author: Smith, Judge.

text:
    A99A2429.
    CARTER v. GLENN et al.
    (533 SE2d 109)
   Smith, Judge.

Alleging that a City of Lithonia police officer raped her, Yula Carter brought this action against the City of Lithonia, its mayor Marcia Woods Glenn, its police chief Jerome Woods, two unnamed police officers, and the alleged rapist, Police Officer Paul Wade. She asserted various state law claims as well as a federal civil rights claim under 42 USC § 1983. Wade and the other defendants answered and denied Carter’s allegations. After discovery, the city, Glenn, and Woods filed for summary judgment, asserting failure to file ante litem notice under OCGA § 36-33-5 and failure to demonstrate a claim under § 1983. The trial court granted both motions. We affirm the trial court’s grant of summary judgment to the city, Glenn, and Woods on Carter’s § 1983 claim, because Carter has failed to demonstrate acts in implementation of an intentional city policy or custom encouraging or condoning the commission of rape by its police officers. We also affirm the trial court’s grant of summary judgment to the city on Carter’s state law claims, because Carter failed to give the required ante litem notice. We must reverse the latter judgment as to Glenn and Woods, however, because the ante litem notice requirement by its terms applies only to the municipality itself.

1. We first consider Carter’s § 1983 claims. 42 USC § 1983 (1988). In Monell v. Dept. of Social Svcs. &c., 436 U. S. 658, 690 (98 SC 2018, 56 LE2d 611) (1978), the United States Supreme Court held that local governments may be sued directly under § 1983 if “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. “But a municipality cannot be held liable solely because it employs a tortfeasor. In other words, there is no respondeat superior liability under § 1983; rather, a plaintiff must point to some official policy or custom which resulted in the injury.” (Citations and punctuation omitted.) Watson v. Mayor &c. of Savannah, 223 Ga. App. 399, 401 (1) (477 SE2d 667) (1996).

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...

The plaintiff “must prove that the City deprived him of a constitutional right pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Citations and punctuation omitted.) Watson, supra at 402. The alleged deficiency “must be closely related to the ultimate injury,” because “[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city Gould have done to prevent the unfortunate incident.” (Citations and punctuation omitted.) Id. at 401-402.

In addition to showing that the constitutional violation causally produced the injury, the plaintiff:

must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Some employee or agent must intend to act or refuse to act based upon such governmental policy.

(Citations, punctuation and emphasis omitted.) Merritt v. Athens Clarke County, 233 Ga. App. 203, 206 (2) (504 SE2d 41) (1998).

Assuming without deciding that Wade committed the offense and was acting under color of law, no evidence in the record shows that Wade’s action was the result of “an impermissible or corrupt policy which was intentional and deliberate.” Watson, supra at 402. Here, the police chief testified that the police department did not encourage or promote the commission of sexual assault by city police officers. The city police department policy and procedures manual states that officers are to use courtesy to all individuals and are prohibited from committing any violation of law and from engaging in “conduct on or off duty which has a tendency to destroy public respect for the employee and/or the department and/or destroys confidence in the operation of the city service.” Officers also receive 20 hours of police training according to Peace Officers’ Standard Training (POST) guidelines. See Lowe v. Jones County, 231 Ga. App. 372, 374 (4) (499 SE2d 348) (1998).

Woods filed an affidavit stating that he was unaware of any complaints of sexual assault, harassment, or rape against Wade or any other Lithonia police officer for five years preceding Carter’s alleged rape. In his deposition, Woods testified that Wade applied for a position as patrolman on March 21, 1995, approximately one month before the incident at issue here. Woods testified to the process involved in hiring Wade, including interviewing Wade, performing a criminal history check, calling an investigator at POST council, and calling Wade’s former employers. On his job application, Wade disclosed an off-duty altercation with some neighbors in his front yard, resulting in a plea of nolo contendere by him to simple battery. Woods testified that Wade’s background check revealed only the neighborhood altercation. Woods also testified that he spoke with several of Wade’s superior officers with DeKalb County, who told him that Wade was “a good officer.” A captain with the city police department testified that he performed a background check on Wade and also knew him personally from his service with DeKalb County as “a good officer.” Some complaints of excessive force on Wade’s part were made to the city police department after the alleged rape, and Wade was ultimately terminated by the police department for one of those incidents.

A very lengthy affidavit by an expert witness was filed on behalf of Carter in response to the city defendants’ motion for summary judgment. This 44-page affidavit is not in the requisite form and is replete with hearsay, speculation, unsupported conclusions, legal opinions, vociferous argument, and personal remarks directed against the city defendants. Defendants moved to strike this affidavit on the basis of its content. At oral argument, defendants also objected that the affidavit was served upon them after discovery had expired without any response to their interrogatories, served on Carter over one year before, asking for disclosure of any expert witness. They thus had no opportunity to investigate or depose this expert. But we need not reach these issues because the affidavit contains no facts sufficient to establish the required direct causal link between any city policy and Wade’s alleged crime. In addition, “no objective guidelines which might have been appropriate or facts which show the department’s guidelines and training are inadequate were set out in his affidavit.” (Citation, punctuation and emphasis omitted.) Pearson v. City of Atlanta, 231 Ga. App. 96, 100 (4) (a) (499 SE2d 89) (1998).

In addition to the misdemeanor battery revealed by Wade, the affidavit details complaints of tardiness, allegations of excessive force made to the city, and disciplinary complaints of excessive force filed against Wade in other police jurisdictions before his employment by the city. But these allegations were not known to the city until after the alleged incident with Carter. None of the complaints involved rape, sexual harassment, or any other sexual offense. See Alpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 753 (3) (472 SE2d 532) (1996) (employer not liable for negligent hiring unless it knew or should have known of employee’s “propensity for this type of alleged sexual misconduct”). Despite her expert’s conclusory assertion that “rape is a violent crime,” Carter has established no causal connection between the city’s investigation of complaints of excessive force and the alleged crime of rape.

This case is therefore controlled by our recent decision in Thompson v. Chapel, 229 Ga. App. 537 (494 SE2d 216) (1997). Chapel, a county police officer, was convicted of the murder of Thompson. The wrongful death action against the county alleged a custom of ignoring standards for hiring and officer conduct on the part of county officials, allowing Chapel to remain on the job and, ultimately, to murder Thompson. The circumstances that the county allegedly ignored included a psychological test showing that Chapel had “anti-social tendencies,” a garnishment for failure to pay child support, and an unproved allegation that Chapel conspired to rob a restaurant. We concluded that these incidents did not “cause” the alleged constitutional deprivation, did not constitute a “policy,” and did not “provide a causal nexus sufficient to preclude summary judgment or show the requisite deliberate indifference to citizens’ rights. At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.” (Citation and punctuation omitted.) Id. at 538-539.

Here, Carter asserts a connection between allegations of excessive force and one admitted instance of simple battery on the one hand, and an allegation of rape on the other. This alleged connection is even more attenuated than that alleged in Thompson between sociopathic tendencies and an alleged conspiracy to commit robbery on the one hand, and a conviction for murder on the other. Carter’s repeated reliance on a case applying Alabama and federal law, Parker v. Williams, 862 F2d 1471 (11th Cir. 1989), overruled on other grounds, Turquitt v. Jefferson County, 137 F3d 1285, 1291 (11th Cir. 1998), succinctly demonstrates the tenuous nature of Carter’s contention. In Parker, the sheriff hired á deputy with serious mental problems including multiple personality disorder, a history of drug use, and a conviction for indecent exposure, then promoted him to the post of chief jailer. The chief jailer later was convicted by a jury of the kidnapping and rape of a female inmate. In contrast, none of the alleged incidents here involve any “type of alleged sexual misconduct,” Stewart, supra at 753, and do not “provide a causal nexus sufficient to preclude summary judgment or show the requisite deliberate indifference to citizens’ rights. [Cit.]” Thompson, supra at 538.

Carter contends that Woods or his captain should have investigated further and requested copies of Wade’s disciplinary files not only from his most recént employer but from previous employers, even after personal assurances from Wade’s former superiors and the captain’s own personal knowledge of Wade. But even assuming that Carter had shown that the background investigation conducted by Woods was inadequate, this does not rise to the level of an intentional and deliberate policy. “Even negligence in the performance of official duties does not warrant redress under 42 USC § 1983.” (Citations and punctuation omitted.) Watson, supra at 402. Such errors or omissions, even if proved, do not constitute gross negligence or deliberate indifference, and claims based upon them are not appropriate for resolution under 42 USC § 1983. The trial court did not err in granting summary judgment to the city, Glenn, and Woods on Carter’s § 1983 claims.

2. We must next address Carter’s state law claims and the propriety of the trial court’s grant of summary judgment for failure to give the ante litem notice required by OCGA § 36-33-5. Carter’s contentions on this issue are controlled by our recent decision in Jacobs v. Littleton, 241 Ga. App. 403, 405-406 (3) (a), (b) (525 SE2d 433) (1999), in two respects.

First, Carter contends that the time period for giving the ante litem notice was tolled by her mental incapacity. The ante litem notice statute, like a statute of limitation, may be tolled. Jacobs, supra at 406 (3) (b). But, as in Jacobs, Carter has failed to make the required showing to trigger the tolling statute. OCGA § 9-3-90 provides:

Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.

