author: Pope, Presiding Judge. Blackburn, Chief Judge,

text:
    A01A1106.
    ENLOE v. THE STATE.
    (556 SE2d 873)
   Pope, Presiding Judge.

Marvin Enloe appeals his conviction for child molestation following a jury trial, contending that the trial court erred by denying his written request to charge the jury on the offense of sexual battery as a lesser included offense of child molestation.

Construed in favor of the verdict, the facts show that Enloe, a 17-year-old male, accompanied his cousin Billy Townsend to Billy’s parents’ house in order to help move furniture. Also present were Billy’s girlfriend’s two sons who were age four and seven at the time. After Enloe tired of moving furniture, he and the children went to a bedroom to watch a children’s video while the others continued working.

Although the three began by watching a children’s video, Enloe took out a pornographic videotape that he had seen before and began to play it in the presence of the boys. He removed the tape after only ten seconds or so when the boys protested. Enloe then placed the older boy in his lap, rubbed his back and leg, and eventually pulled his pants down and fondled his penis and bottom. Enloe pulled his own penis out of his pants at some point during this encounter. In his confession, Enloe claimed that at one point, the victim asked Enloe to “f — ” him. Eventually Billy Townsend walked into the bedroom and saw the seven-year-old victim with his pants down around his ankles, standing in front of Enloe. Enloe had his hand on the victim’s penis.

The police were notified, and Detective W. R. Gallman investigated the incident. Gallman conducted taped interviews with the victim and Enloe, and these interviews were admitted at trial and played for the jury.

At trial, Enloe’s testimony differed markedly from his taped statement. He testified that he touched the victim’s bottom but not his penis. He also did not recall the victim making any sexual statements. Finally, Enloe claimed both that he did not know why he did what he did and that he acted out of curiosity. At the conclusion of the evidence, Enloe requested, in writing, that the trial court charge the jury on sexual battery as a lesser included offense of child molestation. The court refused to give the charge. Enloe enumerates only this one error. We hold that no charge on sexual battery was required because the State irrefutably showed that Enloe had the specific intent to commit child molestation.

It is true that sexual battery may be a lesser included offense of child molestation as a matter of fact. Strickland v. State, 223 Ga. App. 772, 776 (479 SE2d 125) (1996). But, when the State has established that the defendant committed the charged offense of child molestation with the necessary specific intent of arousing or satisfying the sexual desires of either the defendant or the victim, no charge on sexual battery is warranted. See id. at 777.

In his audiotaped confession and his testimony at trial, Enloe admitted enough to establish the necessary specific intent to support the charge of child molestation, and therefore, the jury would not have been authorized to find sexual battery. Enloe admitted that he had watched pornographic videotapes in the past and that he played one in the presence of the two boys just prior to pulling down the victim’s pants and touching his bottom. And, Enloe stated in his confession that he also took out his own penis while fondling the victim. Even though Enloe testified in his own defense and said that he did not know why he did what he did, he did not deny either of these two statements.

As stated in Strickland, 223 Ga. App. at 774 (1) (a), “the act of fondling the genitalia of a 12-year-old child with only an inference of the intent to arouse sexual desires would satisfy all of the elements of both offenses.” But here, we have the added admissions by Enloe shown above. “His testimony would not show that he had merely made physical contact of an insulting or provoking nature with the victim rather than fondling [him] with the intent to arouse or satisfy his sexual desires.” (Citation and punctuation omitted.) Ney v. State, 227 Ga. App. 496, 503 (4) (g) (489 SE2d 509) (1997). Showing and viewing pornographic videos, given that Enloe had seen them before, and taking out his own penis while touching the victim established specific intent to arouse or satisfy either Enloe’s or the victim’s sexual desires. Therefore a charge on sexual battery was not warranted.

Judgment affirmed.

Andrews, P. J., Ruffin, Eldridge, Miller and Mikell, JJ, concur. Blackburn, C. J., dissents.

Blackburn, Chief Judge,

dissenting.

Because the State narrowly indicted Enloe for committing child molestation by a specific touching of the victim’s penis in this case, Enloe’s conviction should be reversed, and I must respectfully dissent from the conclusions reached by the majority.

To support a conviction, the evidence must meet the standards set forth in Jackson v. Virginia. After approval of a jury verdict by the trial court, the judgment entered thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law. Horan v. Pirkle.

Applying this standard, the evidence shows that Enloe, a 17-year-old male, is within the lower borderline range of intellectual functioning, with a verbal IQ score of 71. He was psychologically tested, and it was determined that he was competent to stand trial and knew the difference between right and wrong as it applied to the subject incident. On March 2, 2000, Enloe, who lived with his cousin Billy Townsend, had accompanied him to the home of Billy’s parents, Dianne and David Townsend. Billy, who was there to move furniture, was accompanied by his girlfriend, Misty Turner, and her two sons, ages four and seven. Also present to help were Billy’s brothers, Michael and Charles. Enloe and the children went to a back bedroom to watch a children’s video while the others were busy moving furniture.

Later, Billy Townsend entered the bedroom and witnessed the seven-year-old victim with his pants down around his ankles, standing in front of Enloe. Enloe was sitting in a chair and was fondling the victim’s penis. Billy sent the children out of the room and began questioning Enloe, who fled the house.

The police were notified, and Detective W. R. Gallman investigated the incident. Gallman conducted taped interviews with the victim and Enloe. Enloe admitted that he took out a pornographic videotape and began to play it in the presence of the boys. He removed the tape when the boys protested. Enloe also admitted that he placed the victim in his lap, rubbed his back and leg, and fondled the victim’s penis for over an hour. Enloe also admitted that he had exposed his own penis to the victim during this encounter. Enloe told Detective Gallman that after his actions, the victim then requested that Enloe “f — ” him. Enloe’s taped interview was introduced into evidence. Detective Gallman testified to the above admissions by Enloe.

At trial, Enloe’s testimony differed markedly from his taped statements to the police. At trial, Enloe testified that he had touched the victim’s bottom, but denied touching the victim’s penis, notwithstanding his recorded interview in which he had admitted to fondling the victim for almost an hour. Neither did Enloe recall at trial that the victim had asked for sex as he had originally told Detective Gallman.

The victim initially stated that Enloe had played a pornographic video, which he removed after the boys protested. Thereafter, Enloe had pulled the victim’s pants down to his ankles. The victim also indicated that Enloe had touched his bottom and was near his penis. At trial, however, the victim stated that Enloe had, in fact, touched him on his penis, as well as his bottom.

At the conclusion of the evidence, Enloe requested, in writing, that the trial court charge the jury on sexual battery as a lesser included offense of child molestation. The trial court refused to give the charge, finding that the case was either a child molestation offense or nothing. Enloe was found guilty of child molestation, and this appeal followed. We first conclude that the evidence in this case met the standards of Jackson v. Virginia, supra. We now review the case for any material errors of law.

We address Enloe’s only contention of error, that the trial court erred in refusing to give his requested charge on sexual battery, a misdemeanor of a high and aggravated nature, as a lesser included offense of the felony offense of child molestation with which he was charged. OCGA § 16-1-6, conviction for lesser included offenses, provides that:

An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

Our Supreme Court has described the complete rule on charging a lesser included offense as follows:

where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. . . . Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

(Emphasis in original.) Edwards v. State.

Our Supreme Court has provided for the application of the “actual evidence test” in determining if a lesser crime is included in a crime charged, pursuant to OCGA § 16-1-6 (1). In State v. Burgess, the Supreme Court stated: “Under the actual evidence test, a lesser crime is included in the crime charged if the evidence actually presented at trial to establish the elements of the crime charged also establishes all the elements of the lesser crime.”

