text:
    A96A1055.
    RICHARDS v. THE STATE.
    (476 SE2d 598)
   Smith, Judge.

Fred Lester Richards was indicted on charges of aggravated assault (OCGA § 16-5-21), aggravated battery (OCGA § 16-5-24), false imprisonment (OCGA § 16-5-41), simple assault (OCGA § 16-5-20 (a) (2)), and battery (OCGA § 16-5-23.1). He appeals his convictions of aggravated assault, two counts of battery, and simple assault.

1. Richards contends the evidence was insufficient to support his convictions. Viewed to support the verdict, evidence was presented that on July 26, 1994, at about 9:00 p.m., Richards, who had been drinking alcohol, shoved his girl friend onto the floor in their home and began pulling out “chunks” of her hair and repeatedly hitting her on either side of her head with his open hand. She testified that he also “grabbed my throat and choked me” and added that “he squeezed it so tight that I think I passed out momentarily.” As Richards struck her on the head, one of her eardrums burst. The next morning, Richards “slapped” her to the floor and kicked her. He also held a “restaurant knife” to her throat and threatened to kill her with it. Since the knife was not sharp, the victim testified that she thought her death would be “extremely painful” and would “last a long time.” She escaped when a repairman came to their home.

(a) The indictment charged Richards with aggravated assault “by placing his hand and hands around the neck of [the victim] and choking her, said hands being a deadly weapon.” Richards contends that the evidence was not sufficient to convict him of aggravated assault because his hands were not used as deadly weapons. We disagree.

Although hands and fists are not deadly weapons per se within the meaning of OCGA § 16-5-21, a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances. Durden v. State, 219 Ga. App. 732, 735 (3) (466 SE2d 641) (1995). Whether hands are used as a deadly weapon is a jury question. Quarles v. State, 130 Ga. App. 756, 757 (2) (204 SE2d 467) (1974). Here, evidence was presented that Richards used his hands to choke his victim and that she passed out as a result. This evidence was unquestionably sufficient to authorize a rational trier of fact to find Richards guilty of aggravated assault under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) Richards also contends that the evidence was insufficient to convict him of battery because a perforated eardrum is not substantial physical harm or visible bodily injury, as contemplated by OCGA § 16-5-23.1. He argues that the victim’s eardrum healed completely within two or three weeks of the injury and that her hearing was completely restored. Whether or not a victim of intentional injury by another heals from his or her injuries is not the test of whether the victim suffered substantial bodily harm. Undoubtedly, many victims physically heal from cuts, bruises, broken bones, or other injuries inflicted upon them. Under Richards’s theory, perpetrators of injuries from which victims recover could never be convicted of battery. We reject the notion that the offense of battery is committed only when the victim sustains injuries that never heal.

The question of whether substantial bodily injury occurred is instead a question of fact for the jury to decide. The victim testified that when she was struck on the side of her head, she heard “a real loud noise” and that she initially experienced sharp pain. The doctor who examined her after the incident testified that she was nauseated when he examined her and that she indicated that her “head and ears were buzzing or sound[ing] funny.” He observed a bruise on her left eardrum and a hole in her right eardrum. Although the victim’s hearing may have been restored after the incident and although the initial sharp pain she suffered may have dissipated, her testimony and that of the physician was sufficient evidence from which the jury could determine that she suffered substantial bodily injury and that her injury was visible. The evidence was sufficient to support Richards’s conviction of battery under the standard of Jackson v. Virginia, supra.

(c) The indictment charged Richards with simple assault by committing “an act which placed [the victim] in reasonable apprehension of immediately receiving a violent injury” by holding a kitchen knife to her throat. Richards contends the evidence was not sufficient to convict him of this offense because the knife was not sharp. In support of this contention he cites the victim’s testimony that she knew the knife was not sharp. He conveniently fails to mention her additional testimony that she was afraid her death would be long and painful due to the dullness of the knife. Whether this apprehension was reasonable was for the jury to decide. This Court determines sufficiency of the evidence and does not weigh it or determine the credibility of witnesses. See, e.g., Pennamon v. State, 216 Ga. App. 306, 307 (1) (454 SE2d 192) (1995). The victim testified that she feared for her life, and this evidence was sufficient for a rational trier of fact to find Richards guilty of assault under the standard of Jackson v. Virginia, supra.

(d) Richards’s contention that the evidence did not support his conviction for the second count of battery is not supported by citations to the record, argument, or citations to authority and is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

2. Richards contends that evidence of two similar transactions was erroneously admitted because the transactions did not meet the requirements of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). We disagree. Evidence was presented that in separate incidents in late 1990, Richards beat two other girl friends in a manner similar to the attacks for which he was tried and inflicted similar injuries on those girl friends. The State sought to introduce the evidence to show intent, course of conduct when dealing with women, and Richards’s bent of mind, and to corroborate the testimony of the victim in this case. Although corroboration of testimony is not a recognized purpose for the admission of similar transaction testimony in cases not concerning sex crimes, the other reasons for which the State sought to introduce the testimony are all permissible purposes for introducing evidence of such transactions. See, e.g., Morrill v. State, 216 Ga. App. 468, 475 (11) (454 SE2d 796) (1995).

Contrary to Richards’s argument, the fact that a nolle prosequi was entered as to the charge in the second similar transaction does not establish that the State failed to prove he committed the offenses. “The mere entry of nolle prosequi does not indicate an absence of the commission of a criminal act or forever clear one of the charges brought against him. A nolle prosequi is a cessation of prosecution for the nonce, but it may spring into life again and be continued again with all of the fervor and energy at the command of the prosecuting officers. ... A nolle prosequi does not adjudicate either the innocence or guilt of the accused unless the accused has been placed in jeopardy.” (Citations, punctuation, and emphasis omitted.) Drake v. State, 170 Ga. App. 846, 847 (1) (318 SE2d 721) (1984).

3. Richards contends the trial court erroneously allowed introduction of hearsay testimony regarding the second similar transaction. Detective Escher of the Cherokee County Sheriffs office testified that he was involved in the investigation of the incident. He interviewed the victim shortly after the incident, and she stated to him that Richards attacked her. Assuming without deciding that the victim’s statement was hearsay, its admission was harmless error in light of the overwhelming evidence of Richards’s guilt. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Evidence of Richards’s guilt, other than the hearsay statement of one of the similar transaction victims, was provided “by a witness with immediate and personal knowledge” (citation and punctuation omitted), Head v. State, 220 Ga. App. 281, 283 (3) (469 SE2d 406) (1996), the victim in this case herself. She unequivocally identified Richards as her assailant. In addition, the victim of the first similar transaction bearing striking similarities to the incident at issue here likewise identified Richards as the man who attacked her. Moreover, Detective Escher testified that he interviewed Richards, who admitted that he struck the victim of the second transaction, knocked her to the ground, and kicked her. Consequently, even if erroneous, it is highly improbable that the admission of the hearsay statement contributed to the guilty verdict, and we find no reason for reversal on this ground. See Johnson, supra.

Decided August 28, 1996

Reconsideration dismissed September 24, 1996.

Dyer & McElyea, Ellen McElyea, for appellant.

4. Relying on his arguments regarding the admissibility of the second similar transaction, Richards contends the trial court erroneously admitted photographs of the victim of that incident. In light of our conclusions in Divisions 2 and 3, supra, this contention is moot.

5. Richards complains that the trial court erred in allowing the State to argue that similar transaction testimony could corroborate the victim’s testimony. Although the State did mention that evidence regarding one of the similar transactions corroborated the victim’s testimony, this argument was abandoned upon Richards’s objection and the trial court’s conclusion that similar transactions are not admissible for corroboration purposes. Richards did not raise further objection, ask for curative instructions, or move for mistrial at the time the alleged improper conduct occurred. He therefore did not preserve the issue for appellate review. See generally Johnson v. State, 197 Ga. App. 384, 385 (2) (398 SE2d 432) (1990).

Judgment affirmed.

Andrews, J, and Senior Appellate Judge Harold R. Banke concur.

Garry T. Moss, District Attorney, Margaret E. Daly, Rachelle L. Strausner, Assistant District Attorneys, for appellee.

       He also observed many bruises on her neck, around her ears, on her throat, on her thigh, on her shoulder and hand, on her chest, on her ankle, and on her elbow.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A1597.
    WATSON et al. v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY.
    (476 SE2d 620)
   McMurray, Presiding Judge.

In this action for declaratory relief, plaintiff Progressive Northwestern Insurance Company has been called upon to defend and pay any judgments in civil tort actions filed against defendant Scott. The actions stem from an incident in which an automobile, driven by Scott, struck and killed a pedestrian. Watson as the administratrix of the deceased’s estate and as guardian of deceased’s surviving daughter filed actions against Scott and others in state and federal courts.

The automobile driven by Scott when he struck the pedestrian was owned by his employer, the Federal Bureau of Investigation. Scott was a field agent to whom the employer-owned car had been assigned for several months and who regularly used the automobile in the course of performing his duties for his employer.

The policy issued by plaintiff to Scott provided liability coverage for Scott with respect to an accident involving any car listed on the declarations page of the policy or otherwise defined as insured car, for persons who operated an insured car with Scott’s permission, and for Scott while driving a non-owned car with permission. A non-owned car was any car, other than an “insured car,” and “which is not owned by or furnished or available for regular or frequent use” by Scott.

Plaintiff maintained that it was not obligated to provide coverage to Scott because the employer-owned vehicle he was driving at the time of the underlying incident was neither an insured car nor a non-owned car. Summary judgment was granted to plaintiff and Watson appeals. Held:

1. It is uncontroverted that the employer-owned car was not an insured car as defined in the policy issued to Scott. Also, there is ample evidence that the employer-owned car was furnished and available to Scott for regular and frequent business use, and in fact was driven on a daily basis for this purpose. Scott was allowed to use the employer-owned vehicle to drive to and from work but was not allowed to use it for personal use at all.