Decisions construing this statute make plain that the application of the law is confined “to situations where it is not fair to charge a suitor with the running of the clock, because of his mental condition.” Chapman v. Burks, 183 Ga. App. 103, 105 (1) (357 SE2d 832) (1987). While a plaintiff need not be so mentally incompetent that he should be confined, or require a guardian, he must be “so mentally incompetent (non compos mentis or insane), so unsound in mind, or so imbecile in intellect, that he could not manage his ordinary affairs of life.” (Punctuation omitted.) Id. “The test to be applied is whether the one claiming the disability has such unsoundness of mind or imbecility as to incapacitate one from managing the ordinary business of life.” Jacobs, supra at 406. This determination may be made by the trial court as a matter of law, and the burden is on the plaintiff to prove incapacity. Id.

Here, Carter filed the affidavit of a psychiatrist, Dr. Honablue, who treated her for five months before September or October 1998, beginning approximately three years and four months after the alleged rape. Dr. Honablue opined that Carter suffered from “clinically significant distress in both her social and occupational areas of functioning.” The psychiatrist also concluded that Carter was suffering from “symptoms of Post-Traumatic Stress Disorder” and stated that as a result Carter “cognitively avoided any act that would require her to speak of or react to the rape” and “would not be in the proper frame of mind” to give notice to the city. But Dr. Honablue never stated an opinion that Carter was incapacitated from managing her ordinary affairs of life, either at the time ante litem notice was due or when she examined Carter three years later.

Mental conditions that fall short of the applicable legal standard of incompetence are insufficient to trigger the tolling provisions of OCGA § 9-3-90. Stewart, supra at 751-752 (1) (expert testimony that plaintiff suffered from “despondency, depression, and a borderline personality disorder” insufficient to toll statute of limitation). Carter never gave testimony by affidavit or otherwise averring that she met this legal standard. In addition, as in Stewart, Carter’s deposition testimony demonstrates that she was competent to and did manage her ordinary affairs of life: She ran a business with her cousin and also worked for a temporary agency; she raised four children; and she became an assistant manager with a truck rental company. And Carter herself testified that thére was never any time when she was not “mentally competent” and that she was able to take care of herself and “know what was going on.” Expanding the definition of incompetence under the tolling statute to include a mental condition that renders one incompetent only as to assertion of the subject claim, rather than as to the ordinary affairs of life, would fundamentally alter Georgia law. We agree with the trial court that such a change is properly the role of the legislature rather than the courts.

Finally, Carter acknowledges on the record that she complained about the alleged rape to the police department on June 7, 1996. Substantial compliance with the requirements of the ante litem notice statute is sufficient, but oral notice is not, even if memorialized in writing by a city official. Clark v. City of Smyrna, 212 Ga. App. 598, 599 (1) (442 SE2d 461) (1994). “[F]ormal, written notice is required.” (Punctuation and footnote omitted.) Evans v. City of Covington, 240 Ga. App. 373, 374 (1) (523 SE2d 594) (1999).

In effect, Carter seeks not merely a tolling of the ante litem notice statute but its complete abrogation. Her argument does not address the fact that she completely failed to satisfy the requirements of OCGA § 36-33-5, even after she was obviously able to and did orally report her allegations to the police department. The time for providing ante litem notice to the city therefore was not tolled by the provisions of OCGA § 9-3-90, and the trial court correctly granted summary judgment to the city.

We must, however, reverse the grant of summary judgment to the individual city defendants. Although the issue was not raised by the parties or the trial court, the ante litem notice statute is explicitly limited by its terms to the municipal corporation itself:

No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.

(Emphasis supplied.) OCGA § 36-33-5 (a). Here, as in Jacobs, supra, the trial court erred in granting summary judgment to the mayor and police chief based on failure to give ante litem notice.

OCGA § 36-33-5 is in derogation of the common law and must be strictly construed. [Cit.] The statute requires notice only if the claim is against the municipality; it does not require ante litem notice to individual employees of a municipality. Thus, although the trial court properly granted summary judgment to the City . . .due to the. . . failure to provide ante litem notice, it improperly granted summary judgment to the individual city employee defendants on this ground.

Id. at 405 (3) (a). We must therefore reverse the summary judgment on behalf of the mayor and police chief based on Carter’s failure to give ante litem notice on her state law claims.

Judgment affirmed in part and reversed .in part.

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

On Motion for Reconsideration.

Appellees Glenn and Woods have moved for reconsideration of Division 2 of this opinion. They now acknowledge that ante litem notice applies only to the City of Lithonia. They contend, however, that summary judgment in their favor on Carter’s state law claims was appropriate on other grounds and that we should therefore affirm.

We must decline to do so in the circumstances presented here. It is true that a trial court’s grant of summary judgment will be affirmed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). But this is true only “[i]f it is not apparent that the trial court relied on an erroneous legal theory.” Porquez v. Washington, 268 Ga. 649, 652 (3) (492 SE2d 665) (1997). Moreover, we must also consider the general principle that the appellate courts do not consider issues not ruled on below. See Ebon Foundation v. Oatman, 269 Ga. 340, 343 (2) (498 SE2d 728) (1998). This is particularly true when, under the posture of the case, both parties did not have a full opportunity to present their arguments to this court.

Here, the trial court did not grant a general summary judgment that arguably included all the grounds raised by Glenn and Woods. It instead explicitly based its summary judgment solely on the erroneous basis that OCGA § 36-33-5 applied to the individual defendants. While appellees argue that Carter did not raise these issues on appeal, it is apparent that she had no reason to do so in the absence of a ruling from the trial court. Carter is not required to respond to a motion for reconsideration, and the time for doing so is both unspecified and short. Court of Appeals Rule 37 (b).

The multiple alternative arguments raised by Glenn and Woods are complex and fact-intensive. Since these issues were never ruled on below and therefore not raised on appeal, Carter has not had the opportunity to brief her arguments in full before this court. Given the multiplicity and complexity of the issues, we decline to address them without both parties having a full opportunity for notice and a hearing.

Motion for reconsideration denied.

Decided March 29, 2000

Reconsideration denied April 13, 2000.

James C. West III, for appellant.

Hawkins & Parnell, Michael J. Goldman, Michelle D. Coburn, for appellees.

       The Georgia Bureau of Investigation and the District Attorney for the Stone Mountain Judicial Circuit investigated Carter’s accusation, but Wade was never charged with the alleged offense. The prosecutor who investigated the accusation noted that it was made shortly after Wade participated in the arrest of Carter’s boyfriend and other members of his family on drug charges.

       “Posttraumatic Stress Disorder” is described in the Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994) as “the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury. . . .” At 424. It is manifested by “persistent symptoms of anxiety . . . that were not present before the trauma.” Id. at 425.

        Southwire Co. v. George, 266 Ga. 739, 740, n. 1 (470 SE2d 865) (1996). But “it has not yet been determined whether post traumatic stress disorder and rape trauma syndrome are admissible scientific principles in Georgia.” Prickett v. State, 220 Ga. App. 244, 247 (3) (469 SE2d 371) (1996), overruled on other grounds, State v. Belt, 269 Ga. 763, 764, n. 1 (505 SE2d 1) (1998).


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A00A0562.
    ANATEK, INC. v. CSX REALTY DEVELOPMENT, LLC.
    (532 SE2d 115)
   McMURRAY, Presiding Judge.

As the owner of certain real property on Hutchinson Island near Savannah, appellee-defendant CSX Realty Development, LLC (“CSX”) entered into a business relationship with Colonial Motor-sport Group, Inc. (“CMG”) by a written agreement denominated “License Agreement Concerning 1997 Grand Prix at Savannah Harbor (the ‘Agreement’).” In consideration for the free use of CSX’s property, the Agreement required that CMG use the name of CSX’s Hutchinson Island development, Savannah Harbor, throughout its race promotion. The Agreement also authorized CMG to install improvements necessary to running the race. The Agreement required, however, that these be removed before its expiration date and that the race area be restored to its pre-race condition. In order to do so, CMG entered into a contract with appellant-plaintiff Anatek, Inc. (“Anatek”) under which Anatek furnished labor, material, equipment, and services for site preparation work. When CMG did not pay the amount claimed under the contract, Anatek filed suit against CSX in the Superior Court of Chatham County, seeking to foreclose upon its claim of special lien on CSX’s property in the amount of $81,420. The superior court granted CSX’s motion for summary judgment, concluding that CSX’s property was not lienable in that there was no evidence showing that the improvements to the property were “ ‘furnished at instance of the owner ... or some person acting for the owner. . . .’ OCGA § 44-14-361 (b).” Anatek appeals. Held:

While we are mindful that the issue in this case arises out of a licensing agreement for the use of land rather than a lease for such purpose, we deem the essential attributes of each instrument to be indistinguishable and elect to treat the Agreement herein as a lease.

So construing the Agreement, we note that:

“[a] contract for improvements between a lessee and a materialman does not subject the interest of the lessor to a lien unless a contractual relationship exists between the lessor and the materialman as well. . . . Mere knowledge by the lessor of the improvements does not give rise to the lien.”

