text:
    A01A2379.
    BLAKE v. SPEARS.
    (561 SE2d 173)
   Ruffin, Judge.

Randy Blake appeals from the trial court’s order incarcerating him for failing to comply with a subpoena to produce documents. Blake asserts that the trial court erred in denying his motion to quash the subpoena, in finding that he did not comply with the subpoena, in incarcerating him for contempt, in refusing to immediately rule on his request for supersedeas, and in issuing further rulings after he filed this appeal. For reasons that follow, we affirm.

This action commenced when Robert Spears sued Blake, alleging that he purchased Blake’s interest in a bar and restaurant called Shooters, but that Blake refused to turn over the business’s assets and financial records. Spears sought specific performance of the purchase agreement and temporary and permanent injunctive relief. Following a November 21, 2000 evidentiary hearing attended by both parties, the trial court entered a preliminary injunction ordering, inter alia, that Blake “immediately” give Spears the business records and assets of Shooters.

It appears that Blake failed to comply with the trial court’s order and, over the next three months, the court conducted three or four conferences with the parties to resolve the matter, but had no success. Finally, the court scheduled a show cause hearing, requiring Blake to explain his lack of compliance. Before the hearing, Spears served a subpoena requiring Blake to produce in court many of the same documents that the court had previously ordered him to turn over under the preliminary injunction. At the conclusion of the hearing, the trial court determined that Blake failed to comply with the subpoena and ordered that he be incarcerated until he complied or made a sufficient effort to comply.

1. In his first enumeration of error, Blake asserts that the trial court erred in refusing to quash the subpoena because it was improperly served.

The record shows that Blake first retained attorney Robert Sichel as counsel on February 13, 2001. It appears that Sichel immediately telephoned Spears’ counsel and sent a letter to the court stating that he was representing Blake. That same day, counsel for Spears sent the subpoena to Sichel both by facsimile and overnight delivery. Sichel acknowledged at the hearing that he received both copies of the subpoena and further conceded that he called the trial judge on February 14, told him he was representing Blake, and asked for a continuance of the show cause hearing, which the court granted. Notwithstanding these facts, Sichel contends service was improper because he was not counsel of record when he received the subpoena and because Spears produced no evidence establishing service by statutory overnight delivery.

Service of subpoenas is governed by OCGA § 24-10-23, which provides in part that “[s]ubpoenas may ... be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. Service upon a party may be made by serving his counsel of record.” Here, Sichel acknowledged in open court that Spears’ counsel “overnighted [the subpoena] to me via Federal Express.” Such acknowledgment constitutes an admission in judicio, which is binding on Blake, and we are frankly troubled that he would now contend that no such service occurred.

Likewise, Sichel agreed at the show cause hearing that his correspondence with the court stating that he represented Blake was equivalent to an entry of appearance. In light of such admission and Sichel’s notifications to the court and opposing counsel that he was representing Blake, Blake is estopped from now asserting that Sichel was not his counsel of record simply because the attorney failed to properly enter an appearance under Uniform Superior Court Rule 4.2. Even assuming that Sichel’s written notification to the court did not technically comply with Rule 4.2, it is clear that opposing counsel relied on SicheFs representations in serving the subpoena. Accordingly, service was proper.

2. We also find no merit in Blake’s assertion that the trial court should have quashed the subpoena because it was unreasonable and oppressive. “OCGA § 24-10-22 (b) (1) gives the trial court discretion upon timely motion to quash or modify such a subpoena if it is unreasonable and oppressive. This standard is tested by the peculiar facts arising from the subpoena itself and other proper sources.” In this case, Blake asserts the subpoena was unreasonable because he was already required to produce the same documents under the court’s preliminary injunction order. As stated above, however, the court conducted the show cause hearing because Blake had largely failed to comply with the court’s order. Thus, the trial court did not abuse its discretion in failing to quash the subpoena on this ground.

Blake also argues the subpoena was unreasonable because it required him to produce banking records from two other businesses he owned, Blue Jean Jobs and Blue Jean Staffing. The record reflects, however, that assets of those businesses may have been commingled with assets belonging to Shooters and that Spears was merely attempting to determine the extent of the alleged commingling. Accordingly, the records were relevant, and the trial court did not abuse its discretion in failing to quash the subpoena on this ground.

3. Blake next asserts that the trial court erred in finding that he wilfully failed to comply with the subpoena. Again we disagree. Although Blake asserted that he gave Spears all the documents he had, the trial court acted as the trier of fact, and its finding that Blake wilfully failed to turn over certain documents will not be reversed if there is any evidence to support it.

The evidence shows that, on the first day of the show cause hearing, Blake asserted that he had given Spears all of Shooters’ year 2000 banking records in his possession, but he actually produced only miscellaneous checks. Blake also acknowledged that his accounting firm prepared sales and tax records and returns and that copies of these records were at Shooters, but that he had not brought them with him. In addition, Blake failed to bring any of the requested documents concerning Blue Jean Jobs and Blue Jean Staffing, relying on his assertion that such documents were irrelevant. The trial court found that Blake failed to bring numerous documents required by the subpoena and gave him until the following Monday afternoon to produce the documents or face incarceration.

The following Monday, Blake and Spears returned to court, but Blake failed to bring many of the required documents. For instance, although Blake previously testified that he possessed all of Shooters’ financial records and produced some cancelled checks from September and October 2000, he did not turn over any other cancelled checks, deposit slips, monthly account statements, or checkbooks. In addition, Blake failed to produce any payroll records, even though he testified that employees were paid in cash and that he had receipts signed by employees for the payments. Likewise, while Blake previously testified that Shooters had paid its current insurance premiums and sales tax, he produced no documents concerning such policies or tax. Blake also admitted having an audit and other documents which proved that a former manager of Shooters had stolen $31,000 from the business, but failed to produce any such documents concerning the claim. Finally, although Blake unequivocally testified that he had an ownership interest in both Blue Jean Jobs and Blue Jean Staffing, he turned over only a few, select documents concerning those two businesses and what appear to be affiliated entities, but failed to produce a large number of other documents required by the subpoena. In light of this evidence, the trial court did not err in finding that Blake wilfully failed to comply with the subpoena.

4. Blake contends that the court erred in incarcerating him for his failure to comply with the subpoena. We disagree. OCGA § 24-10-25 authorizes a court to enforce a subpoena by “imprisonment not exceeding 20 days.” Although Blake argues that incarceration was improper here because he testified he did not possess the documents, we addressed and rejected that assertion above. Again, the record contains evidence showing that Blake possessed many of the documents and simply failed to produce them. Furthermore, considering that he had already repeatedly violated the court’s order to produce the documents, even before he violated the subpoena, we disagree with Blake that a lesser sanction would have been more appropriate.

5. Immediately after the trial court ordered that Blake be taken into custody, his counsel announced that he had an application for supersedeas. In response, the trial judge stated: “Court is adjourned, counselor. Come in tomorrow when court comes back in session.” Blake asserts that, in light of his counsel’s announcement, the trial court erred in having him incarcerated. Again, we disagree.

In contempt cases, a grant of supersedeas is governed by OCGA § 5-6-13 (a), which provides:

A judge of any trial court or tribunal having the power to adjudge and punish for contempt shall grant to any person convicted of or adjudged to be in contempt of court a super-sedeas upon application and compliance with the provisions of law as to appeal and certiorari, where the person also submits, within the time prescribed by law, written notice that he intends to seek review of the conviction or adjudication of contempt. It shall not be in the discretion of any trial court judge to grant or refuse a supersedeas in cases of contempt.

This Code section requires a court to grant supersedeas only if a person applies for supersedeas and submits a written notice of intent to appeal. Even if we assume that Blake’s counsel attempted to hand the trial judge an application for supersedeas, which the record does not reflect, there is absolutely no indication that he submitted a written notice of intent to appeal. Thus, the record contains no evidence that Blake complied with OCGA § 5-6-13 at this juncture, and the trial court did not err in refusing to grant supersedeas under that section.

Although we find no error, our conclusion should not be considered an endorsement of the trial court’s curt reply to counsel’s attempt to secure a grant of supersedeas. Although Blake had not yet complied with the requirements for the trial court to grant the application, and the judge was obviously tiring of his failure to produce the documents, it would have been preferable for the court to allow counsel a few brief minutes to prepare the documents for submission. In any event, inasmuch as Blake was being hauled off to jail, the court could have explained to counsel its reason for denying the motion. That said, we note that Blake filed a notice of intent to appeal and an application for supersedeas the next day, which was immediately granted by the trial court.

Decided February 22, 2002.

Robert S. Sichel, for appellant.

Johnson & Ward, James E. Goodman, for appellee.

6. In his final enumeration of error, Blake asserts that the trial court erred in entering another order attempting to enforce the subpoena while this appeal was pending. We agree.

The record reveals that after the trial court granted superse-deas, it issued another order giving Blake “one final opportunity . . . to fully and completely comply with the Court’s Preliminary Injunction of November 21, 2000 and the valid and enforceable Subpoena For The Production of Evidence properly served on Defendant by Plaintiff on or about February 5, 2001.” According to the order, if Blake failed to comply, the court would impose additional sanctions.

