text:
    A92A1430.
    In re SMITH.
    (424 SE2d 45)
   McMurray, Presiding Judge.

The Sheriff of Camden County, William E. Smith, was found in contempt of court for failing to arrest Charles Lang. Following the imposition of punishment, a $500 fine, Smith appealed, arguing the evidence failed to demonstrate that he neglected his duty. We agree and reverse.

Charles Lang was arrested in August 1991 for failure to pay child support. After reaching an agreement with his ex-wife, Lang was released from jail. Lang failed to live up to his agreement and, on October 22, 1991, the sheriff was ordered to seize Lang “instanter” and place him in confinement. During the course of the next two months, six deputies tried to find and arrest Lang, to no avail. In the midst of the deputies’ search, the superior court judge who issued the order to seize Lang, telephoned the sheriff’s office and told a deputy sheriff that he wanted Lang picked up “by sundown.” The sheriff’s department was still unable to find Lang, even though it enlisted a local police department to help with the search. Thereafter, Lang’s ex-wife brought this proceeding against the sheriff, seeking, inter alia, an attachment for contempt.

At the hearing, Lang’s ex-wife introduced evidence demonstrating that Lang lived with his mother during the time in question and that he was home nearly every day between 3:30 p.m. and 7:00 a.m. Lang’s ex-wife also introduced evidence showing that a special process server was able to serve Lang with a subpoena at his mother’s house on December 20, 1991. The process server acknowledged that he approached the house in plainclothes and that Lang would have no reason-to hide from him.

Lang testified that he was not hiding or concealing himself; but he admitted that he did not “go in the streets.” Lang’s ex-wife believed that Lang was probably hiding from the sheriff.

The process server testified that after he served Lang with the subpoena, Lang followed him out to his car and told him that he used to ride to work with the sheriff and that his father used to take him and the sheriff hunting when they were boys. Along these lines, evidence was introduced indicating that the sheriff refused to arrest or serve papers on people that he knew and favored.

The sheriff testified that he had no contact with this case except on one occasion. That was when a deputy told him about the October 22 arrest order. The sheriff told the deputy to do what he had to do to find and arrest Lang.

The sheriff also testified that he never refused to carry out an arrest order or serve papers on anyone. He denied that he used to ride to work with Lang or that he went hunting with Lang when they were children. The sheriff cast doubt upon the hunting story, pointing out that Lang was younger than he was by a number of years.

The sheriff’s deputies detailed the efforts they took to find Lang. They were hampered by the fact that Lang gave them a post box address when he was arrested in August and because, for a while at least, they believed he was in Florida. The deputies tried to find Lang at more than one place of employment; and they tried to find him on more than one occasion at his mother’s house. But when the deputies went to Lang’s mother’s house, one of two things happened: either no one was home or they were told Lang did not live there. And neither Lang’s ex-wife nor her attorney told the sheriff’s department that Lang was living with his mother. Held:

OCGA § 15-13-2 (2) provides: “Any sheriff shall be liable to an action for damages or an attachment for contempt of court, at the option of the party, whenever it appears that the sheriff has injured the party by: ... (2) Neglecting to arrest a defendant. . . .” This provision must be read in conjunction with OCGA § 15-16-10 which provides, in pertinent part: “(a) It is the duty of the sheriff: (1) To execute and return the processes and orders of the courts and of officers of competent authority, if not void, with due diligence, when delivered to him for that purpose, according to this Code ... (8) To perform such other duties as are or may be imposed by law or which necessarily appertain to his office, (b) If any sheriff or deputy fails to comply with any provision of subsection (a) of this Code section, he shall be fined for a contempt as the clerk of the superior court is fined in similar cases.”

In light of the foregoing statutes, it is clear that a sheriff can be found in contempt of court by “neglecting” to perform his duties. Stated somewhat differently, a sheriff can be fined for contempt if he fails to perform his duties with “due diligence.” Did the sheriff neglect to perform his duties? Did he fail to act with due diligence? The answer to these questions lies in Heard v. Callaway, 51 Ga. 314 (1874).

In Heard, the Supreme Court of Georgia held that whether a sheriff neglected his duty “would depend on the good faith of his conduct, in view of the circumstances under which he acted, of which the court is to judge.” Id. at 317. In determining whether the sheriff acted in good faith, the court is to exercise its sound discretion. Id.

