text:
    A92A0811.
    BUTTS v. CITY OF PEACHTREE CITY et al.
    (422 SE2d 909)
   Cooper, Judge.

Appellant was convicted in a bench trial in Peachtree City Municipal Court of driving under the influence of alcohol, failure to show proof of insurance, driving without a Georgia driver’s license and impeding the flow of traffic. On appeal in the superior court, only the conviction of impeding the flow of traffic was reversed. We granted appellant’s application for discretionary appeal of the DUI conviction.

The evidence adduced at trial shows that while on foot patrol at 1:27 a.m., Corporal Estes of the Peachtree City Police Department observed appellant in a parking lot, walking unsteadily toward his truck. Estes testified that he did not believe he had sufficient probable cause to stop and question appellant; therefore, as appellant left the parking lot in the truck, Estes radioed to an Officer Vickery and suggested that Vickery observe appellant’s driving on the public roads. Vickery recognized appellant’s truck based on Estes’ description and followed appellant for 3/10ths of a mile, estimating that appellant was driving at a speed of 23 mph in a 40 mph zone. Suspecting that appellant was driving under the influence, Vickery stopped appellant, and as appellant spoke, Vickery detected the strong odor of alcohol. When appellant stepped out of the car, he was unsteady on his feet, and his eyes were bloodshot and glassy. Appellant admitted having two-and-one-half beers and refused a field sobriety test. He was then arrested and given his implied consent rights. Appellant consented to an intoximeter test which produced a reading of .16 grams percent. Vickery initially testified that he then offered appellant a second test pursuant to OCGA § 40-6-392 (a) (3) which appellant refused. He later testified that appellant asked for a blood test; that Newnan and Humana Hospitals, both in Newnan, require cash for such tests; that because appellant had a credit card but did not have sufficient cash for a blood test, appellant was not taken to either of the hospitals; and that appellant did not ask to use the phone or make arrangements for a test elsewhere.

1. Appellant argues that there was insufficient articulable suspicion to justify the initial stop of his truck. We disagree. “ ‘Even in the absence of probable cause, a police officer “may stop an automobile and conduct a limited investigative inquiry of its occupants ... if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” [Cit.]’ [Cit.]” Jenkins v. State, 201 Ga. App. 654, 656 (2) (413 SE2d 460) (1991). Given the fact that Vickery had information from Estes that appellant was walking unsteadily immediately before he got into his truck and that Vickery observed appellant driving unusually slowly on a public thoroughfare 17 mph below the authorized speed limit at 1:27 a.m., Vickery had a legitimate purpose for stopping the truck to ascertain appellant’s condition. Therefore, the stop was reasonable. See State v. Thomason, 153 Ga. App. 345 (1) (265 SE2d 312) (1980).

2. Appellant also contends the superior court erred in affirming the trial court’s denial of his motion to suppress the results of the intoximeter test on the ground that the police unjustifiably failed to permit him to obtain an independent blood test. The superior court held that because appellant did not make arrangements for a blood test the police had no duty to facilitate the performance of a test.

“OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. [Cit.] While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. [Cit.] The statute also states that ‘the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.” State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989).

The superior court determined that appellant waived his right to an independent test by failing to personally make arrangements for a blood test; by failing to request to be taken to an automated teller machine to obtain sufficient cash for a blood test at one of the Newnan hospitals identified by the police; and by failing to locate another facility which would accept a credit card. However, despite the fact that appellant was informed of his right to an independent test, he was never instructed by the police to personally make arrangements for the test, nor was he allowed the use of a telephone. See State v. Hughes, 181 Ga. App. 464, 466 (352 SE2d 643) (1987); Akin v. State, 193 Ga. App. 194, 195 (387 SE2d 351) (1989). Compare Harper v. State, 164 Ga. App. 230, 231 (296 SE2d 782) (1982). When asked at trial whether appellant had been given access to a telephone to call someone who could give him cash for the blood test, Vickery recited the policy of the Peachtree City Police Department that “phone calls are only made once [individuals] get to the [Fayette County Jail].” Moreover, the record reveals that in addition to a credit card, appellant had an automated teller machine card which he could have used to obtain cash; that there were no police emergencies on the night of appellant’s arrest; that when appellant invoked his right to an additional test by a technician of his own choosing, appellant was told that the police department used Newnan and Humana hospitals, the nearest of which was 15 miles away in another jurisdiction; and that when appellant revealed he did not have sufficient cash for a test, there was no further effort to accommodate appellant. Vickery testified that once appellant was offered the second test and was informed of “the procedure,” appellant did not ask to make other arrangements and that it was not the responsibility of the police to “dig it out of him to get him to go somewhere.” However, the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police. When the officers learned that appellant did not have sufficient cash for a blood test at one of the recommended hospitals, appellant should have been offered the opportunity to use a telephone to make other arrangements. In addition, since the police were willing to transport appellant at least 15 miles from Peachtree City to Newnan to the closer of the two recommended hospitals, he could also have been taken to an automated teller machine to obtain sufficient cash without having to insist on being taken there. Contrary to the superior court, we do not agree that appellant waived his right to an independent test because he was never instructed that his failure to personally make such arrangements would result in a waiver. Accordingly, we find that under the totality of the circumstances, the officers did not reasonably accommodate appellant, and the results of the intoximeter test should have been suppressed.

Decided September 16, 1992.

Ballard, Slade & Ballard, Scott L. Ballard, for appellant.

Glover & Davis, A. Mitchell Powell, Jr., Delia T. Crouch, Mc-Ginn, Webb & Warner, James H. Webb, Jr., Michelle G. Lundy, Richard P. Lindsey, for appellees.

3. Based on the foregoing, appellant’s contention that the trial court erred in refusing to admit certain photographs which purportedly demonstrated that one of the hospitals accepted credit cards is moot.

4. Appellant next argues that there was insufficient evidence to support a conviction under OCGA § 40-6-391 (a). Appellant was charged with violating the entire statute and concedes that proof of any one of the statute’s four subsections beyond a reasonable doubt would authorize a conviction. While suppression of the intoximeter results would prevent a conviction under subsection (a) (4), there was sufficient evidence to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt under subsection (a) (1). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Vickery testified that there was a strong odor of alcohol about appellant’s person, appellant was unsteady on his feet, his eyes were bloodshot and glassy, and appellant admitted consuming alcoholic beverages during the course of the evening. Vickery also observed appellant driving well below the authorized speed limit. See Williams v. State, 190 Ga. App. 361 (1) (378 SE2d 886) (1989); Bass v. State, 185 Ga. App. 666 (1) (365 SE2d 509) (1988); Collins v. State, 177 Ga. App. 758 (2) (341 SE2d 288) (1986).

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A1181.
    STEWART v. THE STATE.
    (422 SE2d 567)
   Pope, Judge.

Defendant Timothy A. Stewart was convicted of burglary and armed robbery and appeals. We affirm.

1. First, we reject defendant’s argument that the trial court erred in denying his motion to suppress evidence of palm prints taken while he was incarcerated as a result of an unrelated offense. Contrary to defendant’s argument, the testimony presented at the motion to suppress established that defendant’s fingerprints and palm prints were taken routinely as a result of his incarceration for an unrelated offense. That they had to be taken a second time because the first set was smudged and unreadable is irrelevant. “The [defendant’s detention] being lawful, the taking of the [defendant’s palm prints] was also lawful.” Bradford v. State, 149 Ga. App. 839, 841 (256 SE2d 84) (1979). Consequently, the argument that the evidence was wrongfully obtained without a showing of probable cause and without the authority of a warrant must fail.

Decided September 16, 1992.

Hemmann & Hemmann, Paul E. Hemmann, for appellant.

Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

2. We also reject defendant’s argument that the trial court erred in denying his motion for directed verdict and his motion for new trial on the ground that the evidence did not support the conviction. The defendant’s own testimony placed him near the scene of the crime near the time it happened. Other evidence showed that the defendant lived near the house where the offenses were committed and the victim testified he watched the robber walk away from his home. Defendant’s palm prints were found on a porch glider in front of the window the burglar used to enter the house and on the inside window sill. Defendant testified that prior to the burglary he had visited the victims to borrow a yard tool, but he admitted he did not at that time enter the victims’ porch or their house. Defendant also offered conflicting evidence concerning his alibi. A physical description of the burglar was given by the victim and, although no physical description of the defendant appears in the record, the jury had the opportunity to observe him and determine if he fit the description.

Consequently, although the evidence against defendant was circumstantial, we conclude it was sufficient to sustain the verdict, and we reject defendant’s argument that it failed to exclude every reasonable hypothesis save that of guilt. “ ‘The term “hypothesis” as used in (OCGA § 24-4-6) refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by some bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act. . . .’ [Cits.]” Cobb v. State, 195 Ga. App. 429, 430 (2) (393 SE2d 723) (1990).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A92A1243.
    STEPHENS v. TROTTER.
    (422 SE2d 568)
    Decided September 16, 1992.

      Mitchum & Mitchum, Robert W. Mitchum, for appellant.

      Gary V. Bowman, for appellee.
   Cooper, Judge.

Appellant filed a “Complaint for Specific Performance and for Damages” against appellee, seeking specific performance of an alleged agreement for the sale of real property or, in the alternative, damages for fraud and misrepresentation. Appellant subsequently amended her complaint to add a prayer for declaratory relief, requesting that the court declare the existence of a valid agreement to deed the subject property to appellant upon the occurrence of certain events. The trial court granted appellee’s motion for summary judgment and this appeal followed.

