text:
    A02A1342.
    BRAGG v. RENT TO OWN, INC.
    (570 SE2d 671)
   Barnes, Judge.

Danny Ray Bragg sued Rent to Own, Inc. alleging malicious prosecution and intentional infliction of emotional distress. Both parties filed motions for summary judgment. The trial court granted partial summary judgment to Bragg, finding that Michael Smith, the employee who swore out an arrest warrant for Bragg, was “acting within the course and scope of his employment with Rent to Own, Inc. at the time he swore out the arrest warrant.” We affirmed this order in Rent to Own v. Bragg, 248 Ga. App. 130 (546 SE2d 9) (2001), finding that the undisputed evidence shows that Smith was acting within the scope of the actual transaction of Rent to Own’s business for accomplishing the ends of his employment. Id. at 132.

The remaining issues proceeded to trial, and following the close of Bragg’s evidence, the trial court granted Rent to Own’s motion for directed verdict. Bragg now appeals, contending that the trial court’s earlier order granting partial summary judgment found that the arrest warrant was taken out by Rent to Own and that this finding prevented the trial court from reaching a different conclusion in its directed verdict. He also maintains that, since the partial grant of summary judgment was affirmed by this Court, the trial court also erred in not complying with OCGA § 5-6-10. We disagree and affirm.

1. We note at the outset that the record does not include a trial transcript. Although Bragg attempts to argue that there was no reason to include the trial transcript, we do not agree. As the appellant, Bragg has the responsibility “to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon [the motion for a directed verdict], and mere assertions of error in [his] brief do not suffice.” Galloway v. Linnell, 242 Ga. App. 221-222 (1) (529 SE2d 226) (2000).

2. A trial court should grant a motion for directed verdict “ [i] f 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). We must affirm the trial court’s decision if there is any evidence to support it, Hendon v. Superior Roofing Co., 242 Ga. App. 307, 308 (1) (528 SE2d 548) (2000), and in the absence of a trial transcript, we must assume the evidence authorized the verdict. Little v. Paco Collection Svcs., 156 Ga. App. 175, 176 (1) (274 SE2d 147) (1980).

We do not agree with Bragg’s contention that the trial court’s earlier grant of summary judgment on the agency issue conclusively decided whether Rent to Own took out an arrest warrant for him. Although a trial court “cannot decide to disregard the opinions of this court[,] [cits.],” Eastgate Assoc. v. Piggly Wiggly Southern, 200 Ga. App. 872, 873 (1) (410 SE2d 129) (1991), the rulings of this Court are not binding on the trial court in subsequent proceedings when the evidentiary posture has changed. OCGA § 9-11-60 (h); see Eastgate Assoc. v. Piggly Wiggly Southern, supra, 200 Ga. App. at 875.

Here, the order granting a directed verdict in favor of Rent to Own found “that there is no evidence that the defendant did anything to cause the issuance of the warrant or the initiation of the prosecution; and therefore, there is no issue of fact to be decided by the jury and that a verdict in favor of the defendant is demanded.” As this result is significantly different from the trial court’s grant of partial summary judgment to Bragg on virtually the same issue, which we affirmed, the grant of the directed verdict can only be sustained if the evidentiary posture of the case changed.

Because Bragg did not include a trial transcript in the record on appeal, however, we cannot consider whether the evidence presented warranted this different result. “In the absence of a sufficient record, we must assume that the trial court’s ruling was proper.” (Footnote omitted.) Galloway v. Linnell, supra, 242 Ga. App. at 222 (1); Little v. Paco Collection Svcs., supra, 156 Ga. App. at 176. Therefore, we cannot reverse the grant of the directed verdict.

Decided August 30, 2002.

Jack E. Dodd, for appellant.

William P. Tinkler, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A1499.
    MORAN v. THE STATE.
    (570 SE2d 673)
   Phipps, Judge.

As a result of an incident occurring in 1996, Joseph Donald Moran was charged with and convicted of driving under the influence of alcohol to the extent that it was less safe to drive (former OCGA § 40-6-391 (a) (1)) and driving with an unlawful blood alcohol content (former OCGA § 40-6-391 (a) (4)). He challenges the admission of similar transaction evidence and the legality of the traffic stop leading to his arrest, and he raises various issues concerning the trial court’s admission of evidence and instructions to the jury. We find no error and affirm.

State’s evidence showed that the arresting officer’s attention was drawn to Moran’s vehicle because it was weaving repeatedly within its lane of traffic. The officer effected the stop after observing that Moran was not wearing a shoulder strap safety belt. Moran stopped the car after turning into a Hardee’s parking lot. Upon approaching the car, the officer determined that Moran was not wearing a lap belt. After detecting a strong odor of alcohol coming from the vehicle, the officer asked Moran to submit to field sobriety tests. Moran agreed to perform the tests but did so unsatisfactorily. As a result, the officer arrested him for DUI and transported him to the police station, where a blood alcohol test was performed with an Intoxilyzer 5000. Moran registered above the then 0.10 per se limit for blood alcohol.

Similar transaction evidence was admitted showing that as a result of a traffic stop in 1992, Moran had been charged with and convicted of driving with an unlawful blood alcohol content.

1. Moran charges the trial court with error in permitting evidence of the independent crime. His argument is that there was an insufficient showing of similarity between it and the crime charged to warrant its admission under Williams v. State. This argument is without merit.

In Reese v. State, we have recently recognized that there is no inconsistency between Williams and the subsequent holding in cases such as Kirkland v. State and McCullough v. State that, unlike other crimes which can be committed under varying factual circumstances, the crime of driving under the influence is essentially committed under the same factual circumstances; that although the type of vehicle driven or the degree or source of intoxication may vary, the simple act of driving while under the influence establishes the commission of that crime; and that a prior act of driving while having that status or while in that condition is, regardless of any slight variance of circumstances, relevant to prove bent of mind or course of conduct.

Moreover, it is undisputed that in this case, both the independent offense and the crime charged involved Moran driving the same car in Chatham County at night while emanating an odor of alcohol and having a blood alcohol content above 0.10. The trial court did not abuse its discretion in admitting evidence of the other crime.

2. Moran contends that the trial court erred in failing to grant a mistrial, sua sponte, when evidence of the punishment imposed for the similar transaction was introduced. Because no objection was made to this evidence contemporaneous with its admission, the issue has been waived.

3. Moran contends that the trial court erred in failing to give the jury sua sponte limiting instructions when the State introduced the similar transaction evidence.

When Moran’s case was tried, there was a split of authority in this court on the question of whether such instructions are required absent a request. In State v. Belt, our Supreme Court later granted certiorari and held that such instructions are not required unless there is a request for them. Belt therefore controls Moran’s contention adversely to him. Moreover, as held in cases such as Hensel Phelps Constr. Co. v. Johnson, on appeal we apply the law as it exists at the time of appeal rather than the law prevailing at the rendition of the judgment under review, where the law has been changed in the meantime and where no vested right will be impaired. There is no merit whatsoever in Moran’s argument that he had a right to rely on those Court of Appeals’ decisions holding that a trial court was required to give limiting instructions even in the absence of a request. Moran is basically arguing that he had a right to remain silent concerning what he believed to be an error and to complain later if the verdict proved unfavorable. There is, of course, no such right.

4. Moran challenges the admissibility of the Intoxilyzer test results on the ground that the State failed to show a justifiable reason for the underlying traffic stop.

OCGA § 40-8-76.1 (b) provides that “[e]ach occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.” In Davis v. State, we rejected the argument that because the federal safety standard does not mandate the -use of shoulder strap safety belts, a person’s failure to use one does not support probable cause that he was violating the above statute. Moran argues that, notwithstanding Davis, his failure to use a shoulder strap safety belt did not support probable cause for his traffic stop, because the arresting officer knew that he was driving a 1970 Dodge Challenger which, according to Moran, is not equipped with shoulder strap safety belts. But when asked whether a 1970 Dodge has shoulder strap safety belts, the officer responded that he did not know. And no evidence that 1970 Dodge Challengers lack shoulder strap safety belts was introduced. We thus conclude that under Davis, the officer’s stop of Moran’s car was proper. There is no merit in Moran’s argument that the stop was pretextual. “Where the officer observes the violation of a traffic law, the resulting stop is not pretextual.”

5. Moran complains that the trial court gave the State multiple opportunities to admit the results of an alco-sensor test even though no proper foundation was ever laid. Because the results of the test were never admitted, Moran has no cause for complaint.

6. Moran contends that the trial court erred in sustaining the State’s objection when defense counsel asked the arresting officer on cross-examination whether Moran might have been weaving because he was looking for the driveway into the Hardee’s restaurant. The court sustained the objection on the ground that the question called for speculative testimony. We find no harm to the defense, because counsel was then allowed to elicit testimony from the officer establishing facts through which the jurors could decide for themselves whether Moran’s weaving may have been related to attempts to locate the driveway for the restaurant.

Decided August 30, 2002.

Ray C. Smith, for appellant.

Spencer Lawton, Jr., District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

7. Moran complains of the trial court’s refusal to give his requested jury charge on the weight it should accord breathalyzer test results. The charge given by the court on this subject was that approved in Haynes v. State. We find no error.

8. Moran complains of the trial court’s refusal to give his requested charge, under the authority of Anderson v. State, that to convict a defendant of the offense of driving under the influence of alcohol to the extent that it is less safe to drive, the driver must be so affected by the alcohol that it adversely affected his operation of the motor vehicle.

