text:
    A00A2466.
    MEDINA v. THE STATE.
    (545 SE2d 366)
   Miller, Judge.

Carlos Medina, also known as Pedro Contes, was tried before a jury and found guilty of armed robbery, kidnapping, giving a false name to a law enforcement officer, and misdemeanor obstruction of a law enforcement officer. On appeal, he contends the trial court erred in overruling his challenge to the State’s use of peremptory challenges and in refusing to permit a defense exhibit to go out with the jury. We affirm.

1. In two related enumerations, Medina contends the trial court erred procedurally and substantively in evaluating his Batson challenge.

(a) Procedure. To evaluate claims that peremptory challenges were used in a racially discriminatory manner, the trial court must undertake a three-step process:

The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

Medina first contends the trial court impermissibly “collapsed the second and third steps of the analysis.” Specifically, Medina argues the trial court must accept or not accept the reasons provided by the State as race-neutral before moving onto step three, deciding whether the opponent has proven discriminatory intent. Neither the record nor the law supports this claim.

After the State used one of its six peremptory challenges to remove the only venireman of apparent Hispanic heritage, Medina interposed his Batson challenge. The State’s Attorney stated her reasons for the record, whereupon the court invited Medina’s response, stating: “Counsel, the State’s announced a reason. As long as those are neutral reasons, it’s not necessarily unconstitutional and selection could be allowed by the Court. . . .” Medina then argued that the State’s reasons for striking this potential juror were pretextual because they were not applied to other venire, purportedly similarly situated. The State’s Attorney noted she had actually struck one such similar venireman and then distinguished the circumstances of the accepted venire from those of the excused Hispanic juror. After further discussion, the court overruled Medina’s motion and allowed the peremptory strike to stand.

Medina incorrectly argues that the trial court must expressly accept or reject the proponent’s (here, the State’s) reasons as race-neutral before deciding whether the opponent proved racial motivation in the use of a peremptory strike. On the contrary, “[u]nless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race [-]neutral.” Here, the court’s determination that the proponent’s proffered reasons were race-neutral is implicit in the court’s solicitation of the opponent’s arguments why those reasons are not persuasive. There was no procedural error in the court’s analysis of Medina’s Batson challenge.

(b) Substantive Ruling. Relying on Chunn v. State, Medina argues the prosecution failed to show how its reasons were case-related. We disagree.

Although explanations for peremptory strikes must be reasonably case-specific, we have not required the proponent of the strike to draw a direct link between the characteristic of the juror that prompted the strike and the particular facts of the case. The stated reasons for striking the only venireman of Hispanic descent were that he was a young man, 22 years old, and a student who has held only part-time jobs and who had few ties to the community in Gwinnett County. The State’s Attorney specifically stated, “I don’t put people on that are that young. . . .” The race-neutral reason for striking young students with few ties to the community is case-related and reasonably specific. It remained the burden of Medina as the opponent to disprove these assertions or persuade the trial judge that they were pretextual. “The trial court’s findings concerning whether the opponent of the strike has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous.” Based on this record, we cannot say the trial court clearly erred in ruling that Medina failed to carry his burden of proof.

2. During cross-examination, Medina was permitted to confront the victim with a certified copy of the victim’s subsequent indictment for theft by taking, which basically accused the victim of converting the night deposit and petty cash from his employer. The witness admitted the charge was pending while denying the truth of the charge. Counsel was permitted to refer to those pending charges in closing argument. But the trial court refused to permit the indictment to go to the jury room with the rest of the exhibits, making analogy to the “continuing witness” objection. This evidentiary ruling is Medina’s third enumeration of error.

[T]he Confrontation Clause of the Sixth Amendment, as applicable to the [S]tates through the Due Process Clause of the Fourteenth Amendment, [guarantees] the defendant in a criminal trial both the general right to cross-examine witnesses against him and the more specific right to cross-examine a key [S]tate’s witness concerning pending criminal charges against the witness.

Decided February 5, 2001

Anna Blitz, for appellant.

Daniel J. Porter, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

Nevertheless, an indictment generally is not a competent method for impeaching a witness. So where the defendant fails to prove either that there has been a deal between the witness and the prosecution or that the witness has a hope of such a deal, it is not error for the trial court to refuse to allow the criminal defendant to attempt impeachment of a witness for the State with impermissible character evidence.

Here, the witness disavowed cooperating with the police in exchange for any plea bargain with sentence or charge leniency, as would arguably be relevant cross-examination. The admission or exclusion of evidence after a relevancy objection is committed to the sound legal discretion of the presiding judge, whose decision will not be disturbed on appeal absent a clear abuse of that discretion. In our view, the trial court did not manifestly abuse its discretion in excluding the document from the jury’s deliberations, since the indictment could not add to the truth of the charge admittedly pending against the witness.

Judgment affirmed.

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

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Punctuation and footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

       This potential juror was a young student without ties to the community.

       (Citation and punctuation omitted.) Jackson v. State, 265 Ga. 897, 898 (463 SE2d 699) (1995). What Jackson and Chandler, supra, 266 Ga. at 510, forbid is the court’s making a credibility determination as to the persuasiveness of the facially neutral reason in step two, as this shifts the burden of proof away from the opponent of the strike.

       210 Ga. App. 209, 210-211 (2) (435 SE2d 728) (1993). In Chunn, which antedates the latest Supreme Court rulings on peremptory strikes, this Court remanded for a post-trial hearing, where the State gave facially neutral reasons for striking three students and a Marine of defendant’s race without showing how those concerns were case-related.

       See Crutchfield v. State, 218 Ga. App. 360, 362 (3) (461 SE2d 555) (1995).

        Jones v. State, 240 Ga. App. 339, 342 (1) (523 SE2d 402) (1999).

       See Herrin v. State, 221 Ga. App. 356, 359 (471 SE2d 297) (1996) (in cruelty to children prosecution, prosecutor’s use of marital status and having children were legitimate factors for excluding potential juror).

       (Citation omitted.) Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

       Id. at 153 (2).

        Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). Accord Byrd v. State, 262 Ga. 426, 427 (2) (420 SE2d 748) (1992).

        Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993).

        Johnson v. State, 244 Ga. App. 128, 132 (1) (534 SE2d 480) (2000).

       See Belins v. State, 210 Ga. App. 259, 261 (2) (435 SE2d 675) (1993) (impeachment evidence showing bias or interest on the part of a key prosecution witness falls within the rule of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)).

        O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). Accord Conyers v. State, 234 Ga. App. 830, 832 (1) (507 SE2d 842) (1998).

       See James v. State, 270 Ga. 675, 677-678 (6) (513 SE2d 207) (1999).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A1930.
    ROBERSON v. WINN-DIXIE ATLANTA, INC.
    (544 SE2d 494)
   Smith, Presiding Judge.

Priscilla Roberson brought suit against Winn-Dixie Atlanta, Inc. to recover damages for personal injuries she incurred when she slipped and fell in a Winn-Dixie store in Decatur. The trial court granted summary judgment to Winn-Dixie, and Roberson brings this appeal. In three enumerations of error, she contends the trial court should have denied the motion for summary judgment because genuine issues of material fact remain for jury consideration, particularly as to Winn-Dixie’s constructive knowledge of a foreign object on the floor that caused her to fall. We do not agree, and we affirm the grant of summary judgment.

The evidence of record shows that Roberson visited the store to purchase milk and watermelon. After picking up the milk, she walked to the produce department looking for watermelon. She did not see it on display, but she observed a store employee emerging from the doors leading to the back room in the produce department. She was walking toward this employee when she slipped and fell. She testified on her deposition that this employee was not “close” to her and that he was closer to the doors than to her. According to Roberson, this employee came over to her after she fell, helped her up, and “reached down and scooped up some kind of substance” from the floor. She asked him what she had fallen on, and he told her it was “grapes.” Roberson called the manager and told him that the employee said she had slipped on grapes; the manager told her he would put the incident “on record.”

To demonstrate negligence in a foreign substance slip and fall case, a plaintiff must show that the defendant had knowledge, actual or constructive, of the substance and that she was without such knowledge. Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997). Although Robinson has been cited by both parties, the focus in Robinson was on the second portion of this requirement: that the plaintiff had knowledge of the hazard or did not exercise ordinary care to discern it.

In this case, that is not an issue. Roberson was not looking at the floor when she fell, but Winn-Dixie does not insist that because she was looking straight ahead she did not exercise due care. Similarly, contrary to Roberson’s argument, the “distraction” doctrine is not relevant because Winn-Dixie does not contend that Roberson had superior knowledge of the hazard.

The only issue in this case is whether Roberson established that Winn-Dixie had the requisite knowledge of the foreign substance to allow Roberson to show negligence on its part. Roberson does not attempt to show actual knowledge. Constructive knowledge may be proved in two ways: by showing that an employee of the defendant was present in the immediate area and could easily have seen the substance and removed it; or by showing that the substance was on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises. Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (b) (512 SE2d 2) (1999). Roberson maintains that Winn-Dixie’s constructive knowledge was shown through her testimony that an employee was in the area and told her she slipped on a grape.

