author: Ruffin, Judge.

text:
    A99A2237.
    NOLLEY v. THE STATE.
    (523 SE2d 579)
   Ruffin, Judge.

Priscilla Ann Nolley was convicted of aggravated assault for stabbing James Barnes with a knife. She appeals, contending that the trial court should have granted her motion for directed verdict. Because the evidence was sufficient to support the verdict, we affirm.

In reviewing the denial of a motion for directed verdict of acquittal, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence was sufficient to enable any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make the State’s case, we will uphold the verdict.

Officer Mark Jones testified that, on the night of September 18, 1993, he responded to a call about a stabbing at a trailer park in Covington. Upon arrival at the scene, he found Barnes sitting on the door steps of his trailer, bleeding from a large cut on his head. Barnes told Jones that Nolley had stabbed him with a kitchen knife.

Barnes testified that he and Nolley lived together and had gotten into an argument while drinking. According to Barnes, he would not let Nolley leave the trailer — “that’s the reason I got stabbed because I didn’t want her to leave.” When asked what he was doing when he was stabbed, Barnes testified, “I was trying to keep her from leaving.” After being shown a copy of a statement he made to police, however, he testified that he was bending over to pick up a pack of cigarettes when he was stabbed.

Sylvia Sims testified that she was present at the time of the stabbing. According to Sims, Barnes hit Nolley with his hand during an argument. About three or four minutes later, while Barnes was sitting on the sofa, Nolley stabbed him with the knife. Sims testified that the two were not arguing at the time of the stabbing. She said that Nolley was cursing after she stabbed Barnes, and that Nolley remained in the trailer after the stabbing.

Nolley contends that she was justified in stabbing Barnes because he was the aggressor in the argument and was falsely imprisoning her at the time of the stabbing. Under OCGA § 16-3-21 (a), a person is justified in using force against another

when and to the extent that he reasonably believes that such . . . force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

Whether the circumstances justify the defendant’s response is a question for the jury.

In this case, there was evidence that Nolley and Barnes were no longer arguing at the time of the stabbing, and that Barnes was simply sitting on the sofa. Although Nolley contends that “a person who reasonably feels herself threatened by unlawful force need not wait until she is injured to act,” she did not testify at trial and presented no evidence that she in fact felt threatened at the time or believed that stabbing Barnes was necessary to protect herself from the imminent use of unlawful force. The fact that she did not immediately leave the trailer after stabbing Barnes suggests that she did not stab him in order to escape from false imprisonment. Under these circumstances, the question of justification was for the jury, and the trial court did not err in denying Nolley’s motion for directed verdict.

Decided October 15, 1999.

James E. Millsaps, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999).

        McMichael v. State, 194 Ga. App. 225 (390 SE2d 120) (1990).

       See generally Hagans v. State, 187 Ga. App. 216, 217 (3) (369 SE2d 536) (1988) (questions of reasonable fears and “cooling time” are for the jury).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1163.
    LEVINE et al. v. CHOI et al.
    (522 SE2d 673)
   Miller, Judge.

Sandra Levine sued Mr. and Mrs. Choi and Helen Dimitropoulos for personal injuries allegedly arising out of a three-car collision in which Choi’s vehicle rear-ended Dimitropoulos’ vehicle, forcing it into the rear of Levine’s vehicle. Joined by her husband who sued for loss of consortium, Levine claimed she suffered debilitating soft tissue injuries to her back, shoulder, and neck, resulting in fibromyalgia (recurring areas of myofascial pain) and higher blood pressure. The jury returned a defense verdict. Appealing the denial of their motion for new trial, the Levines assert three errors on appeal: (i) the verdict was contrary to the evidence, (ii) the court instructed the jury it could find none of the defendants negligent, and (iii) the court’s jury instructions imposed a higher standard of proof than preponderance of the evidence.

1. “A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations and punctuation omitted.) Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997). If there is any evidence to support the verdict, even if not compelling, the verdict will stand, despite substantial evidence to the contrary. Id. Moreover,

a jury verdict returned in favor of the defendant in a tort case represents a finding by the jury that the plaintiff did not meet his burden of proof as to the defendant’s liability for damages. As against this negative finding by the jury against the plaintiff, an appellate court would not be authorized to hold that a contrary positive verdict in favor of the plaintiff was demanded unless a review of the record demonstrated that, as a matter of law, the plaintiff had met his initial burden of proof as to the defendant’s liability and that the defendant had then failed to produce any evidence as to his non-liability. Thus, an appellate court’s reversal on the general grounds of a judgment which was entered on a jury verdict returned for the defendant in a tort case requires the existence of undisputed evidence of the defendant’s liability for damages.

(Citations and punctuation omitted; emphasis in original.) Mays v. Farah U.S.A., 236 Ga. App. 1, 3 (3) (510 SE2d 868) (1999).

A negligence action requires proof that the defendant breached a duty of care owed to plaintiff, which breach proximately caused damage to plaintiff. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Failure to prove that the damages were proximately caused by the negligence is fatal to the action. Wilson v. Mallard Creek Holdings, 238 Ga. App. 746 (519 SE2d 925) (1999); Rubin v. Fields, 237 Ga. App. 207, 209 (2) (515 SE2d 180) (1999).

Pretermitting whether the evidence was disputed on negligence, the evidence was clearly disputed on proximate causation. Levine and her physician admitted that prior to the accident Levine for years had suffered from pain in her back, shoulders, and legs brought on by spina bifida occulta, scoliosis, osteoarthritis, and a ruptured disk. The physician had even told her she was experiencing episodes of myofascial pain that he diagnosed and treated as possible fibromyalgia and that were possibly caused by Levine’s recurring hyper-mobility and sleep problems. She also admitted in a medical questionnaire that prior to the accident she suffered from high blood pressure, for which she was prescribed medicine.

Evidence that plaintiff’s injuries were pre-existing is sufficient for a jury to find the accident did not proximately cause the injuries. Duncan v. Randolph, 236 Ga. App. 566, 568 (512 SE2d 688) (1999); Blosfeld v. Hall, 236 Ga. App. 286, 287-288 (511 SE2d 196) (1999). Compare Moore v. TCI Cablevision of Ga., 235 Ga. App. 796, 799 (2) (510 SE2d 96) (1998), and Potts v. Roller, 232 Ga. App. 696 (503 SE2d 587) (1998) (both cited by the Levines), in neither of which there was evidence of pre-existing injuries. Moreover, Levine had no bruises nor any other apparent injury at the accident scene and went to work the same day. She did not seek medical treatment for any injuries until a week after the accident. This constituted further evidence disputing proximate cause. See Kent v. Peters, 211 Ga. App. 698 (1) (440 SE2d 87) (1994).

The court did not err in denying the Levines’ motion for new trial on general grounds.

2. The court charged the jury that should it find no defendant was negligent, it should return a verdict in favor of the defendants. The Levines claim error, contending that because this was a rear-end collision, at the very least Mrs. Choi was negligent.

Following the jury charge, the court asked the Levines for any objections. Although they raised other objections, the Levines failed to object to this jury instruction. “[I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict. . . .” OCGA § 5-5-24 (a). As the instruction was not a blatant error that resulted in a gross miscarriage of justice, the Levines have waived this objection. Hayden v. Sigari, 220 Ga. App. 6, 11 (6) (467 SE2d 590) (1996); see Duncan, supra, 236 Ga. App. at 567; Nalley North-side Chevrolet v. Herring, 215 Ga. App. 185, 187 (4) (450 SE2d 452) (1994).

Moreover, the instruction was accurate. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (1976), held:

In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause. The history of the decisions of the Court of Appeals in this type of case since 1965 convinces us that these issues should be resolved ... by the jury and not by trial and appellate judges.

Accord Hillary v. Burrell, 237 Ga. App. 792, 794 (1) (516 SE2d 836) (1999). Dimitropoulos testified she traveled in the lane of traffic for some time and stopped behind the Levines, with the Chois following at a safe distance. Mrs. Choi testified that an unexpected cramping in her leg precluded her from stopping timely. Cf. Hollingsworth v. Thomas, 148 Ga. App. 38, 41 (2) (250 SE2d 791) (1978) (some accidents are simply unavoidable and not caused by negligence).

The court did not err in giving the instruction.

3. Immediately after charging the jury that the Levines carried the burden of proving proximate cause by a preponderance of the evidence, the court instructed:

In this connection I charge you the law does not permit you to speculate or guess as to the cause of any alleged injury and damage. If you believe that from the evidence adduced that the cause of any injury or medical condition which may have been suffered by the plaintiff cannot be determined with certainty but that it is a matter of speculation or conjecture, then in that event you would not be authorized to find a verdict against the defendants in any amount for such injury or medical condition. And in such instance it would be your duty to return a verdict in favor of the defendants as to such injury or medical condition, it being absolutely necessary for the plaintiff in order to recover damages from the defendants to show by a legal preponderance of the evidence that the particular loss complained of was proximately caused by the negligence of the defendants.

Decided September 16, 1999

Reconsideration denied October 18, 1999

Thornton, Leff & Eisner, Robert A. Eisner, for appellants.