We first determine whether we have jurisdiction to consider this appeal. “An action seeking specific performance seeks equitable relief ([cits.]), and an appeal from a judgment rendered pursuant to a request for equitable relief is within the jurisdiction of the Supreme Court. 1983 Ga. Const., Art. VI, Sec. VI, Par. Ill (2). [Cit.]” Lemke v. Southern Farm &c. Ins. Co., 182 Ga. App. 700 (356 SE2d 739) (1987). Although appellant has included in her complaint an alternative prayer for damages, “ ‘(d)amages in lieu of specific performance cannot be recovered unless [áppellant] can prove [her] right to the latter remedy. [Cit.]’ [Cits.]” Lemke, supra. Accordingly, this appeal from a judgment rendered pursuant to a request for equitable relief is transferred to the Supreme Court. See Piedmont Properties v. Sims, 195 Ga. App. 353 (393 SE2d 496) (1990).

Case transferred to Supreme Court.

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


author: McMurray, Presiding Judge.

text:
    A92A1260.
    LEE v. STATE CONSTRUCTION INDUSTRY LICENSING BOARD OF GEORGIA.
    (423 SE2d 26)
   McMurray, Presiding Judge.

Plaintiff, a master plumber, brought a declaratory judgment action against the State Construction Industry Licensing Board of Georgia seeking a declaration as to whether he can be investigated and disciplined for the conduct of plumbers that are employed by Plumbing, Inc., a business which plaintiff owns and manages. The superior court dismissed the action “on the basis of the doctrines of res judicata and collateral estoppel,” finding that previous administrative and appellate proceedings between the parties provided plaintiff with “ample guidance” and that, therefore, declaratory relief was inappropriate. Plaintiff appeals, asserting the superior court erred in taking judicial notice of the prior proceedings and in determining that the doctrines of res judicata and collateral estoppel applied. Held:

Decided September 16, 1992.

G. Brian Spears, for appellant.

Michael J. Bowers, Attorney General, Beverly B. Martin, Senior Assistant Attorney General, Andrew S. Ree, Assistant Attorney General, for appellee.

1. A trial court may take judicial notice of its own records. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107); Walker v. McLarty, 199 Ga. App. 460, 461 (405 SE2d 294).

2. “Any party may contest or argue the effect the prior record has on the case or issue being litigated and may cite to portions of the record which have been recognized or incorporated by the court. Because a ruling on the effect of the prior case may be raised on appeal, the record or portion thereof considered by the trial court should be designated to be included in the appeal if a party wishes to enumerate error on the ruling.

“The general rule is that the burden is on the complaining party to perfect the record for appeal. The application of that rule would be appropriate in cases where a court has taken judicial cognizance of other records which are in the trial court.” Petkas v. Grizzard, 252 Ga. 104, 108, supra.

The prior proceedings were not designated as part of the record on this appeal. It follows that plaintiff has not carried his burden of demonstrating error with regard to the application of the res judicata and collateral estoppel doctrines. Petkas v. Grizzard, 252 Ga. 104, 108, supra.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1539.
    SINCLAIR v. OROZCO.
    (423 SE2d 25)
   McMurray, Presiding Judge.

Plaintiff Sinclair fell and was injured after he stepped into a depression in the parking lot of a building owned by defendant Orozco. This appeal is taken from the grant of summary judgment in favor of defendant and against plaintiff in the ensuing action for damages. Held:

Decided September 16, 1992.

Cobb & Walton, Bobby L. Cobb, for appellant.

Fortson & White, Michael D. St. Amand, for appellee.

Even though the fall occurred at night there was some lighting of the area. Plaintiff deposed that he did not look down at the parking lot before he fell, but that if he had looked he would have easily observed the raised or depressed place which caused his fall.

While plaintiff’s status upon the premises was contested, we need not reach that issue. Even assuming that plaintiff was an invitee, he was under a duty to exercise ordinary care for his safety. This includes a duty to use his eyesight for the purpose of discovering and avoiding any discernible obstruction in his path. There is no suggestion that defendant was responsible in any way for plaintiff’s failure to see the depression in the parking lot. The uncontroverted evidence shows that plaintiff was not exercising due care for his own safety, therefore the state court did not err in granting defendant’s motion for summary judgment. Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234). Plaintiff’s reliance on Wallace v. Pointe Properties, 202 Ga. App. 537 (414 SE2d 678) is misplaced as this case may be distinguished on the facts.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0942.
    BROWNE v. TRUST COMPANY BANK.
    (422 SE2d 669)
   Sognier, Chief Judge.

Trust Company Bank brought suit in the State Court of DeKalb County on a note against Cecil Pharr, as principal, and Robert Browne, as guarantor. Pharr did not file an answer and judgment was entered against him by default. The court heard the case against Browne without a jury and awarded judgment in favor of the bank. Browne appeals.

In his sole enumeration of error, appellant contends that the trial court should have dismissed the complaint against him for “lack of jurisdiction over the person” of appellant. He cites OCGA § 15-7-4 as authority for the proposition that the trial court could not obtain jurisdiction over him because he was a resident of Fulton County and was not a joint obligor with Pharr, a DeKalb County resident. OCGA § 15-7-4, however, sets forth the subject matter jurisdiction of state courts and is not applicable to appellant’s claim of lack of personal jurisdiction. See Williams v. Fuller, 244 Ga. 846, 849 (262 SE2d 135) (1979) for a discussion of the distinction between subject matter and personal jurisdiction. Having been served with process and having objected to personal jurisdiction solely on the basis that he was not a resident of the forum county, appellant presented only a question of venue. Weddington v. Kumar, 149 Ga. App. 857, 858 (256 SE2d 141) (1979).

Decided September 17, 1992.

J. Caleb Clarke III, for appellant.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.

Venue is established by the Georgia Constitution, which provides in pertinent part that “[s]uits against joint obligors . . . residing in different counties may be tried in either county.” Ga. Const., Art. VI, Sec. II, Par. IV (1983). See OCGA § 9-10-31. Principals and guarantors, which under Georgia law are considered equivalent to principals and sureties, OCGA § 10-7-1, are “joint obligors” within the meaning of these vénue provisions and accordingly may be sued in the county of residence of either defendant. E.g., National Bank of Ga. v. Moore, 159 Ga. App. 729-730, 733 (2) (285 SE2d 78) (1981); see Concrete Coring Contractors v. Mechanical Contractors & Engineers, 220 Ga. 714, 719 (3) (141 SE2d 439) (1965). The “test of whether a verdict may be obtained against a nonresident is whether the verdict against the resident is authorized.” Woods v. Universal C.I.T. Credit Corp., 110 Ga. App. 394, 397 (8) (138 SE2d 593) (1964). Since Pharr, appellant’s principal, resided in the county in which this action was filed and failed to file an answer, default judgment against Pharr was authorized. Thus, venue against appellant was proper in the forum, see id., and the trial court did not err by declining to dismiss the action.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0981.
    WOODS v. THE STATE.
    (422 SE2d 670)
   Birdsong, Presiding Judge.

Appellant Michael C. Woods was found guilty of burglary and theft by taking. He appeals that portion of his sentence which ordered him to pay $10,000 restitution, representing the amount of damages to the burgled premises which was not paid by the victim’s insurance. Held:

Appellant contends that because he was not given a hearing as to restitution, under Patterson v. State, 161 Ga. App. 85 (289 SE2d 270) the sentence of restitution must be reversed.

In Cannon v. State, 246 Ga. 754 (272 SE2d 709), the court held that OCGA §§ 17-14-8 and 17-14-10 contemplate that a hearing will be held and specific written findings will be made by the court in determining restitution and the amount thereof. However, the court also found the transcript showed the trial judge did conduct a hearing and considered the factors set out in OCGA § 17-14-10, and that appellant did not contest the State’s evidence of damages; so, the case was not remanded.

The transcript in this case shows that appellant did not ask for a hearing on the amount of restitution, nor did he contest the State’s evidence of damages except to suggest vaguely he could not possibly have caused the extent of damage claimed. Therefore, the amount of unpaid damages, that is, those not paid by the victim’s insurer, is not in dispute and appellant may not challenge that amount. See Williams v. State, 180 Ga. App. 854, 855-856 (350 SE2d 837). Compare Lomax v. State, 200 Ga. App. 233 (407 SE2d 462).

However, the transcript does not show that the trial court considered the factors named in § 17-14-10. Id. at 856 (3) (b). In Garrett v. State, 175 Ga. App. 400 (333 SE2d 432), we held, following Cannon, supra, that a hearing and written findings are required under § 17-14-10 in an attempt to settle the matter and avert further civil litigation if possible and where appropriate.

In this case the damages attributed to appellant are certain. But, they are inconclusive insofar as they require appellant to pay only the amount not paid by the victim’s insurance policy. There is no factual or legal finding by the trial court that would either preclude or permit a civil remedy against appellant for the amount which was paid by the victim’s insurer. As in Garrett, we do not suggest that the criminal restitution statutes provide the exclusive remedy of the victim, and we do not suggest that by enacting the restitution act that the legislature intended to protect criminal offenders from civil liability or prevent victims from pursuing a just civil remedy for their damages. See OCGA § 17-14-11, which provides that an order of restitution in a criminal case “shall not bar any civil action against the offender.” If an object of the restitution award is the finality of the liability matter as said in Garrett, this object has not been achieved by the proceedings in this case. As the requirements of OCGA § 17-14-10 have not been fulfilled, we remand the matter to the trial court for a hearing and specific findings pursuant to § 17-14-10 and Cannon, supra.

