author: Smith, Judge. Beasley, Judge,

text:
    A97A2467.
    JOHNSON v. THE STATE.
    (499 SE2d 145)
   Smith, Judge.

Steven Quinton Johnson was indicted by a Cherokee County grand jury on one count of aggravated child molestation, OCGA § 16-6-4 (c), and one count of child moléstation, OCGA § 16-6-4 (a). He was convicted by a jury, his motion for new trial was denied, and he appeals. At Johnson’s trial, the State introduced a “final protective order” obtained by Johnson’s then wife after his arrest and confinement in jail on these charges. The admission of this document, which was read in its entirety to the jury, was harmful error under the circumstances of this case, and we must reverse.

1. Johnson’s contention that the evidence is insufficient to sustain his conviction is without merit. The victim’s testimony alone was sufficient to sustain the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790) (1993).

2. At trial, Johnson questioned his wife regarding the divorce petitions she filed against her two previous husbands. According to Johnson, her divorce actions demonstrated a pattern of making false allegations of cruel treatment and child abuse in order to obtain marital assets. In response to this line of questioning, the State offered a document styled “Final Protective Order” obtained by Johnson’s wife pursuant to OCGA § 19-13-1 et seq. The State argued to the trial court on Johnson’s objection, and to the jury in closing argument, that the document constituted an “admission” or “agreement” by Johnson that he had committed “acts of family violence” against his wife and the victim and thus, by implication, the acts charged in the indictment. The trial court noted that it was a “close call,” but admitted the order and allowed the State to read it to the jury in its entirety.

The State tacitly acknowledges that this order was prejudicial to Johnson and placed his character in evidence; the State argues on appeal that the order was relevant and material and the fact that it incidentally placed Johnson’s character in evidence did not render it inadmissible. We disagree.

It is well established under Georgia law that “ ‘[t]he judgment in a civil action is not admissible in a criminal action to prove any fact determined in the civil action.’ [Cits.]” Flynt v. State, 153 Ga. App. 232, 243 (1) (264 SE2d 669) (1980) (statistics cited in federal court order not admissible in state criminal proceeding). No dispute exists that the petition brought by Johnson’s wife under the Family Violence Act was a civil action; OCGA § 19-13-3 (c) explicitly provides for a preponderance of the evidence standard “as in other civil cases,” and the petition was assigned a civil action number.

While the State characterizes the court order as an “admission” by Johnson, “[a]dmissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil cases. They should not be treated as evidence against the accused unless shown to have been authorized by him.” (Citations and punctuation omitted.) Dryer v. State, 205 Ga. App. 671, 672, n. 1 (423 SE2d 297) (1992). This is not a case in which a defendant’s recorded testimony in a civil matter, sworn to and certified by a court reporter, was introduced into his criminal prosecution as an admission. See, e.g., Lam v. State, 208 Ga. App. 324, 325 (2) (430 SE2d 775) (1993) (State introduced into criminal trial transcripts of defendant’s testimony in bankruptcy and civil court proceedings). Nor is this a case in which a defendant was represented by counsel and acquiesced in a stipulation made in open court in the criminal matter itself, as in Dryer, supra at 673.

In contrast, Johnson was brought from the jail in shackles to respond to his wife’s petition. Unlike his wife, he was unrepresented by counsel. The record reveals no transcript of the proceedings or Johnson’s testimony; according to Johnson’s counsel below, Johnson made no admissions and was never afforded an opportunity to review the court’s order. His wife’s counsel, who also represented her in the divorce, drafted the order. “The common practice of directing counsel for the prevailing party to prepare the judgment for the trial court’s signature, although not reversible error, has been greatly disfavored by this court, as well as by the United States Supreme Court. [Cits.] . . . The reasons for this disfavor have been particularly well illustrated in the case at bar.” PDA, Inc. v. Haas Corp., 185 Ga. App. 785, 786 (366 SE2d. 169) (1988). Taking all these circumstances into consideration, the trial court erred in admitting the “final protective order” and allowing it to be read in its entirety to the jury.

Nor can we say that admission of this evidence was harmless in the context of this case. The victim’s testimony was not corroborated by any medical or psychological evidence. The only corroboration of the victim’s testimony was provided by her mother, Johnson’s opponent in an obviously bitter divorce. Evidence also was presented that the 14-year-old victim did not raise the allegations until she encountered disciplinary problems at school and was faced with suspension for misconduct, including falsifying school records. In essence, this case pitted Johnson’s credibility against that of the victim, and we cannot rule out the possibility that the “final protective order,” by improperly giving judicial imprimatur to the victim’s accusations, affected the jury’s verdict.

3. We address those remaining enumerations of error likely to recur at trial. In one enumeration of error, Johnson contends the trial court erred in denying his motion to suppress a number of adult magazines and an adult videotape. These items were provided to the State by his wife after she met with a police detective and assistant district attorney. According to her testimony at trial, they asked her if there were any “dirty magazines” in the house, and she responded that there were not. The detective told her it would be “helpful” if the State had books or magazines to corroborate her daughter’s allegations. The assistant district attorney asked her to search the house and call him if she found anything. She testified that she then located the items which form the basis of Johnson’s motion to suppress.

It is well established that no illegal search and seizure occurs when a private citizen independently discovers contraband or other evidence of illegal conduct and then brings it to the attention of law enforcement. Hester v. State, 187 Ga. App. 46, 47 (1) (369 SE2d 278) (1988) (mechanic discovered drugs hidden in car and informed police); see also Williams v. State, 257 Ga. 788, 789 (3) (364 SE2d 569) (1988) (hospital removed bullet from defendant and gave to police; officers testifed they never asked or told hospital to remove bullet).

It is also well established that the State cannot avoid a Fourth Amendment challenge to a search and seizure by asking a private citizen to act on its behalf and seek out evidence. Such a search would be “conducted in concert with law enforcement authorities, thus triggering the safeguards of the Fourth Amendment. [Cits.]” Pervis v. State, 181 Ga. App. 613, 614 (1) (353 SE2d 200) (1987). “The test is whether the private individual, in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the government when he produced the evidence.” (Citations and punctuation omitted.) Marks v. State, 174 Ga. App. 711, 714 (330 SE2d 900) (1985).

Although it is apparent that the State became involved in the search and seizure of the items at issue here by requesting or directing the participation of a private citizen, we nevertheless find no error because Johnson’s wife also lived in the marital residence and had common authority over it and its contents. Johnson v. State, 266 Ga. 140, 141 (464 SE2d 806) (1996). She had the right to grant the State permission to search her own residence, and she had the right to lead officers of the State to items located there. Id. It follows that she could search her own residence for items requested by officers of the State.

We recognize the risk pointed out by Johnson, that an interested party might fabricate rather than discover items already suggested by the State as favorable to the prosecution. But, as noted in Division 4 below, this goes to the weight of the evidence, not its admissibility. The trial court did not err in denying Johnson’s motion to suppress.

4. In another enumeration of error, Johnson contends that the magazines and videotape should not have been admitted as evidence at trial. He argues that the State did not sufficiently establish the origin or ownership of the items, and that the items produced at trial did not conform to the detailed descriptions given by the victim of magazines and tapes Johnson allegedly showed her. Johnson’s first argument is without merit because no chain of custody requirement exists for a distinct physical object such as a videotape. Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313) (1993); see also Ingram v. State, 211 Ga. App. 252, 256 (438 SE2d 708) (1993). Second, the inconsistencies in the identification of the magazines and videotape go to weight rather than admissibility. Johnson brought out these points on cross-examination, including testimony that the items produced by Johnson’s wife did not match the description of the items identified by the victim, and that some of the items belonged to Johnson’s wife rather than to Johnson. Regardless of whether these materials corroborated the victim’s testimony, they were admissible to show Johnson’s “state of mind and lustful disposition.” King v. State, 209 Ga. App. 529, 530-531 (2) (433 SE2d 722) (1993).

Judgment reversed.

McMurray, P. J, Birdsong, P. J., Ruffin and Eldridge, JJ, concur. Andrews, C. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I concur in Divisions 1, 3 and 4 of the majority opinion but respectfully dissent with respect to Division 2 and the reversal of the trial court’s judgment. The conviction should be affirmed because the admission into evidence of the protective order did not constitute reversible error in this case.

