text:
    A96A1226.
    MITCHELL v. THE STATE.
    (477 SE2d 612)
   McMurray, Presiding Judge.

Defendant Mitchell appeals his conviction of robbery (by force), kidnapping, and aggravated assault. Held:

1. The first enumeration of error maintains that the jury charge was deficient in that it stated that “defendant is presumed to be innocent until proven guilty” and that “this presumption remains with the defendant until it is overcome by the State. . . .” (Emphasis supplied.) Basically, defendant’s argument is that use of the word “until” alone implies that the State has satisfied its burden, is a comment on the evidence, and shifts the burden of proof to the defendant. The only authority cited by defendant is merely an approval of an instruction which contains the phrase “unless and until” rather than the single word “until.” See Reeves v. State, 241 Ga. 44, 48 (4) (243 SE2d 24). This argument overlooks numerous cases which similarly approve of charges which are virtually the same as that given in the case sub judice. See Cunningham v. State, 221 Ga. App. 341 (1) (471 SE2d 273). While we are unaware of any substantial difference in the essence of these alternative phrases, we do note that the charge given in this case also contains, immediately following the language of which defendant complains, the statement that “[n]o person shall be convicted of any crime unless and until each element of the crime is proved beyond a reasonable doubt.” (Emphasis supplied.) This enumeration of error lacks merit.

2. In Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175), our Supreme Court recommended against the use of a potentially misleading presumption-of-truthfulness charge. See also Henson v. State, 205 Ga. App. 419, 420-421 (3) (c) (422 SE2d 265). In his second enumeration of error, defendant contends that the trial court disregarded this direction by instructing the jury that where there was a conflict in the testimony “it is your duty to settle this conflict, if you can, without believing that any witness made a false statement.” Defendant’s contention that this instruction interfered with the jury’s factfinding role has been previously considered and rejected. Jackson v. State, 214 Ga. App. 683, 684 (2) (448 SE2d 763).

3. Next, defendant contends that the trial court erred in allowing the admission into evidence of a photograph showing defendant at the time of his arrest, handcuffed and dressed in a blood-stained shirt. Contrary to defendant’s assertion the photograph in question did not lack probative value since the testimony of several witnesses described the perpetrator as wearing a similar shirt and the stain was shown by DNA to be the victim’s blood. Furthermore, admission of the photograph did not conflict with the holdings in Heard v. State, 257 Ga. 1 (354 SE2d 115) or Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88), cases involving distinguishable factual circumstances.

4. During the jury selection process, one juror passed a note to the trial court expressing concern as to whether defendant was an employee he had once fired. The trial court read the note into the record and the juror was called in to face the defendant in order to determine if defendant was the person the juror remembered. When it was established that defendant was not that person, the juror stated, “Okay. Then I don’t think we have a problem.” Since there was no irregularity in the conduct shown, defendant’s reliance on Moore v. State, 184 Ga. App. 524 (362 SE2d 76) is misplaced.

Nor is any issue preserved for appellate review. Defendant’s trial counsel acquiesced in the procedure used to resolve the issue raised by the juror’s note and no timely objection concerning this matter was raised, the issue having been argued for the first time in defendant’s motion for new trial.

5. Defendant contends that his trial counsel was deficient in several respects. The burden is on defendant to show that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 2064, 80 LE2d 674); Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590).

Defendant argues that trial counsel’s performance was deficient due to her failure to raise a good character defense and due to her failure to request instructions to the jury on this issue. However, this Court has held that strategic or tactical decisions at trial are the exclusive province of the lawyer, and decisions concerning whether to call character witnesses and whether to place the defendant’s character in issue are matters of strategy or tactics such as do not equate with ineffective assistance of counsel. Owens v. State, 207 Ga. App. 153, 154 (1), 155 (427 SE2d 529).

Next, defendant contends that his trial counsel was ineffective in allowing a partial and biased juror to serve on the panel. The juror in question passed a note to the trial court stating that defendant looked like an employee he had once fired. Once it was established that defendant was not that employee the juror responded, “Then I don’t think we have a problem, then.” Contrary to defendant’s assertion, we see no way in which this transaction can be viewed as an exhibition of malice or ill feeling towards defendant. Therefore, trial counsel’s decision to not strike this juror does not appear to be deficient conduct.

Finally, contrary to defendant’s assertion, his trial counsel did not fail to present evidence to show a coherent alternative theory of the case. The addition of further potential evidence referenced by defendant in his argument on appeal would have added little or nothing to theory presented by defendant at trial. “The fact that [defendant] and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [defendant] received representation amounting to ineffective assistance of counsel. Van Alstine v. State, 263 Ga. 1, 4-5 (426 SE2d 360) (1993).” Stewart v. State, 263 Ga. 843, 846 (6), 847 (440 SE2d 452).

6. The next enumeration of error contends the defendant was denied effective assistance of counsel when trial counsel did not object to evidence of defendant’s post Miranda silence. A police detective, on direct examination, testified as to reading defendant his rights as set out in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). The following questions and answers followed: “Q. Did the defendant at that time speak to you, sir? A. No, he didn’t. After I read him his rights, he didn’t say anything. All he said was that he wanted an attorney and he kept saying it over and over. Q. Did he cooperate with you in any way as far as normal identifying information? A. No, he refused to give me any information pertaining to his name, date of birth, address.” On cross-examination, defense counsel elicited a repetition of essentially the same testimony with the addition of the exact language of the rights read to defendant.

As stated in Gibbs v. State, 217 Ga. App. 614, 615 (458 SE2d 407), in order to warrant reversal of a conviction, the evidence of defendant’s choice to remain silent must point directly at the substance of defendant’s defense or otherwise substantially prejudice defendant in the eyes of the jury. And this was simply not the case here. The defendant was merely shown to have exercised the rights of which he had just been informed and there was nothing linking this conduct to any inference of guilt. Any constitutional error was harmless. We find no error in the trial court’s conclusion that defendant did not establish ineffective assistance of counsel.

7. The victim remained in the courtroom after she testified. While a police detective was testifying, evidence was elicited that the victim’s handbag was never found following the crimes at issue. The victim told the assistant district attorney that in fact the purse had been found and returned to her a few weeks after the crimes. During a pause in the proceedings, the assistant district attorney speaking in the victim’s presence told the detective about this new information. Shortly thereafter the trial resumed and testimony concerning the recovery of the handbag was elicited from the detective. Defense then requested a bench conference which was followed by a conference on the record outside the presence of the jury at which defendant moved for a mistrial based on violations of the rule of sequestration. This motion was denied and the victim later returned to the stand to give testimony concerning the return of the handbag. Defendant now contends that it was error to permit the victim to testify again. However, it has often been held that a witness permitted to remain in the courtroom following their testimony may return to the stand even after hearing the testimony of other witnesses, and also that in the absence of a timely request the trial court does not err in failing to instruct the jury on the credibility of a witness who has heard the testimony of other witnesses. Dunbar v. State, 209 Ga. App. 97 (1) (432 SE2d 829).

Decided October 11, 1996

Reconsideration denied October 24, 1996.

8. Witness O’Brien was not permitted to testify for the State during its case-in-chief. However, this witness was allowed, over defendant’s objection, to testify as a rebuttal witness giving rise to a contention that the jury improperly heard her testimony.

The exclusion of this witness from the State’s case-in-chief has no relevance to her status as a rebuttal witness. Leatherwood v. State, 212 Ga. App. 342, 343 (3), 344 (441 SE2d 813). The purpose of rebuttal evidence is to refute or explain any or all of defendant’s evidence. Wheeler v. State, 203 Ga. App. 831 (2), 833 (418 SE2d-112). Since this witness was able to give such testimony she was a proper rebuttal witness and the trial court did not err in permitting her to testify.

9. In the absence of any request, it was not error for the trial court to fail to charge specifically on alibi. Rivers v. State, 250 Ga. 288, 299 (8), 300 (298 SE2d 10).

10. With his final enumeration of error, defendant questions the sufficiency of the evidence to authorize his conviction. The victim identified defendant as the person who dragged her from the street to a garage where he beat her, including shoving her head against a wall, and robbed her. Defendant testified that he was a hapless passerby who found the victim unconscious and attempted to aid her only to have her awake and accuse him of the crimes committed against her by another. While there are conflicts in the State’s evidence as to the chronology of the events and questions as to the relative credibility of witnesses, such issues are within the exclusive province of the jury. On appeal, we do not weigh the evidence but only determine whether it is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In this case, the evidence is sufficient to authorize a rational trier of fact to conclude that defendant is guilty beyond a reasonable doubt of the crimes of which he has been convicted. Jones v. State, 220 Ga. App. 161 (1), 162 (469 SE2d 300); Weeks v. State, 220 Ga. App. 141, 143 (2) (469 SE2d 316).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

Rodney S. Zell, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Charles E. Rogers, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A96A2169.
    HOWARD v. STATE OF GEORGIA.
    (477 SE2d 605)
   Eldridge, Judge.

