text:
    A97A1015.
    DAWSON v. THE STATE.
    (488 SE2d 114)
   Pope, Presiding Judge.

Defendant John Fitzgerald Dawson was arrested and charged with DUI, possession of less than an ounce of marijuana, and driving with a suspended license. The trial court denied his motion to suppress physical evidence of and exclude testimony regarding (1) the marijuana found in his car, and (2) his refusal to submit to a urine test. As defendant consented to the search of his car in the course of a lawful stop, we affirm the denial of the motion with respect to the marijuana. Because the arresting officer’s lack of a card with the implied consent warning on it did not justify a delay in advising defendant of his implied consent rights under the circumstances of this case, however, we reverse the trial court’s denial of the motion with respect to defendant’s refusal to submit to a urine test.

Dwayne Sapp, an officer with the Lee County Sheriff’s Department, was told by a confidential informant that three men who had been drinking and smoking marijuana had gotten into a brown Buick with a certain tag number and were leaving the Palmyra Mobile Home Park. Officer Sapp considered the informant reliable: he had known the informant for at least three years at that time, and had made at least three arrests based on information provided by the informant. Officer Sapp was with Officer Miles O’Quinn when he received the information. They were in a vehicle near the mobile home park, and were able to arrive there in time to see the brown Buick with the specified tag number leaving the park. The officers followed the Buick, and when it stopped in the middle of the roadway and then began to pull off again, they turned on their lights and pulled the Buick over.

Defendant was the driver, but he had no driver’s license. His eyes were bloodshot and his speech was slurred; he was unsteady on his feet and disoriented, and smelled strongly of alcohol. Defendant consented to a search of his car, and the officers found a small amount of marijuana under the front passenger’s seat. Officer O’Quinn arrested defendant at the scene, but did not read him his implied consent rights until approximately 45 minutes later, after a third officer called to the scene had driven defendant to the jail. O’Quinn testified that he did not inform defendant of his implied consent rights at the time of the arrest because he did not have a warning card with him.

1. Citing Stretcher v. State, 213 Ga. App. 670 (445 SE2d 815) (1994), defendant argues that his initial detention was unlawful because his stopping in the roadway did not give the officers the articulable suspicion necessary to briefly detain him. We did hold in Stretcher that stopping in the roadway was not sufficient to support an articulable suspicion of criminal behavior. Stretcher presented a different situation, however, because the stop in that case occurred at a stop sign and the driver and passenger were changing places. Moreover, unlike the officer’s suspicions in Stretcher, the officers’ suspicions in this case were based not only on defendant’s stopping in the roadway, but also on information from a proven, reliable informant that the driver and passengers in the car had been drinking and smoking marijuana, and were very intoxicated. Combined with the stop for no apparent reason, this information was sufficient to give rise to an articulable suspicion of criminal behavior, so the initial stop was lawful and the subsequent consent was valid. See Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996).

2. Defendant also contends that testimony regarding his refusal to take a urine test should have been excluded, and we agree. The arresting officer must advise a defendant of his rights under the implied consent laws “at the time of arrest.” OCGA § 40-6-392 (a) (4). The State suggests that since Officer O’Quinn advised defendant of his rights before he asked him to take the test, and because defendant cannot show that he was harmed by the delay, the officer substantially complied with the law and the warning should be deemed sufficient. But substantial compliance is not sufficient in this context; the officer must give the warning when he arrests the defendant unless there is a good reason not to. Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983); State v. O’Donnell, 225 Ga. App. 502 (484 SE2d 313) (1997). And contrary to the State’s contention, the officer’s failure to carry a. warning card is not a good reason for a delay.

In support of its position that not having the warning card is a circumstance justifying delay, the State cites Martin v. State, 211 Ga. App. 561 (440 SE2d 24) (1993). In that case, the officer did not advise the defendant of his rights at the time of the arrest because she did not have the correct card with her, and we held the delay in advising him of his rights was justified. But there were other factors present in Martin which are not present in this case. In Martin, the arresting officer recognized the problem and immediately rushed the defendant to the jail, where he was advised of his rights within ten minutes of his arrest. Here, there was a delay of more than 45 minutes. And during this time, the arresting officer and his partner called another officer to the scene, but apparently did not even ask him to bring a card. Moreover, in Martin the officer needed a new card because the law regarding what the officer should say had changed; thus, the officer’s failure to have the card with her was somewhat understandable. In this case, on the other hand, no explanation is given for the arresting officer’s failure to have the card with him, and it seems reasonable to assume that not carrying the card is his standard practice. Allowing a delay under these circumstances would allow officers to avoid the mandate of the law by failing to carry warning cards as a matter of standard practice; and we have already held that this would be an unacceptable result. Cf. Vandiver v. State, 207 Ga. App. 836 (1) (429 SE2d 318) (1993) (standard practice of waiting to give the warning until the defendant was at the jail did not justify delay). Accordingly, the trial court should have granted defendant’s motion to exclude testimony of his refusal to take a urine test.

Decided June 24, 1997.

T Lee Bishop, Jr., for appellant.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ, concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A0205.
    STOUT v. RESTAURANT CONCEPTS, INC.
    (487 SE2d 636)
   Birdsong, Presiding Judge.

Gail Stout appeals the trial court’s grant of summary judgment to Restaurant Concepts, Inc., d/b/a Applebee’s Neighborhood Grill & Bar, in her slip and fall case. Her complaint alleged that when she “left her table which was located in a dimly lit and elevated dining area which could only be exited by traversing a three step tier approximately three feet across,” and “moved from the last step to the floor level, in one motion both of her feet went out from under her and she fell to the masonry floor and landed in a wet, greasy puddle that was concealed in the darkness.” Stout further alleged that as she fell she reached out to grab hold of a handrail but was unable to do so because of plants that prevented her from grabbing the railing.

Applebee’s answered denying liability and later moved for summary judgment. The motion contended Applebee’s had no knowledge of any foreign substance on its floor, Stout did not know what caused her fall, and Stout failed to exercise ordinary care for her own safety. Applebee’s motion was supported by Stout’s deposition and the affidavits of two of Applebee’s employees.

In response to the motion, Stout contended that she was watching'where she was walking and that she slipped in grease on the floor. Her contentions were supported by her affidavit and that of her husband. Mr. Stout’s affidavit stated that while he did not see his wife fall, he heard the commotion and helped her up. After she got up, he saw a grease spot on the floor and saw employees of Applebee’s cleaning up the spot where his wife fell.

The affidavits of both Stouts stated that during the approximately 45 minutes it took for them to eat dinner, the steps were in plain view of their table, and they did not see any of Applebee’s employees “bend over and inspect the floor” or “bend over or look closely at the floor” in the area where Stout fell. Mr. Stout further stated that before his wife’s fall, food was continuously carried over the steps to the area where they were seated.

The affidavit of the Applebee’s manager on duty that night stated, however, that she had “walked and inspected the entire restaurant” and went into the kitchen for about five minutes when she came out and saw Stout being assisted to her feet. She stated that the steps where Stout fell are wooden with non-skid safety strips and that the floor at the bottom of the steps is tile. She also stated that Applebee’s has a policy for inspecting and cleaning the premises by the manager, waiters, and waitresses, “constantly monitoring for potentially dangerous conditions, cleaning up, picking up and Hokying/sweeping the floor as needed.” She further stated that this policy was in effect and implemented the night Stout fell as she had visually inspected and monitored the floor throughout the evening. Additionally, as part of the Applebee’s closing procedures, the area had been inspected and cleaned within twenty minutes of Stout’s fall, and the manager had again inspected the area about five minutes before Stout fell. The manager further stated that after Stout’s fall she again inspected the area and did not see any foreign substance or debris on the floor; the floor was not wet or greasy.

Another Applebee’s employee also provided an affidavit which stated that on the evening in question he had been waiting tables in the area where Stout was sitting, and within five minutes of the time she fell he had walked through the area, visually inspected it, and saw nothing on the floor. He also confirmed the manager’s affidavit concerning the implementation of Applebee’s inspection and cleaning program that night.

After the trial court granted Applebee’s motion, Stout filed this appeal. On appeal she contends the trial court erred by granting summary judgment because genuine issues of material fact remain for trial. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. The standard of proof necessary to establish liability on the part of a proprietor in slip and fall cases involving foreign substances on floors is set forth in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). “In Alterman Foods, the Supreme Court reiterated that to prevail, a plaintiff must show that the owner or proprietor was aware of the substance or would have known of its presence had he exercised reasonable care. Thus it is said that only when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition. However, the proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous. Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive. In some cases the proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.” (Citation and punctuation omitted.) Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 826-827 (2) (482 SE2d 720).

Thus, to state a cause of action in this case Stout was required to show (1) that Applebee’s had actual or constructive knowledge of the foreign substance and (2) that she was without knowledge of the substance or for some reason attributable to Applebee’s she was prevented from discovering the foreign substance. Alterman Foods, supra at 623. Although Stout arguably established that she was without knowledge of the substance on the floor, her proof did not establish that Applebee’s had actual or constructive knowledge of any substance on the floor. Consequently, she failed to carry her burden on this essential element of her claim (Moore v. Food Assoc., 210 Ga. App. 780, 782 (437 SE2d 832)), and her claim must tumble like a “house of cards.” Lau’s Corp. v. Haskins, supra at 491.

