author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A93A2083.
    JARRETT v. THE STATE.
    (441 SE2d 843)
   McMurray, Presiding Judge.

Defendant was convicted of driving under the influence of alcohol with a blood alcohol concentration of .10 grams or more within three hours after operating a moving vehicle in violation of OCGA § 40-6-391 (a) (4); driving without a license in violation of OCGA § 40-5-20 (a) and operating a motorcycle without a helmet in violation of OCGA § 40-6-315 (a). The case was tried before a jury, but the evidence was not taken down or transcribed. However, the parties entered a transcript from recollection pursuant to OCGA § 5-6-41 (g) which transcript provided, in pertinent part, as follows:

“On March 20, 1992, Trooper P.B. Stowe of the Georgia State Patrol, while patrolling in Bartow County, observed the defendant, James Hugh Jarrett, walking north along Highway 61, about one mile north of the Paulding County line. The defendant was walking approximately one-hundred yards behind another person, who was later identified as Ronnie Jarrett, the nephew of the defendant. . . . After Trooper Stowe passed by the men as he drove south on Highway 61, he turned his patrol car around to question them, because both men appeared to be intoxicated. . . . When Trooper Stowe returned to where the men were walking, the defendant had disappeared. Upon questioning Ronnie Jarrett, Trooper Stowe placed him under arrest for pedestrian under the influence. The trooper placed Ronnie Jarrett in the patrol car, drove south along Highway 61 and spotted the defendant. . . . Ronnie Jarrett told the trooper that the men had been riding a motorcycle which had crashed. Trooper Stowe found the motorcycle, resting on its kickstand, parked behind some bushes in the front yard of a residence located on a hill off of the highway. The trooper stated it appeared the cycle had been wrecked. The trooper testified that it was very unlikely that Ronnie Jarrett could have driven the cycle, because Ronnie Jarrett has only one hand and the cycle — with controls on both sides of the handlebar — normally requires two hands to operate. The trooper noticed that the defendant had a fresh cut on his forehead and that Ronnie Jarrett had some abrasions around one of his ankles. . . . The defendant was extremely intoxicated and later registered a 0.33% blood-alcohol content on his intoximeter test conducted at the Bartow County Sheriff’s Department. . . . The defendant, when questioned by Trooper Stowe at the scene, denied driving the motorcycle. However, over defendant’s objection, Trooper Stowe testified that Ronnie Jarrett — who was not present at trial and did not testify — stated that the defendant had been driving the cycle and that he, Ronnie, had been a passenger. Ronnie told the trooper that the cycle had wrecked a couple of times that afternoon. The trooper testified that Ronnie Jarrett made this statement in the presence of the defendant and that the defendant made no direct response to it. However, the trooper also testified on cross examination that the defendant consistently denied driving the cycle at other times during the questioning. . . .

“The defendant. . . testified that he owned the motorcycle which the trooper found. . . . The defendant testified that ... he had not driven the cycle for over a year before that day. On the day of the arrest, the defendant testified that he was trying to sell his cycle to two friends named Jim and Bruce Kelly. To prepare it for sale, the defendant and his nephew Ronnie Jarrett worked on the cycle that day while drinking beer. The defendant drank his last beer about 4:00, approximately two hours before his intoximeter test. Later, Jim and Ronnie took the defendant’s cycle for a test drive, while the defendant rode close by as a passenger on the back of Bruce’s motorcycle. ... The defendant testified that the four men — Jim and Ronnie on the defendant’s cycle and Bruce and the defendant on Bruce’s cycle — drove to Taylor Scrap Yard located on Highway 61 near the Paulding-Bartow County line. Jim and Bruce then drove on Bruce’s cycle to look at another motorcycle in Rockmart, Georgia and left the defendant, Ronnie, and defendant’s cycle at the scrap yard, where Ronnie wanted to look at an old pickup. The defendant testified that he remained at the scrap yard, because he felt certain that Jim and Bruce would return to pick them up. . . . The defendant stated Bruce and Jim did not return as the closing time of the scrap yard approached. The defendant stated that he and Ronnie pushed the cycle out of the scrap yard lot and' pushed it to where Trooper Stowe later found it. The defendant and his nephew then began walking down Highway 61 with the stated intention of calling a relative in Paulding [County] to come pick them up. . . . The defendant testified that, because he and Ronnie were intoxicated, the men fell with the motorcycle as they pushed it. The defendant stated that he later fell down a bank on the side of the road and speculated that this fall occurred when Trooper Stowe passed by. . . . The defendant admitted that he was very intoxicated and that he did not have a valid driver’s license. However, he denied driving his motorcycle at any time on March 20, 1992 and said that his friend Jim was the only person who drove it. . . . The defendant stated that he had not seen Ronnie in a long time and that he had recently learned that Ronnie was in jail in Atlanta. The defendant had not seen Jim and Bruce since March 20, 1992. The defendant testified that he thought Jim and Bruce were working somewhere in Florida. . . .

“Since Ronnie Jarrett was not present at trial, prior to opening arguments, counsel for the defendant made an oral motion in limine to exclude from evidence any statement made by Ronnie Jarrett to Trooper Stowe on the grounds of hearsay. The Court granted this motion. ... As the trial began and Trooper Stowe was testifying, that Court clarified its ruling on defendant’s motion in limine. The Court stated that any statement made by Ronnie Jarrett in the presence of the defendant would be admissible as an exception to the hearsay rule. The Court later overruled defendant’s timely objection to Trooper Stowe’s testimony concerning Ronnie Jarrett’s statements. The defendant’s objection was based upon defendant’s belief that any statement made by Ronnie Jarrett was inadmissible hearsay, particularly since Ronnie Jarrett was not present at trial and was not available for cross-examination.”

This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant contends the trial court erred in permitting Trooper Stowe’s testimony regarding Ronnie Jarrett’s on-the-scene utterance that defendant operated the motorcycle. Defendant argues that this testimony was inadmissible hearsay. This contention is without merit.

Trooper Stowe may testify as to what “he saw and heard while in the defendant’s presence. See Broome v. State, 141 Ga. App. 538, 539, 540 (2) (233 SE2d 883); Moore v. State, 240 Ga. 210, 212 (2) (240 SE2d 68); Grindle v. State, 151 Ga. App. 164 (2) (259 SE2d 166).” Henderson v. State, 170 Ga. App. 482, 483 (317 SE2d 343). This holding is based on the rule that “a witness may testify as to what he saw and heard in the defendant’s presence (Reeves v. State, 194 Ga. App. 539, 540 (391 SE2d 35)) even where the [out-of-court declarant] does not testify and is not available for cross-examination. . . . See Reeves, supra; Sosebee v. State, 190 Ga. App. 746, 750 (380 SE2d 464); Chambers v. State, 183 Ga. App. 874 (360 SE2d 438); Green v. State, 175 Ga. App. 849 (335 SE2d 4); Latimore v. State, 170 Ga. App. 848 (318 SE2d 722); Henderson v. State, 170 Ga. App. 482 (317 SE2d 343); see Broome v. State, [supra at 540].” Hartley v. State, 207 Ga. App. 683 (428 SE2d 683). The dissent states that Faircloth v. State, 253 Ga. 67 (316 SE2d 457), demands reconsideration of this evidentiary standard and recognizes that others have referred to this precept of Georgia law as “folklore.” However, neither outside criticism of Georgia’s law nor the holding in Faircloth v. State, 253 Ga. 67, supra, requires reversal of the long-standing rule that a witness may testify as to what he saw and heard in the defendant’s presence.

In Faircloth, the trial court admitted a law enforcement officer’s testimony regarding an out-of-court statement uttered by the victim (apparently in the defendant’s presence) that the defendant had “hit her several times and put a gun to her head.” Id. at 68 (3), 69, supra. The Supreme Court noted that the victim’s statement was uttered over a month before defendant killed the victim and concluded that the officer’s testimony is hearsay. However, the Supreme Court did not overturn the rule that a witness may testify as to what he saw and heard in the presence of the accused. The holding in Faircloth provided only that “any error in [the] admission [of hearsay] in this case would be harmless [since the hearsay] was cumulative of other evidence. . . .” Faircloth v. State, 253 Ga. 67, 68 (3), 69, supra.

“The ground of admission of the statement of a third person in the presence of the accused is that the omission to controvert the statement affords a basis for an inference of its truth. Such statement is admissible in evidence, to show that it calls for a reply, and to show the acquiescence of the accused.” Thomas v. State, 143 Ga. 268, 269 (3) (84 SE 587). In the case sub judice, Trooper Stowe testified “that Ronnie Jarrett made [the] statement [that defendant had been driving the cycle] in the presence of the defendant and that the defendant made no direct response to it.” Consequently, the trial court did not err in allowing the testimony as “an incriminating admission to be considered along with the other circumstances in inferring the guilt of the accused.” Thomas v. State, 143 Ga. 268, 269 (3), supra. To say otherwise ignores recent authority affirming that a witness may testify as to what he saw and heard in the defendant’s presence even where the out-of-court declarant does not testify and is not available for cross-examination. Reeves v. State, 194 Ga. App. 539 (1), 540, supra. Compare Mallory v. State, 261 Ga. 625 (409 SE2d 839), where the Supreme Court held that a comment on a defendant’s silence or failure to come forward will not be allowed under the authority of OCGA § 24-3-36.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., Cooper, Blackburn and Smith, JJ., dissent.

Blackburn, Judge,

dissenting.

I must respectfully dissent, as I believe that the arresting officer’s testimony recounting the out-of-court statement of the defendant’s nephew constituted inadmissible hearsay.