When the State introduced the order during redirect examination of the child-victim’s mother, defendant objected on two grounds. The first was that it was an ex parte order obtained against defendant, when unrepresented by counsel, soon after he was arrested on the charges now being tried and just prior to instituting a separate action for divorce and thus was not relevant.

The second basis for the objection was that the document impermissibly injected defendant’s character into evidence, which is prohibited by OCGA § 24-9-20 (b). Defendant conceded that if it was a divorce order, “it might be relevant.”

The two grounds stated at trial are the only two grounds upon which this Court can rule on appeal, for the trial court had no opportunity to consider any other bases for excluding the evidence and therefore cannot be held to have erred. Chesser v. State, 228 Ga. App. 164,165 (1) (491 SE2d 213) (1997) (“At trial, appellant failed to object to the admissibility of the map on the same grounds as asserted in his enumeration of error and brief; accordingly, he has waived on appeal all issues of admissibility to which he failed to pose a timely objection at trial”); McGee v. State, 205 Ga. App. 722, 729 (12) (423 SE2d 666) (1992) (“At trial appellant timely objected to the admission of the tape only on the grounds [of the victim’s age]. Accordingly, all other objections, including but not limited to improper bolstering, lack of adequate foundation, and double hearsay . . . were waived”); Fletcher v. State, 199 Ga. App. 756, 757 (406 SE2d 245) (1991) (same).

1. The evidence was relevant. Defendant’s theory of the case was that the mother had fabricated the charges and orchestrated the child’s accusations and trial testimony in order to divorce defendant and obtain custody of the children and defendant’s property, the marital property, and support. In order to prove this, defendant introduced during cross-examination of the mother her complaint in a prior divorce, filed in 1988, in which she alleged that her then-husband had inflicted physical abuse on her and continued to harass and threaten her and their child.

He cross-examined her about this allegation and about the things she was asking for (custody, support, attorney fees, equitable division of property), in an effort to show that she had a pattern of making false accusations against husbands in order to obtain divorces and gain custody, property, and support. He also cross-examined her about this prior history in an effort to show that it was this, and not defendant’s alleged acts, which was the cause of the child’s “dysfunction” in accusing defendant of the acts for which he was on trial and in having difficulties at school.

In his closing argument to the jury, defendant elaborated on his theory of fabrication, attacking the mother’s credibility (and thus the child’s) by urging that she had an ulterior self-interested motive or “agenda” in testifying against defendant and in influencing the child. This agenda, defendant asserted, was to acquire all the benefits she sought in a divorce from defendant as shown by her marital history.

The State rebutted the argument that the charges were the mother’s contrived scheme by arguing, based on the mother’s testimony, that the prior divorce situations were not falsely alleged with respect to abuse and were not unwarranted efforts to gain undeserved benefits. The State further reasoned that the offenses charged in this case had actually occurred and the mother’s testimony and that of her daughter were truthful, as shown by the fact that shortly after the mother learned of defendant’s activities and he was charged, a superior court judge granted a domestic violence protective order. In countering the objection to this evidence at trial, the State similarly explained this relevance.

In ruling on the objection, the court understood the relevance of the document. It stated: “And you’re [defendant] trying to show a pattern of conduct on her part [to which defendant agreed] and . . . [t]his would contradict that. . . . Your contention is that she falsely made these accusations [to which defendant agreed] . . . like she’s done in two other divorce cases. And now, he’s trying to show that a court has looked into it, found that there was some justification for it, and that [defendant] agreed to it.” The court correctly analyzed the issue of admissibility.

Final orders and judicial approvals of consent agreements as the one at issue here are undertaken “to bring about cessation of acts of family violence” pursuant to verified petition and hearing of which respondent is notified. OCGA § 19-13-4 (a) and (c). Defendant was present for the hearing which resulted in the order. It is presumed the court in the domestic violence action conducted its proceedings and entered the order properly, upon exercise of the discretion given to it by that law. Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984) (“there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction”); Cox v. City of Lawrenceville, 168 Ga. App. 119, 120 (1) (308 SE2d 224) (1983) (“Absent a showing to the contrary, the proceedings in the trial court are presumed to have been conducted in a regular and legal manner”).

2. Defendant’s second ground of objection was that the document placed his character in issue when he had not done so. He cannot avoid the consequences, however, of his opening the door for such evidence by seeking to prove falsity in unrelated court proceedings. By seeking to impeach the mother as he did, he created a necessity for the State to demonstrate to the jury that her credibility was not thereby impugned. The State was permitted to do so. Perkins v. State, 226 Ga. App. 613, 615 (1) (487 SE2d 365) (1997) (“Inquiry as to impermissible bolstering no longer is necessary. . . . Because the victim’s credibility was under attack, the court properly allowed the State to show that he had made prior consistent statements to investigators”); McGee, supra, 205 Ga. App. at 727 (same); compare Blige v. State, 264 Ga. 166, 167 (2) (441 SE2d 752) (1994) (“evidence which goes to a witness’ credibility is not relevant unless produced to attack the credibility of a witness, or to rehabilitate credibility when it has been attacked”) (Emphasis supplied.).

Decided March 20, 1998

Reconsideration denied April 1, 1998

Roderick H. Martin, Carol A. Lastorino, for appellant.

Garry T Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

Because the substance of the protective order was based on her verified petition, it was admissible as evidence of a prior consistent statement. Postell v. State, 200 Ga. App. 208, 210 (3) (407 SE2d 412) (1991) (where witness veracity at issue, prior consistent statement admissible).

If the document incidentally put his character in issue because it gave credence to the very charges for which he was being tried, it did not thereby become inadmissible. Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995) (“evidence which ‘is otherwise relevant . . . does not become inadmissible simply because it incidentally puts a defendant’s character or reputation into evidence’ ”); Mulkey v. State, 250 Ga. 444, 446 (3) (298 SE2d 487) (1983) (this is especially true if the defendant opened the door); Mason v. State, 180 Ga. App. 235, 238 (3) (348 SE2d 754) (1986) (especially true if defendant opened the door).

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

       Johnson’s wife’s petition for divorce was pending at the time of trial.

       The State also argued that Johnson had “opened the door” to questions regarding the divorce proceedings between him and his wife. Even assuming that Johnson “opened the door” to questions regarding the divorce proceedings, the “final protective order” was not part of the divorce proceedings. It was a petition brought by his wife pursuant to OCGA § 19-13-1 et seq. before the divorce action had been filed; it was a separate proceeding and assigned a separate civil action number. More importantly, this argument does not address the underlying relevance or admissibility of the order.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A2555.
    SHARPNACK et al. v. HOFFINGER INDUSTRIES, INC.
    (499 SE2d 363)
   McMurray, Presiding Judge.

This is the second appeal before this Court of this products liability action based on a tragic incident in which a 15-year-old boy received spinal injuries which rendered him a quadriplegic when he dived from a mini-trampoline into an above-ground swimming pool. In the earlier appéal, this Court affirmed the grant of summary judgment in favor of defendant Hoffinger Industries, Inc., the manufacturer of the pool, on plaintiff’s negligence and strict liability claims. This Court’s decision was based on “palpably clear” evidence that the plaintiff assumed the risk of his injuries so that his own action was the sole proximate cause of his injuries. Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 834 (1), 835 (479 SE2d 435). The decision on the prior appeal did not reach certain additional claims raised in plaintiff’s amended complaint and as to which the superior court had neither granted nor denied summary judgment. Id. at 836 (3).

Following remand to the superior court, defendant moved for and received a grant of summary judgment as to the claims presented in plaintiff’s amended complaint. Plaintiff concedes that one of these claims, based on negligent and defective retrofit campaigns is controlled adversely to him by the decision in the previous appeal. This appeal is based on plaintiff’s contention that the superior court erred in granting summary judgment as to the remaining claim based on fraudulent destruction or concealment of evidence, or as sometimes referenced by plaintiff, the spoliation of evidence claim. Held:

Defendant maintains that Georgia law does not recognize spoliation of evidence as a separate tort and notes that this Court has stated as much in Gardner v. Blackston, 185 Ga. App. 754, 755 (1) (365 SE2d 545). Plaintiff contends that the statement in Gardner is dicta and relies upon the holding in a fraud case, Ingle v. Swish Mfg. Southeast, 164 Ga. App. 469, 471 (3), 472 (297 SE2d 506), as demonstrating a contrary holding. All parties have also cited to the case law of other jurisdictions, thus tracing the development of a body of law in regard to spoliation claims.