Although the Court in Anderson did make such a statement, it was dicta. The jury charge actually approved in that case was that, to be guilty of driving under the influence of alcohol, the driver must be under the influence of alcohol to the extent that he is a less efficient driver than he would be if he had used no alcohol. Moreover, Anderson was decided under the 1968 version of our DUI statute. Under the present version, it has been held that “OCGA § 40-6-391 (a) (1) makes it unlawful for a person to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. There is no requirement that the person actually commit an unsafe act. [Cits.]” For these reasons, we find no error in the court’s refusal to give Moran’s requested charge.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       261 Ga. 640, 641 (2) (409 SE2d 649) (1991).

       252 Ga. App. 650, 652 (2) (556 SE2d 150) (2001).

       206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

       230 Ga. App. 98, 100 (1) (495 SE2d 338) (1998).

       See generally Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

       See Butler v. State, 273 Ga. 380, 382 (5) (541 SE2d 653) (2001).

       See State v. Belt, 269 Ga. 763, 764, n. 1 (505 SE2d 1) (1998).

       Id.

       161 Ga. App. 631 (295 SE2d 843) (1982), rev’d on other grounds, Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83 (295 SE2d 841) (1982).

       See, e.g., Mullins v. State, 241 Ga. App. 553, 554-555 (1) (525 SE2d 770) (1999).

       232 Ga. App. 320 (1) (501 SE2d 836) (1998).

        State v. Bute, 250 Ga. App. 479, 482 (552 SE2d 465) (2001), citing Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996).

       244 Ga. App. 79, 81 (534 SE2d 807) (2000).

       226 Ga. 35, 37 (3) (172 SE2d 424) (1970).

        Lanier v. State, 237 Ga. App. 875, 876 (3) (517 SE2d 106) (1999).


author: Mikell, Judge.

text:
    A02A1512.
    BOLES v. THE STATE.
    (570 SE2d 677)
   Mikell, Judge.

A Clayton County jury convicted Demarco Sherrod Boles of hijacking a motor vehicle, aggravated assault, and armed robbery. Boles was sentenced to serve 20 years on the hijacking charge and 20 years on the armed robbery charge, to run concurrently. The aggravated assault charge was merged with the armed robbery charge. On appeal, Boles challenges the sufficiency of the evidence. We affirm.

Where the sufficiency of the evidence is questioned on appeal, we determine “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” As an appellate court, we do not weigh the evidence or assess witness credibility.

Reviewed in the light most favorable to the prosecution, the evidence shows that at approximately 3:00 p.m. on November 15, 2000, as Frieda Callaway exited her car, she saw three boys walking up the street, one of whom approached and pointed a gun at her. Callaway testified that the boy with the gun demanded her car keys. Calláway threw the keys on the ground and ran toward her neighbor’s house, shouting for help. The three boys jumped into Callaway’s car and drove away.

Callaway testified that she thought the boys were between the ages of 16 and 18. All three boys wore “starter” jackets and toboggan caps. Callaway could not recall the color of the jacket the armed perpetrator wore, but she did remember that his gun was gray, he wore either a dark blue or black bandanna on his face, and his cap was dark with a lighter trim. Callaway could not see the faces of the other two boys.

Approximately an hour after the incident, Callaway was notified that her car had been recovered. When she arrived at the car, the police had two young men in the back of the police car. Callaway could not identify the armed perpetrator, but she did recognize the jacket and bandannas that were found in the trunk of her car.

The co-defendants, John Auletta and Isaias Torres Ruiz, testified that they were walking down the street with Boles when they saw Callaway exiting her car. Both testified that Boles was the only one wearing a jacket, that all three of them were wearing black and white bandannas, and that Auletta had a BB gun in his back pocket. Auletta and Ruiz recalled that Boles took-the BB gun out of Auletta’s . back pocket, covered his nose and mouth with his bandanna, pointed the gun at Callaway, and snatched her keys.

According to Auletta and Ruiz, Boles threw the keys to Auletta, who got into the driver’s seat. After Ruiz and Boles jumped in the car, the boys drove away. Soon thereafter, a police chase ensued. Auletta testified that he stopped the car and Boles told him to open the trunk. Auletta and Ruiz saw Boles put his bandanna and his jacket into the trunk of the car. All three boys ran, but only Auletta and'Boles were apprehended. Ruiz turned himself in on the following day.

Boles contends that because Auletta and Ruiz were his accomplices, their testimony, alone, without independent corroborating evidence, was insufficient to sustain Boles’s conviction. We disagree.

In Pope v. State we certified to our Supreme Court the following question: “Can a defendant in a felony case be legally convicted of the offense charged, where the only evidence directly connecting him with the offense charged is the. testimony of several accomplices, and where the only corroboration of the testimony of each accomplice is the testimony of the other accomplices?” To answer the question, the Supreme Court construed Section 1017 of the 1910 Penal Code, now codified at OCGA § 24-4-8, which provides: “The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.” Our Supreme Court stated: “If the lawmakers had intended to treat as a nullity the testimony of the witness who was an accomplice, they would undoubtedly have used a more definite term by simply declaring that an accomplice shall be incompetent as a witness.” Consequently, the Court held that a defendant could be convicted of a felony where the only evidence against him was the testimony of his accomplices.

Lastly, Boles claims that Auletta was the only witness to identify him as the perpetrator; thus, independent evidence corroborating Boles’s identity was required. This assertion is incorrect. Ruiz was asked if he saw in the courtroom the person who grabbed the gun and pointed it at the victim. He pointed at Boles. When asked what Boles was wearing, Ruiz said, “I can’t really tell the color because I can’t see that far, just a button-up shirt.” The fact that Ruiz could not determine the color of Boles’s shirt does not nullify his positive identification of him or Ruiz’s testimony that Boles was the perpetrator. Thus, we find the evidence sufficient to sustain Boles’s conviction.

Decided August 30, 2002.

Brown & Gill, Angela Y. Brown, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       John Auletta and Isaias Torres Ruiz were also charged with these offenses. The cases were severed, and Boles was tried first.

       (Punctuation and emphasis omitted.) State v. Clay, 249 Ga. 250 (1) (290 SE2d 84) (1982), citing Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

        Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993).

       171 Ga. 655 (156 SE 599) (1930).

       (Punctuation omitted.) Id.

       Id. at 656.

       Id. at 660; Frazier v. State, 257 Ga. 690, 699 (16) (362 SE2d 351) (1987); Slocumb v. State, 164 Ga. App. 114 (296 SE2d 409) (1982).


author: Barnes, Judge.

text:
    A02A1526.
    WILSON v. THE STATE.
    (570 SE2d 679)
   Barnes, Judge.

Rebecca Denise Wilson was charged with two counts of cruelty to children, one for causing pain to her three-month-old child, M. W, from a severe diaper rash, and one for wilfully depriving M. W. of necessary sustenance to the extent that the child’s well-being was jeopardized. A jury acquitted her of the first count and convicted her of the second. The trial court sentenced Wilson to serve 11 years, and she appeals, contending that the court erred (1) in denying her motion for directed verdict; (2) in refusing to give her requests to charge on bare suspicion, raising a child in unsanitary conditions, knowledge, and accident; (3) in charging the jury on prior difficulties between the defendant and victim; and (4) in sentencing her to serve 11 years. For the reasons that follow, we affirm.

1. We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence at trial established that two uniformed police officers responded to a phone call asking them to check on the welfare of the caller’s nephew, who had threatened to commit suicide. The officers went to the address the caller gave, which was the trailer where defendant and her four children lived, and spoke to the nephew out on the porch. While they were outside, a small child came to the door with a very dirty face in a diaper hanging three or four inches from the ground. When the child opened the trailer door, the officers saw that the residence was “completely filthy, dirty, with several other children inside.” The floor was strewn with clothes, dirt, and broken glass, and the four children inside were barefoot. The children, three of whom were the defendant’s, were ages six, five, three, and two, and two adults were present in addition to the nephew, none of them being the defendant. The officers made a “property check” of the house to ensure the children’s welfare and then called a county photographer to document the. scene.

Officer Patterson testified that the kitchen counter was filled with dirty dishes and broken glass that had fallen to the floor, and the refrigerator, which had a “horrible smell,” contained no food for the babies, just milk, mayonnaise, syrup, ketchup, and a bottle of MD20/20. The children’s beds had no sheets, and the bathroom was very dirty. The first bedroom they inspected had clothes strewn all over, dirty dishes, and two or three full ashtrays. They saw a blanket move and discovered a fifth child, three-month-old M. W., in a bassinet. The infant had a rash from above his waist to the bottom of his knees, which was not a normal diaper rash.

Officer Roberts testified that when he and his partner entered the trailer, he smelled a “foul odor” in the kitchen coming from a baby diaper in a dustpan on the table. He did not see the infant at first, who was very small, and could not open a second bedroom door all the way because it was blocked by a mattress and clothing.

The emergency room pediatrician testified that she examined M. W. at the hospital that evening. He appeared severely malnourished, weighing less than eight pounds, which is the weight of a normal two-week-old. His extremities were thin, his skin was very dry and cracked, especially around his mouth and ears, and his scalp was severely dry and flaky, all of which were suggestive of malnutrition. He was not following things properly with his eyes, and his nose was crusty and full of mucus. He had a very severe diaper rash, which was very red and inflamed, and a very weak cry. After blood tests, the doctor diagnosed anemia, low protein level, failure to thrive, malnutrition, severe diaper rash, and cradle cap, and referred him to admissions so he could be stabilized and given nourishment.

The pediatrician who subsequently treated M. W. in the hospital testified that he was underweight. Born five pounds six ounces, he should weigh ten pounds at three months, but weighed only seven pounds twelve ounces and appeared malnourished and weak. He had a rash on his scalp, right earlobe, and eyelids, which can be caused by poor hygiene. M. W.’s diaper area was swollen, red, and a bit raw, with satellite lesions indicating he had a fungal infection in addition to irritation. The doctor testified that this condition did not develop over two hours or two days, but probably over at least a week. Further, the child was initially too weak to suck and had to be fed through a naso-gastric tube inserted into his stomach, but regained his ability to feed himself within a day.

