text:
    A00A1366.
    GANAS v. THE STATE.
    (537 SE2d 758)
   Miller, Judge.

Angry at his girlfriend, William Ganas viciously beat, kicked, choked, and stomped on her, resulting in severe bruises and swelling on her face and back, a laceration on her nose bridge, and a broken little finger on her left hand. A jury found him guilty of aggravated battery, and his motion for new trial was denied. He appeals, enumerating the insufficiency of the evidence, errors in voir dire, errors in the charge, and error in the removal of a juror who knew the victim. We hold that the evidence sufficed to sustain the verdict, that the judge properly limited questions in voir dire, that the charge was authorized by the evidence, and that the judge was authorized to remove the juror, and thus we affirm.

1. Claiming the court erred in denying Ganas’s motion for a directed verdict, in denying his motion for new trial, in instructing the jury on aggravated battery, and in allowing the prosecution to argue aggravated battery to the jury, the first six enumerations of error all depend on whether the evidence sufficed to sustain a conviction for aggravated battery by each of the three alternative statutory methods (all of which were alleged in the same count of the indictment) by which one may commit this offense. OCGA § 16-5-24 (a) provides that one commits the offense of aggravated battery by maliciously causing any of the three following harms to a victim: (i) seriously disfiguring her body or a member thereof, (ii) rendering a member of her body useless, or (iii) depriving her of a member of her body. All three methods were alleged in the same count of the indictment and charged to the jury as a possible basis for a finding of guilt, and therefore, error exists unless evidence supported a finding on all three.

The issue here is whether the victim’s injuries demonstrated all three of these alternative methods. The standard is whether, based on the evidence presented, a rational trier of fact could have found beyond reasonable doubt that Ganas maliciously caused the three possible harms to the victim.

(a) Serious Disfigurement. Serious disfigurement under the statute refers to gravely or greatly impairing or injuring the appearance of the victim’s body or a member thereof. The disfigurement need not be permanent, but may be only temporary. For example, a temporarily broken nose may suffice as does severe bruising. Here the witnesses described the broken finger on the date of the battery as in an “unusual position,” as “bent back to where it was broken,” and as “just hanging there.” At trial some months later, the finger still tingled and was sore, although it had healed for the most part. Other evidence showed that the victim had severe, swollen bruises on her face, bruises on her back, and a laceration on her nose bridge. A jury could have found temporary serious disfigurement.

(b) Rendering Member Useless. Ganas contends that a finger is not a “member” of a body and thus, even if rendered useless, cannot serve as the basis for an aggravated battery conviction. Under the Workers’ Compensation Act a finger is considered a member of the body. Similarly, we hold that a finger is a bodily part that accordingly qualifies as a “member” under the aggravated battery statute.

The evidence authorized a jury verdict that Ganas rendered the victim’s broken finger, which was “just hanging there,” as useless for a period of time. The bodily member need not be rendered permanently useless, and even the temporary reduced use of a bodily member may be sufficient to render it useless under the aggravated battery statute.

(c) Depriving Victim of the Member. Depriving the victim of a member of her body may refer to the separation of the member from the body (as in dismemberment, amputation, or removal), or it may refer to the loss of the use of the member. Thus, we have held that memory lapses and permanent nerve damage caused by blows to the victim’s head, serious damage to a shoulder depriving the victim of its use, and loss of vision caused by injury to an eye have all constituted depriving the victim of a member of her body under the statute. Similarly, we hold that the loss of use of the finger here could constitute depriving the victim of that member.

Since the evidence supported a guilty finding under all three types of injuries specified under the statute and alleged in the indictment, the court did not err in allowing the jury to decide the matter or charging the entirety of OCGA § 16-5-24 (a). The first six enumerations are without merit.

2. The trial court refused to allow Ganas to question jurors during voir dire about their feelings on (i) the relative credibility of witnesses who are police officers, victims, or parties, (ii) the State’s burden of proof, and (iii) cases involving a man beating a woman. Ganas argues that such was an abuse of discretion under OCGA § 15-12-133.

What limits a court may place on voir dire questions lie largely within the sound discretion of the court, and we will not interfere with the exercise of that discretion unless it is manifestly abused. The court did not abuse its discretion here in disallowing questions about the credibility of witnesses based on their status as police officers or otherwise. Nor did the court abuse its discretion in precluding questions concerning the burden of proof, reasonable doubt, and the presumption of innocence, for these are technical legal questions on which the court will instruct at the end of trial. Finally, because questions should be confined to those designed to elicit possible prejudice against the accused or juror bias or interest in the outcome, the court did not manifestly abuse its discretion in disallowing the remaining disputed questions.

3. Ganas claims error in the trial court’s removing from the jury a man who knew the victim. At the end of the first witness’s testimony, a juror disclosed to the court he now remembered that he was familiar with the victim and that he had a poor opinion of her. When asked by the court whether he could nevertheless be fair and impartial, he replied, “[N]o, I don’t think so.” He replied similarly when queried again by defense counsel. When asked a third time by the judge, he began to equivocate and stated, “I think I could, you know, but I just want you to know I’ve already formed opinions about her. . . .” After yet a fourth inquiry whether he could nevertheless be fair, he finally relented and stated, “I think I can, yeah.” The judge excused him from the jury and replaced him with the alternate.

OCGA § 15-12-172 authorizes a court to replace a juror with an alternate if the juror is discharged for legal cause. Legal cause arises when the court determines, in its sound discretion, that the juror holds an opinion so fixed and definite that he or she cannot lay it aside and decide the case on the evidence presented and the court’s charge. “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Here the juror’s repeated statements that he could not fairly decide the case supported the court’s finding of bias, particularly since he began to equivocate only after continued questioning.

Ganas’s argument that the juror’s eventual conclusion of possible fairness requires reversal misapprehends the appellate process. “On appeal, the question is whether evidence supports the trial court’s determination.” The fact that the juror eventually stated that he could be impartial “does not . require the trial court to ignore the numerous times [he] affirmatively stated [he] could not decide the case impartially and does not make the trial court’s credibility decision to strike [him] error.”

Decided July 26, 2000

Reconsideration denied August 23, 2000

Michael L. Chidester, for appellant.

Kelly R. Burke, District Attorney, Katherine E. Kelley, Amy E. Lambert, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       OCGA § 16-5-24 (a). An order of nolle prosequi was entered on a second count charging Ganas with aggravated stalking.

       See Anderson v. State, 262 Ga. 26 (1), (2) (413 SE2d 732) (1992).

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

        Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980).

        In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991).

       Id.; see Baker, supra, 246 Ga. at 318 (2); Pollard v. State, 230 Ga. App. 159, 160 (1) (495 SE2d 629) (1998).

       See Penland v. State, 229 Ga. 256, 257 (1) (190 SE2d 900) (1972).

       OCGA § 34-9-263; see Sanders v. Ga.-Pacific Corp., 181 Ga. App. 757, 758-759 (1) (353 SE2d 849) (1987); Holcombe v. Fireman’s Fund Ins. Co., 102 Ga. App. 587 (116 SE2d 891) (1960).

       See Mitchell v. State, 238 Ga. 167, 168 (231 SE2d 773) (1977); cf. Benham v. State, 1 Iowa 542 (1855) (disfigured finger is considered a “member” under the Iowa aggravated assault and battery statute).

        Webb v. State, 228 Ga. App. 624, 625 (2) (492 SE2d 312) (1997).

       Id. at 625-626 (3); accord Taylor v. State, 178 Ga. App. 817 (344 SE2d 748) (1986) (physical precedent only).

       See Howard v. State, 173 Ga. App. 585 (1) (327 SE2d 554) (1985) (amputation of lower leg); Drayton v. State, 167 Ga. App. 477 (1) (306 SE2d 731) (1983) (bit off ear); Jarrard v. State, 152 Ga. App. 553, 555 (7) (263 SE2d 444) (1979) (loss of spleen).

        Scott v. State, 243 Ga. App. 383, 384 (1) (b) (532 SE2d 141) (2000).

       Id.

        Terry v. State, 188 Ga. App. 748 (2) (374 SE2d 235) (1988).

        McKissic v. State, 201 Ga. App. 525, 526 (411 SE2d 516) (1991); see Blackwood v. State, 224 Ga. App. 486 (1) (480 SE2d 914) (1997).

       Cf. Wade v. State, 261 Ga. 105, 113, n. 5 (401 SE2d 701) (1991) (Benham, J., dissenting) (listing deprivation of member cases).

        White v. State, 230 Ga. 327, 337 (5) (a) (196 SE2d 849) (1973); Harper v. State, 222 Ga. App. 393-394 (474 SE2d 288) (1996).

        Cox v. State, 248 Ga. 713-714 (3) (285 SE2d 687) (1982); Harper, supra, 222 Ga. App. at 394; Smith v. State, 148 Ga. App. 1 (1) (251 SE2d 13) (1978).

        Chastain v. State, 255 Ga. 723, 724 (1) (342 SE2d 678) (1986); Harper, supra, 222 Ga. App. at 394.

       Id.

        Kirkland v. State, 271 Ga. 217, 219 (2) (518 SE2d 687) (1999).

       (Citation omitted.) Id.

        Boyle v. State, 241 Ga. App. 883, 885 (1) (528 SE2d 303) (2000).

       (Emphasis in original.) Id.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A1472.
    ROBERTSON v. THE STATE.
    (538 SE2d 755)
   Mikell, Judge.