Anatek argues that (1) CSX’s property was subject to its lien because CSX made CMG its contractor for improvements to the property, whether temporary or permanent, to the extent of the value of the free use of the property given by the Agreement, (2) agreed to pay for the construction of an access road to the property, and (3) “directed” that the work be done in that it approved where Anatek could do its work at the work site to benefit its planned future development of the property. These arguments to the contrary notwithstanding, there is no evidence of record that CSX agreed to pay for improvements to its property, whether permanent or otherwise. In this regard, Anatek does not offer more than argument based on hearsay in opposition to evidence supporting CSX’s motion for summary judgment indicating that there was no CSX-CMG contract for the performance of work on CSX’s property benefitting CSX. In addition to the Agreement and the CMG-Anatek contract, CSX supported its motion for summary judgment by affidavit testimony given by the general manager of its Savannah Harbor property, John McCleskey. McCleskey pertinently testified that:

CSX did not contract with CMG to perform any work or improvements on CSX’[s] property for the benefit of CSX, but rather specifically required CMG to remove all “improvements” at the end of the license period. . . . CSX did not agree to pay or be responsible or liable to CMG for, and in fact did not pay CMG, either directly or indirectly, for the cost of any work CMG had performed on CSX’fs] property. Instead, it was expressly agreed that CMG would be solely responsible for all costs associated with work it contracted to be performed on CSX’[s] property.

CSX further supported its motion for summary judgment with the deposition of Randall K. Gibbs, Anatek’s subcontractor on the project for grading, clearing and grubbing, survey work, access road construction, and erosion control. Although Gibbs deposed that CSX would pay for the access road constructed on the property and decided where permanent work done on the property would be done to facilitate its plans for the property’s future development, he did so on the basis of what others told him, not his personal knowledge. We are not authorized to consider hearsay on motion for summary judgment. “ ‘Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. [Cits.]”’

Decided March 20, 2000

Reconsideration denied April 13, 2000.

Cushing, Morris, Armbruster & Jones, Kevin R. Armbruster, for appellant.

Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, for appellee.

Upon the appeal of the grant of summary judgment, this Court reviews the evidence de novo. Summary judgment is proper where the movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plaintiff’s case. Should the defendant do so, the plaintiff cannot rest on [its] pleadings, but rather must point to specific evidence giving rise to a triable issue.

Inasmuch as there is thus no evidence of record showing that CSX had expressly or impliedly consented to the improvements made on its property, the superior court did not err in granting summary judgment to CSX.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       See Nat. Candy Wholesalers v. Chipurnoi, Inc., 180 Ga. App. 664, 666 (350 SE2d 303).

       (Citation omitted.) Nunley Contracting Co. v. Four Taylors, 192 Ga. App. 253, 254 (384 SE2d 216), citing Accurate Constr. Co. v. Dobbs Houses, 154 Ga. App. 605 (269 SE2d 494).

        E. H. Crump Co. &c. v. Millar, 200 Ga. App. 598, 600-601 (3) (409 SE2d 235), quoting Biggs v. McDougall, 175 Ga. App. 87, 88 (1) (332 SE2d 381).

       (Citations and punctuation omitted.) Jackson v. Kmart Corp., 242 Ga. App. 274 (529 SE2d 404).

        Nunley Contracting Co. v. Four Taylors, 192 Ga. App. at 254, supra, citing Accurate Constr. Co. v Dobbs Houses, 154 Ga. App. at 605, supra.


author: McMurray, Senior Appellate Judge.

text:
    A98A1766.
    HEDQUIST et al. v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.
    (533 SE2d 757)
    Decided April 13, 2000.

      Sumner & Anderson, William E. Sumner, Rosemary S. Armstrong, for appellants.

      Rogers & Hardin, Brett A. Rogers, Richard H. Sinkfield, for appellee.
   McMurray, Senior Appellate Judge.

In Hedquist v. Merrill Lynch &c., 236 Ga. App. 181 (511 SE2d 558), this Court affirmed the trial court’s dismissal of all claims against Merrill Lynch, Pierce, Fenner & Smith, Inc. After granting certiorari, the Supreme Court of Georgia reversed our judgment to the extent this Court held that a plaintiff’s voluntary dismissal with prejudice of an allegedly negligent employee constitutes an adjudication on the merits of a plaintiff’s claims brought against the employer under the doctrine of respondeat superior. Accordingly, our prior judgment is vacated, the judgment of the Supreme Court of Georgia is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Blackburn, P. J., and Eldridge, J, concur.

        Hedquist v. Merrill Lynch &c., 272 Ga. 209 (528 SE2d 508).


author: Blackburn, Presiding Judge.

text:
    A00A0724.
    SHADBURN v. WHITLOW et al.
    (533 SE2d 765)
   Blackburn, Presiding Judge.

Ollie Shadburn appeals the trial court’s grant of summary judgment to Eloise Whitlow and New Perry Hotel, Inc. on her claim for personal injuries resulting from a fall, contending that material issues of fact remain. We affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(Punctuation omitted.) Head v. Sears Roebuck & Co., 233 Ga. App. 344 (503 SE2d 354) (1998).

So viewing the evidence, the record shows that Shadburn, Whit-low, and Jewel Palmer were on their way to Ormond Beach, Florida. En route, they stopped at New Perry Hotel to eat lunch. The three proceeded up a flight of stairs to the hotel restaurant. Palmer proceeded first, followed by Shadburn. Whitlow, an elderly woman who had impaired vision due to cataracts, followed last. Palmer was waiting in line at the restaurant when she heard a noise. Turning, she saw Whitlow, who had reached the top of the stairs, fall into Shadburn who was standing in the lobby area. Shadburn was injured.

Palmer and Shadburn believed that Whitlow’s fall was caused by loose carpeting which they noticed at the top of the stairwell the evening after the fall; however, all three ladies testified that they were not actually certain what caused Whitlow to fall. Palmer also averred in her affidavit that Whitlow may have tripped because she may have been inebriated after sipping an unknown beverage from a cup during the trip to Perry.

The trial court properly granted summary judgment to New Perry Hotel because Shadburn failed to present any evidence that a condition on the stairs, the loose carpeting, caused Whitlow to fall. The speculation that Whitlow may have tripped on loose carpeting does not sufficiently establish causation. Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645 (1) (521 SE2d 668) (1999).

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant. (Citations and punctuation omitted.) Head v. Sears Roebuck & Co., [supra]. See Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 682-683 (3) (498 SE2d 748) (1998).

Decided April 13, 2000

Robert P. McFarland, for appellant.

Cobb & Walton, Bobby L. Cobb, James W. Walton, Hall, Booth, Smith & Slover, Thomas A. Graham, Richard N. Sheinis, for appellees.

(Punctuation omitted.) Id.

Similarly, the trial court also properly granted summary judgment to Whitlow because there is no evidence that Shadburn’s injuries were caused by an act or omission of Whitlow. There is no evidence in the record of the cause of Whitlow’s fall. Shadburn can point only to speculation that Whitlow may have tripped and fallen because she was inebriated. We acknowledge that Shadburn, as the nonmovant, is entitled to all reasonable conclusions and inferences drawn from the evidence, Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997); however, “an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. Sharfuddin v. Drug Emporium, [supra]; Brumbelow v. City of Rome, 215 Ga. App. 321, 322 (450 SE2d 345) (1994).” Lovins v. Kroger Co., 236 Ga. App. 585 (1) (512 SE2d 2) (1999). “ ‘[I]t is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.’ ” Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (511 SE2d 579) (1999); Avery, supra.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A00A0793.
    CARR v. THE STATE.
    (533 SE2d 756)
   Blackburn, Presiding Judge.

Following a jury trial, Lorenzo Carr appeals his conviction of two counts of aggravated assault, contending that the evidence was insufficient to support the convictions. We affirm.

On appeal from a criminal conviction,

Decided April 13, 2000.

Billy J. Dixon, for appellant.

the evidence must he viewed in the light most favorable to support the verdict, and [Carr] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

OCGA § 16-5-21 (a) provides: “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

The evidence at trial showed that on the afternoon of March 9, 1998, Carr returned to the apartment he was sharing with Michelle Calloway, the mother of his child. Carr went upstairs to the bedroom where he found Calloway and another man, Melvin Sheffield, fully clothed, asleep in the bed. Upon awaking, Calloway told Carr not to get the gun, which she kept in the closet. Calloway and Carr went to the closet and began to struggle over the gun. In the struggle, Calloway was shot in the arm. Sheffield joined the struggle and was shot by Carr. Sheffield, on the floor, begged Carr not to kill him, yet Carr fired a second shot which hit Sheffield. After the shooting, Carr told his grandmother that he had shot Calloway. This evidence was sufficient to authorize the jury’s verdict that Carr is guilty, beyond a reasonable doubt of aggravated assault upon Calloway and Sheffield.

Although Carr contends that there was contradictory evidence,

[Conflicts in the testimony of witnesses, including the state’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury verdict will be upheld.

(Citations omitted.) Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976). See Cheney v. State, 233 Ga. App. 66, 69 (2) (503 SE2d 327) (1998).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.


text:
    A00A0897, A00A0927.
    HARALSON COUNTY et al. v. KIMBALL (two cases).
    (533 SE2d 762)
   McMurray, Senior Appellate Judge.