But Khalil Karim, who worked in the produce department at the time of the incident, testified on his deposition that he was the only produce department employee on duty at that time. He testified he had no conversation with Roberson, and he did not assist her in getting up off the floor.

Roberson testified on her deposition that the person who helped her was a “produce man.” On appeal, she contends that this unidentified employee need not have been a produce department employee. But even if some other employee helped her, by Roberson’s own admission that employee was not in the immediate area when she fell and therefore could not have seen and removed anything on the floor before she fell. Winn-Dixie’s constructive knowledge therefore cannot be established through this employee. See Lovins, supra at 586 (1) (b) (i) (store employees could not easily have seen any foreign substance on floor); Kitchens v. Restaurant Mgmt. Svcs., 192 Ga. App. 313, 314 (385 SE2d 11) (1989) (employees must be able to discover and remove hazard for plaintiff to establish constructive knowledge).

As to the second method of establishing the store’s constructive knowledge, Roberson testified she had no idea how long the grape on which she allegedly slipped was on the floor. Karim testified that store policy required that the floor be inspected three times an hour to ensure that it was “clean, dry, and safe”; that a bell rang over the intercom system to remind employees to make these inspections; that making those inspections in the produce department was one of his duties; and that he had inspected the floor approximately fifteen minutes before Roberson fell and saw nothing on the floor. Under these circumstances, Winn-Dixie demonstrated its exercise of due care; Roberson was unable to counter that showing. Super Discount Markets v. Clark, 213 Ga. App. 132, 133-134 (443 SE2d 876) (1994). Because Roberson was unable to establish either actual or constructive knowledge on the store’s part, the trial court did not err in granting summary judgment in favor of Winn-Dixie.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

Decided January 11, 2001

Reconsideration denied February 6, 2001

Van C. Wilks, for appellant.

Fain, Major, Wiley & Brennan, Gene A. Major, Darryl G. Haynes, for appellee.


author: Blackburn, Chief Judge.

text:
    A00A2223.
    MASSEY v. THE STATE.
    (545 SE2d 66)
   Blackburn, Chief Judge.

In this out-of-time appeal following a trial by jury, Dwight David Massey appeals his conviction for burglary, contending both that the evidence was insufficient to support the verdict and that he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. Massey first contends that the evidence was insufficient to support the verdict.

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

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

Viewed in this light, the record shows that, on August 28, 1997, Jason Wilkie discovered that his apartment had been forcibly entered and burglarized while he was out of town. Wilkie’s furniture was destroyed, a number of items were stolen, including a computer, and food and beverages from the kitchen had been consumed. Massey’s fingerprints were found on empty soda cans and a bag of cheese which had been partially eaten. Approximately one year later, Massey was caught attempting to enter a locked and uninhabited building.

In this case, the evidence, though largely circumstantial, was sufficient to support a violation of OCGA § 16-7-1 (a), which provides: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” Massey argues, nonetheless, that his conviction must be reversed because the items taken from Wilkie’s apartment, including the computer, were never found, and, as such, there is no evidence linking him to the theft of such items. This contention, however, has no bearing on Massey’s conviction. His fingerprints on containers from consumed foodstuffs in Wilkie’s apartment directly placed him at the scene and provided compelling circumstantial evidence that Massey stole these items, even if he did not steal any others. Furthermore, the discovery of Massey’s fingerprints provided circumstantial evidence that he was at the scene of the crime during the time that the apartment was vandalized and other items were stolen. From this evidence, the jury could appropriately infer that Massey forced his way into Wilkie’s apartment for the purpose of committing the theft of the foodstuffs and/or any of the other items taken. Therefore, the evidence was sufficient to support the verdict. See Jackson v. Virginia, supra.

2. Massey also argues, for the first time on appeal, that his trial counsel rendered ineffective assistance in a number of ways. Massey, however, has waived this argument-because he did not raise it at the earliest practicable moment.

In Ponder v. State, our Supreme Court explained:

[T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.

The record shows that Massey’s motion for an out-of-time appeal filed by his appellate counsel was granted on April 5, 2000. On April 17, 2000, Massey, acting pro se, filed a motion for new trial; however, in this motion, he neither specifically alleged that his trial counsel rendered ineffective assistance nor requested a hearing on the matter. As such, Massey has waived his right to argue that his trial counsel was ineffective. See Ponder v. State, supra.

Decided January 23, 2001

Reconsideration denied February 6, 2001

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

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

        Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991).


author: Barnes, Judge.

text:
    A00A2534.
    GOODMAN et al. v. GLOVER et al.
    (544 SE2d 214)
   Barnes, Judge.

This legal malpractice case originates from the defense of a legal malpractice action against Clarence H. Glover, Jr. After a jury found he had committed legal malpractice and awarded the plaintiff $186,142.50, Glover and his professional corporation (“Glover”) sued his defense counsel, William S. Goodman and Goodman, McGuffey, Aust & Lindsey (“Goodman”), for legal malpractice. In his complaint, Glover alleges that Goodman committed malpractice by failing to move for a directed verdict on a specific defense. According to Glover, this “ironclad” legal defense, which he believes entitled him to a verdict in his favor either at trial or on appeal, was lost as a result of law that Glover claims precludes this Court from considering on appeal grounds not specifically asserted in a motion for directed verdict. Goodman denies that he failed to properly preserve the defense in his motion for directed verdict and also argues that he could not have proximately caused any harm to Glover because this Court rejected the notion that Glover’s “ironclad” defense would have resulted in a defense verdict in Glover v. Ware, 222 Ga. App. 297 (474 SE2d 1) (1996). After the parties filed cross-motions for summary judgment, the trial court, without explanation, granted judgment in favor of Glover for unliquidated damages in an amount to be determined at trial. We reverse because we are persuaded by Goodman’s proximate cause argument.

The record shows that the malpractice action against Glover arose out of his “failure to timely file an amended estate tax return seeking a refund for taxes paid under protest.” Glover, supra, 222 Ga. App. at 297. Glover defended this action, in part, by claiming the plaintiffs were not entitled to a tax refund as a matter of law even if he had timely filed the return because disclaimers, which he had prepared for the plaintiffs, were null and void. These disclaimers, according to Glover, were void because they were executed by a natural guardian instead of a guardian of the minor’s property appointed by the probate court. Glover’s malpractice claim against Goodman arises out of Goodman’s alleged failure to move for a directed verdict on this specific ground.

An essential element of a legal malpractice action is that any failure of an attorney “to exercise ordinary care, skill and diligence” must proximately cause the plaintiff’s damages. Tante v. Herring, 264 Ga. 694 (1) (453 SE2d 686) (1994). This Court reviews the grant of summary judgment de novo, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998).

The proximate cause analysis in this case turns on the opinion we issued in the underlying legal malpractice case. Glover, supra, 222 Ga. App. 297. The issue before us was Glover’s assertion “that the trial court erred in denying [his] motions for directed verdict and judgment notwithstanding the verdict.” Id. We summarized Glover’s argument as follows:

The verdict was not authorized, say the appellants, because the “case within the case” legally could not have been successful as the original disclaimers, for several reasons, were void ab initio and could not be resurrected. Therefore, the failure to file for a refund caused no damages, or so the appellants assert.

Id. We then declined to address all of the issues raised by the parties because our review of the evidence demonstrated that a directed verdict was not warranted by the evidence. Id. We specifically stated:

The evidence does not demand a finding that the disclaimers would have foreclosed the possibility of a tax refund in some amount, either through litigation or negotiation. There was ample expert evidence to support the jury’s finding that some refund would have been obtained. The amount of the verdict was within that authorized by the evidence. Therefore, the denials of the directed verdict and the motion for j.n.o.v. were proper.

Id. at 298.

Because we decided the appeal in the underlying legal malpractice case on the merits and reached the issue that Glover claims his g former defense counsel waived, Glover’s malpractice claim fails on proximate cause grounds. As a result, the trial court erred when it granted Glover’s motion for summary judgment and denied Goodman’s motion for summary judgment.

Judgment reversed.

Blackburn, C. J., and Eldridge, J., concur.

Decided January 17, 2001

Reconsideration denied February 6, 2001

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Christopher D. Balch, for appellants.

Beltran & Associates, Frank J. Beltran, Douglas V. Chandler, Kaufman, Chaiken, Miller & Klorfein, Charlotte K. Perrell, for appellees.


text:
    A00A2012.
    SMITH v. BROOKS et al.
    (545 SE2d 135)
   Smith, Presiding Judge.

Debbie Smith brought this action as custodian of Patrick Johnson, a ten-year-old child, after Patrick was accidentally shot and wounded by his brother Danny with a .22 rifle while visiting Gary Brooks, Jr. at the Brookses’ home. Smith contended that the Brookses were negligent in allowing the boys access to a firearm and ammunition while they were absent from the home. After discovery, including depositions of the parties and witnesses, the trial court granted summary judgment in favor of the Brookses. Because Smith has failed to show, as required, both that the Brookses negligently made available a dangerous instrumentality to their son and that they knew of a proclivity on the part of their son for engaging in the specific dangerous activity, we must affirm.

