text:
    A00A1334.
    A00A1335.
    ESPINOZA v. THE STATE. VASQUEZ v. THE STATE.
    (534 SE2d 824)
   McMurray, Senior Appellate Judge.

A Gwinnett County jury convicted co-defendants Indorfo Espinoza and Polinar Vasquez of a single count of possession of marijuana with intent to distribute. They were sentenced to ten years confinement to serve eight and six years, respectively. Separately, they appeal upon entry of the judgment of conviction and the sentence imposed by the superior court. Inasmuch as their claims are identical in part and arise upon the same set of facts, we have consolidated their cases for disposition on appeal. Held:

Viewed in a light most favorable to the jury’s verdicts, the evidence shows that on August 5, 1998, a suspected drug trafficker, a man named Arzate, was placed under surveillance at a Smyrna apartment by Special Agent Jeffery Dalman, United States Drug Enforcement Administration (“DEA”), acting on a lead provided by another DEA office. When Arzate left the Smyrna residence in a pickup truck registered to a California man from whom 100 pounds of marijuana had been seized, Special Agent Dalman followed, eventually losing Arzate in the vicinity of Lilburn. Thinking that Arzate might reappear at the Lilburn residence where, two years earlier, the agent had seized 1,500 pounds of marijuana in conjunction with a drug trafficking arrest, Dalman went to that location, found Arzate’s truck, and initiated a second surveillance. Among other things, Special Agent Dalman noted the presence of a Ford van which was backed into the carport of the residence. After about an hour, three vehicles departed the residence in what appeared to be a convoy. Arzate, driving his pickup, led. In the second vehicle, the Ford van, driven by Cesar Hernandez, Vasquez rode as a passenger. Espinoza rode as a passenger in the third vehicle, a Ford Taurus, driven by Juan Albarran. As the three vehicles approached Interstate 85, contact was again lost with Arzate as he pulled away from the group in the pickup onto 185 southbound while the remaining vehicles stopped at a gas station where the van was refueled. The vehicles then entered 185 northbound where, based on the totality of the circumstances, Special Agent Dalman ordered them stopped. Gwinnett County Police Officer Dan Llorens, who assisted in the traffic stop, testified that Hernandez consented to a search of the van. In the search which followed, a second Gwinnett County police officer assisting on the scene, Officer Gary Linder, found a black duffel bag containing 25 pounds of marijuana under the van’s back bench seat.

Case No. A00A1334

1. Espinoza enumerates that the superior court erred in denying his motion in limine to prevent the State’s witnesses from referring to the Lilburn residence as a known drug house, impermissibly placing his character in issue. The record, however, shows that the State’s witnesses referred to the Lilburn residence not as a known drug house, but as the place where Special Agent Dalman arrested a drug trafficker in 1996 after seizing 1,500 pounds of marijuana. No evidence associated Espinoza with the Lilburn residence at the time of the 1996 arrest at that location. Under these circumstances, Espinoza’s character was never placed in issue, foreclosing his argument on appeal and the capacity to show prejudice. Moreover, “[Espinoza’s] failure to request a curative instruction waives [the] issue.” This claim of error is therefore without merit.

2. Espinoza further contends that the superior court erred in allowing the State’s attorney to prove Espinoza’s ownership of the van in the cases sub judice by an uncertified report provided by the Georgia Crime Information Center (GCIC). In this regard, Officer Linder testified over objection that a departmental GCIC computer search for the van’s tag number “return [ed]” Espinoza as the owner of the vehicle. Inasmuch as the State offered a sworn witness to show ownership of the van in Espinoza upon a proper GCIC computer search, the superior court did not err in admitting it over Espinoza’s objection for lack of foundation. In any event, Espinoza’s own witness testified that he owned the van in issue. “ ‘(A) party cannot complain of error that [his] own legal strategy, trial procedure or conduct aided in causing.’ [Cit.]”

3. The superior court did not err in sentencing Espinoza for possession of marijuana with intent to distribute for lack of evidence of intent to distribute. It is uncontroverted in the evidence that twenty-five pounds of usable marijuana, packaged in three plastic bags, was seized from the van driven by Espinoza. We adhere to the holding in Miller v. State: “20 pounds of usable marijuana[,] . . . some of which was already bagged, is inconsistent with the simple possession of marijuana for personal use.”

Case Nos. A00A1334 and A00A1335

4. Defendants contend that the superior court erred in denying their motions to suppress the search of the van. We disagree.

The evidence shows that defendants rode as passengers in vehicles which they did not own — Espinoza rode as the passenger in the Taurus owned by Hernandez and driven by Albarran; Vasquez rode as the passenger in the van owned by Espinoza. “Where the owner of an automobile relinquishes actual possession to a third party, the owner thereby abandons any expectation of privacy in the automobile, and he therefore lacks standing to contest the legality of the search and seizure of the vehicle.”

Consequently, defendants lack standing to challenge the search and seizure in the cases sub judice. Even were this not the case and notwithstanding defendants’ arguments to the contrary, there was evidence which established the legality of the search and seizure as based upon a traffic stop supported by articulable suspicion and valid consent given thereafter. In this regard, the evidence showed that Special Agent Dalman ordered the stop upon the reasonable suspicion that the co-defendants were involved in drug trafficking. He observed defendants in the company of Arzate, a man DEA suspected to be a drug trafficker; Arzate had appeared at the Lilburn residence where Special Agent Dalman had earlier arrested an individual for drug trafficking and seized marijuana; the pickup truck Arzate drove was a vehicle registered to a man DEA knew to have been arrested for drug trafficking; and, on leaving the Lilburn residence, Arzate and defendants proceeded in a convoy, a technique Special Agent Dalman testified was consistent with drug trafficking. It is settled that the driver of a vehicle may consent to a search thereof, and there is here evidence that Hernandez validly did so without evidencing fear or apprehension upon Officer Llorens’s request for consent given in Spanish with no gun drawn.

“In reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the court’s decision. [Cit.]” Such a basis here exists. Under all of these circumstances, the superior court properly denied defendants’ motions to suppress in the cases sub judice.

5. Finally, defendants challenge the sufficiency of the evidence contending: (a) that the superior court erred in denying their motions for directed verdict at the close of the evidence, and (b) that the evidence was insufficient to support the verdict.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the co-defendants] no longer enjoy[ ] 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 the [co-defendants were] 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.

Sufficient circumstantial evidence was presented at trial to establish that the co-defendants had at least joint constructive possession of the marijuana. Although mere spatial proximity is not enough to show such intent to exercise control, circumstantial evidence sufficiently proving that the co-defendants were parties to the crime is sufficient to show joint constructive possession of the drugs. In the cases sub judice, the evidence shows that Espinoza and Vasquez lived together in North Carolina and traveled together to Lilburn for the purpose of procuring contraband and returning it to North Carolina. To this end, they undertook substantial steps to bring the contraband home safely, electing to travel by convoy on the return trip and to ride “shotgun” as passengers in vehicles they did not own, to provide both security and deception to their illicit endeavor. That 25 pounds of marijuana was seized from the van, in the totality of the circumstances, was sufficient evidence upon which the jury might reasonably have inferred that the co-defendants had at least joint constructive possession of marijuana with the intent to distribute.

Decided May 18, 2000.

Charles A. Tingle, for appellant (case no. A00A1334).

Robert Greenwald, for appellant (case no. A00A1335).

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

Thus, we conclude that the superior court did not err in denying the co-defendants’ motions for directed verdict and that a rational trier of fact could have found each of the co-defendants guilty of possession of marijuana with the intent to distribute beyond a reasonable doubt.

Judgments affirmed.

Pope, P. J., and Miller, J., concur.

       In February 1999, an accusation was filed against the co-defendants in the cases sub judice and two others: Cesar Hernandez and Juan Albarran. Hernandez entered a guilty plea upon his arraignment in March 1999. A jury returned guilty verdicts against the co-defendants herein and Albarran later that month.

        Helton v. State, 235 Ga. App. 22, 23 (1) (508 SE2d 697).

       Id., citing Simmons v. State, 266 Ga. 223, 226 (2) (c) (466 SE2d 205); Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434).

