text:
    A94A0586, A94A0587.
    CITY OF BRUNSWICK et al. v. ATLANTA JOURNAL & CONSTITUTION et al.; and vice versa.
    (447 SE2d 41)
   Blackburn, Judge.

On September 13, 1993, the appellees, the Atlanta Journal and the Atlanta Constitution, Hyde Post, the assisting managing editor of the Atlanta Journal-Constitution, Florida Publishing Company d/b/a the Florida Times-Union, and Terry Dickson, Brunswick Bureau Chief of the Florida Times-Union (hereinafter referred to collectively as the newspapers), filed the instant petition for injunctive relief against the City of Brunswick, Georgia, and T. C. Cowan, its acting chief of police (collectively referred to as the City of Brunswick), seeking access under Georgia’s Open Records Act to incident reports maintained by the City on a series of sexual assaults committed during the summer of 1993. The City denied requests made by reporters of both newspapers for access to the reports, asserting at that time and in response to the instant petition that the reports were exempt from disclosure under OCGA § 50-18-72 (a) (3) and (4) because disclosure would reveal confidential investigative material and would endanger the lives of the assault victims.

Pursuant to the newspapers’ request for an immediate injunction, a hearing was held on September 24, 1993. At the hearing, the trial court heard arguments from all parties, conducted an in camera inspection of the incident reports, and heard evidence from the City outside of the presence of the newspapers’ representative in support of the City’s contention that the reports were exempt from disclosure. Based upon the inspection of the documents and the evidence received ex parte, the trial court, ruling from the bench in open court, concluded that incident reports could be exempt from disclosure under OCGA § 50-18-72 if disclosure would reveal confidential sources or confidential investigative material or endanger public safety. As a result, the trial court ordered the City to redact portions of the reports which the court determined would compromise criminal investigation or endanger public safety, and to prepare edited reports excluding the exempted information. Reports which the City conceded were not exempt from disclosure were voluntarily provided to the newspapers by the City following the removal of information identifying the assault victims. The reports containing exempted information were subsequently sealed by the court.

In its subsequently written order of October 6, 1993, in addition to affirming its earlier ruling, the court amended the ruling to require the City to disclose the ages of the assault victims and descriptions of the alleged perpetrators based upon the fact that this information was already in the public arena as a result of the publication of two articles by the Florida Times-Union. The information contained in the articles had been received from an independent source.

The City initially appealed the bench ruling and the October 6, 1993, order of the trial court to the Supreme Court, and a cross-appeal was subsequently filed by the newspapers. Thereafter, the Supreme Court transferred both appeals to this court for appellate review under the authority of Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

Case No. A94A0586

1. Initially, the City asserts that the trial court erred as a matter of law in requiring the production of any portion of the incident reports after the court determined that portions of the records were excluded under OCGA § 50-18-72 (a) (3). However, as the Supreme Court stated in Hardaway Co. v. Rives, 262 Ga. 631, 634 (422 SE2d 854) (1992), OCGA § “50-18-72 . . . directs a narrow construction of its exclusions, exempting only that portion of a public record to which an exclusion is directly applicable.” (Citations and punctuation omitted.) See also OCGA § 50-18-72 (g). “The purpose of the Open Records Act is to encourage public access to government information and to foster confidence in government through openness to the public. [Cit.]” McFrugal Rental of Riverdale v. Garr, 262 Ga. 369 (418 SE2d 60) (1992). To exclude the entire document because it contains exempted material “would be unresponsive to the legislative intent underlying the Open Records Act.” Hardaway Co., supra at 634.

2. Next, the City maintains that the trial court erred in relying upon hearsay statements contained in the Florida Times-Union newspaper articles to amend its bench ruling and require the disclosure of various information contained in the articles. The City asserts that the statements made by out-of-court declarants lacked probative value and should not have been considered by the court. We disagree.

“As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made. Assuming that the proof is limited to merely showing that the statement was made and not as evidence of the truth of the fact asserted in the statement, the statement is admissible as original evidence and does not concern the hearsay rule.” (Citations and punctuation omitted.) Fletcher v. Ford, 189 Ga. App. 665, 667 (1) (377 SE2d 206) (1988).

In the case sub judice, the newspaper articles were not offered for the truth of the statements contained therein, but were offered for the purpose of showing that the need for confidentiality no longer existed because the information had been disclosed. Accordingly, the City’s assertion is without merit.

Case No. A94A0587

3. In their cross-appeal, the newspapers contend that the trial court erred in concluding that incident reports may be withheld from production notwithstanding the language contained in OCGA § 50-18-72 (a) (4). The Code section specifically provides that disclosure is not required for public records that are “[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports, accident reports, and incident reports. ...” While subsection (a) (4) specifically excludes police reports from exemption from disclosure, subsection (a) (3) of OCGA § 50-18-72 provides for the exemption from disclosure of records compiled for law enforcement or prosecution to the extent that the production of the documentation would disclose confidential sources, confidential investigative or prosecution material which would endanger the life or safety of individuals or disclose confidential surveillance or investigation.

In determining whether the incident reports are subject to disclosure in light of OCGA § 50-18-72 (a) (3) and (4), we must interpret these provisions in view of the long recognized principles of statutory construction, keeping in mind that the cardinal rule is to ascertain the intention of the legislature and to effectuate the purpose of the statute. Five Star Steel Contractors v. Colonial Credit Union, 208 Ga. App. 694, 696 (431 SE2d 712) (1993). “Statutes must be construed as well so as to square with common sense and sound reasoning. It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Citations and punctuation omitted.) Id. Moreover, “ ‘where possible, “effect is to be given to all the words of a statute.” (Cit.)’ [Cit.]” J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 125 (430 SE2d 13) (1993).

Applying these well-settled rules to the statutes in question, we must agree with the trial court that incident reports can be exempted from disclosure if disclosure would reveal confidential information or endanger the lives of various individuals. Consequently, the trial court did not err in its interpretation of the two statutory provisions.

4. In their last two enumerations of error, the newspapers argue that the trial court erred in conducting the hearing ex parte and excluding the newspapers’ representatives as well as the press and public from a portion of the hearing. They further assert that they were denied an opportunity to be heard. Contrary to the newspapers’ contention, they were not denied an opportunity to be heard and in fact were provided an adequate opportunity to argue their positions. In addition, the Supreme Court’s decision in R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982), relied upon by the newspapers, is inapplicable inasmuch as Lumpkin involved closure of pretrial hearings and trials in criminal cases. More importantly, the newspapers have not shown that they have been harmed by the trial court’s decision to conduct a portion of the proceeding ex parte inasmuch as the City was ordered to produce copies of incident reports previously requested by the newspapers without the identifying information of the victims which the newspapers admittedly did not want. “It is an old and sound rule that error to be reversible must be harmful.” (Citations and punctuation omitted.) Kolman, Inc. v. Burns, 191 Ga. App. 758, 759 (382 SE2d 702) (1989). Even assuming arguendo that the trial court erred in conducting an ex parte hearing, the cross-appellants have shown no harmful error warranting reversal.

Decided June 9, 1994

Reconsideration denied July 27, 1994

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Richard K. Strickland, for appellants.

Dow, Lohnes & Albertson, Peter C. Canfield, James W. Kimmell, Jr., Hull, Towill, Norman & Barrett, David E. Hudson, James B. Ellington, C. Amanda Martin, Douglas G. Ashworth, for appellees.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       Normally an action for injunctive relief is brought to enjoin a party from doing an act which results in harm to another. Inasmuch as the newspapers seek to compel the City of Brunswick to provide access to certain incident reports, a declaratory action may have been more appropriate. See generally Pangle v. Gossett, 261 Ga. 307 (404 SE2d 561) (1991). However, the parties did not raise this issue for appellate review.

       Simultaneously with the filing of its answer, the City moved the court to conduct the in camera inspection of the documents and hear all testimony on this issue ex parte, outside of the presence of the newspapers and their respective representatives as well as the general public.

       The City subsequently filed a motion to stay the enforcement of the injunction and the motion was denied by the trial court. The Supreme Court, however, granted the City’s motion for supersedeas pending the appeal.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A94A0705.
    PATELLIS et al. v. 100 GALLERIA PARKWAY ASSOCIATES et al.
    (447 SE2d 113)
   Judge Harold R. Banke.

The appellants leased separate spaces in the appellees’ office buildings. Both leases included identical typewritten renewal options for an additional 60-month term, contingent upon the tenant not being in default and giving 180 days’ prior written notice, and provided that “[t]he rental rate for said Lease renewal shall be negotiated in good faith between Landlord and Tenant at that point in time.” The appellants’ attempts to exercise the renewal options were rejected by the appellees, who instituted dispossessory actions when the appellants failed to vacate the premises. The trial court granted the appel-lees’ motion for partial summary judgment on the ground that the renewal option clause was too indefinite and uncertain to be enforceable, and this appeal followed.