As noted by the majority opinion, this court has frequently held that a witness may testify as to what a third party said in the presence of the defendant, even where the out-of-court declarant is unavailable at trial. Broome v. State, 141 Ga. App. 538 (233 SE2d 883) (1977); Henderson v. State, 170 Ga. App. 482 (317 SE2d 343) (1984), and cases cited therein. However, the Supreme Court has since disapproved of that rule. See Faircloth v. State, 253 Ga. 67 (316 SE2d 457) (1984).

Decided January 11, 1994

Reconsideration denied March 11, 1994

Thomas N. Brunt, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

In Faircloth, the Supreme Court acknowledged the modern trend of admitting out-of-court statements where the declarant is present at trial and available for cross-examination, but considered such testimony inadmissible hearsay where the declarant is unavailable at trial. In so concluding, the court emphasized that it is the out-of-court declarant whose veracity is at issue, and where the actual declarant is unavailable at trial, the defendant’s right of confrontation is inadequately protected by cross-examination of the witness who recounts the out-of-court statements.

The legal basis for this court’s past treatment of such out-of-court declarations as non-hearsay, i.e., that any declaration made in the presence of an accused is admissible, has been criticized as a “folklore,” and “not even good folklore” at that. Agnor’s Ga. Evid. (2nd ed.), § 11-9, p. 336. Such criticism may not require this court’s reconsideration of the issue, but the Supreme Court’s decision in Faircloth demands it.

Unlike Faircloth, where any error in the admission of the hearsay was rendered harmless by other, admissible evidence regarding the matter, the nephew’s out-of-court declaration establishing the defendant as the operator of the motorcycle was the strongest, if not only, evidence on that point and was critical to the instant case. Under these circumstances, the erroneous admission of the nephew’s declaration cannot be regarded as harmless, and the defendant’s conviction should be reversed.

I am authorized to state that Chief Judge Pope, Judge Cooper and Judge Smith concur in this dissent.

       The same conclusion cannot be reached as to Trooper Stowe’s testimony that Ronnie Jarrett informed him that defendant “had been driving the cycle. . . .” This accusation was uttered immediately after commission of the crimes charged and was therefore so nearly connected to the criminal acts so as to be free from suspicion of device or afterthought. OCGA § 24-3-3; Land v. McClure, 135 Ga. App. 243, 244 (2) (217 SE2d 600).


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A93A2138.
    HILL v. THE STATE.
    (441 SE2d 863)
   Beasley, Presiding Judge.

Hill was charged in a multi-count indictment with aggravated assault with intent to commit robbery (two counts), OCGA § 16-5-21 (a) (1); aggravated assault with a deadly weapon (three counts), OCGA § 16-5-21 (a) (2); armed robbery (two counts), OCGA § 16-8-41 (a); possession of a firearm during the commission of a crime, OCGA § 16-11-106 (b) (1); possession of a firearm by a convicted felon, OCGA § 16-11-131 (b); and simple battery, OCGA § 16-5-23. He was tried jointly with co-defendant Christopher Houser. Hill appeals from the judgments of conviction and sentences entered on a jury verdict of guilty as to all counts, and from the denial of his motion for new trial. We affirm.

Mr. and Mrs. Harrell were at home at 11:00 p.m. on the evening of August 4, 1991, when Mrs. Harrell heard a noise at the back door. They left the house together through the carport door and walked into the back yard to investigate. Mr. Harrell shined a flashlight in the direction of the noise and they observed Hill with his coat pulled up, hiding behind the house. Mr. Harrell told his wife to run into the house, but before she could, Hill grabbed her. He was carrying a “real shiny” gun, which he pointed at her. Mrs. Harrell testified that Hill, “Hit me with [the pistol], knocked me about 10 feet. ... He told me he would blow my brains out.” Mr. Harrell testified that he was hit in the head and dragged into the house, and when “I got to, I was bloody all over, and I had a gash in my head . . . and a man was standing with a shiny pistol saying he was going to blow my brains out.” He identified Hill as the man wielding the pistol. Defendant demanded money which Mrs. Harrell gave him.

The house was well illuminated and both Mr. and Mrs. Harrell observed the perpetrators for at least 30 minutes. They both described Hill as tall, wearing a pullover jacket with a hood on his head. Mr. Harrell described the second perpetrator (Houser) as being short and husky. Both victims recognized him because he had purchased eggs from them at their home several days earlier.

Mr. Harrell testified that he identified defendant’s photograph from a photographic display at the sheriff’s department as “the tall one . . . [t]he one that held the gun in my face.” Mrs. Harrell also identified both perpetrators from a series of photographs shown to her at the sheriff’s department. Both victims also identified photographs of Hill and his co-defendant from a display shown to them at their home, but were unable to identify defendants’ photographs at trial. Both victims unequivocally identified their two assailants in the courtroom as the defendants on trial.

1. Appellant contends the court erred in allowing evidence of his involvement in another armed robbery on the ground that there was insufficient showing of similarity.

Through an offer of proof, the State established that at about 10:00 p.m., on the night following the attack on the Harrells, the proprietor of a convenience store was preparing to close for the evening when defendant entered wielding a small chrome-plated pistol and demanding cash, which was given. The victim observed defendant closely and later without any hesitation identified his photograph at the police station. He had described the perpetrator’s clothing to the police as consisting of a baseball cap and a pair of black shorts with a white and gray striped pattern along the sides. The witness was shown a pair of shorts which had been seized from defendant’s bedroom on August 9, and he identified them as the pair Hill had worn during the armed robbery.

Defendant objected to the admissibility of the independent evidence on the ground that it is factually dissimilar. Finding sufficient indicia of similarity, the court ruled the evidence admissible. The jury was later instructed, after the court advised generally what limited purpose evidence of other transactions is admissible for, that “you are strictly limited in your consideration of the evidence as to the state of mind; for example, the knowledge or intent of a defendant.” The extrinsic evidence was sufficiently similar in degree to show some logical connection between the two (both occurring in close proximity as to time and place and involving nighttime armed robbery with a similarly-described gun in which cash was taken). See, e.g., Lynd v. State, 262 Ga. 58, 64 (12) (414 SE2d 5) (1992); Berynk v. State, 182 Ga. App. 329 (2) (355 SE2d 753) (1987) (Beasley, J., concurring specially). USCR 31.3 (E) allows the State to introduce evidence of “similar transactions or occurrences which . . . are immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” The evidence was admissible, based on these and related authorities.

Defendant’s other ground of objection, argued in his brief, is not embraced within a fair reading of the enumeration of error and is not addressed. Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991).

2. Defendant contends that the court abused its discretion in allowing the State’s chief investigator to remain in the courtroom as an exception to the sequestration rule, even though he did not testify as the first witness.

At a Jackson v. Denno hearing prior to trial, defendant invoked the rule of sequestration and requested that it include Sergeant Lowry. The State advised the court that he is chief investigating officer and requested that he be permitted to remain in the courtroom. The court replied, “I will probably allow that then, especially if he goes first.” The State acknowledged that it expected to call him as its first witness but that he would be recalled at the conclusion of the evidence and that his presence was required to assist in the prosecution which was expected to include “17 witnesses and 23 pieces of evidence.” The court made no specific ruling at that time. The objection was renewed and overruled prior to the presentation of trial evidence.

Defendant is incorrect in interpreting the court’s original statement as allowing the investigator to remain only if he were to testify first. The State explained the need for his presence throughout the trial even though he was expected to be recalled at the conclusion of the evidence. The court accepted the State’s explanation and allowed him to remain. We find no abuse of discretion. See Disby v. State, 238 Ga. 178 (1) (231 SE2d 763) (1977); Jarrell v. State, 234 Ga. 410 (6) (216 SE2d 258) (1975); Thayer v. State, 189 Ga. App. 321 (3) (376 SE2d 199) (1988); Mathews v. State, 183 Ga. App. 224 (1) (358 SE2d 639) (1987).

3. Defendant contends that the court improperly admitted into evidence Mr. Harrell’s identification of him in a photographic display.

At the Jackson u-. Denno hearing Mrs. Harrell explained that she was first shown a series of six or eight photographs at the sheriff’s department on the day after the attack and that she was able to select Hill’s photograph “immediately.” She was not told that police had a suspect in custody or that his photo was among the ones being shown her.

She and her husband were later shown a series of photographs at their home. The couple separately viewed the photos. Mrs. Harrell testified: “I don’t know who he picked, and he didn’t know who I picked.” She selected Hill’s photograph “at once.” She had the opportunity to observe the perpetrators during the commission of the crime under well lighted conditions, for “[a]t least 30 minutes or maybe longer. It seemed like eternity.”

Mr. Harrell testified that he identified the two assailants from a book of photographs at the sheriff’s department, and again from a series of photographs shown to him at his home.

The investigating officer testified that Mr. Harrell did not make a positive identification at the sheriff’s department, but that he did identify Hill from the photographic display shown to him at his home. The State offered into evidence only Mr. Harrell’s identification of Hill from the photographic display shown at his home, as that was the only “clear-cut” identification of Hill. The court allowed testimony of that identification to be heard by the jury.

Hill contends that the identification of him by Mr. Harrell at his home was tainted because his was the first photo shown to the victim. Assuming arguendo that an objection on this ground was properly raised below, it is nevertheless without merit. The photographic display was not impermissibly suggestive so as to taint the in-court identification. See Denegal v. State, 193 Ga. App. 238 (1) (387 SE2d 434) (1989). The victims were shown a series of photographs from which they selected Hill without any hesitation. The in-court identification was likewise certain. There is no indication of any suggestion by police that Hill was the perpetrator which would render the pre-trial identification procedures impermissibly suggestive.

