author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A2291.
    MORRIS v. BAXTER.
    (483 SE2d 650)
   Ruffin, Judge.

Carolyn Morris sued John Baxter for the wrongful death of her daughter, Deborah Easterwood, who committed suicide. The trial court granted Baxter summary judgment, and Morris appeals. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

The record reveals the following facts. Easterwood was romantically involved with Baxter for several years prior to her death. During their relationship, Baxter became aware that Easterwood was schizophrenic and that she took medication to help keep her calm.

In the months just prior to her death, Easterwood’s mental condition required that she be hospitalized twice. When released from the second hospital stay on July 2, 1993, Easterwood appeared to her mother to be depressed. Although Baxter did not believe at the time that Easterwood was overly depressed, he testified that she “seemed different.”

On July 4, 1993, Easterwood spent the night with Baxter and dreamed that someone was trying to kill her. The next morning, Easterwood returned to her mother’s house. Although Easterwood remained upset about the dream, nothing about her behavior alarmed Morris. Easterwood called Baxter that morning and told him she would stop by his house that afternoon. Baxter spent part of the day at a nearby beach and then returned home, where he discovered that Easterwood had shot herself with the .22 caliber rifle he kept loaded in one corner of his bedroom. Easterwood died later that evening.

Morris subsequently brought suit against Baxter, alleging that Baxter negligently left a loaded rifle “in plain view” in his home where Easterwood, with her “diminished mental capacity and suicidal ideation,” could use it. Finding no evidence that Baxter proximately caused Easterwood’s death, the trial court granted summary judgment. Morris now argues that the trial court erred in granting summary judgment to Baxter. We disagree.

As we have previously found, “[njegligence is not actionable unless it is the proximate cause of the injury. A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again.” (Citations and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (2) (d) (397 SE2d 576) (1990). Thus, “negligence is predicated on what should have been anticipated rather than on what happened.” (Citations and punctuation omitted.) Id. at 68. Although the question of proximate cause is usually submitted to the jury for resolution, “ ‘it may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s acts were not the proximate cause of the injury.’ [Cit.]” Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 393 (4) (394 SE2d 345) (1990).

We find that, as a matter of law, no jury could reasonably conclude that Baxter’s act of leaving a loaded rifle in his bedroom proximately caused Easterwood’s death. Baxter testified that he never thought Easterwood would kill herself. Morris also testified that Easterwood had never threatened to harm herself and that no one, including Baxter, believed Easterwood had suicidal intentions. Easterwood’s treating physicians and therapists similarly expressed no concern to the family that Easterwood might be suicidal.

To support her claim that the suicide was foreseeable to Baxter, Morris argues that Easterwood told Baxter just before her death that she was “bored with life.” Boredom, however, does not foretell suicide. Furthermore, the record presents no evidence from which a jury could conclude that a reasonable person would foresee Easterwood’s suicide from her mental condition. On the contrary, the record reveals that Easterwood’s own health care providers did not view her as a suicide risk and would not have released her from the hospital on July 2 had they perceived her as such.

The availability of a loaded gun may have been a cause in fact of Easterwood’s death. Yet, “the inquiry is not whether [Baxter’s] conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.” (Citation and punctuation omitted.) Strickland, supra at 67. Contrary to the dissent’s argument, no reasonable jury could find that Baxter’s actions proximately caused Easterwood’s death. This case is fully distinguishable from West v. Mache of Cochran, Inc., 187 Ga. App. 365 (370 SE2d 169) (1988), which the dissent cites. In West, the Court addressed the statutory responsibility placed on gun dealers to keep guns away from certain individuals and concluded that dealers “cannot, when they ignore that responsibility, avoid liability by claiming it was unforeseeable that the ineligible purchaser would misuse the gun.” 187 Ga. App. at 369. That decision and the others relied upon by the dissent do not alter the result in this case, which involves an individual gun owner who kept a gun in his bedroom.

The record shows no evidence that Easterwood’s death was reasonably foreseeable to Baxter. Baxter did not believe Easterwood would harm herself, and neither Morris nor Easterwood’s own health care providers believed she was a suicide risk. Furthermore, nothing in the record indicates that Easterwood was “so childlike” that she had a “diminished understanding” of guns, as apparently suggested by the dissent. Accordingly, the trial court properly granted summary judgment to Baxter.

We express no opinion on whether Baxter owed any duty to protect Easterwood from herself or whether Baxter’s conduct could be construed by a reasonable jury as negligent.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Beasley, Johnson and Blackburn, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment on the ground that defendant John Baxter’s behavior in leaving a loaded rifle in plain view of his mentally disturbed lady friend, plaintiff’s decedent Deborah Easterwood, cannot be a proximate cause of Easterwood’s suicide. As a majority of this Court recently recognized, “there may be more than one proximate cause of an injury. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (1) (B) (256 SE2d 916) (1979).” Coweta County v. Adams, 221 Ga. App. 868, 870 (2), 871 (473 SE2d 558) (1996). Unlike the majority, I would hold a jury is authorized to conclude that defendant breached a common law duty of care, and that harm to some one is a reasonably foreseeable consequence of that breach of duty. This Court previously quoted approvingly from Howard Brothers of Phenix City, Inc. v. Penley, 492 S2d 965 (Miss. 1986). There, the Supreme Court of Mississippi held: “In this state, in this day and age we are simply not going to assert that there is no common law duty, aside from statute, for a dealer in firearms to have in effect in his place of business some safety precautions and procedures designed to prevent [a patron from being taken hostage by a mentally disturbed customer].” Howard Brothers ofPhenix City, Inc. v. Penley, supra at 967 [1], 968. Citing extensively from that opinion, this Court subsequently reasoned: “That loaded rifles are especially dangerous and life threatening when possessed by mentally disturbed people is a matter of common knowledge. . . .” (Citations and punctuation omitted.) West v. Mache of Cochran, Inc., 187 Ga. App. 365, 366 (1), 369 (370 SE2d 169). I fully recognize that defendant here is simply a gun owner and not a firearms dealer, and that this is not a negligence per se situation. Yet, this defendant knew enough to hide or disarm the rifle when children were about. Human reasoning and foresight applied to common experience raises the question whether Deborah Easterwood’s schizophrenia rendered her so childlike that she deserved and required that extra care and attention proportionate to her diminished understanding, especially when confronting the allegations recently made by decedent’s sister against defendant, decedent’s longtime gentleman friend. “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8. On the other hand, “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” OCGA § 51-12-9. In my view, under the particular facts and circumstances of the case sub judice, a jury should determine whether defendant John Baxter’s carelessness in leaving a loaded rifle in plain view of a disturbed young woman was too remote under OCGA §§ 51-12-8 and 51-12-9 to permit recovery for decedent’s suicide. See Spires v. Goldberg, 26 Ga. App. 530, hn. 2, 3 (106 SE 585).

Decided March 5,1997.

Deming, Parker, Hoffman, Green & Campbell, Paul M. Hoffman, for appellant.

Hawkins & Parnell, William H. Major III, Edwin L. Hall, Jr., for appellee.


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A96A2422.
    FUHRMAN v. EDS NANSTON, INC. et al.
    (483 SE2d 648)
   McMURRAY, Presiding Judge.

Plaintiff Fuhrman filed this defamation and tortious interference action against her former employer, defendant EDS Nanston, Inc., and a management person who was her superior during that employment, defendant Trapp. Plaintiff appeals the grant of summary judgment in favor of defendants. Held:

1. During discovery plaintiff identified more than 40 allegedly defamatory remarks made by defendant Trapp or other co-workers, and for which the corporate defendant is alleged to be vicariously liable. But plaintiff has failed to offer any evidence of affirmative or express orders from the corporation to its employees directing them to slander plaintiff, thus no vicarious liablity for slander can be assigned to the corporation. Safety-Kleen Corp. v. Smith, 203 Ga. App. 514 (417 SE2d 171); Lepard v. Robb, 201 Ga. App. 41, 42 (410 SE2d 160).

2. Nor is defendant Trapp liable for defamation. As to Trapp’s statements to plaintiff, there was no publication to a third person and thus no cause of action for defamation. Sigmon v. Womack, 158 Ga. App. 47, 49 (1) (279 SE2d 254). Statements by Trapp to other coworkers were not defamatory because they were expressions of opinion concerning plaintiff’s professional abilities. Elder v. Cardoso, 205 Ga. App. 144 (421 SE2d 753).

And any allegedly defamatory statements made by Trapp to potential employers of plaintiff were invited. Ga. Power Co. v. Busbin, 249 Ga. 180, 181 (289 SE2d 514); Sophianopoulos v. McCormick, 192 Ga. App. 583, 584 (385 SE2d 682). Plaintiff’s argument that she was entitled to expect any statement to a potential employer to reflect the high rating she received in a formal evaluation only a few weeks prior to her termination is disingenuous in view of the wealth of evidence as to the events which had transpired afterwards, culminating in her termination. See also Kenney v. Gilmore, 195 Ga. App. 407 (393 SE2d 472).

3. In the second count of her complaint, plaintiff alleges that false allegations told to her prospective employers by defendant Trapp constitute tortious interference with contractual rights for which the corporate defendant is vicariously liable. In the absence of evidence of contractual rights with which defendants could interfere, this claim lacks merit. Lake Tightsqueeze v. Chrysler &c. Svcs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486).