OCGA § 16-6-4 (a) provides that: “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

By contrast, OCGA § 16-6-22.1, sexual battery, provides, inter alia:

(a) For the purposes of this Code section, the term “intimate parts” means the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female, (b) A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

Sexual battery requires only proof of (1) nonconsensual physical contact (2) with the intimate parts of the body of another person; while child molestation requires proof of (1) an immoral or indecent act, (2) in the presence of a child under 16, (3) with the intention to arouse or satisfy the sexual desires of either the child or the person. The intention to arouse or satisfy sexual desires may be inferred from the commission of the proscribed act. Ash v. State.

It is well established that the offense of sexual battery is not included in the offense of child molestation as a matter of law. Gordon v. State. However, sexual battery may be a lesser included offense of the crime of child molestation as a matter of fact. Strickland v. State; Messick v. State.

There was much evidence which satisfied elements of a child molestation charge under OCGA § 16-6-4 (a), which were not elements of a sexual battery charge under OCGA § 16-6-22.1. The plain language of OCGA § 16-6-4 (a) makes it clear that child molestation does not require a touching, while sexual battery does. Enloe’s act of showing a pornographic video to the boys satisfies the immoral or indecent act requirements of the child molestation law. Stroeining v. State (physical precedent only). The exposing of Enloe’s penis to the boys is an indecent act under the child molestation law. Close v. State. Enloe’s fondling of the seven-year-old victim’s penis for almost an hour could satisfy either a child molestation or sexual battery charge. See Strickland, supra. It is for the jury to determine what the intention of the defendant was. While consent is not a factor in a child molestation case, it is possible that the jury could have determined that the defendant lacked the intent to “arouse his sexual desires,” as alleged in the indictment. Intent is a question for the jury to resolve. Under these facts, Enloe’s denial at trial that he fondled the victim, coupled with the victim’s and witnesses’ testimony that he touched the victim’s penis, constitutes some slight evidence of sexual battery, and thus the charge thereon should have been given.

An indictment need not allege the details of the offense, but may charge the defendant with child molestation in the general language of the statute. Cragg v. State; Burnett v. State. The language of Enloe’s indictment was more specific, however, than the language of OCGA § 16-6-4 (a), in that it alleged that on March 2, 2000, he did unlawfully “commit the immoral and indecent act of placing his hand against the penis of [victim], a male child under sixteen (16) years of age, with the intent to arouse the sexual desires of the accused.” (Emphasis supplied.)

The defendant’s guilt must be based upon the offenses as set forth in the indictment and the State must prove what it alleges, whether or not it was required to allege the facts and violation as outlined in the indictment. Buice v. State. As the State alleged that Enloe placed his hand against the penis of the victim, it must prove that act in order to convict the defendant under this indictment. This act, if proved, could establish an element of either child molestation or sexual battery, depending on the jury’s finding as to the intention of the defendant. Because of the specific language of the indictment, the State must also prove that Enloe acted to arouse his own sexual desires, rather than those of the victim.

We note that, here, the child molestation charge given by the trial court on two occasions accurately stated the law under OCGA § 16-6-4 (a), but was broader than the specific conduct alleged in the indictment. The charge provided, inter alia, that “A person commits child molestation when that person does any immoral or indecent act to, or in the presence of, or with any child under the age of sixteen years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The indictment specified the conduct as “placing his hand against the penis of [victim] . . . with the intent to arouse the sexual desires of the accused.” Where an indictment charges the defendant with committing the offense in only one of several ways in which it could be committed, a jury charge reciting the entire statutory definition of child molestation is reversible error, when it raises a reasonable possibility that the jury, relying upon the evidence presented at trial, may convict the defendant of committing the offense in a way not alleged in the indictment. Perguson v. State; Linson v. State. While the indictment could have been drawn in the general language of the statute, the State did not elect to do so and must therefore prove that which it elected to allege. The trial court did charge the jury that “[i]f after considering all the evidence in this case you should find and believe beyond a reasonable doubt that the defendant did, in fact, commit the offense alleged in the indictment, you would be authorized to convict him.” Given the fact that the trial court told the jury to look to the evidence to determine if the defendant did commit the offense of child molestation, which it had already defined as including acts outside those specified in the indictment, we cannot say that there is not a reasonable chance that the jury convicted Enloe based on conduct not specified in the indictment.

The indictment alleged that Enloe committed child molestation by a specific touching of the victim’s penis. This specific touching could constitute either child molestation or sexual battery, depending on the jury’s finding as to Enloe’s intent. Therefore, Enloe was entitled to a charge on the lesser included offense of sexual battery, for consideration by the jury in its deliberations, as the jury must first determine the defendant’s intent, and then the crime of which he is either innocent or guilty. The application of the lesser included offense statute and the “actual evidence test” holdings of our Supreme Court require this result. It has been said that it seems inappropriate that the sexual touching of a child may warrant a charge on a misdemeanor offense, while the commission of an indecent act in the presence of a child is a felony.

While it would require an amendment to OCGA § 16-1-6, this result could be minimized by the adoption in Georgia of the “required evidence test” in place of the “actual evidence test.” Justice Sears wrote on this subject in Burgess, supra at 145 (1), that

[t]hough the actual evidence test is still viable under Georgia law, many courts have encountered obstacles in applying that test and have resorted, either explicitly or in actuality, to the simpler, more practical “required evidence test.” Under the required evidence test, a lesser crime is included in the crime charged if all of the elements which are required by law to establish the lesser crime also must be established in order to prove the greater crime.

(Citations and footnote omitted; emphasis in original.) Id. Under the “required evidence test,” sexual battery would not be a lesser included offense of child molestation under the facts of this case, as all of the elements required by law to prove sexual battery are not required to prove child molestation. I strongly encourage the legislature to review this matter and consider the adoption of the required evidence test and the amendment of OCGA § 16-1-6 (1).

There are instances in which the harmless error doctrine may be applied to a failure to charge a lesser included offense. It must be shown that the evidence against the defendant was overwhelming, and it is highly probable that the failure to give this charge did not contribute to the verdict. Edwards v. State Under the totality of the circumstances of this case, including the error in charging the jury concerning what evidence they could rely upon to convict the defendant, even though not enumerated as such, we cannot say that the failure to charge sexual battery as a lesser included crime of the offense of child molestation was harmless in this case. Enloe’s conviction, therefore, should be reversed.

Decided November 30, 2001

William R. Thompson, Jr., for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.

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

        Horan v. Pirkle, 197 Ga. App. 151, 153 (397 SE2d 734) (1990).

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

        State v. Burgess, 263 Ga. 143, 144-145 (1) (429 SE2d 252) (1993).

        Ash v. State, 96 Ga. App. 359 (100 SE2d 149) (1957).

        Gordon v. State, 210 Ga. App. 224 (435 SE2d 742) (1993).

        Strickland v. State, 223 Ga. App. 772 (479 SE2d 125) (1996).

        Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d 595) (1993).

        Stroeining v. State, 226 Ga. App. 410 (486 SE2d 670) (1997).

        Close v. State, 195 Ga. App. 652 (394 SE2d 563) (1990).

        Cragg v. State, 117 Ga. App. 133 (159 SE2d 717) (1968).

        Burnett v. State, 202 Ga. App. 563 (415 SE2d 43) (1992).

        Buice v. State, 239 Ga. App. 52 (520 SE2d 258) (1999).

        Perguson v. State, 221 Ga. App. 212 (470 SE2d 909) (1996).

        Linson v. State, 221 Ga. App. 691 (472 SE2d 690) (1996).

       See Strickland, supra at 779-780 (Pope, P. J., concurring specially).

        Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994).


source: Caselaw Access Project

author: Pope, Presiding Judge. MlKELL, Judge,

license: Public Domain

text:
    A01A1480, A01A1481.
    JOHNSTON v. WARENDH et al. (two cases).
    (556 SE2d 867)
   Pope, Presiding Judge.

Agneta and Per-Olof Warendh filed suit against Lori Johnston and her brother, Robert Johnston, seeking damages for injuries Agneta Warendh sustained when she was attacked by two Rottweilers outside the home the Johnstons shared with Michelle Berndt. The trial court denied in part the Johnstons’ motions for summary judgment, finding the existence of genuine issues of material fact as to whether the dogs were “confined on the premises” within the meaning of the local ordinance. The court granted their motions for partial summary judgment as to punitive damages and attorney fees. After granting the defendants’ applications for interlocutory appeal, we affirm.

When ruling on a motion for summary judgment, the party opposing the motion 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 that party. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

So construed, the evidence shows that Robert Johnston and Berndt each owned one of the dogs. Neither of the dogs’ owners was home on the date in question, December 20, 1997. The Warendhs, who used to live in the Roswell home, went there to retrieve their mail. Agneta Warendh either knocked or rang the doorbell, and Lori Johnston answered the door. Agneta Warendh deposed that she observed the dogs barking behind Lori Johnston, who shut the door, reopened it, and tried to slip out. The dogs pushed the door open and ran out of the house. Lori Johnston tried to grab one of the dogs’ collars, but she was unable to restrain the animal. At least one of the dogs attacked Agneta Warendh, jumping on her and biting her arms and abdomen. Lori Johnston was eventually able to get the dogs inside and secure them in the kitchen.

Case No. A01A1480

1. In her appeal, Lori Johnston contends that she was entitled to summary judgment on the Warendhs’ claim that she violated OCGA § 51-2-7. We disagree.

That statute provides:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and that the said animal was' at the time of the occurrence not at heel or on a leash.

See Oertel v. Chi Psi Fraternity, 239 Ga. App. 147, 148-149 (2) (521 SE2d 71) (1999).

As a preliminary matter, the Warendhs’ case against Lori Johnston requires them to prove that she kept the dogs, because there was evidence that she did not actually own either of the animals. Although in her answer Lori Johnston denied that she kept the dogs, she did not argue the point in her motion for summary judgment, nor did she enumerate as error the trial court’s implicit finding that the record raised an issue as to her keeping the dogs. Our review of the record shows that a jury issue exists as to whether she was keeping the dogs at the time of the incident. See, e.g., Goodman v. Kahn, 182 Ga. App. 724, 725 (356 SE2d 757) (1987). See generally Ludington, Annotation, Who “Harbors” or “Keeps” Dog Under Animal Liability Statute, 64 ALR4th 963 (2001).

The first sentence of OCGA § 51-2-7 has been applied in dog bite cases in Georgia since Cobb’s Code of 1863. After 1863, appellate courts modified the statute by asserting that it was “but a restatement of the common law, and at common law ... it was necessary to show, not only that the animal was vicious or dangerous, but also that the owner knew this fact. The scienter was the gist of the action.” Harvey v. Buchanan, 121 Ga. 384, 385 (49 SE 281) (1904). Accord Clark v. Joiner, 242 Ga. App. 421 (530 SE2d 45) (2000). Moreover, the defendant’s knowledge of the dangerous propensity must be greater than any such knowledge possessed by the plaintiff. Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 461 (1) (540 SE2d 671) (2000).

In 1985, the General Assembly expanded upon the scienter rule, also known as the “first bite rule,” by amending the statute to add the second sentence, which creates liability based upon a violation of a local or county ordinance and requires no proof of scienter. As amended, OCGA § 51-2-7 allows cities and counties, if they wish, to afford a higher degree of protection to people than allowed at common law. See generally Fields v. Thompson, 190 Ga. App. 177, 178 (378 SE2d 390) (1989).

The incident which led to this lawsuit occurred in the City of Roswell, a municipality which has enacted a so-called “leash law.” A certified copy of the ordinance was included in the record and reads as follows:

Any person having custody of a dog within the city limits shall be required to confine the dog on the premises of the owner of the dog or on the premises of someone authorized by the owner. Dogs shall not be permitted to be on any streets, alleys or any other place in the city off the premises of the custodian of the dog, except on a leash not more than six (6) feet long and in the care of a competent person.

City of Roswell Code, § 4-29.

Lori Johnston argues that she did not violate the Roswell ordinance because it merely required that the dogs be “on the premises of the owner.” She contends that the ordinance did not require the dogs to be “at heel or on a leash” at the time of the attack and, therefore, she may not be held liable under OCGA § 51-2-7. Additionally, Lori Johnston argues that the dogs were technically on the premises of their owners when Agneta Warendh was injured, so no violation of the ordinance occurred.

We disagree. First, we find that the statute contemplates restrictive ordinances such as the one in this case. We further conclude that a jury issue remains as to whether the dogs were running at large in violation of the Roswell ordinance.

In Tutak v. Fairley, 198 Ga. App. 307 (401 SE2d 73) (1991), we reversed a grant of summary judgment in a similar case and found that a jury issue remained as to whether a Glynn County ordinance prohibiting dogs from running at large had been violated and whether a dog’s owners should be held liable for injuries caused by the animal. In that case, a dog broke loose from a chain in the owners’ backyard, ran into their front yard, and bit a child. Id. We found that “[although the animal may have been physically within the boundaries of the appellees’ property at the time, it clearly was not ‘confined’ there.” Id. at 308. Cf. Clark, 242 Ga. App. at 422 (1) (Camden County ordinance specifically defined “confined” as being “ ‘merely on the property of the owner’ ”) (emphasis omitted).

Similarly, the ordinance in the case at bar requires a person having custody of a dog to “confine the dog on the premises of the owner of the dog or on the premises of someone authorized by the owner.” (Emphasis supplied.) Roswell Code, § 4-29. There was evidence that the dogs were not confined at the time of the attack, as they ran through the door and were loose in the front yard. Thus, the evidence of record does not negate the allegation that the dogs were in violation of the applicable ordinance, and whether Lori Johnston should be held liable under OCGA § 51-2-7 is a jury issue. The trial court properly denied Lori Johnston’s motion for summary judgment.

2. In addition, the appellees attempt to raise a jury issue under the first sentence of OCGA § 51-2-7 by arguing that Lori Johnston had scienter because she deposed that she had heard people say that Rottweilers are “aggressive dogs.” They buttress their argument by attaching to their appellate brief copies of miscellaneous pieces of information, apparently gleaned from the Internet, and a newspaper article, Erin McClam, “Rottweilers Take Lead in Fatal Attacks by Dogs,” Atlanta Journal, September 16, 2000, p. A3. The unauthenticated exhibits assert, inter alia, that there were 13 dog bite-related fatalities in Georgia between 1979 and 1996 and that Rottweilers were involved in more fatalities than any other breed.

Exhibits attached to briefs on appeal are not part of the record and cannot be considered as evidence. SurgiJet, Inc. v. Hicks, 236 Ga. App. 80, 82 (4) (511 SE2d 194) (1999). There is no showing in the record that the defendants had knowledge of any of the statistics asserted in the various hearsay articles and on the various Web pages. Moreover, Georgia law has, in the past, adhered to a rule that the breed of a dog is irrelevant to liability. Stanger v. Cato, 182 Ga. App. 498 (356 SE2d 97) (1987) (Doberman pinscher).