1. “ ‘A provision for the renewal of a lease “must specify the terms and conditions of the renewal. . . with such definite terms and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.” [Cit.] “A provision for . . . renewal need not presently fix all of the terms of the new lease; it may furnish a certain and definite method for their ascertainment and determination in the future. On the other hand, if terms, such as duration and rent, are left for future ascertainment, and no method is provided by which they are to be determined, the contract is unenforceable for uncertainty.” (Cit.)’ [Cits.]” CM3, Inc. v. Assoc. Realty Investors/Prado, 201 Ga. App. 428, 429 (2) (411 SE2d 320) (1991).

Decided July 12, 1994

Reconsideration denied July 27, 1994

Bivens, Hoffman & Fowler, L. Brown Bivens, for appellants.

Bondurant, Mixon & Elmore, James C. Morton, Carolyn R. Gorwitz, for appellees.

In the instant case, the renewal clause of the lease did not specify the amount of rent to be paid upon renewal, and it provided no method by which the renewal rent could be determined. Accordingly, the trial court correctly concluded that the renewal option is unenforceable for uncertainty.

2. The printed contract contained a provision that any term of the lease found to be unenforceable would not invalidate the remainder of the lease, and that any such term should be replaced by a similar term that is enforceable. However, that reformation provision did not constitute a mutual waiver of the defense that the renewal option is unenforceable.

“While a distinct stipulation in a contract may be waived by the conduct of the parties, it must appear that it was the intention of the parties to treat such stipulations as no longer binding. The mere fact that one party so intended would not bring about this result. It must appear that it was the mutual intention; that is, the circumstances must be such as, in law, to make practically a new agreement as to the stipulations in the original contract.” (Citations and punctuation omitted.) Chastain v. Spectrum Stores, 204 Ga. App. 65, 67 (418 SE2d 420) (1992).

In this case, the printed language in the contract did not indicate a mutual intent to override the renewal clause, which was typewritten later under the heading “Special Stipulations.” In construing the terms of a contract under OCGA § 13-2-2 to ascertain the parties’ intent, a typewritten provision must prevail over a conflicting printed one. Quinlan v. Bell, 189 Ga. App. 8 (374 SE2d 823) (1988).

3. There was no evidence submitted to raise any issue of mutual mistake of law or estoppel giving rise to an equitable reformation. See OCGA § 24-4-27; Cowen v. Snellgrove, 169 Ga. App. 271 (6) (312 SE2d 623) (1983). “ ‘(A)ssertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summary judgment issue. (Cits.)’ [Cit.]” Weaver v. ABC Bus, 191 Ga. App. 614, 615 (2) (382 SE2d 380) (1989).

Judgment affirmed.

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


text:
    A94A0797.
    AMERICAN FINANCIAL SERVICE GROUP, INC. v. MINNIE G. BOSWELL MEMORIAL HOSPITAL.
    (447 SE2d 333)
   Judge Harold R. Banke.

The appellant, American Financial Service Group, Inc. instituted this proceeding to enforce a default judgment it obtained against the appellee in Michigan for breach of a contract to lease certain equipment. The appellee, a nonprofit public hospital authority of the State of Georgia, gave written notice that it intended to raise issues concerning the law of Michigan, and tendered the applicable statutes into evidence without objection by the appellant. See OCGA §§ 9-11-43 (c); 24-7-24. The trial court found the Michigan law controlling and entered an order setting aside and staying enforcement of the foreign judgment, from which this appeal ensues.

Under Brown v. United States Fidelity &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993), “if the foreign judgment is a default judgment entered against a nonresident of the foreign state, there is no presumption of personal jurisdiction and the burden is on the plaintiff seeking to domesticate the judgment ... to negate the defendant’s lack of jurisdiction defense.” The appellant contends that the lease agreement, which contained a clause in which the appellee agreed to be subject to the jurisdiction of Michigan, established the jurisdiction of the Michigan court.

Although a similar forum selection clause was held sufficient to overcome the jurisdiction defense under Georgia law in Brown, Michigan law controls here. See Regency Mall Assoc. v. G. W.’s Restaurant, 213 Ga. App. 225 (444 SE2d 572) (1994); Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585 (434 SE2d 778) (1993); Lightsey v. Nalley Equip. Leasing, Ltd., 209 Ga. App. 73 (432 SE2d 673) (1993).

Michigan Revised Judicature Act (“RJA”) § 600.745 (2) provides that contractual clauses affording the basis for the exercise of jurisdiction are valid only if four requirements are met: (a) if the state is authorized to entertain the action; (b) if it is a “reasonably convenient” forum for the trial; (c) if the contract was not obtained by fraud “or other unconscionable means”; and (d) if the defendant was properly served. The failure to comply with any one of these four requirements thus precludes enforcement of a forum selection clause under Michigan law.

From the stipulated facts of record, it is clear that there were no minimum contacts between the appellee and Michigan sufficient to create personal jurisdiction over the appellee in that state. Further, no personal service was made in Georgia on any officer or other corporate representative in the Michigan lawsuit. Under these circumstances, the appellant failed to carry its burden of proof to show that service was in compliance with Michigan law.

Decided July 12, 1994

Reconsideration denied July 27, 1994

Walden G. Housman, Jr., for appellant.

David G. Kopp, for appellee.

Accordingly, the trial court did not err in applying the foreign law as proved by the appellee, or in refusing to domesticate the foreign judgment because of the appellant’s failure to comply with it.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A94A1324.
    MOORE et al. v. WINN-DIXIE STORES, INC.
    (447 SE2d 122)
   Birdsong, Presiding Judge.

Appellants/plaintiffs, Annie and Robert Moore, brought a slip and fall suit against appellee, Winn-Dixie Stores, Inc. This appeal is from the grant of Winn-Dixie’s motion for summary judgment, and from an order denying appellants’ motion to compel discovery. Held:

1. Appellants assert the trial court erred in denying this motion to compel discovery of a written report by appellee’s store manager made shortly after appellant’s fall. Appellants have not enumerated as error Winn-Dixie’s refusal to release information and documents regarding the reason for the subsequent termination of employment of a Mr. Black, who was working in the store on the day of the incident. Accordingly, this issue is not before us on appeal. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

A few days after Winn-Dixie filed a motion for summary judgment, appellants filed their motion to compel discovery of any and all written reports regarding the slip and fall incident and the entire personnel file of Mr. Black. Following an in camera inspection the trial court denied the motion; however, the trial court ordered that the documents examined in camera be sealed and attached to the record. To protect and effectuate our judgment, we have opened and examined those sealed documents. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV. The sealed file consists of two documents: a customer accident report consisting of two pages and a one-page human resources changes document reporting the reason for Mr. Black’s termination. We further note that, although the trial court denied discovery of these documents the human resources changes document and page one of the two-page customer accident report inexplicably appear, without being sealed, at pages 404-405 of the transcript. The second page of the customer accident report, bearing the printed notation “Prepared In Anticipation Of Litigation,” is a pre-printed form which bears no information relating to this incident except the location code of the Winn-Dixie store and the names, addresses, and phone numbers of four store “associates who were responsible for SUPERVISING or WORKING in the area where the alleged accident occurred or associate who may have been in the area just prior to the alleged accident.” The associates listed on this form are Ms. Gravitt, Mr. Black, Ms. Tubner, and Mr. Burson. Mr. Black’s name, address and phone number as known to Winn-Dixie as of the date the manager wrote the report, “6-4-92,” is the only information listed about him on that form. This address and phone number is not the last known address and phone number subsequently disclosed by Winn-Dixie and discussed below. Further, neither the first nor second page of this customer accident report contains any type of statement by or attributable to Mr. Black, and the undisclosed second page contains no statements of fact, opinions, or any other form of conclusions or descriptions of or about the reported slip and fall incident.

The record further reveals that in the spring of 1993 in response to appellants’ second interrogatories, Winn-Dixie disclosed the name of Mr. Black, his last known address (including zip code), his last known telephone number, his Social Security number, and dates of Mr. Black’s employment with the store. Appellant does not assert in her brief that this particular information is not an accurate disclosure of the name, last known address, last known telephone number and Social Security number of Mr. Black. Any issue reasonably contained within an enumeration of error as to which there has not been any argument or citation of authority made in appellant’s brief is deemed abandoned on appeal. Boatright v. State, 192 Ga. App. 112, 119 (10) (385 SE2d 298), citing, inter alia, Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315).

