text:
    A00A0896.
    GRESHAM v. BELL’S FOOD MARKET, INC.
    (534 SE2d 537)
   Phipps, Judge.

While Janette Gresham was exiting a grocery store owned and operated by Bell’s Food Market, Inc., her foot became entangled in a cart and she fell. Gresham brought this action against Bell’s to recover for personal injuries she sustained. The trial court granted summary judgment to Bell’s because Gresham admitted that she saw the cart before catching her foot in it.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. [Cit.] A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” [Cit.]

Viewed in a light most favorable to Gresham, the evidence shows that the front entrance to the store consists of a single door located approximately fifteen to twenty feet away from a set of two exit doors. As Gresham was entering the store on the day in question, she noticed that all of the shopping carts had been assembled in a haphazard fashion along the front walkway because the interior of the store was being cleaned. As Gresham was exiting the store, she fell after her foot became entangled in the bottom part of one of the carts. Gresham admitted that she saw the cart which caused her fall upon entering and exiting the store. She testified that she did not realize the cart was in her path of egress until it was too late to avoid the fall, because the cart was pushed under a ramp leading to one of the exit doors and her view of it was thereby partially blocked.

[I]n order to recover for injuries sustained in a [trip]- and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.
The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge . as the proprietor does and then[,] by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.

Decided May 10, 2000

Reconsideration denied May 30, 2000.

James W. Smith, for appellant.

E. Wycliffe Orr, for appellee.

Hazard is defined as “[a] danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm.”

Gresham has admitted that she saw the cart on which she tripped prior to her fall. Photographs show that the doors through which Gresham exited the grocery store are made of glass, that ramps leading to the exit doors are several inches high, and that the grocery carts are several feet high. This photographic evidence shows that Gresham’s view of the cart could not have been so obstructed by its positioning in relation to the ramp to have deprived her of knowledge of the hazard which the cart posed. “The simple fact is that the plaintiff had actual knowledge of the hazard which caused her fall prior to encountering it.”

Judgment affirmed.

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

        McCoy v. West Bldg. Materials &c., 232 Ga. App. 620 (502 SE2d 559) (1998).

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

        Wright v. JDN Structured Finance, 239 Ga. App. 685, 686 (2) (522 SE2d 4) (1999).

       Black’s Law Dictionary (4th ed. rev.), p. 850.

        McCoy, supra at 622.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0514.
    WHITAKER v. THE STATE.
    (535 SE2d 283)
   Phipps, Judge.

Damian Whitaker was convicted at a bench trial of one count of public indecency. He appeals, claiming that (1) the evidence was insufficient to support the verdict, (2) the trial court improperly shifted the burden to him to prove his innocence, (3) his trial counsel was ineffective, and (4) he did not knowingly and intelligently waive his right to a jury trial. Because there is insufficient evidence in the record to show that Whitaker knowingly and intelligently waived his right to a jury trial, we vacate the conviction and remand for the trial court to conduct a hearing on this issue. We find no merit in Whitaker’s remaining claims of error.

1. Whitaker challenges the sufficiency of the evidence to support a finding of guilt beyond a reasonable doubt. On appeal, we do not weigh evidence or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, the evidence must be viewed in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

On November 23, 1997, Valerie Brown, a Metropolitan Atlanta Rapid Transit Authority train operator, saw Whitaker getting off the train at each station and moving up one car. She considered this to be unusual behavior. When Whitaker reached Brown’s car, she turned around to face him, thinking that he was trying to tell her that there was a problem on one of the other cars. Instead, Whitaker made a motion with his hands down by his hips which drew Brown’s attention down from his face. Brown then noticed that Whitaker’s penis was out of his pants. She promptly turned around and called the police.

Based on Brown’s description, MARTA Police Officer Michelle Finch located Whitaker on the train and took him into custody. Finch testified that Whitaker was a white male with “extreme facial hair” and a lot of hair around his head in the back. She testified that no other white males on the train fit that description. Both Brown and Finch identified Whitaker at trial.

Whitaker contends that the evidence against him was circumstantial. We disagree. Brown’s testimony is direct evidence of Whitaker’s guilt.

We agree with Whitaker’s assertion that there are some inconsistencies in the trial testimony. Finch’s testimony contradicts Brown’s as to the number of white males on the train at the time of Whitaker’s arrest. Finch testified that the train was crowded. Brown testified the crowd was very light. When reviewing the sufficiency of the evidence, however, it is not our role to resolve conflicts in trial testimony.

Viewed in the light most favorable to the verdict, we find that the evidence was sufficient to support the conviction beyond a reasonable doubt.

2. Whitaker contends that the trial court erroneously shifted the burden to him to prove his innocence when it failed to sustain an objection to a question the State asked him on cross-examination. Counsel for the State asked Whitaker if he had any idea why Brown would fabricate a story like this about him. His counsel objected to the question as speculative. The trial court overruled the objection.

Whitaker raises this burden of proof claim for the first time on appeal. That basis for objection was not asserted at trial and, therefore, has not been preserved for appellate review.

3. Whitaker claims that his trial counsel was ineffective before and during the trial. This claim was not included in Whitaker’s motion for new trial on general grounds, and the motion was never amended. Whitaker does not rebut the State’s contention that the issue was not raised at the hearing on the motion for new trial, which was not transcribed.

Whitaker was obligated to raise all allegations of ineffectiveness of counsel at the earliest practicable moment. His appellate counsel began representing him prior to the filing of the motion for new trial and could have raised this claim in the motion for new trial or in an amendment thereto. By failing to include the claim in his motion for new trial or to point to any evidence in the record showing that he raised it at the hearing on that motion, Whitaker has waived his ineffective assistance of counsel claim.

4. For the first time on appeal, having failed to raise the issue in his motion for new trial, Whitaker claims that he did not knowingly and intelligently waive his right to a jury trial. Generally, claims of error not objected to in the trial court may not be raised for the first time on appeal, except for certain constitutional issues, among which is whether the defendant waived his constitutional right to a jury trial.

A criminal defendant must personally and intelligently participate in the waiver of his right to a jury trial. If a defendant questions the purported waiver of that right, the State:

bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived [and the possible consequences]; or (2) by filling a silent or incomplete record [with] extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. [Cit.]

Decided May 30, 2000.

Roreita J. Walker, for appellant.

Carmen Smith, Solicitor, Jody L. Peskin, Assistant Solicitor, for appellee.

We find that the record is incomplete regarding Whitaker’s purported waiver of his right to a jury trial. At trial, counsel for the State stated, ‘Your Honor, the forms have been executed indicating the defendant pleads not guilty and waives his right to a jury trial.” There was no response by the trial judge, Whitaker, or his counsel. The only other evidence of a waiver is what appears to be Whitaker’s signature on a form entitled “Plea and Verdict,” which includes a handwritten notation that I “waive my right to a jury trial.” The record does not reflect who made the handwritten note.

Although a waiver in open court is not expressly required, and no particular form of waiver is required, before accepting a waiver, it would be preferable for the trial judge to question the defendant on the record to ensure that the defendant personally has made a voluntary, knowing, and intelligent waiver of his or her right to a jury trial. A few questions directed to the defendant by the trial judge would protect the right and help to avoid subsequent claims that the right was not personally, voluntarily, knowingly, and intelligently waived.

Because Whitaker failed to raise this issue in the trial court, the State has not had an opportunity to fill the incomplete record with extrinsic evidence sufficient to meet its burden. The record contains some evidence of a waiver but does not show whether Whitaker personally, voluntarily, knowingly, and intelligently participated in it. We therefore vacate Whitaker’s conviction and remand the case for an evidentiary hearing on this issue. If, after the hearing, the trial court determines that Whitaker did make a valid waiver, the conviction and sentence may be reinstated, and Whitaker will have the opportunity to file a new appeal directed to this issue alone.

Judgment vacated and case remanded with direction.

Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

        Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

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

        Dismuke, supra.

        Thomas v. State, 225 Ga. App. 790 (484 SE2d 797) (1997).

        Bagwell v. State, 270 Ga. 175, 179 (1) (f) (508 SE2d 385) (1998).

       Id.; Baldwin v. State, 217 Ga. App. 866, 867 (1) (460 SE2d 80) (1995).

        Wooten v. State, 162 Ga. App. 719-720 (293 SE2d 11) (1982).

        Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996), citing Patton v. United States, 281 U. S. 276 (50 SC 253, 74 LE 854) (1930).

       (Punctuation omitted.) Jones v. State, 212 Ga. App. 676, 679 (2) (442 SE2d 908) (1994); Pirkle, supra.

        Wooten, supra at 720; Pirkle, supra.

       See Payne v. State, 217 Ga. App. 386, 388 (460 SE2d 297) (1995); Wooten, supra at 721.

        Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991).


author: McMurray, Senior Appellate Judge.

text:
    A00A0460.
    DEPARTMENT OF TRANSPORTATION v. RASMUSSEN et al.
    (534 SE2d 573)
   McMurray, Senior Appellate Judge.

On March 13, 1997, the Georgia Department of Transportation (“DOT”) filed a declaration of taking to condemn 0.216 acres of a 0.990-acre tract of land owned by Lloyd Rasmussen in order to widen Highway 124 at Rock Chapel Road in DeKalb County. The DOT also took 0.0689 acres of the tract as a permanent easement. The condemned parcel included a building which, at the time of the taking, was used as an automotive repair shop.

The building had once housed a service station. Several underground storage tanks still existed, but they were located on the portion of the land that the DOT did not take. Testimony at trial revealed the following: various state and federal regulations required that the tanks be either removed or closed underground by December 23, 1998; the property not taken could not be restored to the value it had at the time of the taking absent being made ready for commercial development and the property could not be redeveloped without removing the tanks.

