text:
    A01A2175.
    HENDRIX v. THE STATE.
    (564 SE2d 1)
   Ruffin, Judge.

Following a bench trial, the court found Gerald Lee Hendrix guilty of driving under the influence of alcohol. In his sole enumeration of error on appeal, Hendrix argues that the trial court erred in denying his motion to suppress the results of his breath test. According to Hendrix, the court should have suppressed the test results because the arresting officer acted unreasonably in failing to take Hendrix to the facility of his choice for an independent blood test. For reasons that follow, we affirm.

The relevant facts demonstrate that on October 17, 1999, Officer Greg Falls of the Carrollton Police Department saw a car driven by Hendrix weaving on the road. Falls stopped Hendrix and made him perform several field sobriety tests, which Hendrix failed. Falls then read Hendrix his implied consent rights, informing him that after submitting to the breath test, he was “entitled to additional chemical tests of [his] blood, breath, urine, or other bodily substances at [his] own expense and from qualified personnel of [his] own choosing.”

After Hendrix submitted to the breath test, which showed that his blood alcohol content was above the legal limit, he asked to be taken to Newnan Hospital for an independent blood test. Falls refused to take Hendrix to that hospital because it is 25 to 30 miles away from Carrollton and outside of his jurisdiction. Evidently, the Carrollton Police Department has a policy of taking suspects only to local testing facilities. Accordingly, Falls told Hendrix that he would take him to Tanner Medical Center or any other local facility. Hendrix declined to go to Tanner Medical Center, asserting that he had “had a past bad experience with Tanner.” Falls did not recall Hendrix giving a reason for his refusal to go to Tanner Medical Center. Nevertheless, Falls asked his sergeant if he could drive Hendrix to Newnan Hospital, but was not allowed to do so. Evidently, Hendrix never obtained an independent test.

Prior to trial, Hendrix moved to suppress the evidence of the breath test based upon Falls’ failure to accommodate his request for an independent blood test. The trial court denied Hendrix’s motion, finding that, “under the totality of the circumstances,. . . the arresting police officer made a reasonable effort to accommodate the accused in his request for an independent test.” We agree with the trial court.

“OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing.” As this Court has recognized, “the ‘of his own choosing’ language” is not superfluous. Rather, a suspect is entitled to a meaningful opportunity to choose the testing facility. Nonetheless, if the suspect’s choice is unreasonable, a law enforcement officer is justified in refusing to accommodate the request. The trial court is charged with determining whether, under the totality of the circumstances, the suspect’s request was reasonable. The factors the trial court may consider in resolving this issue include the following:

(1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of [the] requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; [and] (5) opportunity and ability of accused to make arrangements personally for the testing.

The crux of this appeal is whether Hendrix’s request to be taken to Newnan for an independent test was reasonable. According to Falls, he refused to take Hendrix to Newnan because it was too far away and outside of his jurisdiction. We note, however, that the mere fact that the requested facility is in another jurisdiction does not justify an officer’s refusal to accommodate a suspect. Rather, the location of the hospital in a different jurisdiction is merely one factor to be considered. In this case, the requested facility also was approximately 25 miles away. To accommodate Hendrix’s request, therefore, Falls would have been required to drive Hendrix more than 50 miles round trip. Such trip would almost certainly have taken more than an hour.

Decided December 10, 2001

Reconsideration denied April 10, 2002.

Allen M. Trapp, Jr., for appellant.

Stephen J. Tuggle, Solicitor-General, for appellee.

There is no bright line defining at what point the distance to the requested facility renders the suspect’s request unreasonable or when the time factor becomes too onerous. Here, however, the trial court concluded that Falls acted reasonably in refusing to drive Hendrix to Newnan, implicitly finding that the requested facility was too far away. And, in reviewing such conclusion, we view the evidence in the light most favorable to support the trial court’s ruling. Given that significant time and distance would have been involved in driving Hendrix to Newnan — two factors a trial court may consider — there is some evidence supporting the trial court’s ruling. “As there is evidence supporting the ruling of the trial court, it will not be reversed.”

Moreover, this is not a case where the arresting officer impeded the suspect in his attempt to secure independent testing or where department policy limited the suspect to a single testing facility. To the contrary, Falls told Hendrix that, although he was unable to take him to Newnan, he would take him to Tanner Medical Center or any other local facility. Accordingly, under the totality of the circumstances, Hendrix was given a meaningful opportunity to obtain independent testing, and the trial court did not err in denying his motion to suppress.

Judgment affirmed.

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

       Hendrix testified that he thought the hospital was about 20 miles away from Carroll-ton. Falls, however, testified that a road sign showed that Newnan was 25 miles from the Carrollton city limits. Thus, Falls estimated Newnan Hospital to be approximately 30 miles away. We do not believe that the five-mile difference is substantial, but on appeal, we construe the evidence in the light most favorable to the ruling below. Cadden v. State, 213 Ga. App. 291, 292 (444 SE2d 383) (1994).

       (Punctuation omitted.) Pruitt v. State, 203 Ga. App. 125, 126 (1) (416 SE2d 524) (1992).

        Joel v. State, 245 Ga. App. 750, 753 (538 SE2d 847) (2000).

       See id.

       See Pruitt, supra.

       See State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989).

       Id. at 801.

       See Akin v. State, 193 Ga. App. 194, 196 (387 SE2d 351) (1989) (Gwinnett County officer not justified in refusing to take suspect to Fulton County facility for testing).

       See Buffington, supra.

       See Cadden, supra.

        Thornhill v. State, 202 Ga. App. 826, 827 (2) (415 SE2d 473) (1992).

       Compare Buffington, supra (officer refused to let suspect talk to medical personnel or contact family members to arrange payment for test); State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987) (department policy to take suspect to nearest hospital inconsistent with statute and thus not reasonable accommodation).

       See id.; Pruitt, supra.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A2211.
    STINSON v. THE STATE.
    (564 SE2d 39)
   Blackburn, Chief Judge.

Willie L. Stinson was convicted by a jury for trafficking in cocaine. Following the denial of his motion for new trial, he appeals his conviction, arguing that the trial court erred in: (1) not suppressing evidence of an illegal search and seizure; (2) not declaring a mistrial when impermissible character evidence was introduced into testimony; and (3) admitting a prior conviction into evidence. For the reasons set forth below, we affirm.

1. Stinson contends that the trial court erred in not suppressing evidence of an illegal search and seizure. We disagree.

In reviewing a trial court’s decision on a motion to suppress, it is the responsibility of this Court to ensure that there was a substantial basis for the trial court’s decision. We must construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless clearly erroneous. Roberson v. State.

The record shows that, on June 23, 1997, Sergeant Joseph Artime, an officer with the narcotics division of the DeKalb County Police Department, received a telephone call from Lester Ramey. Ramey, Stinson’s father, identified himself as an informant who worked with another DeKalb County narcotics detective. He told Sergeant Artime that, at 5:00 p.m. that afternoon, a subject known as Mick would arrive at the Chevron station on the corner of Flat Shoals and Flakes Mill Roads in a “red type Blazer type vehicle.” He also said that the subject, who did not have a driver’s license, would probably have someone else driving the vehicle and that he would have between eight and nine ounces of cocaine in his possession.

After confirming through another DeKalb County detective that Ramey had worked on prior occasions as an informant for the narcotics unit, Sergeant Artime and several other detectives set up surveillance at the Chevron station. Shortly after 5:00 p.m., a vehicle matching the description given by Ramey arrived at the station and parked at the pay phones. The passenger in the vehicle got out of the car, entered the store, and then returned to the vehicle with a purchase. The vehicle remained parked in front of the phones, but neither occupant used the phone.

Satisfied that the car and its occupants were those identified by Ramey and concerned that the increasing evening traffic might make possible pursuit of the suspects difficult, the narcotics detectives decided to move in. Sergeant Artime and Detective Andrezejewski pulled their car, a marked police unit, in front of the suspects’ vehicle and blocked its path. Wearing vests and badges which identified them as police officers, they approached the suspects and ordered them to put their hands up; when the suspects failed to comply with the order the officers drew their weapons, opened the car doors, and ordered the suspects from the vehicle.

At this point, the vehicle started rolling backward, and Sergeant Artime told Detective Andrezejewski to jump into the car and stop it. Detective Andrezejewski jumped into the rolling vehicle, put on the brakes, and stopped the car. He then noticed a large paper bag on the floor of the vehicle on the driver’s side. Clearly visible in the paper bag were smaller plastic bags filled with what appeared to be cocaine. A field test indicated that the white powder in the bags was in fact cocaine. Stinson and the driver were arrested.

Stinson first argues that the police had no right to stop and search him. This argument lacks merit.

[W]here an officer has an articulable suspicion that the defendant possessed] contraband by reason of the explicit and detailed information provided by an unknown informant, which [has been] verified in part by the observations of the officer, a “Terry-type” stop is justified to obtain more information and investigate the circumstances that provoked the suspicion.

West v. State. See also Johnson v. State; Sultenfuss v. State. In the instant case, the officer had reasonable and articulable suspicion, based on both detailed information provided by Ramey, a known informant, and the officer’s subsequent corroboration at the scene of part of that information, that cocaine would be in the possession of the appellant. West, supra at 621. The suspicion was not “‘mere caprice or a hunch or an inclination.’ ” Johnson, supra at 537 (1). Further, and contrary to Stinson’s arguments, the investigatory detention was not transformed into an arrest because the officers drew their guns, or because the suspects were required to get out of the vehicle, or because the suspects’ vehicle was blocked by the police car. Sultenfuss, supra at 48. The brief, investigatory stop was authorized by the facts.