“The general rule is that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment. Under this rule, the supersedeas, during its pendency, prevents any steps to enforce or carry into effect the judgment.” Because the trial court had already granted supersedeas, it was without authority to enforce the subpoena at issue. Such conclusion, however, does not require reversal of the trial court’s original order finding Blake in contempt for wilfully failing to comply with the subpoena. The judgment on appeal, therefore, is affirmed. Spears’ request for sanctions is denied.

Judgment affirmed.

Johnson, P. J, and Ellington, J., concur.

       See OCGA § 24-10-23 (Supp. 2001).

       See also OCGA § 9-10-12 (b) (Supp. 2001) (defining “statutory overnight delivery”).

       See Dixon Dairy Farms v. Conagra Feed Co., 245 Ga. App. 836, 838, n. 10 (538 SE2d 897) (2000).

       See generally Foster v. Cohen, 203 Ga. App. 434, 436-437 (1) (417 SE2d 61) (1992) (“Admissions which have been acted on by others [ ] are conclusive against the party making them, in all cases, between him and the person whose conduct he has thus influenced. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations”) (punctuation omitted; emphasis in original).

       See id.

       (Punctuation omitted.) Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 310 (4) (381 SE2d 750) (1989).

       See id.

       See id.

       See Deep South Constr. v. Slack, 248 Ga. App. 183, 187 (3) (546 SE2d 302) (2001); Butler v. Biven Software, 238 Ga. App. 525, 527 (2) (522 SE2d 1) (1999).

       See Slack, supra; Butler, supra.

       See OCGA § 5-6-13 (a); Calvert Enterprises v. Griffin-Spalding County Hosp. Auth., 197 Ga. App. 727, 728 (1) (399 SE2d 287) (1990).

       Cf. id. at 728-729 (trial court erred in refusing to grant supersedeas where record reflected that party attempted to submit written application and notice of intent to appeal).

       (Punctuation omitted.) Abney v. Harris, 208 Ga. 184, 187 (4) (65 SE2d 905) (1951). See also Lake v. Hamilton Bank of Dalton, 150 Ga. App. 123, 125 (257 SE2d 31) (1979).

       See id.


source: Caselaw Access Project

author: Phipps, Judge. BARNES, Judge,

license: Public Domain

text:
    A01A2388.
    McCOURY et al. v. ALLSTATE INSURANCE COMPANY et al.
    (561 SE2d 169)
   Phipps, Judge.

Paul McCoury and Michael Kochie own a residence that was partly destroyed by fire in 1997. Although the cost of repairs exceeded $300,000, the policy provided only $225,000 in dwelling protection coverage and did not contain a guarantee of full coverage. As a result, McCoury and Kochie sued Allstate Insurance Company (their property/casualty insurer), Lawrence Wilson (Allstate’s agent and representative) and others in 1999. They charged Allstate and Wilson with negligent failure to provide adequate coverage.

The gravamen of McCoury and Kochie’s complaint is that they requested a policy guaranteeing full repair or replacement of the dwelling and that no such coverage was provided. Allstate and Wilson argue that this claim is barred by the “duty to read” doctrine, in that the insurance policy that was issued to McCoury and Kochie clearly and unambiguously states that there is no guarantee that coverage will be adequate to replace the dwelling. Allstate and Wilson also argue that this action is time-barred under a provision in the policy requiring “any suit or action” to be brought “within one year after inception of the loss or damage.” The trial court granted summary judgment to defendants for unexplained reasons. We affirm as to Allstate but reverse as to Wilson.

1. Paragraph 12 of the policy, entitled “suit against us,” states that “[a]ny suit or action must be brought within one year after the inception of loss or damage.” The policy defines “us” as meaning the company named on the policy declarations, i.e., Allstate. The plain language of the one-year limitation provision bars the present action against Allstate (but not Wilson).

In arguing that this action is not barred, McCoury and Kochie assert that the limitation provision of the policy does not apply to actions in tort for negligent omissions in providing requested coverage. As authority, they cite Ga. Farm &c. Ins. Co. v. Arnold and Brown v. Mack Trucks. These cases merely recognize that one who undertakes to provide full coverage for another may be held liable for negligence in a tort action (as well as for breach of contract in an action for failure to pay benefits required by the insurance policy) if full coverage is not obtained. These cases presented no limitation of action issues.

The question of whether this action against Allstate is barred by the limitation provision in the policy presents essentially two issues: (1) Is the limitation provision applicable to the facts of this case? (2) Does the limitation provision override statutes of limitation that would otherwise be applicable?

By its terms, the provision would apply to “[a]ny suit or action” seeking recovery for “loss or damage” to property covered by the policy. It is not limited to actions for breach of the policy. Clearly, it applies where, as here, policyholders bring suit against the insurer to obtain indemnification which they claim the insurance policy should have provided for damages to insured property. Although this is not an action for breach of the policy, it is certainly an action brought by the plaintiffs by virtue of their status as policyholders. This court has decided that an insurance policy provision placing a one-year limitation upon the right of the policyholder to sue the insurer is valid and enforceable even though it shortens the period allowed by statute.

2. “In general, an insured has an obligation to read and examine an insurance policy to determine whether the coverage desired has been furnished. [Cit.]” If an examination of the policy would have made it readily apparent that the desired coverage was not issued, the policyholders’ failure to examine the policy bars recovery against the insurer or its agent for negligent failure to provide coverage.

The declarations page of the policy in this case plainly states that there is “no replacement guarantee.” It is true that, as argued by McCoury and Kochie, the declarations page also states that the policy is subject to certain forms and endorsements. But it does not appear that any of these other parts of the policy indicate or imply that full replacement coverage is being provided. And although McCoury and Kochie argue that a notation appearing on the declarations page indicates that the type policy being purchased by them insures the dwelling to 100 percent of replacement cost, our review of the declarations page reveals no such notation. Consequently, application of the general rule requiring an insured to read and examine an insurance policy acts as a bar to McCoury and Kochie’s claim that defendants negligently failed to provide them with a policy containing a full replacement guarantee.

An exception to the general rule, however, exists “when the agent has held himself out as an expert and the insured has reasonably relied on the agent’s expertise to identify and procure the correct amount or type of insurance. [Cit.]” Here, McCoury and Kochie also presented evidence showing that they relied on Wilson’s expertise in determining that the policy coverage of $225,000 for protection of the dwelling was adequate. McCoury’s and Kochie’s duty to read the policy does not bar their claim of negligence grounded on the theory that Wilson was negligent in arriving at the $225,000 figure.

For the reasons given in Division 1, the trial court’s award of summary judgment to Allstate is affirmed. For the reasons given in Division 2, the court’s award of summary judgment to Wilson is reversed.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., Pope, P. J, Smith, P. J, Miller and Mikell, JJ., concur. Barnes, J., concurs in part and dissents in part.

BARNES, Judge,

concurring in part and dissenting in part.

Although I concur with reversing the grant of summary judgment to defendant Wilson, I must respectfully dissent from affirming the grant of summary judgment to defendant Allstate based on the one-year condition in the Allstate insurance policy.

Although such limitation clauses have been enforced for some time in actions on policies (see, e.g., Melson v. Phenix Ins. Co. &c., 97 Ga. 722 (25 SE 189) (1895)), the clause does not apply here because this is not an action on the policy. The basis for enforcing such clauses is that parties to a contract may “agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law.” Massachusetts Benefit Life Assn. v. Robinson, 104 Ga. 256, 272 (1) (30 SE 918) (1898). This holding was based on our Supreme Court’s earlier decision in Brown v. Savannah Mut. Ins. Co., 24 Ga. 97, 101 (2) (1858), holding that

[t]he rule is that a condition in a contract which is either mala prohibita or mala per se is void, and can not be enforced. If it do [sic] not contravene public policy it is good. No principle of public policy is violated by a condition in a policy of insurance, that the injured party shall sue within six months from the time of the loss or lose his remedy. There is no reason why a party may not enter into a covenant, that for an alleged breach of contract, the injured party shall sue within a period less than that fixed by the statute of limitations as a bar.

Such limitations, however, are conditions in the policy. SunTrust Mtg. v. Ga. Farm &c. Ins. Co., 203 Ga. App. 40, 42 (416 SE2d 322) (1992); Gen. Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 347 (309 SE2d 152) (1983).

Indeed, the limitation provision in this policy is in Paragraph 12, Suits against Us, under Section I, Conditions: “No suit or action may be brought against us unless there has been full compliance with all policy terms. Any suit or action must be brought within one year after the inception of the loss or damages.” Accordingly, this one-year period is a condition to recovery on the policy, and not a general limitation period. The result is that McCoury and Kochie have agreed that a condition to any suit on the policy is bringing the action within one year after the inception of the loss. Nothing in the policy, however, states that the condition applies to any and all actions they might bring against Allstate. Therefore, no basis exists for applying the condition to actions not based on the policy. It is one thing to apply a condition to actions based on the contract in which the condition is contained; it is a far different matter to apply a condition in a single contract to other dealings between the parties which are not based on the contract.

Here, McCoury and Kochie’s complaint alleges that Allstate and Wilson are liable because of their negligent failure to provide coverages requested.

In Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974), the Supreme Court recognized that an insurance agent or broker who holds himself out as an expert in the field of insurance and who undertakes to provide such expert services to an insured in addition to issuing a policy may be liable for the negligent failure to procure the required coverage.

Fregeau v. Hall, 196 Ga. App. 493, 494 (396 SE2d 241) (1990). Such actions are based on negligence, not contract, and exist irrespective of contractual duty. See Brown v. Mack Trucks, 111 Ga. App. 164, 165-166 (141 SE2d 208) (1965). Consequently, none of the conditions in the policy apply to this action based on negligence.

Moreover, Allstate’s liability is not based on the contract because Wilson was an Allstate employee and agent under its supervision and control. Thus, Wilson’s negligence, if any, in failing to procure the necessary coverage could be imputed to Allstate under the doctrine of respondeat superior. See Ga. Farm &c. Ins. Co. v. Arnold, 175 Ga. App. 850, 851 (1) (334 SE2d 733) (1985).

Under these circumstances, I would reverse the grant of summary judgment to Allstate.

Decided February 22, 2002.

Bennett & Associates, Andrea R. Bennett, Swift, Currie, McGhee & Hiers, Michael T. Bennett, for appellants.

Webb, Zschunke, Miller & Dikeman, Edward A. Miller, for appel-lees.

Additionally, if the majority is correct on this point, then any of Allstate’s many policyholders would be obligated to bring any suits against Allstate within one year of the incident giving rise to the action and would be obligated to satisfy any of the other conditions in their policies, even though the litigation is completely unrelated to any insurance policy containing the limiting clause. In my opinion, such a result is contrary to our law, and any provision attempting to achieve that result would be contrary to the public policy of this State.

Accordingly, even though I concur with reversing the grant of summary judgment to defendant Wilson, I must respectfully dissent from affirming the grant of summary judgment to defendant Allstate Insurance Company.

       175 Ga. App. 850 (334 SE2d 733) (1985).

       111 Ga. App. 164 (141 SE2d 208) (1965).

       The dissent’s suggestion that we are applying this provision to litigation “completely unrelated to any insurance policy containing the limiting clause” is thus off the mark.

       See SunTrust Mtg. v. Ga. Farm &c. Ins. Co., 203 Ga. App. 40, 41 (416 SE2d 322) (1992); Darnell v. Fireman’s Fund Ins. Co., 115 Ga. App. 367 (154 SE2d 741) (1967).

        Hunt v. Greenway Ins. Agency, 213 Ga. App. 14 (443 SE2d 661) (1994).

       See Greene v. Lilburn Ins. Agency, 191 Ga. App. 829, 830 (383 SE2d 194) (1989).

        Hunt v. Greenway Ins. Agency, supra at 15.


author: Johnson, Presiding Judge.

text:
    A01A2399.
    RENAUD v. BLACK et al.
    (561 SE2d 183)
   Johnson, Presiding Judge.

This wrongful death lawsuit was brought after a young child drowned in a backyard swimming pool. Because there is no evidence that the pool owners acted improperly, we affirm the trial court’s grant of summary judgment to them.

Angie and Chris Renaud lived with their two sons in a subdivision in Bartow County. On June 22,1997, Angie Renaud was at home talking on the telephone when she saw her son Stephen, who was three years and ten months old, go out the kitchen door. She hung up the telephone and followed Stephen into the backyard. Ms. Renaud did not find her son there, so she and her husband searched the area. Unable to locate Stephen, the Renauds called the police, who came to search for the child.

Andrew and Cheryl Black and their children lived in the same subdivision as the Renauds. The families, however, lived on different streets and did not know each other. When rescue workers told families to search their own property for the missing child, the Blacks checked the aboveground swimming pool in their backyard, which was enclosed by a four-foot-high chain-link fence. Mr. Black found Stephen’s body in the pool.

Angie Renaud sued Andrew and Cheryl Black for the wrongful death of Stephen. She claims that the pool constituted an attractive nuisance, that the Blacks were negligent per se in failing to fully comply with a county ordinance requiring the pool to be fenced in, and that the Blacks were negligent in failing to lock their backyard fence gates. The Blacks moved for summary judgment, and the trial court granted their motion on all three claims. Renaud appeals from the trial court’s ruling.

1. Under the attractive nuisance doctrine, one who possesses land which has an artificial condition upon it is subject to liability when the condition causes physical harm to a trespassing child if: (1) the possessor knows or has reason to know that children are likely to trespass where the condition exists; (2) the possessor knows or has reason to know that the condition involves an unreasonable risk of death or serious harm to trespassing children; (3) children, because of their youth, do not discover the condition or realize its risk; (4) the utility of the condition to the possessor and the burden of eliminating the danger are slight in comparison to the risk to children; and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children.

In the instant case, the trial court correctly found that there is no evidence of either the first or fifth elements required to support an attractive nuisance claim. As to the first element, the Blacks did not know and had no reason to know that children were likely to trespass into their enclosed backyard. The only children whom the Blacks had ever allowed to use the pool were their own daughters, along with their nieces and nephews. They had never allowed neighborhood children to use the pool. And there is no evidence that any neighborhood children had ever tried to gain access to the swimming pool or that the Blacks had ever known of any children coming into their yard without permission. In regard to Stephen Renaud, the Blacks did not know him and he had never been to their house or in their yard. Based on the evidence, the trial court did not err in concluding that the first prong of the attractive nuisance test was not met.

The fifth prong also was not met. The backyard and the pool were enclosed by a four-foot-high fence, free of any defects. The Supreme Court has stated that erecting a fence or other enclosure around a pool is generally all that is required of a landowner in the exercise of reasonable care. Here, we find that the Blacks exercised reasonable care to protect children from any danger by having a fence around their backyard pool.

Because there is no evidence supporting two of the requisite elements for an attractive nuisance claim, the trial court did not err in granting summary judgment to the Blacks on that claim.

2. A county ordinance provided: “Any swimming pool shall be enclosed with a solid or chain link fence not less than four (4) feet in height. . . .” Renaud argues that the fence surrounding the Blacks’ pool did not comply with this ordinance because it had two gates that latched, but did not lock.

We must strictly construe the ordinance and cannot extend it beyond its plain and explicit terms. The plain terms of the ordinance impose no requirement that a fence have gates which lock, and we cannot extend those plain terms to include such a requirement. Instead, we are compelled to find that the Blacks complied with the ordinance because the chain-link fence surrounding their pool was four feet high. Because the Blacks were in compliance with the ordinance, the trial court correctly granted summary judgment to them on Renaud’s negligence per se claim.

3. “The general rule is that a person who owns or controls property owes no duty to a trespasser upon it, except not to wilfully or recklessly injure him; and this rule applies alike to adults and to children of tender years.” There is no question that Stephen Renaud was not invited onto the Blacks’ property, that they did not know he was there, and that he was a trespasser on their property. Likewise, there is no evidence that the Blacks injured him wilfblly or reck-" lessly. On the contrary, they acted with reasonable care by fencing in their backyard pool. Because the Blacks did not violate the duty they owed to the child trespasser, Renaud’s claim of ordinary negligence must fail.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided February 22, 2002.

Garland, Samuel & Loeb, David E. Tuszynski, for appellant.

Magruder & Sumner, J. Clinton Sumner, Jr., Susan D. Taylor, for appellees.

        Gregory v. Johnson, 249 Ga. 151, 154 (289 SE2d 232) (1982).

       See Knutzen v. O’Leary, 210 Ga. App. 590, 593 (2) (437 SE2d 347) (1993) (first prong of attractive nuisance test not met where child had previously been on landowner’s property, but had never been to the pool area where he drowned).

        Gregory, supra at 155.

       See Knutzen, supra at 594 (4) (landowner exercised reasonable care where his property, which included a backyard pool, was fenced).

       Bartow County Ordinance § 7.1.7.

       See Piccadilly Place Condo. Assn. v. Frantz, 210 Ga. App. 676, 678 (1) (436 SE2d 728) (1993).

       See Knutzen, supra at 593 (3).

       (Citation omitted.) Trammell v. Baird, 262 Ga. 124, 125 (413 SE2d 445) (1992).

       See Gregory, supra at 153 (no question that uninvited child was a trespasser).

       See Bowers v. Grizzle, 214 Ga. App. 718, 720 (4) (448 SE2d 759) (1994) (even assuming there was no gate on a fence surrounding an aboveground pool in which a child drowned, summary judgment appropriate because the property owner did not breach duty not to injure child wilfully or wantonly).


author: Miller, Judge.

text:
    A01A2410.
    In the Interest of R. W. et al., children.
    (561 SE2d 166)
   Miller, Judge.

L. W. appeals from the termination of her parental rights in her children, R. W. (girl age 12) and W. W. (boy age 16). On appeal L. W. argues that the court erred in finding clear and convincing evidence of her parental misconduct or inability and erred in finding that the termination of her parental rights was in the best interests of the children. L. W. further contends that the court erred in admitting certain review reports over her hearsay objection. We affirm.