An investigator with the Child Protective Services division of the Department of Family & Children Services testified that the police called him when they took M. W. to the hospital because he had a prior history with the child.

Finally, an acquaintance of Wilson’s testified that she had gone to Wilson’s home almost daily in the two weeks before the police came and had seen Wilson feed her baby sugar water because she did not feel like “fooling with” the baby’s formula. Sometimes Wilson would feed the child and sometimes she would just prop up the bottle and leave it. The witness testified that she would frequently fix M. W.’s formula and feed the baby herself.

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Wilson guilty beyond a reasonable doubt of cruelty to children by wilfully depriving M. W. of necessary sustenance to the extent that the child’s well-being was jeopardized. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wilson contends the trial court erred in refusing to give her requests to charge on bare suspicion, raising a child in unsanitary conditions, knowledge, and accident.

(a) Because the trial court gave complete instructions on reasonable doubt and the presumption of innocence, the court did not err in refusing to give Wilson’s requested charge on bare suspicion. Jackson v. State, 247 Ga. App. 273, 276 (2) (543 SE2d 770) (2000).

(b) While the State may not prove the element of malice in a cruelty to children case by establishing only that the defendant had an unsanitary house, Brewton v. State, 266 Ga. 160, 162 (2) (465 SE2d 668) (1996), the State was not seeking to prove malice only by showing Wilson’s poor housekeeping. Rather, the State introduced evidence of the home’s condition to show that Wilson maliciously intended to cause M. W. cruel and excessive physical pain by failing to treat his diaper rash and wilfully depriving him of necessary sustenance. Wilson was permitted to argue to the jury that she could not be found guilty just because she had a dirty house, and the trial court did not err in refusing to give the requested charge.

(c) The trial court did not err in giving the pattern charge on knowledge rather than Wilson’s requested charge on knowledge.

(d) The trial court did not err in failing to charge the jury on accident. While a defendant is entitled to an unrequested charge on her sole defense, accident was not Wilson’s sole defense in this case; rather, her defense was that she did not know anything was wrong with her son. See Austin v. State, 246 Ga. App. 610, 613-614 (2) (540 SE2d 710) (2000).

3. Wilson asserts that the trial court erred in charging the jury on prior difficulties between her and her son. The State argues that evidence Wilson had given M. W. sugar water because it was easier than preparing his formula is evidence of a prior difficulty between them that justifies the charge. We disagree. Feeding her baby sugar water is part of the continuing act of cruelty for which Wilson was convicted, not evidence of “difficulties” between the infant and its mother. While we hold that giving this charge was error, the error was harmless due to the overwhelming evidence against Wilson that supports her conviction. See Newman v. State, 259 Ga. 506, 507 (1) (384 SE2d 670) (1989).

4. Finally, Wilson contends the trial court’s sentence of 11 years to serve is cruel and unusual because it is “grossly out of proportion to the severity of the crime,” citing Fleming v. Zant, 259 Ga. 687, 689-690 (3) (386 SE2d 339) (1989). Wilson also cites Haygood v. State, 225 Ga. App. 81, 83 (2) (483 SE2d 302) (1997), for the proposition that this sentence is too harsh. In Haygood, the defendant was convicted of criminal trespass for trimming her neighbor’s hedge and was sentenced to serve 12 months. We vacated the sentence and remanded for resentencing because the trial court initially offered the defendant, who was pro se, either the jail time or a fine and community service, then sentenced her to serve time while she was considering the matter. The disparity in these two options was drastic, and we held that “imposing on [the defendant] the maximum misdemeanor punishment would be viewed by society as ‘cruel and unusual’ in the constitutional sense of disproportionality.” Id. at 84.

The case before us is quite different in terms of severity and proportionality. Wilson was not convicted because she trimmed her neighbor’s bushes, but because she withheld sustenance from her baby to the extent that his well-being was jeopardized. The child had to be admitted to the hospital to be stabilized and had to be fed through a tube until he gained enough strength to eat on his own. Both the emergency room and treating pediatricians testified that the child was severely malnourished, based not only on his low weight, but also on his extremely dry, loose, flaky skin. A witness testified that Wilson said she could not be bothered with preparing the baby’s formula and fed him sugar water instead.

The legislature has authorized a sentence of five to twenty years for a conviction of first degree cruelty to children. OCGA § 16-5-70 (d). We will not review for legal error a sentence that is within the statutory limit. Daniels v. State, 154 Ga. App. 323, 325 (3) (268 SE2d 376) (1980); Garrett v. State, 147 Ga. App. 500, 501 (3) (249 SE2d 315) (1978).

Decided August 30, 2002.

Robert H. Suttles, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       Wilson also contends the sentence should be reversed because it cannot be reviewed by the Sentence Review Panel under OCGA § 17-10-6. Sentence review under that statute is “a matter of legislative grace,” Reed v. State, 251 Ga. App. 606, 607 (554 SE2d 792) (2001), and we must abide by the legislature’s decision that sentences of less than 12 years are not subject to such review.


text:
    A02A1599.
    ALLEN v. THE STATE.
    (570 SE2d 683)
   Phipps, Judge.

A jury convicted Clinton D. Allen of driving under the influence of alcohol to the extent that he was a less safe driver. Allen appeals, contending that the evidence was insufficient to support his conviction and that the judge improperly charged the jury. We reverse because the record does not contain sufficient evidence to prove beyond a reasonable doubt that Allen was a less safe driver as a result of being under the influence of alcohol.

On appeal the evidence is construed in a light most favorable to the verdict. The verdict must be upheld if any rational trier of fact could have found guilt beyond a reasonable doubt.

The record shows that Allen was involved in a single car accident. His vehicle ran off the right shoulder of the road and struck a fire hydrant and several trees. Allen used his cellular phone to call the police for assistance. A State trooper was dispatched to investigate. Upon his arrival the trooper found Allen walking near the scene of the accident. The trooper testified, “I began talking to him, you know, I could — I could tell he had been drinking.” The trooper performed an alco-sensor test, which was positive. He then arrested Allen for driving under the influence. Allen was transported to the sheriff’s department, where two Intoxilyzer 5000 tests determined his blood alcohol level. The first reading was 0.079, and the second was 0.078. Allen was charged with four counts: driving under the influence (less safe driver), driving too fast for conditions, striking a fixed object, and failure to wear a seat belt.

At trial, Allen admitted that he had been drinking but denied being impaired. He claimed that a friend was driving his car and swerved to avoid a deer in the road, causing the accident.

After evidence was presented to the jury, the State moved to nolle prosequi the counts of striking a fixed object and failure to wear a seat belt. The jury convicted Allen of driving under the influence (less safe driver), but found him not guilty of driving too fast for conditions.

1. Allen argues that the State failed to present sufficient evidence that he was driving under the influence of alcohol to the extent that he was a less safe driver. We agree.

Georgia law provides that a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. If, at the time the person was driving or controlling the vehicle, his blood had an alcohol concentration of more than 0.05 grams but less than 0.08 grams, that fact shall not give rise to any inference that he was or was not under the influence of alcohol, but it may be considered by the trier of fact with other competent evidence in determining whether he was under the influence of alcohol.

The prosecution did not present any competent evidence, other than the Intoxilyzer 5000 results, to prove that Allen was a less safe driver. The trooper testified that when he began talking with Allen he “could tell he had been drinking.” However, the trooper’s opinion that Allen was a less safe driver was not supported by any facts or observations that he used to reach his conclusion. The trooper did not testify that Allen’s speech was slurred, that he smelled of alcohol, that his eyes were red or glassy, that his walk was staggered, or that his conduct was unusual or erratic. Although the trooper stated that he gave Allen “a couple of field sobriety tests,” he did not say what the tests were or how Allen performed on them. The trooper did perform an alco-sensor test, but that test merely established that alcohol was present in Allen’s body. “Mere presence of alcohol is not the issue; the quantity is needed because the issue is effect.” The trooper could not testify as to the maimer of Allen’s driving because he arrived at the scene after the accident occurred, and the prosecution did not present any other witnesses who could testify to Allen’s manner of driving. Moreover, the State did not prosecute Allen on. the count of striking a fixed object, and the jury acquitted him on the charge of driving too fast for conditions. Thus, based on the record before us, the trooper’s conclusion that Allen was a less safe driver, unsupported by specific visual observations of his appearance or conduct, is insufficient to support a conviction.

Decided August 30, 2002.

Flynt & Flynt, Crisp B. Flynt, for appellant.

Clinton D. Allen, pro se.

Griffin E. Howell III, Solicitor-General, for appellee.

The facts of this case are virtually indistinguishable from those of Ricks v. State. In Ricks this court reversed a less safe driver conviction on the grounds that the State’s evidentiary foundation was insufficient. There, the police observed Ricks speeding. Like Allen, Ricks performed an alco-sensor test, which was positive. The arresting officer in Ricks elected not to perform any other field sobriety tests. He testified that he detected a strong odor of alcohol and that the defendant’s eyes were slightly red and glassy. However, the arresting officer testified that “Ricks was not unsteady on his feet and did not stumble when he exited his car, his speech was not slurred, and he had no difficulty understanding instructions.” The officer in Ricks performed an Intoxilyzer 5000 test which determined that Ricks’s alcohol concentration was 0.052. Like Allen, Ricks’s alcohol concentration was subject to the statute which mandates that alcohol concentrations between 0.05 and 0.08, alone, do not give rise to any inference of an individual being under the influence. “The fact that Ricks had a reading of 0.05 on the Intoxilyzer 5000 test does not establish, or even raise a presumption, that Ricks was so impaired by alcohol that he was a less safe driver.”