Even assuming that the intended claim is for tortious interference with business relations, this claim fails to present a material issue of fact since the uncontradicted evidence fails to show that defendant induced a third party or parties not to enter or continue a business relationship with the plaintiff. Labat v. Bank of Coweta, 218 Ga. App. 187, 189 (2) (460 SE2d 831).

Decided March 5,1997.

George M. Johnson, for appellant.

Webb, Carlock, Copeland, Semler & Stair, David D. Cookson, Douglas W. Smith, for appellees.

4. Plaintiff’s final enumeration of error complains of the superior court striking and refusing to consider her second affidavit filed nine days after the hearing on defendants’ motion for summary judgment because lacking a proper foundation. Pretermitting the several grounds upon which the striking of the affidavit might be sustained, we note that the affidavit if considered, failed to alter the result of our conclusion that the entry of summary judgment in favor of defendants was proper. Any error in striking the affidavit was harmless.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Pope, Presiding Judge.

text:
    A96A2544.
    UNITED TECHNOLOGIES CORPORATION et al. v. GAINES.
    (483 SE2d 357)
   Pope, Presiding Judge.

On April 16, 1992, Aurora Gaines filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Georgia. The bankruptcy case was converted to a Chapter 7. case and was closed after being resolved by an appointed trustee. On December 3, 1993, Gaines filed a personal tort action in the Superior Court of Muscogee County against United Technologies Corporation d/b/a Pratt & Whitney Division and two of its employees, Steven Hodge and Bobby Herring, for acts allegedly committed between May 1989 and February 1992. United and Herring moved to dismiss Gaines’ complaint under OCGA § 9-11-17 (a) arguing that Gaines was not the proper party to prosecute the claim because she had failed to schedule it in her bankruptcy petition as a potential asset, and thus, that the claim remained an asset of the bankruptcy estate even though the bankruptcy case had been closed.

In response to the motion to dismiss, Gaines requested time from the superior court to reopen her bankruptcy case. The superior court granted the request. Thereafter, Gaines caused her bankruptcy case to be reopened, and the bankruptcy court appointed Michael Cielinski as trustee of the estate. Subsequently, United and Herring moved the superior court to substitute Cielinski as the real party in interest. The trial court denied the motion to substitute, and we granted United and Herring’s application for interlocutory review. Upon review, we conclude that Cielinski is the real party in interest regarding the tort action, and thus that the superior court erred in denying the motion to substitute.

In this state, “[ejvery action shall be prosecuted in the name of the real party in interest.” OCGA § 9-11-17 (a). To determine who that party is, one must look to the substantive law and determine who owns the claim and who has the right to pursue an action on the claim. See Rigdon v. Walker Sales &c., 161 Ga. App. 459, 462 (288 SE2d 711) (1982). In this case, the substantive law at issue encompasses both federal bankruptcy and state law.

Under 11 USC § 541 (a) (1) “all legal or equitable interests of [a] debtor in property as of the commencement of the [bankruptcy] case” becomes property of the bankruptcy estate. This includes causes of action, regardless of whether or not such actions are assignable or transferable by the debtor under state law. See 11 USC § 541 (c) (1) (A); Integrated Solutions v. Service Support Specialties, 193 BR 722, 727-728 (11) (D. N. J. 1996). Therefore, by preemptive operation of federal law, when Gaines filed for bankruptcy the cause of action at issue became part of the bankruptcy estate even though OCGA § 44-12-24 normally prohibits the assignment of personal tort causes of action. Once Cielinski was appointed as trustee of the estate, “title” to the cause of action passed to him. And, as such, absent a refusal on his part to do so, he acquired the right alone to prosecute the action. See Gochenour v. George & Francis Ball Foundation, 35 FSupp. 508, 517 (S. D. Ind. 1940), aff’d, 117 F2d 259 (7th Cir. 1941); Nagle v. Commercial Credit Business Loans, 102 FRD 27, 30 (2) (E. D. Pa. 1983). Thus, when Cielinski was appointed trustee, Gaines was divested of title to the cause of action, and Cielinski became the real party in interest.

We reject Gaines’ argument that she may prosecute the action in her own name because Cielinski authorized her to do so by “assigning” her the right to prosecute the action while he retained legal title to it. Although the purported assignment was memorialized in two consent orders issued by the bankruptcy court, Gaines’ argument nevertheless must fail for two reasons. First, if the assignment is viewed as a full assignment of all rights, as United and Herring contend it should be, it would clearly be in violation of OCGA § 44-12-24. While property, by virtue of 11 USC § 541, automatically becomes part of a bankruptcy estate despite its transferability under state law, a bankruptcy trustee acquires only what the debtor had and may not dispose of the property in violation of state law. Therefore, Cielinski would be bound by OCGA § 44-12-24 and thereby could not transfer the cause of action to any other person. See In re Schauer, 835 F2d 1222, 1225 (1), (2) (8th Cir. 1987) (applying Minnesota state law to a trustee’s attempt to dispose of property); Integrated Solutions, 193 BR at 729 (14), (15) (applying New Jersey state law to a trustee’s attempt to transfer a tort action). Second, if the assignment is viewed as a transfer of less than legal title, as is urged by Gaines, the trustee still owns the cause of action, and therefore, as set forth above, remains the real party in interest. See generally Equitable LifeAssur. Society v. Tinsley Mill Village, 249 Ga. 769, 771-772 (2) (294 SE2d 495) (1982).

Decided March 5,1997.

Stuart, Irvin, Stanford & Kessler, A. McArthur Irvin, Gary R. Kessler, Arnall, Golden & Gregory, Jerome L. Kaplan, Ronald C. Thomason, for appellants.

Meacham & Earley, Christopher L. Meacham, Thomas M. Jones, Page, Scrantom, Sprouse, Tucker & Ford, Mark R. Youmans, Adams & Hemingway, Ward Stone, Jr., Carolyn E. Moller, for appellee.

Accordingly, we reverse the denial of United and Herring’s motion to substitute Cielinski for Gaines as the real party in interest.

Judgment reversed.

Andrews, C. J., and Smith, J., concur.

       OCGA § 44-12-24 provides in pertinent part that “a right of action is assignable if it involves, directly or indirectly, a right of property. A right of action for personal torts or for injuries arising from fraud to the assignor may not be assigned.”


author: Johnson, Judge.

text:
    A97A0036.
    SHAW v. THE STATE.
    (483 SE2d 646)
   Johnson, Judge.

Robert Milton Shaw was indicted for first degree vehicular homicide, serious injury by vehicle, driving while under the influence of drugs, reckless driving, improper passing in a no passing zone, and driving without proof of insurance. All the charges arose out of the same November 1994 incident.

At the call of the trial calendar on February 19, 1996, Shaw announced that he had hired a new attorney the day before, who could not be present. The court continued the case to the next day, but Shaw’s new attorney did not appear then, either. Shaw refused to give responsive answers to the court’s questions about the eleventh-hour hiring. In response to what it saw as Shaw’s deliberate and successful attempt to force a continuance, the trial court revoked Shaw’s bond, and he was incarcerated for 20 days. Shaw was released pursuant to an order from this Court finding the revocation improper, and ordering that his bond be reinstated and that he be released instanter.

Decided March 5,1997

William C. Head, for appellant.

Fredric D. Bright, District Attorney, Paul L. Groth, Assistant District Attorney, for appellee.

Shaw then filed a plea in bar, contending that his improper incarceration awaiting trial constituted punishment for the charges he was facing, and that any further prosecution would place him in double jeopardy for the same offense, in violation of the federal and state constitutions, and three Georgia statutes. The trial court denied the plea in bar, and Shaw appeals. We affirm.

1. The Fifth Amendment’s double jeopardy clause protects a criminal defendant against three forms of abuse: (1) a second prosecution for the same offense, following an acquittal; (2) a second prosecution for the same offense, following a conviction; (3) multiple punishments for the same offense. United States v. Halper, 490 U. S. 435, 440 (109 SC 1892, 104 LE2d 487, 496) (1989). The Georgia constitutional and statutory protections against double jeopardy also apply to multiple prosecutions or punishments for the “same offense” or “same crime,” to offenses arising from the “same conduct” or “same transaction,” and to “lesser included offenses.” See Ga. Const, of 1983, Art. I, Sec. I, Par. XVIII; see OCGA §§ 16-1-6; 16-1-7; 16-1-8; see generally State v. Steien, 214 Ga. App. 345, 346 (447 SE2d 701) (1994). Shaw’s double jeopardy claim fails because his conduct in delaying his trial in February 1996, which was the basis for the bond revocation, was not the same as his conduct in operating a motor vehicle in November 1994, which is the basis for the prosecution he still faces. Obviously, the 1996 conduct was also not a lesser offense included in the 1994 conduct. The trial court therefore was correct to deny the plea in bar.

2. Shaw also contends the improper bond revocation violated his due process rights under the Georgia and United States constitutions, and that prohibiting further prosecution on the underlying charges is an appropriate remedy for such a due process violation. This argument was not presented to the trial court, and so was waived. See generally In the Interest of C. T., 197 Ga. App. 300 (1) (398 SE2d 286) (1990).

Judgment affirmed.

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


author: Smith, Judge.

text:
    A97A0049.
    FRANCIS et al. v. STATE OF GEORGIA.
    (483 SE2d 643)
   Smith, Judge.

In this forfeiture case, Excelman Francis and Sylvia Samuel appeal from the trial court’s rulings dismissing their claims to seized property and granting judgment of forfeiture.