4. Defendant contends that the court erred in overruling his motion to suppress and admitting into evidence a pair of shorts that had been seized from the bedroom he occupied in his mother’s home.

Hill filed a pre-trial motion to suppress the evidence seized during a warrantless search of his mother’s residence; a suppression hearing was held during trial prior to the introduction of the evidence.

Police requested permission from Mrs. Hughes (Hill’s mother) to search her residence for fruits of the crime. She agreed, signed a written waiver and was present during the search. When asked whether defendant pays rent, Mrs. Hughes testified: “Well, he gives me money, yes. He gives me 50, $60. . . . Every week he gets paid.” She stated that she did not have permission to enter defendant’s room and that she “didn’t go in there too often.”

The officers involved in the search were investigating both the Harrell robbery and the convenience store robbery. They seized two pairs of tennis shoes and a pair of black shorts with white stripes down the side from defendant’s bedroom. The shoes were taken in connection with the Harrell robbery but apparently were not necessary to that investigation and were returned to Mrs. Hughes. The shorts were taken as evidence in the convenience store robbery.

Assuming arguendo that the search of Hill’s bedroom and seizure of the shorts were constitutionally impermissible, introduction of that evidence to demonstrate his participation in the convenience store robbery was harmless error with respect to the crimes being tried. Even in the context of the similar offense, the evidence was merely cumulative of the proprietor’s positive identification of Hill as the perpetrator. (See Division 1, supra.) To identify also his clothing did not add materially more to the proof that it was defendant who committed the similar crime.

5. Defendant contends the court erred in overruling his hearsay objection to testimony by the investigating officer of a statement made to police by co-defendant Houser implicating him (Hill) in the convenience store robbery.

Assuming arguendo that the statement was inadmissible hearsay, it was merely cumulative of the victim’s positive identification of Hill as the perpetrator of the similar crime.

6. Defendant asserts the general grounds. With respect to the count charging both defendants jointly with aggravated assault with a deadly weapon consisting of fists, it may reasonably be inferred from the circumstances and injuries described that Mr. Harrell was struck in this manner even though he was not in a position to have seen his assailant. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of each offense charged.

Decided February 28, 1994

Reconsideration denied March 11, 1994

Angie M. Coggins, for appellant.

Edward D. Lukemire, District Attorney, Michael J. Moore, Assistant District Attorney, for appellee.

7. Defendant challenges his sentence of life imprisonment plus 20 years on the ground that it is excessive.

The sentence was within statutory limits. See OCGA § 16-8-41 (b). “ ‘This court will not review for legal error any sentence which is within the statutory limits — as in the instant case. (Cits.) Any question as to the excessiveness of a sentence which is within legal limits should be addressed to the sentence review panel, as provided in (OCGA § 17-10-6).’ [Cit.]” Sinkfield v. State, 262 Ga. 239 (416 SE2d 288) (1992).

Defendant further contends that he was entitled to a pre-sentence investigation by the probation department. He is entitled under OCGA § 17-10-2 (a), and was afforded, a pre-sentence hearing at which he presented evidence and argument in mitigation of punishment. Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992). Whether or not to order a probation report to determine whether defendant’s sentence should be suspended or whether he should be placed on probation is within the sound discretion of the trial judge. Jackson v. State, 248 Ga. 480, 484 (6) (284 SE2d 267) (1981). See OCGA § 42-8-34 (b). Based on evidence of the severe beatings inflicted on the elderly victims by Hill, the court was not disposed to consider probated or suspended sentences. It was not an abuse of discretion to fail to order a pre-sentence probation report under the circumstances.

Judgment affirmed.

Cooper and Smith, JJ., concur.


text:
    A93A2265.
    KNIGHT v. STURM et al.
    (442 SE2d 255)
   Beasley, Presiding Judge.

On January 6, 1992, Knight filed a complaint against Dr. Hiram Sturm, his physician-partners, his medical partnership, and the manufacturers and sellers of liquid silicone used as an injectable substance in humans.

Plaintiff was referred by her physician, Dr. Forshner, to Dr. Sturm for treatment of facial scarring that resulted from plaintiffs chronic acne problems. On January 16, 1986, Dr. Sturm, a dermatologist, began the silicone injections which are the subject of this lawsuit. Plaintiff testified that Dr. Sturm told her that the silicone could harden but that if it did, it could easily be treated with cortisone injections. The final injection was administered by Dr. Sturm on April 7, 1988, and plaintiff was last treated by him on September 26, 1988.

In either December 1988 or January 1989, plaintiff began to notice “knots” arising on her face in those places where silicone had been injected. At this time, plaintiff was under the care of Dr. Labrador. On March 16, 1989, Dr. Labrador informed plaintiff that the use of liquid silicone had not been approved by the FDA, and he advised plaintiff that the silicone knots “need to be” surgically removed from her face. Dr. Labrador excised two or three within a week. Plaintiff testified that at no time did Dr. Sturm inform her that liquid silicone injections were not approved by the FDA or that adverse reactions were possible. Dr. Sturm testified otherwise.

On January 10 or 11, 1990, plaintiff’s skin became swollen, red, and inflamed in several locations on her face. Efforts to reduce the swelling through medication proved ineffective, and in 1991 she returned to Dr. Labrador to have the inflamed areas surgically excised and silicone removed. This surgery has caused new scarring to her face. In addition, her face has continued to swell and become inflamed, and numerous lesions have formed.

The trial court granted the defendant physicians’ motion for summary judgment, on the ground that plaintiffs claims against these defendants began to run on March 16, 1989, and this action was not filed within the two-year medical malpractice statute of limitation, OCGA § 9-3-71 (a).

1. Plaintiff contends that the limitation period did not begin to run until January 10, 1990, when her face erupted in an inflammatory reaction never before experienced by her.

OCGA § 9-3-71 (a) states, “Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”

“The Supreme Court has recognized that ‘there are four points at which a tort cause of action may accrue: (I) (w)hen the defendant breaches his duty; (II) when the plaintiff is first injured; (III) when the plaintiff becomes aware of his injury; or (IV) when the plaintiff discovers the causal relationship between his injury and the defendant’s breach of duty.’ [(Emphasis in original.)] [Cits.]” Jones v. Lamon, 206 Ga. App. 842, 844 (1) (426 SE2d 657) (1992).

The evidence in this case shows without conflict that plaintiff discovered or became aware of the injury no later than March 16, 1989, when Dr. Labrador informed her that the silicone needed to be surgically removed because of the knots on her face, which knots actually manifested themselves two or three months earlier than that date. Consequently, the limitation period began to run at the latest by that date (point III). See Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993), and Jones, supra (where several concurrences and dissents could not agree on whether the statute begins to run when the plaintiff is first injured (point II) or when the plaintiff becomes aware of the injury (point III)); see also Bryant v. Crider, 209 Ga. App. 623 (3) (434 SE2d 161) (1993).

In reliance upon Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773 (1) (278 SE2d 653) (1981), plaintiff argues that the knots which arose on her face did not begin the running of the limitation period because Dr. Sturm advised her that this was a normal reaction to his treatment. However, he did not advise her that the necessity of surgical removal of the silicone was also normally to be expected. It was, at the latest, at the time she learned of this in March 1989 that the statute began to run.

2. Plaintiff contends that OCGA § 9-3-71 (a) is inapplicable to her additional claims, which are based not on medical malpractice, but rather on fraudulent representations, fraudulent concealment of material information, breach of express and implied warranties, and breach of contract.

The medical malpractice statute of limitation applies to malpractice actions founded upon either tort or contract theories of liability. Johnson v. Gamwell, 165 Ga. App. 425, 426 (301 SE2d 492) (1983); Verre v. Allen, 175 Ga. App. 749, 750 (334 SE2d 350) (1985). It applies to all claims arising out of a medical malpractice cause of action. Ballard v. Rappaport, 168 Ga. App. 671 (310 SE2d 4) (1983). A suit is a medical malpractice action where, as here, it calls into question the conduct of a professional in his area of expertise. Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (2) (354 SE2d 872) (1987). OCGA § 9-3-71 (a) is applicable to plaintiff’s fraud and contract claims.

“ ‘The statute of limitation is tolled only if defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action. . . .” OCGA § 9-3-96. . . . Once (plaintiff) sought the diagnosis or care of another doctor who informed (her) of the existence of medical problems, (she was) no longer deterred from learning the true facts.’ [Cit.]” Padgett v. Klaus, 201 Ga. App. 399, 400 (411 SE2d 126) (1991).

3. Plaintiff argues that the defendant physicians may not invoke the protection of the statute of limitation found in OCGA § 9-3-71, because their actions were unauthorized by law.

In pertinent part, OCGA § 9-3-70 states, “As used in this article, the term ‘action for medical malpractice’ means any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person. . . (Emphasis supplied.)

Plaintiff does not dispute that Dr. Sturm as a duly licensed physician was a person authorized by state law to perform medical services. Plaintiff argues that Dr. Sturm was not a person authorized by federal law to perform this particular service, because he was not licensed to participate in the clinical study of this experimental device.

Plaintiff’s expert testified that liquid silicone was supplied by the manufacturer under FDA restrictions for investigative purposes only from 1976 through 1981 and that Dr. Sturm was not one of the investigators certified by the FDA to participate in the original study. Dr. Sturm testified that although he was not licensed by the FDA to do investigational work with the silicone procedure, it was only during this earlier period that exclusively persons so licensed could administer this procedure; during this period, he did not administer it; and he ceased the procedure using liquid silicone when he was advised that the FDA was considering it illegal. As previously stated, Dr. Sturm performed the silicone injection procedures on plaintiff between 1986 and 1988. Plaintiff’s expert’s testimony does not support her allegation that Dr. Sturm was not a person authorized by federal law to perform this service.