Allen & Associates, Twanda Turner-Hawkins, Saveli & Williams,

(Emphasis supplied.) The Levines contend this charge raised the standard of proof to one of certainty and was inconsistent with the “preponderance of the evidence” burden applicable to civil cases. See OCGA § 24-4-3.

This charge was approved in Leslie v. Williams, 235 Ga. App. 657, 659 (2) (510 SE2d 130) (1998), and other decisions. But Herr v. Withers, 237 Ga. App. 420, 421-422 (515 SE2d 174) (1999), disapproved of these decisions and held it was error to give the charge. Nevertheless, where the charge as a whole properly informs the jury of the appropriate burden of proof, reversal is not required. Whitt v. State, 257 Ga. 8, 9 (3) (354 SE2d 116) (1987). Giving the correct instruction on several other occasions in other parts of the charge may cure the erroneous instruction. Williams v. State, 267 Ga. 771, 773-774 (2) (482 SE2d 288) (1997).

Here the court repeatedly instructed the jury that the standard was a preponderance of the evidence (i) during the initial charge at the beginning of trial, (ii) at the end of plaintiffs’ evidence, and (iii) on seven occasions during the final jury instructions. The court further instructed the jury to consider the charge in its entirety. The charge as a whole adequately and fairly conveyed that plaintiffs’ burden of proof was a preponderance of the evidence.

Judgment affirmed.

Barnes and Ellington, JJ, concur.

Susan C. Speer, Christie, Toreno & Hatcher, Carrie L. Christie, for appellees.


author: Smith, Judge.

text:
    A99A0857.
    BOYCE v. THE STATE.
    (523 SE2d 607)
   Smith, Judge.

After his conviction of the offenses of DUI and driving with a revoked license, Glenn Lee Boyce brings this appeal. In his sole enumeration of error, he contends that he was stopped at an illegal roadblock and that the trial court therefore erred in denying his motion to suppress the evidence of his intoxication. We do not agree.

The issue of whether roadblocks in general are permissible in this state under the United States and Georgia Constitutions was settled with the decisions of the Supreme Court of Georgia in LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998), and Brent v. State, 270 Ga. 160 (510 SE2d 14) (1998).

In examining the propriety of roadblock stops, the issue for resolution is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (110 SC 2481, 110 LE2d 412) (1990). See Christopher v. State, 202 Ga. App. 40 (1) (413 SE2d 236) (1991).

LaFontaine, supra at 252 (3).

Boyce argues, however, that the factors set forth in Sitz and introduced into Georgia law in State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984), must be met.

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

(Citation omitted.) LaFontaine, supra at 253 (3).

Boyce argues that the roadblock at which he was stopped did not meet at least two of the criteria because the decision to implement the roadblock was made by officers in the field and, at least at times, not all vehicles were stopped. We do not agree.

In Golden, supra at 29 (2), and Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989),

we addressed several factors in determining whether the roadblocks which were there in issue were “reasonable” and constitutional. However, neither Evans nor Golden establishes absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this court looked at the totality of the circumstances surrounding the roadblock to decide whether the factors in Golden were satisfied.

(Citations and punctuation omitted.) Christopher, supra at 42. The totality of the circumstances must show that the roadblock is not being used as a pretext to'detain citizens in order to search their cars. LaFontaine, supra at 253 (3). And when viewing the totality of the circumstances, we must keep in mind that the relevant inquiry is whether the evidence shows that it was, in fact, a pretext to stop this driver, rather than a legitimate law enforcement technique. Christopher, supra at 42 (1). Looking at the totality of the circumstances, we conclude that here, as in Christopher and LaFontaine, the roadblock was not a pretext and was reasonable.

Boyce correctly points out that the officer who stopped him testified that he and two other Georgia state troopers made the decision to set up the roadblock, that no supervisory personnel were involved, and that his superior officers were not even working that day. But the officer also testified that under established Georgia State Patrol policy, officers had authority to decide to implement a daytime roadblock so long as it was set up in a safe place. This policy reflects decisions made by supervisory, policy-making officials in the Georgia State Patrol and demonstrates that the field officers’ discretion was not unfettered. Boyce made no showing that the roadblock was pretextual or that it arbitrarily oppressed motorists or singled him out.

In addressing Boyce’s argument that the roadblock did not comply with the requirement that all vehicles must be stopped, we must bear in mind three principles pertaining to our review of a trial court’s ruling on a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. 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.

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

Applying these principles to this case, we conclude that because the trial court found that the roadblock was reasonable and evidence was presented to support it, we must affirm that ruling. We held in State v. Manos, 237 Ga. App. 699 (516 SE2d 548) (1999), that “[cjommon sense recognizes the reasonableness of some type of procedure to suspend or halt a roadblock where the flow of traffic overwhelms the resources dedicated to that roadblock and poses a threat to public safety.” Id. at 700. In Manos, the record was silent as to the procedures used by the field officers to determine whether public safety required them to halt a roadblock temporarily because of heavy traffic. But here, the officer testified that the only time cars were allowed to proceed unchecked through the roadblock was when they could not keep visual contact with the end of the line. Cars were ushered through when traffic “would back up and we couldn’t see the traffic around us and it would create a hazard.” See Gamble v. State, 223 Ga. App. 653, 655 (2) (478 SE2d 455) (1996) (potential hazard from traffic backup justified officers’ conduct in temporarily halting roadblock).

Boyce concedes that the officer testified that the delay to motorists was minimal and that no evidence was presented to the contrary. He does, however, assert that the roadblock was not well identified, as required by the fourth factor. No orange cones were set out, the officer was not wearing a vest or holding a flashlight or other marker, and the patrol cars’ flashing lights were not on. But a daytime roadblock requires far less “identification” by way of lights and reflective gear than a roadblock at night. No need existed during this daytime roadblock for flashlights or flashing lights. The troopers were in uniform, and the patrol cars were clearly visible.

As to the trooper’s training, it cannot seriously be argued that a Georgia State Patrol officer conducting a roadblock under State Patrol policy does not have sufficient training to decide which motorists should be given further tests. Boyce has offered no evidence that the officer was not qualified by experience and training. Moreover, in this case, the officer testified he “smelled a strong odor of alcoholic beverage” on Boyce’s breath, and Boyce was tested only after he admitted he had been drinking. The trial court did not err in finding the roadblock reasonable and denying Boyce’s motion to suppress.

Decided October 18, 1999

Thomas S. Barton, for appellant.

Griffin E. Howell III, Solicitor, for appellee.

Judgment affirmed.

Pope, P. J, and Eldridge, J., concur.

       We note that only two judges fully concurred in Christopher, making it physical precedent only. But it was relied upon by this court in Weeks v. State, 206 Ga. App. 431, 432 (425 SE2d 421) (1992), and it was cited with approval by the Supreme Court in LaFontaine.


text:
    A99A1095.
    THE STATE v. SIMS.
    (523 SE2d 619)
   Smith, Judge.

Travis K. Sims was indicted on one count of criminal damage to property in the second degree, OCGA § 16-7-23 (a), for damaging the grounds of Pickens County High School with a “four-wheeler” off-road vehicle. The trial court granted Sims’s motion to suppress his noncustodial statement, and the State appeals pursuant to OCGA § 5-7-1 (a) (4). We agree with the trial court that the police officers unlawfully entered Sims’s residence without probable cause or exigent circumstances, and therefore we affirm.

When reviewing a ruling on a suppression motion, the evidence must be construed most favorably toward the trial court’s findings and judgment unless they are clearly erroneous. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.

(Citations and punctuation omitted.) Gidden v. State, 234 Ga. App. 268 (506 SE2d 448) (1998). The record reveals that a Pickens County deputy investigated a complaint that two people had been riding a “four-wheeler” on the ball field and embankments at Pickens County High School. The complainant described the four-wheeler but was unable to give any specific identifying marks. The officer drove around the area to see if he “could find anyone riding a four wheeler or any tracks that may have led in or out of the area.” About a mile from the high school, the officer saw a four-wheeler in Sims’s driveway.

The officer and his partner approached the home, which counsel stated was in a wooded area about 120 feet from the public roadway. They heard “some kind of noise” like a radio inside the house and saw cars in the open garage, but no one came to the door when they knocked at the front door, the back door, or the garage door. They walked around the side of the house and found an open garage door leading into the basement.

After advising their dispatcher that they were entering the house “to insure that there was no criminal activity,” the officers entered the basement and “cleared” it without finding anyone there. They then climbed the staircase leading from the basement to the first floor of the home, opened a closed but unlocked door, and entered the residence. While “clearing” the first floor, they announced their presence and heard a reply from upstairs. Sims came downstairs in response to the officers’ call and made the statements which are the subject of the motion to suppress. At least one officer had his gun drawn when they called Sims downstairs.

