author: Mikell, Judge.

text:
    A01A1250.
    MASJID AL-IHSAAN, INC. v. OUDA et al.
    (553 SE2d 331)
   Mikell, Judge.

Masjid Al-Ihsaan, Inc. appeals the trial court’s dismissal of its motion for a temporary restraining order against Ibrhim Ouda, Kamal Shelbayah, and Islam Shelbayah, the appellees herein. The trial court dismissed the motion on the grounds that the issue to be resolved was beyond its jurisdiction because it involved questions pertaining to religious practices. Based on our de novo review of the record, we affirm.

The uncontroverted evidence shows that Masjid Al-Ihsaan (“Masjid”) was incorporated on March 13, 1998, exclusively for charitable, religious, and educational purposes. After its incorporation, Masjid purchased property in Clayton County and subsequently constructed a mosque, a Muslim place of worship, on the property.

The corporation and mosque were governed by a five-member board of trustees (the “board”), of which appellee Ouda was an original member. The board elected Ouda as its chairman and as the religious leader of the mosque. However, on February 14, 2000, the other four trustees executed a warrant for Ouda’s arrest for criminal trespass, after he formed another corporation and announced the election of a new seven-member board of trustees. On April 8, 2000, Ouda was relieved of his responsibilities as chairman of the board and as Masjid’s religious leader by written consent of the four trustees of the original board.

In a letter from Masjid dated April 12, 2000, Ouda was directed to cease leading prayers and proselytizing members. The letter also stated that Ouda could come upon Masjid’s property only for the five daily prayers, but could not arrive before or stay late after the daily prayers. On April 18, Masjid filed a petition for restraint of trespass against Ouda alleging that he was visiting the mosque daily for long periods of time for personal purposes, despite the board’s instructions. Masjid also alleged that Ouda espoused teachings in violation of the teachings of the Holy Quran and the prophet Muhammad and that he continued to proselytize members. An order granting the petition was entered on that same day.

Two days before the order’s expiration on August 18, 2000, Masjid filed two similar petitions against appellees Kamal Shelbayah and Islam Shelbayah. Kamal Shelbayah was also a trustee but had been removed by the board on August 13, 2000. Islam Shelbayah was Kamal Shelbayah’s son and a member of the mosque. In its petitions against the Shelbayahs, Masjid sought to restrain their continuous trespass and repeated acts of wrongdoing upon its property. Masjid alleged that Kamal Shelbayah was proselytizing members and that Islam Shelbayah was forcefully leading prayers and had brought weapons on the property to intimidate members and trustees.

After a hearing on September 14, 2000, the trial court issued its order in all three cases. Relying on United Baptist Church v. Holmes, the trial court dismissed Masjid’s motions on the grounds that the day-to-day operations of a church are beyond its jurisdiction. This appeal followed.

In Holmes, Reverend Holmes challenged the validity of United Baptist Church’s termination of his ministry and the church’s excommunication of him from its membership, internal governing procedures, and authority. This Court stated:

[T]he propriety of the termination of plaintiffs pastorate, his expulsion from membership in United Baptist Church, and internal procedures, such as quorums and determination of membership in this church, are religious matters that the court shall not question, and any church action to bar him from the premises of the church are beyond judicial review. Such matters of faith, even when brought low to a secular plane, are not subject to judicial inquiry, since plaintiff’s property rights were not involved.

Masjid argues that the trial court’s reliance on Holmes is misplaced because under Holmes, courts can determine the property rights of churches. We agree that courts are empowered to determine the property rights of ecclesiastical organizations, and that this proposition is supported by Holmes. However, we disagree with Masjid’s argument that the trial court’s reliance on Holmes is incorrect.

Decided August 1, 2001

Millar & Mixon, Bruce R. Millar, John S. Mixon, Jr., Kimberly A. Gross, Mike Bothwell, Gregory M. Simpson, for appellant.

John A. Beall IV, for appellees.

Before we can decide whether the four trustees can restrain the appellees from visiting the mosque, we would have to determine if they have the power to exercise that property right. That determination would be based on the mosque’s internal procedures, which are beyond judicial review. Thus, we do not have jurisdiction to determine the property rights in this case and, therefore, affirm the dismissal of Masjid’s motion.

Judgment affirmed.

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

       We review the grant of a motion to dismiss de novo. Project Control Svcs. v. Reynolds, 247 Ga. App. 889, 891 (1) (545 SE2d 593) (2001).

       232 Ga. App. 253 (500 SE2d 653) (1998).

       Id.

       Id. at 254.

       See Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997) (related to the dispute involved in Holmes, supra); see Bagley v. Carter, 235 Ga. 624 (220 SE2d 919) (1975).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A1267.
    HIXON v. THE STATE.
    (553 SE2d 333)
   Eldridge, Judge.

A Catoosa County jury convicted Teresa Darlene Hixon as a party for aiding and abetting Tyrone Taylor Tony Huff and Leonard Allen Smith in the commission of single counts of statutory rape and child molestation, respectively, against her minor daughter, then age 13. The superior court sentenced her to concurrent fifteen-year sentences to confinement on each offense to serve five years and the remainder probated. Defendant appeals contending: (1) that the evidence was insufficient to support her convictions, and (2) that the superior court erred in failing to merge her convictions of child molestation into those for statutory rape, requiring reversal of the child molestation convictions and the sentences thereon. We disagree and affirm.

1. One may be charged and convicted for the commission of a crime whether directly or indirectly committed. Jordan v. State, 272 Ga. 395, 396 (530 SE2d 192) (2000).

Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he [or she]: ... (3) [intentionally aids or abets in the commission of the crime; or (4) [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

OCGA § 16-2-20. If one is to be a party to a crime,

[a] common criminal intent must be proven. . . . Jones v. State, 250 Ga. 11, 13 (295 SE2d 71) (1982). While mere presence at the scene of a crime and mere approval of the criminal act do not amount to sufficient evidence to establish that a defendant is a party to the crime [whether as an aider or abettor or otherwise] (Brown v. State, 250 Ga. 862 (1) (302 SE2d 347) (1983) [; Jones v. State, 233 Ga. App. 291, 293 (2) (503 SE2d 902) (1998) (aiding and abetting encompasses concept of helping in the commission of a crime)]), criminal intent may be inferred from a defendant’s conduct before, during and after the commission of the crime. Sands v. State, 262 Ga. 367 (2) (418 SE2d 55) (1992). Evidence of a defendant’s conduct prior to, during, and after the commission of [the] criminal act will authorize the defendant’s conviction ... if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act. Simpson v. State, 265 Ga. 665 (461 SE2d 210) (1995). See also Burks v. State, 268 Ga. 504 (491 SE2d 368) (1997).

Jordan v. State, supra. That the underlying offenses were committed in the summer and early fall of 1997 as alleged is undisputed. Viewed in the light most favorable to supporting the jury’s verdict, Murray v. State, 239 Ga. App. 659 (522 SE2d 48) (1999), the evidence otherwise shows that beyond encouraging or helping her daughter in the acts in issue as to Huff, the defendant twice ordered her daughter to have intercourse with him. Moreover, upon being given use immunity, Huff testified that the defendant, in effect, authorized him to have sex with the victim daughter, telling him, “I don’t care if [you do].” That being so, there was sufficient evidence to authorize a rational trier of fact to find the defendant guilty of statutory rape and child molestation beyond a reasonable doubt as to Huff. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jordan v. State, supra; see also White v. State, 257 Ga. 236 (356 SE2d 875) (1987) (proof of principal’s guilt a necessary element in crime of one charged as aider, abettor, counselor, helper in commission of crime).

There is also evidence that the victim expressed concern to the defendant that she was pregnant by Smith. While it is not clear in the record that the defendant had earlier been aware that her daughter was involved in a sexual relationship with Smith, the record reflects that the defendant responded to her daughter’s concern by saying only that she would check into getting her birth control pills. When the victim later attempted to end her relationship with Smith, the couple fought in the presence of the defendant. Following the fight, the defendant “whipped [the victim] with a hickory for getting into the fight with [Smith].” The defendant thereafter allowed Smith to continue living in her home. Because the victim feared Smith, the victim witness coordinator of the county district attorney’s office, in coordination with the Department of Family & Children Services, arranged to have the victim live with her grandmother. After a day or two, the victim returned home where Smith, unimpeded by the defendant as a resident parent, continued to have occasional sexual intercourse with the victim. Under these circumstances, the jury could have inferred that the defendant intentionally offered her daughter “encouragement” in a continuing sexual relationship with Smith. Simpson v. State, supra. Consequently, there likewise was sufficient evidence to authorize a rational trier of fact to find the defendant guilty of statutory rape and child molestation beyond a reasonable doubt as to Smith. Jackson v. Virginia, supra; Jordan v. State, supra; White v. State, supra.

2. The defendant incorrectly argues that the instances of child molestation here merged with those of statutory rape. While it is well settled that “ ‘[a]n accused may be prosecuted for both rape and child molestation based upon the same misconduct, but . . . may not be convicted of both[,]’” Coker v. State, 164 Ga. App. 493, 495 (3) (297 SE2d 68) (1982), citing Lamar v. State, 243 Ga. 401, 403 (3) (254 SE2d 353) (1979), merger does not lie as to separate offenses. Stroud v. State, 193 Ga. App. 82, 83 (4) (387 SE2d 37) (1989). The record shows that Huff and Smith had sexual intercourse with the underage victim on multiple occasions; however, the defendant was convicted and sentenced as a party upon one count of statutory rape involving each man. To the extent that Huff and Smith had sexual intercourse with the victim more than once, each committed acts of child molestation by touching the victim’s vagina with their penises in acts of sexual intercourse entirely separate from that underlying defendant’s convictions for statutory rape. It follows that conviction and sentence for both crimes were authorized.