3. Moreover, although Applebee’s was not required to prove that it did not have superior knowledge of any substance on the floor (Lau’s Corp., supra at 495; Coffey v. Wal-Mart, supra at 827-828), Applebee’s nevertheless carried that burden with the affidavits from its employees who stated that they had inspected the area shortly before Stout fell and saw no substance on the floor and that there was no employee in the area at the time of her fall. The evidence from the Stouts that they saw no one bend over and look at the floor does not contradict the evidence from Applebee’s employees that they had visually inspected the floor, because neither witness contended that they had bent over while they made their inspection.

Additionally, while not central to our disposition of this case, the affidavits of both Stouts that asserted that Stout slipped and fell on a grease spot are inconsistent with Stout’s deposition testimony that she never did figure out what was on the floor, that she did not know what caused her to fall, and that she saw grease only on her hand, but she did not see any grease on the floor. Further, Stout’s affidavit that she had a grease spot on her skirt is also contradicted by her deposition testimony that the grease was on her hand and not on her skirt and she does not know what the spot on her skirt was. Accordingly, this unexplained contradictory evidence is subject to the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Sandifer v. Long Investors, 211 Ga. App. 757 (1) (440 SE2d 479).

Decided June 5, 1997

Reconsideration dismissed June 25, 1997.

Calvin A. Rouse, for appellant.

Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, Robert M. Malcom, for appellee.

Under these facts, Stout failed to carry her burden in responding to Applebee’s motion for summary judgment, and the trial court did not err by granting judgment for Applebee’s.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A0381.
    THOMASON v. EXXON CORPORATION.
    (487 SE2d 605)
   Birdsong, Presiding Judge.

Pursuant to our grant of an interlocutory appeal, James Thomason appeals the trial court’s grant of Exxon Corporation’s motion to open a default. He contends the trial court erred by opening the default because Exxon failed to tender a legal excuse for the default and did not set forth a meritorious defense. He also contends the trial court erred by allowing Exxon to engage in discovery even though it had announced ready for trial as a condition to opening the default.

This appeal arises from an action based on trespass and nuisance that Thomason filed against Randy McIntyre, Andy Kinser, and Exxon seeking compensatory and punitive damages for injuries to his real property that allegedly were caused by the defendants because underground petroleum storage tanks on the defendants’ property leaked chemicals which then migrated to Thomason’s property. The property in question was a retail gasoline station leased by Exxon and then subleased first to McIntyre and then to Kinser who operated the gas station.

The first service on Exxon in February 1994 was not proper because a signed summons was not served with the complaint. Counsel for Exxon notified Thomason of the improper service and the parties agreed that Thomason would be given sufficient opportunity to effect proper service on Exxon. On April 5, 1994, proper service was made on Exxon; however, counsel for Exxon did not learn of the service until June 1, 1994, when the new summons and complaint were discovered in a secondary file in its office. Exxon filed a motion to open default the next day contending that a delivery person had improperly placed the summons and complaint in the wrong file, and, therefore, the summons and complaint were not processed and distributed to the responsible attorneys.

Finding that Exxon had shown excusable neglect, had paid all accrued costs, set up a meritorious defense, and announced ready for trial, the trial court granted Exxon’s motion to open the default. The trial court also entered a pretrial order that permitted Exxon to conduct pretrial discovery. Upon Thomason’s request, the trial court certified these orders for immediate review, and Thomason’s petition to this court for permission to appeal was granted. Held:

1. When an answer is not filed within the time prescribed, a case automatically goes into default. OCGA § 9-11-55 (a). “Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds ¿/four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. This court has previously held that the ‘showing5 required by this Code section to be made ‘under oath’ includes the showing of a ‘meritorious defense.’ Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.” (Citation and punctuation omitted.) C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (398 SE2d 297). Although the trial court’s opening of a default generally is a matter within the discretion of the trial court which will not be disturbed absent abuse of that discretion (Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (360 SE2d 280); Alex v. Parkway-Blvd. Corp., 157 Ga. App. 269, 270 (277 SE2d 276)), in this instance we must reverse the trial court because we find the trial court was not authorized to exercise its discretion because Exxon did not satisfy all the conditions necessary to authorize the trial court to exercise its discretion.

In this case, Thomason contends that Exxon did not meet the condition of setting up a meritorious defense under oath. See Global Assoc. v. Pan American Communications, 163 Ga. App. 274 (293 SE2d 481). Instead, he contends that Exxon produced several affidavits which confirmed a leak by the defendants, but then alleged that the leak was not the result of wilful misconduct, malice, fraud, wantonness, or a want of care, and another affidavit asserted that many other potential parties may have been responsible for any damages Thomason may have suffered. Examination of the documents supporting Exxon’s motion to open the default contained no other allegation concerning any other purported meritorious defenses, nor are any meritorious defenses raised in the verified answer. “While there is no requirement that the affidavit contain ‘great detail’ concerning the defense, see Cohutta Mills v. Hawthorne Indus., 179 Ga. App. 815, 816 (1) (a) (348 SE2d 91) (1986), some factual information must be provided. [Cits.]” Ellerbee, supra at 835. In this case, as in Ellerbee, the affidavits contained no factual information concerning any meritorious defense, but merely contained conclusory statements. Thus, as Exxon did not satisfy all four conditions which must be met before a default may be opened under OCGA § 9-11-55 (b), the trial court was not authorized to exercise its discretion whether to open the default in this case. C. W. Matthews Contracting Co. v. Walker, supra. Therefore, the trial court’s order opening the default must be reversed.

Decided May 9, 1997

Reconsideration denied June 25, 1997

Coppedge, Leman & Ward, Warren N. Coppedge, Jr., David L. McGuffey, for appellant.

Enoch Overby, for appellee.

2. As we have reversed the trial court’s order opening the default, Thomason’s enumeration of error regarding allowing Exxon to conduct discovery is moot.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: McMurray, Presiding Judge. Ruffin, Judge, Judge Harold R. Banke, Smith, Judge,

text:
    A97A0856.
    HOLT v. THE STATE.
    (487 SE2d 629)
   McMurray, Presiding Judge.

Defendant appeals his conviction for “giving a false name and a false date of birth to a law enforcement officer” in violation of OCGA § 16-10-25. This Code section makes it unlawful to give a false name, address, or date of birth to “a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate. . . .” We reverse because defendant gave a false name and date of birth to an officer who was not acting within “the lawful discharge of his official duties.”

Corporal James Hood of the City of Norcross Police Department was the State’s only witness. His testimony — which we quote extensively — reveals the following: Shortly before 11:00 in the morning on June 18, 1996, Corporal Hood observed three African-American “males” in a “suspicious vehicle” slowly “creeping” through an office complex where there had been recent reports of illegal entries into “autos.” Because these men “didn’t appear ... to have any apparent purpose except to be driving around [during normal business hours, the corporal decided to execute a traffic stop based upon his observation of] a kind of webbed crack in the [vehicle’s] windshield.”

When Corporal Hood signaled for the “suspicious vehicle” to stop, the driver complied, exited his car and stood “outside the driver’s side of the vehicle.” The two passengers — defendant and another African-American man — remained in the car. Corporal Hood approached the stopped car from the rear and stood “on the passenger side where [he] could see both of the occupants in the vehicle, as well as the driver. . . .” He then “asked the driver if he would place his hands on the car where [he] could see them, and [positioned himself] behind the passengers [so that he] could see both of their hands.” The driver produced a valid Georgia driver’s license, but could not show proof of insurance. Corporal Hood asked the driver why he and his passengers were driving through the office complex and the driver “told [the corporal] that they were just riding around, but then [said] that they were just looking for a job.”

Corporal Hood returned to his patrol car and began preparing traffic citations charging the driver with driving with a cracked windshield and driving without proof of insurance. As the corporal was serving these citations, he kept an eye on the driver’s two passengers and deduced that they were “making kind of furtive movements like they were nervous about something. . . .” “Due to that fact and also the suspicious activity [he] observed [(i.e., three men traveling randomly through an office complex during normal business hours)] and the fact that there had been entering autos in the past couple of days in that same parking lot, [Corporal Hood] went ahead and asked the passengers if they had any ID on them and both of them told [him] no.” Believing that every citizen is “supposed to have some type of ID with you[,]” Corporal Hood decided to ask the passengers for their names and dates of birth. The corporal wanted this information “so [he] could run them to see if they were wanted and also so [he] could have their names on file in case we had more entering autos in the area.”

After running a computer check and questioning the driver about defendant’s identity, Corporal Hood suspected that defendant had given him a false name and date of birth. The corporal confronted defendant about this suspicion, and defendant reluctantly admitted that he had given the officer a false name and date of birth. As soon as defendant acknowledged his true identity, Corporal Hood arrested defendant and took him into police custody. Held:

Defendant first contends the trial court erred in considering proof that he gave Corporal Hood a false name and date of birth, arguing that the corporal gleaned this information during an unlawful police-citizen encounter in violation of his constitutional rights under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). Defendant employs similar logic while challenging the sufficiency of the evidence in his second enumeration of error, arguing that Corporal Hood was not “in the lawful discharge of his official duties” when he asked defendant for identification during the traffic stop. We consider these enumerations together because we find it appropriate to measure the performance, vel non, of a law enforcement officer’s “official duties” by the standard justifying police “stops” under Terry v. Ohio, 392 U. S. 1, supra.