        Jackson v. State, 228 Ga. App. 877, 878 (1) (492 SE2d 897).

        Sharpe v. Dept. of Transp., 270 Ga. 101, 103 (505 SE2d 473).

       155 Ga. App. 399 (270 SE2d 822).

       Id. at 401 (II).

       (Emphasis supplied.) Prothro v. State, 186 Ga. App. 836, 838 (3) (368 SE2d 793), citing United States v. Dyar, 574 F2d 1385, 1390 (6) (5th Cir.), cert. denied, 439 U. S. 982 (99 SC 570, 58 LE2d 653); see also Gresham v. State, 204 Ga. App. 540, 541 (1) (420 SE2d 71).

        Carter v. State, 229 Ga. App. 417, 420 (494 SE2d 108) (“An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.”) (citations and punctuation omitted).

        Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219), citing United States v. Matlock, 415 U. S. 164, 171 (94 SC 988, 39 LE2d 242, 249-250).

        Harris v. State, 239 Ga. App. 537, 540 (2) (b) (521 SE2d 462) (“Having effected a valid traffic stop, the officers were authorized to request consent to search the automobile.” [Cit.]).

        State v. Dills, 237 Ga. App. 165, 168 (514 SE2d 917).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560).

       (Citations and punctuation omitted.) Lowery v. State, 242 Ga. App. 375-376 (530 SE2d 22).

        Moody v. State, 232 Ga. App. 499, 501 (1) (502 SE2d 323) (“A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. Such intent to exercise control may be inferred by the totality of the circumstances.”) (citations and punctuation omitted).

        Leonard v. State, 228 Ga. App. 792, 796 (3) (492 SE2d 747), citing Walden v. State, 196 Ga. App. 844 (397 SE2d 182).

       Id.

        Moody v. State, 232 Ga. App. at 501-502 (1), supra (whether circumstances sufficient in a given case to exclude every reasonable hypothesis except guilt of accused is primarily a jury question).

        Miller v. State, 155 Ga. App. at 401 (II), supra.

        Lowery v. State, 242 Ga. App. at 375-376, supra; Allen v. State, 191 Ga. App. 623, 625 (2) (382 SE2d 690).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A2268.
    WOOTEN v. THE STATE.
    (533 SE2d 441)
   Blackburn, Presiding Judge.

Following a jury trial, Kenneth R. Wooten appeals his conviction of four counts of child molestation. Wooten contends that the trial court erred (1) in its assignment of cases in violation of Uniform Superior Court Rule (USCR) 3.1, (2) by allowing the admission of the victim’s prior consistent statements prior to her testimony, and (3) by removing a juror during the third day of deliberations.

1. In Wooten’s initial appeal, he contended that the trial court erred in denying his motion for legal case assignment and in using a party litigant to assign cases in violation of USCR 3.1. This Court remanded the case for a hearing to establish the facts surrounding the Lookout Mountain Judicial Circuit’s case assignment system. Upon redocketing in this Court, the case was transferred to the Supreme Court of Georgia because it raised issues regarding the maintenance of a state court system which is within the inherent jurisdictional power of that Court. After such transfer, the Supreme Court decided Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999), in which it addressed the issue presented herein. Having decided the issue, the Supreme Court remanded the present case for our consideration in light of its opinion in Cuzzort.

In Cuzzort, the Supreme Court noted that the “precise method of assigning and calendaring cases . . . must comport with the notion of due process ... as well as the spirit and purpose of the uniform rules and applicable statutes.” Id. at 464. It then determined that because the district attorney makes the case assignments to the judges and sets the trial calendar, such system violated USCR 3.1 and abused the inherent discretion of OCGA § 17-8-1. Despite the Court’s finding that the district attorney conducted himself in a professional and unbiased manner, the Court held that it could not “uphold a system of case assignment and calendaring that allows a party to assign a case and then randomly call the case for trial.” Id. at 465 (3). The Court determined that “[sjuch a system fail[ed] to comply with the intent and purpose of the uniform rules and applicable statutes, and thus fail[ed] to serve the administration of justice.” Id.

In the present case, the parties stipulated, in pertinent part, that the district attorney’s office: (1) promulgated the calendar for the criminal court; (2) selected which cases to start the week within each courtroom; (3) selected Wooten’s case , for trial before Judge Wood; and (4) called the Wooten case to proceed. Under these circumstances, we are bound to follow our Supreme Court’s precedent. In light of the Supreme Court’s determination that such a system failed to serve the administration of justice, we must reverse Wooten’s convictions. Wooten had a right to a fair trial. We cannot say that his trial, administered under a system so impugned by the Supreme Court, was fair.

Decided April 10, 2000

Reconsideration denied May 19, 2000

Cook & Connelly, Bobby Lee Cook, Todd M. Johnson, for appellant.

Herbert E. Franklin, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

Although the State argues that no harm has been shown in this case, a reversal is still required. Initially, we note that this is the type of case where the harm is inherent in the system, although specific manifestations of harm may not be perceived. This is so because the harm arises from a breach of trust in the system of justice and from inherent human prejudices which are not always recognized even by those holding them. “[CJonvictions cannot be brought about by methods that offend ‘a sense of justice.’ ” Rochin v. California, 342 U. S. 165, 173 (72 SC 205, 96 LE 183) (1952).

2. Wooten’s argument that the child hearsay statute allows a statement made by a child to be admissible but does not allow more than one such statement to be introduced was decided adversely to him in Patterson v. State, 237 Ga. App. 80 (1) (514 SE2d 873) (1999). See also OCGA § 24-3-16. Therefore, under the facts of this case, the trial court did not err in allowing the introduction of the victim’s prior consistent statements before she testified.

3. Wooten’s final enumeration involving the removal of a juror is rendered moot by our decision in Division 1.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

       USCR 3.1 provides, in pertinent part:
      3.1 Method of Assignment. In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases.


author: Phipps, Judge.

text:
    A00A0950.
    VEASEY v. THE STATE.
    (534 SE2d 129)
   Phipps, Judge.

In 1993, Angelo Veasey was convicted of the felony theft by shoplifting of two black scarf valances from a Linens ’N Things retail store. He was sentenced as a recidivist based on three prior felony convictions, including two for theft by shoplifting. This is his out-of-time appeal.

The State’s evidence showed that Veasey and his co-defendant, Antonio Whitt, appeared at the store seeking to exchange ticketed merchandise for which they had no receipt. They shopped for thirty minutes to one hour. Store manager Mitchell was working in the front area of the store near the cash registers. Her suspicions were aroused because both Veasey and Whitt were wearing long coats on a very warm day, they refused shopping assistance offered by store personnel, and the merchandise they were exchanging came from a store located about 60 miles away. When asked to describe the layout of the store, Mitchell testified that there is a main aisle where draperies are located and a side aisle where comforters can be found.

Assistant store manager Wilkes testified that she was in the comforter aisle and Veasey and Whitt were in the drapery aisle about 20 feet away, when she observed Whitt holding the valances. She walked in his direction. Whitt moved very quickly down the aisle as he saw her coming, and Veasey moved between Wilkes and Whitt, facing Whitt’s back. Although Veasey thereby partially obstructed Wilkes’s view of Whitt, she could tell that Whitt was moving his coat back and forth. As Wilkes approached Veasey and Whitt, they turned and walked down the aisle directly to the front of the store. The two valances were missing from the aisle. As Whitt stood at the register, Mitchell, who had been apprised of Whitt’s suspicious activities by other store employees, intentionally brushed up against his back and felt something under his coat which she believed to be the two valances. After Veasey and Whitt left the store, Mitchell and Wilkes observed the tag number of the car Veasey was driving and called 911. Police stopped the car and found the valances under the passenger seat. At trial, Veasey denied seeing Whitt conceal any merchandise while at the store.

1. Veasey challenges the sufficiency of the evidence to support his conviction.

In pertinent part, OCGA § 16-8-14 (a) (1) states that:

[a] person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same ...[,] [c] onceáis . . . the goods or merchandise of any store or retail establishment.

“A person who intentionally aids and abets in the commission of shoplifting is a party thereto and may be convicted of shoplifting. [Cit.]”