The principles governing this police-citizen encounter are well established. “[E]ven where probable cause exists, warrantless intrusion of a person’s home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances. [Cit.]” Carranza v. State, 266 Ga. 263, 264-265 (1) (467 SE2d 315) (1996). A citizen’s home is an “unquestionable zone of privacy under the Fourth Amendment,” and when a residence is involved “[n]o amount of probable cause can justify a warrantless search or seizure absent exigent circumstances.” (Citations and punctuation omitted.) Bunn v. State, 153 Ga. App. 270, 274 (265 SE2d 88) (1980). If officers are not responding to an emergency, there must be “ ‘compelling reasons’ ” and “ ‘exceptional circumstances’ ” to justify a warrantless search. Id.

The Fourth Amendment requires that a “neutral judicial officer . . . assess whether the police have probable cause to make an arrest or conduct a search.” Carranza, supra at 265.

[A]bsent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.

(Citation omitted.) Carranza, supra at 265.

The State relies solely on the Supreme Court of Georgia’s decision in Gilreath v. State, 247 Ga. 814 (279 SE2d 650) (1981), to support its contention that this police entry was lawful. But Gilreath is inapposite here. In that capital murder case, the exigent circumstances authorizing an entry by the police were clearly outlined. The police received a call for help from a citizen who reported violent threats to his stepdaughter by her estranged husband and the fact that she had not kept an appointment with him for that afternoon. Id. The police properly approached the stepdaughter’s residence in response to that call, knocked on the front door without receiving an answer, and went to a side door leading to a screened porch. While still outside the door, they not only observed two more doors left ajar but also heard music playing and smelled a strong odor of gasoline that “permeated the area.” Id. at 815. When they entered the screened porch, they saw the body of one of the murder victims lying inside a glass door leading to the living area of the house. Id.

The Supreme Court of Georgia held that the police were authorized to go to the home, enter the curtilage, and knock on the outer doors in response to the request of a relative who stated his reasons for fearing harm to the occupant. The entry into the home, regardless of whether the threshold of the home was the porch door or the glass door, was proper because it “was preceded by an awareness of exigent circumstances”: the heavy odor of gasoline and the absence of any response to their knocking despite the sound of music playing. Gilreath, supra at 821.

In this case, in contrast, no exigent circumstances whatever appear from the record. The police were investigating an already completed crime. They were not responding to a call or complaint, but simply looking for any “four-wheeler” without any more particular description. They walked around Sims’s house and found nothing suspicious even after entering the basement, walking upstairs, and entering the living area through a closed door. Only then did they hear someone answer their call and, with drawn gun, order Sims to come down from upstairs.

At the hearing, counsel for the State insisted that the sheriff’s department policy was to secure any residence with an open door to ensure that a burglary was not in progress. We doubt, as did the trial court, that this is an accurate description of the sheriff’s official policy. But such a policy, if it exists, violates the Fourth Amendment. Our decision in Banks v. State, 229 Ga. App. 414 (493 SE2d 923) (1997), overruled on other grounds, Calbreath v. State, 235 Ga. App. 638, 640, n. 3 (510 SE2d 145) (1998), acknowledges that Carranza requires warrantless searches of residences to be justified by exigent circumstances and carefully limits its holding to commercial rather than residential property. In Banks, we held that the “lesser expectation of privacy” in commercial buildings, Banks, supra at 415, allowed police officers on routine nighttime patrol to enter an unlocked business after hours to check for intruders. This rule does not apply to a daytime incursion into Sims’s private residence. A garage or basement door left open to admit light and air does not constitute a blanket invitation to the police to enter and certainly not to continue their entry through closed doors into the residence itself after finding nothing amiss.

Decided October 18, 1999.

Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellant.

Edwin Marger, for appellee.

The police entry into Sims’s residence without probable cause or exigent circumstances was a clear violation of the Fourth Amendment. Moreover, the connection between this unconstitutional police conduct and Sims’s statement was not “ ‘sufficiently attenuated to permit the use at trial of the statement. [Cits.]’ ” State v. Harris, 256 Ga. 24, 26 (2) (343 SE2d 483) (1986). Applying the factors outlined in Harris, we find that the temporal proximity between the conduct and Sims’s statement “and, particularly, the purpose and flagrancy of the official misconduct,” show that no such attenuation occurred. (Punctuation omitted.) Id. For these reasons, the trial court correctly granted Sims’s motion to suppress.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A1178.
    CHUNG v. THE STATE.
    (523 SE2d 615)
   Blackburn, Presiding Judge.

Jae Wook Chung appeals his conviction, following a jury trial, for two counts of aggravated battery, aggravated assault, and cruelty to children, contending: (1) that the evidence was insufficient to support the verdict; (2) that the trial court erred by failing to instruct the jury on “mere presence”; (3) the trial court erred by denying his motion for a continuance; and (4) that the trial court erred by failing to recharge the jury. For the reasons set forth below, we affirm.

1. We have held that:

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

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the record shows that five-year-old Kelly Chung was taken to the hospital on the evening of June 21, 1997, by her parents. Kelly was unresponsive and feverish. After examination, Kelly’s doctors discovered that she was suffering from a subdural hematoma within the brain and a swollen brain likely caused by a blunt trauma. In order to stop the brain swelling, brain surgery had to. be performed on Kelly, and a portion of her brain was removed. In addition to her brain injury, Kelly had bruises on almost every area of her body.

On the day that Kelly was admitted to the hospital, she had spent the day at home with her stepfather, the primary caregiver, while her mother was away at work. Kelly’s stepfather was the only person that was with her during the time that Kelly’s mother was working. Before she left that morning, Mrs. Chung visited with her daughter and testified that she was normal at that time. During the day, Mrs. Chung received no telephone calls from Mr. Chung concerning Kelly or any injuries to her. When Mrs. Chung returned home, Kelly was asleep in her bed, tossing, turning, and, eventually, having seizures. Kelly’s doctor testified that the subdural hematoma was a fresh wound, most likely occurring on the day that she was brought to the hospital.

When asked to explain the origin of Kelly’s head injuries, defendant stated that his stepdaughter had not suffered any head injuries on the day that she was admitted. Instead, he told Kelly’s doctor that she had fallen while playing with a puppy four months earlier and that she had fallen in the bathtub one month earlier. When asked to explain the origin of the bruises covering Kelly’s body, defendant answered that his stepdaughter simply was an active child prone to falling. Defendant gave no explanations which were consistent with Kelly’s actual injuries.

In determining the sufficiency of the circumstantial evidence to support a conviction of cruelty to a child (or to withstand a motion for a new trial), the trial court as well as this court will apply a “reasonable hypothesis rule.” This is to say that a conviction based solely upon circumstantial evidence must be supported by facts which not only are consistent with guilt of the accused, but should exclude every reasonable hypothesis save that of the guilt of the accused. This does not mean that the state must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence. The yardstick by which we determine what in a given case is a reasonable hypothesis is in the first instance a question for the jury. Thus, except where the guilty verdict is unsupportable as a matter of law, this court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court.

(Citations omitted.) Robinson v. State, 168 Ga. App. 569, 570-571 (1) (309 SE2d 845) (1983).

In this case, the evidence, as discussed above, properly supports a reasonable hypothesis that Chung injured his stepdaughter. On the day that Kelly was injured, Chung, by his own admission, was supervising her alone. Kelly’s mother noticed that Kelly was normal at the beginning of the day and ill at the time that she returned home. Kelly’s doctor indicated that her injury resulted from a very recent blunt trauma to the head, and Chung, who had been with Kelly throughout the day, provided explanations which were inconsistent with her injuries. The charge that Chung injured his stepdaughter is well supported, and the jury’s verdict was proper. Robinson, supra; see Jackson, supra.

2. Chung contends that the trial court erred by denying his written request to charge the jury regarding mere presence at the scene of the crime.

The rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged. Muhammad v. State, 243 Ga. 404 (1) (254 SE2d 356) (1979). In the present case, the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence.

Parker v. State, 270 Ga. 256, 258 (2) (507 SE2d 744) (1998). Based on the extent of Kelly’s bruising and injuries, it is clear that Chung failed to appropriately protect and supervise his stepdaughter and to seek prompt medical care for her or to notify anyone, including Mrs. Chung, of the girl’s injuries. The trial court did not err in denying defendant’s request to charge on mere presence. Id.

3. Chung contends that the trial court erred in denying his motion for a continuance, arguing that there was insufficient time to interview witnesses and prepare his case.

[A] 11 applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. OCGA § 17-8-22. Such grant or denial of a continuance will not be disturbed absent a showing of an abuse of discretion.

(Punctuation omitted.) Halthon-Howard v. State, 234 Ga. App. 229 (1) (506 SE2d 415) (1998).

Although the State provided Chung with a list of 29 additional witnesses shortly before the trial began, the names of these witnesses were drawn from discovery provided to the State by Chung. Chung had these discovery documents in his possession for approximately two months prior to his trial. In addition, a number of the witnesses on the supplementary list were duplicates of those named on the original list, and, after a colloquy between the parties and the trial court, it was determined that approximately only six of the witnesses needed to be interviewed. Because most of these witnesses were hospital employees who had treated Kelly’s injuries, Chung had reason to know that the State might call them as witnesses. As Chung had the names of these potential witnesses in discovery he had in his possession for two months prior to trial, we cannot say that the trial court abused its discretion in denying his motion for a continuance. Furthermore, we note that, following the trial court’s ruling on his motion, Chung did not renew his motion for a continuance when his trial began. As such, we must assume that Chung was satisfied with his discovery prior to trial. The better practice is for the State to timely provide defendant with a witness list in order to fairly comply with the law. When the State fails to do so, it may very well jeopardize its case. Under the circumstances of this case, however, defendant’s argument on this issue is without merit.