Construed in favor of the respondent, the evidence shows that Smith’s sons, Patrick and Danny Johnson, were ten and twelve years old respectively at the time of the incident. They told their mother they were going to the park, but Patrick went to the Brookses’ home instead and Danny followed him. When they arrived, they found 12-year-old Gary, Jr. home alone.

Both Gary, Jr. and Danny testified that Patrick continually asked to shoot the antique rifle hanging over the fireplace mantel. This single-shot .22 caliber rifle was approximately 100 years old, had not been fired for years, and was worn out and partially inoperable, requiring the use of a pair of pliers to remove a shell. The rifle, which had belonged to Mr. Brooks’s grandfather, was hanging above the mantelpiece between six and one-half and seven feet from the floor.

Patrick continued to ask to shoot the rifle until Danny told Gary, Jr. to “just let him do it so he’ll shut up.” But the rifle was unloaded, and Mr. Brooks kept all his other guns, all ammunition, and a knife collection locked in a gun cabinet in his bedroom. This cabinet was a solid oak cabinet with a half-inch plywood back, weighing between 75 and 100 pounds. It was kept locked, and Mr. Brooks kept the keys with him at all times. One or more of the boys pried open the back of the cabinet. According to Gary, Jr., he and Patrick used a screwdriver to pry off the back of the cabinet. Danny, on the other hand, contended that Gary, Jr. opened the back of the cabinet by himself and did so easily. Patrick claimed the cabinet was “already opened” when he first walked by.

Because the boys were unable to get into the drawer in which the ammunition was stored, they removed cartridges from another .22 rifle that was stored in the upper part of the gun cabinet. The boys then took turns loading the antique rifle in the living room and firing it out a window at the circuit breaker on a nearby telephone pole, each time removing the spent shell with a pair of pliers. After they reloaded the rifle for the final time, Danny was holding it in his lap with his finger on the trigger when Gary, Jr. slipped from the arm of his chair and struck him, causing the rifle to discharge. The bullet struck Patrick in the neck, injuring him.

Mr. and Mrs. Brooks testified that Gary, Jr. had been instructed not to touch any firearm without an adult present. They also stated that to their knowledge he had never before handled a firearm or ammunition without an adult present and had never disturbed Mr. Brooks’s gun cabinet. Gary, Jr. also testified that he had never done so.

The law governing this case is well established:

It is well settled in this state that parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship. When liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality. Where the child is not pursuing the parent’s business or acting on the parent’s behalf at the time the incident occurred, the parent cannot be held liable on a theory of agency. In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child’s use of the instrumentality. Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party.

(Citations and punctuation omitted.) Jacobs v. Tyson, 200 Ga. App. 123-124 (407 SE2d 62) (1991). A clear distinction is made between the parent actually furnishing or providing the dangerous instrumentality to the child and “those cases in which the parent did not furnish the dangerous instrumentality but through negligence allowed access thereto to the child.” (Punctuation and emphasis omitted.) Jackson v. Wimbley, 218 Ga. App. 698 (1) (463 SE2d 48) (1995). The standard in the latter case

is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. If such knowledge cannot be shown on the part of the parent, then liability cannot attach to her, as a parent is not an insurer that the child will not harm another.

(Citation and punctuation omitted.) Id. See also Saenz v. Andrus, 195 Ga. App. 431, 432-433 (2) (393 SE2d 724) (1990).

The law is different with respect to an “inherently dangerous” instrumentality such as a loaded firearm. In Jacobs, supra, we held that a loaded firearm which a child discovered in an unlocked dresser drawer amounted to an inherently dangerous instrumentality, basing this conclusion upon the potential for accidental discharge without touching the trigger, as was alleged in that case. We concluded that a higher standard of care therefore applied. Id. at 125. Glean v. Smith, 116 Ga. App. 111, 114 (156 SE2d 507) (1967), upon which Jacobs relies, reversed a general demurrer to a petition alleging that a loaded pistol was left in a “child size bureau” in a children’s playroom. Id. at 112 (1). In this case, however, the firearm was not loaded, and the higher standard of care therefore is inapplicable.

Smith points to evidence that though the gun cabinet was locked, the back of the cabinet was insufficiently secure. Although they did not enter the room in which the cabinet was located, the Johnson boys testified that the back of the cabinet was made of cardboard, that Gary, Jr. easily opened the back of the cabinet, and that it had been opened “before we got over there.” Mr. Brooks also testified that the cabinet “wasn’t that heavy made,” and Mrs. Brooks testified that the cabinet was given away after the incident because “[i]t was proven unsafe.” From this testimony, Smith argues that the Brookses were negligent because they should have known that someone could break into the back of the gun cabinet.

But even assuming the truth of Smith’s assertion that the gun cabinet was insufficiently secure, the law requires that she demonstrate not only that the Brookses were aware of that fact, but also that they knew of a propensity on the part of Gary, Jr. to commit the specific act that caused harm. Saenz, supra at 433. No evidence was presented that the parents had reason to anticipate that their son would ignore their instructions and handle or allow other boys to handle an antique, partially inoperable firearm, that one or more of the boys would pry open the back of a locked gun cabinet to remove cartridges from another rifle after being unable to break into an ammunition storage drawer, and that they would use a tool not intended for the purpose to load and fire the antique rifle repeatedly until one of them was injured. These persistent efforts to obtain ammunition and discharge a firearm, in the absence of any evidence showing that the parents were aware of the likelihood of such behavior, do not create a jury issue as to the parents’ liability. Moreover, the children all disobeyed their parents’ explicit instructions that they were not to handle firearms or were not to handle them without parental supervision. See Shaw v. Buice, 130 Ga. App. 876, 878 (204 SE2d 798) (1974).

In this case, no evidence was presented that Gary, Jr. had any known propensity to misuse firearms or to break into a locked gun cabinet in his parents’ absence. When asked if Gary, Jr. normally obeyed him, Mr. Brooks testified, “We’ve had some trouble with him before and all.” Also, Mrs. Brooks testified to problems with disci- I pline and with his grades in school. But no further questions were J asked or answered regarding any specific instance in which Gary, Jr. § did not obey his parents or as to any specific disciplinary problems they had experienced. Mr. Brooks acknowledged that he did not approve of some of Gary, Jr.’s friends, but again no specific testimony was elicited regarding the reasons for this disapproval. None of this evidence rises to the level of a “proclivity or propensity for the specific dangerous activity” in question.

Smith acknowledges that the factors generally required in Georgia decisions finding a jury issue on negligent storage of a firearm are not present in this case. She specifically concedes that no evidence was presented of any propensity on the part of Gary, Jr. to misuse firearms. She suggests that “increasing societal concern for the accessibility of guns to children” nevertheless demands a holding that a jury question exists here. We understand and sympathize with Smith’s concern as a parent for her son’s injury, as well as her interest in preventing such injuries to others. Our duty, however, is to follow existing law, which includes specific evidentiary requirements that Smith has not met. Any change in these requirements must originate with the General Assembly.

Decided February 6, 2001.

Webb, Stuckey & Lindsey, Martin C. Jones, William M. McHugh, Jr., Sharon S. Whitwell, for appellant.

Seacrest, Karesh, Tate & Bicknese, Gary L. Seacrest, Annarita M. Busbee, for appellees.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

       While Danny and Patrick testified that Gary, Jr. removed the ammunition from the gun, Gary, Jr. testified that Patrick used a pair of pliers to disassemble part of the rifle and remove the cartridges.

       We accordingly do not reach the contention raised by the Brookses that this heightened standard of care applies only to those actually handling the dangerous instrumentality at the time of the injury, as stated in the whole court decision of Blackwell v. Cantrell, 169 Ga. App. 795, 797 (2) (315 SE2d 29) (1984).

       Smith also argues that the Brookses committed spoliation of evidence by disposing of the gun cabinet after the incident. But the record does not reflect that this argument was raised in the trial court, and we therefore do not consider it here. Freeman v. Pittman, 220 Ga. App. 672, 673 (1) (469 SE2d 543) (1996). We note, moreover, that the record does not reflect that Smith ever sought through her attorney or by court order to have the cabinet preserved as evidence, despite the lapse of nearly two years before filing this action, approximately eight days before the statute of limitation expired.


text:
    A00A2032.
    EDWARDS v. THE STATE.
    (545 SE2d 143)
   Barnes, Judge.

We granted Stanley Edwards’ application for discretionary review of the trial court’s order that revoked his uncommenced probated sentence. Edwards contends (1) that his probation should not have been revoked based upon a violation of OCGA § 16-10-97 because a probation officer is not an “officer in or of any court” protected by that Code section and (2) our Supreme Court’s holding in Parrish v. Ault, 237 Ga. 401 (228 SE2d 808) (1976), precluded the trial judge from revoking his uncommenced probated sentence. We disagree and affirm.