Our Georgia statute addresses injuries caused by vicious or dangerous animals. OCGA § 51-2-7. “A vicious animal is any individual of a vicious species, or a vicious individual of a harmless species.” Phillips v. DeWald, 79 Ga. 732, 735 (7 SE 151) (1887). Traditionally, courts have presumed all dogs to be of a harmless species and hence required proof of the dangerous nature of a particular dog and proof of his owner’s knowledge of that individual’s deviation from presumptive harmlessness. See, e.g., Montgomery v. Maryland Cas. Co., 169 Ga. 746, 748 (151 SE 363) (1930); Patton v. State, 93 Ga. 111, 112 (19 SE 734) (1893).

The appellees’ exhibits about Rottweilers and dog bites are evidently offered to rebut Georgia’s longstanding judicial insistence that dogs are a harmless species of animal regardless of breed. But previous efforts to change the common law of dog bites, especially in view of the 1985 legislative changes to OCGA § 51-2-7, have not persuaded a majority of the judges of this Court. See, e.g., Clark, 242 Ga. App. at 423 (Ruffin, J., concurring specially); Supan v. Griffin, 238 Ga. App. 404, 407 (519 SE2d 22) (1999) (Andrews, J., dissenting); Hamilton v. Walker, 235 Ga. App. 635, 637 (510 SE2d 120) (1998) (Banke, Senior Appellate Judge, dissenting). See generally Andrist, Note: Is There (and Should There Be) Any “Bite” Left in Georgia’s “First Bite” Rule?, 34 Ga. L. Rev. 1343 (2000) (arguing to retain traditional Georgia “first bite” rule). Even if we were able to consider the exhibits attached to appellees’ brief, they would not be an adequate record to support the argument that the defendants should have known of the dogs’ dangerousness. The present record does not raise a jury issue as to liability under the first sentence of OCGA § 51-2-7.

3. A judgment should be affirmed if it is right for any reason. The appellees argue that we should affirm because they asserted a claim in negligence in addition to their statutory claims under OCGA § 51-2-7. The appellees are correct that the decision on which they rely, Callaway v. Miller, 118 Ga. App. 309 (163 SE2d 336) (1968), squarely holds that OCGA § 51-2-7 is not an exhaustive remedy and that an injured plaintiff can pursue a claim in negligence as well. But only one judge concurred in the judgment, and the decision is, therefore, physical precedent only. The cited precedents from other jurisdictions are not persuasive.

OCGA § 51-2-7 was a codification of the common law as it existed at the time. An extensive common law gloss has been added to the statute over the decades. The appellees have cited no precedent, other than Callaway, 118 Ga. App. 309, and we have found none, which provides for liability for dog bites other than OCGA § 51-2-7 and the premises liability statute, OCGA § 51-3-1. See Webb v. Danforth, 234 Ga. App. 211, 212 (505 SE2d 860) (1998) (scienter required for landowner to be liable). A premises liability claim was not asserted in the case at bar. Liability under OCGA § 51-2-7 has been discussed in Divisions 1 and 2 above. There is no separate claim for negligence.

Case No. A01A1481

4. We also agree with the trial court that a jury issue exists as to whether Robert Johnston confined his dog as required by the Roswell ordinance. Although Robert Johnston had confined the dog to his home when he left for work, he knew that he did not live alone and that his sister or their roommate could be coming into and going out of the house in his absence. Nevertheless, he took no steps to prevent the dog from having access to the doors leading outside, but rather allowed him to roam freely throughout the house. The evidence showed that the dog weighed around 130 pounds while Lori Johnston weighed something less. Moreover, the dog responded primarily to Robert Johnston’s commands. This presents an issue as to whether Lori Johnston could reasonably be expected to keep the dog confined in Robert Johnston’s absence. Therefore, the trial court correctly denied Robert Johnston’s motion for summary judgment on the issue of whether he complied with the Roswell ordinance. See Tutak, 198 Ga. App. at 308.

The dissent notes that Robert Johnston had no prior knowledge that the dog would try to escape. But we have previously found that “[i]f an animal is running at large in violation of a local ordinance when it bites someone, the owner’s knowledge of its propensity to bite is immaterial.” Oertel, 239 Ga. App. at 150 (2). Robert Johnston’s knowledge of his dog’s propensity to escape is likewise immaterial under the circumstances of this case.

5. Moreover, we find that a jury issue exists on the issue of whether Lori Johnston can be considered Robert Johnston’s agent in this instance. “Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” (Citation and punctuation omitted.) Smith v. Merck, 206 Ga. 361, 368 (1) (a) (57 SE2d 326) (1950). An agency relationship “may refer, and perhaps most often does, to that relation created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary power to another, who undertakes to manage the affair and render to him an account thereof.” (Citations, punctuation and emphasis omitted.) Id. The existence of an agency can be shown through circumstances, apparent relations, and the conduct of the parties. Stallings v. Sylvania Ford-Mercury, 242 Ga. App. 731, 732 (1) (533 SE2d 731) (2000).

Robert Johnston apparently takes the position that confining the dog to the house was adequate under the local ordinance. But because he allowed the dog free access to the house, he necessarily relied upon his sister in his absence to keep the dog from getting out. And the evidence shows that she undertook to do so while she talked to Agneta Warendh. This raises an issue as to whether Lori Johnston acted as her brother’s agent in keeping the dogs from escaping. And the fact that Robert Johnston did not rely upon his sister to feed, water, or walk his dogs is not determinative of whether she acted as his agent in keeping the dogs confined.

Accordingly, we affirm the trial court’s denial of the Johnstons’ motions for summary judgment.

Judgments affirmed.

Blackburn, C. J., Ruffin, Eldridge and Miller, JJ., concur. Andrews, P. J, and Mikell, J., dissent.

MlKELL, Judge,

dissenting.

While I concur in the majority’s opinion in Case No. A01A1480,1 must respectfully dissent in Case No. A01A1481 as I believe that no jury issue exists as to Mr. Johnston’s liability under OCGA § 51-2-7.

1. It is undisputed that when Mr. Johnston left for work, his dog was secure inside his home. Additionally, Mr. Johnston deposed that he had no knowledge of the dogs rushing through the door in the past. Therefore, the Warendhs cannot establish “careless management” or “allowing the animal to go at liberty” on the part of Mr. Johnston, and he is entitled to summary judgment on the OCGA § 51-2-7 claim.

2. Furthermore, contrary to the Warendhs’ argument and the majority’s opinion, I do not believe that an agency relationship existed between Mr. Johnston and his sister that would result in his liability for the incident. OCGA § 10-6-1 provides: “The relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” There is no evidence that Mr. Johnston authorized his sister to act for him or that he somehow ratified any such actions. She may have been a bailee, but there is nothing in the record to show a relationship which would impart vicarious liability to the brother. The record shows that Ms. Johnston attempted to confine the dogs with gates within the home in an effort to protect her furniture; however, such action was taken for her own benefit and did not render her Mr. Johnston’s agent. Ms. Johnston deposed that she was very rarely alone with the dogs and that she never fed or walked them. The evidence is thus significantly different from that in Sanders v. Bowen, 196 Ga. App. 644-645 (2) (396 SE2d 908) (1990), in which the defendant’s sons had been designated to “take care of” their father’s pit bulldog, Bad Eye. I reject the Warendhs’ contention that Ms. Johnston acted as her brother’s agent by providing water to the dogs on occasion when their owners were not home. Accordingly, I would reverse the partial denial of summary judgment to Robert Johnston.

Decided November 30, 2001.

Gray, Hedrick & Edenfield, Lloyd B. Hedrick, Jr., for appellants.

Gibson, Deal & Fletcher, John W. Gibson, for appellees.