Decided August 1, 2001.

Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       On one occasion, the defendant obtained a county pregnancy test for her daughter when she expressed concern that she was pregnant by Huff. After learning that the result was negative and returning home, the defendant told her daughter that “[Huff] was in there in the bed and she should go in and try again.” On another occasion, the daughter having told the defendant that “[Huff] made her bleed,” the defendant told her, “[C]lean yourself up and go back in.”


text:
    A01A1270.
    BURDETTE v. THE STATE.
    (553 SE2d 340)
   Mikell, Judge.

A DeKalb County jury convicted Dennis Burdette of aggravated child molestation, aggravated sodomy, false imprisonment, and stalking. On appeal, he claims the trial court erred in admitting statements made by him to the investigating officers while in custody because the statements were not freely and voluntarily given. He also claims that the evidence was insufficient to support the convictions. We disagree and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that Burdette followed the victim, a 13-year-old boy, into the men’s bathroom at the East Lake MARTA train station. After locking the door behind him, Burdette displayed his penis and demanded that the victim perform oral sex. The victim refused, and Burdette informed the boy that they were not going anywhere until he got what he wanted. The victim then performed oral sex on Burdette. The boy left the bathroom, and Burdette followed him onto a train. Burdette wrote the name “Dennis” and a telephone number on the back of a card, and gave it to the victim.

The victim informed a MARTA employee about the incident, and MARTA police officers took the boy’s statement. The officers then called the number on the back of the card and asked the woman who answered if she knew a “Dennis.” She responded that she knew a Dennis Burdette. The victim identified Burdette from a photographic lineup and again at trial. The state presented evidence of a similar transaction in which Burdette located an underage male at a MARTA station, followed him home, and forced him to perform a sex act.

1. After questioning, Burdette confessed to engaging in a sex act with the victim, although he denied forcing or threatening the victim. Burdette argues that the trial court erred in allowing evidence of this confession.

An interrogating officer cannot induce a confession by offering hope of a lighter sentence. During cross-examination, one of the interrogating officers testified that another officer said the following to Burdette: “Q: And there was reference to. ‘You can help yourself, it looks better in court,’ that sort of thing. A: I believe there was a reference to that.”

Burdette argues that the preceding testimony is similar to that given by the interrogating officer in Askea v. State. In Askea, we held that an interrogating officer’s “remark that ‘it (i.e., telling the truth) would probably help him in court’ holds out . . . some hope of . . . special consideration if the suspect cooperates.” Accordingly, we determined that the defendant’s inculpatory statements were inadmissible.

Here, however, an interrogating officer gave direct testimony at the Jackson-Denno hearing that no reduced sentence was offered to Burdette for telling the truth and that the offer to help was an offer to help with Burdette’s illness. This officer later gave a less than definitive response to a vague question by defense counsel; however, given the other testimony, the trial court was not required to conclude that an offer of a reduced sentence had been made in return for Burdette’s confession.

When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous. Likewise, factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.

We cannot say that the trial court’s decision to allow Burdette’s custodial statement into evidence was clearly erroneous.

Decided August 1, 2001.

Andrej S. Bajuk, for appellant.

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

2. Burdette next argues that the evidence presented at trial was insufficient to support his convictions. This contention is meritless. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The victim’s testimony coupled with his in-court identification of Burdette amply supported Burdette’s convictions.

Judgment affirmed.

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

        Leigh v. State, 223 Ga. App. 726, 727 (1) (478 SE2d 905) (1996).

       153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980).

       Id.

       (Citations and punctuation omitted.) Clay v. State, 209 Ga. App. 266, 268 (1) (433 SE2d 377) (1993).

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

       See Hood v. State, 245 Ga. App. 391 (1) (537 SE2d 788) (2000).


author: Miller, Judge.

text:
    A01A1405.
    SMITH v. THE STATE.
    (553 SE2d 339)
   Miller, Judge.

A jury found Manuel Scott Smith guilty of possession of marijuana, possession of marijuana with intent to distribute, and possession of methamphetamine. Following the denial of his motion for new trial, Smith appeals, asserting several enumerations of error. Having examined each of these issues and finding no error, we affirm.

With information provided by a confidential informant, officers obtained a search warrant for Smith’s home where they found a baggie with methamphetamine residue and a bag of marijuana. Officers also found digital scales in Smith’s truck parked in the driveway of the home.

1. Smith first argues that the digital scales found in his truck should have been suppressed because the vehicle was searched without probable cause. Pretermitting the fact that Smith did not file a motion to suppress as required by OCGA § 17-5-30 (b), the trial court did not err in admitting this evidence. “The issuance of a search warrant for a certain address authorizes a search of anything within the curtilage of the described premises — i.e., the yards, grounds, gardens, bams, and buildings of an address. Vehicles parked in the driveway or elsewhere on the premises are within the curtilage.”

Decided August 1, 2001

Phyllis V. Harris, Albert C. Palmour, Jr., for appellant.

Manuel S. Smith, pro se.

2. The indictment charged Smith with four counts of recidivism, two of which were for convictions allegedly entered on March 23, 1979, and November 30, 1987. Smith contends that the indictment was defective because these two dates were incorrect. This argument is without merit, however, as the State corrected the dates the day before trial began in a notice of intent to seek sentencing under the recidivist statute. This was sufficient to give Smith notice that the State would seek to use those prior convictions in aggravation of punishment.

3. Smith argues that he was not allowed to thoroughly cross-examine an officer about hearsay information that formed the basis of the search warrant. The court, however, “resolved the question of the warrant’s validity as a matter of law and [Smith’s] inquiry before the jury was irrelevant.” Moreover “[t]he right to a thorough and sifting cross-examination is not abridged where the excluded testimony would be based upon speculation or hearsay.”

4. Smith contends that a list of drug dealers found during the search was hearsay and that testimony of an officer who located the list should not have been admitted. As Smith concedes, however, this enumeration is waived because trial counsel failed to object to this testimony at trial. Smith’s argument appears to focus on trial counsel’s failure to object to this testimony or to request a curative instruction. We will not consider this argument as Smith has not enumerated as error that he received ineffective assistance of counsel.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

       See Dixson v. State, 191 Ga. App. 410 (1) (382 SE2d 357) (1989) (failure to file a timely motion to suppress constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question); Peppers v. State, 144 Ga. App. 662, 663 (1) (242 SE2d 330) (1978) (by failing to file a written motion to suppress, defendant waived objection to evidence on the ground that it was obtained by an illegal search).

       (Citations and punctuation omitted.) Brooks v. State, 237 Ga. App. 546, 548 (2) (515 SE2d 851) (1999); Owens v. State, 202 Ga. App. 785, 786 (1) (415 SE2d 704) (1992).

       See Wainwright v. State, 208 Ga. App. 777, 778 (2) (a) (432 SE2d 555) (1993).

       (Citations omitted.) White v. State, 225 Ga. App. 74, 77 (8) (483 SE2d 329) (1997).

       (Citation omitted.) Nelson v. State, 188 Ga. App. 244 (372 SE2d 829) (1988).

        McClain v. State, 226 Ga. App. 714, 718 (3) (487 SE2d 471) (1997); see Tuten v. State, 242 Ga. App. 223, 224 (2) (529 SE2d 221) (2000).

       The trial court ruled that the list itself was inadmissible.

       See Willingham v. State, 235 Ga. App. 475, 476 (1) (509 SE2d 744) (1998) (an enumeration of error cannot be enlarged to give appellate viability to an issue not contained in the original enumeration).


text:
    A01A1447.
    SHELTON v. THE STATE.
    (553 SE2d 358)
   Eldridge, Judge.

A Gwinnett County jury found Jack Lee Shelton guilty of kidnapping with bodily injury (Count 1), aggravated assault (Count 2), and armed robbery (Count 3). Shelton was sentenced on Count 1 to life imprisonment, on Count 2 to 20 years to serve concurrent to Count 1, and on Count 3 to 20 years to serve consecutive to Count 1. Without challenging the sufficiency of the evidence, Shelton appeals from the denial of his motion for new trial, as amended, enumerating four errors of law he contends require reversal. After reviewing these issues, we find no error and affirm his convictions.

Viewed in a light most favorable to the verdict, the evidence shows the following: on September 6, 1998, the victim, a 22-year-old female, on the way back from visiting her father, stopped for gasoline at the RaceTrac gas station at the Buford Highway exit of Highway 985. While she was pumping gas, Shelton approached her and asked for a ride to a friend’s house. The victim refused, stating that she was not going in that direction. As she was putting the gas cap on her car, Shelton approached her again; grabbed her arm; put a sharp object to her side, which she thought was a knife, later determined to be a tire hole plugger; and demanded that she take him “where he wanted to go.”

After forcing the victim into the car, Shelton demanded that she proceed south on Highway 985. A couple of minutes after they entered onto Highway 985, Shelton grabbed the victim’s purse, which was on the floorboard of the car. He asked if she had any money and took a check out of her checkbook, placing it in his pocket. Shelton told the victim not to do anything stupid because he now had her home address. The victim testified that she did not stop Shelton from taking the check because she knew Shelton still had the tire hole plugger and “was afraid to tell him not to take anything at that point.”