While mere presence at the scene of a crime is not enough evidence to sustain a conviction, conduct surrounding the events is a circumstance from which criminal intent can be inferred. The evidence supports findings that Whitt concealed the valances inside his coat to appropriate them to his own use without paying for them, that Veasey necessarily would have observed Whitt’s actions in the position he occupied, and that Veasey put himself in that position to obstruct the assistant store manager’s view of Whitt. Viewed in a light most favorable to support the verdict, the evidence authorized a rational trier of fact to conclude beyond a reasonable doubt that Veasey acted in concert with Whitt to commit theft by shoplifting.

2. Veasey contends that the trial court abused its discretion by sua sponte prohibiting defense counsel from using a diagram to aid in his cross-examination of Mitchell.

At the start of his cross-examination of Mitchell, Veasey’s attorney asked her to draw a diagram showing the internal layout of the store. When the court asked how the diagram would be relevant, counsel responded that he was attempting to establish that Mitchell did not see, and could not have seen, Veasey shoplifting. The court instructed counsel to proceed by questioning the witness. For various reasons, we find no abuse of discretion.

To begin, Mitchell never claimed that she saw Veasey shoplift or aid Whitt in shoplifting. Consequently, whether Veasey was within Mitchell’s view was not material. Moreover, through questioning, counsel elicited testimony from Mitchell showing the positioning and height of fixtures and shelves located throughout the store, as well as the visibility between various areas of the store. It does not appear that counsel’s cross-examination of the witness was hampered by the limitation imposed on his mode of examination.

3. Veasey’s contention that the court made an improper comment on the evidence in the colloquy between the court and counsel concerning use of the diagram has been waived, as Veasey’s counsel did not object to the comment at trial. Although Whitt’s counsel raised an objection, Veasey’s did not join in it. Moreover, this court determined in Whitt v. State that the comment did not constitute reversible error.

4. Veasey contends that the trial court erred in overruling his objection to unresponsive testimony by the arresting officer that Veasey’s driver’s license had been suspended.

Decided April 19, 2000

Reconsideration denied May 19, 2000.

Ronald E. Smith, for appellant.

Angelo Veasey, pro se.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Whitt’s counsel objected to this testimony on the ground that it placed Veasey’s character in evidence, and Veasey’s counsel joined in this objection. As driving with a suspended license is a misdemeanor traffic violation, the officer’s testimony did inject Veasey’s character in issue. But “[i]t is well settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those which establish the commission of another criminal offense and bring into question his character. [Cits.]” Because Veasey was driving with a suspended license when arrested, proof of that offense was proper.

Judgment affirmed.

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

       Whitt’s conviction of the crime charged was affirmed in Whitt v. State, 215 Ga. App. 704 (452 SE2d 125) (1994).

        Brown v. State, 228 Ga. App. 281, 282 (1) (491 SE2d 488) (1997).

        Adamson v. State, 238 Ga. App. 105, 106 (2) (516 SE2d 310) (1999).

         See, e.g., Jones v. State, 190 Ga. App. 416, 418 (3) (379 SE2d 189) (1989).

       See Whitt v. State, supra, 215 Ga. App. at 709 (4).

       OCGA § 40-5-121 (a).

       See Chapman v. State, 202 Ga. App. 267, 268 (2) (414 SE2d 240) (1991).

       (Punctuation omitted.) Conyers v. State, 234 Ga. App. 830, 832 (1) (507 SE2d 842) (1998).


author: Andrews, Presiding Judge.

text:
    A00A0035.
    CECIL T. ALLGOOD, INC. v. STARK PROPERTIES, INC.
    (534 SE2d 858)
   Andrews, Presiding Judge.

Cecil T. Allgood, Inc. (Allgood) sued Stark Properties, Inc. (Stark) for conversion of its corporate assets claiming that Stark wrongfully refused to return the assets after the parties mutually terminated a contract transferring the assets. Allgood voluntarily dismissed the suit under OCGA § 9-11-41 (a), then refiled it after the expiration of the statute of limitation under the renewal provisions of OCGA § 9-2-61 (a). The trial court dismissed the second suit finding that the trial court in the first suit directed a verdict in favor of Stark and that this precluded Allgood’s voluntary dismissal and renewal of the suit. All-good appeals from this ruling and from the trial court’s denial of its motion for partial summary judgment on the conversion claim.

1. In November 1992, the trial court in the first suit orally directed a verdict in favor of Stark and dispersed the jury. The ruling was not reduced to writing, and no judgment was ever entered in the case. Over two years later on June 5, 1995, the trial court informed the parties by letter that it had reconsidered its grant of a directed verdict, that it now concluded entry of a directed verdict was not appropriate, and that it was granting the parties the right to a new trial. Allgood subsequently voluntarily dismissed the first suit on June 6, 1997, pursuant to OCGA § 9-11-41 (a), and filed the second suit under the renewal provisions of OCGA § 9-2-61 (a) on November 25, 1997.

An oral announcement of a ruling terminating the litigation will preclude voluntary dismissal under OCGA § 9-11-41 (a) even though the ruling is not reduced to writing. Jones v. Burton, 238 Ga. 394, 395-396 (233 SE2d 367) (1977); Leary v. Julian, 225 Ga. App. 472, 473 (484 SE2d 75) (1997). But this rule did not apply in the present case because, prior to the voluntary dismissal, the trial court reconsidered and vacated its oral grant of a directed verdict without entering a final judgment.

We conclude that the first trial court’s actions were analogous to the grant of a mistrial requiring a second trial, with the practical effect that the case was still pending, and the parties were returned to a pretrial status. Delta Air Lines v. Van Diviere, 192 Ga. App. 207, 208 (384 SE2d 272) (1989). Accordingly, Allgood’s voluntary dismissal of the first suit was effective under OCGA § 9-11-41 (a), and the second suit filed within six months of the dismissal was a timely renewal under OCGA § 9-2-61 (a). Id. The trial court erred by dismissing Allgood’s renewed suit.

2. Allgood contends the trial court also erred by denying its motion for partial summary judgment on the conversion claim. All-good argued in the motion that there is no factual dispute that Stark converted some of the assets at issue. The affidavit filed by Stark in opposition to partial summary judgment was sufficient to create a factual issue as to these assets. The trial court correctly denied All-good’s motion for partial summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed in part and reversed in part.

Ruffin and Ellington, JJ, concur.

Decided May 19, 2000.

Kerry S. Doolittle, for appellant.

Ham, Jenkins, Wilson & Wangerin, Phillip B. Ham, for appellee.

       Although Allgood filed a notice of appeal from the trial court’s grant of the directed verdict, this was not an appealable judgment, so the attempted appeal did not divest the trial court of jurisdiction. Boatright v. Sunshine Toyota, 177 Ga. App. 332 (339 SE2d 275) (1985).

       Despite the passage of over two years after orally granting the directed verdict, the trial court had continuing jurisdiction to consider whether to enter a final judgment on the ruling. Jefferson v. Ross, 250 Ga. 817, 818 (301 SE2d 268) (1983).


text:
    A00A0300.
    RABENSTEIN v. CANNIZZO.
    (534 SE2d 847)
   Andrews, Presiding Judge.

While driving an automobile insured by Allstate Insurance Company, Jill Cannizzo collided with an automobile driven by Jessie Rabenstein. Rabenstein sued Cannizzo for personal injury caused by the October 3,1995 collision, and Cannizzo moved for summary judgment alleging that the claim against her was discharged by accord and satisfaction when, over a year prior to the suit, Rabenstein accepted and cashed a check from Allstate in the amount of $9,145 which contained a provision on the front of the check stating: “Final Settlement Of Any And All Claims Arising From Bodily Injury Caused By Accident On 10/03/95.” The trial court granted Cannizzo’s motion for summary judgment. We affirm the trial court because the evidence established, as a matter of law, that the claim was discharged by accord and satisfaction when Rabenstein cashed the check containing the final settlement provision and retained the settlement proceeds.