Additionally, Winn-Dixie disclosed Mr. Black’s employment file, except for any existing disciplinary reports and/or notices of termination. The documents at issue pertaining to Mr. Black contain the same name and Social Security number but an earlier address and telephone number than Mr. Black’s last known address discussed above. Moreover, in his deposition testimony, the co-manager of Winn-Dixie testified that he had fired Mr. Black for theft of a bag of steaks and other items.

Pretermitting whether it was error to deny the motion to compel is the issue of whether any resulting error would be harmless. Appellant has abandoned any claim that she was not in fact provided the last known address and last known telephone number that Winn-Dixie had of Mr. Black. The documents at issue contained no statements attributable to Mr. Black, or any information regarding his location in the store either before, during, or immediately following the incident. Further, the trial court did examine the documents in camera. Under these circumstances, we find that there exists a high probability that the non-disclosure of these documents did not affect the judgment; accordingly, any error was harmless. OCGA § 9-11-61; see Powers Ferry Constr. v. Commerce Builders, 191 Ga. App. 327, 329 (2) (381 SE2d 755) (errors in admission or exclusion of evidence which would in no event alter or affect the outcome of the case are harmless); see also Atlanta Foot &c. v. Patton, 176 Ga. App. 2, 3 (2) (335 SE2d 141).

2. (a) Appellant made contradictory statements and answers to interrogatories, without providing a reasonable explanation therefor, as to whether she fell while attempting to obtain a light bulb or after she had abandoned that attempt and was moving down the aisle seeking toothpaste. Applying the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), regarding contradictory statements, we construe the evidence as to this matter most strongly against appellant, and conclude that she fell while attempting to obtain a light bulb.

(b) Appellant testified, by way of deposition, that she “didn’t get a chance to get the light bulbs. I slipped before I got to the bulbs. I just slipped down on that water on the floor.” (Emphasis supplied.) She further testified, “I was just facing the light bulbs. I was going to go over and get it, but I fell before I got there. ... I went to turn and just walked a few steps . . . proceeded to walk a few steps. That’s when I slipped.” As to the direction in which appellant was looking when she was coming around the shelf to go down the aisle where the incident occurred, appellant testified: “Like I said, when I turned to go, I was proceeding to get the light bulbs so quite naturally I’m going to look up on the shelf with the light bulbs, you know, just looking at the light bulbs.” (Emphasis supplied.) Thus, appellant has admitted in her deposition testimony the fact that she was looking at the light bulbs, as she walked down the aisle and slipped. See generally Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305). Additionally, any testimony contradicting this factual concession and not reasonably explained, would be construed against appellant under the rule of Prophecy, supra.

Appellant has admitted she was just looking at the light bulbs and, thus, was not watching where she was walking. “She did not exercise ordinary care for her own safety. On appellee’s motion for summary judgment [cit.], even assuming appellee [Winn-Dixie] had knowledge of the peril, it was appellant’s burden to come forward with specific evidence that appellee’s knowledge of the peril was superior, for this is the true ground of the proprietor’s liability. When the perilous condition is known to the proprietor and not known to the person injured, a recovery is permitted [cit.], but the person injured is not excused from the duty to exercise ordinary care for her own safety. Not only must she show that the defendant had knowledge of the peril, she must show that she was without knowledge of its presence; she must exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. She must make use of all her senses in a reasonable measure to discover and avoid those things that might cause hurt to her. [Cit.] Whatever appellee’s knowledge of the peril, there is no genuine issue that the cause of appellant’s fall was her own failure to exercise ordinary care.” Minor v. Super Discount Markets, 211 Ga. App. 123, 124-125 (438 SE2d 384).

Decided July 13, 1994

Reconsideration denied July 27, 1994

Nadler, Beskin & Scott, Gary M. Nadler, for appellants.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for ap-pellee.

Further, the deposition testimony of the co-manager is not controverted that he had walked down and checked the aisle where appellant fell no more than five minutes before the incident, and the aisle was clear of foreign substance at that time.

Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) is distinguishable and is not here controlling.

Appellant’s contentions in support of her enumerations of error are without merit.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banks concur.


author: Blackburn, Judge.

text:
    A94A1227.
    CLAY v. THE STATE.
    (447 SE2d 156)
   Blackburn, Judge.

Edward Jerome Clay appeals his conviction by a jury of aggravated assault.

1. In his first four enumerations of error, Clay asserts the general grounds and the trial court’s denial of his motion for directed verdict. “On appeal, the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), ‘is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.’ Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).” Wright v. State, 211 Ga. App. 474 (1) (440 SE2d 27) (1993).

The victim testified that Clay attacked him with a knife. A witness to the altercation testified that Clay attacked the victim, although the witness did not see the knife. Clay testified that the victim started the altercation by grabbing a knife from a table and holding it in an offensive manner. A fight then ensued in which the victim was injured. Clay testified, however, that he did not remember the victim getting cut.

“It is also well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.” (Citations and punctuation omitted.) Bowers v. State, 177 Ga. App. 36, 39 (338 SE2d 457) (1985). Furthermore, “the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citation and punctuation omitted.) Ahmed Al-Beti v. State, 210 Ga. App. 312 (1) (436 SE2d 50) (1993). Having so reviewed the facts of this case, we find that the evidence was sufficient under the standard of Jackson v. Virginia, supra.

2. In his fifth enumeration of error, Clay contends the trial court erred in denying, as untimely, his motion to strike a juror for cause. However, Clay failed to preserve this issue for appeal. At the end of the jury selection process, the trial court asked both parties whether there were any objections to the makeup of the jury or to the method used to select the jury. Neither party raised any objections.

3. Clay asserts the trial court erred in allowing photographs of the victim’s injuries into evidence. Specifically, Clay argues the photographs were not relevant to the crime charged and were prejudicial. The victim’s injuries were relevant. “A person commits the offense of aggravated assault when he assaults . . . [w]ith a deadly weapon or with any object. . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Clay testified that he could not remember the victim getting cut. Proving serious bodily injury is a part of the State’s burden of proof. The trial court did not err in admitting the photographs depicting the victim’s injuries.

4. In his final enumeration of error, Clay contends the trial court erred by failing to recharge the jury on his defenses to aggravated assault after the court recharged the jury on the elements of aggravated assault, pursuant to the jury’s request.

Decided July 27, 1994.

John G. Walrath, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

During jury deliberations, the jury requested that they hear the definition of aggravated assault. The judge warned them that they were to consider the charge he had given as a whole, and then asked if they were asking strictly for the definition of the crime of if they also wanted a recharge on those areas of justification and accident. The foreman of the jury indicated that they wanted a recharge on just the definition of the crime. The judge gave the jury the charge on the definition of aggravated assault and again reminded them to consider this charge with the charge previously given.

Clay’s contention is without merit. “[I]t is not error to limit a recharge to the question asked. [Cit.]” Davis v. State, 209 Ga. App. 755, 760 (434 SE2d 752) (1993).

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1304.
    In the Interest of R. A. J., a child.
    (447 SE2d 158)
   Blackburn, Judge.

A petition filed against R. A. J., a child, charged him with the delinquent act of murder. After a hearing on the State’s motion to transfer the case to superior court, the Juvenile Court of Athens-Clarke County entered an order transferring the petition to superior court. On appeal, R. A. J. contends the State failed to meet its burden of proof on several statutory prerequisites set forth in OCGA § 15-11-39 (a).

1. Initially, R. A. J. asserts the State failed to show he was not committable to an institution for the mentally ill. OCGA § 15-11-39 (a) (3) (B) requires that the court determine reasonable grounds exist that “[t]he child is not committable to an institution for the mentally retarded or mentally ill.”

Relevant to this inquiry, the principal at R. A. J.’s middle school testified that R. A. J.’s grades dropped dramatically during his second year at the middle school, specifically, from passing all classes to failing all but two. Further, increased disciplinary actions were required against R. A. J.; during his second year, he was disciplined 28 times and received 28 days of suspension. The principal testified that she had no knowledge of R. A. J.’s present IQ; however, he had been tested in the fifth grade and had scored approximately 82. The principal stated that a score of 70 or below was required for enrollment in special education programs. She noted that she was not a physician and could not address whether R. A. J. was mentally ill, but that she had never observed any behavior to indicate such an evaluation was necessary.

R. A. J.’s mother testified that he had never been evaluated by a psychiatrist or psychologist for treatment or evaluation. Although R. A. J. had suffered seizures while in elementary school, she had no reason to believe R. A. J. was mentally ill.