Moreover, this Court is compelled, on review of an appeal of a criminal contempt conviction, to utilize the standard of whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See In re Irvin, 254 Ga. 251, 254 (2), 256 (328 SE2d 215); Garland v. State, 253 Ga. 789, 790 (1) (325 SE2d 131); In re Crane, 253 Ga. 667, 669 (2), 670 (324 SE2d 443).

Decided October 8, 1992

Reconsideration denied October 20, 1992

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Stein & Cauthen, James E. Stein, for appellee.

We have no hesitation in concluding that the trial court abused its discretion in this case. After all, the sheriff, acting through his deputies, made every effort to find and arrest Lang: The deputies tried to ascertain Lang’s place of residence; they searched for him at his mother’s house and were told that he did not live there; they tried to find him at various places of employment. We do not know what more the deputies could have done to find Lang. The mere fact that their efforts were not successful is not evidence that they did not act in good faith or without due diligence.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A1486.
    CASTLEBERRY’S FOOD COMPANY et al. v. SMITH.
    (424 SE2d 33)
   Johnson, Judge.

Richard Smith brought this action against Castleberry’s Food Company and Martin Food Services, Inc. alleging that his consumption of two cans of lasagna produced by Castleberry’s and purchased from a vending machine supplied by Martin caused him to become ill. Approximately 30 minutes after eating the lasagna and drinking a soft drink, Smith was transported to a local hospital where he exhibited symptoms including nausea, weakness, and cramping. He was treated with oxygen and quickly improved. Smith remained in the hospital for two days, during which he was treated for pre-existing diabetes. Following the trial of the case, the trial court entered judgment in accordance with the jury’s verdict of general damages in the amount of $10,000, plus post-judgment interest and costs. Castle-berry’s and Martin filed a motion for j.n.o.v. which the trial court denied. A timely notice of appeal was filed. Smith filed a motion to dismiss the notice of appeal asserting that the requirements of OCGA § 5-6-35 (a) (6) had not been followed. Specifically, he argued that the judgment was not subject to direct appeal in that it was in an amount of less than $10,000 and the procedures for discretionary appeal had not been followed. The trial court granted the motion to dismiss the appeal.

Castleberry’s and Martin then filed both a notice of direct appeal and an application for discretionary review of the trial court’s dismissal of the earlier notice of appeal. The application for discretionary review was correctly denied, and this case is presently before us on direct appeal for consideration of the trial court’s dismissal of the notice of appeal and for review of the trial court’s denial of Castleberry’s and Martin’s motions for a directed verdict and for j.n.o.v. Smith filed a motion to dismiss this appeal.

The dismissal of an appeal by the trial court is subject to direct appeal. “If a trial court commits an error of law by abusing its discretion in ruling on a motion to dismiss an appeal ... an appeal should be filed from the order of the trial court by the losing party as provided by law.” Gilman Paper Co. v. James, 235 Ga. 348, 349 (219 SE2d 447) (1975). Accordingly, Smith’s motion to dismiss this appeal is denied.

1. Following entry of judgment, Castleberry’s and Martin filed a timely notice of direct appeal. Smith filed a.motion to dismiss the appeal in the trial court asserting that the judgment in favor of Smith was in an amount which would subject it to discretionary appeal procedures. The trial court granted the motion and dismissed the direct appeal. Castleberry’s and Martin assert that this was error. We agree.

Those circumstances under which a trial court may properly dismiss an appeal are strictly limited. OCGA § 5-6-48 (c) statutorily authorizes a trial court to dismiss an appeal only in those instances where the appellant caused an unreasonable, inexcusable delay in the filing of the transcript or where an unreasonable, inexcusable delay in the transmission of the record to the appellate court was caused by the failure of a party to pay costs or secure an affidavit of indigency. The trial court’s authority was expanded when, in Jones v. Singleton, 253 Ga. 41 (316 SE2d 154) (1984), the Georgia Supreme Court upheld a trial court’s dismissal of appellant’s notice of appeal because no final judgment in the case had been entered and the trial court had not certified the case for interlocutory review, i.e., in those instances in which a case is not ripe for appeal. This court applied the holding in the Jones case and expanded it in Attwell v. Lane Co., 182 Ga. App. 813 (357 SE2d 142) (1987). There, we held: “the trial court is empowered to dismiss an appeal ‘(w)here the questions presented have become moot.’ OCGA § 5-6-48 (b) (3).” Id. at 814 (1). Both of these dismissals arose under the ambit of OCGA § 5-6-48.