The State filed a complaint for forfeiture of $3,910 in currency on February 14, 1996. Appellant, Gary Howard, was personally served on March 19, 1996. The appellant filed an answer on April 12, 1996. On April 23, 1996, the State filed a motion to strike appellant’s answer and claim. A civil forfeiture hearing was held on May 9, .1996, for which no transcript exists. On May 10, 1996, an order was entered by the trial court holding: “On May 9, 1996, the [c]ourt granted the [S]tate’s motion to strike [claimant Gary Howard’s answer and claim because they were legally insufficient in as much as no date, identity of transferor, or circumstances of acquisition were enumerated . . .” and entered an order forfeiting the money to the State.

Appellant alleges that “the trial court erred in holding that appellant’s answer and claim were legally insufficient on the grounds that no date, identity of transferor, or circumstances were enumer- . ated, when in fact the claim conformed to the statute to the best of claimant’s ability, the only lack of particularized specificity being that the claimant ‘lawfully obtained’ the currency in his possession (a fungible property) when he had in fact accumulated it lawfully from various sources.” In addition, appellant claims that his “answer should have been deemed sufficient for this stage in the proceedings.”

In the case sub judice, appellee, in paragraph 6 of the complaint for forfeiture, alleges that the property in question was contraband and forfeited to the State pursuant to the provisions of OCGA § 16-13-49 “in that said property was used or intended for use in any manner to facilitate a drug transaction.” This made out á prima facie case for civil forfeiture of the cash as contraband. “The onus was then on [the] claimant to establish both his standing to contest the forfeiture and his entitlement to a statutory exception. [Git.]” Jackson v. State of Ga., 218 Ga. App. 437, 438 (461 SE2d 594) (1995).

“It is well established that the legislature may impose pleading requirements in special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements. [Cits.]” (Punctuation omitted.) Jarrett v. State of Ga., 220 Ga. App. 559, 560 (472 SE2d 315) (1996). OCGA § 16-13-49 (o) (3) requires that an answer stating a claim to property subject to forfeiture satisfy not only the general pleading rules applicable to all civil actions, but also specifically set forth the specific pleading requirements prescribed therein. State of Ga. v. Alford, 264 Ga. 243 (444 SE2d 76) (1994).

In the case sub judice, appellant, in response to the prescribed requirement of OCGA § 16-13-49 (o) (3) (D), stated “[t]he date, identity of the transferor and circumstances of the claimant’s acquisition in the property is that the money was lawfully obtained.” While appellant’s answer and claim runs through a boilerplate recitation of OCGA § 16-13-49 (o) (3), it does not fulfill the requirements of OCGA § 16-13-49 (o) (3) (D) and is devoid of factual allegations to support such requirements. To merely allege that the money was “lawfully obtained” does not, under any stretch of the imagination, set forth the date, identity of the transferor, and circumstances of the claimant’s acquisition of the interest in the property. Appellant’s pleading, as set forth, is merely a legal conclusion and not a statement of fact as is required when there is a need for specific pleading. This Code section requires appellant to state with factual specificity the date he acquired the property, or if a date certain cannot be given, the time frame within which he acquired the property, where he obtained the property, and the circumstances of the acquisition of his interest in the property.

In 1991, the General Assembly enacted an act that amended Article 2 of Chapter 13 of Title 16, of the Official Code of Georgia Annotated, known as the “Georgia Controlled Substances Act,” by striking OCGA § 16-13-49 and inserting in lieu thereof new Code section 16-13-49. The caption of such act is lengthy, but within the caption it sets forth that the act is “to provide for seizure and disposition of property, rights therein, and proceeds derived therefrom; ... to provide that certain rented or leased vehicles are.not subject to forfeiture; ... to provide that certain property taken or detained is not subject to replevin, conveyance, sequestration, or attachment; . . . [and] to provide for claims, hearings, and the determination of rights and interests in property. . . .” (Emphasis supplied.) Ga. L. 1991, pp. 886-8Í37. Such- language in the caption of the act shows the importance that the General Assembly placed on determining whether there are any legitimate claims of any innocent owner of, or interest holder in, the property subject to forfeiture. To require any person making a claim on the property subject to forfeiture to plead their claim with factual and legal specificity is consistent with such caption.

Decided October 10, 1996

Reconsideration denied October 24, 1996.

James W. Smith, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

The intent of the General Assembly when it enacted OCGA § 16-13-49 was twofold: to protect the interest of innocent property owners and to provide for prbmpt disposition of contraband property. State of Ga. v. Alford, supra. This Court has held that the innocent owner of, or interest holder in, the property subject to forfeiture must file a “legally sufficient” answer and claim that meets the requirements of OCGA § 16-13-49. (o) (3), and that the requirements of such Code section are consistent with the legislative intent. State of Ga. v. Alford, supra at 245. If there is to be prompt distribution of contraband property, discovery must be shortened. By requiring a claimant to set forth his claim with legal and factual specificity, the State does not have to conduct extensive, time-colisuming discovery to determine what type of claim a claimant may possibly have and can limit its discovery to matters which contravene the claimant’s claim.

While appellant does not have to prove his case in his answer, he does have to include sufficient information and facts to meet the mandates of OCGA § 16-13-49 (o) (3). Such special pleading requirement of OCGA § 16-13-49 (o) (3) is consistent with OCGA § 9-11-9, which sets out matters that must be pleaded with specificity, and it is not unfair or an undue burden on the claimant. “[Fjailure to comply with the strict pleading requirements prescribed by OCGA § 16-13-49 (o) (3) when answering an in rein forfeiture petition is equivalent to filing no answer at all. [Cit.]” Jarrett v. State of Ga., supra at 560; State of Ga. v. Alford, supra.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       This case is distinguishable from Harris v. State of Ga., 222 Ga. App. 267 (474 SE2d 201) (1996), and Williams v. State of Ga., 222 Ga. App. 270 (474 SE2d 98) (1996). In Harris, supra, the claim stated that the money subject to forfeiture was accumulated from three sources: an inheritance Harris received as a result of his father’s death on October 13, 1994; a life insurance benefit in the amount of $350 he received because of his father’s death; and winnings of $2,200 he won in the Georgia Lottery during February 1995 at the Jet Food Store in Eatonton. In Williams, supra, the claim incorporated copies of Williams’ certificate of title to the subject car and the tag registration, which set forth the items required by OCGA § 16-13-49 (o) (3). Clearly, the showing made by both Harris and Williams contained a statement of fact as is required when there is a need for specific pleading, while in the case sub judice, appellant only asserts a mere legal conclusion which is totally devoid of facts.


author: Judge Harold R. Banke.

text:
    A96A1981.
    FREELAND v. THE STATE.
    (477 SE2d 633)
   Judge Harold R. Banke.

Jerry Dale Freeland was convicted of driving under the influence, driving with an unlawful alcohol concentration, and speeding. On appeal, he enumerates two errors, challenging the denial of his motion to suppress and alleging a fatal variance between the accusation and the evidence on the speeding charge.

The record shows that while Officer J. S. Clayton, an eight-year veteran of the DeKalb County Police Department, was conducting a stationary radar operation on Chamblee-Tucker Road, he stopped Freeland for traveling 54 mph in a 40-mph zone. Clayton admitted that when he stopped Freeland, he erroneously believed the speed limit was 40 mph when it actually was 45 mph. Clayton testified that Freeland also visually appeared to be speeding; however, the citation Clayton issued specifically stated that the violation was clocked by radar rather than by any other means. Clayton admitted that Free-land never weaved or crossed the centerline and was stopped solely for speeding. However, once he was stopped, Clayton observed signs that Freeland had been drinking and arrested him for driving under the influence (“DUI”).

Prior to trial, Freeland moved, to suppress the evidence underlying his DUI charge, arguing that because Clayton had no legal basis for making the stop inasmuch as the speed limit was 45 rather than 40 mph, the arrest was illegal. The trial court denied the motion to suppress,, holding that so long as the officer acted on the good faith belief that a crime had been committed, a subsequent legal determination that the defendant’s actions were not technically a crime would not render the arrest illegal. The court acquitted Freeland on a speeding charge based on radar evidence, but convicted him of the remaining charges. Held:

1. The Fourth Amendment authorizes police officers to make brief investigatory stops so long as they are justified by “specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). “The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.” Ornelas v. United States, 517 U. S._(116 SC 1657, 134 LE2d 911, 919) (1996).

Decided October 24, 1996

Joseph P. Hancock, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Bernard R. Ussery, Assistant Solicitors, for appellee.

In this case, Clayton testified that he was a member of the county’s DUI task force and had been running radar every night for a year. He admitted he erroneously thought the speed limit where he established his stationary radar operation was 40 mph rather than 45 mph. He also testified that his training included an instruction that he could not write a speeding citation unless the vehicle was traveling over ten mph over the speed limit. See OCGA § 40-14-8 (a). It is undisputed that Freeland was driving nine miles over the posted speed limit. Under the circumstances of this case, we find that Clayton’s ignorance of the speed limit where he set up his radar operation was objectively unreasonable.

Nevertheless, the trial court properly denied the motion to suppress. Although OCGA § 40-14-8 clearly prohibited Clayton from making a case based on the radar evidence, nothing prevented him from stopping Freeland for speeding. In fact, Clayton testified that he “sometimes” stopped cars going nine miles over the speed limit and gave the drivers a warning. Moreover, Clayton testified that his training and experience enabled him to visually observe that Free-land was speeding before he activated the radar. Because Freeland was speeding, notwithstanding Clayton’s error as to the degree, the stop was permissible. See Whren v. United States, 517 U. S. _ (116 SC 1769, 135 LE2d 89, 95) (1996).