There is no suggestion that Scott was covered under plaintiff’s policy for the daily business use of his employer’s car. But, the record does not disclose whether, at the time of the underlying incident, Scott was driving the employer-owned vehicle for business or personal use and Watson maintains that plaintiff’s policy afforded coverage for Scott’s infrequent personal use of the employer-owned car. This contention which is predicated entirely upon the non-owned automobile clause is supported by citations to cases from other jurisdictions and does not directly conflict with any Georgia case of which we are aware. See American Southern Ins. Co. v. Golden, 188 Ga. App. 585 (373 SE2d 652); Mattox v. Cotton States Mut. Ins. Co., 156 Ga. App. 655, 657 (275 SE2d 667).

Decided September 9, 1996

Reconsideration denied September 24, 1996

Finch, McCranie, Brown & Hendrix, Andrew T. Rogers, for appellants.

Shur & McDuffie, Brett F. Shur, Downey & Cleveland, Joseph C. Parker, Dupree, Johnson & Poole, Hylton B. Dupree, Jr., A. Gregory Poole, for appellee.

Nonetheless, we must affirm the judgment of the superior court without reaching the issue of first impression submitted. Questions as to the effect of the exclusion concerning non-owned cars furnished or available for frequent or regular use do not arise until there is some coverage afforded under the policy to which the exclusion may relate. Under the policy at issue no coverage was provided for Scott’s use of a non-owned car without permission and the uncontroverted evidence is that Scott did not have permission to use the employer-owned car for any personal errand, thus, there was no coverage afforded Scott during any personal use of the employer-owned car.

2. In a second enumeration of error, Watson maintains that the grant of summary judgment in favor of plaintiff was error because an indispensable party, the federal government, was not included in the litigation. In applying the usual two part test for an indispensable party, we find that relief may be afforded plaintiff without the presence of the federal government and that this case may be decided on the merits without predjudicing the rights of the United States. This enumeration is without merit. Halta v. Bailey, 219 Ga. App. 178, 179 (1) (464 SE2d 614).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


author: McMURRAY, Presiding Judge.

text:
    A96A1613, A96A1614.
    LEDBETTER v. LEDBETTER; and vice versa.
    (476 SE2d 626)
   McMURRAY, Presiding Judge.

The following chronology is relevant to the disposition of these appeals. Plaintiff A. W. Ledbetter, Jr. and defendant-cross-claimant R. H. Ledbetter are brothers and longtime business partners. In 1973, pursuant to a written agreement, they formed the A. W. Jr. and R. H. Ledbetter partnership for the purpose of real estate investment and property development (“the partnership”). Profits and losses were to be evenly divided, but neither partner was to receive any “compensation for services rendered to the partnership.” The partners shared “equal rights in the management of the partnership business, and each partner [was to] devote such of his time and energies to said business as is agreed upon from time to time by both partners.” But neither partner, without the consent of the other, was to “borrow or lend money. . . .” The partnership’s holdings included a shopping center (Village Plaza which includes the Village Theater location), a mall (Riverbend Mall), a K-Mart, and a residential development (Cloudland Property).

In 1988, the brothers created the Georgia corporation, Ledbetter Brothers, Inc. (“LBI”), with plaintiff as the chairman of the board and chief executive officer. At his deposition, plaintiff affirmed that LBI, pursuant to written agreements with the partnership, “handled the property management for the partnership properties.” As chairman of the board of LBI, plaintiff “did not oversee the daily operation of the corporation. The corporation [LBI] handled all of the bookkeeping, all of the leasing, all of the sales of real estate, all of the collection of rents, and [plaintiff’s] job was one of taking care of problems when they came up.” Plaintiff affirmed that defendant R. H. Ledbetter, “as president of [LBI] handled the day-to-day management of the partnership properties.” The partnership agreement was twice amended in an attempt to address the brothers’ different management philosophies. Under the June 2, 1988 amendment to the partnership agreement (“the first amendment”), the brothers agreed to improve and sell certain partnership property; divide the cash; repay approximately $2,300,000 in partnership debt owed to LBI; and then “completely sever their partnership and other business relationships.” Defendant was designated the managing partner. Each brother “releases and forgives the other for all claims arising out of or associated with [any] disputed matters for all times up to the applicable time established in [the first amendment].” “All expense accounts submitted by either party to the Partnership and/or LBI shall be paid promptly. Any problem that either party has with an entry on any expense account of the other party shall be immediately discussed with said party.”

The February 24, 1989 amendment to the partnership agreement (“the second amendment”) similarly provided: “All of the Partnership Properties of the Partnership will be sold and the Partnership will be terminated. The Partnership and LBI will be liquidated and dissolved. Liquidation and winding up of the Partnership shall commence upon the sale of Riverbend and the Parties shall proceed to wind-up the Partnership as soon as practicable thereafter taking into consideration good and sound business and tax factors.” Robert H. Ledbetter Properties, Inc. (“RHLPI”), defendant’s real estate company, was granted the exclusive listing for the sale of each of the partnership’s properties, but only for a limited time.

Dr. Gary Smith, an investor, initiated the instant action in August 1990 against both A. W. Ledbetter, Jr. and R. H. Ledbetter. That lawsuit concerned the Village Theater and a lease for the property that Dr. Smith was negotiating. These claims eventually were settled, and Dr. Smith dismissed his action with prejudice. The defendant brothers, however, made numerous cross-claims against each other for alleged wrongdoing which remained pending, so the trial court realigned the parties. Plaintiff alleged that R. H. Ledbetter breached the partnership agreement, misappropriated partnership opportunities, and breached his fiduciary duty. Plaintiff demanded $250,000 plus attorney fees and costs as compensatory damages plus punitive damages. Defendant R. H. Ledbetter’s counterclaim against plaintiff alleged that plaintiff A. W. Ledbetter, Jr. also breached the partnership agreement as modified by “obtaining and then using a bank card to unilaterally charge non-Partnership purchases to and obtain cash from the Partnership bank account for personal use, without the approval of either [defendant] or [George] Slickman.” Defendant also sought punitive damages and the expenses of litigation.

After lengthy discovery, cross-motions for summary judgment were made. The trial court granted partial summary judgment to defendant on several issues, but denied summary judgment in part, “limiting the [viable] claims of the plaintiff to whether or not the defendant violated the terms of the partnership agreement with self-dealing so far as the Village Theater lease is concerned and denying the partnership opportunities so far as the Kroger property is concerned.” The trial court also granted partial summary judgment as to liability in favor of defendant under OCGA § 9-11-56 (a) on his claim that plaintiff improperly charged unapproved expenses to the partnership, while leaving the exact amount for jury determination. This appeal followed. In Case No. A96A1613, plaintiff A. W. Ledbetter, Jr. appeals from the partial grant of summary judgment. In Case No. A96A1614, defendant R. H. Ledbetter cross-appeals from the partial denial of summary judgment. Held'.

Case No. A96A1613

1. Plaintiff first contends the trial court erred in granting summary judgment against his claim that defendant “breached his fiduciary duty by wilfully interfering in the sale of partnership property.” The basis for this claim is the allegation that defendant tried to use his wife as a straw entity to buy the Village Theater property, which, plaintiff contends, amounts to impermissible self-dealing.

The trial court held that plaintiff does not have any claim against defendant as an individual for any alleged mismanagement of the partnership operation nor for any breach of the Exclusive Agency Agreement, because such management was LBI’s contractual responsibility. The trial court further ruled the alleged “denying the partnership opportunities” with regard to the Kroger property and alleged “self dealing” with regard to the Village Theater lease were for a jury to decide. In our view, this latter ruling renders plaintiff’s first enumeration moot, since the question regarding defendant’s alleged breach of fiduciary duty remains for the jury to decide.

2. Plaintiff next contends the trial court erred in “declaring as a matter of law that Plaintiff breached an expense approval requirement in the partnership agreement, and by denying Plaintiff’s cross-motion for partial summary judgement against this same claim.” In granting partial summary judgment (as to liability only) on this claim, the trial court’s order recites: “plaintiff has acknowledged that he used the [partnership’s] check card for his personal use and has further stated that the amounts involved in this use should be charged against his partnership account.”

Paragraph 16 of the second amendment to the partnership agreement provided: “A list of all past and current accounts payable of the Partnership, LBI and all unreimbursed expenses of [defendant], [plaintiff] or related entities claimed to be reimbursed expenses of the Partnership or LBI will be submitted to [George] Slickman for review and, upon Slickman’s approval, paid or reimbursed by the Partnership or LBI, as the case may be. Slickman shall approve or disapprove each item submitted based upon his sole determination of (a) the accuracy of the amount, (b) the purpose of the expenditure and whether it was an ordinary and necessary expenditure for the business of the Partnership and/or LBI and (c) the reasonableness of the expenditure. Slickman’s decision shall be binding upon the Parties. If an expenditure or payable is not approved, then its payment shall be borne by the party authorizing the expenditure ([defendant] or [plaintiff]).” As to “future expenses” incurred up to the sale of the partnership properties, paragraph 17 (d) of the second amendment to the partnership agreement states: “All expenses for maintenance, repairs (other than agreed to repairs at Village), furniture, fixtures, equipment and other expenditures shall be submitted, in advance, to [George] Slickman for approval and authorized upon approval by [defendant R. H. Ledbetter] and [George] Slickman. . . .” Paragraph 30 gave each party an opportunity to submit differences of opinion or of interpretation to Mark Levick (“Levick”) of the firm of Altman, Kritser & Levick, P.C., “to review the Agreement and the contentions of the Parties as to the interpretation and meaning of the Agreement . . . , which shall be binding upon the Parties. . . .”