The DOT offered Rasmussen $28,136 for the taking. Rasmussen appealed, and a jury awarded him $52,520, including $46,020 for the market value of the property taken and $6,500 in consequential damage to the remainder. The consequential damage award was based on evidence of the cost to remove the tanks. Judgment was entered on the verdict, and this appeal followed. Held:

1. The DOT challenges the trial court’s admission of evidence of consequential damage, arguing that the removal of the storage tanks was not a consequence of the taking. In support of its position, the DOT argues that the taking did not trigger the need to redevelop the property and so the cost to remove the tanks did not flow from the taking. We disagree.

Rasmussen’s expert appraiser testified at trial that the owner would not have incurred the cost of removing the tanks absent the taking. He testified that the building which housed the automotive repair shop could have remained in place for an indefinite number of years. The appraiser stated that had the building remained in place, the tanks could have been filled with sand (or some other inert material) and properly closed without having to be removed. He further testified that the demolition of the building required Rasmussen to remove the tanks on the remaining parcel in order to restore its value as commercial property ready for development. The appraiser testified that removing the tanks would cost approximately $10,000.

In a condemnation proceeding involving a partial taking, two elements of damage are to be considered. The first is the market value of the property actually taken. The second is the consequential damage that will “ ‘naturally and proximately arise to the remainder of the owner’s property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned. . . .’ (Cit.)” (Emphasis in original.) Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980).

Dept. of Transp. v. White, 270 Ga. 281, 282 (508 SE2d 407).

The appraiser’s testimony provides sufficient evidence that the cost to remove the storage tanks proximately arose from the taking. It follows that the trial court did not err in the admission of evidence of consequential damages.

2. The DOT next contends that the trial court abused its discretion in permitting evidence that the DOT placed its right-of-way line in such a way that the taking deliberately excluded the land containing the storage tanks. On that basis, the DOT claims that the trial court allowed counsel for Rasmussen to inject the issue of bad faith without following the procedure outlined in OCGA § 32-3-11 (c). This argument is without merit.

As held in Division 1, evidence of the cost to remove the storage tanks was relevant to the issue of consequential damage to the remainder. Evidence that the DOT drew its right-of-way line in a way that missed the tanks was relevant to show that they remained on Rasmussen’s parcel.

It is well-settled that “(u)nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citation and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990).

Warren v. State, 233 Ga. App. 699, 700 (2) (505 SE2d 777).

The trial court did not abuse its discretion in admitting the evidence at issue in the case sub judice. The potential for its prejudice did not substantially outweigh its probative value.

Decided May 12, 2000

Reconsideration denied May 31, 2000.

Thurbert E. Baker, Attorney General, Zachary & Segraves, Kenneth L. Levy, Kenneth W. Carpenter, for appellant.

Simmons, Warren, Szczecko & McFee, M. T. Simmons, Jr., for appellees.

Judgment affirmed.

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

       Rasmussen’s expert pertinently testified that DeKalb County officials told him that a “site development plan would not be approved unless [the] tanks had been properly closed and in this case certified by the state as having been closed, which now means remove any contaminated soil. . . .”


author: Johnson, Chief Judge.

text:
    A00A0670.
    MASON v. THE STATE.
    (535 SE2d 497)
   Johnson, Chief Judge.

Charles Mason was indicted for rape, child molestation and two counts of aggravated child molestation. He pled not guilty to the charges and proceeded to trial before a jury. After hearing more than two days of evidence and argument, the jury began deliberating on a Wednesday afternoon. The jurors had deliberated for approximately an hour on Wednesday, all day on Thursday, and for more than two hours on Friday when the court gave them an Allen charge, urging them to reach a unanimous verdict.

Sometime after the Allen charge, one of the jurors sent a note to the judge stating that she was the lone holdout vote, that it would be difficult for her to deliberate through the weekend because she needed to get back to her business, and that if she were required to deliberate longer, she might change her vote to go along with the majority. Upon receiving the note, the judge did not immediately notify Mason and his counsel about it, but instead wrote a reply note instructing the juror to continue deliberating. The judge later told the defense about the notes, whereupon Mason’s attorney moved for a mistrial because the jury was deadlocked. The judge did not grant the motion, but instead decided to question the juror.

The court called the entire jury into the courtroom, identified the juror who had written the note, and then questioned her about the note. During the judge’s questioning, the juror indicated that she was the only one voting not guilty, that she could continue deliberating that evening, but that she did not want to deliberate longer because of her business. After the questioning, the judge allowed the jury to continue deliberating. Mason’s counsel moved again for a mistrial on the ground that the jury was unable to reach a unanimous verdict, and the court denied the motion.

The holdout juror later left the jury room and sat by herself in the courtroom. Although the record is not clear, at some point after that, presumably, the jury foreman sent a note to the judge claiming that the holdout juror had abandoned the other jurors and asking that she be replaced by the alternate juror. Again, the judge did not inform Mason and his attorney about the note. Instead, the judge called the holdout juror into the courtroom and questioned her in the presence of Mason, his counsel, and the state.

Among other things, the judge asked the holdout juror if she was unwilling to deliberate further, and she said, “Yes, sir.” But upon further questioning by Mason’s counsel, the juror testified that she had given her best effort to reach a verdict, had listened to the other jurors’ opinions, and had honestly tried to reach the truth. She also explained that she did not want to deliberate further because she needed to get back to her business and she did not believe that her opinion about the case would change.

After the juror’s statements to the court, the judge dismissed her from the jury. Mason’s attorney objected to the removal of the juror and renewed the motion for a mistrial because the jury could not reach a verdict. The court again denied the motion.

The judge then called the jury foreman into the courtroom and questioned him about the jury deliberations and about the dismissed juror. During the questioning, the defense learned for the first time that the court had received the note from the foreman asking that the holdout juror be replaced. Defense counsel once more moved unsuccessfully for a mistrial.

The court informed the 11 remaining jurors that the holdout juror had been excused and that she would be replaced by the alternate juror. The judge then sent the remaining jurors home for the weekend. The 11 jurors and the alternate returned on Monday. After deliberating for less than three hours, the reconstituted jury returned its guilty verdict on all counts.

Mason appeals, asserting several enumerations of error, including his claim that the court erred in dismissing the juror rather than declaring a mistrial because the jury was unable to reach a unanimous verdict. We agree that it was error to dismiss the juror rather than declaring a mistrial. Therefore, we reverse Mason’s convictions and remand the case for a new trial.

1. A trial court has the discretion to decide if a juror has become incapacitated and must be replaced by an alternate juror.

If at any time, whether before or after final submission of the case to a jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

In this case, the trial court abused its discretion in finding that the holdout juror was incapacitated and in replacing her with the alternate juror. There was no showing that the juror was unable to fulfill her duties, and no other legal cause for dismissal was shown. While the juror clearly was concerned about getting back to her business, such concern does not amount to a legal cause for dismissal.

In the context of all her statements to the court and the posture of the proceedings, the juror’s statements that she did not want to deliberate further and would not change her vote did not amount to a refusal to deliberate. The juror made those statements only after she and the other jurors had already deliberated for more than two days and after the court had given the jury an Allen charge. Contrary to the trial court’s ruling, the juror did not fail to deliberate, but instead had reached her decision after having fully deliberated for more than two days.

The state claims that Cloud v. State is similar to the instant case and supports the trial court’s replacement of the juror. The state’s reliance on that case is misplaced. In Cloud, this court found that the trial court properly replaced a juror because of his inability to judge the defendant. Unlike that juror, the juror in the instant case was not unable to judge, or reach an opinion about, the charges against Mason. On the contrary, the juror here unequivocally told the court that she had fully deliberated the matter and had reached her conclusion that Mason was not guilty.

The fact that the juror reached a conclusion different from that of the other jurors did not render the juror incapacitated. Rather than being faced with a juror unable or unwilling to perform her duties, the court was faced with a jury that was deadlocked after lengthy deliberations. Under those circumstances, the court erred in replacing the lone juror voting in favor of Mason with the alternate juror. “Alternate jurors do not serve to substitute for minority jurors who cannot agree with the majority.”

The court should not have discharged the juror but should have granted Mason’s repeated motions for a mistrial on the ground that the jury was deadlocked. Because the court erred in denying the motions and in replacing the juror, we hold that Mason’s convictions must be reversed and that he is entitled to a new trial.

2. Because of our holding in Division 1, we need not address Mason’s remaining enumerations of error.

Judgment reversed and case remanded.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

On Motion for Reconsideration.

The state filed a motion for reconsideration, claiming that we misunderstood the facts of the case when we wrote that the holdout juror might change her vote to go along with the majority if she were required to deliberate through the weekend. The state contends that the juror unequivocally stated that she would change her vote if she had to deliberate further. In support of its contention, the state cites the trial judge’s recollection that the juror wrote in her note, “I am an independent employer and I have lost too much money during this trial and for economic reasons I will vote with the majority.” While the judge did make this statement about the note, he failed to preserve the actual note in the record. He did, however, question the juror on the record and allowed the defense attorney to question her. It is that evidence in the.record, not the missing note, which provides the basis for our understanding of the juror’s position.

During his questioning, the judge told the juror that in her note she had said that she would change her vote rather than deliberate further. The juror replied: “I say I don’t want to feel that I would have to, to say — you know what I’m saying? I don’t want a toss-up between my job and this and I would never want to say something that I don’t feel. I don’t know if I’m saying that right.” The judge again told the juror that her note said she would change her vote. And the juror testified: “I don’t want to do that. I don’t want to have to be stuck in a position where I would have to say something that I don’t feel to get out of something, in other words. I wouldn’t do that —”

Later, during questioning by the defense attorney, the juror testified that she had given her best effort to reach a verdict in the case, had listened to the other jurors’ opinions, and had honestly tried to reach the truth and that her not guilty vote would not change with further deliberations. The judge intervened and asked the juror whether she would participate in deliberations if he asked her to come back the following day or the following week. And the juror stated: “I [am] telling you that I don’t feel any different — what I feel as far as the verdict is the same if I come back here Monday, Tuesday, Wednesday, Thursday and Friday. At this point I feel no different.” The judge then dismissed her from the jury.