Even with the officer’s testimony in Ricks, which included specific observations such as bloodshot eyes and detection of an alcohol odor, this court found the evidence insufficient to convict Ricks of driving under the influence to the extent that he was a less safe driver. The testimony of the trooper in this case, which did not include such observations, is clearly insufficient to establish that Allen was an impaired driver. Accordingly, we reverse.

2. Based on our holding in Division 1, we need not address the remaining claim of error.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

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

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-392 (b) (2).

        Sieveking v. State, 220 Ga. App. 218, 219 (1) (469 SE2d 235) (1996).

       See Clay v. State, 193 Ga. App. 377, 378-379 (2) (387 SE2d 644) (1989); Bowen v. State, 235 Ga. App. 900 (510 SE2d 873) (1999); Davis v. State, 206 Ga. App. 647 (426 SE2d 267) (1992).

       255 Ga. App. 188 (564 SE2d 793) (2002).

       Id. at 189 (1).

       Although the trooper who arrested Allen opined that, at the time of the accident, Allen’s blood alcohol concentration would have been 0.08 or higher, the trooper offered no facts to support this assertion. The trooper was neither offered nor qualified as an expert competent to testify about human metabolism of alcohol.

        Ricks, supra at 190 (1).


text:
    A02A1767.
    HOLLEY v. THE STATE.
    (570 SE2d 688)
    Decided August 30, 2002.

      Michael A. Gabel, for appellant.

      Joseph J. Drolet, Solicitor-General, Michael Y. Doko, Assistant Solicitor-General, for appellee.
   Phipps, Judge.

Following a bench trial, Donnell Wayne Holley was convicted of certain misdemeanor traffic offenses. He appeals, contending that the trial court erred in denying his request for a continuance. Holley, however, failed to comply with his obligation of having the misdemeanor trial transcribed or constructing a record of the trial. In the absence of a transcript, we are unable to review Holley’s claim that the court erroneously refused to grant him a continuance.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

        Nudelman v. State, 253 Ga. App. 794 (560 SE2d 707) (2002).

       See Alexander v. Guthrie, 216 Ga. App. 460, 461 (1) (454 SE2d 805) (1995); Glean v. State, 197 Ga. App. 34 (3) (397 SE2d 459) (1990).


author: Miller, Judge.

text:
    A02A1376.
    ROBERTS v. THE STATE.
    (570 SE2d 595)
   Miller, Judge.

Following a jury trial, Willie Roberts was convicted of one count of armed robbery and one count of aggravated assault. On appeal he contends that (1) his trial counsel was ineffective, (2) the trial court erred in allowing police officers to identify Roberts as the man shown in a videotape of the robbery, and (3) the evidence was insufficient to sustain the convictions. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that late one night two men with handguns and wearing bandanna masks entered a gas station food mart. One of the men fired a gun at an employee of the store. The men then forced the employee to open the cash register. The employee noticed that the man who grabbed the money from the register had a distinctiye tattoo on his arm. The police took a statement from Roberts four days after the robbery.

At trial, the store employee positively identified Roberts as one of the men who robbed the food mart. Even though the robbers were wearing masks at the time of the robbery, the employee testified that he recognized Roberts’s eyes and that he remembered the distinctive tattoo from the robbery. In addition, police officers testified that Roberts’s appearance at trial was significantly different from his appearance at the time of the robbery and indicated that Roberts was the person who appeared in a surveillance video taken of the robbery. Even Roberts himself admitted that his hair had changed since the date of the robbery, and he also acknowledged that he had a tattoo on his arm.

Roberts was convicted of one count of armed robbery and one count of aggravated assault. After the initial time expired for his direct appeal, Roberts was granted an out-of-time appeal;

1. For the first time on appeal, Roberts argues that his trial counsel was ineffective. Roberts failed to raise any issue relating to his trial counsel’s effectiveness in the lower court, and no hearing ever took place regarding his counsel’s effectiveness. This enumeration is therefore waived on appeal. Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991) (“[A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]”).

2. Roberts contends that the trial court erred in permitting police officers to offer opinion testimony that Roberts was the man depicted in the surveillance videotape relating to the food mart robbery. We disagree.

As this Court stated in Harper v. State, 213 Ga. App. 444, 448 (5) (445 SE2d 303) (1994):

[A] witness’s opinion concerning the identity of a person depicted in a surveillance photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. This criterion is fulfilled where the witness is familiar with the defendant’s appearance around the time the surveillance photograph was taken and the defendant’s appearance has changed prior to trial.

(Citations and punctuation omitted.) The officers who testified had observed Roberts only four days after the robbery and noticed that his appearance had changed by the time of trial. Even Roberts himself admitted that his appearance had changed prior to trial. As in Harper, although the police officers here “were not eyewitnesses to the robbery . . . , unlike the jury[ ] they were able to observe the defendant at the time of the robbery before his appearance had changed. Thus . . . their opinions [were] based upon their personal knowledge of the facts to which they testified.” Id. The trial court did not err in allowing this opinion testimony.

3. Roberts argues that the evidence was insufficient to sustain his convictions because the only evidence connecting him to the crimes for which he was convicted was the testimony of a sole eyewitness. This enumeration is without merit. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

Decided August 16, 2002

Reconsideration denied September 3, 2002.

John P. Cannon, Ingrid D. Polite, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Andrews, Presiding Judge.

text:
    A02A1474.
    In the Interest of B. Y., a child. In the Interest of D. A. B., a child.
    A02A1584.
    (570 SE2d 689)
   Andrews, Presiding Judge.

B. Y. and D. A. B. appeal from orders of the juvenile court transferring their prosecutions for the offenses of aggravated assault and attempted armed robbery to the superior court pursuant to OCGA § 15-11-30.2 (a). Because both prosecutions are based on the same factual circumstances, these separate appeals have been consolidated for consideration in this opinion. As set forth below, we find no abuse of discretion in the transfer orders and affirm.

1. The juvenile court heard evidence that B. Y. and D. A. B., both of whom were 16 years old at the time of the alleged offenses, participated in a home invasion and attack on the victims in which robbery was the motive. One of the victims was knocked to the floor with a baseball bat, was hit repeatedly with the bat while she lay helpless on the floor, and suffered severe injury requiring numerous stitches to close a gash on her head. OCGA § 15-11-30.2 (a) (3) and (4) provide in relevant part that the juvenile court may transfer a case to the appropriate court if the juvenile court in its discretion determines there are reasonable grounds to believe the child committed the alleged delinquent acts, that the child is not committable to an institution for the mentally retarded or mentally ill, that the interests of the child and the community require the child be placed under legal restraint and the transfer be made, and that the child was at least 15 years of age at the time of the alleged delinquent conduct.

There was evidence to support the juvenile court’s determination that all of the statutory criteria for transfer were satisfied. There was evidence that B. Y. and D. A. B. were over 15 years of age at the time of the alleged delinquent conduct, that they committed the alleged delinquent acts, and that neither child was committable to an institution for the mentally infirm. Moreover, the State did not seek the transfers based on claims that B. Y. and D. A. B. were not amenable to treatment in the juvenile system, and the juvenile court did not rely on that ground in the transfer orders. Rather, the court determined that, given the seriousness of the alleged offenses, the interests of the children and the community mandated transfers for prosecution in the superior court. In the Interest of S. B. B., 234 Ga. App. 778 (507 SE2d 879) (1998); In the Interest of C. D. B., 214 Ga. App. 655, 656-657 (449 SE2d 1) (1994); In the Interest of A. G., 265 Ga. 481 (458 SE2d 343) (1995). We find no abuse of discretion in the juvenile court’s determination.

2. B. Y. contends the juvenile court erred by denying his motion to suppress evidence of statements he made admitting he was present when the attack occurred and identifying others involved in the attack, and further erred by considering this evidence in determining to transfer his case. In the motion, B. Y. contended the statements should have been excluded because they were made before he was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

We find no error in the trial court’s conclusion that the statements were admissible without Miranda warnings because B. Y. was not in custody when he made the statements. The Miranda warnings are required to be given only when a suspect has been taken into custody or has been deprived of freedom in any significant way. Driver v. State, 248 Ga. App. 439, 440 (546 SE2d 549) (2001). B. Y. voluntarily came to the police station with the knowledge and consent of his mother to answer questions about a separate case in which B. Y. complained he was the victim of police misconduct. The attack at issue occurred a few days earlier, but the identities of the attackers were unknown, and police were in the process of investigating the case. The officer who questioned B. Y. about the police misconduct claim did not think B. Y. was a suspect in the attack case, but did think B. Y, who was a friend of the victims’ teenage son, might know something about the attack or who may have been involved. While B. Y. was being questioned in the misconduct case, the officer received a telephone call informing him B. Y. had been seen wearing a hat similar to one that had been found near the scene of the attack. After the officer finished gathering information about B. Y.’s allegations of police misconduct, he showed the hat to B. Y. and asked if he knew anything about the attack case. B. Y. said no but immediately looked down at the floor as tears welled up in his eyes. The officer told B. Y. that, based on his emotional response to the question, he believed he did know something about the attack. B. Y. told the officer that he knew the name of the person who hit the victim and the name of another person who was involved. The officer asked B. Y. if he was there, and when B. Y. said yes, the officer stopped the questioning and called B. Y.’s mother, whom he had known for over 20 years. B. Y.’s mother came to the police station within a few minutes and was told by the officer that B. Y. said he was present during the attack and knew the other persons involved. The mother then proceeded to question B. Y. about the attack in the presence of the officer, and B. Y. described the attack and identified D. A. B. and another person, an adult, as participants in the attack. At that point, B. Y. was detained, and the officer gave B. Y. the Miranda warnings.