On appeal we must determine whether, after reviewing the evidence in the light most favorable to the lower court’s judgment, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. We neither weigh the evidence nor determine the credibility of witnesses; rather, we defer to the trial court’s factfinding if supported by , evidence.

Viewed in the light most favorable to the juvenile court’s judgment, the evidence showed that the Department of Human Resources first became involved with the family in 1991 because the father had a history of alcohol abuse and because the children were in unsanitary living conditions. In March 1998, the children were removed from the home because of unsanitary living conditions, the mother’s emotional instability, domestic violence, and alcohol abuse. The caseworker described beer cans in the yard and house, an enormous amount of trash piled up in the kitchen, and dirty clothes all over the house. The caseworker also testified to a previous visit to the home in which she observed cans of food open and all over the floor, dirty clothes throughout the house, no running water in the bathroom, and an inoperable toilet that was being used anyway and was full of feces.

A reunification plan was developed in April 1998, which required the father to have treatment for his alcohol abuse, the family to be in counseling, the parents to keep the home clean and safe, and both parents to obtain driver’s licenses. L. W. complied with this plan, and the children were returned to her in August 1998.

In November 1998, the children were once again removed from the home because of unsanitary living conditions as well as domestic violence. The father had hit L. W., and there was evidence that the father had been drinking. In December 1998, a second reunification plan was developed with the same requirements as the first. L. W. once again completed the plan, and the children were returned to her in June 1999.

The caseworker had prepared a safety plan with L. W. in which she was not to leave the children unattended. The children were once again removed from the home in July 2000 because L. W. had left R. W. with someone in the trailer park whom she did not know and left W. W. with a man who had a history of sexual abuse. Over several days, both children were observed in the trailer park without supervision. L. W. was then charged with two counts of child abandonment. The arresting officer described the home as one of the most unsanitary he had ever seen. He described trash all over the floor of the home, clothes everywhere, food on tables, a hot water heater spraying water onto a bare wire, no flooring in the bedroom, and dirty dishes piled in the sink.

In December 2000, upon review of a 30-day case plan, the court found that the parents’ whereabouts were unknown and that nonreunification was in the children’s best interests. A petition for termination of parental rights was filed in February 2001.

At the time of the hearing, the children were in foster care in a group home, and although both children wanted to return home, L. W. was living with a man and his mother and did not maintain a home of her own. W. W. had behavioral problems but was doing better since foster care. L. W. was cooperative with DHR for the most part, but at the time of the hearing in June 2001, she had not requested to be reunified with her children.

1. L. W. argues that the court erred in admitting review reports from a citizens review panel over her hearsay objection. Although a review panel is authorized to participate in the formulation of reunification plans, the court cannot terminate parental rights on “findings almost exclusively based on findings of a citizen’s review panel.” Here, however, the trial court did not base its findings exclusively on the findings of the review panel but also on the testimony of witnesses, including the caseworker who had been involved in the case since 1994. Moreover, as explained in Division 2, even apart from those reports, there was sufficient evidence to support the termination.

2. In considering the termination of parental rights, the juvenile court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. If there is, the court shall then determine whether the termination of parental rights is in the best interest of the child.

(a) Parental Misconduct or Inability. Parental misconduct or inability is determined by finding that (i) the child is deprived; (ii) lack of proper parental care or control by the parent is the cause of the deprivation; (iii) the cause of deprivation is likely to continue or will not likely be remedied; and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

(i) Deprivation. As L. W. did not appeal the order of the juvenile court finding that the children were deprived, she is bound by that finding.

(ii) Lack of Proper Parental Care and Control. The previous order also found that the children are deprived “in that they are without proper parental care, control, subsistence, and education as required by law, or other care and control necessary for their physical, emotional or mental health and morals.” Therefore, L. W. is also bound by this unappealed determination.

(iii) Deprivation is Likely to Continue. “In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent.” It is important to note that although L. W. substantially complied with the case plans, each time the children were returned, she would allow the home to revert to a filthy and unsanitary condition. Therefore, it is reasonable to expect that these conditions would continue.

(iv) Children Likely to be Seriously Harmed by the Continued Deprivation. Both of the children were living in a home filled with trash, open food on the floor, dirty clothes scattered throughout the house, and a broken toilet lull of feces. A rational trier of fact could find that these living conditions posed a serious health risk to the children and could affect them physically. Therefore, the court was entitled to infer that the children would likely suffer harm due to the continued deprivation.

Decided February 22, 2002.

Webb, Lindsey, Collins, Jones & Wade, Martin C. Jones, Kelley S. Powell, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, W. Ashley Hawkins, for appellee.

Thus, we conclude that the court properly found clear and convincing evidence of parental misconduct and inability.

(b) Best Interests of the Children. In determining that terminating L. W.’s parental rights would serve the best interests of the children, the court properly concerned itself with the need for the children to live in a safe, stable environment. To continue to remove the children from the home due to instances of unsanitary living conditions and lack of supervision would only serve to promote instability in their lives. The evidence also showed that W. W.’s behavioral problems seemed to subside while he was in foster care. Moreover, at the time of the hearing, L. W. did not maintain a household of her own and was living with another man and his mother. Therefore, she has not shown that she can provide a stable home for the two children.

As a rational trier of fact could have found clear and convincing evidence of parental misconduct or inability and could also have found that termination of parental rights was in the best interests of the children, the court did not err in terminating the mother’s parental rights to the children.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        In the Interest of N. J. W., 233 Ga. App. 130 (503 SE2d 366) (1998).

       Id.

       See, e.g., OCGA § 15-11-58 (b).

        In the Interest of M. L. P., 231 Ga. App. 223, 225 (498 SE2d 786) (1998).

       See In the Interest of A. T. H., 248 Ga. App. 570, 574-575 (2) (547 SE2d 299) (2001).

       OCGA § 15-11-94 (a).

       Id.

       OCGA § 15-11-94 (b) (4) (A) (i)-(iv).

        In the Interest of M. L. P., 236 Ga. App. 504, 506 (1) (a) (512 SE2d 652) (1999).

       See In the Interest of A. G., 253 Ga. App. 88, 89 (1) (b) (558 SE2d 62) (2001); In the Interest of R. G., 249 Ga. App. 91, 93 (1) (a) (547 SE2d 729) (2001).

       (Citation omitted.) In the Interest of R. D. S. P., 230 Ga. App. 205, 207 (495 SE2d 867) (1998).

       See N. J. W., supra, 233 Ga. App. at 134 (1) (c); In the Interest of K. L., 234 Ga. App. 719, 720-722 (507 SE2d 542) (1998).

       Cf. K. L., supra, 234 Ga. App. at 722.

       See In the Interest of V. S., 230 Ga. App. 26, 29-30 (1) (495 SE2d 142) (1997).

       See In the Interest of R. W., 248 Ga. App. 522, 525 (1) (546 SE2d 882) (2001).


text:
    A01A2533.
    ECKHARDT et al. v. YERKES REGIONAL PRIMATE CENTER.
    (561 SE2d 164)
   Miller, Judge.

Bonnie Eckhardt and Bridget Mueller appeal from the trial court’s grant of the Yerkes Regional Primate Center’s motion to dismiss. We affirm.

A motion to dismiss is granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of her claim. Mattox v. Yellow Freight Systems, 243 Ga. App. 894 (534 SE2d 561) (2000). We review the grant of a motion to dismiss de novo. Id.

The appellants contend that they were terminated as employees for the Yerkes Regional Primate Center because they documented and internally reported a transfer procedure which presented a danger to employees and the public. They complained that the Center’s practice of transporting macaque monkeys was a substantial public health risk as the monkeys are infected with the highly contagious and virulent Herpes B virus, which is potentially fatal if contracted by humans. The appellants argue that because they were whistle-blowers to the hazard involved in the handling of the monkeys, their terminations violated public policy in this state and that discharging employees for such actions discourages employees from reporting unsafe procedures.

1. The appellants contend that the trial court erred in failing to expand Georgia law to include this public policy exception to the at-will employment doctrine. In Georgia, the general rule is that

an employee, employed at will and not by contract, cannot bring an action against his employer for wrongful discharge from employment or wrongful interference with the employment contract when and where he is an at will employee with no definite and certain contract of employment. The employer [ ] with or without cause and regardless of its motives may discharge the employee without liability.

(Citations and punctuation omitted.) Jellico v. Effingham County, 221 Ga. App. 252, 253 (471 SE2d 36) (1996); Borden v. Johnson, 196 Ga. App. 288, 289 (1) (395 SE2d 628) (1990); see OCGA § 34-7-1. The appellants are correct that there are certain legislatively created public policy exceptions to the at-will doctrine, but none apply to this case. See, e.g., OCGA §§ 18-4-7 (employer cannot discharge employee whose earnings are subject to garnishment); 34-1-3 (employer cannot discharge employee who is absent to attend judicial proceeding in response to court order). Moreover,

Decided February 22, 2002

Leslie E. Stewart, for appellants.

Fisher & Phillips, Burton F. Dodd, Gay M. Hamilton, for appel-lee.

[t]he courts of this state have consistently held that they will not usurp the legislative function and, under the rubric that they are the propounders of “public policy,” undertake to create exceptions to the legal proposition that there can be no recovery in tort for the alleged “wrongful” termination of the employment of an at-will employee. That the courts of other jurisdictions may have done so is of no consequence. . . .