“Spoliation” is the destruction or the significant and meaningful alteration of evidence. See Martin v. Reed, 200 Ga. App. 775 (1) (409 SE2d 874). Whether or not recognized as a separate tort, spoliation of evidence has long been recognized in Georgia as an appropriate basis for appropriate sanctions in the decision of the underlying case. Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 524 (1), 525 (484 SE2d 249); Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539 (469 SE2d 783); American Cas. Co. v. Schafer, 204 Ga. App. 906, 908-909 (3) (420 SE2d 820).

Intentional spoliation of evidence was first recognized as an independent tort in Smith v. Superior Court, 198 Cal. Rptr. 829 (1984). The new tort was soon recognized in Florida and Alaska. Bondu v. Gurvich, 473 S2d 1307, 1313 (1984); Hazen v. Municipality of Anchorage, 718 P2d 456 (1986). Thereafter intentional spoliation of evidence was asserted as a separate tort in a number of jurisdictions, sometimes successfully and sometimes not.

In addition to the tort of intentional spoliation of evidence, other jurisdictions have recognized distinguishable but closely related torts. This includes negligent spoliation of evidence and also torts involving concealment rather than destruction of evidence.

Decided March 17, 1998

Reconsideration denied April 1, 1998

Mozley, Finlayson & Loggins, Robert M. Finlayson II, Richard D. Hall, for appellants.

Finley & Buckley, Timothy J. Buckley III, for appellee.

Recognizing that spoliation or concealment of evidence is a serious discovery abuse, that the remedies for that abuse may not be adequate in the absence of recognizing a separate tort, and that with the passage of time since Gardner v. Blackston, supra, the body of reasoning in regard to the claim asserted by plaintiff has grown, a fresh look at the issue of whether Georgia should recognize an independent tort of this type may be appropriate. Nonetheless, this is not an appropriate case in which to conduct such a re-examination of Georgia law.

Even if a tort of spoliation or fraudulent concealment of evidence were recognized, the facts of the present case do not support any claim. The underlying goal of the spoliation tort and related theories is to provide a remedy for prejudice to an opportunity to obtain compensation for the injuries upon which the underlying litigation is predicated. In other words, the spoliation tort involves “interference with the opportunity io win a lawsuit. Smith, 198 Cal. Rptr. at 837.” Baugher v. Gates Rubber Co., 863 SW2d 905, 910 (1993). See also Hirsch v. Gen. Motors Corp., 628 A2d 1108 (1993).

In the case sub judice, the failure of plaintiff’s underlying negligence and product liability claims resulted from the successful assertion of the defense of assumption of risk. The evidence which plaintiff maintains was spoliated or concealed related only to his prima facie case and could not have affected the outcome of the underlying claims. As plaintiff cannot establish any causal link between the failure of his underlying claims and the alleged misconduct by defendant, the grant of summary judgment in favor of defendant was not error.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Ruffin, Judge.

text:
    A97A2558.
    TATE et al. v. HOLLOWAY.
    (499 SE2d 72)
   Ruffin, Judge.

Billy Ray Holloway sued Max Tate and V. M. Battle Company, Inc. (“Battle”) for malicious prosecution. Following trial, the jury returned a verdict in favor of Holloway. The defendants appealed, asserting that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict (“j.n.o.v.”). We agree with the defendants and therefore reverse the trial court’s judgment.

In reviewing the trial court’s denial of the defendants’ motions for directed verdict and j.n.o.v., we must view the evidence presented at trial, with all reasonable deductions therefrom, in a light most favorable to the prevailing party and determine whether there was any evidence to support the verdict. Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997); Truck Parts &c. v. Rutledge, 211 Ga. App. 166 (2) (438 SE2d 404) (1993). Viewed in this light, the evidence at trial showed that beginning in July 1991, Holloway was employed by Battle, a company that installed telephone lines. Defendant Tate was the vice-president and chief financial officer of Battle. During his employment with Battle, Holloway resided in North Carolina but worked at a Battle job site in north Georgia. Because Holloway did not have his own transportation, he was using one of Battle’s company trucks to travel between his home and the worksite. Holloway’s supervisor, Joe McCutchen, testified that although Holloway initially had permission to use the truck for the commute, “he was given like a week’s notice or whatever to make arrangements for his own transportation. . . .”

On July 11,1991, when Holloway and his crew had finished their work for the week, Holloway attempted to contact McCutchen to inquire about driving a Battle truck home for the weekend. Holloway could not locate McCutchen, however, and called Battle’s company offices in Alabama to explain his dilemma to Battle’s operations manager, Dave Foreman. Foreman also attempted to contact McCutchen to discuss the situation. Approximately one hour later, Foreman told Holloway he could not locate McCutchen and that he should go ahead and take the truck home.

Because the truck was low on fuel, Holloway drove to a service station where Battle had a gas credit account. When Holloway attempted to purchase gas on the account, a gas station employee informed him that the Battle account was closed. Holloway again called Dave Foreman in Alabama to discuss this situation. Foreman apologized, put Tate on the telephone to speak with the station attendant, and following this latter conversation, the gas purchase was authorized. After fueling the truck, Holloway and his crew returned home to North Carolina.

At approximately 7:00 a.m. the following morning, Holloway received a telephone call from Battle employee Raymond Hastings. Hastings was attempting to locate Holloway’s brother, who worked on Holloway’s crew for Battle. According to Holloway, Hastings asked him to “get a hold of [the brother] and have him bring the truck down to move [a] piece of equipment, a backhoe or something.” Holloway called his brother, who told Holloway that due to the problems the crew had with the truck the prior day, he did not want to drive it back and move the equipment. Holloway spoke with Hastings a short time later and informed him of his brother’s response. Holloway subsequently called back to Battle’s Alabama office to speak with Dave Foreman. However, Battle’s president, Pamela Foreman, answered the phone and a heated conversation ensued concerning Holloway’s demand for a paycheck. During this conversation, Pamela Foreman asked Holloway “to return the V.M. Battle truck to Georgia because [the company] needed the truck to get some jobs done.” Holloway responded: “you are not getting your_truck back until I get my paycheck.”

Later that day, Battle’s vice-president, Tate, contacted the sheriff’s department regarding the truck and the following day he obtained a warrant for Holloway’s arrest. Holloway was subsequently arrested for theft by taking at which time the truck was recovered from his front yard. Holloway was released from jail when he posted bail that was reduced from $100,000 to $10,000.

The charge was presented to a grand jury in January 1992, but a no bill was returned. The charge was nevertheless again presented to the January 1993 grand jury and an indictment was issued. On April 21, 1993, however, the trial court issued an order to dead docket the case “for the reason that the District Attorney’s office has conducted further investigation in this case which indicates evidence to be insufficient to continue prosecution.” On March 16, 1995, the trial court issued a nolle prosequi order due to insufficient evidence. Holloway subsequently filed the instant action against Tate and Battle for malicious prosecution and, as stated above, the jury returned a verdict in Holloway’s favor.

The essential elements of a cause of action for malicious prosecution “under OCGA § 51-7-40 are: (1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. [Cit.] The gravamen of the complaint is the absence of probable cause on the part of the person instituting the prosecution. [Cits.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994). In this appeal, the defendants assert, inter alia, that the trial court erred in denying its motions for directed verdict and j.n.o.v. because there was no evidence showing the prosecution was instigated without probable cause. We agree.

We note initially, that unless the facts regarding probable cause are undisputed, it is a question for the jury. See OCGA § 51-7-43; Fuller v. Jennings, 213 Ga. App. 773, 775 (1) (445 SE2d 796) (1994). “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” OCGA § 51-7-43. Although evidence of an indictment is not conclusive, it is prima facie evidence of probable cause which shifts the burden to the plaintiff “ ‘to come forward with specific facts tending to show that probable cause did not exist for his arrest and that the charges against him were instead motivated by malice.’ [Cit.]” Smith v. Trust Co. Bank, 215 Ga. App. 413, 416 (450 SE2d 866) (1994); Fuller, supra at 775-776.