At his deposition, plaintiff affirmed his understanding that there were contractual guidelines for obtaining prior approval for certain types of expenses to be reimbursed by the partnership: “[MR. FARROW]: [T]here is a provision in the February ’89 agreement that provides for George Slickman to review expenses. Do you recall that? [PLAINTIFF:] Yes, sir, I agree with that. [MR. FARROW]: And the procedure was that an expense by either partner would be submitted to Mr. Slickman and then he would review the expense; is that correct? [PLAINTIFF]: Correct. [MR. FARROW]: And then the other partner would have the opportunity to object to that expense if they wanted to; is that correct? [PLAINTIFF]: That’s correct.” Plaintiff further affirmed that “the whole idea behind this was once Mr. Slickman approved the expenses, then that decision was binding on the two partners.” Plaintiff admitted that small items such as a $16.38 purchase he made from Radio Shack and “expensed to the partnership as an office expense . . . should have been submitted to George Slickman[, . . . but were] not submitted.” Plaintiff further agreed that a charge from the Intercontinental Hotel in Washington, D.C. for $1,460.93, where plaintiff stayed with his wife and son during a franchise convention “wasn’t submitted to George Slickman[, . . . although] it should have been submitted to [him].” Plaintiff “did [not] contact anybody that [he] met at that convention afterwards[, . . . and] [d]id [not] follow up at all with any letters or conversations. . . .” Plaintiff also sought partnership payment of a travel expense for “a meeting at Troutman & Sanders with Governor Sanders [. . . which expense] wasn’t submitted to George Slickman.” Expenses for the “repair and maintenance of [plaintiff’s] BMW . . . and ... a rental car from Smyrna . . . were expensed to the partnership at [plaintiff’s] instruction [. . . but] were not submitted to George Slickman.”

Contrary to plaintiff’s contentions, there is no ambiguity in the contractual provisions for independent approval by George Slickman of all expenses allegedly attributable to the business of the partnership. The record in the case sub judice is replete with examples whereby plaintiff admitted he failed to comply with those established contractual provisions yet sought reimbursement. The trial court did not err in granting defendant’s motion for partial summary judgment as to plaintiff’s personal liability for such expenses, as a matter of contract between the parties, while reserving the exact calculation of the final amount for jury resolution. See, e.g., Burlington Air Express v. Ga. Pacific Corp., 211 Ga. App. 113, 115 (5) (438 SE2d 97). This enumeration is without merit.

3. Plaintiff next contends the trial court, “erred by denying summary judgment against Defendant’s punitive damages demand,” arguing that punitive damages cannot be based on a breach of contract.

“Unless otherwise provided by law, exemplary damages shall never be allowed in cases arising on contracts.” OCGA § 13-6-10. But “ ‘[e]ven in an action for breach of contract, where there [are] matters of record relating to fraud, punitive damages can be awarded, for “(f)raud, if found, is tortious conduct.” (Cits.)’ Clark v. Aenchbacher, 143 Ga. App. 282, 284 (1) (238 SE2d 442) (1977).” Maddox v. Brown, 200 Ga. App. 492, 494 (5) (408 SE2d 719). “The perpetration of a fraud is one of the specific reasons for allowance of punitive damages. [Cits.]” Champion v. Martin, 124 Ga. App. 275, 276 (2), 277 (183 SE2d 571). In the case sub judice, defendant alleged that plaintiff made material misrepresentations with intent to deceive while breaching his fiduciary duties. If these contentions are believed by the jury, they would constitute legal fraud, authorizing the imposition of punitive damages. Four Oaks Properties v. Carusi, 156 Ga. App. 422 (1) (b) (274 SE2d 783); W. H. Mulherin Constr. Co. v. Betterton, 135 Ga. App. 223, 224 (2) (217 SE2d 454). The trial court correctly denied plaintiff’s motion for summary judgment as to defendant’s claim for punitive damages arising out of an alleged breach of fiduciary duty.

Case No. A96A1614

4. In his cross-appeal, defendant R. H. Ledbetter enumerates the trial court’s denial of his motion for summary judgment regarding plaintiff’s allegations of self-dealing regarding the Village Theater lease. He contends there was no breach of fiduciary duty, no misappropriated partnership opportunity, nor breach of contract arising out of his wife’s negotiations with Dr. Smith to buy the executory portion of the Village Theater lease from the bankruptcy estate of the original tenant, arguing that the Village Theater lease was not a partnership opportunity. We disagree.

“The mere fact that one reposes trust and confidence in another does not create a confidential relationship. Tn the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.’ Dover v. Burns, 186 Ga. 19, [24 (1),] 26 (196 SE 785).” Lewis v. Alderman, 117 Ga. App. 855 (1) (162 SE2d 440). But in certain “relationship[s] of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58. In the case sub judice, the parties owe each other the utmost good faith as between partners. Additionally, LBI and RHLPI, the exclusive broker, owe the utmost good faith to the partnership and its partners, because of the relationship of principal and agent. Equity requires agents to exercise “the highest degree of good faith as to all matters connected with the property committed to their care. [Cit.]; Stubinger v. Frey, 116 Ga. 396.” Oliver v. Oliver, 118 Ga. 362, 369-370 (45 SE 232).

Decided September 10, 1996

Reconsideration denied September 24, 1996

Sumner & Anderson, William E. Sumner, Gerald K. Domescik, Marguerite E. Patrick, David A. Webster, for appellant.

Troutman Sanders, Daniel S. Reinhardt, Scott A. Farrow, David C. Vigilante, Paul T. Carroll III, for appellee.

“Without the express consent of the principal after a full knowledge of all the facts, an agent employed to sell may not himself be the purchaser; and an agent to buy may not himself be the seller.” OCGA § 10-6-24. “The policy of the law forbids an agent employed to sell [realty] to place himself in an attitude of antagonism to the interest of his principal, by associating himself with another in the purchase of the land.” Reeves v. Callaway, 140 Ga. 101, 103 (2), 105 (78 SE 717). In our view, the trial court correctly determined that genuine issues of material fact remain as to whether defendant R. H. Ledbetter, or any entity he controlled, was acting in a manner detrimental to the best interests of the partnership, in violation of the partnership agreement and the fiduciary duty imposed by law, by permitting his wife to acquire an interest in the Village Theater lease. Wilensky v. Blalock, 262 Ga. 95, 97 (3), 98 (414 SE2d 1). Although the evidence does not demand a finding that R. H. Ledbetter breached the duty he owed to his partner, plaintiff A. W. Ledbetter, Jr., as plaintiff’s agent for the sale of the partnership property, it would nevertheless authorize such a finding. Johnson Realty v. Hand, 189 Ga. App. 706, 707 (1), 708 (377 SE2d 176). Consequently, the trial court correctly denied defendant’s motion for partial summary judgment.

Judgment affirmed in the main appeal, Case No. A96A1613, and also in the cross-appeal, Case No. A96A1614.

Johnson and Ruffin, JJ, concur.


author: Andrews, Judge.

text:
    A96A0872.
    ALLSTATE INSURANCE COMPANY v. HENDRIX.
    (476 SE2d 644)
   Andrews, Judge.

Allstate appeals the trial court’s order in a declaratory judgment action finding that it must provide coverage under the provisions of a personal umbrella policy. We reverse.

The underlying dispute in this case arose out of a car accident in which Hendrix, who was riding a motorcycle, ran into a car driven by Robert Cummings. The car was owned by Charles and Joyce Buis, and Joyce Buis had given Cummings permission to drive it.

The Buises are no longer parties to the lawsuit. Although the original complaint named the Buises and alleged they were liable under the family purpose doctrine, both parties now stipulate that the car was not given to Cummings under the family purpose doctrine, and the complaint against the Buises has been dismissed.

The joint stipulation of undisputed material facts further states that Cummings was engaged on a personal errand at the time of the accident and the car was not negligently entrusted to Cummings. Accordingly, there are no allegations that the Buises are legally obligated for any injuries or property damage arising out of the accident.

Cummings’ insurance company tendered its policy limits of $50,000. Allstate tendered the $100,000 policy limits under the Buises’ automobile insurance policy since Cummings was covered under that policy as a permissive driver. However, Hendrix also claimed that Cummings was an insured under a $1,000,000 personal umbrella policy issued by Allstate to Mr. and Mrs. Buis.

The applicable policy provisions are as follows:

“6. ‘Insured’ means:

a) you, and

b) any person related to you by blood, marriage or adoption who resides in your household.

When We Pay

Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.

Losses We Cover

Coverage applies to an occurrence arising only out of:

1. personal activities of an insured including the lending by an insured of a land vehicle or watercraft owned by an insured.”

Although Hendrix is correct when he contends the umbrella policy states that it provides for losses due to the lending of a vehicle by the insured, this creates no ambiguity in the instant case unless this portion of the policy is lifted out of context. See Serrmi Products v. Ins. Co. of Pennsylvania, 201 Ga. App. 414, 415 (411 SE2d 305) (1991). When the policy is construed as written, including the “When We Pay” provision, the language becomes clear and unambiguous. “[A]n unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured.” (Citations omitted.) Woodmen of the World Life Ins. Society v. Etheridge, 223 Ga. 231, 235 (154 SE2d 369) (1967).

Decided September 24, 1996

Downey & Cleveland, Russell B. Davis, Richard A. Griggs, for appellant.

Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., Cynthia B. Pearson, for appellee.

Accordingly, the policy states that Allstate provides coverage if the insured or a member of his household is legally obligated to pay damages as a result of a loss. In that event, Allstate will pay if, inter alia, the loss arises out of an occurrence in which the insured has lent his land vehicle or watercraft.