We are not willing to construe legislation so broadly as to divest ourselves of the responsibility for delineating the scope of appellate jurisdiction pursuant to OCGA § 5-6-35, and to place that responsibility on overburdened trial courts. We hold that the trial court was without authority to dismiss the appeal on jurisdictional grounds. See Davis v. Davis, 222 Ga. 369 (149 SE2d 802) (1966).

Even if the trial court had the authority to consider the merits of Smith’s motion to dismiss, the conclusion that an appeal of a judgment in the amount of $10,000, plus post-judgment interest, plus costs falls within the discretionary appeal procedures was clearly erroneous. OCGA § 5-6-35 (a) (6) provides that discretionary appeal procedures must be followed in those cases in which “[t]he judgment is $10,000.00 or less.” (Emphasis supplied.) In this case, the verdict was in the amount of $10,000; the judgment, however, was in the principal amount of $10,000, plus costs (in this case in the amount of $86.50) plus interest. Two cases have approached, but not reached this issue. See Batchelor v. ISFA Corp., 191 Ga. App. 238 (382 SE2d 434) (1989) and Alexander v. Steining, 197 Ga. App. 328 (398 SE2d 390) (1990). In Batchelor, this court considered principal as well as interest in making its determination that the amount of the judgment was insufficient to sustain a direct appeal. In Alexander, while addressing jurisdictional limitations, this court held that “[a] judgment must be construed in its entirety, rather than merely placing undue emphasis on any particular word therein.” Id. at 328 (1). We believe that these cases provide sufficient clarity, but to put the matter finally to rest, we hold that for establishing jurisdiction pursuant to OCGA § 5-6-35 (a) (6), a judgment is comprised of principal, plus costs, plus interest at the legal rate accrued from the date of the filing of the judgment until the date of the filing of the notice of appeal.

2. Castleberry’s and Martin also contend that the trial court erred in denying its motions for a directed verdict and for j.n.o.v. as the evidence was insufficient to authorize the verdict and judgment in favor of Smith. Smith argues that Castleberry’s and Martin’s enumerations of error based on the insufficiency of the evidence were not properly preserved for review in that discretionary application procedures were not followed. Having resolved that issue adversely to Smith, we will address this enumeration on its merits.

A plaintiff may prevail in food poisoning cases in Georgia by establishing that the food at issue was defective or unwholesome. Wilson v. Mars, Inc., 121 Ga. App. 790, 791 (175 SE2d 924) (1970); Armour & Co. v. Gulley, 61 Ga. App. 414 (6 SE2d 165) (1939). In the absence of direct evidence of the defectiveness of the food, recovery could be supported by circumstantial evidence if every other reasonable hypothesis as to the cause of the plaintiff’s illness could be excluded. See Payton v. Lee, 88 Ga. App. 422, 425 (77 SE2d 77) (1953).

At trial, Castleberry’s director of quality control described the manufacturing procedures utilized to ensure wholesomeness of the product. The process involves the cooking of the lasagna at a temperature of 245 degrees for 65 minutes. He explained their random inspection procedures as well as the record-keeping procedures for ensuring that no defects occur in the product. He testified that he had reviewed the records for a six-month period prior to the date of Smith’s ingestion of the lasagna. Although the date that the cans of lasagna eaten by Smith were produced was not established, the witness testified that they had most likely been produced in December 1988, and that he found no evidence that any of the quality control procedures had not been followed during that time. He concluded that no defective lasagna had been produced by Castleberry’s prior to the date of the incident alleged in this case. This evidence was not controverted.

Decided October 6, 1992

Reconsideration denied October 20, 1992.

Alembik, Fine & Callner, Mark E. Bergeson, Gary L. Johnson, for appellants.

