author: Eldridge, Judge.

text:
    A01A0048.
    CALHOUN v. CULLUM’S LUMBER MILL, INC. et al.
    (545 SE2d 41)
   Eldridge, Judge.

Plaintiff-appellant John R. Calhoun filed suit, claiming tortious interference with contract against defendant-appellees Cullum’s Lumber Mill, Inc. and its owner Mickey Scott (collectively “Cullum’s Mill”); Commercial Real Estate Properties, Inc. (“CRP”); and Yeomans’ Wood & Timber, Inc. (‘Yeomans’ Wood”). The State Court of Chatham County granted the defendants’ motion for summary judgment. For the reasons that follow, we affirm.

The instant case arose from Calhoun’s attempts to finance the purchase of Delta Plantation, a 5,000-acre tract of land in Jasper County, South Carolina. On November 7,1995, Calhoun entered into a contract to purchase Delta Plantation. With regard to the negotiations and sale of Delta Plantation, the seller was represented at all times by CRP, and CRP signed the contract on the seller’s behalf. The contract specified that closing on the sale was to be December 15, 1995. Thereafter, the time was extended in writing to December 22, 1995.

Prior to closing, Calhoun attempted to obtain financing for the $9.75 million sale price. In order to facilitate such, Calhoun bid the timber on Delta Plantation to several timber companies, including Cullum’s Mill, which entered a bid proposal of $4.25 million for the timber. Yeomans’ Wood, another timber company, faxed to Calhoun a bid proposal of $4.35 million to harvest the timber. There is no written acceptance of any bid proposal in the record. However, by deposition, Calhoun testified that the written and signed bid proposal from Yeomans’ Wood was orally accepted via telephone on December 21, 1995.

The record shows that, following the acceptance of the Yeomans’ Wood bid price, Calhoun and Yeomans’ Wood continued to negotiate the terms of the timber purchase agreement, which included special, environmentally sensitive conditions Calhoun wanted in the timber contract which limited the amount of timber that could be harvested from specific areas of the Plantation, as well as the manner in which the timber could be harvested. In subsequent communications regarding his required terms, Calhoun made clear that the sale of the timber would be “subject to clear title and an agreeable timber sales contract. We would request that we have acceptance or refusal [of the additional terms] within 24 hours.” Thereafter, the parties did not sign a timber lease/contract.

The record further shows that Calhoun could not obtain sufficient financing for the entire purchase price of Delta Plantation by either the contract closing date of December 15 or the extended date of December 22, 1995. On December 27, 1995, Calhoun faxed the seller a letter stating,

It appears that we will be unsuccessful in fulfilling our contract dated November 7, 1995. However, I would like to make the following offer for your consideration. The offer will be $6,850,000 cash at closing, plus a personal note in the amount of $2,900,000 for four years at City Bank Prime interest.

The letter had a line for the seller’s signature with the notation “accepted,” and Calhoun requested that the seller fax such acceptance to CRP with the understanding that closing would then take place on December 29, 1995. No written acceptance of Calhoun’s counteroffer is in the record, nor was the contract amended to reflect any additional terms. On December 29, 1995, Yeomans’ Wood withdrew its bid proposal for the timber on Delta Plantation.

On January 23, 1996, Calhoun, through a representative, sent CRP a letter expressing disappointment that the deal had not been closed:

With the rejection of my partner John Calhoun’s latest proposal to purchase part of Delta Plantation, it appears that this deal has fallen through much to John’s dismay. . . . [P] lease express John’s great appreciation to Mr. Paulson [seller] for his cooperation and flexibility in attempting to work out a deal that could be consummated. Please keep us in mind if Mr. Paulson decides at some point in the future that he would be willing to split up the house and left side of the plantation from the rest of the property.

In this letter, Calhoun also sought return of the $200,000 earnest money he had put down in contemplation of sale. However, CRP would not return the earnest money, which had been released to the seller pursuant to a December 15, 1995 letter from Calhoun.

On February 3, 1996, Cullum’s Mill entered into a contract for the purchase of Delta Plantation for $8,625 million. CRP, as broker for the seller, made less commission from the sale of the property to Cullum’s Mill than it would have, had the sale to Calhoun been completed.

On April 3, 1996, Calhoun filed an action in the State Court of Chatham County, 196-0614F, against Delta Plantation Corporation, CRP, Richard Smith, and Yeomans’ Wood; he sought the return of the $200,000 in earnest money and money damages, as well as litigation costs and attorney fees. In his complaint, Calhoun alleged breach of the sales contract with Delta Plantation; breach of a timber contract with Yeomans’ Wood; breach of contractual obligations owed to Calhoun on the part of CRP and Smith; breach of fiduciary duties owed to Calhoun by CRP and Smith; and tortious interference with the Delta Plantation sales contract by CRP and “others.”

On December 22, 1997, Calhoun filed the instant action in the State Court of Chatham County, I97-3028G, against Cullum’s Mill, CRP, and Yeomans’ Wood and its owner, Scott. In this second suit, Calhoun’s sole claim was one for tortious interference with the Delta Plantation sales contract by all named defendants; he sought $5 million in money damages, as well as litigation costs and attorney fees. Calhoun later amended the instant complaint to add a claim of breach of contract against Yeomans’ Wood and then voluntarily dismissed his first law suit, I96-0614F.

Pursuant to motion for summary judgment, the trial court granted same as to all defendants. Calhoun appeals from the grant of summary judgment. Held:

1. We recognize the validity of defendants’ claims regarding the prior suit doctrine codified in OCGA §§ 9-2-5 and 9-2-44. However, as most probably recognized by the trial court in choosing to address the merits of the summary judgment motions, dismissal without prejudice of the instant action under OCGA § 9-2-5 would most likely serve as a postponement, as opposed to a conclusion, to a case that has lingered long enough. Finding wisdom in the trial court’s approach, we too will address the merits of the instant appellate issues.

2. Calhoun claims that, by withdrawing its timber bid proposal, Yeomans’ Wood breached a timber contract that was formed when Calhoun orally accepted Yeomans’ written and signed bid. In that regard, Calhoun argues that South Carolina law controls the instant issue, since any timber contract was to be performed in that state.

Under the rule of lex loci contractus, the validity, nature, construction, and interpretation of a contract are governed by the substantive law of the state where the contract was made, except that where the contract is made in one state and is to be performed in another state, the substantive law of the state where the contract is performed will apply.

Although the bid proposal and acceptance occurred in Georgia, the harvesting of the timber was to be performed in South Carolina. Accordingly, we will apply the laws thereof to determine the validity of any alleged contract.

Under specific statutory provisions, South Carolina views “timber to be cut,” not as an interest in the land, but as “goods” which are governed by the provisions of its Commercial Code. As such, and unlike Georgia law where the Statute of Frauds becomes a factor, an oral acceptance of a written timber bid which has been signed by the offeror can serve to bind the parties. With regard to an acceptance which, as in the instant case, contains additional terms, the South Carolina Commercial Code states in pertinent part that

a definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

The adoption of S.C. Code § 36-2-207 resulted from what is commonly-known as the “battle of the forms” between merchants; therein, parties exchange preprinted, standardized forms to finalize their bargain, which forms tend to use “boilerplate language” and omit material terms.

However, there are some situations which simply do not warrant application of § 2-207. It has been noted by Professors White and Summers that in the case of non-form agreements, there is no pattern of exchange of printed forms. Under such circumstances, when the parties fully negotiate each provision of a contract, a contract may be “beyond the reach of 2-207 and adrift on the murky sea of common law.” White and Summers, [Uniform Commercial Code] § 1-3 at p. 29 [(4th ed. 1995)]. See also Brown, [Restoring Peace in the Battle of the Forms: A Framework for Making Uniform Commercial Code Section 2-207 Work, 69 N.C. L. Rev. 893] at p. 943 (concluding section 2-207 is inapplicable if no form is used or if the disputed term was the subject of precontract negotiation). We find the present case presents such a situation. The parties met and negotiated the provisions of their contract, through their attorneys, for several [weeks]. They exchanged . . . draft proposals, making numerous changes. . . . Under the limited factual circumstances presented here, we find this is simply not a “battle of the forms” case, on the contrary, this was merely one more in a series of contract negotiations. Accordingly, we find section 2-207 inapplicable to the present facts.

Thus, “adrift on the murky sea,” we apply common law principles in the instant case for the purpose of determining whether, as a matter of law, a contract was formed by Calhoun’s acceptance of Yeomans’ timber bid proposal. And in doing so, we return again to familiar ground, because in the application of the common law, “it must be the common law as interpreted by the courts of Georgia and not of [South Carolina].”

At common law, a purported acceptance containing terms which did not “mirror” those of the offer operates as a rejection thereof and amounts to a counteroffer. Under such standard, as a matter of law, no timber.contract was formed in this case. Calhoun’s written addition of terms and restrictions on the harvesting of the timber rejected Yeomans’ bid offer and acted as a counteroffer specifically conditioned on Yeomans’ acceptance of the terms and restrictions. Calhoun’s December .27, 1995 fax to Yeomans’ Wood expressly asked for “acceptance or refusal [of the additional terms and restrictions] within 24 hours.”

In fact, Calhoun’s counteroffer materially altered the Yeomans’ Wood bid proposal, which was for the harvesting of “all merchantable timber less and except unmerchantable live oak trees, magnolia trees and cypress trees in extreme wet areas.” (Emphasis supplied.) Calhoun’s counteroffer prohibited the harvesting of any live oak, magnolia, or wet area cypress, as well as required: a 100-foot buffer of hardwoods along the frontage of US 17, SC 170, and SC 92; a 100-foot buffer of hardwoods along the main drive to the house and all mowed areas; and a minimum 50 acres of wildlife reserve areas to be left scattered across the tracts in which all hardwoods were to be left unharvested. Accordingly, Calhoun’s counteroffer reduced the quantity of timber to be harvested for the total bid price originally offered by Yeomans’ Wood. The record shows that Yeomans’ Wood never accepted Calhoun’s counteroffer.