Willie James Robertson was indicted, tried, and convicted of four counts of aggravated assault and one count of possession of a firearm by a convicted felon. The trial court sentenced Robertson to serve twenty years for Count 1, ten years each for Counts 2, 3, and 4, and five years for Count 5. Robertson appeals his conviction for Counts 2, 3, and 4, arguing that the evidence was insufficient to support his convictions, and that his trial counsel was ineffective by failing to request a jury charge on the lesser offense of reckless conduct. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence demonstrates that on March 17, 1997, an argument ensued between appellant and his wife, Rosalind Robertson. Ms. Robertson testified that as the argument escalated, appellant told her “you think I’m playing with you, you going to find yourself lying on the floor. . . . I’ll kill you.” Ms. Robertson also testified that appellant had threatened to kill her on a previous occasion and had threatened to “shoot up his mama’s house.”

During the March 17 argument, appellant’s mother, Mary Jane Harper, arrived at the Robertsons’ trailer with two children, Cories and Statrabvion Jackson, ages three and one. Ms. Robertson ran outside to Harper’s truck, told Harper that appellant had threatened to kill her, and asked for a ride to the police station. Appellant approached the truck and tried to prevent his wife from leaving by grabbing her arm. Ms. Robertson held onto the door of the truck, and appellant went back inside the trailer. Ms. Robertson told Harper that appellant had gone to get a gun. Ms. Robertson jumped onto the floorboard of the truck and asked Harper to drive away. The children were on the seat. Harper had difficulty starting the engine.

Appellant emerged from the trailer with a gun. Holding the gun, he put his hand into the truck through an open window and fired three times. The second shot struck his wife, grazing her left thigh. Despite their proximity, neither Harper nor the children were struck by the bullets, and there was no evidence of bullet holes or other damage to the truck; however, a small caliber bullet was found on the passenger side floorboard underneath Ms. Robertson. After the third shot, Harper quickly drove to the police station. An ambulance transported Ms. Robertson to the hospital for treatment.

1. In his first two enumerations of error, appellant contends that the evidence was insufficient to support his conviction of aggravated assault against his mother and the children.

Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

According to OCGA § 16-5-20 (a), a person commits simple assault when he or she either (1) attempts to commit a violent injury to the person of another or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury. A simple assault becomes aggravated when it is committed with a deadly weapon.

An aggravated assault based on OCGA § 16-5-20 (a) (1) cannot be committed by criminal negligence, because the attempted or completed injury to the victim must be the intended consequence of the defendant’s act. There was no evidence that appellant intended to injure his mother or the children when he fired the gun. Nonetheless, the evidence supported a conviction based on subsection (a) (1) under the doctrine of “transferred intent.” When a defendant intentionally shoots several times into a group of people intending to harm only one of them, a jury would be authorized to find him guilty of aggravated assault against each person in the group.

Also, the evidence is sufficient to support appellant’s conviction under OCGA § 16-5-20 (a) (2). In considering evidence of an aggravated assault under subsection (a) (2), we must look to the victim’s state of mind. Harper testified that she was not afraid that her son would harm her, and that she was nervous as a result of Ms. Robertson’s “hollering.” The state of mind of a victim may be proved by indirect or circumstantial evidence, however. Police officers described Harper as “out of breath,” “erratic,” and “very upset” upon her arrival at the police station. This testimony was sufficient for the jury to conclude that Harper had a reasonable apprehension of receiving a violent injury.

Similarly, Harper’s testimony that the children were crying when appellant fired into the truck in which they were sitting was sufficient for the jury to conclude that they, too, had a reasonable apprehension of receiving a violent injury. The jury was entitled to reject Harper’s speculation that the children were crying because of Ms. Robertson’s behavior.

An appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld.

We conclude that the evidence was sufficient for the jury to find the essential elements of the crime beyond a reasonable doubt.

2. Finally, Robertson contends that his trial counsel-was ineffective. Robertson’s trial counsel filed a notice of appeal on September 11, 1998, and the court appointed his appellate counsel on September 23, 1999, one year later. Accordingly, Robertson cannot be deemed to have waived this ground of appeal.

In order to establish ineffective assistance of counsel, Robertson must show that his trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel’s performance must be highly deferential. “Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.”

Decided August 23, 2000

Todd H. Martin, for appellant.

Robert W. Lavender, District Attorney, Leon Jourolmon, Assistant District Attorney, for áppellee.

Robertson contends that trial counsel was deficient by not requesting a jury charge on the lesser offense of reckless conduct for the aggravated assault charges involving Harper and the children. Decisions regarding requests for jury instructions fall under the rubric of trial tactics. Trial tactics, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel to have been ineffective so as to overturn a conviction. The performance of Robertson’s trial counsel was not deficient.

Judgment affirmed.

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

        Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

       OCGA § 16-5-21 (a) (2).

        Dunagan v. State, 269 Ga. 590, 591-592 (2) (502 SE2d 726) (1998). The well-reasoned dissent by Justice Carley may be the better view. See id. at 595 (Carley, J., dissenting). See generally W. LaFave & A. Scott, Substantive Criminal Law, §§ 3.7 (1), 7.4 (1986). See also Osborne v. State, 228 Ga. App. 758 (492 SE2d 732) (1997); Jordan v. State, 214 Ga. App. 598 (448 SE2d 917) (1994); Fambro v. State, 164 Ga. App. 359 (297 SE2d 111) (1982). Osborne and Jordan were expressly overruled by Dunagan.

         Happoldt v. State, 267 Ga. 126, 127 (475 SE2d 627) (1996).

        Pace v. State, 239 Ga. App. 506 (521 SE2d 444) (1999).

        Dunagan, supra at 593-594.

        Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993).

       Id.

       (Citation omitted.) Trzepacz v. State, 240 Ga. App. 410, 411 (1) (523 SE2d 599) (1999).

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

         Lee v. State, 199 Ga. App. 246, 247 (3) (404 SE2d 598) (1991).

        Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994).

       Pace, supra at 510.

        Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999).

        Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998).


author: Miller, Judge.

text:
    A00A1049.
    GRANT v. THE STATE.
    (538 SE2d 540)
   Miller, Judge.

Bruce J. Grant was tried before a jury and found guilty of aggravated assault, based on evidence that he viciously hit Michelle Grant with a baseball bat, first on the left shoulder and then on the back. The second blow caused the bat to crack. Ms. Grant sustained large bruises to her left arm, shoulder blade, and left side.

1. Grant enumerates as error the trial court’s refusal to give his written request to charge on false swearing in the language of OCGA § 24-9-85 (b). We agree with the trial court that this requested instruction was not adjusted to the evidence.

“A requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” In order for an instruction on false swearing under OCGA § 24-9-85 (b) to be authorized, “it must appear, among other things, that the witness admitted, on the trial, that [she] had wilfully and knowingly sworn falsely or that the nature and character of [her] own testimony must be such as to render the purpose to falsify manifest.”

Here, the State introduced evidence of prior difficulties, including an incident two months earlier, where Ms. Grant wanted to take her children to a cookout, but defendant ordered her to stay home. He pointed his finger at her face and then gave her an open hand slap. When Ms. Grant tried to sit down, defendant jerked her up by the arm until she stood up. Although Ms. Grant initially swore out a warrant for this attack, she ultimately decided not to prosecute.

At trial, Ms. Grant admitted that, when she declined to prosecute defendant for this slapping incident, she spoke with an investigator with the district attorney’s office and asked that the charge be dismissed because, while “it had basically happened, ... it didn’t happen in that severity, that it wouldn’t happen again, that [she] knew [defendant] was getting counseling and that it would stop and that it would get better.” Her nuance then was that defendant “just put his hand in [her] face and . . . didn’t slap [her].” On cross-examination, Ms. Grant testified that she “was told to say that to get [defendant] off so he could get out of jail.” She further confirmed that defendant “pointed at [her], touching [her] cheek,” and did not recall telling the investigator that defendant never hit her with an open hand. Indeed, she confirmed again that defendant did hit her in the face.

From this exchange, defendant contends Ms. Grant swore falsely to the magistrate that defendant slapped her. Yet whenever Ms. Grant was under oath, whether before the magistrate or at trial, she consistently testified that defendant slapped or hit her face in the prior transaction. She certainly never swore to the contrary. Her subsequent statements to the investigator, in which she minimized the severity of the incident so as to get her husband out of jail, do not establish a case of false swearing. Not only were the statements relied upon unsworn, they were in the whole generally consistent with the accusation that defendant intentionally touched her face with his finger or hand, in an insulting and provocative nature. This is sufficient to authorize an accusation for misdemeanor battery under OCGA § 16-5-23 (a) (1). While the noted inconsistencies clearly authorized a charge on impeachment, which was given, they do not constitute an admission to false swearing nor lead to the conclusion that she wilfully and knowingly lied under oath to the magistrate. Accordingly, the trial court correctly denied Grant’s request to charge on false swearing under OCGA § 24-9-85 (b).

2. The second enumeration contends the trial court erred in denying defendant permission to use a “tee-ball” bat, allegedly similar to State’s Exhibit 1, as demonstrative evidence during closing argument. Relying on Wade v. State, he argues that the trial court must allow the use of demonstrative evidence during closing argument, so long as the arguing party does not go outside the evidence and introduce matters not proven in evidence. We disagree.

The trial court has broad discretion in controlling the argument of counsel and, unless it clearly appears that the court has abused this discretion and that such abuse has resulted in harm or prejudice to the [objecting] party, this Court will not undertake to control the exercise of such discretion.

This includes the discretion to prohibit the use of exhibits during closing argument.

Here, defendant intended to use a similar bat to demonstrate “basically what the witness described.” The trial court admonished counsel not to conduct an experiment during closing argument and ultimately ruled that, unless and until the bat counsel brought with him were introduced into evidence, counsel would have to use the actual bat admitted into evidence during closing argument.