4. Defendant contends that the trial court erred in its recharge to the jury with regard to the necessity for a unanimous verdict. Even pretermitting the issue of whether Chung waived his right to raise this enumeration on appeal by failing to object to the recharge, we find no error.

It is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry.

(Punctuation omitted.) Woods v. State, 224 Ga. App. 52, 57 (9) (479 SE2d 414) (1996).

Decided October 18, 1999.

Robert H. Alexander III, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

In this case, the trial court aptly identified the jury’s confusion regarding the need for a unanimous verdict on all counts against Chung, and, after instructing the jurors about this need, the trial court sent the jury out to continue its deliberations. The trial court did not abuse its discretion in this regard. Dewinters v. State, 232 Ga. App. 318, 320 (2) (501 SE2d 849) (1998).

Judgment affirmed.

Barnes and Ellington, JJ, concur.


author: Phipps, Judge.

text:
    A99A1339.
    FRAZIER v. THE STATE.
    (523 SE2d 614)
   Phipps, Judge.

Lanorris Frazier was indicted for burglary and convicted of theft by receiving. He appeals, challenging the trial court’s denial of his motion for directed verdict on the burglary charge and its instruction to the jury on theft by receiving stolen property as a lesser included offense of burglary.

Around 8:30 p.m. Friday, October 18, 1996, Belinda Rushing left her home for the weekend. About noon the next day, her mother found Rushing’s home had been broken into. A Super Nintendo, a Sega Genesis, a Sega Game Gear, video game cartridges, a television, a VCR, a shotgun and case, a cordless phone and a green toy box were taken.

Between 1:00 a.m. and 3:00 a.m. on October 19, Frazier appeared at the house of Charles Jones and Michelle Tillman with the gun, the case, the toy box and items inside the toy box, including a Sega, a Nintendo, some video game cartridges and a phone. Frazier gave Jones the shotgun and the case and left with the remaining items after playing video games with Jones until 5:00 a.m. Dallas Seago, a friend of Frazier, later took the toy box filled with items from Frazier’s home. The property given to Jones and that taken from Frazier’s home by Seago came from Rushing’s home. Only the television was missing.

1.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]

(Punctuation omitted.) Jackson v. State, 236 Ga. App. 260 (511 SE2d 615) (1999). The essential elements of Frazier’s burglary charge were that he (1) entered the dwelling house of Rushing, (2) without authority, and (3) with intent to commit a felony or theft therein. See OCGA § 16-7-1; Hambrick v. State, 174 Ga. App. 444, 446 (1) (330 SE2d 383) (1985). Possession by the defendant of property stolen in a recently committed burglary may alone be sufficient to sustain his conviction for the burglary in the absence of a reasonable or credible explanation. See Bankston v. State, 251 Ga. 730-731 (309 SE2d 369) (1983); Worrell v. State, 173 Ga. App. 820, 822 (328 SE2d 232) (1985); see also OCGA § 24-4-6. Whether a reasonable explanation exists is a determination for the finder of fact. See Martin v. State, 228 Ga. App. 59, 60-61 (1) (491 SE2d 142) (1997). Frazier’s recent possession of stolen property was sufficient by itself to deny the motion for directed verdict.

But the evidence against Frazier extended beyond mere possession. Frazier was shown to have possessed virtually all of a large number of items taken in the burglary. Jones testified that the gun Frazier gave him was an expensive type. A jury could infer that Frazier did not acquire the gun legitimately. Tillman testified that Frazier was an avid video game player. A jury could infer that as the reason so much video game equipment was taken.

Frazier asserts that Seago, who testified for the State, provided an alibi for him which entitled him to a directed verdict. We do not glean an alibi from Seago’s testimony. The burglary occurred between 8:30 p.m. and 3:00 a.m., and Seago did not account for Frazier’s whereabouts during that entire period. Seago and her boyfriend, Michael Levant, went to Frazier’s home around 9:30 or 10:00 p.m., Levant and Frazier played video games, Seago went to sleep, and Seago and Levant left Frazier around 12:45 a.m. Even if Seago had provided an alibi for Frazier, it would simply have created a conflict in the evidence, which was a matter for the jury to resolve. See Jackson, supra at 261. The court did not err in denying Frazier’s motion for directed verdict.

2. Although theft by receiving stolen property is not a lesser included offense of burglary, we can find no error in the court’s instruction to the jury on that offense. See Johnson v. State, 164 Ga. App. 7, 9 (4) (296 SE2d 202) (1982). The defense requested the charge, and any error was induced by this request. Frazier cannot complain of a verdict which was brought about by a jury charge which he requested. See Wright v. State, 162 Ga. App. 60 (290 SE2d 163) (1982).

Decided October 18, 1999.

David C. Walker, for appellant.

J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Ellington, JJ, concur.


text:
    A99A1478.
    BENIKE v. THE STATE.
    (523 SE2d 622)
   Smith, Judge.

Michael Alfred Benike appeals his conviction for possession of methamphetamine. In his sole enumeration of error, he contends the trial court erred in denying his motion to suppress. We disagree and affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. 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.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Viewed in this light, the evidence shows that a Coweta County sheriff’s deputy was on patrol when he observed Benike’s car on 1-85 traveling approximately ten miles over the speed limit. After stopping Benike, the deputy observed that his eyes were glassy and that he had trouble speaking; the deputy called for backup from another deputy familiar with sobriety testing. After the second deputy arrived, the first deputy asked Benike for permission to search his vehicle, and Benike consented. The search revealed a variety of drug-related items, including a set of scales lying in plain view, cutting agents, and bent spoons with burn marks and residue on them. The second deputy also attempted to perform a field evaluation on Benike, but did not complete it because Benike was so intoxicated that he was unable to perform the tests and the deputy was concerned for his safety alongside the roadway. Benike was arrested for speeding and for driving under the influence. A search of his person incident to the arrest revealed a bag containing suspected methamphetamines.

We first note that the officer properly stopped Benike for speeding. Benike’s contention that the stop was pretextual because a lookout had been placed on his car as a possible drug courier is therefore without merit. Simmons v. State, 223 Ga. App. 781-782 (1) (479 SE2d 123) (1996). And “[w]hether a citation is issued is ‘of no consequence’ in determining the officer’s probable cause to stop the vehicle. [Cit.]” Allenbrand v. State, 217 Ga. App. 609, 610 (458 SE2d 382) (1995).

Benike relies on State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991) (physical precedent only), in which we affirmed a trial court’s grant of the defendant’s motion to suppress because his permission to “look inside” his truck did not include opening a closed bag on the seat. Id. at 321. Benike argues that he granted permission only to “look through” his vehicle, and that his permission did not include the search of closed containers such as a gray tote bag that he contends officers opened and searched.

But Benike’s account of the incident is not undisputed. One officer testified that the tote bag was not closed and that the officers found drug paraphernalia, including scales, in the passenger compartment of the car and within reach of the driver. And evidence was presented that the tote bag was not fully searched until after Benike’s arrest, when a search of a closed zip pocket revealed four smaller bags containing suspected methamphetamines. Furthermore, while one officer testified that he asked for permission to “look through” Benike’s vehicle and one police report shows that Benike gave permission to “check the vehicle,” the other officer testified at one point that Benike gave permission for them to “search.” As in Corley, supra, in which we affirmed the trial court’s assessment of the evidence and witnesses, the findings below are analogous to a jury verdict, and we must defer to them if supported by any evidence. Tate, supra.

While Benike’s counsel repeatedly and vigorously cross-examined the officers regarding their exact words, the sequence of events leading to Benike’s arrest, and the wording of the police reports, the trial court is the final judge of credibility. Discrepancies in the officers’ testimony, if any, go only to weight and credibility, and the trial court as trier of fact was authorized to believe parts of the officers’ testimony and reject other parts. Hicks v. State, 221 Ga. App. 735, 736 (1) (472 SE2d 474) (1996).

Decided October 18, 1999.

Lee Sexton, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

The trial court did not err in denying Benike’s motion to suppress.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A1676.
    BOYKIN v. THE STATE.
    (523 SE2d 605)
   Phipps, Judge.

Following the denial of her motion for new trial, Retha Boykin appeals her conviction of the burglary of a Macy’s department store. She raises three issues for us to decide. First, she charges her trial counsel with ineffective assistance in allowing the prosecutor to question the arresting officer concerning her post-arrest silence. Second, she claims counsel was ineffective in not informing her of the impact of sentencing under the recidivist act. Third, she challenges the sufficiency of the evidence. Because we hold that her counsel was not ineffective and that the evidence was sufficient to authorize her conviction, we affirm.