“[T]he child’s mental condition may be established by the testimony of a nonexpert witness . . . provided the witness gives sufficient facts and circumstances to establish the basis for his opinion. [Cits.]” L. K. F. v. State of Ga., 173 Ga. App. 770, 771 (328 SE2d 394) (1985). In the present case, the witnesses provided no basis for their opinion that R. A. J. was not mentally ill, despite specific evidence of dramatically declining grades and behavior. Therefore, the juvenile court abused its discretion in transferring this case without sufficient evaluation of R. A. J.’s mental condition.

2. R. A. J. contends the State failed to meet its burden of proving that his interest and the community’s interest required the transfer. OCGA § 15-11-39 (a) (3) (C).

The juvenile court made the following findings of fact: that reasonable grounds existed to believe that R. A. J. murdered Quarteries Whitehead by shooting him, that R. A. J. was not committable to an institution for the mentally retarded or mentally ill, and that the community’s interest in treating R. A. J. as an adult outweighed R. A. J.’s interest “because of the heinous nature of the offense which resulted in the death of Quarteries Whitehead.”

In Waller v. State, 261 Ga. 830 (412 SE2d 531) (1992), the Georgia Supreme Court stated that “transfer to superior court cannot be based solely on the number and severity of the crimes.” Id. at 831. In the present case, the juvenile court’s evaluation of the community’s interest, was based entirely on the severity of the alleged act of delinquency. Therefore, the juvenile court’s basis for transferring this matter was erroneous.

As “the present record affords no basis for a determination one way or the other regarding the issue of [R. A. J.’s] committability to a mental institution, we believe the most appropriate disposition of the case is to vacate the judgment of the juvenile court and remand for a new hearing on the matter. ... To foreclose the possibility of a transfer on the basis of the record currently before us would be to impose arbitrarily a result which may not be in the public’s interest, without vindicating any right of the accused.” L. K. F., supra at 772.

Decided July 27, 1994.

Christopher P. Brooks, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Pope, Chief Judge.

text:
    A94A0002.
    LEE v. THE STATE.
    (447 SE2d 323)
   Pope, Chief Judge.

Defendant Gordon Clifford Lee was convicted of distributing obscene material in violation of OCGA § 16-12-80, and appeals.

1. Defendant originally filed his appeal in the Supreme Court, contending that court had jurisdiction of this appeal because he was challenging the constitutionality of OCGA § 16-12-80, “in that the statute has no provision for a pre- or post-seizure adversarial hearing following the seizure of allegedly obscene materials.” The Supreme Court transferred the appeal to this court, on the basis that the issue raised required the application of settled constitutional principles, not a determination of constitutionality. Our review of the record shows that defendant did not urge his constitutional challenge during the hearing on his motion to suppress, and that he raised his constitutional challenge for the first time following the presentation of the State’s case when he moved for a directed verdict of acquittal. The trial court ruled defendant’s challenge was untimely, and that the issue of pre- and post-seizure notice was not relevant in this case because the trial court had previously prohibited the State from introducing any allegedly obscene items seized pursuant to a warrant. Pursuant to that ruling the only items introduced against defendant at trial were purchased, not seized. As defendant “acknowledged” in his written amended motion to suppress, no adversarial hearing on the question of obscenity is needed when the allegedly obscene material is purchased, not seized. This enumeration is thus without merit.

2. Defendant next contends that the trial court erred in refusing to sequester one of the State’s witnesses, Lt. Marshall Smith, and in not requiring Lt. Smith to testify first. Our review of the record shows that the State and not the defendant invoked the rule of sequestration and that the State requested that Lt. Smith be excepted from the rule. The defendant did request that Lt. Smith testify first, but the court denied defendant’s request. “OCGA § 24-9-61 provides for sequestration of witnesses upon motion by a party, but the trial court has sound discretion to make exceptions to that rule, and only abuse will warrant reversal. [Cit.] Although it is better to call that witness first so as to obviate the issue, we find no abuse in this case. The State, of course, takes the risk that the witness’ credibility will be affected. [Cit.]” Thayer v. State, 189 Ga. App. 321, 325 (3) (376 SE2d 199) (1988). McSears v. State, 208 Ga. App. 624 (2) (431 SE2d 705) (1993); Johnson v. State, 198 Ga. App. 316 (4) (401 SE2d 331) (1991); Burns v. State, 196 Ga. App. 732 (1) (397 SE2d 19) (1990).

3. Contrary to defendant’s third enumeration of error, testimony by a State’s witness, who works with abused children, that she was disturbed by the content of the obscene magazines (comic books) sold by defendant because of damage that such material inflicts upon children did not violate the trial court’s earlier ruling prohibiting children from testifying that they purchased “adults only” magazines from defendant.

4. Defendant was not entitled to a directed verdict of acquittal based on the failure of the State’s witnesses to testify concerning how they were affected by viewing the allegedly obscene material. It was for the jury, not the State’s witnesses, to decide whether the comic books sold by the defendant violated our State’s obscenity statute. Fishman v. State, 128 Ga. App. 505, 509 (3) (197 SE2d 467) (1973). Defendant’s fourth enumeration of error is thus without merit.

5. Defendant contends that the trial court erred in refusing to charge the jury, upon written request, on the definition of the applicable “community” to be used in determining obscenity. We find no merit to this argument. The record shows that the trial court charged the jury to apply “contemporary community standards” in determining whether the material in question was obscene under OCGA § 16-12-80 (b) (1). In Jenkins v. Georgia, 418 U. S. 153 (94 SC 2750, 41 LE2d 642) (1974), the United States Supreme Court agreed “with the Supreme Court of Georgia’s implicit approval of the trial court’s instructions directing jurors to apply ‘community standards’ without specifying what ‘community.’ ” Id. at 157. The trial court’s instruction also complied with Dumas v. State, 131 Ga. App. 79 (205 SE2d 119) (1974), which held, that jury instructions should neither narrow the definition of “community” to the local community nor broaden it to include the national community. Id. at 80 (1). Although defendant claims the State, in closing argument, improperly argued to the jury that the jury was the proper community, that contention cannot be considered by this court because the closing argument was not transcribed and is not part of the record on appeal. See Whisenhunt v. State, 156 Ga. App. 583, 584 (4) (275 SE2d 82) (1980).

6. The trial court also did not err in refusing to charge the jury as to the proper procedure for evaluating whether a work has serious literary, artistic, political, or scientific value. Defendant contends that Pope v. Illinois, 481 U. S. 497 (107 SC 1918, 95 LE2d 439) (1987) requires the trial court to provide the jury with an objective standard for evaluating the societal worth of a work. However, we do not read Pope as mandating an instruction beyond charging the jury with the language contained in OCGA § 16-12-80 (b); rather, we read Pope as allowing the trial court to use its discretion in determining if a further charge is necessary. “In an obscenity prosecution the trial court, in its discretion, could instruct the jury to decide the value question by considering whether a reasonable person would find serious literary, artistic, political, or scientific value in the work, taken as a whole.” (Emphasis supplied.) Pope, 481 U. S. at 501, n. 3. The trial court in this case declined to give the additional charge requested by defendant and we find no abuse of discretion in that refusal under the facts of this case.

Decided July 5, 1994

Reconsideration denied July 28, 1994

Cadle & Cheatham, Paul R. Cadle, Jr., for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0115.
    SHELTON v. THE STATE.
    (447 SE2d 115)
   Blackburn, Judge.

Following a trial by jury, the appellant, Joseph Shelton, was convicted of operating a motor vehicle under the influence of alcohol, in violation of OCGA § 40-6-391 (a) (1). His motion for new trial was subsequently denied, and this appeal followed.

The evidence viewed in the light most favorable to the jury’s verdict shows that at approximately 10:50 p.m. on January 6, 1992, Shelton was seen driving a Chevrolet Camaro in a parking lot of a Gwinnett County apartment complex. Shelton drove the vehicle into the rear of a truck parked in the parking lot, resulting in heavy damage to the truck and forcing the truck over an adjacent curb. After assessing the damage to the vehicle, Shelton left the scene in the vehicle, leaving an injured passenger, Paul Woodall, who later fled on foot to an apartment within the complex. Officer Beining of the Gwin-nett County Police Department was summoned to the scene and during his investigation, was given a description of both the driver and passenger. A check of the vehicle’s license plate number, which was supplied by a witness, revealed that Shelton was the registrant of the vehicle.