2. Because the record fails to demonstrate that Freeland raised the fatal variance issue on his speeding conviction in the trial court, we may not address it here. Issues “presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” Butler v. State, 172 Ga. App. 405, 406-407 (1) (323 SE2d 628) (1984).

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J, concur.

       The trial itself was not transcribed. The parties stipulated to the evidence and argued their cases to the court.

       OCGA § 40-14-8 (a) states “[n]o county, city, or campus officer shall he allowed to make a case based on the use of any speed detection device, unless the speed of the vehicle exceeds the posted speed limit by more than ten miles per hour and no conviction shall be had thereon unless such speed is more than ten miles per hour above the posted speed limit.”


author: McMurray, Presiding. Judge.

text:
    A96A2010.
    MITCHELL et al. v. WALMART STORES, INC.
    (477 SE2d 631)
   McMurray, Presiding. Judge.

Plaintiff Edith Mitchell brought this tort action against defendant Walmart Stores, Inc. alleging intentional and negligent infliction of emotional distress arising out of a July 18, 1995, incident whereby plaintiff was forcibly stopped as she exited defendant’s store. A guard allegedly grabbed plaintiff’s shopping bag and commanded her to come with him. Plaintiff was “subjected to a lengthy, unreasonable, and humiliating searchl, . . . which search] produced no evidence of stolen property but revealed the presence of a security code unit still attached to one of Plaintiff’s purchased items.” The complaint further alleged the intentional torts of assault, battery, and false imprisonment. An amendment alleged loss of consortium on behalf of William L. Mitchell, plaintiff’s spouse.

After discovery, defendant moved for summary judgment on the basis of OCGA § 51-7-60, supporting its motion with the following undisputed facts: Plaintiff, accompanied by her 13-year-old daughter, went through the checkout and purchased several items, including a television remote control, at defendant’s store. As she exited, plaintiff passed through an electronic antitheft device. The alarm sounded. Plaintiff “wasn’t going to stop because [she] knew [she] didn’t have nothing in [her] pocketbook or in [her] bag.” Robert Canady, employed by defendant as a “people greeter” and security guard, forcibly stopped plaintiff at the exit. Mr. Canady “grabbed [plaintiff’s] bag and told [her] to step back inside[, . . . that she] had something in [the] bag. So [plaintiff] stepped back inside.” This security guard removed every item plaintiff had just purchased and ran it through the security gate. Plaintiff affirmed that “one of the items still had a security code thing on it.” An employee named Brenda “told [plaintiff] it could have been that [security code, unit], that she [Brenda] forgot to pull it off [at the cash register].” When the security guard finished examining the contents of plaintiff’s bag, “he put it on the checkout. . . .” This examination of her bag took ten or fifteen minutes. Plaiiitiff then “reached over there and got it and went over to the snack bar and [sat] there.” The security guard never touched plaintiff or her daughter and never threatened to touch either of them. No employee of defendant ever told plaintiff she could not leave, once her bag had been checked. Plaintiff never asked to leave but felt like she could not leave. Although plaintiff told an assistant manager that “ ‘[she] need[ed] to see the manager,’ [the assistant] said, ‘he won’t come.’ ” Plaintiff knew of no circumstances indicating that the detection device was not working properly. Plaintiff was never threatened with arrest. Nevertheless, plaintiff described the security guard’s actions in her affidavit as “gruff, loud, rude behavior.”

Plaintiff opposed summary judgment, arguing that jury questions remain as to whether the manner and length of her detention were reasonable under OCGA § 51-7-60. The trial court granted defendant’s motion, and this appeal followed. Held:

OCGA § 51-7-60 (1) and (2) provides: “Whenever the owner or operator of a mercantile establishment . . . detains, arrests, or causes to be detained or arrested any person reasonably thought to be engaged in shoplifting . . ., no recovery [for false arrest or false imprisonment] shall be had by the plaintiff . . . where it is established by competent evidence . . . [t]hat the plaintiff. . . behaved in such manner as to cause a [person] of reasonable prudence to believe that the plaintiff . . . was committing the offense of [theft by] shoplifting, as defined by Code Section 16-8-14; or . . . [t]hat the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable.” In the case sub judice, plaintiff enumerates the grant of summary judgment, arguing that jury questions remain as to the reasonableness of her detention. We disagree.

“In the case of a mercantile establishment utilizing an anti-shoplifting or inventory control device, the automatic activation of the device as a result of a person exiting the establishment or a protected area within the establishment shall constitute reasonable cause for the detention of the person so exiting. . . .” OCGA § 51-7-61 (b). Nevertheless, “[e]ach detention shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device.” Id.

In the case sub judice, assuming that defendant’s agent was in fact gruff and rude as he forcibly halted her, it is nevertheless undisputed that this was done solely in response to the alarm of the antitheft device. Accordingly, probable cause was established for that forcible stop, and plaintiff’s claims for false arrest are without merit. “[I]t makes no difference to ‘reasonable cause’ whether or not negligence on the part of [Walmart’s] employee in failing to deactivate the special tag on the [remote control plaintiff purchased] set the device off. What matters is whether the method and time of detention were reasonable within the statutory limitations. Defendant’s right to detain is lawful once the device is automatically activated.” Estes v. Jack Eckerd Corp., 184 Ga. App. 98, 99 (1), 101 (360 SE2d 649).

Plaintiff was subjected to a ten- or fifteen-minute “detention” in the open, during which the items in plaintiff’s shopping bag were individually tested for the presence of the electronic antitheft sensor and after which plaintiff’s bag was returned to her and she was free to leave. This procedure was perfectly reasonable. Estes v. Jack Eckerd Corp., 184 Ga. App. 98, 99 (1), 101, supra. The manner of plaintiff’s detention, whereby defendant’s employee never placed a hand on plaintiff’s person but only took her shopping bag, and during which plaintiff was never accused of theft, also was reasonable. Naturally, plaintiff was mortified by this episode because she knew she had properly paid for all of her items. Nevertheless, “causing embarrassment is not the same as unlawful imprisonment. Lord v. K-Mart Corp., 177 Ga. App. 651, 653 (1) (340 SE2d 225) (1986).” Estes v. Jack Eckerd Corp., 184 Ga. App. 98, 99 (1), 102, supra. In the case sub judice, there is no evidence that the length of time and the manner of plaintiff’s detention were anything but reasonable. Compare Brown v. Super Discount Markets, 223 Ga. App. 174 (477 SE2d 839). Consequently, the defendant mercantile establishment is entitled to the immunity afforded by OCGA § 51-7-60. Similarly, “there was no [unlawful] restraint either by force or fear here, as is necessary to recover [for false imprisonment] under OCGA § 51-7-20. See J. H. Harvey Co. v. Speight, 178 Ga. App. 812 (344 SE2d 701) (1986).” Estes v. Jack Eckerd Corp., 184 Ga. App. 98, 99 (1), 101-102, supra. It follows that the trial court correctly granted defendant’s motion for summary judgment.

Decided October 24, 1996.

Bobby J. Lindsey, for appellants.

McLain & Merritt, Albert J. Decusati, for appellee.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J, concurs in the judgment only.


author: Birdsong, Presiding Judge.

text:
    A96A2025.
    SIMMS v. THE STATE.
    (477 SE2d 628)
   Birdsong, Presiding Judge.

Appellant David M. Simms appeals his conviction of DUI. He ■ enumerates as error that the trial court allowed the arresting officer to testify about alco-sensor chemical test results in violation of OCGA § 40-6-392 (a) (1) (A) and evidence sufficiency.

Prior to trial appellant renewed a motion to exclude the results of an Intoxilizer 5000; he also generally raised the included issue of inadmissibility of alco-sensor test results, stating that his grounds were “foundational.” Appellant stated he could raise this issue at the hearing or “do it at trial.” The trial court suggested it would be more appropriate to raise this issue at trial whereupon appellant’s counsel immediately agreed to the suggestion.