A holding that the insurance company was also required to extend coverage to losses for which the named insured or members of his household were not legally obligated would amount to an extension of coverage for which the insurer had not bargained and would, in effect, rewrite the contract. See Serrmi, supra. Thus, as there are no allegations that the Buises are in any way legally obligated for Hendrix’s injuries and Cummings does not fit within the definitions of those insured under the policy, Allstate is not required to provide coverage for this accident under the Buises’ personal umbrella policy.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


text:
    A96A1080.
    MITCHELL v. THE STATE.
    (476 SE2d 639)
   McMURRAY, Presiding Judge.

Defendant Mitchell appeals his convictions of three counts of aggravated assault and three counts of armed robbery. Held:

1. The first enumeration of error challenges the sufficiency of the evidence to authorize defendant’s conviction. Since the aggravated assault convictions and the armed robbery convictions arose from two incidents divided by some interval of time, they will be addressed separately.

The armed robberies occurred when defendant and an accomplice approached three individuals sitting on the porch of a residence. The accomplice held what appeared to be a handgun while defendant collected the victims’ money. Evidence that defendant did not possess a weapon, told one of the victims during the robbery that he had “nothing to do with it,” and had no money in his possession when later arrested did not preclude defendant’s conviction. Nor was defendant’s acquittal required by evidence that the gun used by the accomplice was a pellet pistol which could not fire and that defendant had taken the pellet pistol from the accomplice while he struggled with one of the armed robbery victims. All of the evidence which defendant recites in support of his argument that the evidence was not sufficient to authorize the convictions on three counts of armed robbery presented, at most, issues of fact for resolution by the jury. There was ample evidence from which a rational trier of fact could conclude that defendant was guilty beyond a reasonable doubt of the three counts of armed robbery.

The three convictions of aggravated assault arose from a later incident during which defendant pointed what appeared to be a handgun at the three victims of this crime and threatened to kill them. After defendant’s arrest it was discovered that the “gun” used by defendant was a pellet pistol which could not fire. Based on this evidence, defendant maintained that there was no evidence that he used a “deadly weapon” and thus no evidence authorizing his conviction of aggravated assault with a deadly weapon. See OCGA § 16-5-21 (a) (2). But the proper test is whether the pellet pistol used by defendant reasonably appeared to the victim to be a deadly weapon. See Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305), approving of the holding in Watts v. State, 142 Ga. App. 857, 858 (4) (237 SE2d 231). Since there was ample evidence that the pellet pistol was very similar in appearance to a real handgun and that the victims thought it was a real handgun, defendant’s conviction of three counts of aggravated assault was authorized by the evidence.

The evidence adduced at trial was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of three counts of aggravated assault and three counts of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The first enumeration of error lacks merit.

2. When asked to describe what had happened during the armed robbery, one of the victims testified as to the accomplice putting a gun to his head and stated that “I know the reputation they got for shooting people. . . .” The unsolicited remark concerning reputation was interrupted by defense counsel’s objection and the trial court’s instruction to the jury that the question in the case concerned whether defendant was guilty or not guilty, that anything said about anyone’s reputation was not to be considered, and directing the jury to “consider the case based on the evidence that you’re supposed to consider, not this last remark. . . .” While defense counsel moved for a mistrial subsequent to the trial court’s instructions, we find no error in the denial of that motion. The decision to give curative instructions to the jury rather than grant the mistrial request following the introduction of bad character evidence was within the discretion of the trial court and was not error. Williams v. State, 262 Ga. 422, 423 (5) (420 SE2d 301).

Decided September 24, 1996.

Robert B. Whatley, for appellant.

Peter J. Skandalakis, District Attorney, David S. McLaughlin, Assistant District Attorney, for appellee.

3. The remaining enumerations of error complain of alleged errors in the jury charge. But these enumerations of error have not been preserved for appellate review. If the trial court asks whether or not there are objections to the charge, counsel must state either his objections or reserve the right to object on motion for new trial or on appeal. Here, defense counsel did neither, stating that he had no objections to the jury charge. Pruitt v. State, 258 Ga. 583, 590 (14) (373 SE2d 192).

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A96A1600.
    HOWARD v. MILLER et al.
    (476 SE2d 636)
   Birdsong, Presiding Judge.

Dr. D. Robert Howard filed suit against William G. Miller, Jr., other officials of the State Board of Medical Examiners, other state employees including assistant attorneys general, and a private physician, Dr. Talbott, for damages arising out of the suspension of his license to practice medicine and his authorization to prescribe controlled substances.

As we view the pleadings and evidence in favor of Dr. Howard on defendants’ motions to dismiss (Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 874 (463 SE2d 713)), the evidence shows that on May 11, 1993, while Howard was at his home, a state investigator called and asked to meet at Howard’s office. When Howard arrived, four state investigators served him with an order issued by the medical board and signed by defendant Miller, who was Joint Secretary of the State Examining Boards. The order suspended Howard’s authority to prescribe controlled substances. This was the first notice Howard received of any such planned action, but he later learned that six months earlier some defendants had voted to take this action. The investigators imposed upon him to surrender his DEA registration. He was also served with notice of the commencement of formal charges alleging he improperly prescribed controlled substances to thirteen patients, but the most recent incident was seven months earlier, which negated any emergency requiring defendants’ summary actions on May 11, 1993. On May 12, a defendant board member told Howard to undergo a 96-hour inpatient evaluation, which Howard did immediately. This evaluation, performed by defendant Talbott, an addictionologist, resulted in no findings negative to Dr. Howard, but on May 13 before the evaluation was performed, some defendants voted to suspend Howard’s license to practice medicine on grounds that he was “impaired” because of addiction, under OCGA § 43-1-19 (a) (10). Despite Talbott’s fruitless findings, the defendants suspended Howard’s right to practice medicine in Georgia by order of May 17, 1993, without a hearing or notice of charges of impairment, thus completely destroying his livelihood.

In fact, defendants brought no formal charges and set no date for a hearing until after Dr. Howard filed suit in federal court under 42 USC § 1983 against most defendants sued in this case. On August 10, 1993, Fulton County Superior Court reinstated Howard’s license to practice medicine, but he still could not practice medicine because he did not have a DEA registration.

On August 16, 1993, a hearing officer dismissed the original charges against Howard for prosecutorial misconduct by the attorney general’s office and for the lack of expert testimony by the State. On that same day, however, with the damage suit pending against him in federal court, defendant Miller commenced a second proceeding alleging Howard to be “impaired.” Miller assigned this proceeding to a hearing officer who was hired by Miller because (as alleged by Howard) he was related to a politician for whom Miller worked before becoming Joint Secretary of the State Examining Boards. In November 1993, on advice of the attorney general’s office, the board reversed the first hearing officer’s dismissal of the proceedings and reinstated the original charges, but .because defendants were unable to get an expert witness to testify that Dr. Howard improperly prescribed controlled substances. However, the board never again scheduled any hearing on the reinstated charges. Counsel for the medical board offered to settle all charges against Howard upon entry of a consent order. Dr. Howard agreed to this because as a result of defendants’ actions he had lost his jobs and could not financially afford to litigate the board’s charges. The consent order reinstated his medical license and DEA authorization on his agreement to compíete a course in prescribing controlled substances and, for a period of five years, submit to review of his records, refrain from consuming mood-altering substances except as approved by the board, submit to random invasive physical tests, give a copy of the consent order to any physician or assistant with whom he associated and to any institution with which he became associated. This consent order provides that it “shall not be construed as an admission on the part of respondent of the truth of any of the facts stated in the notices of hearing.”

The consent order was executed January 6, 1994, two days after the federal court dismissed Howard’s suit on grounds of immunity. (By amendment in April 1994, the federal court limited this disposition to the federal claims, preserving any state claims. This state court suit was filed on May 8, 1995.)

In January 1996, the trial court dismissed Dr. Howard’s suit against all defendants, ruling that Howard failed to file the ante litem notice required by OCGA § 50-21-26 (a) (1) and that the Tort Claims Act (OCGA § 50-21-24) provides immunity for state defendants sued in official capacities and bars any claim against a state employee in his individual capacity. Further, the trial court held that the consent order entered by Dr. Howard in January 1994 settled all matters pending before the board and by consenting thereto Howard “waived his right to complain of any injuries resulting therefrom.” As to defendant Talbott, the trial court held that Howard failed to state a claim of conspiracy, particularly as Talbott never actually testified against Howard. Howard appeals. Held:

1. The arguments on appeal are confused because much of the argument addresses Howard’s insistence that he sued defendants as individuals and that therefore the State Tort Claims Act giving immunity to state employees does not apply to his suit. The defendants add to the confusion by insisting they were sued as state employees and by arguing their immunity is based on old federal cases, while fairly ignoring our State Tort Claims Act and such cases as Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476).

(a) The State Constitution provides: “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” (Emphasis supplied.) Ga. Const., Art. I, Sec. II, Par. IX (d), as amended.

The State Tort Claims Act waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” OCGA § 50-21-23 (a).

This express waiver of immunity for torts of state officers and employees is made in recognition of the “inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.” OCGA § 50-21-21 (a). One exception to the waiver is stated in OCGA § 50-21-24 (9): “The state shall have no liability for losses resulting from: ... (9) [licensing powers or functions, including . . . the issuance, denial, suspension or revocation of [a license or] similar authorization.” Dr. Howard could not file suit against the State for any act of its employees.

(b) Dr. Howard could not file suit against the State because he failed to send ante litem notice to the State within 12 months of the date his loss was discovered or should have been discovered, as required by OCGA § 50-21-26. Ante litem notice is a condition precedent to the filing of any suit for which the law requires it. See City of Chamblee v. Maxwell, 264 Ga. 635, 636 (452 SE2d 488).