Judgment affirmed in part and case remanded with direction.

Beasley and Andrews, JJ., concur.

Decided September 17, 1992.

Deborah Dearman, for appellant.

Stephen F. Lanier, District Attorney, for appellee.


text:
    A92A1014.
    JOHNSON v. CITY WIDE CAB, INC.
    (422 SE2d 912)
   Sognier, Chief Judge.

Malissa Johnson brought suit against Denolius Farley and City Wide Cab, Inc. to recover damages for injuries she incurred when a taxi driven by Farley, whom Johnson alleged was employed by City Wide, collided with Johnson’s car. After granting City Wide’s motion to withdraw an admission of agency, the trial court granted summary judgment to City Wide. Johnson appeals from the judgment entered in favor of City Wide.

1. Appellant first contends the trial court erred by granting appellee’s motion for withdrawal of its admission. Appellant served her request for admission on May 9, 1990, fourteen days after appellee filed its answer and nine days before appellee’s attorneys of record moved to withdraw as counsel for appellee and Farley. Appellee then failed to answer the request within the requisite time period (see OCGA § 9-11-36 (a) (2)), thereby resulting in an admission that “at the time of the collision, Denolius Farley was acting as a servant of [appellee].” Appellee’s counsel reentered the case two months later and filed a suggestion of Farley’s death. In May 1991, counsel moved to withdraw the admission and also moved to dismiss the claim against Farley on the ground that no motion for substitution had been filed within 180 days as required by OCGA § 9-11-25 (a) (1). The court granted both motions and in August granted appellee’s motion for summary judgment.

Pursuant to OCGA § 9-11-36 (b), as construed in Cielock v. Munn, 244 Ga. 810, 812-814 (262 SE2d 114) (1979) (Hill, J., concurring specially) and Whitemarsh Contractors v. Wells, 249 Ga. 194 (288 SE2d 198) (1982) (adopted Cielock special concurrence), a court may grant a motion to withdraw admissions “(1) when the presentation of the merits will be subserved thereby and (2) the party obtaining the admission fails to satisfy the court that the withdrawal will prejudice maintaining his action or defense on the merits. The burden as to the first prong is on the party moving to withdraw and the burden as to the second prong is on the respondent. . . . [As to the first prong, i]f the burden of proof on the subject matter of the request for admission is on the requestor, the movant is required to show the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.” Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 727-728 (1) (405 SE2d 764) (1991).

In support of its motion to withdraw admissions, appellee submitted the affidavit of its manager, Wallace Maffett, who averred that appellee provides a dispatch service to taxi drivers who operate as independent contractors, that appellee has never employed a taxi driver, and that appellee did not employ Farley on the date in question. Maffett also averred that appellee’s manager at the time the admissions were served had been ill with Parkinson’s disease. This testimony satisfied the first prong because the denial of agency by a person in authority was credible and showed that the denial was not being offered solely for delay but instead was proffered to correct an erroneous admission. Compare Intersouth, supra at 728 (1).

Further, we hold that appellant failed to satisfy the second prong of the inquiry. Appellant’s argument that she was prejudiced by losing the opportunity to establish agency through the admission is without merit, for being compelled to try the merits of a case does not constitute the type of prejudice needed to warrant denial of a motion to withdraw admissions. Alexander v. H. S. I. Mgmt., 155 Ga. App. 116, 117 (270 SE2d 325) (1980). Similarly, we are not persuaded by appellant’s contention that appellee lulled her into a false sense of security by not moving to withdraw the admission at issue until after the time for substitution of a party for Farley had expired. There is no evidence that appellee affirmatively represented to appellant that she did not need to move for substitution or otherwise actively precluded appellant from filing the necessary pleadings, see generally Alexander v. Searcy, 204 Ga. App. 454 (419 SE2d 738) (1992), and accordingly “[t]he record thus establishes that the failure to [file such pleadings] was attributable to no one but appell[ant].” Id. at 457.

For the foregoing reasons, we hold the trial court did not abuse its discretion by granting appellee’s motion to withdraw admissions. See Battle v. Strother, 171 Ga. App. 418, 419-420 (3) (319 SE2d 887) (1984).

2. Appellant also contends that even if the admission properly was withdrawn, a fact question remains as to agency. The evidence in the record concerning the question of agency consists of Maffett’s affidavit discussed in Division 1, appellant’s affidavit submitted in opposition to the summary judgment motion, and appellant’s deposition. In her affidavit, appellant averred that at the scene of the collision Farley told her he was employed by appellee and that a man who identified himself as Farley’s supervisor then arrived and made the same statement. However, in her deposition, appellant testified only that at the scene Farley contacted someone she “guess[ed] was his supervisor,” and that she did not know what else Farley might have said at the scene because she was in pain from her injuries at the time.

Decided September 17, 1992.

Nicholas & Weeks, Joe A. Weeks, Stephen M. Ozcomert, for appellant.

Murray & Temple, John C. McCaffery, for appellee.

It is well established that when either the principal or the agent denies the existence of any agency relationship, that denial may sustain a motion for summary judgment. Bennett v. Miller, 188 Ga. App. 72, 74 (371 SE2d 903) (1988). Pretermitting the question whether appellant’s affidavit testimony concerning Farley’s and the alleged supervisor’s statement was inadmissible hearsay, that testimony nonetheless must be construed against her and the favorable portions excluded because it contradicts her deposition testimony and no reasonable explanation for the contradiction was offered. Chapman v. Burks, 183 Ga. App. 103, 106 (2) (357 SE2d 832) (1987). Appellant also proffered the circumstantial evidence that appellee’s logo was painted on Farley’s taxi, but that evidence cannot be used to controvert appellee’s denial of agency and avoid summary judgment because it is not sufficient to support a verdict. See Bennett, supra. There being no competent evidence in the record sufficient to raise a question of fact as to agency, the trial court properly granted summary judgment to appellee. See generally id.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A92A1583.
    WARD v. THE STATE.
    (423 SE2d 288)
   Beasley, Judge.

Appellant Ward and his co-defendant Knox were convicted of rape. OCGA § 16-6-1.

1. The first issue is whether the evidence was sufficient to withstand Ward’s motion for directed verdict of acquittal. Such is to be granted “only when there is no conflict in evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. [Cits.] On appeal a reviewing court can consider all the evidence [cit.] and must view the evidence in the light most favorable to the verdict. [Cit.]” Jones v. State, 201 Ga. App. 102, 103-104 (2) (410 SE2d 199) (1991).

Ward borrowed an audio cassette tape from the victim, a high school classmate, and would not return it. He told her she would have to come and get it. She responded that her mom would bring her to his house. He agreed but then changed his mind and told her to meet him at a convenience store close to her residence. When she arrived, Knox, whom she did not know, and Sinclair, whom she had heard of, approached and asked if she was Shannon. She said, yes. When she asked where Ward was, they told her he would be there in a minute. She turned to leave, but at Knox’s insistence she let him drive her home.

The next day, the victim saw Ward at school. He asked her to go to get something to eat with him, Knox, and Sinclair after school. He told her that he would give her tape back then. She agreed, but told him she had to be at work at 5:30 p.m.

She waited for him to pick her up outside her residence, but Knox and Sinclair drove up and told her Ward was not yet able to leave home. She left with Knox and Sinclair, under the impression they were going to Ward’s house. However, they drove to Knox’s house and told her Ward had something to do, but they would call him. She asked Knox if she could use his phone to call her mom. He refused, saying that he was expecting a call.

The victim waited in the carport, but then went into the house. She went upstairs and found Knox and Sinclair, who told her to come into the room, stating they would not bite her. She laughed and entered. Sinclair was rolling a marijuana joint. He asked if she had ever smoked marijuana before, and she said, no. Sinclair got up, looked out the window, and asked rhetorically where “they” were.

Ward bounded into the room with Griff eth and Cook, whom the victim did not know. He suggested that they leave, but as the boys were walking to the car through the garage, they went into a room and began to smoke “pot.” The victim reminded Ward that he had told her he did not do that anymore, but he said that it was no big deal and told her to just calm down. He encouraged her to “take a hit,” which she did. She asked Ward about her tape, but he ignored her. Finally he turned toward her and said, “Shannon, don’t you think it’s about time.” When she asked what it was time for, he said, “for me.” She just laughed because he was saying things like that constantly. When she again asked for her tape, Ward said it was upstairs in Knox’s bedroom and she could retrieve it. She got directions and went upstairs.

As she was looking for her tape, Knox came into the room and grabbed her from behind. She attempted to fight him off, but he was too strong and would not stop. She began screaming and heard the sound of the other boys giggling outside the door. She continued screaming but they increased the volume of the music they were playing on the radio. Knox raped her. She asked where Ward was, and she kept screaming and calling for him, but he did not come. After Knox left, she was raped by Sinclair and forced to commit oral sodomy upon him. She was also raped by Cook and then Griffeth. They brought in a young boy, but he was scared and did not rape her. During this period, she became very weak and groggy and drifted in and out of consciousness.