(Citations and punctuation omitted.) Jellico, supra, 221 Ga. App. at 253. “[I]n the absence of any express statutory provision for such a civil remedy, we decline to create judicially such a remedy. Courts may interpret laws, but may not change them.” (Citations and punctuation omitted.) Id. Regardless of whether this court agrees with appellants that there should be a public policy exception to the at-will doctrine in this case, we are constrained to leave that determination to the General Assembly.

As the legislature has not created a public policy exception that would allow a plaintiff to recover on a claim of wrongful termination for whistleblowing in these circumstances, the trial court did not err in dismissing the claim. See Yellow Freight Systems, supra, 243 Ga. App. at 896; Jellico, supra, 221 Ga. App. at 253-254.

2. The court also did not err in dismissing the appellants’ claim for negligent retention. See OCGA § 34-7-20. As we found in Division 1, the appellants’ claim for wrongful termination is without merit. Therefore, there is no underlying tort on which to base a negligent retention claim.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.


author: Ellington, Judge.

text:
    A02A0521.
    MARTIN v. THE STATE.
    (561 SE2d 154)
   Ellington, Judge.

A Greene County jury convicted Terrance Martin of two counts of burglary, OCGA § 16-7-1. He appeals from the denial of his motion for new trial, contending the evidence was insufficient to support the judgment of conviction and that the trial court’s instruction to the jury on recent unexplained possession of stolen goods was “legally defective.” Finding no error, we affirm.

1. When reviewing the sufficiency of evidence to support a conviction on appeal, this Court views all evidence in the light most favorable to the jury’s verdict and does not weigh the evidence or judge witness credibility. Fowler v. State, 246 Ga. App. 639, 640 (541 SE2d 447) (2000). The defendant is no longer presumed innocent. Id. This Court determines only whether the evidence presented was sufficient for a rational juror to find the defendant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hanson v. State, 229 Ga. App. 205, 206 (1) (493 SE2d 605) (1997).

Viewed in this light, the evidence showed that during the summer of 2000, someone stole a chainsaw and a pressure washer from Willis Johnson’s garage at his Greene County home. Johnson discovered the theft in late July 2000. He testified that he last used the pressure washer on July 15, 2000. He reported the thefts to the Greene County Sheriff’s Office on July 30, 2000. Johnson testified that he suspected Martin of the burglary because Martin had performed yard work at Johnson’s home in May 2000. Over the next few weeks, Martin was very persistent in offering to do additional yard work, even though Johnson consistently refused Martin’s offer to work. Johnson testified that he never gave Martin the authority to enter his garage.

The evidence also showed that, on or about July 20, 2000, someone broke into Dan Robinson’s Greene County home and took a television, VCR, and other items. Robinson was on vacation in Florida at the time. A friend went to Robinson’s home to feed the cats on July 20, 2000, and the house was intact. When the friend returned the next day, he discovered that someone had broken a window and stolen the television and VCR. He reported the theft to police. At trial, Robinson testified that Martin had worked for him at his home but that he had never given Martin permission to enter the house.

Officers investigating burglaries in the area discovered that Martin had pawned Johnson’s chainsaw on June 22, 2000, and the pressure washer on July 19, 2000. Martin also pawned Robinson’s items at approximately 4:00 p.m. on July 21, 2000, within hours of the burglary. The officers arrested Martin on August 3, 2000. Martin told the officers that, two weeks before his arrest, he had purchased all of the items he had pawned from a white man in a Ford Bronco with several rebel flags and Putnam County tags. Martin did not know the man’s name or how to contact him. When officers confronted Martin with the fact that some of the pawns had been made several weeks before he allegedly purchased the items, Martin became “very harsh” and the interview ended. The officers contacted Putnam County officials, who were unable to identify the man or vehicle based upon Martin’s information. Subsequently, on August 17, 2000, officers told Martin he was being charged with burglarizing Robinson’s home, and Martin “blurted out” that Robinson had given him the television and VCR. Robinson, however, denied that he had given or sold the items to Martin.

Although the evidence of recent, unexplained (or unsatisfactorily explained) possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary, the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable doubt standard applied in Jackson v. Virginia, [supra]. Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property. In the case sub judice, the verdict reflects the jury’s dissatisfaction with [Martin’s] explanation.

(Citations and punctuation omitted.) Hanson v. State, 229 Ga. App. at 206 (1). See also Faust v. State, 189 Ga. App. 426, 427 (1) (375 SE2d 889) (1988). Considering the proof of the commission of the burglaries; Martin’s prior presence at the sites of the burglaries; Martin’s recent, almost contemporaneous, possession of the goods stolen; his conflicting statements to the police and his abrupt change of demeanor when presented with a blatant inconsistency; and other circumstances presented, we find that this evidence was sufficient for a rational juror to find Martin guilty beyond a reasonable doubt of burglarizing the homes of Johnson and Robinson. Hanson v. State, 229 Ga. App. at 206 (1); Myles v. State, 186 Ga. App. 817, 818 (2) (368 SE2d 574) (1988); Williams v. State, 171 Ga. App. 624, 625 (320 SE2d 546) (1984) (noting evidence of defendant’s prior visits to the site of the burglary).

2. Martin contends the trial court’s jury instruction on recent unexplained possession of stolen goods was incomplete because it did not include the suggested instruction from Williamson v. State, 248 Ga. 47, 57-58, n. 9 (281 SE2d 512) (1981). This instruction is. to be used when recent, unexplained possession is the only evidence that the defendant committed the burglary. Id. We do not have to decide, however, whether the instruction was required in this case, given the additional evidence presented that supported the guilty verdict, because the trial court’s instruction was sufficiently similar to the approved charge so as to not constitute reversible error. See Norton v. State, 174 Ga. App. 905 (1) (332 SE2d 43) (1985). The trial court gave the pattern jury instruction on recent unexplained possession of stolen goods, as well as instructing the jury on the presumption of innocence and the State’s burden of proving every element of the crimes as indicted beyond a reasonable doubt.

“Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” (Citations and punctuation omitted.) Norton v. State, 174 Ga. App. at 905 (1). Having reviewed the jury instructions as a whole, we find no reversible error. Id.; see also Williamson v. State, 248 Ga. at 57-58 (1) (c) (holding that the charge was not unconstitutionally burden shifting); Myles v. State, 186 Ga. App. at 818 (3).

Decided February 22, 2002.

Robert E. Surrency, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       When the recent, unexplained possession of stolen goods is the only evidence that the defendant was the perpetrator of the crime, the Supreme Court approved the following jury charge:
      1 charge you that if you find the crime of burglary has been committed in the way and manner charged in the indictment, and certain personal property was stolen as a result of the burglary, and if recently thereafter, the defendant was found in possession of such stolen property or any part thereof, you will be permitted, but not required, to infer that the defendant committed the burglary. If you find from the evidence that there is another explanation of the defendant’s possession, consistent with his innocence, you may not draw an inference that he committed the burglary. There being no other evidence that the defendant was the perpetrator of the crime, before you can convict, you must believe the existence of the inferred fact beyond a reasonable doubt.

        Williamson v. State, 248 Ga. at 57-58, n. 9.

       The trial court instructed the jury as follows:
      If you should find, beyond a reasonable doubt, that the crimes of burglary have been committed, as charged in this indictment, and certain personal property was stolen as a result of such crime; and, if recently thereafter the Defendant should be found in possession of the stolen property or any of the stolen property, that would be a circumstance, along with all the other evidence, from which you may infer guilt as to the charge of burglary as set forth in this indictment, if you see fit to do so, unless there should be, from the evidence, a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine. In a prosecution for burglary where the state relies upon Defendant’s recent possession of allegedly stolen goods for conviction, it is absolutely essential that the identity of the stolen articles be indisputably established. What constitutes recent possession of stolen goods is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.


author: Smith, Presiding Judge.

text:
    A01A1638.
    LINKOUS v. THE STATE.
    (561 SE2d 128)
   Smith, Presiding Judge.

Contending that he did not waive his demand for a speedy trial filed under OCGA § 17-7-170, Steven W. Linkous appeals the denial of his motion for discharge and acquittal. We find otherwise and affirm.

The chronology of this case is particularly important to an understanding of the application of the law. Linkous was arrested on April 4, 2000, and cited for reckless driving, driving under the influence, misdemeanor possession of marijuana, and operating a vehicle with a broken taillight. On April 25, 2000, Monte K. Davis entered an appearance as defense counsel and filed several motions on behalf of Linkous, accompanied by a notice of leave of absence. Defense counsel sought leave from May 29, 2000, through June 2, 2000, and from June 19, 2000, through June 30, 2000. Counsel also sought leave for a three-week period beginning December 11, 2000, and ending January 5, 2001.

The effect of filing the demand in the latter part of the March/ April term of the State Court of Cobb County was to allow the prosecution only until the end of the May/June term in which to bring Linkous to trial. See OCGA § 15-6-3 (11). The filing of the notice of leave, in conjunction with the timing of the demand for speedy trial, shortened the time available for trial, leaving a window of opportunity to satisfy the demand that consisted only of approximately 45 nonconsecutive days.