Further, while the record contains an unsigned timber sale agreement which includes the added terms and restrictions proposed by Calhoun, we reject Calhoun’s contention that such constitutes an acceptance of those terms on the part of Yeomans’ Wood simply because the unsigned agreement was prepared by Yeomans’ attorney. The attorney testified that the agreement was prepared for review only, and “[t]hese restrictions that were in the timber sale agreement came from Mr. Calhoun’s office. These were put in this agreement preliminarily . . . but Yeomans never approved of this.” There is no evidence of record to the contrary.

[A]n attempted acceptance which seeks to modify one or more terms of the offer is of no legal effect as an acceptance. It is really a rejection of the offer, and a counter-proposition in lieu of the original offer, and must be accepted by the party making the original offer, in order to constitute an agreement.

Here, we conclude as a matter of law that Calhoun’s attempt to materially alter and restrict the terms of the Yeomans’ Wood timber bid acted as a counteroffer thereto. The record shows that such counteroffer was never accepted. As a consequence, the trial court did not err in granting summary judgment on Calhoun’s breach of contract claim against Yeomans’ Wood.

3. We also find no error in the trial court’s grant of summary judgment to CRP on Calhoun’s claim of tortious interference with the contract for sale of Delta Plantation. “[I]t is essential to a claim of tortious interference with contractual relations that the plaintiff establish that the defendant is a ‘third party,’ i.e., a ‘stranger’ to the contract with which the defendant allegedly interfered.” One must be a stranger “to both the contract and the business relationship giving rise to and underpinning the contract.” In this case, we do not find that CRP, which was authorized to independently negotiate on the seller’s behalf, apprised the seller of the status of such negotiations, advised the seller on actions with regard to such negotiations, and signed the contract in the seller’s stead, was a “stranger” to the contract of sale and/or the business relations underpinning such sale. Thus, as a matter of law, a claim against CRP for tortious interference with the contract of sale for Delta Plantation cannot be sustained.

4. Likewise, we find no error in the trial court’s grant of summary judgment to Cullum’s Mill and Yeomans’ Wood on Calhoun’s claim of tortious interference with contract.

As it relates to this case, an action for tortious interference with contract requires malicious and improper action by the defendants for the purpose of inducing a breach of contractual obligations. In that regard, the essence of Calhoun’s argument appears to be that Cullum’s Mill and Yeomans’ Wood improperly and maliciously conspired together to cause a breach of Calhoun’s contract to purchase Delta Plantation; in furtherance of this conspiracy, Yeomans’ Wood allegedly withdrew its timber bid solely to frustrate Calhoun’s financial ability to purchase the Plantation, thereby leaving the property open for purchase by Cullum’s Mill.

However, reviewing the record carefully and recognizing that all inferences are to be drawn in favor of Calhoun, the nonmovant, the record contains no nexus whatsoever between Cullum’s Mill and the bid proposal put forth and subsequently withdrawn by Yeomans’ Wood. Yeomans’ Wood put forward evidence that the decision to withdraw its timber bid proposal was based on financing considerations, including certain terms and conditions placed on funds which were otherwise available. The evidence further shows that Yeomans’ Wood did not benefit in any way from the sale of Delta Plantation or its timber to Cullum’s Mill, which is its competitor in the timber market. Thus, no inference is raised that the withdrawal of the Yeomans’ Wood timber bid was in any way connected to the ultimate sale of Delta Plantation to Cullum’s Mill.

Also, we can find in the record absolutely no connection between Cullum’s Mill and the failure of Calhoun’s contract to purchase Delta Plantation. While Calhoun argues that Cullum’s Mill became interested in the Plantation only after Calhoun hired its owner, Scott, to cruise the property’s timber in anticipation of Calhoun’s purchase, the record belies such argument. Cullum’s Mill made an offer to purchase Delta Plantation in January 1995, ten months before Calhoun entered into the contract for the purchase of the property. At that time, the Cullum’s Mill offer was rejected by the seller. The record shows that Cullum’s Mill made its second offer only after Calhoun failed to close on his contract to purchase Delta Plantation.

On summary judgment, the burden on Cullum’s Mill and Yeomans’ Wood, as the moving parties, may be discharged by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support an essential element of Calhoun’s claim of tortious interference with contract. Since malicious, improper collusion for the purpose of inducing a failure of the Delta Plantation purchase contract is an essential element of Calhoun’s tort claim, the absence of this element in the record shifts the burden to Calhoun. He may no longer rest on his pleadings, but must point to specific evidence giving rise to a triable issue of fact on such element. This he has failed to do. It is clear from Calhoun’s deposition testimony that he is bitterly disappointed by his failure to purchase Delta Plantation, a location he identifies as “the most beautiful place I’d ever seen in my lifetime.” It is also equally clear that Calhoun’s suspicions about foul play in the failure of the purchase are just that, suspicions:

[Defense attorney:] Well, let me ask you this. Tell me your version of the conspiracy you’ve alleged in this lawsuit, who conspired with who to do what?
[Calhoun:] I think Mr. Scott [Cullum’s Mill] got to somebody and got some way to buy this land and timber over there and I think he got to somebody, and who that somebody is, I don’t know, and somebody had to get to Mr. Yeomans.

Decided January 23, 2001

Reconsideration denied February 7,2001

Robert S. Kraeuter, for appellant.

Ellis, Painter, Ratterree & Bart, R. Clay Ratterree, Tracy A. O’Connell, Paul D. Meyer, Karsman, Brooks & Callaway, Edward M. Hughes, Timothy J. Haeusslev, John E. Suthers, Christopher J. Thompson, for appellees.

After full discovery on this issue over a span of three years, which included numerous documents, affidavits, and depositions of every possible “somebody” involved, it appears from the record that Calhoun’s suspicions are as factually undefined as the day on which he first posited them. As a consequence, the award of summary judgment to Cullum’s Mill and Yeomans’ Wood on Calhoun’s tortious interference with contract claim was proper.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur. Andrews, P. J., disqualified.

       The December 15,1995 letter stated: “This is my permission to Dick Smith at [CRP] to send $100,000 from my escrow account to Mr. Allan Paulsen [sic] today. I am enclosing a second check to Mr. Smith for $100,000 making a total credit against the sale in my binder account of $200,000.”

       A fifth defendant, Union Camp Corporation, was voluntarily dismissed from the action.

       No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.
      OCGA § 9-2-5 (a).

       (Citations and punctuation omitted.) Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (438 SE2d 703) (1993).

       See S.C. Code § 36-2-107 (2).

       See S.C. Code § 36-2-206 (an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances). See also S.C. Code §§ 36-2-204 (a contract for sale of goods may be made in any manner sufficient to show agreement); 36-2-201 (contract for sale of goods over $500 is enforceable if there is some writing sufficient to indicate that a contract for sale has been made and signed by the party against whom enforcement is sought or by his authorized agent or broker).

       S.C. Code § 36-2-207.

        Weisz Graphics v. Peck Indus., 304 S.C. 101, 108-109 (403 SE2d 146) (1991).

        Hyundai v. Hyundai, 326 S.C. 78, 82 (484 SE2d 468) (1997).

        Leavell v. Bank of Commerce, 169 Ga. App. 626 (2) (314 SE2d 678) (1984). See also Slaton v. Hall, 168 Ga. 710 (148 SE 741) (1929); Aetna Life Ins. Co. v. Evans, 56 Ga. App. 336 (192 SE 483) (1937); Raintree Trucking Co. v. First American Ins. Co., 245 Ga. App. 305 (534 SE2d 459) (2000).

       OCGA § 13-3-2; Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 585 (411 SE2d 527) (1991). See also Sossamon v. Littlejohn, 241 S.C. 478 (129 SE2d 124) (1963).

       (Citations and punctuation omitted.) Lamb v. Decatur Fed. Sav. &c., supra at 585; see also Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 529 (1) (455 SE2d 106) (1995).

        Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608 (2) (503 SE2d 278) (1998).

       (Emphasis in original.) Id. at 609.

       See Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334-335 (2) (444 SE2d 814) (1994).

        Taylor v. Gelfand, 233 Ga. App. 835, 836 (505 SE2d 222) (1998).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 9-11-56 (e).


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A00A1861.
    SHAW v. THE STATE.
    (545 SE2d 399)
   MlKELL, Judge.

Harold Arthur Shaw was charged by special presentment with simple battery, theft by taking, and three counts of felony obstruction of an officer, all arising out of a domestic dispute. A jury convicted Shaw of battery, theft, and one count of felony obstruction. Shaw’s motion for new trial was denied. He appeals, challenging the sufficiency of the evidence, his warrantless arrest, and the denial of his motion to dismiss the indictment. We affirm.

Viewed in the light most favorable to the verdict, the evidence shows that the victim called 911 from a gas station asking for assistance to retrieve her car keys from Shaw’s home. Two Marietta police officers, Christopher O’Barr and Debbie Jane Dixon, responded. When the officers arrived at the gas station, the victim stated that Shaw had grabbed her by the throat, shoved her against the wall, taken her car keys, and pushed her out the door. The officers saw red marks on the victim’s neck. The victim stated that she did not wish to prosecute Shaw but needed assistance recovering her possessions and keys.

The officers transported the victim to Shaw’s residence. Officer O’Barr testified that they found some of her belongings on the front porch, but not her keys. Officer O’Barr knocked on the front door for approximately five minutes until Shaw responded. When Shaw opened the door, he was highly agitated and smelled strongly of alcohol. Officer O’Barr asked Shaw for the victim’s keys. Shaw looked at the victim and said: “get the f — k out of [my] house and take these white f — ers with you.” He denied having the victim’s keys.

Both officers testified that they tried without success to calm Shaw down. Officer O’Barr testified that he tried to question Shaw concerning the incident with the victim, but Shaw continued to shout profanities. According to the officer, Shaw then turned his back toward the officers, started walking back toward his house, and stepped inside his front door. Officer O’Barr testified that he “followed [Shaw] to the edge of the doorway. And [Shaw] started to shut the door. And I put my hand against the door. I wasn’t going to let him shut the door. We needed to, you know, resolve this situation.”