At trial, a state trooper testified that he has been a certified peace officer and state trooper for 15 years and that his basic job is traffic enforcement. While on traffic patrol at approximately 2:45 a.m., on December 3, 1995, he observed a Toyota automobile make a turn without using turn signals; he commenced to follow the vehicle. He observed the vehicle weaving from the outside westbound lane into the inside lane and back; then it drifted over and the tires would touch the solid white, fog line on the right side of the road, and it crossed back again. When it initially weaved into the inside lane, a third or a half of the vehicle was in that lane. The vehicle made several weaving motions within a half-mile distance. The vehicle was stopped without incident. Appellant exited the vehicle and walked toward the trooper; appellant appeared to be “a little unsteady on his feet” and made a couple of sidesteps. Appellant produced his license and proof of insurance when requested. At this point, the trooper detected “a strong odor of alcoholic beverage on [appellant’s] breath”; appellant “had glassy, bloodshot eyes and slowed, slurred speech.” Appellant consented to take spot tests or field sobriety tests. He was asked to recite the alphabet but could not complete this test satisfactorily. After commencing to recite, his voice got so low the officer could not hear him; appellant first commenced to transpose words and then to transpose entire alphabet sections. He would reverse letters, then go back and insert a section of letters that did not belong; he never completed reciting the alphabet. Appellant was next asked to recite from 85 to 65 backwards; again his voice got low, he transposed numbers, he left some numbers out, and he exceeded the test parameters by counting below 65 and not stopping until told to do so. The trooper also testified without objection that appellant was asked to submit to an alco-sensor test and elected to do so; however, when the trooper testified that the alco-sensor reading was “18,” appellant’s counsel objected and made a mistrial motion. During this hearing, it was conceded by appellant that generally evidence which merely informs the jury whether an alco-sensor test was passed or failed is admissible. The trial court concluded the test score was inadmissible and elected to give the jury a curative instruction and deny the mistrial motion. Appellant’s counsel inspected the proposed curative instructions and found them in proper order. The State announced its intent to have the officer testify that appellant both failed the test and tested positive for alcohol; the trial court agreed to this procedure and appellant posed no objection to that ruling. Thereafter, the jury was given the following curative instruction: “There was testimony from the officer of the specific results of the Aleosensor. . . . The specific results are not admissible in court; and they are not to be considered by you. And to the extent they are an indication of the specific results of the Intoximeter [sic], you are not to consider that at all. The only thing admissible is whether or not the results were positive or negative for the presence of alcohol.” Appellant did not object to this instruction but did call the trial court’s attention to its slip of the tongue in referring once to an “Intoximeter.” Appellant did not pose any objection when the trooper testified that appellant had failed the alco-sensor test. Also, the trooper testified he had been trained to recognize manifestations of alcohol impairment; based upon his training, knowledge and experience, he had formed the opinion that appellant “was so impaired by alcohol that he was an unsafe driver.”

By his trial tactics and conduct, appellant lulled the trial court into believing that appellant was electing not to raise any alco-sensor issue at the pretrial hearing, but would pose any objection thereto during the course of trial. During trial, appellant did initially request an out-of-court hearing regarding certain foundational issues concerning the admission of any álco-sensor test evidence. But appellant then stated he could wait until the evidence was introduced and object and the hearing could be held at that time. Later appellant specified that he also was prepared to object to evidence of any type of result from an alco-sensor in the absence of a proper foundation being laid pursuant to the requirements of OCGA § 40-6-392 (a) (1) (A). After additional colloquy among the parties, the trial court stated, “Why don’t we see how the testimony goes; and if it becomes objectionable at some point, then make your objection.” At this time, appellant expressly agreed to this procedure on the record. Thereafter, it was testified to without' timely objection that appellant consented to and took an alco-sensor test. Held:

1. As a result of the tactics of appellant, the trial court never was called upon to make a ruling regarding whether the requirements of OCGA § 40-6-392 (a) (1) (A) must be met in order for a proper foundation to be laid for the admissibility of any type of alco-sensor testing evidence. It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial. Norwood v. State, 199 Ga. App. 536 (405 SE2d 526), citing Jefferson v. State, 157 Ga. App. 324, 325 (2), 326 (277 SE2d 317). Moreover, appellant by his own trial tactics and procedures failed to present the issue in proper form for a definitive ruling by the trial court and, additionally, lulled the trial court into issuing no ruling on this issue. A party cannot reap the benefit of any error caused or aided by his own trial tactics, procedure or conduct. Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

Additionally, in Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630), it was held that “the admissibility of an alco-sensor test result is not governed by OCGA § 40-6-392.” Alco-sensor tests are not used as evidence of the amount of alcohol or drug in a person’s blood. Id. The foundation required by this statute is not applicable to the admission of evidence that an appellant submitted to an alco-sensor test and either passed or failed the test. Id. OCGA § 40-6-392 “is inapplicable to an initial alcohol screening test, such as the alco-sensor test.” Keenan v. State, 263 Ga. 569, 571 (2) (436 SE2d 475).

For each of the above reasons, we find that appellant’s first enumeration of error, as crafted, does not warrant reversal of his conviction.

While it was error-to have the trooper testify as to the test score obtained by appellant on the alco-sensor test, this error was rendered harmless by the timely giving of a curative instruction. See Isaacs v. State, 259 Ga. 717, 737 (38) (386 SE2d 316). Further, appellant expressly stated on the record that the curative instruction was in proper order and made no request that the test score testimony be formally stricken from the record. We further find, based on the totality of the record and particularly in light of the curative instruction given, that it was highly probable that the admission of the numerical result of the alco-sensor test did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

2. Admissibility of evidence is a matter resting largely within the sound discretion of the trial court. Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428). The testimony that appellant failed the alcosensor test was admissible. Turrentine, supra. Also admissible was the testimony regarding the trooper’s observations, through his senses of sight, hearing and smell, of the conduct and sobriety test performance of appellant prior to his arrest. Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395). Moreover, a trooper can render an admissible opinion, based on his law enforcement experience, as to the state of a suspect’s sobriety and that the suspect was under the influence of alcohol to the extent that it made him less safe to drive a motor vehicle. Grant v. State, 195 Ga. App. 463 (393 SE2d 737) and progeny.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” Id. at 464. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided October 24, 1996.

Samuel F. Greneker, for appellant.

Richard W. Shelton, Solicitor, for appellee.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A1075.
    SMITH et al. v. STANLEY et al. RONNIE PERRY REALTY COMPANY, INC. v. STANLEY et al.
    A96A1076.
    (477 SE2d 618)
   McMurray, Presiding Judge.

Plaintiffs Joseph R. Stanley and Barbara L. Stanley filed this fraud and negligence claim arising from their purchase of a house on Blythe Island in Glynn County. Their complaint states a passive concealment type fraud claim against defendants Jeffery L. Smith and Connie M. Smith, the sellers of the house, and against Ronnie Perry Realty Company, Inc., the sellers’ real estate broker. The fraud claim alleges that the subject premises were susceptible to and had been subjected to interior flooding by the incursion of water during or after heavy or prolonged rains and that at no time during the contacts and negotiations concerning the ultimate purchase of the house had defendants advised plaintiffs of these facts. An additional claim alleged that such conduct amounted to negligence on the part of defendant Ronnie Perry Realty Company, Inc.

Defendants moved for summary judgment based on several arguments including the failure of the plaintiffs to exercise due diligence in determining the condition of the house. After the denial of these motions for summary judgment, we granted defendants permission to file this interlocutory appeal. Held:

“ ‘ “The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations (or lack thereof).’ (Cit.)” Kirven v. Blackett, 208 Ga. 178, 182 (65 SE2d 791) (1951); Blanchard v. West, 115 Ga. App. 814 (2) (156 SE2d 164) (1967).’ Miller v. Clabby, 178 Ga. App. 821, 823 (344 SE2d 751).” Fincher v. Bergeron, 193 Ga. App. 256, 259 (1) (b) (387 SE2d 371). While the question of whether a purchaser exercised ordinary care in inspecting real property before purchasing it is generally a jury issue, the record in the case sub judice shows that it is plain and indisputable that plaintiffs could not have justifiably relied upon any representations, or absence thereof, concerning the effect of heavy or sustained rains upon the house.

The passive concealment exception to the rule of caveat emptor adopted in Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141) and which is the basis of plaintiffs’ claim is concerned with concealed defects which may not be discovered by a purchaser via the exercise of due diligence. It is only when the defects in the property are of a nature that the buyer could not discover them through the exercise of due diligence that any burden is placed on the seller to disclose the seriousness of the problems of which he is aware, provided the seller knows that the buyer is acting under a misapprehension as to the facts which would be important to the buyer in making his decision. Delk v. Tom Peterson Realtors, 220 Ga. App. 576, 577 (469 SE2d 741). Just as the sag in the roof in Delk was readily discernible, in the case sub judice there is uncontroverted evidence that the roof line, provisions for drainage from the roof, and grading of the area surrounding the house combine to clearly suggest that rain water would be directed toward rather than away from the house thereby creating a danger that it would enter the home. Additionally, there was further evidence as to the poor water absorption characteristics of the island property particularly at high tide, a factor which plaintiffs could have discovered had they investigated the notice they received that the property lies in a flood hazard area. Plaintiffs were permitted to make whatever inspection of the property they desired and did personally inspect the property but did not have any third person such as an engineer, architect, or contractor inspect the house. The only measure taken by the plaintiffs to investigate any flooding problems was to ask' defendants, but plaintiffs took no action to verify the answers received.

“The tort of fraud has five elements: . . . For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. In deciding whether the evidence presented is sufficient to raise a triable issue as to each element, the court must resolve all disputes of fact and indulge all reasonable inferences therefrom in favor of the non-moving party. Ham v. Ham, 230 Ga. 43 (195 SE2d 429) (1973).” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223). See also Hanlon v. Thornton, 218 Ga. App. 500, 502 (2) (462 SE2d 154) and Copeland v. Home Savings of America, F.A., 209 Ga. App. 173, 174 (433 SE2d 327). The uncontroverted evidence in the case sub judice fails to establish any justifiable reliance by plaintiffs upon the representations or lack thereof by defendants. Therefore, the state court erred in denying defendants’ motion for summary judgment on the fraud claim. It was also error to deny defendant Ronnie Perry Realty Company, Inc.’s motion for summary judgment on the negligence claim. Real Estate Intl. v. Buggqy, 220 Ga. App. 449, 452 (3) (469 SE2d 242).

