) (476 SE2d 636) (1996). Substantial compliance with the ante litem notice requirement is inadequate under the Act. McGee v. State of Ga., supra at 108-109 (1); Howard v. State of Ga., supra at 544-545 (1). The complaint did not have attached to it a copy of such ante litem notice showing compliance as required by OCGA § 50-21-26 (a) (4). The Act prevents the trial court from acquiring subject matter jurisdiction in cases coming within the ambit of the Act where there has been no ante litem notice. OCGA § 50-21-26 (a) (3); Kim v. Dept. of Transp., supra at 482 (2); Howard v. State of Ga., supra at 544-545.

Decided December 6, 2001.

Steven E. Scheer, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, David B. Fife, Assistant Attorney General, for appellees.

Judgment affirmed.

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