OCGA § 16-10-25 makes it unlawful for any person to give a false name, address, or date of birth “to a law enforcement officer in the lawful discharge of his official duties. . . .” This prohibition against deceitful obstruction of an officer is analogous to OCGA § 16-10-24 (b)’s prohibition against violent obstruction of an officer because both OCGA §§ 16-10-24 (b) and 16-10-25 make it “essential that the State prove beyond a reasonable doubt that the obstruction was knowing and wilful, and that it occurred while the officer was ‘in the lawful discharge of his official duties.’ OCGA § 16-10-24 (b). See Hall v. State, 201 Ga. App. 328 (411 SE2d 274); Powell v. State, 192 Ga. App. 688 (3) (385 SE2d 772); Kight v. State, 181 Ga. App. 874 (1) (354 SE2d 202); Carr v. State, 176 Ga. App. 113 (1) (335 SE2d 622). ‘(A) police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause.’ Brown v. State, 163 Ga. App. 209, 212 (294 SE2d 305).” (Emphasis omitted.) Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861). Further, an officer is not within the lawful discharge of his official duties when he approaches and questions an individual without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Id. at 181-183. Where circumstances do not provide an officer with articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been or is about to be violated, the officer's act of detaining and questioning an individual is nothing more than a police-citizen encounter outside the scope of the officer’s “official” police duties. See Brooks v. State, 144 Ga. App. 97, 98 (1) (240 SE2d 593). The controlling issue in the case sub judice is thus whether Corporal Hood’s roadside inquiry into defendant’s name and date of birth was based upon articulable facts indicating that defendant had engaged in, was engaging in, or was about to engage in criminal activity.

“An investigatory stop may not be based on a hunch or pretext, but must be justified by ‘ “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)” (Cit.)' Evans v. State, 183 Ga. App. 436, 438 (359 SE2d 174) (1987). In determining whether such a stop, made in the absence of an observed violation of law, was justified, the proper inquiry is not merely whether the officer could validly have made the stop, but whether under the same circumstances a reasonable officer would have done so absent any invalid purpose. Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987). In Brooks [v. State, 144 Ga. App. 97, 98 (1)], supra, this court held that an officer acted improperly in pursuing for questioning a man he observed looking into the window of one car in a shopping center parking lot and leaving when the officer approached. Id. at 97-99 (1).” (Emphasis in original.) Hopkins v. State, 209 Ga. App. 337, 338 (1) (a) (433 SE2d 423). The basis of Corporal Hood’s encounter with defendant in the case sub judice was far less substantial. '

After Corporal Hood completed the only tenable object of his parking lot investigation (i.e., issuing a driver a citation for driving with a cracked windshield), the corporal directed his attention to the two passengers in the driver’s car. He explained that his suspicions were aroused because these men were “making kind of furtive movements like [they were] nervous about something. . . .” Corporal Hood testified that, “[d]ue to that fact and also the suspicious activity [he] observed [(i.e., three men driving randomly through an office complex in Norcross, Georgia during normal business hours)] and the fact that there had been entering autos in the past couple of days in that same parking lot, [he] went ahead and asked the passengers if they had any ID on them. . . .” Corporal Hood explained, during cross-examination, that he then decided to ask the driver’s passengers for their names and dates of birth because the suspects could not produce identification papers and, in his view, every citizen is “supposed to have some type of ID with you.” The corporal stated that he wanted this information “so [he] could run them to see if they were wanted, and also so [he] could have their names on file, in case we had more entering autos in the area.” Specifically, the corporal explained that he wanted to record the passengers’ names, race, gender and dates of birth in his “little notebook pad” because he believes it is “good practice” for any law enforcement officer to keep such a notebook. The corporal admitted, however, that he “did not see [the driver’s passengers] commit a crime.” He simply felt that these men were “suspicious [because they] were in an area where we had entering autos prior, a couple of days ago; and as far as. [he] knew, there could have been some that morning.” We cannot say that Corporal Hood’s explanation for questioning defendant is sufficient to authorize the trial court’s finding, beyond a reasonable doubt, that defendant obstructed an officer who was lawfully discharging his official duties in violation of OCGA § 16-10-25.

What must be minimally articulated in such cases to authorize a finding that an officer is lawfully discharging his “official duties” under OCGA § 16-10-25 are particular facts providing reason for an officer’s impression for the need to investigate criminal behavior. See Terry v. Ohio, 392 U. S. 1, supra. Corporal Hood articulates no such grounds in the case sub judice. His testimony reveals that defendant’s only transgression was his presence in a car with a cracked windshield which was traversing the wrong parking lot, at the wrong time. Under these circumstances, we find Corporal Hood’s desire to include defendant’s name and date of birth in his “little notebook pad” outside the scope of his “official” police duties. While keeping a “little notebook pad” of suspects may be good police practice, the collection of such information — as a matter of police routine unsupported by articulable suspicion of criminal activity — cannot be constitutionally justified. And in so holding, we are mindful of the recent decision in Maryland v. Wilson, 519 U. S. _ (117 SC 882, 137 LE2d 41) (1997), where the United States Supreme Court held that a law enforcement officer may, as a matter of personal safety, order passengers out of a lawfully stopped vehicle. The case sub judice is distinguishable from Wilson because the arresting officer’s exit-order in Wilson was a Terry-type command which the Supreme Court justified on the ground of officer safety, and Corporal Hood’s interrogation of defendant in the case sub judice was a Terry-type encounter which the State alleges is justified on the ground of prevention or detection of crime.

Because Corporal Hood could not articulate a particularized reason for questioning defendant — other than his sense that defendant was “making kind of furtive movements like [he was] nervous about something ...” — and because the corporal admitted he had no basis for believing that defendant had engaged in, was engaging in, or was about to engage in criminal activity, Corporal Hood was not lawfully discharging his “official duties” when he questioned defendant. Defendant therefore did not obstruct an officer in violation of OCGA § 16-10-25, and his conviction must therefore be reversed.

Judgment reversed.

Ruffin and Eldridge, JJ, concur and concur specially. Senior Appellate Judge Harold R. Banke concurs specially. Andrews, C. J, Birdsong, R J, and Smith, J., dissent.

Ruffin, Judge,

concurring and concurring specially.

I concur with all that is said in the majority opinion. Although Officer Hood was authorized to stop the car for the broken windshield, the “furtive” movements of the two passengers were insufficient to authorize further questioning.

I note initially, that while I agree with most of what is said in Senior Appellate Judge Banke’s concurring opinion, I believe his attention to the inconsistencies in Officer Hood’s testimony disregards the applicable standard of review. On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment and “ ‘(t)he credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony.’ ” (Citation omitted.) Anderson v. State, 267 Ga. 116, 118 (2) (475 SE2d 629) (1996); Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Any inconsistencies in Officer Hood’s testimony presented issues of fact which were properly resolved by the trial court. See Anderson, supra; see also Gilbert v. State, 222 Ga. App. 787 (2) (476 SE2d 39) (1996). Even viewing Officer Hood’s testimony in this light, however, the evidence still shows that the trial court erred in denying Holt’s motion to suppress.

As the majority observes, Officer Hood was authorized to stop the vehicle due to the broken windshield. See OCGA § 40-8-73 (e) (it is unlawful to operate a vehicle with a windshield that has “a starburst or spider webbing effect greater than three inches by three inches”). Assuming without deciding that Officer Hood had a reasonable suspicion sufficient to authorize him to question the driver about other possible criminal activity relating to car bréak-ins (see Brisbane v. State, 233 Ga. 339 (211 SE2d 294) (1974) (reasonable suspicion authorized by early morning observation of vehicle twice driving slowly by service station which had been the scene of several recent armed robberies)), his questioning and further detention of Holt were unreasonable under the circumstances and therefore prohibited by the Fourth Amendment.

“Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” (Citations and punctuation omitted; emphasis supplied.) Roberts v. State, 193 Ga. App. 96, 98 (386 SE2d 921) (1989), citing Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

In this case, Officer Hood’s testimony shows that his suspicion that Holt was in the parking lot to pursue criminal activity was dispelled prior to asking Holt for his name. Specifically, Officer Hood testified: “I don’t believe I asked [the passengers] what they were doing because the driver said [they] were looking for a job. . . . The way he told me, I just took it that they were all out looking for a job after he told me that.”

The foregoing testimony unequivocally shows that Officer Hood’s initial suspicions of criminal activity were quelled by the driver’s answers prior to asking Holt any questions. Accordingly, any further detention of Holt was unnecessary, and the additional questioning of Holt was more intrusive than necessary to allay Officer Hood’s suspicion. In addition, although Officer Hood did not observe Holt’s nervous behavior until after the driver provided the explanation of their presence in the parking lot, the above testimony shows that Hood continued to believe the explanation even after observing the “furtive” actions. According to Officer Hood’s testimony, that is why he never independently asked Holt what he was doing in the parking lot.

Upon determining that Holt’s presence in the parking lot was not related to any criminal conduct, Officer Hood was not justified in continuing his investigation based solely on Holt’s “furtive” conduct. “Furtive” gestures are generally defined as those which are secret or surreptitious. See Webster’s Third New International Dictionary, p. 924 (1993). Although such gestures, in combination with other suspicious conduct, may be sufficient to create a reasonable suspicion of criminal activity, mere presence in a parking lot is insufficient. See United States v. Thompson, 712 F2d 1356, 1361 (11th Cir. 1983); Rogers v. State, 206 Ga. App. 654, 658 (3) (426 SE2d 209) (1992).