The delivery and acceptance of a check stating on its face that it constitutes final settlement of a claim, whether the amount of the claim is established or uncertain, amount to an accord and satisfaction which discharges the claim. Hardigree v. McMichael, 181 Ga. App. 583 (353 SE2d 78) (1987); Wade v. Crannis, 209 Ga. App. 501, 503 (433 SE2d 669) (1993). In support of her motion for summary judgment on this basis, Cannizzo produced deposition testimony from Betty Strott, the Allstate claim representative who handled Rabenstein’s claim against its insured. Although Strott had no independent memory of specific aspects of Rabenstein’s claim among the thousands of claims she handled for Allstate, she identified records kept in the normal course of business and procedures she habitually followed in the routine course of handling claims, including Rabenstein’s claim. Based on the records related to Rabenstein’s claim and the procedures she followed in that claim, Strott testified that she and Rabenstein settled the claim for $9,145, that she explained to Rabenstein that this was a final settlement of the claim, and that she sent Rabenstein a check in that amount which contained a provision on its face stating: “Final Settlement Of Any And All Claims Arising From Bodily Injury Caused By Accident On 10/03/95.” Strott also identified the cashed settlement check bearing her signature, the final settlement provision, and Rabenstein’s endorsement and testified that she had an independent memory that she had handled a claim by Rabenstein and that the claim had settled.

Rabenstein admitted in deposition testimony that she received the check from Allstate in the amount of $9,145, that she looked at the check, and that she deposited the proceeds from the check into her bank account. She testified that she did not sign a release document that was sent along with the check. When asked if she read the front of the check containing the final settlement provision, Rabenstein responded, “Well, I don’t recall seeing [the settlement provision] on it, but at that point I needed the money.” She further testified that, although she could not recall Strott telling her that the check was being sent to settle her claim, she could not testify that Strott did not tell her the check was to settle the claim. Accordingly, Rabenstein’s deposition testimony shows that she did not deny she was told the check was to settle her claim, nor did she deny that the check contained the settlement provision — she said she could not recall.

About three months after giving her deposition testimony, Rabenstein gave a sworn affidavit in opposition to Cannizzo’s motion for summary judgment. In the affidavit, Rabenstein stated that she told Strott she would accept $9,145, not as settlement of her claim, but as payment for medical expenses she had incurred as of that date, and that Strott told her Allstate would pay her $9,145 for that purpose. Rabenstein further stated in her affidavit as follows:

In my deposition, I testified that I did not recall Ms. Strott advising me that the check for $9,145.00 would be settling all claims arising from the Collision. However, I do specifically recall that Ms. Strott did not inform me that the check for $9,145.00 was to represent a final settlement of all claims arising from the Collision. ... At all times, I have understood that the check issued to me for $9,145.00 represented only payments by Allstate for expenses surrounding my medical treatment up to June 14, 1996. ... I did examine the check prior to signing it. Upon further reflection, I did not see any language of release or final settlement on the check.

The affidavit given by Rabenstein after her deposition contradicts her deposition testimony in which she stated that she could not recall if Strott told her the check was being sent to settle her claim and could not recall if the check contained the settlement provision. In considering a motion for summary judgment, all the evidence is normally construed in favor of the nonmoving party, but testimony by the nonmoving party which contradicts other testimony given by the nonmoving party will be construed against that party, unless a reasonable explanation for the contradiction is offered. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). In the absence of any reasonable explanation by Rabenstein for the contradictory testimony given in her affidavit, application of the contradictory testimony rule in Prophecy requires elimination of the portions of this testimony favorable to Rabenstein’s claim. Id. at 28.

Considering the evidence as it stands after eliminating such testimony, the record shows Strott’s testimony that Rabenstein agreed to settle the claim for $9,145 and that she sent Rabenstein a check in that amount with the final settlement language on the face of the check. Although Strott could not remember the details of handling Rabenstein’s claim, she identified business records showing that the claim was settled for $9,145 (OCGA § 24-3-14) and testified that she acted in accordance with fixed procedures habitually followed on settled claims by sending Rabenstein a check in the settlement amount containing the final settlement provision. Fletcher Emerson Mgmt. Co. v. Davis, 134 Ga. App. 699, 701 (215 SE2d 725) (1975). Strott also identified the cashed settlement check bearing her signature, the final settlement language, and Rabenstein’s endorsement and remembered handling a claim by Rabenstein and that the claim had settled.

This evidence was sufficient to establish a prima facie case in support of Cannizzo’s affirmative defense of accord and satisfaction and to shift the burden of production to Rabenstein to produce evidence setting forth specific facts rebutting this defense and establishing a genuine issue for trial. Smith v. Steinemann Dev. Co., 230 Ga. App. 635, 637 (497 SE2d 255) (1998); Lewis v. Smith, 238 Ga. App. 6, 9 (517 SE2d 538) (1999). Rabenstein’s deposition testimony in which she admitted receiving and cashing the check for $9,145 and stated that she could not recall the settlement provision on the check or being told the check was for settlement failed to set forth specific facts rebutting the defense of accord and satisfaction.

Accordingly, the trial court properly granted summary judgment in favor of Cannizzo. Wade, 209 Ga. App. at 503-504.

Decided May 19, 2000.

Weinstock & Scavo, Michael Weinstock, John B. Levy, Kerry A. Lunz, for appellant.

Chambers, Mabry, McClelland & Brooks, Charles G. Ragsdale, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       It is undisputed that the property damage portion of Rabenstein’s claim had already been settled.

       Since we find Strott’s deposition testimony supported the grant of summary judgment, we need not address Rabenstein’s claim that an affidavit given by Strott was insufficient. There is no merit to Rabenstein’s additional claim that the trial court should have addressed the issue of fraud. Rabenstein did not plead fraud, and in any event, there was no evidence to support a claim of fraud.


text:
    A00A0334.
    BENDOCK et al. v. TRATON CORPORATION OF COBB et al.
    (534 SE2d 849)
   Andrews, Presiding Judge.

Scott and Tina Bendock appeal pro se from the trial court’s grant of summary judgment to Traton Corporation. The Bendocks refused to close on the house Traton built for them and sued Traton for the return of their earnest money and other damages. Because we conclude there is an issue of fact as to whether Traton unjustifiably breached its contract with the Bendocks, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

This case arose when the Bendocks signed a “New Construction Purchase and Sale Agreement” with Traton for construction of a house on a lot the Bendocks had chosen in a new subdivision. The Bendocks stated that they chose this lot because it was level and they wanted a play area for their children. After Traton began grading the lot, the Bendocks were upset because the grading was changing the topography of the lot. According to the Bendocks, Traton agreed to repair and minimize the damage to the lot if the Bendocks would advance them $810 that was not due until closing. The Bendocks agreed.

But, when it came time to close on the house, the Bendocks refused, claiming the lot had been materially altered and the alteration had not been corrected as promised. The Bendocks sued when Traton retained their earnest money.

Although the Bendocks raised and argued several claims in the trial court, their only argument on appeal is that because Traton did not regrade the lot to their satisfaction, they were justified in not closing on the house and are entitled to the return of their down payment. The Bendocks’ brief on appeal is rather difficult to follow, however, and in the interest of clarity, we must address other issues not properly raised but pertinent to the case.

1. To the extent the Bendocks are claiming fraud or breach of contract in the initial grading prior to construction, these claims fail because the Bendocks failed to either rescind the contract and sue in tort for fraud or affirm the contract and sue for breach. Cotton v. Bank South, 231 Ga. App. 812, 813 (499 SE2d 129) (1998). In any event, this issue is not before us because, as the Bendocks state in their brief on appeal, “the dispute was resolved.”

Contrary to Traton’s argument below and on appeal, the Bendocks and Traton could make a new agreement and disregard the provision in the original contract requiring that no changes will be allowed unless in writing. Bailey v. Martin, 101 Ga. App. 63, 67 (112 SE2d 807) (1960). The requirements are that this must be a new agreement regarding the same subject matter and must be supported by consideration. Id. See also Consolidated Fed. Corp. v. Cain, 195 Ga. App. 671, 672 (394 SE2d 605) (1990) (despite the requirement that any changes or additions must be in writing, where buyers orally instructed builder to make changes and builder agreed, the trier of fact was authorized to find a waiver of this requirement).

Here, viewing the evidence and making all reasonable inferences in favor of the Bendocks, there was evidence of a new agreement in which the Bendocks paid Traton $810 that ordinarily would not have been due until closing, and Traton promised to regrade the lot “within reasonable limits.”