Officers from the Tri-Cities Narcotics Task Force were notified by customs officials that a package containing cocaine was shipped from the U. S. Virgin Islands to the address at which Francis and-Samuel resided. The officers obtained a search warrant and made a controlled delivery of the package. Francis accepted the package and was arrested. A search of the apartment produced 8.6 grams of marijuana in addition to the 424.5 grams of cocaine in the package. The officers also seized $5,198 in U. S. currency, a 1986 BMW registered in Florida, a black counterfeit money detector, and a .25 caliber semiautomatic pistol.

The State filed a notice of seizure pursuant to OCGA § 16-13-49 (n) within 60 days of the seizure, and Francis and Samuel timely filed claims. The State then filed a complaint for forfeiture, which Francis and Samuel answered. Francis and Samuel filed motions to suppress and for summary judgment, and the State moved to dismiss appellants’ claims as insufficient and for judgment of forfeiture. The trial court granted the State’s motion to dismiss the claims and granted judgment of forfeiture.

1. Francis contends the court erred in dismissing his claim. “It is well established that the legislature may impose pleading requirements in special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements. [Cits.]” State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994). Compliance with the strict statutory requirements is necessary. Jarrett v. State of Ga., 220 Ga. App. 559, 560-561 (1) (472 SE2d 315) (1996). Forfeitures are such special statutory proceedings. OCGA § 16-13-49 (n) provides a procedure the State may use if the estimated value of seized property is $25,000 or less; it includes the pleading requirements applicable to claims by the owners of the seized property.

Judging Francis’s claim in light of the specific requirements of OCGA § 16-13-49 (n) (4), it is clearly deficient. The statute provides that in addition to being signed by the owner “under penalty of perjury,” the claimant’s pleading must satisfy seven requirements by setting forth: the caption of the proceedings and the claimant’s name and mailing address; the “nature and extent of the claimant’s interest in the property; [t]he date, identity of the transferor, and circumstances of the claimant’s acquisition of the interest in the property; [t]he specific provision of this Code section relied on in asserting that the property is not subject to forfeiture; [a]ll essential facts supporting each assertion; and [t]he precise relief sought.” OCGA § 16-13-49 (n) (4) (C)-(G). '

In his signed claim, Francis gave his name and address. Beyond that, he stated only that he was the registered owner of the car, that he was “not legally accountable for the conduct giving rise to its forfeiture” (tracking the language in OCGA § 16-13-49 (e) (1) without identifying the Code section), and that the car was not purchased with drug profits or used to convey drugs. The claim fails to set forth the date of the transfer, the identity of the transferor, the circumstances of acquisition, the provisions of the statute relied on, or any facts supporting Francis’s assertion that he is not “legally accountable for the conduct” leading to the seizure. The trial court did not err in concluding that Francis’s claim was insufficient.

2. Samuel filed a claim in which she stated she was the owner of the currency, the counterfeit money detector, and the pistol seized. Her claim contains more information than that of Francis. It identifies the sources and the dates of transfer of the currency, the counterfeit money detector, and the pistol. It also states that Samuel is not “legally accountable for the conduct giving rise to the forfeiture.” The claim does not, however, identify the provisions in the statute relied upon for this conclusion, nor does it state the factual circumstances under which Samuel acquired most of the items or recite any facts supporting her assertions that she is an innocent owner.

Great particularity is required in a claim for seized property “to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” State of Ga. v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519) (1994). In Harris v. State, 222 Ga. App. 267 (474 SE2d 201) (1996), this Court acknowledged that the legislature could impose pleading requirements in special statutory proceedings, but held that those requirements must be interpreted reasonably; “the [forfeiture] statute’s attempt to assure legitimacy can only go so far.” Id. at 268-269.

A majority of this Court held in Harris that the claim there was sufficient. But the claim in Harris complied in far greater measure with the requirements of OCGA § 16-13-49 (n) (4) than the claim in this case.

(a) The opinion in Harris addressed only the claim to currency. The claim in Harris, however, not only itemized the various sources of the currency, but also indicated the factual circumstances surrounding its acquisition by the claimant. For example, the claim did not state merely that some currency was derived from an inheritance and insurance proceeds. It detailed, the circumstances under which the claimant acquired the funds: that a portion of the funds was from “an inheritance [the claimant] had received as a result of his father’s death on October 13, 1994” and “a life insurance benefit in the amount of $350 he received because of his father’s death.” Id. at 268. The claim contained some assurance of the legitimacy of Harris’s possession of the currency.

In contrast, Samuel’s claim reveals little about the factual circumstances surrounding the acquisition of the funds. As to most of the currency, the claim states only when it was acquired and from whom, although an unidentified amount is characterized as “earnings” from two employers. The claim identifies $3,000 as a “personal loan” and $800 as a withdrawal from a savings account. Neither the purpose for the personal loan nor the reason for the withdrawal from savings is stated. Although the claim identifies $1,290 as an emergency payment from FEMA, it relates nothing about the factual circumstances under which it was issued.

(b) Even assuming, without deciding, that Samuel’s claim to the currency adequately complied with the statute, the same cannot be said for her assertion of ownership of items peculiarly associated with illegal transactions: the pistol and counterfeit money detector. Neither her bare allegation that she received the pistol as a gift from Francis — who was charged with trafficking in drugs — nor her statement that the counterfeit money detector was bought on the streets of St. Thomas offers any assurance of legitimacy. We must therefore agree with the trial court that Samuel’s claim, too, is insufficient and must be dismissed.

3. OCGA § 16-13-49 (e) provides that “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less or four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.” Francis and Samuel contend the trial court erred in entering a judgment of forfeiture because the contraband found in their residence was less than four ounces of marijuana, and they did not knowingly take possession of the cocaine in the package delivered to their residence by police officers, they did not open the package prior to Francis’s arrest, and the officers did not advise them of the contents of the package before arresting them. This contention has no merit.

Decided March 5,1997.

Melvin Ricks, for appellants.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

Quite apart from the fact that these factual contentions are contested by the State, a property owner’s rights to the seized property are dependent upon the filing of a statutorily sufficient claim to the property in response to the notice of forfeiture. See Greene v. State, 220 Ga. App. 292 (469 SE2d 428) (1996). We have determined in Divisions 1 and 2, supra, that the claims filed by Francis and Samuel were legally insufficient. The filing of a statutorily insufficient claim is tantamount to no claim having been filed. In such cases, the State need not even file a complaint for forfeiture; “all right, title, and interest in the property is forfeited to the [S]tate.” OCGA § 16-13-49 (n) (6). The trial court was therefore not required to reach the contentions in the answers filed to the complaint for forfeiture.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       A third person filed a claim to the car, alleging he had purchased the car from Francis prior to the seizure. This claim is addressed in the trial court’s order along with those of Francis and Samuel. Because the claimant is not a party to this appeal, however, we do not address his claim.

       Approximately three months after filing the claim, Francis amended his answer to the complaint for forfeiture and set forth most of the required information in the amendment. He never amended the claim. He never addresses this amendment — or his “answer” — and his brief refers (properly) only to the claim document.

       The dissent in Harris focused on the fact that Harris failed to disclose the source of the funds he used to purchase lottery tickets that resulted in his winning a portion of the currency seized.

       In the complaint for forfeiture, the State alleged that Francis accepted the package and when the agents entered Francis was opening it in his apartment amid numerous items of drug paraphernalia: several sets of scales, a food tray and beaker covered with white powdery residue, and small ziplock bags. The seized pistol and counterfeit money detector were also nearby.


text:
    A97A0117.
    COLLEY v. THE STATE.
    (483 SE2d 355)
   Johnson, Judge.

Terry Jerome Colley appeals from his armed robbery conviction. Briefly, the evidence presented at trial is as follows: A teller at the Newnan Savings Bank testified that Colley approached her station and asked for some penny rollers. She left her station to get the rollers. When she returned, Colley told her to give him all of her money. As he made his demand, he pulled his shirt up revealing a gun stuffed into the waistband of his pants. The teller gave Colley the money in her cash drawer. He then ran out of the bank with money in his hand and jumped into a gray car which sped away. The car was driven by Cheryl Pope. Pope’s three children, her fiance, Jervey Simmons, and Teresa Walker were also in the car. Colley told them he had robbed the bank. The group went to a local restaurant to eat. After eating, Colley gave Simmons and Pope some money and they all went shopping. When they returned to the car they were placed under arrest.