The victim later stated to police that Ward came into the bedroom after Griffeth raped her, at which point she was hysterical. The other boys asked Ward to calm her down. He told her to shut up and lay down. She was then left in the room with the young boy. Ward reappeared and told her the young boy was a virgin, that he had a condom and was ready, and that Ward was going after him. Ward told the young boy to “just get on her,” to which he responded, “She knows my name.” The victim became hysterical.

At trial, on the other hand, the victim testified that Ward came into the bedroom while Cook was there, that he held her down while Cook raped her, and that he was one of the boys who forced her to perform oral sodomy upon Sinclair. She also testified that Ward offered to hold her down while the young boy raped her.

Eventually, Knox and another youth took her to work. She was hysterical and told her manager that she had been raped. The manager called the victim’s mother, who took her to the police, then to the hospital. The examining physician found grossly visible abrasions around the vaginal opening, contraindicative of consensual sex, because these injuries would be very painful.

The evidence, viewed in a light most favorable to the verdict, was sufficient to authorize any rational trier of fact to find beyond a reasonable doubt that Ward was a party to rape. The jury was instructed as to when a person is a party to a crime by reason of being concerned in its commission, in accordance with OCGA § 16-2-20.

2. The next issue is whether the indictment was subject to dismissal. It was not.

At the time rape was committed, Ward was age 17 and on probation in juvenile court. The charges against him were dismissed for lack of probable cause after a commitment hearing in magistrate court. The juvenile court conducted a hearing on the matter which did not involve Ward because of the dismissal in magistrate court. The juvenile court did not order a transfer to superior court.

Ward contends that under these facts, he was not within the jurisdiction of the superior court when the grand jury subsequently indicted him. See J. T. M. v. State, 142 Ga. App. 635, 637 (2) (236 SE2d 764) (1977).

The State argues that at the time of the rape incident, Ward was outside the juvenile court’s jurisdiction, as to it, and that the juvenile court never assumed jurisdiction over him as to this offense.

Decided September 17, 1992.

Wayne L. Burnaine, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Jr., Debra K. Turner, Assistant District Attorneys, for appellee.

The superior court and the juvenile court have concurrent jurisdiction over juveniles charged with capital offenses, and whichever court first takes jurisdiction over the matter may retain it, subject to the right of the juvenile court to transfer the case to superior court. Ibid. Taking jurisdiction, within the contemplation of J. T. M. and like cases, means taking jurisdiction over a specific offender as to a specific offense. Id. at 638-639. The juvenile court never took jurisdiction over Ward as to the present offense.

3. Ward unsuccessfully assails the conviction as invalid on the ground the victim, by reason of her prior inconsistent statements, is chargeable with perjury at trial, and the State is chargeable with the knowing use of perjured testimony.

The prior inconsistent statements related to the credibility of the victim/witness but did not require suppression of her testimony as perjured. It was not proved that her trial testimony was false. Her credibility was properly left to the jury under proper instructions from the court. OCGA § 24-9-80; Godfrey v. State, 187 Ga. App. 319, 321 (370 SE2d 183) (1988).

4. The final enumeration of error is that the State had prior notice of these inconsistencies because the victim’s testimony in juvenile court was the same as her testimony at trial, and the State should have revealed these inconsistencies in response to his motion for discovery.

We are without the transcript of the juvenile court hearing. The record does show that after the victim testified at trial, Ward was given a copy of her statement to police because of the inconsistencies between that statement and her trial testimony as to Ward’s involvement in the crime. He then cross-examined her about these inconsistencies. The disclosure satisfied the requirements of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), and Ward does not contend that the timing of the disclosure prejudiced him.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       The transcript of the juvenile court hearing is not in the record.


text:
    A92A0783.
    THE STATE v. FRYE.
    (422 SE2d 915)
   Sognier, Chief Judge.

David Frye was indicted on a charge of robbery. At trial, after a jury was selected but before the jury was sworn, Frye moved in limine to exclude evidence of both an out-of-court identification Frye alleged was improper and any in-court identification that might be offered during trial. The trial court granted Frye’s motion and the State appeals.

1. Before considering the merits of the appeal we must consider initially the State’s right to bring a direct appeal from the trial court’s pretrial ruling on appellee’s motion in limine. See State v. Smith, 193 Ga. App. 831 (1) (389 SE2d 547) (1989). Although the language in OCGA § 5-7-1 (4) authorizing a direct appeal by the State refers only to “a motion to suppress evidence illegally seized,” that statute has been construed as authorizing the State to bring a direct appeal whenever the trial court’s exclusion of evidence is based upon its determination that the State unlawfully obtained the evidence, regardless of how the motion to exclude the evidence is denominated. State v. Brown, 185 Ga. App. 701 (365 SE2d 865) (1988). In the present case the trial court disallowed the identification evidence on the ground that the police had utilized impermissibly suggestive procedures violative of established law. Accordingly, since appellee’s motion was made and ruled upon prior to the jury having been sworn, we hold that the State’s appeal of the trial court’s ruling is within the purview of OCGA § 5-7-1 (4). State v. Gardner, 254 Ga. 264 (328 SE2d 546) (1985). Accord State v. Strickman, 253 Ga. 287 (319 SE2d 864) (1984); State v. McCard, 173 Ga. App. 504 (326 SE2d 856) (1985). Compare Brown, supra.

2. The State contends the trial court erred by excluding the evidence of the out-of-court identification. The evidence adduced at the hearing on the motion in limine showed that on September 19, 1991 at approximately 2:30 a.m., a convenience store in Ocilla was robbed. Billie Register, who was working at the store at that time, testified that the robbery lasted about three minutes, during which time she had an opportunity to view the robber’s face. She also testified, however, that she was upset and nervous and, because she was fearful of allowing the robber to observe her looking at him, she turned away whenever he looked at her. Register’s only description of the robber was that he was a black man wearing a toboggan hat pulled down over his forehead.

Approximately 30 minutes after the robbery a police detective showed Register a stack of about 25 photographs of black men of various ages, including one of appellee taken three to five years previously. Register was certain that none of those photographs depicted the robber. A day later, the detective photographed appellee, who had been arrested on another warrant, and asked Register to come to his office in the jail to view this photograph of appellee in an orange jail jumpsuit to “see if this may be the guy that robbed her.” No other photographs were shown to Register at that time. Register testified she thought the man in the photograph might be the robber, but was not sure because he was smiling in the photograph. Immediately thereafter, appellee was directed to walk past a window in the door of the detective’s office so Register could view him in person. Register testified she then “knew for sure no doubt” appellee was the robber. She identified appellee in the courtroom and testified that she would have been able to identify him independent of anything she had seen or heard in the past.

A two-part test is used to determine whether identification evidence should be excluded. “The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification. [Cit.] ” Gravitt v. State, 239 Ga. 709, 710 (4) (239 SE2d 149) (1977). In the case at bar, it is clear that the procedure used was impermissibly suggestive, see Baier v. State, 124 Ga. App. 334, 335-337 (1) (183 SE2d 622) (1971), and the State concedes that it was. We need address, therefore, only the second prong of the test.

In determining that question, we must consider the totality of the circumstances. Factors to be addressed are (1) the witness’ opportunity to view the accused at the time of the crime; (2) the witness’ degree of attention during the crime; (3) the accuracy of the witness’ prior description of the accused; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972).

Applying these factors to the case sub judice, we find the evidence supports the trial court’s finding that there existed a substantial likelihood of misidentification. See Towns v. State, 136 Ga. App. 467, 468-469 (1) (221 SE2d 631) (1975). Although Register had the opportunity to view the robber during the robbery, according to her testimony the robber was not facing her but at her side during the robbery, and she deliberately avoided looking at him. In addition, she was nervous and upset. Her description was couched only in general terms and she was certain the robber was not included in the original, proper photographic showup, despite the presence of an old photograph of appellee. Even after viewing the suggestive single photograph of appellee she was only “pretty sure.” Considering the totality of these circumstances, we hold the evidence did not demand a contrary finding and accordingly affirm the trial court’s ruling excluding from evidence the out-of-court identification. See State v. Smith, 134 Ga. App. 602 (215 SE2d 345) (1975).

Decided September 18, 1992.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellant.

Mixon & Mixon, Warren L. Mixon, for appellee.

3. “Even if the pretrial identification is tainted, the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cits.]” Hamilton v. State, 180 Ga. App. 284, 285 (1) (349 SE2d 230) (1986). The credibility of Register’s testimony that her in-court identification was independent of the showups was a question for the trial court. See State v. Smith, 134 Ga. App. 602, supra. Given Register’s conflicting testimony regarding her opportunity to view appellee during the robbery and her admitted nervousness at that time, as well as her uncertainty regarding an identification after viewing the initial photographic array, we cannot say the trial court erred by refusing to allow her in-court identification on the basis that it was dependent upon the impermissibly suggestive out-of-court procedure, and thus unreliable. Id.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       The length of time between the crime and the confrontation was neither unusually short nor unusually long, and does not appear to militate either for or against the likelihood of misidentification.


text:
    A92A1868.
    BATTLES v. THE STATE.
    (422 SE2d 672)
   McMurray, Presiding Judge.