Finally, Officer Hood’s stated reasons for asking Holt for his name and date of birth were not limited to the purported purpose of the investigative stop. Officer Hood testified that he asked the questions “to see if they were wanted, and also so [he] could have their names on file, in case we had some more entering autos in the area.” It is unclear how either of these objectives could lead to a determination of whether Holt was, at the time of the stop, involved in criminal activity. See Roberts, supra. Indeed, the law clearly proscribes investigative stops for such arbitrary and harassing purposes. See generally Givens v. State, 218 Ga. App. 415, 416 (1) (461 SE2d 579) (1995) (basis of stop must be one from which court can determine that detention was not arbitrary or harassing).

After dispelling his suspicion that criminal activity was afoot, Officer Hood should have allowed Holt and his companions to go about their business. Although the continued detention and questioning might be perceived as minimal, it was an unreasonable and unnecessary intrusion and greater than the Fourth Amendment permits.

I am authorized to state that Judge Eldridge joins in this special concurrence.

Judge Harold R. Banke,

concurring specially.

I fully concur in the majority’s finding that the officer violated Holt’s Fourth Amendment rights by detaining and questioning him in the absence of specific and articulable facts which would justify the intrusion. Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). The dissent overlooks the clear differences between this case and the controlling authority on the parameters of articulable suspicion, the constitutional standard which must be satisfied before legally stopping an individual under the instant circumstances. Terry v. Ohio, 392 U. S. at 21.

In this case, the defendant was one of three black men in a car that had driven once around a Gwinnett County business center parking lot at about 10:30 a.m. Because the windshield was broken the officer had a justifiable reason for stopping the car. However, the only articulated reasons the officer had for questioning defendant, a passenger, were (1) the defendant was “making kind of furtive movements like [he] was nervous” and “fidgety” and (2) one car in the lot had been broken into over the weekend. The officer admitted he had no description of the perpetrator of that crime and had no evidence to link the defendant with it. In fact, when asked what indicated to him that the car’s occupants might have committed a crime, the officer testified, “Nothing indicated to me that they might have, other than they might have done it.” The officer’s response when asked how he connected the car’s occupants with the weekend break-in was, “I didn’t connect them with that.”

The controlling cases require substantially more evidence to satisfy the articulable suspicion standard. In Terry v. Ohio, the defendants were obviously “casing” a store. They each walked in front of it, looked in, and walked back to a nearby corner five or six times. They interrupted this ritual to converse with a third man and eventually followed him down a path he had taken earlier. After watching for over ten minutes, the officer was thoroughly suspicious, and when the men stopped in front of the store again, he asked them their names. Terry, 392 U. S. at 6-7. The activity described in Terry clearly was more than mere “fidgeting.”

Williams v. State, 163 Ga. App. 866, 868 (2) (295 SE2d 361) (1982), is likewise distinguishable. In that case, a drugstore received a bomb threat around 2:00 in the morning from a caller who sounded like a white male. Around 4:00 a.m., after several more calls threatening to detonate the bomb by remote control if certain drugs were not delivered to a designated drop point, the druggist and a police officer looked out the window into the deserted parking lot and spotted a car. Its white male driver proceeded very slowly across the lot, more or less stopped in front of the store, looked through the window and saw the officer, and left. Police stopped the car and recognized the driver’s voice from the calls making bomb threats.

The many salient differences between the instant case and Williams include the fact that the officer there was immersed in investigating and preventing a serious, potentially life-threatening offense in progress at the time of the stop. The setting, in the middle of the night in a totally deserted parking lot, instead of during the lunch hour in a crowded lot, helped the officer in Williams focus on the suspect. The officer in Williams had reason to believe a white male had made the threatening calls, unlike the officer in the instant case who admitted he had no description of the perpetrator of the weekend auto break-in. The defendant in Williams matched the description of the perpetrator and created reasonable suspicion by looking into the store, spying the officer, and leaving, acts not so different from the defendants in Terry. In our case, the officer articulated no facts linking Holt to the break-in. The officer did not even report that the defendant looked at the cars while completing his single circle around the lot. The only evidence supporting the officer’s action was that Holt looked “furtive” and “nervous” and “fidgeted.” Given the fact that Holt’s arrest occurred in a parking lot on a mid-June day nearly 30 minutes after the officer stopped the car, the cause of Holt’s discomfort need not be attributed to culpable thoughts.

I concur as well because the last line of the opinion makes it appear as though obstruction may be an additional element of the crime charged. Obstruction is not an element of OCGA § 16-10-25 (giving a false name to an officer).

Smith, Judge,

dissenting.

I respectfully dissent. “An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action; a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest simply to shrug his shoulders and allow a crime to occur or a criminal to escape.” (Citation omitted.) Williams v. State, 163 Ga. App. 866, 868 (2) (295 SE2d 361) (1982).

Decided June 5, 1997

Reconsideration denied June 25, 1997.

Clark & Toume, David E. Clark, for appellant.

Gerald N. Blaney, Jr, Solicitor, Scott A. Drake, Richard E. Thomas, Assistant Solicitors, for appellee.

The facts observed by this officer are similar to those in Williams, and indeed to those in the seminal case of Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). In an isolated area of an office park which had suffered “some entering autos” over the past two days, a police officer observed a car with three occupants circling “one or two times” through two different parking lots at a very slow rate of speed, passing empty parking spaces close to the office buildings. When the officer stopped them, the driver gave inconsistent explanations for their presence and the passengers appeared “furtive” and “nervous.”

Under these circumstances, the officer was certainly justified in his suspicion that the occupants of the vehicle were “scoping out” the parked cars, and he was in the lawful discharge of his official duties in questioning Holt “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Williams, supra, 163 Ga. App. at 868 (2). How the officer chose to record any information he obtained is irrelevant to whether he had an articulable suspicion sufficient to justify the stop and limited questioning.

For this reason, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

       Corporal Hood testified that his police file consists of “a little notebook pad” containing a list of persons — identified by name, race, and sex — who the officer believes were involved, at various times, in “suspicious activity.” Corporal Hood testified that he believes “it is a good practice [for any law enforcement officer to keep such a notebook, explaining that] if you have any information, you know, it could do you some help in solving a case if you flip back through your notebook and find it.”

       In his report, which was written “right after” arrest, the officer noted there had been “an entering auto over the weekend,” which was his stated reason for seeking the identities of all the car’s occupants. Months later at trial, the officer tentatively inflated that count, testifying that some officers told him “that there was some entering autos either that Sunday or Monday in the Pinnacle Center Business Park. . . .” During cross-examination, the officer also tentatively inflated his initial testimony that the vehicle he stopped “drove around that parking lot once,” asserting that “they rode around that parking lot one or two times, I can’t remember.”

       While committing no obvious crime, the defendants in Terry were slowly and repeatedly passing a location and appeared to be “casing a job.” 392 U. S. at 6. The defendant in Williams drove slowly past a location that had been the subject of telephoned threats and appeared to act furtively after he saw a police officer. 163 Ga. App. at 868.


author: Judge Harold R. Banke.

text:
    A97A1028.
    TOWN CENTER ASSOCIATES v. WORKMAN et al.
    (487 SE2d 624)
   Judge Harold R. Banke.

Town Center Associates (“Town Center”) appeals the grant of summary judgment to Howard Workman and Barbara Dooley and also the denial of its own motion for summary judgment.

The salient facts are undisputed. Town Center filed an action on a written guaranty against Workman, Dooley and Donna Meyer, the three signatories on the guaranty at issue after its shopping center tenant, Bagel Express Town Center, Inc. d/b/a Bagel Break, defaulted under the terms of a lease. In the guaranty agreement, Workman, Dooley, and Meyer, the guarantors, covenanted and agreed “that if default shall at any time be made by Tenant [Bagel Express Town Center] in the payment of the rent or the performance of the covenants contained within the Lease on Tenant’s part to be paid or performed, the undersigned will well and truly pay the said rent or any arrears thereof that may remain due onto Landlord [Town Center]. . . .” The guaranty provided for joint and several liability among the guarantors but capped that liability at $22,967. It also stated, “WHEREAS, Landlord has leased to BAGEL EXPRESS TOWN CENTER, INC., (‘Tenant’) certain space, (‘the Premises’) located in 425 Ernest Barrett Parkway, Suite C-4, Kennesaw, Georgia 30144. Pursuant to that certain Lease by and between Landlord and Tenant dated as of_, 19_(‘the Lease’).”

Although the dates of the guaranty and that of the lease were left blank, it is undisputed that Workman, Dooley and Meyer signed the guaranty on November 30, 1994. On the same day, Honey C. Workman, the president of Bagel Express Town Center, Inc. (“Bagel Express”) signed the lease between Bagel Express and Town Center. However, Town Center’s representative did not sign the lease until nearly two weeks later on December 13, 1994. The record discloses that appellant Howard Workman acted as the real estate agent on the leasing transaction and earned a commission from Town Center.

This lease between Town Center and Bagel Express expressly referred to and incorporated into itself the guaranty signed by Workman and Dooley as Exhibit “F.” Thus, the guaranty was not only incorporated by reference into the lease but was also physically attached to the lease. Both the guaranty at issue and the lease between Town Center and Bagel Express describe the leased premises as being located at “425 Ernest Barrett Parkway, Suite C-4, Kennesaw, Georgia 30144.” It is not controverted that the leasing agreement dated December 13, 1994, was the only lease which Town Center ever entered into with Bagel Express. The only inconsistency between the guaranty and the lease is that the guaranty incorrectly indicated that the creation of the lease preceded the creation of the guaranty.