Evidence showed that B. Y. voluntarily met with the officer at the police station to give information about his claim that he was a victim of police misconduct. No evidence was presented which would compel the conclusion that B. Y. was in custody or that he was deprived of his freedom in any significant way when he made the statements to the officer. That the statements were given while B. Y. was at a police station, or that the officer suspected B. Y. knew something about the attack when he questioned him, does not require a finding that B. Y. was in custody or otherwise deprived of his freedom when he gave the statements. In the Interest of C. D. B., 214 Ga. App. at 656; Hendrix v. State, 230 Ga. App. 604, 605 (497 SE2d 236) (1998). Since the juvenile court’s admission of the statements as voluntary and noncustodial was supported by evidence and not clearly erroneous, it will not be disturbed on appeal. Id. at 606. The juvenile court did not err by denying the motion to suppress and by considering the statements B. Y. made in response to the officer’s questions.

Moreover, B. Y. admitted his presence at the attack and identified the others involved in response to questions posed by his mother. Based on B. Y.’s statements identifying others involved in the attack, police detained an adult on charges he participated in the attack, who then gave a statement indicating B. Y. and D. A. B. participated in the attack. D. A. B. also gave a statement to police indicating B. Y. participated in the attack. Police also obtained a statement from another person who said B. Y. told her months prior to the attack that he was planning to rob the victims, but at the time she did not think he would actually do so. There was no evidence that any of these subsequent statements were inadmissible or involuntarily obtained by coercive police tactics. It follows that, even if B. Y.’s statements in response to the officer’s questions were considered custodial and inadmissible for lack of Miranda warnings, the subsequent statements provided a sufficient basis for the juvenile court’s transfer order as to B. Y. and were not rendered inadmissible as the tainted fruit of B. Y.’s prior unwarned statements. Oregon v. Elstad, 470 U. S. 298, 314, 317-318 (105 SC 1285, 84 LE2d 222) (1985); Moore v. State, 263 Ga. 11, 12 (427 SE2d 766) (1993); Metheny v. State, 197 Ga. App. 882, 885-886 (400 SE2d 25) (1990).

3. Based on the statements made by B. Y., police detained D. A. B., gave him the Miranda warnings, and obtained his statement admitting his participation in the attack and identifying B. Y. and the detained adult as the other participants. D. A. B. contends his custodial statement was not voluntary because he was detained for a period of time without notification to his parents, and that the juvenile court erred by refusing to suppress the statement and by considering it as evidence in determining to transfer his case.

The following nine factors are considered in determining whether a juvenile knowingly and intelligently waived his constitutional rights in making an incriminating statement while in police custody. Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976).

(1) The age of the accused. D. A. B. was 16 years old at the time he was questioned, and our courts have approved statements obtained from younger juveniles. Williams v. State, 238 Ga. 298 (232 SE2d 535) (1977).

(2) The education of the accused. The record shows that D. A. B. was a high school student entering the eleventh grade.

(3) The knowledge of the accused as to the substance of the charge and nature of.his rights to consult with an attorney. D. A. B. did not testify at the hearing on the motion to suppress, but the record indicates that, prior to giving the statement, D. A. B. was informed of the nature of the charges and his constitutional rights under Miranda and signed a form waiving his rights.

(4) Whether the accused was held incommunicado or allowed to consult with relatives or an attorney. The record shows D. A. B. was in custody for about one hour and forty-five minutes prior to being questioned and that no relative or attorney was present during the questioning, although D. A. B.’s mother arrived about a half-hour after the questioning. Other evidence showed that D. A. B. had the means and opportunity to make contact by telephone while he was in custody, and there was no evidence that he was prevented from doing so.

(5) Whether the accused was interrogated before or after formal charges had been filed. It is not clear from the record when formal charges were filed, but D. A. B. was under arrest when he was questioned.

(6) The methods used in interrogation. The record shows that a juvenile court officer was present during the questioning, that D. A. B. agreed to answer the questions, and that no threats, coercion, or offers of a benefit or reward were used to induce answers.

(7) The length of the interrogation. The record shows there was a brief interrogation lasting approximately 15 to 20 minutes.

(8) Whether the accused refused to voluntarily give statements on prior occasions. There is no indication in the record that D. A. B. refused to give a statement on any prior occasion.

Decided September 3, 2002.

Almand & Wiggins, James L. Wiggins, for appellant (case no. A02A1474).

Hall & Hall, Clayton A. Hall, for appellant (case no. A02A1584).

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

(9) Whether the accused repudiated an extrajudicial statement at any later date. Nothing in the record shows that D. A. B. repudiated any of the statements he made.

A review of the record in light of these factors supports the juvenile court’s conclusion that D. A. B. knowingly and intelligently waived his constitutional rights and voluntarily made the statements at issue. State v. McBride, 261 Ga. 60, 63-64 (401 SE2d 484) (1991). The juvenile court did not err by denying D. A. B.’s motion to suppress and by considering his statement as evidence to support the transfer order. Moreover, as set forth in Divisions 1 and 2, supra, the juvenile court had ample evidence apart from D. A. B.’s statement to support its conclusion that D. A. B. participated in the attack and that transfer of his case was appropriate.

Judgments affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A1038.
    BORISON et al. v. CHRISTIAN et al.
    (570 SE2d 696)
   Miller, Judge.

The Borisons sued to recover a claimed overpayment to defendants Christian and Smith. There was no dispute that the amount defendants received from the Borisons for posting bail bonds for a Borison family member exceeded the then statutory maximum of ten percent, and the Borisons sought a refund of the excess over ten percent. We agree that the Borisons are entitled to recover such excess and reverse the grant of summary judgment to defendants.

In February 1997, bail of $1 million was set for Richard Borison. His family agreed to pay Christian and Smith $100,000 if they would post the bond. The property Christian and Smith put up, however, was accepted by the sheriff at a value of only $317,224. Thus, the Borisons were required to sign another bond for the remaining $682,776. The Borisons paid Christian and Smith the $100,000. The Borisons later sued Christian and Smith to recover damages of $68,277.60 — i.e., the excess of $100,000 over ten percent of $317,224.

The Borisons’ motion for summary judgment was denied, but they do not claim error in that regard. Christian then moved for summary judgment, and the trial court granted “Defendants’ ” motion. As to Smith, “our law . . . allows a trial court to grant, sua sponte, a summary judgment.” (Footnote omitted.) Tidwell v. Tidwell, 251 Ga. App. 863, 864 (554 SE2d 822) (2001).

1. It is a misdemeanor to receive bail bond compensation from anyone acting for a defendant in excess of the statutory maximum. OCGA § 17-6-30 (b). A threshold question is whether this statute provides a civil cause of action. OCGA § 17-6-30 does not explicitly create a civil cause of action, and a “violation of a penal statute does not automatically give a party injured by the violation a civil cause of action. [Cit.]” Hopkinson v. Hopkinson, 239 Ga. App. 518, 519 (1) (521 SE2d 453) (1999). Norris v. Sigler Daisy Corp., 260 Ga. 271 (1) (392 SE2d 242) (1990), however, indicates that a civil cause of action is available.

In Norris, a borrower sued to recover usurious interest he had paid. The Supreme Court of Georgia stated that “[a] threshold question ... is whether the provisions of the criminal usury statute have any applicability to a civil action.” 260 Ga. at 271 (1). Norris concluded that “a loan violative of the criminal usury statute is illegal, with the result that the lender forfeits the interest but may collect the principal.” Id. at 272 (1). Thus, the borrower was held entitled to recover the interest. Id. at 273 (4). As this is indistinguishable in principle from the case before us, we hold that a violation of OCGA § 17-6-30 does give the injured party a civil cause of action.

2. Neither party cites a case involving an attempted recovery of excessive charges for a bail bond, nor has our research of Georgia law revealed any such case. Chewning v. Huebner, 142 Ga. App. 112 (235 SE2d 573) (1977), is similar, however, in that the plaintiff recovered usurious interest. There, the borrowers had paid all the principal and interest on a loan and then sued to recover the interest on the ground that it was usurious. After noting that the facts were not in dispute and agreeing with the borrowers that the interest was in fact usurious, we held that the trial court erred in denying the borrowers’ motion for a directed verdict. Id. at 114.

The only difference of potential significance between Chewning and this case is that there, the plaintiffs were trying to recover all of the interest they paid, while here the plaintiffs are trying to recover only the excessive portion of the bail bond charge they paid. This difference is not significant, as it is simply a distinctive feature of post-1916 usury law that a person violating the civil usury provision, OCGA § 7-4-2, forfeits, pursuant to OCGA § 7-4-10 (a), the entire interest contracted for or received. Prior to legislative action in 1916, only the excessive interest was forfeited. Pave Way Constr. Co. v. Parrish, 187 Ga. App. 428 (370 SE2d 495) (1988).

Pave Way confirms that illegal contracts may be severable. Pave Way was a suit by unpaid lenders to collect principal and interest. The trial court granted summary judgment to the lenders for the principal, despite the claim of the borrowers that the usurious interest rendered even that uncollectible. The court granted summary judgment against the lenders on the interest, however. The borrowers appealed the ruling that the principal was collectible. We affirmed, rejecting the borrowers’ argument “that a usurious loan is totally void and unenforceable as an illegal contract pursuant to OCGA § 13-8-1,” and noting that “[s]aid code section . . . provides that the part of an illegal contract which is legal will not be invalidated by the part which is illegal.” 187 Ga. App. at 428; see Citizens Bank of Rome v. Hoyt & Co., 25 Ga. App. 222, 225 (102 SE 837) (1920).