On June 25, 1998, the Superior Court of Walton County sentenced Edwards to 24 months probation for misdemeanor obstruction of an officer and public drunkenness. On December 3, 1998, Edwards pled guilty to misdemeanor criminal trespass on February 27, 1998. On December 15, 1998, that same court sentenced Edwards to 12 months probation to run consecutively to the 24-month sentence. Because Edwards subsequently committed a technical violation of the terms of his first 24-month sentence, the same court modified it on January 13, 2000, and required him to spend the remaining portion of it in a probation detention center. Four days later, a probation officer employed by Georgia Probation Management, Inc. met with Edwards in the Walton County Jail to complete documents pertaining to his transfer to the detention center. During this meeting, Edwards became agitated as he questioned the probation officer about the reason he was being sent to the detention center. He blamed the probation officer for the revocation of his probation, threatened to “get” her, and refused to sign required paperwork, at which point she ended the meeting.

The probation officer prepared a probation revocation petition that alleged Edwards had violated the terms and conditions of probation by intimidating a court officer. The petition sought to modify or revoke Edwards’ uncommenced second sentence of 12 months. This petition was not heard by the same Walton County Superior Court judge who imposed the sentence. This judge found that Edwards violated his probation and modified the sentence, ordering that Edwards serve four months of the sentence in the detention center followed by eight months in the diversion center. Edwards appeals.

1. Edwards contends the trial court erred in determining that a contract probation employee is an officer of the court within the meaning of OCGA § 16-10-97. This Code section provides:

Intimidation or injury of grand or petit juror or court officer. A person who by threat or force or by any threatening letter or communication: (1) Endeavors to intimidate or impede any grand juror or petit juror or any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court while in the discharge of such juror’s or officer’s duties; (2) Injures any grand juror or petit juror in his person or property on account of any indictment or verdict assented to by him or on account of his being or having been such juror; or (3) Injures any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court in his person or property on account of the performance of his official duties shall, upon conviction thereof, be punished by a fine of not more than $5,000.00 or by imprisonment for not more than five years, or both.

The General Assembly did not define the phrase “officer in or of any court” for purposes of this Code section. As a threshold matter, we must determine whether this phrase is ambiguous. “[Jjudicial construction is necessary only when a statute is ambiguous; in fact, when the language of a statute is plain and unequivocal, judicial construction is not only unnecessary but forbidden.” Fleming v. State, 271 Ga. 587, 589 (523 SE2d 315) (1999). In this case, statutory construction is appropriate to determine the meaning of this phrase and we are guided by the following general rules:

In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. Grammatical errors shall not vitiate a law. A transposition of words and clauses may be resorted to when a sentence or clause is without meaning as it stands. In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.

OCGA § 1-3-1 (a), (b).

Additionally, we must keep in mind that criminal statutes must be construed strictly against the State. Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988).

OCGA § 42-8-20 et seq. creates a state-wide system of probation administered by the Department of Corrections. In this system, courts may stay or suspend a criminal sentence and place a defendant under the supervision and control of a probation supervisor for the duration of the probation. See OCGA § 42-8-34. Before determining whether a particular defendant is entitled to probation, a court can refer the case to a probation supervisor to investigate and make recommendations to the court about whether probation should be granted or denied. Id. See also OCGA § 42-8-29. Probation supervisors are “assigned among the respective judicial circuits based generally on the relative number of persons on probation in each circuit.” OCGA § 42-8-28.

OCGA § 42-8-100 authorizes the chief judge of any court within a county to enter into written contracts with corporations, enterprises, or agencies to provide probation supervision, counseling, or collection services in misdemeanor cases. OCGA § 42-8-102 refers to the employees of these private companies as “private probation officers” and describes the professional standards that shall be met by these private probation officers.

Black’s Law Dictionary (abridged 5th ed.) defines “officer” as a “person holding office of trust, command, or authority in corporation, government, armed services, or other institution or organization.” A probation officer, whether an employee of the State or of a private corporation, would qualify as an “officer in or of any court” under this definition. Probation officers occupy a position of trust, command, and authority within the judicial system. They conduct background investigations for the court, make recommendations about probation to the court, supervise the conduct of defendants during the period of probation for the court, and notify the court when the conditions of probation are either fulfilled or broken. Protecting probation officers from intimidation and injury also comports with the obvious legislative intent behind OCGA § 16-10-97: protecting the integrity of the judicial system by protecting those who occupy positions of trust, command, and authority within it.

Decided February 6, 2001.

Larry R. Pruden, for appellant.

Alan A. Cook, District Attorney, Jeffrey L. Foster, Assistant District Attorney, for appellee.

The trial court did not err when it found that a private probation officer was an “officer in or of any court” under OCGA § 16-10-97.

2. Relying upon Parrish v. Ault, supra, 237 Ga. 401, Edwards contends the trial court was not authorized to revoke the uncommenced probated portion of a split sentence because (1) the split sentence was not imposed in one proceeding and (2) a different judge of the same court imposed the split sentence. Edwards reads too much into our Supreme Court’s decision in Parrish. In Parrish, the Supreme Court held that a trial judge may revoke a probated sentence that is to begin at a future date and nothing more. Id. at 402. Since that is precisely what the trial court in this case did, we find no merit in this enumeration of error.

Judgment affirmed.

Blackburn, C. J., and Eldridge, J., concur.

       Georgia Probation Management is a privately owned corporation that contracted with the Walton County Superior Court to supervise misdemeanor probationers.


author: Phipps, Judge.

text:
    A00A2033, A00A2035.
    WARREN v. THE STATE (two cases).
    (545 SE2d 138)
   Phipps, Judge.

James Warren was convicted of voluntary manslaughter and possession of a firearm during the commission of a crime. In Case No. A00A2033, Warren contends that the trial court erred in denying his motion for new trial based upon newly discovered evidence and ineffective assistance of counsel. In Case No. A00A2035, Warren contends that the trial court erred in denying his motion for an appeal bond. We find no abuse of discretion in the trial court’s determination that Warren was not entitled to a new trial based upon newly discovered evidence, and we find no clear error in the court’s determination that Warren received effective assistance of counsel. Thus, we affirm Warren’s conviction.

After deciding the merits of Case No. A00A2033 against Warren, it is unnecessary to decide whether he is entitled to an appeal bond in Case No. A00A2035.

On September 8, 1998, Warren’s wife was groped by a man as she shopped at a grocery store. Mrs. Warren reported the matter to the store authorities and to the police. She described the man as black, tall, and muscular. She said that he was wearing a white shirt and camouflage-type pants, smelled heavily of alcohol and had bloodshot eyes. On a store surveillance tape, she was able to identify the man. She believed she had seen the man before but could not say where.

When Mrs. Warren went home, she was still very upset and informed Warren of what had happened at the grocery store. Warren went to the grocery store to view the videotape. He and his brother viewed the still image of the man identified by Mrs. Warren and believed the man was Henry Tanksley. Warren and his brother went looking for Tanksley, ostensibly to confirm their identification of him and report his location to the police.

When Warren and his brother arrived at Tanksley’s mother’s home, they saw him outside sitting in a chair and drinking a beer. Warren testified that he asked to talk to Tanksley about the incident but Tanksley refused. Then, according to Warren, he attempted to call the police on his cellular phone, but Tanksley charged him, swinging a tire iron. Warren testified that his brother blocked one blow with a shovel but that Tanksley continued to swing the tire iron, and he shot Tanksley in self-defense.

Case No. A00A2033

1. Before trial, Warren sought to ascertain the level of intoxicants in Tanksley’s bloodstream. Apparently, a blood alcohol test ordinarily would have been performed in connection with the autopsy of the victim. But it was not done in this instance because Tanksley had received numerous blood transfusions at the hospital which treated him after the shooting. Warren subpoenaed the hospital’s records regarding its treatment of Tanksley, but the records supplied to Warren did not include toxicology reports. When defense counsel contacted the hospital, he was informed erroneously that no blood alcohol tests had been performed on Tanksley.

During its deliberations, the jury sent a question to the judge asking whether a toxicology report, including blood alcohol content, had been made on Tanksley. Pursuant to a stipulation, the jury was instructed that “no tests were performed because there were too many transfusions.”

After the trial, the defense discovered that a blood alcohol test had been performed on Tanksley. Apparently, the results had been inadvertently omitted from the compilation of Tanksley’s medical records. A copy of the results obtained from an emergency room physician showed that Tanksley had a blood alcohol content of 0.163.

Warren contends that this test result constitutes newly discovered evidence which entitles him to a new trial. To obtain a new trial based upon newly discovered evidence, a defendant must satisfy each of the following requirements:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. [Cit.]

The trial court’s resolution of a motion for new trial based upon newly discovered evidence will not be reversed unless there is an abuse of discretion.

The trial court determined that the probative value of the blood alcohol test was cumulative of other evidence regarding Tanksley’s alcohol consumption and that there was no reasonable probability that the result of the trial would have been different if this evidence had been submitted to the jury.

Evidence which is of a higher and different grade than that previously presented on a material point is not cumulative. Because we find Tanksley’s blood alcohol test results to be of a higher grade than other evidence presented regarding the extent of his alcohol consumption, we disagree with the determination that this new evidence was cumulative.