Officer O’Barr next testified that Shaw “told me to get my f — ing hillbilly ass out of his house. At which point, I replied he was under arrest.” Shaw again tried to close the door, and Officer O’Barr pushed it open. Shaw then lunged toward the officer and “started swinging,” hitting him in the shoulder and side. Officer O’Barr stated that his immediate concern — the reason he did not want Shaw to close the door — was that Shaw might have a weapon.

Officer Dixon testified that at the time Officer O’Barr attempted to arrest Shaw, Shaw had stepped outside onto the porch. Officer Dixon further testified that Shaw, who was shouting profanities, retreated toward his door; Officer O’Barr put his foot in the doorway and grabbed Shaw; and Shaw shoved O’Barr and tried to withdraw into the house.

Officer O’Barr testified that the fighting continued into the foyer. Finally, Officer Dixon used pepper spray to subdue Shaw. O’Barr was affected by the spray; he and Dixon stepped outside. Shaw ran for the door and locked it. The two officers called for backup, and four more officers arrived. The officers contacted Shaw through 911 and tried to coax him outside. After ten minutes, Shaw walked out the front door onto the porch, shouting obscenities. According to Officer O’Barr, Shaw initiated a fistfight when the officers tried to place him under arrest, and they finally wrestled him to the ground. Two of the other officers who were summoned to the scene, Bertolo and Gruber, testified that when Shaw came onto the porch, he tried to lock the screen door; the officers kicked it down and grabbed him.

A search conducted incident to Shaw’s arrest revealed the victim’s keys in his pocket. The keys were not introduced into evidence.

1. Prior to trial, Shaw moved to dismiss the indictment, alleging the warrantless entry into his home was unconstitutional. Finding no authority for dismissing the indictment, the trial court treated the motion as one to suppress evidence. After an evidentiary hearing, the trial court denied the motion.

On appeal, Shaw enumerates this ruling as error. However, he is unable to produce any authority for the proposition that the appropriate remedy for an illegal arrest is dismissal of the indictment. Shaw acknowledges in his appellate brief that Georgia courts “have not allowed dismissal of an indictment as a remedy for police misconduct.” We decline Shaw’s invitation to impose such a harsh sanction here. Accordingly, the trial court did not err in refusing to dismiss the indictment.

Shaw also enumerates as error the trial court’s refusal to suppress the officers’ testimony that the victim’s keys were found in Shaw’s home. He claims that this testimony was tainted by the allegedly unlawful entry. “Only tangible physical evidence is subject to motions to suppress. Testimony is outside the scope of a motion to suppress and should be objected to on the trial.” While Shaw filed a motion in limine based on the alleged constitutional violation, the motion challenged only the admission of testimony concerning the presence of alcohol on his premises or his breath. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” Accordingly, this claim of error is waived.

2. Shaw next contends that the evidence is insufficient to support his conviction of felony obstruction of a law enforcement officer. We disagree.

On appeal, this Court determines evidence sufficiency. We do not weigh the evidence or determine witness credibility. The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt. To commit the offense of felony obstruction of an officer, a person must knowingly and wilfully resist, obstruct, or oppose any law enforcement officer in the lawful discharge of his official duties, by either offering to do violence to or doing violence to the officer.

In the instant case, Shaw argues that the state failed to prove that the officer was in the lawful discharge of his official duties at the time of the obstruction. Shaw’s argument is twofold.

(a) First, Shaw asserts that Officer O’Barr lacked probable cause to believe that he had committed battery or theft when he arrested him without a warrant. Thus, Shaw contends his arrest was unlawful, and he “ ‘had the right to resist with all force necessary for that purpose.’ ”

“Warrantless arrests are lawful ‘if the officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed.’ OCGA § 17-4-20 (a) . The OCGA § 19-13-1 definition of family violence includes [battery].” The victim’s on-the-scene accusations against defendant in the case sub judice, along with “visible bodily harm” to the victim’s [throat], provided [police] with probable cause to believe that defendant had committed battery as proscribed by OCGA § 16-5-23.1 (a).

Here, the victim informed the officers that Shaw had grabbed her by the throat, shoved her against the wall, and pushed her out the door. These statements, coupled with the officers’ observation of red marks on the victim’s neck, provided sufficient evidence for the jury to conclude beyond a reasonable doubt that Officer O’Barr had probable cause to arrest Shaw for battery.

(b) Shaw next argues that even if probable cause existed, Officer O’Barr’s warrantless entry into his home to effectuate his arrest violated the Fourth Amendment. Shaw is correct that absent exigent circumstances or consent, an entry into a private dwelling to effect an arrest without a warrant is unconstitutional. However, in Carranza v. State, upon which Shaw relies, evidence that the police entered the suspect’s dwelling to effectuate an arrest was uncontroverted.

In the instant case, the evidence concerning whether Officer O’Barr entered Shaw’s abode in order to effectuate an arrest was in conflict. Shaw testified that O’Barr put his foot in the doorway when Shaw tried to close the door. O’Barr testified that he physically prevented Shaw from closing the door. But Officer Dixon testified that Shaw had stepped onto the porch when Officer O’Barr attempted to arrest him. Although Dixon’s testimony on redirect examination was somewhat equivocal,

conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. 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.

The jury was properly charged that if it found that Officer O’Barr entered Shaw’s house to question or arrest him, the entry would be illegal, and Shaw would be justified in using force to resist the arrest. The jury necessarily found that no illegal entry occurred, and we will not disturb that finding. Accordingly, we affirm Shaw’s conviction of felony obstruction of an officer.

3. Finally, we conclude that the evidence is sufficient to support Shaw’s convictions of simple battery and theft by taking.

(a) Simple battery. Shaw was convicted of intentionally causing the victim physical harm by grabbing and pushing her, a misdemeanor under OCGA § 16-5-23 (a) (2). The victim testified that Shaw was merely trying to prevent her from driving because he believed she had been drinking. Based on this testimony, Shaw argues that the state failed to prove he intended to harm her. “The intention with which an act is done is peculiarly for the jury.” A jury may infer that a person acted with criminal intent after considering the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”

The officers’ testimony concerning statements the victim made at the gas station, the red marks around her throat, and Shaw’s demeanor toward the victim when the officers brought her to his home, all permitted the jury to infer that Shaw had the requisite criminal intent. As such, the evidence was sufficient for the jury to find that Shaw intentionally harmed the victim and was, therefore, guilty beyond a reasonable doubt of simple battery.

(b) Theft by taking. OCGA § 16-8-2 provides:

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.

Again, Shaw argues that the state failed to prove intent. He bases this argument on the victim’s testimony that Shaw came into possession of her keys because he had washed her car. However, intent is a jury issue. The circumstances surrounding Shaw’s confrontation with the officers, including his demeanor toward the victim and the fact that the keys were found in his pocket, all permitted the jury to infer the criminal intent to deprive the victim of her property. Consequently, the evidence is sufficient to support the jury’s finding that Shaw is guilty, beyond a reasonable doubt, of theft by taking.

4. Shaw finally enumerates as error the admission in evidence of a copy of an audiotape recording of two telephone calls to 911, one made by the victim and one by Shaw. Shaw argues that no proper foundation was laid for the admission of the copy according to the seven criteria set forth in Steve M. Solomon, Jr., Inc. v. Edgar:

It must be shown that the mechanical transcription device was capable of taking testimony; that the operator of the device was competent to operate the device; that changes, additions, or deletions have not been made; and that the testimony was elicited freely and voluntarily made, without any kind of duress. Further, the authenticity and correctness of the recordings must be established; the manner of preservation of the record must be shown; and the speakers must be identified.

Since Solomon, Inc. was decided in 1955, “advances in recording technology have somewhat relaxed these foundation requirements.” Moreover, recognizing “the difficulty inherent in authenticating [an]

. . . audiotape when an authenticating witness was unavailable,” in 1996 the legislature enacted OCGA § 24-4-48 (c), which provides that

audio recordings produced at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator shall be admissible in evidence when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered. . . .

Decided February 7, 2001.

Skelton & Skelton, H. Gray Skelton, Jr., for appellant.

Patrick H. Head, District Attorney, Rose L. Wing, Maria B. Golick, Assistant District Attorneys, for appellee.

The records custodian of the Cobb County 911 Communications Bureau presented detailed testimony as to the process used in producing both the original audiotapes and the copy admitted into evidence. She explained that calls are automatically recorded without the intervention of the 911 operator. The custodian further testified that the copy was a true and correct copy of the original recording. The state thus laid the proper foundation for the admission of the tapes under OCGA § 24-4-48 (c).

Shaw complains primarily that the state failed to authenticate the audiotape in that the custodian was unable to identify the voices on the tape. As to the recording of the telephone call made by Shaw, we note after the tape was played to the jury, defense counsel asked Shaw: “Q. The playing of [the] tape showed a quite different sound to your voice than what we are experiencing today. What do you think the reason for that was? A. I felt humiliated. . . .” Having admitted at trial that the voice on the audiotape belonged to him, Shaw cannot now complain that the state failed to authenticate his voice. “A party cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Morever, even if the state failed to authenticate the victim’s voice, any error in the admission of the recording of the call she made to 911 was harmless. Officer O’Barr had already testified to the same facts, making the tape merely cumulative of other evidence that was properly before the jury.

Finally, contrary to Shaw’s argument, the custodian’s testimony that she deleted the dead space between the two calls on the copy she made of the original audiotape does not render the copy inadmissible. The custodian testified that she made no alterations or deletions within the calls themselves.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The victim’s keys were not tendered in evidence at trial.

       (Citations and punctuation omitted.) Smith v. State, 221 Ga. App. 670, 671 (1) (472 SE2d 503) (1996).

       Cf. State v. Roe, 211 Ga. App. 129 (1) (438 SE2d 186) (1993).

       (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 705 (3) (426 SE2d 238) (1992).

        Davis v. State, 225 Ga. App. 627 (1) (484 SE2d 655) (1997).

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

       OCGA § 16-10-24 (b).

       See Green v. State, 240 Ga. App. 774, 775 (1) (525 SE2d 154) (1999).