Christian argues that the usury statute is a statutory exception, relying on a partially quoted statement from Pave Way, 187 Ga. App. at 429. The entire statement is that “fejven if it could be argued that the usurious terms of a contract could not be severed from its remaining terms, [OCGA § 7-4-10 (a)] would appear to establish an exception to the rule rendering illegal contracts void in their entirety.” (Emphasis supplied.) Id. Since Citizens Bank, supra, holds that the excessive portion of usurious interest can be severed from the legal part, we conclude that the excessive portion of a bail bond charge likewise can be severed from the legal part such that, under OCGA § 13-8-1, the legal part of the contract — compensation of ten percent of the principal amount — is not invalidated by the illegal part — the amount of the compensation in excess of ten percent.

Contending that the entire agreement was illegal and that therefore no court should step in to require reimbursement, Christian points to OCGA § 13-3-45, which provides: “If the consideration is good in part and void in part, the promise will or will not be sustained, depending upon whether it is entire or severable. If the consideration is illegal in whole or in part, the whole promise fails.” This statute first addresses a party’s attempt to enforce a promise on the basis of consideration flowing from that party, and the second sentence provides a shield to the promisor when the consideration is illegal. Here, however, the Borisons are attempting to recover the illegal part of the consideration paid for promises — to put up bail bonds — that have already been performed. As a defense, Christian is attempting to use OCGA § 13-3-45 as a shield against that recovery. That is not contemplated by the statute. Christian’s reliance on Minor v. McDaniel, 210 Ga. App. 146 (435 SE2d 508) (1993), is misplaced, as in that case we held that the trial court had correctly allowed the promisor to use OCGA § 13-3-45 as a shield against enforcement of a promise for which the consideration was illegal.

Decided September 4, 2002

Bell & Bell, David B. Bell, Sharon B. Enoch, for appellants.

Sam G. Nicholson, for appellees.

Henry R. Smith, pro se.

3. Finally, Christian claims that the Borisons cannot recover under OCGA § 13-1-13, which basically provides that a party may not recover payments voluntarily made unless they were made to release person or property from detention. Since the Borisons paid the money to release Richard Borison from detention, the statute’s exception applies, and recovery is not barred.

Judgment reversed.

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


text:
    A02A1081.
    DAVIDSON v. THE STATE.
    (570 SE2d 698)
   Miller, Judge.

Dominic Davidson appeals his conviction of possession of cocaine, contending that his motion to suppress the cocaine should have been granted because (1) the stop of his car was made without a reasonable articulable suspicion of criminal activity, (2) the discovery of the cocaine was the result of his illegal roadside detention, and (3) the chain of custody of the cocaine was not established. Discerning no error, we affirm.

The standard for reviewing a trial court’s decision on a motion to suppress is clear:

In reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision. Our Supreme Court has established three guiding principles for reviewing such rulings: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must .be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation, punctuation and emphasis omitted.) State v. Braunecker, 255 Ga. App. 685-686 (566 SE2d 409) (2002). Moreover, “in reviewing the denial of a motion to suppress, this Court may consider both the transcript of the motion hearing and the trial transcript.” (Citation omitted.) Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997); accord Goddard v. State, 244 Ga. App. 730, 731 (1) (536 SE2d 160) (2000).

Construed in the light most favorable to the court’s ruling, the evidence showed that the arresting officer was traveling in a marked patrol car on a two-lane portion of an interstate just past an exit when he noticed Davidson, about two car lengths ahead of him and in the lane to his right, slow down, roll his window down, and “flag[ ] at me, waving his hand and turning back in his seat in my direction . . . trying to get my attention.” The officer pointed for Davidson to pull over, and he did so. Without activating blue lights, the officer pulled over to the other shoulder. Davidson then ran across the interstate in medium to heavy traffic to the officer, who asked him to go back to his car carefully so the officer could move his unit over to the other shoulder behind Davidson. Once behind Davidson’s car, the officer activated his blue lights for safety and exited his unit to determine what was going on.

Davidson indicated he had to use the bathroom and wanted to know where the nearest restroom was. He was extremely excited, stood very close to the officer, talked very fast, and was jumpy and nervous; also, his concentration was short, he was looking around, and his hands were moving a lot. He asked whether the officer would arrest him if he went off to the tree line, presumably to urinate, and the officer said he would not. Less than a mile earlier, Davidson had passed an exit with signs indicating that there were gas stations. The officer felt he needed to “look a little further” because “whenever somebody . . . overdoes something, there is usually a reason.”

The officer thought the reason Davidson was so jumpy might have been his physical distress, but when Davidson returned, his demeanor was still the same, and the officer asked to see his driver’s license. Davidson hesitated and said he needed to get to Charlotte as soon as possible, but he cooperated. When he pulled his license out of his wallet, the officer saw a second one, which he asked to see. The second license turned out to be torn up and expired. While checking the first license, the officer noticed that Davidson was in an extreme hurry to leave.

The officer also asked for an insurance card, and Davidson got back in the driver’s seat, looked around very quickly (though not in the glove compartment), and said he did not know where it was; he then put the key into the ignition and looked up into the mirror. Something felt wrong to the officer, who feared Davidson might be about to drive off, so he had Davidson step to the back of his car so the officer could ask him a few more questions. The officer asked him if he had any weapons, large amounts of currency, or drugs. Davidson replied that he did not; but his nervousness and excessive politeness made the officer suspicious, and he asked Davidson who owned the car. Davidson responded that a friend owned it.

The officer then asked Davidson whether he could search the car, and he took Davidson’s evasive response as a refusal. He then got his drug-sniffing dog out of his unit and, without objection from Davidson, walked the dog around Davidson’s car. This occurred less than five minutes after Davidson’s return from the tree line. The dog alerted on the front passenger door. By then backup had arrived, and the original officer took the keys from the ignition, unlocked the glove compartment, and found a manila envelope inside. Upon opening the envelope, the officer found two bags of a substance he suspected was cocaine and arrested Davidson. A further search of the car revealed $207 in currency.

1. (a) Davidson first claims error in the denial of his motion to suppress because, he says, the stop of his car was made without a reasonable articulable suspicion of criminal activity. In Childress v. State, 251 Ga. App. 873, 874 (1) (554 SE2d 818) (2001), the officer noticed a car that appeared to have run off the road. He did not see anyone near it and had not seen anyone walking before coming to it. Id. Accordingly, he continued in the direction he had been heading to see if the driver needed assistance. Id. After about two miles he came across the defendant and approached him without engaging his siren or emergency equipment. Id. at 874-875 (1). As the defendant stood up, the officer noticed that he was unsteady on his feet. Id. at 875 (1). The officer further observed that the defendant’s speech was slurred, his eyes were red and glassy, and he smelled strongly of alcohol. Id. The defendant admitted that he had been driving the car the officer had seen and that he had run off the road. Id.

We held that this evidence showed that the officer’s initial approach to the defendant was “solely to determine if he were a motorist in need of assistance” and that it therefore was a first-tier police-citizen encounter, which “provides no Fourth Amendment protection” — i.e., does not require a particularized and objective basis for suspecting criminal activity, as does a second-tier encounter. Childress, supra at 875-876 (1). Similarly, here it appeared that Davidson was signaling to the officer that he was in need of some kind of assistance, and thus, as in Childress, the officer’s initial approach to Davidson was “solely to determine if he were a motorist in need of assistance.” Id. at 876 (1). Accordingly, we find no merit to this claim of error.

(b) Davidson next contends that the trial court erred in denying his motion to suppress the cocaine evidence, arguing that it was obtained as a result of his illegal detention. We disagree.

As an initial matter, asking to see Davidson’s license and proof of insurance upon his return from the tree line was permissible because an officer may ask to see such documentation during a first-tier police-citizen encounter. Davis v. State, 237 Ga. App. 890, 891 (517 SE2d 115) (1999). “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.” (Citation omitted.) Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999). The evidence does not reveal that the officer forced or coerced Davidson into complying with his initial requests. To the contrary, the questions asked and requests made were all part of a conversation that was consistent with a first-tier police-citizen encounter. See id. at 233.

The incident did, however, move from a first-tier to a second-tier encounter (requiring reasonable suspicion of criminal activity) after the officer removed Davidson’s keys from the ignition, indicating that Davidson was no longer free to leave. Cf. Kelly v. State, 129 Ga. App. 131, 133 (2) (198 SE2d 910) (1973) (defendant was not free to leave where officers approached a stopped vehicle brandishing a pistol and badge and asked for the keys). Even so, we find this court’s decision in Warren v. State, 254 Ga. App. 52, 55 (2) (561 SE2d 190) (2002), to be controlling and hold that the officer’s actions were permissible in this case.

In Warren a police officer asked to see a driver’s vehicle registration as a matter of routine. Id. at 52. The driver said that it was in a folder in the backseat, which seemed unusual to the officer, since, in his experience, most people keep their registration in the glove box. Id. at 52-53. When the officer approached the car and asked the passenger to hand him the vehicle registration, he noted that the passenger was extremely nervous and that he would not look at the officer or acknowledge him in any way, and when he opened the folder he began dropping papers on the floor and picking them up again. Id. at 53. The officer testified that the passenger was unusually nervous for a passenger; he described him as “freaked out.” (Punctuation omitted.) Id.

The officer asked the driver if he could search the vehicle, and the driver responded that the officer could do a plain view search, but he could not open anything. Warren, supra. His suspicions further aroused by this use of legal language, the officer asked a second deputy to perform an exterior free air sniff of the vehicle with his drug dog. Id. At this time, only two to three minutes had elapsed since the initial stop. The dog alerted to the driver’s side door, and the first officer searched the vehicle. The glove compartment was locked; the officer obtained the key and found a brown paper bag containing suspected cocaine.