2. The next issue is the Bendocks’ refusal to close because the house was not substantially complete and they were not satisfied with the way the lot was regraded. On appeal, the Bendocks do not argue any evidence or law on the issue of whether the house itself was completed to their satisfaction, and therefore, this claim is abandoned.

There is, however, an issue of fact remaining as to whether Traton breached its agreement with the Bendocks to regrade the lot to their satisfaction. Scott Bendock’s affidavit states that the lot was not changed to suit their specifications, and the defendants told him on the day before closing that they would not repair the contour of the lot.

Decided May 19, 2000.

R. Scott Bendock, pro se.

Tina C. Bendock, pro se.

Talley & Darden, David R Darden, for appellees.

The house on a lot without a yard in which their children can play was of no use to the Bendocks and was not what they bargained for, either in the initial agreement or the later agreement. Therefore, we cannot say as a matter of law that the Bendocks were required to either close on the house without a suitable yard or forfeit their earnest money. The trial court erred in granting Traton’s motion for summary judgment.

Judgment reversed.

Ruffin and Ellington, JJ, concur.


author: Miller, Judge.

text:
    A00A0384.
    HEWETT v. THE STATE.
    (534 SE2d 867)
   Miller, Judge.

A jury found Gene Hewett, Jr. guilty under Count 1 of driving under the influence to the extent it was less safe for him to drive and guilty under Count 2 of driving a moving vehicle while his alcohol concentration was more than 0.10 grams (a “per se” violation) using the same factual scenario. Observing that the two counts were in the alternative and were to be sentenced as though they were one count, the judge gave Hewett a single sentence. The judge failed to identify which count merged into the other or to identify on which count he was sentencing Hewett.

Where two DUI charges are based on the same conduct, the evidence will not support convictions of two separate offenses. Even though the trial court enters only a single sentence, if that sentence applies to both DUI counts of the accusation, by definition the court has convicted defendant of two counts of DUI. Here the court noted that it was giving Hewett a single sentence on the two counts, because the court considered the counts alternative and was treating them as though they were one count. The court did not merge one count into the other nor indicate that the sentence applied only to one count. Thus, the sentence applied to both counts and was improper.

Decided May 19, 2000.

Jackie G. Patterson, Yasma Patterson, for appellant.

L. Jack Kirby, Solicitor, for appellee.

The question then becomes what the remedy should be. Though some prior decisions have remanded the case for resentencing on only one count of the DUI offense, these cases are not applicable where “it is apparent from the transcript that for purposes of sentencing the trial judge considered the charges alternative and sentenced appellant for only one offense.” This is the case here, and therefore, we follow those cases that simply vacate the “per se” DUI conviction and affirm the “less safe” DUI conviction, with no remand. Accordingly, we affirm the “less safe” conviction under Count 1 and vacate the “per se” conviction under Count 2. No remand is necessary.

Judgment affirmed as to Count 1. Judgment vacated as to Count 2.

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

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

        Sanders v. State, 176 Ga. App. 869, 870 (4) (338 SE2d 5) (1985).

       Id. at 871.

       See Bache v. State, 208 Ga. App. 591, 593 (431 SE2d 412) (1993); Mattarochia v. State, 200 Ga. App. 681, 686 (7) (409 SE2d 546) (1991); Sanders, supra.

        Hoffman v. State, 208 Ga. App. 574, 576 (2) (430 SE2d 886) (1993); see Page v. State, 202 Ga. App. 828, 830-831 (4) (415 SE2d 487) (1992).

       See Hoffman, supra; Page, supra; Fudge v. State, 184 Ga. App. 590, 592-593 (6) (362 SE2d 147) (1987) (physical precedent only); cf. Ellerbee v. State, 215 Ga. App. 102, 103 (1) (449 SE2d 874) (1994).


text:
    A00A0515.
    FISHER v. THE STATE.
    (534 SE2d 845)
   Miller, Judge.

In the State Court of Fulton County, Robert Fisher was charged by accusation with two counts of DUI and one count of operating a motor vehicle with no license plate. On November 10, 1998, Fisher filed a demand for speedy trial in accordance with OCGA § 17-7-170 (a), and on December 2, he waived formal arraignment and pled not guilty. On December 28, 1998, the trial court issued a notice of trial for 9:00 a.m. on an unspecified date. The court subsequently set Fisher’s case for trial on February 25, 1999.

On February 17, Fisher’s counsel sent a notice of possible calendar conflicts. The notice explained that counsel was scheduled to try a criminal jury case on Monday, February 22, in the Superior Court of DeKalb County, and another criminal jury case scheduled for February 24, one day prior to Fisher’s, in the City Court of Atlanta. Counsel intended to “proceed with each case in the order listed unless directed by the Courts.”

When Fisher’s case was called on February 25, Fisher appeared but his counsel did not, and the court continued the case until March 30. On April 2, Fisher moved for discharge and acquittal based on the State’s failure to try him within the two terms of his speedy trial demand. The trial court denied the motion, and Fisher appeals.

OCGA § 17-7-170 (a) provides that:

Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular term thereafter. . . .

And OCGA § 17-7-170 (b) adds that if the accused is not tried when the demand is made or the next succeeding regular term, provided that there are juries during both terms impaneled and qualified to try the case, “he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.”

At the hearing on the motion for discharge and acquittal, Fisher’s counsel explained that he tried a case in the City Court of Atlanta on February 24 and that the case was not concluded until the afternoon of February 25, by which time Fisher’s case had already been reset. Counsel also stated that at the conclusion of that case, he was not released but was requested to try another case in the same court. The assigned case was not concluded until February 26.

Fisher contends that his counsel’s failure to appear due to a calendar conflict cannot result in a waiver of his speedy trial demand. A defendant may waive his right to an automatic discharge under a demand for a speedy trial by some action on his part or on the part of his counsel, such as a request for a continuance of the case. And “[a] waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term outside the period allowed by his demand.” Fisher’s relianee on McKnight v. State and Birts v. State is misplaced as those cases are factually distinguishable from the present case. Here, to accommodate Fisher’s counsel’s written request for leave of absence for the week prior to trial, the case was scheduled for the following week.

Decided May 19, 2000

Morriss, Lober & Dobson, Bruce F. Morriss, Daniel Shim, for appellant.

Carmen Smith, Solicitor, Cynthia G. Strong, Phillip Jackson, Assistant Solicitors, for appellee.

Counsel chose to try a case the day before Fisher’s trial and should have known that it might interfere with his obligation to appear the following day. In our view, by filing the notice of conflict, Fisher’s counsel effectively consented to a delay of the trial if Fisher’s case were not reached due to the conflict. Even if Fisher’s case were not called until after the February 24 case was finally concluded on February 25, when the city court requested him to try another case, counsel should have objected and explained that if he did not appear at Fisher’s scheduled trial before the Fulton State Court, he would risk waiving his client’s speedy trial demand.

Fisher’s counsel proposed no resolution of the potential conflict in his notice or prior to trial, and we cannot allow the extreme remedy afforded by OCGA § 17-7-170 (a) to result from defense counsel’s busy trial schedule. Fisher’s counsel failed to appear due to noticed conflicts, and Fisher acquiesced in the continuance of the case outside the period allowed by the demand for speedy trial. Thus, the trial court correctly denied Fisher’s motion for discharge and acquittal.

Judgment affirmed.

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

       The terms of court begin the first Monday in January, March, May, July, September, and November. OCGA § 15-6-3 (3).

        Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324) (1975); see State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984).

       (Citations and punctuation omitted.) State v. Davis, 243 Ga. App. 867, 868 (534 SE2d 159) (2000).

       215 Ga. App. 899 (453 SE2d 38) (1994) (whole court), aff'd sub nom. State v. McKnight, 265 Ga. 701 (462 SE2d 142) (1995).