Smith testified that he became ill approximately thirty minutes after eating the two cans of lasagna and drinking a soft drink. A microbiologist testified that the type of food poisoning alleged by Smith would have occurred within two to six hours after consumption of contaminated food. He also testified that such spoilage would have been evident to Smith in the form of a swollen can or by abnormal smell or taste. This evidence was not controverted. Furthermore, Smith admitted that the lasagna looked, smelled, and tasted good.

Smith produced evidence that he ate lasagna and became ill. He has not presented any evidence, however, that the lasagna was the proximate cause of his illness. Two doctors testified that there was the possibility that Smith suffered from food poisoning, but neither was willing to state an opinion regarding the etiology of the condition. One of the doctors testified that Smith’s symptoms could have been produced by a virus, an infection, or an “endless” list of possible causes. He further testified that Smith’s symptoms were consistent with a hypoglycemic condition related to his diabetes.

“Whether proceeding under a strict liability or a negligence theory, ‘proximate cause’ is a necessary element of (plaintiff’s) case. [Cits.]” Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3) (279 SE2d 264) (1981). While questions of causation are usually reserved for the jury, in a matter of plain and undisputed cases, it will be determined by the court. Stanoiu v. Reyes, 198 Ga. App. 692, 693 (1) (402 SE2d 526) (1991). We find that there was no evidence in the record establishing the link between the lasagna produced by Castle-berry’s and distributed by Martin and Smith’s illness. Therefore, Smith failed to prove an essential element of his case. A verdict based on conjecture cannot stand. See Young Men’s Christian Assn. (YMCA) v. Bailey, 112 Ga. App. 684, 705 (14) (146 SE2d 324) (1965). The trial court erred in failing to direct a verdict and/or in failing to enter a j.n.o.v. in favor of Castleberry’s and Martin.

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Stephen R. Patton, Douglas L. Breault, for appellee.


author: Pope, Judge.

text:
    A92A1546.
    HARVEY v. THE STATE.
    (424 SE2d 18)
   Pope, Judge.

Defendant Hamus Lee Harvey was convicted of armed robbery and appeals.

1. Defendant’s accomplice pleaded guilty to the offense. Eight days after the robbery the accomplice gave a statement in which he admitted he and the defendant had planned the robbery for approximately two weeks. According to the accomplice, defendant drove to the rural store and let the accomplice out to commit the robbery and after the robbery picked the accomplice up on the road to drive back to Savannah. At trial, the accomplice admitted he made the statement but renounced it, saying he committed the robbery alone and made the statement implicating defendant in an attempt to obtain better treatment.

Defendant argues the evidence was insufficient to support the guilty verdict because he claims the statement of the alleged accomplice was uncorroborated. We disagree. The evidence showed the defendant made a statement admitting he dropped the accomplice off at the store but claiming he thought the accomplice wanted to buy a soft drink and wait for him while he went on an errand. Defendant admitted he picked the accomplice up on the road, turned around and drove away. The accomplice testified the car defendant was driving was “orangish brown” in color. A customer at the store at the time of the robbery testified she saw a “rust brown” car drive back and forth in front of the store a couple of times just before the robbery. Although they lost sight of the robber as he ran down the road after the robbery, the customer and one of the store owners saw the car turn around in the road and then turn onto another road and drive away after the robber ran in the direction of the car. The store was owned by two brothers. The owner who was robbed testified that although a cash register was sitting on the counter, the robber asked for the cash box. The owner testified that a cash box was kept under the counter with large bills for cashing checks for customers. The owner denied ever seeing the robber in the store before but both store owners recognized defendant as a customer for whom they had cashed checks.

The corroborating evidence required to sustain a conviction based upon the testimony of an accomplice “need not be sufficient to warrant a conviction, slight evidence identifying the accused as a participant in the crime is'Sufficient to support the verdict. [Cit.] Sufficiency of the corroboration of the accomplice’s testimony is for the jury. If some evidence of corroboration exists, this court will uphold the verdict. [Cit.] As the accomplice’s testimony was corroborated, this enumeration is without merit.” Hall v. State, 162 Ga. App. 713, 715-716 (293 SE2d 862) (1982).

Decided September 24, 1992

Reconsideration dismissed October 20, 1992.