Plaintiff’s expert did testify that the FDA has never approved liquid silicone for injection for any cosmetic purpose; that as a consequence, the injection of liquid silicone into the skin for any purpose required the patient’s approval on an experimental treatment consent form, even for the original designated investigators; and that there is no evidence that plaintiff signed an experimental procedure consent.

Such failure by Dr. Sturm to obtain Knight’s required consent would mean that he did not perform this service in a lawfully authorized manner. However, he would still be a “person” authorized by law to perform such service. Accord Central Anesthesia Assoc., P. C. v. Worthy, 254 Ga. 728 (333 SE2d 829) (1985); Poss v. Callaway, 185 Ga. App. 247 (1) (363 SE2d 782) (1987).

Judgment affirmed.

Cooper and Smith, JJ., concur.

Decided February 28, 1994

Reconsideration denied March 11, 1994

Gleason, Davis & Dunn, John W. Davis, Jr., David J. Dunn, Jr., for appellant.

Long, Weinberg, Ansley & Wheeler, Robert D. Roll, Daniel W. Sweat, for appellees.


author: Pope, Chief Judge.

text:
    A93A2337.
    MORGAN v. THE STATE.
    (442 SE2d 257)
   Pope, Chief Judge.

William Hand Morgan, Jr., was tried before a jury and found guilty of DUI in violation of OCGA § 40-6-391 (a) (4). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. The Georgia State Patrol issued Morgan a Uniform Traffic Citation (UTC), accusing him of DUI in violation of OCGA § 40-6-391. In response to a written motion to quash the accusation for being vague, the solicitor amended the citation to specify alternative violations of OCGA § 40-6-391 by including a reference to subsections (a) (1) and (a) (4). Morgan amended his motion, contending that the solicitor’s specification of alternative violations in a single UTC made the accusation duplicitous. After a hearing, the amended motion to quash was overruled and this ruling is enumerated as error. Although the State argues that a motion to quash is not a proper procedural vehicle to raise the objection of duplicity, we treat the amended written motion to quash on this ground as a special demurrer. Garcia v. State, 207 Ga. App. 794 (429 SE2d 164) (1993); Carter v. State, 155 Ga. App. 49 (1) (270 SE2d 233) (1980).

Morgan argues that the solicitor’s amendment to the UTC to specify violations under OCGA § 40-6-391 (a) (1) and (a) (4) amounts to an impermissible joining of two distinct offenses in a single count, relying on Peters v. State, 175 Ga. App. 463 (1) (333 SE2d 436) (1985) . In Peters, this court held that OCGA § 40-6-391 (a) (1) and (a) (4) proscribe separate and distinct crimes, such that an accusation which alleged in a single count alternative violations of either subsection was duplicitous and subject to a special demurrer. However, Morgan’s reliance upon Peters is misplaced. In the subsequent whole court decision in Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986) , it was held that while there is authority for the construction of OCGA § 40-6-391 Morgan would place upon it, “our Supreme Court has clearly held otherwise. ‘Subsection (a) (4) simply sets out an alternative method of proving the crime established by the DUI statute.’ . . . [Cits.] Accordingly, to the extent that they are inconsistent with the Supreme Court’s holding that OCGA § 40-6-391 establishes the one crime and that subsections (a) (1) and (a) (4) merely set out two different methods of proving the same crime, Peters and . . . any similar cases are hereby overruled.” (Emphasis omitted.) Hogan, supra at 535. The precedential authority of Hadden v. State, 180 Ga. App. 496 (3) (349 SE2d 770) (1986) likewise must be questioned in light of the binding contrary authority of Hogan v. State, supra, and Morgan’s reliance upon that case also is misplaced. Thus, while it is impermissible to join distinct offenses in a single count of an indictment or accusation, it is also well settled that OCGA § 40-6-391 (a) establishes a single crime of driving while in a prohibited condition and that subsections (a) (1) and (a) (4) merely define different modes of committing that one crime. A charging instrument is not subject to the objection of duplicity or multifariousness where, as here, alternative methods of violating the one criminal statute at OCGA § 40-6-391 (a) are alleged in a single count. Kuptz v. State, 179 Ga. App. 150, 151 (4) (345 SE2d 670) (1986). See also Scott v. State, 207 Ga. App. 533, 534 (428 SE2d 359) (1993). The trial court correctly denied Morgan’s amended motion to quash on this ground. His additional argument, that the solicitor has no authority under OCGA § 17-7-71 (f) to amend a UTC, is raised for the first time on appeal and will not be considered. It is “well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.]” Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981).

2. Morgan moved in limine to exclude the results of a State-administered intoximeter test showing his blood-alcohol content at .22 grams percent, on the ground that he had been denied his right to an independent test pursuant to OCGA § 40-6-392 (a) (3). After a hearing, the trial court found that Morgan had abandoned any right to an independent blood test and denied the motion to suppress. This evidentiary ruling is enumerated as error.

Only the arresting officer testified at the suppression hearing. This officer testified that he followed Morgan’s vehicle for three miles, and that Morgan was traveling at sixty mph in a fifty-five mph zone and his truck was continuously weaving from the center lane to the white fog line. The officer detected the strong odor of alcohol on Morgan’s person and observed that his speech was slurred and his eyes were red and glassy. He asked Morgan to exit the vehicle and noticed that Morgan was unsteady on his feet. In response to the officer’s request that he perform a field sobriety test, Morgan tendered to the officer a pre-printed card which is captioned “Notice to Officers at Roadside Stop.” This card recites that a motorist’s manner of speech frequently supplies cause for suspecting that the motorist is under the influence of intoxicants and directs that the card, along with the bearer’s driver’s license and insurance card, be immediately tendered to an officer at a roadside stop after which no further communication by the bearer with the officer is necessary. On the reverse side of this card, in pertinent part, are invocations of the bearer’s right to remain silent, a refusal to participate in any field sobriety tests, refusal of consent to a search of the bearer’s person or automobile, a demand for the presence of counsel — named on the card — during any questioning, and, under protest, a stated willingness to submit to a test of breath, blood or urine. The notice also recites: “If after the administration of [the police] test, you decide to charge me with D.U.I. then I request that I ... be immediately afforded an additional test of my blood at the nearest available private facility at my own expense.” The officer examined this card briefly and returned it to Morgan. They discussed procedures and Morgan was at that time adamant about having a blood test. The officer told Morgan that, after he submitted to a test designated by the police, he could get any test he wanted. Morgan was informed of his implied consent rights both immediately after his arrest and also at the police station before the officer administered a breath test on the Intoximeter 3000. He was specifically informed that, after he took the police test, if he wanted an additional test the officer would be “happy to take him and get one.” The State-administered breath test showed Morgan’s blood-alcohol content to be .22 grams percent. Morgan then witnessed the administration of a breath test to another individual, whose reading was only .17 grams percent. Believing that his own behavior was not as erratic as that of the individual whose blood-alcohol content was lower than his own, Morgan demanded another breath test and the officer obliged. The reading on this second breath test was still .22 grams percent. Morgan made no further demand for additional testing of either his breath or his blood, and the officer made no further inquiry. Although Morgan tendered a pre-printed card asserting his right to a blood test before submitting to the State-administered breath test, the evidence authorized the finding that once he took the State’s test, he chose to demand a second breath test rather than insist upon a blood test, thereby abandoning the earlier demand. “Accordingly, [Morgan] was afforded the opportunity to obtain an independent test of his blood-alcohol content. The mere fact that [he] chose to repeat the breath test administered by the arresting officer furnishes no reason to suppress the results of the State’s initial breathalyzer test. [Cit.] If [Morgan] had desired to undergo a different type of test, he should have requested it in a timely fashion [after the State’s breath test], ‘It is the responsibility of the arrestee, not the officer, to designate the specifics of (any) independent testing and the officer must be apprised by the arrestee of those specifics before the officer has a duty to facilitate the arrestee’s election. (Cits.)’ [Cit.] The evidence supports [a] conclusion that [Morgan] was not coerced into accepting one form of test over another. [Cit.]” (Emphasis supplied in part.) Caldwell v. State, 202 Ga. App. 729, 730-731 (2) (415 SE2d 653) (1992). See also Brannan v. State, 195 Ga. App. 709, 710 (2) (394 SE2d 562) (1990). The trial court’s determination that Morgan abandoned any earlier demand for a blood test after being afforded a second breath test is supported by the evidence and therefore is not clearly erroneous.

3. Although Morgan enumerates the general grounds, the two breath tests of .22 grams percent is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize a rational trier of fact to reasonably find that Morgan was operating a motor vehicle with a prohibited blood-alcohol content in violation of OCGA § 40-6-391 (a) (4) beyond a reasonable doubt. See Wiggley v. State, 204 Ga. App. 583 (1) (420 SE2d 82) (1992).

4. Morgan was sentenced to 12 months in jail, which jail sentence was suspended upon payment of a $1,200 fine and 30 hours of community service. He enumerates the fine portion of his suspended sentence as error, contending it is in excess of the statutory maximum.