In upholding the denial of the motion to suppress in Warren, we noted that

The request to search was made immediately after [the officer’s] encounter [with the passenger], and neither the request nor the questioning of the passenger unreasonably prolonged the detention. . . . The dog was already present on the scene, and [the driver] and [the passenger] therefore were not detained for the purpose of bringing a drug dog to the scene to investigate. The drug dog’s exterior free air sniff . . . did not intrude into the interior of the car. . . . [T]he alert of a trained narcotics dog, standing alone, [is] sufficient to provide probable cause for the search of a vehicle.

(Citations and punctuation omitted.) Id. at 55 (2).

Here, after observing the driver’s nervousness and strange behavior, the officer had a strange encounter with him over the insurance card similar to the encounter in Warren over the vehicle registration. There ensued some questioning that, as in Warren, did not unreasonably prolong the detention, and immediately thereafter, as in Warren, the officer asked for permission to search the vehicle. After permission was apparently denied (in Warren it was only partially denied), the officer performed an exterior free air sniff with a drug dog that was already present on the scene. The use of the drug dog here occurred less than five minutes after Davidson’s return from the tree line, similar to the two to three minutes in Warren.

Also as in Warren, the dog’s exterior free air sniff did not intrude into the interior of the car. See Rogers v. State, 253 Ga. App. 863, 865 (1) (560 SE2d 742) (2002) (“The . . . driver of an automobile has no reasonable expectation of privacy in the airspace surrounding his car. . . . [T]he drug dog’s sniffing of the exterior of the vehicle did not constitute a search within the meaning of the Fourth Amendment. . . .”). Finally, as in Warren, the dog’s alert provided probable cause for the ensuing search. Accordingly, this claim of error fails.

2. Davidson claims that the trial court erred in ruling that the chain of custody of the cocaine was established. The arresting officer, upon finding the bags of suspected cocaine in the envelope in the glove compartment of the car Davidson was driving, placed the material in the trunk of his patrol car. Upon arrival at the sheriff’s department, he properly bagged the drugs, took a photograph of them, and placed them in the evidence locker to be turned in to the evidence custodian. He signed a Property and Evidence Record showing he relinquished two bags of white powder having a weight of approximately 269.3 grams to locker number five. He did not put any identification marks on the bags. The only individuals with access to that locker were the evidence custodian, who was part of the investigations division of the sheriff’s department, and the supervisor of that division.

On the same day, the evidence custodian removed the bags from the locker and placed them in the drug file in the evidence room. The only individuals with access to that room were, again, the custodian and the supervisor. The custodian did not put any markings on the bags. Approximately two months later, the evidence custodian turned the bags over to a person at the crime laboratory, although, when testifying at trial three years later, he did not recall the identity of that person.

The crime lab employee who took them from the lab lockbox wrote a lab case number and his initials on them at the time he took them. That employee’s employment at the lab later ceased, and another lab employee was given a box of the first employee’s “uncompleted evidence” to analyze. The first employee had never opened the bags, and there was no evidence of tampering. The second employee was the only person to have access to the bags after receiving them. He was unsure of the identity of the individual from whom he received them.

Approximately a year and a half after the bags arrived at the lab, the second employee analyzed their contents and determined their aggregate weight as 249.9 grams. He always checks to make sure the lab case number on the evidence matches what is in the lab computer. After cutting the bags to remove samples of their contents for analysis, he taped over the cuts and wrote on the tapes the current date, the lab case number, his initials, and “A” on the tape on one bag and “B” on the tape on the other. He brought the bags to the trial. In 1998 several people were fired from the lab for mishandling and mislabeling evidence, but the first employee was not one of them.

We recently reiterated the chain of custody standard in Riddles v. State, 251 Ga. App. 525, 527 (2) (554 SE2d 737) (2001), a case in which the crime lab chemist did not personally receive the marijuana from the drug enforcement officer and was not the only person with access to the evidence vault. Thére, in finding that the chain of custody had been established, we quoted the following from Johnson v. State, 271 Ga. 375, 382 (13) (519 SE2d 221) (1999), cert. denied, 528 U. S. 1172 (120 SC 1199, 145 LE2d 1102) (2000):

[W]hen blood samples are handled in a routine manner and nothing in the record raises a suspicion that the blood sought to be admitted is not the blood tested, the blood is admissible and the circumstances of each case need only establish reasonable assurance of the identity of the sample. Absent affirmative evidence of tampering, mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury.

Riddles, supra; see also Armstrong v. State, 274 Ga. 771, 772 (2) (560 SE2d 643) (2002) (“When the State seeks to introduce into evidence an item that is subject to the chain of custody rule, it must establish with reasonable assurance that the item seized is the same as the item being offered into evidence.”) (footnote omitted); Givens v. State, 214 Ga. App. 774-775 (2) (449 SE2d 149) (1994) (lack of testimony by crime lab employee who originally received exhibits does not break the chain of custody).

Davidson relies on the fact that the crime lab weight (249.9 grams) is less than that ascertained by the sheriff’s department (269.3 grams). Even assuming this point was preserved for review, the crime lab weight is only approximately 7.2 percent less than that of the sheriff’s department. In Richards v. State, 189 Ga. App. 146, 147 (1) (375 SE2d 278) (1988), we found the chain of custody not broken where “[although . . . the laboratory received] a weight [of a cocaine sample] approximately one ounce greater than was recorded as sent, there is no evidence suggesting that this was caused by tampering or that it was anything other than a weighing or recording error.” Neither do we find the discrepancy in weights here to be material. Langham v. State, 196 Ga. App. 71 (1) (395 SE2d 345) (1990).

Davidson also relies on Meeks v. State, 150 Ga. App. 170 (257 SE2d 27) (1979). There “[t]he container of marijuana was never marked, the officer could not recall what it looked like, and there may have been other such containers in his briefcase.” Id. at 171. In Davidson’s case, however, the bags had been marked before being put into the box with other uncompleted evidence. We thus find no error in the trial court’s ruling that the chain of custody of the cocaine was established.

Judgment affirmed.

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

Decided September 4, 2002.

William D. Healan III, for appellant.

Timothy G. Madison, District Attorney, for appellee.


text:
    A02A1338.
    DYER v. THE STATE.
    (570 SE2d 692)
   Miller, Judge.

Tony Dyer appeals from his conviction for possession of cocaine and for possession of marijuana, both with the intent to distribute. He contends that (1) prosecutorial misconduct occurred in cross-examining him, (2) he was denied rights under the federal and state confrontation clauses, (3) the chain of custody of certain evidence was not established, (4) similar transaction evidence was erroneously admitted, (5) the term “bent of mind” is unconstitutionally vague, (6) police officers gave improper expert opinion testimony, and (7) his counsel was unfairly caught unprepared for the officers’ expert testimony. Since Dyer waived almost all of these issues below, and since the remaining enumerations are without merit, we affirm his convictions.

Obtaining consent from Dyer to search, police found clear plastic bags containing numerous smaller baggies of marijuana and cocaine concealed in the toilet tank in a Cobb County motel room occupied by Dyer and two companions. Dyer and one of his companions possessed large amounts of cash. Based on this and other evidence, Dyer was convicted of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. The court denied his motion for new trial.

1. Dyer first claims error in the denial of his motion for a mistrial made on the ground of prosecutorial misconduct. Dyer testified on direct that, at the door of the room in which he and his companions were arrested, he told one of the officers: ‘You don’t smell marijuana coming out of this room. If you smell marijuana, it’s out there.” On cross-examination, the prosecutor queried him whether he replied “yes” when asked by police officers if he and his companions had “smoked all the marijuana.” Dyer moved for a mistrial, arguing that the prosecutor had no good faith basis for asking such a prejudicial question. The prosecutor quoted to the court from the police report regarding the incident, which was consistent with her question to Dyer. The court denied the motion. Dyer then testified that he did not remember if he made the referenced statement.

It is true that “counsel may not . . . inject extrinsic, prejudicial matters that have no basis in the evidence. . . .” (Citation omitted.) Pace v. State, 271 Ga. 829, 843-844 (32) (a) (524 SE2d 490) (1999), cert. denied, 531 U. S. 839 (121 SC 101, 148 LE2d 60) (2000). On the other hand, “[t]he State is permitted to rebut statements of a defendant who testified at trial by disproving the facts to which the defendant testified.” (Citation omitted.) Bowers v. State, 241 Ga. App. 122, 124-125 (5) (526 SE2d 163) (1999). Moreover, while cross-examining a defendant, an attack on the credibility of his testimony is “an area certainly within the appropriate scope of cross-examination.” (Citations and punctuation omitted.) Ross v. State, 192 Ga. App. 65, 67 (3) (383 SE2d 627) (1989).

Here the prosecutor’s question was merely an attempt to rebut and attack the credibility of Dyer’s testimony on direct. She based the question on information contained in a police report of the arrest. Accordingly, we find no abuse of discretion in the denial of Dyer’s motion for a mistrial.

2. Dyer contends that asking him the above-referenced question denied him his rights under the Sixth Amendment and Ga. Const, of 1983, Art. I, Sec. I, Par. XIV. He argues that since the officer who wrote the police report (that was the basis for the question) did not testify, he was denied his right to be confronted with the witnesses against him. This argument, however, has not been preserved for review, as neither Dyer’s objection to the question nor his subsequent motion for a mistrial raised this constitutional point. See Heidler v. State, 273 Ga. 54, 60 (7) (537 SE2d 44) (2000) (“[Appellant] waived the right to raise [violation of the confrontation clause] on appeal by failing to object to the admission of the videotapes on that ground.”) (citation omitted), cert. denied, 532 U. S. 1029 (121 SC 1979, 149 LE2d 771) (2001).

Dyer correctly notes that he raised this issue in his motion for a new trial. This was too late, however. See Aldridge v. State, 237 Ga. App. 209, 212 (2) (515 SE2d 397) (1999) (raising evidentiary arguments for the first time in a motion for new trial is too late and does not preserve the issue for appellate review).