Although the Supreme Court of Georgia has approved the use of props, maps, charts, and other analogous model and illustrative material in closing argument when based on evidence admitted at trial, the similar-but-unadmitted bat in this case is not illustrative of anything in evidence except the likely condition of the admitted bat before defendant broke it over Ms. Grant’s back. We conclude the trial court did not abuse its discretion in limiting any demonstration during argument to that made with the broken bat admitted into evidence rather than defendant’s similar bat.

Decided August 24, 2000.

Anna Blitz, for appellant.

Daniel J. Porter, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       (Punctuation, footnotes and emphasis omitted.) Lane v. State, 268 Ga. 678, 680 (2) (492 SE2d 230) (1997).

        Smith v. State, 74 Ga. App. 777, 788 (2) (41 SE2d 541) (1947).

       The previous weekend, defendant had struck Ms. Grant on her leg with the bat, similarly causing a large bruise. And in a separate incident, six months before the night in question, defendant accused Ms. Grant of “messing around on him.” He dragged her, choked her, and hit her in the face and stomach, causing carpet bums on her hip and elbow and bruise marks on her arms and around her eyes.

        Ferguson v. State, 221 Ga. App. 212, 215 (2) (470 SE2d 909) (1996).

       Id.

       Id. Accord Ney v. State, 227 Ga. App. 496, 503 (4) (i) (489 SE2d 509) (1997). Compare Blount v. State, 172 Ga. App. 120, 122 (4) (322 SE2d 323) (1984) (reversible error to fail to charge false swearing under OCGA § 24-9-85 (b) in aggravated assault prosecution based on an alleged sexual assault, where defendant produced sworn affidavits of prosecutrix and her parents that no rape or other sexual contact occurred).

       197 Ga. App. 464, 465 (2) (398 SE2d 728) (1990) (physical precedent only as to Division 2). The actual holding of Division 2 is: “Generally, whether or not to permit demonstrations [during closing argument] is within the sound discretion of the court, [cit.], provided the prosecution has not gone outside the evidence and introduced matters which have not been proven in evidence. [Cit.]” (Punctuation omitted; emphasis supplied.) Id. at 465-466 (2).

       (Citations omitted.) Singleton v. State, 231 Ga. App. 694, 696 (3) (500 SE2d 411) (1998).

       Id.

        Laney v. State, 271 Ga. 194, 198 (9) (515 SE2d 610) (1999).

        Singleton v. State, supra, 231 Ga. App. at 696 (3).


text:
    A00A1083.
    ROOKS v. THE STATE.
    (538 SE2d 555)
   Miller, Judge.

On June 12, 1989, with the assistance of counsel, Christopher Shawn Rooks entered a negotiated guilty plea to possession of cocaine. His five-year sentence was to be served on probation, upon payment of $110 in court costs and the performance of 180 hours of community service. On May 10,1999, Rooks filed a pro se petition for post-conviction relief, moving the court to vacate the judgment of conviction on the ground that the record fails to show that Rooks entered his guilty plea voluntarily and intelligently. The denial of that motion is the sole enumeration of error in this direct appeal. We affirm.

1. The only prescribed means for Rooks to move to withdraw his 1989 guilty plea, after the term of court at which the judgment of conviction was rendered, was through habeas corpus proceedings. Rooks’ motion for relief could be interpreted as one seeking to withdraw his guilty plea.

OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea as a matter of right before sentence is pronounced. Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered.

Here, the trial court correctly concluded it had no authority to grant any motion to withdraw Rooks’ guilty plea, since the motion was filed some ten years after the expiration of the term of court in which the judgment of conviction on that plea was entered.

2. The trial court concluded that the sentence was not void and that Rooks was not entitled to habeas corpus relief. We pretermit whether a person not in the custody of the State of Georgia under the challenged sentence is entitled to habeas corpus relief at the state level and consider the merits of this ruling.

3. Where the voluntariness of the guilty plea is challenged, there must be

a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.

Contrary to Rooks’ contentions, the verbatim record of his guilty plea hearing demonstrates that Rooks was informed that the possible sentence for possession of cocaine was not less than two years nor more than fifteen years in the state penitentiary; that by pleading guilty Rooks was giving up his right to a jury trial where the State would have to prove his guilt beyond a reasonable doubt; that Rooks would not have to testify or produce any evidence against himself; that he was giving up his right to cross-examine the witnesses against him and his right to subpoena witnesses in his behalf; and that he pled guilty to possession of cocaine because he was in fact guilty, in that he admitted in open court that he had been in possession of cocaine.

Rooks’ counsel affirmed that Rooks understood the charges against him and that Rooks was entering his plea freely and voluntarily. Rooks affirmed that he was satisfied with counsel’s representation. Rooks further confirmed that he had not been threatened in any way into pleading guilty, and no one had promised him anything except the district attorney’s sentencing recommendation of probation and a fine. Rooks was not under the influence of any drugs, alcohol, or prescription medicines at that time. He could read, write, and understand English. In the face of direct inquiry by the court, Rooks had no questions, did not mention any matters he claimed he did not understand, and desired no further explanation.

Decided August 24, 2000.

Christopher S. Rooks, pro se.

Peter J. Skandalakis, District Attorney, for appellee.

We hold that the trial court adequately established on the record that Rooks entered his guilty plea to possession of cocaine voluntarily and with an understanding of both the nature of the charge against him and the consequences of his plea.

Judgment affirmed.

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

       On the jacket of the indictment, an order of nolle prosequi was entered on a second count, alleging possession of a firearm during the commission of a felony.

        Cook v. State, 230 Ga. App. 507 (496 SE2d 785) (1998). Since Rooks appears to be a federal inmate detained outside of Georgia, jurisdiction and venue for state habeas proceedings are proper in the sentencing court. Craig v. State, 234 Ga. 398, 399 (216 SE2d 296) (1975).

       (Citations and punctuation omitted.) Grice v. State, 236 Ga. App. 379, 380 (511 SE2d 909) (1999).

        Cook v. State, supra, 230 Ga. App. 507.

       See Parris v. State, 232 Ga. 687, 689-690 (208 SE2d 493) (1974) (habeas petition not necessarily moot even if petitioner no longer in custody, if adverse collateral consequences flow from the adjudication of guilt).

       (Citations omitted.) Green v. State, 265 Ga. 263 (1) (454 SE2d 466) (1995).

       See id. at 264 (1).


author: Phipps, Judge.

text:
    A00A1268.
    DARBY v. THE STATE.
    (538 SE2d 538)
   Phipps, Judge.

Dermaine Darby appeals his conviction of robbery by force. He enumerates a single error — that the trial court erred in instructing the jury on the inference of guilt from recent unexplained possession of stolen property. We find that there was sufficient evidence to support the charge and affirm Darby’s conviction.

Evidence of the following events was presented. At approximately 2:40 a.m. on May 18, 1999, Shonell Rogers went to a Texaco station in Clayton County. After she reentered her car, Darby ran to the car, blocked her from closing her door and demanded all of her money. She told Darby that she had only $2 and some change. He uttered words to the effect, ‘You lying bitch,” grabbed the money from her hand and began beating and punching her. Eventually, Darby pulled her from the car and slammed her to the concrete. Then he reached inside the car, grabbed her purse and ran behind the store toward an apartment complex.

The police were called and immediately began a search for Rogers’s assailant. At the apartment complex behind the Texaco station, they found on the ground a wallet containing Darby’s Georgia identification card. Approximately ten feet away, they found a purse containing Rogers’s identification and no money. Rogers, who had remained at the Texaco station, was taken to the apartment complex. She identified the purse as hers and identified Darby from the picture on his identification card as the man who had attacked and robbed her.

A pawn ticket in Darby’s wallet showed a home address near the apartment complex. While investigating that lead, the police found Darby hiding in a closet in a nearby house. Rogers was taken there, and she identified Darby.

Darby was arrested and taken to jail. An inventory search of him revealed two $100 bills, a $50 bill, two $5 bills and five $1 bills, totaling $265.

Earlier, Rogers had told the officer who discovered the money that she had had approximately $265 in her purse when it was taken. The officer also found that there was a match between the denominations found on Darby and those enumerated by Rogers.

At trial, Rogers testified that she had had approximately $250 or $260 when she was robbed. She further testified, “I know I had two hundreds, a fifty, some ones, and a five, or something like that.”

Darby asserts that the charge on recent possession of stolen property was improperly given because the money found in his possession could be linked to the robbery only by general denominations. Relying upon Kimsey v. State and Dean v. State, he contends that in order for a charge on recent unexplained possession of stolen property to be warranted, at least one item of property found in the defendant’s possession must be clearly identifiable as property stolen during the indicted crime.

Kimsey and Dean did not present the issue of whether there was an evidentiary basis for a charge on recent unexplained possession of stolen property. The respective defendants challenged the sufficiency of evidence to support their burglary convictions. In Kimsey, this court noted that after the burglary the defendant had sold a piece of silverware which had been positively identified as taken during the burglary. In Dean, this court observed that the defendant was found in possession of a distinctive token taken during the burglary. Neither case stands for the proposition that regardless of the circumstances, fungible property may never be the subject of an instruction on recent unexplained possession of stolen property.

Decided August 24, 2000.

Margot S. Roberts, for appellant.

Robert E. Keller, District Attorney, Jack S. Jennings, Assistant District Attorney, for appellee.

“[A]n instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. The evidence necessary to justify a jury charge need only be enough to enable one to carry on a legitimate process of reasoning. [Cits.]” Here, there was evidence from which a jury could carry on a legitimate process of reasoning about whether the $265 found in Darby’s possession was the same money taken from Rogers’s purse. Rogers identified him several times as the man who took her purse. And less than an hour after the robbery he was found hiding in a closet near the robbery scene in possession of money in the same amount and denominations as that taken from the purse. There was an evidentiary basis for the instruction on the inference of guilt from recent unexplained possession of stolen property.