This was Morgan’s second DUI conviction within a five-year period. Accordingly, the maximum fine which could be imposed pursuant to OCGA § 40-6-391 (c) (2) (A) was $1,000. However, the State argued that Morgan should nevertheless be fined as a third time DUI violator because a previous alcohol-related moving violation was disposed of by a guilty plea to reckless driving. Without responding to this argument, the trial court stated that it was imposing a $1,200 fine and that is the amount noted as a fine on the back of the UTC. Although the citation itself does not itemize that $1,200 as the sum of authorized fines plus additional penalties, the State contends the actual fine is only $976, with the remaining $224 being comprised of permissible court costs. The State explains these additional costs as follows: $2 for the Library Fund; $50 to the Department of Revenue (POP); $25 to the Victims of Crime Fund; $49 to the Police Officer’s Training Fund Annuity; and $98 to the Jail Construction Fund. However, there is no indication in the record that the penalties assessed against Morgan consisted of a fine plus these other authorized costs and penalties. Rather, the record shows only that the trial court announced and entered a “fine” of $1,200 after the parties made a brief argument concerning whether Morgan should be fined in accordance with the statute pertaining to third time DUI offenders as opposed to that applicable to second time DUI offenders.

Inasmuch as we cannot determine from the record whether the trial court imposed a permissible fine plus permissible costs and penalties, or whether an impermissible fine was in fact imposed, and because any uncertainty or ambiguity ought to be resolved in favor of imposing the lesser penalty, cf. Hartley v. State, 159 Ga. App. 157, 162 (6) (282 SE2d 684) (1981), we are constrained to hold that the portion of the fine in excess of $1,000 must be vacated.

Decided February 28, 1994

Reconsideration denied March 11, 1994

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

John H. Cranford, Solicitor, for appellee.

Judgment of conviction affirmed. Sentence affirmed in part, vacated in part.

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


text:
    A93A2369.
    BEARDEN v. CITY OF AUSTELL.
    (441 SE2d 782)
   Pope, Chief Judge.

Appellant-employee Gil Bearden was notified of his proposed termination as a police officer for the City of Austell. After an evidentiary pre-termination hearing, the Police Committee of the Austell City Council voted to fire Bearden. This decision was upheld after a de novo evidentiary administrative hearing before the entire city council, with the mayor not participating. Cf. Knight v. Town of Jesup, 17 Ga. App. 557 (1) (87 SE 814) (1916). Bearden sought certiorari in the superior court. The final order of the superior court affirmed Bearden’s dismissal by the City and also taxed to him costs incurred by the City in the certiorari phase of the proceeding, including expenses incurred by the city council in retaining an attorney and conducting the administrative hearing. Bearden’s application for discretionary appeal was granted by this court and a timely notice of appeal was filed.

1. Bearden asserts that the superior court applied an erroneous standard of review and that the evidence does not support his dismissal. After the hearing, the city council entered written findings of fact, itemizing the evidence deemed credible and distinguishing the testimony given little or no weight. Three reasons were given for his termination: 1) that Bearden had asked the dispatcher to falsify his availability or readiness while on duty; 2) that he had been insubordinate to the mayor; and 3) that he had left his post without proper authorization.

The scope of review applied by the superior court on certiorari “shall be limited to all errors of law and [the] determination as to whether the judgment or ruling below was sustained by substantial evidence.” OCGA § 5-4-12 (b). Contrary to Bearden’s contention that the superior court erroneously applied an “any evidence” test, the order of the superior court expressly recites that the “substantial evidence” standard of review was applied below. Compare Graham v. Wilkes, 188 Ga. App. 402 (373 SE2d 90) (1988).

In support of his contention that the evidence is insufficient to authorize his termination, Bearden argues that the administrative hearing was quasi-criminal and that the evidence adduced below does not prove the specific facts alleged against him. In essence, he urges a fatal variance between the allegations and the evidence. However, a disciplinary hearing before the police committee of a city council is not a criminal or quasi-criminal proceeding. City of Atlanta v. Stallings, 198 Ga. 510 (32 SE2d 256) (1944). The city council was not absolutely bound by the facts alleged in the original notice of proposed termination. “The key to pleading in the administrative process is adequate opportunity to prepare. When an original notice or pleading is inadequate, it is normally supplemented by informal communication, by formal amendment, by a bill of particulars, by prehearing conferences, or by ample continuances at the hearing. And the question on review is not the inadequacy of the original notice or pleading but is the fairness of the whole procedure.” (Citations and punctuation omitted.) Smith v. City of East Point, 189 Ga. App. 454, 456 (2) (376 SE2d 215) (1988). There is direct evidence that Bearden frequently asked the dispatcher to enter an assignment code which did not accurately reflect his immediate availability for duty. There is also direct evidence that he left his post without being properly discharged by a superior officer and without notifying the dispatcher that he was off duty, in violation of departmental rules. Pretermitting the allegation that Bearden had been insubordinate to the mayor, the record demonstrates an ample evidentiary basis for termination based upon false log entries and leaving his post without proper authority. The enumeration of the general grounds is without merit.

2. Bearden was notified of the proposed termination in a letter signed by the mayor and delivered to Bearden by the mayor in the presence of the chief of police. Claiming that he could be fired only by the chief of police and not the mayor, Bearden argues that his dismissal is unauthorized by law. However, the initial termination by the mayor and police committee was superseded by the subsequent decision of the entire city council. Any impropriety or procedural irregularity in the mayor’s unilateral attempt to fire Bearden raises only a question of the form of the notice of adverse action, thus any irregularity has been rendered moot by the decision of the entire city council made after an evidentiary hearing. See generally Smith v. City of East Point, supra. Bearden’s second enumeration of error is without merit.

3. Bearden asserts that his complete termination for such minor infractions is unauthorized under the City of Austell’s personnel policy employing a concept of progressive discipline. We are unable to address whether a progressive disciplinary policy confers upon Bearden any substantive rights which have been violated by his outright termination as opposed to a warning or reprimand or some lesser punishment, for it appears that this issue was not raised before and ruled upon by the superior court. “No ground of error shall be considered [by the superior court] which is not distinctly set forth in the petition [for certiorari].” OCGA § 5-4-12 (a). Although Bearden raised this issue before the police committee, his failure to insist upon this ground in the superior court amounts to an abandonment and precludes consideration of this issue by this court. See Savannah, Thunderbolt & Isle of Hope R. v. Fennell, 100 Ga. 474 (2) (28 SE 437) (1897); Campbell v. City of Atlanta, 61 Ga. App. 747 (1) (7 SE2d 315) (1940).

4. Having affirmed Bearden’s dismissal, the superior court entered an award of costs against him pursuant to OCGA § 5-4-17, in the amount of $1,495.18. This award purportedly represents the costs incurred by the City for the certiorari proceeding. Bearden enumerates this award as error, claiming that the award impermissibly includes attorney fees as an element of those costs.

OCGA § 5-4-17 provides in part: “If the certiorari is dismissed and a final decision is made in the case by the superior court, the defendant in certiorari may have judgment entered in the superior court against the plaintiff and his security for the sum recovered by him, together with the costs in the superior court.” (Emphasis supplied.) Included in the City’s claim for “costs in the superior court” is an item for the professional services of the city attorney, in the amount of $1,988. The superior court allowed $1,121 of this item as “costs in the superior court” and it is to this portion of the judgment for costs that Bearden objects.

“The term ‘costs,’ as applied to proceedings in a Court of Justice, has, in the acceptation of the profession, and by the practice of all Courts in Georgia, a well understood meaning. It includes all charges, fixed by statute, as compensation for services rendered by officers of the Court in the progress of the cause. It does not embrace fees, to which counsel prosecuting or defending may be entitled.” (Emphasis in original.) Davis v. State of Ga., 33 Ga. 531, 533 (1, 2) (1863). The courts in Georgia have consistently held that attorney fees are not recoverable unless specifically provided for by statute or contract. See Harrison v. Harrison, 208 Ga. 70 (65 SE2d 173) (1951). See, e.g., OCGA § 45-19-39; OCGA § 13-1-11 (a); OCGA § 44-7-35; OCGA § 19-6-2 (all of which specifically provide for an award of attorney fees). The City’s reliance upon Johns v. Lewis Drug Co., 120 Ga. 640 (48 SE 127) (1904) is misplaced. That case interprets what is now OCGA § 5-4-5 (a) and does not purport to hold that attorney fees are “costs in the superior court” within the contemplation of OCGA § 5-4-17. To the extent that this award of OCGA § 5-4-17 “costs” included either attorney fees or the expenses of litigation, it was not allowable and that portion of the judgment must be written off. See Lawhorne v. Soltis, 259 Ga. 502, 504 (3) (384 SE2d 662) (1989). Bearden does not challenge that portion of the award which appears to be the cost of preparing the record in the trial forum for review by the superior court on certiorari. The judgment of the superior court is affirmed on the condition that, upon receipt of the remittitur, the superior court will write off from that judgment the amount of $1,121 representing the attorney fees impermissibly awarded as costs within the purview of OCGA § 5-4-17; otherwise reversed.

Decided February 18, 1994

Reconsideration dismissed March 11, 1994

H. Darrell Greene & Associates, Paul Shimek III, for appellant. Dupree, Johnson & Poole, Hylton B. Dupree, Jr., A. Gregory Poole, Smith, Eubanks, Smith & Darden, David P. Darden, for appellee.

Judgment affirmed on condition.

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


text:
    A93A2418.
    LEE v. STRINGER et al.
    (441 SE2d 861)
   Pope, Chief Judge.