When Officer Beining located Woodall and Shelton in their apartment within the complex at approximately 1:00 a.m., Woodall was extremely intoxicated and had a fresh lip injury as described by an eyewitness. Although Woodall denied knowledge of the incident, he was subsequently identified by an eyewitness as the passenger in the suspect vehicle, and arrested. Shelton was also in the apartment and was intoxicated and appeared to have been awakened from sleep. A strong odor of alcohol emanated from his person, his eyes were glassy and bloodshot, his speech was slurred, and he had a fresh injury to his right arm. In an effort to confirm whether Shelton was the driver of the vehicle, the officer began questioning him but did not advise him of his Miranda rights prior to questioning. Officer Beining testified at the motion to suppress hearing that Shelton was not told that he was not free to leave, was not placed in handcuffs, and his access to leave was not blocked. Shelton did not present any evidence to rebut this testimony at the hearing.

Shelton denied driving his vehicle that night and initially informed the officer that he had stayed at home drinking and became inebriated while at home. Upon further questioning, Shelton changed his story and admitted that he had been drinking with some friends, including Woodall, at a night club and a restaurant, but he could not say which friend drove that evening. He further stated that upon his arrival at home at approximately 10:30 p.m., he went to bed. Shelton accompanied the officer outside to the police car where he was identified by an eyewitness as the driver of the Camaro at the time of the collision and was arrested. When the Camaro was subsequently located by another officer, the windshield was cracked and an empty beer container and three unopened beer containers were found in the vehicle. An intoximeter test administered at 2:32 a.m. revealed that Shelton had a blood-alcohol content of .19 grams.

1. Shelton asserts that the trial court erred in refusing to suppress his pre-Miranda statement made to the investigating officer in which he admitted that he had been drinking before the collision. Although Shelton was questioned in his apartment and on the stairs leading from the apartment prior to his arrest, “[t]here is no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way by action of the [officer] when he made his [incriminating] statement to the police. [Accordingly,] [t]he defendant’s statement was admissible as a statement made prior to any in-custody interrogation.” (Citations and punctuation omitted.) Wilson v. State, 208 Ga. App. 812, 813 (2) (432 SE2d 211) (1993).

2. Next, Shelton argues that the evidence produced at trial was insufficient to support the jury’s verdict that he was under the influence of alcohol to the extent that he was a less safe driver. Specifically, Shelton asserts that the prosecution failed to present any evidence that he was intoxicated or manifested any signs of intoxication while driving his vehicle at the time of the incident. We disagree.

Shelton admitted that he became inebriated while drinking with some friends. When questioned by Officer Beining hours after he had struck the parked truck, he manifested signs of intoxication and an odor of alcohol permeated his skin and clothing. He did not consume any alcohol when he returned home since he contended that he went to bed and to sleep immediately upon arrival, and any rational trier of fact could infer that his elevated blood-alcohol level four hours after the collision stemmed from the alcohol that he consumed earlier in the evening. “ ‘No fact is better known or publicized than [the fact] that alcohol slows the reflexes, dulls the thinking processes, slows the impulse stimuli and reaction thereto. . . .’ [Cits.]” Menendez v. Jewett, 196 Ga. App. 565, 569 (396 SE2d 294) (1990).

While OCGA § 40-6-391 (a) (1) makes it unlawful for a person to drive or be in actual physical control of any moving vehicle under the influence of alcohol to the extent that it is less safe for the person to drive, there is no requirement that the person actually commit an unsafe act. Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990). However, in this case, Shelton did commit an unsafe act when he drove his vehicle into the rear end of a parked truck with such force to push the truck onto the adjacent curb. Considering the combination of facts involved in this case, a rational trier of fact could reasonably have found proof of Shelton’s guilt beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); King v. State, 205 Ga. App. 825 (2) (423 SE2d 429) (1992).

3. Lastly, Shelton argues that the trial court erred in charging the jury on the presumptions codified in OCGA § 40-6-392 (b) when the only matter for jury resolution was whether he was operating the vehicle under the influence of alcohol to the extent that he was a less safe driver. He maintains that such a charge was extremely prejudicial and was erroneous as a matter of law since OCGA § 40-6-392 was amended on July 1, 1991, to substitute .08 grams for .10 grams in subparagraphs 2 and 3.

Decided July 12, 1994

Reconsideration denied July 28, 1994

C. Alan Mullinax, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

While Shelton is correct that the trial judge incorrectly charged the statute as it existed prior to the 1991 amendment, Shelton has not shown that he has been harmed by the trial court’s instruction to the jury that they could infer that Shelton was under the influence of alcohol based upon his blood-alcohol content. The trial court’s charge did not invade the province of the jury. See King v. State, 200 Ga. App. 511 (3) (408 SE2d 509) (1991). In this case, unlike in King, the evidence, including Shelton’s admission that he was inebriated, showed that Shelton was under the influence of alcohol. Consequently, this enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       The trial court granted Shelton’s motion for directed verdict as to Counts 2 and 3 of the indictment, which charged him with driving with unlawful alcohol concentration in violation of OCGA § 40-6-391 (a) (4), and leaving the scene of an accident in violation of OCGA § 40-6-270, respectively. The trial court denied Shelton’s motion for directed verdict on Count 1, driving a motor vehicle under the influence of alcohol to the extent that he was a less safe driver.


text:
    A94A0159.
    ZENECA, INC. v. METROPOLITAN BOYS’ CLUB OF COLUMBUS, INC. et al.
    (447 SE2d 108)
   Pope, Chief Judge.

A nine-year-old boy died after ingesting rat poison pellets stored in an unlabeled container behind a counter at a Boys’ Club. The parties to this appeal were co-defendants in an action brought by the boy’s parents: appellant is the manufacturer of the poison, and appel-lees are the Boys’ Club and the pest control company that supplied the rat poison. Appellees settled during the trial for $400,000 each. The trial continued against appellant only, and the jury returned a verdict for $510,000 in compensatory damages and $1,000,000 in punitive damages. The trial court wrote off the $510,000 in compensatory damages because plaintiffs had already received more than that amount from appellees. Appellees then intervened to assert cross-claims for contribution against appellant, and the court granted summary judgment for appellees on those claims.

Appellant appealed the jury verdict against it, however, and in ICI Americas v. Banks, 211 Ga. App. 523 (440 SE2d 38) (1993) this court overturned the verdict, holding that appellant could not be liable for the boy’s death as a matter of law. Although plaintiffs’ petition for certiorari was granted and that case is now pending before the Georgia Supreme Court, this case must be decided by July 15, 1994 (Ga. Const. 1983, Art. VI, Sec. IX, Par. II), and the Supreme Court will not render its decision in ICI Americas by then. We are therefore bound by this court’s decision in ICI Americas, and must reverse the judgment for appellees on the ground that appellant is not a joint tortfeasor with appellees as a matter of law.

Decided July 11, 1994

Reconsideration denied July 28, 1994

Rogers & Hardin, Susan D. Burnell, Phillip S. McKinney, Ha-gler, Hyles & Adams, M. Stephen Hyles, for appellant.

Richard A. Childs, Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Mary K. Smith, Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, for appellees.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0316.
    A94A0317.
    MAYOR & ALDERMEN OF THE CITY OF SAVANNAH v. WILSON et al. RUPERT HELLER’S PRESCRIPTIONS, INC. v. WILSON et al.
    (447 SE2d 124)
   Judge Harold R. Banke.

The appellees, Ricky Wilson, James Waller, and Mike Waller, commenced this action against the Mayor & Aldermen of the City of Savannah (the city) and Rupert Heller’s Prescriptions, Inc. (Heller’s), asserting claims arising from their arrests and prosecution for robberies committed at various locations of Heller’s, a pharmacy chain. The trial court denied motions for summary judgment filed by the city and Heller’s, and these interlocutory appeals followed.

In March 1991, James and Mike Waller went to a Heller’s to have a prescription filled. A Heller’s employee noticed James Waller and, believing him to be the man who had committed an earlier robbery, called the Savannah police. The police responded quickly and arrested James and Mike Waller without warrants, charging them with the October 1990 robbery of a Heller’s. Mike Waller was released after two hours because the employee did not recognize him, but James Waller was detained for 66 hours.

Ricky Wilson was convicted of a November 1990 robbery of a Heller’s located on Abercorn Street, after being positively identified by Heller’s employees at trial. After Wilson had served eight months of his prison sentence, another person confessed to the crime, and Wilson was released pursuant to his motion for new trial. Wilson produced evidence that the man who later confessed to the robbery of the Abercorn Street Heller’s was suspected in a series of pharmacy robberies being jointly investigated by the Savannah Police Department and the FBI prior to the time Wilson was accused of the robbery.

In Case No. A94A0316, the city appeals the denial of its motion for summary judgment as to Waller’s and Wilson’s claims of constitutional violations under 42 USC § 1983. In Case No. A94A0317, Heller’s appeals from the denial of its motion for summary judgment against Wilson’s claim for malicious prosecution, and the Wallers’ claims for false arrest and false imprisonment.