Decided October 16, 1996

Reconsideration denied October 25, 1996

Ferrier & Sowerby, Vincent D. Sowerby, for appellants (case no. A96A1075).

Nightingale, Liles, Dehnard & Carmical, Thomas E. Dennard, Jr., Lee A. Carmical, for appellant (case no. A96A1076).

Clark & Clark, Fred S. Clark, for appellees.

Judgments reversed.

Johnson and Ruffin, JJ, concur.


author: Ruffin, Judge.

text:
    A96A1356.
    LU v. THE STATE.
    (477 SE2d 581)
   Ruffin, Judge.

A jury convicted Phu Quoc Lu of two counts of first degree criminal damage to property, three counts of aggravated assault upon a police officer, and two counts of aggravated assault. In this appeal, Lu challenges the sufficiency of the evidence. For reasons which folIqw, we affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that at approximately 6:15 p.m. on the evening the offenses were committed, an older model, white, two-door Cadillac pulled directly in front of the K & T billiard hall located in DeKalb County. The car was parked with the passenger side facing the billiard hall. Inside the car were Lu, who was sitting behind the driver, and three co-defendants. Moments later, individuals in the Cadillac began firing gunshots through the front windows of the billiard hall, which was occupied by approximately 30 patrons. The gunshots shattered the front windows, damaged two pool tables, and left numerous bullet holes in the back wall. Shots were also fired into the front windows of an adjácent restaurant, which was also occupied at the time.

Doraville Marshal Jerry Gann was only a block away when he received a radio dispatch concerning the shooting. Marshal Gann testified that when he arrived at the scene, he pulled his unmarked patrol car approximately ten to twelve feet behind the Cadillac and observed four individuals in the car. Gann stated that while the driver remained behind the steering wheel, the three passengers were pressed against the passenger side of the car and arms were sticking out of the passenger side windows. He further testified that although he could clearly see only two guns, he saw separate flashes from the firing of three guns. Approximately 30-40 shots were fired in total.

According to Marshal Gann, the Cadillac’s occupants did not notice him until he exited his car with his gun drawn. At that point, Lu looked in Marshal Gann’s direction, then turned away, said something to his fellow occupants, and the car then pulled away.

Marshal Gann pursued the Cadillac and was soon joined in the pursuit by Captain Edwards and Chief Davis in another unmarked Doraville police car. During the pursuit, Marshal Gann observed someone throw a black pistol from the Cadillac. Later in the pursuit, when the Doraville police car attempted to intercept the Cadillac, three to five gunshots were fired from the Cadillac. As the chase continued, Marshal Gann saw a silver pistol thrown from the Cadillac. Shortly thereafter, the Cadillac pulled into an apartment complex where a white sock and glove were thrown from the Cadillac. The Cadillac was driven to the back of the complex and into a parking space. Gann and the other officers removed the four occupants from the Cadillac. Although the defendants initially gave the officers different names and dates of birth, each was eventually identified.

All four occupants were arrested at the scene and none of them possessed a firearm. Although a search of the Cadillac did not reveal any firearms, several live and spent rounds of ammunition were found. The ammunition included one live and one spent .9mm round recovered from the Cadillac’s right front floorboard, two spent .25 rounds and one live .380 round from the rear floorboard. In addition, with the exception of the silver pistol, all the items Marshal Gann saw thrown from the Cadillac were recovered. The black pistol was identified as a .380 FEG handgun. The retrieved glove contained seven .380 caliber rounds and the sock contained a magazine holding five .25 caliber rounds. Finally, three spent ,9mm rounds were recovered from the parking lot in front of the billiard hall. A firearms examiner from the State crime laboratory testified that a total of four weapons were used to fire the projectiles.

Lu did not present any evidence at trial, and only one of his three co-defendants testified. The co-defendant testified that he did not see any weapons inside the Cadillac.

Lu contends on appeal that the evidence only showed he was present in the Cadillac and that because there was no direct evidence he fired any of the weapons, the evidence was insufficient to support his convictions. We disagree.

On appeal, a criminal appellant no longer enjoys a presumption of innocence. Key v. State, 213 Ga. App. 556 (445 SE2d 349) (1994). In reviewing a criminal conviction, “we do not weigh the evidence, nor do we assess the quality of the evidence or the credibility of witnesses[,] we look only to determine whether the evidence is sufficient to sustain the verdict, construed in the light most favorable to the jury’s verdict and giving that verdict every presumption and every inference towards upholding its validity.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 219 (1) (435 SE2d 737) (1993). Although Lu is correct that “mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996).

Decided September 3, 1996

Reconsideration denied October 25, 1996.

James D. Mitchell, for appellant. ;

Phu Quoc Lu, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, James M. McDaniel, Assistant District Attorneys, for appellee.

The evidence in this case showed more than Lu’s mere presence in the Cadillac at the time of the shooting. The evidence showed that Lu was in the Cadillac before it traveled to the billiard hall. Furthermore, during the shooting, Lu was pressed against the passenger side of the Cadillac, where three to four handguns were shooting towards the billiard hall. The jury could also have found from the evidence that Lu informed his co-defendants of Marshal Gann’s presence, after which they fled the scene in the Cadillac. Furthermore, Lu remained with his co-defendants during their flight and gave the officers a different name and date of birth after being apprehended. Under the circumstances, “[w]e hold that a rational trier of fact could have found [Lu] guilty of the crime[s] charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [cit.]” Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993).

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A1480.
    BRIDGES v. THE STATE.
    (477 SE2d 913)
    Decided October 11, 1996
    Reconsideration denied October 28, 1996.

      Keaton & Lombardo, Dawn B. Keaton, for appellant.

      Lewis R. Slaton, District Attorney, Carl P. Greenberg, Henry M. Newkirk, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant appeals his convictions for reckless driving, failure to yield right of way and improper backing. Held:

In two enumerations of error, defendant contends that the failure to yield right of way offense merged, as a matter of fact, with the improper backing offense and that these two offenses merged, as a matter of fact, with the reckless driving offense, resulting in the erroneous imposition of separate sentences for each offense. These assertions, however, were “not raised below and no objection was made to the sentences imposed. Thus, the matter was not preserved for appellate review. Hall v. State, 200 Ga. App. 585, 588 (5) (409 SE2d 221); Johncox v. State, 189 Ga. App. 188 (1) (375 SE2d 139); LeGallienne v. State, 180 Ga. App. 108, 111 (4) (348 SE2d 471).” Henderson v. State, 218 Ga. App. 311, 312 (3) (460 SE2d 876).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Johnson, Judge.

text:
    A96A1617.
    CORNELIUS v. WOOD.
    (477 SE2d 595)
   Johnson, Judge.

Alleging breach of an employment contract, Christopher Wood sued Bahamas International Film Festival, Inc. (“Film Festival”); B. J. Bandy, Film Festival’s primary investor; and James Cornelius, a Film Festival director. Wood originally sued in DeKalb County, but voluntarily dismissed that complaint, without prejudice and refiled in Fulton County. Bandy filed a motion for summary judgment, which was granted on February 9, 1994. In an unpublished opinion, this court affirmed. Wood v. Bandy, 216 Ga. App. XXX (1995). Wood then obtained a default judgment against both remaining defendants, from which Cornelius now appeals. Cornelius, who is not a lawyer, represented himself below and before this Court.

In his first five enumerations of error, Cornelius claims it was improper for the trial court to enter a default judgment. As explained below, we find each of these enumerations to be without merit. Cornelius’ final enumeration of error challenges the award of attorney fees. On this issue only, we reverse and remand to the trial court for further proceedings.

The return of service for Cornelius shows that the Fulton County complaint and summons were delivered to “Catherine Cornelius . . . identified as the sister of James Cornelius,” at 1851 Penelope Road, Atlanta, Georgia, on May 13, 1993; and that “Ms. Catherine Cornelius acknowledged that this was the residence of Mr. James Cornelius.” Cornelius did not file an answer. Instead, he took the following actions:

On November 18, 1993, Cornelius appeared at his deposition, taken by Wood. Cornelius testified that the Penelope Road address had been his primary residence for 40 years, and that it had been his address continuously for the past year.

On April 8, 1994, Cornelius sent a letter to the trial judge, and sent a copy for filing to the clerk of the Fulton County Superior Court. The letter asked that the case be taken off the trial calendar pending Wood’s appeal of the summary judgment grant to Bandy. The same day, Cornelius filed an affidavit which stated only that he was named as a defendant in the Fulton County action and that his name did not contain the middle initial “C.” Both the letter and the affidavit specifically referred to “Superior Court of Fulton County, Georgia Civil Action File Number E-08140,” which was the correct Fulton County case number. In both documents, Cornelius listed himself as one of the defendants. •

On August 11, 1995, Cornelius filed a “Motion to Dismiss or, Alternatively, Motion for Summary Judgment,” with a supporting brief and affidavit. In these documents, he contended that Wood had contracted only with Film Festival; and that there were no grounds for piercing the corporate veil to hold Cornelius personally liable for Film Festival’s breach of the contract.