       See Williams v. State, 228 Ga. App. 698, 700 (2) (492 SE2d 708) (1997).

        Woodward v. State, 219 Ga. App. 329, 331 (1) (465 SE2d 511) (1995), citing Smith a State, 84 Ga. App. 79, 81 (65 SE2d 709) (1951).

       (Citation omitted.) McCracken v. State, 224 Ga. App. 356, 358 (2) (480 SE2d 361) (1997).

        Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639) (1980); Carranza v. State, 266 Ga. 263, 268 (1) (467 SE2d 315) (1996).

       Id.

       (Citations and punctuation omitted.) Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

       (Citations and punctuation omitted.) Eberhart v. State, 241 Ga. App. 164, 165-166 (1) (526 SE2d 361) (1999).

       Id.; OCGA § 16-2-6.

         Jackson v. Virginia, supra.

       Id.; see also Romano v. State, 233 Ga. App. 149, 152 (2) (503 SE2d 380) (1998).

       92 Ga. App. 207, 211-212 (3) (88 SE2d 167) (1955).

        Russell v. Superior K-9 Svc., 242 Ga. App. 896, 897 (1) (531 SE2d 770) (2000).

       Id.

        Phagan v. State, 268 Ga. 272, 280 (5) (486 SE2d 876) (1997).

       (Citations and punctuation omitted.) Russell, supra at 897.

       See Livingston v. State, 271 Ga. 714, 720 (5) (524 SE2d 222) (1999).


author: Pope, Presiding Judge.

text:
    A00A1917.
    SPIKES v. THE STATE.
    (545 SE2d 410)
   Pope, Presiding Judge.

Willie Spikes, Jr. appeals from his conviction on one count of robbery. We affirm.

Viewed in the light most favorable to the verdict, the evidence showed that one morning in early September, Spikes and Angela Pitts drove from Jones County to Macon to purchase crack cocaine. Afterward, with Spikes driving, the two spent “hours” smoking crack as they traveled back roads in the area. Eventually, Spikes and Pitts drove to Willie Powell’s house in Jones County. Powell, who was 70 years old at the time, was an acquaintance of Spikes and his father. Pitts testified that Spikes paid Powell some money so they could use one of his rooms to smoke crack. Powell was unable to make change, and Spikes told him he would get it later. After smoking crack for a while at Powell’s house, Spikes and Pitts returned to Macon to buy more. The pair then continued riding around and smoking crack into the evening until they exhausted their supply. By this time, Spikes told Pitts that he was also out of money, and he returned to Powell’s house to get his change so that he could get “another hit” of crack.

Spikes went in the house to retrieve his change. Powell testified that he let Spikes in the house and returned to bed. Spikes came into Powell’s bedroom a few minutes later, grabbed Powell around the neck and demanded money. Powell repeatedly denied having any money. Spikes then reached under Powell’s pillow and grabbed his wallet, which contained an undisclosed sum. Afterward, Spikes and Pitts left Powell’s house and returned to Macon where Spikes purchased more crack cocaine.

1. Spikes first asserts that the state failed to prove his guilt beyond a reasonable doubt. As charged in this case, the State was required to prove that Spikes, with the intent to commit theft, took Powell’s property by force. OCGA § 16-8-40. The evidence showed that Spikes came into Powell’s bedroom, grabbed him around the neck and demanded money. Spikes then grabbed Powell’s wallet and left. This evidence was sufficient to establish the elements of the offense of robbery. See Watson v. State, 214 Ga. App. 650, 651 (2) (448 SE2d 718) (1994).

Although Spikes argues that Powell was not very certain in this testimony, that argument goes to the issue of credibility, which is a matter for the jury. An appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Ellis v. State, 245 Ga. App. 807 (539 SE2d 184) (2000).

2. Spikes next argues that there was a fatal variance between the allegations in the indictment as to when the robbery occurred and the proof at trial. He contends that the date is a material element of the charge against him because he asserted an alibi defense. The indictment charged that the robbery occurred between September 3 and September 6, 1998, while Spikes asserts that the evidence showed the events must have occurred in August 1998. He bases this assertion on his own testimony that his contact with Pitts and Powell occurred the day he picked up his August workers’ compensation and Social Security checks.

Spikes’ testimony notwithstanding, Powell testified that the events at issue occurred in September 1998 and Pitts stated that they occurred the first week in September, although neither could pinpoint a specific day. But even without specific proof that the crime was committed between September 3-6, 1998, no fatal variance occurred. An alibi defense does not transform the date alleged in the indictment into a material element of the charge unless proof of a different date somehow bars the alibi. Rather, “[t]he evidence is sufficient if the State proves the offense occurred as of any date within the statute of limitation.” (Footnote omitted.) Lovelace v. State, 241 Ga. App. 774, 775 (1) (527 SE2d 878) (2000).

Here, Spikes was not prevented from presenting evidence of his alibi simply because the state did not prove a specific date. Both sides presented evidence as to what occurred on the day of the crime, and, in fact, Spikes’ evidence corroborated the state’s evidence in many particulars. The fact that they disagreed as to whether these events occurred in August or September 1998 did not affect Spikes’ ability to present his alibi evidence. And because both months fell well within the applicable limitation period, the state’s evidence was sufficient to support the allegations of the indictment.

3. Spikes contends that a fatal variance also occurred between the proof and the indictment’s allegation that Spikes took currency from Powell. He asserts that the evidence showed that Powell had no cash other than the money Spikes had paid him earlier that day and instead had only a government check.

This argument misstates both the language of the indictment and the evidence at trial. The indictment charged Spikes with taking “a wallet containing U. S. currency and personal identification from the immediate presence of Willie Powell. . . .” (Emphasis supplied.) The evidence showed that Spikes took Powell’s wallet and that the wallet contained currency. On cross-examination, Powell stated that he had, in fact, cashed his government check and, therefore, the wallet held money when Spikes took it. And although Spikes points to a conflict in the evidence as to whether Powell used part of that money to pay for a refrigerator that day, this conflict did not create a variance between the allegations and the proof of the crime.

Decided February 7, 2001.

Lawton Miller, Jr., for appellant.

Fredric D. Bright, District Attorney, Gregory L. Bushway, Assistant District Attorney, for appellee.

4. Spikes also argues that the trial court erred in instructing the jury regarding inculpatory statements because his statement to police was exculpatory. Although in his statement Spikes denied committing the crime, he did admit to a number of facts that corroborated the state’s testimony and thus that could have been potentially incriminating. For example, he admitted going to Powell’s house several times on the day in question and on one of those occasions he retrieved “change” from Powell. Thus, the jury could have found that at least portions of Spikes’ statement were inculpatory: “Whether a statement intended to be exculpatory has an inculpatory effect depends upon the view that the jury might take of it in connection with all other facts and circumstances disclosed by the evidence.” (Citation and punctuation omitted.) Thomas v. State, 176 Ga. App. 53, 56 (6) (335 SE2d 135) (1985). We find no error in the trial court’s charge under these circumstances.

5. Spikes further asserts that the prosecutor made highly prejudicial and improper remarks in closing argument. But no objection was raised to any portion of the prosecutor’s argument. And although Spikes contends that his counsel failed to object because the prosecutor’s argument was partially inaudible, there is no support for this contention in the record. Nor did Spikes’ counsel object on the ground that he could not hear the prosecutor. “It is necessary to object to [any] alleged irregularity in an attorney’s closing argument at the time it is actually made, and failure to do so amounts to a waiver of any objection that might have been raised.” (Citations and punctuation omitted.) Sutton v. State, 245 Ga. App. 881, 883 (3) (539 SE2d 227) (2000). Accordingly, this argument is waived.

Judgment affirmed.

Miller and Mikell, JJ., concur.

       Similarly, we find no error in the trial court’s denial of Spikes’ motion for directed verdict. See generally Christensen v. State, 245 Ga. App. 165, 167 (3) (537 SE2d 446) (2000) (“A motion for directed verdict is authorized only when there is no evidence to support a conviction”).


author: Miller, Judge.

text:
    A00A1958.
    CULLIVER v. THE STATE.
    (545 SE2d 392)
   Miller, Judge.

Eric Culliver was convicted of enticing a child for indecent purposes and of child molestation. He enumerates three errors: (1) the case was called “out of order” and placed at the first of the trial calendar; (2) the judge who tried the case was not originally assigned the case; and (3) the court did not declare a mistrial when a witness gave testimony that had been ordered excluded. Since the case was called and a new judge assigned in compliance with a plan approved by the judges in the local circuit, the first two enumerations fail. And since the testimony in question was not unduly prejudicial, the trial court did not abuse its discretion in refusing to declare a mistrial. We affirm.

Construed in favor of the verdicts, the evidence showed that while at a mall Culliver approached two young girls (a twelve-year-old and a thirteen-year-old) and asked if they would play arcade games with his four-year-old son. They consented, but when the foursome met at the arcade center in the mall, Culliver requested that the 13-year-old play a racing game with his son while the 12-year-old show him how to play a videogame in the back comer of the center. Once in the back comer, he insisted that the 12-year-old stand in front of the videogame (instead of to the side where her controls were), and he then stood behind her with his arms around her as she and he played the game. He rubbed his erect private part against her back during the game.

Once the game ended, he retrieved his son and disappeared into the mall, while the upset 12-year-old cried and, taking her 13-year-old friend outside, disclosed the event to her. The victim then went home, only to return soon with her parents who had called police when she told them of the incident. Questioned some days later, Culliver initially denied and then admitted that he had talked to the girls, that he had played a game with the 12-year-old in the arcade center, that the victim had “bumped up against him and he became erect,” that he had not planned to molest anyone but that it had “just happened,” and that he was sick and needed help.

Culliver was charged with enticement and child molestation. He was also charged with false imprisonment based on the victim’s statement that once she realized that he was rubbing his erect private part against her, she tried to escape, but he held her wrists and ordered her to complete the game.