Stinson further maintains that his car was searched and the cocaine was seized in violation of his Fourth Amendment rights. This contention is also without merit. First, as this Court has explained,

[generally, searches conducted without a warrant “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Among these exceptions is the “automobile exception” set forth by the United States Supreme Court in Carroll v. United States. This exception allows a warrant-less search whenever “(1) probable cause to believe that the automobile contains contraband or evidence of a crime conjoins with (2) exigent circumstances making the warrant procedure impractical and causing the resort to an immediate warrantless search to be reasonable and necessary.”

(Citation omitted.) Hall v. State. Second, when it is immediately apparent that an item is contraband, an officer may seize what is in plain sight if he is in a place in which he is constitutionally entitled to be. West, supra at 621.

In this case, exigent circumstances were created when Stinson’s vehicle began rolling backward toward the area around the fuel pumps, and the narcotics officer acted legally and responsibly when he jumped into the vehicle and brought it to a stop. Once “constitutionally” in the vehicle, the officer lawfully seized the cocaine, which was clearly visible from his position in the driver’s seat.

Stinson attempts to bolster his argument by pointing out that there was a contradiction in the evidence as to whether the vehicle actually rolled backward. The fact that the co-defendant asserted that the vehicle did not roll backward is of no consequence on appeal. “It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous.” Wilburn v. State.

2. Stinson also contends that the trial court erred in not declaring a mistrial after evidence of his character was improperly introduced into testimony. We find no error.

During trial, Ramey, the appellant’s father, testified that he was concerned about his son’s involvement with drugs and that he had talked with his son about changing his life. When the prosecutor asked Ramey why he had felt it necessary to talk with his son about drug dealing, Ramey replied, “Because he was — he was in a lot of shootouts and robberies.” At this point the prosecutor told the witness to stop his testimony, and defense counsel objected. Out of the presence of the jury, defense counsel moved for a mistrial. The court sustained the objection and directed the witness to make no mention of other criminal acts committed by Stinson; however, the court denied the motion for mistrial and gave curative instructions to the jury after it was reseated. At this point, defense counsel neither requested additional instructions nor renewed the motion for mistrial.

The trial court did not err in denying the motion for mistrial.

Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.

(Punctuation omitted.) Tutman v. State. Beyond this, “[s]ince the defendant did not renew his motion after the curative instructions, he cannot complain on appeal.” Jackson v. State. See also Burgess v. State.

3. Lastly, Stinson contends that the trial court erred in admitting into evidence a prior conviction because it was too dissimilar to the crime in the instant case. We find no error in the trial court’s admission into evidence of the similar transaction.

“In determining whether a prior transaction is sufficiently similar, courts must focus on the similarities of the occurrences rather than their differences, particularly when the purpose of the evidence is to establish intent, as opposed to identity or criminal signature.” Guild v. State. With respect to similar transaction evidence in drug cases, it is to be remembered that “[d]rug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson.

In this case, the State filed notice of its intent to present evidence of similar transactions. The trial court conducted a Williams hearing to determine the admissibility of the similar transaction case. The court determined that the transactions were similar because both transactions involved: a confidential informant investigating the sale of drugs; a person participating in the sale of drugs named Mick; and the preparation and sale of cocaine. The court informed the State that the evidence would be admitted for the limited purpose of showing “similar common design, scheme, plan, and course of conduct and motive.” Prior to the introduction of the evidence of similar transactions, the jury was instructed by the trial court that its consideration of the evidence was for the limited purpose of showing identity, state of mind, and elements of the offense charged in the indictment. Finally, the court, in charging the jury, again gave limiting instructions as to the jury’s consideration of the evidence of similar transactions. The trial court’s finding of similarity was not clearly erroneous, and it did not err in its limiting instruction to the jury on the similar transaction evidence. See Sutton v. State.

Decided March 15, 2002

Reconsideration dismissed April 10, 2002.

Robert J. Storms, for appellant.

Willie Stinson, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Anne M. Long, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        Roberson v. State, 230 Ga. App. 179 (495 SE2d 643) (1998).

        West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).

        Johnson v. State, 230 Ga. App. 535 (496 SE2d 785) (1998).

        Sultenfuss v. State, 185 Ga. App. 47 (363 SE2d 337) (1987).

        Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925).

        Hall v. State, 176 Ga. App. 428, 430 (2) (336 SE2d 291) (1985).

        Wilburn v. State, 230 Ga. App. 619 (1) (497 SE2d 380) (1998).

        Tutman v. State, 164 Ga. App. 400 (296 SE2d 412) (1982).

        Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981).

        Burgess v. State, 149 Ga. App. 630 (255 SE2d 100) (1979).

        Guild v. State, 236 Ga. App. 444, 445 (2) (512 SE2d 343) (1999).

        State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

        Williams v. State, 262 Ga. 640 (409 SE2d 649) (1991).

        Sutton v. State, 245 Ga. App. 881, 883 (539 SE2d 227) (2000).


text:
    A01A2262.
    HICKS v. THE STATE.
    (563 SE2d 897)
   Blackburn, Chief Judge.

Wayne Hicks appeals his convictions of five counts of child molestation, two counts of cruelty to children in the first degree, and one count of enticing a child for indecent purposes, contending that the trial court should have excluded approximately forty-five high school students from the courtroom, that it should have directed a verdict in his favor on one of the child molestation counts and on the enticing count, and that the latter count should have been merged into the former. Finding no error, we affirm.

1. Hicks’ initial contention is that the trial court should have excluded from the courtroom approximately 45 students in the tenth through twelfth grades whose presence, according to Hicks, “caused a sympathetic environment towards the alleged victims.” At a bench conference after voir dire of the jury, Hicks’ counsel objected to the presence of the students on the ground that “it would violate my client’s right to an impartial jury,” noting that the students were aged “anywhere from fifteen to perhaps eighteen” and that their presence “might create a sympathy atmosphere.” In denying Hicks’ motion to exclude the students, the court stated that it had been “explained to them that they can make no comments, no facial movements whatsoever, that in the event they do, this Court . . . would excuse them from the room.” Moreover, Hicks makes no claim that the students failed to obey the court’s admonition to “make no comments [or] facial movements whatsoever,” unlike Glenn v. State where the widow of the victim was “audibly and visibly weeping.”

In Pratt v. State, the defendant, a prisoner, was on trial for mutiny for biting a guard. After the evidence had closed, about 25 uniformed but unarmed correctional officers appeared toward the back of the courtroom, and the defendant objected on the basis that their presence created an “atmosphere ... of partiality.” Id. at 568. In finding that the court did not abuse its discretion in permitting the officers to remain, we noted that there was no evidence of “pretrial publicity, a hostile community atmosphere, or any other factor which would warrant the conclusion that the presence of the prison guards was actually or inherently prejudicial.” Id. Likewise, Hicks points to no such factors at work in this case. The presence of the students in the courtroom does not provide a basis for reversal. We note, however, that even in those cases where a trial court may not be “obligated” to exclude certain spectators, id. at 569, the wiser course may be to do so.

2. Hicks contends that the trial court should have granted his motion for a directed verdict of acquittal on Count 6 of the indictment, which charged the offense of child molestation.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Footnotes omitted.) Watkins v. State.

OCGA § 16-6-4 (a) provides that “[a] person commits the offense of child molestation when he . . . does any immoral or indecent act to . . . any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of . . . the person.” The victim named in Count 6 testified that she was 14 years old, that she had “big legged shorts on,” that the defendant was sitting right in front of her when he asked her to spread her legs, that she asked, “why would I?,” and that he responded, “well, you know you have a fine body.” Hicks points out that “it was never shown that appellant ever . . . attempted to look up her shorts.” But the “act” required by the statute may be merely verbal. Bowman v. State. Thus, the evidence was sufficient for a rational trier of fact to find Hicks guilty of this count of child molestation beyond a reasonable doubt.

3. Hicks also contends that the trial court should have granted his motion for a directed verdict on Count 7, which charged the offense of enticing a child for indecent purposes. OCGA § 16-6-5 (a) provides that “[a] person commits the offense of enticing a child for indecent purposes when he . . . solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” The victim named in this count was the same as the victim in the child molestation count discussed in Division 2. She testified that immediately after the verbal exchange discussed in Division 2, Hicks “kept on trying to pull me towards him.” Hicks contends that “no evidence was offered to show . . . the asportation requirement.” The identical claim was made in Bragg v. State, however, and we there wrote that “[a]ny asportation, however slight, is sufficient to show [the taking] element [of enticing a child for indecent purposes].” Thus, the evidence was sufficient for a rational trier of fact to find Hicks guilty of enticing a child for indecent purposes beyond a reasonable doubt.

4. Hicks argues that he should not have been sentenced under Count 7 because all the facts used to prove that count were “used up” in proving Count 6. He concedes that the two offenses do not merge as a matter of law. Leon v. State. He claims, however, that “because the evidence arose from the same act, the evidence of a grabbing was used by the State to find a pattern of conduct which amounted to child molestation, the charge of enticing a minor should have merged with the child molestation case.” Here, however, the molestation was completed before the enticement occurred, id. at 108, and “the prosecution did not have to prove the subsequent [enticement] in order to prove the [molestation] count.” Id.

5. Hicks contends, finally, that “the evidence was insufficient to convict Appellant.” This portion of his brief is limited to Counts 6 and 7, however, and adds nothing to the arguments addressed in Divisions 2 and 3, supra.

Decided March 28, 2002

Reconsideration denied April 10, 2002

William W. Bond, Jr., for appellant.

Roger G. Queen, District Attorney, for appellee.

The evidence was sufficient to support the verdict. See Jackson v. Virginia.