The victim continued to drive for approximately 20 to 30 minutes, with Shelton directing her where to turn. Finally, Shelton told the victim to stop at some pay telephones by a gas station. Three men were standing by the telephones, and Shelton rolled down his window and asked “if they knew where he could get some smoke.” The three men did not speak English, and Shelton instructed the victim to drive off. About five or ten minutes later, after directing the victim to make several more turns, Shelton told the victim to pull into the parking lot of a convenience store and stop near the door. Without leaving the car, Shelton purchased a partial pack of cigarettes from a man who was walking out of the store. Then, Shelton directed the victim to drive to the corner of the store where a woman was standing. Shelton asked the lady if “he could get a 50 from her.” The woman told Shelton she would take him someplace else, got into the backseat of the car, and directed him to a nearby convenience store. On the way, the woman gave Shelton a beer at his request.

After the woman exited the car and walked over to a man, Shelton directed the victim to turn the car so that it was facing the parking lot exit. The woman returned with something in her hand and told Shelton, “I have it; where’s your money?” Shelton handed the woman a couple of dollars that were folded to look like more money, snatched the package out of the woman’s hand, and yelled at the victim to “go, go, go.” In the time it took the victim to put the car in drive, the woman reached into the car and grabbed the victim’s purse and stated, “I know where you live now.”

Shelton kept directing the victim where she should drive. While they were driving, Shelton bent the beer can and lit something on it. The victim testified that she could hear him sucking through the can. After driving around a while longer, Shelton directed the victim to pull into a church parking lot and drive to the rear of the building. Shelton made the victim get out of the car, give him the car keys, and sit on the hood of the car while he urinated. Shelton then directed the victim to get back into the car and continue driving. He finally had her stop at a bike path and drive around the posts that blocked the entrance so that the car was out of the street light and in the trees along the bike path. Shelton made the victim get out of the car and stand while he smoked what he had grabbed from the woman. Shelton then forced the victim to allow him to perform oral sodomy on her. Shelton then forced the victim to perform oral sodomy on him. Shelton attempted to have both anal and vaginal intercourse with the victim. Shelton, however, had difficulty maintaining an erection and was unable to penetrate the victim’s rectum. However, he managed to penetrate her vagina. Finally, Shelton forced the victim to again perform oral sodomy on him while he orally sodomized her.

When Shelton heard sirens nearby, he told the victim to get dressed. When the victim tried to put on her undergarments, Shelton told her to put them in the car and to put on her shorts and shirt only. Shelton then forced the victim to drive him home. When Shelton exited the victim’s car, he warned her not to tell anyone what had happened because he knew where she lived. When the victim drove off, she saw the tire hole plugger in the seat where Shelton had been sitting. The victim testified that after Shelton got out of her car, she was afraid to go home because he might follow her there. She drove immediately to American Pie, where friends worked and made an outcry. Held:

1. Shelton alleges that the trial court erred in failing to merge the aggravated assault conviction with the armed robbery conviction for the purpose of sentencing. We disagree.

While it is settled that aggravated assault is not included in robbery, armed robbery or attempted armed robbery as a matter of law, it may be included as a matter of fact. The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge.

(Punctuation and footnotes omitted.) Braswell v. State, 245 Ga. App. 602, 604 (4) (538 SE2d 492) (2000).

While the State apparently concedes in its brief that the two offenses factually merge, we do not agree. Under the facts of this case, each of the offenses is separate and distinct with independent supporting facts. The record shows that the aggravated assault charge is based on proof that at the RaceTrac gas station Shelton put a tire hole plugger, which the victim thought was a knife, to the victim’s side and forced her into her vehicle. The offense of aggravated assault was then complete. The facts which prove the armed robbery, including the intent to rob, occurred several minutes later, after the victim and Shelton had driven onto Highway 985. At this point, Shelton grabbed the victim’s purse and took a check out of her checkbook. While Shelton did not brandish the tire hole plugger at the victim contemporaneously with taking the check, the victim testified that she knew Shelton still had the tire hole plugger and was afraid to try and stop him from taking the check. “Circumstantial evidence may establish the presence of a weapon during a robbery even though the weapon is unseen. [Cit.]” Maddox v. State, 238 Ga. App. 598 (1) (521 SE2d 581) (1999). Hence, the jury was authorized to conclude that Shelton maintained control of the tire hole plugger throughout the robbery. See Culver v. State, 230 Ga. App. 224, 232 (496 SE2d 292) (1998).

2. Shelton alleges that reversal of his convictions is mandated because the videotape of Shelton’s statement to Officer Beining was not redacted to remove evidence brought up by Officer Beining regarding Shelton’s drug use. Shelton argues that such evidence improperly placed his character into evidence. We disagree. “Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. [Cit.]” (Punctuation omitted.) Davis v. State, 240 Ga. App. 301, 302 (1) (522 SE2d 729) (1999).

In this case, Officer Beining initially told Shelton that he suspected that Shelton’s need for drugs was a compelling factor which motivated him to commit the acts under investigation and questioned Shelton about his use of drugs. Shelton admitted that cocaine was a very addictive drug and stated that he used cocaine and marijuana approximately two and one-half years earlier, that it ruined his life, but that he no longer used drugs. After this initial discussion of Shelton’s possible drug addiction as a motive for his actions, Shelton denied all of the victim’s allegations and stated that he met the victim at the RaceTrac gas station and she offered him a ride home. At this point, Shelton denied having any sexual encounter with the victim. Following Shelton’s denial of the victim’s allegations, Officer Beining once again told Shelton that he felt that his “crack” problem was the reason he committed the offenses against the victim. Shelton then asked Officer Beining to “get me some kind of help.” He admitted that he abducted the victim by threatening her with a tire hole plugger; that he took her check from her checkbook; that he forced her to drive him to obtain drugs; that he took the drugs from the woman at the convenience store without paying for them, causing the woman to steal the victim’s purse; that he smoked the crack cocaine; and that he sexually assaulted the victim. At the end of his confession, Shelton once more told Officer Beining that “I need help.” Based on Shelton’s statements that he needed help, it would be reasonable for the jury to infer that Shelton’s drug use was Shelton’s motive for committing the crimes he was accused of. This is especially true in light of the victim’s testimony that, when Shelton abducted her, Shelton stated that “he wanted to go and have a good time, and as long as I cooperated with him, he wouldn’t hurt me physically or sexually” and that Shelton was initially preoccupied with obtaining and using drugs.

[A]lthough motive is not an essential element in proving the crime charged, the State is entitled to present evidence to establish that there was a motive, and evidence that the defendant [used]. drugs is relevant to prove that he had a motive for committing the crime and is not rendered inadmissible by the fact that it incidentally puts his character in issue.

(Citation and punctuation omitted.) Davis v. State, supra. See also Brady v. State, 270 Ga. 574, 578-579 (513 SE2d 199) (1999).

Moreover, the evidence Shelton complains of is cumulative of the victim’s testimony of Shelton’s drug use and of Shelton’s own testimony at trial that he and the victim were riding around looking for drugs and that he smoked some of the cocaine they purchased. “The admission of cumulative evidence is harmless. [Cit.]” Jowers v. State, 245 Ga. App. 773, 776 (6) (538 SE2d 853) (2000).

3. Shelton alleges that the trial court erred in denying his motion to redact Officer Beining’s comments regarding the victim’s credibility from the videotape of the interview. Specifically, Shelton objects to Officer Beining’s stating, “Jack, Jack, let me tell you something. This girl isn’t lying to me, and you hurt her, OK?”

“The credibility of a witness is a matter to be determined by the jury. OCGA § 24-9-80. Georgia does not allow witnesses to opine that a party or victim is lying or telling the truth, for under this statute credibility is a matter solely within the province of the jury. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Citations and punctuation omitted.) Rose v. Figgie Intl., 229 Ga. App. 848, 857 (3) (a) (495 SE2d 77) (1997).

In this case, the comment that Shelton objects to is not the sworn testimony of a witness at trial, but is part of a videotaped interview between Officer Beining and Shelton in which Officer Beining makes this statement to elicit a response from Shelton as to the truth of what happened. When Officer Beining testified at trial, he made no comment on the victim’s truthfulness. However, we need not address whether the failure of the State to redact Officer Beining’s statement from the videotape is error. We conclude that, even if error, given the overwhelming evidence of Shelton’s guilt and the context of the evidence as a whole, it is highly probable this remark did not contribute to the verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

4. In his final enumeration of error, Shelton alleges that the trial court erred in denying defense counsel’s motion to redact victim impact material from the videotape of the interview shown to the jury. However, Shelton did not object to the admission of the video on this ground at trial. “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. [Cits.]” (Punctuation omitted.) Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). “The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching or shifting. [Cit.]” (Punctuation omitted.) Parrish v. State, 237 Ga. App. 274, 280-281 (4) (514 SE2d 458) (1999). Accordingly, Shelton waived this issue on appeal.

Decided August 1, 2001.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

       The acts of sexual assault occurred in DeKalb County and are not part of the instant appeal.


text:
    A01A1485.
    MILLS v. THE STATE.
    (553 SE2d 353)
   Eldridge, Judge.

A Bibb County jury found Zach Mills guilty of two counts of aggravated child molestation and one count of child molestation based upon acts Mills perpetrated against his fifteen-year-old stepdaughter, S. M., and her fifteen-year-old friend, H. B. He appeals, alleging four errors of law and challenging the sufficiency of the evidence introduced against him. Upon review of these claims of error, we affirm Mills’ conviction.

We note at the outset that Mills has failed completely to comply with Court of Appeals Rule 27 (a) (1), which requires that an appellant provide this Court with “a statement of the method by which each enumeration of error was preserved for consideration.” The honor of practicing in this Court should be accompanied by a sound understanding of our rales. It is not the function of this Court to cull the record on behalf of any party in order to determine which issues have been properly preserved for appeal. In an eight-volume transcript, this principle takes on added heft. However, the seriousness of the criminal charges in this case and our responsibility to address alleged errors brought before us, as well as Mills’ otherwise earnest recitation of the law in relation to the alleged claims of error, persuade us to address the instant enumerations.