Culliver filed a demand for a speedy trial. Toward the end of the last term in which he could be tried, he appeared for trial before Judge Altman, who ultimately declared a mistrial. Per an unwritten but well-understood policy approved by the judges of the local circuit, a mistried case is assigned to the next trial calendar in the term, over which calendar a different judge presides on a rotating basis. Under this policy, if the case has a speedy trial demand, it is placed at the top of that calendar. Culliver’s case followed this policy. His trial before the second judge, Judge McLane, resulted in an acquittal on the false imprisonment charge and a hung jury on the other two counts, thus necessitating a second mistrial on those counts.

Judge McLane ordered that the case be set for the following week (the last trial week of the term ), again at the top of the calendar. That week the presiding judge (as per a calendar long published by the circuit court administrator) was Judge Horkan. In the trial before Judge Horkan, a jury found Culliver guilty of the enticement and molestation counts, which convictions are the subject of this appeal.

1. Citing Cuzzort v. State, Culliver first contends that the State could not move the case to the top of Judge Horkan’s calendar. But the State did not move the case; rather, Judge Horkan exercised his discretion under the approved local policy to move a “speedy trial demand” case to the top of the calendar. No rule prohibits a local policy moving a “speedy trial demand” case to the top of a calendar; in fact, such a policy is only common sense and designed to accommodate the demand of the accused. Cuzzort even emphasized that under OCGA § 17-8-1 “a trial judge may in his discretion call cases out of order. . . .” The decision of the local judges to adopt a policy moving a “speedy trial demand” case to the top of the calendar is a wise and thoughtful exercise of that discretion.

2. Culliver’s second enumeration of error concerns the local policy assigning a mistried case to the next available calendar, even though a different judge will preside over that calendar. He argues that this conflicts with the Uniform Superior Court Rules and with Cuzzort and Hicks v. State

Rule 3.1 of the Uniform Superior Court Rules provides:

In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases. . . . The assignment system is designed to prevent any person’s choosing the judge to whom an action is to be assigned. . . .

Rule 3.2 directs that when practical, all substantially related cases and refiled cases shall be assigned to the same judge. And Rule 3.3 states that the judge to whom a case is assigned may transfer the case to another judge with the latter’s consent.

These rules permit the judges of a circuit to approve and follow a plan that assigns a mistried case to the next available calendar, even though this results in the case being assigned to a different judge. The local judges may elect to adopt a different assignment system from that suggested (so long as no party can choose the judge), and a judge may transfer a case to another judge with the latter’s consent. Here, the transfers from Judge Altman to Judge McLane, and then from Judge McLane to Judge Horkan, were in effect consented-to and authorized transfers.

Nothing in Cuzzort states otherwise. To the contrary, Cuzzort instructs:

Under the plain language of the rule, multi-judge circuits may adopt a different method subject to the approval of a majority of the circuit’s judges. Certainly, judges, in their capacity as members of the judiciary, have the inherent authority to determine their own internal operating procedure for the selection of which of them shall hear cases.

3. Culliver’s third enumeration is that the trial court erred in denying his motion for mistrial. At the third trial Culliver moved in limine to exclude any testimony concerning Culliver seizing the victim’s wrists and ordering her to finish the game. He argued that when the second jury acquitted him of the false imprisonment charge, the jury necessarily found that these alleged facts did not occur. He urged that the testimony was prejudicial and that he should not be placed in double jeopardy by having a new jury hear that testimony again.

Although the court indicated that it did not perceive the testimony as unduly prejudicial, the court ordered the State to instruct its witnesses not to mention the grabbing of the victim’s wrists. In recounting the victim’s statements to him, however, a police officer mentioned the victim’s statement that “when she tried to get away he grabbed her wrists and told her she had to finish the game.” Culliver moved for a mistrial, which the court denied on the ground that the testimony was not so prejudicial as to warrant a mistrial.

The court was correct in granting the motion in limine to exclude the testimony, for it concerned factual issues resolved in Gulliver’s favor by the previous acquittal. The State’s argument that the testimony was admissible as part of the res gestae misses the mark, for the issue in the motion in limine was not whether the testimony was relevant or otherwise admissible, but whether admission was precluded as a matter of collateral estoppel.

The relevant inquiry then becomes whether the court erred in denying the motion for mistrial when the prohibited testimony was mentioned. Whether to grant a mistrial due to the mentioning of improper evidence is left to the sound discretion of the trial court, which we review only for abuse based on a “consideration of the nature of the statement, the other evidence introduced during the trial, and the action taken by the court and counsel concerning the impropriety.”

We discern no abuse here. Though not probative of any of the elements of the charged crimes, the single statement was part of the res gestae. The other evidence introduced during the trial showed that (1) Culliver admitted to playing a game with the victim, to bumping against the victim and becoming erect, to the molestation “just happen[ing],” and to being sick and needing help; (2) the victim was unequivocal in her testimony; (3) the victim immediately exhibited symptoms of being traumatized to observers; and (4) the victim immediately told her friend and parents of the incident and confirmed it to police. Strong evidence of guilt, as here, lessens the prejudicial impact of the improper evidence. Finally, even though the court gave no curative instruction to the jury, State’s counsel ensured that no other State witness referenced the excluded evidence. Under these circumstances the trial court did not abuse its discretion in denying the motion for mistrial.

Decided February 7, 2001.

Ronald L. Beckstrom, for appellant.

J. David Miller, District Attorney, Laura E. Anderson, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       OCGA § 16-6-5 (a).

       OCGA § 16-6-4 (a).

       See OCGA § 15-6-3 (35) (D).

       271 Ga. 464, 465 (3) (519 SE2d 687) (1999).

       Id.

       Id. at 464-465 (1), (2).

       231 Ga. App. 552, 553-557 (2) (499 SE2d 341) (1998).

       (Emphasis supplied.)

       See Lumpkin v. Johnson, 270 Ga. 392, 395 (2) (509 SE2d 621) (1998) (the “when practical” language means Rule 3.2 is not mandatory); accord Tokars v. Superior Court of Cobb County, 264 Ga. 180, 181 (442 SE2d 454) (1994).

       Supra, 271 Ga. at 464-465 (1).

       (Citations and punctuation omitted.) Id. at 464 (1). Hicks, supra, 231 Ga. App. at 554-556 (2), is distinguishable in that it focused on the failure of the judges to comply with OCGA § 15-1-9.1 when seeking assistance from other courts.

       See Salcedo v. State, 258 Ga. 870, 871 (376 SE2d 360) (1989); Moore v. State, 254 Ga. 674, 675-677 (333 SE2d 605) (1985).

       (Citations and punctuation omitted.) Laster v. State, 234 Ga. App. 16, 17 (2) (505 SE2d 560) (1998).

        Martin v. State, 240 Ga. App. 901, 903 (1) (525 SE2d 728) (1999).

        Brown v. State, 243 Ga. App. 632, 633 (2) (534 SE2d 98) (2000).


text:
    A00A2332.
    McENTYRE v. THE STATE.
    (545 SE2d 391)
   Pope, Presiding Judge.

McEntyre claims that the evidence in this case was insufficient to allow the jury to find him guilty of child molestation of his daughter. He argues that the jury could not, as a matter of law, have found that he possessed the requisite criminal intent to satisfy his sexual desires. He urges that the jury was authorized to find only that he was guilty of misdemeanor sexual battery. We disagree.

When assessing the sufficiency of evidence to support a criminal conviction, this Court does not weigh or evaluate the evidence for itself, nor does it resolve conflicts concerning the evidence. Rather, it examines the evidence in its entirety in a light most favorable to the verdict to determine whether any rational trier of fact could have found the accused guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Cox v. State, 243 Ga. App. 790 (534 SE2d 464) (2000).

The victim, age 14 at the time of trial, told her mother that her father had been touching her “in her private parts, her vagina,” from 1992 until about 1996. The victim testified that her father would come into her room when she was asleep and touch her “in my vagina.” She would wake up during the touching. She said that this had happened ten times or more. Her father told her that if she told anybody, something bad would happen.

Agent Todd Lowery of the Georgia Bureau of Investigation interviewed McEntyre on two occasions after the allegations arose. McEntyre admitted that he had touched his daughter’s vagina. He told Lowery that he had become aroused and that he went out of the room and masturbated. He said that he had done this between one and three times. After McEntyre was arrested, Lowery interviewed him a second time. McEntyre again admitted touching his daughter in the vagina and then concluded the interview by telling Agent Lowery, “I’m guilty.”

At trial McEntyre admitted touching his daughter and masturbating several hours later; however, he claimed that he touched her in order to determine if she had been the victim of sexual abuse by another man. And he claimed that he did not have sexual thoughts about having sex with her but only about the fact that she was having sex. He denied that he touched her to satisfy his sexual desires.

Decided February 7, 2001.

Joe H. Thalgott, for appellant.

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

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.” OCGA § 16-6-4. Whether McEntyre had the requisite intent was a question of fact for the jury “after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive.” (Citation and punctuation omitted.) Foster v. State, 216 Ga. App. 26, 27 (1) (453 SE2d 482) (1994). And, criminal intent may be inferred from conduct before, during and after the commission of the crime. Williams v. State, 262 Ga. 677 (1) (424 SE2d 624) (1993).

The number of touches, McEntyre’s act of masturbating, his warning to the victim to keep the incident quiet and his own statements support the jury’s finding of the requisite intent.

Judgment affirmed.

Miller and Mikell, JJ., concur.


author: Blackburn, Chief Judge.

text:
    A00A2353.
    WAGNER v. PIERCE.
    (545 SE2d 408)
   Blackburn, Chief Judge.

Following a defense verdict, Jonathan Wagner appeals the trial court’s order denying his motion for new trial. Wagner brought the underlying tort action seeking to recover damages for personal injuries resulting from the collision of two jet skis on the open waters of Lake Lanier. The collision occurred as he and his friend, Curtis Pierce, were operating their separate jet skis. Alleging that Pierce had been jumping waves and operating his jet ski in a negligent and reckless manner, Wagner sued Pierce. For the reasons set forth below, we affirm the denial of Wagner’s motion for new trial.

1. Wagner contends that the verdict is contrary to the law and strongly against the weight of the evidence. Claiming that the evidence does not support the jury’s verdict, he cites various inconsistencies in the testimony.