Judgment affirmed.

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

       164 Ga. App. 377, 378 (2) (296 SE2d 159) (1982).

       181 Ga. App. 452 (352 SE2d 633) (1987).

       164 Ga. App. at 378.

       181 Ga. App. 452.

       (Punctuation omitted.) Williams v. State, 209 Ga. App. 355 (1) (433 SE2d 361) (1993), quoting Simmons v. State, 172 Ga. App. 695, 696 (1) (324 SE2d 546) (1984).

       See Robinson v. State, 150 Ga. App. 261 (257 SE2d 352) (1979) (jury authorized under circumstances of case to conclude that fungible property possessed by defendant had been stolen from complainant).


text:
    A00A1282.
    LOWE v. THE STATE.
    (538 SE2d 552)
   Miller, Judge.

Gerald Lowe was convicted of one count of hijacking a motor vehicle, two counts of kidnapping, two counts of aggravated assault, and one count of possession of a handgun during the commission of a felony. He enumerates three errors on appeal: (1) the verdict is contrary to law and evidence, (2) the trial court admitted improper testimony concerning a prior alleged offense, and (3) the trial court failed to grant a mistrial after the prosecutor commented upon his failure to testify. We affirm.

1. Lowe complains that the jury could not have reached a fair and impartial verdict. As in Brown v. State, Lowe admits in his brief that “the evidence may have been sufficient to establish his guilt,” and points to his other enumerations of error as the cause of a verdict contrary to justice and equity. As discussed below, we find those enumerations to be without merit.

2. Lowe contends that improper testimony was admitted concerning a prior alleged offense. When determining whether evidence of a prior transaction or occurrence may be admitted, the State must make three affirmative showings at an independent hearing, specifically: (1) that the evidence is not brought forth to raise an improper inference as to character, but rather for an appropriate purpose deemed an exception to the general rule prohibiting this type of evidence; (2) that there is sufficient evidence that the accused committed the independent act; and (3) that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter. The decision to admit a prior similar transaction into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.

First, the State offered the evidence “to show the defendant’s intent, bent of mind and course of conduct.” This is a proper purpose and satisfies the first prong. Second, Lowe concedes that there is sufficient evidence that he committed the independent act. Finally, however, Lowe argues that the allegations against him were not sufficiently similar to a prior occurrence. In the prior occurrence Lowe robbed and assaulted a woman with a pistol and also assaulted a male attempting to come to her aid with the pistol. In this case, Lowe demanded money from one victim before striking him in the head with a pistol. Lowe got into the victims’ vehicle and shot both victims as he drove the car around. “In determining the admissibility of similar transaction evidence, the court should focus on the similarities, not the differences, of the two occurrences.” In both instances, the victims knew of or were acquainted with Lowe, and in both instances Lowe assaulted the victims with a gun and either robbed them or demanded money. The trial court correctly concluded that Lowe’s prior armed robbery and aggravated assaults with a pistol were substantially relevant to the appropriate limited purpose of proving modus operandi or course of conduct.

Decided August 24, 2000.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Christopher M. Quinn, Assistant District Attorneys, for appellee.

3. Lowe next contends the trial court erred in failing to grant his motion for mistrial. He argues that during closing argument, the prosecutor improperly commented on his failure to testify. To reverse, we must hold either that the prosecutor’s manifest intention was to comment on the defendant’s failure to testify, or that the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify.

The prosecutor stated: “[b]ut you took an oath to decide this case based on the facts. And there’s only one set of facts laid out for you here.” This statement is not a comment on Lowe’s failure to testify, but rather appears to be a comment that the facts presented by the State had not been rebutted. A prosecutor may comment on the defense’s failure to present rebuttal evidence. Thus, we hold that the prosecutor’s intention was not to comment impermissibly on Lowe’s failure to testify, nor was the remark one that the jury would necessarily have found to be such a comment.

Moreover, the judge instructed the jury that Lowe was not required to take the stand and that no harmful inferences should be drawn from his failure to do so. Therefore, even if the statement were improper, the court’s instruction sufficed to preclude any harm, and we discern no manifest abuse of discretion.

Judgment affirmed.

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

       Lowe was also acquitted of one count of armed robbery.

       242 Ga. App. 347, 348 (1) (529 SE2d 650) (2000).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Avery v. State, 244 Ga. App. 177, 179 (1) (534 SE2d 897) (2000); Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

        Hawks v. State, 223 Ga. App. 890, 892 (2) (479 SE2d 186) (1996).

       (Citations and punctuation omitted.) Adame v. State, 244 Ga. App. 257, 260 (2) (a) (534 SE2d 817) (2000).

        Jones v. State, 236 Ga. App. 330, 332 (1) (b) (511 SE2d 883) (1999).

        Locke v. State, 238 Ga. App. 705, 707 (2) (521 SE2d 587) (1999).

        Johnson v. State, 271 Ga. 375, 383 (15) (a) (519 SE2d 221) (1999); Matthews v. State, 268 Ga. 798, 804 (6) (493 SE2d 136) (1997).

       See Grant v. State, 185 Ga. App. 497-498 (1) (364 SE2d 628) (1988).


text:
    A00A1311.
    A TOW, INC. v. WILLIAMS.
    (538 SE2d 542)
   Miller, Judge.

At the request of police who thought the vehicle might be evidence in a hit-and-run matter, A Tow, Inc. (“ATI”) in February 1997 towed Monique Williams’s car from her apartment complex parking lot and complied with the police instruction to “hold” the vehicle as evidence. Even though ATI knew Williams’s correct name and address from the police impound ticket, it sent the notice required by OCGA § 40-11-2 (d) to a nonexistent William S. Monique at a nonexistent apartment number, receiving the letter back as “refused [or] unclaimed” and “no such number.” In early April the Department of Motor Vehicles (“DMV”) again informed ATI of the correct name and address. ATI never sent and Williams did not receive the required notice.

In early May the police released the vehicle from the “hold” and informed Williams of its location, whereupon she immediately contacted ATI to demand the vehicle. ATI would not release the vehicle to her unless she first paid towing and storage charges. Williams declined to pay and had her attorney immediately send a formal written demand for the vehicle, with which ATI again refused to comply unless the charges were paid. ATI then sent notice to the nonexistent name and address (despite having received the owner’s correct name and address from the DMV) and in June instituted lien foreclosure proceedings, foreclosed on the vehicle, and sold it.

Williams sued ATI for conversion damages and won partial summary judgment on liability, which ATI appeals. The question on appeal is whether a vehicle towing company is liable to a car owner for conversion as a matter of law where it refuses to allow the owner to retrieve the car without the owner first paying storage and towing costs, even though the towing company has failed to notify the owner as required by OCGA § 40-11-2. We hold that it is liable and affirm.

A de novo standard of review applies to an appeal from the grant of a motion for summary judgment, which grant is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.

Unless it has a lien on the vehicle, a towing company that has towed and held a car at police request must release the car to its owner upon demand once police have released the car from its “hold” status. “[T]his Court in [Mays v. Lampkin] recognized the obligation of the garage owner to return the vehicle as soon as the ‘hold’ for evidentiary purposes was released.” “Therefore, detention of the property by the garage against the demands of the owner amounts to a conversion.”

Here ATI claims that under OCGA § 40-11-4 (a) it had a lien on the vehicle for removal and storage costs. But “[p]rior to acquiring such lien, the person must have complied with the requirements of Code Section 40-11-2.” OCGA § 40-11-2 (d) required ATI, within seven days of the towing date, to notify Williams by certified or registered mail of the location of her vehicle, the fees connected with towing and storage, and the fact that it would be deemed abandoned unless she redeemed it within thirty days of the towing date. ATI did not do so, but instead sent a certified letter to a nonexistent name and address, even though it knew the correct name and address. ATI made no effort to rectify the problem when it received the letter back as undeliverable or when it received notice from the DMV as to the correct name and address and instead continued sending letters to the nonexistent name and address when it sought to foreclose on its alleged lien.

Because ATI admittedly did not comply with the notice provisions of OCGA § 40-11-2, it had no lien for towing and storage costs. Thus, it had no authority to withhold the vehicle from Williams once the “hold” was removed. ATI’s argument that it acted in “good faith” in retaining the vehicle is no defense to a cause of action for conversion.

The trial court correctly granted Williams’s motion for partial summary judgment on liability.

Judgment affirmed.

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

Decided August 24, 2000.

England & McKnight, J. Melvin England, Robert P. Taylor, for appellant.

Thomas E. Maddox, Jr., for appellee.

       Since the events at issue took place prior to July 1997, we apply Chapter 11 of Title 40 of the Code as it existed prior to the amendments taking effect on July 1, 1997 and thereafter, to determine the rights, duties, and obligations of the parties. See Dept. of Human Resources v. Deason, 238 Ga. App. 853, 856 (1) (a) (520 SE2d 712) (1999). Cf. Ga. L. 1998, p. 1305; Ga. L. 2000, p. 951, § 13-1.

        Hardin v. City Wide Wrecker Svc., 232 Ga. App. 617 (502 SE2d 548) (1998); see OCGA § 9-11-56 (c).

        Hardin, supra, 232 Ga. App. 617.

       207 Ga. App. 739 (429 SE2d 113) (1993).

       (Citation omitted.) Strickland v. Vaughn, 221 Ga. App. 636, 638 (472 SE2d 159) (1996).

       (Citation and punctuation omitted.) Id.

       OCGA § 40-11-4 (a). See footnote 1, explaining why the pre-July 1997 Code sections apply.