1. In his first enumeration of error, Mills contends the trial court erred in permitting the State to introduce similar transaction evidence showing that Mills previously participated in sexual activity involving two women, euphemistically referred to in the court below as a “threesome.” He contends the fact that the prior acts evidence involved , a nineteen-year-old female and his former wife, as opposed to two fifteen-year-old females, prohibited the introduction of such evidence as unconnected to the acts charged in this case. We disagree.

The prior acts evidence occurred during approximately the same time frame as the indicted offenses. The evidence was that, specifically at Mills’ urging, his former wife (S. M.’s mother) convinced her very reluctant 19-year-old goddaughter — who was living with Mills and his wife at the time and who considered Mills to be a father figure — to engage with her in sexual activity which included Mills and which resulted in Mills’ sexual intercourse with the 19-year-old.

The case-in-chief evidence shows that, specifically at Mills’ urging, fifteen-year-old S. M. convinced her very reluctant best friend, H. B. — who was spending the night at the Mills residence, a frequent occurrence — to engage in sexual activity with her while Mills watched and which resulted in Mills’ sexual intercourse with S. M. Mills was indicted for having sexual intercourse with S. M. and for “encouraging the girls to perform oral sex upon one another as he watched.”

The prior acts evidence was admissible to demonstrate Mills’ lustful disposition, his sexual behavior toward the teenage girls under his roof, his conduct and bent of mind toward engaging in “threesomes” with the females who stayed with him, and to corroborate the victim’s testimony that such conduct occurred in the instant case. As such, the evidence was sufficiently similar to establish a logical connection between the independent act and the charged offense so that proof of one tended to prove the other.

Contrary to Mills’ assertions, we are not troubled by the fact that Mills’ “threesome” with his wife and her young goddaughter did not involve two fifteen-year-old teenagers, as did the “threesome” in the case-in-chief. “[S]imilar transaction evidence is not limited to a defendant’s previous illegal conduct.” Here, regardless of the age of the teenager involved, the evidence shows that Mills urged, encouraged, and engaged in specific sexual conduct involving multiple young females who were staying under his roof and who were under his authority so as to corroborate and establish a factual nexus between the independent act and the specific acts about which S. M. and H. B. testified. “Similar transactions need not be identical to be admitted, and in cases involving sexual offenses, that rule is to be liberally construed. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible.” We find no such abuse here.

Under this same enumeration of error, Mills contends he was “hamstrung” in defending against the prior acts evidence because the trial court would not permit him to cross-examine his former wife about allegedly engaging in “threesomes” with her current husband. However, “[Mills] waived this issue on appeal by failing to object to the trial court’s ruling.”

2. Next, Mills contends he was denied a thorough and sifting cross-examination of victim S. M. when the trial court would not permit him to go into the details of S. M.’s sexual activity in order to “show that she had a reason to charge Appellant with child molestation, namely that he was trying to expose her lesbian tendencies.”

Under this enumeration, Mills fails to identify any aspects of S. M.’s sexual activities which were improperly excluded by the trial court. From culling Mills’ brief in relation to the record and in relation to the trial court’s order on Mills’ pretrial motions, we can only assume Mills’ contention refers to the trial court’s refusal to permit two potential defense witnesses, H. F. and S. D., to testify that S. M. allegedly falsely accused them of wanting to engage in a lesbian relationship with her. However, we find no error.

Evidence of prior false accusations of sexual misconduct made by the prosecutrix is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. However, before evidence of a prior false accusation can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists. Defendants have the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of sexual misconduct. Finally, a trial court’s ruling upon the admissibility of such evidence will not be overturned absent an abuse of discretion.

During a pretrial hearing, the trial court heard from both of these “false allegation” witnesses, as well as from S. M. regarding her relationship with each. The trial court determined that the testimony of H. F. and S. D. was not credible: “Defendant has failed to meet the threshold standard of a reasonable probability of falsity concerning these alleged false allegations and therefore [the court] excludes evidence of the same.” This credibility determination was based upon the court’s perceptions of the victim’s demeanor and testimony in relation to that of H. F. and S. D. Such credibility determination was additionally supported by evidence that H. F. wrote a letter expressing her desire to pursue a lesbian relationship with the victim and by S. D.’s refusal to listen to the attorneys’ questions before vehemently denying any relationship:

[Attorney:] At any time were you involved in a relationship with —.
[S. D.] No. . . .
[Attorney:] You have no interest in females in a sexual —.
[S. D.] None whatsoever.
[Attorney:] — relationship; is that right?

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the [evidence] will be upheld on appeal.” We find no clear error here.

Moreover, detailed evidence regarding S. M.’s lesbian relationships went before the jury, and two of S. M.’s alleged partners were permitted to testify that no such relationship existed, claiming that S. M. fabricated such. Mills put forward the defense that his exposé of S. M.’s lesbian activities triggered her allegedly false charges against him. The jury did not believe it. Mills fails to explain how the addition of the evidence about which he complains would have altered this outcome, especially since the trial court, sitting as finder of fact, found such evidence to be singularly unconvincing. It is clear that Mills must demonstrate harm as well as error in order to obtain a reversal.

3. Mills contends the trial court erred in failing to allow his expert in forensic psychology, Dr. James Stark, to testify. However, in again culling through the record, we discovered that Mills’ defense counsel specifically stated: “if they [the State] don’t call their expert, I have to agree if they don’t call Tillitski, I can’t have Dr. Stark testify.” The State did not call its expert, Dr. Tillitski, and thus defense counsel’s concession leaves nothing for this Court to review.

Further, Dr. Stark’s testimony was proffered by defense counsel as admissible “for the purpose of showing the alleged victim’s psychosocial tendency of her lying, the desires of revenge, all the things that he [Stark] talked about in explaining her behavior.” Before this Court, Mills argues that Stark’s testimony should have been admitted in order to show that the victim “would be prone to using sex as a tool to exercise power over adults, even to the point of making false allegations of child molestation.” But we have found that “[a]¡though a medical expert may testify that certain symptoms or history described by a child are consistent [or inconsistent] with molestation, an expert cannot directly or indirectly vouch for the victim’s credibility.” Accordingly, we find no error in the trial court’s ruling.

4. A recitation of the explicit facts of this case is unnecessary for resolution of any legal issue raised herein. As to Mills’ challenge to the sufficiency of the evidence, we reject it and find from our review of the record that the testimony of S. M. and of H. B. is sufficient to factually demonstrate the elements of the sexual offenses for which Mills was convicted. Mills argues only that the State’s witnesses were “highly suspect and contradictory,” which argument goes solely to credibility when “[t]he testimony of a single witness is generally sufficient to establish a fact[, and t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court.”

5. Mills contends the trial court erred in denying his motion for new trial based upon newly discovered evidence. He claims a new trial is required by the discovery of a male witness who could testify that he had a single incident of sexual intercourse with S. M. when she was 15 and he was 17.

As set forth in Timberlake [v. State, 246 Ga. 488 (1) (271 SE2d 792) (1980)], on motion for a new trial based on newly discovered evidence, it is incumbent that the movant satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. Failure to show one requirement is sufficient to deny a motion for new trial.

Here, Mills’ claim based upon newly discovered evidence must fail since: (1) no affidavit was submitted to establish the alleged newly discovered facts, nor was its absence accounted for; and (2) the evidence as proffered went only to the impeachment of victim S. M.’s testimony that she had not had sexual intercourse with a male other than Mills and did not go to the issue of whether Mills was guilty of the offenses as charged in the indictment. Thus, such evidence provided no basis for new trial, and there was no error in the trial court so holding.

Decided August 1, 2001

Debra G. Gomez, A. James Rockefeller, for appellant.

Howard Z. Simms, District Attorney, Barbara A. Becraft, Nancy S. Malcor, Myra H. Kline, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        Phagan v. State, 268 Ga. 272, 279 (4) (486 SE2d 876) (1997).

       See Caldwell v. State, 263 Ga. 560, 564 (13) (436 SE2d 488) (1993).

       (Footnotes omitted.) Roberts v. State, 242 Ga. App. 621, 626 (2) (b) (530 SE2d 535) (2000).

       (Citation omitted.) McIntosh v. State, 247 Ga. App. 640, 643 (2) (545 SE2d 61) (2001).

       (Citations and punctuation omitted.) Kelley v. State, 233 Ga. App. 244, 251 (5) (503 SE2d 881) (1998); see Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989).

        Granados v. State, 244 Ga. App. 153, 155 (4) (534 SE2d 886) (2000).

        Davis v. State, 266 Ga. 801, 804 (9) (471 SE2d 191) (1996).

       (Footnotes omitted.) Gosnell v. State, 247 Ga. App. 508, 510 (2) (b) (544 SE2d 477) (2001).

       (Punctuation and footnotes omitted.) Jaber v. State, 243 Ga. App. 562, 563 (533 SE2d 767) (2000).

        Carter v. State, 273 Ga. 428, 429 (2) (541 SE2d 366) (2001).

        Moore v. State, 268 Ga. 420, 421-422 (2) (489 SE2d 842) (1997).


text:
    A01A1525.
    GRIFFIE v. THE STATE.
    (553 SE2d 198)
   Miller, Judge.

Colin Griffie was indicted for trafficking in cocaine and moved to suppress the cocaine discovered on his person by police. The evidence revealed that police saw a small amount of cocaine on Griffie’s person in plain view, so the trial court held that the subsequent arrest and search of Griffie were valid and denied the motion. In a bench trial police testified that they found 29.3 grams of cocaine in Griffie’s underwear, and the trial court convicted Griffie of trafficking in cocaine.* Griffie appeals the denial of his motion to suppress, arguing that police were without authority to remove the small amount of cocaine from his person that led to his arrest and search. He contends further that the admission of any contraband at his bench trial was error.