Decided May 9, 2000

Reconsideration denied May 31, 2000

William R. Gignilliat III, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Charles C. Flinn, Assistant District Attorneys, for appellee.

After a review of all her testimony, we do not find, as the state suggests, that the juror unequivocally told the court that she would change her vote if the court ordered her to return the next week to continue deliberations. Rather, she equivocated on that issue. She clearly had a firm opinion that Mason was not guilty and she clearly did not want to return the following week to deliberate, but she did not definitively say that she would change her vote if ordered to return for deliberations. At most, she indicated that she did not want to be put in a position where she would have to choose between voting her true opinion on the case and changing her vote to go along with the majority in order to get back to her job. In other words, she indicated that she might change her vote if put in such a position.

Moreover, even if we assume that the juror did state in her note that she would change her vote if she had to deliberate longer, such a statement does not change our opinion that the judge should have declared a mistrial instead of dismissing the lone juror voting not guilty. On the contrary, such a statement simply reinforces the fact that the jury was hung and that the judge should have granted Mason’s motion for a mistrial.

Motion for reconsideration denied.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       The state claims in its brief that the judge sent the other 11 jurors back to the jury room before he questioned the juror who had sent the note. While that may be what happened, we note that it is not apparent from the transcript that the judge actually sent the other jurors back to the jury room. On the contrary, it appears from the transcript that the entire jury was in the courtroom during the questioning. Nevertheless, whether the other jurors were present for the questioning is not a dispositive issue in this case.

        Stokes v. State, 204 Ga. App. 141 (1) (418 SE2d 419) (1992).

       OCGA § 15-12-172.

       235 Ga. App. 721-722 (1) (510 SE2d 370) (1998).

       Id. at 722 (1).

       (Citation and punctuation omitted.) Stokes, supra at 142 (1).

       See Scott v. State, 219 Ga. App. 798, 800 (2) (466 SE2d 678) (1996).


author: ELDRIDGE, Judge.

text:
    A00A1246.
    SIRMANS v. THE STATE.
    (534 SE2d 862)
   ELDRIDGE, Judge.

I. B. Sirmans was convicted of four counts of animal cruelty and one count of simple assault following a jury trial. Without contesting the sufficiency of the evidence, he raises five enumerations of error in this appeal.

The facts presented showed that Sirmans and his family reside on a farm in Berrien County, where they raise various animals, such as cows, chickens, ducks, goats, and hogs. In April 1998, the Tift Area Humane Society Director, Lynn Hampton, contacted the Berrien County Sheriff’s Department regarding complaints that both entities had received about Sirmans’ alleged neglect of his animals by failing to provide adequate food and water. The Sheriff’s Department requested that Hampton “check the situation out.” Hampton drove past Sirmans’ property on or about April 13,1998, and observed farm animals that appeared by their physical condition to be deprived of food and water in plain view from the roadway.

On April 16, 1998, Hampton reported her findings to the Sheriff’s Department. The same day, Hampton, several Humane Society employees, a local veterinarian, and two Sheriff’s Deputies went to Sirmans’ farm to investigate further. Although Sirmans refused to allow them to look around the property, Hampton testified that the large animals were outside in plain view and that they were deprived of food and water. She stated, “There was a little bit of hay out there. The water that was out there that we saw was very, very little in there, and it was stagnated, it was green with mosquito larvae. Any of the water that was found, that was the condition of it.” A Humane Society employee photographed the animals and their surroundings. The animals that were in the “worst possible condition” were then loaded onto trucks and transported for veterinary care and shelter. A few of the smaller animals died en route or within a few days thereafter.

The State presented the photographs at trial, as well as the testimony of the individuals who observed the animals at the time they were seized or shortly thereafter. These individuals testified that the animals were “in really, really bad shape,” “very starved,” ‘Very weak,” and “[in] [e]xtremely poor condition.” Hampton described it as “one of the worst cases I’ve ever seen of animal cruelty and animal neglect.”

1. In his first enumeration, Sirmans claims that the trial court erred in denying his motion to suppress evidence.

[Sirmans] unsuccessfully moved to suppress evidence . . . seized from his home. Although [Sirmans] argued during his motion to suppress hearing the evidence seized during the search was inadmissible because the search was illegal, he did not offer that objection at trial. When each item of evidence seized during the search was offered for admission at trial, [Sirmans] affirmatively stated he had no objection. . . . [Flailing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point. [Sirmans] affirmatively stated at trial that he had no objection to the admission of the evidence seized. Thus, defendant waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress.

(Citations and punctuation omitted.) Carter v. State, 238 Ga. App. 708, 709 (1) (520 SE2d 15) (1999), citing Dyer v. State, 233 Ga. App. 770 (505 SE2d 71) (1998). See also Mattingly v. State, 205 Ga. App. 777 (1) (423 SE2d 709) (1992). Thus, any objections as to photographs taken were subsequently waived at the time of tender into evidence without objection.

2. As to the admission of any additional evidence which resulted from the search, this Court finds that the trial court did not err in denying Sirmans’ motion to suppress. Although the trial court’s order does not set out the specific reason it denied Sirmans’ motion to suppress, a decision right for any reason will be affirmed on appeal. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

(a) As an initial matter, we reject the State’s claims that the Humane Society employees were acting as private citizens, thereby avoiding the constitutional restrictions on search and seizure of private property. See U. S. Const., Amend. IV; Ga. Const. of 1983, Art. I, Sec. I, Par. XIII. Since the evidence presented clearly demonstrated that the Humane Society employees were acting as agents in investigating and in concert with the Berrien County Sheriff’s Department in seizing Sirmans’ animals, the safeguards of the Fourth Amendment are triggered. See Williams v. State, 257 Ga. 788, 789 (3) (364 SE2d 569) (1988).

(b) Sirmans contends that any evidence collected at the scene should have been suppressed because it was the product of an illegal search of his private property. It is undisputed that the State did not secure a search or arrest warrant before going onto Sirmans’ property. The State claims, however, that the search was authorized under the “plain view” exception to the warrant requirement. Under such exception, “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (Citations and punctuation omitted.) Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994). In order to satisfy the plain view exception, the State must fulfill the following criteria:

(1) that there must be a prior valid intrusion onto a person’s property before evidence is observed and seized; (2) discovery of the evidence must be the result of its being in plain view and not the result of an investigatory search; and (3) it must be immediately apparent that the item seized is evidence or contraband.

(Citations and punctuation omitted.) Id. at 83.

In this case, evidence was presented to support all three criteria. Hampton observed several of the large animals from the public roadway and recognized their deprived condition. There is nothing to indicate that, when Hampton, the Humane Society employees, the veterinarian, and the Sheriff’s Deputies first arrived at the farm to investigate on April 16,1998, they encroached upon the property in a manner different from any other guest, deliveryman, or other caller; as such, they were not trespassers. See Galbreath v. State, supra; Gilreath v. State, 247 Ga. 814, 820 (279 SE2d 650) (1981); State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981). It is further undisputed that they did not enter Sirmans’ home. Upon their arrival, the group immediately observed additional clearly deprived animals in need of immediate care in plain view. Thus, there existed probable cause of the commission of a crime, i.e., cruelty to animals.

Where evidence of a crime is visible from a vantage point where the officer has the legal right to be, the officer’s observation does not breach the property owner’s privacy rights. State v. Nichols, supra at 386. Further, the officer may seize evidence that is in plain view, and such seizure is, in effect, no search at all, but the collection of evidence of the crime. Id.

Whether the [deprived animals were] ever in the plain view of [Hampton or the Sheriff’s Deputies] was an issue of fact for the trial court. When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. Because there was sufficient evidence to support the trial court’s order, we find no error.

(Citation and punctuation omitted.) State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996). See also Smith v. State, 160 Ga. App. 26, 28 (2) (285 SE2d 749) (1981).

(c) Accordingly, this Court will not consider whether the circumstances described herein also satisfied criteria that would have justified a search based upon exigent circumstances.

3. In his second enumeration of error, Sirmans contends that the trial court erred in overruling his motion to sever the assault charge from the cruelty offenses at trial. According to the evidence presented, the assault charge arose as follows: when Hampton and the Humane Society employees arrived at Sirmans’ farm and, later, as they loaded the animals onto the trucks, Sirmans repeatedly yelled and cursed at them, threw rocks at them, and threatened to kill Hampton because she was taking his animals.

This Court recognizes Sirmans’ concern that the assault on Hampton was not directly related to the negligent care of the animals that resulted in his being convicted of animal cruelty. It is unlikely, however, that the assault would have occurred but for Sirmans’ neglect of the animals, which resulted in Hampton’s presence on his property and the seizure of his animals.

Where joinder is based on a series of acts connected together, severance of the various counts in an indictment lies within the sound discretion of the trial court. Bland v. State, 264 Ga. 610, 611 (2) (449 SE2d 116) (1994). [Sirmans’] argument that the events giving rise to the [assault] were wholly unrelated and unconnected to the remaining charges is not supported by the facts of this case.