        First Nat. Bank of Gainesville v. Alvin Worley & Sons, Inc., 221 Ga. App. 820 (1) (472 SE2d 568) (1996); compare Atlantic Steel Credit Union v. Shephard, 204 Ga. App. 297, 298 (1) (419 SE2d 132) (1992) (because towing company complied with notice provisions, valid lien existed). Cf. Gearing v. Complete Wrecker Svc., 187 Ga. App. 242, 243 (2) (370 SE2d 9) (1988) (no actionable conversion despite lack of compliance with OCGA § 40-11-2 notice provisions, where towing company’s good faith efforts resulted in owner’s actual knowledge that vehicle would be sold if not seasonably claimed).

        Hardin, supra, 232 Ga. App. at 619 (1) (b).


text:
    A00A1331.
    SCREWS v. THE STATE.
    (538 SE2d 547)
   Phipps, Judge.

Jeffery Screws was convicted of robbery by intimidation and possession of cocaine. After denial of his motion for new trial, Screws appeals to this court, contending that his confession was involuntary and, therefore, improperly admitted into evidence at his bench trial. We conclude that Screws’s confession was voluntary and properly admitted. Thus, we affirm his conviction.

On May 15, 1998, at about 4:45 a.m., Screws entered Herndon’s Super C supermarket in Columbus, approached the store clerk and told him that he had been directed by someone else to rob the store. Screws suggested that he was armed and showed the clerk a bulge in his shirt, which he had created by placing a stick underneath. Believing that the bulge was a gun, the clerk took money from the cash register and attempted to give it to Screws. Screws said he did not want all the money — only some of it. He took approximately $80 and fled.

Approximately one and one-half hours after the robbery, Columbus Police Sergeant Joel McNeal found a shirtless and shoeless Screws hiding behind a garbage can in a park. McNeal took Screws back to Herndon’s Super C, where the clerk identified him as the robber.

Afterward, Screws was taken to the police station. At approximately 7:10 a.m., he gave a confession to another officer, Detective Frank Massa. He also identified and signed the shirt he had worn during the robbery, which was found in the vicinity of the store.

1. Screws contends that his confession was improperly admitted at trial because at the time of the confession he had been using crack cocaine and was incoherent. At a Jackson-Denno hearing held during the trial, Screws testified that on the day of the robbery he had smoked cocaine for “four hours straight” and that he had smoked more cocaine minutes before McNeal found him in the park. He further testified that he told McNeal that he did not “want to go to the police department right now” and that he needed to “get [his] head clear before anything [went] down.”

McNeal testified at the Jackson-Denno hearing that Screws did exhibit signs of drug usage — “palmy hands” and eyes that were dilated and white around the pupils. Massa also testified that Screws “appeared to be either a little drunk or a little high.”

However, intoxication, standing alone, does not render a statement inadmissible. If the evidence is sufficient to establish that the defendant’s statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement.

The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Voluntariness is determined based upon the totality of the circumstances. Factual and credibility determinations made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.

Although Massa testified that Screws “appeared to be a little drunk or a little high,” he also testified that “[Screws] knew exactly what was going on.” Before taking a statement from Screws, he read him his Miranda rights. Massa’s general practice was to hand the form to the defendant then and allow him to read it for himself. Screws had completed 11 years in school and had obtained a GED. Screws signed the waiver of rights form and gave a narrative confession which was supplemented through questioning from Massa. Massa testified that he never had reason to think that Screws did not understand his rights, that he never coerced Screws into making a statement, that he did not threaten Screws with repercussion if he did not make a statement and that he did not promise Screws anything in exchange for not requesting an attorney.

The evidence supports the trial court’s finding that Screws’s statement was voluntary.

2. Screws further contends that in stating, at the time he was found and taken into custody, that he needed to “get his head clear,” he expressed an unwillingness to talk to the police. There was no attempt to question him at this time. Nevertheless, he maintains that because the police did not respect this wish, by a later attempt to question him, his Fifth Amendment rights were violated and his confession is therefore inadmissible.

During a police interrogation, if the suspect indicates “in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” We pretermit a determination of whether Screws equivocally or unequivocally invoked his right to remain silent. Even if his statement did invoke this right, “ ‘[t]he right to [remain silent] is not protected by a per se rule of “permanent immunity” against further police-initiated interrogation.’ [Cits.]” “Police may legitimately inquire whether a suspect has changed his mind about speaking to them with or without an attorney. [Cit.]”

Decided August 24, 2000.

William P. Nash, Jr., for appellant.

J. Gray Conger, District Attorney, Julia F. Slater, Assistant District Attorney, for appellee.

“The facts in this case indicate ‘(t)his was not the persistent, repetitive interrogation against which courts have fashioned protection for an accused who might otherwise be coerced into incriminating himself.’ [Cit.]” There was never an attempt “to wear down [Screws’s] resistance and make him change his mind.” At the time Screws indicated that he needed to get his head clear, the police had just apprehended him. They did not make any attempt to question him then. And later, after he had been identified by the store clerk and taken to the police station, only one attempt was made to question him. Then, before he gave his confession, Screws was read his Miranda rights. He did not reassert an unreadiness to be questioned. Instead, the record supports the court’s determinations that he voluntarily waived his right to remain silent and gave a confession. We find no error on this ground.

Accordingly, we affirm Screws’s conviction.

Judgment affirmed.

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

        Mickens v. State, 177 Ga. App. 838-839 (341 SE2d 316) (1986).

        Fowler v. State, 246 Ga. 256, 258 (3) (271 SE2d 168) (1980).

        Kunis v. State, 238 Ga. App. 323 (1) (518 SE2d 725) (1999).

        Atwater v. State, 233 Ga. App. 339, 343 (4) (503 SE2d 919) (1998).

        Kunis, supra, 238 Ga. App. at 323-324.

       (Emphasis omitted.) Hatcher v. State, 259 Ga. 274, 276 (2) (379 SE2d 775) (1989), quoting Miranda v. Arizona, 384 U. S. 436, 473-474 (86 SC 1602, 16 LE2d 694) (1966).

        Larry v. State, 266 Ga. 284, 286 (2) (a) (466 SE2d 850) (1996), quoting Michigan v. Mosley, 423 U. S. 96, 103 (96 SC 321, 46 LE2d 313) (1975).

        Johnson v. State, 251 Ga. 62, 63 (303 SE2d 7) (1983).

        Spratley v. State, 169 Ga. App. 922 (1) (315 SE2d 474) (1984), quoting Johnson v. State, supra.

        Mosley, supra, 423 U. S. at 105-106.


text:
    A00A1385.
    THE STATE v. ALEXANDER.
    (538 SE2d 550)
   Miller, Judge.

Evidence of guilt which the defendant, directly or indirectly, is compelled to disclose by an unlawful search of his person under an illegal arrest is not admissible in a criminal prosecution. Based upon conflicting evidence, the trial court here concluded that a traffic stop and pants-down cavity search of Michael Alexander was, “[g]iven the totality of the circumstances, ... a pretextual stop and unreasonable and an illegal search.” As a result, the trial court granted Alexander’s motion to suppress a pill bottle filled with crack cocaine retrieved from Alexander’s rectum after a complete search incident to a custodial arrest. Pursuant to OCGA § 5-7-1 (a) (4), the State brings this direct appeal. Because the evidence adduced below, including challenges to the credibility of the arresting officers, authorized the trial court’s ultimate conclusion that the initial stop was unlawful, as was the subsequent warrantless search, we affirm.

After a traffic stop, Alexander was placed under arrest for a seat belt violation and for an altered vehicle identification number on the vehicle. Yet, police observed neither of these alleged violations before the stop. Rather, they justified the stop on the ground that Alexander allegedly eluded a roadblock. Although there is evidence that Alexander made a right turn at an intersection, saw a roadblock, and attempted to elude by turning into a service station, essentially coming around 360 degrees back to the intersection and then turning in the opposite direction away from the roadblock, there is also evidence that Alexander intended to turn left all along to go to a friend’s house and that there was no roadblock to evade or elude. Other matters undermining officer credibility involved a second page to the police report that was prepared in a hand not recognized by the signing officer, omissions in the police report, and officer testimony at the suppression hearing at odds with the written police report. Another inconsistency is the timing of the alleged receipt of information from another officer that Alexander carried drugs hidden in his buttocks.

The trial court resolved the issues of fact against admissibility. By virtue of this ruling, the trial court found the officers’ testimony was not credible. Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless they are clearly erroneous. This principle of law applies equally to rulings granting a suppression motion as to those denying a suppression motion. The trial court was further authorized to disbelieve the officers about the timeliness and accuracy or even the very existence of their information that Alexander habitually carried drugs on his person, even though their testimony was uncontradicted by defendant.

Decided August 24, 2000.

Paul L. Howard, Jr., District Attorney, John R. Lovell, Christopher M. Quinn, Assistant District Attorneys, for appellant.

Peter J. Ross, for appellee.

Thus, the evidence supports the legal conclusion that no reasonable suspicion of wrongdoing authorized the initial forcible detention of Alexander’s vehicle. It follows that the warrantless search, including the cavity search yielding the crack cocaine, was incident to an invalid arrest in that there was no credible evidence amounting to probable cause to believe Alexander was carrying drugs on his person at that time. Fruits of an unlawful arrest may not be introduced into evidence. Since the trial court’s conclusion that this traffic stop was pretextual, based on its assessment of witness credibility, is supported by evidence, that conclusion is not clearly erroneous and therefore is affirmed.

Judgment affirmed.

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

        MacDougald v. State, 124 Ga. App. 619, 620 (2) (184 SE2d 687) (1971).

        Tate v. State, 264 Ga. 53, 57 (3) (440 SE2d 646) (1994).

        Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974).

        Tate v. State, supra, 264 Ga. at 54 (1).