Workman and Dooley successfully argued below that because the second “whereas” clause stated that the landlord (Town Center) “has leased” the premises to Bagel Express, and because Town Center did not sign the lease until nearly two weeks after they signed the guaranty, they had no liability to Town Center as a matter of law. The trial court agreed and found that the guaranty at issue had no application to the lease subsequently entered. On this basis, the court found for Workman and Dooley. Held:

1. Town Center contends that the trial court erred in granting summary judgment to Workman and Dooley. We agree. As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where the provision to which- reference is made has a reasonably clear and ascertainable meaning. Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 717 (2) (234 SE2d 363) (1977). By its express terms, the lease specifically incorporated the guaranty at issue, denoting it as Exhibit “F” and providing that it be “incorporated by reference as part of the lease.” Similarly, the guaranty at issue cross-referenced a lease between Town Center and Bagel Express. See Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 482 (1) (445 SE2d 297) (1994) (court must construe documents as a whole where they reference each other). As the undisputed testimony showed that the only lease ever entered into between Town Center and Bagel Express was the one fully executed on December 13, 1994, there was no other lease to which the guaranty could have applied.

“The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). Thus, the guaranty needed to be interpreted in tandem with the lease. Otherwise, the guaranty, standing alone, was meaningless and served to guarantee nothing.

The guaranty by its plain terms makes clear that the contractual intent of Workman and Dooley was to guarantee, inter alia, the payment of Bagel Express’ rent to Town Center. See Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 390 (1) (367 SE2d 278) (1988). It is undisputed that both Workman and Dooley executed the guaranty at issue as they admitted in answering Town Center’s complaint. In her responsive pleading, Dooley admitted, “[I] undertook to guarantee any rent lawfully owed the Plaintiff [Town Center], not simply ‘any rent’ as alleged in the Complaint.” Thus, by her own admission, Dooley by executing the document at issue intended to guarantee Bagel Express’ rent payments under the lease.

A contract of guaranty is primarily one to pay the debt of another which may be due and payable by the principal debtor to the creditor upon default. Hartsfield Co. v. Shoaf, 184 Ga. 378, 380 (191 SE 693) (1937). In construing guaranties, “ ‘they are to be taken as strongly against the party giving the guarantee, as the sense of them will admit.’ [Cit.]” Escambia Chem. Corp. v. Rocker, 124 Ga. App. 434, 441 (184 SE2d 31) (1971). Thus, as a general rule, “[i]f the construction is doubtful, that which goes most strongly against the party . . . undertaking the obligation is generally to be preferred.” OCGA § 13-2-2 (5). See Polk v. Slaton, 54 Ga. App. 328, 329 (187 SE 846) (1936).

Despite the misuse of the verb “has leased” the guaranty agreement clearly indicates that the intent of the three individuals was to guarantee the rent payments by Bagel Express under its lease with Town Center. See Tucker Station v. Chalet I, Inc., 203 Ga. App. 383, 385 (2) (417 SE2d 40) (1992) (trial court could correct obvious error and interpret contract accordingly). Construing the provision against Workman and Dooley, the parties undertaking the obligation, we find the only reasonable interpretation of the terms of the guaranty is that it was intended to apply to the terms of the only lease ever executed between Bagel Express and Town Center. See Enterprise Fin. Corp. v. Ross White Enterprises, 212 Ga. App. 318, 320 (1) (441 SE2d 805) (1994); Rocker, 124 Ga. App. at 441.

Notwithstanding Workman and Dooley’s contention to the contrary, Avec Corp. v. Schmidt, 207 Ga. App. 374 (427 SE2d 850) (1993), neither demands nor authorizes a different result. Schmidt is factually distinguishable despite having superficial similarities. Schmidt also concerned a problem with a guaranty referring to a lease as having been executed when, in fact, no lease had yet been executed. Schmidt, 207 Ga. App. at 375. However, that guaranty referred to a lease dated on a specific day which was not the date of the lease in question. Id. Moreover, in Schmidt, the guaranty and lease were internally inconsistent with each other. Whereas the guaranty in Schmidt referred to “the events of default in paragraph 34” of the lease agreement, paragraph 34 of the lease concerned “quiet enjoyment.” Id. Further, unlike here, the evidence in Schmidt failed to show that the terms of the guaranty were incorporated by reference into the lease.

Inasmuch as the guaranty at issue here was legal and binding, it follows that the trial court erred in granting summary judgment to Workman and Dooley.

2. Based on the analysis in Division 1, we find that Town Center was entitled to summary judgment as a matter of law.

Decided May 30, 1997

Reconsiderations denied June 25, 1997

Kitchens, Kelley & Gaynes, Mark A. Kelley, for appellant.

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, Small, White & Marani, Gus H. Small, Jr., William J. Reedy, Adam E. Aronin, for appellees.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.

       Meyer is not a party to this appeal.

       Honey C. Workman and appellant Howard B. Workman share the same Atlanta business address.


author: Ruffin, Judge.

text:
    A97A0605.
    WILSON v. THE STATE.
    (488 SE2d 121)
   Ruffin, Judge.

Bobby Joe Wilson was indicted and tried with his co-defendant, Joseph Gonzales, for burglary and theft by receiving stolen property. A jury found Wilson guilty of misdemeanor theft by receiving stolen property and Gonzales guilty of burglary. Enumerating four errors, Wilson appeals from his conviction. For reasons which follow, we affirm.

1. Wilson argues that the evidence was insufficient to sustain his theft by receiving conviction. We disagree.

The record shows the following. Janie Bishop-White testified that she arrived home one afternoon to find that her compact disc player, stereo receiver, and “boom box” had been stolen from her apartment. The police found the missing equipment at a pawn shop across the street from Bishop-White’s apartment complex.

A pawn shop employee testified that on the day Bishop-White discovered the burglary, Wilson and Gonzales entered the pawn shop with Bishop-White’s stereo equipment. Gonzales told the employee that the equipment belonged to his mother and that Wilson had agreed to pawn the equipment for him, since he did not have the required identification. The employee obtained the necessary information from Wilson, including his fingerprint, and gave the men $75 for the merchandise. Shortly thereafter, police officers entered the pawn shop and inquired whether a stereo had been pawned that day. When the employee indicated that he had received a stereo, the police brought Bishop-White to the shop to identify her equipment. The employee further testified that Wilson telephoned the shop later that day and stated that “[Gonzales] wanted him to pawn [the equipment] using his ID and he wasn’t aware of it, that it was stolen merchandise, and that he would get [the pawn shop’s] money back.” According to the employee, Wilson never returned the money.

Wilson testified that although he helped Gonzales pawn the - equipment, he had no idea that it was stolen and believed it belonged to Gonzales’ mother. According to Wilson, he made sure the shop employee understood he was pawning the equipment for Gonzales so that, if the equipment was in fact stolen, the pawn shop would know he did not “have anything to do with it.” Wilson further testified that after receiving $75 for the pawned merchandise, he and Gonzales left the shop and Gonzales gave him $20 or $25. Later that day, Wilson learned that the police were looking for him in connection with the stolen articles and called the pawn shop to explain that he was not aware the merchandise was stolen. He testified that he also told the police about his lack of knowledge.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [Wilson] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) ((1979)). ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ . . . [Cit.]” Leigh v. State, 223 Ga. App. 726, 728 (2) (478 SE2d 905) (1996).

Viewed in this light, we find the evidence sufficient to support Wilson’s conviction. Under OCGA § 16-8-7 (a), “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” Knowledge that goods are stolen may be established by both direct and circumstantial evidence. Daras v. State, 201 Ga. App. 512, 513 (1) (c) (411 SE2d 367) (1991). “Although guilty knowledge is essential to a conviction- of the accused, such knowledge can be inferred from circumstances which would, in the opinion of the jury, lead a reasonable man to believe that the goods were stolen. [Cit.]” Id.

“ ‘Unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property but guilt may be inferred from possession in conjunction with other evidence of knowledge.’ [Cit.]” Id. at 514. In this case, the evidence showed that Wilson entered the pawn shop with Gonzales, pawned the stolen merchandise, and accepted $20-$25 from Gonzales. Furthermore, Wilson admittedly had some concern that the equipment might be stolen and thus stressed to the pawn shop employee that it belonged to Gonzales. This evidence, combined with permissible inferences raised by the evidence, was sufficient to permit a rational trier of fact to find Wilson guilty beyond a reasonable doubt of theft by receiving stolen property. See Daras, supra.

Wilson’s testimony and out-of-court statements that he had no knowledge that the property was stolen does not require reversal. Wilson’s credibility was a question for the jury, who chose not to believe his account. Harris v. State, 267 Ga. 435, 436-437 (1) (479 SE2d 717) (1997). Accordingly, this enumeration of error has no merit.

2. Wilson also argues that the trial court denied him a thorough and sifting cross-examination of Officer Larry Watkins. We find no error.

At trial, Wilson attempted to cross-examine Watkins regarding a prior consistent statement he allegedly made to the officer. Gonzales objected, arguing that he would not be able to cross-examine Wilson regarding the statement, thus undermining his Sixth Amendment rights. The trial court conditionally sustained the objection, stating: “I’ll sustain the objection to the questions at this point. If [Wilson] testifies, then [Gonzales] will not be deprived of his right of cross-examining [Wilson]. And if that happens, then I’ll allow this witness to be recalled as to the issue of whether or not his prior consistent statement regarding whatever [Wilson] testifies to had been made or not made. So, I’m going to sustain [the] objection.”