The solicitor-general stated without contradiction that he first learned about the demand on June 19 or June 20 and promptly notified the trial court. At about 12:15 p.m., on June 20, the judge assigned to the case personally “called the case in for trial by leaving a message on the telephone-answering device at the Law Offices of Monte Kevin Davis, setting the case to begin on June 26, 2000 at 9:00 a.mDefense counsel did not return the judge’s call, opting instead to reply by a letter faxed on June 22. The trial court noted that this letter had been signed by Davis and was faxed from his law office. In the letter, Davis responded that he was on vacation, that the “case is scheduled for an arraignment on July 7, 2000,” and that “neither undersigned counsel nor the defendant are on proper notice for any other calendered [sic] court appearance in this case.” The letter cited Birts v. State, 192 Ga. App. 476 (385 SE2d 120) (1989), for the legal proposition that “counsel’s leave of absence does not act as an affirmative waiver of a defendant’s demand where the State attempts to call in the case during the period of the attorney’s leave.” The correspondence advised the trial court that attorney Clifford L. Granger, Jr. would accompany Linkous to court but only in the capacity of a “friend of the court” and that Granger would not be authorized to enter an appearance, sign any notices for future court dates, make any announcements, or to try the case.

But on July 7, absent waiver of the demand, the State could no longer have brought Linkous to trial. When the case was called for trial on June 26, Linkous was present but his defense counsel was not. The State announced ready for trial. The trial court noted, “[a]nd I would love to try this case today. But unfortunately we cannot because counsel is not available.” The trial court noted that another judge of the State Court of Cobb County, who was also confronting a speedy trial demand involving the same defense counsel, had set another case down to start on the morning of Saturday, July 1. Accordingly, the court stated that Davis “can’t try [this case] on Saturday and Sunday because he’s now called in before Judge Glover’s with a speedy trial.” The trial court further observed, “So Mr. Davis has created [a] conundrum for the court system. And that conundrum, two demands for speedy trial and then left town on vacation and expects to prevail in both demands for speedy trial.” The trial court noted for the record,

I deem that Mr. Davis’ conduct in this case was deliberately designed to avoid the State being able to give him the speedy trial and the Court being able to give him the speedy trial that his client was entitled to and that his conduct in totality here is egregious.

Several months later, the trial court conducted a hearing on Linkous’s motion for discharge and acquittal. Linkous argued that due to the filing of his counsel’s leave of absence, “the case was protected” from being called and he blamed the State for not discovering the demand sooner. Davis admitted that when Linkous hired him on April 15, “I knew I was going to be on vacation, and I knew the State must try my client before the end of June.” Nevertheless, Linkous faulted the State for not satisfying his demand within the parameters of his attorney’s scheduled leave.

The trial court rejected these arguments. In finding that Linkous waived his right to speedy trial, the trial court found that “Mr. Davis and his client were placed on proper notice of trial by the recorded telephone message from the trial judge.” The trial court also found that “Mr. Davis intentionally made himself absent from the June 26 trial date, with full knowledge that the case was called in for trial. Such actions intentionally delayed the trial of the case and Mr. Davis’ conduct is unacceptable.” Noting the other case for which Davis was also defense counsel had been called for trial to begin on Saturday, July 1, 2000, at 9:00 a.m., the next to the last day of the term, the trial court also found “this judge would have had no other time within the demand to afford the defendant a speedy trial.” The trial court expressed its disapproval of the tactic of “hid[ing] behind rules of notice and leaves of absence to gain unfair advantage.”

In this appeal, Linkous contends that the ruling by the trial court was clearly erroneous and must be reversed. Linkous asserts that the prosecutor had ample time to bring him to trial between April 25 and June 19, less the final week of May. Linkous claims that under the straightforward provisions of OCGA § 17-7-170, he is absolutely entitled to discharge and acquittal because the State failed to comply with his speedy trial demand. Linkous contends that the trial court erred in denying his motion based upon his defense counsel’s failure to appear on June 26 because the case was absolutely protected from being called due to counsel’s notice of leave of absence filed under Uniform Superior Court Rule (“USCR”) 16 and the court’s failure to comply with USCR 32.1.

A defendant who has made a proper demand for a speedy trial is entitled to an automatic discharge without further motion if he is not tried within the second term of court, provided that a jury is present at each term and is qualified to try him. Parker v. State, 135 Ga. App. 620, 621 (3) (218 SE2d 324) (1975). Here, it is undisputed that jurors were impaneled during both terms of court. A defendant however may waive his statutory right to automatic discharge and acquittal by some action on his part or on the part of his counsel. Id. at 621 (4). “Any affirmative action” by a defendant which results in a continuance of the case or a failure to try it within the time fixed by statute after the filing of a demand under OCGA § 17-7-170 has the effect of tolling the time. Letbedder v. State, 129 Ga. App. 196, 197, n. 1 (199 SE2d 270) (1973).

Georgia courts have long sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal while also seeking to safeguard against efforts by prosecutors to dilute the right to speedy trial by using “ingenuity” in scheduling a case. Fisher v. State, 273 Ga. 721, 723 (545 SE2d 895) (2001). Courts “must guard against manipulations that would allow defense counsel the power to force the trial court to try the case during a short window between defense leaves of absence and continuances.” (Footnote omitted.) Jones v. State, 250 Ga. App. 829, 831 (553 SE2d 24) (2001). Here, clearly, Linkous would have been tried in compliance with his demand for a speedy trial, but for his attorney’s unavailability for trial after being contacted by the trial court. See State v. Dymond, 248 Ga. App. 582, 586 (2) (546 SE2d 69) (2001). Although defense counsel did not request a continuance, the propriety of his absence from the proceedings on June 26 could properly be considered by the trial court in determining whether such conduct resulted in the waiver of the speedy trial demand. See Sykes v. State, 236 Ga. App. 518, 520-521 (2) (511 SE2d 566) (1999).

Linkous claims that his defense counsel’s unopposed notice of leave filed under USCR 16.1 absolutely protected his case from being called for trial during the period from June 19 through June 30. He asserts that since the State failed to file a written objection to his attorney’s leave request within ten days of April 25, 2000, as required by USCR 16.1, the leave stood granted without entry of an order.

On the contrary, simple arithmetic indicates that in a single notice, defense counsel was seeking leave in excess of 30 days within one calendar year. USCR 16.2, not 16.1, controls applications for leave exceeding 30 days. USCR 16.2 provides that

Application for leaves of absence for more than thirty (30) days . . . must be in writing, filed with the clerk of the court, and served upon opposing counsel at least ten (10) days prior to . . . submission to the appropriate judge of the court in which [an] action pends. This time period may be waived if opposing counsel consents in writing to the application. This procedure permits opposing counsel to object or to consent to the grant of the application, but the application is addressed to the discretion of the court.

USCR 16.2. Although Linkous correctly argues that the State bears the burden of proving waiver, the record contains no evidence that defense counsel strictly and fully complied with this rule. No evidence shows that defense counsel gave the State the requisite ten days notice before filing notice with the trial court. In fact, the record does not indicate that the application was ever submitted “to the appropriate judge.” Nor does the record contain a written waiver by the State of this ten-day notice rule. Therefore, by operation of USCR 16.4, counsel’s application for leave stood denied. State v. Dodge, 251 Ga. App. 361, 363 (1) (553 SE2d 831) (2001). As a result, when the trial court notified counsel to appear for trial on June 26, defense counsel’s absence from court was unauthorized. Id. Defense counsel’s refusal to report for trial on June 26 despite being directed to do so was an affirmative act that resulted in the waiver of the demand. Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994).

Decided February 5, 2002

Reconsideration denied February 25,2002

Monte K. Davis, for appellant.

Barry E. Morgan, Solicitor-General, Thomas E. Griner, Assistant Solicitor-General, for appellee.

Finally, we are not persuaded by Linkous’s argument that his defense counsel was not obligated to appear for trial because he and his lawyer did not receive seven days notice of the trial date in accordance with USCR 32.1. Noncompliance with Rule 32.1 must be judged by the circumstances of each case. Payne v. State, 195 Ga. App. 523, 524 (1) (394 SE2d 781) (1990). Here, the trial court was attempting to comply with the demand for trial, and the only way to do so was by deviating from the notice requirement of USCR 32.1. See Croft v. State, 180 Ga. App. 705, 706 (350 SE2d 34) (1986). In these circumstances, we cannot say that the trial court clearly erred in finding a waiver of the demand. See Day v. State, 187 Ga. App. 175 (1) (369 SE2d 796) (1988).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Although the State filed a five-count accusation against Linkous on June 20, the demand had already been filed on the uniform traffic citations. See State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996) (right to a speedy triad under OCGA § 17-7-170 attaches when State files uniform traffic citation with the court).

       The second term of court ended on July 3, 2000, the first Monday in July. See Ga. L. 1979, pp. 3481, 3483.