In this appeal we are asked to decide whether, under OCGA § 45-9-21 (e) (2), a county which sues one of its duly elected officials for exceeding his budget can be ordered to pay the official’s reasonable attorney fees and costs.

OCGA § 45-9-21 (e) (2) provides in pertinent part:

In any civil case in which the county attorney has a conflict of interest which would ethically prevent the county attorney from representing both the county, the governing authority of the county, or another county officer or employee and the county officer, upon a determination by the chief judge of the superior court of the circuit in which the county is located that an ethical conflict exists, the county officer shall be authorized to employ individual legal counsel to represent such county officer in such matter. The governing authority of the county shall pay the reasonable fees of such individual counsel and all applicable court costs, deposition costs, witness fees and compensation, and all other like reasonable costs, expenses, and fees. . . . Such fees and costs shall be authorized by the chief judge of the superior court of the circuit in which the county is located. This subsection shall not apply unless the governing authority of the county has first denied a written request by a county officer for counsel.

The record reveals the following facts: Haralson County and its sole commissioner, Amos Sparks, sued Haralson County Sheriff Ronnie Kimball, claiming the sheriff had exceeded his budget each fiscal year since taking office on January 1, 1997. The county commissioner, who established the sheriff’s budget, sought a writ of mandamus and an injunction to compel the sheriff to stay within his budget. The parties settled these issues by entering into a consent order.

Shortly before the consent order was filed, the sheriff moved to recover attorney fees and costs incurred in defending the action. The trial court granted the motion under OCGA § 45-9-21 (e) (2), ruling that the award of attorney fees and costs shall not exceed $4,000. In Case No. A00A0897, the county originally filed an application for appeal to the Supreme Court of Georgia, invoking that Court’s equity jurisdiction. The Supreme Court transferred the application to this Court. We granted the application under OCGA § 5-6-35 (j), finding the order was directly appealable. Thereafter, the county filed a second notice of appeal, which was docketed in this Court as Case No. A00A0927. The cases are consolidated for appeal. Held:

1. At the outset we note that this matter is directly appealable. Although the attorney fees awarded were less than $10,000, the underlying action seeking a writ of mandamus and an injunction was not an action for damages under OCGA § 5-6-35 (a) (6).

2. The county’s argument that the sheriff failed to follow the procedural prerequisites for seeking attorney fees and costs under OCGA § 45-9-21 (e) (2) is specious. The' statute requires (a) the county’s denial of a written request for payment of fees, and (b) a judicial determination that an ethical conflict exists which prevents the county attorney from representing the county officer.

The sheriff’s counsel twice made a written request to the county’s counsel for payment of fees, explaining the sheriff’s need to retain outside counsel based on the county attorney’s conflict of interest. The first request was made on April 14, 1999, less than 30 days after the complaint was filed. The county failed to respond. Next, a few days before the consent order was entered, the sheriff filed his motion for fees and costs, seeking a determination that a conflict of interest existed. The trial court made that determination. Clearly, the sheriff complied with the statute.

Contrary to the county’s argument, the sheriff was not required to proceed pro se until the trial judge determined that the litigation created a conflict of interest for the county attorney. What clearer conflict of interest could exist for the county attorney than a legal battle over the budget waged by the county and county commissioner against one of its duly elected officers?

3. Finally, the gravamen of the county’s argument is that OCGA § 45-9-21 (a) grants it the discretion to decline to pay the sheriff’s attorney fees. That Code section provides:

In lieu of obtaining the insurance or indemnity referred to in Code Section 45-9-20 or in addition thereto, such . . . counties . . . may, in their discretion, as a part of the compensation and terms of employment of . . . elected or appointed officers, adopt policies whereby the . . . county . . . will undertake to defend all or specified . . . actions brought or maintained against . . . elected or appointed . . . county officers, arising out of the performance of their duties or in any way connected therewith. . . .

The county argues unless it adopts a policy to defend the sheriff whenever it files suit against him, it cannot be ordered to pay his attorney fees. Were we to adopt the county’s construction of the statute, the county would have unfettered discretion to force every duly elected county officer to bear his or her own litigation expenses in all actions initiated by the county. We do not believe the legislature intended for the county to wield so mighty a sword.

No Georgia case mandates a contrary result. In Haywood v. Hughes, 238 Ga. 668 (235 SE2d 2), Glascock County taxpayers sued the county commissioners, alleging they were not empowered to pass a resolution authorizing the payment of attorney fees the sheriff incurred in defending two civil rights actions. The Supreme Court disagreed, holding,

that Code Ann. § 89-945 [now OCGA § 45-9-21 (a)] authorizes a county to expend funds to pay attorney fees for the defense of actions against a sheriff for the violation of civil rights where the county has adopted a general policy to pay attorney fees in such actions.

Id. at 669.

The Court went on to hold that the county commissioners’ resolution constituted “the adoption of a policy to pay attorney fees in the defense of two ‘specified’ cases against the sheriff” and was “within the authority given under the statute.” Haywood v. Hughes, 238 Ga. at 669, supra.

Haywood is inapposite to the case sub judice, where the sheriff is defending an action brought by the county itself challenging the sheriff’s alleged overspending. In this situation, OCGA § 45-9-21 (e) (2), and not subsection (a), governs.

Our ruling comports with Gwinnett County v. Yates, 265 Ga. 504 (458 SE2d 791). In that case, the Supreme Court of Georgia held that Yates, the Clerk of Gwinnett County Superior Court, was not subject to the Gwinnett County Merit System. Yates had discharged a deputy clerk, who appealed to the Merit Board. Yates contended that the Merit Board could not supersede his power to hire and discharge deputy clerks. The county attorney refused to assert Yates’ position. Yates then retained outside counsel and filed a declaratory judgment action. The superior court agreed with Yates’ position on the merits but denied his request for attorney fees. The Supreme Court reversed as to the attorney fees, holding that:

Decided April 13, 2000.

Wimberly & Lawson, Les A. Schneider, James L. Stine, Bradley T. Adler, for appellants.

Parks, Chesin & Miller, Allan L. Parks, Jr., Mitchell Benjamin, for appellee.

Walker, Hulbert, Gray & Byrd, Charles W. Byrd, amicus curiae.

where, as here, an official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position, the local government must pay the official’s attorney fees. This is not because of any bad faith or improper conduct on the part of the local government, in this case, the county. Rather, attorney fees in this instance are simply an expense of government operation.

Id. at 508-509 (2).

As in Yates, county counsel in the case sub judice had an ethical conflict. Accordingly, the sheriff was authorized to hire private counsel. The trial court correctly ruled that this is exactly the type of situation OCGA § 45-9-21 (e) (2) was designed to address.

Judgment affirmed.

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

       The term “county officer” expressly includes the sheriff. OCGA § 45-9-21 (e) (1).

       See Motor Warehouse v. Richard, 235 Ga. App. 835, 836 (1) (510 SE2d 600).

       The statute was held constitutional in Horn v. City of Atlanta, 236 Ga. 247 (223 SE2d 647).

       Like the sheriff, the clerk of the superior court is also a county officer under OCGA § 45-9-21 (e) (1).


text:
    A00A0970.
    JABER v. THE STATE.
    (533 SE2d 767)
   McMurray, Senior Appellate Judge.

A DeKalb County jury convicted defendant of theft by taking. The superior court denied defendant’s motion for new trial, and he appeals, contending the evidence was insufficient to support his conviction in that the testimony of State’s witness Jason Isherwood was uncorroborated. Held:

Defendant’s challenge to the sufficiency of the evidence’ is without merit. Isherwood pertinently testified that he showed defendant his fiancée’s 1991 Chrysler convertible in an effort to help her sell the vehicle. When the defendant expressed concern that the vehicle’s exhaust system might not be working properly, Isherwood allowed the defendant to take the wheel in a Metropolitan Atlanta Rapid Transit Authority station parking lot as he observed on foot. Isherwood testified that the defendant stole the convertible by simply driving it out of the parking lot.

Defendant disputes Isherwood’s testimony on appeal, arguing that the pretrial statement he gave Assistant District Attorney Marty First is “more believable” than Isherwood’s uncorroborated testimony. At trial, State’s attorney First testified that upon interviewing the defendant after his arrest, defendant told him that he met Isherwood, whom he knew only as Jason, at a Cobb County “strip club”; that he and Isherwood later met at the MARTA station parking lot; and that he took possession of the convertible with Isherwood’s consent to “hold” until Isherwood paid off a $2,500 debt owed defendant for computers defendant sold him. Other evidence of record, however, revealed that defendant had given a contrary pretrial statement to Detective D. V. Zagorin immediately after being arrested. “It is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” Here the jury chose to believe State’s witness Isherwood. “The testimony of a single witness is generally sufficient to establish a fact. The credibility of a witness is a matter to be determined by the jury under proper instructions from the court [,]” and that a witness’ testimony is uncorroborated “only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury.” Viewed in the light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of theft by taking beyond a reasonable doubt.

Decided April 13, 2000.

B. Thomas Cook, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       OCGA § 16-8-2.

       (Citations and punctuation omitted.) Porter v. State, 233 Ga. App. 337, 339 (503 SE2d 912).