On the day in question, the department store opened to the public at 10:00 a.m. At approximately 8:00 a.m., Macy’s Security Officer Love discovered Boykin “kind of balled up” under a cloth-draped table in the children’s clothing department. Boykin was not a Macy’s employee and did not have permission to be in the store at that time.

On direct examination, Love testified that immediately after discovering Boykin, he asked her what she was doing in the store, but she did not reply. On cross-examination, however, Love clarified that Boykin had mumbled that she was asleep. Love found numerous bags of Macy’s clothing next to Boykin under the table. Price tags still on the clothes showed a total retail value of $1,363. Boykin had no purchase receipts. A dressing room in the children’s department, normally locked, was open. Concluding that Boykin had remained in the store after it closed the night before, Love arrested her and took her to the store’s security office.

Boykin was later turned over to City of Atlanta Police Officer Ormond. During cross-examination of Ormond, defense counsel challenged the thoroughness of the officer’s investigation. Counsel inquired whether Ormond had asked Boykin what happened. Ormond testified that he had asked this question but Boykin had not responded. On redirect examination, the prosecuting attorney asked Ormond if he had given Boykin an opportunity to explain why she was in the store, and he responded affirmatively.

1. Boykin argues that Ormond’s testimony about her post-arrest silence was inadmissible under Mallory v. State and cases cited therein.

The defendant in Mallory gave a statement to police more than one month after he committed the crimes. He later contended that his right to remain silent was violated when the trial court allowed the State to introduce a portion of his statement showing that he had not come forward to explain his innocence when he knew he was under investigation.

In Mallory, the Supreme Court of Georgia first recognized the holdings of the United States Supreme Court in Jenkins v. Anderson and Fletcher v. Weir. Jenkins allows the State to comment at trial upon the fact that the defendant did not come forward voluntarily, if the defendant’s pre-arrest silence has not been induced by government action (i.e., Miranda warnings) and the defendant has waived his privilege against self-incrimination by testifying at trial. Fletcher holds that, as a matter of federal due process, the State may permit cross-examination about a defendant’s post-arrest silence so long as such silence is not induced by Miranda warnings.

But, as recognized in Mallory, nothing in Jenkins or Fletcher requires the state to allow impeachment of a defendant in these settings. Finding that a comment upon a defendant’s “silence or failure to come forward is far more prejudicial than probative,” Mallory prospectively held that such comment will not be allowed in Georgia “even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.”

We do not interpret Mallory as barring Love’s testimony that Boykin did not explain why she was in the store when asked to do so. This was admissible as part of the res gestae of the crime. Ormond’s comments concerning Boykin’s post-arrest silence were elicited, not by the prosecutor, but by defense counsel during his cross-examination of the officer. This testimony could have been introduced by the State, however, because Mallory does not apply to comments concerning a defendant’s post-arrest silence, and it does not appear from the record that Boykin’s silence was induced by Miranda warnings. Under the circumstances, defense counsel’s decision to pursue this line of questioning was a matter of trial tactics and strategy that do not equate with ineffective assistance of counsel.

Decided October 18, 1999.

Henry A. Hibbert, for appellant.

2. At the hearing on her motion for new trial, Boykin testified that counsel had not told her the State was seeking recidivist punishment that would require her to serve a ten-year sentence without possibility of parole. But counsel testified unequivocally he had provided Boykin with this information and strongly urged her to plead guilty because of it. Determining the credibility of these witnesses was in the trial court’s discretion. Its determination that counsel was not ineffective in this regard is not clearly erroneous.

3. Boykin is guilty of burglary if she entered or remained in the department store “without authority and with intent to commit a felony or theft therein.” Construed in a light most favorable to the verdict, the evidence authorized any rational trier of fact to find these elements of the crime beyond a reasonable doubt and, to the extent the conviction was dependent on circumstantial evidence, to exclude every reasonable hypothesis save that of guilt.

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

       261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991).

       447 U. S. 231 (100 SC 2124, 65 LE2d 86) (1980).

       455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982).

       261 Ga. at 630 (5).

       Id.

       See Edwards v. State, 219 Ga. App. 239, 240-242 (2) (a) (464 SE2d 851) (1995) (where defendant failed to respond to statements by investigating officer at the scene of an investigatory traffic stop, Mallory distinguished because it analyzed impeachment by use of defendant’s failure to contact police prior to arrest).

       See Caito v. State, 130 Ga. App. 831, 836 (6) (204 SE2d 765) (1974); compare Racquemore v. State, 204 Ga. App. 88, 89 (2) (418 SE2d 448) (1992).

       See Landers v. State, 270 Ga. 189, 190 (2) (508 SE2d 637) (1998) (noting that it had been held in Mallory “that the state may not comment on either a defendant’s silence prior to arrest or failure to come forward voluntarily, even when the defendant chooses to testify at trial”).

       See Fletcher v. Weir, supra.

       See, e.g., Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998).

        Ford v. State, 234 Ga. App. 301, 303 (2) (506 SE2d 668) (1998).

       See generally Turpin v. Mobley, 269 Ga. 635, 639 (3) (502 SE2d 458) (1998).

       OCGA § 16-7-1 (a).

        Quarterman v. State, 223 Ga. App. 566, 567-568 (4) (479 SE2d 397) (1996).


author: Eldridge, Judge.

text:
    A99A1913.
    MORETON ROLLESTON, JR. LIVING TRUST v. GLYNN COUNTY BOARD OF TAX ASSESSORS.
    (523 SE2d 600)
   Eldridge, Judge.

This is the second appearance of this case, which was first heard in Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 228 Ga. App. 371 (491 SE2d 812) (1997), Division 2 vacated and remanded, 230 Ga. App. 539 (497 SE2d 274) (1998), pursuant to an order of the Supreme Court, S98C0078, January 5, 1998 (“Rolleston”). Rolleston held that the trial court had jurisdiction to entertain a declaratory judgment or mandamus action regarding the delay in the hearing of the appeal before the Glynn County Board of Equalization (“BOE”). On remand, the plaintiff did not amend the two pending petitions to add the Glynn County BOE and seek a mandamus nisi against them to compel them to hear and to decide the tax appeals of the Moreton Rolleston, Jr. Living Trust (“Rolleston Trust”) regarding reassessments for the years 1995 and 1996. Therefore, the trial court had jurisdiction to decide only the declaratory judgment action against the Glynn County Board of Tax Assessors (“BOTA”).

After March 19, 1997, the appeal was forwarded by the Glynn County BOTA to the Glynn County BOE after 180 days expired in January 1997; the Glynn County BOE set a hearing date on the appeal for April 9, 1997, which was rescheduled by Rolleston Trust for June 11, 1997.

By agreement of the BOTA and Rolleston Trust, Civil Action Case Nos. 96-01019 and 97-00422 of the Superior Court of Glynn County were consolidated for hearing on the action for declaratory judgment. The parties filed cross-motions for summary judgment. On January 28, 1999, the trial court entered its order granting to BOTA summary judgment and denied the motion for summary judgment of Rolleston Trust.

Rolleston Trust contends that the trial court erred in granting summary judgment to BOTA. We do not agree.

1. OCGA § 48-5-311 (e) (3) (Ga. L. 1994, pp. 1088, 1090, § 1) provided for automatic referral of a tax appeal from the county board of tax assessors to the county board of equalization after 180 days when the taxpayer has not been notified earlier of a determination by the county tax assessors, except when there has been a county-wide reevaluation or when the tax digest for the current year cannot be approved by the State Revenue Commissioner pursuant to OCGA § 48-5-304 (a).

OCGA § 48-5-311 (e) (6) (A) and (B) provide that, within 15 days of receipt of notice of appeal, the county board of equalization shall set a hearing date to determine the questions presented, which hearing shall not be more than 30 days and not less than 20 days from notification.

OCGA § 48-5-311 (e) (3) and (6) (A) and (B) are directory statutory provisions rather than mandatory, because a county board of equalization can become so swamped with appeals that it cannot hear all pending cases within such short statutory time periods. Where a statute directs that something be done within a certain time period, without any negative prohibition of later performance of the act, usually the provision as to time is treated as directory only and not as a limitation of authority; where no injury appears to have resulted from the delay, the later performance of the act after the time limitation does not render the act invalid. OCGA § 1-3-1; see generally Collins v. Birchfield, 214 Ga. App. 144, 145-147 (447 SE2d 38) (1994); see also Hopping v. Cobb County Fair Assn., 222 Ga. 704, 706 (2) (152 SE2d 356) (1966); O’Neal v. Spencer, 203 Ga. 588 (47 SE2d 646) (1948); Commr. of Ins. v. Stryker, 218 Ga. App. 716, 719-720 (8) (463 SE2d 163) (1995). The fact that OCGA § 48-5-311 (e) (3) contains an exception for both county-wide reevaluations and for non-approved tax digests, both of which would delay the reassessment and appeal process, indicates that such time periods were intended to be directory only. Since the pending appeal limits the tax bill under the reassessment to 85 percent of the current year’s valuation until final determination on appeal, then the taxpayer is not harmed by any delay. See OCGA § 48-5-311 (e) (6) (D) (iii). If the taxpayer brings a mandamus action against either the county board of tax assessors or the county board of equalization, then the trial court may compel an earlier hearing under the facts and circumstances of such case. See Fulton County Bd. of Tax Assessors v. Jones, 264 Ga. 828 (452 SE2d 99) (1995); Rolleston, supra at 374 (1). Where, as in this case, the county board of equalization, in the exercise of due diligence and with reasonable justification for delay, sets a hearing at the earliest available date, which date falls outside the statutory time period, there has been substantial compliance with the statute. OCGA § 1-3-1 (c); Barton v. Atkinson, 228 Ga. 733, 739-740 (1) (187 SE2d 835) (1972).