“The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him. If several parties to the same case have distinct interests, each may exercise this right.” OCGA § 24-9-64. Wilson claims that the trial court denied him this right. As the State points out, however, the trial court, in an effort to balance the confrontation rights of both defendants, only conditionally excluded the testimony. The trial court clearly indicated that Wilson could cross-examine Watkins on the prior consistent statement if Wilson testified, as he later did.

Generally, “[t]he conditional grant of a motion in limine in a preliminary ruling is not a final ruling on the admissibility of evidence. [Cit.]” Ingram v. State, 253 Ga. 622, 632 (4) (323 SE2d 801) (1984). Furthermore, by testifying at trial, Wilson met the condition for cross-examining Watkins on the prior consistent statement. Watkins’ testimony, therefore, was not excluded. Wilson argues, however, that the trial court’s ruling required him to give up his right against self-incrimination and his right to open and to conclude closing argument if he elected to re-cross Watkins. According to Wilson, “to place [him] ... in a position where [he] must [choose] between equally important rights is patently unfair and a denial of the right not chosen.”

Pretermitting the question of whether a trial court can require a party to make such a selection, we conclude that the court’s ruling did not force a choice in this case, and thus Wilson suffered no harm. “ ‘[T]he burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse. (Cit.)’ [Cit.] We find no such error here.” Terry v. State, 190 Ga. App. 570, 571-572 (2) (379 SE2d 604) (1989).

(a) The record shows that Wilson elected to testify on his own behalf, but also chose not to re-cross Watkins. It is clear, therefore, that Wilson’s decision to give up his right against self-incrimination did not result from the trial court’s ruling. Had that ruling been the catalyst for Wilson’s decision, he certainly would have re-crossed Watkins regarding the prior consistent statement. Thus, despite Wilson’s claim that the trial court improperly forced him to choose between his right to cross-examine Watkins and his right against self-incrimination, the record reveals that he did not give up one right for the other. See Linares v. State, 266 Ga. 812, 814-815 (3) (471 SE2d 208) (1996) (“[s]ince the record fails to establish that [the defendant] would have testified in his own defense if the trial court had ruled his statement was inadmissible, any review of his constitutional claim would be speculative”).

(b) The trial court’s ruling similarly did not force Wilson to sacrifice his right to open and to conclude closing argument.

Under OCGA § 17-8-71, “[i]f the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” See also Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979) (“[i]t is beyond question in this state that where an accused offers no testimony or evidence into the trial of a case, other than his own testimony, he has the right to the opening and closing arguments”). Wilson claims that if he had recalled Watkins for further cross-examination, “he would have introduced in the course of the trial evidence in addition to his own testimony.” We find, however, that Wilson would not have lost his right to open and to conclude closing arguments by subjecting Watkins to further cross-examination.

Mere cross-examination of a witness does not constitute “introduction of evidence” under OCGA § 17-8-71. Kennebrew v. State, 267 Ga. 400, 404 (4), n. 2 (480 SE2d 1) (1996). The trial court indicated that Wilson could cross-examine Watkins regarding the consistent statement if Wilson testified. After his testimony and pursuant to this ruling, Wilson could have recalled Watkins and cross-examined him about the statement without forfeiting his right to open and to conclude closing arguments. Scott, supra. Compare Sullivan v. State, 213 Ga. App. 308, 309 (1) (444 SE2d 392) (1994) (trial court did not err in concluding that the defendant called the State’s witness as his own witness, thus precluding invocation of OCGA § 17-8-71, because he “did not invoke any ruling from the court to permit him to further cross examine the witness after the state had closed”). Accordingly, this argument has no merit.

3. Wilson also argues that the trial court erred in refusing his request for severance. To succeed in this enumeration, Wilson must show “clear prejudice and in the absence of this showing the trial court’s denial of the motion to sever will not be disturbed. With the benefit of hindsight, it is incumbent upon this court to determine whether the trial court’s decision to join the trial of the co-defendants hindered a fair determination of the guilt or innocence of [Wilson], and thus constituted a manifest abusé of discretion.” (Citations and punctuation omitted.) Williams v. State, 213 Ga. App. 458, 459 (2) (444 SE2d 831) (1994).

Wilson has not shown the requisite prejudice in this case. He argues that his right to thoroughly cross-examine Watkins and Gonzales’ right to object to Watkins’ testimony were in conflict, requiring a severance. The trial judge, however, gave Wilson the opportunity to cross-examine Watkins about the prior consistent statement if he testified. Although Wilson now claims that the trial judge’s ruling improperly forced him to choose between his various rights, we found in Division 2 that he suffered no harm and thus was not prejudiced.

Wilson further argues that the trial court should have severed the trial because Gonzales’ testimony against him was “pure falsehood.” Wilson, however, never raised this argument below. The transcript shows that Wilson’s severance motion was based on the trial court’s decision restricting his cross-examination of Watkins, not prejudice allegedly resulting from Gonzales’ testimony. “ ‘Grounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial.’ ” (Citations omitted.) Hoover v. State, 198 Ga. App. 481, 482 (3) (402 SE2d 92) (1991). Accordingly, Wilson failed to properly preserve this argument for review.

4. Finally, Wilson contends that his conviction should be reversed because the record “is devoid of any evidence indicating that [the] bailiffs, having charge of the jury in this case, were sworn by the trial court as required under OCGA [§] 15-12-140.” Wilson bears the burden of showing affirmatively that the bailiffs were not sworn, and “where bailiffs take charge of juries, there is a presumption that they were regularly sworn.” Jackson v. State, 152 Ga. 210, 213 (3) (108 SE 784) (1921); see also Johnson v. State, 27 Ga. App. 679, 681 (109 SE 526) (1921).

Wilson argues that the transcript contains no reference to the bailiffs’ oath. Yet, that fact does not require a finding that the bailiffs were not properly sworn. Jackson, supra. In a further effort to rebut the presumption, Wilson submitted with his brief his own affidavit stating that he did not see or hear the trial court swear the bailiffs during the trial. As we have consistently held, however, “a brief or attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party.” (Citations and punctuation omitted.) Brown v. State, 214 Ga. App. 676, 678 (3) (448 SE2d 723) (1994).

Decided June 25, 1997.

Nicholas Pagano, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Rose L. Wing, Assistant District Attorneys, for appellee.

Wilson has not rebutted the presumption that the bailiffs in this case were properly sworn. Accordingly, this enumeration has no merit.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A1012.
    HAYNES v. THE STATE.
    (488 SE2d 119)
   Judge Harold R. Banke.

In September 1995, Darren R Haynes was convicted of voluntary manslaughter, aggravated assault, and possession of a firearm during the commission of a felony. On October 10, 1995, he received a twenty-year sentence on the former two charges and five consecutive years on the firearm charge, with fifteen to serve. No motion for new trial or timely notice of appeal was filed. In his pro se appeal, Haynes challenges the trial court’s failure to hold a hearing on his motion for out-of-time appeal.

Haynes filed the pro se motion on September 10, 1996, a year after his conviction, alleging that appointed trial counsel was ineffective for refusing his request to appeal his conviction. Haynes sought a hearing to determine whether counsel’s ineffectiveness deprived him of his right to appeal. In his motion, he admitted that at sentencing trial counsel “convinced him that if he were to seek an appeal, the District Attorney would retry him and he’d be given a life sentence for murder.” Several days after sentencing, trial counsel sent Haynes a letter confirming that he would not appeal the conviction because retrial could result in a murder conviction and a more severe sentence.

The trial court denied the motion for out-of-time appeal without a hearing, finding that Haynes acquiesced in waiting for sentencing before deciding whether to appeal. Without making any specific factual findings, the court determined that Haynes’ conduct, not trial counsel’s, led to the untimeliness of the appeal. Held:

“ ‘Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.’ ” (Citations omitted.) Franz v. State, 208 Ga. App. 677, 678 (2) (432 SE2d 554) (1993). “ ‘[T]he right to appeal is violated when the appointed lawyer deliberately [forgoes] the direct appeal without first obtaining his client’s consent. . . .’ [Cit.]” Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271) (1985). Such action constitutes ineffectiveness. Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). “A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal.” Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. Cannon, 175 Ga. App. at 742.

The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Id. After a review of the record, we cannot conclude that this dispositive issue has been adequately addressed. Id.

There is no showing on the record that Haynes was informed of his right to appeal, his right to appointed appellate counsel, or the time constraints involved. While Haynes’ post-trial filings make it clear that he knew of his right to appeal, the record contains no such assurance regarding his knowledge of his right to appellate counsel. His alleged threats when trial counsel refused to initiate an appeal bolster the view that he did not. Haynes’ admission that at sentencing he decided to forgo an appeal is not dispositive because the time to file a notice of appeal had only begun to run at that point. OCGA § 5-6-38 (a); see Lane v. State, 263 Ga. 517 (1) (436 SE2d 9) (1993) (statutory time period runs from entry of judgment and sentence). Trial counsel’s subsequent letter emphasizing his refusal to initiate an appeal appears to be a response to Haynes’ resistance to that fact. We find nothing in the record as it currently stands to support the trial court’s summary conclusion that the failure to timely appeal was due to Haynes’ conduct. Taylor v. State, 266 Ga. 129 (464 SE2d 385) (1996) (clear error standard of review); compare Franz, 208 Ga. App. at 678 (delay properly attributable to appellant where he was informed on the record of his rights on appeal and he failed to seek other counsel when trial counsel refused to appeal). Accordingly, we find it was error to deny Haynes’ motion out of hand, without further inquiry or hearing. Randolph v. State, 220 Ga. App. 769, 771 (1) (470 SE2d 300) (1996). The trial court’s November 11, 1996 order denying Haynes’ motion for out-of-time appeal must be vacated and the case remanded for a determination of whether Haynes was informed of his right to appeal and his right to post-judgment assistance from court-appointed counsel. Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994).