“A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. As used in this Code section the term “deprive” means to permanently or temporarily withhold the property of another without justification. OCGA § 16-8-1 (1) (A). Thus, regardless of whether an individual intends to take another’s property and withhold it permanently, “his intent to take it for his own temporary use without the owner’s authorization evinces an intent to commit a theft.” See Smith v. State, 172 Ga. App. 356, 357 (2) (323 SE2d 257) (1984).

In this case, it is undisputed that Holloway was indicted for theft by taking. In rebuttal, Holloway points to testimony showing that Battle authorized him to take the truck home for the weekend. However, the fact that Battle initially authorized Holloway to take the truck does not end the inquiry. OCGA § 16-8-2 presupposes lawful possession of property, but proscribes a subsequent appropriation of the property with the intention of temporarily withholding it. See also OCGA § 16-8-1 (1) (A). The manner in which the property is appropriated is irrelevant. OCGA § 16-8-2. The evidence in this case is undisputed that although Holloway had lawful possession of the truck, the defendants demanded that he return it because Battle needed it to complete some jobs. Holloway’s response to the defendants’ demand laid the foundation for probable cause. It showed that he intended to withhold the truck from Battle for an indefinite period of time until he received a paycheck. We are not aware of any provision under the law that justifies such action to secure a paycheck. Finally, although Holloway denies in his appellate brief that “Pam Foreman asked him to return the truck[,]” in violation of Court of Appeals Rule 27 (c) (3) (ii), he fails to cite the record in support of this assertion. Moreover, Holloway’s own testimony belies his contention. At trial he stated that during his telephone conversation with Pamela Foreman, “she just went to raising kane [sic] at me, something about bringing the truck back. . . .”

Decided January 28, 1998

Reconsideration denied April 1, 1998

Spruell, Taylor & Associates, Melinda D. Taylor, Bach, Hulsey & Carver, Robert J. Hulsey, for appellants.

William L. Reilly, for appellee.

Under these circumstances, Holloway has failed to come forward with specific facts tending to show that probable cause did not exist for the defendants to seek prosecution of this claim. See Smith, supra. Accordingly, the trial court erred in denying the defendants’ motions for directed verdict and j.n.o.v.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Johnson, Judge. Judge Harold R. Banke,

text:
    A97A2565.
    CHISHOLM v. THE STATE.
    (500 SE2d 14)
   Johnson, Judge.

A jury found Theopholus Chisholm guilty of robbery, aggravated assault, felony obstruction of a law enforcement officer, attempting to elude a law enforcement officer, and driving under the influence of drugs. He appeals from the judgment entered on the jury’s verdict.

Viewing the evidence in the light most favorable to the jury’s verdict, the events which occurred on November 7, 1995, with regard to this case are as follows: Chisholm drove a burgundy-colored 1992 Nissan Maxima automobile bearing a South Carolina license tag to the Dixie Quick Shop, a convenience store in Lincolnton, Georgia. He purchased a pastry and a soda and left the store. Chisholm reentered the store shortly thereafter, placed a package of cigarettes on the counter and handed the clerk two $1 bills. When the clerk opened the register to make change, Chisholm jumped on the counter, turned the register toward him and began taking money from the drawer. The clerk screamed for her co-worker and began hitting Chisholm with a broom. The co-worker ran toward the register and saw the clerk hitting Chisholm with the broom. The clerk followed Chisholm as he ran from the store and watched him enter and drive away in a burgundy car with a South Carolina tag. The co-worker called the police. Both the clerk and the co-worker identified Chisholm as the robber at trial.

A Lincolnton police officer observed a burgundy car matching the description he had received over his radio. The officer activated his blue lights and siren and tried to initiate a stop. Although Chisholm did not immediately respond, he finally stopped his car. The officer told him to get out of the car with his hands raised and to lie on the ground. Chisholm got on the ground, but then got up and began walking toward the officer, dropping his hands to his sides as he walked. Chisholm did not respond to the officer’s command to put his hands up. The officer then warned Chisholm to stop or he would shoot. Chisholm turned around, walked back to his car, got in and sat in the driver’s seat. When another officer arrived and got out of his car, Chisholm put his car in gear and accelerated toward the officer. As the officer jumped to get out of the way, the car struck one of his legs and pushed him backwards. The officer recovered his balance and dove toward Chisholm through the driver’s side window, hitting him with his gun. The officer let go of the moving car as Chisholm drove off. The officer fired a shot at the tire, but missed.

The officer returned to his patrol car and, with blue lights and siren activated, gave chase. Chisholm drove at speeds which the officer estimated at 90 to 100 mph, at times exceeding 100 mph. The officer saw a large object thrown from Chisholm’s car. The object, later recovered, was a green jacket identified by the store clerk as being identical to the jacket worn by the perpetrator of the robbery. Eventually Chisholm lost control of his car on a sharp curve. The car went down an embankment and struck a tree. The police found Chisholm standing next to his car. He was placed in custody. Chisholm was then taken to a local hospital for an examination. After being apprised of his informed consent rights, he agreed to have blood drawn. The blood sample tested positive for cocaine. The following afternoon, after being given his Miranda rights, Chisholm gave a statement to police in which he admitted he was under the influence of crack cocaine the night of the robbery. He told police that, as a result of the crack cocaine, he saw things flying out of cars and trucks, did not remember any details of the robbery, and could not say whether he committed the robbery.

1. The trial court did not err in allowing the following evidence as a similar transaction: The clerk of a convenience store in Greenwood, South Carolina, testified that Chisholm came into the store one night during the winter of 1994. He purchased a soft drink, after which he left the store and milled around outside waiting for other .customers to leave. As the last customer left the store, Chisholm reentered and asked for change. When the clerk opened the cash register, Chisholm reached over the counter and began grabbing money out of the drawer. The clerk screamed for her co-worker, and Chisholm ran from the store. The clerk testified that, despite the fact that Chisholm was wearing a cap and sunglasses at the time of the robbery, she saw his face and identified him at trial. This evidence satisfies the requirements for admissibility set forth in Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). See Hefner v. State, 224 Ga. App. 612, 613-614 (2) (481 SE2d 599) (1997).

2. Chisholm requested a limiting instruction prior to the introduction of the similar transaction evidence, and he took exception to the limiting charge as given. He asserts that the trial court’s failure to give an adequate limiting instruction was error, and we agree. “[I]n cases where the trial court has conducted the requisite preliminary hearing and thereafter determined that similar transaction evidence will be admitted at trial for a specified limited purpose, it is incumbent upon the trial court to instruct the jury, preferably at the time the evidence is introduced and in its general charge to the jury, regarding the fact that the accused is not on trial for any prior acts and that such acts are only to be considered for that specified limited purpose and not for any other purpose. Additionally, immediately after so instructing the jury, it is incumbent upon the trial court to further instruct the jury that before it can consider any prior act for the limited purpose specified, it should first determine whether the accused actually committed the prior act, and if so, whether the act was similar enough to the crime with which the accused is now charged so that proof of the prior act in light of the limited purpose for which it was introduced tends to prove the latter crime. [Cit.]” Belt v. State, 227 Ga. App. 425, 428 (489 SE2d 157) (1997).

Prior to the introduction of the similar transaction evidence in this case, the trial judge asked the prosecutor to state her purpose in seeking to introduce the evidence. She replied that the testimony was being offered to show motive, identity, course of conduct, common scheme, and bent of mind of the defendant. The court then simply stated, “I would now instruct the jury that being your purpose that it would only be admissible for the purpose stated by counsel.” The trial court’s instruction did not inform the jury that Chisholm was not on trial for the previous incident nor explain that before the jury could consider any prior act it should first determine whether Chisholm actually committed the prior robbery, and if so, whether the act was similar enough to this crime so that proof of the prior act, in light of the limited purpose for which it was introduced, tended to prove the latter crime. In this case, Chisholm requested a limiting instruction and properly preserved his objection to the abbreviated limiting instruction for review. Thus, the controversial aspect of Belt, supra, is absent.

Belt requires trial courts, even in the absence of a specific request, to fully instruct juries, in cases where similar transaction evidence is involved, regarding the limited purposes for which such evidence may be considered and with regard to the factual matters that must be resolved in determining the import, if any, to be placed on the evidence. Id. While the holding in Belt acknowledged that it was preferable that full instructions regarding the above be given both before the introduction of any similar transaction evidence and in the general charge, it does not mandate that such instructions be given on both occasions. Instructing the jury on either occasion is sufficient because, after such instruction, the jury has all it needs to appropriately evaluate the evidence and determine the extent to which the evidence should play a role in the jury’s determination of a defendant’s guilt or innocence.