On August 14, 1995, Cornelius filed a “Motion to Dismiss ... or, in the Alternative, to Determine the Need for Service of Process,” in which, for the first time, he contended that the Fulton County court had no personal jurisdiction over him because of a defect in service of process. In this motion Cornelius claimed he lived in DeKalb County, and that 1851 Penelope Road in Fulton County was his mother’s home. Cornelius also argued in this motion that, until he received an August 3, 1995 letter from Wood’s counsel, he had not realized that Wood was “proceeding against” him in Fulton County; and that he did not file an answer in this case “because I thought the case against me was in DeKalb County. ... A deposition was taken by me then [sic] in November, 1993 and no mention was made of this case.”

Cornelius argued this motion at a hearing on August 14. The court orally denied it. Though the record does not contain a written order addressing this motion, there is no dispute about whether it was denied. After the August 14 hearing, the court signed an order finding Cornelius and Film Festival in default, and entering judgment against them jointly and severally for Wood’s unpaid salary, attorney fees, and litigation costs, plus post-judgment interest.

1. In two related enumerations of error, Cornelius contends the trial court erred in denying his August 14,1995 motion to dismiss for lack of personal jurisdiction. Cornelius argues, as he did below, that he lived in DeKalb County at the time of the Penelope Road service and afterward. He also argues for the first time that his sister also did not live at Penelope Road, and was therefore not a “person of suitable age and discretion then residing therein” under OCGA § 9-11-4 (d) (7).

The August 14 motion was the first pleading in which Cornelius challenged personal jurisdiction. By previously filing the April 1994 letter and affidavit, and the August 11, 1995 motion for summary judgment on the merits, Cornelius waived any objection to personal jurisdiction. Moody v. Mendenhall, 238 Ga. 689, 691 (2) (234 SE2d 905) (1977). We therefore need not decide whether Cornelius’ unsworn August 14 motion, stating that he did not live at the service address, was “the very strongest evidence,” which is necessary to overcome the presumption of valid service established by the sworn return. See Earley v. Dyson, 220 Ga. App. 586, 587 (469 SE2d 841) (1996), citing Denham v. Jones, 96 Ga. 130, 131 (23 SE 78) (1895). Moreover, because the argument concerning the sister’s residence was not presented to the trial court, it may not be considered on appeal. Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 859 (5) (c) (459 SE2d 592) (1995). These enumerations of error present no ground for reversal.

2. Cornelius maintains the trial court abused its discretion in entering default judgment against him because it had not found him to be in default before the August 14, 1995 hearing; and because the affidavit he filed on August 11, 1995 should have been construed as an answer. However, the record does not disclose that he made either argument below. Arguments not presented to the trial court may not be considered for the first time on appeal. Magnan, supra. This claim of error is without merit.

3. Cornelius’ argument that Wood’s evidence failed to pierce the corporate veil concerns liability. Because the trial court found Cornelius in default, Wood was only obligated to put on evidence as to damages, not liability. See OCGA § 9-11-55 (a). This claim of error is also without merit.

4. Cornelius claims that Film Festival was not properly served and is an indispensable party to the litigation. Film Festival is not, however, a party to this appeal, and did not appear to challenge service upon itself at trial. Nor did Cornelius or anyone else argue to the trial court that Film Festival was an indispensable party. We therefore may not consider Cornelius’ allegations regarding Film Festival. See Magnan, supra. This enumeration of error presents no ground for reversal.

Decided October 7, 1996

Reconsideration denied October 28, 1996

James Cornelius, pro se.

Wheeler & Watson, David K. Wheeler, James A. Watson, for appellee.

5. Cornelius contends the trial court erred in awarding attorney fees. Wood’s attorney stated that he had contracted to be paid one-third of any recovery, and claimed that fees in that amount should be awarded against Cornelius because “the defendants” had been stubbornly litigious, had acted in bad faith, and had caused Wood unnecessary trouble and expense. See OCGA § 13-6-11. The trial court then awarded attorney fees of $18,376, in addition to $55,128 in damages, $4,953 in litigation expenses, and post-judgment interest.

Evidence of the existence of a contingent fee contract, without more, “is insufficient to support the award of attorney fees. An attorney cannot recover for professional services without proof of their value.” (Citations and punctuation omitted.) Hercules Automotive v. Hayes, 194 Ga. App. 135, 136-137 (4) (389 SE2d 571) (1989); see Southern Cellular &c. v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993). In the absence of any showing that the fees requested were reasonable, the fee award must .be reversed. The case is remanded to the trial court for further proceedings solely on the issue of attorney fees.

Judgment affirmed in part, reversed in part, and case remanded with direction.

McMurray, P. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A96A2120.
    GADSON v. THE STATE.
    (477 SE2d 598)
   Blackburn, Judge.

Henry Gadson appeals his conviction, asserting the evidence was insufficient and complaining of the trial court’s admission of certain evidence and its denial of his motion to sever. Gadson went to trial on an indictment that charged him with attacking four Savannah women between December 6, 1994 and January 11, 1995. For his December 6 attack on the first victim, he was convicted of rape and kidnapping with bodily injury. With regard to the December 10 attack on the second victim, he was convicted of aggravated assault with intent to rape and robbery by intimidation. His December 30 attack on the third victim resulted in convictions for rape, aggravated assault, kidnapping with bodily injury, and robbery by intimidation. Although the jury convicted him of armed robbery for his January 11 attack on the fourth victim, it acquitted him of rape, kidnapping with bodily injury, and aggravated assault charges related to that incident. He received consecutive life sentences. We find no reversible error.

1. Because Gadson challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979) and review that evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (351 SE2d 503) (1986). We find the evidence supports each conviction.

The victim of the December 6 attack, a high school student, was walking toward the bus stop early in the morning when Gadson approached her and asked if she wanted to buy some clothes. When she ignored his solicitations, he grabbed her around the neck, told her he had a pistol, and forced her to walk with him to an abandoned garage, where he raped her and took money from her book bag. DNA samples taken from seminal fluid found in the victim’s groin matched Gadson’s blood. The victim identified Gadson in court. This evidence supports the convictions for rape and kidnapping with bodily injury related to this attack. See Gido v. State, 216 Ga. App. 330, 331-332 (1), (2) (454 SE2d 201) (1995).

The second victim testified that on the afternoon of December 10, she was walking through her neighborhood when Gadson approached her and said “he had just got out of jail” and was “looking for him a nice woman.” When she tried to ignore him, Gadson told her he had a gun and, using abusive language, said that if she did not come with him to have sex, he would shoot her. He demanded the victim’s money, but, as she thrust it at him, she ran away. She identified Gadson in court as her attacker. This evidence supports the corresponding convictions for aggravated assault with intent to rape and robbery by intimidation. See Smith v. State, 215 Ga. App. 673, 675 (2) (452 SE2d 526) (1994) (weapon requirement established by defendant’s statement that he had a gun, by his threats, and by victim’s fear of being killed); Henderson v. State, 204 Ga. App. 884 (1) (420 SE2d 813) (1992) (finding evidence sufficient to sustain conviction for aggravated assault with intent to rape).

The third victim testified that she awoke on the night of December 30 to a knock on her door. When she opened it, a man grabbed her, hit her in the head, and dragged her to her backyard, where he forced intercourse on her. He threatened to kill her and took some of the jewelry she was wearing. In court, she identified Gadson as the attacker. This evidence is sufficient to sustain the resulting convictions for kidnapping, rape, and robbery by intimidation. See Gido, supra; Smith, supra.

In the final attack on January 11, 1995, the victim stated she was walking to a friend’s house early in the morning when Gadson offered to sell her a ring. He followed her, telling her he wanted to “spend time with her,” then put a gun to her face. “He didn’t care about shooting me because he just had recently gotten out of jail,” the victim testified Gadson told her. He then took her to an abandoned house, where he raped her and stole her necklace and a bracelet. She identified Gadson in court. This evidence supports the jury’s verdict finding Gadson guilty of armed robbery. See id.

2. Gadson claims the trial court should not have let a police officer testify that, when he interviewed Gadson, the defendant told him he had just gotten out of jail and had been in jail for theft by taking. Under the circumstances of this case, we need not decide whether Gadson properly preserved his objection or whether the trial court erred in allowing the testimony.

Before the police officer testified, two of the victims testified that Gadson told them he had just been released from jail. Gadson made no objection to this testimony the first time the jury heard it. When another victim repeated the statement as she explained how Gadson verbally threatened her, the trial court correctly found it to be part of the res gestae. See Johnson v. State, 264 Ga. 456, 458 (3) (448 SE2d 177) (1994). Thus, by the time the officer testified, his repetition of the same information constituted cumulative evidence, so any error in admitting the statement was harmless as a matter of law. Maher v. State, 216 Ga. App. 666 (1) (455 SE2d 377) (1995); Kittles v. State, 168 Ga. App. 123 (1) (308 SE2d 241) (1983). But see Felder v. State, 266 Ga. 574, 575 (2) (468 SE2d 769) (1996) (error to admit defendant’s statement, made during police questioning, that he was “on parole”). Furthermore, considering the overwhelming direct evidence of Gadson’s guilt, it is highly probable that this testimony did not contribute to the verdict. Id.