Decided June 25, 1997.

Darren P. Haynes, pro se.

James R. Osborne, District Attorney, for appellee.

Judgment reversed and remanded with direction.

Birdsong, P, J, and Eldridge, J., concur.


text:
    A97A0511.
    COLLEGE PARK CABS, INC. et al. v. JUSTUS.
    (488 SE2d 88)
   Ruffin, Judge.

Brenda Byars drove a taxicab for College Park Cabs, Inc. (“CPC”), which did business as “Day-N-Night Cab Company.” On April 27, 1993, Byars’ cab collided with Mildred Justus’ car. Justus sued Byars and CPC for injuries she claimed resulted from the accident. A jury awarded Justus damages against both defendants, including $65,000 for pain and suffering. Byars and CPC appeal, claiming the trial court erred by rejecting Byars’ statute of limitation defense and CPC’s independent contractor defense. Both defendants also claim the trial court erred by admitting evidence of certain chiropractic expenses. For reasons which follow, we affirm.

1. In their first enumeration of error, Byars and CPC claim the trial court erred by admitting evidence showing Justus incurred $1,815 in charges for treatment with Mark Cotney, a chiropractor. These charges were for office visits, x-rays, and therapy consisting of electrical stimulation, ultrasound, and hot and cold applications. The defendants argued that these treatments were outside the scope of chiropractic care authorized by OCGA § 43-9-16 (b), which states in part: “Chiropractors who have complied with this chapter may also use in conjunction with adjustments of the spinal structures electrical therapeutic modalities which induce heat or electrical current beneath the skin, including therapeutic ultrasound, galvanism, microwave, diathermy and electromuscular stimulation.” (Emphasis supplied.) Because Justus testified that Cotney performed no “chiropractic adjustments” or “manipulations” in connection with her therapy, the defendants contended Justus could not recover for these expenses and sought to exclude the evidence of the bills. The trial court admitted the bills over objection. After considering this issue on motion for new trial, however, the court reversed its ruling and struck from the final judgment the amount representing the bills. Byars and CPC contend that the court’s action was insufficient and that the admission of this evidence demands a new trial.

We find the trial court committed no error by admitting evidence of these expenses. Justus testified she received therapy from Cotney. Although she testified that Cotney performed no “adjustments” or “manipulations,” Cotney testified to the contrary. Cotney testified that he used these therapies to relax his patient’s muscles and increase her blood supply to the area and also performed “traction” on her upper and lower spine and “adjusted” her mid-back area “manually by hand and also with an activator ... in the mid-cervical area.” Cotney further testified that Justus’ “first 10 visits were probably similar.” The chiropractor identified his bills for these charges. Given this evidence, we cannot say these therapies were not given “in conjunction with adjustments” of Justus’ spine. Therefore, the trial court did not err in admitting evidence of the charges. See OCGA § 24-7-9 (a) (evidence of a chiropractor’s charges may be established by patient or “other person responsible for the care of the patient”). Although the trial court later determined these expenses should not have been awarded as damages, it correctly concluded the admission of this competent evidence did not require a new trial. See Warren v. Ballard, 266 Ga. 408, 410 (2) (467 SE2d 891) (1996) (medical bills are admissible to show extent of injury and resulting pain and suffering).

2. CPC contends the evidence presented at trial showed, as a matter of law, that Byars was an independent contractor for whose conduct CPC was not vicariously liable. The cab company appeals the trial court’s denial of its motion for directed verdict made on this ground. “In determining whether the trial court erred by denying the motion for directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions!!,] demands a certain verdict.” (Citations and punctuation omitted.) Pope v. Professional Funding Corp., 221 Ga. App. 552, 553 (1) (472 SE2d 116) (1996).

The chief test used to distinguish between an employee and an independent contractor is “whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. With respect to the independent business requirement set forth in the code section, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.” (Citation and punctuation omitted.) Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746, 747 (449 SE2d 141) (1994) (physical precedent only).

CPC’s representative testified that Byars was not an employee and owned the cab herself; however, the vehicle was titled in CPC’s name, no written contract designated Byars as an independent contractor, and the parties had no written lease or purchase arrangements regarding the vehicle. When asked about her relationship with CPC, Byars testified she was “just a driver for the company.” When asked whether she was required to accept customers whom the CPC dispatcher requested she pick up, she stated, “[n]ot if you weren’t working.” Byars was unsure if her payments to CPC were in furtherance of a lease or were owed for some other reason. Although CPC’s representative testified Byars was responsible for her own car repairs, she testified the cab company purchased new tires for her car.

This Court has, on numerous occasions, held taxicab drivers to be independent contractors. But each of those cases contained facts not shown by CPC in this case. For example, in Loudermilk Enterprises, supra, a written contract designating the company’s drivers as independent contractors created a presumption of that relationship. Similarly, in Hand v. Checker Cab Co., 216 Ga. App. 116 (453 SE2d 138) (1995), the defendants obtained summary judgment by producing documents which showed the cab company leased the cab to the driver on a week-to-week basis, gave the driver exclusive use of the vehicle, imposed no rules on the driver’s operation of the car, and did not require the driver to accept dispatches. See also Johnson v. City Wide Cab, 205 Ga. App. 502, 503-504 (2) (422 SE2d 912) (1992), in which the denial of an agency relationship was not controverted by competent evidence.

This case is close to the hypothetical situation raised by the Court in Clark v. Atlanta Veterans Transp., 113 Ga. App. 531, 533 (148 SE2d 921) (1966). Although the Court concluded in Clark that the taxi driver was not an “employee” because no evidence showed the employer owned the taxicab, it noted: “If there had been proof of ownership of the vehicle by the defendant there may have been sufficient circumstances to raise a jury question as to the driver’s agency. . . .” (Emphasis omitted.) The Court held that proof of agency would require a showing that the defendant owned the vehicle and that the driver was the defendant’s servant. Id. at 533-534. Here, the evidence could lead the jury to believe CPC owned and maintained the cab and that Byars, who was “just a driver for the company,” was required to accept calls while she was on duty. See Kirk & Assoc. v. McClellan, 214 Ga. App. 685, 688 (2) (448 SE2d 764) (1994) (where one is employed generally to perform services for another, jury may infer employer retained right of control even if that right was not exercised). This evidence requires us to defer to the jury’s determination that Byars was the employee of CPC. See Harper v. Samples, 164 Ga. App. 511, 512 (1) (298 SE2d 29) (1982).

3. The complaint in this case was filed one week before the statute of limitation expired. Although Byars was not personally served with the plaintiff’s complaint until 11 months later, the trial court found Justus had exercised due diligence in attempting to serve her. Byars enumerates this finding as error and claims the trial court abused its discretion in denying her motion to dismiss the complaint as untimely. We disagree.

At the time this suit was filed, Byars’ last name was Huggins. The record shows that on the day the complaint was filed, Justus’ court-appointed private process server attempted to serve Huggins at her last known address. Neighbors told the process server she had moved, but they did not know her new address. The process server asked the owner of CPC, Willard Dunson, if he knew where Huggins might be found; he said he did not. A “skip trace” returned a nonexistent address in Atlanta. The court allowed Justus to serve Huggins by publication.

The process server ran additional skip trace searches in May, June, and August 1995 and also searched computer databases for her name, all to no avail. In September 1995, Justus’ attorney deposed CPC employee Eddie Dunson, who stated he did not know where Huggins could be found. Additional skip trace and computer searches in October 1995 and January 1996 produced no new information. In March 1996, however, a driver’s license check revealed that Huggins had renewed her license under the last name Byars, and the agent served her at that address.

Testimony showed that in June 1995, Huggins married Richard Byars, a CPC employee who had worked at the cab company for 12 years. Richard Byars stated that his wife “may have” spoken with Willard or Eddie Dunson prior to September 1995. Although he apparently knew the Dunsons were trying to contact her, he testified that his wife was “the type of person where she don’t like, you know, too much information about herself to be give out [sic].” The process server testified that when he served Byars, she told him she was aware of the case, that she had been in contact with the cab company’s attorney, and that the cab company had known where she was the entire time but “had just hoped the thing would blow over.”

The trial court found that given the circumstances, including Byars’ apparent attempts to avoid service and misinformation given Justus’ attorney by the Dunsons, the actions taken to perfect service showed due diligence. We cannot say the trial court abused its discretion. See Starr v. Wimbush, 201 Ga. App. 280, 281 (2) (410 SE2d 776) (1991).

Decided June 18, 1997

Reconsideration denied June 26, 1997

Sidney L. Moore, Jr., for appellants.

Mullins & Whalen, Samuel H. Sullivan, for appellee.

4. CPC claims the evidence presented at trial was insufficient to support a finding that Byars was in the scope of her employment at the time of the accident. Although CPC moved for a directed verdict on the independent contractor issue, it asserted no grounds in its motion related to the scope of employment issue. Because it made no specific motion for directed verdict based on this ground, CPC has waived any alleged error. See Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986).