(Punctuation omitted.) Varnadoe v. State, 227 Ga. App. 663, 664 (1) (490 SE2d 517) (1997). Further, the evidence in this case was not complex, and there was no risk as to whether the jury would be able to apply the law separately and intelligently as to the cruelty and assault offenses. See Woolfolk v. State, 202 Ga. App. 59, 61-62 (5) (413 SE2d 242) (1991). Moreover, the fact that Sirmans was acquitted of nine counts of animal cruelty demonstrates that Sirmans was not prejudiced by the trial court’s refusal to sever the trial. See Barber v. State, 176 Ga. App. 103, 104 (2) (335 SE2d 594) (1985). There was no abuse of discretion.

4. Sirmans assigns as error the trial court’s denial of his motion to prevent the State from asking qualifying questions or administering any oaths to the jury. Without deciding the merits of such denial, we note that no record or transcript of any such questions or oaths is before this Court. On appeal, Sirmans has the burden “to affirmatively show asserted error by the record. Having failed to demonstrate support in the record for this enumeration, we find no error.” (Citations omitted.) Hollis v. State, 201 Ga. App. 224, 225 (1) (411 SE2d 48) (1991).

5. In his fourth enumeration, Sirmans asserts that the trial court erred in overruling his special demurrer to the accusation filed against him on September 18, 1998. We disagree.

The accusation identified the animals by species . . . and distinguished between similarly described animals on the basis of living and dead animals. The misconduct by [Sirmans] was set out in each count. It strains credulity to assert that [Sirmans did] not know the specific offense with which [he was] charged or that such language does not allege criminal misconduct. Overly technical niceties of pleading are no longer required so long as the accusation is sufficient to be easily understood by the jury or is substantially in the language of the statute. Thus an accusation is sufficient if it charges the commission of an offense in plain terms and the nature of the offense is sufficiently described to permit both the accused and the jury to understand the crime charged in the accusation. The accusation here was sufficient for the purposes described above and [Sirmans’] contentions to the contrary are without merit.

(Citations and punctuation omitted.) Smith v. State, supra at 28 (3).

6. (a) Finally, Sirmans claims that part of his sentence violated OCGA § 17-10-1 (a) (6) (A) (i) and (ii), because the trial court ordered that the Humane Society would retain the animals seized from Sirmans. OCGA § 17-10-1 (a) (6) (A) prohibits the trial court from imposing a financial payment which exceeds the statutorily specified maximum fine or which is to be made to any unauthorized, nonlegal entity. However, that statutory subsection applies only to a trial court’s modification, suspension, probation, or alteration of a previously imposed sentence. As such, it does not apply herein.

Decided May 19, 2000

Reconsideration denied May 31, 2000

William W. Turner III, for appellant.

Robert B. Ellis, Jr., District Attorney, Ellen S. Golden, Assistant District Attorney, for appellee.

James C. Bonner, Jr., amicus curiae.

(b) That being said, however, there is a question of the trial court’s authority to allow the Humane Society to retain the animals for which Sirmans was acquitted of cruelty. These animals included, inter alia, several dogs, a Welsh pony, a colt, a goat, and a duck.

“There is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” (Citation and punctuation omitted.) Lynn v. State, 236 Ga. App. 600, 604 (512 SE2d 695) (1999). In this case, Sirmans has convinced this Court that the trial court was without statutory authority to deprive him of animals which the State failed to demonstrate were neglected or abused, because such animals were not contraband or evidence of a crime. Therefore, it is necessary to vacate that portion of Sirmans’ sentence and remand for issuance of an order to release such animals to Sirmans. If the State is able to prove, however, that the equine animals required medical treatment while in the State’s care, then the trial court may require Sirmans to pay for such care as a condition precedent to retrieving the equine animals only. See OCGA § 4-13-5 (statute providing for the recovery of costs incurred during the impoundment and sheltering of equines).

Judgment affirmed. Sentence vacated in part and remanded.

Blackburn, P. J., and Barnes, J., concur.

       Under OCGA § 16-12-4 (a), a person is guilty of misdemeanor animal cruelty in the second degree “when his act, omission, or neglect causes unjustifiable physical pain, suffering, or death to any living animal.”

       Sirmans was acquitted of nine counts of animal cruelty, and the trial court directed a verdict as to one count of animal cruelty (Count 2).

       The veterinarian specifically recommended that the Humane Society seize the cows, the horse, the pony, the donkey, and the dogs, due to their clear malnourishment. Such seizure was for evidence of animal cruelty. When the Humane Society returned the next day to confiscate additional animals, they discovered that the ducks, chickens, and rabbits were out of the pens and running freely on the property. The Humane Society did not retrieve these animals.

       The trial court allowed Sirmans to retain the animals not seized by the Humane Society, as well as any other animals he owned at the time of sentencing.


author: Eldridge, Judge.

text:
    A00A1330.
    ADAME v. THE STATE.
    (534 SE2d 817)
   Eldridge, Judge.

Yolanda Adame appeals from a Douglas County jury’s verdict finding her guilty of aggravated assault and second degree criminal damage to property. We affirm her conviction.

Viewed in a light to uphold the jury’s verdict, the charges arose from an incident wherein Adame, while intoxicated, became enraged at her boyfriend, J. M., for an insult he leveled at her housekeeping skills. As a result, Adame kicked in J. M.’s china cabinet. When he tried to stop further damage by grabbing Adame’s arms and wrestling her onto a sofa, Adame pulled away. She retrieved an aluminum baseball bat from an adjacent porch, with which she reentered the house and hit J. M. in the head, tearing off half of his ear; she exited into the carport and broke out several windows on J. M.’s 1996 Ford Mustang; she again reentered the house and located J. M. in the bathroom trying to staunch the bleeding; she beat him in the back with the bat; then, she again exited into the carport and broke out the remainder of the Mustang’s windows. Held:

1. The trial court refused to permit expert testimony regarding the battered woman syndrome, and Adame challenges this ruling. We find no error. “The battered woman syndrome describes a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.” (Citation and punctuation omitted.) Johnson v. State, 266 Ga. 624, 626 (469 SE2d 152) (1996). The syndrome does not stand as a separate defense but rather is evidentiary support for a claim of justification under OCGA § 16-3-21 (d). Selman v. State, 267 Ga. 198, 200-201 (475 SE2d 892) (1996). An expert’s testimony is admissible to assist the jury in evaluating the victim’s defense of self-defense by explaining why a person suffering from battered woman syndrome “would not leave her mate, would not inform police or friends, and would fear increased aggression against herself” so as to justify her actions toward her mate. Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981); Smith v. State, 268 Ga. 196, 198 (486 SE2d 819) (1997).

Here, Adame did not testify at trial. Instead, to establish the pattern of battering necessary for admission of evidence of the battered woman syndrome, Adame relied upon testimony from her former employer and two of Adame’s friends that sometime prior to the incident in question they saw Adame with bruises on her body However, none of these witnesses had personal knowledge of how the bruises were inflicted; there was no evidence that the bruises were the result of battering by J. M.; Adame did not testify that the bruises were the result of a battering by J. M.; no witness had ever seen J. M. hit Adame; there was no evidence presented that J. M. ever hit Adame; J. M. presented undisputed testimony that he had never hit Adame; and Adame’s son, who lived with the couple, presented undisputed testimony that he had never seen J. M. hit his mother.

So, “[t]his is in no manner a battered woman syndrome case.” Selman v. State, supra at 200. At trial, no evidence established a pattern of abuse/battering by J. M. against Adame. Thus, there was no evidence that J. M. was an “abusive mate” so as to make relevant testimony regarding the battered woman syndrome. See Smith v. State, 268 Ga. at 198-199. To the contrary. The evidence shows that Adame was an aggressor in her relationship with J. M., as well as in her relationships with other males. See Division 2, infra. Absent any history of J. M.’s physical abuse of Adame so as to engender a “reasonable belief in the imminence of the victim’s use of unlawful force,” the battered woman defense is inapplicable. Smith v. State, 268 Ga. at 199; Nguyen v. State, 271 Ga. 475, 476 (2) (520 SE2d 907) (1999). Accordingly,

[w]e find that this evidence does not rise to the level of battering necessary to rely on the battered person syndrome as a basis for a self-defense claim. Therefore, the trial court did not err in preventing the defendant’s expert from giving her opinion that [Adame] suffered from the battered person syndrome.

Mobley v. State, 269 Ga. 738, 740-741 (505 SE2d 722) (1998).

2. Next, Adame challenges the admission of similar transaction evidence. “Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible. [Cit.]” Arnold v. State, 236 Ga. App. 380, 382 (2) (511 SE2d 219) (1999). We find no such abuse here.

(a) A similar transaction hearing was held pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The State presented evidence of prior incidents of domestic violence wherein Adame would get drunk, become enraged, and physically attack the male with whom she was living at the time. Adame would utilize whatever object was handy in her residence, i.e., baseball bat, trophy, metal spoon, wine glass, skillet, or knife. She would strike out at the male, often hitting him on the head. Serious injury frequently resulted, with the male having to be hospitalized. The prior incidents of domestic violence were close in time to the incident of domestic violence in question, and the State presented this evidence for the appropriate purpose of demonstrating Adame’s course of conduct and bent of mind.

“In determining the admissibility of similar transaction evidence, the court should focus on the similarities, not the differences, of the two occurrences.” Dunbar v. State, 228 Ga. App. 104, 109 (491 SE2d 166) (1997), citing Farley v. State, 265 Ga. 622 (458 SE2d 643) (1995). Here, all of the incidents were committed by Adame against her male live-in partners. All of the incidents occurred while Adame was intoxicated and enraged. All of the incidents involved Adame’s use of household objects as weapons. All of the incidents occurred at Adame’s residence. All of the incidents resulted in serious injury to Adame’s male partners. Thus, this evidence was sufficiently similar to establish a logical connection between the independent acts and the charged offense so that proof of one tended to prove the other. Williams v. State, 261 Ga. at 642.