Defendant Battles appeals his conviction of the offenses of kidnapping, rape, aggravated assault, and robbery. The sole enumeration of error challenges the sufficiency of the evidence to authorize the conviction of defendant. Held:

The evidence viewed in the light most favorable to upholding the verdict shows that the victim was at home alone talking on the telephone when defendant rode a bicycle into her driveway, went to the door, and knocked on it. The victim asked her friend on the telephone to hold for a moment while she answered the door. The defendant asked to use the victim’s telephone. The victim agreed and ended her telephone conversation after arranging that the friend would call her back after a short period of time. The defendant then used the telephone to make a brief call. Afterward, defendant asked for a light for his cigarette and for a glass of water. As the victim was drawing a glass of water, the defendant came up behind the victim, put a hand around her waist and then down her thigh. When the victim told defendant to stop, he told her, “Let’s not make this a murder.” In spite of the victim’s protests, the defendant then got the victim by the head pushing her and forced her to guide him to a bedroom. In the bedroom, defendant was disrobing the victim when the telephone rang. The victim convinced the defendant that she should answer the call since it was probably her friend calling back who would be alarmed if she did not answer. The victim saw a “flash of silver” and the defendant had something up against her throat. A knife, a part of an old set of silverware normally kept in the victim’s kitchen was found in the bedroom after the incident. The defendant instructed the victim to tell her friend that she was going to the store. However, during the telephone conversation the victim was able to alert her friend that there was a problem and that she needed assistance. After the telephone call, defendant forced the victim to perform oral sex on him. Defendant then inquired about keys to the vehicles in the driveway, pushed the victim into the living room where he obtained possession of the keys to a car, and discussed the two leaving the house. Thereafter, the defendant forced the victim back to the bedroom, completed disrobing the victim, and had sexual intercourse with the victim. The defendant then began to mention the two leaving the house again. When the victim refused to go with him there was a discussion of tying the victim up and a search for something appropriate to accomplish this. During this interval, defendant forced the victim to take off a gold bracelet she was wearing and give it to him. Defendant also took some currency from the victim’s purse. While the defendant was still trying to decide where and how to tie the victim up, police arrived on the scene and defendant was apprehended. The victim testified that she did not know the defendant by name and had seen him only once before when several months previously he had come to the door attempting to solicit employment doing yard work.

As the defendant testified as to another account of the incident including that the sexual contact was consensual and the bracelet was a gift to him from the victim, the determination of credibility and resolution of conflicts in the evidence are for the jury. This Court does not reweigh the evidence but only determines its legal sufficiency. Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520). After a careful review of the entire record, we find that the evidence is sufficient to authorize any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of kidnapping, rape, aggravated assault, and robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Cooley v. State, 201 Ga. App. 171 (1) (410 SE2d 453).

Decided September 18, 1992.

James F. Council, Jr., for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A2021.
    DEAN v. THE STATE.
    (422 SE2d 569)
   McMurray, Presiding Judge.

Defendant Dean was charged by indictment with the offense of possession of cocaine with intent to distribute, a violation of the Georgia Controlled Substances Act. The jury returned a verdict of guilty of simple possession of cocaine and defendant was sentenced to serve 25 years in the state penal system. Held:

The jury began their deliberations shortly after 2:35 p.m. At approximately 4:25 p.m. the trial court summoned the jury and the following colloquy ensued: “The Court: Who’s the foreman or the forewoman of the jury? A Juror: I am, your honor. The Court: Mr. Foreman, the Court would like to make an inquiry of you and the jury. I do not wish you to tell me exactly how you stand but just the division, do you stand eleven to one or ten to twelve — I mean, six? The Juror: It’s ten to two, your honor. The Court: six to six — beg your pardon? The Juror: It’s ten to two. The Court: Well, I just wanted to see what your division was. I don’t know whether you would prefer to stay tonight or recess and come back tomorrow? The Juror: I think the consensus of the jury is to attempt to reach a verdict this evening. The Court: Well, we can’t stay much longer. I don’t mind staying after 5:00 o’clock but I hate to keep the staff. Some of the staff has babysitters who have to leave at a certain time and so forth. So we can give you until 5:00 o’clock. The Juror: Okay. I think we understand the time frame, your honor, and we will do our best to reach a verdict. The Court: Just retire to the jury room, if you will, and continue your deliberations. The Juror: Thank you.”

In his sole enumeration of error, defendant contends that this exchange amounted to coercing the jury to reach a verdict by creating the impression in the trial court’s instructions to the jury that the jury was required to reach a verdict by a time certain. Pretermitting any questions as to whether the issue presented on appeal was preserved for appellate consideration by proper objection at trial, we reject the defendant’s suggestion that any statement by the trial court during this colloquy amounted to a coercive instruction which could have caused a juror to abandon an honest conviction for reasons other than those based upon the trial or arguments of other jurors. Compare McMillan v. State, 253 Ga. 520, 522 (4), 523 (322 SE2d 278). There was no expression of personal opinion as to what had or had not been proven in the case sub judice. Nor was the jury urged to reach a speedy verdict in the case sub judice. See Moore v. State, 222 Ga. 748, 753 (5) (152 SE2d 570). The jurors could not have reasonably failed to recognize that the trial court had offered them the option of recessing and reconvening the following day if they did not complete their deliberations by the end of the normal business day. See also Richardson v. State, 177 Ga. App. 48, 50 (3) (338 SE2d 506) and (the two judge case of) Watson v. State, 178 Ga. App. 778, 782 (7) (344 SE2d 667). Compare Sanders v. State, 162 Ga. App. 175, 177 (290 SE2d 516).

Decided September 18, 1992.

Michael B. Lyndall, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1019.
    JACKSON v. THE STATE.
    (422 SE2d 673)
   Sognier, Chief Judge.

Lynn Derek Jackson, Jr. was convicted of possession of cocaine with intent to distribute and sentenced to life in prison. He appeals.

1. In two enumerations of error appellant contends the State, in proffering evidence of a prior similar transaction, failed to comply with the requirements of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). Specifically, appellant maintains the State failed to establish either before the court during the pretrial hearing or before the jury during trial the purpose for which the evidence was offered. Since appellant raised no objection below on that ground, under the decision of this court in Hunter v. State, 202 Ga. App. 195, 196-198 (3) (413 SE2d 526) (1991), appellant is deemed to have waived these arguments and we are precluded from considering these enumerations on appeal. The only objection appellant interposed at trial was that the proffered evidence was unduly prejudicial, which cannot be construed to encompass the issues presented on appeal. “If the argument that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that Stephens and Williams might warrant a reversal of appellant’s conviction. In the absence of such an objection, however, any discussion of Stephens and Williams in the instant case is inappropriate.” Hunter, supra at 198 (3).

2. Appellant also contends that under Gilstrap v. State, 261 Ga. 798, 799 (2) (410 SE2d 423) (1991), the trial court abused its discretion by allowing the State to present evidence of the prior similar transaction before presenting its case in chief. Again, however, appellant did not raise this objection at trial. We conclude that the same rationale advanced in Hunter, supra at 196-198 (3), applies here, especially given that the Supreme Court noted in Gilstrap that objection was made at trial, and accordingly we must hold that this objection has been waived.

3. Appellant enumerates as error the trial court’s instruction to the jury on the essential element of intent. Although he neither objected to this charge nor reserved objections at trial, appellant urges us to review this instruction pursuant to OCGA § 5-5-24 (c) on the ground that it was substantially erroneous and harmful as a matter of law. “ ‘To constitute harmful error within the meaning of (OCGA § 5-5-24 (c)), an erroneous charge . . . must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.’ [Cit.]” Greenhill v. State, 199 Ga. App. 218, 222 (404 SE2d 577) (1991). Upon review of the transcript, we agree with appellant that the challenged instruction falls within this standard. Phelps v. State, 192 Ga. App. 193, 195 (384 SE2d 260) (1989) (substantial errors in charge on essential elements “are usually harmful as a matter of law so as to invoke OCGA § 5-5-24 (c)”).

In the jury instruction at issue, the trial court stated that “there is no requirement under the law that the State either allege or prove that the defendant had an intent to distribute cocaine.” This statement of the law was incorrect, for the State must prove the essential element of specific intent to distribute in order to establish a charge of possession of a controlled substance with intent to distribute. Talley v. State, 200 Ga. App. 442, 446 (408 SE2d 463) (1991). Although the court did give the jury a general instruction as to how criminal intent may be shown, we find the charge as a whole did not clearly remove the confusion created by the challenged charge so as to indicate to the jury that the State was required to prove the essential element of intent, and accordingly the court’s failure to instruct correctly on this essential element was reversible error. See Phelps, supra.

Decided September 21, 1992.

Toni M. Rodgers, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.

Moreover, we do not agree with the State that the court’s instruction was a mere verbal inaccuracy, resulting from a palpable slip of the tongue, that clearly could not have misled or confused the jury, see Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981), but instead find it was a clear misstatement of the applicable law, especially given that in the preceding sentence the court instructed that “[i]t is unlawful for any person to possess, have under their control, distribute or possess with intent to distribute cocaine.” Taken together, these two sentences authorized the jury to conclude that they could convict appellant without finding that the State had proved all the essential elements of the charged crime beyond a reasonable doubt. See Wilson v. State, 215 Ga. 672, 675 (3) (113 SE2d 95) (1960); compare Gober, supra at 655-656 (3).

“Therefore, we conclude that without a proper instruction on the [requirement that the State prove specific intent to distribute], the charge was substantially in error, was harmful as a matter of law, and that appellant was deprived of his right to a fair trial. [Cit.] Accordingly, we are required by OCGA § 5-5-24 (c) to consider the error, [cits.], and we must reverse and order a new trial.” Phelps, supra at 196 (1). Accord Ancrum v. State, 197 Ga. App. 819, 822 (2) (399 SE2d 574) (1990) (failure to give jury the proper guidelines for determining guilt or innocence is reversible error).