However, we agree with the trial court that Warren has not demonstrated a reasonable probability that the outcome of his trial would have been different if the blood alcohol test results had been presented to the jury. Warren asserts that Tanksley’s alcohol consumption was relevant to establishing that he was the aggressor in the fatal altercation. But even without the alcohol test results, the jury had considerable unrebutted evidence before it that Tanksley had been drinking heavily and that his behavior might have been adversely affected as a result.

Warren’s wife testified that Tanksley smelled like a brewery, had bloodshot eyes, grabbed her in her genital area and made nonsensical statements to her. A store employee testified that Mrs. Warren told her at the scene that her assailant had reeked of alcohol.

Warren testified that when he found Tanksley, he was sitting in a chair drinking beer. That testimony was corroborated by a police investigator’s testimony that approximately 20 minutes after the report of the shooting, he found a can of beer, still somewhat cool, in the vicinity of the chair where Warren testified Tanksley had been sitting.

The State did not dispute that Tanksley had been drinking before his altercation with Warren. Moreover, the State did not dispute that Tanksley was the man who had assaulted Warren’s wife. The prosecutor conceded in her closing argument, “I don’t expect you to like what Henry Tanksley did at the grocery store.”

Warren filed affidavits from two jurors to support his argument regarding the materiality of the blood test results. One juror stated that his verdict probably would have been different, and the other stated that her verdict possibly would have been different if the test results had been in evidence. Even assuming the affidavits are appropriate for consideration, they do not persuade us that there was a manifest abuse of the trial court’s discretion in resolving this matter. Warren has not shown that the blood alcohol test results are so material that they probably would produce a different verdict.

The likelihood of a different verdict on retrial of this case depends heavily on credibility determinations. On the hearing of a motion for new trial based on newly discovered evidence, those determinations are vested in the discretion of the trial court.

We find that the trial court did not abuse its discretion in denying Warren’s motion for new trial based upon the discovery of Tanksley’s blood alcohol test result.

2. Warren asserts that his trial counsel rendered ineffective assistance by failing to cross-examine Tanksley’s mother and another witness, Jim Barefield, about Tanksley’s prior conviction for burglary. A review of the record shows that in connection with his motion for new trial, Warren raised only the issue of whether his trial counsel should have cross-examined Tanksley’s mother and not Barefield. Thus, we shall consider only that issue on appeal.

On direct examination at trial, Tanksley’s mother testified:
We been living there twenty something years. We ain’t never had no problem with nobody. Henry never messed with nobody. And they came and they murdered my child. . . . And my heart is bleeding inside. My son never left me. He kept my yard clean. He was a good son. He didn’t bother nobody He didn’t run the streets. . . .

At the hearing on Warren’s motion for new trial, his trial counsel testified that he did not believe Tanksley’s prior burglary conviction would have impeached the mother’s testimony. Moreover, he explained, “I didn’t think that she gave any testimony that contradicted what [Warren] said. She was very emotional. She . . . clearly came across as a victim. I think it was our strategy not to be too rough on her.”

In order to prevail on an ineffectiveness claim, a convicted defendant must show[:] (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

“A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct. [Cits.]” Decisions regarding how to conduct cross-examinations are considered to be tactical or strategic and thus are within “ ‘the exclusive province of the lawyer after consultation with his client.’ [Cit.]” “[Strategic choices made after thorough investigation are virtually unchallengeable. [Cit.]”

It is arguable that the testimony of Tanksley’s mother opened the door to the introduction of Tanksley’s prior burglary conviction and that counsel should have impeached her testimony with it. But because Tanksley’s prior burglary conviction was of questionable significance to the ultimate question of whether he was the aggressor in this encounter, it does not appear to this court that there is a reasonable probability that the outcome of the trial would have been different if the prior conviction had been introduced. Thus, we find no clear error in the trial court’s determination that Tanksley received effective assistance of counsel.

Decided February 6, 2001

Martin C. Puetz, George D. Bush, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Case No. A00A2035

3. Because we have affirmed Warren’s convictions, his contention that the trial court erred in denying him an appeal bond is moot.

Judgment affirmed in Case No. A00A2033. Appeal dismissed as moot in Case No. A00A2035.

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

        Benn v. State, 244 Ga. App. 67, 70 (535 SE2d 28) (2000).

       Id.

        Humphrey v. State, 207 Ga. App. 472, 474 (1) (428 SE2d 362) (1993).

       See OCGA § 17-9-41 (affidavits of jurors may be taken to sustain but not to impeach verdict).

       See Young v. State, 194 Ga. App. 335, 336 (1) (a) (390 SE2d 305) (1990).

       See Vaughn v. State, 226 Ga. App. 318, 320 (2) (486 SE2d 607) (1997) (court cannot consider argument being raised for first time on appeal).

       (Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388-389 (1) (411 SE2d 119) (1991).

       (Citations omitted.) Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

        Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999).

       Id.

        Williams v. State, 244 Ga. App. 692, 697 (6) (536 SE2d 572) (2000); Dorminey v. State, 205 Ga. App. 806, 808 (423 SE2d 698) (1992); Harris v. State, 196 Ga. App. 304, 307 (396 SE2d 288) (1990).


author: Johnson, Presiding Judge.

text:
    A00A2503.
    CROSBY v. KENDALL et al.
    (545 SE2d 385)
   Johnson, Presiding Judge.

This lawsuit arose from a series of financial transactions in which the appellees loaned money to certain corporations for use in purchasing, renovating, and selling residential real estate. From 1991 through the end of 1995, the appellees made approximately 120 loans to the corporations, 64 of which were the subject of the appellees’ lawsuit.

Samuel Les Caldwell controlled these corporations and made the vast majority of the business decisions for these entities. James Babb, a bookkeeper, acted as an agent for the corporations, and his duties included recruiting investors and serving as a liaison between Caldwell and the investors. Marc Slavny and Marci Caldwell had smaller roles in the corporations. Appellant David Crosby, an attorney and part-time DeKalb County magistrate, served as an escrow agent for some, but not all, of the loan transactions. With the exception of Crosby, all of the above-named individuals and corporations settled prior to trial.

The evidence shows that in January 1991, Caldwell retained Crosby as the escrow agent for some of the loan transactions between the various defendants and the appellees. Caldwell and Babb told the appellees that Crosby was a practicing attorney and a sitting judge, that he would serve as the escrow agent for the transactions, and that one of his major duties was to ensure that the appellees’ funds were not released until the requirements contained in the escrow agent instructions had been completed.

Each loan was memorialized by the following documents: (1) a promissory note; (2) a copy of the purchase agreement for the property; (3) an investor summary; (4) a limited power of attorney from the appellees to Crosby; (5) an assignment of purchase agreement or deed to secure debt; and (6) escrow agent instructions.

Although the language of the escrow agent instructions varied slightly, all versions imposed substantially the same obligations upon Crosby. Crosby was required to perform the following acts:

1. Verify the end value of the property pursuant to a recent appraisal; 2. Obtain proper execution of the enclosed Promissory Note; 3. Verify that the principal amount of the Promissory Note; together with the remaining amount required to purchase the property; does not exceed 80% of the end value of the property; 4. Obtain [the corporation’s] Purchase Agreement plus an Assignment of [the corporation’s] contract rights to purchase the property from [the corporation] to the undersigned; 5. Verify that the term of the Promissory Note is less than the term of the assigned Purchase Agreement plus any extension authorized under the Purchase Agreement; and 6. Obtain a properly executed Deed to Secure Debt for use as substituted collateral to secure the terms of the Note in the event that borrowers purchase the property and take title to it.

The appellees’ expert testified that his review of some of Crosby’s files revealed that many of the documents required to perform these functions were absent. The expert further testified that in many cases, contrary to the escrow instructions, Crosby failed to verify that the term of the promissory note was less than the term of the assigned purchase agreement plus any extension authorized under the purchase agreement. The expert further testified that in many cases, Crosby failed to obtain a properly executed deed to secure debt for use as substituted collateral and failed to verily that the principal amount of the note, together with the remaining amount required to purchase the property, did not exceed 80 percent of the end value of the property as the escrow instructions required.

Crosby himself admitted that some of his files were incomplete. He further admitted that he had no communication with the appellees until February 1996, when some of the appellees requested to meet with him and review his files. On the other hand, Crosby admitted he had frequent communications with Caldwell regarding these transactions. And, he acknowledged having prior attorney-client relationships with Caldwell. In addition, while acting as escrow agent for the appellees, Crosby incorporated and served as registered agent for Peachtree Realty, Inc., one of Caldwell’s corporations and a defendant corporation in this lawsuit.

While Crosby maintains that he did not draft the escrow instructions, he testified at trial that prior to any of the transactions, he reviewed and revised the instructions that were subsequently provided to the appellees. He admitted providing a form promissory note to Caldwell and drafting security deeds for the transactions at issue. He further acknowledged that he filed 12 security deeds in 1993 without the appellees’ knowledge because Caldwell was having problems with the Internal Revenue Service. Crosby admitted that his actions in filing the deeds violated his escrow instructions.