[L] anguage contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act. [Cits.]

Id. at 739 (1). Thus, the failure of the county board of equalization to timely hear the appeal does not nullify the reassessment.

Further, the evidence showed that both exceptions to the application of OCGA § 48-5-311 (e) (3) existed in 1995, i.e., county-wide reevaluation, and in 1996, i.e., the State Revenue Commissioner had not approved the tax digest for 1996 pursuant to OCGA § 48-5-304 (a), so that the statutory time periods would not be applicable in any event.

2. Rolleston Trust contends that OCGA § 48-5-299 (c) acted as a statutory estoppel of the reassessment for 1995 and 1996.

Under the language of OCGA § 48-5-299 (c), the value of real property established by appeal in any year by the board of equalization or superior court by valuation established or decision rendered cannot be changed by the board of tax assessors during the two successive years, unless the taxpayer returns the property at a different valuation or the purpose of the change is not for the sole purpose of changing such valuation established by appeal.

Rolleston Trust returned the property in 1995 and 1996 at the same valuation as prior years, made no changes or improvements in the property, and showed that there had been a judicial determination of valuation in 1996 for the tax years 1992, 1993, and 1994. Thus, if OCGA § 48-5-299 (c) applied, then prior to the board of assessors changing such appeal establishing valuation of such real property, the board of tax assessors had to conduct an investigation into specific factors currently affecting the fair market value of this specific real property, rather than general market forces, which may affect the real estate market in general. Such investigation shall include (1) a visual on-site inspection of the real property to ascertain if there had been (a) additions, (b) deletions, (c) improvements, or (d) the occurrence of other factors that such visual inspection would reveal and that might affect the fair market value of such property, i.e., changes in the surrounding property that a visual inspection would reveal or physical changes in the real property in question, which would affect the fair market value of the property in question; and (2) a review of the legal description, description of the improvements, description of lot size and of area of improvements, and characterization of such property in the files and records of the board of tax assessors to determine any errors. OCGA § 48-5-299 (c). Such other factors do not include the general rise in the value of real estate or even surrounding real estate manifested by comparable sales, because the evaluation on the earlier appeal already would have taken such existence of increase or decrease in surrounding property values into consideration and, as part of equalization, taken such other property values into consideration in arriving at the .fair market value of the specific property on appeal. Likewise, a county-wide reassessment would not be such factor, because such county-wide reassessment should have brought surrounding property into equalization with the fair market value already determined on appeal of the subject property. However, county-wide or general area reassessment would satisfy a purpose other than “the sole purpose of changing the valuation established” on appeal, because under such circumstances, equalization and uniformity of value upward or downward with comparable property would be the purpose. See Ga. Const. of 1983, Art. VII, Sec. I, Par. III; Parsons v. Chatham County Bd. of Commrs., 204 Ga. App. 130, 131 (3) (a) (418 SE2d 459) (1992), overruled on other grounds, Swafford v. Dade County Bd. of Tax Commrs., 266 Ga. 646, 647 (1) (469 SE2d 666) (1996). None of these steps was taken by the BOTA prior to the reassessment for either 1995 or 1996.

Rolleston Trust produced evidence that there had been no improvement or change in the condition of the property and that there was a prior tax year judicial determination of the fair market value of the property, so that OCGA § 48-5-299 (c) should become applicable. While OCGA § 48-5-299 (c) may appear to be applicable to these reassessments, such limitation on the BOTA reassessment powers are confined to the statutory appeal process only.

(a) The issues of reassessment, including the validity of a reassessment under OCGA § 48-5-299 (c), shall be raised within the statutory scheme for tax appeals promulgated by the General Assembly by appeal to the county board of equalization or arbitrators. See OCGA § 48-5-311 (e) and (f). The superior court’s jurisdiction to decide issues raised by tax appeals is limited to those cases which come through OCGA § 48-5-311 (g). Since valuation and assessment of property for ad valorem purposes are executive branch functions under the separation of powers under the constitution, then the jurisdiction of the superior court in an ad valorem tax case must be by statute, because such court review of executive branch action, absent statutory authority, would be a violation of separation of powers. An action for declaratory judgment is not a substitute for an appeal under OCGA § 48-5-311 (e), but such is appropriate in this case, not for the purpose of resolving reassessment issues that should come -under OCGA § 48-5-311, but to “guide the parties and prevent uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize their interests,” regarding statutory application and construction. Rolleston, supra at 373 (1).

(b) OCGA § 48-5-299 (c) would not be available to Rolleston Trust for the tax year 1995, but such provision would be available for the tax year 1996 if, and only if, an appeal of the 1995 reassessment through OCGA § 48-5-311 (e) establishes an evaluation or OCGA § 48-5-311 (g) results in a judicial decision establishing the 1995 evaluation. This legal consequence results because Ga. L. 1994, pp. 786, 787, § 1, created by amendment OCGA § 48-5-299 (c), and § 2 of the Act states “[t]his Act shall become effective on January 1, 1995, and shall be applicable to all taxable years beginning on or after that date.” Thus, the consent judgment for the taxable years 1992, 1993, and 1994 did not constitute the condition precedent for such Code section affecting the reassessments for 1995 and 1996, even though such judicial decision was rendered in 1996, because the plain language of the Act prohibited retroactive application as to cases such as this. See OCGA § 1-3-5; Mug A Bug Pest Control v. Vester, 270 Ga. 407, 408 (1) (509 SE2d 925) (1999); Enger v. Erwin, 245 Ga. 753 (267 SE2d 25) (1980). Therefore, Rolleston Trust was not entitled to the protection of OCGA § 48-5-299 (c) for a judicial determination setting valuations for years prior to 1995 and its effective date; however, Rolleston Trust would be entitled to such protection as to an appeal establishing the valuation for the tax year 1995, which then would affect 1996 and 1997 as coming under OCGA § 48-5-299 (c).

If there is no decision on appeal establishing value, either by the board of equalization or the superior court, then the condition precedent has not been met. Thus, a settlement with BOTA prior to appeal or after appeal has begun is not a “valuation established or rendered in an appeal” absent a consent judgment entered by the board of equalization, arbitrators, or superior court.

(c) On remand and any subsequent appeal before the BOE as to the tax years 1996 and 1997, BOTA will have an opportunity to raise its constitutional attack on OCGA § 48-5-299 (c). BOTA did not raise the constitutional attack in the trial court, and such constitutional attack has not been ruled upon by the trial court. Therefore, this issue must be raised on remand and would come within the jurisdiction of the Supreme Court as a constitutional issue of first impression.

Decided October 18, 1999

Moreton Rolleston, Jr., for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, W. Gary Moore, for appellee.

G. Todd Carter, pro se.

The trial court did not err in granting summary judgment to the Glynn County BOTA and denying it to Rolleston Trust.

Judgment affirmed.

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

       The Supreme Court of Georgia has promulgated an abstention doctrine for the exercise of equitable jurisdiction in tax appeals, because OCGA § 48-5-311 (e) provides an adequate remedy at law. City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 535 (3) (422 SE2d 651) (1992). However, in rare circumstances where there is no adequate legal remedy, equity may exercise jurisdiction in a tax case. See id.; see also Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 153-154 (218 SE2d 759) (1975); Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 (367 SE2d 43) (1988).

       Art. VII, Sec. I, Par. Ill of the 1983 Georgia Constitution and OCGA § 48-5-1 et seq. impose upon the executive branch the duty to value, assess, and collect taxes as an executive branch function. Art. I, Sec. II, Par. Ill of the Georgia Constitution prohibits the violation of separation of powers .unless permitted by statute. Thus, judicial review of administrative decisions is limited to the inherent powers of the judiciary or those granted by statute by the legislature. See Bentley v. Chastain, 242 Ga. 348, 349-352 (1) (249 SE2d 38) (1978); see also Dept. of Transp. v. City of Atlanta, 260 Ga. 699, 702-703 (1) (398 SE2d 567) (1990).

       If the determination on appeal established the fair market value for real property for a tax year, then, as a matter of fact and law, such determination of fair market value would be made with due regard to equalization and uniformity with other comparable properties’ fair market value at the time of appeal. Thus, a subsequent reassessment during the next two years of such other comparable property would bring such other property into equalization and uniformity with the subject property, which had its fair market value determined on appeal. The property valued on appeal would reflect fair market value, and other property would be brought into equalization and uniformity with its fair market value unless the factors permit a new assessment for purpose of equalization and uniformity.


text:
    A99A1972.
    TRZEPACZ v. THE STATE.
    (523 SE2d 599)
   Eldridge, Judge.