1. Colley’s trial counsel represented co-defendant Walker who pled guilty to a lesser offense prior to this trial. Colley now asserts that he was denied effective assistance at trial because his attorney failed to disclose a conflict of interest. “In order to prevail on a claim of ineffective assistance of counsel due to a conflict of interest on the part of his trial counsel, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his attorney’s performance. Cuyler v. Sullivan, 446 U. S. 335, 348 (100 SC 1708, 64 LE2d 333) (1979). In a case of joint representation of conflicting interests, the evil is in what the advocate is compelled to refrain from doing. Holloway v. Arkansas, 435 U. S. 475, 490 (98 SC 1173, 55 LE2d 426) (1978).” (Emphasis omitted.) Meyers v. State, 265 Ga. 149, 150 (2) (454 SE2d 490) (1995). In connection with Walker’s plea, the state agreed not to call Walker as a witness against Colley. Colley argues that this agreement limited the defenses he could present. However, he does not identify any possible defenses he was precluded from raising and does not indicate how the fact that the state agreed not to call Walker as a witness impinged upon Colley’s ability to pursue those defenses. From our review of the evidence, the supposition that Walker’s testimony could have exculpated Colley is completely illogical. Instead, it appears that Walker’s testimony could only have been detrimental to Colley’s case. Even if the state could not call the witness because of a condition of the plea agreement, Colley offers no explanation why he could not call Walker as a defense witness if he thought the testimony would be beneficial. Trial counsel was not, therefore, compelled to refrain from presenting a defense witness by his prior agreement with the state, because there was nothing to be gained by that witness’ testimony. Colley has not established that trial counsel’s representation of him was adversely affected by his representation of Walker. The trial court’s determination that Colley had not been denied effective assistance of trial counsel as a result of a conflict of interest was not clearly erroneous and does not demand reversal by this Court. See Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

2. Before the jury was brought into the courtroom on the day of trial, the issue of the clothing Colley was to wear at trial was taken up by the trial judge. From our review of the transcript, it appears that at the time of his arrest Colley was wearing brand new clothes he had purchased after the robbery. On the day of trial, however, he was provided with clothing he had been wearing earlier on the day of his arrest, not the new clothes. Colley initially acknowledged that a pair of shorts provided for him to wear at trial were his, but later claimed they were not his and said he did not want to wear them because they might be unsanitary. The trial judge explained to Colley that he had the right to wear civilian clothes at trial, but that since he had not arranged to have anyone bring him any other clothing in the two months between his arrest and trial, his options were to put on the clothes he had been wearing on the day of his arrest or to stay in his prison clothing. Colley told the judge he would wear his prison clothing and would appeal. Colley now does just that, asserting the trial court committed reversible error by requiring him to attend trial dressed in prison clothing.

It is well established in Georgia that a criminal defendant has a right to appear at trial in civilian clothes rather than prison clothing. A defendant does not, however, have the right to dictate to the court which civilian clothing he will wear. See Brown v. State, 201 Ga. App. 510, 511 (1) (411 SE2d 366) (1991). The trial judge specifically gave Colley two choices, he could wear either the civilian clothes or his prison clothing. He chose his prison clothing. The right to be tried in civilian clothing can be waived. Timmons v. State, 223 Ga. 450 (1) (156 SE2d 68) (1967). Colley was clearly aware of his right to wear civilian clothes at trial but nonetheless chose to appear in prison clothing. We see no grounds for reversal. See Powell v. State, 199 Ga. App. 544 (405 SE2d 540) (1991).

3. Finally, Colley asserts he was denied a fair trial due to prosecutorial misconduct because repeated references were made to his prison clothing. Colley’s complaint arises from the prosecutor having asked state’s witnesses to identify the perpetrator for the record. Instead, the record reveals that none of the witnesses referred to his attire as “prison clothing.” The witnesses variously described Colley as the man in “an orange suit,” “an orange jumper,” “the orange vest thing,” “the orange outfit,” “the orange uniform like I got on,” and “the orange jumpsuit” even when they were not asked to describe what Colley was wearing. Three of the witnesses were asked to describe what Colley was wearing after they had initially given only vague responses, such as, “he’s the defendant” to the prosecutor’s request to identify the perpetrator for the record. Colley contends that the prosecutor intended these responses to repeatedly call attention to his prison clothing. However, no objection was made at trial to the prosecutor’s general question to identify the perpetrator for the record or to any of the responses. Therefore, there is no ruling by the trial court with regard to this issue. Issues “presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court. [Cit.]” Butler v. State, 172 Ga. App. 405, 406-407 (1) (323 SE2d 628) (1984). Even if Colley had objected to the prosecutor’s questions or the responses, prosecutorial misconduct is a serious charge, “and once appellant raises a charge of prosecutorial misconduct, he has the duty to prove it by the record and by legal authority. [Colley] does not cite to any legal authority for his claim that [these questions rise] to the level of prosecutorial misconduct and, therefore, we find this enumeration of error to be without merit.” (Citations and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638-639 (4) (458 SE2d 671) (1995).

Decided March 5,1997.

Knight, Stemberger & Gomez, Mark A. Gomez, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Suzanne C. Wilson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.

       The new clothes were introduced as evidence at trial. A salesperson from the department store at which they were purchased testified they were purchased on the day of the robbery with $50 bills.


author: Judge Harold R. Banke.

text:
    A97A0144.
    BROWN v. THE STATE.
    (483 SE2d 641)
   Judge Harold R. Banke.

Derrick Brown was convicted of burglary, armed robbery, kidnapping, and possession of a firearm during the commission of a felony. On appeal, he enumerates three errors.

The evidence, viewed in the light most favorable to the verdict, reveals the following. Sims v. State, 266 Ga. 764, 765 (1) (470 SE2d 886) (1996). This case arose after Brown or one of his co-defendants kicked open the front door of Diane Davis’ home. The men ordered Davis, several of her young children, and two stepsons to the floor at gunpoint and demanded money. They took Davis’ jewelry and threatened to shoot unless someone told them the location of money they believed was on the premises. After their search was unsuccessful, the men forced one of Davis’ stepsons, Toronto Burdett, into Davis’ Cadillac, to help them find Burdett’s father, who they assumed had money. The perpetrators were apprehended as they left the scene of another burglary. Held:

1. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit a rational trier of fact to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). So long as some competent evidence, even if contradicted, supports each fact necessary to make out the State’s case, the verdict must stand. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). Any conflicts in the evidence must be resolved by the jury. Id.

Notwithstanding Brown’s argument to the contrary, the evidence of his identity and participation in each of the crimes was more than sufficient to satisfy Jackson v. Virginia. Several of the victims, including Toronto Burdett, identified Brown and testified to his participation in the crimes. As a party to the crimes, Brown was accountable for the actions of his co-defendants. McMonagle v. State, 196 Ga. App. 300, 301-302 (1) (395 SE2d 821) (1990); Wright v. State, 165 Ga. App. 790 (1) (302 SE2d 706) (1983). Moreover, Brown himself gave an incriminating statement after his arrest, admitting his association with the armed group that kicked in the door. In light of the evidence of guilt, a directed verdict of acquittal would have been inappropriate. Griner v. State, 192 Ga. App. 283 (1) (384 SE2d 398) (1989).

2. The trial court properly denied Brown’s motion to suppress the statement he made to police shortly after his arrest. The record shows that a detective administered Brown the warnings required under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), Brown signed the waiver form and agreed to talk with her without an attorney being present. The fact that Brown was tired, particularly when the detective curtailed the interview and arranged to resume the next day so Brown could rest, did not render his statement involuntary. Nor did the fact that he quit school in 1986 or 1987 before completing the tenth grade and did not read well. See Frymyer v. State, 179 Ga. App. 391, 392 (1) (346 SE2d 573) (1986).

3. The trial court properly denied Brown’s motion for mistrial. Brown’s co-defendants sought a mistrial after Brown asked a deputy whether, at this point in the trial, his mother’s cousin could be removed from the jury, but he refused to say which juror was his mother’s cousin. Brown’s co-defendants then moved for a mistrial, arguing that the presence of Brown’s relative on the jury could poison the jurors against them. After the trial court individually questioned each juror in chambers and each denied the relationship, Brown admitted that one of the jurors simply looked like his mother’s cousin. When the co-defendants renewed their motion, Brown inexplicably joined in.

Decided March 5,1997.

Patrick G. Longhi, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

We reject Brown’s argument that the trial court’s failure to issue curative instructions to eliminate any impression that the defendants had done something wrong entitled him to a mistrial. Brown never requested curative instructions, created the error through his own actions, and raised this argument for the first time on appeal. Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989) (litigants cannot acquiesce to ruling and complain of same on appeal); see Johnson v. State, 222 Ga. App. 722, 729 (11) (475 SE2d 918) (1996).

Judgment affirmed.

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

       The record shows that Brown received a second set of Miranda warnings prior to the second interview and he again signed a waiver of his rights.


text:
    A97A0171.
    SPENCER v. KYLE REALTY COMPANY, INC.
    (483 SE2d 639)
   Judge Harold R. Banke.

Mark C. Spencer sued Kyle Realty Company, Inc. (“Kyle”) for commissions, salary, reimbursement for tax contributions, prejudgment interest, and attorney fees. Kyle counterclaimed contending that Spencer had breached the parties’ exclusive employment agreement by engaging in a side business of selling cars. Kyle sought to recover overpaid commissions, court costs, and attorney fees. The jury found against Spencer and in favor of Kyle. Although the jury awarded no money damages to Kyle on its counterclaim, it awarded attorney fees to Kyle. On appeal, Spencer enumerates five errors.

Viewed in the light most favorable to the verdict and judgment, the record reveals the following. Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990). Kyle is a real estate company specializing in leasing and managing retail properties in shopping centers. On October 27, 1986 and November 5, 1986, Spencer and Kyle’s predecessor executed two documents comprising their employment agreement. The employment agreement provided for Spencer to receive an annual base salary of $20,000, an advance draw on commissions, and commission payments of 25 percent on all of Kyle’s leases and sales. According to its terms, either party could terminate the agreement without cause upon 30 days written notice.

A new agreement, as reflected in a February 15, 1988 memorandum, largely replaced the initial contract. Company president, Joseph H. Kyle, testified that he drafted the memorandum after Spencer and he negotiated the new terms. According to the new agreement, effective March 1, 1988, Spencer became an independent contractor and his salary and draw ceased. The new agreement afforded Spencer the opportunity to receive 50 percent commissions on leases where he was the procuring cause. The new agreement did not alter Spencer’s entitlement to “over-the-term” commissions.