3. The trial court did not err by refusing to sever the charges related to these several attacks. Two or more crimes may be joined in one indictment, and need not be severed, where they are based on “a series of acts connected together or constituting parts of a single scheme or plan.” (Punctuation omitted.) Dingier v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975). We review the trial court’s determination for abuse of discretion. Whitfield v. State, 217 Ga. App. 402, 403 (1) (457 SE2d 682) (1995). In this case, the court was authorized to con-elude that these assaults on women, all committed in a similar way within a five-week period by a person matching Gadson’s description, constituted part of a scheme or plan. See id.; Johnson v. State, 213 Ga. App. 194 (1) (444 SE2d 334) (1994). Because the attacks bore such striking similarities, evidence of each could have been introduced at the trial of the others. Thus, the trial court’s failure to sever could not have resulted in any prejudice to Gadson. Id. at 194-195.

4. Gadson also claims the trial court erred when it admitted DNA evidence that the State obtained by drawing his blood. The trial court found that after Gadson was arrested for assaulting one of the victims, the officers read him his Miranda rights and asked for a sample of his blood. He consented and signed a form which stated in part: “I, Henry Gadson, . . . having been advised by [the named police officers] understand that I am not required under law to consent to give my blood without a search warrant. Anything found by them can and may be used as evidence in any court of law.” The court ruled that Gadson freely and voluntarily agreed to give his blood and placed no limits on the scope of his consent. Construing the evidence on the suppression motion in favor of the trial court’s ruling, we find the trial court did not err in denying the motions. See Larochelle v. State, 219 Ga. App. 792, 797 (5) (466 SE2d 672) (1996).

Gadson claims the officers should have explained to him that his blood could be used against him in prosecutions involving other victims. We disagree. His citation to Beasley v. State, 204 Ga. App. 214 (1) (419 SE2d 92) (1992.) is not persuasive. In Beasley, we found that because the defendant had given authorities only limited consent to use his urine sample, they could not use that urine as evidence against him in a later prosecution for possession of drugs found in the urine. The evidence reflected that authorities told the jailed defendant he had to give a urine sample before the judge would set bond, and they led him to believe the urine would be used for that purpose only. Contrary to Gadson’s argument, Beasley does not require an officer to explain all charges which could result from a search for the search to be the product of “free and voluntary” consent. Cases involving consensual statements to police are instructive on this point. See, e.g., Williams v. State, 214 Ga. App. 423, 424 (447 SE2d 716) (1994) (no duty to advise a suspect of the consequences of his consensual statement); Gaines v. State, 179 Ga. App. 623 (1) (347 SE2d 673) (1986) (rejecting defendant’s contention that his statement was not voluntary because officers did not tell him all the charges that could be made against him).

Accordingly, the trial court did not err by admitting the DNA evidence.

5. Finally, Gadson contends the trial court erred by “admitting” a crack pipe found at the scene of one of the attacks. The record shows, however, that no pipe was ever displayed to the jury or tendered into evidence. The mention of the crack pipe came in a list of items an officer stated were found at the abandoned garage in which the first rape occurred. No witness suggested the pipe belonged to Gadson, and photographs of the garage admitted into evidence show it was strewn with refuse. Even if this testimony somehow maligned Gad-son’s character, we hold it to be incidental and harmless. See Reed v. State, 204 Ga. App. 272 (1) (419 SE2d 45) (1992).

Decided October 8, 1996

Reconsideration denied October 28, 1996

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


author: Beasley, Chief Judge.

text:
    A96A1068.
    DAVIS v. THE STATE.
    (477 SE2d 639)
   Beasley, Chief Judge.

A jury convicted Davis of theft by taking (OCGA § 16-8-2) from a woman and of robbery (OCGA § 16-8-40) by force of a gentleman.

1. Davis challenges the sufficiency of the evidence to support her conviction of the robbery. As appellant recognizes, the evidence is viewed on appeal in support of the verdict. Rachel v. State, 247 Ga. 130, 131 (1) (274 SE2d 475) (1981).

McClure, the 67-year-old robbery victim, testified that on the evening of May 14, 1994, he was in bed at his home when Davis knocked on his door asking to use the telephone. When he opened the door, she shoved him down and went into his bedroom, took his billfold with $200 in it from the pocket of his pants lying across a chair in the bedroom and left. She later returned the billfold without the money.

After her arrest, Davis gave a statement to the police admitting that she had stolen the money from the theft victim’s purse but denied robbing McClure. She told the police that on the date McClure was allegedly robbed, she had been with a man named Haynes all night. When she testified, she did not deny that she lied when she told police she did not go to McClure’s that night. Testifying as a State’s witness, Haynes denied being with her at the time of the robbery.

Davis testified that McClure had invited her to his house and paid her $200 to have sex with him but was unable to consummate the act. She claimed that McClure threatened to accuse her of robbery because she refused to return all of his money.

Davis bases her challenge of sufficiency primarily upon conflicts between McClure’s testimony and statements made by him to police concerning her actions after she took the money from his billfold.

“ ‘ “The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness . . . for it is the function of the triers of fact to determine to what evidence it gives credence. (Cit.) It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. (Cit.)” ’ [Cits.]” York v. State, 207 Ga. App. 494, 495 (1) (428 SE2d 113) (1993).

Applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable-doubt of robbery by force.

2. Davis contends that the trial court erred in not granting her motion for severance of offenses. She cites no authority, and little argument, in support of this enumeration. She merely states that this “worked severe prejudice and harm” to her, with no explanation. She did include argument in this regard in her motion to the trial court. The motion was heard, with evidence, several months before trial, but no transcript of the hearing is in the record before this Court, and the trial court did not indicate in the order the basis for denial. Enumerations “not supported by citation of authority or argument are therefore deemed abandoned in accordance with Georgia Court of Appeals Rule 27 (c) (2).” McCoy v. State, 218 Ga. App. 640, 641 (2) (462 SE2d 799) (1995); Height v. State, 221 Ga. App. 647, 650 (8) (472 SE2d 485) (1996).

Even addressing the enumeration on the merits, the result is the same.

The evidence of the other crime is as follows. Through the testimony of victim Dusenberg and that of a woman who lived with her, it was established that on the evening of April 15, one month prior to the McClure robbery, Davis was a guest in Dusenberg’s home. When Dusenberg left the room, Davis stole $80 from her purse but was nearly caught red-handed. Davis later admitted to police and to the victim that she had taken the money, and she told the victim she would pay her back but did not do so. She also admitted at trial that she committed the theft by taking.

“[Severance of two or more offenses of the same or similar character which are also part of a single scheme or plan is not mandatory. [Joinder is allowed] of two or more offenses which are of the same or similar character even though not part of a single scheme or plan. [It is also allowed] of two or more offenses based on the same conduct or on a series of connected acts or constituting parts of a single scheme or plan. On motion, severance of the former is mandatory. Severance of the latter is discretionary.” (Citations omitted.) Padgett v. State, 239 Ga. 556, 558 (238 SE2d 92) (1977).

The State argues that the two crimes of which Davis was charged constituted a single scheme or plan, thus leaving severance to the trial court’s discretion. It identifies the single scheme as being for defendant to enter the residence of someone she knew on the pretext of visiting with a legitimate purpose; whereas, the real purpose was to steal money, which was accomplished by rifling their purses. The two crimes were committed a month apart at night. The robbery victim had known her by name all her life and had on at least one occasion loaned her money for cigarettes at the grocery store. The theft victim knew her and had visited her home. Neither one was particularly friendly with her at the time of these incidents.

In Clemson v. State, 239 Ga. 357, 359 (1) (236 SE2d 663) (1977), the question was whether it was an abuse of discretion not to sever an attempted armed robbery, aggravated assault, and simultaneous armed robbery from two subsequent simultaneous armed robberies against two other victims. The latter two occurred minutes after the first incident, on the exit ramp of a highway a few miles from the road where the first incident occurred. The Supreme Court held that it was not error to refuse severance because the crimes were not merely of the same or similar character but also could be said to constitute a continuous series of acts. “It is clear,” instructed the court, “that where separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if they are somewhat removed from one another in terms of1 time and place.” Id. at 359.

Here, too, although the time is longer and the places are more distant, there is “more reason here for joining [them] than simply that they were ‘of the same or similar character.’ ” Id. at 360. They constitute parts of a single scheme or plan and shared a single criminal purpose, in the same sense as did the prostitution-related offenses in Padgett, supra. See also the cases collected in Hayes v. State, 182 Ga. App. 26, 27 (1) (354 SE2d 655) (1987); Phillips v. State, 238 Ga. 616, 618 (5) (234 SE2d 527) (1977), where it was held not error to refuse severance of two armed robberies of the same store cashier within a one-month period and the shooting of one store employee on the second occasion; Cooper v. State, 253 Ga. 736, 737 (3) (325 SE2d 137) (1985), where it was held not error to refuse severance of aggravated assault with intent to rape one victim, kidnapping and rape of a second victim, and simple battery of a third victim. The three instances of violence occurred in the same vicinity within, a fifteen-day period. The court concluded that the similarity among them reached the level of a pattérn, showing that Cooper’s “bent of mind was such that the offenses ‘constituted parts of a single scheme or plan.’ ” Id.