On appeal, the evidence must be strongly construed to support the jury’s verdict and the judgment entered thereon. Walker v. Bruno’s, Inc. Absent an error of law, if there is any evidence to support that judgment, it must be affirmed. CSX Transp. v. West Viewed in that light, the evidence established that Wagner accepted an invitation from Pierce to go jet skiing. While Wagner and Pierce were operating their respective jet skis in choppy waters, Wagner and Pierce proceeded under a bridge. Deciding to jump a wake created by a passing boat, Wagner suddenly crossed into Pierce’s path. As Wagner struggled to maintain his balance, he inadvertently activated the kill switch on his jet ski. Seconds later, while Wagner’s jet ski remained stalled in the water, Pierce’s jet ski collided with Wagner’s, injuring Wagner.

Pierce offered evidence that prior to getting on his jet ski, Wagner had been consuming beer. The evidence of negligence on the part of both men was conflicting and mixed.

Wagner conceded that when he crossed in front of Pierce, he had not been paying attention to the whereabouts of Pierce. Wagner admitted that he did not realize how close he was to Pierce when he decided to jump the wake immediately ahead of Pierce. Although Wagner believed that Pierce had time to avoid the impact, Pierce claimed otherwise. Pierce testified that Wagner “cut across my bow,” hit the wake created by a passing boat and killed the engine. Pierce testified that there was “nothing whatsoever” he could have done and he had no time to turn or avoid the accident. Even Wagner’s own witness, Karen Thompson, who was watching from a nearby boat, testified that she did not think that Pierce had enough time to turn his jet ski to avoid the collision.

This evidence did not demand a finding of liability against Pierce. See Porter v. Southern R. Co. On the contrary, the jury had to resolve, who, if anyone, had been negligent and if both had been negligent whether Wagner’s negligence equaled or exceeded that of Pierce. See Kirkland v. Moore On the verdict form, the jury expressly determined that Wagner had been 50 percent or more negligent. Because there is some evidence to support the verdict, we will not disturb the judgment entered on it. Bldg. Materials Wholesale v. Reeves.

Decided February 7, 2001.

2. Wagner contends that the trial court’s instruction on comparative negligence was not a correct statement of law and was confusing to the jury. The record, however, indicates that Wagner did not object to the court’s instruction on comparative negligence. By failing to object to this charge, Wagner failed to preserve the issue for appellate review. Smith v. Curtis In any event, the trial court used the pattern instructions on equal negligence and comparative negligence. These charges appear to have been adjusted to the evidence and were not confusing or misleading to the jury when examined in light of the other charges and the evidence. See Westinghouse Elec. Corp. v. Rider.

3. Wagner asserts that the trial court’s response to a question posed by the jury about comparative negligence was inadequate. He claims that the trial court failed to clarify the law or to eliminate the jury’s apparent confusion.

After the jury had deliberated the case, the foreman submitted this handwritten question to the court:

If we the jury find the Plaintiff was less than 50% comparatively negligent and award Plaintiff $_ dollars, which amount has been reduced proportionally, does this mean that if we find the Plaintiff 49% negligent does that imply the defendant is liable for 51% of the total expenses for injuries or could we choose a figure less than 51%[?]

Outside the presence of the jury, the trial court consulted with counsel for both sides. The court then recharged the jury by rereading the pattern jury instructions for equal negligence and comparative negligence. Wagner posed no objection to this procedure. Even assuming arguendo that the purported error was not waived, we find no error. See Allstate Ins. Co. v. Justice.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

James B. Drew, Jr., for appellant.

Duncan & Mangiafico, Tammi M. Berden, for appellee.

        Walker v. Bruno’s, Inc., 228 Ga. App. 589 (492 SE2d 336) (1997).

        CSX Transp. v. West, 240 Ga. App. 209, 210 (1) (523 SE2d 63) (1999).

       Both young men had been drinking beer before going out onto the lake and also while they were boating. At the time of the incident, Wagner was age twenty, and Pierce was about two years older.

        Porter v. Southern R. Co., 73 Ga. App. 718, 721 (1) (37 SE2d 831) (1946).

        Kirkland v. Moore, 128 Ga. App. 34, 35 (195 SE2d 667) (1973).

        Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993).

        Smith v. Curtis, 226 Ga. App. 470, 471 (1) (486 SE2d 699) (1997).

        Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 139 (3) (308 SE2d 378) (1983).

        Allstate Ins. Co. v. Justice, 229 Ga. App. 137, 140 (3) (493 SE2d 532) (1997).


author: Phipps, Judge.

text:
    A00A2406.
    LEDFORD v. THE STATE.
    (545 SE2d 396)
   Phipps, Judge.

Following a bench trial, Joyce Ledford was found guilty of two counts of drug trafficking and two counts of possession with intent to distribute. She was sentenced to twenty years, to serve ten years in prison, and a fine of $200,000. Ledford contends that the trial court should have allowed her to file an out-of-time motion to suppress because she was not represented by counsel at arraignment and was unaware of any deadline for pre-trial motions. She argues that the State failed to show that she knowingly and voluntarily waived her right to counsel at arraignment and asserts that her failure to file a timely motion to suppress “directly resulted in her conviction and her unknowingly giving up her only defense” to the charges against her. Although the record contains a transcript of the hearing on Ledford’s motion for extension of time to file a motion to suppress, her arraignment apparently was not reported. We reverse because there is no evidence that Ledford knowingly and voluntarily waived her right to counsel at arraignment, and therefore the trial court abused its discretion in denying her motion for extension of time to file a motion to suppress.

Ledford appeared pro se at arraignment and entered a plea of not guilty. The trial judge did not ask why she was proceeding without counsel and did not inform her of any time requirements for filing pre-trial motions. There is no evidence that Ledford was made aware of her right to counsel or of any of the dangers of proceeding without counsel.

Before trial, Ledford secured an attorney to represent her. Her lawyer filed a motion for an extension of time in which to file a motion to suppress, asserting that Ledford lacked counsel at arraignment despite her “best efforts to obtain legal representation” and that she was not capable of filing motions herself. Attached to the motion was a motion to suppress that argued that the drugs that led to Ledford’s arrest were seized in an illegal search of her residence. This was Ledford’s only defense.

After a hearing, the trial court denied Ledford’s motion for an extension of time. The court noted that Uniform Superior Court Rule 31.1 requires that all pre-trial motions be filed at or before arraignment, unless the judge grants an extension in writing. The court acknowledged that Ledford was not told of this deadline at arraignment, but refused to grant an extension because Ledford had “failed to exercise reasonable diligence in either seeking appointment of counsel or in retaining counsel between the time of her arrest and the time of her arraignment so that motions might be timely filed pursuant to Rule 31.1.”

Defendants charged with felonies in state courts have “an unconditional and absolute constitutional right” to counsel. The right attaches at the pleading stage of the criminal process and clearly extends to arraignment. Arraignment is a critical stage in a criminal prosecution in this state not only because the defendant must enter a plea, but also because USCR 31.1 mandates that pre-trial motions be filed at or before arraignment. A defendant who lacks a lawyer at arraignment may not be aware of or capable of meeting USCR 31.1’s deadline and, like Ledford, risks forfeiting the right to file important pre-trial motions.

USCR 30.2 requires the trial judge, before arraignment, to “inquire whether the accused is represented by counsel and, if not, inquire into the defendant’s desires and financial circumstances.” If the defendant wants an attorney but is indigent, USCR 30.2 states that the judge “shall authorize the immediate appointment of counsel.”

After having been advised of the right to counsel, a defendant who is not indigent may waive the right to counsel by failing to secure representation in a timely manner. We have held that when a nonindigent defendant who wants a lawyer appears for trial without one, “the trial judge has a duty to delay proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.”

There is nothing in the record showing that Ledford was advised of her right to counsel and the dangers of proceeding without counsel at any time prior to arraignment. Therefore, the record does not support a finding that Ledford “failed to exercise reasonable diligence” in securing representation “between the time of her arrest and the time of her arraignment.”

A defendant may waive the right to counsel “only by voluntary and knowing action,” and the trial judge “must indulge every presumption against waiver.” In determining whether a waiver of counsel is knowing and voluntary, the judge

must investigate as long and as thoroughly as the circumstances of the case demand. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, and the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.

Because arraignment is a critical stage in a criminal prosecution, the judge must determine, at arraignment, whether an unrepresented defendant is making a knowing and voluntary waiver of the right to counsel and whether the proceedings should be delayed to allow the defendant to seek appointed or retained representation.

The State bears the burden of proving that a defendant’s waiver of counsel is valid, and we review the trial court’s ruling on that issue for abuse of discretion. In this case, the judge did not ask Led-ford at arraignment why she was appearing pro se, whether she wanted a lawyer, or whether she could afford one. Moreover, Ledford testified that no one informed her that by entering a plea at arraignment she was waiving her right to file pre-trial motions. This was especially critical in her case because she unknowingly waived the right to file a motion to suppress allegedly illegally seized evidence and thereby lost her only defense to the charges against her. Because Ledford was not made aware of her right to counsel and the dangers of proceeding pro se at arraignment, we cannot say that she knowingly and voluntarily waived her right to counsel at that critical stage. The trial court abused its discretion by ruling otherwise. Accordingly, we reverse Ledford’s conviction and remand the case for further proceedings consistent with this opinion.

Decided February 7, 2001.

Whitmer & Law, George H. Law III, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

Johnson, P. J., and Smith, P. J., concur.

       (Punctuation omitted.) Hasty v. State, 215 Ga. App. 155, 158 (2) (450 SE2d 278) (1994).

        Callaway v. State, 197 Ga. App. 606, 607 (398 SE2d 856) (1990).

        Carswell v. State, 244 Ga. App. 516, 521 (4) (534 SE2d 568) (2000).

       See Parks v. McClung, 271 Ga. 795, 798 (524 SE2d 718) (1999) (recognizing that right to counsel is important to defendant who must decide whether to plead guilty).

        Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d 231) (1987).