       If this were a criminal case, and the dogs were contraband, we would allow a jury to find that Lori Johnston had constructive possession of them. See generally Tran v. State, 246 Ga. App. 153, 160 (6) (539 SE2d 862) (2000); Deering v. State, 244 Ga. App. 30, 32 (2) (535 SE2d 4) (2000).

       As authority, Justice Cobb cited two decisions, only one of which was on point, Reed v. Southern Express Co., 95 Ga. 108 (22 SE 133) (1894). See also Sinclair v. Friedlander, 197 Ga. 797, 800 (30 SE2d 398) (1944) (construction of a statute codifying common law).

       Densely populated cities, for example, may elect to provide additional protection to humans, while rural counties may not see a need for additional regulations. Having different liability standards in different parts of the state is reminiscent of the division of the state in earlier times into “fence counties” and “no-fence counties,” also known as stock counties. See generally 1933 Code § 62-501 et seq.; Central R. v. Hamilton, 71 Ga. 461 (1883); McKenzie v. Powell, 68 Ga. App. 285, 286 (22 SE2d 735) (1942).

       But see Sanders v. Bowen, 196 Ga. App. 644, 646 (2) (396 SE2d 908) (1990) (scienter found from “habits of aggressiveness and attack which common sense says would not be confined to inanimate objects” despite no previous biting of humans); McBride v. Wasik, 179 Ga. App. 244 (345 SE2d 921) (1986) (scienter because animal was trained attack dog).


author: Smith, Presiding Judge. Barnes, Judge,

text:
    A01A1614.
    LOPEZ v. THE STATE.
    (557 SE2d 1)
   Smith, Presiding Judge.

Vincent Lopez was indicted by an Appling County grand jury on one count of armed robbery. He was convicted, his amended motion for new trial was denied, and he appeals, asserting five enumerations of error. Finding no error, we affirm.

1. In two enumerations of error, Lopez raises the general grounds. The parties agree that the State’s case rests upon circumstantial evidence.

Proof by direct evidence, however, is not required. A conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. OCGA § 24-4-6. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury. When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis.

(Citations and punctuation omitted; emphasis in original.) Hayes v. State, 249 Ga. App. 857, 860 (1) (549 SE2d 813) (2001).

Viewed in the light most favorable to the jury’s verdict, the record shows that on December 5, 1999, about 7:30 p.m., a convenience store employee was robbed by a masked man wielding a knife. The robber was wearing a dark-colored hood or hat over his head, a dark blue and white bandanna around his face, dark trousers, a blue and white sweater, and gloves. The victim also noticed that he had a “dark colored complexion” and was “small-built.” In addition to taking approximately $3,000 from the store, the robber also took the victim’s purse.

A witness testified that as she was preparing to enter the convenience store, she saw a man leave the store with something like a purse or a bag under his arm. She immediately suspected that “something was wrong” because the man was “bundled up” although it was “not that cold out here.” He was wearing a knit hat pulled down over his face and a sweater pulled up so his face was concealed. He walked around the corner of the building toward Lennox Road, which runs along the side of the convenience store. The cashier signaled that she had been robbed, and the witness called 911. When the witness drove to the store down Lennox Road, she did not see any cars parked on the side of the road near the store.

Another witness lived approximately three miles from the scene of the robbery and next to another convenience store. Shortly before 6:00 p.m. on the day of the robbery, this witness saw a car parked across from his wife’s fish pond in a pine thicket between his home and the store. He went out and asked the driver what he was doing there, and the driver responded that they were “squirrel hunting” although the witness saw no firearms in the car. The witness told the driver to leave. He observed that the driver was a dark-skinned man and that two children or teenagers were with him. Later that day, this witness gave the sheriff’s department a description of the car, including three of its license plate characters. His description of the occupants matched a description of the individuals who had been sitting under a tree near the store that was robbed. From the information provided by this witness, a deputy sheriff identified a car owned by one of Lopez’s relatives. The deputies located the car on the same evening, and the relative gave them permission to search it. During the search, the deputies found a black toboggan hat, a pair of cloth gloves, and a blue and white bandanna hidden behind the armrest in the backseat. Lopez was at his relative’s home with his fiancée and his children when the officers arrived that evening. Based on information his relative provided, the officers arrested Lopez.

At trial, the victim was shown the hat, gloves, and bandanna obtained by the officers. She testified that the bandanna had the same print as that worn by the robber. She could not identify the black hat as the one worn by the robber; she remembered only that it was dark in color. The gloves looked familiar. The eyewitness was shown the hat found by the officers and testified that the robber used “a hat like that.” Lopez’s fiancée offered an explanation for the presence of the hat, gloves, and bandanna in the car, claiming that she owned the gloves and bandanna and left them in the car “all the time” and that the hat belonged to her cousin.

While the dissent correctly points out that Lopez did not testify at trial, he did give two statements that were admitted into evidence and recounted his version of events on the evening of the robbery. At trial, a deputy summarized an oral statement Lopez gave less than six hours after the robbery as follows:

[E]arlier today he and his two boys . . . went back to the BP station, which is the U. S. 1 Convenience Store, where the car broke down and wouldn’t crank. This was around three p.m. . . . They finally got the car cranked back up and they come back to town. He put the boys out. He went back uptown, picked up another subject that he call “Poo-Poo.” They drove out in the country and “Poo-Poo” told him to stop at this store, so he said he pulled alongside of the store next to Lennox Road — didn’t pull into the store, he pulled up side of the road there on Lennox Road. He said the boy went into the store and he came back out and he said he jumped in the back seat of the car and told him — said he had a bag under his arm and he jumped in the back seat of the car and he left. And he said they continued on down Lennox Road and then turned back right on Ten Mile and went back home. He said he didn’t know that the boy was going to rob the store.

The defendant also stated that he thought “Poo-Poo” had stolen some beer.

After learning that “Poo-Poo” was James Wicker, the officers interviewed Wicker and searched his home. Wicker testified at trial, denying participation in the robbery and stating that he did not even see Lopez on the night in question. A deputy also testified that Wicker had an alibi for the evening of the robbery and that he personally verified the alibi by interviewing Wicker’s alibi witness “without him [Wicker] being able to contact her.”

The next day, a Georgia Bureau of Investigation agent interviewed Lopez. At trial, this agent summarized Lopez’s oral statement as follows:

Said he was driving his vehicle Sunday evening . . . and he was riding around and he met up with James Wicker and James Wicker got into the car with him. They were riding around. Mr. Wicker asked him to head out to the country. On the way out to the country they stopped at the — or Mr. Wicker asked Mr. Lopez to take a right by the BP store which is U. S. Number 1 Convenience Store. Mr. Wicker advised that he was going to use the bathroom and get something from the store. Mr. Lopez stated that he did not park right in front in the parking lot, he parked next to the road on the side of the road next to the road of the store while Mr. Wicker went inside. Some time afterwards Mr. Wicker walked casually out of the store holding a brown paper sack under his arm. And when Mr. Wicker approached Mr. Lopez’s car, he got into the back seat of the vehicle and laid down so nobody could see him and told Mr. Lopez to drive. Mr. Lopez stated he was under the impression that Mr. Wicker may have stolen some beer or something, but he did not ask what he did, what he took — or he did not ask any questions. Mr. Lopez stated he thought it was very strange that Mr. Wicker would get into the back seat of the car after riding up to the store in the front seat, you know, with no one occupying the front seat. He thought that was very strange. After they left the area of the store Mr. Lopez stated that he was on the way to take Mr. Wicker to his residence. And on the way there, Mr. Wicker climbed over the front seat and remained seated in the front passenger seat until he was dropped off at home. Mr. Lopez also stated that he did not know that Mr. Wicker was going to rob the store and he was just in the wrong place at the wrong time. He gave a description. He said Mr. Wicker was wearing black jeans, a dark multicolored sweater, some type of design on it, and a black toboggan-like hat. He also stated that he had a white and blue bandanna hanging out of his back pocket. Mr. Lopez further stated that he did not receive anything from Mr. Wicker, did not realize what Mr. Wicker did until after the fact occurred.