Appellant Melanie Webb Lee executed a surrender of parental rights with respect to her daughter born May 13, 1991 in favor of appellees, Gary and Faye Stringer. After expiration of the statutory ten-day period, the Stringers filed a petition for adoption of the child. Lee filed an objection to and motion to dismiss the adoption petition. The trial court, after conducting an evidentiary hearing, granted the Stringers’ petition for adoption, and Lee filed this direct appeal to this court. See, e.g., Moore v. Butler, 192 Ga. App. 882, 883 (1) (386 SE2d 678) (1989).

1. Lee first enumerates as error the finding of the trial court that the surrender of parental rights form she executed substantially complied with OCGA § 19-8-26 (c). The record shows that the form Lee executed, unlike the form contained in OCGA § 19-8-26 (c), did not contain language surrendering the child to the Department of Human Resources in the event the Stringers failed to file a petition for adoption within 60 days. We agree with the trial court that this omission did not render the surrender invalid under the facts of this case. The record shows that the surrender was executed on August 11, 1991 and that the petition was filed on September 4, 1991, clearly within the 60 days provided for filing the petition. Thus the language in the Code section providing the conditions under which the child would be surrendered to DHR for placement for adoption would have been mere surplusage in this case. Cf. Tyson v. Dept. of Human Resources, 165 Ga. App. 414 (301 SE2d 485) (1983) (in which the fact that the “wrong” form was used properly resulted in dismissal of the petition both because one of the individuals to whom surrender was made was wrongfully identified as a relative of the natural mother and the individuals named in the surrender form then attempted to “assign” the surrender to another third party who then initiated the adoption proceedings).

Lee also argues, however, that if the language had been included in the form she executed, she would have then understood that her surrender of her parental rights was total. As to this contention, the record shows that the form executed by Lee clearly provided that she was absolutely surrendering her parental rights in, and control over, her child. Moreover, in addition to the surrender of rights document, Lee also executed an Acknowledgment of Surrender of Rights, which provided, inter alia, “I understand that this is a full, final and complete surrender, release and termination of all my rights to the child.” We thus find no merit to the contention that the omitted language would have provided Lee a greater understanding of the consequences of her actions than the clear, plain and unambiguous language that was contained in the documents she signed.

2. We have examined Lee’s contentions concerning the financial transactions between the parties and find them to be without merit. “ ‘We read the phrase “in a manner acceptable to the court” in (OCGA § 19-8-13 (c)) as a grant of broad discretion to the trial court in determining whether there have been improper financial transactions associated with the adoption. It was clear to the trial (court) in this case that there had been no such payments in this case. We find it to be within the trial court’s discretion to determine from the . . . documentation supplied (and the testimony heard) in this case that there were no financial improprieties ...[...] We see no abuse of the trial court’s discretion.’ Owens v. Worley, 163 Ga. App. 488, 490 (3) (295 SE2d 199) (1982).” Messer v. Marchman, 205 Ga. App. 364, 365 (2) (422 SE2d 250) (1992).

3. Lee also contends that the trial court erred in finding that she freely and voluntarily surrendered her parental rights, and in failing to specifically rule on her contention concerning the revocation of her consent for good and sufficient cause.

At the outset we note that although Lee asserts that the standard of review applicable to this case is the clear and convincing evidence test set forth in Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982), this court has held that this standard does not apply when there has been a surrender of parental rights prior to the institution of adoption proceedings. Cain v. Lane, 168 Ga. App. 405, 406 (1) (309 SE2d 401) (1983). Rather, the judgment of the trial court in cases where there has been a surrender of parental rights prior to the filing of the adoption petition will not be set aside by this court if that judgment is supported by any evidence and is not clearly erroneous. Boatman v. Chapman, 174 Ga. App. 77, 78 (329 SE2d 185) (1985). See also Cain v. Lane, 168 Ga. App. at 406.

Our review of the record in this case shows that the evidence presented by the parties as to the circumstances surrounding the surrender of parental rights was conflicting. “The question of the weight to be attributed to the conflicting evidence was a matter for the superior court. As an appellate court, we may examine only the sufficiency of the evidence and having done so, we find that there is sufficient evidence to authorize the superior court’s resolution of the factual conflict in favor of [the Stringers]. (Cit.)’ (Emphasis in original.) Motes v. Love, 202 Ga. App. 749 (1) (415 SE2d 334) (1992). ‘The trial court had the opportunity to question and observe the parties, and possesses a wide discretion in determining the issues before (it), and if the judgment is supported by any evidence, and is not clearly erroneous, an appellate court is not authorized to set it aside. (Cits.)’ Boatman v. Chapman, 174 Ga. App. [at 78]. Considering all the evidence, ‘we cannot say that the trial (court) abused (its) discretion in finding that [Lee] had freely and voluntarily consented to the adoption (cits.). . . . (Moreover, in) the absence of additional circumstances, the trial court did not err in refusing to release [Lee] from her consent [and the trial court’s failure to specifically address this issue does not require that the trial court’s judgment be reversed], (Cit.)’ McGowan v. Wilkinson, 145 Ga. App. 691, 692 (1, 2) (244 SE2d 626) (1978). See also Ridgley v. Helms, 168 Ga. App. 435, 437-439 (1, 2) (309 SE2d 375) (1983) [adoption upheld although trial court did not specifically address revocation based on good and sufficient cause].” Messer v. Marchman, 205 Ga. App. at 365 (1). The trial court’s judgment granting the petition for adoption is affirmed.

Judgment affirmed.

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

Decided February 25, 1994

Reconsideration denied March 11, 1994

Susan A. Reif, Mary I. Dickerson, Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, for appellant.

Barry H. Wood, Judy E. Shurling, for appellees.


text:
    A93A2440.
    A93A2441.
    REDMAN HOMES, INC. v. VOSS et al. GREESON HOMES CORPORATION v. VOSS et al.
    (441 SE2d 792)
   Beasley, Presiding Judge.

These appeals challenge the trial court’s decision to grant plaintiffs permission to dismiss their cause of action without prejudice, pursuant to OCGA § 9-11-41 (a).

Plaintiffs Jerry and Sherry Voss sought damages resulting from their purchase of a mobile home against the manufacturer, Redman Homes, Inc., and the seller, Greeson Homes Corporation. The suit alleged breach of warranty, gross negligence, and wilful and conscious indifference to consequences of failure to act in the face of plaintiffs’ revocation of acceptance. They also alleged that defendants were stubbornly litigious and claimed that physical and mental harm entitled them to punitive damages. At trial, defendants moved for a directed verdict after plaintiffs rested their case-in-chief. The trial court denied Greeson’s motion, but indicated it would grant a directed verdict to Redman. It appears that plaintiffs had difficulty securing the testimony of a key witness.

The court commented that plaintiffs “got a lemon, not because of anything Greeson — and maybe not because of anything Redman Homes — knowingly did . . . these people got a mobile home that could not be lived in . . . there’s evidence that the jury can consider that that’s what they got, is a mobile home that could not be successfully lived in. There are plenty of people that live in worse than that. But that wasn’t what they contemplated living in. There is evidence from which the jury could conclude that. And I hate to see people walk away from their day in court and not have all of their complaints considered by a jury.” The court announced it would allow plaintiffs to dismiss their lawsuit and refile it.

Plaintiffs indicated they wished to reopen their case to call a witness on their “may call list,” which the court permitted. It “vacated” its ruling on Redman’s motion for directed verdict and indicated it would allow plaintiffs’ witness to testify following the lunch break.

When court reconvened, plaintiffs’ counsel informed the court that “after much discussion and concern over the chain of events that have occurred, it is our position in this case that because of the possibility of a directed verdict relieving the manufacturer in this case, under the theories that we’re pursuing, it leaves us no alternative but to move to dismiss the case without prejudice and ask that the case be retried. ...” Plaintiffs filed a written motion for dismissal without prejudice, upon which the trial judge wrote: “Filed with Court this May 21, 1992, James L. Brooks, Judge.” Subsequently, a nunc pro tunc order noted the denial of the motion for directed verdict submitted by Greeson (albeit the transcript of the trial shows a partial grant of this motion as to punitive damages), the grant of the motion for directed verdict by Redman, the vacation of the directed verdict to Redman, and the permission to plaintiffs to reopen the evidence.

Defendants Greeson and Redman appealed the dismissal, but the appeals were dismissed as premature because the record did not reflect the entry of a written order permitting the voluntary dismissal of the case. See Greeson Homes Corp. v. Voss, 209 Ga. App. 14 (432 SE2d 271) (1993).

Following remittitur and an evidentiary hearing, the trial court entered an order on July 27, 1993, finding that it intended to allow plaintiffs to dismiss and refile the action but through ministerial oversight had failed to note approval on their written motion. The court amended its handwritten notation to read that the dismissal without prejudice was approved and filed with the court on May 21, 1992.

Defendants Redman and Greeson again appeal the voluntary dismissal. They contend that the court erred in vacating the grant of a directed verdict in favor of Redman and approving plaintiffs’ voluntary dismissal of their cause without prejudice after permitting them to reopen their case. They ask that a directed verdict for Redman be reinstated and that Greeson also be granted a directed verdict.

1. Resolution of the issue of dismissal is dispositive.

OCGA § 9-11-41 (a) provides that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. After the plaintiff rests his case, permission and an order of the court must be obtained before dismissal. ... A dismissal under this subsection is without prejudice.”

It was explained in Muhanna v. O’Kelley, 185 Ga. App. 220 (363 SE2d 626) (1987): “Originally, the Code section had permitted the voluntary dismissal of an action without a court order ‘at any time before verdict’ (Ga. L. 1966, p. 609, § 41). In 1985, the latter wording was changed to read, ‘at any time before the submission of the case to the jury’ (Ga. L. 1985, p. 546, § 1). The present language was substituted for that version the following year.”