(c) It may be surmised that Howard’s failure to serve ante litem notice is the reason he did not name any defendant as a state employee or official and is the reason he contends he sued them all individually. Whatever the case, Howard could not sue state employees individually. The legislature specifically recognized “that the proper functioning of state government requires that state officers and employees be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets” (Emphasis supplied.) OCGA § 50-21-21 (b). Moreover, OCGA § 50-21-25 (a) provides: “[The State Tort Claims Act] constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” (Emphasis supplied.) Furthermore, OCGA § 50-21-25 (b) provides that a person suing the State for damages resulting from the acts of a state employee acting in the scope of his employment “must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission for which the state is liable under this article, the state government entity for which the state officer or employee was acting must be substituted as the party defendant.”

Accordingly, the State Tort Claims Act provides individual immunity for state employees, in keeping with its intent and purpose stated in OCGA § 50-21-21. State employees are not subject to lawsuit or liability “arising from the performance or nonperformance of their official duties or functions”; this allows them to be free to act without fear of losing their personal assets. (Emphasis supplied.) OCGA § 50-21-21 (b). We have no equivalent to 42 USC § 1983, which gives a claim against a state officer individually for certain unconstitutional acts.

Decided September 24, 1996

Harold D. Corlew, Cynthia L. Montgomery, for appellant.

Love & Willingham, Kimberly L. Woodland, John A. Gilleland, Randolph P. Powell, Jr., Rubin, Winter, Rapoport & Hall, Robert G. Rubin, Michelle B. Rapoport, for appellees.

Because of the specific immunity given by OCGA §§ 50-21-21 (b) and 50-21-25 to state employees as individuals for liability “arising from the performance or nonperformance of their official duties or functions” (OCGA § 50-21-21), Dr. Howard was required to sue defendants in their official capacities or not at all. Because he did not serve the required ante litem notice, he could not sue them in their official capacities. Accordingly, his claims against them individually were properly dismissed.

2. The dismissal of Howard’s claim against Talbott was not error. Howard concedes that consideration of his claims against Talbott depends on an alleged conspiracy with the other defendants. See U S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (443 SE2d 833). Even if any diagnosis by Talbott after his evaluation of Dr. Howard was without basis, the fact remains that Talbott never testified against Dr. Howard, and the acts of the “state” defendants complained of by plaintiff were done independently of Talbott.

We affirm the trial court’s ruling that Howard had no right to file a damages suit either against the State or against the defendants individually.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A96A1751.
    DURANT v. THE STATE.
    (476 SE2d 641)
   Judge Harold R. Banke.

Julian Bruce Durant was convicted of two counts of aggravated stalking, two counts of littering, and one count of criminal trespass. On appeal, Durant enumerates three errors.

Durant pleaded guilty to burglarizing the Mother’s Love Day Care Center (“the Center”) and was sentenced to ten years’ probation. While on probation, Durant initiated telephone and in person contact with Lynn Ross, the Center owner. Initially, the contact between them was both sporadic and amicable with Ross offering moral support to Durant and Durant bringing her cookies. Finally, sometime in the spring of 1994, Ross ordered Durant to leave the Center and then complained to law enforcement authorities about him. Durant’s probation was amended, and he was ordered to “avoid all contact, either in person or by phone, with any day care facility.”

After the amendment of Durant’s probation, Ross testified that the Center became the target of numerous acts of vandalism including the placement of diapers soiled with feces on the Center’s property and mailbox, acid poured on some of the Center’s shrubbery, and the attachment of a bumper sticker stating, “Child Molestation is My Job” on the Center’s van. Tim Ross, Lynn Ross’s husband, discovered a spiked wooden board placed across the private driveway of their home along with baby diapers strewn about the property.

Eric Morris, Durant’s former friend and roommate, testified that Durant became “obsessed with getting back” at the Rosses. Morris testified that Durant had confided plans of retaliation against the Rosses and the Center. Durant told Morris that he followed Ross home to discover where she lived. Morris admitted that he was with Durant when Durant placed the spiked board across the driveway, poured muriatic acid on the shrubs, and drove to the Center to take photographs.

During a search of Durant’s bedroom, investigators discovered photographs of the Center, bumper stickers matching the one placed on the van, books concerning revenge, muriatic acid, soiled baby diapers, and a board scientifically identified by an expert witness as having been cut from the same piece of wood as the spiked board placed on the Rosses’ driveway. Held-.

1. Durant contends that the State failed to prove one of the aggravated stalking counts because it failed to establish that he intentionally contacted the victim at the Center in order to harass or intimidate her as alleged in Count 1 of the indictment. Count 1 alleged that between the dates of May 18, 1994, and June 30, 1994, the exact date being unknown, Durant “entered upon the premises of Mother’s Love Child Care Center and contacted Lynn Ross at said day care center without the consent of Lynn Ross for the purpose of harassing and intimidating [her]. . . .”

Aggravated stalking, OCGA § 16-5-91 (a) requires, inter alia, making non-consensual contact with another person “for the purpose of harassing and intimidating the other person.” Contact means to get in touch with and communicate with another person. Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994). “ ‘[H]arassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose.” OCGA § 16-5-90 (a).

The State’s evidence failed to show that Durant made any contact with Ross or performed any act of an harassing or intimidating nature between the dates set forth in Count 1 of the indictment. Ross’s testimony and the other evidence related to incidents occurring between January 1, 1995, and March 11, 1995, the dates alleged in Count 2. In fact, Ross testified that at the time of the diaper incident in January 1995, she did not even suspect Durant as being the perpetrator. Nor did the State offer any evidence that Ross was “in reasonable fear of death or bodily harm” at the hands of Durant during the period alleged in Count 1. Compare Robinson v. State, 216 Ga. App. 816 (1) (456 SE2d 68) (1995) (victim feared for her life having endured defendant’s telephone calls, threatening letter, and other misdeeds). It is undisputed that Durant’s actions involving the bumper sticker, acid, and the spiked board occurred between mid-February and March 7, 1995, and obviously support the second count of aggravated stalking.

This failure of proof is not a minor deviation involving an inexact, unknown, unascertainable date. Compare Keri v. State, 179 Ga. App. 664, 668 (4) (347 SE2d 236) (1986). Instead, the lack of evidence shows a complete variance between the charges alleged and the evidence offered. As a general rule, the allegations and proof must correspond in order “(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense. [Cit.]” Talbot v. State, 198 Ga. App. 636, 637 (402 SE2d 366) (1991).

The evidence was not sufficient to authorize a rational trier of fact to find the essential elements of aggravated stalking in Count 1. OCGA § 16-5-91. Compare Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Because the State failed to offer any evidence in support of the allegation framed in Count 1 of the indictment and the State’s evidence only supported the second count of aggravated stalking, the State violated Durant’s protection against multiple prosecutions for the same conduct. Talbot, 198 Ga. App. at 637. Accordingly, Durant’s conviction as to Count 1 must be reversed.

2. The trial court did not abuse its discretion in denying Durant’s motion for mistrial despite the improper placement of his character in evidence. Langham v. State, 263 Ga. 750, 751 (2) (438 SE2d 623) (1994). Prior to trial, the State requested a ruling on the admissibility of a copy of an accusation to which Durant had pleaded guilty and been sentenced for two counts of burglary. One count was the burglary of the Center, and the other count was an unrelated burglary of a physician’s office building. The trial court overruled Durant’s objection that the document impermissibly placed his character in evidence. After Durant’s probation officer identified the accusation and testified that it charged Durant with two counts of burglary, Durant objected and moved for a mistrial. The officer’s testimony did not specifically mention the burglary of the doctor’s office or indicate that both counts did not involve the Center. During the hearing on this motion, the prosecutor offered to redact the accusation to reflect only the burglary of the Center and to not elicit any testimony concerning the other, unrelated burglary conviction. Defense counsel did not ask for remedial instructions or other relief and renewed the motion for a mistrial.

Decided September 24, 1996.

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

Although evidence of the burglary conviction of the Center was admissible, admission of the other, unrelated burglary conviction was plainly error since Durant had not first placed his character in issue. OCGA § 24-9-20 (b). However, based on the overwhelming evidence of Durant’s guilt and the remedial measures taken, we find that it is highly probable that the error did not contribute to the jury’s verdict. Query v. State, 217 Ga. App. 61, 63 (3) (456 SE2d 704) (1995).

3. The trial court did not err by refusing to admit evidence of Morris’s nolo contendere plea to criminal trespass. Durant sought to introduce the conviction to impeach Morris who testified as a witness for the State. But because misdemeanor criminal trespass is not an offense involving moral turpitude, its exclusion was proper. Barker v. State, 211 Ga. App. 279, 280 (4) (438 SE2d 649) (1993).

Judgment affirmed in part and reversed in part.

Andrews and Smith, JJ., concur.


author: Eldridge, Judge.

text:
    A96A2160.
    THE STATE v. BARNES.
    (476 SE2d 646)
   Eldridge, Judge.

The State appeals the order of the trial judge from the State Court of Cobb County granting appellee’s plea in bar and the subsequent dismissal of the accusation charging appellee with the offense ofDUI.

During the jury trial, Officer Christie Lynn Dale, a two-year veteran of the Cobb County Police Department, testified that she had been dispatched to an auto accident call at Cardell Road in Cobb County; Officer Dale was not the first officer called to the scene, and by the time she arrived, the vehicles involved in the accident were empty. Appellee, swaying and smelling strongly of alcohol, was standing alongside the cars.