Nonetheless, in this case, the trial court never fully instructed the jury regarding the factual matters that must be resolved before any similar transaction evidence could be considered by the jury in reaching its verdict. Specifically, the trial court never instructed the jury that before taking into consideration any of Chisholm’s prior acts, it must first determine if such acts were similar enough to the crime with which Chisholm presently was charged, that proof of the prior acts, in light of the limited purposes for which they were introduced, tended to prove the latter crime. Belt, 227 Ga. App. at 428 (1). Absent the above-mentioned full instruction, our holding in Belt mandates a finding of harmful error because such instruction “is necessary in the interest of justice.” (Citations and punctuation omitted; emphasis in original.) Id. at 427. Therefore, we disagree with the dissent’s position that any error in failing to give the required limiting instructions in cases like this may be rendered harmless upon consideration of all the evidence. And to the extent cases like Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994), support such a position, we believe that they have been implicitly overruled by the holding in Belt, and thus, that the dissent’s reliance on them is misplaced.

In both Hinson v. State, 229 Ga. App. 840 (494 SE2d 693) (1997), and Luke v. State, 230 Ga. App. 712 (497 SE2d 376) (1998), this Court said: “Under the controlling authority of the recent whole court decision in Belt v. State, the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” (Emphasis supplied.) Inasmuch as the trial court in the instant case did not give the proper limiting instruction either contemporaneously with the admission of the similar transaction evidence or at any other time, we need not address whether Hinson and Luke merely misread Belt or expanded the holding in Belt by adding the requirement that the limiting instruction must be given contemporaneously. As noted earlier herein, however, the better practice would be to give the instruction contemporaneously with the admission of the similar transaction evidence and again as part of the trial court’s final instructions to the jury, for all the reasons set forth in Judge Beasley’s special concurrence in Belt.

For these reasons, Chisholm’s conviction is reversed and the case remanded for a new trial.

We address the following enumerations of error as they raise issues which may recur upon retrial of the case.

3. Chisholm challenges the racial composition of the array of the traverse jury, contending the jury list, as compiled by the Jury Commissioners of Lincoln County, was disproportionate to the official registered voters’ list of the county and did not contain a fairly representative cross section of the citizens of the county. Having failed to establish any flaw in the method by which Lincoln County creates its traverse jury venire, however, Chisholm has failed to carry his burden of showing purposeful discrimination. The trial court did not err in denying his challenge to the array of the jury. See Hansley v. State, 267 Ga. 48, 49 (2) (472 SE2d 305) (1996); Jewell v. State, 261 Ga. 861, 863 (3) (413 SE2d 201) (1992); Adefenwa v. State, 221 Ga. App. 429, 433-434 (3) (b) (471 SE2d 900) (1996); Truitt v. State, 212 Ga. App. 286, 287 (441 SE2d 800) (1994).

4. Chisholm asserts the trial court erred in denying his motion to suppress the in-court identification made by the store clerk because there was a substantial likelihood of misidentification. This enumeration of error generally is raised in the context of an out-of-court identification which an appellant asserts was unduly suggestive, thereby tainting the in-court identification. Chisholm’s argument here, however, appears to be that the store clerk’s testimony, which he characterizes as “inconsistent,” creates a substantial likelihood of misidentification. We disagree. “The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation.” (Citations and punctuation omitted.) Jenkins v. State, 215 Ga. App. 540, 542 (2) (451 SE2d 457) (1994).

The store clerk testified that she “looked at [Chisholm] pretty good” the first time he came into the store and made a purchase. After seeing him a second time, hitting him with the broom and chasing him out of the store, she testified that “I knew if I saw that face again I would recognize it.” The fact that her knowledge of Chisholm’s looks was passive (she would know the face if she saw it) rather than active (she could not affirmatively describe his features) does not render her identification of Chisholm inadmissible. It merely creates an issue of witness credibility to be explored by the defense on cross-examination and to be ultimately determined by the jury. In this case the witness’ identification of Chisholm was based on her opportunity to observe him at the time of the crime. In applying the totality of the circumstances test, we find no substantial likelihood of misidentification and conclude the trial court did not abuse its discretion in denying Chisholm’s motion to suppress. See generally Sanders v. State, 226 Ga. App. 650, 651 (1) (487 SE2d 442) (1997).

5. Chisholm argues the trial court erred in denying his motion to exclude a statement made to police because his detention was illegal. Specifically, Chisholm contends he was not brought before a judicial officer within 48 hours of his warrantless arrest or within 72 hours of the issuance of warrants. See Uniform Superior Court Rule 26.1; OCGA §§ 17-4-26; 17-4-62; County of Riverside v. McLaughlin, 500 U. S. 44 (111 SC 661, 114 LE2d 49) (1991). The Supreme Court of Georgia has decided this issue adversely to Chisholm. “The sanction for violating [OCGA § 17-4-62] is that the defendant shall be released. However, noncompliance with this provision does not require suppression of the evidence gathered in the interim. [Cit.] We decline to extend the exclusionary rule as a sanction to enforce OCGA § 17-4-62.” Battle v. State, 254 Ga. 666, 672 (3) (333 SE2d 599) (1985). See also Taylor v. Chitwood, 266 Ga. 793 (471 SE2d 511) (1996); Dollar v. State, 161 Ga. App. 428, 430 (4) (288 SE2d 689) (1982). The trial court did not err in refusing to suppress Chisholm’s statement.

6. Chisholm asserts the trial court erred in denying his plea in abatement, which was premised upon his argument that the indictment against him should have been quashed because no preliminary hearing was held prior to the Grand Jury’s return of the indictment against him. “The purpose of a commitment hearing is simply to determine whether there is probable cause to believe the accused guilty of the crime charged, and if so, to bind him over for indictment by the grand jury. OCGA § 17-7-23. A preliminary hearing is not a required step in a felony prosecution and once an indictment is obtained there is no judicial oversight or review of the decision to prosecute because of any failure to hold a commitment hearing.” (Citations and punctuation omitted.) State v. Ruff, 176 Ga. App. 303, 304 (335 SE2d 687) (1985).

In this case, the prosecutor requested a continuance of Chisholm’s preliminary hearing to accommodate his trial schedule. Before a rescheduled hearing could be conducted, the Grand Jury returned the indictment. Despite Chisholm’s admiration for the position expressed in Judge (now Chief Justice) Benham’s special concurrence in Ruff, we are, as was he, bound by precedent. The denial of the plea in abatement was not error.

7. The trial court did not err in admitting money with fresh blood on it which was found in the trunk of Chisholm’s car at the time of his arrest. “Admissibility of evidence is a matter which rests largely within the discretion of the trial court; unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jury; where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations omitted.) Campbell v. State, 215 Ga. App. 14, 16 (2) (449 SE2d 366) (1994). Money was taken from the cash register of the Dixie Quick Shop, and a package of Kool cigarettes was purchased. A package of Kool cigarettes and various currency were found in the trunk of the car. Whether the currency was the same currency taken from the store in the robbery was a question for the jury, and the trial court did not err in admitting it.

On the other hand, Chisholm was not charged with any crime involving the use of a knife which was found on him at the time of his arrest and which was admitted into evidence over objection. “If evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.” (Citations and punctuation omitted.) Campbell, 215 Ga. App. at 16 (2). However, the knife was not relevant or material to any issue being tried in this case, and therefore its admission was error. Whether the error was harmless in the context of this case, however, need not be reached in light of our ruling in Division 2.

8. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to support the convictions.

9. The grounds asserted in Chisholm’s final enumeration of error, that he was denied a fair trial in violation of the Fifth Amendment of the United States and Georgia Constitutions, are cumulative of issues discussed above.

Judgment reversed and case remanded.

Pope, P. J., Beasley and Smith, JJ, concur. Andrews, C. J., McMurray, P. J., and Senior Appellate Judge Harold R. Banke dissent.

Judge Harold R. Banke,

dissenting.