       The result would be the same under USCR 16.1 which regulates requests for leave of fewer than 30 days since no evidence shows that a copy of the notice was sent contemporaneously to the judge. Nor does the certificate of service name any counsel or reflect service upon any judge or clerk. USCR 16.4 requires strict compliance with its terms and procedures.


text:
    A01A1809.
    COBB v. THE STATE.
    (561 SE2d 124)
   Smith, Presiding Judge.

James Edward Cobb was indicted by a Forsyth County grand jury on three counts of aggravated child molestation, one count of child molestation, two counts of statutory rape, and two counts of incest. He was found guilty by a jury, his motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Cobb raises the general grounds, contending the victim was unsure of details and contradictory in her testimony. But “[t]he jury determines credibility and resolves conflicts in the evidence; this Court does not reweigh the evidence but only determines its legal sufficiency. [Cit.]” Banks v. State, 250 Ga. App. 728, 731 (4) (552 SE2d 903) (2001). The victim’s testimony alone was sufficient to support the conviction. Alford v. State, 243 Ga. App. 212, 213 (1) (534 SE2d 81) (2000).

2. Two enumerations of error concern Cobb’s attempt to call a witness who, he claims, would have testified to a prior false allegation of child molestation by the victim. Cobb had issued a subpoena for this witness, he was served, and the return was filed with the court two days before trial. When the witness did not appear, Cobb moved for a continuance. In a colloquy with the court, Cobb stated that the witness’s testimony would be that the victim had made allegations of sexual molestation against him and that those allegations were false.

OCGA § 17-8-25 provides for a continuance on account of an absent witness if a showing is made to the trial court that meets the following requirements:

that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.

Cobb has failed to meet several of these requirements, including ability to procure the witness at the next term of court, that the application was not made for the purpose of delay, and that the witness was not absent by permission. Most importantly, however, the proffer of testimony was inadequate to demonstrate that the witness’s testimony was material, because it did not meet the standard for admission of previous false allegations by the victim in a child molestation case.

The rape shield statute’s exclusion of evidence relating to the past sexual behavior of the complaining witness applies in child molestation cases. But the rape shield law does not prohibit testimony of previous false allegations by the victim. Before such evidence can be admitted, the trial court must make a threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists. The defendant has the burden of coming forward with evidence establishing a reasonable probability that the victim made a prior false allegation of molestation.

(Citation, punctuation and footnotes omitted.) Mann v. State, 244 Ga. App. 756, 759 (2) (536 SE2d 608) (2000). While in theory the witness’s testimony could have been material, the proffer was inadequate to meet the standard under Mann. A mere general denial by the alleged perpetrator, without evidence of any specific allegations, is insufficient to establish a reasonable probability of falsity. Kelley v. State, 233 Ga. App. 244, 251 (503 SE2d 881) (1998). While Cobb made no proffer at trial, he now asserts that the State declined to prosecute the alleged perpetrator. But testimony that the police have failed to prosecute is insufficient to establish that the allegations are false. Mann, supra. Since Cobb did not meet his burden to show a reasonable probability of falsity, he did not show that the testimony was material, and the trial court did not deny him a fair trial or err in refusing to grant a continuance for this reason as well.

3. Cobb subpoenaed the victim in this case and the victim in an alleged similar transaction to appear at the pretrial similar transaction hearing. The trial court quashed the subpoenas, and Cobb enumerates this as error. While Cobb’s argument is somewhat convoluted and he cites no authority for his position, he appears to argue that factual inconsistencies in the victims’ trial testimony as to the time at which the offenses occurred would have caused the similar transaction evidence to be excluded at the hearing if the victims had been subpoenaed and cross-examined there. But this contention is without merit. Such inconsistencies do not warrant exclusion of the challenged testimony; they go to weight rather than admissibility. Talmadge v. State, 236 Ga. App. 454, 457 (1) (e) (512 SE2d 329) (1999).

Cobb’s claim that the testimony was a “physical impossibility” and thus inadmissible was discussed and rejected in Hicks v. State, 221 Ga. App. 735-736 (1) (472 SE2d 474) (1996). The question of time appears very similar to the question of distance and speed in Hicks: a detail which would affect only the weight of testimony. Since the burden of proof at a similar transaction hearing is only the preponderance of the evidence, Freeman v. State, 268 Ga. 185, 188 (4) (486 SE2d 348) (1997), Cobb’s contention that testimony admissible at trial for consideration by the jury would have been rejected by the trial court at a similar transaction hearing is without merit.

4. Cobb relies on Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999), and Wooten v. State, 244 Ga. App. 101 (533 SE2d 441) (2000), rev’d, State v. Wooten, 273 Ga. 529 (543 SE2d 721) (2001), to contend that the district attorney’s office was improperly permitted to call this case out of order. Several difficulties exist with this contention. Cuzzort does forbid “the district attorney to call cases out of the order listed on the criminal trial calendar.” Id. at 465 (3). But in Wooten, the Supreme Court of Georgia decided that the case assignment system in the same circuit was not unconstitutional and that it was “highly improbable” that the system contributed to the verdict, and it therefore declined to reverse a conviction on that ground. Id. at 533 (3).

Here, the trial court heard Cobb’s motion for continuance before trial. The district attorney contended that the parties had agreed that the case would be tried in April on the circuit’s “priority calendar.” Cobb’s counsel acknowledged that he had been told by the assistant district attorney that the case would be “first out in April. However, I don’t think we ever expressly agreed.” The trial court placed on the record the procedure adopted by the circuit after Cuzzort: at a calendar call the district attorney lists those cases on the calendar that “he considers to be the priority cases for trial during a given trial week.” Those cases are put on a priority calendar which is called in that order unless otherwise ordered by the court. The trial court specifically stated that this procedure was adopted to put the defense bar on notice, to allow the State to prepare for trial, and “to try those cases that need to be tried.”

This issue was also raised and further elaborated upon at Cobb’s motion for new trial. The district attorney testified that the trial court had given his office leave to prepare a priority list and allowed his office to call cases from the priority list with express leave and in the exercise of the trial court’s discretion. The district attorney also testified that the parties had agreed to try the case in the month of April; he testified that this took place at the February calendar call. After hearing testimony, the trial court on the motion for new trial found that given the continuance, the necessity for the party with the burden of proof to have its witnesses ready, and the fact that the victim was a child, all called for exercise of the trial court’s discretion to try the case out of order. The trial court also expressly held that there was no manipulation of the calendar and that Cobb’s counsel had agreed “or acquiesced in” the announcement that the case would be moved from the February trial calendar to the April trial calendar. The trial court also found no showing of harm.

We therefore must decide whether allowing the district attorney to choose “priority” cases and create a shorter “ready” calendar violates the principles of Cuzzort and Wooten. While Cuzzort forbids allowing the district attorney to call cases out of order, it appears that the decision to create a “priority calendar” was made by the trial court, not the district attorney, and the priority calendar was approved in open court. Moreover, Cobb’s case already had been continued from the February calendar and reset for trial in April, and the trial court expressly found that this was done with the consent or acquiescence of defense counsel. Cobb therefore has failed to show a violation of Cuzzort. See generally Mulvey v. State, 250 Ga. App. 345, 346-347 (2) (551 SE2d 761) (2001).

5. Finally, Cobb contends that the trial court erred in allowing testimony regarding an alleged earlier molestation of the victim during the time outside the scope of the indictment, contending that it was not properly presented as similar transaction evidence. But the law is abundantly clear that such an incident would not be a “similar transaction” but a “prior difficulty” between the victim and defendant, a matter not covered by the requirements of Uniform Superior Court Rule 31.3. Wall v. State, 269 Ga. 506, 508-509 (500 SE2d 904) (1998). This contention is without merit.

Decided January 24, 2002

Reconsideration denied February 25,2002

Jeffrey S. Purvis, for appellant.

Philip C. Smith, District Attorney, Rand J. Csehy, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Cobb attempted to present this witness outside the presence of the jury in the middle of the State’s case-in-chief. He claims that he was authorized to do so by an earlier statement of the motions judge (who did not try the case) that he could present the witness to the court “at whatever time you feel appropriate.” Cobb’s counsel stated that he wished to preserve the witness’s testimony before the victim testified. But the trial court could have concluded that choosing that moment was for purposes of delay, or because the witness had permission to be absent, rather than any need to present the witness at that particular time. Cobb never sought to present the witness at any other time, and he never requested that the trial court order the sheriff to bring him to court.

        Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992), relied on by Cobb, is inapposite because, in that case, detailed testimony was presented concerning the facts and circumstances of the allegedly false allegation, and another witness corroborated the denial of the offense by the accused.

       In Wall v. State, supra, the Supreme Court of Georgia noted that prior difficulties evidence “should be accompanied by an instruction from the trial judge explaining the limited use to which the jury may put such evidence.” Id. at 509. But Cobb has not enumerated this as error, and he failed to request such a charge. Neither Wall nor other prior difficulties cases “can be read to require a trial court to give a limiting charge, in the absence of a request, when evidence of prior difficulties is admitted,” although it would be better practice for the trial court to do so. State v. Belt, 269 Ga. 763, 764-765 (505 SE2d 1) (1998).


text:
    A01A2210.
    WARREN et al. v. THE STATE.
    (561 SE2d 190)
   Smith, Presiding Judge.