Judgment affirmed.

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

        Glenn v. State, 205 Ga. 32, 35 (52 SE2d 319) (1949).

        Pratt v. State, 228 Ga. App. 567 (492 SE2d 310) (1997).

        Watkins v. State, 253 Ga. App. 382, 385 (3) (559 SE2d 133) (2002).

        Bowman v. State, 227 Ga. App. 598 (490 SE2d 163) (1997).

        Bragg v. State, 217 Ga. App. 342 (1) (457 SE2d 262) (1995).

        Leon v. State, 237 Ga. App. 99, 107 (5) (513 SE2d 227) (1999).

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


author: Phipps, Judge.

text:
    A01A2304.
    A02A0450.
    HENRY v. SWIFT, CURRIE, McGHEE & HIERS, LLP et al. MCDONALD v. BARRETT.
    (563 SE2d 899)
   Phipps, Judge.

We granted two applications for interlocutory appeal to consider rulings by the superior courts of Fulton and Gwinnett Counties regarding the discoverability of an attorney’s memorandum summarizing conversations he had with opposing counsel. Although the appeals arose from different cases in different procedural postures, both involve the same memorandum and parties. Therefore, in the interest of judicial economy, we have consolidated the appeals in this opinion.

The Fulton County Superior Court construed the memorandum as attorney work product and protected it from discovery. The Gwin-nett County Superior Court declined to shield the memorandum. We find that the record demonstrates that the memorandum is not privileged. Therefore, we reverse the Fulton County Superior Court’s ruling and affirm that of the Gwinnett County Superior Court.

In the Gwinnett County case, J. Hue Henry, an attorney, represented the plaintiff, Robert Barrett. Wade Copeland, an attorney, represented the defendants, Quorum Health Resources, Inc. and C. Richard Dwozan (collectively Quorum). Summary judgment was granted to Quorum.

Quorum (represented by Copeland) then moved for attorney fees against Henry and Barrett. Henry made a claim under his errors and omissions insurance, and his insurer designated Swift, Currie, McGhee & Hiers, LLP (Swift, Currie) and one of that law firm’s attorneys, James McDonald, to represent Henry. While the motion for attorney fees was pending, McDonald communicated to Henry certain statements that Copeland had made to him. Henry believed that the statements demonstrated that personal animus toward Henry was Copeland’s motivation for seeking attorney fees. In January 2000, the Gwinnett County Superior Court denied Quorum’s motion for attorney fees.

Thereafter, Henry and Barrett (represented by Henry) filed a motion in the Gwinnett County case against Quorum and its attorneys, including Copeland, for attorney fees incurred in defending against Quorum’s motion for attorney fees. In their motion, Henry and Barrett contended that personal animus was not a proper basis for seeking attorney fees. On March 3, 2000, Henry asked McDonald to reduce Copeland’s statements to writing for his use in seeking attorney fees against Copeland and the others for having to defend the earlier motion. Based on his recollection of his conversations with Copeland, McDonald wrote and placed in Henry’s file a memorandum, dated March 8, 2000, that summarized his communications with Copeland. McDonald, however, refused to provide the memorandum to Henry. Explaining his practice of making notes, McDonald stated to Henry,

I have maintained a practice of keeping notes of conversations. ... I make those for my reference to help me in the handling of the case and in recollection of conversations. I do not make the notes for any other purpose. Nor in an exchange of candid comments have I ever conceived those given or received would be used in any case, or in any format outside of that direct conversation.

Henry then asked McDonald to turn over his entire file to him. But no memorandum was produced.

Henry thereafter sued McDonald and Swift, Currie in Fulton County Superior Court, alleging breach of fiduciary duties and seeking, among other things, the memorandum. When Henry filed a notice to produce the memorandum, McDonald responded with a motion for a protective order. After a hearing, the Fulton County Superior Court granted McDonald’s motion, denying Henry the memorandum.

Meanwhile, in the Gwinnett County action, Henry and Barrett subpoenaed McDonald to serve as a witness and specifically demanded him to “bring with [him] all documents in [his] possession which relate to your representation of J. Hue Henry and/or J. Hue Henry P.C., including but not limited to documents which reflect conversations between you and [Copeland] concerning this case and/or [Henry].” McDonald filed a motion to quash the subpoena. The Gwin-nett County Superior Court denied the motion.

In Case No. A01A2304, Henry has been granted interlocutory review of the Fulton County Superior Court’s ruling. In Case No. A02A0450, McDonald has been granted interlocutory review of the Gwinnett County Superior Court’s ruling.

Case No. A01A2304

1. Henry contests the Fulton County Superior Court’s grant of an order protecting McDonald from production of the memorandum.

In its order, the Fulton County Superior Court recognized that frivolous litigation is destructive to the civil justice system and that retaliatory efforts to recover attorney fees serve no public interest. It also noted that summary judgment had ended the underlying litigation between Henry’s and Copeland’s clients. The court characterized the memorandum as an attorney work product and considered whether the attorney or the client owns such. Determining that compelling production of the memorandum would “serve [ ] no useful purpose” in a dispute in which summary judgment had ended the underlying litigation and further noting that lawyers need to set down their thoughts privately for effective representation and also need to engage in candid discussions with opposing counsel in an effort to resolve suits short of trial, the trial court granted McDonald’s motion for a protective order as to the memorandum.

In general, there are two standards for determining who owns the documents within a client’s file. An “entire file” standard gives a client ownership of all documents within the client’s file. An “end product” standard divides ownership of documents in the file between the client and the attorney and permits a lawyer to retain certain work product documents, such as notes by the áttorney to himself made in preparing for deposition, trials, or interviews, or blemished drafts of other documents. Such documents are characterized by candor and may contain the attorney’s mental impressions, opinions, and legal theories. Adopting either standard requires weighing the protections of both a lawyer’s right to think and practice freely during the representation and the client’s right to demand an accounting of the actions of his lawyer.

Georgia has not yet considered whether the client owns his attorney’s work product or whether an “end product” standard would afford a discovery privilege that properly could be asserted by a lawyer to shield certain documents from his current or former client. We need not and do not decide those questions here. The rationale supporting the “end product” standard (that unless the lawyer’s recorded thoughts are protected, he will not provide effective legal services), even if adopted, would not apply to this memorandum. It cannot be argued that the composition of this memorandum, after Quorum’s motion for attorney fees against Henry and Barrett had been decided on its merits in their favor, somehow assisted McDonald in defending against the attorney fees motion. In fact, McDonald concedes in his appellate brief that the memorandum “was not created to assist him in his lawsuit against Mr. Copeland and/or Quorum Health.” The memorandum also is not protected by OCGA § 9-11-26 (b) (3), which, under limited circumstances, may shield from discovery a document that was “prepared in anticipation of litigation.” Here, it is undisputed that McDonald prepared the memorandum after he had successfully defended Henry against Quorum’s motion for attorney fees.

A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Unquestionably, the memorandum is relevant to the issue in the Fulton County case, i.e., whether McDonald breached any fiduciary duties by refusing to provide it to Henry.

A trial court has discretion to grant a protective order controlling discovery to protect a party or person from “annoyance, embarrassment, oppression, or undue burden or expense,” where there is a showing of good cause. Here, the trial court did not base its grant of a protective order on a good cause showing of any of the above. Having determined that no work product privilege shielded the memorandum from discovery, we conclude that the Fulton County Superior Court erred in granting McDonald’s motion for a protective order.

Decided March 28, 2002

Reconsiderations denied April 10, 2002

Regina M. Quick, Christopher L. Casey, for Henry and Barrett.

Hawkins & Parnell, Kristine B. Morain, H. Lane Young II, Debra E. LeVorse, Carl H. Anderson, Jr., for McDonald and Swift, Currie, McGhee & Hiers, LLR

Case No. A02A0450

2. McDonald contests the Gwinnett County Superior Court’s denial of his motion to quash the subpoena to give testimony and produce the memorandum. He claims that the memorandum consisted of his notes designed to assist him in ongoing litigation. He argues that he owns it as his work product, and it is therefore privileged from discovery. McDonald also contends that the Gwinnett County Superior Court abused its discretion in denying his motion to quash the deposition subpoena because any testimony given by him concerning the memorandum would eviscerate the work product doctrine. However, it follows from our rulings in Division 1 that these contentions are without merit.

Judgment reversed in Case No. A01A2304. Judgment affirmed in Case No. A02A0450.

Pope, P. J., and Barnes, J., concur. Smith, P. J., disqualified.

       The appellate record does not contain a transcript of the hearing.

       However, the court specifically stated that it could not say whether either attorney fees motion was made with improper motives.

       See generally Restatement (Third) of the Law Governing Lawyers, § 46, Documents Relating to a Representation; Slovut, Eliminating Conflict at the Termination of the Attorney-Client Relationship: A Proposed Standard Governing Property Rights in the Client’s File, 76 Minn. L.R. 1483 (1992) (comparing whether an attorney must turn over to the client the “entire file” or only the “end products,” such as pleadings).

       See, e.g., Resolution Trust Corp. v. H, P.C., 128 FRD 647 (N.D. Tex. 1989).

       See, e.g., Fed. Land Bank &c. v. Fed. Intermediate Credit Bank &c., 127 FRD 473, 478-481 (S.D. Miss. 1989); Corrigan v. Armstrong, Teasdale &c., 824 SW2d 92, 96-98 (Mo. App. 1992) (client may have right of access to information contained in an attorney’s notes and memoranda, but that does not translate into an ownership interest).

       See Fed. Land Bank, supra at 478-481.