       192 Ga. App. 476 (385 SE2d 120) (1989).

       In McKnight, counsel did not appear due to a miscommunication causing him to reasonably believe that he was “on call.” McKnight, supra, 215 Ga. App. at 905. In Birts, the State first scheduled that defendant’s case during the two weeks that her counsel had been granted a leave of absence, then rescheduled it (plus three others represented by the same counsel) the following term when counsel also had two days leave. Birts, supra, 192 Ga. App. at 477.


text:
    A00A0600.
    DOLLAR v. NATIONSBANK OF GEORGIA, N.A.
    (534 SE2d 851)
   Andrews, Presiding Judge.

Janice L. Dollar’s residence sustained water damage during widespread flooding which occurred in the Albany area in July 1994. Dollar had maintained a flood insurance policy on the residence since 1973 as a condition of the existing first mortgage on the residence with Albany First Federal Savings & Loan, but she allowed the flood insurance to lapse in 1993 prior to the flood. In a suit against NationsBank of Georgia, N.A. for the uninsured damage, Dollar alleged that, when she obtained a second mortgage on the residence from NationsBank in March 1993, NationsBank told her the residence was not in a flood hazard zone and did not require her to maintain flood insurance on the residence as a condition of the second mortgage. Dollar alleges that this representation was incorrect — that her residence was in a flood hazard zone — and that she relied on the incorrect information provided by NationsBank when she allowed the flood insurance required by her first mortgage to lapse.

In granting summary judgment to NationsBank, the trial court concluded that, even if NationsBank incorrectly informed Dollar that her residence was not in a flood hazard zone, it was not liable for any damages resulting from Dollar’s decision to rely on the incorrect information and to allow the existing flood insurance to lapse. Because we conclude that NationsBank had no duty to provide accurate flood hazard information to Dollar and that Dollar did not justifiably rely on NationsBank’s representations, we affirm.

Dollar deposed that, during the second mortgage closing, she asked NationsBank’s representative Franklin if the bank was going to require that she have flood insurance.

Q . . . And what did Mr. Franklin say to you when you asked him about this flood insurance?
A He said that he, by checking the map and looking at the flood hazards on the map that he, that I was not in a flood hazard zone. That I was not going to be required to have flood insurance to secure the loan.
Q Mr. Franklin told you that you would not be required to purchase flood hazard insurance to secure the Nations-Bank’s loan, is that right?
A He said I did not have to have the flood insurance.
Q To get the loan, correct? . . .
A Yes.
Q All right. What else, if anything, did Mr. Franklin tell you concerning flood insurance?
A He also mentioned that it looked to him that, that I was not in the flood hazard zone.

Franklin deposed that NationsBank’s interest in determining whether or not a residence securing a mortgage is located in a flood hazard zone is to allow the bank to protect its collateral by requiring flood insurance on residences subject to potential flood damage. Evidence showed that, as part of the second mortgage closing on Dollar’s residence, Albany Real Estate Services, Inc. performed an appraisal of the residence for NationsBank, which referred to an attached map and noted that whether or not the residence was in a flood hazard zone was “too close to call.”

The record shows that NationsBank and Dollar were involved in an arm’s length mortgage transaction. Under these circumstances, there was no confidential relationship, and Dollar had a duty to exercise ordinary diligence to protect her own interest. Lothridge v. First Nat. Bank &c., 217 Ga. App. 711, 715 (458 SE2d 887) (1995); First Union Nat. Bank &c. v. Gurley, 208 Ga. App. 647, 648-649 (431 SE2d 379) (1993). NationsBank’s primary duty was to protect its interest in the security of the mortgage. Lothridge, 217 Ga. App. at 715.

Accordingly, NationsBank’s determination as to whether or not Dollar’s residence was in a flood hazard zone was made, not for Dollar’s benefit, but for the purpose of protecting the bank’s interest in its collateral. See Butts v. Atlanta Fed. Sav. &c., 152 Ga. App. 40, 42-43 (262 SE2d 230) (1979); Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989). It follows that NationsBank had no duty to Dollar to accurately make that determination, and Dollar was not entitled to rely on NationsBank’s representations. See Butts, 152 Ga. App. at 42-43; First Fed. Sav. Bank &c. v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128) (1990).

Moreover, Dollar had maintained flood insurance on her residence for 20 years as a condition of her existing first mortgage with Albany First Federal prior to allowing it to lapse. Assuming the residence was located in a flood hazard zone, nothing prevented Dollar from checking with her first mortgage lender or her flood insurance agent to confirm that fact. Copeland v. Home Sav. of America, 209 Ga. App. 173, 174-175 (433 SE2d 327) (1993). The facts do not support Dollar’s claim that she justifiably relied on NationsBank’s representations. Id.

The trial court correctly granted summary judgment in favor of NationsBank.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided May 19, 2000.

Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, for appellant.

Parker, Hudson, Rainer & Dobbs, Erika C. Birg, William J. Holley II, for appellee.

       Although NationsBank does not concede that the residence was located in a flood hazard zone, it assumed this to be so for purposes of its motion for summary judgment.


text:
    A00A0642.
    HANCOCK v. THE STATE.
    (534 SE2d 870)
    Decided May 19, 2000.
    Kenneth A. Hancock, pro se.

      Tambra P. Colston, District Attorney, for appellee.
   Miller, Judge.

Kenneth Hancock was tried by a jury for the offenses of criminal trespass (two counts) and battery. He was acquitted of criminal trespass (unauthorized remaining upon land) and battery but was convicted of criminal trespass (unauthorized entry upon land). For this misdemeanor offense, Hancock was sentenced to 12 months probation. He appeals on the ground that the court failed to consider certain conflicting evidence at trial.

Hancock failed to have the misdemeanor trial transcribed and failed to construct a record of the trial, which was his obligation if he desired to show he preserved his objections at trial. “It cannot be presumed from a silent or non-existent transcript of a hearing below that a proper objection was interposed, and hence we must conclude that these enumerations are waived.” As nothing in the pretrial filings reflects an objection by Hancock or a ruling by the court on this matter, . Hancock is precluded from raising the evidentiary issue on appeal.

Judgment affirmed.

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

        Holder v. State, 239 Ga. App. 821 (522 SE2d 59) (1999); see also Ward v. State, 188 Ga. App. 372, 374 (3) (373 SE2d 65) (1988).

       (Citation and punctuation omitted.) Holder, supra, 239 Ga. App. at 821, applying Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999).

        Holder, supra, 239 Ga. App. at 821.


text:
    A00A0769.
    In the Interest of E. G. W., a child.
    (534 SE2d 869)
   Miller, Judge.

E. G. W. was adjudicated delinquent based on a charge of theft by taking. On appeal, he enumerates only the general grounds. Viewed in the light most favorable to the juvenile court’s findings, the evidence showed that a woman was shopping at a grocery store when she noticed two young men, one of whom was E. G. W., follow and watch her closely through five aisles of shopping. As she came to the end of the fifth aisle, she momentarily turned her back on the boys and reached for some meat. When she turned around only seconds later, her purse was missing from her grocery cart, and the two boys were walking away from her. No one else was in the aisle.

When the woman looked at the boys, the boys immediately began running. She reported to the store manager that the boys had stolen her purse, and the manager was able to apprehend only E. G. W., who did not have the purse but had some candy hidden in his pants leg, apparently stolen from the aisle. The boy who escaped wore a jacket large enough to conceal the victim’s purse. Sometime later this boy was also apprehended but did not possess the purse. Both boys were charged and found delinquent.

The standard of review is whether based on the evidence presented a rational trier of fact could have found beyond reasonable doubt that E. G. W. committed the charged offense. The resolution of conflicts in the evidence and the credibility of the witnesses fall within the province of the trial court. Although the victim did not actually see who took her purse, the identification of E. G. W. and his cohort as the only people near the woman at the time her purse suddenly disappeared, their immediate flight after the theft, E. G. W.’s possessing stolen candy from the aisle where the purse disappeared, and the clothing on the second boy sufficient to hide the purse suffice to sustain the finding that they jointly committed the offense of theft by taking. Where the accused juveniles, acting in concert, are the only people nearby who could have stolen the missing goods, such circumstantial evidence may be found to exclude reasonable hypotheses of innocence and is therefore sufficient to sustain a joint finding of delinquency. The fact that the purse was not found in the possession of the later-apprehended boy does not demand a finding of innocence, for he could have disposed of the purse in the meantime.