The accumulated evidence, taken as a whole, contains significant contradictions. Lopez’s statements to the deputies and the GBI contain many facts that contradict the testimony of other witnesses. An eyewitness to the robbery testified that she saw no car on the side of the road where Lopez claimed to have waited for Wicker. Lopez’s statement to the GBI agent was significantly different from his first statement. He elaborated on his suspicions of Wicker and for the first time added a detailed description of his attire which included the knit hat, sweater, dark pants, and blue bandanna. This new description tallied almost exactly with the descriptions of the robber given to the officers. The testimony of Lopez’s fiancée casts doubt upon Lopez’s assertion that Wicker was the robber without any connivance on Lopez’s part. Wicker would have been unlikely to request a ride from Lopez in casual fashion and then fortuitously find a ready-made disguise in the backseat. This testimony also contradicts Lopez’s statement to the GBI identifying these items as Wicker’s.

Finally, and most importantly, Wicker’s testimony that he did not commit the robbery and was not even present at the scene, supported by the testimony of the deputy, completely contradicts Lopez’s explanation that he was simply an innocent and unwitting bystander to Wicker’s crime. While Lopez presented evidence that Wicker was a felon and drug offender and argued that he had a strong motivation to lie because he was on parole, the jury nevertheless could have chosen to believe Wicker’s testimony in preference to that of Lopez. The jury could have considered the contradictions between Lopez’s earlier statements and the testimony at trial as evidence of his untruthfulness generally, deciding that Lopez provided not only the getaway car and the disguise, but perpetrated the robbery alone and attempted to fix the blame on Wicker, a likely suspect because of his prior criminal record. Believing some but rejecting other parts of his testimony, Hicks v. State, 221 Ga. App. 735, 736 (1) (472 SE2d 474) (1996), the jury could have concluded that Lopez was truthful in placing himself at the scene of the crime, but untruthful in denying his participation, whether alone or in concert with Wicker. Compare Krull v. State, 211 Ga. App. 37 (438 SE2d 152) (1993), in which the defense offered a witness who gave an uncontradicted and unimpeached innocent explanation for the alleged criminal conduct, which was corroborated by another witness. Here, the defense theory and the fiancée’s testimony contradict each other, and both were contradicted by Lopez’s prior statements and the testimony of Wicker, so it cannot be said that either proposed innocent explanation was “uncontradicted.”

While the dissent argues that these contradictions in Lopez’s alternative explanations of the circumstantial evidence of his guilt are ‘Vague” and “speculative,” that is precisely the issue of reasonableness that the jury, not this court, is empowered to decide. In such circumstances, “the jury is the best doctor of doubt.” (Citation and punctuation omitted.) Frye v. State, 189 Ga. App. 181, 182 (375 SE2d 101) (1988). The evidence was sufficient to authorize the jury to find Lopez guilty of armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Lopez also contends that the trial court erred in admitting his custodial statements into evidence.

The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.

(Citations and punctuation omitted.) Tucker v. State, 231 Ga. App. 210, 212 (1) (a) (498 SE2d 774) (1998). The evidence submitted in the voluntariness hearing supports the trial court’s denial of Lopez’s motion to suppress his statements. The officers testified that Lopez was advised of his rights, understood and waived them, and gave his statements voluntarily. While Lopez claimed that he was under the influence of alcohol at the time of his first statement, that he was promised benefits and threatened, that the officers ignored his request for counsel, and that the GBI agent tricked him into signing the form stating that he had not been threatened, the officers disputed Lopez’s account. “In such cases where the testimony is in dispute, the trial court’s determinations of fact and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.” (Citation and punctuation omitted.) Wells v. State, 237 Ga. App. 109, 112-113 (3) (514 SE2d 245) (1999). The trial court’s findings were not clearly erroneous, and we find no error in the admission of Lopez’s custodial statements.

3. Lopez argues that his counsel was ineffective in failing to make an opening statement and in failing to object to evidence of his presence at the other convenience store approximately one and one-half hours before the robbery. To prevail on an ineffectiveness claim, an appellant has the burden of showing both that trial counsel’s performance was deficient and that, but for this deficiency, a substantial likelihood exists that the outcome of the trial would have been different. Head v. Carr, 273 Ga. 613, 615-616 (4) (544 SE2d 409) (2001). “We note at the outset that [Lopez] has failed to provide a transcript of the hearing on his motion for new trial, so we are unable to address any matters which may appear there but not in the trial transcript.” (Footnote omitted.) Sanders v. State, 245 Ga. App. 701, 703 (4) (538 SE2d 772) (2000).

While Lopez contends that no tactical reason existed for his trial counsel to omit an opening statement, the trial transcript reveals that Lopez’s trial counsel subpoenaed at least five witnesses who did not testify. At a noon recess during the testimony of the State’s penultimate witness, Lopez’s trial counsel announced that he had decided not to call these five witnesses and had released them from their subpoenas. Uncertainty regarding the evidence to be presented by the State or the need for particular witnesses could provide a valid reason to omit an opening statement, so as not to promise the jury testimony that might not be presented. In this case, the caution of Lopez’s counsel apparently was justified, as he determined in the middle of the State’s case that he would not call five witnesses. In the absence of a transcript of the motion for new trial or testimony from trial counsel, we conclude that Lopez has not met his burden of showing any deficiency in what appears to be a tactical decision on the part of trial counsel.

Lopez also contends trial counsel was ineffective in failing to object to what he terms irrelevant evidence regarding his presence near another convenience store shortly before the robbery. But this evidence was directly relevant to the State’s theory that Lopez was “casing” a number of convenience stores before committing the robbery and also to explain the conduct of the officers in their investigation and arrest of Lopez. See generally Odom v. State, 243 Ga. App. 227, 230 (1) (c) (531 SE2d 207) (2000). While Lopez continues to argue that his statement to police was an “illegal, post arrest statement,” it was ruled admissible in the pretrial Jackson-Denno hearing; we have affirmed that decision by the trial court in Division 2, above. And, as noted in Division 1, above, the jury was free to believe portions of Lopez’s statement and disbelieve others. Lopez has failed to meet his burden of showing ineffectiveness on this ground as well.

4. Finally, Lopez complains that his sentence should be reduced. Although his argument is not entirely clear, he apparently contends that the trial court failed to entertain his motion for reduction in sentence due to untimeliness. But Lopez filed his motion for reduction in sentence as part of his amended motion for new trial, and the trial court’s order plainly states that “the defendant’s motion for new trial or reduction in sentence” is denied, without reference to timeliness or jurisdiction. In the absence of any further evidence or argument from the record, Lopez has not demonstrated that the trial court abused its discretion in declining to reduce his sentence. See generally Murray v. State, 216 Ga. App. 593, 596 (2) (455 SE2d 79) (1995).

Judgment affirmed. Blackburn, C. J., Pope, P. J., Eldridge and Mikell, JJ., concur. Barnes and Phipps, JJ., dissent.

Barnes, Judge,

dissenting.

I respectfully dissent because the circumstantial evidence in this case fails to exclude every other reasonable hypothesis of Lopez’s guilt beyond a reasonable doubt. No one identified Lopez as the robber. The police failed to locate the knife used in the robbery, the distinctive sweater worn by the robber, or the proceeds of the crime in a search of Lopez’s home and his grandmother’s car just hours after the robbery. The only evidence linking him to the robbery in any way was the hat, gloves, and bandanna found in the car he had driven earlier in the day and the statement he gave to police implicating Wicker.