       See In re Kaleidoscope, Inc., 25 Bankr. 729, 743 (N.D. Ga. 1982); Fed. Land Bank, supra at 479-480.

       OCGA § 9-11-26 (b) (1).

       OCGA § 9-11-26 (c).

       Much of Henry’s brief argues that McDonald breached fiduciary duties by refusing to provide the memorandum to him voluntarily. But that issue was not reached by the trial court, and we do not consider it here.


author: Andrews, Presiding Judge.

text:
    A01A2306.
    GHERTNER et al. v. SOLAIMANI.
    (563 SE2d 878)
   Andrews, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, we consider whether the trial court erred in concluding that a “Bet Din,” a three-member board consisting of three rabbis, did not comply with the Georgia Arbitration Code and, therefore, the decision rendered by the Bet Din was not a bar to Kourosh Solaimani’s civil suit seeking an equitable accounting and injunctive relief as well as damages for fraud and conversion. We further consider whether the trial court erred in concluding that Solaimani did not waive any such failure to comply with the Code.

While a number of facts were disputed below, the following were not. Solaimani was a caricaturist who became involved with Simon Ghertner as his agent. Mrs. Ghertner, also named as a defendant, assisted Mr. Ghertner with accounting matters. All of the parties are Jewish. While Mr. and Mrs. Ghertner are orthodox, Solaimani is not. Solaimani was interested in expanding his business to include bar mitzvah and bat mitzvah celebrations. In 1987, Solaimani placed an ad in the Jewish Times, listing Simon Ghertner’s telephone number and his own business name, Creative Caricatures. The two men were to share the cost of advertising, and Ghertner was to act as Solai-mani’s booking agent, taking 20 percent of the fees generated.

This arrangement continued until 1992 when Solaimani became dissatisfied with the arrangement, feeling that he had been taken advantage of by Ghertner. Solaimani contacted attorney Mize on July 28, 1992, inquiring about help with the problem. Then, Solaimani spoke with Rabbi Khoskerman concerning the dispute and was told that, according to Jewish law, one Jew did not take another Jew to civil court, but such disputes were to be settled by a Bet Din. Pursuant to this conversation, Rabbi Khoskerman contacted two other rabbis, Rabbi Deutsch and Rabbi Broyde, in order to commence a Bet Din. Rabbi Broyde, a member of the New York Bar although not a member of the Georgia Bar, is an attorney and law school professor. The other two rabbis had rabbinical credentials but no legal background.

On July 29, 1992, Simon Ghertner and Solaimani met with the three rabbis and an Agreement to Arbitrate was signed by the parties. The parties’ signatures were witnessed by two witnesses not further involved in the proceedings.

The arbitration agreement stated that a dispute existed between the parties regarding Creative Caricatures and Caricatures Ink “and any related transactions or deals, with each party claiming financial and other claims against the other.” It further provided, in pertinent part, that:

For the purposes of satisfactorily adjusting said differences and disputes, it has been agreed by the said parties that the matters in dispute between them ... be submitted to an arbitration panel consisting of [the three rabbis]. Said parties agree that they have selected the aforesaid arbitrators to resolve their disputes. The parties acknowledge that these arbitrators may resolve this controversy in accordance with Jewish law (“din”) or through court ordered settlement in accordance with Jewish law (“p’shara krova l’din”). . . . The parties agree that the judgment may be entered on the award in any court of competent jurisdiction in the State of Georgia, and that such agreement shall be final as to the parties and issues encompassed in this agreement.

A letter of July 28, 1992, had been written by attorney Mize to Ghertner on behalf of Solaimani, according to Solaimani’s testimony. That letter was not tendered in the trial court and is not part of the record. There is, however, a copy of Mize’s letter to Ghertner of August 5, 1992, following the signing of the Agreement to Arbitrate, that states, in pertinent part, that:

On July 28, 1992 [,] I wrote you concerning the dispute existing between you and Mr. Kourosh Solaimani. It is my understanding that you and Mr. Solaimani have now presented your financial disputes to binding arbitration. As a result of the arbitration, it will not be necessary for you to provide me with the accounting I requested in my letter nor will it be necessary for you to provide me with information concerning any commissions which you claim are due you. I presume all of those issues would be resolved by the arbitration.

(Emphasis supplied.)

On February 24,1993, after numerous meetings with the parties and review of documentation presented to them by both parties, the panel issued a “partial award,” following which Solaimani continued to present documentary evidence to the Bet Din. On July 16, 1993, the panel issued its “final award,” pursuant to which Ghertner was ordered to pay Solaimani $1,900. The award further sorted out the business relationship between Ghertner and Solaimani regarding use of the two business names and other issues. Pursuant to that award, Ghertner delivered to Rabbi Deutsch 12 post-dated checks to be delivered monthly to Solaimani representing the total monetary award to Solaimani.

The present action was filed on July 29,1994. In response to that complaint, the Ghertners asserted the affirmative defense of “arbitration and award,” OCGA § 9-11-8 (c). The Ghertners’ motion to dismiss or, in the alternative, for summary judgment on this issue was denied by the trial court in 1998. The trial court then conducted an evidentiary hearing regarding the Bet Din and issued the order here appealed.

As correctly concluded by the trial court, the results of a Bet Din, conducted pursuant to the Georgia Arbitration Code, are enforceable pursuant to the Code. This conclusion is supported by decisions of courts of sister states which have considered the specific issue of a Bet Din. See, e.g., In re Marriage of Popack, 998 P2d 464 (Colo. App. 2000); Kovacs v. Kovacs, 98 Md. App. 289 (633 A2d 425) (1993).

Having acknowledged this, the trial court then concluded that the Bet Din did not comport with that Code “in that the arbitrators did not maintain a record of all pleadings, documents, testimony, and other matters” as required by OCGA § 9-9-8 (e). The trial court also concluded, without further elucidation, that Solaimani “did not knowingly waive the requirement that the arbitrators maintain such records.”

Rabbi Broyde, the administrative head of the Bet Din, testified that, during the Bet Din, he and the other rabbis took notes. After the issuing of the final award, however, those notes were disposed of. We need not consider whether, in the context of this case, such notes satisfy the requirement of OCGA § 9-9-8 (e) for record keeping because the record here reflects a waiver of that right as a matter of law.

At issue are the following provisions of the Georgia Arbitration Code, OCGA §§ 9-9-8 (e) and (f), 9-9-12, and 9-9-13 (b).

OCGA § 9-9-8 (e) and (f) provide that:

(e) The arbitrators shall maintain a record of all pleadings, documents, testimony, and other matters introduced at the hearing. The arbitrators or any party to the proceeding may have the proceedings transcribed by a court reporter, (f) Except as provided in subsection (c) ... , a requirement of this Code section may be waived by written consent of the parties or by continuing with the arbitration without objection.

(Emphasis supplied.)

OCGA § 9-9-12 provides that the court “shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified by the court as provided in this part.” Pursuant to OCGA § 9-9-13 (a), any application to vacate an award “shall be made to the court within three months after delivery of a copy of the award. . . .” (Emphasis supplied.)

Subsection (b) provides that, when a party has participated in an arbitration, four grounds, and four grounds only, can serve as a basis for vacating an award.

Here, it is not disputed that Solaimani did not avail himself of the opportunity to have the award vacated for “failure to follow the procedure of this part,” the fourth ground of OCGA § 9-9-13 (b).

When Ghertner asserted the affirmative defense of arbitration and award and put forth proof of that defense, Solaimani attempted to do what he had not done pursuant to OCGA § 9-9-13 (b). At this point, there was no legal basis upon which to contest the arbitration, since he acknowledged signing the agreement and participating in the Bet Din. Additionally, even had he timely attempted to vacate the award, the burden was on him to prove that he had not waived his right to insist on strict compliance with the Code and that he was prejudiced by that failure to comply. Greene v. Hundley, 266 Ga. 592, 595 (1) (468 SE2d 350) (1996); Bennett v. Builders II, Inc., 237 Ga. App. 756, 757 (3) (516 SE2d 808) (1999). The only proof of prejudice put forward by Solaimani in the hearing conducted here was that he was not awarded enough money for commissions, and that is insufficient to show the required prejudice. See Conmac Corp. v. Southern Diversified Dev., 245 Ga. App. 895, 898 (1) (539 SE2d 532) (2000); Bennett, supra.

Such a conclusion is consistent with the “clear public policy in favor of arbitration” reflected in the General Assembly’s adoption of the Arbitration Code. Haynes v. Fincher, 241 Ga. App. 179, 181 (4) (525 SE2d 405) (1999). In Haynes, the Hayneses participated in the arbitration which they initiated and obtained an award which they did not challenge under the provisions of the Arbitration Code and were, therefore, bound by it. Id. at 180 (1).

Also, parties are presumed to know the law. City of Atlanta v. Black, 265 Ga. 425, 426 (457 SE2d 551) (1995); Walston & Assoc. v. City of Atlanta, 224 Ga. App. 482, 483 (1) (480 SE2d 917) (1997). No request by Solaimani was ever made of the rabbis that additional records be kept, nor did he avail himself of his right to have the proceedings transcribed. In fact, the issue of record keeping was first mentioned by the trial court below, not by Solaimani or his counsel.

Therefore, the trial court erred in finding that Solaimani did not waive his rights to additional record keeping by continuing with the Bet Din.

Judgment reversed.

Eldridge and Miller, JJ, concur.

Decided March 25, 2002

Reconsideration denied April 10, 2002

Garland, Samuel & Loeb, Donald F. Samuel, for appellants.

Sarah M. Wayman, John C. Whatley VI, for appellee.

       OCGA § 9-9-1 et seq.