Decided May 19, 2000.

Ann N. Garner, James C. Bonner, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, George W. King Snyder, Jr., Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        In the Interest of M. J. F., 191 Ga. App. 792 (1) (383 SE2d 173) (1989); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        M. J. F., supra, 191 Ga. App. at 792 (1).

        In the Interest of J. P., 160 Ga. App. 896, 897 (288 SE2d 607) (1982).

        D. O. D. v. State of Ga., 156 Ga. App. 301, 303 (274 SE2d 696) (1980); see Hogans v. State, 251 Ga. 242 (1) (304 SE2d 699) (1983).

       See generally OCGA § 24-4-8; J. L. v. State of Ga., 147 Ga. App. 818, 819 (250 SE2d 559) (1978); cf. OCGA §§ 16-2-20; 16-8-2.

       See J. P., supra, 160 Ga. App. at 897; D. O. D., supra, 156 Ga. App. at 303; see generally OCGA § 24-4-6.

       See D. O. D., supra, 156 Ga. App. at 302.


text:
    A00A0835.
    GRIFFITH v. MEDICAL RENTAL SUPPLY OF ALBANY, GEORGIA, INC.
    (534 SE2d 859)
   Blackburn, Presiding Judge.

In this action regarding the alleged breach of an implied warranty of merchantability (OCGA § 11-2A-212) and an implied warranty of fitness for a particular purpose (OCGA § 11-2A-213) concerning an air mattress and pump, Earl Griffith, in his individual capacity and as executor of the last will and testament of Alice Griffith, his deceased wife, appeals the trial court’s grant of a directed verdict to Medical Rental Supply of Albany, Georgia, Inc. (MRS). Specifically, Griffith contends that the mattress he rented from MRS caused his bedridden wife to develop bedsores. For the reasons set forth below, we affirm the trial court’s decision.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

Evans Timber Co. v. Central of Ga. R. Co., 239 Ga. App. 262 (1) (519 SE2d 706) (1999).

Viewed in this light, the evidence at trial showed that Alice Griffith suffered a stroke in 1989, leaving her bedridden. At that time, Alice Griffith’s doctor prescribed a specific mattress for her use, and Earl Griffith rented one from MRS. Then, in 1995, Earl Griffith suggested to his wife’s doctor that she might be more comfortable on a different type of mattress, and the doctor wrote a new prescription to honor Earl Griffith’s request. Again, Earl Griffith rented the prescribed mattress from MRS. MRS had no input whatsoever in the choice of the mattress.

Sometime after the new mattress was put into use, Alice Griffith began developing bedsores, which ultimately required corrective surgery. When Earl Griffith complained about the mattress to MRS, they attempted to replace it with a new mattress of the same type. When an appropriate replacement could not be found, Earl Griffith requested a mattress like the one he had originally rented in 1985, and MRS complied with his request. At that point, Alice Griffith’s problems with bedsores subsided.

The Griffiths subsequently filed suit against MRS, contending that MRS rented the second mattress to them knowing that it was intended to prevent bedsores; the mattress was defective; and, as such, MRS breached an implied warranty of merchantability and an implied warranty of fitness for prevention of bedsores with regard to the mattress. Although the Griffiths also made claims against MRS for breach of contract and general negligence, they make no arguments regarding these claims on appeal, thereby waiving their review. See Court of Appeals Rule .27. Accordingly, we consider only the remaining claim based on the law of implied warranties.

Griffith first contends that MRS breached an implied warranty of merchantability by renting him a defective mattress. We cannot agree.

OCGA § 11-2A-212 states:

(1) Except in a finance lease, a warranty that the goods will be merchantable is implied in a lease contract if the lessor is a merchant with respect to goods of that kind. (2) Goods to be merchantable must be at least such as: (a) Pass without objection in the trade under the description in the lease agreement; (b) In the case of fungible goods, are of fair average quality within the description; (c) Are fit for the ordinary purposes for which goods of that type are used; (d) Run, within the variation permitted by the lease agreement, of even kind, quality, and quantity within each unit and among all units involved; (e) Are adequately contained, packaged, and labeled as the lease agreement may require; and (f) Conform to any promises or affirmations of fact made on the container or label.

Griffith argues that the second type of mattress rented to him was not fit for its ordinary purpose of preventing bedsores. Although a manager for MRS testified that one of the purposes of the mattress in question was to prevent bedsores, he further testified that, at the time the mattress was delivered on February 28, 1995, it was working properly. Griffith also testified that, at the time the mattress was delivered, he could feel the “top roll” of the inflatable mattress functioning. Griffith did not contact MRS until seven months after the delivery of the second mattress to complain that it was not working properly.

Here, Griffith has failed to provide any evidence that the mattress was not working when he received it. “As is the case under strict tort liability, the product defect must exist at the time of sale or lease for an action under warranty to be valid.” Jenkins v. Gen. Motors Corp., 240 Ga. App. 636, 638 (5) (524 SE2d 324) (1999). Therefore, Griffith’s claim based on an implied warranty of merchantability is untenable.

Likewise, Griffith’s claim for a breach of an implied warranty of fitness for a particular purpose is not viable. OCGA § 11-2A-213 provides:

Except in a finance lease, if the lessor at the time the lease contract is made has reason to know of any particular purpose for which the goods are required and that the lessee is relying on the lessor’s skill or judgment to select or furnish suitable goods, there is in the lease contract an implied warranty that the goods will be fit for that purpose.

(Emphasis supplied.)

In this case, it is clear that the Griffiths were relying on the skill of Alice Griffith’s doctors, not MRS, in selecting the appropriate mattress. Each brand of mattress Alice Griffith received was prescribed by her doctors, and MRS merely filled these prescriptions. There is no evidence in the record that MRS had any role in the choice of mattress. Moreover, the original mattress, which Earl Griffith contends worked properly, was ultimately replaced at his request. Therefore, as there is no evidence whatsoever that the Griffiths relied on the skill and judgment of anyone other than Alice Griffith’s doctors in choosing the brand of her mattresses, Griffith’s claim against MRS for a breach of an implied warranty of fitness for a particular purpose is legally untenable. Accordingly, the trial court appropriately granted MRS’ motion for a directed verdict.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

Decided May 19, 2000.

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Farkas & Ledford, Leonard Farkas, for appellee.


author: Johnson, Chief Judge.

text:
    A00A0716.
    FAIRBANKS v. THE STATE.
    (534 SE2d 529)
   Johnson, Chief Judge.

A jury found Tyrone Fairbanks guilty of driving under the influence of alcohol to the extent he was a less safe driver. He appeals from the conviction entered on the verdict, challenging the sufficiency of the evidence to support the verdict and claiming that the trial court erred in allowing testimony that he refused to submit to a chemical test of his blood, in repeating certain jury charges, and in commenting on his failure to testify. Because each of these contentions is without merit, the conviction is affirmed.

On appeal, we view the evidence in a light most favorable to support the verdict, and the appellant no longer enjoys the presumption of innocence; an appellate court determines the sufficiency of the evidence and does not weigh the evidence or determine the credibility of witnesses.

So viewed, the evidence shows that a motorist was traveling behind Fairbanks on Highway 78. The night was clear, and there were no obstructions in the roadway. The motorist testified that he watched as the car Fairbanks was driving drifted back and forth between the far-right travel lane and the emergency lane. Fairbanks’ car then drifted to the far-left lane, struck the guardrail, and careened back across the travel lanes before landing in a ditch off the shoulder of the highway. The motorist pulled over and found Fairbanks unconscious. The motorist waited until police arrived. The witness testified that he detected a “strong pungent musty smell” in the car and that “[i]t could have been anything.” He did not specifically mention smelling alcohol.

A police officer testified that he arrived on the scene to find Fairbanks trapped in the car, injured, and unconscious. The officer shone a flashlight into the car in order to make sure Fairbanks and his passenger were alive. Within seconds, firefighters arrived and began trying to extract Fairbanks and his passenger from the car. As emergency personnel tried to help Fairbanks and the passenger, the officer gathered information from witnesses and diagrammed the scene. The officer then followed the ambulance as it transported Fairbanks to the hospital.