       The general rule, for example, is inapplicable where the sole witness in a felony trial is an accomplice. In that event there must be corroboration of the witness’ testimony for a conviction to stand. Malcolm v. State, 263 Ga. 369 (1), 370 (434 SE2d 479).

       (Citations and punctuation omitted.) Maloy v. State, 237 Ga. App. 873, 874 (1) (516 SE2d 370).

       (Citations omitted.) Samuels v. State, 223 Ga. App. 275, 276 (1) (477 SE2d 414).

        Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560).


author: McMURRAY, Senior Appellate Judge.

text:
    A00A0991.
    PITTMAN v. THE STATE.
    (533 SE2d 769)
   McMURRAY, Senior Appellate Judge.

Bennie Pittman was charged with rape and child molestation for having sexual intercourse with a 12-year-old girl when he was 50. He was convicted of child molestation but acquitted of rape. Based on Pittman’s prior conviction in Virginia of raping his stepdaughter, the trial court sentenced him to 20 years, to serve 15. He appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence and the effectiveness of his trial counsel. Held:

1. On appeal, this Court does not weigh the evidence or determine the credibility of witnesses. Rather, we determine if the evidence, viewed in a light most favorable to uphold the verdict, is sufficient to enable a rational trier of fact to find all the essential elements of the crime charged beyond a reasonable doubt.

Viewed in this light, the evidence presented at trial reveals that on the date of the incident, Pittman, whose brother lived next door to the victim, picked up the victim from school and drove her to a hotel. The victim testified that Pittman asked her to lie down on the bed and undress, and she complied. He put on a condom; she became frightened. He began to have relations with her. Afterward, Pittman took her shopping and to a restaurant.

The victim testified that she did not tell her mother right away because she was afraid of getting “fussed at.” Pittman told the victim not to disclose the incident to anyone because he would get into trouble. The victim finally told her mother, several weeks later. The victim’s mother testified as to what her daughter told her.

Pittman testified in his own defense. He stated that he had twice called the Fulton County Department of Family & Children Services (“DFACS”) to report that the victim’s home had no water, gas, or lights and that the children were filthy. The defense theorized that the victim had accused Pittman of sexual abuse in retaliation for reporting the victim’s mother to DFACS. The victim’s mother denied this.

Pittman admitted taking the victim to his hotel room but stated that his daughter had been present as well. Pittman denied that any sexual activity occurred. Pittman’s daughter had given a statement to the defense team two years after the incident, but she died prior to trial and portions of her statement were read to the jury. The statement indicated that the daughter thought she was in the room the entire time the victim and her father were there.

It was within the jury’s sole province to resolve conflicts in the testimony. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. [Cit.]” Jackson v. State, 239 Ga. App. 77 (1) (519 SE2d 746). The evidence sufficed to support Pittman’s conviction of child molestation.

2. Pittman next contends that his appointed trial counsel was ineffective because he (a) moved for a mistrial in the jury’s presence and (b) failed to secure the attendance of a subpoenaed witness. We disagree.

The burden is on the defendant claiming his trial counsel was so ineffective as to deny him a fair trial under the Sixth and Fourteenth Amendments to show:

(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(Citation and punctuation omitted.) Ivory v. State, 234 Ga. App. 858, 861 (4) (508 SE2d 421). The trial court’s determination on this issue will be upheld unless it is clearly erroneous.

(a) When a DeKalb County detective explained on direct examination how he became involved in the investigation of this incident, he testified: “The mother of [the victim] advised the Atlanta Police that both of her daughters — .” Defense counsel moved for a mistrial, without asking the court to excuse the jury. The court stated it would explain to the jury that the case involved only one person. Trial counsel renewed his motion for a mistrial, which was denied. The following colloquy ensued:

The Court: I ask the jury to disregard it because I don’t know what we are talking about. We have only one case in front of us and that’s all we are talking about.
Mr. Silas: But the jury has heard all of it and it was blatant, they should have instructed him beforehand.

The trial court excused the jury and admonished counsel: ‘You should have asked the jury to be excused rather than jump up and make a motion for mistrial like that. ... I was trying to gloss over it as best I could. . . . You compounded the problem by your own actions.” When the jury returned, the trial court instructed it in pertinent part:

There has been no report to this officer or anybody else about any other improper conduct toward any other daughter. This case is about this daughter, there is nothing, no suggestion of any sort of improper attitude or conduct towards any other daughter. . . .

The court then inquired whether any juror felt prejudiced by the testimony that the victim’s mother brought both daughters when she filed a complaint. All jurors responded negatively.

Pretermitting whether trial counsel’s performance was deficient, in view of the trial court’s thoughtful instructions, no reasonable probability exists that the outcome of this case would have been different had counsel requested that the jury be excused before he moved for a mistrial.

(b) Pittman’s trial counsel was not deficient for failing to ask the court to compel the attendance of a witness who purportedly would have testified that the victim had falsely accused him of molesting her.

Before admitting proof of a victim’s false allegation of sexual misconduct, the trial court must conduct a hearing, outside the presence of the jury, to determine whether a reasonable probability exists that the victim made a prior false accusation of sexual misconduct. “Reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” The defendant bears the burden of coming forward with evidence at the hearing. The trial court’s ruling will not be overturned absent an abuse of discretion.

The evidence presented at the hearing on this matter revealed that the witness under subpoena, Robinson, was the victim’s mother’s former live-in boyfriend. The victim testified Robinson molested her three times and she told her mother about each incident, but her mother did not believe her. The victim also testified that she had first been molested by her stepfather, when she was nine years old. The stepfather was convicted and imprisoned. The trial court found the victim’s testimony credible and determined that the defense had failed to establish a reasonable probability that the victim had falsely accused Robinson of sexual misconduct. The defense thus was barred from questioning the victim about those allegations in front of the jury, although the issue was left open in the event Robinson appeared to testify.

Decided April 13, 2000.

Mark R. Gaffney, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Charles C. Flinn, Assistant District Attorneys, for appellee.

Trial counsel made diligent albeit unsuccessful efforts to locate Robinson before and during trial. Nor could Robinson be found to testify at the hearing on Pittman’s motion for new trial. Trial counsel testified at the hearing that although Robinson would have stated that the victim had falsely accused him of sexual abuse, Robinson was privy to other information that may have been damaging to Pittman’s case. In particular, Robinson would have contradicted Pittman’s testimony that after the incident, the victim’s demeanor remained positive toward Pittman. Robinson also would have revealed that Pittman took Robinson’s younger sister to his hotel room, although no sexual activity occurred. Accordingly, trial counsel’s failure to seek to compel Robinson’s attendance at trial did not fall below an objective standard of reasonableness.

A review of the record demonstrates that trial counsel thoroughly investigated the case and implemented trial strategy so effective that Pittman was acquitted of rape. It was not error to deny his motion for new trial on the basis of ineffective assistance of counsel.

Judgment affirmed.

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

        Shelnutt v. State, 242 Ga. App. 723 (531 SE2d 122).

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

        Lowe v. State, 241 Ga. App. 335 (1) (526 SE2d 634).

        Ivory, 234 Ga. App. at 861 (4), supra.

        Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158); Weldy v. State, 239 Ga. App. 849 (1) (521 SE2d 858); Trusty v. State, 237 Ga. App. 839, 840 (2) (517 SE2d 91).

       (Punctuation omitted.) Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312).

       Id.

       Ivory, 234 Ga. App. at 861 (4), supra.


text:
    A00A1022.
    PHAGAN v. THE STATE.
    (533 SE2d 757)
   McMURRAY, Senior Appellate Judge.

A Glynn County jury convicted defendant of one count of burglary. Thereafter, the superior court denied defendant’s motion for new trial, and he now appeals, contending that the superior court erred: (1) in failing to sua sponte declare a mistrial after ruling defendant’s custodial statements inadmissible as unwarned, and (2) in denying his motion for new trial on the insufficiency of the evidence.