Subsequent to the memorandum, Spencer worked solely on a straight commission basis until he voluntarily terminated his relationship with Kyle effective December 18, 1988. After March 1, Spencer received 50 percent commissions on the leases on which he was the procuring cause. Kyle issued Spencer a W-2 tax form for the first two months of 1988, and a 1099 form for the remainder of 1988, consistent with a change from employee to independent contractor status. On his 1988 tax return, Spencer listed himself as an independent contractor on Schedule C, Profit and Loss from Business (for sole proprietorship). Spencer admitted that he never asked for a salary after the memorandum, despite seeing company president, Joseph Kyle, on nearly a daily basis. Spencer testified that the first time he ever requested a salary was when he filed suit.

The jury found against Spencer on all his claims. The jury rendered a verdict in Kyle’s favor on its counterclaim but awarded “0.00” in damages, while awarding “10,000” for attorney fees and other expenses. Held".

1. In three enumerations, Spencer asserts several challenges to the award of attorney fees to Kyle on Count 2 of its counterclaim. See Generali - U. S. Branch v. Owens, 218 Ga. App. 584, 585 (2) (462 SE2d 464) (1995); OCGA § 13-6-11. Spencer objected to the injection of the issue of attorney fees at trial, contending that Kyle waived that claim by failing to assert it in the consolidated pretrial order. Spencer further objected to the trial court’s permitting Kyle to reopen its case to present evidence of attorney fees, computed as $13,684.50.

Pretermitting an analysis as to whether as counterclaimant Kyle could recover attorney fees, or whether the trial court abused its discretion in allowing the evidence to be reopened, we find as a matter of law that Kyle was not entitled to recover attorney fees. The jury’s verdict of zero on Kyle’s counterclaim was a judgment for Spencer. Meadows v. Douglas County Federal &c., 169 Ga. App. 150, 151 (1) (312 SE2d 169) (1983). An award of attorney fees in the absence of any finding of actual damages is improper as a matter of law. Wade v. Culpepper, 158 Ga. App. 303, 305 (279 SE2d 748) (1981). Accordingly, the judgment as to attorney fees must be reversed. Hilltop Terrace, Ltd. v. Baker, 261 Ga. 592, 593 (1) (408 SE2d 704) (1991) (judgment entered on contradictory verdict must be set aside).

Decided March 5,1997.

H. Darrell Greene & Associates, Paul Shimek III, for appellant.

Wiles & Wiles, John J. Wiles, Lee B. Perkins, for appellee.

2. The trial court properly denied Spencer’s motion in limine to exclude evidence of his 1987,1988,1989 personal income tax returns. Because he withdrew his claim for reimbursement for unpaid employer tax contributions, Spencer asserts that the tax returns were introduced for the improper purpose of disclosing his financial circumstances to the jury. See, e.g., Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991). We disagree. The evidence was relevant and material to show whether Spencer regarded himself as a salaried employee or an independent contractor during the time period at issue. See OCGA § 24-2-1; Livingston v. Barnett, 193 Ga. 640, 651 (2) (19 SE2d 385) (1942).

3. Spencer claims that the trial court abused its discretion in denying his motion for new trial and entering the judgment. On appellate review, in the absence of a material legal error, a jury’s verdict and the judgment entered thereon will not be disturbed if there is any evidence to support the verdict. Professional Consulting Svcs. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). The evidence adduced at trial showed that Spencer was paid as an independent contractor and his tax return for 1988 reflected the same. Spencer never requested a salary while associated with Kyle and delayed doing so for nearly four years after terminating the relationship.

Further, Spencer failed to prove with reasonable certainty the amount of damages purportedly due on unpaid commissions. See OCGA § 13-6-8; Bennett v. Associated Food Stores, 118 Ga. App. 711, 714-716 (2) (165 SE2d 581) (1968). Although Spencer claimed that Kyle owed him $26,887.93 in lease commissions, he failed to show the basis for his calculations. Spencer offered no evidence as to which leases remained in effect, which expired or were breached by the tenants. Spencer admitted he did not know whether any tenants had bankrupted, been evicted, or even paid their rent. Inasmuch- as Spencer failed to prove his damages with reasonable certainty, and the evidence showing that Kyle paid some of the over-the-term commissions, the trial court did not err in entering judgment in Kyle’s behalf. Horan, 197 Ga. App. at 153 (2).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0179.
    WYNN v. THE STATE.
    (483 SE2d 352)
   Johnson, Judge.

Terry Lamar Wynn appeals his conviction and sentence on charges of theft by receiving and simple battery. Finding the evidence sufficient to support the convictions and Wynn’s remaining enumerations of error without merit, we affirm.

1. We review Wynn’s challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). In the early morning hours of January 29, 1995, a police officer received a 911 dispatch to an apartment complex in Clayton County. When he arrived, a young, very upset woman with a swollen lip and eye and blood-covered sweater came running to his car. The woman, who did not testify at trial, told the officer that Wynn forced her into a van, made her accompany him to the apartment, and beat her. This victim also stated she believed the van to be stolen because it had a broken steering column. The officer found Wynn lying in the back of the van. The van’s owner testified that it was stolen approximately two weeks before Wynn’s arrest, that the steering column was not broken before the theft, and that no keys were in the van when it was taken. Wynn testified and admitted he hit the victim in the face while they were in the apartment; however, he claimed he was justified in doing so because she was using abusive language and attempting to take money out of his pocket.

This evidence supports the convictions. Wynn admitted hitting the victim in the face, and even assuming his justification defense was viable, the jury was not required to believe it. See Jenkins v. State, 241 Ga. 212 (244 SE2d 868) (1978). These circumstances were also sufficient to authorize a conviction for theft by receiving. Sanders v. State, 204 Ga. App. 545, 546-547 (1) (a) (419 SE2d 759) (1992); Weaver v. State, 169 Ga. App. 890, 892-893 (4) (315 SE2d 467) (1984).

2. The trial court did not err by allowing the officer to repeat the victim’s statements, which were made in the first few minutes after the excited and upset young woman approached the officer asking for assistance. The trial court determined these statements to be part of the res gestae, and its finding is not clearly erroneous. See McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136) (1995).

3. Wynn also claims the trial court erred by admitting a portion of the victim’s statement to the officer which mentioned that Wynn had forced her into the van and brought her to the apartment complex. He claims this statement impugned his character by injecting the uncharged crime of kidnapping into the trial. We find no error. The state was entitled to inform the jury of all the circumstances surrounding the commission of the crimes for which Wynn was on trial. The statement showed the reason the victim gave for being with Wynn that night; therefore, this evidence formed part of the res gestae and was admissible even though it did not reflect positively on Wynn’s character. See Sprattling v. State, 218 Ga. App. 576, 577 (1) (462 SE2d 461) (1995).

4. Wynn claims the trial court improperly limited his ability to testify regarding the victim’s bias against him. In support of this claim, he shows the trial court sustained an objection to his attorney’s question, “And what was [the victim] like when you would see her?” The trial court also sustained a hearsay objection to Wynn’s testimony that the victim was “talking about money” just before Wynn hit her, and the court would not allow Wynn to testify regarding his reasons for not wanting to have sex with the victim. Even if these rulings were error, the transcript of Wynn’s testimony clearly shows he was allowed to present evidence that he and the victim had previously dated and that she harbored anger against him over issues of money and other women. In light of this other evidence showing the relationship between the defendant and victim, and the overwhelming evidence from independent sources showing Wynn’s guilt, including Wynn’s own admissions, any alleged error in excluding the proffered testimony was harmless beyond a reasonable doubt. See Wyatt v. State, 222 Ga. App. 604, 605 (1) (475 SE2d 651) (1996); Moclaire v. State, 215 Ga. App. 360, 362 (3) (451 SE2d 68) (1994).

Wynn also claims the court erred by prohibiting his counsel from mentioning in his opening statement prior difficulties between the defendant and victim. “[T]he trial court has a sound discretion to control the content of the opening statement of either party, particularly with regard to matters of questionable admissibility.” Sims v. State, 251 Ga. 877, 879 (3) (311 SE2d 161) (1984). As the trial court had not determined the admissibility of this evidence, it did not abuse its discretion by preventing Wynn’s counsel from mentioning the evidence in opening statement.

5. “The trial court did not err in failing to charge the law requiring corroboration of an accomplice’s testimony, absent a request to do so. [Cit.]” Thornton v. State, 264 Ga. 563, 578 (23) (i) (449 SE2d 98) (1994).

6. Wynn claims the state gave him insufficient notice of its intent to use his prior convictions in aggravation of his sentence. Because he failed to object to the introduction of those prior convictions, he waived this claimed error. Tillman v. State, 217 Ga. App. 269, 270 (2) (457 SE2d 228) (1995).

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided March 5,1997.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.


text:
    A97A0216.
    YOUNG v. THE STATE.
    (483 SE2d 636)
   Johnson, Judge.

Law enforcement officers searched the home of Isaac Thomas Young without a warrant. After finding 114 grams of cocaine in the home, they arrested Young and charged him with trafficking in cocaine, possession of cocaine with intent to distribute within 1,000 feet of a school, and possession of cocaine with intent to distribute within 1,000 feet of a public park. See OCGA §§ 16-13-31; 16-13-32.4; 16-13-32.5. Young signed a confession while he was in custody, and later filed a motion to suppress both the cocaine and the confession. The trial court denied the motion. After a jury trial, Young was convicted on all counts. Young appeals, and we affirm.