The officer, a six-year veteran trained in DUI enforcement, talked to Fairbanks while he was in the emergency room. The officer noticed that Fairbanks had “a strong odor of alcohol” about him. The officer testified that he knew the difference between the smell of alcohol used in hospitals and the smell of alcoholic beverages and concluded that the smell emanating from Fairbanks was “a beverage alcohol.” Based on the single-car accident and the odor of alcohol, the officer concluded that Fairbanks was driving under the influence of alcohol. He read the implied consent notice to Fairbanks twice and asked him if he would submit to a chemical test of his blood. Fairbanks replied that he wanted to have the card read again with his attorney present. The officer told Fairbanks he did not have the right to have an attorney present during the reading of the implied consent notice. The officer spent the next five or ten minutes reading the notice to Fairbanks and reiterating to him that he did not have the right to have an attorney present. Fairbanks never did agree to take the test.

1. Fairbanks contends the trial court erred in allowing testimony that he refused to submit to a chemical test when he never expressly refused to take the test and when the officer lacked probable cause to request that he take a test. These arguments are without merit.

At the outset, we note that the issue of whether Fairbanks refused to submit to a chemical test is relevant because a defendant’s refusal to submit to such a test may create an inference that the test would show the presence of the prohibited substance. Thus, whether he refused is relevant to the issue of the sufficiency of the evidence.

Under OCGA § 40-5-55 (a), a person who drives a vehicle upon Georgia’s highways is deemed to have given consent to a chemical test of his blood for the purpose of determining the alcohol content of his blood if he is arrested for any offense arising out of acts alleged to have been committed in violation of OCGA § 40-6-391. The test will be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving the car in violation of OCGA § 40-6-391. If there was probable cause to arrest Fairbanks for driving under the influence, the officer clearly had reasonable grounds upon which to invoke the implied consent procedure. The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility.

Fairbanks was seen swerving on the highway, striking a guardrail, and crashing into a ditch. He had a strong odor of “beverage alcohol” about him. Based on his training and experience, the arresting officer concluded that Fairbanks was driving while under the influence of alcohol. By considering the facts available to him, the officer had probable cause to arrest Fairbanks for DUI and to invoke the implied consent procedure.

Fairbanks’ response that he wanted an attorney each time the officer asked if he would submit to a test amounts to a refusal to submit to testing. We have found no cases precisely on point. However, this court has held that a defendant’s refusal to respond in any way to a request to submit to testing amounts to a refusal to submit to testing. We see no reason why Fairbanks’ repeated demands for an attorney in response to the officer’s requests to take such a test should be treated any differently. The trial court did not err in admitting evidence of his refusal.

2. Considering the manner in which Fairbanks was driving, the strong smell of alcohol detected by the officer, and Fairbanks’ refusal to permit a chemical analysis of his blood, a rational trier of fact could have found him guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent he was a less safe driver.

We are not persuaded by Fairbanks’ argument that the evidence was insufficient because no witnesses reported smelling alcohol at the accident scene, and the alcohol smell detected at the hospital might not have resulted from his drinking. Although the officer testified that he did not smell alcohol on the accident scene, he explained that, due to his concern for the well-being of the car’s occupants and the nearly immediate arrival of emergency workers, he did not have an opportunity to check inside the car for the smell of alcohol. Moreover, the officer explained that he knew the difference between the smell of beverage alcohol and that of alcohol used in hospitals. The officer added that the alcohol emanating from Fairbanks at the hospital was a strong odor. When asked on cross-examination whether the (beverage) alcohol might have just been on Fairbanks’ clothing rather than in his system, the officer replied that, based on the strength of the odor, if the alcohol was merely on his clothing, he must have “dumped it on him.” And though the motorist who testified did not say he smelled alcohol on the scene, he did notice a strong smell which, he said, “could have been anything.” The evidence was sufficient for a rational trier of fact to find Fairbanks guilty beyond a reasonable doubt of driving while under the influence of alcohol to the extent he was a less safe driver.

3. Fairbanks complains that the trial court improperly commented on his failure to testify at trial and shifted the burden of proof by charging the jury that “the defendant’s explanation must be taken into consideration insofar as it is consistent with the evidence.” We disagree.

Certainly, no reference should be made to a defendant’s decision to remain silent. However, even were we to assume that the charge at issue referred to Fairbanks’ decision not to testify, improper reference to his silence does not automatically require reversal.

In this case, the trial court also charged the jury that a defendant is not required to present any evidence and is not required to testify and that if he chooses not to testify, the jury is not to draw any adverse inference or hold that against him in any way. The court also fully instructed the jury on the burden of proof and the presumption of innocence. Under these circumstances, there was no error. Moreover, there is no reasonable probability that the alleged error altered the outcome of the case. This enumeration presents no grounds for reversal.

4. Fairbanks contends that the trial court committed reversible error by repeating and therefore emphasizing certain jury charges.

He complains that this charge was stated twice:

It is not necessary for the state to show that the accused was drunk. It is sufficient that the state shows beyond a reasonable doubt that the accused was under the influence of alcohol as charged, the extent that it was less safe for him to drive a car than it would have been if he were not so affected whether drunk or not.

He says the following two charges were redundant:

Proof of smell of alcohol or odor of alcohol upon the breath of the defendant maybe [sic] considered circumstances regarding the intoxication of the defendant.
Specifically as to the consumption of alcohol, you may consider among other factors the smell or lack of smell of alcoholic beverages on the defendant’s breath and/or person and whether any evaluations indicated the presence of alcohol in the defendant’s system.

Decided May 8, 2000

Reconsideration denied May 22, 2000

Brett W. Ladd, William C. Head, for appellant.

Gwendolyn R. Keyes, Solicitor, Ladonya S. Horton, Thomas E. Csider, Assistant Solicitors, for appellee.

He also complains that these two charges were repetitive:

Any person who operates a motor vehicle upon the highways or elsewhere throughout the state shall be deemed to have given consent to a chemical test or tests of his blood, breath or urine or other bodily substances for the purpose of determining the alcoholic content of his blood.
The Georgia Implied Consent Law includes a requirement that a person submit to a chemical test or tests of his blood, breath, urine or other bodily substance upon proper advice and request of an arresting officer.

The fact that some of the charges were similar and one charge was given twice presents no grounds for reversal. Mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights, and unless it becomes an argumentative or opinionative utterance that tends to prejudice the minds of the jury. By repeating the charges at issue here, the trial court did not unfairly state the law in relation to Fairbanks’ rights, nor did it state any of the charges in a way which would tend to prejudice the jury. In fact, at one point, after the trial judge realized he was repeating a charge, he told the jury: “The fact that I read it twice or told you twice is just that I did not realize that it was down here twice. It doesn’t put any more emphasis on it or take away from it.” This enumeration is without merit.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

        Tanner v. State, 225 Ga. App. 702, 703 (484 SE2d 766) (1997).

       See Bowman v. Palmour, 209 Ga. App. 270 (1) (433 SE2d 380) (1993).

       See Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988).

       OCGA § 40-5-55 (a).

       See Martin v. State, 214 Ga. App. 614, 615 (1) (448 SE2d 471) (1994).

        Firsanov v. State, 270 Ga. 873, 875 (3) (513 SE2d 184) (1999).

       See Martin, supra at 616 (1); Davis v. State, 187 Ga. App. 517 (370 SE2d 779) (1988).

        Miles v. State, 236 Ga. App. 632, 633 (1) (513 SE2d 39) (1999).

       See Nelson v. State, 237 Ga. App. 620, 621 (516 SE2d 98) (1999).

       See Gallimore v. State, 242 Ga. App. 374, 375 (529 SE2d 668) (2000).

       See Nihart v. State, 227 Ga. App. 272, 276 (1) (e) (488 SE2d 740) (1997).

       See id.; Ledford v. State, 221 Ga. App. 238, 242 (4) (470 SE2d 796) (1996).

       See Cloud v. State, 235 Ga. App. 721, 723-724 (6) (510 SE2d 370) (1998).

        Key v. State, 226 Ga. App. 240, 242 (1) (485 SE2d 804) (1997).

       See Bowens v. State, 209 Ga. App. 130, 132 (3) (433 SE2d 102) (1993).