The uncontroverted evidence adduced at trial showed that Officer Tiona McDaniel of the Glynn County Police Department was dispatched to Fred Stregle Auto Sales at 3309 Glynn Avenue in the early morning hours of July 22, 1997, to investigate a possible burglary — this upon a call for assistance from Joyce Stregle who, while working late at the used car dealership owned by her husband, Fred, heard the sound of breaking glass. Officer McDaniel testified that upon arriving at the dealership she noticed that a light was on inside and observed movement behind the blind of a broken window. Following the arrival of backup officers, Officer McDaniel went through the broken window and arrested the defendant whose left hand was cut and bleeding. Other evidence introduced at trial established that computer equipment and the keys to the cars on the lot were among the valuables inside the dealership and that Mr. Stregle’s checkbook had been moved from the middle left drawer of his desk to the desktop and opened. Held:

1. The superior court did not err in failing to grant a mistrial sua sponte in the case sub judice. After arresting the defendant at the scene of the burglary, Officer McDaniel transported the defendant to the Glynn County Police Department. There, as the defendant was being booked by Detective Wayne M. “Chip” Anderson, Jr. and in the presence of Officer McDaniel, defendant purportedly blurted two custodial statements explaining his presence at the crime scene — first, that he broke into the used car business to take the keys to one of the cars because he needed a place to sleep and, second, that he needed the keys to steal a car to leave town in. Officer McDaniel did not advise the defendant of his Miranda rights because Detective Anderson believed him to be so intoxicated as to require questioning him later. It appears that the presiding judge at the suppression hearing conducted before trial ruled these statements admissible in evidence as volunteered. Defendant’s counsel did not object to these statements when they were initially admitted at trial as a part of Officer McDaniel’s testimony. Counsel, however, later objected as to the admissibility of defendant’s statements in an out-of-court hearing conducted during Detective Anderson’s testimony, arguing that defendant’s statements came in the context of a custodial interrogation because, as Detective Anderson booked the defendant, he asked the defendant if he had been drinking. In an abundance of caution and reversing the ruling on defendant’s motion in limine at the suppression hearing, the superior court ruled that defendant’s custodial statements were inadmissible for want of Miranda warnings. Though the superior court offered to grant a mistrial to defendant on this predicate, the defendant declined through counsel. Thereafter, rather than sua sponte granting a mistrial, the superior court determined that it should give a curative instruction and, after the jury returned to the courtroom, did so without objection. We conclude that defendant, having not moved for a mistrial, waived any right to complain on appeal that a mistrial was not granted, whether upon his request or sua sponte by the superior court. Moreover, defendant here declined the superior court’s offer of a mistrial, thus acquiescing in a trial by jury without sua sponte grant of mistrial. Defendant cannot complain on appeal for this reason as well.

2. Viewed in the light most favorable to the verdict, the evidence is sufficient to authorize the jury’s verdict that the defendant is guilty, beyond a reasonable doubt, of burglary as alleged in the indictment.

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. Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

Decided April 13, 2000.

Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

Independent of defendant’s statements ruled inadmissible by the superior court, it is not in issue that defendant was arrested inside Fred Stregle Auto Sales, a window having been broken and defendant having a bleeding hand. Further, there being no other apparent motive for the defendant entering the dealership, the jury was particularly authorized to infer that he entered the premises with the intent to steal in view of the presence of valuables in the dealership and that a checkbook had been disturbed.

Judgment affirmed.

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

       OCGA § 16-7-1.

       “Under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1969), persons must be advised of their rights with respect to interrogation after being taken into custody or otherwise deprived of their freedom in any significant way. 384 U. S. at 444.” Reinhardt v. State, 263 Ga. 113, 114 (3) (a) (428 SE2d 333).

        Brenneman v. State, 200 Ga. App. 111, 113 (1) (407 SE2d 93) (“If an accused volunteers a noncoerced statement then it is not necessary to invoke the tests which only apply to information obtained as a result of interrogation. ...”) (citations and punctuation omitted).

        Brewer v. State, 219 Ga. App. 16, 19 (4) (463 SE2d 906); see also Stewart v. State, 239 Ga. App. 543 (1) (521 SE2d 468), citing Garner v. State, 199 Ga. App. 468, 469 (2) (a) (405 SE2d 299).

        Osborne v. State, 239 Ga. App. 308, 311 (2) (521 SE2d 226) (“ ‘A party may not acquiesce in actions by the trial court and later complain of that same conduct on appeal. See Davis v. State, 203 Ga. App. 315, 318 (6) (416 SE2d 789) (1992).’ [Cit.]”).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560).

       (Citations and punctuation omitted.) Brewer v. State, 219 Ga. App. at 17 (1), supra.

        Bradshaw v. State, 172 Ga. App. 330, 332 (2) (323 SE2d 253); Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174).


text:
    A99A1840.
    ATKINSON v. THE STATE.
    (531 SE2d 743)
   Blackburn, Presiding Judge.

Following a jury trial, Robert John Atkinson appeals his convictions for misdemeanor possession of marijuana, felony possession of marijuana, and trafficking in cocaine. Atkinson contends that the evidence was insufficient to support his possession of marijuana convictions. Because longstanding Georgia law permits the identification of marijuana by evidence and testimony other than a chemical or scientific test, we affirm.

[0]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Conflicts in the testimony of the witnesses [are] a matter of credibility for the jury to resolve.

(Citations and punctuation omitted.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Atkinson was arrested after police answered a call from a woman who reported that she had argued with Atkinson and he would not permit her to reenter his apartment to retrieve her purse. Officer J. E. Cebula and another officer responded to the dispute and were greeted by Atkinson, the sole occupant of the apartment, at the door. With Atkinson’s permission, the officers entered the apartment and questioned him. During their conversation, Cebula noticed on the coffee table and in plain view what he believed to be numerous partially smoked marijuana cigarettes. He also noticed an open box containing rolling papers, matches, and a marijuana pipe. Cebula requested permission to search the apartment, which Atkinson refused. Cebula then contacted the Marietta/Cobb/Smyrna Narcotics Unit and requested that a search order be processed while he remained on the premises. As they waited, Atkinson became “belligerent” and “more and more agitated,” and Cebula arrested him for possession of marijuana. Shortly thereafter, Agents Hester and Mitchell arrived on the scene with the search warrant. In the course of executing the warrant, they discovered over one ounce of what they believed to be marijuana and a baggie of what they suspected was cocaine.

Atkinson was convicted by a Cobb County jury on charges of trafficking in cocaine, possession of marijuana in an amount greater than one ounce (a felony) and possession of marijuana in an amount less than one ounce (a misdemeanor). At trial, a forensic chemist from the Georgia Bureau of Investigation Crime Lab testified to the composition and chemical purity of the cocaine but acknowledged that he did not test the marijuana.

1. In his amended motion for new trial, Atkinson raised a sufficiency of the evidence argument based on the absence of a scientific test of the marijuana. In a well-supported and thoughtful order, the trial court summarized the existing Georgia law and concluded that expert testimony based on scientific tests was not required to establish that the substance in question was marijuana. We agree.

The recovered marijuana was not without evidentiary value due to the lack of expert testimony since identification of a material or substance may be made by other than expert testimony. [Cits.] Here, defendant did not challenge the identification of the marijuana and made no objection to the testimony as to the nature of the substance found in the bags.

Wiley v. State, 238 Ga. App. 334, 336 (5) (519 SE2d 10) (1999). It is well established that expert testimony is not necessary to identify a substance, including drugs. Burroughs v. State, 190 Ga. App. 467, 470 (1) (b) (379 SE2d 175) (1989); Rabern v. State of Ga., 221 Ga. App. 874, 875 (2) (473 SE2d 547) (1996). And even if police officers are not formally tendered as expert witnesses, if an adequate foundation is laid with respect to their experience and training, their testimony regarding narcotics is properly admitted. Burse v. State, 232 Ga. App. 729, 730-731 (1) (503 SE2d 638) (1998).

In this case, the record establishes that the officers did, in fact, have extensive training in the narcotics field, including specialized training, relevant classes, and extensive experience with handling previous narcotics cases. As a result, the trial court was within its discretion in permitting the officers to give their opinion that the substance in question was marijuana. Millwood v. State, 166 Ga. App. 292, 293 (3) (304 SE2d 103) (1983). “An expert is one whose habits and profession endow him or her with a [particular] skill in forming an opinion on the subject matter in inquiry.” (Punctuation omitted.) Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131) (1991). This Court has recognized such a combination of training and experience as sufficient to qualify one as an expert witness. Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). It follows that these officers’ testimony regarding their training and experience in the field of narcotics identification was sufficient to support their identification of the substance they found as marijuana, even though they were not tendered or qualified as experts. Burse, supra.

Officer Cebula testified that he was assigned to the MCS unit of the Cobb County Police Department for three years as an undercover drug agent. During this work, he became familiar with controlled substances, including marijuana. He also attended a 40-hour, week-long drug identification school at the Georgia Police Academy and became a state-certified marijuana tester. He testified that he was able to distinguish marijuana from items that appear to be marijuana but in fact are not. The partially smoked cigarettes were shown to Cebula at trial, and he testified that in his opinion, based on his training and experience, they were marijuana.

Officer Hester testified that he has become familiar with and handled actual marijuana “constantly” as a part of his training and his job in the MCS unit for four years. He has attended two separate drug identification courses focusing primarily on marijuana and has made several cases involving seizures of marijuana over the past four years. Because of his training and experience, he was able to identify the bag of marijuana he found in a toolbox in Atkinson’s apartment, even without a scientific test. On cross-examination, he denied that he had ever encountered any other substance that appeared to be marijuana but was not.

Officer Mitchell testified that he attended specialized classes during his tenure as an undercover agent with the MCS unit. These included training for high-risk drugs and search warrants for drugs. He also had investigated numerous marijuana cases. On cross-examination, he rejected Atkinson’s suggestion that his testimony was merely his opinion and not factual: “I know what marijuana looks like. I’ve dealt with it hundreds of times. I know what it smells like. I know what it looks like. I didn’t do a test on it, but I do know that is marijuana.”