4. With regard to appellant’s contention that the trial court erroneously precluded him from impeaching a State’s witness with proof of a prior contradictory statement, we hold the court correctly excluded this testimony because appellant failed to lay the proper foundation with the witness he sought to impeach. Sell v. State, 156 Ga. App. 333, 335 (4) (274 SE2d 723) (1980) (must establish with witness to be impeached the time, place, person, circumstances, and substance of prior statement).

5. We need not address appellant’s remaining enumerations of error because they either were not properly preserved by objection below or are unlikely to occur upon retrial.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0788.
    SOUTHERN CONCRETE CONSTRUCTION COMPANY, INC. v. HALL et al.
    (422 SE2d 663)
   Sognier, Chief Judge.

Southern Concrete Construction Company, Inc. brought suit against the general contractor to whom Southern Concrete supplied materials and against Robert and Rheda Hall, the owners of the improved property, to recover damages against the general contractor and to enforce its materialman’s lien against the Halls’ property pursuant to OCGA § 44-14-361.1 (a) (4). After granting summary judgment in favor of Southern Concrete against the general contractor (a ruling not challenged in this appeal), the trial court granted the Halls’ motion to dismiss and cancelled Southern Concrete’s materialman’s lien on the basis that the lien had been dissolved pursuant to OCGA § 44-14-361.2. Southern Concrete appeals.

OCGA § 44-14-361.2 (a) provides in pertinent part that the materialman’s lien shall be dissolved if the owners show that they “have obtained the sworn written statement of the contractor ... at whose instance the labor, services, or materials were furnished . . . that the agreed price or reasonable value of the labor, services, or materials have been paid or waived,” id. at (2) (A), when, inter alia, no valid preliminary notice or claim of lien was of record at the time the sworn written statement was obtained at final disbursement of the contract price by the owners to the contractor. Id. at (2) (B) (iii). The evidence is uncontroverted that appellant supplied materials for the construction of a batting cage on appellees’ property. Upon receiving final disbursement from appellees of the contract price for the improvement, but prior to appellant filing its lien, the general contractor handwrote and signed the following on the original proposal sheet: “This contract is now complete & paid in full by check #7110 dated 4/6/89. It is herewith certified that there are no outstanding bills or l[ie]ns against this job.”

The trial court dismissed appellant’s claim against appellees’ property on the basis that the language in the statement executed by the general contractor for appellees was in substantial compliance with the provisions of OCGA § 44-14-361.2. See Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889) (1985). While we agree with the trial court that our lien laws and procedures, being in derogation of the common law, must be construed against creditors such as appellant and in favor of debtors such as appellees, id., we cannot ignore the plain and unambiguous requirement set forth in OCGA § 44-14-361.2 (a) (2) (A) that the general contractor’s language constitutes a “sworn written statement.” (Emphasis supplied.) This language has consistently been interpreted to require an affidavit in opinions construing both the current statute and the predecessor statutes to OCGA § 44-14-361.2, which required the owner to produce only “the sworn statement of the contractor.” Former OCGA § 44-14-361 (b), amended by Ga. L. 1983, p. 1450, § 1. Under OCGA § 44-14-361.2, see Balest v. Simmons, 201 Ga. App. 605, 607 (1) (a) (411 SE2d 576) (1991) (“[w]e conclude the proper construction of paragraph (2) of OCGA § 44-14-361.2 (a) is that a contractor’s affidavit will dissolve a lien”); Star Mfg. v. Edenfield, 191 Ga. App. 665, 666-667 (2) (382 SE2d 706) (1989) (affidavit, dated and sworn to on date of receipt of final payment, held sufficient to dissolve lien); Walk Softly, Inc. v. Hyzer, 188 Ga. App. 230 (372 SE2d 500) (1988) (notarized affidavit regular on its face fulfills statutory requirement if owner unaware of irregularities in affidavit’s execution, overruling Chambers Lumber Co. v. Hagan, 118 Ga. App. 392 (163 SE2d 847) (1968)). Under former OCGA § 44-14-361 (b) (Ga. Code Ann. § 67-2001 (2)), see Mass Bonding Co. v. Realty Trust Co., 142 Ga. 499, 503-504 (2) (83 SE 210) (1914) (predecessor statute contemplated “[o]nly one affidavit by a contractor,” id. at 503 (2)); Gignilliat v. West Lumber Co., 80 Ga. App. 652, 654 (56 SE2d 841) (1949) (under predecessor statute, “when the owner produces the affidavit of the contractor in compliance with such statute . . . the materialman’s claim against the owner by command of the statute cannot be perfected into a lien upon the property of the owner”). See also Carl E. Jones Dev. v. Wilson, 149 Ga. App. 679, 681 (1) (255 SE2d 135) (1979) (contractor who executes an affidavit containing the statutory sworn statement is subject to prosecution for the crime of false swearing under OCGA § 16-10-71 (Code Ann. § 26-2402)).

We do not agree with appellees that Fitts v. Addis, 83 Ga. App. 696 (64 SE2d 466) (1951) supports a contrary result. In that case we agreed with the trial court that the predecessor statute to OCGA § 44-14-361.2 did not apply because under the facts adduced, the alleged independent contractor was actually only a servant of the owner of the improved property. In paraphrasing the language of the statute, this court referred to the required sworn statement as “a certificate.” Id. at 698. Given that Fitts expressly describes the statement proffered into evidence by the owner from the alleged contractor as an “affidavit,” id. at 696, we find nothing in Fitts to support appellees’ claim that an unsworn statement designated as “certified” meets the requirements of OCGA § 44-14-361.2 (a) (2) (A).

Therefore, because the general contractor’s written statement in the case sub judice was not sworn, it failed to meet the requirements of OCGA § 44-14-361.2 and thus was not sufficient to dissolve appellant’s lien. Accordingly, the trial court erred by granting appellees’ motion to dismiss and cancelling appellant’s materialman’s lien.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

Decided September 8, 1992

Reconsideration denied September 23, 1992.

C. Nathan Davis, for appellant.

Robert H. Revell, Jr., for appellees.


text:
    A92A0810.
    STOWERS v. THE STATE.
    (422 SE2d 870)
   Sognier, Chief Judge.

Ronrico Stowers was convicted of armed robbery. He appeals from the denial of his motion for new trial.

1. Appellant contends in two enumerations that the evidence was insufficient to support the verdict because the State failed to prove that any property was taken from the victim and because his confession was not corroborated as required by OCGA § 24-3-53. At trial, Earline Steadman, the 81-year-old victim, testified that on the morning of June 27, 1991, two men came to her back door, asked her a question, and then forced themselves into her house. She described the perpetrators as black males wearing black clothing and stated that one was taller and older than the other. Steadman testified that the taller man hit and choked her and attempted to smother her with an afghan. Having faded in and out of consciousness, she was unsure what else the men did while they were in her house, but she did ultimately hear the door slam shut. She reached for a telephone to call for help but discovered the phone cords had been severed. Steadman testified she struggled to a neighbor’s house and the neighbor called an ambulance. Steadman was taken to the hospital where she received treatment for a lacerated arm and shoulder and bruises on her face, and where surgery was performed to repair a deep stab wound in her shoulder. She testified further that after she returned home from the hospital, she realized that two watches she had kept in plain view in her house were missing.

Hart County Sheriff Kenneth Vaughn, who investigated the incident, testified that Steadman’s mattress had been pulled from the bed and that the contents of her purse had been emptied onto the floor (although no money was removed from her purse). Appellant and another man were arrested later that day. They were indicted jointly several weeks later but tried separately. Vaughn testified that appellant was 16 years old and his co-defendant, who was taller than appellant, was in his mid-twenties.

After his arrest, appellant gave police a statement in which he recounted that he and “David” approached Steadman about doing yardwork for her, and that David “charged” into the house and told appellant to follow. Appellant stated that David kicked and hit Steadman, stomped on her stomach, and told appellant to hand him an afghan, which he used to choke Steadman. Appellant stated that he and David then ran out of the house. He also said that both he and David were dressed in black clothing. Appellant did not testify at trial.

Although the evidence of a taking was circumstantial, we hold it was sufficient to authorize the conviction. The actions of appellant and his co-defendant in attacking Steadman and ransacking her house manifest the requisite criminal intent to commit armed robbery, OCGA § 16-8-41 (a), and the concurrent disappearance of the watches, which Steadman indicated the perpetrators readily could have seen, provides sufficient circumstantial evidence either that the property was taken by appellant and his co-defendant or that appellant was guilty under OCGA § 16-2-20 as a party to the crime committed by his co-defendant. Contrary to appellant’s contention, we do not find this case to be analogous to Woodall v. State, 235 Ga. 525 (221 SE2d 794) (1975). While in Woodall, as in the instant case, the evidence that the missing property was stolen by the appellant was circumstantial, in Woodall money was taken from the open cash register of a service station that was left unattended, whereas here there is no evidence that Steadman’s residence (which, of course, was not open to the public) was left unattended and accessible to passersby.