       Id. at 56 (3). Here, the evidence authorized a conclusion that this information was not communicated until after the traffic stop.

        Baez v. State, 206 Ga. App. 522, 526 (1) (425 SE2d 885) (1992), citing Moore v. State, 155 Ga. App. 299, 300 (3) (270 SE2d 713) (1980).

        Tate v. State, supra, 264 Ga. at 57 (3).


text:
    A00A1549.
    McLEOD v. THE STATE.
    (538 SE2d 759)
   Miller, Judge.

Wanda Braswell McLeod was tried before a jury and found guilty of aggravated assault, felony obstruction of a law enforcement officer, and misdemeanor disorderly conduct. On appeal, she contends the evidence is insufficient to sustain her felony convictions. We affirm.

1. On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence nor judge the credibility of the witnesses but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. “The testimony of a single witness is generally sufficient to establish a fact.” Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

Decided August 24, 2000.

Straughan & Straughan, Mark W. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

2. A person commits felony obstruction when he knowingly and wilfully resists, obstructs, or opposes any law enforcement officer in the lawful discharge of his duties “by offering or doing violence to the person of such officer. . . .” The testimony of Dodge County Deputy Sheriff Ed White that McLeod resisted his initial attempt to arrest her for disorderly conduct by cursing and kicking him in the groin area is sufficient under the standard of Jackson v. Virginia that McLeod is guilty, beyond a reasonable doubt, of felony obstruction of a law enforcement officer as alleged in Count 2 of the indictment.

3. A person commits aggravated assault by committing an assault “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to . . . result in serious bodily injury.” An axe or a hatchet, when used offensively, is capable of serious bodily injury. Deputy White’s testimony that McLeod chased after her fleeing husband with an axe raised over her head is sufficient to authorize the jury’s verdict that she is guilty, beyond a reasonable doubt, of the aggravated assault alleged in Count 1 of the indictment.

Judgment affirmed.

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

        Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993).

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

       OCGA § 24-4-8.

        Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

       OCGA § 16-10-24 (b).

       Supra.

        Jones v. State, 242 Ga. App. 357, 358-359 (1) (529 SE2d 644) (2000). Accord Duitsman v. State, 212 Ga. App. 348 (1) (441 SE2d 888) (1994) (scuffling with and kicking arresting officers is sufficient).

       OCGA § 16-5-21 (a) (2).

       See, e.g., Nixon v. State, 101 Ga. 574, 577 (28 SE 971) (1897); James v. State, 68 Ga. App. 765, 767 (1) (b) (24 SE2d 149) (1943).


text:
    A00A1740.
    WILLIAMS v. THE STATE.
    (538 SE2d 544)
   Miller, Judge.

Indicted for murder, Briane Demond Williams claimed self-defense at trial. Over Williams’s objection, the judge gave a charge on voluntary manslaughter. The jury found Williams guilty of voluntary manslaughter, which he appeals on two closely related grounds: the evidence did not sustain the verdict, and the judge erred in giving the manslaughter charge. We find no error and affirm.

1. Without weighing the evidence or determining witness credibility, we construe the evidence in the light most favorable to the verdict to determine whether some competent evidence supported a finding beyond reasonable doubt of each fact necessary for the conviction. So construed, the evidence showed that throughout the day in question, Williams and the victim had four violent confrontations about the victim romancing Williams’s girlfriend. Not only was Williams jealous, but the victim himself was upset about Williams’s disclosing the romancing to the victim’s wife.

The first confrontation took place inside a store, when the two exchanged words and the victim pushed and threatened to “get” Williams. The second confrontation took place a few minutes later in the parking lot outside the store, when the victim shoved, slapped, cursed, and spat on Williams. The third confrontation took place some time later, when the victim approached Williams while he was tinting some car windows. This time the victim pushed, hit, cursed, kneed, beat, and slammed Williams onto the ground, in response to which Williams cut the victim with a razor.

Shortly thereafter, Williams had a friend buy him a gun, and then he went searching for the victim in his vehicle. When he found the victim, he pulled over, and the victim leaned into the car and cursed Williams and hit him. Williams pulled out the gun, and the victim, who had no weapon, stepped away, whereupon Williams shot him. The victim ran, and Williams leaned out of the car and shot at him three or four more times. The victim died from a gunshot wound to the chest.

Williams first argues that the evidence demanded an acquittal because he acted in self-defense under OCGA § 16-3-21 (a). When a defendant produces evidence that he was justified in using deadly force, the State bears the burden of disproving that affirmative defense beyond a reasonable doubt. The applicable standard is whether the circumstances would excite the fears of a reasonable man to the point that he would feel it necessary to use deadly force to prevent death or great bodily injury, which is a question for the jury. When voluntary manslaughter is raised, the issue is whether based on the evidence, the jury could have found beyond reasonable doubt that the defendant “was so influenced and excited that he reacted passionately rather than simply to defend himself.”

Here competent evidence supported a finding that Williams did not act in self-defense but out of jealousy and rage. The two had had multiple violent confrontations in the hours prior to the incident. Williams saw that the victim, who had just hit and cursed him again, had no weapon. Williams fired his weapon multiple times as the victim ran away. When speaking with police right after the incident, Williams said nothing of self-defense but justified the shooting on the ground that the victim “had been fooling around with his girlfriend” and had “kept messing with [him] and would not leave [him] alone.”

Williams next argues that the evidence did not show that he acted “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person,” as required under OCGA § 16-5-2 (a) for a voluntary manslaughter conviction. Williams contends that as a matter of law the evidence showed that the confrontations were not sufficiently provocative, that he had “cooled off” from the prior confrontations, and that he was not acting out of passion when he shot the victim.

Williams’s arguments fail. The State did not need to rely on the first three confrontations for the evidence of a provocation; the confrontation at the time of the shooting sufficed. In this fourth confrontation the victim, according to Williams’s own testimony, cursed Williams and hit him. Other testimony showed Williams told police that he shot because the victim “kept messing with [him] and would not leave [him] alone.” “He said that [the victim] had been fooling around with his girlfriend and that [the victim] had wrote [sic] her a letter and that he had read it and he told [the victim] to leave her alone. That’s when he fired the gun. . . .”

The sufficiency of the provocation was an issue for the jury to determine. Sexual jealousy, heated arguments, physical beatings, and fear of some danger, all suffice as provocations for a voluntary manslaughter conviction, and all were present in the fourth confrontation. The jury could have also considered the prior confrontations that same day, for the question of the “cooling time” is an issue for the jury. Earlier unresolved assaults without “cooling off” may be sufficient provocation.

Decided August 24, 2000.

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, for appellee.

The evidence was sufficient to sustain the verdict.

2. For similar reasons, the evidence supported the giving of the charge on voluntary manslaughter. “Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” As set forth in Division 1, there was ample evidence of the elements of voluntary manslaughter, and thus the court did not err in giving the charge.

Judgment affirmed.

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

        Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Diaz v. State, 270 Ga. 421-422 (510 SE2d 529) (1999).

        Anderson v. State, 245 Ga. 619, 623 (1) (266 SE2d 221) (1980); accord Brown v. State, 242 Ga. App. 106, 107 (1) (528 SE2d 868) (2000).

       (Citations and punctuation omitted.) Mitchell v. State, 199 Ga. App. 159, 160 (404 SE2d 329) (1991).

       See Thomas v. State, 184 Ga. App. 131, 133 (2) (361 SE2d 21) (1987).

       See Anderson, supra, 245 Ga. at 623 (1).

        Watkins v. State, 191 Ga. App. 325, 326 (2) (382 SE2d 107) (1989).

        Goforth v. State, 271 Ga. 700, 701 (1) (523 SE2d 868) (1999).

        Mims v. State, 180 Ga. App. 3 (1) (348 SE2d 498) (1986) (whole court); Asbury v. State,
        175 Ga. App. 335, 336 (1) (333 SE2d 194) (1985).

        Woody v. State, 262 Ga. 327, 328 (2) (418 SE2d 35) (1992).

       Id.; Miller v. State, 223 Ga. App. 311, 312 (477 SE2d 430) (1996); Thomas, supra, 184 Ga. App. at 132 (2).

       Compare Worthem v. State, 270 Ga. 469, 470-471 (2) (509 SE2d 922) (1999) (no evidence of anger or passion).

        Watkins, supra, 191 Ga. App. at 326 (2).

       See Hall v. State, 235 Ga. App. 44 (1) (508 SE2d 703) (1998); Lee v. State, 202 Ga. App. 708 (1) (415 SE2d 290) (1992); compare Murff v. State, 251 Ga. 478, 480 (306 SE2d 267) (1983) (no evidence of prior altercations or bad feelings between victim and defendant).

       (Citations and punctuation omitted.) Shields v. State, 202 Ga. App. 659, 661 (3) (415 SE2d 478) (1992) (whole court).

        Mitchell, supra, 199 Ga. App. at 161.


author: Eldridge, Judge.

text:
    A00A1698, A00A1699.
    WINN-DIXIE CHARLOTTE, INC. v. BRUNNER COMPANIES INCOME PROPERTIES LIMITED PARTNERSHIP I (two cases).
    (538 SE2d 152)
   Eldridge, Judge.