A McIntosh State Court jury found Eugene Trzepacz guilty of misdemeanor assault for throwing a large, wooden board at his neighbor. He appeals his conviction. We affirm.

1. Trzepacz challenges the sufficiency of the evidence introduced against him. Viewed in a light most favorable to support the verdict, the evidence shows that Trzepacz and his neighbor, Janice Horn, had a dispute as to the location of the line between their respective properties. Apparently, Horn maintained a flower garden on the line, which garden was surrounded by landscape timber referred to during trial as “border boards.” On the evening at issue, Horn discovered that a border board had been removed from the perimeter of her garden. She was putting it back into place when appellant Trzepacz approached. Horn testified that “[h]e was like in a rage and I don’t know exactly what he said but he was hollering that it was on his property and that it wasn’t on my property.” Trzepacz pulled the border board out of the ground and threw it at Horn, who was forced to step back in order to avoid being hit. Afraid that Trzepacz would try to hurt her again, Horn went inside her house. Thereafter, she swore out a warrant for Trzepacz’s arrest for simple assault.

An appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld. Id. Here, Horn’s testimony was sufficient as a matter of law to establish the elements of the offense of simple assault. OCGA § 16-5-20. The jury believed Horn’s version of events and found Trzepacz guilty on the basis thereof. Accordingly, the evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Trzepacz contends that the trial court improperly restricted his right to cross-examine the victim, Janice Horn. However, our review of the record shows that the trial court did not make any ruling at all during defense counsel’s cross-examination of Horn, let alone a restrictive one.

The record does reveal, however, that — following Horn’s cross-examination and outside the presence of the jury — the trial court properly admonished defense counsel for taking it upon himself to throw a border board onto the floor during Horn’s cross: “I really don’t appreciate your demonstration there, Mr. Cloy. The issue is not whether you can pick it up and toss it like that. Do you understand?”

Contrary to appellant’s assertions, defense counsel’s throwing of a board to the courtroom floor demonstrated nothing about what occurred between the parties during the incident in question and certainly illustrated nothing about the testimony of Janice Horn. Thus, the trial court properly instructed the jury to disregard defense counsel’s personal demonstration.

Since the record shows no restriction whatsoever in defense counsel’s cross-examination of Janice Horn, “we find no factual basis for this enumeration.” Painter v. State, 219 Ga. App. 290, 294-295 (6) (465 SE2d 290) (1995).

3. Equally meritless is Trzepacz’s contention that the trial court improperly instructed the jury that the offense of simple assault could be committed in a manner that differed from that charged in the accusation. The trial court’s charge on simple assault was a correct statement of the law and tracked the language of the statute. “A charge in the exact language of the statute shows no error. [Cits.]” Moore v. State, 207 Ga. App. 892, 894 (2) (429 SE2d 335) (1993).

Decided October 18, 1999.

John B. Cloy, for appellant.

Christopher J. Osteen, Solicitor, for appellee.

Further, the trial court specifically charged the jury that they must find Trzepacz guilty of the offense as charged in the accusation, i.e., that appellant “did throw a board in the direction of Janice Horn placing her in reasonable apprehension of receiving a violent injury,” and no evidence was adduced to show that an assault could have occurred in any manner other than that charged in the accusation. The trial court also instructed the jury that they were authorized to find Trzepacz guilty of simple assault only if they believed beyond a reasonable doubt that the assault was committed “by throwing a board in the direction of Janice Horn placing her in reasonable apprehension of receiving a violent injury.” “Examining the charge in toto as we are required to do when determining whether charging error has occurred, we find that error did not occur.” (Citations and punctuation omitted.) Moore v. State, supra at 894-895 (2).

Judgment affirmed.

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


author: Barnes, Judge.

text:
    A99A1412.
    WOLF v. McCOLLUM et al.
    (522 SE2d 547)
   Barnes, Judge.

Chipa Wolf appeals the trial court’s order granting summary judgment to the defendants, Thomas McCollum and Cherokee Rose Wolfe fik/a Ellen McCollum, in the underlying declaratory judgment action regarding title to land. Wolf filed the declaratory judgment action in order to establish title to a certain piece of property he claims by either gift of the defendants of adverse possession against the defendants. For the reasons set forth below, we affirm.

We review de novo a trial court’s grant of summary judgment. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this 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. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Decided September 14, 1999

Reconsideration denied October 19, 1999

John A. Roberts, for appellant.

Richard L. Powell, for appellees.

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Wolf’s claim that he is the owner of the subject property through an alleged gift and a re-executed “deed” must fail. The evidence surrounding the alleged gift and re-executed deed, viewed in the light most favorable to Wolf, shows that they were too indefinite to be legally enforceable. See Crawford v. Verner, 122 Ga. 814, 816 (1) (50 SE 958) (1905) (the description of property contained in a deed must disclose the intention of the grantor regarding the quantity and location of the land, so that its identification is possible); Fourteen West Realty v. Wesson, 167 Ga. App. 539, 540 (1) (307 SE2d 28) (1983) (if property conveyed not described sufficiently to locate and identify land, instrument fails).

2. Wolf’s claim that he is entitled to the land under the doctrine of adverse possession is also without merit. OCGA § 44-5-161 (a) (3) requires that the claimant’s possession be uninterrupted and continuous. However, Wolf was incarcerated for six months during the time period he claims he adversely possessed the property. Additionally, Wolf’s possession of the property was not adverse, as McCollum averred that Wolf was the caretaker of the property. See OCGA § 44-5-161 (b).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Johnson, Chief Judge.

text:
    A99A2264.
    FULTON-FRITCHLEE v. DOUGLAS.
    (523 SE2d 349)
   Johnson, Chief Judge.

Linda Fulton-Fritchlee sued William Douglas for injuries allegedly sustained in an automobile accident. A jury found in favor of Douglas. Fulton-Fritchlee appeals, alleging four errors occurred at trial. For reasons that follow, we affirm.

The evidence at trial showed that Douglas stopped his truck behind Fulton-Fritchlee’s vehicle at a traffic signal. After the light turned green, Douglas’ truck rolled into Fulton-Fritchlee’s vehicle at less than ten mph. Fulton-Fritchlee got out of her vehicle and did not make any complaints to Douglas when he asked if she was injured. Fulton-Fritchlee’s suit, however, alleged she sustained “permanent and irreversible personal injury, pain, suffering and emotional distress.”

During her deposition, Fulton-Fritchlee denied ever injuring or having problems with her neck prior to this accident on July 18, 1994. At trial, Douglas’ counsel attempted to impeach FultonFritchlee using her medical records. These medical records revealed that from 1989 until 1991, Fulton-Fritchlee was involved in four automobile accidents. She filled out and signed a medical form on January 18, 1990, describing severe pain and tightness in her neck and across her shoulders as a result of her November 29, 1989 accident. She also filled out another medical form dated May 3, 1991, listing an injury to her neck due to an April 1991 accident. On February 8,1994, Fulton-Fritchlee went to see a doctor complaining that it hurt to turn her neck to the left. And, just one month before the accident with Douglas, Fulton-Fritchlee visited her chiropractor seven times, complaining of stiffness in her shoulder muscles.

At trial, Fulton-Fritchlee also complained that her neck problems had been constant since the day of the accident in July 1994. Douglas’ counsel attempted to impeach her with an August 19, 1994 medical record showing that on this date she saw a doctor and filled out a form on which she indicated her current, past or unusual symptoms. She failed to mention any neck or shoulder problems. In addition, when she filled out a medical form on December 11, 1995, asking her to list all major injuries she had sustained, she failed to list neck or shoulder problems.

1. In her first enumeration of error, Fulton-Fritchlee contends the trial court erred in permitting Douglas’ counsel to cross-examine her using her medical records without first allowing her counsel to view the documents. She alleges that she and her attorney were somehow surprised when Douglas’ counsel cross-examined her regarding prior inconsistent statements made in her medical records. This enumeration of error lacks merit.

All the prior inconsistent statements used by Douglas’ counsel for impeachment purposes came directly from Fulton-Fritchlee’s medical records, which were available to Fulton-Fritchlee and listed by Douglas’ counsel in the pre-trial order. Thus, Fulton-Fritchlee cannot claim surprise. Moreover, the trial court correctly ruled that if the documents were being used for purposes of impeachment, and not being introduced into evidence, then they did not have to be shown to Fulton-Fritchlee’s counsel.

OCGA § 24-9-82 provides that a witness may be impeached by disproving facts'testified to by her. If the contradictory statements are in writing and in existence, they must be shown or read to the witness. OCGA § 24-9-83. Contrary to Fulton-Fritchlee’s contention, the statute does not require that the written statements must first be shown to opposing counsel, even where the witness is the opposing party. In fact, the prior inconsistent statements do not have to be introduced into evidence before they are used for impeachment purposes. See generally Duckworth v. State, 268 Ga. 566, 568 (1) (492 SE2d 201) (1997).