I respectfully dissent as to Division 2 because the evidence of Chisholm’s guilt was so overwhelming that any error was rendered harmless beyond a reasonable doubt. Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991) (analyzing error in admission of similar transaction evidence for harmless error); Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994) (the erroneous admission of similar transaction evidence may be harmless).

Notwithstanding the majority’s assertion to the contrary, Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997) (cert, granted), does not preclude the application of harmless error analysis to similar transactions. Belt never mentioned that issue. Moreover, Belt failed to garner a majority and therefore is not binding precedent. Court of Appeals Rule 33 (a). Thus, Belt did not and could not implicitly overrule Howard, 215 Ga. App. at 344 (2), or the long line of cases applying harmless error analysis to similar transaction issues. Id.; see, e.g., Jones v. State, 226 Ga. App. 721, 724 (1) (487 SE2d 618) (1997); Tam v. State, 225 Ga. App. 101, 102-103 (2) (483 SE2d 142) (1997); Morris v. State, 212 Ga. App. 779, 780 (1) (442 SE2d 792) (1994); Higginbotham v. State, 207 Ga. App. 424, 427 (4) (428 SE2d 592) (1993); Little v. State, 202 Ga. App. 7, 8 (1) (413 SE2d 496) (1991). Even more perplexing, the majority ignores Supreme Court authority applying harmless error analysis to similar transaction issues. Stephens, 261 Ga. at 469 (6); see Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750) (1994).

Here, the evidence of Chisholm’s guilt can only be described as overwhelming. Chisholm entered the store twice, and both the clerk and her co-worker clearly identified him as the robber. The officers who chased and finally apprehended Chisholm clearly observed his actions. In fact, after Chisholm drove his car into one of the officer’s legs, that officer dove into Chisholm’s window in an attempt to grab the car keys. The officers personally witnessed Chisholm driving under the influence, attempting to elude, and committing aggravated assault on and obstruction of law officers. They positively identified him as the perpetrator. Moreover, Chisholm confessed that the cocaine he used on the night of the offenses so blurred his perceptions that he could not say whether he committed the robbery. Under these circumstances, reversal is inappropriate due to the high probability that the error did not contribute to the guilty verdict, particularly as to the felony obstruction charge. Ragan, 264 Ga. at 192 (3); Bowdry v. State, 211 Ga. App. 626, 627 (1) (440 SE2d 59) (1994). “ ‘Justice is not served by reversing criminal convictions when error is harmless — an accused is entitled only to a fair trial, not a perfect one.’ [Cit.]” Ross v. State, 195 Ga. App. 624, 627 (4) (394 SE2d 418) (1990).

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

Decided March 13, 1998

Reconsideration dismissed April 1, 1998

Ross, Wallace & Hammond, John C. Hammond, T. Brittan Hammond, for appellant.

Dennis C. Sanders, District Attorney, Michael E. Eberhardt, William L. Hale, Assistant District Attorneys, for appellee.

       We note that the Supreme Court of Georgia has granted certiorari in Belt, indicating a desire to address the question whether this Court erred in holding that the limiting instruction must be given even where such an instruction is not requested.

       This language also appears in the case of Jackson v. State, 230 Ga. App. 292, 298 (12) (496 SE2d 315) (1998).


author: Beasley, Judge.

text:
    A97A2575.
    JENKINS v. BRICE et al.
    (499 SE2d 734)
   Beasley, Judge.

On March 14, 1995, Jenkins entered into a contract with the Brices for the lease and purchase of a house and real property. He took possession in May with monthly rental due through the December 31 closing date, but paid only for May (pro rata) and for June (late). He failed to pay the rent thereafter, which by affidavit he says was because the Brices refused to repair the property leaving it uninhabitable.

The Brices filed a dispossessory proceeding for possession, past due rent, and late fees. Jenkins counterclaimed but consented to an order for him to move out of the house by September 9. He vacated it then or sometime before September 13.

In October of the following year, the Brices amended their action to seek damages for breach of both the lease and purchase portions of the agreement. The court eventually entered summary judgment based on undisputed fact that Jenkins breached in both regards. It awarded damages to the Brices and dismissed Jenkins’ counterclaims. Jenkins does not enumerate the dismissal as error.

He contends the court erred in granting the Brices summary judgment, in concluding he breached the contract without justification, in calculating damages, and in ruling that constructive eviction cannot be used as a defense for the period before Jenkins consented to move out.

“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).” “[Sjummary judgment appeals are de novo reviews because summary judgment rulings are strictly matters of law and are not based at all on findings of fact, made by court or jury, nor on weighing of evidence, nor on credibility of witnesses. Summary judgment rulings are based on undisputed facts.”

Both parties agree there was a contract between them and that the contract was comprised of the signed “amendment” dated May 11, 1995 and an earlier form purchase agreement of March 14, 1995, which was attached to Jenkins’ answer and counterclaim as an exhibit.

1. The first issue is whether Jenkins’ failure to pay the July rent is excused under the constructive eviction doctrine which Jenkins raised as a defense. It is undisputed that Jenkins was required to pay rent and that he did not do so after June.

“Two essential elements must be shown to establish the defense of constructive eviction. They are: (1) That the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the defendant to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant’s business.” Put another way, “[t]o constitute an eviction which will operate as a suspension of rent, there must be either an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.” “An act may be considered grave in character if it renders the premises untenantable or unfit for the use and benefit of the tenant in accomplishing one or more of the substantial purposes of the lease.” It must be shown that the tenants’ use and enjoyment of the premises is not merely rendered “uncomfortable.”

Although there is some evidence the roof leaked in places, Jenkins offered into evidence the move-in/move-out inspection form which shows that as of the date Jenkins agreed to move out of the house, it was, in the opinion of the selling agent, in “all move-in condition.” Jenkins signed the document, without contesting that statement. The only roof notation on the move-out form, other than reference to a garage roof leak, is with respect to kitchen or living areas: “These leaks are still active. Mr. Jenkins would come home to find puddles of water at front door.” The fact that the roof of the house may have leaked, standing alone, is not evidence that the house was uninhabitable. Jenkins offers no other evidence to support the contention. The court properly concluded there was no evidence from which a jury could find constructive eviction.

Jenkins’ assertion in his brief that he was justified in refusing to pay rent because the Brices breached the contract first is not enumerated as error, and no supporting authority is given. This argument is not properly presented.

The trial court correctly ruled that Jenkins breached the lease portion of the agreement; summary judgment was proper on that claim.

2. Next is whether Jenkins breached the purchase portion of the agreement so as to allow damages.

The Brices contend Jenkins breached the purchase agreement when he twice disavowed it. They submit the affidavit of their broker who states that at about the time the July payment was due, Jenkins told the broker “that he would not be closing on the purchase of the house,” and “from that point on he referred any contacts from me to his attorney.” They also allege that immediately prior to vacating the property, “Defendant informed Plaintiffs that he was refusing to purchase the property. . . .”

Jenkins denied the latter allegation in a verified answer. Properly verified pleadings containing specific denials of allegations and specific factual allegations where the contents of the pleadings indicate they were made on the personal knowledge of the verifying party must be considered on a motion for summary judgment.

But Jenkins never submitted an affidavit or any other testimony or even a denial of the sworn statement that he told the same thing to the broker in July. This repudiation of the agreement is confirmed by all of Jenkins’ behavior, which was inconsistent with an intent to close on the sale on December 1. He told the broker to contact his attorney, not himself, from then on. He ceased paying rent in July. Two months later he agreed to vacate the property rather than face eviction. He moved out, kept a key after the move-out inspection, and removed the security system that he had installed in the walls. He took no action whatsoever after he moved to indicate that he intended to purchase the property. He submitted no evidence that he protested when the Brices sold the house to someone else on November 1.

Once Jenkins repudiated the agreement, the Brices were no longer bound to sell to Jenkins. The trial court did not err in ruling that Jenkins breached the purchase agreement as a matter of law.

3. Jenkins contends the agreement provided that the sale was contingent on the sale of his previous home by December 31, 1995, and that he was relieved from his obligation to purchase and cannot be in default because the event did not occur. Because Jenkins breached the contract in July, this contention is moot.