Winn-Dixie Charlotte, Inc. is a leasehold tenant in the White Horse Plaza shopping center in Greenville, South Carolina, of Brunner Companies Income Properties Limited Partnership I and sought to terminate the lease for an alleged breach. On May 27, 1999, WinnDixie instituted a declaratory judgment action in the Court of Cornmon Pleas in Greenville County against Brunner to construe the lease to determine if it was breached, which action has not reached final judgment. On June 21, 1999, Brunner brought a rent collection suit for the month of June 1999 against Winn-Dixie in Civil Action No. 285861 in the Civil Court of the County of Richmond, State of Georgia; because the lease had no acceleration clause, Brunner filed seven additional suits for monthly rents as well. See Richfield Capital Corp. v. Fed. Sign Div. &c., 222 Ga. App. 757, 758 (1) (476 SE2d 26) (1996). The identical suit filed August 17, 1999, in Civil Action No. 285971 was allowed to go into default, and judgment was taken against Winn-Dixie. Winn-Dixie filed a motion to set aside the judgment and a motion to open default, which motions were denied. On January 7, 2000, in Civil Action No. 285861, the trial court granted Brunner’s motion for summary judgment. We find that the trial court properly granted summary judgment and default judgment and denied the motions to open default and to set aside judgment.

Case No. A00A1698

1. Winn-Dixie contends that the trial court committed several errors in granting Brunner’s motion for summary judgment. We do not agree.

Paragraph 6 of the lease states that Winn-Dixie was induced to enter into the lease by Brunner through representations that as of June 1, 1987, it had Wal-Mart as an anchor tenant for 20 years in a noncancellable lease with 81,922 square feet of rental space. The evidence shows that this was and is the case. The lease does not state that Wal-Mart must operate the premises as a retail store for the entire 20-year lease, and so long as Wal-Mart occupied the space in some capacity within the provisions of the lease, this term was satisfied. Wal-Mart now operates the property as a service/warehouse. See generally Valley Pub. Svc. Auth. v. Beech Island Rural Community Water Dist., 319 S.C. 488, 492-493 (462 SE2d 296) (App. 1995). However, in February 1999, Wal-Mart closed its retail store, moved it to a rival shopping center, but remained a tenant in good standing under its lease. All the parties considered Wal-Mart a significant anchor tenant that draws customers to the shopping center.

Winn-Dixie was the drafter of the lease, and the lease had no express continuous occupancy clause as to the operation of a retail space by Wal-Mart as a co-tenant; the clause was an inducement for Winn-Dixie to lease. After Wal-Mart ceased to operate its store at the White Horse Shopping Center, it no longer drew customers to the shopping center. From the plain, clear, and unambiguous language, the clause did not constitute a co-tenancy clause between Wal-Mart and Winn-Dixie in its ordinary meaning, and the courts must look to those terms alone to find the intent of the parties. See Moser v. Gosnell, 334 S.C. 425, 430 (513 SE2d 123) (App. 1999); Koontz v. Thomas, 333 S.C. 702, 707-708 (511 SE2d 407) (App. 1999); Lindsay v. Lindsay, 328 S.C. 329, 336 (491 SE2d 583) (App. 1997). To “occupy,” which refers by its clear, plain, and unambiguous language to that point in time when Winn-Dixie executed the lease, does not mean to “continuously operate a retail store or service center.” The court cannot impose a continuous operation condition by implication. A continuous operation term may be implied between a landlord and a tenant when the rent is a minimum fixed rent, additional rent is contingent upon revenue in a retail tenant, and the landlord seeks ejectment. But it cannot be implied as to an anchor tenant by another tenant, absent express language to that effect. United Dominion Realty Trust v. Wal-Mart Stores, 307 S.C. 102, 105-106 (413 SE2d 866) (App. 1992); Columbia East Assoc. v. Bi-Lo, Inc., 299 S.C. 515, 521-522 (386 SE2d 259) (App. 1989). See also Piggly Wiggly Southern v. Heard, 261 Ga. 503 (405 SE2d 478) (1991); DPLM, Ltd. v. J. H. Harvey Co., 241 Ga. App. 219 (526 SE2d 409) (1999); Kroger Co. v. Bonny Corp., 134 Ga. App. 834 (216 SE2d 341) (1975).

Here, there is nothing ambiguous about the plain and clear meaning of this lease, and the courts must apply such meaning. See C.A.N. Enterprises v. S.C. Health & Human Svcs. Financial Comm., 296 S.C. 373, 378 (373 SE2d 584) (1988); see also Columbia East Assoc. v. Bi-Lo, Inc., supra at 520.

2. Paragraph 7 provided that, without Winn-Dixie’s written consent, only retail or “service stores” will be allowed in the shopping center. After February 1999, Wal-Mart used the White Horse Plaza store as a nonretail warehouse. However, Brunner disputed that the use by Wal-Mart as a warehouse did not come within the meaning of “service store.” Further, paragraphs 6 and 7 were in no way linked or required to be construed together.

(a) If Wal-Mart used the White Horse Plaza store in violation of its lease and the lease of Winn-Dixie, then there exists a factual issue whether or not Winn-Dixie gave notice of a demand to cure such partial breach of the terms of the lease or whether Winn-Dixie waived such partial breach by not asserting it. While allowing Wal-Mart to use the store as a warehouse might constitute a partial breach of its lease by Brunner’s failure to enforce the lease for Winn-Dixie’s protection, such a partial breach would not excuse Winn-Dixie from its duty to perform and pay rent. At most, Winn-Dixie would have a factual issue as to a set off for any damages that such use caused to its leasehold interest.

(b) Although Winn-Dixie was liable for the rent due, so that summary judgment was proper, factual issues for trial remained as to whether or not Wal-Mart’s use of the store as a warehouse factually came within use as a “service store” within paragraph 7 and if not, then what if any damages should be set off against the rent due.

Case No. A00A1699

3. Winn-Dixie contends that the trial court erred in denying its motion to open default. We do not agree.

The trial court allowed Winn-Dixie to file its motion to open a default under OCGA § 9-11-55 (b), because it had not given WinnDixie proper notice of the entry of default judgment under OCGA § 15-6-21, which would allow timely appeal. See Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980); Vangoosen v. Bohannon, 236 Ga. App. 361 (511 SE2d 925) (1999). In considering the merits of the motion, the trial court pointed out that Winn-Dixie should have been on notice of the identical suits for successive months’ rent, and instead of identical suits being a meritorious reason to open default, such serial suits for each month’s rent should have made Winn-Dixie more vigilant. The trial court found that the sole reason for default was the negligence of the movant, so that there was no providential cause, excusable neglect, or a proper case. See OCGA § 9-11-55 (b); Tauber v. Community Centers Two, 235 Ga. App. 705, 706-707 (3) (509 SE2d 662) (1998); Patel v. Gupta, 234 Ga. App. 441 (507 SE2d 763) (1998).

4. Winn-Dixie set forth that the trial court erred under OCGA § 9-11-60 (d) (3) and failed to exercise its discretion within term to set aside the default judgment. We do not agree.

Winn-Dixie contends that there exists a nonamendable defect upon the face of the judgment: “the provisions of Paragraph 6 of the lease agreement do not provide a co-tenancy clause and the same do not require Wal-Mart to remain open for business to the public in order for the lease to continue to be in full force and effect.” In light of Division 1, such contention lacks merit and is controlled by Division 1.

The inherent power of a trial court to set aside any judgment within term is a matter of the exercise of sound discretion. Discretion means that the trial court, for any meritorious reason, could have set aside the judgment. Refusal to set aside a judgment, absent a clear abuse of discretion, will not be reversed by this Court. T. J. Brooklyne, Inc. v. Sullivan 75 L. P., 239 Ga. App. 588, 589 (521 SE2d 644) (1999). The trial court obviously realized that it had the inherent power to set aside a judgment because it exercised such power to set aside the October 21, 1999 judgment where Winn-Dixie had not received timely notice to preserve its appeal rights. Having demonstrated that it had such inherent power by setting aside the earlier default judgment, the trial court considered the OCGA § 9-11-55 (b) motion on its merits, denied it, and reentered the default judgment on January 10, 2000. Legally and factually, Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 337 (1) (454 SE2d 203) (1995), has no application in this case because there, “it is apparent that the trial court believed that the default judgment could not be set aside unless the criteria of OCGA § 9-11-60 (d) were satisfied.” Here, the trial judge demonstrated not only that he had such power, but he exercised such power.

Decided August 8, 2000

Reconsideration denied August 28, 2000

Kilpatrick Stockton, Robert P. Sentell III, Mark B. Williamson, for appellant.

Dye, Tucker, Everitt, Long & Brewton, John B. Long, for appellee.

Judgment affirmed.

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


text:
    A00A1812.
    A00A1813.
    MOORE v. PITT-DESMOINES, INC. et al. R & L CARRIERS, INC. v. PITT-DESMOINES, INC.
    (538 SE2d 155)
   Eldridge, Judge.

John W. Moore was a relief driver riding in a R & L Carriers, Inc. tractor-trailer driven by his co-worker Shawn Andre Searcey when the vehicle was rear-ended by a Pitt-DesMoines, Inc. tractor-trailer driven by Robert Thomas Cheatham. Moore collected workers’ compensation from R & L Carriers for his injuries and sued Cheatham and Pitt-DesMoines for his injuries; R & L Carriers intervened to protect its subrogation lien. The trial court granted summary judgment to the defendants. We reverse, because there exists a jury issue as to negligence.

In the early morning hours of July 3, 1996, four tractor-trailers in convoy traveled west along Interstate 20 from South Carolina to Atlanta. The lead vehicle was a Pitt-DesMoines tractor-trailer driven by Marvin Sharpe. The second vehicle was R & L Carriers’ truck driven by Searcey with Moore as relief driver. In the third vehicle, another Pitt-DesMoines truck, was defendant Cheatham followed by a fourth vehicle and a third Pitt-DesMoines tractor-trailer driven by Ralph. While in convoy, the Pitt-DesMoines drivers, including Cheatham, kept in constant communication by CB radio. Searcey monitored the CB talk of the Pitt-DesMoines drivers and heard Cheatham on the CB.