In reviewing a trial court’s order on a motion to suppress, we are guided by three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of fact[ ]. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So construed, the evidence shows that when Officer Hite observed a vehicle run a red light and fail to maintain its lane, he stopped the vehicle. Witnessing manifestations of cocaine influence in the driver, Officer Hite asked the driver to step out and to the rear of the vehicle and then requested and was granted consent to search the vehicle. To conduct the search, Officer Hite asked the car’s passenger (defendant Griffie) to also step out and to the rear of the vehicle. As Griffie exited the vehicle, he turned away from Officer Hite and put his hands in his pants. The officer grabbed his arm and instructed Griffie not to put his hands in his pants. Nevertheless, as he and Officer Hite proceeded to the rear of the vehicle, Griffie again tried to put his hands in his pants, resulting in Officer Hite directing Griffie not to move.

Leaving Griffie with a second officer at the rear of the vehicle, Officer Hite turned to go search the vehicle, whereupon the second officer announced that Griffie “was messing with his pants again.” Officer Hite turned back and witnessed the second officer immediately remove a small plastic bag containing cocaine from the belt area of Griffie’s pants. Placing Griffie under arrest, Officer Hite searched Griffie’s person and discovered additional drugs, including a baseball-sized amount of cocaine weighing 29.3 grams.

The trial court found that Griffie’s repeated attempts to put his hands in his pants caused the second officer to focus closely on those pants and to discover in plain view in the belt area a small bag of cocaine that led to Griffie’s arrest and subsequent search. Even though the second officer did not testify, Officer Hite’s testimony was sufficient to allow the inference that such occurred. Accordingly, under the “any evidence” standard of review set forth above, we accept the trial court’s findings in this regard.

Observing in plain view a plastic bag containing drugs in defendant’s possession authorizes the warrantless seizure of those drugs and the arrest of defendant, so long as the officer was lawfully in position to obtain the view, the discovery was inadvertent, and the object viewed is immediately seen to be incriminating. Here the evidence and inferences therefrom show that the traffic stop was justified, the discovery of the small plastic bag was caused by Griffie’s own actions, and the visible white powder in the bag was incriminating. Having lawfully seized the baggie of cocaine, the officers had probable cause to arrest Griffie and to search his person incident to the arrest. Accordingly, the trial court did not err in denying Griffie’s motion to suppress and in allowing the contraband to be introduced at trial.

Decided August 1, 2001.

Douglas N. Fox, for appellant.

Patrick H. Head, District Attorney, Donald T. Phillips, Dana J. Norman, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See OCGA § 16-13-31 (a) (1).

       (Citations and punctuation omitted; emphasis omitted and supplied.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Samuel v. State, 198 Ga. App. 558, 560 (2) (402 SE2d 325) (1991).

       Id. at 560 (3); see OCGA § 17-5-1 (a).

        Samuel, supra, 198 Ga. App. at 560-561 (3).


author: Eldridge, Judge. Andrews, Presiding Judge,

text:
    A01A1548.
    WILLIAMS v. TRUETT.
    (553 SE2d 350)
   Eldridge, Judge.

Appellant/plaintiff Jeffrey L. Williams brought the instant damages action against his longtime close friend appellee/defendant Danny Truett for injuries he sustained when he slipped and fell on a carpet scrap while visiting at Truett’s double-wide mobile home. Claiming status as Truett’s invitee, Williams contends that the proximate cause of his accident was Truett’s negligent failure to keep and maintain his home in a safe condition. The Haralson County Superior Court granted Truett’s motion for summary judgment. On appeal, Williams challenges summary judgment for Truett, variously arguing that jury questions exist as to whether Truett exercised ordinary care to prevent his injuries. Finding evidence upon which a jury could infer that Truett had superior knowledge of the condition of the carpet scrap as alleged to have caused Williams’ fall, we reverse.

Upon the appeal of a grant of summary judgment, this Court reviews the grant of summary judgment de novo to determine whether any genuine issue of material fact exists for resolution by jury. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is proper where the moving party is able to show that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Has-kins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in the light most favorable to nonmovant Williams, the evidence reveals that Truett invited Williams to his mobile home on February 26, 1999, to share in celebrating the Williamses’ anniversary by joining them in a motorcycle ride. Williams arrived at Truett’s trailer in the early evening, and as the two were talking in the backyard a short time later, Truett told Williams that his girlfriend called earlier. Williams then went into the trailer to return his girlfriend’s call. When he returned, Williams stepped onto an unattached piece of indoor-outdoor carpet measuring two feet by two feet which Truett had cut with his knife and laid on the landing at the top of the stairs to keep mud from being tracked into the mobile home. Williams slipped and fell down the stairs thereafter, breaking his left ankle in two places.

It is undisputed in the record that Williams was visiting Truett as a social guest. As a consequence, Williams’ legal status was that of a licensee. OCGA § 51-3-2 (a); Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998); Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331) (1968). Contending that he was an invitee, Williams argues that Truett owed him a duty to exercise ordinary care in keeping his mobile home and the approaches to it safe. See OCGA § 51-3-1; Cooper v. Corporate Property Investors, 220 Ga. App. 889, 891 (470 SE2d 689) (1996). Truett, in turn, argues Williams’ status as a bare licensee, contending that he is liable only for wilful or wanton injury to Williams. See OCGA § 51-3-2 (b); Odum v. Gibson, 245 Ga. App. 394, 395 (537 SE2d 801) (2000). Each correctly argues the standard of care owed invitees and licensees by landowners or other occupiers of land. However, that the foregoing standards of care are ordinarily distinguishable is of no consequence in this case because “it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.” Cook v. Southern R. Co., 53 Ga. App. 723, 726 (3) (187 SE 274) (1936); Cooper v. Corporate Property Investors, supra.

As a consequence, ordinary care and diligence must be exercised to prevent injuring a licensee after the presence of the licensee is known or reasonably should have been anticipated, making the owner’s duty of care in such circumstances the equivalent of the duty of care which would have been owing had the licensee been an invitee. Cooper v. Corporate Property Investors, supra; Wade v. Mitchell, 206 Ga. App. 265, 267 (2) (c) (424 SE2d 810) (1992). In such cases, however, a possessor of land is subject to liability for physical harm caused a licensee by a condition on his premises

if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensee [ ], and should expect that [the licensee] will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensee [ ] of the condition and the risk involved. . . . [Cit.] London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (2) (267 SE2d 214) (1980).

(Punctuation omitted.) Cooper v. Corporate Property Investors, supra. In this event, the true ground of liability to the licensee/invitee is the owner’s superior knowledge of the hazard. Id.; see also Kroger Co. v. Brooks, 231 Ga. App. 650, 651 (500 SE2d 391) (1998) (invitee may recover for injury upon a slip and fall only when perilous instrumentality known to owner or occupant and not known to person injured).

In the instant circumstances, Truett deposed that he placed the carpet scrap in issue the afternoon before Williams’ accident; that nothing was unusual about the carpet scrap, i.e., its edges were uncurled and it was uncreased; that he had experienced no difficulty in traversing the carpet scrap in the day that it had been down; and that no one had fallen on the stairs since they had been built. No longer authorized to rest on his pleadings, Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998), Williams presented his affidavit in which he stated, as he had deposed, that the carpet scrap had slipped forward over the top step of the stairs as he stepped on it, causing him to lose his balance and fall. Affiant Williams further stated that after he fell Truett told him that he (Truett) put the offending carpet scrap down while Williams returned his girlfriend’s call and that the carpet scrap was the probable cause of the accident. The evidence thus was in conflict as to when the carpet scrap was laid on the landing; whether Williams or Truett had previously traversed the carpet scrap, and, if so, whether there had been any difficulty in doing so; and whether the carpet scrap was creased and in contact with the landing on only two points or uncreased and fully lying on the landing. Moreover, Williams’ affidavit stating that Truett told him he laid the carpet scrap during the time he (Williams) was talking to his girlfriend by telephone is in conflict and inconsistent with Truett’s deposition testimony in support of his motion for summary judgment on this issue. As we earlier have held, “the non-moving party can withstand a motion for summary judgment by submitting sworn testimony averring personal knowledge of ... a prior inconsistent statement made by the witness upon whose sworn testimony the movant relies.” (Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538, 539-540 (492 SE2d 678) (1997).

Under these circumstances and viewing the evidence in the light most favorable to Williams, as we are required to do, Lau’s Corp. v. Haskins, supra, the grant of summary judgment to Truett was error in that genuine issues of material fact remain as to whether Truett had superior knowledge of the hazard in issue as alleged. Kroger Co. v. Brooks, supra; Cooper v. Corporate Property Investors, supra.

Judgment reversed.

Miller, J., concurs. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

While visiting Truett, Williams slipped and fell on a loose piece of carpet scrap placed by Truett at the top of steps leading from Truett’s residence. There was conflicting evidence over whether the carpet was already there when Williams entered the residence to make a telephone call, or whether Truett placed it there after Williams went inside. Williams said the carpet was not there when he went in the residence, but Truett said he put it there prior to that day. Williams deposed that he was focused on the steps as he came out of the residence, and that he first saw the carpet scrap as he stepped on it. According to Williams, the carpet “shot out” when he stepped on it causing him to lose his balance and fall down the steps. Williams said the carpet had a crease in it, as if it had been folded, and that this prevented the carpet from lying flat. Truett said he did not recall any crease in the carpet or anything else unusual about the carpet. There was no evidence that anyone else had previously slipped on the carpet or the steps.