On cross-examination, Atkinson was able to elicit an acknowledgment from Cebula that not everything that looks like marijuana is in fact marijuana. But Cebula also testified that he was able to make that distinction on the basis of his training and experience. To the extent that this amounted to contradictory testimony, it is not, as Atkinson contends, dispositive of the issue of sufficiency of the evidence. The credibility of witness testimony lies within the discretion of the jury. See Taylor, supra. In making its decision, the jury as trier of fact was authorized to believe parts of the officers’ testimony and reject other parts. Hicks v. State, 221 Ga. App. 735, 736 (1) (472 SE2d 474) (1996).

Other circumstances surrounding the arrest also support the jury’s verdict. The opinion testimony in this case is further reinforced by the presence of drug paraphernalia, such as hemostats, pipes, rolling papers, and partially smoked cigarettes, as well as crack pipes and other cocaine paraphernalia and substances to “cut” cocaine and prepare it for sale. Moreover, Atkinson did not object to the officers’ testimony or contend at trial that the substance was anything but marijuana. Rabern, supra. For all these reasons, the State has established sufficient evidence to enable a rational trier of fact to sustain Atkinson’s marijuana convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Atkinson’s reliance on Adkinson v. State, 236 Ga. App. 270, 271 (1) (a) (511 SE2d 527) (1999), is misplaced. Adkinson and Phillips v. State, 133 Ga. App. 392, 393 (210 SE2d 858) (1974), required reversal of the defendants’ convictions under circumstances which do not exist in the present case. Specifically, in those cases, the evidence did not exclude every reasonable hypothesis save that of the guilt of the defendants. See Jackson v. Virginia, supra.

Adkinson relied upon Phillips, a case which was factually similar. Phillips involved a possession of marijuana conviction arising out of the execution of a search warrant of a mobile home owned by a third party. Phillips, Dean, and Brady were present. Dean was observed with a plastic bag that was shown by expert testimony to contain marijuana. Several cigarette butts were also shown by expert testimony to contain marijuana, but the record does not reflect where this evidence was found. Phillips leased a bedroom in the trailer where an egg carton was found containing growing plants about one inch in size. The Court held that these plants were the only evidence relevant to the appeal as Phillips was not shown to be in possession of either the baggie or the cigarette butts.

The plants, which were never analyzed or inspected by the State Crime Laboratory, were taken to the sheriff’s office and discarded. The sheriff testified that he thought that the seized plants were marijuana, “but to know I don’t.” He had previously observed a growing marijuana plant. In Phillips, the State’s expert from the crime laboratory testified “that many other hemp plants and marijuana have similarities, look alike, and that the only way the crime laboratory can determine whether or not a growing plant contains marijuana is by a chemical analysis.” Id. at 393.

In reversing Phillips’ conviction for possession of marijuana, this Court determined that:

[ajlthough the sheriff was permitted to state in his inexpert opinion that these small plants were marijuana, this statement is insufficient to exclude “every other reasonable hypothesis save that of the guilt of the defendant.” This conclusion is demanded as a matter of law in view of the testimony of the expert that a marijuana plant is similar in appearance to other hemp plants. It follows that it would be a reasonable hypothesis that the plants could have been hemp and hemp plants do not authorize convictions.

Phillips, supra at 393.

Adkinson involves, inter alia, violations of the Georgia Controlled Substances Act and possession by Adkinson of marijuana found in his car. At trial, the GBI chemist testified that although he thought the green leafy material was marijuana, he did not test it, so he could not testify beyond a reasonable doubt that it was marijuana. One narcotics investigator testified that there are a lot of leafy substances that look like marijuana but are not marijuana.

Like Phillips, this evidence does not exclude every reasonable hypothesis save that of the guilt of the defendant. See Jackson v. Virginia, supra. “It follows that it would be a reasonable hypothesis that the [material found] could have been hemp and hemp plants do not authorize convictions.” Phillips, supra at 393. Reversal under these facts was required. It does not follow, however, that no lawful conviction could ever be obtained absent a scientific test of the substance, and to the extent that Atkinson’s argument implies that evidence must be scientifically conclusive in order to identify marijuana or other drugs, it is without merit.

Decided March 17, 2000

Reconsideration dismissed April 14, 2000.

Lawrence W. Daniel, for appellant.

Robert J. E. Atkinson, pro se.

Patrick H. Head, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

2. In his brief, Atkinson presents no citations to the record or transcript and no argument to challenge his conviction for trafficking in cocaine, other than a single sentence making the conclusory statement that the evidence is insufficient, followed by a general citation to Jackson v. Virginia, supra. “Mere conclusory statements such as those made here are not the type of meaningful argument contemplated by that rule. [Cits.]” Jenkins v. State, 240 Ga. App. 102, 103 (1) (522 SE2d 678) (1999). Under Court of Appeals Rule 27 (c) (2) and (3), therefore, Atkinson’s appeal of the cocaine trafficking conviction is deemed abandoned.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Andrews, P. J., Smith, Ruffin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ, concur.


author: Ruffin, Judge.

text:
    A99A2152.
    A99A2153.
    BELLAMY v. THE STATE. LEWIS v. THE STATE.
    (530 SE2d 243)
   Ruffin, Judge.

Michael Wayne Bellamy and Anthony Mark Lewis were tried jointly for trafficking in methamphetamine and possession of methamphetamine. Following a bench trial, the trial court found the two guilty of both offenses. On appeal, Bellamy and Lewis challenge the sufficiency of the evidence. They also assert that the trial court erred (1) in denying a motion to suppress; (2) in admitting hearsay evidence; and (3) in failing to merge the possession count with the trafficking count. Because the appellants raise identical enumerations of error, we have consolidated the two appeals. For reasons that follow, we affirm.

The record demonstrates that, on December 2, 1997, members of the National Guard who were working with the East Metro Drug Enforcement Task Force (Task Force), were observing the house of a suspected drug trafficker from the woods nearby. The Task Force had information that a resident of the house was selling methamphetamine and that he stored the drugs somewhere on the property.

William Conger, a National Guard officer, testified that he saw two men drive up in a white Suburban and enter the house. Although it was dark outside, the front porch light was on, and Conger was able to identify Bellamy and Lewis as the two men exiting the truck. Approximately five minutes later, the two men left through the back door of the house and, carrying a flashlight, walked into the woods behind the house. Using binoculars and a night vision device, Conger saw Bellamy and Lewis dig in the ground before returning to the house with what appeared to be a plastic bag.

At 8:00 p.m., about an hour and a half after the guardsmen began observing the house, officers from the Task Force arrived to execute a search warrant. By the time the officers arrived, Conger had seen Bellamy and/or Lewis make a total of four trips into the woods. Conger also had watched the two men through the kitchen window, and he saw the two cooking something.

As the officers approached the house, Lewis came out the front door. The police identified themselves and ordered Lewis to stop, but he ran back into the house. One officer heard Lewis tell the other occupants that the police were there. Conger, who was still looking through the kitchen window from his vantage point in the woods, saw Bellamy run into the kitchen and begin pouring some sort of liquid down the sink.

The officers found Bellamy near the sink, with the water running. Officer Barry McIntosh searched Bellamy and found money and a pager. In the kitchen, McIntosh also found two plastic bags containing a chalky, white substance, scales, spoons, and two glass jars. Chemical testing revealed that the jars contained liquid methamphetamine and that the bags contained a total of 139.5 grams of methamphetamine.

Agent Robert Goodson found Lewis locked in a bathroom, sitting on top of the closed toilet seat. A search of Lewis yielded over $580.

Goodson took Bellamy outside and read him his Miranda rights. Bellamy then asked Goodson what he wanted to know, and Goodson asked Bellamy where he obtained his methamphetamine. Bellamy responded, “I can’t tell you that.” Goodson asked if there was any additional methamphetamine in the woods, and Bellamy said that the officers “had it all.”

1. In two enumerations of error, Bellamy and Lewis assert that the trial court erred in denying their motions to suppress. These assertions lack merit.

(a) With respect to Bellamy, we find that he waived the right to challenge the admissibility of the evidence on this ground by failing to file a written motion to suppress as required by OCGA § 17-5-30 (b).

(b) With respect to Lewis, we find that the trial court did not err in denying his motion to suppress. In reviewing the trial court’s denial, we construe the evidence most favorably to uphold that court’s ruling. In so doing, we defer to the trial court’s determination on the credibility of witnesses, and we accept the court’s ruling on disputed facts unless it is clearly erroneous.

In this case, the officer who swore out the affidavit testified that on December 1, 1997, a man was arrested for possession of methamphetamine. The arrestee told the officer that he obtained his drugs from a supplier named Mike, and the arrestee provided a physical description. The arrestee further stated that he would go to a house on Richard Road to pick up the methamphetamine and that sometimes Mike would have the methamphetamine in the house, but other times he would go outside the house for a few minutes and return with the drugs, as if he kept the drugs outside.

The arrestee agreed to act as an informant. While the police were listening on the phone, he called his supplier and arranged to buy two ounces of methamphetamine. The man with whom the informant spoke told the informant to come by the house in an hour to pick up the drugs. The informant described the house to police as a house on Richard Road with an American flag hanging in the front yard. The police verified the existence of a house matching the description given by the informant, and, on December 2, 1997, officers from the National Guard set up an observation point in the woods near the house. The guard officers observed men leave the house, walk into the woods, and return to the house.