       Subsection (c), dealing with, the right to an attorney, was not addressed by the trial court, and we do not further consider it here.

        Greene v. Hundley, 266 Ga. 592, 595 (1) (468 SE2d 350) (1996).

       Where the facts necessary to establish an affirmative defense are admitted or not controverted, the court may dispose of the matter upon a motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment. Ezzard v. Morgan, 118 Ga. App. 50, 51 (1) (162 SE2d 793) (1968).


author: Eldridge, Judge. ANDREWS, Presiding Judge,

text:
    A01A2422.
    A01A2423.
    A01A2424.
    CLARK v. BYRD. ALLSTATE INDEMNITY COMPANY et al. v. CLARK. NESTLEHUTT v. CLARK.
    (564 SE2d 742)
   Eldridge, Judge.

Allstate Indemnity Company insured William Nestlehutt with a minimum $15,000 automobile policy when on June 1, 1997, he collided with Louise Clark, causing her serious injuries with over $40,000 in medicals. Clark, the plaintiff, had $100,000 uninsured/ underinsured motorist coverage under her policy with State Auto Property Casualty Jnsurance Company. Clark put her U/M carrier on notice. Wanda Byrd was the claims agent for State Auto. Debra Hinds was the claims agent for Allstate.

Both Hinds and Byrd knew from Clark that the Allstate coverage was limited and that Clark intended to make an underinsured claim against State Auto. Clark asked each agent for advice regarding the insurance coverage of the other’s policy and how to proceed. Clark indicated to Byrd that she wanted to settle both the insurance claim of Allstate and the underinsured claim of State Auto at the same time, but Byrd told Clark that she would have to settle with Allstate first and exhaust all such coverage before State Auto would pay any underinsured coverage. Byrd did not warn Clark that either a limited release or a simultaneous settlement by Allstate was necessary to avoid releasing State Auto and that a general release of Allstate would also release State Auto from all liability on its underin-sured coverage. Hinds did not tell Clark that the general release that she presented to Clark for execution would cause a release of all claims against State Auto upon execution by Clark.

After Clark executed the general release, State Auto denied any liability under the underinsured coverage. Clark sued everyone for fraud and equitable relief. The trial court granted summary judgment for Byrd and State Auto and denied summary judgment as to Allstate, Hinds, and Nestlehutt. Clark appealed, and the other defendants filed their cross-appeals. We reverse the grant of summary judgment as to Byrd and State Auto and reverse as to the denial of summary judgment for the other defendants.

Case No. A01A2422

1. (a) Fraud.

A fiduciary relationship does not exist between an insurer and its insured. “[T]here is no Georgia statute establishing that an accident and liability insurer occupies a fiduciary relationship to its insured. . . . The posture of an insured making a claim against his own insurer does not fall within this definition [of a confidential relationship] but is one of antagonistic interests.” Walsh v. Campbell, 130 Ga. App. 194, 198 (202 SE2d 657) (1973); see also Miles v. Great Southern Life Ins. Co., 197 Ga. App. 540, 541 (1) (398 SE2d 772) (1990).

Thus, Clark had no legal right to rely upon the representations of Byrd as a fiduciary or confidential advisor as the claims agent of State Auto without the exercise of ordinary diligence to determine the truth of the representations made to her that, until she settled with Allstate, she could receive no underinsured benefits from State Auto. The possible misrepresentation was in part what was stated to her by Byrd, but in larger measure what was not revealed was that a general release of Allstate barred liability of State Auto on its under-insured coverage unless the claims were settled simultaneously. Further, Byrd did not reveal that the only safe course would be to execute a limited release which would preserve Clark’s claim against State Auto but release her claim against Allstate.

Fraud or misrepresentations of fact require the plaintiff to prove: (1) that the insurer’s agent made a false representation; (2) that at the time, the agent knew it was false, because the insurer had recently litigated the same issue before this Court; (3) that the representations were made to induce Clark to act to execute a general release or refrain from acting to settle the claims at the same time or executing a limited release; (4) that Clark justifiably relied on the representations; and (5) that Clark was damaged by executing a general release that released State Auto’s underinsured coverage. Watson v. Zurich-American Ins. Co., 221 Ga. App. 4, 5 (1) (470 SE2d 684) (1996); Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993). There were some evidence and reasonable inferences supporting each of these issues of disputed fact.

Clark exercised reasonable diligence regarding reliance upon Byrd’s representations regarding prior settlement with Allstate being necessary, because she carefully read the release presented by Hinds, made specific inquiry of Hinds as to the effect of the general release of Allstate upon her claim against State Auto, and relied upon Hinds’ expertise and apparently objective statements regarding the underinsured claims against State Auto. Allstate was paying out its policy limits and receiving a release for its insured; therefore, a jury could find that there no longer existed an adversarial position between Clark and Allstate and that Clark could reasonably rely upon the representations of Hinds regarding the effect of the release upon her claims against State Auto as an impartial and experienced insurance claims agent. Thus, the conflict in what Byrd admitted that she told Clark and what Clark testified that Byrd in fact told her created material issues of fact as to actual fraud for jury determination.

(b) Promissory estoppel.

The fact that Byrd told Clark she had to settle with Allstate before State Auto would pay under the underinsured coverage could be construed by a jury to amount to a promise that induced Clark to make a substantial change of position by executing the general release with Allstate. While State Auto has a complete legal defense of the general release to underinsured coverage, injustice can be avoided only by the enforcement of a promise to pay underinsured benefits. See OCGA § 13-3-44 (a); Insilco Corp. v. First Nat. Bank, 248 Ga. 322 (1) (283 SE2d 262) (1981). The evidence presented by the plaintiff raises issues of fact for jury determination: (1) that Byrd made a promise to settle the underinsured coverage for $85,000 when Clark settled the Allstate claim for policy limits of $15,000; (2) that Byrd should have expected Clark to rely on such promise; (3) that the plaintiff did in fact rely to her detriment on the promise; and (4) that such reliance was reasonable. Mooney v. Mooney, 235 Ga. App. 117, 119 (1) (508 SE2d 766) (1998); see also Owens v. American Refuse Systems, 244 Ga. App. 780, 782 (3) (536 SE2d 782) (2000); Pacrim Assoc. v. Turner Home Entertainment, 235 Ga. App. 761, 766-767 (2) (510 SE2d 52) (1998). Detrimental reliance which causes a substantial change in position will constitute sufficient consideration to support promissory estoppel. Mooney v. Mooney, supra at 119. Thus, the issue of promissory estoppel exists for jury determination as to whether State Auto can escape underinsured coverage by inducing conduct through a promise of settlement that probably would provide a complete defense.

(c) Hinds knew that Clark wanted to preserve her underin-surance claim against State Auto. There is no evidence that either Hinds or Allstate intended that the release used would release State Auto. OCGA § 33-24-41.1. Therefore, to avoid a “gross injustice” to Clark that provides no advantage to Allstate but gives an “unconscionable advantage” to State Auto requires the trial court to consider whether the evidence demonstrates such mutual mistake of law that “if prove [n] clearly, unequivocally, and decisively, would warrant a reformation of the release . . . with respect to its effect on the obligations of State Auto.” Superior Ins. Co. v. Dawkins, 229 Ga. App. 45, 49 (1) (494 SE2d 208) (1997); see also Fulghum v. Kelly, 255 Ga. 652, 653 (340 SE2d 589) (1986). Thus, the trial court as a matter of equity should reform the release where the evidence of mutual mistake of law showing the intent of the parties has been demonstrated clearly, unequivocally, and decisively as to the mistake. OCGA § 23-2-21; Fulghum v. Kelly, supra at 654.

Case Nos. A01A2423 and A01A2424

2. Superior Ins. Co. v. Dawkins, supra at 49-50, requires that the trial court’s denial of the motions for summary judgment as to Allstate, Hinds, and Nestlehutt be reversed, because the evidence shows that the intent of the parties, i.e., Clark, Allstate, Hinds, and Nestlehutt, when they entered into the settlement and release, was to release the insurer and its insured from further liability. Thus, the release as to them will be given its intended effect. Id. at 49-50; see also Fulghum v. Kelly, supra.

Judgment reversed.

Miller and Phipps, JJ, concur. Ellington, J., concurs in judgment only. Andrews, P. J., Johnson, P. J., and Ruffin, J., concur in part and dissent in part.

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

While I concur in Division 2 of the majority opinion and agree that Nestlehutt, Allstate and Hinds were entitled to summary judgment pursuant to Superior Ins. Co. v. Dawkins, 229 Ga. App. 45 (494 SE2d 208) (1997), I must respectfully disagree with Division 1, because I believe that Byrd and State Auto were also entitled to summary judgment on Count 4, the fraud count, Division 1 (a); no argument was made below on promissory estoppel, Division 1 (b); and Clark is not entitled to reformation of the release under the facts here, Division 1 (c).

The release signed by Clark on November 11, 1997, stated that

I do hereby release and forever discharge William Nestle-hutt and any other person, firm or corporation charged or chargeable with responsibility or liability, their heirs, representatives and assigns, from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action, arising from any act or occurrence up to the present time and particularly on account of all personal injury, disability, property damage, loss or damages of any kind already sustained or that I may hereafter sustain in consequence of an accident that occurred on or about the 1st day of June 1997. . . .

(Emphasis supplied.)

Although the entire policy issued by State Auto to Clark is not contained in the record, the initial page regarding uninsured motorist coverage is, and it provides that “[w]e [State Auto] will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have been exhausted by payment of judgments or settlements.”