The State argues that this evidence shows Lopez was a party to the crime under OCGA § 16-2-20 which provides:

(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime, (b) A person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

This argument fails because no evidence shows that Lopez did any of these things. “Presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. [Cits.] Even approval of the act, not amounting to encouragement, will not suffice.” Brown v. State, 250 Ga. 862, 864 (1) (302 SE2d 347) (1983).

An accessory after the fact is not a party to a crime under OCGA § 16-2-20, but instead “is guilty of a separate, substantive offense in the nature of an obstruction of justice.” Moore v. State, 240 Ga. 210, 212 (1) (240 SE2d 68) (1977). Thus, one who drives a murderer from the scene of the crime after learning that a murder was committed is guilty of accessory after the fact. Moore v. State, 94 Ga. App. 210, 215 (1) (94 SE2d 80) (1956). “In essence, to be guilty as a party to a crime as an aider or abettor pursuant to OCGA § 16-2-20 (b) (3), a defendant must be an accessory before the fact.” (Emphasis supplied.) Purvis v. State, 208 Ga. App. 653, 654-655 (433 SE2d 58) (1993).

In this case, Lopez’s statement, taken at face value, shows only that he was present at the scene of the armed robbery, but had no knowledge that it was going to occur. The statement, along with his fiancée’s testimony, also provides an innocent explanation for the presence of the evidence later found in the car he drove. On the other hand, one could also infer from Lopez’s statement and the evidence found in the car that he was not only present, but a party to the armed robbery. He might have known Wicker’s intentions in advance and been a willing participant. Thus, we are faced with deciding whether this evidence excluded “every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. We recognize that this is

primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or lack of evidence, and the defendant’s statement, than is a court of law. However, this court is a court of law, [and] where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, [we] may declare it so as a matter of law.

(Punctuation omitted.) Wood v. State, 156 Ga. App. 810, 811-812 (1) (275 SE2d 694) (1980).

In my view, the evidence does not exclude a reasonable hypothesis of innocence, and the alleged contradictions in the evidence do not alter this conclusion. Furthermore, many of the alleged contradictions outlined by the majority are not actually so. Lopez did not testify at trial and gave no written or recorded pre-trial statements. The fact that the Georgia Bureau of Investigation agent’s trial summary of Lopez’s oral statement contains additional information, consistent with the sheriff’s trial summary of a different interview, does not mean that Lopez gave inconsistent statements. The GBI agent might have remembered more about what Lopez told him; the GBI agent might have conducted a better interview, obtaining more information from Lopez; or the law enforcement officers’ view of what information was important may have differed. What is certain is that Lopez did not control the scope of these witnesses’ testimony.

Likewise, the fiancée’s testimony that the items kept in the car “all the time” belonged to her or her cousin does not contradict Lopez’s pre-trial statement that he saw Wicker wearing similar items after he had been in the car where these items were kept. Moreover, there is no direct evidence that Wicker actually wore the items in the car or that the items found in the car were actually used in the robbery. The robbery took place in December, a cold-weather month, and the items found in the car were not unusual or unique.

Decided November 30, 2001.

John S. Wetzler, for appellant.

Stephen D. Kelley, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.

If our task were only to measure whether the circumstantial evidence could be construed in a manner sufficient to sustain Lopez’s guilt, I would reach a different result. We must also decide, however, whether the circumstantial evidence was sufficient to exclude every other reasonable hypothesis save that of Lopez’s guilt. The vague, speculative evidence introduced in this case simply does not meet this test as a matter of law. The evidence shows that Wicker may have robbed the store without Lopez’s knowledge that he intended to do so, and no evidence was presented excluding this reasonable hypothesis of innocence.

“The most fundamental premise of our criminal justice system is that a person ought not to be punished for a criminal offense until the state demonstrates guilt beyond a reasonable doubt. [Cit.]” (Punctuation omitted.) Ayala v. State, 262 Ga. 704, 706 (1) (425 SE2d 282) (1993). Because this burden was not met in this case, I must respectfully dissent.

I am authorized to state that Judge Phipps joins in this dissent.

       We note that Lopez has failed to subdivide or number the arguments in his brief in any manner, in violation of Court of Appeals Rule 27 (c) (1). To the extent that we are able to discern the specific arguments raised, we have addressed them.

       On cross-examination, Lopez elicited that Wicker did not have an alibi witness for the hours between 6:00 and 9:00 p.m., but the deputy responded that they were satisfied that Wicker was telling the truth, because they had searched his house and verified his whereabouts up until the time he “said that he was home in bed and that’s where he was at when we found him.”

       Although direct admissions of the crime charged are not circumstantial evidence (Bigham v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996)), admissions of fact from which an inference of participation arises are circumstantial only. Eberhart v. State, 47 Ga. 598, 609 (1873); Riley v. State, 1 Ga. App. 651, 655 (57 SE 1031) (1907).


author: Phipps, Judge.

text:
    A01A2281.
    CRANE BROTHERS, INC. v. MAY.
    (556 SE2d 865)
   Phipps, Judge.

Stephen May hired Crane Brothers, Inc. to drill a well on his land. Crane Brothers completed the work and billed May. When May did not pay the bill, two Crane Brothers employees went to his workplace. An altercation occurred, and the police were called. According to counsel for Crane Brothers, both employees were charged with simple battery, and one was convicted and fined $230. Crane Brothers sued May for breach of contract for the unpaid bill. May filed a counterclaim for assault and battery, claiming that Crane Brothers was vicariously liable for the torts of its employees. The jury found for Crane Brothers on its contract claim and for May on his counterclaim. In mitigation of damages, Crane Brothers sought to introduce evidence of its employee’s conviction and fine, but the trial court refused to allow it. The jury awarded May $30,000 in punitive damages. Crane Brothers appeals, challenging the exclusion of the mitigating evidence.

It has long been the law in Georgia that an individual sued for punitive damages may introduce mitigating evidence of his previous criminal conviction and punishment arising from the same act. Thus, in White v. Taylor, we held that the defendant in a lawsuit for personal injuries resulting from an automobile collision could present evidence “of his convictions and punishments for the traffic offenses which culminated in the collision.” This case presents the question whether an employer, sued for the tort of its employee under a theory of respondeat superior, may introduce evidence of the employee’s criminal punishment in mitigation of punitive damages. We hold that the employer may do so.

Crane Brothers argues that, insofar as it is vicariously liable for its employee’s torts, including punitive damages resulting therefrom, it should be entitled to raise any defense or opportunity to mitigate damages available to the employee, including criminal punishment already imposed. May, on the other hand, argues that Crane Brothers should not be allowed to use its employee’s punishment to mitigate its damages because the party who was prosecuted was not Crane Brothers, but its employee. May points out that there is no evidence Crane Brothers paid its employee’s criminal fine or suffered any consequences as a result of the prosecution. The trial court agreed with May. It denied Crane Brothers’ motion for new trial on the ground that “[s]ince [Crane Brothers] played no part in the criminal prosecution, the conviction did not mitigate its damages.”

Under the doctrine of respondeat superior, an employer is liable for torts committed by its employees in the prosecution and within the scope of the employer’s business. Liability is imputed not because the employer has itself committed a wrongful act, but because the employer “has put the agent in [its] place to do that class of acts, and [it] must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master to place him in.”

Decided November 30, 2001

Stockton & Stockton, Lawrence A. Stockton, Jr., for appellant.