1. Young contends the trial court erred in denying his motion to suppress without hearing any evidence, because the state bears the burden of showing the validity of a warrantless search.

OCGA § 17-5-30 (b) requires that a motion to suppress “be in writing and state facts showing that the search and seizure were unlawful.” Unless the defendant satisfies this requirement, the state has no duty to present evidence in rebuttal. Quinn v. State, 221 Ga. App. 399, 400 (1) (471 SE2d 337) (1996).

In his motion to suppress, Young alleged that: He was arrested at his home and, while he was under arrest, his home was searched; no probable cause existed for the arrest or search; while the police held him in illegal custody, things were illegally seized from his home, he was illegally interrogated, and he was coerced into making an involuntary admission of guilt, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

In cases involving warrantless searches, the factual showing required by OCGA § 17-5-30 need not be made in great detail, because in such cases “many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).” (Citation and punctuation omitted.) Hill v. State, 222 Ga. App. 839 (2) (476 SE2d 634) (1996). In such cases, motions to suppress are held sufficient if they “put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” (Citation and punctuation omitted.) Hall v. State, 216 Ga. App. 807, 809 (1) (456 SE2d 56) (1995).

The record shows that at the commitment hearing, Young was provided with several other facts he could have used to make a more detailed factual showing in the subsequently filed suppression motion, namely, that: The officers suspected drugs were in Young’s house because of information provided by a confidential informant; the lead investigating officer had never worked with this informant before; the officers obtained no warrant for the search; and they claimed a woman who shared the residence with Young consented to the search. At this hearing, Young was represented by the same counsel who later filed the suppression motion.

Although Young had enough facts to enable him to draft a motion that “put the state on notice as to the type of search involved . . ., which witness to bring to the hearing . . ., and the legal issues to be resolved,” Hall, supra, Young failed to include those facts in his motion. The allegations were not sufficient under OCGA § 17-5-30. See Hayes v. State, 168 Ga. App. 94, 95 (4) (308 SE2d 227) (1983) (motion insufficient which merely “stated that a certain vehicle was searched on or about July 17, 1982, and that the search was unreasonable, without probable cause and in violation of the Fourth Amendment”). Compare Hill, supra at 840; Hall, supra at 807; and Stanley v. State, 206 Ga. App. 125 (1) (424 SE2d 90) (1992). The trial court was therefore correct in finding that Young’s motion did not make the factual showing required by OCGA § 17-5-30.

2. Young also contends the trial court erred in charging the jury: ‘You will determine both the law and the facts.” Young claims we cannot be sure this alleged error had no effect on the verdict because the jury sent out four inquiries during their deliberations, including one concerning “three different types of doubt.”

The challenged charge is based on Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a), which provides that in a criminal case, “the jury shall be the judges of the law and the facts.” Young’s argument is based on the Supreme Court of Georgia’s interpretation of this constitutional provision to mean “jurors are made absolutely and exclusively judges of the facts in the case, and, they are, in this sense only, judges of the law. It is the province of the court to construe the law and give it in charge, and of the jury to take the law as given, apply it to the facts as found by them, and bring in a general verdict.” (Citations and punctuation omitted; emphasis supplied.) Conklin v. State, 254 Ga. 558, 570 (10) (b) (331 SE2d 532) (1985).

Decided March 5,1997.

Terry J. Marlowe, for appellant.

Britt R. Priddy, District Attorney, Max G. Factor, Assistant District Attorney, for appellee.

The state incorrectly contends the instruction at issue was taken verbatim from Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II. In fact, the January 1996 revision of Suggested Pattern Jury Instructions, which was current at the time of Young’s trial, contained the following charge instead: “Members of the jury, it is my duty and responsibility to ascertain the law applicable to this case and to instruct you on that law, by which you are bound. It is your responsibility to ascertain the facts of the case from all the evidence presented. It then becomes your duty and responsibility to apply the law I give you in the charge to the facts as you find them to be.” Id. at 9 G. See generally State v. Freeman, 264 Ga. 276, 278 (444 SE2d 80) (1994).

In deciding whether a particular jury instruction was erroneous, we consider it in light of the entire charge. Slaughter v. State, 217 Ga. App. 449, 451 (3) (459 SE2d 168) (1995). Even if error is shown, where it is highly probable that the error did not contribute to the verdict, it will be held harmless. See Winfield v. State, 210 Ga. App. 849, 852 (3) (437 SE2d 849) (1993).

The transcript shows that the trial court instructed the jury on the presumption of innocence, the elements of each charged offense, and the state’s burden to prove each element and every material allegation of the indictment beyond a reasonable doubt. The court also recharged the jury appropriately in response to each of their inquiries. Young does not contend the charge contained any other error, and does not show how the instruction he challenges could have misled the jury or contributed to the verdict in any respect. Considering the charge in its entirety, we find no harmful error. See Hall v. State, 201 Ga. App. 133, 135 (5) (410 SE2d 448) (1991). '

Judgment affirmed.

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

       We also note that a motion to suppress was not the proper vehicle for a challenge to the admissibility of Young’s confession. See Robinson v. State, 208 Ga. App. 528, 530 (2) (430 SE2d 830) (1993).


text:
    A97A0272.
    COHEN v. CAPCO SPORTSWEAR, INC.
    (483 SE2d 634)
   Smith, Judge.

Capeo Sportswear, Inc. brought suit against Amalgamated T-Shirts d/b/a T-Shirt Inn to recover $62,444.39 for merchandise purchased on account. Capeo also sought a recovery against Stuart Cohen, as the guarantor of Amalgamated’s account. Amalgamated answered and admitted owing a debt on account to Capeo but did not admit it owed the amount alleged and did not specify the amount owed. Cohen denied personally guaranteeing Amalgamated’s debt. The trial court dismissed Amalgamated’s answer for failing to specify the amount owed as required by OCGA § 9-10-112. Capeo then moved for summary judgment, which was granted against both defendants. This appeal by Cohen ensued.

The record shows that Cohen was the sole shareholder of Amalgamated. When Amalgamated sought to purchase merchandise from Capeo on credit, Capeo requested that Cohen submit a financial statement and personally guarantee payment. In response, Cohen sent Capeo his personal financial statement and a signed, handwritten note on Amalgamated letterhead, in which he stated: “I am happy to personally guarantee our acct.”

Amalgamated did not pay its account, and Capeo maintained that Cohen’s note constituted a personal guaranty. The trial court apparently agreed with Capeo, and Cohen contends this was error. He argues that his note was not intended as a personal guaranty but was merely an offer to sign a formal guaranty agreement in the future, if Capeo sent him one. The sole issue on appeal is whether the trial court properly construed the handwritten note as Cohen’s personal guaranty. We agree with Capeo and the trial court that the note is a guaranty, and we affirm.

1. We find no merit in Cohen’s argument that the note was signed in his representative capacity and thus could not bind him personally. Cohen’s reliance upon Kramer v. Johnson, 121 Ga. App. 848 (176 SE2d 108) (1970), is misplaced. In Kramer, representatives of a corporation signed a note. Their signatures indicated they were signing as officers of the corporation, but the note itself did not disclose the identity of the represented corporation. The Kramer court applied the predecessor statute of former OCGA § 11-3-403 to determine whether the signing agents of a principal were liable. We held that judgment on the pleadings for the plaintiff note holder was improper notwithstanding the fact that the identity of the corporation was not disclosed in the note because the makers’ signatures clearly indicated that they signed the note in their representative capacities.

The facts in this case are exactly reversed. The writing here disclosed the corporation; it was written on corporate letterhead. But the signature does not purport to be made in a representative capacity. Indeed, the clear meaning of the words written indicates an intention to be bound personally.

Decided March 5,1997.

Bearing & Klauber, Scott M. Klauber, Beborah F. Weiss, for appellant.

Law Offices of J. Christopher Simpson, Roy B. Reagin, Jr., for appellee.

The facts here are similar to those in Vick v. Mercer, 194 Ga. App. 785 (391 SE2d 680) (1990). In Vick, the corporation and two individuals signed a note. The individual defendants argued they signed the note in their representative capacities, but no such indication appeared after their signatures on the note. We held in Vick that the defendants’ reliance upon Kramer was inapposite and that the individual signatories were personally liable on the note. This case is even stronger than Vick because the substance of the writing shows clearly that Cohen signed it in his individual capacity. It would be nonsensical for him to execute a personal guaranty of the corporation’s account in his representative capacity; the corporation would then be guaranteeing its own note.

2. Cohen’s argument that the writing did not itself constitute a guaranty fails as well. “The form of the contract is immaterial, provided the fact of suretyship exists.” OCGA § 10-7-4. Unlike Yancey Brothers Co. v. Sure Quality Framing Contractors, 135 Ga. App. 465 (218 SE2d 142) (1975), relied upon by Cohen, the fact of suretyship appears on the face of the writing. Its meaning could not be plainer or clearer; he wrote that he was “happy to personally guarantee our account.” This unequivocally states his present intention to be a personal guarantor. The trial court did not err.

Judgment affirmed.

McMurray, P. J., and Beasley, J, concur.


author: Birdsong, Presiding Judge.

text:
    A97A0293.
    HALLBERG et al. v. FLAT CREEK ANIMAL CLINIC, P. C. et al.
    (483 SE2d 671)
   Birdsong, Presiding Judge.

Appellants Kay and John Hallberg appeal the order of the superior court granting summary judgment to appellees Flat Creek Animal Clinic, P.C. (clinic), Dr. Duane R Tallman and Dr. Joseph A. Harper. This is a suit for damages and loss of consortium; Mrs. Hallberg was injured when she fell on a ramp at the clinic.