Further,

in the present case we hold that evidence of [Adame’s] prior [assaults], which [were] sufficiently similar to the offense charged as to establish a logical connection between the two, was relevant to rebut [her] claim of justification by showing [her] bent of mind to commit the present offense. It follows that the evidence was properly admitted for that limited purpose.

Menefee v. State, 270 Ga. 540, 543 (512 SE2d 275) (1999).

(b) One incident of domestic violence between Adame and R. S., the man she married five months after the incident in question, resulted in the death of R. S. and was held inadmissible as a similar transaction by the trial court, which found that its probative value was outweighed by its prejudicial nature. However, the trial court did permit the introduction of other incidents of violence that Adame, while intoxicated, perpetrated against R. S. during their approximately seven months together before his death. For example, Adame hit R. S. over the head with a large metal spoon and then hit him in the head with a wine glass. Adame threw a large rock at R. S.’s car and then threw bleach on his clothes and cut his clothes with scissors. Because R. S. was deceased at the time of trial, the trial court admitted such evidence under the necessity exception to the hearsay rule and permitted testimony from the deceased’s ex-wife and his coworker. Adame challenges the trial court’s ruling, contending that such evidence was inadmissible hearsay. We do not agree.

The two requirements for the admission of hearsay under the “necessity” exception are necessity/unavailability and particularized guarantees of trustworthiness. Ward v. State, 271 Ga. 648, 649-650 (520 SE2d 205) (1999). That R. S. is deceased satisfies the criterion that the witness be “unavailable.” Further, the evidence was relevant as a similar transaction for the appropriate purpose as discussed, supra, and R. S.’s statements regarding Adame’s violent actions toward him are the most probative form of such evidence. Id. at 650. Accordingly, the first prong of the exception is satisfied. Id.

Also, the evidence exhibits sufficient reliability to satisfy the second prong of the necessity exception. “Uncontradicted statements made to one in whom the deceased declarant placed great confidence and to whom [he] turned for help with [his] problems are admissible under the necessity exception. [Cits.]” Ward v. State, supra; Fetty v. State, 268 Ga. 365, 368 (489 SE2d 813) (1997). Both R. S.’s ex-wife and his co-worker testified without contradiction that R. S. came to them in desperation because of Adame’s violent conduct. In addition, the State introduced evidence corroborating the testimony of R. S.’s ex-wife and co-worker, i.e., photographs showing the serious injury to R. S.’s head resulting from Adame’s attack with the spoon and the wine glass, R. S.’s bleach-marked and cut clothing, a letter by R. S. to his co-worker written shortly after one attack expressing thanks for letting him stay at the co-worker’s home and declaring his love for Adame and his intent “to give her one more chance if she would control her self,” and entries in a journal R. S.’s ex-wife kept contemporaneously with the violent events as they occurred and noting each event in detail. Accordingly, “we concur with the trial court’s conclusion that the deceased declarant’s statements to the two witnesses were coupled with circumstances that attribute verity to it.” Ward v. State, supra at 651 (2). The trial court did not err when it admitted the hearsay testimony.

3. J. M. testified at trial that he had never hit a woman and that he had not been accused of such. Adame sought to impeach J. M.’s testimony with (a) the pleadings in a 1981 divorce action and (b) a 1980 accusation for simple battery. The trial court refused to admit such evidence for impeachment purposes. We agree.

(a) Statements made by J. M.’s former wife in the 1981 divorce pleadings would not be admissible against J. M. in the trial of a criminal case. 134 Baker Street, Inc. v. State, 172 Ga. App. 738, 741 (5) (324 SE2d 575) (1984). Such statements should not be treated as evidence in a criminal case unless shown to have been authorized by the party against whom they are sought to be introduced. Id. Further, as a matter of fact, the divorce pleadings do not accuse J. M. of hitting his ex-wife or otherwise impeach his testimony. At trial, the defense attorney conceded that he could find no such reference in the pleadings.

(b) An accusation is not competent evidence to disprove the facts to which a witness testifies. Williams v. State, 181 Ga. App. 693 (353 SE2d 563) (1987). “[M]erely showing an accusation of the misdemeanor offense was insufficient for that purpose.” Id. at 695.

Adame argues that the accusation may not show that J. M. had actually hit a woman, but it showed that he had been accused of such, in contradiction to his trial testimony. However, whether J. M. had ever been accused — perhaps falsely since the accusation was nol prossed — of hitting a woman 17 years ago was wholly immaterial to the issues on the trial of this case. Such allegations, alone and completely unsubstantiated, would not go to the issue of Adame’s guilt of the crime as charged or to the merits of Adame’s justification defense, since the unsubstantiated accusation would not serve to support Adame’s claim that she had a reasonable fear of imminent harm from J. M. “[A] witness may not be impeached because of a discrepancy as to a wholly immaterial matter.” (Citations and punctuation omitted.) Hightower v. State, 227 Ga. App. 74, 77 (487 SE2d 646) (1997).

4. The evidence did not require a charge on justification insofar as Count 2, criminal damage to property, was concerned. We reject Adame’s contention that evidence of justification on Count 2 was provided by testimony from Adame’s son that Adame told J. M., “if you come any further, I will break the windows out of your car.”

(a) The testimony upon which Adame relies was the “self-serving statement of a defendant and was inadmissible hearsay” without probative value; thus, a jury charge based on such statement was not warranted. Jones v. State, 271 Ga. 516, 517 (2) (520 SE2d 454) (1999).

(b) Adame’s son did not so testify. At trial, the son testified that Adame stated, “if you don’t stop I’ll break the windows out of your car.” The record shows that the statement was made after Adame had kicked in J. M.’s china cabinet and in response to J. M.’s attempts to restrain her on the sofa. Adame’s son also testified — repeatedly — that J. M. never hit Adame. He testified that J. M. did not follow Adame onto the carport and that “the only thing I remember is her walking outside and hearing the car windows break.” J. M.’s testimony went uncontroverted that he did not hit Adame; that Adame was intoxicated; and that Adame came after him and his car with a baseball bat because she was enraged. “[A] charge on the defendant’s sole defense is mandatory if there is some evidence to support the charge” (Emphasis in original.) Hayes v. State, 261 Ga. 439, 443 (6) (a) (405 SE2d 660) (1991). Here, there was not. “Accordingly, we find no error in the trial court’s failure to charge on self-defense” as to Count 2, criminal damage to property. Jones v. State, supra at 517 (2).

5. Our decision in Division 1, supra, renders meritless Adame’s contention that the trial court erred in failing to charge the jury on the battered woman syndrome.

Decided May 18, 2000

Reconsideration denied May 31, 2000.

Leonard Danley, for appellant.

David McDade, District Attorney, Stephen L. Corso, Assistant District Attorney, for appellee.

6. “Contrary to [Adame’s] contentions, the trial court did not introduce new evidence into the case, confuse the jury, or commit reversible error by instructing the jury on the law related to noncustodial investigatory detention and Miranda warnings.” Threatt v. State, 240 Ga. App. 592, 600 (5) (524 SE2d 276) (1999).

7. Under the First Amendment there exists a right of access to criminal trials on the part of the press and general public. Globe Newspapers v. Superior Court of Norfolk County, 457 U. S. 596 (102 SC 2613, 73 LE2d 248) (1982). Accordingly, we find no error in the trial court’s refusal to exclude interested members of the public from the similar transactions hearing. Contrary to Adame’s contention, the Rule of Sequestration was not implicated, since no witnesses were examined at the hearing. OCGA § 24-9-61.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

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

       Adame also argues that evidence she was hit by a former boyfriend, D. Q., two years prior to the incident in question was sufficient to permit the introduction of expert testimony regarding the battered woman syndrome as justification for her violent actions toward J. M. However, we will not consider this argument since it was not made at trial as a basis for the admission of battered woman syndrome evidence. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citation and punctuation omitted.) Estep v. State, 238 Ga. App. 170, 172-173 (518 SE2d 176) (1999).

       The trial court gave a thorough charge on justification/self-defense, but limited the jury’s consideration of such to Count 1, aggravated assault.

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

       “[E]ither party shall have the right to have the witnesses of the other party examined out of the hearing of each other.” OCGA § 24-9-61.


text:
    A00A1423.
    A00A1426.
    FAUSNAUGH v. THE STATE. BELL v. THE STATE.
    (534 SE2d 554)
   McMurray, Senior Appellate Judge.

Defendants Matthew S. Fausnaugh, on April 2,1998, and Robert B. Bell, on October 15, 1998, were stopped separately while driving through Henry County and cited with various traffic offenses. The uniform traffic citations were filed in the Probate Court of Henry County. The evidence shows that each defendant thereafter filed a demand for speedy trial under OCGA § 17-7-170 in the probate court. Subsequently, the cases were transferred to the State Court of Henry County upon the effective date of its creation as a state court. Neither defendant filed a demand for speedy trial in the state court. On appeal, defendants separately appeal from the state court’s denial of motions for discharge and acquittal upon the State’s noncompliance with the speedy trial demands each filed separately in probate court. Since each defendant has raised an identical issue in his appeal, with defendant Bell adding a further assertion that error was committed, in denying his plea in bar, we will consider these appeals consolidated for the purposes of appeal. Held:

Case Nos. A00A1423 and A00A1426

1. The state court did not err in denying defendants’ motions for discharge and acquittal.

A demand for speedy trial filed in a municipal court, which is not a court of record having both regular terms and the authority to impanel juries, is ineffective, and if the case is transferred to State Court even without a request from the defendant, the only valid demand for speedy trial is that which has been filed anew in the transferee state court. [Cit.]