1. It is “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dept. of Social Svcs, of the City of N.Y., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978). If a municipality’s failure to train its employees demonstrates a “deliberate indifference” to the rights of its inhabitants, as where a deliberate choice is made to follow a course of action from among various alternatives, then it can be thought of as a “policy or custom” and municipal liability attaches. City of Canton, Ohio v. Harris, 489 U. S. 378 (109 SC 1197, 103 LE2d 412) (1989). See generally Collins v. Harker Heights, Texas, 503 U. S._(112 SC 1061, 117 LE2d 261) (1992).

In the instant case, Waller’s § 1983 claim asserted that the city had a policy of making warrantless arrests, and that the city’s failure to promulgate a written policy to guide police officers in making war-rantless arrests demonstrated a conscious indifference to the rights of citizens. The trial court found this claim sufficient to withstand the city’s motion for summary judgment because of the uncontroverted evidence that Waller was not brought before a court for a probable cause hearing within 48 hours of his arrest as required under OCGA § 17-4-62, and that it was at least the de facto policy of the city not to comply with that statutory mandate on weekends. That evidence, and the inferences drawn from it, precluded summary adjudication of Waller’s § 1983 claim.

2. In Wilson’s § 1983 claim against the city, he alleged that the city deliberately withheld exculpatory information from the district attorney’s office in spite of his Brady motion, which constituted a policy subjecting the city to liability. The trial court adopted the holding in Walker v. City of New York, 974 F2d 293 (2d Cir. 1992), i.e., that liability can be imposed under certain circumstances by a policy of failing to properly train employees about Brady material or issuing appropriate guidelines as to what constitutes Brady material; it con-eluded that the city’s guidelines for its employees to “follow the law” amounted to no guidance at all, and denied the city’s motion for summary judgment. We agree that a jury issue exists under both state and federal law in this regard. See City of Cave Spring v. Mason, 252 Ga. 3, 4-5 (310 SE2d 892) (1984); Poss v. City of North Augusta, 205 Ga. App. 894, 895 (2) (424 SE2d 73) (1992).

3. In his malicious prosecution claim, Wilson contended that Heller’s employee, Lawrence Garnto, intentionally and maliciously identified him falsely as one of the individuals who robbed the branch on Abercorn Street. The police located Wilson through the car tag number furnished by Garnto and produced a photo spread containing his picture which was shown to the four employees who witnessed that robbery. Garnto and one other employee identified Wilson as the robber; the other two were unable to select anyone. Based on this information, a warrant was executed for Wilson’s arrest on behalf of Heller’s, and he was tried and convicted.

To establish the necessary element of malice for this claim, Wilson offered his mother’s affidavit stating that Wilson and Garnto knew each other, and that Garnto’s brother’s wife had “cussed out” Wilson because of a monetary dispute between Garnto’s brother and Wilson. The trial court found that although the inference of malice urged by Wilson was “attenuated,” it could not say as a matter of law that it was totally implausible.

“As movant, [Heller’s] must unequivocally refute [Wilson’s] allegations and conclusively negate one or more essential elements of plaintiff’s case. [Cit.]” Derry v. Clements, 197 Ga. App. 173 (397 SE2d 594) (1990). All of Heller’s employees who identified Wilson at trial, including Garnto, swore that they did not identify him for any personal vendetta, did not act with malice, and did not intentionally misrepresent his identification. This “was direct evidence which could constitute an uncontradicted fact capable of sustaining a motion for summary judgment. . . . The burden was then on [Wilson] not to rest upon the allegations of the pleadings, but to set forth specific facts showing there was a genuine issue for trial. [Cit.]” Id. at 173-174.

“ ‘ “When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences,” ’ . . . the evidence must not constitute a ‘mere inconclusive inference’ for then it is insufficient to withstand summary adjudication.” (Citations omitted.) Cohen v. Hartlage, 179 Ga. App. 847, 850 (348 SE2d 331) (1986). Wilson’s circumstantial evidence had no probative value when measured against the uncontroverted direct evidence of Heller’s employees that they acted without malice. It follows that the trial court erred in denying Heller’s motion for summary judgment on this claim.

4. The trial court concluded that a jury issue was presented by the Wallers’ claims for false arrest and false imprisonment, on the grounds that the police arrested and detained them solely because of the telephone call and identification made by Heller’s employee, and it was undisputed that neither of them participated in the prior armed robbery she witnessed. We disagree.

“OCGA § 51-7-1 provides that ‘(a)n arrest under process of law without probable cause, when made maliciously, shall give a right of action to the party arrested.’ An action for false arrest may lie when there has been an arrest under warrant, or when as in this case, the arrest was without a warrant. [Cit.]” Gantt v. Patient Communications Systems, 200 Ga. App. 35, 38 (2) (406 SE2d 796) (1991). Lack of probable cause and some evidence of the animus required by OCGA §§ 51-7-2 and 51-7-3 must be shown. Pinkston v. City of Albany, 196 Ga. App. 43 (2) (395 SE2d 587) (1990).

“Lack of probable cause is defined in OCGA § 51-7-43 as existing ‘when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.’ Unless the facts regarding probable cause are undisputed, it is a question for the jury. [Cits.]” Gantt, supra. However, “where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for [false arrest] to recover.” (Citations and punctuation omitted.) Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 130 (2) (397 SE2d 563) (1990).

In the instant case, Heller’s made an affirmative showing that its employee acted in good faith in identifying James Waller, based upon her truthful belief that he was the perpetrator of a previous robbery she had witnessed. This good faith identification, though erroneous, coupled with the discovery of a handgun similar to the one used in the prior robbery in James Waller’s truck, established the probable cause necessary for his arrest. Heller’s further established that its employee told police officers that Mike Waller was not involved in the prior robbery, and he was released without being charged. Heller’s having thus established the existence of probable cause for James Waller’s arrest and the absence of any malice with regard to Mike Waller’s arrest, the trial court should have granted summary judgment for Heller’s on the Wallers’ claim for false arrest.

Similarly, Heller’s is not liable for false imprisonment in this case. “ ‘The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution [cit.]; in the latter case there is not. [Cit.]’ ” Tench v. Turner, 201 Ga. App. 156, 157 (1) (410 SE2d 357) (1991).

Decided July 13, 1994

Reconsiderations denied July 28, 1994

Oliver, Maner & Gray, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, for City of Savannah.

Painter, Ratterree & Bart, R. Clay Ratterree, Sarah B. Akins, for Rupert Heller’s Prescriptions, Inc.

Savage & Turner, Brent J. Savage, Kathryn W. Hughes, Donaldson, Herndon, Bell & Metis, Thomas R. Herndon, for Wilson.

The good faith identification of the Wallers as suspects did not render their detention by the police unlawful, as required by OCGA § 51-7-20. There is no issue for the jury where there is no unlawful detention. See Fields v. Kroger Co., 202 Ga. App. 475 (414 SE2d 703) (1992).

Judgment affirmed in Case No. A94A0316. Judgment reversed in Case No. A94A0317.

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


author: Blackburn, Judge. Judge Harold R. Banke,

text:
    A94A0326.
    THE STATE v. BERKY.
    (447 SE2d 147)
   Blackburn, Judge.

Peter Berky, appellee, was charged with driving under the influence, driving with an unlawful alcohol concentration, speeding, and improper lane change. Upon Berky’s motion to exclude a videotape purporting to show his commission of the alleged offenses, the trial court dismissed the action. The State was unable to lay the foundation for admission of the videotape as the arresting officer was killed in an unrelated incident after Berky’s arrest.

The death of a police officer should not inure to the benefit of a criminal defendant. There is a strong public interest in protecting the citizens of Georgia from drunk drivers and in supporting the prosecution of such. This case presents an opportunity to review the foundation requirements for the admission of videotapes into evidence.

In Allen v. State, 146 Ga. App. 815, 817 (247 SE2d 540) (1978), we determined that the foundation requirements for the admission of tape recordings, previously established in Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (88 SE2d 167) (1955), applied equally well to videotape recordings. The admission of videotapes requires: “(1) It must be shown that the mechanical transcription device was capable of taking the testimony. (2) It must be shown that the operator of the device was competent to operate it. (3) The authenticity and correctness of the recording must be established. (4) It must be shown that changes, additions, or deletions have not been made. (5) The manner of preservation of the record must be shown. (6) Speakers must be identified. (7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress.” Allen, supra at 817.

As applied to the facts of the present case, such foundational requirements for the admissibility of a videotape recording are impossible to meet; yet, we can acknowledge that photographic and videotaped evidence can be superior to eyewitness testimony in certain respects. See Franklin v. State of Ga., 69 Ga. 36 (1882). Eyewitness testimony is subject to errors in perception, memory lapse, and a witness’ problem of adequately expressing what he observed.