“[T]he legislative intent behind the enactment of OCGA § 9-11-41 (a) was to afford a plaintiff, faced with a contrary verdict or other untenable position, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.” Griggs v. Columbus Bank &c. Co., 188 Ga. App. 741, 743 (374 SE2d 347) (1988).

Decided February 22, 1994

Reconsiderations denied March 11, 1994

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Milton F. Eisenberg II, for Redman Homes.

Russell, Stell, Smith & McLocklin, John E. Stell, Jr., Michael C. Pruett, for Greeson Homes.

Defendants concede that the trial court was within its authority to allow plaintiffs to reopen their case. Thus, at the time plaintiffs moved to voluntarily dismiss their cause, they had not rested. This being so, the voluntary dismissal was a matter of right not requiring judicial permission and order. If it was required, the court was within its discretion to allow the dismissal.

Defendants cite no case supporting their position that this was reversible error, and we are aware of none. The cases cited are inapposite. They involve instances in which plaintiffs attempted dismissal without prejudice as a matter of right under the statutory provision, in order to avoid or circumvent the trial court’s ultimate adverse ruling pursuant to either a bench decision or jury verdict. The dearth of authority on point, i.e., dismissal by statutory judicial discretion rather than by right, may be explained by the broad discretion necessarily afforded a trial court while a case remains within its breast. Even after verdict, the court has nearly plenary power to grant a new trial. “ ‘(T)he first grant of a new trial to either party is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded.’ [Cit.]” Trawick v. Jackson, 188 Ga. App. 664 (374 SE2d 114) (1988). Logic demands the same liberal appellate scrutiny of a trial court’s approval of a motion to dismiss without prejudice pursuant to OCGA § 9-11-41 (a).

2. “[T]he effect of a voluntary dismissal is to render the case ‘completely lifeless for all purposes from the date of the dismissal . . . ,’ [cit.], [and] any error resulting from the denial of the motion for directed verdict is now moot.” Otonicar v. Shoreline Towers Phase I Condo. Assn., 191 Ga. App. 632 (382 SE2d 418) (1989). Questions of the propriety of directed verdicts for the two defendants need not be reached, although it is noted that there was evidence of the nonconformity of the mobile home and of plaintiffs’ attempts to revoke acceptance of it. See OCGA § 11-2-608.

Judgment affirmed.

Cooper and Smith, JJ., concur.

Bushnell & Larisay, William C. Bushnell, Christopher J. McFadden, for Voss.


text:
    A93A2608.
    STEPHENS v. IVEY et al.
    (442 SE2d 248)
   Beasley, Presiding Judge.

Plaintiff Stephens appeals from a judgment entered on a jury verdict in favor of defendants in an action for damages resulting from alleged civil rights violations. This litigation has been ongoing since July 1990. The gravamen of the complaint is that Stephens, an African-American, was wrongfully denied the right to rent space to operate an entertainment facility in defendants’ shopping center because of his race. Additional facts will be developed when necessary to the disposition.

1. In enumeration of error 2, Stephens challenges the constitutionality of OCGA § 5-6-34 and USCR 25 as violative of the federal and Georgia constitutions. This appeal was originally filed in the Supreme Court, which on its own motion transferred it to this court. “The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.” Krause v. Vance, 207 Ga. App. 615, 622 (19) (428 SE2d 595) (1993).

2. In his first enumeration of error, Stephens contends that the court erred in denying three recusal motions “because the judge failed to recuse himself, failed to refer the motion to another judge, failed to grant the motion for disqualification, and failed to grant a certificate of immediate review.”

Argument or authority are offered only with respect to the final motion to disqualify which was brought after Stephens and his attorney, Millard Farmer, had been held in contempt of court by the trial judge. The appeal from that contempt citation is also before this court. In re Farmer, 212 Ga. App. 372 (442 SE2d 251) (1994). Any assertion of error as to the first two motions to disqualify are abandoned under Court of Appeals Rule 15 (c) (2).

The trial judge’s duty in ruling on a motion to recuse “ ‘will be limited to passing upon the legal sufficiency of the [accompanying] affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse.’ . . . [Cit.] . . . However, ‘(a)ny alleged prejudice or bias against the party’s attorney rather than the party himself is not, per se, grounds for disqualification. . . .’ [Cit.]” Houston v. Cavanagh, 199 Ga. App. 387, 388 (405 SE2d 105) (1991).

USCR 25.2 requires that the affidavit “state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements . . . which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.” (Emphasis supplied.)

The trial court determined that several of the proffered grounds were untimely under USCR 25.3 and would not be considered. Since that portion of the ruling is unchallenged, it does not require our consideration. With respect to the remaining grounds, the court concluded that the “affidavit fails to clearly state facts and reasons sufficient to warrant and support a belief that a bias or prejudice exists.” It found the affidavit in support of the recusal motion to be thus legally insufficient.

The motion asserts a variety of allegations, much of which consist of ad hominem attacks on attorney William Campbell, then a city councilman, and other opposing counsel. They are not grounds for recusal of the judge. As to those which are directed at the court, very little in the way of factual material is stated. Isolating fact from “conclusions and suspicions” and mere dissatisfaction with the court’s rulings, what is left are allegations that the court engaged in an ex parte conversation with defendants’ counsel. This was explained under oath by Mr. Campbell as entering chambers to inquire if a hearing was to be held that morning since he found the courtroom empty; no further discussion ensued. It is alleged that the court on a variety of occasions “knowingly made untruthful statements.” The purportedly false statements are neither identified nor are they supported by a factual basis.

Stephens’ assertion that Houston, supra, mandates recusal is without merit. That decision was limited to the “extremely rare [situation] ... in which the judge who found the attorney in contempt in the underlying case is to hear [a] § 9-15-14 claim against the same attorney who now stands as a defendant in [the] § 9-15-14 claim, the affidavit in support of recusal was [held to be] legally sufficient.” Id. at 389.

“To warrant disqualification of a trial judge the affidavit supporting the recusal motion ‘must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ [Cits.]” Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981). Stephens has not established a legally sufficient affidavit so as to require a recusal hearing before another judge. Id.; USCR 25.3.

Any complaint concerning failure to grant a certificate of review is abandoned under Court of Appeals Rule 15 (c) (2).

3. The third enumeration of error involves an alleged Batson/Edmonson violation.

Stephens asserted a timely Batson challenge. See Calhoun v. Purvis, 206 Ga. App. 565 (2) (425 SE2d 901) (1992). Counsel argued that defendants exercised four of their six peremptory strikes against African-American individuals. Stephens also objected to the exercise of three strikes in a racially discriminatory manner with respect to the alternates; the court agreed and granted relief. The challenge is now directed only to the panel of 12.

Assuming the establishment of a prima facie case of discrimination, the proffered explanation determines whether racially neutral criteria were given for the strikes. Strozier v. Clark, 206 Ga. App. 85 (3) (424 SE2d 368) (1992).

Defendants explained that the first juror was stricken because she knew of Mr. Farmer, she had been a plaintiff in a lawsuit, and counsel did not like her responses concerning a business she had operated. The second juror was stricken because he did not show the business acumen counsel believed necessary to an understanding of the case. He was not knowledgeable about basic business matters, e.g., a landlord requiring a security deposit. The third juror was stricken because she demonstrated a lack of loyalty to her employer and counsel “didn’t like that as a trait in a juror.” The fourth juror was stricken because he had “literally the exact same occupation as Mr. Stephens,” and counsel thought he might be “overly sympathetic.” The court granted the Batson motion with respect to the third juror and placed her on the jury. The three remaining strikes were upheld on the ground that defendants had established racially neutral reasons for their exercise. Defendants’ explanation for the three remaining strikes “sufficiently showed ‘that discriminatory purpose was not involved.’ [Cit.]” Gamble v. State, 257 Ga. 325, 326 (5) (357 SE2d 792) (1987).

Although Stephens further contends that the court failed to make proper findings as to “whether the defense had successfully rebutted the prima facie showing of discrimination,” he did not assert this complaint below and invoked no ruling from the court. Such a finding is implicit in overruling the Batson objection. Harmful error has not been shown.

4. Stephens contends that the court abused its discretion in refusing to disqualify William Campbell as counsel for defendants when it was shown that Campbell (1) commented to plaintiff Stephens while the two were waiting for an elevator, “why would you hire this plantation mentality lawyer when there are plenty of black lawyers you could have hired”; (2) had an ex parte conversation with the court (described in Division 2 above); (3) used “verbal assaults” upon opposing counsel; (4) made false statements to the court; and (5) improperly conducted himself as a public official. He contends that these acts violated ethical guidelines and Stephens’ rights to due process and equal protection under the federal and Georgia constitutions.

Decided February 22, 1994

Reconsideration denied March 11, 1994

Millard C. Farmer, Jr., for appellant.

Heyman & Sizemore, William H. Major, William B. Brown, Ellis, Funk, Goldberg, Labovitz & Campbell, William C. Campbell, for appellees.

“[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). “[I]n the absence of contrary evidence, it will be presumed that members of our State Bar have properly complied with the Bar’s ethical directory and disciplinary rules.” Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (1) (377 SE2d 15) (1988). Stephens has not established a sufficient factual basis for his allegations or that denial of his motion to disqualify constituted an abuse of the court’s sound discretion. Id. He has failed, moreover, to demonstrate how the ruling deprived him of due process or equal protection under the law.