Healy & Svoren, Timothy P. Healy, for appellee.

The employer’s respondeat superior liability includes liability for punitive damages if the employee’s wrongful conduct was sufficient to permit such damages. The employer need not authorize or ratify the tortious conduct in order to be held vicariously liable for punitive damages. It follows that punitive damages are not awarded to punish the employer, who was not sued for any direct wrong it committed. Rather, punitive damages are intended to punish the wrongful conduct of the employee, for which the employer is vicariously liable. Therefore, the employer should be allowed to show that the conduct already has been punished via criminal prosecution of the employee. That the employer has not borne the consequences of the criminal prosecution is irrelevant because the punitive damages are meant to punish the conduct, not the employer.

May argues that in this case, Crane Brothers ratified the tortious acts of its employees and therefore should not be able to benefit from the criminal punishment of one employee. That, however, goes to the weight of the mitigating evidence rather than its admissibility. The trial court should have allowed Crape Brothers to present evidence of its employee’s criminal punishment in mitigation of punitive damages. Accordingly, we reverse the award of punitive damages.

Judgment reversed as to punitive damages only.

Smith, P. J, and Barnes, J., concur.

       Importantly, May did not assert any direct claim against Crane Brothers, such as negligent hiring, supervision, or retention.

        Cherry v. McCall, 23 Ga. 193 (1857); Cheevers v. Clark, 214 Ga. App. 866, 869 (4) (449 SE2d 528) (1994); White v. Taylor, 157 Ga. App. 328, 329 (277 SE2d 321) (1981).

        White, supra at 328.

       OCGA § 51-2-2.

       (Citations and punctuation omitted.) Savannah Elec. Co. v. Wheeler, 128 Ga. 550, 556 (58 SE 38) (1907).

        Sightler v. Transus, Inc., 208 Ga. App. 173 (430 SE2d 81) (1993); American Fidelity &c. Co. v. Fanner, 77 Ga. App. 166, 178 (3) (48 SE2d 122) (1948).

        American Fidelity, supra.


author: Eldridge, Judge.

text:
    A02A0231.
    WALDEN v. JONES.
    (556 SE2d 566)
   Eldridge, Judge.

Appellant-plaintiff Phil Walden, Sr. filed a declaratory judgment action against appellee-defendant Dr. J. Gregory Jones asking that certain personal property in the nature of music industry memorabilia (“memorabilia”) be declared his; that such memorabilia be awarded to him; that in the interim he be granted temporary and permanent injunctions barring Jones from selling or marketing the memorabilia; and that he also be awarded damages for conversion. Walden appeals from the superior court’s denial of his motion for permanent injunction and the entry of a final order awarding the memorabilia to Jones upon Jones’ adverse possession defense. We affirm.

Pertinently, the record shows that Walden operated his recording studio, Capricorn Records, out of a Macon area building which he had owned since 1959. In 1986, after deciding to move Capricorn to Nashville, Tennessee, Walden sold the building to Robert Lewis, a high school friend. Walden asked if he could store the property in the building until he could establish himself in Nashville. Lewis agreed.

On September 3, 1991, Bank South foreclosed on the building, Lewis having defaulted on the promissory note he executed in favor of the bank upon purchasing the building. Given notice of the foreclosure sale in early August 1991, Lewis contacted Walden’s brother and recommended the memorabilia be removed from the building before the foreclosure occurred. Approximately ten days later, with Walden’s approval, his brother and a nephew removed what they believed to be all of the memorabilia from the building and returned it to Walden in Tennessee. Nonetheless, memorabilia remained.

Jones purchased the building from the bank by general warranty deed on April 30, 1992, acquiring the building and the remaining memorabilia. Although by its warranty deed the bank conveyed the building alone, Jones testified that he would not have bought the building in the absence of the memorabilia he found in it, and, in 1995, the bank quitclaimed the same to him.

In December 1996, upon hearing rumors that Jones had loaned selected memorabilia items to the Georgia Music Hall of Fame and rented others, Walden wrote Jones and demanded the return of the memorabilia. Jones sold the building, less the memorabilia, to Mercer University in March 2000. Walden filed the instant action in the same month. Held:

1. Walden contends that the superior court erred in denying his motion for permanent injunction for Jones’ failure to come forward with evidence showing that he intended to abandon the memorabilia in issue. In this regard, he argues that the superior court erroneously applied a negligence standard in finding that he “essentially abandoned” the same.

“Abandonment . . . may result from acts of the owner or from failure to bring an action for the recovery of the personalty within four years. [OCGA § 9-3-32].” Maslia v. Hall, 121 Ga. App. 740, 743 (2) (175 SE2d 48) (1970); compare Tarver v. Deppen, 132 Ga. 798, 804 (7) (65 SE 177) (1909) (“Whatever may be the rule with reference to one losing an easement by abandonment, or with reference to one having title to personalty losing it by abandonment, a person holding title to land can not lose it by abandonment.”). There is no evidence of record showing that Walden inventoried the memorabilia he left behind with Lewis upon moving to Nashville. Walden was not present when his brother and nephew picked up the memorabilia in 1991, and while he viewed the memorabilia when it was delivered, again he failed to inventory it. Walden’s December 1996 letter to Jones was the first communication between the parties in which he asserted a claim of right in the memorabilia. Under these circumstances, the superior court did not err in finding that Walden abandoned all the memorabilia which remained in the building after accepting delivery of the memorabilia which his agents moved to him. An owner may abandon personal property by acts of commission and omission. See Ferguson v. Gurley, 105 Ga. App. 575, 579 (125 SE2d 218) (1962) (on motion for rehearing) (“From its very nature, negligence may consist in the doing of something which should not have been done. Negligence may also consist in leaving undone that which ought to have been done. It may, therefore, be a fault of omission as well as a fault of commission.”).

In any event, the governing statute of limitation is OCGA § 9-3-32 which provides for a four-year period to initiate suit after the action accrues for the recovery of personalty or damages for its conversion. Comerford v. Hurley, 246 Ga. 501, 503 (271 SE2d 782) (1980); Kornegay v. Thompson, 157 Ga. App. 558, 559 (1) (278 SE2d 140) (1981). “The true test to determine when a cause of action accrues is to ascertain the time when the plaintiff could first have maintained her action to a successful result. [U-Haul Co. &c. v. Abreu & Robeson, Inc., 247 Ga. 565, 566 (277 SE2d 497) (1981).]” Travis Pruitt & Assoc. v. Bowling, 238 Ga. App. 225, 226 (518 SE2d 453) (1999). In a tort action the statute of limitation begins to run “when the damage from the tortious act was actually sustained by the plaintiff.” Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716, 719 (1) (89 SE2d 816) (1955). Here causes of action for recovery of personalty and damages for conversion accrued in 1991, when Walden’s agents failed to remove all his memorabilia from storage. Walden filed the instant action in 2000. Such action having been filed more than six years after the applicable four-year statute of limitation had run, it was time-barred. Accordingly, the superior court did not err in denying the motion for permanent injunction about which Walden complains.

Decided November 19, 2001

Reconsideration denied December 3, 2001

Jones & Walden, Leon S. Jones, Philip M. Walden, Jr., for appellant.

Scott D. Sanders, for appellee.

2. In light of our disposition of Division 1, we need not address Walden’s remaining claim of error.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       Such personalty included press clippings, promotional materials, t-shirts, engagement contracts (inclusive of Otis Redding, Percy Sledge, Allman Brothers), master tapes, and gold records.

       Walden filed his appeal in the Supreme Court which subsequently transferred the case to this court as presenting a question of law, i.e., title to property acquired by adverse possession, rather than a claim in equity. Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999); Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).