Officer Dale had been instructed prior to trial not to mention anything she might have been told by other persons who were present on the scene, as this information would be inadmissible hearsay; therefore, Dale was unable, through her own testimony, to place appellee behind the wheel of one of the cars involved in the accident, although she was aware that he had been through information given to her from a bystander, James Freeman. Mr. Freeman was not available to testify at trial.

After court had concluded for the day, Officer Dale expressed to the prosecutor her frustration that, because of the hearsay rule, she had been unable to convey to the jury the extent of her knowledge of the incident; Officer Dale referred to her necessarily incomplete testimony as “lying” to the jury. Counsel for appellee overheard these comments and brought the matter to the court’s attention before trial commenced the next morning. Defense counsel’s position was that Dale’s comments reflected that her testimony on the previous day had been false and that the jury had a right to this information. All parties agreed that the officer’s reference to her testimony as “lying” was a proper subject for examination before the jury.

In an attempt to do “damage control,” the prosecutor brought up the issue during her redirect of Officer Dale. Dale explained “I was angry. I don’t remember my exact words. But the reason I feel the way I do is because I’ve been instructed — there’s things I can’t testify to. I can’t say — and I feel like I’m —.” Thereafter, defense counsel objected and made a motion for mistrial out of the presence of the jury on the grounds that Dale’s explanation implied that the officer was being forced to “hide” information from the jury; the trial court denied the motion; Dale was instructed to refrain from giving the impression that evidence was being “suppressed”; and the examination continued.

The prosecutor again asked the officer to explain to the jury the reason for her comments about lying; Officer Dale explained “[tjhere’s issues that I’ve been instructed not to discuss. And that’s really basically why I said what I said. It frustrates me. There’s things I can’t talk about.” Defense counsel made another motion for mistrial outside the presence of the jury on the same grounds as before; defense counsel’s argument included the notion that the officer should not have been allowed to explain her comments at all: “There is no reason for lying, Your [sic] Honor. She either said she lied or not.” A lengthy discussion ensued which included the trial court’s recognition of the validity of the officer’s obvious frustration: “Well, I understand it’s frustrating. But it’s something that the more — the longer you’re a police officer, maybe the easier it will be to deal with.” However, the trial court granted appellee’s motion for mistrial, finding that “the damage that has been done cannot be undone.”

At the subsequent hearing on appellee’s motion for plea in bar, the trial court determined that there had been no misconduct on the part of the State: “Ms. Kendall [prosecutor] was trying to somehow rectify what had happened the previous day outside the presence of the jury.” However, the trial court determined that Officer Dale had deliberately caused a mistrial because it was the officer’s day off. The trial court was provided with our decision in State v. Maddox, 185 Ga. App. 674 (365 SE2d 516) (1988) (narrow exception barring retrial after motion for mistrial does not extend to misconduct of police officer) and read it into the record. Nonetheless, the trial court determined that “in spite of the evidence — I mean in spite of the holding in State v. Maddox, I’m going to grant the plea in bar. I’m going to let — if the State wants to take it up, the State can take it up and see whether or not this is one of those cases that is going to extend this — extend the holdings regarding double jeopardy. ... I don’t think you can force a Defendant to trial over and over again because a police officer wants to be off that day.”

It appears to this Court that counsel for appellee may have induced any alleged error in this case; it would seem axiomatic that appellee may not assert on the record his intent to question Officer Dale about her extrajudicial comments and thereafter object to her legitimate explanations for those comments because the explanations proved to be more prejudicial than the comments were beneficial. “ £(A) party will not be heard to complain of error induced by his own conduct. . . . (Cits.)’ [Cit.]” Littlefield v. State, 197 Ga. App. 343, 344 (398 SE2d 375) (1990); Wells v. State, 185 Ga. App. 721 (365 SE2d 873) (1988); Cole v. State, 156 Ga. App. 6 (274 SE2d 64) (1980).

However, pretermitting the above and even assuming, arguendo, that the record supports the trial court’s determination, which it does not, this case falls squarely within our holding in Maddox, supra, and we decline the trial court’s invitation to “extend the holdings of double jeopardy” to encompass the granting of a plea in bar based on a mistrial caused by the conduct of a police officer. “We see no need to add gratuitously the extreme sanction of double jeopardy in the absence of genuine prosecutorial overreaching or similar judicial conduct.” Id. at 676.

Decided September 24, 1996.

Benjamin F. Smith, Jr., Solicitor, Keith M. Olmert, Cindi T. Yeager, Barry E. Morgan, Assistant Solicitors, for appellant.

Judson R. Knighton, for appellee.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


author: Johnson, Judge. Beasley, Chief Judge, RUFFIN, Judge,

text:
    A96A0956.
    MITCHELL v. THE STATE.
    (476 SE2d 604)
   Johnson, Judge.

Louise Dallas Mitchell was convicted of one count of violating the Georgia Controlled Substances Act. She appeals the denial of her motion for new trial. We affirm.

1. Mitchell challenges the sufficiency of the evidence to sustain her conviction. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court . . . does not weigh the evidence or determine witness credibility.” (Citation and punctuation omitted.) Powell v. State, 218 Ga. App. 556 (462 SE2d 447) (1995). So viewed, the evidence shows that undercover agent Jerald Dalton of the Georgia Bureau of Investigation went to Mitchell’s house, asked Mitchell to sell him some cocaine, and gave Mitchell $200. Mitchell then gave a quantity of crack cocaine to Dalton. After she was arrested and advised of her Miranda rights, Mitchell also signed a confession. This evidence is sufficient. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 218 Ga. App. 571, 572 (1) (462 SE2d 457) (1995).

2. Mitchell alleges that the trial court committed harmful error by allowing lead investigating officer James Perry to “violate the rule of sequestration.” Before testimony began Mitchell’s counsel asked that all witnesses, specifically including Perry, be sequestered, or that Perry be required to testify first if he was not sequestered. It is apparent from the colloquy between the court and defense counsel that Perry, as the lead investigating officer in the case, had remained in the courtroom to assist the prosecuting attorney during Mitchell’s first trial, which had ended in a hung jury. In this first trial, Perry had testified after other State witnesses, and it is apparent that defense counsel and the court expected the prosecution to desire Perry to remain in the courtroom at counsel table to assist the prosecutor during the second trial also. The trial court denied the sequestration request as to Perry on the ground that Perry had already testitled at the first trial and was therefore subject to impeachment if he changed his testimony. Perry was the second witness called by the State, was recalled for further testimony after Agent Dalton testified, and was called a third time after Mitchell testified. Mitchell objected to Perry’s being recalled after Dalton’s testimony, and the trial court overruled the objection.

OCGA § 24-9-61 provides: “[I]n all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude a witness.” However, “the trial court, in the exercise of its discretion, was authorized to permit the chief investigating officer to remain and assist in the orderly presentation of the State’s case.” Johnson v. State, 198 Ga. App. 316 (4) (401 SE2d 331) (1991). The trial court did not abuse its discretion in allowing the lead investigator to remain in the courtroom.

Mitchell also argues that it was error to allow Perry to be recalled to testify multiple times. Pretermitting the question of whether Mitchell’s enumeration of error was specific enough to raise this issue, the trial court has discretion to allow such repeated testimony by an unsequestered lead investigator. Dunbar v. State, 209 Ga. App. 97 (1) (432 SE2d 829) (1993). We find no abuse of discretion here.

3. Mitchell also alleges error in the court’s overruling of his objection to and motion to strike a comment by Agent Dalton, which Mitchell contends impermissibly expressed Dalton’s opinion that Mitchell was guilty. Dalton testified that he would not overstate his certainty in his eyewitness identification of Mitchell because “[m]y job is not to put innocent people in jail, only the people who commit these acts of crime.”

“Ordinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury.” Fordham v. State, 254 Ga. 59 (4) (325 SE2d 755) (1985). When a witness states such an impermissible opinion, however, the error may be cured by appropriate remedial action of the trial court. See Grayer v. State, 181 Ga. App. 845, 846 (1) (354 SE2d 191) (1987). Such an error may also be harmless where the evidence against the defendant is overwhelming, and the court instructs the jury that they alone are to decide the case’s outcome. See Nolton v. State, 196 Ga. App. 690, 691-692 (2) (396 SE2d 605) (1990).

In the case before us, any conclusion implied by Agent Dalton’s comment was merely cumulative of the obvious import of his explicit and proper testimony, summarized in Division 1 above. Moreover, the court charged the jury on the presumption of innocence; the State’s burden to prove guilt, including identity, beyond a reasonable doubt; the evaluation of identification testimony; the elements of the charged offense; and the jury’s exclusive responsibility to decide guilt or innocence. Any error in overruling this objection was thus harmless because, like the erroneous admission of conclusory testimony in Carroll v. State, 185 Ga. App. 857, 858-859 (1) (366 SE2d 232) (1988), “in the context of the other evidence it is highly probable that the error did not contribute to the judgment.” (Citation and punctuation omitted.) Id. at 858. See generally Palmer v. State, 186 Ga. App. 892, 901 (4) (369 SE2d 38) (1988).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J, Pope, P. J., Andrews and Smith, JJ., concur. Beasley, C. J., concurs specially. Blackburn and Ruffin, JJ., concur in part and dissent in part.

Beasley, Chief Judge,

concurring specially.

I agree with the logic of the dissent, but we are governed by Chastain v. State, 255 Ga. 723, 724 (2) (342 SE2d 678) (1986), which derives from earlier cases cited therein. See, in addition, Norman v. State, 255 Ga. 313, 316 (3) (338 SE2d 249) (1986); Davis v. State, 242 Ga. 901, 903 (3) (252 SE2d 443) (1979); Shaw v. State, 102 Ga. 660, 666 (5) (29 SE 477) (1897); Keller v. State, 102 Ga. 506, 508 (1) (31 SE 92) (1897).