Therefore, any statements made by Byrd that Clark needed to deal with Allstate first regarding the limits of its policy were correct and could not form the basis for any fraud claim. Further, as Clark acknowledged, when she asked Byrd about her dealings with Allstate, Byrd told her she was not an attorney and could not give her advice. Clark’s pleadings state that she did not rely on Byrd’s representations. There is nothing in the record to indicate that Byrd even knew the wording of the Allstate release prior to receiving a copy of it in January 1998.

Clark seeks to have the release reformed as to State Auto’s liability based on her and Hinds’ claimed mutual mistake of law regarding the effect of the release on her ability to bring a claim against State Auto based on Superior Ins. Co. v. Dawkins, supra. State Auto and Byrd were entitled to summary judgment on this theory, I believe, because the facts here do not support such a mutual mistake of law. Hinds mailed the release to Clark in West Virginia where it was signed by Clark on November 20, 1997. Clark acknowledged reading the release before signing it and was “hesitant” about the wording of it. Clark also acknowledged that she had in fact already signed the release in West Virginia before she called Hinds to ask whether she could sign the documents and still pursue her claim against State Auto. Therefore, Hinds had made no representation regarding the release before Clark signed it. Further,

[w]here the parties to a written instrument have equal opportunities and means of knowing the truth concerning the contents and meaning of the instrument, the courts generally have expected each party to rely upon his own discretion, rather than acting upon the representations of the other side. Bass v. Seaboard A.L.R. Co., 205 Ga. 458, 467 (53 SE2d 895) (1949). Because no fiduciary relationship exists between a claimant and the insured’s insurance carrier, a release obtained by the insurance agent is binding on the claimant even if the statements and representations made by the agent were incorrect or erroneous unless the agent by artifice, trick, or fraud prevented the claimant from reading the entire release. Wheat v. Montgomery, 130 Ga. App. 202 (202 SE2d 664) (1973); Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 60 (239 SE2d 381) (1977).

Daniel v. Conrad, 242 Ga. 119, 120 (249 SE2d 603) (1978). See also Vickers v. Roadway Express, 210 Ga. App. 78, 79 (2) (435 SE2d 253) (1993); White v. Lott, 175 Ga. App. 263, 265 (2) (333 SE2d 118) (1985). Such a conclusion is also consistent with the general rule that

“fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.” [Cits.] The basis for this generally is that everyone is presumed to know the law, and therefore cannot in legal contemplation be deceived by erroneous statements of law. It has been held that this principle of law is especially true where there is no confidential relationship between the parties. [Cits.]

Dixon v. Dixon, 211 Ga. 557, 563 (2) (87 SE2d 369) (1955).

Regarding the applicability of Superior Ins. Co. v. Dawkins, supra, that case involved different facts. Initially, although the dates of the accident and the signing of the release are not stated in the opinion, those events were obviously much closer in time to the enactment of Ga. L. 1994, p. 1156, OCGA § 33-24-41.1, when uncertainty about its effect and use was apparent. There, Superior’s adjuster who sent the release to Dawkins stated that she “believed the new law would supersede the release language and allow a partial settlement.” Superior Ins. Co. v. Dawkins, supra at 49.

Here, Clark acknowledges that she was troubled by the language of the release, discussed it with her family and accountant, but, nonetheless signed it despite the clear language set out above.

Therefore, I believe there is no basis for reformation of the release regarding Byrd and State Auto and would have affirmed the trial court’s grant of summary judgment.

I am authorized to state that Presiding Judge Johnson and Judge Ruffin join in this dissent.

Decided March 28, 2002

Reconsideration denied April 10, 2002

Kenneth C. Pollock, for Clark.

William, C. Rhodes, for Byrd.

Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Boyd B. Newton, for Allstate Indemnity Company et al.

Downey & Cleveland, Rodney S. Shockley, for Nestlehutt.

       It is a fundamental rale of appellate practice that this Court does not consider arguments which are not argued by the parties before the trial court. See generally Comer v. Nat. Bank of Ga., 184 Ga. App. 867, 868 (3) (363 SE2d 153) (1987). The majority opinion fails to follow this rule by apparently applying a “wrong for any reason” rule, in contravention of the right for any reason rule. See, e.g., Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (2) (403 SE2d 893) (1991). “It is not the function of an appellate court to cull the record on behalf of a party in search of instances of error. [Cits.]” Mauldin v. Weinstock, 201 Ga. App. 514, 517 (3) (411 SE2d 370) (1991).

       State Auto did not even receive any information from Clark regarding her medical condition and treatment until December 24, 1997.


text:
    A02A0097.
    SMITH v. THE STATE.
    (563 SE2d 923)
   Blackburn, Chief Judge.

Following the trial court’s denial of his motion to withdraw his Alford plea for the crimes of voluntary manslaughter, aggravated assault, criminal damage to property, and criminal trespass, Nathaniel Smith appeals, contending that his plea was not voluntary and knowing because he was nervous, afraid, and rushed at the time that it was given. For the reasons set forth below, we affirm.

Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant intelligently and understanding^ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) filling a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

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

Decided April 10, 2002.

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Margaret E. Heap, Assistant District Attorney, for appellee.

The transcript in this case makes it clear that Smith was aware of both the rights he was waiving and the consequences of his Alford plea. That transcript shows that Smith responded that he could hear the judge clearly, he was not under the influence of alcohol or drugs, he understood all of the rights that he was waiving, and that he understood the consequences and nature of his Alford plea. Indeed, the transcript shows that the trial court discussed Smith’s plea and its consequences with him in detail. This showing on the record amply supports a conclusion that Smith’s plea was voluntary and knowing.

Smith nonetheless argues that, at the time that the plea was entered, he was scared, nervous, and rushed. The record belies this argument. To the contrary, the record shows that Smith understood the nature of the plea proceedings, that he asked specific, articulate questions about the consequences of the plea and received complete answers, and that he remained calm throughout. Smith’s contention that he was rushed in giving his plea also lacks merit. Prior to accepting Smith’s plea, the trial court explicitly asked Smith if he needed more time to talk with his attorney, and Smith replied that he did not.

In this case, the transcript clearly shows that Smith’s Alford plea was both knowing and voluntary.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

       Pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), a defendant may enter a plea without admitting his guilt out of fear of greater punishment for the crimes charged if he went to trial.

        Bowens v. State, 194 Ga. App. 391, 392 (390 SE2d 634) (1990).


text:
    A02A0179.
    WITHERS v. THE STATE.
    (563 SE2d 912)
   Blackburn, Chief Judge.

Following a jury trial, Roderick Lorenzo Withers appeals his conviction for two counts of aggravated stalking, contending that: (1) the evidence was insufficient to support the verdict; (2) character evidence was improperly admitted; and (3) the trial court erred by imposing parole conditions in its sentencing. For the reasons set forth below, we affirm Withers’ conviction, and we remand the case for resentencing.

1. Withers contends that the evidence did not support his conviction. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Withers] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the [standard] of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that [Withers] was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Lowery v. State.

Viewed in this light, the record shows that, on the evening of August 17, 2000, Withers entered the home of his ex-girlfriend, Wendy Harris, without permission. Withers rushed into the kitchen, and he told Harris that he knew that Marvin Gates, her present boyfriend, was in the house. Withers then grabbed a knife and began waving it at Harris. When Harris picked up the phone to call for help, Withers knocked it out of her hand, and, in the ensuing struggle, Withers cut Harris’ hand and fled.

Harris subsequently reported the incident to the police who came to her home to investigate. Sometime after the police left, Withers returned, opened the front door of the home, threatened Gates, and then left. Shortly thereafter, Withers called Harris and made more threats. Again, Harris called police to her home, and, after tracing Withers’ phone call, the investigating officers located Withers and arrested him. It is undisputed that, on the date in question, Withers was on probation and, as a condition of probation, he was prohibited from having any contact with Harris.

This evidence amply supports Withers’ conviction. Jackson, supra.

2. Withers contends that the trial court improperly allowed the State, in making out its case for aggravated stalking, to bring his character into evidence by referring to the fact that he was on probation and subject to a parole restriction of staying away from Harris. This contention is patently erroneous.

OCGA § 16-5-91 (a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

In this case, the statutory definition of the crime, itself, required the State to present evidence that Withers had violated a condition of parole by contacting Harris. The trial court appropriately allowed the State to prove that Withers was on parole, that a condition of his parole was to stay away from Harris, and that Withers had violated this condition. The State did not discuss the underlying crime for which Withers had been paroled; rather, it limited its discussion to the condition only.

This conduct was proper. If we were to accept Withers’ argument that introduction of the fact that he was on parole improperly placed his character in evidence, the aggravated stalking statute would be rendered a nullity. We will not apply the law in such an illogical manner.

3. Finally, Withers contends, and the State concedes, that the trial court erred by imposing restrictions upon his parole during sentencing.

Any attempt by a court to impose its will over the Executive Department [by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons & Paroles] would be a nullity and constitute an exercise of power granted exclusively to the Executive.

Johns v. State; compare Davis v. State. Accordingly, in this case, Withers’ sentence is a nullity because the trial court attempted to impose a condition as to his future parole. We therefore vacate the sentence and remand the case for resentencing consistent with this opinion.

Decided April 10, 2002.

David E. Webb, John R. Mobley II, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.

Judgment of conviction affirmed. Sentence vacated and case remanded for resentencing.

Johnson, P. J., and Miller, J., concur.

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

        Lowery v. State, 242 Ga. App. 375, 376 (530 SE2d 22) (2000).

        Johns v. State, 160 Ga. App. 535, 536 (287 SE2d 617) (1981).

        Davis v. State, 181 Ga. App. 498 (353 SE2d 7) (1987).


text:
    A02A0240.
    WILLIAMS v. THE STATE.
    (563 SE2d 914)
   Blackburn, Chief Judge.