       (Punctuation omitted.) Callaway, supra at 607-608; see also Martin v. State, 240 Ga. App. 246, 250 (3) (523 SE2d 84) (1999).

       (Citation and punctuation omitted.) Callaway, supra.

        Robertson v. State, 162 Ga. App. 873, 875 (293 SE2d 477) (1982).

       (Citations and punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991).

       Id. at 358.

        McQueen v. State, 240 Ga. App. 15, 17 (522 SE2d 512) (1999).

       Compare Bache v. State, 208 Ga. App. 591, 592 (431 SE2d 412) (1993) (concluding that defendant suffered no harm from appearing pro se at arraignment because he “fail[ed] to explain what ‘motions, demurrers, and pleas’ would have enhanced his defense” and trial counsel filed no such documents).

       Compare Burnett, supra at 541 (holding that nonindigent defendant was not entitled to warning about dangers of proceeding pro se where he had invoked his right to counsel at trial and thus was aware of such dangers).


author: JOHNSON, Presiding Judge.

text:
    A00A2498.
    SMITH et al. v. GWINNETT COUNTY.
    (545 SE2d 147)
   JOHNSON, Presiding Judge.

A Gwinnett County recorder’s court found C. W. Smith and Bobby Cochran guilty of violating a Gwinnett County ordinance. Smith and Cochran appealed the convictions by filing a petition for writ of certiorari in the State Court of Gwinnett County. In the petition, Smith and Cochran raised the sufficiency of the evidence and other grounds. Gwinnett County moved to dismiss the petition. It claimed that Smith and Cochran had failed to assert errors by the trial court with specificity, urged that the correct burden of proof had been applied by the recorder’s court, and essentially denied Smith and Cochran’s other allegations. After hearing arguments, the state court dismissed the petition without stating its reasons for doing so. Smith and Cochran appeal from that dismissal.

1. Smith and Cochran correctly contend that the state court lacked jurisdiction to consider their petition for writ of certiorari. As this Court recently decided, a state court is without jurisdiction to consider a petition for writ of certiorari from a conviction in the recorder’s court. Instead, such an appeal is to be made by writ of certiorari to the superior court. The state court, therefore, lacked jurisdiction over the case.

Where an appeal is filed in a court which has no jurisdiction to entertain it, dismissal is proper. Because the state court dismissed Smith and Cochran’s appeal, there was no error.

Decided February 7, 2001.

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellants.

Kristina H. Blum, Melinda K. Wells, Karen G. Thomas, Rosanna M. Szaho, for appellee.

This Court cannot indulge Smith and Cochran’s request that we review the recorder’s court decision on the merits. There is no right of direct appeal from a county recorder’s court to the Court of Appeals. The recorder’s court decision is reviewable only by application for a writ of certiorari in superior court, and review of the superior court’s decision thereafter is only by discretionary appeal application to this Court. These procedures have not been followed.

2. In light of the foregoing, Smith and Cochran’s enumeration of error concerning the state court’s admission of certain evidence is moot.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       We note that Smith and Cochran did not waive this argument by filing the petition in the state court; a judgment on a matter not within a court’s jurisdiction is void, even if the appellant erroneously filed the petition in that court, and even if he did not challenge jurisdiction below. Smith v. Gwinnett County, 246 Ga. App. 865, 866 (1) (542 SE2d 616) (2000).

       Id.

       Id. at 867 (1) (b); see generally Henson v. DeKalb County, 158 Ga. App. 348, 349 (280 SE2d 393) (1981).

        Zornes v. State, 262 Ga. 757, 759 (2) (426 SE2d 355) (1993); see generally In the Inter

        est of A. D. B., 232 Ga. App. 697 (503 SE2d 596) (1998); Henson, supra.

        Russell v. City of East Point, 261 Ga. 213 (403 SE2d 50) (1991).

        Henson, supra; Castor v. DeKalb County, 180 Ga. App. 772 (350 SE2d 487) (1986).


author: Mikell, Judge.

text:
    A00A2510.
    PROJECT CONTROL SERVICES, INC. v. REYNOLDS et al.
    (545 SE2d 593)
   Mikell, Judge.

Plaintiff Project Control Services, Inc. (“Project Control”) is a small business that provides professional services, such as scheduling and cost budgeting, for complex projects. The five defendants are current or former employees of Westinghouse Savannah River Company (‘Westinghouse”). Project Control filed this action in the Superior Court of Columbia County, and the amended complaint alleges four counts: (1) violations of the Georgia Public Accountancy Act; (2) violations of the South Carolina Accountancy Act; (3) interference with economic relationships; and (4) fraud, misrepresentation, and false pretenses. The court granted the defendants’ motion to dismiss. This appeal followed. We affirm the dismissal.

Construed most favorably to Project Control as the nonmoving party, the pleadings demonstrate that Westinghouse contracted with the U. S. Department of Energy (“DOE”) to manage and operate the DOE Savannah River Site facility in South Carolina. The prime contract between Westinghouse and the DOE provided that Westinghouse would perform or have performed audits of the accounts and records of subcontractors with cost reimbursable elements in their prices.

Project Control entered into three subcontracts with Westinghouse for work on the Savannah River Site. Each subcontract provided for the inspection and audit of Project Control’s accounts and records by Westinghouse and the DOE. The subcontracts also contained forum selection clauses requiring that any disputes be litigated in South Carolina and choice of law provisions stating that federal law would control, or, if there was no applicable federal law, that South Carolina law would apply.

Project Control requested that the Defense Contract Audit Agency (“DCAA”), the governmental entity which performs audits for the DOE, perform the required audit; however, defendant Abbey Evans, an employee of Westinghouse, declined to refer the audit to the DCAA and directed Project Control to permit the audit by Westinghouse employees. The defendants participated in the audit of Project Control’s records as employees of Westinghouse.

During the audit, a number of cost elements were questioned. Project Control did not supply documentation to resolve the questioned costs to the satisfaction of the auditors. The attempted audit was not completed, and the three subcontracts expired. After the unfinished audit, Project Control discovered that none of the named defendants were registered, certified, or licensed as public accountants in Georgia or any other state. As a result, Project Control believed that the audit was illegally performed and alleged that it incurred damages including loss of good will, the costs associated with its participation in the audit, and lost profits resulting from potential contracts for which Project Control could not compete due to the ongoing audit.

Project Control first filed a lawsuit against Westinghouse in federal district court in Georgia, alleging breach of contract, breach of implied duty of good faith and fair dealing, and interference with business relationships; the suit was transferred to federal district court in South Carolina. Subsequently, Project Control filed the present action in superior court against the individual defendants. The federal jury in South Carolina returned a verdict in favor of Westinghouse during the pendency of this appeal.

1. On appeal, Project Control first argues that the trial court erred in dismissing the action based on its conclusion that Project Control could not establish a cause of action under the Georgia Public Accountancy Act based on the conduct alleged in the complaint. We disagree.

Our review of the grant of a motion to dismiss is de novo. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim. Mattox v. Yellow Freight Systems, 243 Ga. App. 894 (534 SE2d 561) (2000). Under this standard, we will assume, based on Project Control’s complaint, that the defendants were not licensed public accountants when they performed the audit. See Cellular One v. Emanuel County, 227 Ga. App. 197, 198 (489 SE2d 50) (1997). However, our review of the relevant statutes demonstrates that Project Control cannot maintain an action against these defendants.

The practice of public accountancy is regulated by the Georgia Public Accountancy Act of 1977 (the “Act”), OCGA § 43-3-1 et seq. Under the Act, the State Board of Accountancy (the “Board”) is granted the authority to promulgate rules and regulations governing the practice of public accountancy. OCGA §§ 43-3-3; 43-3-5 (a). The Act requires that a public accountant be registered and hold a permit. OCGA § 43-3-35. However, it also specifies that certain practices are excepted from its requirements. OCGA § 43-3-36 (b) provides in pertinent part that:

Nothing contained in this chapter shall prohibit any person from offering to perform or performing for the public, for compensation, any of the following services: ... (4) Internal verification and analysis of books or accounts of original entry; (5) The preparation of unaudited financial statements, schedules, or reports; (6) The devising and installing of systems or methods of bookkeeping, internal controls of financial data, or the recording of financial data. . . .

Significantly, Rule 20-2-.il of the Rules & Regulations of the State of Georgia defines the practice of public accountancy as follows:

“Practice of or practicing public accounting” shall be deemed and construed to mean offering to perform or performing for a client one or more types of services involving the use of accounting or auditing skills, or one or more types of management advisory or consulting services, or the preparation of tax returns or the furnishing of advice on tax matters, while holding oneself out in such manner as to state or imply that one is a licensee.

We conclude that the conduct alleged in the complaint does not constitute the practice of public accountancy as contemplated by the Act. The Supreme Court recognized in Mayor &c. of Savannah v. Canady, 255 Ga. 23, 24 (334 SE2d 693) (1985), that the Act itself does not expressly define the practice of public accounting. In that case, the Court held that a licensed certified public accountant (“CPA”) who was employed by a firm of CPAs and listed in the telephone directory as a CPA was engaged in the practice of public accounting. Conversely, we have held that a privately employed accountant was not subject to statutory licensing requirements. Stephens v. Parrino & Ware, 138 Ga. App. 634, 636 (5) (226 SE2d 809) (1976). The defendants in the case sub judice performed the audit as a matter of private agreement pursuant to the subcontracts between Project Control and Westinghouse. Project Control does not allege that the defendants held themselves out as licensed public accountants, or that they performed accounting services for clients. Rather, acting at all times as employees of Westinghouse, the defendants merely verified and analyzed Project Control’s books and accounts for the benefit of Westinghouse. Therefore, their conduct as alleged in the complaint did not violate the Act.

Based on this conclusion, it is not necessary for us to determine whether the Act provides a private right of action to recover damages for its violation. We recognize that such a determination would be an issue of first impression for this Court; however, we do not reach it because it is not necessary to the disposition of this case.

2. Project Control also argues that it may maintain a cause of action under a similar statute in South Carolina that governs the practice of public accountancy. Because a portion of the audit was performed in South Carolina, Project Control has alleged violations of that statute as well. Again, we find no error in the court’s dismissal of the complaint.