As to its jurisdiction over traffic offenses, the Henry County Probate Court, like the State’s municipal courts, neither impanels juries nor holds jury trials. Because neither defendant filed a demand for speedy trial in state court, the state court did not err in denying their motions for discharge and acquittal on such basis.

2. The state court did not err in denying Bell’s plea in bar for want of jurisdiction under OCGA § 40-13-21 (a) because, upon the effective date of the creation of the State Court of Henry County, the Probate Court of Henry County lost its jurisdiction to hear and decide misdemeanor traffic offenses by operation of law. OCGA § 40-13-21 (b) pertinently provides:

The probate court shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under the traffic laws of this state in all counties of this state in which there is no city, county, or state court, provided the defendant waives a jury trial.

Decided May 11, 2000

Reconsideration denied May 31, 2000

Virgil L. Brown & Associates, Bentley C. Adams III, T. Robert Perkerson, for appellants.

John T. Rutherford, Solicitor, Brendan N. Fleming, Assistant Solicitor, for appellee.

It is uncontroverted in the record that the State Court of Henry County was created by law by the General Assembly of Georgia, effective January 1, 1999.® As a consequence, the probate court’s jurisdiction to hear and decide defendant Bell’s case and plea in bar was lost on that date by operation of law, Georgia probate courts having jurisdiction over misdemeanor traffic offenses only when “there is no city, county, or state court. . .” in the county. The state court also clearly having jurisdiction to try all “criminal cases below the grade of felony [,]” it did not err in denying defendant’s plea in bar for lack of jurisdiction.

Judgments affirmed.

Pope, P. J., and Miller, J., concur.

       In Case No. A00A1423, Fausnaugh was charged with driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)). In Case No. A00A1426, Bell was charged with weaving over the roadway (OCGA § 40-6-48), failure to show proof of insurance (OCGA § 40-6-10), driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), and driving with an open container of alcohol (OCGA § 40-6-253).

        Vedder v. State, 241 Ga. App. 578, 579 (521 SE2d 600), citing Harp v. State, 204 Ga. App. 527, 528 (2) (420 SE2d 6); accord State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (“[T]he statutory right to demand a speedy trial of a traffic offense in state court attaches when the uniform traffic citation is filed with the court”).

       OCGA § 40-13-21 (b).

        Vedder v. State, 241 Ga. App. at 579, supra.

       Ga. L. 1998, p. 3954, § 1, a local act not codified by the General Assembly.

       Id.

       OCGA § 40-13-21 (b).

       OCGA § 15-7-4 (a) (1).


text:
    A00A0383.
    GORDON v. THE STATE.
    (535 SE2d 289)
   Phipps, Judge.

Following denial of his motion for new trial, Charles Gordon appeals his convictions of aggravated assault and false imprisonment. He challenges the sufficiency of the evidence, complains of a jury instruction, and claims ineffective assistance of trial counsel. We find no grounds for a reversal but remand for a hearing on the ineffectiveness claim.

On October 6, 1998, at approximately 10:30 p.m., 16-year-old Jason Johnson got off work from his job at a restaurant on River Street in Savannah. His mother was supposed to pick him up, but she was not there. He sat on the front curb and waited for her. At the time, the end of River Street where Johnson was sitting was practically deserted while the other end of the street was crowded. As Johnson was awaiting his mother’s arrival, Gordon staggered down the street in an apparent intoxicated condition and approached him. Johnson, who possessed feminine features, testified that Gordon grabbed his arm, forced him into a nearby alley, and attempted to remove his pants while demanding sex. During the struggle, Gordon pulled his own pants down, and Johnson observed a condom on his erect penis.

Johnson escaped Gordon’s grasp and ran back to River Street. His mother, Tammie Green, and a friend of hers drove up as Johnson was being chased down the street by Gordon. Green testified that her son was so frightened he almost ran into her car and that, in a state of shock, he told her that the man chasing him was trying to rape him. Green then saw that Gordon was pulling his pants up, and she and her friend exited the car and attacked him. Gordon ran toward the other end of River Street. Green, her friend, and Johnson gave chase. When Gordon reached a policeman, he slowed his pace to a walk as if to conceal the fact that he was being chased and told the officer that he had been beaten and robbed. When the others told the officer their version of the events, Gordon was arrested and taken to police headquarters.

He was placed in an interview room at headquarters. While he was alone in the room, he removed the condom and placed it on the floor. Gordon told the police that as he was walking down River Street, he saw a female sitting and, although she spoke to him, he kept walking. Gordon claimed that someone then hit him on the head and robbed him of a $20 bill. The officer who conducted the interview testified that Gordon had several $20 bills in his pocket at the time. Johnson, on the other hand, was in possession of no $20 bills.

When Gordon appeared for trial, he told the judge that on the night in question he had stepped into the alley to urinate, whereupon he was robbed and beaten by Johnson and a young woman after he refused an offer for sex extended by the woman. Gordon’s trial testimony was consistent with the latter version of events, even though he was forced to concede that there were several restrooms which he could have used and that his testimony was inconsistent with his pretrial statement to police.

1. There is no merit in Gordon’s argument that the evidence is insufficient to support the verdict.

An appellate court does not weigh the evidence or determine the credibility of witnesses but only determines whether the evidence, viewed in a light most favorable to the verdict, was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. The evidence was sufficient to support Gordon’s convictions under this standard.

2. Gordon contends that the trial court erred in charging the jury on inapplicable parts of the aggravated assault statute.

The indictment charged Gordon with having committed an aggravated assault on Johnson by assaulting him with intent to rape. The trial court did charge the jury that aggravated assault also may be committed by the use of a deadly weapon. But the court additionally instructed the jury that there was no basis to find Gordon guilty on this theory because the indictment charged him with commission of an aggravated assault with intent to rape and the State must prove that the offense was committed in the manner charged in the indictment.

While it is error to charge the jury that a crime may be committed by alternative methods when the indictment charges it was committed by one specific method, the conviction is not defective unless there is a reasonable possibility that the jury convicted the defendant of the commission of the crime in a manner not charged. Viewed in the context of the entire charge, it is highly unlikely that the jury was misled by that portion of the charge complained of by Gordon.

3. Gordon raises his claim of ineffective assistance of trial counsel for the first time on appeal.

Gordon’s trial attorney moved for a new trial and filed the notice of appeal. After the denial of the motion for new trial and the docketing of the appeal, trial counsel suffered a heart attack, and a new attorney undertook Gordon’s representation. Gordon’s new appellate lawyer claims that trial counsel was ineffective in various regards.

“[T]he rule that an ineffectiveness claim must be raised ‘at the earliest practicable moment’ requires that the claim be raised before appeal if the opportunity to do so is available. . . ,” The opportunity was not available here. Thus, the claim of ineffectiveness has been properly raised for the first time on appeal. In regard to the claim, Gordon raises various issues which cannot be resolved under the present record. Therefore, a remand of the case to the trial court is required for a hearing on Gordon’s claim of ineffective assistance of trial counsel.

Decided May 31, 2000.

C. Jackson Burch, Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded.

Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

        Nealy v. State, 239 Ga. App. 651, 656 (9) (522 SE2d 34) (1999).

       OCGA § 16-5-21.

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-5-21 (a) (2).

        Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992).

        Bridges v. State, 268 Ga. 700, 702 (2) (b) (492 SE2d 877) (1997).

       See Chandler v. State, 213 Ga. App. 46, 47 (2) (443 SE2d 679) (1994); Diaz v. State, 194 Ga. App. 577, 578 (2) (391 SE2d 140) (1990); compare Blige v. State, 208 Ga. App. 851 (2) (432 SE2d 574) (1993), aff’d, 264 Ga. 166 (441 SE2d 752) (1994).

       (Emphasis omitted.) Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

       See Holland v. State, 240 Ga. App. 169, 171 (4) (523 SE2d 33) (1999).

       See id.


text:
    A00A0703.
    MICKENS v. WESTERN PROBATION DETENTION CENTER et al.
    (534 SE2d 927)
   Johnson, Chief Judge.

We granted Carol L. Mickens’ application for discretionary appeal in this workers’ compensation case to determine whether “weekly benefits” under OCGA § 34-9-82 (a) include permanent partial disability benefits paid pursuant to OCGA § 34-9-263 so as to extend the statute of limitation period for filing a claim to two years after the date of the last such payment. Because we conclude that the plain language of OCGA § 34-9-82 (a) includes such benefits, we reverse the superior court’s judgment, reinstate the appellate division’s decision that Mickens’ workers’ compensation claim is not time barred, and remand the case to the superior court with direction that it remand the case to the State Board of Workers’ Compensation for a decision on the merits.

Mickens injured her left leg on October 31,1995, when she fell at her place of employment, Western Probation Detention Center. Western Probation paid her wages in lieu of benefits until she returned to work on November 20, 1995. She received medical treatment for this injury through July 29, 1996. Mickens was assigned a five percent disability rating to her ankle, then received permanent partial disability benefits on a weekly basis through March 3, 1997.

The record on appeal reflects that at some point in 1996, Mickens complained of back pain, and in August 1996, Western Probation filed a notice to controvert. On March 3, 1998, Mickens filed a back injury claim, requesting a hearing to determine the compensability of her alleged back injury which she claimed resulted from her fall in 1995.

After a hearing, the administrative law judge determined that because Mickens had received wages in lieu of compensation through November 20, 1995, she had until November 20, 1997, to submit her back injury claim. The ALJ concluded that because she did not submit the claim until March 3,1998, it was barred by the statute of limitation period in OCGA § 34-9-82 (a). The appellate division, on the other hand, held that permanent partial disability benefits qualify as “weekly indemnity benefits” under OCGA § 34-9-82 (a). Because Mickens received the last payment of permanent partial disability benefits on March 3, 1997, and filed her claim within two years of that date, the appellate division ruled that the claim was timely filed, reversed the ALJ’s award, and remanded the case for a hearing on the merits. The superior court reversed the appellate division and reinstated the ALJ’s award without giving any reason for its decision. Mickens appeals, contending that the superior court erred by reversing the appellate division and by not remanding the case to the ALJ.