5. In their final enumeration of error, Byars and CPC complain that the verdict was strongly against the weight of the evidence. We will not review this claim, as “[n]o court except the trial court is vested with the authority to grant a new trial on a matter relating to the weight of the evidence. [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 304 (5) (447 SE2d 666) (1994).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A97A0944.
    LAWRENCE v. THE STATE.
    (487 SE2d 608)
   Eldridge, Judge.

On February 15, 1995, at approximately 7:00 p.m., appellant, Eugene Brenton Lawrence,. was walking down Atlanta Street in Gainesville, Hall County, adjacent to the city’s housing projects, when two undercover police officers, members of the Hall County Multi Agency Narcotics Squad (“MANS”), drove by in a truck; appellant waved and yelled at them. The agents turned around and came back to talk to appellant. Appellant came over to the truck and asked them what they were doing. Appellant asked the agents what they needed, and Agent Neville asked appellant to sell them drugs, i.e., “two twenties.” By appellant’s own testimony, the agents asked appellant if he would get them some “crack” cocaine in exchange for drugs and money, and appellant agreed, took money from an agent, and left to get the drugs. Agent Neville, before giving appellant the money, asked appellant how he, Neville, could be sure that appellant would come back with the drugs; appellant gave them his Bible to hold until he returned. Appellant went into the projects to get the drugs after taking the money from the agents. Appellant returned a few minutes later with the “crack,” which he gave to the agents. The agents then arrested appellant.

Appellant was taken to the MANS headquarters, where he was searched. A piece of crack cocaine and a crack smoking pipe were recovered during the search of appellant’s shirt pocket. Appellant testified that he was a drug addict and that he had broken the crack off the piece that he gave to the agents.

Expert testimony was presented that the substance delivered to the agents and the substance found in appellant’s possession were both consistent with the appearance of crack cocaine; one of the pieces was tested for and found to be crack cocaine. While only one piece was tested, appellant admitted that he had broken off the piece found in his possession from the other piece given to the agents.

Appellant was convicted on one count of sale of cocaine and one count of possession of cocaine.

1. Appellant’s first enumeration of error is that there is insufficient evidence to prove that the substance, either possessed or sold, was cocaine and that there is insufficient evidence to support a conviction on either count of the indictment.

The expert testified that both pieces, one delivered to the agents by appellant and the other found on appellant, appeared consistent with crack cocaine and that one piece tested positive for cocaine, while the other piece was not tested. Appellant testified that the piece taken from his possession was broken off the piece that he delivered to the officers. Thus, while only one piece had been tested by the expert, by appellant’s admission, both pieces came from one larger piece; therefore, there was sufficient evidence before the jury for the jury to find beyond a reasonable doubt that both pieces were cocaine. “On appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” (Footnote omitted.) Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). The evidence was such that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant’s second enumeration is that, based upon the evidence presented, he cannot be convicted of both sale and possession of cocaine. We do not agree.

The evidence showed that the agents paid money to appellant for the purchase of cocaine. Whether or not appellant acted only as a “middleman” or obtained the crack cocaine from his own stash of cocaine, all of the elements of the crime of sale of a controlled substance have been satisfied. Harmon v. State, 235 Ga. 329 (219 SE2d 441) (1975); Sullivan v. State, 178 Ga. App. 769 (344 SE2d 737) (1986). Possession of the cocaine sold is a lesser included offense of sale of the same cocaine. Harmon v. State, supra at 330.

However, when appellant intends to sell only part and not all of the cocaine in his possession, selling some and retaining the rest, the elements of both sale and simple possession have been satisfied as separate offenses. “If a person intends to distribute only a designated part of narcotics which are possessed, both the offense of possession and [sale] may be punished. Merger does not occur because possession of the undesignated narcotic was not necessary for the intended [sale]. [Cits.]” Howard v. State, 144 Ga. App. 208, 209 (1) (240 SE2d 908) (1977). Thus, undér the facts of the case sub judice, appellant is guilty under both counts of the indictment on two separate offenses, sale to the agents and simple possession for his own use; each “[is] not included but each may be committed exclusive of the other. The difference between them is one of kind and not merely one of degree ([cit.]).” Buford v. State, 162 Ga. App. 498, 499 (4) (291 SE2d 256) (1982).

3. The third enumeration of error is that the evidence did not show that appellant “sold” anything to the agents. We do not agree.

The evidence showed that the agents asked for “two twenties” as a specific quantity and price for crack cocaine; appellant then took the money and delivered the drugs from his possession to the possession of the agents. Thus, a drug sale occurred as a matter of law. See Robinson v. State, 164 Ga. App. 652, 653-654 (1) (297 SE2d 751) (1982); see also Johnson v. State, 154 Ga. App. 353 (1) (268 SE2d 406) (1980). Even if appellant, under the circumstances, is not treated as the actual seller but merely the conduit or intermediary by which the sale took place, appellant is guilty of selling cocaine, because appellant aided and abetted the sale as a party to the crime. OCGA § 16-2-20 (a), (b) (3); Wright v. State, 165 Ga. App. 790 (1) (302 SE2d 706) (1983) .

4. The fourth enumeration of error is that there exists a fatal variance between the evidence and the indictment alleging that appellant sold cocaine. We disagree.

As found in Division 3 herein, the evidence sufficiently showed that appellant sold cocaine to the agents. Even if, arguendo, appellant’s argument that he was a mere conduit is accepted, then he is guilty of aiding and abetting the sale as a party thereto. Therefore, there exists no variance between the indictment and the evidence. See generally Gentry v. State, 212 Ga. App. 79, 83 (4) (441 SE2d 249) (1994).

5. The fifth enumeration of error is that the trial court erred in admitting appellant’s custodial statement because it was not voluntarily given but was given in the hope of receiving a benefit.

After conducting a lengthy hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial judge found that appellant’s custodial statement was freely and voluntarily made without hope or expectation of benefit.

“Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the ‘hope of benefit’ sufficient to render a statement inadmissible under OCGA § 24-3-50. Helton v. State, 206 Ga. App. 600 (426 SE2d 172) (1992). It is the province of the trial court to weigh the credibility of the witnesses and unless clearly erroneous, its findings of fact will be upheld on appeal. Caffo v. State, 247 Ga.,751 (279 SE2d 678) (1981).” Arline v. State, 264 Ga. 843, 844 (2) (452 SE2d 115) (1995); see also Brown v. State, 259 Ga. 453, 454 (383 SE2d 882) (1989); Gadson v. State, 197 Ga. App. 315, 316 (1) (398 SE2d 409) (1990), overruled on other grounds, Davis v. State, 209 Ga. App. 572 (434 SE2d 132) (1993). The trial court did not err in admitting the statement of appellant.

6. Appellant’s sixth enumeration of error is that the trial court erred in failing to give appellant’s request to charge on his sole defense, entrapment. We do not agree.

The evidence presented does not as a matter of law present the issue of entrapment, because appellant, as an admitted drug addict without any money, demonstrated a predisposition to possess and to sell crack cocaine. Even if appellant’s testimony, wherein he told the agents that he did not sell drugs and that he later sold them drugs only after repeated requests by the agents, is accepted as true, such conduct does not constitute entrapment. “Repeated requests on the part of an officer or agent do not raise the defense of entrapment. Repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of his drugs has been held not to be entrapment. See Garrett v. State, 133 Ga. App. 564, 566 (3) (211 SE2d 584) [(1974)].” Johnson v. State, 147 Ga. App. 92, 93 (1) (248 SE2d 168) (1978). Thus, an addict who takes money to buy drugs for another hoping either to share the drugs or earn a fee with which to buy his own drugs has the requisite predisposition to commit the crimes of possession, possession with intent to sell or distribute, or sale. Mason v. State, 194 Ga. App. 152, 153 (390 SE2d 246) (1990). It is not error to refuse to charge on entrapment when the evidence fails to create a legal issue of entrapment. Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984); Rutledge v. State, 218 Ga. App. 130, 132 (1) (460 SE2d 551) (1995); Mason v. State, supra at 153; Gray v. State, 191 Ga. App. 135, 136 (381 SE2d 312) (1989).

7. Appellant’s seventh enumeration of error is that the trial court erred in refusing to grant a new trial based upon newly discovered evidence concerning the state’s key witness.

Decided May 22, 1997

Reconsideration dismissed June 26, 1997.

Thompson, Fox, Chandler, Homans & Hicks, Robert L. Chandler, Cheryl H. Kelley, for appellant.

Eugene B. Lawrence, pro se.

Lydia J. Sartain, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

In his amended motion for new trial filed on October 3, 1996, appellant raised the issue as to Agent Neville’s credibility, based upon an unrelated case in which Neville was allegedly impeached by prior inconsistent testimony in a suppression hearing and in which the trial judge suppressed the confession as a consequence. On November 13, 1996, the trial court denied the instant motion for new trial on each and every ground.

Under OCGA § 5-5-23, newly discovered evidence that is merely “impeaching in its character,” cannot be the basis for a new trial. See Timberlake v. State, 246 Ga. 488, 491-493 (1) (271 SE2d 792) (1980). Further, as appellant’s testimony alone was sufficient to establish the commission of the crime, it cannot be said that the evidence about which appellant complains “would probably produce a different verdict.” Alexander v. State, 186 Ga. App. 787, 790 (4) (368 SE2d 550) (1988).

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

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.