Like the Georgia Public Accountancy Act, the South Carolina statutes establish licensing requirements for public accountants. S.C. Code Ann. §§ 40-2-170; 40-2-200; 40-2-550. They prohibit unlicensed persons from holding themselves out as public accountants. S.C. Code Ann. § 40-2-50. Furthermore, like the Georgia Act, the South Carolina statutes exempt certain internal examinations from regulation, S.C. Code Ann. §§ 40-2-50 (A), (C), (D); 40-2-530 (6), and vest enforcement power in a board of accountancy. S.C. Code Ann. §§ 40-2-70; 40-2-140; 40-2-310; 40-2-350.

As we concluded in Division 1, the conduct alleged in the complaint does not constitute the practice of public accountancy. Accordingly, the trial court properly dismissed the counts of the complaint alleging violations of the South Carolina statute as well.

3. Next, Project Control argues that the trial court erred in holding that it could not maintain a cause of action under OCGA § 51-1-6. This argument has no merit.

That Code section provides:

When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

“[OCGA § 51-1-6] does not create a cause of action, of course; it simply authorizes the recovery of damages for a breach of a legal duty.” City of Buford v. Ward, 212 Ga. App. 752, 755 (3) (443 SE2d 279) (1994). We conclude that the trial court properly dismissed Project Control’s OCGA § 51-1-6 claim because the defendants did not owe Project Control a legal duty.

Project Control argues that the defendants’ performance of the audit authorized a private right of action under OCGA § 51-1-6, because their alleged violation of the Georgia Public Accountancy Act constituted the breach of a legal duty owed to Project Control. As a preliminary matter, we find that the defendants’ alleged conduct was not the practice of public accountancy and, thus, did not violate the Act, as we held in Division 1.

However, Project Control further contends that the defendants were liable under OCGA § 51-1-6, even in the absence of a violation of the Act, because they breached the legal duty they owed to Project Control as a result of their roles as auditors. We disagree and find that the defendants did not owe Project Control a legal duty. The audit was performed by the individual defendants during the course of their employment with Westinghouse and according to the subcontracts between Project Control and Westinghouse. Thus, Project Control was not a client of the defendants, and their performance of the audit did not establish an independent legal duty. Compare Badische Corp. v. Caylor, 257 Ga. 131, 133 (356 SE2d 198) (1987) (holding that professional liability for negligence of public accounting firm extends to limited class of persons who the public accountants were actually aware would rely on prepared financial statements). Any legal duty owed to Project Control would be the result of its subcontracts with Westinghouse, and it has already unsuccessfully sued Westinghouse in a separate action. Accordingly, the trial court properly dismissed the complaint on this ground.

4. Project Control next assigns error to the court’s dismissal of its claim of interference with economic relationships. It argues that the defendants induced Westinghouse and others to sever their relationships with Project Control in violation of OCGA § 51-12-30.

We conclude, however, that the trial court properly dismissed this claim. First, OCGA § 51-12-30, cited by Project Control in its appellate brief, concerns joint and several liability of joint tortfeasors and does not establish a cause of action for interference with economic relationships.

Furthermore, the defendants’ alleged conduct does not support Project Control’s claim of interference with economic relations.

To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show that the defendant (1) acted improperly and without privilege, (2) purposely and with malice and intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.

(Citation omitted.) Green v. Johnston Realty, 212 Ga. App. 656, 659-660 (4) (442 SE2d 843) (1994). Significantly, Project Control failed to allege improper or malicious conduct. Accordingly, the facts alleged by Project Control cannot support a claim of interference with economic relationships. Id.

5. Finally, Project Control argues that the court erred in dismissing its claims for fraud, misrepresentation, and false pretenses. Again, we disagree and affirm the dismissal.

In its amended complaint, Project Control alleges that defendants Aubrey Reynolds, Mark Osborn, Lee Burkhart, and J. G. Long represented themselves as being “qualified, competent, authorized, and adequately and properly trained to perform an audit of Project Control’s financial records, information, and costs.” Project Control contends that this representation was false, because the defendants were not licensed public accountants. However, we do not find that the representation as alleged was false, as Project Control does not contend that the defendants represented that they were licensed public accountants. Thus, Project Control has failed to allege any basis for its claims for fraud, misrepresentation, and false pretenses. See OCGA § 51-6-1.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided February 7, 2001.

Smith, Currie & Hancock, Karl F. Dix, Deborah R. Murphey, Dorsey R. Carson, Jr., for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellees.

       Aubrey Reynolds, Mark Osborn, Lee Burkhart, J. G. Long, and Abbey Evans.

       The district court ruled that the Westinghouse auditors were not required to be licensed as a matter of law; therefore, the jury did not consider that issue. The jury found that Westinghouse was not liable to Project Control on its claims of breach of implied duty of good faith and fair dealing, intentional interference with economic relations, interference with prospective contractual relationships, and breach of subcontracts.

       S.C. Code Ann. § 40-2-50 et seq.


author: Smith, Presiding Judge.

text:
    A00A2158.
    SCOGGINS v. THE STATE.
    (545 SE2d 19)
   Smith, Presiding Judge.

We granted the application of Robert Clayton Scoggins for an interlocutory appeal of the trial court’s order denying his motion to suppress. Because the search of Scoggins’s car after he fled from a traffic stop and then attempted to flee on foot was permissible as a search incident to arrest, we affirm on that basis and do not reach the issue of whether an inventory search was properly conducted.

‘Where the evidence on a motion to suppress is uncontroverted and credibility is not an issue, we review the evidence and the application of the law thereto de novo, construing all evidence in favor of the trial court’s judgment.” (Footnotes omitted.) Almond v. State, 242 Ga. App. 650 (530 SE2d 750) (2000). The evidence in this case shows without dispute that a Georgia State Patrol officer was on patrol in Paulding County when he encountered a green Camaro traveling at a high rate of speed. After obtaining a radar reading of 78 mph in a 55-mph zone, the officer turned his patrol car around, activated his blue lights, and attempted to stop the Camaro. The driver fled, made an abrupt left turn into a nearby auto body shop, and drove to the rear of the building. When the officer arrived, no one was inside the car, which had been parked in front of some garage doors. The officer quickly searched the area and noticed that one of the doors was partially open. When he pulled on the door, it rolled up, and he saw a man later identified as Scoggins standing just inside the door “face to face” with him.

Another person in the building identified Scoggins as the owner of the green Camaro. The officer asked Scoggins for identification, and he responded “that he didn’t need a driver’s license, that he wasn’t driving a vehicle. And I asked him for I.D. I didn’t ask him for any driver’s license or anything.” Scoggins then went directly to the green Camaro and retrieved a Georgia identification card from inside. When the officer asked him why he had tried to elude the traffic stop, Scoggins responded that his license was suspended. At that point, the officer attempted to pat Scoggins down, and Scoggins pushed him away and fled back inside the building. The officer radioed for assistance and then pursued Scoggins, subdued and handcuffed him, and placed him in the back of his patrol car.

The officer then looked inside the green Camaro, testifying that he did so because of Scoggins’s conduct in speeding and fleeing both in his car and on foot. He saw a cardboard box on the rear seat, and when he lifted the box the bottom fell out, revealing two large blocks of what appeared to be marijuana. Most of the encounter, including the search, was recorded on the patrol car’s videocamera, and the tape was reviewed by the court. According to the timer on the videotape, between eight and nine minutes elapsed from the officer’s arrest of Scoggins to his discovery of the marijuana.

The United States Supreme Court has addressed the issue of searches incident to the lawful arrest of the occupant of a motor vehicle. In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the police found cocaine in the pocket of a jacket found on the backseat of an automobile after the occupants had been arrested and removed from the vehicle. Id. at 456. The Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnotes omitted.) Id. at 460. This is true even “after the arrestees are no longer in it.” Id. at 459. In so holding, the Supreme Court reversed the decision of the New York Court of Appeals, which had held that the search of the jacket was not incident to a lawful arrest when the automobile was no longer accessible to the occupants. Id. at 456.

In numerous subsequent cases, this court has relied upon Belton to reach the same conclusion in similar circumstances. See, e.g., Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999); State v. Haddock, 235 Ga. App. 726, 728, n. 2 (510 SE2d 561) (1998); State v. Elliott, 205 Ga. App. 345, 346 (422 SE2d 58) (1992).

We note that Fortson v. State, 262 Ga. 3 (412 SE2d 833) (1992), contains a statement that our decision in State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982), held that “a search incident to an arrest was not allowable after the defendant was safely secured in the back of the police car.” 262 Ga. at 5 (2). But a review oí Hopkins shows that this court held exactly the opposite, finding that Belton, supra, established a “ ‘single standard’ ” permitting a search of the passenger compartment of a vehicle incident to arrest even when the arrestee no longer had access to the vehicle or its contents. Hopkins, supra, 163 Ga. App. at 144. The language cited by Fortson appears to have been taken from the dissent.163 Ga. App. at 145-146 (1) (Shulman, P. J., dissenting). Also, a portion of the analysis in a case decided by this court after Hopkins is instructive:

Decided January 17, 2001

Reconsideration denied February 8,2001

King, King & Jones, David H. Jones, for appellant.

James R. Osborne, District Attorney, Elizabeth L. Larson, Assistant District Attorney, for appellee.

This court has held that a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a recent occupant of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.

(Citations and punctuation omitted; emphasis in original.) Sims v. State, 197 Ga. App. 214, 215 (2) (398 SE2d 244) (1990), citing State v. Hopkins, supra, 163 Ga. App. at 141 (2). We therefore conclude that the obiter dictum in Fortson has no effect on the Belton rule and that the search in this case was valid “as an incident to a lawful custodial arrest of a person who had recently occupied the vehicle that was searched. [Cits.]” Haddock, supra, 235 Ga. App. at 728, n. 2.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

       In Fortson, the Supreme Court affirmed the denial of a motion to suppress on the ground that the search was properly performed incident to a lawful arrest.

        Hopkins was an 8-1 decision, with one judge concurring in the judgment only.