1. OCGA § 34-9-82 (a) provides:

The right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.

Mickens contends this Code section does not bar her back injury claim because she filed it within two years after the last payment of permanent partial disability benefits under OCGA § 34-9-263. Western Probation argues that the term “weekly benefits,” under OCGA § 34-9-82 (a), refers to only those weekly benefits provided under OCGA §§ 34-9-261 and 34-9-262, which compensate for income loss. It urges that permanent partial disability benefits are not income benefits, pointing out that permanent partial disability benefits are based on bodily loss and are unavailable so long as the claimant is receiving payments under OCGA §§ 34-9-261 and 34-9-262.

The Workers’ Compensation Act constitutes a complete code of laws upon the subject, and “[t]he recoverability of workers’ compensation benefits is strictly a matter of statutory construction, because there is no common law right to such benefits.” In construing a statute, our goal is to ascertain its legislative intent and meaning. “Statutes should be read according to the natural and most obvious import of the language, without resort to subtle and forced constructions, for the purpose of either limiting or extending their operation.” “When a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it but must construe it according to its terms.”

OCGA § 34-9-82 (a) instructs that “if payment of weekly benefits has been made . . . the claim may be filed . . . within two years after the date of the last payment of weekly benefits.” A plain reading of the statute demonstrates that the legislature required no specifications as to the type of “weekly benefits.” If the General Assembly had intended for “weekly benefits” to include only specified benefits, it could have so provided. But it did not, and we are therefore precluded from imposing such a limitation. Further, OCGA § 34-9-263 expressly refers to permanent partial benefits as “weekly income benefits” which are “payable without regard to whether the employee has suffered economic loss.” Finally, the plain language of OCGA § 34-9-82 (a), when read with § 34-9-263 (b) (1), offers no ambiguity.

Because we must construe OCGA § 34-9-82 (a) according to its plain language, we conclude that “weekly benefits” include permanent partial disability benefits paid pursuant to OCGA § 34-9-263, and Western Probation’s arguments grounded in the differences in the bases and timing of the benefits do not compel us to disregard the statute’s plain language.

2. Mickens contends that the superior court erred in not remanding this case to the ALJ for review and issuance of an award. Construing OCGA § 34-9-82 (a) as we have in Division 1, OCGA § 34-9-82 (a) does not bar Mickens’ back injury claim. We therefore reverse the judgment with direction to remand the case to the State Board of Workers’ Compensation for a decision on the merits.

Decided May 31, 2000

Carol L. Mickens, pro se.

Thurbert E. Baker, Attorney General, Chambless, Higdon & Carson, Brown W. Dennis, Jr., for appellees.

Judgment reversed and case remanded with direction.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

       OCGA § 34-9-1 et seq.

        Abernathy v. City of Albany, 269 Ga. 88, 89 (495 SE2d 13) (1998).

       Id.

        Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

        Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987).

        Ga. Institute of Technology v. Gore, 167 Ga. App. 359-360 (306 SE2d 338) (1983).

       See, e.g., OCGA § 34-9-104 (b) (with regard to a change in condition, the statute expressly provides that a two-year period of limitation applies to benefits paid pursuant to OCGA §§ 34-9-261 and 34-9-262, and a four-year period of limitation applies to benefits paid pursuant to OCGA § 34-9-263).

       OCGA § 34-9-263 (b) (1).

       See also Harper v. L & M Granite Co., 197 Ga. App. 157, 161 (2) (b) (397 SE2d 739) (1990) (in ruling that both benefits paid voluntarily and those paid otherwise would trigger the two-year limitation of OCGA § 34-9-82 (a), the court noted that the Code section does not, on its face, distinguish between those types of benefits and further stated, “if the legislature had intended not to allow weekly benefits paid voluntarily to trigger the two-year limitation, it would have been an easy task to have so provided”).

       See also Atlantic Container Svcs. v. Godbee, 218 Ga. App. 594, 595 (2) (462 SE2d 465) (1995) (differences in administrative details did not compel a disregard of the plain language and common meaning of the words of OCGA § 34-9-82 (a) to determine whether claim was timely filed).


text:
    A00A0839.
    ALLEN v. COLUMBUS BANK & TRUST COMPANY.
    (534 SE2d 917)
   Johnson, Chief Judge.

This case involves the alleged mismanagement of a trust. The record shows that Sally Allen’s father died on July 20, 1968. His will provided for a trust for his wife and children. It further provided that his wife and Columbus Bank & Trust Company (“CB&T”) were to be co-trustees of the trust. Allen’s mother and CB&T acted as co-trustees of the trust from July 1968 until September 15, 1972, when CB&T became the sole trustee of the trust. CB&T managed the trust from 1972 until the trust terminated by its own terms at the death of Allen’s mother on July 26, 1985. Ten years and two months later, on September 22, 1995, Sally Allen filed the present lawsuit against CB&T, alleging that CB&T, as trustee for her father’s trust, breached the trust and its fiduciary duty to her as a beneficiary of the trust.

Allen maintains that CB&T negligently or intentionally mismanaged the trust, causing it to lose from $1 million to $2 million over the life of the trust. CB&T maintains that Allen’s suit is barred because it was untimely filed. The trial court agreed with CB&T and granted its motion for summary judgment. Allen appeals from this ruling.

1. It is undisputed that Allen’s claims, if any, accrued prior to July 1,1991, the date upon which a new six-year statute of limitation for breach of trust became effective. As such, the timeliness of her action is governed by OCGA § 9-3-27, which provides that all actions against fiduciaries must be brought within ten years after the right of action accrues. The question we must first address is when Allen’s right of action accrued.

Allen claims that mismanagement of a trust is a continuing tort and that the ten-year statute of limitation did not begin to run until the trust corpus was disbursed on June 26, 1986, approximately one year after the trust terminated by its own terms. This argument is without merit, inasmuch as the Supreme Court has ruled that the continuing tort theory is applicable only to cases involving personal injury.

A cause of action for breach of fiduciary duty in the management of a trust, as we have here, begins to run at the time the wrongful act accompanied by any appreciable damage occurs. Applying this principle to the present case, it is clear that each time CB&T made an investment which Allen deems to have constituted mismanagement, the trust was detrimentally affected, a cause of action accrued in favor of Allen, and the ten-year statute of limitation began to run. Thus, we must look to Allen’s specific claims of acts of mismanagement to determine when her causes of action accrued.

In her complaint, Allen lists eight examples of alleged mismanagement. These purported acts of mismanagement occurred between the time CB&T began managing the trust in 1968 and August 23, 1985. Since all these acts of mismanagement occurred more than ten years before Allen filed her complaint on September 22, 1995, Allen’s action is barred by the statute of limitation unless she can show that the statute was tolled.

In her appellate brief, Allen claims she was excused from filing her suit within the statute of limitation period because CB&T intentionally withheld information from her which would have allowed her to discover her causes of action. However, this statement is belied by her own deposition testimony. Allen admitted she regularly received account statements and investment review statements the entire time CB&T managed the trust. She further admits that during the life of the trust, she never read the statements. Most importantly, Allen admits that these very statements formed the basis for her lawsuit:

Q: All of the data that you complain about in this lawsuit was revealed at one time or another on the trust statements or the investment analyses or investment reviews that were furnished to you over the time this trust was in existence; isn’t that correct?
A: When we started looking and investigating into it, that’s where we found the information.

In an effort to circumvent her own lack of diligence, Allen argues that even if she had reviewed the trust account statements, she could not have discovered any mismanagement because CB&T was intentionally obscuring its mismanagement. Her appellate brief argues that there were 16 “active steps” taken by CB&T to mislead her and to prevent her from discovering the extent of mismanagement. We will address each purported act of CB&T to which Allen points in support of her claim that the statute of limitation was tolled.

It is important to note at the outset that under Georgia law, fraud that gives rise to a cause of action does not necessarily establish the fraud necessary to toll the statute of limitation. Even when a confidential relationship between the parties exists, the fraud itself — the defendant’s intention to conceal or deceive — still must be established, as must the deterrence of a plaintiff from bringing suit. We address the alleged “active steps” taken by CB&T to mislead Allen and to prevent her from discovering the alleged mismanagement with this legal principle in mind.

Allen alleges she “was never shown or told of any appraisals for property sold by the trust.” This allegation of fraud is unsupported by any citation to the record. Moreover, even assuming CB&T was required to give Allen appraisals of the property sold, there is no evidence in this record showing either that Allen requested such information or that CB&T intentionally withheld any such information. Allen’s statement, standing alone, does not amount to the kind of fraud on the part of CB&T which would toll the statute of limitation.

Allen next claims that trust officer Alice Herin-Stag provided her with false and misleading statements concerning the trust’s yields from 1973-1980., In support of this allegation, Allen cites a letter written by Herin-Stag in September 1980. Allen argues this letter showed an increase in trust yields every year from 1973 through 1980 when, in fact, the actual income of the trust shows that the yields shown in the letter are not accurate. However, Allen has failed to support this allegation by any citation to the record showing that the yields reported are not accurate other than two letters written by her expert which merely state this conclusion. In addition, even if the amounts of the yields as set forth in the letter are incorrect, there is no evidence that CB&T concealed, intentionally or otherwise, the correct yield amounts.