Construing this evidence in favor of Williams, factual issues were presented as to: (1) whether there was a creased or raised condition in the carpet that created a hazard that caused or contributed to Williams’ slip and fall; (2) whether Truett had superior knowledge of the hazard, if any; and (3) whether Williams exercised ordinary care for his own safety to discover and avoid the hazard, if any.

This analysis is not changed by Williams’ status as a guest-licensee. King v. King, 226 Ga. App. 791 (487 SE2d 510) (1997).

Decided August 1, 2001.

Jack F. Witcher, for appellant.

Downey, Cleveland, Parker & Williams, George L. Welborn, for appellee.

       To state a cause of action in a slip and fall case, “the plaintiff must show (1) that the defendant had actual or constructive knowledge of the [hazard] and (2) that the plaintiff was without knowledge of the [hazard] or for reason attributable to the defendant was prevented from discovering the [hazard].” (Punctuation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997), citing Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).


text:
    A01A1593.
    SHUE v. THE STATE.
    (553 SE2d 348)
   Mikell, Judge.

James R. Shue was indicted for kidnapping with bodily injury but convicted of false imprisonment as a lesser included offense. The trial court sentenced Shue as a recidivist to ten years imprisonment. On appeal, Shue challenges the sufficiency of the evidence to support his conviction and the admission of the photographic lineup into evidence. We affirm.

On appeal, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. So viewed, the evidence shows that on May 17, 2000, at approximately 1:00 a.m., Michelle Guthrie stopped at a gas station in Columbus to use a pay phone. While speaking with her boyfriend on the telephone, Guthrie testified that she noticed a man standing four or five feet away, leaning against his vehicle. Guthrie later identified the man as Shue.

Guthrie assumed Shue was waiting to use the phone. However, when Guthrie concluded her call and walked to her vehicle, she testified that Shue put his fist in her back and threatened to kill her unless she got into her car. Guthrie testified that when she pushed Shue away and turned to enter her car, Shue put his arm around her neck and attempted to choke her. She lost consciousness and awoke inside her vehicle, straddling the console. Guthrie later explained that when she awoke, Shue was standing outside her vehicle, trying to push her into the passenger’s seat. Guthrie testified that she held onto the steering wheel and honked the horn. Shue swore at her, called her a “psychotic idiot” and walked away. Guthrie drove to her boyfriend’s house and called the police.

Officer Ashley Jamerson responded. He testified that Guthrie reported to him that Shue put his hands around her throat and started forcing her into her car. Guthrie then told him that she screamed and honked the horn, and Shue ran away. On cross-examination, Officer Jamerson admitted that he indicated in his report that Guthrie got into her car after Shue fled.

Shue testified that while stopped at the gas station he noticed Guthrie sitting on the curb, whimpering. According to Shue, he helped her stand up and opened her car door. Shue then testified that as Guthrie sat in her car, she said, “What are you doing? I don’t know you.” Guthrie started honking the horn. Shue slammed her car door and called her a “stupid bitch.” He watched her drive away, then left.

1. Shue argues that the evidence cannot sustain his conviction of false imprisonment as a lesser included offense of kidnapping. Shue contends that under the evidence presented at trial, he was either guilty of the offense of kidnapping or not guilty of any offense. We disagree.

False imprisonment is committed by “an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” The only difference between false imprisonment and kidnapping is that kidnapping requires asportation.

“Asportation” is defined as “a carrying away.” “[T]he asportation element may be satisfied by slight movement on the part of the victim.” Shue contends that if the jury believed Guthrie’s testimony, then the evidence demanded a finding that he “carried her away”; but if the jury believed Shue’s testimony, then the evidence was insufficient to support his conviction of any crime. In other words, he asserts that either the detention occurred with asportation or it did not occur. We disagree. While the evidence would have supported a finding of asportation, such a finding was not demanded. Rather, the evidence of asportation was in conflict. Officer Jamerson testified that he had written in his report that Guthrie got into her car after Shue fled. A jury is entitled to believe part of a witness’ testimony and discount or disregard the rest of the witness’ testimony. In this case, the jury could have believed Guthrie’s testimony that Shue held her against her will but discounted her testimony that he pushed her into the car. Thus, the jury could have found that Guthrie was detained without having been carried away and therefore falsely imprisoned but not kidnapped. The evidence is sufficient to sustain Shue’s conviction.

Decided August 1, 2001

Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

2. Shue next contends that the trial court erred in denying his motion in limine to exclude evidence of the photographic lineup. In his motion, Shue did not argue that the lineup was impermissibly suggestive. Rather, he argued that the risk of unfair prejudice outweighed the probative value of the lineup because Shue did not intend to challenge the state’s evidence that Shue was the person whom Guthrie encountered at the gas station. However, a careful reading of the record reveals that Shue never offered to stipulate to his identity in lieu of requiring the state to prove identity. Accordingly, the trial court did not abuse its discretion in admitting the challenged evidence. Further, Shue’s argument that the photographic lineup impermissibly placed his character into evidence is controlled adversely to him by Milsap v. State.

Judgment affirmed.

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

       Shue was also indicted for simple battery, but the jury acquitted him of that charge.

        Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998).

       (Punctuation and footnote omitted.) Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998); OCGA § 16-5-41 (a).

       OCGA § 16-5-40 (a).

        Sallie v. State, 216 Ga. App. 502, 503 (455 SE2d 315) (1995).

       Webster’s New Intl. Dictionary (2nd ed.), unabridged. See also Estes v. State, 234 Ga. App. 150, 151 (505 SE2d 840) (1998).

        Estes, supra, 234 Ga. App. at 151.

        Hicks v. State, 221 Ga. App. 735, 736 (1) (472 SE2d 474) (1996).

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

       196 Ga. App. 820, 822 (2) (397 SE2d 168) (1990).


text:
    A01A1706.
    SCHOOLFIELD v. THE STATE.
    (554 SE2d 181)
   Eldridge, Judge.

A Clayton County jury convicted defendant Loyd C. Schoolfield of one count of driving under the influence to the extent it was less safe for him to drive* (Count 1) and one count of driving a moving vehicle while his alcohol concentration was more than 0.10 grams (Count 2), a per se violation. He was sentenced to confinement for twelve months, to serve two days, and the remainder probated; a $600 fine; and eighty hours community service. On appeal, the defendant contends the state court erred in denying his motion for new trial, as amended, challenging the testimony of the arresting officer as going to the ultimate issue, the State’s similar transaction evidence, and the sufficiency of the evidence. Finding defendant’s claims of error to be without merit, we affirm.

Viewed in the light most favorable to the verdict, Green v. State, 244 Ga. App. 565 (1) (536 SE2d 240) (2000), the evidence shows that at 10:30 p.m. on September 9, 1999, Officer John P. Crolle was dispatched to a Clayton County gas station upon a report of a suspicious vehicle in its parking lot. There, Officer Crolle found the defendant “passed out or asleep” behind the wheel of a parked vehicle outside the gas station. Officer Crolle testified that the vehicle was running; that the vehicle smelled of vomit and alcohol; that the defendant had vomit in his hair and on his clothing, was disheveled, and had urinated on himself; and that the defendant told him that he had been sick when asked for an explanation as to why he had stopped the vehicle as he had. The defendant tested poorly on the field sobriety tests that Officer Crolle administered on the scene, inclusive of an alco-sensor test confirming the presence of alcohol in the defendant’s system. On this, Officer Crolle took the defendant into custody.

Through counsel at trial, the defendant stipulated to a State-administered blood alcohol test which showed that his blood alcohol content was 0.18. On direct, the defendant also admitted that he pled guilty to the State’s 1997 similar transaction evidence, a conviction for DUI arising out of circumstances in which he was stopped for speeding and cutting the arresting officer off in traffic. The defendant, however, denied having been the driver in the instant case, testifying that his girlfriend drove him to the gas station where he was found; that they fought; that she left him in the vehicle with the engine running; and that he shifted to the driver’s seat thereafter. The defendant’s girlfriend and another witness corroborated this testimony.

1. The defendant first contends that the state court erred in allowing State’s witness, Officer Crolle, to give his opinion as to the “ultimate issue” in the case, i.e., that “a person is in control of a moving vehicle when [the individual] is on the driver’s side of a car with the motor running.”

The record reflects that defendant’s counsel moved for a mistrial or a curative instruction after Officer Crolle testified on direct as follows:

[State’s attorney]: Now, back to the original point when you arrested him. We all know why you might arrest somebody that you see for weaving over the lanes and turns out to be drunk. Why did you arrest this defendant for driving under the influence?
[Officer Crolle]: In the State of Georgia, being in physical control of the vehicle qualifies. The car was running. He had

The state court denied the motion for mistrial but gave this curative instruction:

Ladies and gentlemen, it is important that you realize that the law applying] to this particular case, as in any case, comes from the Court. It does not come from any witness that you might hear from throughout the trial of this case. And so, any opinions you hear about what the law may or may not be from witnesses should be disregarded by you. You will receive the law of the case from the Court when the Court charges you with the law after you have heard the evidence.

Thereafter, defendant’s counsel renewed his motion for mistrial, and again the state court denied it.