Decided October 28, 1996.

The circumstances in Hayes differed, becáuse there was no viable common scheme or plan connecting the defendant’s theft by taking alone on one day and two armed robberies she and her brother committed two days later. The only perceived connection was the family relationship.

By analogy, there is not in this case a joinder of offenses “solely on the ground that they are of the same or similar character,” which the Supreme Court ruled must be separated for trial on motion of defendant. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). The reason for this requirement is “ ‘the great risk of prejudice from a joint disposition of unrelated charges.’ ” (Citation omitted.) Id. at 464.

The question is “whether severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.” Coats v. State, 234 Ga. 659, 662 (217 SE2d 260) (1975). Where, as in this case, severance falls to the court’s sound discretion, the “ ‘court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’ ” (Citation omitted.) Id.

The interest of justice, see Jarrell v. State, 234 Ga. 410, 412 (1) (216 SE2d 258) (1975), did not require severance. The earlier theft was admitted, so there was no real issue to be tried as to that offense and thus no confusion of law or evidence by the trier of fact. See Dingier, supra at 463. In addition, the crimes were simple, involved only one defendant and one victim each time, and the court clearly charged the jury to consider each charge separately. The trial lasted about half a day, the evidence was presented by seven witnesses, including defendant and her witness, and the jury announced its verdict on each count separately. There was nothing complex about these two offenses such as could make it difficult for the trier of fact “ ‘to distinguish the evidence and apply the law intelligently as to each offense.’” (Citation omitted.) Id. at 464. Lastly, the risk of prejudice (“ ‘smear’ effect”) from this joint disposition was minimal. Id. at 463.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Richard Thurman, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.


text:
    A96A1510.
    THE STATE v. ARMSTRONG.
    (477 SE2d 635)
   Beasley, Chief Judge.

The trial court granted the motion to suppress evidence in favor of Armstrong and dismissed all charges, and the State appeals.

Officer Fouchia was working an off-duty job in uniform and in a marked police car in the parking lot of a shopping center on Christmas Eve. He heard tires squealing and saw white smoke coming from the rear tires of a pickup truck which bounced as it made a turn in the parking lot. Pedestrian and vehicular traffic were both heavy. The officer observed people walking near the truck and recognized the driver’s manner of driving as dangerous to the pedestrian traffic.

He followed and then stopped the truck, and as he approached it, driver Armstrong rolled the window down. The officer smelled marijuana and observed Armstrong concealing a pipe in his hand. After arresting him, the officer advised Armstrong of his implied consent and Miranda rights, and Armstrong consented to blood and urine testing. Additional marijuana was found in his pocket after his arrest.

Armstrong was accused of driving under the influence of drugs to the extent that he was a less safe driver, OCGA § 40-6,-391 (a) (2), driving with unlawful drugs present in blood or urine, OCGA § 40-6-391 (a) (6), possession of marijuana, OCGA § 16-13-30 (a), and “laying drag,” OCGA § 40-6-251.

At the motion to suppress hearing, Officer Fouchia testified that he stopped Armstrong for “laying drag” and that if there had been anyone directly in front of the truck at the time the incident occurred, he would have also charged Armstrong with reckless driving. Armstrong’s counsel went through each act in the statute which constitutes “laying drag” and elicited testimony from the. officer that Armstrong was not “causing the vehicle to move in a zigzag or circular course or to gyrate or spin around.” OCGA § 40-6-251. Fouchia’s testimony fell short of showing that Armstrong had violated this provision of the traffic code.

The trial court observed that “[tjhere is a popular misconception among the public and law enforcement of what laying drags is. What you witnessed, Officer Fouchia, is not what the legislature says is laying drags. It’s not a violation of the law — not a violation of any law for the defendant to do what you witnessed him do.” The court then found, “There can’t be articulable suspicion on conduct that’s not a crime,” and excluded the evidence on the basis that the stop had accordingly been unreasonable under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

1. The evidence at the suppression hearing was uncontroverted, and no question of credibility of witnesses was presented. We thus review the trial court’s ruling on the motion to suppress to ensure that there was a substantial basis for it. State v. McFarland, 201 Ga. App. 495 (411 SE2d 314) (1991). The trial court’s application of the law to the undisputed facts is subject to de novo review. Darby v. State, 216 Ga. App. 781 (455 SE2d 850) (1995).

2. When a police officer makes a stop and restrains an individual’s freedom to depart, that person is “seized.” The Fourth Amendment requires that the seizure be “reasonable” to assure the individual is not “ ‘subject to the discretion of the official in the field.’ [Cits.]” Delaware v. Prouse, 440 U. S. 648, 655 (III) (99 SC 1391, 59 LE2d 660) (1979). The reasonableness requirement imposed by the Fourth Amendment strikes “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (III) (95 SC 2574, 45 LE2d 607) (1975).

A brief investigative stop of a vehicle by a law enforcement officer is considered reasonable if it is “justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations and punctuation omitted.) Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987). Investigative stops of vehicles, like other Terry-type stops, are illegal if based only on an “unparticularized suspicion or hunch.” Id. There must be a specific, articulable suspicion, which is determined by looking at the totality of the circumstances — “objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer. United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).” Cheatham v. State, 204 Ga. App. 483, 484 (1) (419 SE2d 920) (1992).

Even if Armstrong’s behavior did not technically violate the “laying drags” statute, the officer nonetheless had reasonable articulable suspicion to stop him. The totality of circumstances in this case consisted of Armstrong driving his truck in a crowded parking lot on Christmas Eve in such a manner as to endanger others’ safety. Stopping his conduct was reasonable, whether or not Armstrong was technically “laying drags.”

The trial court’s declaration that “[t]here can’t be articulable suspicion on conduct that’s not a crime” is an incomplete statement of the law. While it is true that the officer must reasonably suspect wrongdoing, and that this suspicion cannot be based on a mere hunch that the individual is “up to something,” we have rejected the notion that the police officer must know with certainty that each element of a particular crime could be established: “If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. It is not the officer’s function to determine on the spot such matters as, e.g., jurisdiction or the legal niceties in definition of a certain crime, for these are matters for the courts. The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.” (Citations and punctuation omitted.) State v. Webb, 193 Ga. App. 2, 3-4 (386 SE2d 891) (1989).

The situation here is distinguishable from cases in which we have found reasonable articulable suspicion lacking. See, e.g., State v. Canidate, 220 Ga. App. 276, 277-278 (469 SE2d 710) (1996) (a “hunch” that someone has sped up and pulled into a parking lot to escape police detection of some wrongdoing); State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994) (defendant failing to use left turn signal while he was sitting in left-turn-only lane); State v. Golden, 210 Ga. App. 800, 801 (437 SE2d 492) (1993) (officer stopped vehicles because he “felt it uncommon for vehicles to be parked in that area in that fashion after dark and also to see the . . . pickup truck come out of a wooded area in a residential area at night”); Tarwid, supra (defendants traveling slightly under the speed limit after having received a warning citation for speeding); and Powell v. State, 163 Ga. App. 801, 803 (295 SE2d 560) (1982) (“[T]he only thing [defendant] was observed doing which might even be considered suspicious was. walking along a road looking at it”).

This episode approximates cases where we have found the officer had an articulable suspicion to make the stop, where the defendant was acquitted of the crime for which the officer stopped him initially, Jones v. State, 177 Ga. App. 489 (339 SE2d 766) (1986); where the defendant’s attorney elicited testimony from the arresting officer after having him read the applicable Code section, that, according to the letter of the statute, defendant had not in fact violated that provision of the traffic code, Allenbrand v. State, 217 Ga. App. 609, 610 (1) (458 SE2d 382) (1995); and where the officer did not cite defendant for the traffic violations which led to the stop. State v. Wright, 221 Ga. App. 202 (470 SE2d 916) (1996), and Hines v. State, 214 Ga. App. 476 (448 SE2d 226) (1994).

The primary purpose for the exclusionary rule is to deter police misconduct. Michigan v. DeFillippo, 443 U. S. 31, 38 (III), n. 3 (99 SC 2627, 61 LE2d 343) (1979). No purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the officer’s legitimate concern for public safety. The trial court’s order is reversed. There were specific and articulable facts which, together with reasonable inferences based on those facts, justified a limited inquiry. The State must demonstrate some basis from which the court can determine that the detention was not pretextual, arbitrary or harassing, and not based upon mere inclination, caprice, or a “hunch” by law enforcement. See State v. McFarland, supra. It did so here.

Decided October 28, 1996.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Richard E. Thomas, Assistant Solicitors, for appellant.

Frederick P. Meyer, Jr., Michael J. Puglise, for appellee.

3. After suppressing all physical evidence, the trial court dismissed the charges. The dismissal is also reversed.

Judgment reversed.

Birdsong, P. J, and Blackburn, J., concur.