Larry G. Williams was charged with three counts of selling cocaine. He entered a guilty plea on the three counts of sale of cocaine and requested a pre-sentence hearing pursuant to OCGA § 17-10-2. After the pre-sentence hearing, the trial court sentenced Williams to ten years probation on Count 1, ten years probation on Count 2, and thirteen years imprisonment on Count 3. Williams appeals his sentence, contending that the trial court erred both in considering a probation officer’s pre-sentence report in determining the length of his sentence and also in refusing to share with him the contents of the pre-sentence report. We find no merit in these contentions.

1. Information in pre-sentence reports may not be regarded as evidence either in aggravation or mitigation of sentence since the reports are not part of the evidence introduced at a pre-sentence hearing. Benefield v. State. Williams maintains that the trial court improperly relied upon the pre-sentence report in sentencing him. He reasons that because the State produced nothing in aggravation at the pre-sentence hearing, and because the trial court imposed a sentence harsher than that recommended by the State in the settlement agreement, the harsher sentence must have been the result of the trial court’s consideration of the pre-sentence report.

Williams’s contention that the trial court made use of the pre-sentence report in fixing his sentence has no basis. The fact that the sentence imposed by the court is harsher than the recommended sentence set forth in the State’s plea agreement proves nothing. Further, this Court has uniformly recognized a presumption, in the absence of a strong showing to the contrary, that the trial judge ignores illegal evidence and considers only legal evidence in imposing a sentence. Welborn v. State. Moreover, “the trial court may give in its discretion any sentence prescribed by law for the offense.” Id. In this case, the sentence is supported by the legal evidence in aggravation. The trial court made no mention of any other reasons for the severity of the sentences it imposed other than Williams’s prior convictions, and in the absence of any indication that it relied on material to which Williams objected, we find the presumption unrebutted and an absence of error. See Watkins v. State. Beyond this, since “the sentence is within the limits of the law[,] nothing in this regard is presented for review.” Durham v. State.

Decided April 10, 2002.

J. Converse Bright, for appellant.

J. David Miller, District Attorney, Melanie J. Brogden, Bradfield M. Shealy, Assistant District Attorneys, for appellee.

2. There is likewise no merit to Williams’s contention that the contents of the pre-sentence report should have been disclosed to him. OCGA § 17-10-2 “does not require the content of the report to be shared with counsel,” and “it is in the sound discretion of the trial judge whether to reveal the content of the report to counsel for the accused and for the state.” Benefield, supra at 739. While the trial court did not share the entire report with Williams, it did make available to Williams a summary of his prior convictions, which appear to be the basis for the court’s sentence, and this is all the statute requires. OCGA § 17-10-2 (a).

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Benefield v. State, 140 Ga. App. 727, 738 (232 SE2d 89) (1976).

        Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755) (1983).

        Watkins v. State, 191 Ga. App. 87, 92 (381 SE2d 45) (1989).

        Durham v. State, 185 Ga. App. 163, 167 (363 SE2d 607) (1987).


text:
    A02A0259.
    PENNINGTON v. THE STATE.
    (564 SE2d 219)
   Blackburn, Chief Judge.

Following a bench trial, Terry L. Pennington appeals his conviction for reckless driving, arguing that the evidence was insufficient to support the verdict. For the reasons below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Pennington] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the [standard] of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that [Pennington] was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Lowery v. State.

Viewed in this light, the record shows that, at approximately 2:45 a.m. on March 13, 2001, Detective Pickard was traveling down Freedom Parkway and through a tunnel. Just as Pickard exited the tunnel, he had to lock down on his brakes because traffic suddenly stopped. At that time, Detective Pickard observed an eighteen-wheeler truck driven by Pennington straddling the six-inch median in the road and blocking all four lanes of oncoming traffic in both directions. In order to avoid driving under the tunnel, which had inadequate clearance, Pennington had decided to make a U-turn onto another street. To complete his maneuver, Pennington had to make approximately six smaller turns. Detective Pickard testified that, at the point where Pennington was making his turn, motorists exiting the tunnel could not have clearly seen him because visibility was limited. He further testified that the six-inch median Pennington was crossing over had been placed there because of this limited visibility.

OCGA § 40-6-390 (a) provides: “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” In this case, the evidence supports a finding that Pennington violated this statute. In an area of limited visibility, he chose to commit an illegal U-turn, thereby blocking all lanes of oncoming cars and causing traffic to grind to a halt. Pennington’s arguments that he had no choice but to make a U-tum because he could not go forward through the tunnel does not change this result. As the trial court pointed out, Pennington should have waited for assistance from the police, who could have safely blocked off the road, before he tried to extract his truck. Rather than doing that, however, Pennington chose to take the matter into his own hands, and, by doing so, he placed the safety of others in jeopardy.

Decided April 10, 2002.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Joseph J. Drolet, Solicitor-General, Vickie V. Madden, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

       Pennington pled guilty to making an illegal U-turn.

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

        Lowery v. State, 242 Ga. App. 375, 376 (530 SE2d 22) (2000).


text:
    A02A0322.
    BEASLEY v. THE STATE.
    (563 SE2d 909)
   Blackburn, Chief Judge.

Following a jury trial, Freddy L. Beasley appeals his conviction for possession of a firearm by a convicted felon, driving under the influence of alcohol, driving with a suspended license, and no proof of insurance. Beasley contends that the trial court erred by (1) denying his motion to suppress and (2) failing to instruct the jury, without request, regarding the legality of police stops. For the reasons set forth below, we affirm.

1. Beasley contends that the trial court erred by denying his motion to suppress, arguing that he was stopped without the prerequisite articulable suspicion. We disagree.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

Viewed in this light, the record shows that, at approximately 2:12 a.m. on September 22, 2000, Officer Josh Hilton was patrolling Highway 62 in his marked patrol car when he noticed a truck traveling in the opposite direction at a very low rate of speed. Officer Hilton noted both that the vehicle was weaving and that a passenger was riding in the bed of the truck. Suspecting that Beasley, the driver, might be impaired, Officer Hilton made a U-turn and began following the truck. When Officer Hilton turned around, the truck sped away, and, when Officer Hilton caught up, he paced the truck at 120 mph. When Officer Hilton activated his blue lights, Beasley pulled over to the side of the road, and a rifle was thrown out of the passenger’s side of the truck.

Officer Hilton asked Beasley, who is admittedly a previously convicted felon, to step out of the truck, and, as Beasley did so, he wobbled and was unsteady on his feet. Officer Hilton performed a pat-down search and discovered a large lock-blade knife in Beasley’s pocket. Noticing the odor of an alcoholic beverage, Hilton asked Beasley why he was driving so fast, and Beasley replied that he did not have a reason. Beasley’s speech was slurred as he answered. Officer Hilton then secured Beasley in his patrol car and handcuffed two men who had been riding with Beasley as passengers while waiting for another officer to arrive and help him retrieve the discarded weapon.

Officer Hilton asked Beasley if he had been drinking that night, and he responded that he had a couple of beers. Officer Hilton then asked Beasley to take an alco-sensor test which registered a positive result for alcohol, and, after running a computer check, Officer Hilton discovered that Beasley had been driving with a suspended license. In addition, Beasley had no proof that the truck he was driving was properly insured, and a shotgun, which Beasley claimed was a family heirloom, was retrieved from the side of the road by the truck.

Officer Hilton then arrested Beasley and transported him to the Calhoun County jail. Officer Hilton informed Beasley of his implied consent rights, and Beasley agreed to submit to an Intoxilyzer 5000 test. The result of the Intoxilyzer test was 0.102. The foregoing evidence was more than ample to support the jury’s verdict against Beasley. Jackson v. Virginia.

Nonetheless, Beasley argues that his initial stop was unlawful, arguing that Officer Hilton had no reasonable articulable suspicion to make the stop in accordance with Terry v. Ohio. This argument is patently erroneous. Prior to his pursuit of Beasley, Officer Hilton noticed his truck weaving in the roadway and traveling at an extremely slow rate of speed. Based on this observation alone, Officer Hilton had a reasonable articulable suspicion to stop Beasley to determine if he was impaired. We have “specifically determined that an officer’s observation of a motorist’s weaving may serve as sufficient reason to warrant an investigative stop for a possible DUI violation.” (Punctuation omitted.) State v. Diamond. Then, when Officer Hilton pulled in behind Beasley, he sped off at an excessive rate of speed. At that point, Officer Hilton also had the right to stop Beasley for his speeding violation. See, e.g., Forsman v. State.

Decided April 10, 2002.

Jones & Jones, L. Earl Jones, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Contrary to Beasley’s arguments, State v. Canidate has no application to this case. In Canidate, the arresting officer had no basis for stopping the defendant at the time that he began following him. To the contrary, in this case, Officer Hilton had already witnessed Beasley weaving in the roadway. And, although Beasley vociferously argues that Officer Hilton was lying about the events surrounding his stop, it is axiomatic that issues of witness credibility must be considered by the trier of fact, not this Court. Anderson v. State. It is clear that, during the hearing on the motion to suppress, the trial court found Officer Hilton to be more credible than Beasley.

2. Beasley contends that the trial court erred by failing to instruct the jury regarding the legality of his stop. As an initial matter, we point out that Beasley failed to submit requests to charge on a timely basis, and, as such, there are no written requests in the record for our review. Nevertheless, Beasley argues that the trial court was required to charge the jury on the legality of the stop because it was his sole defense.