4. The ordinary measure of damages for breach of a real estate sales contract is the difference between the contract price and the fair market value at the time of the breach. Quigley v. Jones, 174 Ga. App. 787 (332 SE2d 7), aff’d 255 Ga. 33 (334 SE2d 664) (1985). We find no law suggesting that in the case of an anticipatory breach the fair market value should be determined at the time the contract was to be performed (closing was to take place on December 1). The Brices introduced the November 1 sale price, and the court used this figure to calculate damages. The time of the breach was in July, when Jenkins told the Brices’ agent he was not going forward with the purchase. There is no evidence that the November price is an accurate gauge of the fair market value in July.

The Brices argue that Jenkins submitted no contrary evidence and that the November sale was sufficiently close in time to when Jenkins moved out in September “as to avoid any reasonable inference that the fair market value of the property was anything other than $20,000 less than the $222,000 price contained in the Brice-Jenkins contract.” They also offer their broker’s testimony that the price was lower because the market deteriorated when “many more houses came on the market for sale.” She also gave her professional opinion that at the time of the sale on November 1, $202,000 was “a fair price for the house.”

But the Brices have the burden of proof respecting their damages and the facts must be construed in favor of Jenkins for the purposes of summary judgment. No evidence indicates whether the fall in the market price occurred between March 14 and July (between the date of the contract and the breach) or between July and November 1 (between the breach and the date of the sale), or gradually between March 14 and November 1. There is an issue of fact regarding the amount of damages awardable to plaintiffs.

Decided March 12, 1998

Reconsideration denied April 1, 1998.

Charles F. Peebles, for appellant.

Patrick J. Gibbs, for appellees.

In sum, partial summary judgment regarding the defense of constructive eviction and breach of the lease and purchase agreement is affirmed. The determination of damages is reversed and remanded.

Judgment affirmed in part, reversed in part and case remanded.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

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

        Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990).

        Hightower v. Daniel, 143 Ga. App. 217 (237 SE2d 688) (1977); Overstreet v. Rhodes, 212 Ga. 521, 523 (93 SE2d 715) (1956).

        Potts-Thompson &c. Co. v. Capital City &c. Co., 137 Ga. 648 (2) (74 SE 279) (1911); Sunamerica Financial v. 260 Peachtree Street, 202 Ga. App. 790, 794 (415 SE2d 677) (1992).

        Sunamerica Financial, supra.

        Alston v. Ga. Credit Counsel, 140 Ga. App. 784, 785 (1) (232 SE2d 134) (1976).

       See Hightower, supra.

       Court of Appeals Rule 27 (c) (2); Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986) (“error argued in the brief but not enumerated as error will not be considered on appeal, and error enumerated but neither argued in the brief nor supported by citation of authority is considered abandoned.”).

       See Hansen v. Mt. Yonah Scenic Estates Club, 227 Ga. App. 258, 259 (488 SE2d 732) (1997) (verified pleadings must indicate that they were made on personal knowledge); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988) (properly verified pleading that complies with OCGA § 9-11-56 (e) and made on personal knowledge is sufficient); Foskey v. Smith, 159 Ga. App. 163, 164 (283 SE2d 33) (1981) (verified denials of allegations together with verified specific factual allegations in an answer may withstand summary judgment).

        Rives E. Worrell Co. v. Key Systems, 147 Ga. App. 383, 386 (4) (248 SE2d 686) (1978); Whitley Constr. Co. v. Va. Supply & Well Co., 99 Ga. App. 419 (1) (108 SE2d 819) (1959).


author: Eldridge, Judge.

text:
    A98A0523.
    BRANNON et al. v. THE STATE.
    (500 SE2d 597)
   Eldridge, Judge.

The Cook County Superior Court denied appellants John and Patricia Brannon’s motion to suppress. The trial court certified the issue for interlocutory appeal. We granted appellants’ application in order to review the parameters of a residential search incident to a lawful arrest under the facts of this case. Because those parameters were exceeded, we reverse.

Michael Pitts, Special Agent with the South Georgia Drug Task Force, was asked to aid Cook County law enforcement in arresting appellant John Brannon pursuant to a bench warrant issued by Douglas County. The out-of-county bench warrant was issued after John Brannon was indicted by a Douglas County grand jury for “Violation Racketeering Influenced & Corrupt Organizations Act”; the specific act which gave rise to the indictment and subsequent bench warrant was not named in the warrant.

Agent Pitts assisted other officers in executing the Douglas County warrant at John Brannon’s Cook County home at approximately 9:00 p.m. on June 13, 1997. Appellants’ daughter answered the door and “reluctantly” let the officers into the kitchen of the residence. Appellant Patricia Brannon was also in the kitchen. John Brannon, in an “agitated” state, entered the kitchen from “the bedroom area.” Two officers executed the warrant and arrested John Brannon in the kitchen. He was taken out to a patrol car and secured therein.

As John Brannon was being secured in the patrol car, Agent Pitts and other officers executed a “search incident to arrest,” which entailed a search of “[t]he closets, any place that someone else might hide or Mr. Brannon might have been able to destroy any evidence or attempt to conceal any evidence incident to arrest.”

The police entered appellants’ bedroom, where a quantity of marijuana was allegedly seen in plain view on the floor around the commode in an adjoining bathroom. The police searched appellants’ bedroom closets and dresser drawers. Weapons were seized from the closets and the dresser drawers. In addition, a cookie tin was found in a top dresser drawer; the officers opened the cookie tin and seized two and one-half ounces of marijuana contained therein.

Thereafter, Special Agent Pitts asked John and Patricia Bran-non for permission to search the remainder of the house, which permission was denied. Agent Pitts then telephoned a magistrate and obtained a telephonic warrant to search appellants’ residence. Nothing further was found.

Patricia and John Brannon were charged in a two-count, Cook County felony indictment. The indictment charged appellants with possession of marijuana with intent to distribute under Count 1, based upon the marijuana found in the cookie tin; in addition, appellants were indicted for possession of firearms during the commission of a felony (i.e., Count 1) under Count 2. Pursuant to appellants’ motion to suppress, a hearing was held in which Special Agent Pitts testified that all items had been seized during a “search incident to arrest” and that the only areas that had been so searched were areas in John Brannon’s “immediate presence and control” and “within his reach.” The officer (and prosecutor) understood “immediate presence and control” and “within his reach” to refer to those areas in which appellant John Brannon had been just prior to his arrest in the kitchen of his residence. When asked by the defense why he had not obtained a search warrant after appellant was secured in the patrol car, Agent Pitts replied that “[t]he search incident to arrest precluded the necessity for a search warrant.” The trial court denied the motion to suppress. Held:

“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence.” OCGA § 17-5-1 (a). Thereafter, OCGA § 17-5-1 (a) (1)-(4) list four purposes for such search. These enumerated purposes do not expand the spatial limitations of a search incident to arrest as previously established in OCGA § 17-5-1 (a), i.e., the “person arrested” and that person’s “immediate presence.” Specifically, the enumerated purpose of “[discovering or seizing any instruments, articles, or things which are being used or which may have been used in the commission of the crime for which the person has been arrested” pursuant to OCGA § 17-5-1 (a) (4) does not give carte blanche to an arresting officer; while such may be a proper purpose for the search, the search is still limited to the “person arrested” and that person’s “immediate presence.”

With regard to the instant search incident to arrest, “[o]nce lawfully within the house, the officers were authorized to make a search of the entire house for the limited purpose of securing it, i.e., discovering the presence of all occupants and [thereby] eliminating the possibility of harm to the officers and the destruction of evidence. Once the defendant [was] under arrest [and Patricia Brannon and the daughter detained in the kitchen], the only remaining valid ground for a search of the [bedroom] was for the purpose of discovering the presence of any possible remaining occupants. The search revealed none. A search of the [bedroom] was not justified as incident to the arrest of [John Brannon]. [John Brannon] was arrested [in the kitchen]; no contraband was found there within the area of his immediate presence. . . . However, [a] police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be. The officers in the case sub judice, being entitled to go throughout the house for the limited purpose of securing it, were therefore free to use and seize the marijuana in plain sight [at the bathroom commode]. They were not authorized to open up closed containers or otherwise discover contraband which was not in plain view. . . . The ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” (Citations and punctuation omitted; emphasis in original.) Lentile v. State, 136 Ga. App. 611, 613-614 (222 SE2d 86) (1975); see also State v. Scott, 176 Ga. App. 887, 889 (3) (339 SE2d 276) (1985).