Appellant Kay Hallberg had visited the veterinary clinic on at least seven occasions prior to her fall; each time she used the clinic ramp without incident, as it was the sole manner of ingress and egress. On the morning of her fall, she ascended the ramp without incident and took all three of her pets to the clinic. She departed by going down the same ramp. She returned that afternoon to pick up her pets and again walked up the ramp. It was a sunny, hot day, and visibility was good. No objects obscured Mrs. Hallberg’s view of the ramp. Mrs. Hallberg requested assistance in carrying the three pets from the building. A veterinary assistant picked up the cage containing Mrs. Hallberg’s 14-pound cat. Mrs. Hallberg voluntarily took control of her two dogs inside the clinic. As she exited the premises with her two dogs, Mrs. Hallberg slipped on the ramp and was injured. The ramp was not slippery and did not appear to be wet at the time. The ramp, which had a metal handrail located on each side, looked the same on the day of her fall as it had on these other occasions.

Mrs. Hallberg testified in her deposition that although she had been up and down the ramp on several occasions and had paid attention to its rough surface, she had never thought about its steepness. Mrs. Hallberg’s attention was directed to a photograph in which a seam-like crack is visible where the bottom of the ramp joins the concrete driveway. She admitted it was “true” that she was physically aware of the existence of this crack prior to the date of her fall. When asked to describe how her fall occurred, she testified: “I’ve thought about it, and I’ve thought about it, and I’m really not quite sure. . . . I could have tripped on this area [indicating the crack depicted in the photograph where the bottom of the ramp meets the driveway]. I’m not really sure.” (Emphasis supplied.) All Mrs. Hallberg knows is that the leashed puppy pulled her down the ramp and at some point she fell. She thinks she fell “because the ramp was too steep,” and she initially testified during her deposition there was no other reason for her fall. To her knowledge she did not trip or fall on a foreign substance. She was watching where she was going the entire time she was walking. At no point did she ever try to grab the handrail. She had noticed that morning that the railing was rusted and that one portion of it was not imbedded into the concrete; she does not recall either attempting to grab the railing to break her fall, or trying to bear her weight on either of the railings at any time that day. She does not know whether the rusted condition at the foot of one of the railings contributed to her fall. “Had the railing not been rusty, [Mrs. Hallberg] may have grabbed for it; but [she] knew the railing was rusty. It was very rickety. So [she does not] know.”

Mrs. Hallberg states in a subsequent affidavit that she knew the ramp handrail was rusted and in a very poor condition; she concluded the handrail could not be used when ascending or descending the ramp. She would have used the handrail had it been safe to use. When she started to fall, she would have “attempted” to grab hold of the handrail but she knew it would not help. Mrs. Hallberg further opines that had she been able to grab a stable handrail her fall would have been prevented.

In her affidavit Mrs. Hallberg also attempts to explain that, during her previous deposition testimony, she was nervous and tense and sometimes did not give complete answers; however now that she has had time to reflect, she has a clearer recollection of the day she fell and was injured. (Note: Mrs. Hallberg does not identify any specific portion of her deposition testimony that was caused either to be inaccurate or incomplete due to such nervous and tense condition. Further, the record reveals that Mrs. Hallberg swore to her deposition approximately five weeks after it was recorded and did not tender any changes thereto as to either form or substance.) Mr. Hallberg testified that, after his wife’s fall, he had measured the ramp “because the ramp looks steep to [him].”

Appellants allege two defects existed in the ramp which caused Mrs. Hallberg’s fall: an excessive ramp slope more than twice that allowed by county building codes, and appellees’ failure to maintain a handrail in good operating condition for effective use by its patrons. The trial court, citing Morrison v. Anderson, 221 Ga. App. 396 (471 SE2d 329) and Rose v. Kennesaw House, 203 Ga. App. 648 (417 SE2d 379), granted appellees/defendants’ summary judgment motion due to defendants’ lack of superior knowledge. Held:

1. The rule of self-contradictory testimony, discussed in. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) “is a rule for construing testimony separate from those rules allocating burdens of proof at trial and on motion for summary judgment.” “Whether such testimony is contradictory, and whether a reasonable explanation has been offered is a question of law.” Worley v. State Farm &c. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244). The broad explanation in Mrs. Hallberg’s affidavit for her self-contradictory deposition testimony does not constitute a reasonable explanation within the meaning of Prophecy Corp., supra. The explanation does not identify any particular inconsistent testimony to which it would apply and at best constitutes a belated attempt to avoid the application of the Prophecy Corp. rule to noticeably contradictory deposition testimony. Moreover, a subsequent claim that self-contradiction was caused by a general state of nervousness at the time the deposition was taken, generally will not constitute a reasonable explanation of any self-contradictory statements allegedly arising therefrom. To accept such an explanation as being reasonable would totally erode the Prophecy Corp. rule; we decline to promote such an erosion.

Mrs. Hallberg testified she believed she fell because the ramp was too steep, and that there was no other reason for her to fall. However, she also testified that she was “really not quite sure” how her fall occurred. As Mrs. Hallberg testified that, after repeatedly thinking about the incident, she did not know how she fell or what caused her to fall, any self-contradictory statements made by her to this testimony would be subject to the Prophecy Corp. rule.

2. In slip and fall cases, “ ‘[p]roof of a fall, without more, does not give rise to liability on the part of a proprietor. There must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee.’ ” Harpe v. Shoney’s, 203 Ga. App. 592, 593 (1) (417 SE2d 184). Mrs. Hallberg’s testimony can be construed only as establishing that she does not know how she fell or what caused the fall.

Assuming without deciding that some proof of fault on the part of the appellees exists, the question remains whether Mrs. Hallberg was ignorant of the dangers existing on the premises. The hazards posed by both the handrails and the ramp were “static” conditions on the premises. “An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees. OCGA § 51-3-1. The basis of the owner’s liability is a superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. The hazard[s] in this case [are] static condition[s] which [are] not dangerous unless someone fails to observe [them]. ... In cases involving static conditions, if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn [her] and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Also, we have held that where[, as in this case,] there is nothing to obstruct or interfere with the invitee’s ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved. A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citations and punctuation omitted.) MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420).

(a) Appellants’ contentions regarding the handrail do not give rise to a genuine issue of material fact which will render the trial court’s grant of summary judgment to appellees erroneous. Mrs. Hallberg admits in judicio in both her deposition and her filed affidavit that she noticed the defective handrail and concluded that it was unsafe to use. Clearly, as to the handrail, appellants are charged with equal knowledge to that of the appellees. “Thus, appellants] cannot show appellee[s’] superior knowledge, which is necessary in order for her to recover.” Harpe, supra at 593 (1); compare Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (435 SE2d 764). “Appellees also were under no duty to warn Mrs. [Hallberg] of a condition of which she had equal knowledge. ‘ “An invitee is under an equal duty with the owner to use her sight to discover any defect or dangers.” ’ ” Rose v. Kennesaw House, supra at 649. Further, after applying the rule of Prophecy Corp., the evidence offered by appellants falls short of showing any causal relationship between the rusted handrail and her fall. Mrs. Hallberg expressly testified that she did not know whether the rusted handrail and her knowledge of its condition contributed to her fall. Compare Harpe, supra at 593 (2).

(b) The evidence here is uncontroverted that appellant had gone up and down the ramp on at least seven different occasions. Her view of the ramp on these occasions was not obscured. While she may not have realized that the slope of the ramp exceeded the county building code provisions, the steepness of the ramp was open and obvious to Mrs. Hallberg. Having successfully negotiated the alleged dangerous condition numerous times previously, Mrs. Hallberg is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. Rose, supra at 649. Nothing prevented her “from appreciating the . . . steep slope of the ramp. Even when construed most favorably to her, the evidence demonstrates that the knowledge of the hazard attributable to [her] was at least equal to that of appellee[s].” Manley v. Gwinnett Place Assoc., 216 Ga. App. 379, 382 (3) (454 SE2d 577); compare Morrison v. Anderson, supra; Thomas v. Fabric Outlets, 169 Ga. App. 175 (311 SE2d 852).

(c) Metromedia Steakhouses Co. v. Ray, 219 Ga. App. 716 (466 SE2d 618); Martin v. Dunwoody-Shallowford Partners, 217 Ga. App. 559 (458 SE2d 388); and Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166 (450 SE2d 275) are distinguishable and are not controlling.

(d) The uncontroverted evidence shows that regardless whether Mrs. Hallberg asked the assistant to take control of one of her dogs, she voluntarily elected to take both dogs down the ramp at one time. Appellants’ claim of distraction must fail. First, Mrs. Hallberg affirmatively testified she was looking where she was going the entire time she was walking. Secondly, not only does Mrs. Hallberg fail to show she was distracted at the time of her fall but any existing distraction would have been self-induced by her own election to proceed down the ramp with both dogs. A defendant cannot take the benefit of a self-induced distraction to excuse her lack of care for her own safety. Redding v. Sinclair Refining Co., 105 Ga. App. 375, 379 (124 SE2d 688).

(e) Appellants’ reliance on the necessity rule as an exception, which if applicable would permit recovery notwithstanding her equal knowledge of the danger (see generally Carey v. Bradford, 218 Ga. App. 325 (461 SE2d 290)), is misplaced. It is now well established that this exception is applicable only to tenants of a dwelling — who otherwise might become captives in their own homes. Hohnerlein v. Thomas, 186 Ga. App. 282, 283 (367 SE2d 95), citing Taylor v. McDonald, 183 Ga. App. 320, 321 (359 SE2d 1).