3. Dyer next claims that the chain of custody of the cocaine was not established. This claim likewise has not been preserved for review. During the direct examination of the narcotics officer to whom the cocaine was turned over by the arresting officers, Dyer objected to the admission of the cocaine on the basis that chain of custody had not been shown. The trial court reserved ruling until Dyer had an opportunity to cross-examine the officer. At the conclusion of the ensuing cross-examination, the State renewed its motion to admit the cocaine, which the court granted when Dyer’s counsel made no objection. As there was no contemporaneous objection at the time the evidence was retendered and admitted, Dyer waived his chain of custody objection. See Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722) (1996) (“The contemporaneous objection rule has long been a mainstay of Georgia trial practice. [Cits.]”); Newton v. State, 226 Ga. App. 501, 503 (3) (486 SE2d 715) (1997) (failure to make chain of custody objection waives any error); Geoffrion v. State, 224 Ga. App. 775, 779 (6) (482 SE2d 450) (1997) (chain of custody objection must be contemporaneous with effort to admit the evidence), overruled on other grounds, Mullins v. State, 270 Ga. 450, 451 (511 SE2d 165) (1999). His belated renewal (six transcript pages later) of his trial motion to exclude the evidence is of no help, as he failed to obtain a ruling even on this motion. See Harris v. State, 190 Ga. App. 343, 348 (4) (b) (378 SE2d 912) (1989) (“ Tt is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver. [Cits.]’ ”).

4. Dyer claims that the evidence of a similar transaction was erroneously admitted because it was not sufficiently similar. The similar transaction was Dyer’s 1997 conviction for possession of cocaine and for possession with intent to distribute cocaine within 1,000 feet of a housing project. The similarities between the charged crime and the previous offense are that in both transactions (a) they occurred in Cobb County during the daytime in areas known for high drug activity; (b) Dyer was acting in concert with others; (c) Dyer gave police consent to search but nevertheless attempted to conceal drugs from detection by police; and (d) police found Dyer with crack cocaine packaged in a similar manner for individual street sales. In light of these similarities, we discern no abuse of discretion in the trial court’s decision to admit the similar transaction. See Mitchell v. State, 249 Ga. App. 520, 521-522 (1) (548 SE2d 469) (2001) (“Evidence of prior drug convictions evincing similar facts are often admissible as similar transactions in drug prosecutions. . . . Tf 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.’ ”) (footnote omitted).

5. Dyer next contends that the term “bent of mind” in the context of similar transaction evidence is unconstitutionally vague. Dyer, however, did not make this argument at trial and therefore did not preserve this issue for review. See Heidler, supra, 273 Ga. at 60 (7); Allsup v. State, 250 Ga. App. 53, 54 (1) (550 SE2d 425) (2001).

6. Dyer claims that three police officers gave improper expert opinion testimony. Specifically, Dyer complains that one officer distinguished the evidence indicating possession with intent to distribute from the evidence indicating mere possession; that another officer testified that 36 bags of cocaine indicated an intent to sell the drug; and that a third officer testified that based on his experience, $20 was a common sum for a single purchase of crack cocaine. Dyer, however, did not interpose an objection to any of this testimony. Under the contemporaneous objection rule, these issues are waived. Butts v. State, 273 Ga. 760, 769 (20) (546 SE2d 472) (2001), cert. denied, 534 U. S. 1086 (122 SC 824, 151 LE2d 705) (2002); see Sharpe, supra, 267 Ga. at 267 (1).

Decided September 4, 2002

Nicholas Pagano, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

7. Dyer contends that his trial counsel was unfairly caught unprepared for the expert testimony of the three police officers and could not adequately cross-examine their qualifications or opinions. This issue was not raised at trial, however, as Dyer made no objection on this ground. Accordingly, Dyer has waived this point. Clark v. State, 248 Ga. App. 88, 91 (3) (545 SE2d 637) (2001).

Judgment affirmed.

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


author: Johnson, Presiding Judge.

text:
    A02A0882.
    FRESH FLOORS, INC. v. FORREST CAMBRIDGE APARTMENTS, LLC.
    (570 SE2d 590)
   Johnson, Presiding Judge.

This appeal is from the trial court’s denial of the plaintiff’s motion for attorney fees following the entry of a default judgment in the plaintiff’s favor.

Fresh Floors, Inc. sued Forrest Cambridge Apartments, LLC after Forrest Cambridge failed to pay for flooring supplied and installed by Fresh Floors. In its verified complaint and motion for attorney fees, Fresh Floors alleged that Forrest Cambridge: purchased goods and services from Fresh. Floors; incurred a debt of $17,496; had no dispute regarding the debt, goods, or services; refused to pay the debt; caused Fresh Floors unnecessary trouble and expense by refusing to pay; and acted in bad faith in accordance with OCGA § 13-6-11. Fresh Floors attached a document to the complaint showing charges to Forrest Cambridge’s account.

Forrest Cambridge failed to answer the complaint, and Fresh Floors moved for a default judgment and attorney fees. Forrest Cambridge responded to the motion, claiming it had not been properly served with process, Fresh Floors had not attached documents necessary to prove its case, and attorney fees were not recoverable because Forrest Cambridge did not act in bad faith, was not stubbornly litigious, and did not cause unnecessary trouble and expense. After a hearing, the trial court granted Fresh Floors’ motion for default judgment, but denied its request for attorney fees, finding that Forrest Cambridge had not acted in bad faith, was not stubbornly litigious, and did not cause unnecessary trouble and expense. Fresh Floors appeals from the denial of its motion for attorney fees. We reverse the trial court’s judgment as to attorney fees.

Expenses of litigation generally are not allowed as a part of damages; but where the plaintiff has specially pleaded and prayed for them, and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, litigation expenses may be allowed. A mere refusal to pay a just debt, standing alone, is insufficient to support an award of attorney fees under OCGA § 13-6-11. But such a refusal may be sufficient when it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. We have previously upheld awards pursuant to OCGA § 13-6-11 which arose out of the defendant’s actions in breaching the contract, where the refusal to pay a debt was not made in good faith but was an attempt to defeat the clear intent of the contract. Where no defense exists, a defendant who forces a plaintiff to resort to the courts in order to collect a debt is plainly causing him “unnecessary trouble and expense.”

In this case, Fresh Floors alleged that Forrest Cambridge owed the money, did not pay, and did not dispute the validity of the debt, and that Forrest Cambridge acted in bad faith and caused unnecessary expense by making it resort to litigation to recover the payments due on the account. Forrest Cambridge has not argued that it does not owe the money, only that it was not properly served with the suit, that Fresh Floors did not attach the proper evidence to its complaint, and that it does not owe attorney fees. The first two arguments concern issues arising after the suit was filed. But the element of bad faith that will support a claim for litigation expenses under OCGA § 13-6-11 must relate to the acts in the transaction itself prior to the litigation, not to the conduct during or motive with which a party proceeds in the litigation. And statutory recovery for causing unnecessary trouble and expense is authorized if there exists no bona fide controversy or dispute regarding liability for the underlying cause of action. Thus, Forrest Cambridge’s arguments regarding issues arising after suit was filed are of no avail. Forrest Cambridge’s contention as to the impropriety of an attorney fee award is similarly without merit.

Decided August 12, 2002

Reconsideration denied September 5, 2002

Isenberg & Hewitt, Harriet C. Isenberg, for appellant.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellee.

Here, there was no bona fide controversy, and Forrest Cambridge caused Fresh Floors unnecessary trouble and expense by forcing Fresh Floors to resort to litigation to collect the undisputed debt. The fact that judgment was entered by default does not make an award of attorney fees improper.

Moreover, when a case is in default, the plaintiff is entitled to judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence.” In its complaint and motion for attorney fees, Fresh Floors alleged that Forrest Cambridge incurred the debt, did not dispute the validity of the debt, refused to pay despite numerous demands, caused Fresh Floors unnecessary trouble and expense by refusing to pay the debt, and acted in bad faith. By failing to respond to the allegations, Forrest Cambridge admitted the facts alleged in the complaint and waived any defenses thereto. The trial court erred in denying Fresh Floors’ motion for attorney fees.

We therefore reverse the trial court’s ruling that Forrest Cambridge is not required to pay attorney fees. And we remand the case with direction that the trial court determine the amount of those fees and then enter an award in that amount.

Judgment reversed and case remanded.

Blackburn, C. J., and Miller, J., concur.

       OCGA § 13-6-11; Sylar v. Hodges, 250 Ga. App. 42, 43, n. 1 (550 SE2d 438) (2001).

        Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 507-508 (3) (556 SE2d 554) (2001).

       Id.

       Id.; Ishak v. Lanier Contractors Supply, 254 Ga. App. 237, 238 (2) (561 SE2d 883) (2002) (“bad faith” fee award authorized where defendant discontinued all payments for materials, when some payment was indisputably due).

        Clements v. Barnes, 197 Ga. App. 120, 121 (2) (397 SE2d 560) (1990); Rogers v. Ga. Ports Auth., 183 Ga. App. 325, 329 (3) (358 SE2d 855) (1987).

        David G. Brown, P.E. v. Kent, 274 Ga. 849, 850 (561 SE2d 89) (2002).

       Id.

       See Clements, supra.

        Harbor Light Marina v. Ellis, 190 Ga. App. 389, 390 (3) (378 SE2d 746) (1989), overruled in part on other grounds, Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000).

       OCGA § 9-11-55 (a); see ServiceMaster Co. v. Martin, 252 Ga. App. 751, 752 (1) (556 SE2d 517) (2001).

       See Harvey v. Lindsey, 251 Ga. App. 387, 392 (3) (554 SE2d 523) (2001).