In the present case, Douglas’ counsel properly followed the requirements of OCGA § 24-9-83 with regard to the 1990 medical record at issue. The document was shown to Fulton-Fritchlee, her signature was identified, and her description of prior complaints of severe neck pain following her 1989 accident was identified. This evidence was presented in response to Fulton-Fritchlee’s previous testimony where she denied any severe neck pain following her 1989 accident. The document was never introduced into evidence. The trial court did not err in denying Fulton-Fritchlee’s attorney’s request to view the 1990 medical record before Douglas’ counsel used it for impeachment purposes.

As for the other incidents where Fulton-Fritchlee was impeached with her own medical records, the transcript shows that her attorney never objected to any of these other occasions and never requested to see the documents at these other occasions. Thus, Fulton-Fritchlee has waived any objection to the use of her medical records for impeachment purposes on these occasions. See generally Fuller v. State, 230 Ga. App. 219, 220 (2) (496 SE2d 303) (1998); Ramey v. Leisure, Ltd., 205 Ga. App. 128, 132 (2) (421 SE2d 555) (1992).

2. Prior to trial, the court ruled that evidence regarding the use or non-use of seatbelts was inadmissible. Fulton-Fritchlee contends Douglas violated this ruling of the court. We disagree.

Based on contentions that Douglas was driving too fast and that she experienced unremitting neck pain as a result of the impact, Fulton-Fritchlee was asked at trial if the impact caused her to strike anything inside her vehicle. She responded that she did not remember striking her body against anything, including the steering wheel. She was also asked how far she sits from the steering wheel, and she responded less than an arm’s length. Fulton-Fritchlee was then asked, “[a]nd ma’am, the impact was not even hard enough to move you less than an arm length into the steering wheel, was it?” Her counsel objected, but was overruled, and Fulton-Fritchlee testified once again that she did not hit the steering wheel.

Decided October 6, 1999

Reconsideration denied October 19, 1999

James D. Nichols, Jr., for appellant.

Downey & Cleveland, Rodney S. Shockley, Robert E. Bourne, for appellee.

Contrary to Fulton-Fritchlee’s argument, we do not find that this line of questioning unlawfully interjected the issue of the use or non-use of seatbelts into evidence. The questioning never mentioned the issue of seatbelts. It merely dealt with the relevant issue of force of the impact and how that force, or lack thereof, caused FultonFritchlee’s body to react.

3. Fulton-Fritchlee contends the trial court erred in charging the jury that “the mere fact that a vehicle is struck in the rear is not, standing alone, sufficient to fix liability on the driver of the striking vehicle.” According to Fulton-Fritchlee this charge was not authorized by the evidence because the evidence was clearly against Douglas on the issue of negligence. We disagree.

First, this charge was approved in Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (3) (345 SE2d 56) (1986). In a suit for injuries, the issue of liability depends upon a factual resolution of the issues of diligence, negligence and proximate cause. See Harrison v. Feather, 211 Ga. App. 468, 469 (1) (439 SE2d 706) (1993); Consolidated Freightways v. Futrell, 201 Ga. App. 233, 235 (5) (410 SE2d 751) (1991). While it was undisputed that Douglas struck FultonFritchlee’s car in the rear, the issue of proximate cause, especially in light of Fulton-Fritchlee’s injuries in previous car accidents, was at issue. The charge given was appropriate.

4. Fulton-Fritchlee further contends the trial court erred in failing to give the following requested charge: “I charge you that the purpose of damages is to place an injured party in the same position as she would have been in had there been no injury or breach of duty, that is, to compensate for the injury actually sustained.” Since the jury returned a verdict in favor of defendant Douglas, any error in failing to give the requested instruction regarding damages is harmless because it does not affect the verdict. See Dunn v. Payne, 205 Ga. App. 440, 442 (2) (422 SE2d 291) (1992); Pool Markets South v. Moore, 189 Ga. App. 48-49 (2) (374 SE2d 831) (1988).

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.


text:
    A99A0973.
    US-1 VAN LINES OF GEORGIA, INC. v. HO.
    (523 SE2d 643)
   Barnes, Judge.

US-1 Van Lines of Georgia, Inc. (“US-1”) appeals from a default judgment in the amount of $18,000 for actual damages and $8,094 for litigation costs, including attorney fees. In this appeal, US-1 contends the trial court (1) abused its discretion when it denied US-l’s request for a continuance of the non-jury trial on damages, and (2) improperly awarded attorney fees to the plaintiff. For the reasons that follow, we affirm.

1. In its first enumeration of error, US-1 contends the trial court abused its discretion when it denied its request for a continuance. We disagree.

The record shows that on June 29, 1998, the plaintiff filed a renewal complaint against US-1 seeking (1) damages for injury to the plaintiff’s goods that were transported by US-1 and (2) damage to the wood flooring in the plaintiff’s new home that occurred when US-1 delivered the plaintiff’s personal property. When US-1 failed to timely answer the complaint, the plaintiff moved for entry of a default judgment and a trial on the amount of damages. On October 1, 1998, the trial court notified US-1 that it was required to appear for a non-jury trial on November 5, 1998. On the day of the trial, an employee of US-1, who was not an attorney, appeared on behalf of the corporation, requested a continuance, and submitted a letter from the corporation’s president that also asked for a continuance. In this letter, US-l’s president advised the court that it needed a continuance because its attorney was unavailable to appear for the trial because he was representing another client in another court building. The record, however, shows that this attorney withdrew from his representation of US-1 before the first complaint was dismissed without prejudice. Because the corporation was not represented by an attorney as required by Eckles v. Atlanta Technology Group, 267 Ga. 801, 803-806 (2) (485 SE2d 22) (1997), the trial court proceeded with the trial as if no one had appeared on behalf of the corporation.

Because we find the trial court properly applied the Supreme Court’s holding in Eckles, it did not abuse its discretion when it refused to grant a continuance. In Eckles, the Supreme Court prohibited laypersons from serving as unlicensed attorneys for corporations in courts of record because it would be contrary to the public interest. Id. at 805. This means that US-l’s alleged attorney should have entered an appearance and moved for a continuance on its behalf, not a corporate employee.

If the trial court had granted the request of a layperson for a continuance, it would have allowed the unauthorized practice of law prohibited by our Supreme Court in Eckles. As a result, the trial court properly refused to consider a non-attorney’s request for a continuance. See Congress Re-Ins. Corp. v. Archer-Western Contractors, 226 Ga. App. 829, 831 (1) (487 SE2d 679) (1997) (corporation’s president cannot file answer on behalf of the corporation in a court of record).

We further note that the letter from US-l’s president demonstrates that it received the October 1, 1998 trial calendar notice and. that it had over a month to retain an attorney to represent it. The fact that US-l’s alleged attorney failed to appear at the damages trial or properly seek a continuance makes it appear as though he did not actually represent US-1 in the renewed action, particularly since he had previously withdrawn from his representation of US-1. Thus, US-l’s request for a continuance may have been nothing more than a delay tactic. A trial court’s denial of a continuance is proper when the defendant negligently fails to employ counsel promptly or where it appears the defendant is using the tactic for delay. Daughtry v. State, 225 Ga. App. 45, 46 (1) (482 SE2d 532) (1997).

2. In its remaining enumeration of error, US-1 contends 49 USCA § 14706 (the “Carmack Amendment”) preempts the trial court’s award of attorney fees under state law. US-1 argues that since the plaintiff’s complaint “clearly arises under the Carmack Amendment, and because attorney’s fees may not be granted in any such case, the trial court’s grant of attorney’s fees to appellee must be reversed.”

While it is true that the Carmack Amendment preempts state law claims for damage to property transported by a motor carrier in interstate commerce under a bill of lading, Martin v. North American Van Lines, 226 Ga. App. 187, 188 (1) (485 SE2d 815) (1997), it does not preempt claims for other kinds of damage caused by the motor carrier. Id. (claim for fraud based on failure to honor guaranteed price not preempted by Carmack Amendment); see also Clark v. Messer Indus., 222 Ga. App. 606, 608 (2) (475 SE2d 653) (1996) (Carmack Amendment does not preempt claim for wrongful retention of goods and breach of contract).

In this case, the trial court awarded actual damages for injury to the plaintiff’s goods that were transported by US-1 and damage to the wood flooring in the plaintiff’s new home. It also made a separate award of costs, including attorney fees, under OCGA § 13-6-11. Because no transcript of the non-jury trial on damages was included in the record for our review, we cannot determine whether the trial court awarded attorney fees spent prosecuting the entire complaint or only the portion relating to the wood flooring damage. Since the latter is not preempted by the Carmack Amendment and we are obligated to assume the evidence supported the trial court’s findings in the absence of a transcript, we find no merit in this enumeration of error. See Gary v. Weiner, 233 Ga. App. 284, 285 (1) (503 SE2d 898) (1998); Hulsey Pool Co. v. Troutman, 167 Ga. App. 192, 194 (2) (306 SE2d 83) (1983).

Decided October 19, 1999.

Mitchell & Associates, Bruce E. Mitchell, John F. Blount, for appellant.

Cork & Cork, Patrick C. Cork, for appellee.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur in the judgment only.