This appeal marks the second appearance of this case before this court. State v. Warren, 242 Ga. App. 605 (530 SE2d 515) (2000). Ronnie O. Warren and Kelton Collins were indicted by a Carroll County grand jury on one count of violation of the Georgia Controlled Substances Act. Warren moved to suppress the cocaine found in his vehicle, and the trial court granted his motion, finding that the officer lacked “probable cause” for the traffic stop. The State appealed, and we reversed the trial court because the applicable standard for reviewing the propriety of a traffic stop is whether “reasonable, articulable suspicion of criminal activity” justified the stop, not the existence of “probable cause.” Id. at 606. Upon remand, the trial court held that “the officers did have a reasonable, articulable suspicion of criminal activity to justify the detention and search of the defendant’s vehicle.” Warren and Collins were convicted after a bench trial and now appeal. Finding no error, we affirm.

A deputy K-9 officer with the Carroll County Sheriff’s Office was patrolling Interstate Highway 20 when he noticed a vehicle with an Alabama tag moving westbound with its backup lights on. He stopped the vehicle for defective equipment, and the driver, Warren, explained that he had been aware of the problem since he had installed a new transmission about a month before “and just hadn’t had it fixed yet.” The officer planned to write Warren a warning citation “because he knew that he had this violation 30 days, at least a month prior to me stopping him,” but first asked to see the vehicle registration as a matter of routine. Warren told him that it was in a folder in the backseat. This seemed unusual to the officer, since “90 percent of the people that I’ve stopped on the interstate” keep their registration in the glove box of the car. He asked Warren to stay with a second deputy and K-9 officer, who had arrived “no more than a minute” after the stop, while he retrieved the registration.

When the officer approached the car and asked the passenger, later identified as Collins, to hand him the vehicle registration, he noted that the passenger was “extremely nervous”; he would not look at the officer or acknowledge him in any way, and when he opened the folder he began dropping papers on the floor and picking them up again. The officer testified that Collins was unusually nervous for a passenger; he described him as “freaked out.” He asked where Warren and Collins were coming from, and Collins responded, “ T don’t know, you’ll have to ask him.’ ”

He returned to Warren and asked him who the passenger was, and Warren identified him as his cousin. The officer asked Warren if he could search the vehicle, and Warren responded that the officer “could do a plain view search, but [he] couldn’t open anything.” His suspicions further aroused by this use of legal language, the officer asked the second deputy to perform an “exterior free air sniff of the vehicle” with his drug dog. At this time, only two to three minutes had elapsed since the initial stop. As the dog began the search, Warren offered to allow the officer to search his luggage in the trunk. The dog alerted at the driver’s side door, and the first officer searched the. vehicle. The glove compartment was locked; the officer obtained the key and found a brown paper bag containing suspected powdered cocaine. The parties stipulated that the substance was 120.5 grams with a yield of 77 percent concentration cocaine.

1. Warren and Collins raise the general grounds. Both rely upon the “equal access rule,” contending that the State failed to prove that either of them possessed the cocaine found in the locked glove compartment of the car. But the “equal access” rule has no application here.

The rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. The rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband. ... By showing circumstantially that each of the defendants had equal access to the drugs, the state was able to support its theory that all of the defendants were parties to the crime and thus guilty of joint constructive possession of the drugs.

(Citations and punctuation omitted.) Castillo v. State, 166 Ga. App. 817, 821-822 (2) (305 SE2d 629) (1983).

Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citations and punctuation omitted.) Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989).

This is not a case in which only a passenger in a vehicle was charged with possession of the contraband while the driver was not charged, as in Mitchell v. State, 268 Ga. 592 (492 SE2d 204) (1997), relied upon by Warren and Collins. In such cases, the State is required to prove sole constructive possession by fewer than all the occupants of the vehicle. See Reid v. State, 212 Ga. App. 787, 788, n. 1 (442 SE2d 852) (1994). Nor is this a case in which one occupant has actual possession of the contraband, and the State must prove constructive possession by the other occupant or occupants of the car. See, e.g., Shirley v. State, 166 Ga. App. 456 (1) (304 SE2d 468) (1983).

Here, construed in favor of the judgment of conviction, the evidence shows that Warren exercised control over the car not only by possession of the keys but by acknowledging that he had performed transmission work on the car approximately one month earlier; Collins for his part acted in an extremely nervous fashion when asked to provide the vehicle registration. Both Warren and Collins gave unusual responses to the questions put to them by the officer. Warren’s and Collins’s “intent to exercise control over the contraband can be inferred by the suspicious and inconsistent explanations [they] gave to the [officer] before he conducted the search.” Allen, supra at 625. Moreover, some evidence was presented that Warren and Collins were cousins, and “where transactions involving relatives are under review, slight circumstances are often sufficient to induce a belief that there was collusion between the parties.” (Citations and punctuation omitted.) Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991). This evidence was sufficient to show joint constructive possession and met the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellants also challenge the denial of their motion to suppress. “When a motion to suppress is heard by a trial judge, that judge sits as the trier of facts and his findings will not be disturbed if there is any evidence to support them. The reviewing court must construe the evidence most favorably to uphold the trial court’s findings and judgment.” (Footnotes omitted.) Gordon v. State, 242 Ga. App. 50, 51 (528 SE2d 838) (2000).

As we noted in Warren, supra, “improperly activated backup lights would violate OCGA § 40-8-26 (b)’s requirement that ‘other signal lights . . . shall at all times be maintained in good working condition.’ ” Id. at 606. While Warren and Collins claim that the officer’s investigation had concluded as soon as he initially spoke with Warren about the lights, the officer testified that he intended to write Warren a warning ticket because he had allowed the defective equipment to go unrepaired for a month. And “an officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents.” (Citations and punctuation omitted.) Sutton v. State, 223 Ga. App. 721, 723 (1) (478 SE2d 910) (1996). His inquiries of Collins regarding the pair’s itinerary while he was attempting to obtain the registration were also permissible. Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996). The request to search was made immediately after this encounter, and neither the request nor the questioning of the passenger unreasonably prolonged the detention. Stovall v. State, 251 Ga. App. 7, 8 (1) (553 SE2d 297) (2001).

Unlike the driver in State v. Kwiatkowski, 238 Ga. App. 390, 391 (519 SE2d 43) (1999), upon which Warren and Collins rely, Warren did not absolutely refuse permission to search his car but instead consented to a “plain view search” and then to a search of his luggage. The dog was already present on the scene, and Warren and Collins therefore were “not detained for the purpose of bringing a drug dog to the scene to investigate.” (Footnote omitted.) Crenshaw v. State, 248 Ga. App. 505, 511 (4) (546 SE2d 890) (2001). The drug dog’s “exterior free air sniff” of the vehicle did not “open anything” as forbidden by Warren in his consent to search and “did not intrude into the interior” of the car. O’Keefe v. State, 189 Ga. App. 519, 526 (3) (376 SE2d 406) (1988). Contrary to appellants’ contention, “[w]e previously have found the ‘alert’ of a trained narcotics dog, standing alone, sufficient to provide probable cause for the search of a vehicle. [Cits.]” State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999).

Decided February 26, 2002

Ram & Ebersbach, Michael G. Ram, Rader & Cooke, Valerie C. Cooke, for appellants.

Warren and Collins also complain that inadequate evidence was presented of the drug dog’s training.

[E]vidence that the dog has been trained and certified as a drug detection dog constitutes prima facie evidence of its reliability for purposes of a probable cause determination. Although a defendant may try to attack the dog’s reliability by showing that it was not properly trained or that it has been unreliable in the past, such evidence presents an issue of fact for the trial court, and its decision must be accepted on appeal unless clearly erroneous. [Cit.]

Dawson v. State, 238 Ga. App. 263, 267 (1) (518 SE2d 477) (1999). The officer who handled the drug detection dog testified to his training and the dog’s training and certification by the Villa Rica Police Department and three state and national testing bodies. Warren and Collins exhaustively cross-examined both deputies, establishing that their knowledge was limited regarding the physiological, psychological, and biological bases for the dog’s response to drug odor, but the weight to be given that evidence was for the trier of fact. Id. Although Warren’s counsel elicited from the officer that he did not keep records of “every time you take this dog out and have him sniff a suspect or a suspect’s car,” the officer did keep records of his training, which were supplied to defense counsel. The officer also testified that he had never seen his dog give a false alert on a car door. Considering not only the dog’s alert but the “totality of the circumstances,” including Warren’s and Collins’s “behavior, demeanor, and responses to the officers’ questions, the trial court did not err in denying [their] motion to suppress.” Rivera v. State, 247 Ga. App. 713, 715 (1) (545 SE2d 105) (2001).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

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

       Warren and Collins rely upon Carr v. State, 267 Ga. 701 (482 SE2d 314) (1997), overruled on other grounds, Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999), to argue that the use of drug detection dogs is not scientifically reliable. But Carr holds that the use of a dog to detect the odor of accelerants at a fire scene is not substantive evidence of the presence of accelerants without evidence of scientific verifiability. The decision explicitly contrasts and approves the use of trained dogs to establish probable cause to search. 267 Ga. at 704 (1).