Mistrial can be avoided arising out of improper testimony upon the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. Landers v. State, 194 Ga. App. 329 (1) (390 SE2d 302) (1990), citing Sabel v. State, 250 Ga. 640, 644 (300 SE2d 663) (1983), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984). In the present case, the complained-of expert opinion testimony, though error, was harmless as only cumulative of other evidence of record indicating the defendant had physically been in control of a moving vehicle. Officer Crolle asked the defendant why he stopped the vehicle and the defendant answered that he had been sick; thus, the jury was authorized to infer that the defendant had driven the vehicle in issue — this particularly in light of circumstantial evidence otherwise showing that Officer Crolle found the defendant in the driver’s seat unconscious and that the vehicle was running. Driving under the influence may be shown by circumstantial evidence. Jones v. State, 187 Ga. App. 132, 133 (1) (369 SE2d 509) (1988). It is well settled that being found slumped over the steering wheel with the engine running constitutes such evidence. Jenkins v. State, 223 Ga. App. 446, 447 (1) (478 SE2d 143) (1996); Jones v. State, supra. Given this and in light of the strong curative instruction the trial judge gave the jury, we conclude that the state court did not abuse its discretion in denying defendant’s motions for mistrial.

Decided August 1, 2001.

Lee Sexton, for appellant.

Keith C. Martin, Solicitor-General, Matthew M. McCord, Kristin R. Campbell, Assistant Solicitors-General, for appellee.

2. The state court did not err in admitting the State’s similar transaction evidence. Such evidence was admissible to demonstrate the defendant’s bent of mind and course of conduct in driving after consuming alcohol.

Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so. (Citations omitted.) Smith v. State, 236 Ga. App. 548, 552 (3) (512 SE2d 19) (1999), rev’d on other grounds, 272 Ga. 83 (526 SE2d 59) (2000).

Green v. State, supra at 567 (2).

3. Contrary to the defendant’s assertions, Officer Crolle’s testimony and the State-administered blood alcohol content result to which the defendant stipulated were sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of driving under the influence of alcohol. However, on sentencing the state court neither merged one count into the other nor indicated to which count the sentence applied. As a consequence, the sentence was improper. Hewett v. State, 244 Ga. App. 112-113 (534 SE2d 867) (2000). Because “ ‘it is apparent from the transcript that for purposes of sentencing the trial judge considered the charges alternative and sentenced [the defendant] for only one offense [,]’ ” id. at 113, citing Hoffman v. State, 208 Ga. App. 574, 576 (2) (430 SE2d 886) (1993), and Page v. State, 202 Ga. App. 828, 830-831 (4) (415 SE2d 487) (1992), we vacate Count 2 (the “per se” DUI conviction) and affirm Count 1 (the “less safe to drive” DUI conviction) without remand. Hewett v. State, supra at 113.

Judgment affirmed as to Count 1. Judgment vacated as to Count 2.

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

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

       Alco-sensor testing is in the nature of a field sobriety test. Keenan v. State, 263 Ga. 569, 572 (2) (436 SE2d 475) (1993). Alco-sensor results are not used to establish blood alcohol content. Rather, “the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol. [Cits.]” Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985).

       The trial judge sentenced the defendant as permissible for a “second” DUI conviction within a five-year period. OCGA § 40-6-391 (c) (2).


author: Barnes, Judge.

text:
    A01A0917.
    BOB DAVIDSON & ASSOCIATES, INC. et al. v. NORM WEBSTER & ASSOCIATES, INC.
    (553 SE2d 365)
   Barnes, Judge.

Norm Webster & Associates, Inc. (“NW&A”) sued Robert Davidson, Jr., Joseph Mark Davey, and Bob Davidson & Associates, Inc. (“BDA”), alleging among other things that the defendants breached a fiduciary trust by misappropriating a corporate opportunity. The trial court granted summary judgment to NW&A on its breach of fiduciary trust count against all three defendants, who then appealed to this Court. Because material questions of fact exist for a jury to resolve regarding this issue, we reverse the trial court’s grant of summary judgment.

After NW&A filed its complaint, the defendants answered, denied liability, and counterclaimed for attorney fees, salary, profits, and retirement funds. NW&A moved for partial summary judgment against Davidson on liability for misappropriation of corporate opportunities. All three defendants opposed the motion and moved for summary judgment on NW&A’s claim for misappropriation of corporate opportunities, arguing that NW&A was not a corporation and that the account at issue was not a corporate opportunity belonging to NW&A.

NW&A then amended its complaint to add additional claims against Davidson and Davey for breach of fiduciary duty as employees, agents, and partners. In its subsequent reply brief supporting its motion for partial summary judgment and opposing the defendants’ motion for summary judgment, NW&A argued that Davidson and Davey owed a fiduciary duty as employees, and Davidson owed the duty as a partner or agent of NW&A.

1. 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. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Viewed in this light, the record shows that Norman Webster began representing American Yard Products, Frigidaire’s predecessor, at Lowe’s in the early 1990s and employed Davidson as an independent contractor in 1991 to represent Frigidaire at Home Depot. Davey began working with Davidson and Webster in 1994 to provide customer service and technical support. In October 1995, Webster incorporated the business, forming NW&A and issuing stock to himself, Davidson, and his three children, James Webster, Lisa Webster, and Lynne Webster Thornton. Webster died in May 1996. In January 1997 Davey purchased shares of NW&A’s stock.

The fiscal year for selling Frigidaire lawn mowers usually ran from November 1 to the following October 31, but Frigidaire did not have a formal contract with NW&A. Instead, Frigidaire could terminate its relationship with NW&A at any time. Frigidaire executive Cook testified that the company was reevaluating and reducing its use of outside sales representatives in 1996, and he had decided to terminate its relationship with NW&A. After Webster died in the middle of the 1995/1996 selling season,, however, he agreed to continue the relationship for another year, the 1996/1997 selling season. Cook decided to continue for one more year both because he did not want the Webster children to suffer a loss of income in addition to losing their father, and because the additional time would allow Frigidaire to make a smooth transition to a new in-house representative who would handle the Home Depot account. Cook further explained that he did not consider Frigidaire as doing business with NW&A, the company, but with Webster himself for the Lowe’s account and Davidson for the Home Depot account. The entity NW&A was not important to Frigidaire, according to Cook, because the relationship was a “very personal thing” with Webster for Lowe’s and Davidson for Home Depot. Cook said he thought NW&A could not represent Frigidaire adequately without Norman Webster and Davidson. A sales and marketing executive with Frigidaire testified that he would have been “apprehensive” about using NW&A if Davidson were not there, because he wanted someone with a lot of experience working with Home Depot, and none of the Webster family members could have handled the account.

Davidson testified that all of the shareholders knew the relationship between NW&A and Frigidaire was ending, that the company’s remaining accounts dried up, and that everyone involved understood and anticipated that NW&A would cease operating once the 1996/ 1997 season ended, in November 1997. While Davey concurred that all the parties agreed they would shut down NW&A at the end of the season, the three Webster children denied that the parties had agreed to shut down the business after the season ended. Thornton worked part-time in the office, Lisa Webster worked full-time in the office, and James Webster worked full-time on sales and service after Webster died.

Meanwhile, NW&A continued to service the Frigidaire/Home Depot account during 1997, which involved resolving any issues that arose in the relationship between Home Depot and Frigidaire (NW&A’s only remaining big account), answering calls, ensuring that inventory was delivered, and attending trade shows and meetings, among other things. Davidson testified that servicing the account for the current year included attending Home Depot’s yearly meeting in Louisville, at which business was conducted with an eye toward the next season. He attended, he said, despite knowing that he would not be handling Frigidaire’s Home Depot account for the 1997/1998 season, because his understanding was that Frigidaire could end the current relationship at any time and he needed to represent them while NW&A continued to receive commission checks through November 1997. Davey testified that the work they did for Frigidaire in 1997 was both geared toward the next season and part of servicing the existing season.

The three Webster children testified that Davidson first told them in May 1997 that Frigidaire had fired all of its outside representatives, including NW&A, but that he would try to get the company to change its mind for the upcoming 1997/1998 season. Davidson and Frigidaire executives testified that Frigidaire approached Davidson at the end of June and asked him to represent Frigidaire to Home Depot for the 1997/1998 season, as well as a new line of weed-eaters the company just acquired, because Davidson had an established relationship with Home Depot and already understood how their buying process worked. Davidson testified that this offer came “out of the blue,” with no previous discussions about continuing the business past the 1996/1997 season. A Frigidaire executive said the company approached Davidson first about representing it to Home Depot the next season and he had to talk Davidson into accepting the business.

In early July 1997, Davidson accepted the offer. Both Davidson and Cook testified that the offer was made to Davidson personally, not to NW&A, and Cook testified that NW&A could not have handled the account without Davidson. He explained that the relationship among sales representative, manufacturer, and customer was a personal one, which he extended to Davidson because of his longstanding relationship with Home Depot. Another Frigidaire executive testified that where Davidson worked was not the company’s concern; Davidson was “considered the expert for Home Depot” who had “been dealing with Home Depot ... in excess of 25 years and, therefore, knows the people, the organizátion, and the methods.” In fact, after Webster died in May 1996, the company raised the possibility of having Davidson come in-house, but he was not interested. Davidson was the only remaining outside sales representative Frigidaire used beginning in the 1997/1998 season, all the other positions having gone in-house.

Davidson testified that he did not announce his new deal to the Webster children, because NW&A was shutting down and the offer was made to him personally, not to the company. He also testified, however, that he did not try to hide the fact that he would be representing Frigidaire to Home Depot for the 1997/1998 season, receiving correspondence at NW&A offices and having telephone conversations in the common room where everyone worked. The three Webster children, on the other hand, testified that Davidson first told them he would try to solicit the next year’s business for NW&A, then told them he would only be acting as temporary liaison between Home Depot and Frigidaire’s new in-house representative for three to six months. They discovered that Davidson was going to be Frigidaire’s national sales representative to Home Depot only when they intercepted a faxed announcement on August 15, 1997.