Contrary to the position of the state, this case is not controlled by our decision in State v. Camp, 175 Ga. App. 591 (333 SE2d 896) (1985). In Camp, an undercover police officer purchased marijuana; the sale occurred from the bedroom of the defendants’ mobile home. Immediately following the purchase, the defendants were arrested in the bedroom. A subsequent search incident to arrest was made under exigent circumstances wherein police officers knew contraband was present in the bedroom because of the previous sale in which they had participated. Further, although the defendants were secured in another area of the mobile home during the search, the actual search was conducted only in the bedroom area where the defendants were arrested, and the contraband seized by the officers was found in the bedroom within the immediate arms-length reach of the defendants at the time of their arrest. Id. at 594-595.

By comparison, the arresting officers in this case were executing an out-of-county bench warrant; no crime was committed in their presence, and no “exigent” circumstances existed. There was no reason to believe, based upon the Douglas County bench warrant, that any contraband would be present in the appellants’ Cook County home or that the “fruits” of the Douglas County crime for which John Brannon was arrested would be located in his Cook County residence. Perhaps most contrastingly, the search conducted in the case sub judice, which included closets, dresser drawers, and a cookie tin, far exceeded the search of the immediate area of arrest, which was the limited scope of the search conducted in Camp Thus, our decision in Camp does not at all support the scope of the search conducted herein.

The state argues that the search of the appellants’ bedroom was proper because John Brannon had just exited the bedroom immediately prior to his arrest and it was thus an area under his “immediate control.” However, this argument mixes the concept of “immediate control” with the concept of “immediate presence” in. a search incident to arrest. The issue of “immediate control” arises in relation to the exigent circumstances that surround a traffic stop arrest and the proper scope of a search of the vehicle from which the arrested person was just removed. New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981); Chimel v. California, 395 U. S. 752, 762-763 (89 SC 2034, 23 LE2d 685) (1969); State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982); compare Satterfield v. State, 256 Ga. 593, 597 (4) (351 SE2d 625) (1987); see also Camp, supra at 597 (Pope, J., dissenting). The mobility of a vehicle, its status as the sole confined space from which an arrestee has just been removed, and the immediacy of the unexpected arrest provide exigent circumstances peculiar to traffic arrests. Fortson v. State, 262 Ga. 3, 4 (2) (412 SE2d 833) (1992). Clearly, such exigencies do not exist with regard to an arrest at a residence during the execution of an out-of-county bench warrant.

The state’s position also mingles together protective search concepts involved in a traffic Terry stop setting and “search incident to arrest.” A search conducted incident to arrest is not a “Terry stop.” It serves a different function. During a traffic Terry stop, an officer may search an area within the suspect’s “immediate vicinity” in order to ensure his safety; this area may include a limited search of an automobile that is away from the suspect’s immediate presence and control. However, this type of Terry stop search is premised on the possibility that, after the brief investigation that justifies a Terry stop, the suspect may be let go. “[I]f the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” (Punctuation omitted.) Michigan v. Long, 463 U. S. 1032, 1045-1052 (103 SC 3469, 77 LE2d 1201) (1983); see also Hinson v. State, 229 Ga. App. 840 (494 SE2d 693) (1997). Certainly, such circumstances do not provide a basis for an extended protective “search incident to arrest” of a residence, wherein the arrested person will not be released.

Decided March 25, 1998

Reconsideration denied April 1, 1998

Howard E. Yancey, Jr., for appellants.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

In sum, for any or all of the reasons enumerated in OCGA § 17-5-1 (a) (l)-(4), a search incident to arrest may be conducted of the “person arrested” and the area within the arrested person’s “immediate presence.” Under the facts of this case, “immediate presence” does not mean that a search of appellants’ bedroom closets and dresser drawers is justified as a “search incident to arrest” when the arrest occurred in the kitchen. Lentile, supra. “To permit the search here would be to invite unwarranted license.” Scott, supra at 890.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       The state’s contentions that Brannon “was supposed to be a violent offender with a large number of weapons” and that “there was also supposed to be suspected drug activity in the house” are not connected to the Douglas County offense for which he was arrested and, in any event, provide no basis upon which to expand a search incident to arrest.

       Our decision in Camp specifically noted that during the search incident to arrest, there had been no search beyond the immediate area of the three defendants’ arrests and no “upsetting of personal belongings or emptying of drawers or destruction of order.” Id. at 597.

       A police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

       Other than would he necessary as part of a protective sweep of a residence for additional persons so as to ensure an officer’s safety.


text:
    A98A0058.
    COVINGTON v. THE STATE.
    (501 SE2d 37)
   Beasley, Judge.

This case is on appeal following our remand for resentencing in Covington v. State.*

In March 1996, Covington was convicted of two counts of selling cocaine in June and July 1994. In April 1996, he was convicted of committing other offenses, including trafficking in cocaine and possession of cocaine with intent to distribute, both occurring in September 1994.

At the time of Covington’s sentencing, the maximum punishment for a conviction of sale of cocaine under OCGA § 16-13-30 (d) was 30 years’ imprisonment. The recidivist provisions of OCGA § 17-10-7 (a) mandate imposition of the maximum punishment upon conviction of a second felony offense. Sentencing Covington as a recidivist as a result of an October 1994 conviction of the offense of habitual violator, the trial court imposed the maximum sentence. In Covington, we affirmed Covington’s convictions for sale of cocaine but vacated the sentence imposed, as it is not the date of the conviction which determines the applicability of OCGA § 17-10-7 but the date of the commission of the offense.

Except as otherwise authorized by the Controlled Substances Act, OCGA § 16-13-30 (b) makes it unlawful “for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” When Covington was sentenced, OCGA § 16-13-30 (d) imposed a mandatory sentence of life imprisonment on conviction of a second or subsequent offense for violation of OCGA § 16-13-30 (b). Accordingly, the trial court imposed life imprisonment for trafficking and for possession with intent to distribute, based on two previous convictions of sale of cocaine. In the first appeal we affirmed these convictions but reversed the life sentence, as the convictions for the previous sales of cocaine were not final at the time the sentence was imposed.

On remand, the trial court resentenced Covington to life imprisonment for his convictions of trafficking in cocaine and possession with intent to distribute, as the convictions of prior cocaine sales had become final. The court also reimposed the maximum sentence of 30 years’ imprisonment for the convictions of sale of cocaine.

1. The trial court was authorized by OCGA § 16-13-30 (d) to resentence Covington to life imprisonment for possession and trafficking, as the two earlier cocaine sales convictions were final at the time of resentencing. In that Covington was convicted of cocaine sales before his trial for possession with intent to distribute and trafficking, Brown v. State is distinguishable.

Fruitless is the argument that the sentence of life imprisonment for trafficking was unauthorized because it is an offense under OCGA § 16-13-31 rather than OCGA § 16-13-30 (b). As in Cody v. State, “[Covington’s] conviction for the more serious offense of trafficking in cocaine under OCGA § 16-13-31 was sufficient in conjunction with his previous conviction[s] for [sale of cocaine] under OCGA § 16-13-30 (b) to trigger the mandatory life sentence provisions of OCGA § 16-13-30 (d). [Cit.]”

Decided April 1, 1998

Farless & Newton, Floyd H. Farless, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

2. The next question is whether a term of 30 years’ imprisonment for sale of cocaine is unlawful because of the inapplicability of OCGA § 17-10-7 (a), as held the first time this case was before us. True, that section which makes such a sentence mandatory did not apply but the court was nonetheless authorized to impose a 30-year sentence in its discretion, as such a term was within statutory limits. Covington does not contend his resentencing to the maximum, which was the same sentence imposed earlier, was vindictive. The fact that it is the same does not invalidate a sentence arrived at by the trial court in independent assessment of an appropriate punishment.

3. Covington contends the trial court erred in not merging, with the traffic conviction, another offense of which he was convicted in April 1996. Covington abandoned this assertion in his first appeal.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       226 Ga. App. 484 (486 SE2d 706) (1997).

       Id. at 486 (6).

       Id. at 485 (3).

       204 Ga. App. 794 (420 SE2d 823) (1992).

       222 Ga. App. 468, 471 (4) (474 SE2d 669) (1996).

       See generally Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510) (1981).

       Compare Chambers v. State, 213 Ga. App. 414, 418 (5) (444 SE2d 820) (1994).

        Covington, supra at 485 (3).