5. Stephens challenges an evidentiary ruling of the court disallowing on relevancy grounds matters which have occurred in this litigation since the time the lease was refused. He specifically sought to introduce evidence of “discrimination” displayed against him during discovery depositions in the litigation, and “discrimination . . . with reference to the employment ... of Mr. Campbell in the case.” The court sustained defendants’ objection on grounds that the evidence is “irrelevant, immaterial and highly prejudicial”; it ruled that the only relevant inquiry is whether Stephens was wrongfully denied a lease based on his race. The trial court did not abuse its discretion in disallowing the evidence on relevancy grounds. See Parker v. Clickener, 193 Ga. App. 321, 325 (2) (387 SE2d 587) (1989).

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A94A0680.
    HEIGHT v. THE STATE.
    (442 SE2d 8)
   Blackburn, Judge.

The appellant, Michael Height, was charged with several violations of the Georgia Controlled Substances Act. A confidential informant was utilized in the investigation that led to Height’s arrest, but following a pretrial hearing the trial court ruled that the State was not required to disclose the informant’s identity. Notwithstanding that ruling, at trial defense counsel asked the State’s first witness: “Who is the confidential informant?” Upon the State’s objection, the trial court declared a mistrial.

Decided March 1, 1994

Reconsideration denied March 11, 1994

Lee Payne, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

Height subsequently filed a plea in bar of former jeopardy, on the ground that the first trial was improperly terminated. The trial court denied the plea in bar, and this appeal followed.

Declaration of a mistrial does not bar subsequent prosecution where the defendant consents to the mistrial. See McGarvey v. State, 186 Ga. App. 562 (368 SE2d 127) (1988). Declaration of mistrial over the objection of a criminal defendant does not bar retrial where there was manifest necessity for a mistrial or where the ends of justice would be defeated by allowing the trial to continue. Moss v. State, 200 Ga. App. 253 (407 SE2d 477) (1991). The trial court has a broad discretion in declaring mistrial, particularly “when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice.” (Citations and punctuation omitted.) Id. at 254.

In the instant case, termination of the first trial was not caused by prosecutorial misconduct. Rather, the prejudice was injected by the deliberate, improper question asked by defense counsel. In such a situation, the defendant cannot prevent retrial by withholding consent to the mistrial. McGarvey v. State, supra. “The defendant does not have the right to force the State either to endure a prejudiced trial or forego prosecution entirely.” Id. at 564. Under the circumstances in this case, the trial court did not abuse its discretion in declaring mistrial in the first proceeding, and in denying the subsequent plea in bar of former jeopardy.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Smith, Judge.

text:
    A93A1960.
    GRIFFIN v. THE STATE.
    (441 SE2d 897)
   Smith, Judge.

Nina Simone Griffin and Jamie A. Bramblett were tried jointly for a violation and attempted violation, respectively, of the Georgia Controlled Substances Act. Bramblett was granted a directed verdict on the charge against him, and Griffin was convicted as a repeat offender of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), (d). Griffin received a life sentence. She appeals following the denial of her motion for new trial.

Griffin enumerates as error the denial of her motion for directed verdict at the close of the State’s case, as well as the sufficiency of the evidence to convict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). That same standard guides both enumerations, Burden v. State, 187 Ga. App. 778 (1) (371 SE2d 410) (1988), and both enumerations put at issue the sufficiency of the entirety of the evidence offered at trial by the parties. See Causey v. State, 154 Ga. App. 76, 77 (1) (267 SE2d 475) (1980). Griffin’s enumerations are therefore reviewed together.

The State’s evidence, viewed in a light favorable to the verdict, shows that Officer Michael Leonard of the Dalton Police Department observed a vehicle driven by co-defendant Bramblett as it approached an apartment in the “New Town” area of Dalton, at which several persons were present on a balcony. Someone from the residence asked Bramblett what he needed, then told him to “take a lap,” meaning to drive around the block and return. Officer Leonard testified that he heard this phrase “constantly” while on patrol in the “New Town” area. The vehicle left and returned a moment later. Griffin then left the residence and entered the vehicle, and Bramblett drove away.

Officer Leonard, suspecting a sale of crack cocaine was taking place, radioed Officer Gary Keener, who was in a marked patrol unit. Leonard asked Keener to stop the vehicle. While Keener spoke with Bramblett through the driver’s side window, he observed a cellophane wrapper in Griffin’s right hand. Keener knew the reason he was directed to stop the vehicle and testified that he was aware that cocaine is commonly packaged in cellophane wrappers. According to Keener, Griffin was attempting to conceal the wrapper by holding it down near her leg. Keener then observed Griffin drop the wrapper on the floorboard. Fellow officer James Rogers then approached the right side of the vehicle, and Keener told him to check Griffin’s right hand. At the time, Griffin’s right hand was between the seat and the car door. Upon request, Griffin raised her right hand, which was empty. Rogers then opened the door and found a cigarette pack with four rocks of crack cocaine in it.

The State also introduced a prior arrest for possession of cocaine with intent to distribute. Sergeant Tony Gibson of the Dalton Police Department testified that on that prior occasion he had received information that Griffin was in the company of two men from Atlanta in possession of a large quantity of cocaine. Griffin was believed by officers to be a crack cocaine dealer in the New Town area. The police obtained a description of the vehicle used by Griffin and the two men. They located that vehicle and arrested the three suspects. All occupants had cocaine on their persons and in “all three areas of the car.” Gibson testified that Griffin was found with six or seven rocks, individually packaged, on her person. In all, approximately 100 rocks were seized. Gibson confirmed that during their brief surveillance of Griffin and the other men on that prior occasion, the police saw no drug transactions take place. Griffin pled guilty to possession of cocaine in connection with that incident.

Gibson also testified that plastic jewelry bags were the most common method of packaging crack cocaine for resale in 1989 when the prior arrest was made, but that dealers’ methods change over time to evade law enforcement. Gibson was then asked whether a cellophane cigarette pack would distinguish a mere user of drugs from a distributor. Gibson replied that “it’s kind of confusing to give you a pat answer on that because most of your street level crack dealers are also crack users. And they might have three rocks to sell two to get enough money to pay their person, to have one for theirself. . . . So, you can only have three or four rocks on you and still be a dealer.” Defense counsel replied: “Okay. And then you could still have three or four rocks on you and be just a simple user?” Gibson responded affirmatively, and added that there is no way to tell the difference “unless you have some type of, you know, other intelligence or investigation such as, you know, a buy, or something like that, to go along with it.”

At the close of the evidence, the trial court again denied Griffin’s motion for directed verdict on the question of intent to distribute, but granted Bramblett’s renewed motion as to the charge against him. The court acknowledged that it was highly suspicious for Bramblett to have been driving through the New Town area on the evening in question. Nevertheless, the trial court concluded that the evidence was insufficient to convict Bramblett of attempting to purchase cocaine from Griffin.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The evidence here was clearly sufficient to authorize the jury to convict Griffin of the lesser included offense of possession of cocaine under the standard of Jackson v. Virginia, supra.

Assuming, however, that the evidence was insufficient to authorize the jury to infer, to the exclusion of all other reasonable hypotheses, that Griffin and Bramblett contemplated a drug transaction, the evidence presented would likewise appear to preclude a conviction against Griffin for intent to distribute the cocaine in her possession. A State’s witness conceded that the quantity of cocaine possessed by Griffin and the manner in which it was packaged was not inconsistent with mere possession for personal use. Compare Bean v. State, 204 Ga. App. 242, 243 (2) (418 SE2d 798) (1992) (two officers testified “that mere users usually did not possess as much cocaine as was found in the tissue,” i.e., four pieces of crack cocaine and some crumbs); Davis v. State, 200 Ga. App. 44, 45-46 (2) (406 SE2d 555) (1991) (quantity of cocaine sufficient to distinguish distributor from user is not necessarily within layman’s knowledge). The jury clearly was not authorized to convict Griffin of intent to distribute the four rocks of cocaine at issue based solely on the quantity of cocaine possessed on a prior occasion.

Decided March 11, 1994.

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, As sistant District Attorney, for appellee.

Despite the trial court’s grant of directed verdict in favor of Bramblett, the question remains as to whether the jury could have eliminated other hypotheses as unreasonable and concluded beyond a reasonable doubt that Griffin intended to distribute to Bramblett the cocaine in her possession. See generally Parker v. Mooneyham, 256 Ga. 334 (349 SE2d 182) (1986). We find the evidence sufficient under OCGA § 24-4-6, and affirm.

An examination of the co-defendants’ testimony shows that Bramblett, who is white, was driving in a predominantly black neighborhood at 1:30 a.m. when persons he termed “a bunch of blacks” told him to pull over. According to Bramblett, since he did not know why he was summoned, he pulled over and asked: “What do you-all want?” Coincidentally, Griffin testified that she happened to be playing cards at the apartment of a friend and saw Bramblett parked outside as she was leaving the apartment to buy cigarettes. Griffin and Bramblett both testified that they had known each other for a long time through Griffin’s brother and/or Bramblett’s sister. Bramblett testified that he offered to take Griffin to the Favorite Market to purchase the cigarettes provided she walked back herself. According to Bramblett, Griffin asked him to circle the block while she got her purse. Griffin, however, testified that she did not see Bramblett until he had already circled the block, and that she was already headed to the store when she first saw him. Bramblett also corroborated Officer Keener’s testimony to the effect that Griffin was holding the contraband just before Officer Rogers opened the car door and discovered it.

We find that the jury was authorized to conclude, to the exclusion of any other hypothesis within reason, that Griffin intended to distribute the cocaine in her possession on the night in question. Horton v. State, 194 Ga. App. 797, 798-799 (1) (b) (392 SE2d 259) (1990).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.