In January 1996, when the appellees began their investigation, they learned that their collateral was either nonexistent or worthless. Contrary to the terms of the escrow instructions, Crosby failed to confirm that the term of each promissory note was longer than the term of the purchase agreement, so the promissory notes expired after the right to purchase expired. In addition, the evidence showed that in more than a few instances, use of the same property as collateral for multiple loans caused the loan-to-value ratio to greatly exceed the 80 percent escrow instruction.

During trial, the appellees argued that Crosby breached the fiduciary duties he owed to them by (1) breaching his agreement with them; (2) drafting or approving transaction documents that were ambiguous or designed to protect the corporations to the detriment of the appellees; (3) failing to disclose potential conflicts of interest in Crosby serving as escrow agent and holding their limited power of attorney based on his prior and ongoing relationship with Caldwell and/or the corporations; (4) failing to maintain the neutrality required of a dual agent; (5) seeking and following directions from Caldwell regarding the escrow instructions while failing to communicate with the appellees or informing them that he could not fulfill his obligations as escrow agent; and (6) either intentionally or negligently failing to fulfill the obligations imposed upon him by the escrow instructions. The jury awarded the appellees over $500,000 in compensatory damages, as well as $100,000 in punitive damages. Crosby contends the trial court committed a number of errors during the course of this trial, including errors in its jury instructions and in its failure to grant three of Crosby’s motions for directed verdict. We find no error.

1. Crosby contends that the trial court erred in instructing the jury that an attorney acting as an escrow agent “must meet the standards of the legal profession, including those set forth in the code of professional responsibility” and in instructing the jury on the State Bar of Georgia conduct standards governing attorneys. Whether the fiduciary duty an escrow agent owes to a principal encompasses standards of professional conduct where the agent is a practicing attorney has not been addressed in this state. And, we need not address the issue in this case because any error in the giving of these instructions was harmless.

The question presented to the jury was whether Crosby violated his fiduciary duty as an escrow agent to the appellees. Regardless of the standards of professional conduct which may or may not be relevant, the evidence in this case, in our opinion, demanded a finding that Crosby violated his fiduciary duty as escrow agent to the appellees.

The evidence showed that the escrow agent instructions given to Crosby were not followed on a number of occasions, and Crosby admits that on at least one occasion he felt his actions violated the escrow instructions. While Crosby blames Caldwell for the fact that he could not obtain many of the documents required by the escrow agent instructions, the fact remains that Crosby failed to comply with the escrow agent instructions. “The verdict for the [appellees] being demanded by the evidence, the intermediate errors, if any, ... in certain instructions of the court . . . are harmless, and require no specific consideration.”

2. Crosby maintains that the trial court erred in failing to grant his motions for a directed verdict, and subsequent motion for a judgment notwithstanding the verdict or for a new trial, regarding several of the appellees’ claims. In considering a motion for a j.n.o.v. or a motion for a new trial, the trial court and the appellate court must review the evidence in the light most favorable to the party who secured the jury verdict. Likewise, in considering a ruling on a motion for a directed verdict, the evidence must be construed most favorably to the party opposing the motion. We review the trial court’s denial of a motion for a directed verdict using the “any evidence” standard. This standard of review requires Crosby “to show that there was no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.”

(a) Crosby contends that the trial court erred in failing to grant his motions regarding the appellees’ loan transactions funded by Reliance Trust Corporation. According to Crosby, no valid escrow was created because Crosby never received either the documents needed to comply with the escrow instructions or the funds that were to be used to purchase the properties in the RTC transactions. However, contrary to Crosby’s assertion, there was sufficient evidence from which the jury was authorized to conclude that Crosby breached the fiduciary duties he owed to the appellees regarding the RTC transactions.

Crosby admitted that he received escrow agent instructions for the RTC transactions. He further acknowledged that the instructions authorized him to contact the appellees if any questions regarding the transactions arose. Nevertheless, Crosby never contacted either the appellees or RTC when questions arose about the transactions. Instead, Crosby called Caldwell and relied on his statements regarding the transactions. Clearly, Crosby’s reliance on Caldwell’s statements was misplaced. Equally clear is the fact that Crosby did not meet the requirements of the escrow instructions.

Crosby’s contention that he did not owe the appellees a fiduciary duty with regard to the RTC transactions lacks merit in light of his actions in calling Caldwell with questions about the transactions and his attempts to obtain the required documents from Caldwell. These actions provide evidence that Crosby knew he had a fiduciary duty with respect to these transactions. Moreover, the escrow instructions regarding these transactions authorized him to contact the appellees if any questions regarding the transactions occurred. Had Crosby contacted the appellees regarding his concerns about the transactions or his inability to obtain the required documents from Caldwell, it is possible that the appellees’ losses relating to the RTC transactions could have been minimized or prevented. We cannot say that the trial judge improperly denied Crosby’s motion for a directed verdict or motion for a j.n.o.v. or a new trial in this regard under the any evidence standard.

(b) Crosby further contends that the trial court erred in denying his motions regarding the appellees’ claim for punitive damages. It is clear that a breach of a fiduciary duty may warrant the imposition of punitive damages. However, Crosby argues that punitive damages were not warranted because he did not intend to injure the appellees and because he never made any misrepresentations to the appellees. Whether punitive damages should be awarded for a breach of fiduciary duties is ordinarily a question for the jury, and the controlling question for the appellate court is whether there was any evidence to support their award.

OCGA § 51-12-5.1 permits punitive damages to be awarded where a plaintiff proves by clear and convincing evidence that the defendant’s actions showed wilfull misconduct, malice, fraud, wantonness, oppression, “or that entire want of care which would raise the presumption of conscious indifference to consequences.” The phrase “conscious indifference to consequences” means an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.

The jury was authorized to conclude that evidence that Crosby communicated solely with Caldwell and failed to procure the necessary documents from him to fulfill his escrow agent duties showed a conscious disregard for consequences, especially in light of Crosby’s past attorney-client relationships with Caldwell. Crosby could have contacted the appellees at any time and told them that he was unable to procure the necessary documents. He could have looked at his own paperwork and seen that the escrow agreement requirements were not being met. Instead, he blindly relied on statements made by a past, and possibly present, client to the detriment of those he represented as an escrow agent. Crosby knew he was not fulfilling the requirements of the escrow agreements, and he admitted that on at least one occasion he acted contrary to the escrow agent agreements in his attempt to help Caldwell. A jury question was presented, and it was not error for the trial court to instruct the jury regarding the issue of punitive damages.

Decided February 6, 2001

Louis K. Polonsky, Matthew D. Crosby, for appellant.

Taylor W. Jones & Associates, Taylor W. Jones, Jenny E. Jensen, for appellees.

(c) Crosby contends that the trial court erred in failing to grant his motions regarding any loan transactions that occurred more than two years prior to the filing of the lawsuit. He bases this argument on the fact that the trial court’s jury charges on attorney standards of conduct limited this case to a legal malpractice action, and the statute of limitation for a noncontractual action against an attorney sounding in tort is two years. Crosby’s contention lacks merit.

The appellees brought claims for legal malpractice and breach of fiduciary duty arising from Crosby’s breach of the escrow agent agreements. The trial court granted Crosby’s motion for a directed verdict regarding the appellees’ legal malpractice claims, specifically excluding these claims from jury consideration. Whether the trial court’s jury instructions regarding attorney standards of care were or were not proper, they did not, contrary to Crosby’s argument, revive the appellees’ claims for legal malpractice. The trial court properly held that the applicable statute of limitation for the appellees’ claims of breach of fiduciary duty, which arise out of a breach of the escrow agent agreements, was six years pursuant to OCGA § 9-3-24.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       Patricia Kendall, Janet Moore, Ozro Moore, Donald Stephenson, Melanie Stephenson, E. H. Hovey, Ann Hovey, Julie Franeiskato, John Persall, Barbara Persall, Carl Moore, and Jerilyn Moore.

       General Realty Investment Corporation, Peachtree Realty, Inc., and AAA Realty, Inc. (collectively “the corporations”).

        Davis v. Davis, 211 Ga. 714, 716 (88 SE2d 377) (1955); see Hankinson v. Rackley, 177 Ga. App. 734, 736 (2) (341 SE2d 231) (1986); Parsons v. Grant, 95 Ga. App. 431, 436 (3) (98 SE2d 219) (1957).

       See Denson v. City of Atlanta, 202 Ga. App. 325, 326 (1) (414 SE2d 312) (1991).

       See Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991).

       Id. at 698.

       (Citation, and punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 854 (1) (501 SE2d 30) (1998).

       The funds loaned by the appellees came from two sources, their personal funds and Individual Retirement Accounts. RTC was the custodian of the IRA funds.

       See Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 649 (6) (518 SE2d 704) (1999); Home Ins. Co. v. Wynn, 229 Ga. App. 220, 225 (10) (493 SE2d 622) (1997).

       See Home Ins. Co., supra at 223 (2); Caswell v. Jordan, 184 Ga. App. 755, 760 (7) (362 SE2d 769) (1987) (physical precedent only).

        Home Ins. Co., supra at 225 (10).

       See Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 356 (6) (a) (537 SE2d 397) (2000) (evidence that defendants were aware of their fiduciary duty to the plaintiffs but consciously and intentionally disregarded that duty supported a jury award for punitive damages); Byrne v. Reardon, 196 Ga. App. 735, 736 (3) (397 SE2d 22) (1990).