Davidson incorporated BDA and leased new office space in August 1997, and in September 1997 he purchased NW&A’s office equipment and furniture for $2,750 to move to his new office. James Webster testified that NW&A completed the sale, including all of the company’s records, despite believing that Davidson had lied to them about the account, because the parties had reached an agreement before the discovery and it “wouldn’t be very gentlemanly” to refuse the sale. He also testified that Davidson “forbid” him or anyone else at NW&A from contacting Frigidaire or pursuing any other accounts for Frigidaire. While he “had a problem” with those directions, Webster did not challenge Davidson about them.

Davidson testified that he did not begin compiling information for Frigidaire’s 1997/1998 sales forecast until October 1997, after NW&A had given up its lease and shut its doors. Davey also went to work for BDA.

James Webster testified that Davidson told him to stop calling on other customers, and because he was the boss, Webster did not call on other accounts. While he had tried to find another product to represent or another business opportunity for NW&A, he was not successful, and as of April 1999, the company’s only business was the prosecution of this lawsuit. In October 1997, NW&A fired Davidson; in February 1998, NW&A distributed 1997 profits of $40,014.74 to each of the three Webster children and $120,000 to Norman Webster’s widow. The company deposited the rest of the profits, $180,000, with its attorneys. Neither James Webster nor Lisa Webster was employed as of their depositions in April 1999. NW&A contends that Davidson’s company grossed more than $300,000 on the Home Depot account for the 1997/1998 season, and that it should share in those proceeds.

In granting summary judgment to NW&A on breach of fiduciary duty against Davidson, Davey, and BDA, the trial court considered nine depositions and made numerous factual findings. Its last finding of fact concluded that “Bob Davidson and Joseph Mark Davey converted the Frigidaire contract to their own use under the new corporation and took it away from Norman Webster and Associates Inc. . . .” In its conclusions of law, the trial court stated:

The issue in this case is whether some of the members in one entity may negotiate and obtain a lucrative contract for that entity and then create their own new entity taking that contract with them, without any liability to the first entity. Clearly such action is a breach of fiduciary trust and the individuals and new entity are liable to the original entity.

The trial court then discussed case law defining what constitutes a “corporate opportunity,” and continued:

Here the opportunity was the normal business of Norman Webster and Associates Inc., and the opportunity actually existed. Bob Davidson acted as President of Norman Webster and Associates Inc., in negotiating the new contract with Frigidaire. Only after the transaction was negotiated did Bob Davidson form a new company and take the contract. Clearly this is a breach of fiduciary trust and each of the Defendants is liable to the Plaintiff for the damage caused by this act. . . . The contract involved, under the undisputed facts, was a corporate opportunity capable of being performed by Norman Webster and Associates Inc. The fact that Bob Davidson told Norman Webster and Associates Inc., that Frigidaire had terminated Norman Webster and Associates Inc., and that the “partners” consulted as to what they would do is not material because Bob Davidson’s statement was incorrect. . . . Therefore, Plaintiff’s Motion for Summary Judgment on breach of fiduciary trust against each Defendant is granted.

The defendants appeal the trial court’s grant of partial summary judgment to NW&A on its breach of fiduciary duty claim, but do not appeal that portion of the trial court’s order denying their motion for summary judgment. They enumerate several errors, some of which we consider together, arguing that the trial court erred (1) by finding that BDA and Davey as employees were liable for breach of fiduciary duty by misappropriating a corporate opportunity; (2) by finding that Davidson as an officer was liable while also concluding that a factual issue existed as to whether NW&A was actually a corporation; (3) in ruling against them without giving them adequate notice and opportunity to respond; and (4) by considering inadmissible evidence.

2. OCGA § 14-2-831 (a) (1) (C) provides that a corporation may sue an officer or director for “[t]he appropriation, in violation of his duties, of any business opportunity of the corporation.” “Thus, the first step in a successful [OCGA § 14-2-831] suit is the establishment of a defendant as an officer or director, present or former, of the suing corporation.” Sofate of America v. Brown, 171 Ga. App. 39, 42 (5) (318 SE2d 771) (1984). It is apparent from the record that neither Davey nor BDA was a corporate officer or director, and therefore the trial court erred in granting summary judgment against them for breach of fiduciary duty due to misappropriation of corporate opportunity.

3. As to Davidson, the Supreme Court of Georgia first considered the duty of a corporate officer, partner, or employee not to appropriate a “business opportunity” of his or her corporation in Southeast Consultants v. McCrary Engineering Corp., 246 Ga. 503 (273 SE2d 112) (1980). It adopted a two-step process for determining the ultimate question of when liability for wrongful appropriation of a business opportunity should be imposed.

First, a court must determine whether the appropriated opportunity was in fact a business opportunity rightfully belonging to the corporation. If a court finds that the business opportunity was not a corporate opportunity, the directors or officers who pursued the opportunity for personal benefit are immune from liability. However, if the court finds that the business opportunity was a bona fide corporate opportunity, the court must determine whether the corporate official violated a fiduciary duty in appropriating that opportunity. Regarding the second step[,] . . . liability should not be imposed upon the acquiring officer if the evidence establishes that his acquisition did not violate his fiduciary duties of loyalty, good faith, and fair dealing toward the corporation.

(Citations and punctuation omitted; emphasis in original.) Id. at 508 (2).

A decade later, the Supreme Court further elucidated the burden of proof in a corporate opportunity case.

[T]he threshold question is whether an opportunity presented to a corporate fiduciary is a “corporate” opportunity. That factual determination is to be made from all the relevant facts and circumstances. The burden of proof with regard to the threshold question rests upon the party attacking the acquisition. Liability is not to be imposed upon the fiduciary unless the evidence establishes that the fiduciary violated his fiduciary duties of loyalty, good faith and fair dealing toward the corporation. Thus, the second step involves close scrutiny of the equitable considerations existing prior to, at the time of, and following the officer’s acquisition. The burden of proof on the questions of good faith, fair dealing, and loyalty is placed upon the officer who appropriated the opportunity.

(Citations and punctuation omitted.) Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 587 (2) (397 SE2d 699) (1990).

“A business opportunity arises from a ‘beachhead’ consisting of a legal or equitable interest or an ‘expectancy' growing out of a preexisting right or relationship.” United Seal &c. Co. v. Bunting, 248 Ga. 814, 815 (285 SE2d 721) (1982). In United Seal, the trial court denied the company’s petition for an interlocutory injunction, and the Supreme Court considered “whether dealing with certain customers amounted to ‘business opportunities’ ” in a suit against three former corporate officers. Id. at 814. The Court concluded that “the customers of United Seal did not constitute business opportunities.” Id. at 816. Although the company had dealings of long standing with the customers, whose sales accounted for a large portion of its income, no contractual arrangement existed between the company and customers; the customers had no exclusive arrangement with the company; and “the opportunity suggested was an ongoing [one] with no finite aspect.” Id.

Further explicating United Seal’s holding, the Supreme Court held that “the opportunity of dealing with certain customers did not constitute a business opportunity.” Singer v. Habif Arogeti & Wynne, P.C., 250 Ga. 376, 378 (2) (297 SE2d 473) (1982). Because an accountant’s servicing of his former corporation’s clients did not constitute a business opportunity, the Court did not need to determine whether the accountant violated any of his fiduciary duties while an officer. Id.

Therefore, NW&A must first prove that the relationship between Frigidaire and Davidson for the 1997/1998 season constituted a “corporate opportunity.” “Only if we answer affirmatively must we address the issue [ ] of whether [Davidson] violated any of his fiduciary duties in relation to these ‘opportunities’ while he was an officer.” Singer, supra; Jenkins v. Smith, 244 Ga. App. 541, 542-543 (1) (535 SE2d 521) (2000). Because of evidence that, among other things, the shareholders of NW&A expected the corporation to cease operating at the end of the 1996/1997 season; that Frigidaire was interested only in reaching an agreement with Davidson personally; and that Frigidaire would not have worked with NW&A without Davidson, the trial court erred in granting summary judgment to NW&A against Davidson on its count alleging breach of fiduciary duty due to misappropriation of corporate opportunity. Because Davidson did not appeal the issue, we do not decide whether the trial court erred in denying his motion for summary judgment on the same ground.

Decided August 2, 2001.

D. Robert Autrey, Jr., Marilyn F. Dye, for appellants.

Kilpatrick Stockton, William R. Poplin, Jr., R. Randy Edwards, Geoffrey B. Bendy, John W. Alden, Shawn B. Rodda, Hendrick, Rascoe & Reynolds, Frank O. Hendrick III, for appellee.

4. Even though Davey cannot be liable to NW&A for breach of fiduciary duty due to misappropriation of corporate opportunity, NW&A argues that we should affirm the trial court’s grant of summary judgment against him because he is liable for breach of fiduciary duty as an employee. NW&A argues that Davidson can also be liable for such a breach as an employee.

[A]n employee breaches no fiduciary duty to the employer simply by making plans to enter a competing business while he is still employed. . . . [H]e is not, however, entitled to solicit customers for a rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.

(Citations and punctuation omitted.) E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 362-363 (9) (359 SE2d 148) (1987). Pretermitting whether this issue was properly before the trial court, NW&A having argued it only in its reply to the defendants’ response to its motion for partial summary judgment, the record here contains sufficient evidence to create a jury question as to whether BDA was a competing or rival business, or whether Davey’s actions constituted direct competition, in light of testimony that NW&A was shutting down at the end of the current season and that Frigidaire’s sales representative offer was made to Davidson personally. Thus, the trial court’s grant of summary judgment to NW&A against Davey cannot be affirmed for this reason either.

5. In light of the foregoing, the appellants’ remaining enumerations of error are moot.

Judgment reversed.

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