Based upon this information, a search warrant was obtained, and the police found the methamphetamine. Bellamy and Lewis moved to suppress the evidence, and the trial court denied their motion, ruling that the affidavit upon which the search warrant was based sufficiently established probable cause. When, as here, probable cause for a search warrant is based upon an informant’s tip, the standard for admissibility of the evidence obtained is whether:

under the totality of the circumstances, including the veracity and basis of knowledge of the informant, there is a fair probability that contraband or evidence of a crime will be found in a particular place. While . . . knowledge is no longer an absolute requirement . . . , veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.

The State argues that the informant may be considered reliable because he made a statement against his penal interest. But the informant in this case was an unnamed informant, and thus, the “statement against interest” rule does not apply. The tip from the unnamed informant may nevertheless:

be proved reliable if portions of the tip are sufficiently corroborated. For the corroboration to be meaningful, the information corroborated must include a range of details relating to future actions of third parties not easily predicted, not to easily obtained current facts.

Here, the tip was sufficiently corroborated. Not only did the informant tell the police about his supplier’s past behavior, he also agreed to set up a drug buy and allowed the police to listen on the phone when the arrangements were made. The informant then directed the police to the house where they observed a man walking into the woods to retrieve an item after the drug buy was arranged. Under these circumstances, the trial court did not err in finding the informant’s tip sufficiently corroborated.

(c) In a related enumeration of error, Lewis argues that the trial court should have suppressed the evidence because the information upon which the affidavit was based was obtained illegally. Specifically, Lewis contends that the National Guardsmen who supplied information for the warrant observed Bellamy and Lewis walk into the woods from a vantage point located on the property itself. Lewis argues that because the intrusion on the property was not valid, the evidence must be suppressed.

At the motion to suppress hearing, no testimony was presented regarding whether the guardsmen were located on the Richard Road property or on a neighboring property. The only testimony showed that the officers were up a hill some yards from the house. Pretermitting whether the guardsmen were located on the Richard Road property, we find no basis for reversal.

“[E]vidence exclusion is an extreme sanction and one not favored in the law.” We have held that a suppression motion “must be sufficient to put the State on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” We reasoned that such a rule would prevent suppression by ambush by discouraging defendants from obscuring or concealing the relevant issue until after the evidentiary hearing. In his motion to suppress, Lewis did not argue that the evidence should be suppressed because the warrant was predicated upon unlawfully obtained information. Thus, he has waived this issue on appeal.

2. Bellamy and Lewis argue that the State failed to prove an essential element of the case because the forensic chemist who tested the drugs was unable to say whether the methamphetamine was pure or a mixture. Thus, the defendants assert, there is a fatal variance between the indictment, which alleged that the substance was a mixture, and the proof at trial. This assertion is absurd.

As the Supreme Court noted in Gonzalez v. Abbot, “No one . . . would take seriously the argument. . . that charging the defendant with trafficking in a ‘substance containing cocaine’ created a fatal variance with proof at trial that the defendant possessed a ‘mixture containing cocaine.’ ” But that is essentially the argument the defendants make by suggesting that, by being charged with trafficking in a “mixture” containing methamphetamine, there is a fatal variance if, in fact, the evidence shows that they actually were trafficking in pure methamphetamine. The statute under which the defendants were charged, OCGA § 16-13-31 (e), treats pure methamphetamine and a mixture containing methamphetamine equally. Accordingly, any variance in proof at trial regarding whether the substance was a mixture containing methamphetamine or pure methamphetamine is not fatal.

3. Bellamy and Lewis next assert that the trial court erred in admitting the forensic chemist’s testimony that the substance she tested was methamphetamine. The two contend that the best evidence of the test results was the printout from the machine rather than the testimony of the expert. Additionally, Bellamy and Lewis argue that the chemist’s testimony constituted inadmissible hearsay. These assertions are meritless.

The best evidence rule, or the “original document rule,” provides that “[i]n order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” “When the existence of a fact, and not the contents of a writing, is the question at issue, both oral and written evidence of the fact may be admitted as primary evidence.”

As an initial matter, we are not persuaded that the raw data from a printout constitute a “writing” within the meaning of the best evidence rule. Even if the printout is a writing, the best evidence rule does not bar introduction of the chemist’s oral testimony regarding the test results. The issue here is the existence of a fact — whether the substance tested was methamphetamine — and not the contents or terms of the writing. Thus, the issue may be proved both by oral and written evidence.

To the extent that Bellamy and Lewis challenge the admissibility of the evidence on hearsay grounds, this contention is equally meritless. In their briefs, the defendants contend that the chemist who testified did not actually perform the testing, but merely supervised. This contention is flatly contradicted by the record. Moreover, regardless of whether the chemist tested the substance or supervised the testing of the substance, her testimony regarding the results is admissible.

4. Bellamy and Lewis challenge the sufficiency of the evidence to support the verdicts against them. In reviewing such a challenge, we view the evidence in the light most favorable to support the verdict, and the defendants no longer enjoy a presumption of innocence. So viewed, the evidence was more than ample to sustain the verdicts against Bellamy and Lewis both for trafficking in methamphetamine and possession of methamphetamine.

5. In their final enumeration of error, Bellamy and Lewis argue that the trial court erred in failing to merge the trafficking count with the possession count. Under OCGA § 16-1-7 (a) (1), offenses may merge either as a matter of law or as a matter of fact. “The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts.” Here, the evidence demonstrated that, in addition to the 139.5 grams of methamphetamine, the defendants also had a jar filled with liquid that tested positive for methamphetamine. The liquid, which was never weighed, constituted a separate amount of methamphetamine not accounted for in the trafficking charge. The indictment for the possession charge clearly stated that the possession charge was based upon methamphetamine “separate from the quantity described” in the trafficking charge. We cannot say that the trial court, as the finder of fact, was required to find that the defendants possessed the liquid in the jar for the purpose of trafficking. Under the circumstances, we cannot say that the trial court erred in failing to merge the two offenses.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

On Motion for Reconsideration.

With regard to Division 1 (a) of the opinion, we found that Bellamy waived the right to appeal the trial court’s denial of his motion to suppress by failing to file a written motion. On motion for reconsideration, Bellamy points to that portion of the record in which he did file such a motion, and he requests that we address the merits of his appeal on this issue. For the reasons set forth in Divisions 1 (b) and (c) of our opinion, Bellamy’s claim of error lacks merit. Accordingly, the result remains the same.

Motion for reconsideration denied.

Decided February 29, 2000

Reconsideration denied April 14, 2000

Chestney Hawkins Law Firm, Michael M. Hawkins, Guy E. Davis, Jr., for appellants.

Richard R. Read, District Attorney, Brian C. Max, Assistant District Attorney, for appellee.

       Susie Gaudet and Michael Wayne Bellamy, Sr. also were charged with trafficking in methamphetamine and possession of methamphetamine, and Bellamy, Sr. was charged with possession of marijuana. Bellamy, Sr. was tried and found guilty of the two possession counts but was acquitted of trafficking in methamphetamine. Gaudet was scheduled to be tried with her co-defendants but failed to appear for trial. Neither is a party to this appeal.

        Belcher v. State, 230 Ga. App. 235, 236 (1) (496 SE2d 306) (1998).

       We question whether Lewis has standing to challenge the validity of the search warrant as he did not live at the house that was searched. For purposes of our analysis, however, we will assume he has standing.

        Floyd v. State, 237 Ga. App. 586 (516 SE2d 96) (1999).

       Id.

        Mitchell v. State, 239 Ga. App. 735, 736 (1) (521 SE2d 873) (1999).

        State v. Wesson, 237 Ga. App. 789, 791 (516 SE2d 826) (1999).

       Id.

       Cf. Smith v. State, 237 Ga. App. 616, 619 (2) (516 SE2d 319) (1999) (by setting up drug buy, informant established reasonable suspicion).

        Mitchell v. State, supra.

        State v. Roddy, 231 Ga. App. 91, 93 (497 SE2d 653) (1998).

       (Punctuation and emphasis omitted.) Id.

       Id.

       262 Ga. 671, 673 (1), n. 4 (425 SE2d 272) (1993).

       See Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) (1982).

       (Emphasis supplied.) Merrill Lynch &c. v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981).

        State v. Hortman, 185 Ga. App. 756, 757 (1) (365 SE2d 887) (1988).

       See Gay v. State, 228 Ga. App. 248, 249 (491 SE2d 469) (1997) (“OCGA § 17-7-211 applies to scientific reports in writing and not oral reports of experts relaying the results of tests”) (punctuation omitted); see also Martin v. State, 214 Ga. App. 614, 619 (5) (448 SE2d 471) (1994).

        Hortman, supra.

        Robinson v. State, 231 Ga. App. 368, 370 (3) (498 SE2d 579) (1998) (“Where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based in part on the other’s findings”) (punctuation omitted).

        Inglett v. State, 239 Ga. App. 524, 527 (6) (521 SE2d 241) (1999).

       Id.; Snoke v. State, 237 Ga. App. 686, 687 (1) (516 SE2d 541) (1999).

        Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998).

        Timberlake v. State, 200 Ga. App. 64, 69-70 (7) (406 SE2d 537) (1991); Cassie v. State, 192 Ga. App. 484, 486 (2) (385 SE2d 129) (1989).