       See OCGA § 9-3-33.


text:
    A01A0517.
    JONES v. THE STATE.
    (545 SE2d 145)
   Phipps, Judge.

Marquinn Jones appeals his conviction of possession of cocaine with intent to distribute in Cherokee County. Relying on McCarty v. State, he contends that he was entitled to a directed verdict of acquittal because undisputed evidence shows that law enforcement authorities lured him into Cherokee County solely for the purpose of obtaining venue. We find this case to be distinguishable from McCarty and affirm.

Officer Ollie Cushing was the State’s key witness. He is employed by the Cherokee County Sheriff’s Department and is assigned to a multi-agency task force investigating narcotics activity in Cherokee County. Sheila Stancil, an inmate of the county jail, acted as an undercover operative for Cushing. On the day in question, she summoned him to the jail and told him that she could obtain delivery of crack cocaine from a seller in Atlanta.

According to Cushing, Stancil paged Jones in Atlanta. When he returned the page to Cushing’s cellular phone, Stancil asked him to come to Canton and bring her $500 worth of crack cocaine. Cushing testified that although Jones initially appeared reluctant to journey to an unfamiliar town, he eventually agreed to make the delivery if Stancil would provide him with a taxi. Stancil, however, was unable to locate a taxi that would travel to Jones’s location. She called Jones and so informed him. As a result, Cushing thought that the deal had reached an impasse. But Jones called Stancil back and told her that he could make a connection with the taxi she was providing.

En route to Canton in the taxi, Jones called Stancil numerous times to apprise her of his progress and to obtain directions to their meeting spot in Canton. After Jones arrived in Canton and was identified by Stancil, he was arrested. Approximately seven grams of cocaine were found in his possession.

In McCarty, undercover agents from Muscogee County went into Sumter County, negotiated a marijuana purchase from the defendant, loaded the marijuana into the trunk of the officers’ car, drove the vehicle (in which the defendant was a passenger) to Muscogee County, and arrested him there. Pretermitting whether the evidence supported a finding that the defendant “possessed” marijuana in Muscogee County, we reversed the judgment of conviction based on lack of proper venue. We held that to allow county law enforcement officers to indiscriminately cross county lines, without a proper showing of justification or authority, would emasculate Georgia’s statutory provisions delineating jurisdiction of county law enforcement officers.

This case is distinguishable. Here, unlike McCarty, the officers did not cross county lines and take control of the defendant and contraband outside their jurisdiction. An undercover operative in Cherokee County merely called Jones in Atlanta and asked him to deliver crack cocaine for sale in Cherokee County, to which he agreed. Whether Jones could have been arrested outside Cherokee County is debatable, as Stancil did not identify him until he entered the county. Unquestionably, Jones possessed cocaine with intent to distribute in Cherokee County. Therefore, venue there was proper.

Decided February 6, 2001.

Abernathy & Ballinger, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur:

       152 Ga. App. 726 (1) (263 SE2d 700) (1979).

       Compare United, States v. Johnson, 323 U. S. 273 (65 SC 249, 89 LE 236) (1944); State v. Johnson, 226 Ga. App. 836 (487 SE2d 677) (1997), rev’d, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998).

        McCarty v. State, supra, 152 Ga. App. at 726-727.

       Id. at 727.

       See OCGA § 17-2-2 (a).


text:
    A00A1897.
    H-B PROPERTIES, LTD. et al. v. CITY OF ROSWELL et al.
    (545 SE2d 37)
   Johnson, Presiding Judge.

The question presented is whether the City of Roswell and Fulton County correctly followed the statutory requirements for annexation by resolution and referendum.* H-B Properties, Ltd. and Dale Nesbit brought this declaratory judgment action seeking to void the annexation by the City of Roswell of approximately 3,135 acres of land in unincorporated Fulton County. The trial court found the annexation valid and ordered the City to assume jurisdiction of the annexed area on December 17, 1999. On appeal, the plaintiffs claim that the trial court erred in upholding the annexation. We disagree and affirm.

Prior to trial, the parties entered into a stipulation of facts, which was adopted by the trial court in its order. On appeal, the application of law to undisputed facts is subject to de novo review.

The record shows that the City of Roswell decided to annex an area of land located on the eastern side of the City along Holcomb Bridge Road, consisting of three voting precincts. The City decided to annex the land by resolution and referendum in accordance with the requirements set forth in OCGA §§ 36-36-50 through 36-36-61. The City directed the preparation of a survey plat showing the area to be annexed.

The area under consideration received governmental services from Fulton County and so was not eligible for annexation by referendum unless the County agreed to waive the statutory prohibition against it. The County, by resolution dated July 7, 1999, approved the annexation referendum for the area shown on an attached map. On July 19, 1999, the Mayor and Council of the City of Roswell adopted a resolution expressing the intent to annex by resolution and referendum the land shown in the attached survey and designating September 8, 1999, as the date for the public hearing to consider the annexation proposal.

After the City’s July 19, 1999 resolution, the Chairman of the Fulton County Commission asked the mayor to remove a portion of the property upon which was located a “sports bar” from the area under consideration for annexation. The chairman testified that the bar would otherwise suffer economic hardship because the County allows bars to serve drinks until 4:00 a.m., as opposed to 2:00 a.m. in the City. A revised map dated August 11, 1999, was created to exclude the shopping center containing the bar. The notice of the public hearing referred to the map reflecting the August 11, 1999 revisions. The mayor and city council passed a motion following the public hearing authorizing the annexation by referendum of the land reflected by the August 11, 1999 map. The referendum was held on November 2, 1999, and a majority of those voting voted in favor of the annexation. The parties stipulated that the Fulton County Board of Commissioners took no action to approve or disapprove the deletion of the shopping center from the annexation territory identified in their July 7, 1999 resolution.

1. Although plaintiffs urge us to strictly construe the statute allowing annexation by resolution and referendum, the standard of interpretation used by our Supreme Court in City of Gainesville v. Hall County Bd. of Ed. reflects a less restrictive approach:

In reviewing the question of annexation by municipalities in this state we must conclude that the General Assembly intended that a liberal policy apply in this area. The General Assembly has made several methods available and has apparently sought to leave such matters primarily under local control. When this court has applied a strict interpretation of these methods, . . . the General Assembly has promptly amended the statutes to overcome such court enunciated limitations.

The plaintiffs claim that the deletion of the shopping center from the annexation territory, identified in the July 7, 1999 resolution of the Fulton County Board of Commissioners and in the July 19, 1999 resolution of the Mayor and Council of the City of Roswell, renders the subsequent annexation referendum invalid. With respect to the County, they argue that the deletion violates the requirement that Fulton County approve the annexation of all unincorporated land then receiving governmental services from the County. However, when the Board of Commissioners of Fulton County approved the annexation of the area presented to it at its July 7, 1999 meeting, its approval encompassed all of the area which was subsequently presented to the voters in the referendum, We do not agree that the removal of a small portion of the land to be annexed to the City voided the County’s approval with respect to the remaining land.

Plaintiffs also argue that, short of passing a new resolution and restarting the annexation process, the City had no legal power to change the territory subject to annexation after the adoption of the initial annexation resolution required by OCGA § 36-36-57 (a). Plaintiffs also point to OCGA § 36-36-58, which requires that the “municipal corporation shall issue a call for referendum to ratify or reject the adoption of the annexation resolution.” They contend that the statute refers to the City’s July 19, 1999 resolution and that it was unlawful to make a call for referendum to annex any territory which did not exactly coincide with the territory approved in that resolution. However, the statutory scheme is not as restrictive as the plaintiffs suggest:

Any municipal governing body desiring to annex territory pursuant to this article shall first pass a resolution stating the intent of the municipal corporation to consider annexation. The resolution shall describe the boundaries of the area under consideration and fix a date for a public hearing on the question of annexation.

The use of “under consideration” weighs against a finding that the statute requires that the area to be annexed be set forth in finality when an initial resolution is passed. In aqy case, the governing body of the City did approve the boundaries of the annexation territory actually submitted to the voters. At the public hearing on the annexation question the mayor and city council adopted the following motion: “Mr. Dorves moved for approval of annexation by referendum of the acreage on the map presented by Mr. Jackson and moved that it be placed on the ballot in November. Mr. Joyner seconded the motion, and it was carried unanimously.” We find this was a sufficient call for referendum under OCGA § 36-36-58.

We note that the map reflecting the deletion of the shopping center was referred to in the notice of public hearing, it was the map presented at the public hearing, and it was the map approved by the mayor and city council at the public hearing and later by a majority of the voters voting in the referendum. Applying the standard of interpretation of the statute required by City of Gainesville, and mindful that the City and a majority of voters expressed an intent to annex the territory reflected in the August 11, 1999 map into the City of Roswell, we hold that the minor differences between the area reflected in the August 11, 1999 map and the map attached to the July 19, 1999 resolution are not fatal to the annexation.

2. Plaintiffs claim that the City violated OCGA § 36-36-54 (e) when it designated the boundaries of the territory to be annexed into the City.