In other jurisdictions, videotapes “can be used in two main ways: to illustrate the testimony of witnesses, or as substantive proof themselves. [Cits.]” State v. Holderness, 293 NW2d 226, 234-235 (Iowa 1980). “Photographs can be admitted as real evidence in a proper case. As stated in Wigmore: ‘With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the “pictorial testimony” rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which “speaks for itself[.”]’ 3 Wigmore on Evidence, Sec. 790 (Chadbourn rev. 1970).” Litton v. Commonwealth, 597 SW2d 616, 619 (Ky. 1980).

Under the silent witness theory, a videotape constitutes independent probative evidence of what it shows. People v. Byrnes, 308 NE2d 435, 437 (N.Y. 1974). This theory has been, adopted in many jurisdictions. See United States v. Stearns, 550 F2d 1167 (9th Cir. 1977) (allowed contents of photograph itself to authenticate); United States v. Taylor, 530 F2d 639 (5th Cir.) cert. denied, 429 U. S. 845 (97 SC 127, 50 LE2d 117) (1976) (bank camera tripped by robbers after everyone present locked into bank vault); Holderness, supra, (photograph of defendant holding stolen objects allowed); Litton, supra (photographs of defendant in empty pharmacy building taken by an automatic camera); Byrnes, supra (photograph of defendant and his 11-year-old daughter engaging in sexual acts); Ferguson v. Commonwealth, 187 SE2d 189 (Va.) cert. denied, 409 U. S. 861 (93 SC 150, 34 LE2d 108), reh’g denied, 409 U. S. 1050 (93 SC 533, 34 LE2d 504) (1972) (admission of Regiscope photograph in forgery case); State v. Bunting, 455 A2d 531 (N.J. 1983) (armed robbery photographed by hidden camera); Fisher v. State, 643 SW2d 571 (Ark. App. 1982) (videotape of defendant removing groceries from back door of store); Bergner v. State, 397 NE2d 1012 (Ind. App. 1979) (photograph of defendant sodomizing his four-year-old daughter); Sisk v. State, 204 A2d 684 (Md. 1964) (admission of Regiscope photograph).

In fact, the court in Fisher, supra, stated that in adopting the silent witness theory it joined an overwhelming majority of other jurisdictions, citing United States v. Gordon, 548 F2d 743 (8th Cir. 1977); United States v. Gray, 531 F2d 933 (8th Cir.), cert. denied, 429 U. S. 841 (97 SC 117, 50 LE2d 110) (1976); Stearns, supra; Taylor, supra; United States v. Pageau, 526 FSupp. 1221 (N.D.N.Y. 1981); Watkins v. Reinhart, 9 S2d 113 ( Ala. 1942); State v. Kasold, 521 P2d 990 (Ariz. 1974); South Santa Clara Valley Water Conservation Dist. v. Johnson, 41 Cal. Rptr. 846 (1965); People v. Bowley, 382 P2d 591 (Cal. 1963); People v. Doggett, 188 P2d 792 (Cal. 1948); Oja v. State, 292 S2d 71 (Fla. App. 1974); Bergner, supra; Holderness, supra; Cook v. Clark, 186 NW2d 645 (Iowa 1971); State v. Thompson, 117 NW2d 514 (Iowa 1962); Franzen v. Dimock Gould & Co., 101 NW2d 4 (Iowa 1960); Perry v. Eblen, 98 NW2d 832 (Iowa 1959); Foreman v. Heinz, 347 P2d 451 (Kan. 1959); Litton, supra; State v. Young, 303 A2d 113 (Me. 1973); Sisk, supra; Hartley v. A. I. Rodd Lumber Co., 276 NW 712 (Mich. 1937); Hancock v. State, 47 S2d 833 (Miss. 1950); State v. Withers, 347 SW2d 146 (Mo. 1961); Vaca v. State, 34 NW2d 873 (Neb. 1948); King v. State, 187 NW 934 (Neb. 1922); Byrnes, supra; State v. Hunt, 255 SE2d 182 (N.C. 1979); Dunford v. State, 614 P2d 1115 (Okla. App. 1980); State v. Brown, 475 P2d 973 (Or. App. 1970); State v. Goyet, 132 A2d 623 (Vt. 1957); Ferguson, supra; State v. Dunn, 246 SE2d 245 (W.Va. 1978); Fisher, 643 SW2d at 575.

Authentication of the subject videotape is always required. However, the foundational requirements for the admissibility of videotapes under the silent witness theory would be fundamentally different than the requirements stated in Allen, supra. While, the admission of evidence is within the discretion of the trial court, the following three elements must be established: (1) expert testimony establishing that the videotape had not been altered or manipulated; (2) testimony establishing the date and place the videotape was taken; and (3) testimony establishing the identity of the relevant participants depicted. See Holderness, supra, and Bergner, supra.

The admission of the videotape does not violate the rights provided to the defendant by the Confrontation Clause. “Confrontation in a criminal trial includes the right to ask questions and secure answers from the witness confronted. However, the United States Supreme Court has not interpreted ‘confrontation’ to signify the exclusion of every hearsay exception, and has provided the following method to resolve confrontation challenges based on the admission of hearsay testimony: The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule.” (Citations and punctuation omitted.) Rosser v. State, 211 Ga. App. 402, 404 (439 SE2d 72) (1993).

The present case involves the prosecution of a DUI after the death of the arresting police officer. Clearly, the unavailability of the authenticating officer was not planned or contrived. Except for the officer’s death, this case would have been no different from the numerous other cases this officer prosecuted during his four years on the Gwinnett County DUI Task Force. Further, the trustworthiness of the videotape is established by the foundational requirements set forth under the silent witness theory.

This established theory of admissibility can coexist with existing Georgia law. The foundation required under the silent witness theory is not inconsistent with the foundation required under Allen, supra; and differs from the “pictorial testimony theory” of admissibility in the purpose for the admission of the videotape. We join the majority of jurisdictions and adopt the silent witness theory for admission of videotapes. The present case is remanded for the trial court’s determination of admissibility of the videotape under the silent witness theory.

Judgment reversed and remanded with direction.

Pope, C. J., Beasley, P. J., Andrews and Smith, JJ., concur. McMurray, P. J., Birdsong, P. J., Johnson, J., and Senior Appellate Judge Harold R. Banke dissent.

Judge Harold R. Banke,

dissenting.

In Allen v. State, 146 Ga. App. 815 (247 SE2d 540) (1978), this court established the foundational requirements for admission of videotapes into evidence. As the comprehensive research of the majority indicates, the “silent witness” theory pertaining to pictorial evidence had already been formulated. However, rather than adopting that theory, this court instead determined that the foundation for admission of videotapes should be the same as that for audiotapes previously established in Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (88 SE2d 167) (1955).

Decided July 15, 1994

Reconsideration denied July 28, 1994

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

Russell T. Bryant, for appellee.

Since Allen v. State, supra, this court has consistently applied those foundational requirements for the admission of videotapes, without ever questioning their viability. See Givens v. State, 211 Ga. App. 290 (3) (439 SE2d 22) (1993); Bedley v. State, 189 Ga. App. 90 (3) (374 SE2d 841) (1988); Newberry v. State, 184 Ga. App. 356 (3) (361 SE2d 499) (1987). The majority now abandons that well-settled rule of evidence, apparently in reaction to the pathetic event of the arresting officer’s subsequent death in the line of duty.

The majority asserts that the new foundation is consistent with the current law. However, inasmuch as the videotape in the instant case is inadmissible under the old foundational requirements but may be admitted under the new foundation, I think the majority is mistaken on that point.

I believe that the majority has needlessly changed the foundational requirements for the admission of videotapes. For that reason, I respectfully dissent.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Johnson join in this dissent.


text:
    A94A0373.
    HARRINGTON et al. v. BALDWIN COUNTY BOARD OF TAX ASSESSORS.
    (447 SE2d 300)
   Pope, Chief Judge.

In 1990 the State Revenue Commissioner (“Revenue Commissioner”) disapproved the 1990 tax digest for Baldwin County, Georgia (“County”) and, while allowing the digest to be used for the collection of taxes for that year, ordered the Baldwin County Board of Tax Assessors (“Board of Tax Assessors”) to correct the deficiencies which contributed to the lack of uniformity and equalization in the property valuations by the following year. In 1991, the Revenue Commissioner disapproved the tax digest submitted for approval for that year, based on a finding that some of the deficiencies noted in the 1990 order had not been corrected, and that the degree of uniformity and equalization required by law had not been obtained. The Revenue Commissioner ordered the Board of Tax Assessors to correct the deficiencies before collecting any taxes based on the 1991 tax digest. Additionally, the Revenue Commissioner assessed a penalty of $4,428.94 against the County for failure to take the corrective action required by the 1990 order.