Decided March 5,1997.

Webb & Lindsey, Eric K. Maxwell, for appellants.

Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Alan M. Maxwell, for appellees.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


text:
    A97A0410.
    BURTON v. THE STATE.
    (483 SE2d 658)
   Johnson, Judge.

A jury found Robert Lee Burton guilty of armed robbery and aggravated assault. The trial judge merged the two offenses, and sentenced Burton only on the armed robbery count. Burton appeals from the judgment of conviction and the denial of his motion for new trial. We affirm.

1. Burton claims the evidence is insufficient to support his conviction. On appeal, we view the evidence in the light most favorable to the verdict; the presumption of innocence no longer applies. An appellate court may not weigh the evidence, or speculate which testimony the factfinder chose to believe or discredit. Redding v. State, 217 Ga. App. 529 (458 SE2d 168) (1995).

Burton’s grandmother testified that Burton hit her in the head with a hammer, took her pocketbook, and left her house. After lying on the floor for awhile, she got up and called 911, describing Burton to the operator. The police apprehended Burton later that afternoon, finding him in possession of a pocketbook, necklace, knife, and other small items, all of which his grandmother identified as hers. Based on this evidence, a rational trier of fact could have found Burton guilty of armed robbery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Burton claims that the trial court erred in denying his motion for mistrial when the prosecutor allegedly stated in her closing argument that she personally believed the grandmother’s testimony over Burton’s. The trial court sustained the objection and instructed the prosecutor not to state her personal beliefs.

Although the objection, motion for mistrial, and rulings by the court were transcribed, the closing argument itself was not. Nor do we have a proper substitute for the transcript. See OCGA § 5-6-41. We must therefore presume the trial court acted properly. See Strickland v. State, 211 Ga. App. 48, 49 (2) (438 SE2d 161) (1993). Moreover, the court’s charge instructed the jury that arguments of counsel were not evidence, and that it was up to the jury to decide which witnesses to believe or disbelieve. Whether a mistrial is necessary to protect the defendant’s right to a fair trial is a decision largely within the discretion of the trial court. See Young v. State, 221 Ga. App. 462, 463 (1) (471 SE2d 523) (1996). In these circumstances, we find no abuse of discretion.

Decided March 5,1997.

Devon A. Orland, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A97A0411.
    BROWN v. THE STATE.
    (483 SE2d 633)
   Smith, Judge.

Anthony Brown was indicted on charges of murder and felony murder, OCGA § 16-5-1 (a), (c), and convicted of voluntary manslaughter, OCGA § 16-5-2 (a). His motion for new trial was denied, and he appeals. We affirm.

Construed to support the verdict, evidence was presented that Brown accompanied Kiana Dancie and another friend of hers to Dancie’s high school prom. After the prom, Dancie allowed Brown to sleep over at her house. They went to sleep and awoke sometime later to the sound of loud knocking and Dancie’s boyfriend’s voice calling out to her to open the door. She complied. Although it is disputed as to where Brown went to sleep that night — in Dancie’s bed in her room or on the sofa in the living room — it is not disputed that by the time Dancie allowed the victim inside, Brown was on the sofa pretending to be asleep. The victim came inside, saw Brown lying on the sofa, and began to argue with Dancie about Brown’s presence in the house. Dancie and the victim went to her bedroom and continued their discussion for about ten minutes. The victim then returned, cursing, to the living room and told Brown to leave. There was some testimony that the victim “reached for [Brown]” but was unable to touch him because of Dancie’s presence between the victim and Brown. It is undisputed, however, that the victim did not touch Brown, and Brown testified that the victim did not make threatening gestures toward him and that he did not observe the victim threaten Dancie.

Decided March 5,1997.

Letitia B. Delan, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jennifer M. Daniels, Assistant District Attorneys, for appellee.

Brown, whose car was blocked in by the victim’s car, walked outside, past the victim and Dancie, and Dancie closed the door behind him. Brown got his gun from his glove compartment, placed a bullet in the chamber, walked back inside and shot the victim in the stomach, killing him. Dancie testified that Brown entered the house and said, “Don’t you ever disrespect me” before he shot the victim. According to Brown’s statement to the police, he “wasn’t going to leave [Dancie] there because [the victim] was mad,” and he knew he had a gun in his car. He “was going to get it, get [Dancie], and just go.” When he reentered the house, the victim “jumped up,” and Brown shot him. Brown testified at trial that the victim “came lunging out and I pulled him a shot. I shot.”

We find no merit in Brown’s contention that the evidence was not sufficient to convict him of voluntary manslaughter. One commits voluntary manslaughter when he or she kills another person, “under circumstances which would otherwise be murder and . . . acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a). Although Brown testified that he did not intend to fire the gun when he reentered the house and that he was frightened, his intent and whether Brown acted “in the heat of passion or with justification depended largely on the credibility of the witnesses, which was for the jury to assess. [Cit.T Nelson v. State, 213 Ga. App. 641, 642 (1) (445 SE2d 543) (1994). Here, as in Nelson, the evidence was sufficient to authorize the jury to find Brown guilty of voluntary manslaughter beyond a reasonable doubt. See also Lee v. State, 202 Ga. App. 708 (1) (415 SE2d 290) (1992).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A0429.
    STEPHERSON v. THE STATE.
    (483 SE2d 631)
   Judge Harold R. Banke.

Valeria Stepherson was convicted of two counts of misdemeanor obstruction of an officer. On appeal, she enumerates three errors.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Sims v. State, 266 Ga. 764, 765 (1) (470 SE2d 886) (1996). During the early morning, a radio dispatcher informed Sergeant Lawrence Moseley that several black males in a Cadillac had fired some shots at a local tire company. Moseley spotted a Buick in the area and attempted to stop it. After winding down several side streets and alleys with the officer in pursuit, the Buick finally pulled over in front of Stepherson’s house.

As the officer approached the car, a hostile crowd, incensed he had targeted a group of African Americans, gathered. Stepherson emerged from the crowd and ordered the officer from her property. Several more officers arrived on the scene, and Stepherson escalated her involvement, swearing loudly at the officers, despite repeated requests that she be quiet and not agitate the crowd. Officer Ben Robinson attempted to arrest Stepherson after she directed her profanity at him (and his mother). After Stepherson backed away, flailing her arms, Robinson and Officer Mike Hargrove took her arms to escort her to a patrol car. When she continued to resist, the officers attempted to place her face down on the ground to handcuff her. During the ensuing struggle, Stepherson kicked Hargrove in the groin and placed her mouth on Robinson’s calf, but he jerked his leg away before sustaining any injury.

After the officers handcuffed her and sat her in the car, Stepherson began hyperventilating. The officers then received another call. Because they were short-handed and knew the jail would not accept Stepherson without one of them taking her for a physical examination to investigate her breathing problem, they decided to release her and take her into custody later.

Two days after this incident, Hargrove and Officer Lisa Naia obtained warrants for Stepherson’s arrest. Stepherson was charged with two counts of felony obstruction of an officer. Held:

1. The trial court did not err in excluding evidence of Stepherson’s civil action arising from this incident which she commenced ágainst Hargrove, Robinson, the City of Jesup and Wayne County several weeks after the accusation was filed. Stepherson maintains the evidence was admissible to prove the police did not take her into custody until the city received ante litem notice of her civil suit, a fact she claims undermines the State’s witnesses’ credibility and reveals the motive underlying her prosecution.

The record, which shows that the arrest warrant was sworn out two days after the incident, refutes this contention. Further, Stepherson’s legal authority for this proposition, all cases in which the State’s witnesses sued the accused based on the same facts involved in the prosecution, is factually distinguishable. Compare, e.g., Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401) (1990). Moreover, the State’s motive for bringing this action is not at issue here. Although Stepherson’s allegations warrant careful consideration in the civil action, we cannot say the trial court abused its discretion in concluding that they were irrelevant to the criminal charges. Nichols v. State, 221 Ga. App. 600, 602 (4) (473 SE2d 491) (1996).

Decided March 5,1997.

James A. Yancey, Jr., for appellant.

Valeria Stepherson, pro se.

Glenn Thomas, Jr., District Attorney, John B. Cloy, Assistant District Attorney, for appellee.

2. The trial court did not err by admitting the warrants for Stepherson’s arrest. Notwithstanding Stepherson’s argument to the contrary, Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) did not require the State to provide her with the warrants because they were not exculpatory. Moreover, inasmuch as witnesses testified to the dates and content of the warrants without objection, Stepherson could not demonstrate a reasonable probability that disclosure of the warrants would have altered the outcome of the proceedings, an essential element of a Brady violation. Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

3. The evidence, viewed in the light most favorable to the verdict, would permit a rational trier of fact to find all the essential elements of the offense. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The elements of misdemeanor obstruction of an officer are the knowing and wilful hindrance of any law enforcement officer lawfully discharging his or her duties. OCGA § 16-10-24 (a). Even verbal exchanges may be sufficient to establish the hindrance element. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992). Thus, the testimony that Stepherson purposefully kicked and attempted to bite the officers as they were assisting in the investigation was sufficient to support the jury’s verdict.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

       We also observe that it does not appear from the record that Stepherson elected to have the discovery rules in OCGA § 17-16-1 et seq. apply to these proceedings.