In fixing new municipal boundaries, a municipal governing body shall, wherever practical, use natural topographic features, such as ridge lines, streams, and creeks, as boundaries. If a street is used as a boundary, the governing body shall, wherever practical, include within the municipal corporation land on both sides of the street; such outside boundary may not extend more than 200 feet beyond the right of way of the street, except to include all of a lot or parcel of land partially within 200 feet of the right of way.

The boundaries of the annexed area do not correspond to natural topographic features, and a portion of the annexed area bounded by Nesbit Ferry Road and Holcomb Bridge Road do not encompass both sides of the street. Nevertheless, the annexed territory need conform to the suggested boundaries only “whenever practical,” which indicates to us that these limitations on the establishment of boundaries are more directory than mandatory. The record shows that the City chose the annexation boundaries based on voting precincts, which would satisfy practical concerns with regard to identifying persons eligible to vote in the referendum, and also a desire to annex land by neighborhoods. These are not insubstantial considerations. We cannot say that it was incumbent upon the City to choose other boundaries for the annexed territory.

Decided January 22, 2001

Reconsideration denied February 7, 2001

Proctor & Chambers, Robert J. Proctor, Bradley A. Hutchins, Mary C. Hires, for appellants.

Michael E. Sullivan, Jill I. Seligman, William R. Turner, Larry W. Ramsey, Jr., Renee M. L’Eplattenier, for appellees.

The trial court did not err in finding for the City of Roswell and Fulton County, and the judgment upholding the annexation by resolution and referendum is affirmed.

3. The City of Roswell filed a motion to dismiss and to supplement the record. This was based upon the adoption by the General Assembly in its 2000 session of local legislation (Ga. L. 2000, p. 3844) amending the Charter of the City of Roswell and including a new legal description incorporating the territory in dispute here. The City argues that the local legislation conclusively settles the question of whether the disputed territory lies within its municipal boundaries. However, we find the plaintiffs’ arguments to be more persuasive. They point out that the annexation, if upheld, is effective as of December 1, 1999, while the local legislation is effective on April 19, 2000, thus, at a minimum, presenting a difference in determining year 2000 ad valorem taxes. The plaintiffs also argue that if annexation by referendum was ineffective, the annexation by local law would also be ineffective by reason of OCGA § 36-36-16, which, plaintiffs maintain, would require a referendum in any case. We need not, however, consider that claim here.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       OCGA §§ 36-36-50 through 36-36-61.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       OCGA § 36-36-54 (b) (4).

       233 Ga. 77, 80 (2) (209 SE2d 637) (1974). See also Higdon v. City of Senoia, 273 Ga. 83 (538 SE2d 39) (2000) (reaffirming the General Assembly’s liberal policy in the area of annexation by municipalities).

       id.

       OCGA § 36-36-54 (b) (4).

       (Emphasis supplied.) OCGA § 36-36-57 (a).

       OCGA § 36-36-54 (e).


text:
    A00A2062.
    SIKES v. THE STATE.
    (545 SE2d 73)
   Blackburn, Chief Judge.

Following a bench trial, Douglas Paul Sikes appeals his convictions of operating a motorcycle without a headlight, driving under the influence of drugs, possession of marijuana with the intent to distribute, possession of a firearm by a convicted felon and two counts of trafficking in methamphetamine. Sikes contends that the trial court erred by denying his motion to suppress the physical evidence and his motion for new trial based upon ineffective assistance of trial counsel. For the reasons set forth below, Sikes’ convictions are affirmed.

1. Sikes filed a motion to suppress the drugs found during the pat-down search conducted by Officer Kinsey, who initiated a traffic stop of Sikes. Sikes contended that the pat-down search of himself and his jacket was illegal. The trial court determined that Officer Kinsey was justified in conducting a pat-down search of Sikes and his jacket, and it denied Sikes’ motion to suppress.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State.

At the motion to suppress hearing, Officer Kinsey, a trooper with the Georgia Department of Public Safety, testified that he initiated a traffic stop of Sikes because he was driving a motorcycle without operating its headlight in violation of Georgia law. Sikes stopped his motorcycle in a parking lot, got off, took off his jacket, laid it on his motorcycle and walked over to Officer Kinsey’s car door, all before Officer Kinsey had finished stopping his vehicle. Officer Kinsey told Sikes to step back, take off his helmet and produce his license. Sikes moved back to the motorcycle. After advising Sikes of the reason for the traffic stop, Officer Kinsey noticed that Sikes’ pupils were constricted, which, based on the officer’s training, could mean that Sikes was under the influence of drugs. Officer Kinsey was also suspicious that Sikes had taken off his jacket so quickly and moved away from the motorcycle. Officer Kinsey described Sikes’ actions as aggressive in that he confronted an officer before he got out of his patrol car.

In the interest of safety, Officer Kinsey conducted a pat-down search of Sikes and his jacket which was within Sikes’ reach. Officer Kinsey felt a large bulge in both pockets. Sikes pulled out papers from one pocket then, upon Kinsey’s request, pulled papers and an oblong package wrapped in brown duct tape from the other pocket. Officer Kinsey testified that the packaging was consistent with drug packaging with which he was familiar from previous drug seizures. Sikes told the officer that the package contained modeling clay, and the officer asked to see it. Sikes opened the package, and Officer Kinsey suspected it contained crack or methamphetamine. Kinsey handcuffed Sikes and read him the Miranda rights.

Sikes’ roommate, Kevin Brady, arrived at the scene and gave the police permission to search the car he was driving and to search his room. Several officers left the scene and traveled to Sikes’ residence which he shared with Brady. While officers searched Brady’s room, other officers obtained a search warrant for the entire premises. While executing the warrant, officers found marijuana throughout the house along with a safe containing more marijuana, guns and a large amount of cash and methamphetamine.

In Sikes’ motion to suppress, he asserted only that the officer’s pat-down search of himself and his jacket was improper.

A reasonable search for weapons for the protection of the police officer [ ] is permitted where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

(Punctuation omitted.) Mashburn v. State. See also Edwards v. State; Buffington v. State.

In the present case, Officer Kinsey’s uncontradicted testimony indicated that he was concerned about Sikes’ aggressive behavior, that he suspected Sikes was under the influence of drugs and that he conducted the pat-down for his safety. The trial court, as the arbiter of credibility of this testimony, determined that Officer Kinsey was justified in believing that he was at risk. The trial court correctly determined that under the circumstances, “a reasonably prudent man . . . would be warranted in the belief that his safety . . . was in danger.” Terry v. Ohio, supra.

Additionally, the trial court did not err in determining that the search of Sikes’jacket was appropriate. “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.” (Punctuation omitted.) Miller v. State. In the present case, Sikes was within reach of the jacket when Officer Kinsey conducted the pat-down search and Sikes had initially tried to distance himself from the jacket by leaving it on the motorcycle. See Ammons v. State (officer justified in search of passenger and his jacket after passenger acted suspiciously with regard to the jacket).

2. Sikes contends that his trial counsel was ineffective because he did not attempt to suppress the evidence found in Sikes’ home as a result of a search warrant. Sikes contends that the search warrant was improper because the affidavit supporting the warrant was insufficient.

The Sixth Amendment to the U. S. Constitution guarantees a criminal defendant the right to effective assistance of counsel. In order to show ineffective assistance of counsel, [Sikes] must show that counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

(Citation and punctuation omitted.) Green v. State.

In explaining his decision to contest the pat-down search and not the search warrant for Sikes’ house, Sikes’ trial counsel testified that “my strategy [was] that much of the information — substantially all of the information and reasons that they went into that house was based on the results of that [pat-down] search. That was the position. So if that fell, everything else was going to fall.”

The fact that [Sikes] and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Sikes] received representation amounting to ineffective assistance of counsel. This is true even if trial counsel’s tactics or strategy may have been unwise. Further, a trial court’s finding that [Sikes] had been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous; the trial court’s findings were not clearly erroneous.

(Citations and punctuation omitted.) Hudson v. State.

Because Sikes failed to show that his trial counsel’s actions fell below an objective standard of reasonableness, the trial court did not err in denying his motion for new trial.

Decided January 23, 2001

Reconsideration dismissed February 7, 2001.

Henderson & Evansiates, Daniel L. Henderson, for appellant.

Patrick H. Head, District Attorney, Irvan A. Pearlberg, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

        Mashburn v. State, 186 Ga. App. 488, 489 (367 SE2d 881) (1988).

        Edwards v. State, 239 Ga. App. 44, 45-46 (1) (518 SE2d 426) (1999).

        Buffington v. State, 229 Ga. App. 450, 451-452 (494 SE2d 272) (1997).

        Miller v. State, 221 Ga. App. 494, 496 (471 SE2d 565) (1996).

        Ammons v. State, 172 Ga. App. 235, 236 (322 SE2d 543) (1984).

        Green v. State, 240 Ga. App. 650, 652 (3) (523 SE2d 632) (1999).

        Hudson v. State, 234 Ga. App. 895, 900 (3) (b) (508 SE2d 682) (1998).