On September 19, 1991, relying on OCGA § 48-5-310, a superior court judge entered an order allowing the “immediate, temporary collection of taxes for 1991 in the same manner as if the 1991 tax digest had been approved. . . .” On February 3, 1992, an amended order was entered, which allowed the County to re-bill “agricultural class” property owners following the Revenue Commissioner’s approval of the 1991 tax digest.

Pursuant to the Revenue Commissioner’s order, the Board of Tax Assessors reappraised certain rural property in the County, and subsequently mailed notices of higher assessments for the 1991 tax year to owners of rural property of more than 25 acres, including appellants/plaintiffs (“taxpayers”). The taxpayers appealed the reassessment of their 1991 taxes and the assessment of their 1992 taxes based on the revaluation of their rural land, first to the Baldwin County Board of Equalization, and following an affirmance of the reassessments by the Equalization Board, to the Baldwin County Superior Court. The superior court consolidated and denied the taxpayers’ appeals, and they appeal from that judgment.

1. Relying on Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723 (368 SE2d 326) (1988), the taxpayers argue that the Board of Tax Assessors had no authority to reassess their property after they paid their 1991 taxes based on the initial assessment. The Board of Tax Assessors argues Fayette County is distinguishable, because that case did not involve the immediate and temporary collection of taxes pursuant to an order of the superior court following the disapproval of a county’s tax digest, as authorized by OCGA § 48-5-310. The Board further argues that the use of the word temporary in this section evinces the legislative intent that a “final” tax collection take place after any reassessment necessitated by the disapproval of the tax digest is completed.

We agree with the Board of Tax Assessors that OCGA § 48-5-310 authorizes the “temporary” collection of ad valorem taxes pursuant to an order of the superior court and that additional taxes may be collected, or refunds issued, following any revaluations and reassessments necessitated by the State Revenue Commissioner’s disapproval of the digest. Subsection (g) of OCGA § 48-5-310 provides that “[collection or payment of such taxes after the entry of an order by the court as provided in this Code section shall not in any manner affect or limit anyone who pays taxes from receiving and enjoying the full benefits of any adjustments, benefits, refunds, or additional assessments determined by the final disposition of the validity of the tax digest.” (Emphasis supplied.) In this case the superior court’s initial order provided for the “immediate, temporary collection of taxes for 1991 in the same manner as if the 1991 tax digest had been approved by the Revenue Commissioner, all subject to the provisions of [OCGA § 48-5-310].” As stated supra, the provisions of OCGA § 48-5-310, and in particular subsection (g), provide for additional assessments following reappraisal. It follows that the collection of additional taxes in this case was not unauthorized, as the taxpayers contend. Moreover, because we hold that the additional assessments were authorized by the superior court’s initial order and the provisions of OCGA § 48-5-310, it is unnecessary for us to determine whether the additional assessments were also authorized by the court’s subsequent order which specifically provided that the taxpayers could be rebilled following approval of the revaluations by the Revenue Commissioner. We do note, however, that OCGA § 48-5-310 (h) provides that the superior court “retain [s] jurisdiction to issue any appropriate order necessary to enforce the court’s order allowing the temporary collection of taxes.”

2. Contrary to the taxpayers’ remaining arguments on appeal, the Board of Tax Assessors has the authority to place property in homogeneous groups for the purpose of determining its value in relation to other and like property, and different valuation methods may be utilized. See OCGA § 48-5-341 (7); Fulton County v. Strickland, 251 Ga. 473 (2 & 3) (306 SE2d 299) (1983); cf. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 (260 SE2d 313) (1979); Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 (318 SE2d 643) (1984). The Georgia Constitution mandates the uniform taxation of real property and that both real and intangible property, with certain specific exceptions, be taxed at the same rate. Ga. Const., Art. VII, Sec. I, Par. Ill; Benson-Corwin, Inc. v. Cobb County School Dist., 239 Ga. 199 (236 SE2d 361) (1977). However, property may be valued by different methods. Dougherty County Bd. of Tax Assessors v. Burt Realty Co., 250 Ga. 467 (298 SE2d 475) (1983).

“ ‘The object of the assessors must be to determine the fair market value of the property subject to taxation in the county and the methods employed may be varied if the object is attained.’ [Cit.] While ‘(t)he tax assessor must use the same standard (i.e., fair market value) or system (i.e., 40% of fair market value) in determining and fixing the taxable value of all property of the same class . . .’ [cit.], it is not ‘(im)permissible under the uniformity of taxation provision of the constitution to apply different methods of arriving at the fair market value of tangible property. [Cit.]’ [Cit.] It is the duty of the board of tax assessors to ‘see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes.’ [Emphasis deleted.] [OCGA § 48-5-306 (a).] ‘This does not require the tax assessors to use any definite system or method, but demands only that the valuations be just and that they be fairly and justly equalized among the individual taxpayers. . . .” Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 728 (2) (279 SE2d 223) (1981). Likewise, the Board’s revaluation and reassessment of only rural real estate of 25 acres or more did not constitute an impermissible spot or piecemeal reappraisal, cf. Thorpe v. Benham, 161 Ga. App. 116 (1) (289 SE2d 275) (1982), but was necessitated by the Commissioner’s order to achieve the degree of uniformity and equalization mandated by law.

Decided May 11, 1994

Reconsideration denied July 28, 1994

G. L. Dickens, Jr., H. Don Harper, for appellants.

Gardner & Gardner, Milton F. Gardner, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0011.
    THOMAS COUNTY BOARD OF TAX ASSESSORS v. BALFOUR LAND COMPANY et al.
    (446 SE2d 745)
   Judge Harold R. Banke.

In 1990 the Thomas County Board of Tax Assessors began reappraising rural property within the county, emphasizing location of the property as. a determinant of value. The reappraisals generated several tax appeals by landowners which were unsuccessful before the Board of Equalization. However, the superior court concluded that the new method of appraisal impermissibly subclassified rural property and violated the uniform taxation clause of the State Constitution. This appeal by the Thomas County Board of Tax Assessors followed.

“[A] 11 taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Ga. Const. 1983, Art. VII, Sec. I, Par. III (a). “[B]oth tangible personal property and realty must be returned for taxation at fair market value, and must be taxed at the same rate. But there is no requirement that the same method be utilized to determine what the fair market value is. Quite to the contrary, the court has repeatedly held that the utilization of different methods to determine fair market value does not contravene the Constitution or the laws of Georgia.” Dougherty County Bd. of Tax Assessors v. Burt Realty Co., 250 Ga. 467, 469 (298 SE2d 475) (1983). Accord Harrington v. Baldwin County Bd. of Tax Assessors, 214 Ga. App. 178 (447 SE2d 300) (1994).

Decided June 13, 1994

Reconsideration denied July 12, 1994

Whitehurst, Cohen & Blackburn, R. Bruce Warren, for appellant.

Alexander & Vann, Thomas H. Vann, Jr., George R. Lilly II, Andrews & Seery, S. Andrews Seery, for appellees.

In the instant case, in addition to considering such factors as use, soil type, and tract size, the appellant’s method of reappraisal called for dividing rural property into zones for the purpose of considering location as an element of value. Four large-tract zones and six small-tract zones were drawn by analyzing property sales prior to 1990 to ascertain the ratio of assessed value to sales price. The valuation of both large and small tracts was adjusted based upon the zone in which they were located, and the millage rate was then applied to 40 percent of that valuation.

The appellant’s valuation of rural property by zones thus constituted a method of determining fair market value which realistically emphasized location as a factor. The zones were not arbitrarily fixed, but were drawn from a detailed analysis of property sales throughout the county. As such, there was no impermissible subclassification of the same type of property, and the trial court erred in concluding otherwise.

In finding that the appellant’s method of valuation violated the uniformity clause, the trial court misplaced its reliance upon Griggs v. Greene, 230 Ga. 257 (197 SE2d 116) (1973), wherein the State Revenue Commissioner proposed to adjust real property differently according to its location inside or outside the city limits. Although that arbitrary subclassification of real property violated the uniformity clause, nothing in Griggs prohibits consideration of location as a factor in determining fair market value.

Because the trial court invalidated the assessment, it did not address another issue raised by the appellee landowners, i.e., whether the appellant separated the value of timber from the value of land for 1992 as required by OCGA § 48-5-2 (3) (E). Accordingly, this case must be remanded for the trial court’s resolution of that issue.

Judgment reversed and remanded.

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