About 4:15 a.m., as the convoy approached Augusta near the overpass and Exit 64 for the 1-520 Bobby Jones Expressway Interchange, Searcey saw three broken 80-pound bags of cement in the road ahead with cement dust kicked up by vehicles in front of him; there was about two inches of cement dust lying on the road. Searcey was about 100 feet east of 1-520 when he first saw the cement dust in the air. Searcey’s truck was in the right lane, and another truck in the left lane caused the dust to become worse as they drove through it. At the same time that he saw the cement dust, Searcey heard Sharpe in the lead Pitt-DesMoines truck warn of the dust ahead over the CB; the evidence reflected that Sharpe had also seen a truck ahead drop the cement bags on the interstate. Searcey realized what was happening and woke Moore to warn him to brace himself. He was worried about hitting a car in the dust cloud and began pulling into the right emergency lane as soon as hé cleared the overpass.

Richard T. Dedeaux was driving between 65 and 70 mph in his car when he came to the overpass and saw the cement dust. He was passing Searcey in the left lane, following another tractor-trailer, when he entered the cement dust. He saw the cement dust about ten to fifteen seconds before he hit the truck ahead of him. The car-truck collision was near where Searcey finally stopped, which was on the far side of the interchange beyond the overpass. The truck he hit kept going and never stopped after the collision. Mrs. Dedeaux stated that apparently Cheatham’s truck was “flying towards us. . . . If they had been in our lane . . . we would have been dead.” Prior to the second collision, the R & L Carriers truck stopped to their right. After the second collision between the trucks, Dedeaux pulled his car over into the left emergency lane.

When Searcey first saw the dust on the overpass, he was driving 55 mph but immediately began slowing down because of the hazardous condition. At the time of impact, he had reduced his speed to about 20 mph when he was impacted from the rear. At the time of impact, he had pulled over into the emergency lane prior to stopping. When he cleared the overpass and was three-tenths of a mile away from the overpass, Searcey pulled into the emergency lane and began to stop. Cheatham followed Searcey into the emergency lane instead of staying in the right lane. Searcey stated that Cheatham’s tractor-trailer was straight after impact, which in his opinion indicated that Cheatham’s vehicle impacted Searcey’s vehicle without stopping, because Cheatham’s truck and trailer would have jackknifed. In Searcey’s opinion, Cheatham was going 30 to 40 mph on impact. After impact, the R & L Carriers tractor was jackknifed, the tractor sideways in the right lane and the trailer straight in the emergency lane.

Ralph, the third Pitt-DesMoines driver, successfully cleared the cement dust and stopped about three feet behind Cheatham. Two Pitt-DesMoines trucks, Searcey’s truck, and another truck cleared the overpass and cement dust without running into anything. Ralph did this, although Cheatham and Searcey were piled up in the emergency lane and right lane, and Dedeaux’s car was stopped in the left emergency lane.

According to Cheatham, he began to brake as he entered the cement dust on the overpass, but was unable to stop. He drove into the emergency lane and rear-ended the R & L Carriers tractor-trailer, which he followed. Cheatham denied hearing the CB warning to slow down and to look out ahead from the lead Pitt-DesMoines driver, Sharpe, although Searcey heard the warning. Cheatham testified that as he crossed the overpass he did not see anything ahead, but that when he came to the end of the overpass he drove into a thick fog. Cheatham claimed that the trucks were several hundred yards apart traveling along the interstate. He testified that he was at the speed limit and immediately began to break upon entering the dust cloud, which in his opinion dropped his speed to 30 or 40 mph; he was in the right lane. He saw a car’s brake lights at his left front wheel; then, instantly the truck’s taillights appeared ahead of him. He also stated that he saw the R & L Carriers vehicle stopped ahead of him on 1-20 before he hit it, and he was in the right lane. Cheatham stated that immediately after the collision Sharpe, the first Pitt-DesMoines driver, came back and stated that he passed safely in the left lane and that the R & L Carriers truck was jackknifed in the right lane. However, Cheatham also testified that the third Pitt-DesMoines driver, Ralph, saw his wreck and pulled up beside his truck.

The plaintiffs’ contention is that the trial court erred in granting summary judgment. We agree and reverse.

All drivers . . . using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him. Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, just what signals or warnings the driver of a leading vehicle must, in the exercise of due care, give before stopping or slowing up of his intention to do so, may not be laid down in any hard and fast or general rule. In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury.

(Citation and punctuation omitted.) Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976).

There here exists an issue of fact as to whether or not Cheatham maintained a proper lookout ahead of the road, because he did not see the cement dust cloud until he entered it near the end of the overpass. However, Searcey testified that both he and Sharpe saw the cement dust about 100 feet before the site where the broken cement bags were in the road at a time when the cloud was not as great as when Cheatham approached the cloud of dust. Presumably the unknown trucker, Searcey, Sharpe, Ralph, and even Dedeaux saw the cement dust prior to entering it. Thus, a factual issue of negligence exists as to why Cheatham did not see the massive cloud of cement dust that he called a ‘Tog” before he entered it. “What is a reasonable lookout depends on all the circumstances at the time and place. Issues of negligence should not be dealt with by summary adjudication but should be returned to the rightful province of the jury.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (1) (409 SE2d 524) (1991).

There also exists a factual issue as to why Cheatham was not alert enough to hear Sharpe’s CB warning to slow down because of the cement dust in the road, which Searcey heard and which should have alerted Cheatham, if he were insufficiently attentive to the road ahead to see the dust cloud. Failing to keep a proper lookout ahead and failing to be alert to the CB warning raise issues of fact as to whether Cheatham negligently failed to keep a proper lookout for danger and traffic when he was 100 to 200 yards behind Searcey. In contrast, four other trucks negotiated the cement cloud without hitting anything, which a jury can consider as a reasonable standard of care for a trucker.

Cheatham, testified that he did not begin to brake and to slow down until he entered the cement cloud. In contrast, even Dedeaux began to slow his car down and brake before entering the cloud. Searcey, Sharpe, Ralph, and the other truck driver were able to slow down and stop or negotiate the cement powder cloud without colliding with anyone at an appropriately reduced speed for the hazards and conditions then and there existing. Dedeaux testified that he was driving 65 to 70 mph before the collision; while Cheatham claimed to be going 55 mph in a heavily loaded, difficult to stop, tractor-trailer before the collision and that he was going 30 to 40 mph at the time of the collision. These are speeds that a jury might reasonably find were too fast for special road hazards, conditions, and traffic where both drivers rear-ended a lead vehicle. OCGA § 40-6-180. If Searcey were 100 to 200 yards ahead of Cheatham and was traveling at 20 mph at the time of the collision, then a jury could find that, relative to Searcey’s speed, Cheatham was traveling too fast for conditions, because he overtook Searcey to rear-end him. See Franklin v. Hennrich, 196 Ga. App. 372, 375 (2) (b) (395 SE2d 859) (1990); Smith v. Hardy, 144 Ga. App. 168, 169 (1) (240 SE2d 714) (1977).

Mrs. Dedeaux testified that it looked like Cheatham was about to hit them. Cheatham testified that the car’s taillight was at his left front wheel when he saw the truck’s taillights ahead of him. A jury could reasonably infer from this that Cheatham swerved to avoid striking the car, saw the truck’s taillights, and drove toward the lights, believing that the truck ahead was moving. Thus, there is an issue of fact whether or not Cheatham was negligent in failing to stay in his right lane by driving into the left lane toward Dedeaux and then driving into the emergency lane into Searcey. See OCGA § 40-6-48 (1); see generally Davis v. State, 236 Ga. App. 32 (510 SE2d 889) (1999).

The trial court used the wrong legal standard in granting summary judgment: “this court finds that there is insufficient evidence in the record to create a jury issue as to whether Cheatham was negligent so as to cause the Plaintiffs’ injuries.” Even under Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991), the standard is that the slightest evidence on each material element presented by the plaintiff is sufficient to create a jury issue. See Svc. Merchandise v. Jackson, 221 Ga. App. 897, 898-899 (1) (473 SE2d 209) (1996); see also Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 440-441 (491 SE2d 881) (1997) (physical precedent only); BBB Svc. Co. v. Glass, 228 Ga. App. 423, 425-429 (491 SE2d 870) (1997) (physical precedent only). Negligence is not susceptible to summary adjudication except where the evidence is plain, palpable, and indisputable that the respondent cannot present any slight evidence on each essential element of the action in rebuttal to create a jury issue. See generally Robinson v. Kroger Co., 268 Ga. 735, 745-748 (2) (493 SE2d 403) (1997). “The grant of summary judgment is authorized only when there is no remaining genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” (Emphasis in original.) Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 617 (1) (501 SE2d 497) (1998).

In Hambrick v. B. G. Swing Games Mgmt., 267 Ga. 597, 599 (481 SE2d 816) (1997), the Supreme Court set forth how the respondent must meet the burden on motion for summary judgment:

Decided August 9, 2000

Reconsideration denied August 28, 2000

Graydon W. Florence, Jr., for appellant (case no. A00A1812).

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., for appellant (case no. A00A1813).

Swift, Currie, McGhee & Hiers, Kristine J. Moschella, James T. McDonald, Jr., James L. Creasy III, for appellees.

If the moving party discharges this burden [under Lau's Corp., supra],the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. . . . It appears, therefore, that [movants] have carried their burden under Lau's Corp., supra, to point out an absence of evidence to support [plaintiffs'] case, but [plaintiffs] have not borne their responsibility to point to specific evidence giving rise to a triable issue.

(Punctuation omitted.) However, in this case, plaintiffs have pointed to specific evidence that creates material issues of fact for the jury's determination as to the defendants' negligence. Accordingly, summary judgment was not authorized.

Judgment reversed.

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