Even assuming that the legality of the stop was Beasley’s sole defense, he acquiesced in the trial court’s omission of this charge and thereby waived his right to argue that the omission was erroneous. When the trial judge informed Beasley’s counsel that he was not going to charge the jury regarding the legality of the stop but, instead, was “going to let the jury decide the case on the basis of the evidence that they heard and the charge of the law that I give them,” Beasley’s counsel replied, “Okay. ... I can stay within the confines of that.” A defendant cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal. See generally Cobb v. State.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

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

        Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

        State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996).

        Forsman v. State, 239 Ga. App. 612 (521 SE2d 410) (1999).

        State v. Canidate, 220 Ga. App. 276 (469 SE2d 710) (1996).

        Anderson v. State, 267 Ga. 116, 118 (2) (475 SE2d 629) (1996).

        Cobb v. State, 236 Ga. App. 265 (511 SE2d 522) (1999).


author: Ruffin, Judge.

text:
    A02A0356.
    ROBINSON v. THE STATE.
    (563 SE2d 919)
   Ruffin, Judge.

A jury found Eddie Robinson guilty of aggravated assault, possession of a firearm during the commission of a crime, and reckless conduct. Robinson appeals, and for reasons that follow, we affirm.

Viewed favorably to support the jury’s verdict, the evidence showed that Robinson attended a birthday party on December 27, 1999, at Tiffany’s Supper Club in Muscogee County. At some point during the party, Robinson and Ike Murdock, another party guest, began arguing outside the club. According to Murdock, he was angry because Robinson had been trying to talk with his girlfriend. He confronted Robinson, and the two argued and called each other names. Robinson then walked to his truck, retrieved a gun, and “came charging back at [Murdock].” He threatened to kill Murdock and fired several shots into the ground.

By this time, a crowd of 30 to 40 people had gathered outside the club. When Robinson fired into the ground, the crowd scattered, and Murdock froze. Robinson pointed the gun at Murdock, who was not armed. At that point, Murdock’s brother, Gus Wyche, tried to disarm Robinson. Wyche grabbed him, and during the struggle, Robinson shot Wyche in the stomach. Robinson then fled the scene in his truck.

Robinson testified at trial that Murdock was the aggressor in the fight and prevented him from leaving the club. According to Robinson, as Murdock advanced on him, he retrieved his gun from his truck and fired a shot into the ground. As Robinson explained: “I didn’t want to shoot [Murdock], but I didn’t want to get hurt either.” Robinson testified that Wyche then jumped him from behind and began choking him. In Robinson’s words, he shot Wyche to “get [Wyche] off of [him].” Robinson admitted that no one touched him before he fired his gun.

The State charged Robinson with aggravated assault on Wyche, aggravated assault on Murdock, two counts of possession of a firearm during the commission of a crime, and reckless conduct. Based on the evidence presented, the jury found him guilty of aggravated assault on Murdock, one firearm charge, and reckless conduct, but acquitted him of the other firearm charge and assaulting Wyche.

1. Robinson first argues that because aggravated assault and reckless conduct are mutually exclusive, he could not be convicted of both and is entitled to a new trial. “In this State, if a jury returns verdicts of guilty on two counts of an indictment, and those counts are mutually exclusive, the convictions must be set aside and a new trial granted.” The term “mutually exclusive” means that “a finding of guilt on the essential elements of one count by definition excludes a finding of guilt based on an essential element of another count.” Thus, a defendant cannot be convicted of robbery of an automobile and theft by receiving that automobile because “an essential element of the crime of theft by receiving is that the goods were stolen by some person other than the accused.”

Robinson asserts that aggravated assault and reckless conduct are mutually exclusive because the intent element in one precludes the intent element in the other. As we found in Huguley v. State, “in a case of aggravated assault, placing another in fear of receiving a violent injury is the intended consequence of the defendant’s act, whereas with reckless conduct, the victim’s apprehension is a product of the defendant’s criminal negligence,” According to Robinson, the jury could not find that he acted in a criminally negligent manner and had the necessary intent to commit aggravated assault. In his view, his conduct “in getting the gun from his truck and firing it [was] either one or the other offense.”

The aggravated assault and reckless conduct charges, however, did not involve the same victim. The indictment charged Robinson with committing aggravated assault by threatening Murdock’s life with a gun. It also charged him with reckless conduct in endangering the Tiffany’s Supper Club patrons by firing a gun outside the club. The jury’s conclusion that Robinson intended to assault Murdock by pointing a gun at him did not preclude it from also finding Robinson criminally negligent in firing that gun outside the club, endangering bystanders. Thus, pretermitting whether aggravated assault and reckless conduct might be mutually exclusive in some cases — such as where the crimes involve the same victim — the charges are not mutually exclusive here.

2. Robinson also argues that he is entitled to a new trial because, when the jury acquitted him of assaulting Wyche, it necessarily found him justified in his actions that night. According to Robinson, the jury further concluded that his conduct was merely negligent, not intentional, undermining the intent necessary for an aggravated assault conviction. At base, he contends that the evidence was insufficient to sustain his conviction for assaulting Murdock.

We disagree. “On appeal, [Robinson’s] conviction will be upheld if the evidence, construed favorably to support the verdict, was sufficient to authorize the jury to find him guilty beyond a reasonable doubt of [the] offense[ ].” Based on the evidence presented, such as Murdock’s testimony that Robinson charged at him with a loaded gun during an argument, pointed the gun at him, and threatened to kill him, the jury could find Robinson guilty beyond a reasonable doubt of aggravated assault. The jury clearly rejected his justification defense relating to this count, resolving the conflicts in the testimony against him, as it was entitled to do.

Our decision in Smith v. State does not change this result. In Smith, we found that a defendant who is justified in shooting at his intended victim, and thus not guilty of aggravated assault, also is not guilty of aggravated assault on an innocent bystander accidentally hit during the shooting. This “transferred justification” concept does not apply here. The jury acquitted Robinson of assaulting Wyche, possibly finding his actions regarding Wyche justified. Robinson’s conduct with respect to Murdock and Wyche, however, was distinct. Construed favorably to the verdict, the evidence showed that Robinson first confronted Murdock with a gun and threatened Mur-dock’s life. Wyche then grabbed Robinson from behind, a struggle ensued, and Robinson shot Wyche. Even if the jury found Robinson justified in defending himself against Wyche, the evidence did not require it to find his separate actions toward Murdock justified.

Furthermore, as discussed in Division 1, Robinson’s convictions for aggravated assault and reckless conduct were not mutually exclusive; the jury was authorized to find — and apparently did find — that Robinson not only acted with the requisite intent toward Mur-dock to support his aggravated assault conviction, but also behaved in a criminally negligent manner toward the bystanders outside the club. His claim that the jury only found his use of the gun to be negligent lacks merit.

Decided April 10, 2002.

Michael E. Garner, for appellant.

J. Gray Conger, District Attorney, Samuel G. Merritt, Assistant District Attorney, for appellee.

The State presented sufficient evidence to support Robinson’s aggravated assault conviction. Accordingly, his conviction must be affirmed.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Ney v. State, 227 Ga. App. 496 (489 SE2d 509) (1997).

        Smith v. State, 272 Ga. 874, 880 (6) (b) (536 SE2d 514) (2000).

        Gutierrez v. State, 235 Ga. App. 878, 880 (2) (510 SE2d 570) (1998).

       Id. at 800-801.

       242 Ga. App. 645 (529 SE2d 915) (2000).

       (Punctuation omitted.) Id. at 648-649 (1) (a); see also OCGA §§ 16-5-21 (a) (2) (defining aggravated assault); 16-5-60 (defining “reckless conduct causing harm to or endangering the bodily safety of another”).

       See Sheats v. State, 210 Ga. App. 622-623 (1) (436 SE2d 796) (1993) (in case involving one victim, court noted that “the jury’s finding that [the defendant] committed aggravated assault . . . required a finding of intentional infliction of injury, which precluded the element of criminal negligence in reckless conduct”).

       See Smith, 272 Ga. at 880-881 (voluntary manslaughter and felony murder based on underlying felony of armed robbery are not mutually exclusive because “to convict [the defendant] of felony murder, the jury did not have to find that [the defendant] did not act with an intent to kill, as malice and intent to kill are not elements of the offense of felony murder”); Gutierrez, supra at 881 (aggravated assault with a car and hit and run with that same car are not mutually exclusive; despite defendant’s arguments, hit and run conviction did not require finding that striking the victim with the car was unintentional).

        Ney, supra at 497 (1).

       See Bartlett v. State, 244 Ga. App. 49, 51 (537 SE2d 362) (2000).

       See Smith v. State, 249 Ga. App. 736, 737-738 (550 SE2d 106) (2001).

       204 Ga. App. 173 (1) (419 SE2d 74) (1992).

       See id. at 173-174; see also Crawford v. State, 267 Ga. 543, 544 (2) (480 SE2d 573) (1997) (under the principle of transferred justification, “no guilt attaches if an accused is justified in shooting to repel an assault, but misses and kills an innocent bystander”).

       See id.

       See id. (no transferred justification where defendant did not fire fatal shot that hit bystander “to repel an actual assault, since the purported assault upon him was at an end”).

       Although Robinson’s sufficiency argument is not completely clear, he apparently does not challenge the sufficiency of the evidence supporting his convictions for reckless conduct and possession of a.firearm during the commission of a crime. We note, however, that the evidence presented by the State, including that Robinson threatened Murdock’s life with a gun and shot the gun in an area crowded with people, was sufficient to sustain these convictions. See Jack v. State, 245 Ga. App. 216-217 (1) (536 SE2d 235) (2000); Cox v. State, 216 Ga. App. 86, 87 (1) (453 SE2d 471) (1995) (physical precedent only).