The common law, and now statutory, right of sequestration is “a substantial and positive right.” Poultryland v. Anderson, 200 Ga. 549, 562 (2) (37 SE2d 785) (1946). The object of the rule is “to prevent one witness from being taught by another as to the testimony he should give.” Id. at 561-562 (2). It serves the truth-finding process by recognizing that witnesses are subject to being even subconsciously influenced by what another testifies under oath. The rule prevents an innocent shading as well as a deliberate falsification of testimony based on another’s testimony. See also O’Kelley v. State, 175 Ga. App. 503, 504 (1) (333 SE2d 838) (1985). Poultryland illustrates its application in civil cases; its application in criminal cases such as this one is even more critical because upon its proper application depends a person’s liberty.

As recognized by the dissent, the trial court may permit a witness to remain in the courtroom to advise the non-objecting party in the presentation of its case. Poultryland, supra. In this instance, the nature of the unsequestered witness’s testimony was not directly the alleged transaction. The witness was not a witness to it or involved in it. His testimony related instead to Mitchell’s inculpatory statement, which he obtained when she was arrested two months after the event and brought to the police station. The statement itself did not constitute a confession as to the particular sale charged but rather is constituted simply of defendant’s signature below the handwritten notation of the officer: “Admits having sold cocaine before, but says it wasn’t hers.”

Identity of Mitchell as the seller of cocaine to Agent Dalton, who saw the seller only on that one brief occasion, was the primary issue in the case, and there was conflicting evidence such as the description of the seller and of the house where the transaction occurred. The court did not specifically instruct the jury to consider the effect of witness Perry’s hearing of others’ testimony on weight and credit of that witness’s own testimony. See Johnson v. State, 258 Ga. 856, 857 (4) (376 SE2d 356) (1989), which recognizes the ameliorative effect of such a charge.

Although the record does not reveal the cause of the first mistrial, it does reflect that the jury at this second trial deliberated nearly four and one-half hours before reaching a verdict of guilty. Thus it is evident that the jury did not easily reach its verdict despite the trial being short. I find no clues which would lead to the conclusion that the non-sequestration was harmless. Denial of the right conferred by statute is “presumptively injurious.” Hall v. Hall, 220 Ga. 677, 679 (1) (141 SE2d 400) (1965). Compare Johnson, supra at 857 (4).

Nevertheless, we must defer to the trial court’s discretionary allowance. Although no “proper foundation for an exception to the sequestration rule” was expressly laid by the State, see Davis, supra at 904, and Norman, supra at 316, Chastain did not require it. It was enough in Chastain that the witness was the prosecutor, and Perry was identified as the prosecutor on the indictment. If a reason must be shown as well, we must assume that the court, which was aware of the prior trial, regarded the same basis as existing again, that the witness was needed to assist in the orderly presentation of the State’s case.

RUFFIN, Judge,

concurring in part and dissenting in part.

I respectfully dissent and disagree with the judgment and the majority’s reasoning in Division 2. OCGA § 24-9-61 provides: “[I]n all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude a witness.” This Court has long recognized several exceptions to the right of sequestration, including the right of the chief investigating officer to remain and assist in the orderly presentation of the State’s case. See, e.g., Nelson v. State, 208 Ga. App. 671, 673 (5) (431 SE2d 450) (1993). However, under the rule of sequestration, “[t]he burden of showing an exception (where the witness is needed to advise the district attorney, or where the absence of an official witness would impair the efficiency of the court) is on the [S]tate. [Cit.]” James v. State, 143 Ga. App. 696 (2) (240 SE2d 149) (1977). If the State fails to meet this burden, the trial court abuses its discretion in permitting a witness to remain in the courtroom throughout the testimony. Montos v. State, 212 Ga. 764, 765 (3) (95 SE2d 792) (1956) (the State made no contention that it needed the officers’ assistance in the conduct of the case, nor was ■any reason given other than'that they were officers, thus harmful error resulted); compare Wilson v. State, 158 Ga. App. 174, 176 (7) (279 SE2d 345) (1981) (prosecutor stated his need for the services of the witness during trial, thus no abuse of discretion).

In the present case, Mitchell’s counsel asked that all witnesses, specifically investigating officer James Perry, be sequestered. Mitchell argued that Perry was not the true case agent and, therefore, could not assist the prosecutor. While it is apparent from the colloquy that Perry had remained in the courtroom during Mitchell’s first trial, we do not know the reasons for this exercise of the court’s discretion, and that issue is not before us. What is before us is Mitchell’s request for sequestration in the present case, and the court’s denial of this request as it applied to Perry because “[i]n view of the fact that everybody’s testimony is basically fixed at this point because they have already testified under oath at the prior trial, I think I will deny your request and not interfere with the State’s decision about how to orderly present their case.” Significantly, the State, through the district attorney, did not speak during the entire exchange.

It follows that I cannot conclude that the State met its burden to show an exception. There is nothing in the record before us to support any contention that Perry was needed to assist the State in its presentation of the case. Not only is the colloquy insufficient to support this contention, but I do not believe the colloquy is sufficient absent an affirmative contention by the State that an individual is necessary to assist the prosecutor in the case. Accordingly, I believe the trial court abused its discretion in allowing Perry to remain in the courtroom.

Likewise, I cannot agree that the trial court properly exercised its discretion in permitting Perry to testify multiple times after the first witness testified. While it is clear a trial court has discretion in such matters, this discretion must be based upon a showing by the State of some need not to call the unsequestered witness first. Croom v. State, 165 Ga. App. 676 (2) (302 SE2d 598) (1983); Stuart v. State, 123 Ga. App. 311, 312 (1) (180 SE2d 581) (1971). Failure to present the unsequestered witness first or to offer a sufficient reason for not doing so constitutes an abuse of discretion. James, supra at 697 (2); Stuart, supra at 313. “The state here showed no reason why [Perry] should not have been called to testify first, . . . and it was an abuse of discretion for the court to permit this sequence of testimony without such a showing.” (Emphasis in original.) Whitfield v. State, 143 Ga. App. 779, 780 (240 SE2d 189) (1977).

Decided September 5, 1996

Reconsideration denied September 25, 1996.

Word & Mitchell, Gerald P Word, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Kevin W. Drummond, Assistant District Attorneys, for appellee.

The two cases cited by the majority in support of its position, Johnson v. State, 198 Ga. App. 316 (4) (401 SE2d 331) (1991), and Dunbar v. State, 209 Ga. App. 97 (1) (432 SE2d 829) (1993), contain insufficient facts to determine whether the State offered a sufficient reason for not sequestering the witness or for recalling the unsequestered witness, but I would assume that both cases applied the correct law and required the State to prove these exceptions.

While the State correctly argues that a violation of the rule of sequestration “goes to the credibility rather than the admissibility of [Perry’s] testimony,” this case does not involve a violation of the rule. Rather, it involves an abuse of discretion by the trial court in refusing to implement the rule to include Perry. An error which possesses the power of harm portends the promise of correction. Since the trial court’s error deprived Mitchell of a substantive right, a new trial should be granted. See, e.g., Massey v. State, 220 Ga. 883, 891 (5) (142 SE2d 832) (1965), appeal dismissed, 385 U. S. 36 (87 SC 241,17 LE2d 36) (1966); Poultryland v. Anderson, 200 Ga. 549, 561 (2) (37 SE2d 785) (1946).

I concur in the court’s judgment in all other respects.

I am authorized to state that Judge Blackburn joins in this concurrence in part and dissent in part.

        Johnson v. State, 258 Ga. 856, 857-858 (376 SE2d 356) (1989). See also Jordan v. State, 247 Ga. 328, 347 (10) (276 SE2d 224) (1981); Nelson, supra at 673. In Jordan, the Supreme Court held as follows: “In the interest of clarity and uniformity, in conformity with the trend toward witness competency, and in view of the constitutional rights of a defendant to call witnesses in his or her defense, we hold that a witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. [Cits.]” Jordan, supra at 347. “A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness. [Cit.]” Johnson, 258 Ga. at 857-858.


author: Johnson, Judge.

text:
    A96A1396.
    NEWELL v. GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
    (476 SE2d 631)
   Johnson, Judge.

Rose Newell brought this action against the Great Atlantic & Pacific Tea Company, Inc. (“A & P”), for injuries she sustained in a fall after her foot allegedly became caught in a tear in a floormat placed between two sets of automatic doors at the store’s entrance. A & P moved for summary judgment, claiming that Newell failed to exercise ordinary care for her own safety and that there was no evidence that it had knowledge of the hazard. Without specifying its reasons for doing so, the trial court granted A & P’s motion. Newell appeals.

1. Newell argues that the trial court erred in granting summary judgment to A & P when a genuine issue of material fact exists as to whether she exercised ordinary care for her own safety. We agree.

“The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care.” (Citation and punctuation omitted.) N. L. Indus. v. Madison, 176 Ga. App. 451, 454 (1) (336 SE2d 574) (1985). An invitee is not obligated to inspect the premises to discover latent defects. Id. at 455 (1). Newell testified that as she walked into the store, she “scanned” the area and paid attention to where she was going. After she passed through one set of automatic doors and before she made it through a second set of doors, she stumbled and fell. After she fell, a store employee, who she later learned was the manager, helped her up and asked what caused her to fall. Newell showed the manager the floormat, which had become “bunched up” after she tripped. In its “bunched up” condition, Newell could see that the mat was torn and that a corner was curled. The manager told a clerk to remove the mat. When asked on deposition if she could have seen the defect had she looked down at it, Newell replied that “if I probably would have stopped and took a long stare at the mat — instead of normally how you scan an area to clear it when you walk in, if I had stopped, looked down at the mat, I probably would have seen enough to walk around it. Not even associate it with falling still but just enough to walk around it.” Newell’s testimony that she was not looking directly at the floor as she entered the store because she was “scanning the area” to make sure it was safe does not show conclusively that she was not exercising ordinary care. “Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.” (Citations and punctuation omitted.) Chaves v. Kroger, Inc., 213 Ga. App. 348, 350 (444 SE2d 606) (1994).