Furthermore, if Allen’s statement that a review of the actual income of the trust shows that the yields reported in the letter were not accurate is true, then a review of the statements provided to Allen by CB&T would have shown the actual yields of the trust, and Allen could have discovered any discrepancy by reviewing the statements. Thus, even if the letter regarding the yield amounts constituted the kind of fraud which could serve to toll the running of the statute of limitation, and the record before us does not support that it did, the statute of limitation was not tolled because Allen, in the exercise of ordinary diligence, could have discovered the true yield rates.

Allen also claims that the same letter from Herin-Stag told her husband that he could not be involved in handling any of the real estate transactions in the trust. According to the letter, Allen’s husband should not handle the trust’s property because his close connection to the account would make the transaction instantly suspect to the Internal Revenue Service since it would be an operation at less than arm’s length. Allen does not point to any evidence in the record showing that this statement was untrue or that, even if the statement was untrue, CB&T intentionally made this statement to somehow deceive Allen. Moreover, even if this statement is true, it would not serve to toll the statute of limitation by deterring Allen from filing her suit or preventing her from discovering any alleged mismanagement of the trust.

Allen claims that trust officer Buford King told her and her husband that “904 Second Avenue had five parking spaces when, in fact, the trust had sold those spaces sometime beforehand, thereby devaluing the property.” Once again, Allen has cited no evidence in the record showing that the property was devalued. In addition, there is no evidence in the record before us that King’s statement was made with any intent to deceive Allen or that it deterred Allen from timely filing her suit.

Allen alleges that on numerous occasions her husband addressed certain concerns to Herin-Stag, but Herin-Stag seemed to assuage his concerns. This allegation does not amount to fraud. Allen fails to show by any evidence that any statements made by Herin-Stag were false or were made with the intention to deceive her. She also points to no evidence that any such statements deterred her from timely filing her suit.

Allen alleges that she asked Herin-Stag about the reduction of principal and interest on loans made by the trust to Lamar Beck and was assured the reductions were in the best interest of the estate. Allen has failed to cite any evidence in the record showing that Herin-Stag’s statements were false or were made with the intention to deceive Allen. Moreover, she has failed to cite to any evidence in the record showing that such reductions were ever even made.

Allen claims that it took “years for the trustees to discover that the bank failed to collect rent for 54 months on [a] certain piece of [trust] property even though [CB&T] produced investment reviews and trust statements for the time in question.” While it is unclear what Allen is attempting to show by this allegation, we take it to argue that CB&T committed the kind of fraud which would toll the running of the statute of limitation by failing to discover the missed rent payments. This conclusory statement does not show fraud. In fact, the record citation provided by Allen shows that CB&T is the entity which actually discovered the missed rent payments and brought them to Allen’s attention. Allen has not shown how this allegation deterred her from timely filing her suit.

Allen claims that CB&T failed to reveal that various pieces of property were sold for less than their book value and without an appraisal. Once again, the only record citation given in support of this allegation is Allen’s deposition, wherein she gave testimony regarding her “understanding” of the amounts for which some properties were bought and sold. She fails to cite any evidence showing the actual sales figures or showing that the sales were inappropriate or constituted fraud. If the properties were sold far below their value, and there is no such evidence in the record before us, Allen fails to point to any evidence showing that CB&T kept her from discovering this information and thus deterred her from timely filing her suit.

Allen alleges that CB&T’s agents admitted they did not have strong expertise in real estate and were in the process of developing a real estate trust department. This fact does not show any fraud on the part of CB&T sufficient to toll the statute of limitation. In fact, the record citation provided by Allen shows that CB&T made such admissions several times throughout the period it acted as trustee. Such admissions may, in fact, have put Allen on notice to use ordinary diligence in determining whether the trust was being properly managed.

Allen asserts that on or about November 20, 1985, her husband asked for an independent auditor to examine the account, but CB&T refused the request. The record citation provided by Allen does not support this allegation. Moreover, even if this allegation is true, it does not constitute fraud sufficient to toll the statute of limitation period, because there is no evidence that any such action by CB&T deterred Allen from hiring .an independent auditor or forensic accountant to review her trust documents and statements in 1985 or that any such action by CB&T deterred Allen from timely filing her suit.

Allen claims that on or about November 20, 1985, her husband inquired about the relationship between former trust officer Pickard and Pickard Realty, which managed some of the property on which rents were not collected for over 54 months. This allegation does not provide any basis to conclude that CB&T intentionally deceived Allen or her husband or made any false and misleading statements so as to deter Allen from timely filing her suit.

Allen alleges that she and her husband raised questions about the propriety of the lease on 904 Second Avenue on or about September 17,1980, but were persuaded by CB&T that the lease was proper and the property was in good shape. Once again, the record citation provided by Allen does not support this allegation. Moreover, Allen fails to point to any evidence in the record showing that CB&T’s statements were false.

Allen asserts that she and her mother had a conversation with CB&T about the relationship between trust officer Pickard and Jack Pickard of Pickard Realty in April 1981 and CB&T convinced the two that no improper relationship existed. Allen fails to point to any evidence in the record showing that CB&T’s comments were false or that they were made with the intention to deceive Allen or deter her from timely filing her suit.

Allen claims that on or about March 10, 1982, her husband called trust officer Herin-Stag to complain about the lease on 904 Second Avenue; to complain that the rent had not been raised on 904 Second Avenue; to complain that the trust paid for a new stove on the Fortson Road property; and to complain about the hiring of an allegedly incompetent contractor on the Lee Optical property. According to Allen, CB&T assuaged her husband’s concerns. These allegations do not show any fraud. Allen fails to show that any statements made by Herin-Stag to her husband were false or made with the intention to deceive her or to prevent her from timely filing her suit.

Allen alleges that a meeting was held on September 23, 1983, to discuss the purchase of other property for the trust and after the meeting a discussion was held between the beneficiaries and HerinStag to discuss questions the beneficiaries had about the status of the trust. According to Allen, CB&T assuaged her concerns during this meeting. Once again, Allen has failed to cite any evidence in the record showing that CB&T made any false or intentionally misleading statements.

Allen claims that her husband asked Herin-Stag about the tax liabilities of the estate since the bank was continually selling the real estate assets of the trust, but she “convinced him everything was okay.” Again, Allen has failed to cite any evidence in the record showing that CB&T made any false or intentionally misleading statements which had the effect of deterring her from filing a lawsuit.

We find the record devoid of any evidence of concealment or actual fraud on the part of CB&T which deterred or debarred Allen from discovering the acts which are the basis of this action and which would have tolled the statute of limitation. Fraud cannot consist of mere broken promises, expressions of opinion, unfulfilled predictions or erroneous conjecture as to future events. As we pointed out in our summary of the facts, Allen not only admits that she received regular statements showing all the activities of the trust and that she did not read those statements, she acknowledged that the information contained in those very statements shows the mismanagement she alleges. A trust beneficiary cannot “put it on the back burner,” “shove [ ] the statements in a drawer,” sit on her rights, and then hope to bring a lawsuit clearly outside the statute of limitation period. Thus, the trial court did not err in granting CB&T’s motion for summary judgment.

2. Allen contends the trial court erred in striking certain opinions made by her forensic accountant in a one-page letter dated November 13, 1997. In the letter, the accountant states that a letter written by Herin-Stag at CB&T “may be fraudulent.” The accountant suggests that “perhaps” Herin-Stag was trying to prevent Allen’s husband from being involved in the trust “so that he would not be able to detect her lies and mismanagement.” The accountant concludes the letter: “I think that this information could very well impact the statute of limitations.”

The trial court held that the accountant’s opinions in the letter concerning fraud should be stricken. Because the accountant’s conclusions that certain acts “may” have amounted to fraud are legal conclusions for which he cannot give an expert opinion, we agree.

It is well established that an expert witness may not state a legal conclusion as to the ultimate issue. In a motion for summary judgment based on the statute of limitation, the ultimate issue to be decided is whether the statute is tolled because of fraud. Thus, the accountant’s opinions that Herin-Stag’s September 1980 letter “may be fraudulent” are not a proper basis for expert testimony. Moreover, the accountant’s conclusions regarding the possible fraud and the reasons for any possible fraud are not supported by any evidence in the record and amount to nothing more than conjecture, which is not a sufficient basis for an expert’s opinion. The trial court did not err in striking the accountant’s opinions in this letter concerning fraud.

Decided May 31, 2000.

David J. Grindle, for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, W. G. Scrantom, Jr., William L. Tucker, for appellee.

Judgment affirmed.

Miller, J., and McMurray, Senior Appellate Judge, concur. Phipps, J., disqualified.

       In 1991, the Georgia legislature specifically removed trustees from the ten-year statute of limitation imposed by OCGA § 9-3-27. It then imposed a more restrictive six-year statute of limitation for a breach of trust action. OCGA § 53-12-198.

        Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (2) (368 SE2d 732) (1988); Stocks v. Glover, 220 Ga. App. 557, 559 (1) (469 SE2d 677) (1996).

        Leon Jones Feed &c. v. Gen. Business Svcs., 175 Ga. App. 569, 570 (333 SE2d 861) (1985).

        Hunter, Maclean &c. v. Frame, 269 Ga. 844, 846 (1) (507 SE2d 411) (1998).

       Id. at 848.

       See Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 613 (2) (247 SE2d 197) (1978).

        Riddle v. Driebe, 153 Ga. App. 276, 280-281 (265 SE2d 92) (1980).

       See generally Union Circulation Co., supra.

       See McGraw v. Smith, 232 Ga. App. 513, 515 (2) (502 SE2d 347) (1998).

       See City of Atlanta v. Hightower, 177 Ga. App. 140, 143 (338 SE2d 683) (1985); Williams v. Douglas County School Dist., 168 Ga. App. 368-369 (2) (309 SE2d 386) (1983).