.Nor do we agree with appellant’s argument concerning corroboration of his statement. Since in his statement he did not admit every essential element of the charged offense, the statement constituted an admission, not a confession, Norrell v. State, 116 Ga. App. 479, 486-487 (2) (157 SE2d 784) (1967), and no corroboration was required. See Sheffield v. State, 188 Ga. 1, 11 (9) (2 SE2d 657) (1939). Moreover, Steadman’s testimony did corroborate the essential details of appellant’s admission. Consequently, we find the evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize the trier of fact to find appellant guilty beyond a reasonable doubt of the charged crime. See Austin v. State, 199 Ga. App. 539-540, 541 (6) (405 SE2d 499) (1991).

2. Appellant also maintains his statement was inadmissible under OCGA § 24-3-50 because it was not made voluntarily. Sheriff’s Investigator Jeffrey Morris testified that he, a GBI agent, and Police Chief Reno questioned appellant in the presence of his mother, that appellant’s mother encouraged him to tell the truth, and that Morris echoed that encouragement, telling appellant that “it would go easier on him to cooperate and tell the truth.” Morris denied having promised appellant lenient treatment or any other benefit.

As the State notes, appellant waived his right to object on appeal to the admission of his statement by failing to register any objection to its admissibility during trial. Thompson v. State, 258 Ga. 816, 817 (2) (375 SE2d 219) (1989). Nonetheless, we find Morris’s comment did not render appellant’s statement inadmissible because he only urged appellant to tell the truth and did not promise a lighter sentence or any other benefit. See Caffo v. State, 247 Ga. 751, 756-757 (279 SE2d 678) (1981); Tyler v. State, 247 Ga. 119, 122 (274 SE2d 549) (1981); compare Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980) (defendant was told a confession “would probably help him in court”). “Moreover, the court conducted a JacksonDenno hearing, which produced evidence which . . . authorized the finding that, considering the nine factors enumerated in Marshall v. State, 248 Ga. 227 (3) (282 SE2d 301) (1981), the statements were made knowingly, intelligently, and voluntarily.” Thompson, supra.

Decided September 8, 1992

Reconsideration denied September 23, 1992

Michelle C. Feinberg, Lavender & Lavender, Robert W. Lavender, for appellant.

Lindsay A. Tise, Jr., District Attorney, for appellee.

Judgment affirmed,

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0814.
    CONTAINER CORPORATION OF AMERICA et al. v. GRAY.
    (422 SE2d 561)
   Sognier, Chief Judge.

Donald Gray, a sawmill equipment operator at Container Corporation of America, was injured on October 31, 1989 during the course of his employment when he slipped while descending a piece of machinery and fell on his back. Testing in late January 1990 revealed a possible herniated disc at the L4-L5 level of Gray’s spine, and surgery was performed after a myelogram, conducted on February 20, 1990 by Dr. H. A. Griffin, yielded results consistent with the earlier testing. Dr. Griffin, in his report regarding the myelogram test results, noted there was no evidence of any damage to Gray’s spine at the L5-S1 level. However, when Gray continued to experience back pain, a test performed in November 1990 while Gray was under the care of Dr. Wade Renn revealed that Gray also had a protruding disc at the L5-Sl level. Gray’s claim for workers’ compensation coverage of the surgery Dr. Renn recommended to address the protruding disc at the L5-S1 level was controverted by Container Corporation on the basis that the problem was'not caused by Gray’s work-related injury. The administrative law judge found in favor of Container Corporation, and the State Board of Workers’ Compensation, after de novo review of all the evidence, made the ALJ’s award its own. On appeal, the Superior Court of Clinch County remanded the case to the Board based upon its determinations that the Board had failed to consider evidence before it and had relied on evidence not in the record. We granted Container Corporation’s application for discretionary appeal.

We reverse. The findings of fact of the ALJ which the Board adopted consisted primarily of the ALJ’s finding that there was “no connection between [appellee’s] spinal problem at the L5-S1 level and [his] injury at work on October 31, 1989.” In making this finding, the ALJ expressly stated that the record before him consisted solely of evidence presented by appellants because of appellee’s failure to respond to an order entered earlier by the ALJ. Regardless whether the ALJ was correct in stating that appellee’s evidence was not properly before him, the record clearly establishes that appellee’s evidence was in the record when the Board considered his appeal. The Board, in its order, expressly stated it considered “all evidence” before making the ALJ’s award its own. Thus, we cannot agree with the superior court that the ALJ’s failure to consider appellee’s evidence can be attributed to the Board when the evidence was in the record at the time the Board considered all of the evidence. Compare American Mut. &c. Ins. Co. v. Williams, 133 Ga. App. 257 (211 SE2d 193) (1974) (remand to Board affirmed where, despite Board’s statement it considered “ ‘the entire evidence,’ ” record unclear whether additional evidence was before Board at time of its ruling). “There is no basis for concluding as did the superior court that, as a matter of law, the board failed to fulfill its duty and considered only some of the evidence in its decision-making process. [Cit.]” Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829, 830 (2) (a) (357 SE2d 271) (1987). Rather, we must conclude that the Board, after de novo consideration of the evidence introduced by both appellee and appellants, concluded that the ALJ’s award was correct because it found there was no causal connection between appellee’s work-related injury and his current spinal problem.

“The findings and conclusions of the full board supersede those of the administrative law judge, and we are required under the ‘any evidence’ rule to uphold those findings and conclusions.” (Citations and punctuation omitted.) Henderson, supra. Dr. Griffin’s report of the test results in February 1990 indicating that appellee’s L5-S1 level was normal at that time constituted some evidence to support the Board’s award. We note that appellee’s evidence before the Board on the issue of the causal connection could not be considered overwhelming, inasmuch as it consisted of Dr. Renn’s statement that it “is always possible” the test conducted by Dr. Griffin would not have shown the L5-S1 disc injury; appellee’s statement in his affidavit that it was his “belief” he had injured both discs in the October 1989 fall and work-related injury; and Social Security Administration evaluations from May 1990 indicating the L4-L5 and L5-S1 levels as the spinal area appellee identified as the source of his back pain.

Decided September 8, 1992

Reconsideration denied September 23, 1992

Saveli & Williams, Task J. Van Dora, Grant G. Morain, for appellants.

The superior court also found remand was necessary because the Board considered evidence not in the record. The record shows that the ALJ’s order incorrectly reflects “1991” rather than 1990 as the year of Dr. Griffin’s report. In adopting the ALJ’s award, the Board failed to acknowledge that misstatement, although the record reveals that appellee, in his appeal to the Board, specifically directed the Board’s attention to the incorrect date and argued in his brief that the mistake in dates could have led the ALJ to the conclusion that Dr. Griffin’s report that the L5-S1 level area was normal postdated Dr. Renn’s determination that appellee had a protruding disc at that area of his spine. The superior court remanded the case based on its conclusion that there was no “1991” report in the record to support the award of the ALJ or the Board.

It is obvious from a review of the ALJ’s findings of fact, in which he discusses Dr. Griffin’s report, the test results reported therein, and cites the correct month and day of the report, that the ALJ was referring to an extant document in the record, i.e., Dr. Griffin’s report of February 20, 1990, and we reverse the superior court’s ruling that remand was necessary because that report was not in the record. We do not agree with appellee that the superior court’s ruling was right for the reason that the incorrect year was more than a typographical error but instead constituted a misstatement of significant testimony which might have erroneously influenced the award. See Fidelity & Cas. Ins. Co. v. CIGNA/Pacific &c. Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702) (1986). The misstatement as to the time the test results showed normal discs at the L5-S1 level was clearly insignificant considering the additional evidence adduced by appellee showing that Dr. Renn’s own review of appellee’s earlier test results (undertaken before the November 1990 testing that revealed the protruding disc at the L5-S1 level) failed to reveal any new basis for appellee’s back pain. See Chevrolet-Pontiac-Canada &c. Corp. v. Millar, 182 Ga. App. 889-890 (1) (357 SE2d 598) (1987).

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

Hackel & Hackel, Thomas M. Hackel, for appellee.


text:
    A92A0880.
    MINER v. HARRISON.
    (422 SE2d 899)
   Sognier, Chief Judge.

Mark Harrison brought suit against David A. Miner III, his uncle, alleging claims for breach of contract and fraud and seeking recovery of attorney fees. A Bryan County jury rendered a verdict for Harrison on both causes of action plus attorney fees, and he elected to have judgment entered on the fraud count. Miner appeals from the denial of his motions for new trial and judgment n.o.v.

In May 1983, appellant, as lessor, and appellee, as lessee, executed a lease for certain property and improvements on which appellee’s father had been operating a service station and convenience store and a liquor store. Appellee acquired his father’s inventory and equipment and continued the operations of the two businesses, Harrison’s Corner and Roland’s Package Shop, having procured the requisite business licenses for each one. Two months before the scheduled May 1, 1989 expiration date of the lease, appellant approached appellee about entering into a new lease. Under appellant’s proposed terms, the monthly rent would have risen from $900 to $3,500 and the lease would have carried no definite term, instead ending whenever the state Department of Transportation proceeded with its plans to condemn the subject property. Appellee refused to agree to these terms and began arranging to move the liquor store operations to another site and to sell the convenience store inventory at auction. When appellant then expressed interest in purchasing appellee’s inventory, the parties engaged counsel to negotiate a sale.