We are not persuaded by A & P’s argument that because the presence of the mat constituted a static condition, and because Newell had successfully traversed the mat before, she is presumed to have knowledge of its condition and is precluded from recovering. See MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996). The presence of a tear in a floormat is indeed a static condition, as it is not dangerous unless someone fails to observe it and steps onto it. See generally id. However, the fact that Newell had traversed the same mat moments earlier and on previous occasions does not require a finding as a matter of law that she knew of the defect. “It is true that a person who has successfully negotiated a dangerous condition on a previous occasion is presumed to have knowledge of it and cannot recover for resulting injuries.” (Citations and punctuation omitted.) Allen v. Roscoe Weston Motels Ga., 220 Ga. App. 402, 404 (469 SE2d 492) (1996). “In cases where this rule has been applied, however, the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety, a factual circumstance not necessarily present in this case.” (Emphasis supplied.) Martin v. Dunwoody-Shallowford Partners, L.P., 217 Ga. App. 559, 561 (2) (b) (458 SE2d 388) (1995). According to Newell’s testimony, the defect was difficult to see without close inspection. Viewing the evidence in a light most favorable to the nonmovant on motion for summary judgment, Newell’s testimony that she was paying attention to where she was going, that she did not see any defect in the mat before her trip caused it to bunch up, and that she might have seen it had she stopped walking and stared at the mat creates an issue of material fact as to whether the defect was observable to her in the exercise of ordinary care and whether she can therefore be presumed to have had knowledge of it. “It can not be held as a matter of law that the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence.” (Citation and punctuation omitted.) Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966). Therefore, summary judgment was not authorized on the basis of Newell’s failure to exercise ordinary care for her own safety.

2. Nor was summary judgment authorized based on the lack of evidence that A & P had knowledge of the defect. “The principle of equal or superior knowledge is not limited to slip and fall cases, but applies to ‘static’ defective or dangerous conditions on property.” (Citations and punctuation omitted.) Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 97 (1) (453 SE2d 123) (1995). While there is no evidence that the proprietor here had actual knowledge of the defect in the mat, liability may also be based upon constructive knowledge. See id. Constructive knowledge may be established by showing either that: (1) an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove it; or (2) the proprietor failed to exercise reasonable care in inspecting the premises. See Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 592-593 (466 SE2d 58) (1995). Newell relies upon the second theory, arguing that constructive knowledge is shown by A & P’s failure to exercise reasonable care in inspecting the premises.

“In seeking summary judgment, the defendant has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in inspecting the premises. This burden may be carried by evidence of compliance with reasonable inspection procedures.” (Citations omitted.) Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 224 (460 SE2d 838) (1995). In this regard, A & P points to the manager’s testimony that it is his practice and “pretty much A & P’s policy” to inspect the premises, including the front entrance area, every two hours. Although he testified that he followed this procedure in May 1993, the month the fall occurred, he gave no testimony specifying what inspection procedure was followed on May 4, 1993, the day of the accident. He kept no records of inspections and could not remember the inspection route he took on the day of the fall or how many times he inspected the store during that month. In addition, the manager had “no idea” whether anyone else inspected the store in the manner described during May 1993. He added that he did not necessarily inspect the store every two hours and when asked if he was ever late conducting inspections, he replied, “It’s hard to say. It might be earlier or later.”

“Construing the evidence most strongly against [movant], its manager’s [testimony] went merely to the general existence of a customary inspection procedure and would not be sufficient to negate the possibility that, on this specific occasion, there had been a deviation from that procedure. If [movant’s] manager cannot state that [he] was adhering to [his] customary inspection procedures on the specific day in question, the mere existence of such customary procedures would prove nothing.” Food Giant v. Cooke, 186 Ga. App. 253, 255 (1) (366 SE2d 781) (1988). And contrary to A & P’s argument, where the manager cannot recall whether the inspection procedure had been adhered to on the day of the fall, the burden does not shift to the plaintiff to show how long the hazard existed. Burke v. Bi-Lo, 212 Ga. App. 115, 117 (441 SE2d 429) (1994). The evidence failed to eliminate a factual issue as to whether A & P exercised reasonable care in inspecting the property. “Where an obstruction is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care [in inspecting the premises] should be one for the jury.” (Citations and punctuation omitted.) Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991). The trial court erred in granting A & P’s motion for summary judgment.

Decided September 10, 1996

Reconsideration denied September 25, 1996

Roy S. Mullman, Teri D. Alpert, for appellant.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Karl M. Braun, for appellee.

Judgment reversed.

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

       We note that in its brief A & P denies that any mat was ever placed inside the entrance to the store and questions whether Newell actually fell, since the store has no record of the fall. For the purposes of appeal, however, A & P has accepted Newell’s allegations of the mat’s presence and her fall.


text:
    A96A1037.
    SMITH v. THE STATE.
    (476 SE2d 653)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of kidnapping, rape, possession of a firearm during commission of a crime and possession of a sawed-off shotgun. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant challenges the sufficiency of the evidence, arguing that the 15-year-old victim’s testimony is inconsistent with regard to certain details of the alleged sexual assault and is therefore insufficient to authorize a finding that he abducted and sexually assaulted the victim against her will. This argument is without merit.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the (defendant) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).’ Dolphus v. State, 218 Ga. App. 565 (462 SE2d 453). ‘ “Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).’ Grier v. State, 218 Ga. App. 637 (1) (463 SE2d 130). ‘The testimony of a single witness is generally sufficient to establish a fact.’ OCGA § 24-4-8.” Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906).

Decided September 25, 1996.

Henderson & Henderson, David C. Walker, for appellant.

Dupont K. Cheney, District Attorney, John T. Durden, Jr., Assistant District Attorney, for appellee.

In the case sub judice, the victim testified that defendant abducted her at gunpoint, forced her to a nearby wooded area and committed acts against her which constitute rape. This evidence, and proof that defendant was in possession of a sawed-off shotgun, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of kidnapping, rape, possession of a firearm during commission of a crime and possession of a sawed-off shotgun. Jackson v. Virginia, 443 U. S. 307, supra.

2. Contrary to defendant’s second enumeration of error, we find nothing in the record indicating that the trial court illegally sentenced defendant for an offense — possession of a firearm by a convicted felon — as the record reveals defendant was the beneficiary of a directed verdict of acquittal as to that offense.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A96A1444.
    COATES v. THE STATE.
    (476 SE2d 650)
   Johnson, Judge.

After a jury trial, James Michael Coates was convicted of child molestation, false imprisonment, and enticing a child for indecent purposes. He appeals from the convictions entered on the jury’s verdict and the denial of his motion for new trial.

1. Coates contends that the trial court erred in denying his motion for mistrial when an agent with the Georgia Bureau of Investigation, while testifying for the State, stated that another suspect took a polygraph test; the witness did not give the test results. Defense counsel objected to any mention of the test, although at one point he argued that his objection would be only to the witness giving the test results, which she did not. When the trial court stated that it would give the jury a curative instruction, defense counsel moved for a mistrial. The trial court then stated to counsel its proposed instruction and asked counsel if there was any objection. Defense counsel stated that there was none. When the jury returned, the trial court gave the instruction. Defense counsel did not voice an objection, ask for additional instructions, or renew his motion for a mistrial after the instruction was given. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.” (Citation and punctuation omitted.) Chambers v. State, 216 Ga. App. 361, 363 (2) (454 SE2d 567) (1995). Defense counsel’s inaction after the instruction was given constitutes a waiver. Id.; see Sing v. State, 217 Ga. App. 591, 593 (2) (458 SE2d 493) (1995).

2. Coates argues that the trial court erred in not granting a mistrial when, before the victim testified and identified Coates in court, another witness for the State allegedly took the victim to a courtroom window and pointed Coates out to the victim. The trial transcript does not show that any such event occurred. Even assuming this did happen, however, the issue raised is not reviewable. There is no indication in the trial transcript that counsel moved for a mistrial, that he called the matter to the court’s attention, or that the court ruled on such an issue. In Coates’ motion for new trial, defense counsel testified that he raised the issue with the trial court when court was not in session, just as the judge was leaving the bench. According to defense counsel, the trial court was not convinced that the incident occurred as alleged or that Coates was harmed by whatever happened. Counsel did not indicate in the new trial hearing that he requested recordation of the alleged conference held when the court was not in session. Moreover, he stated “I don’t recall looking at the court reporter to see if her fingers were moving.” The subject conference was not recorded, so a review of what transpired is not possible. McGraw v. State, 199 Ga. App. 389, 396 (17) (405 SE2d 53) (1991). Counsel’s testimony at the motion for new trial hearing as to what happened in a conference held during trial is not a sufficient substitute for a transcript. “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Meier v. State, 190 Ga. App. 625 (1) (379 SE2d 588) (1989); see Mantooth v. State, 197 Ga. App. 797, 799 (3) (399 SE2d 505) (1990). Further, any issues raised in Coates’ brief that were not included within the enumerations of error cannot be considered. Id.

3. Coates’ third enumeration of error is not supported in his brief by any argument or citation of authority and is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

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

Decided September 25, 1996.

Barry E. Billington, for appellant.

Lewis R. Slaton, District Attorney, Carl R Greenberg, Kirby Clements, Jr., Assistant District Attorneys, for appellee.