The evidence adduced at trial concerning these negotiations, the scope and effect of agreements reached, and the reason for appellant’s failure to complete the sale was extensive and sharply contested. The dispute turned primarily on the question whether the parties had entered into a binding contract for the sale of appellee’s business inventory, and if so, whether the beer, wine, and liquor on the premises (the “liquor inventory”) were included in the sale. The parties did agree that they initially reached an agreement memorialized in an April 20 letter from Brice Ladson, appellee’s counsel, to George Waters, appellant’s attorney. The letter, which referenced the “Harrison’s Service Center Lease,” provided that “[t]he terms of the agreement between the parties are as follows: (1) [Appellant] will purchase all of [appellee’s] inventory at his cost at a price to be determined by an independent third party, acceptable to [appellant and appellee]. ... (2) [Appellant] will purchase [specified] equipment from [appellee] at a price of $10,000.00 .... (4) The inventory and closing of the above sale will take place at [the business premises] on Sunday, April 30, 1989.” The letter also provided that Waters would prepare closing documents and forward them to Ladson by April 26. Appellant signed this letter to indicate that he had “read and approved the terms and agreement” stated therein.

The documents subsequently prepared by Waters, which Ladson received on the afternoon of Friday, April 28, defined the inventory to be sold as “all inventory situated on the premises known locally as Harrison’s Corner” and provided that closing would occur within three business days of the completion of the inventory. Ladson revised this provision to describe the subject inventory as that of “[appellee’s] Convenience Store/Gas Station/Repair Shop business, known locally as Harrison’s Corner, . . . consisting of tires, fishing tackle and equipment, supplies, stock, and other merchandise (excluding the merchandise involved in [appellee’s] liquor business).” Although Waters learned of this change late that afternoon, the inventory proceeded as planned on Sunday, April 30. Prior to that date, appellee removed the liquor inventory to a newly leased store. The expert selected by the parties valued the convenience store inventory at $22,798. However, the next day appellant announced he did not intend to complete the sale. He first gave as his reason the fact that certain items on the premises were either missing or damaged, but when appellee resolved those issues, appellant then stated that his understanding of the parties’ agreement was that the liquor inventory was to be included in the sale. The parties and their counsel met on Thursday, May 4, and appellee offered to return the liquor inventory to the premises and include it in the sale. Appellant rejected this proposal and offered to buy the convenience store inventory for $12,000 instead of the appraised value, but appellee declined, opting to remove the inventory from the premises and sell it at auction. One week later, appellant did purchase the equipment for the agreed price, appellee then surrendered possession of the leased premises, and appellant began operating the two businesses.

1. Seven of appellant’s 18 enumerations concern alleged errors in connection with appellee’s breach of contract claim and the court’s charge thereon. However, the jury’s verdict on that claim was never reduced to judgment because appellee elected to have judgment entered on his alternative theory of fraud. See Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 321-322 (291 SE2d 238) (1982) (before judgment, plaintiff must elect between affirming the contract and recovering damages for its breach or rescinding the contract and obtaining damages for fraudulent inducement). Since only an entered judgment is appealable, Sharp v. State, 183 Ga. App. 641, 642 (360 SE2d 50) (1987); see OCGA §§ 5-6-31, 5-6-38 (a), this court does not have jurisdiction to consider the enumerations arising from the breach of contract claim. See Boynton v. Reeves, 226 Ga. 202 (173 SE2d 702) (1970).

2. We next address appellant’s contentions that the trial court erred by denying his motions for directed verdict and judgment n.o.v. on the fraud claim. Although, as appellant maintains, a claim for fraud “ ‘cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, (the promisor) knows that the future event will not take place.’ [Cit.] ‘A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud.’ [Cit.]” Rogers v. deMonteguin, 193 Ga. App. 480, 481.-482 (1) (388 SE2d 10) (1989). Thus, the jury’s verdict must be affirmed if there is any evidence to support a finding that at the time appellant agreed to buy appellee’s inventory, he did not intend to perform. See id. at 482.

Several witnesses testified appellant had been angry with appellee because of his belief that appellee had taken advantage of him during the lease term, and during cross-examination appellant acknowledged harboring hostility toward appellee during the time he proposed new lease terms and before the inventory sale was negotiated. Evidence also was adduced that appellant knew appellee was arranging to move his liquor business to another location before appellant signed the April 20 letter. Given that the April 20 letter referred only to “Harrison’s Service Center” and the closing document drafted by appellant’s counsel called only for sale of the inventory of “Harrison’s Corner”; that appellant did not raise the issue of exclusion of the liquor inventory until after he knew appellee had removed it from the leased premises and the inventory of the remaining items had been completed; that appellant initially gave a different reason for his refusal to perform the contract; that appellant then refused to complete the sale even after appellee offered to include the liquor inventory; and that appellant ultimately proposed to consummate the inventory sale by paying half the price set by the terms of the April 20 letter, the jury was authorized to infer that appellant entered into the April 20 agreement without a present intent to perform. See generally OCGA § 23-2-57 (fraud may be proved by slight circumstantial evidence); Hayes v. Hallmark Apts., 232 Ga. 307, 309 (1) (207 SE2d 197) (1974) (fraud may be established by inference from facts in evidence). Accordingly, the trial court did not err by denying appellant’s motions. See Rogers, supra; see also Price v. Mitchell, 154 Ga. App. 523-524 (1) (268 SE2d 743) (1980).

3. Appellant also contends in three enumerations of error that he was entitled to a directed verdict or judgment n.o.v. or a new trial as to the award of $50,000 in actual damages on the fraud claim because the award bore no relation to appellee’s actual loss and thus was not supported by the evidence. “The measure of damages in an action for fraud and deceit is the actual loss sustained, and if the contract is one of purchase and sale the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if the representations made had been true. [Cit.] . . . This difference in value may be shown by evidence of the reasonable cost of correcting the defect. [Cits.]” Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317, 322 (2) (154 SE2d 627) (1967). Although couched in language applicable when the plaintiff was the buyer, this measure of damages also has been applied when the plaintiff was the seller. See Citizens Bank &c. v. Johnson, 191 Ga. App. 155, 158 (2) (381 SE2d 121) (1989).

At trial, appellee adduced evidence to show that pursuant to the procedure set forth in the April 20 letter for calculation of the value of the inventory, a value of $22,798 was established; that once appellant refused to purchase the inventory at that price appellee moved the inventory to another location, incurring expenses of $3,261 in connection with the move; and that appellee then sold a portion of the inventory for $8,493. We disagree with appellant’s contention that no evidence of the actual loss was established, compare Citizens Bank, supra, as this evidence would have authorized a finding of an actual loss of $17,566 (the amount appellee would have received for the inventory under the contract less the amount actually received plus the amount expended to complete the alternative sale). See Windsor Forest, supra; see also Barnette v. Peace, 196 Ga. App. 440, 441 (395 SE2d 916) (1990) (fraud damages may include expenses incurred as a result of the fraud). However, we do agree with appellant that the amount awarded by the jury far exceeded the actual loss proved at trial and thus bore no rational relationship to the injury. See Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 657 (3) (402 SE2d 753) (1991); Simmons v. Weber, 197 Ga. App. 457, 458 (2) (398 SE2d 795) (1990). Since the evidence did authorize an award for appellee in some amount, the proper remedy would have been to deny appellant’s motion for judgment n.o.v. but grant his motion for new trial on the issue of damages. Simmons, supra. Accordingly, the judgment of $50,000 in “actual damages” is vacated and this action is remanded for a new trial limited to the issue of damages due appellee on his fraud claim.

4. Appellant’s contention that the trial court’s charge on fraud was incomplete is without merit. Considered as a whole, Chesser v. Wallace, 200 Ga. App. 567, 568 (2) (408 SE2d 814) (1991), the charge did state the essential elements of an action for fraud as set forth in the case appellant cites, C. P. D. Chem. Co. v. Nat. Car Rental, 148 Ga. App. 756, 758-759 (2) (252 SE2d 665) (1979). Further, since we held in Division 2 that the evidence was sufficient to sustain a jury verdict for appellee on his fraud claim, the evidence likewise was sufficient to authorize a jury charge on fraud.

Decided September 9, 1992

Reconsideration denied September 23, 1992

Richard Phillips, for appellant.

Howard & Racz, Wayne S. Racz, for appellee.

5. In three enumerations of error appellant challenges the entry of judgment against him for $13,500 in attorney fees, contending appellee failed to establish by competent evidence the value of his counsel’s services. At trial, Ladson, who represented appellee during the contract negotiations and the early stages of the litigation, testified that he had reviewed trial counsel’s file and statement for work rendered and opined that the work performed was reasonable and necessary for the case and that trial counsel’s bill of $26,972 constituted a reasonable charge for those services. Trial counsel stated in his place, without objection from appellant, that the statement Ladson reviewed in his testimony was trial counsel’s bill for services rendered to appellee.

This testimony was sufficient to establish the actual costs of appellee’s trial counsel and the reasonableness of those costs. See Georgia Bldg. Svcs. v. Perry, 193 Ga. App. 288, 299-300 (387 SE2d 898) (1989) (statements of counsel in their place, if not objected to, constitute evidence); Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 484 (2) (361 SE2d 865) (1987) (reasonableness of fees may be shown through testimony of another attorney who examined file). To the extent that Brunswick Floors v. Shuman, 185 Ga. App. 362, 363 (1) (364 SE2d 96) (1987), cited by appellant, suggests a contrary result, that case constitutes physical precedent rather than binding precedent, only four of the nine judges of this court having concurred fully in the majority opinion. Court of Appeals Rule 35 (b).

Judgment affirmed in part and vacated and case remanded in part.

McMurray, P. J., and Cooper, J., concur.