Merritt & Rose, Charles P. Rose, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

2. Defendant also argues the trial court erred in failing to charge the jury upon the necessity of the corroboration of accomplice testimony, even though defendant admits he did not request such a charge. For the reasons set forth in this court’s opinion in Bone v. State, 178 Ga. App. 802, 808 (6) (345 SE2d 46) (1986), “[t]his enumeration [of error] lacks merit.”

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1553.
    WALDRIP v. THE STATE.
    (424 SE2d 31)
   Johnson, Judge.

Ronald Ray Waldrip pled guilty to driving under the influence of alcohol after the trial court denied his amended motion to suppress evidence of his blood-alcohol level. The trial court expressly approved the reservation of this issue for review on appeal. See Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991).

At trial, a state trooper testified that he was in the process of citing a motorist for a traffic violation when Waldrip drove by at an excessive rate of speed in a truck equipped with a loud exhaust system. When the trooper looked up, Waldrip made an obscene hand gesture at him. The trooper radioed the State Patrol dispatcher and requested that other officers be on the lookout for Waldrip’s truck. Acting on the radio dispatch, a deputy from the Forsyth County Sheriff’s Department stopped Waldrip. When the trooper arrived at the scene, the deputy informed him that Waldrip had a strong odor of alcohol about his person. Waldrip was unsteady on his feet and appeared to be intoxicated. After being placed under arrest, Waldrip consented to a breath test. The trooper informed Waldrip that he could take an additional test at his own expense. Waldrip declined to take the additional test.

Waldrip’s sole enumeration of error is that the trial court erred in denying his motion in limine, and motion to suppress evidence of his blood-alcohol level. He argues that the trooper lacked probable cause to conduct the warrantless arrest and, that even if probable cause existed pursuant to the trooper’s observations, the deputy who effectuated the stop could not have acquired probable cause based upon the radio dispatch. We disagree.

Decided October 6, 1992

Reconsideration denied October 20, 1992

Robert M. Goldberg, for appellant.

Daniel T. Stringer, Solicitor, James A. Ward, Jr., Assistant So licitor, for appellee.

OCGA § 40-8-71 (c) provides that any person using a motor vehicle equipped with a muffler which causes excessive noise shall be guilty of a misdemeanor. Moreover, Waldrip appeared to be speeding, a violation of OCGA § 40-6-181. “ ‘A “warrantless arrest” is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense. (Cits.)’ [Cits.]” Napier v. State, 184 Ga. App. 770, 771 (1) (362 SE2d 501) (1987). It is clear that both the noise emanating from Waldrip’s truck, and the rate at which he was traveling, constituted probable cause for a warrantless arrest.

Waldrip also relies on OCGA § 17-4-23 (a), arguing that probable cause could not have been transferred from the trooper to the deputy who effectuated the stop via the radio dispatcher. That statute provides: “A law enforcement officer may arrest a person accused of violating any law or ordinance . . . provided the offense is committed in his presence or information constituting a basis for arrest . . . was received by the arresting officer from a law enforcement officer observing the offense being committed. ...” It is Waldrip’s contention that he was “under arrest” when the second deputy stopped his vehicle and that the second officer had received the information from the radio dispatch and not directly from the law enforcement officer who observed the offense. In Parker v. State, 161 Ga. App. 37, 39-40 (4) (288 SE2d 852) (1982), this court held that an officer need not personally be aware of all the facts which would support a probable cause determination so long as it can be established by evidence that the officer’s actions were the end result of a chain of information-sharing, one link of which is an officer in possession of probable cause. Wald-rip’s reading of OCGA § 17-4-23 (a) is incorrect, and the trial court did not err in denying his motion in limine, or his motion to suppress.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1793.
    RAY v. THE STATE.
    (424 SE2d 13)
   McMurray, Presiding Judge.

Defendant was convicted of possession of marijuana and he appeals. In his sole enumeration of error, defendant contends the trial court erred in failing to grant his motion for a directed verdict of acquittal because the State failed to prove beyond a reasonable doubt that the substance in defendant’s possession was marijuana.

At trial, the arresting officer testified, without objection, as follows: On the night of September 23, 1991, he stopped a speeding automobile and arrested the driver for driving under the influence of alcohol. Defendant was a passenger in the automobile. After placing the driver in the back of his squad car, the officer approached defendant to see if he was able to drive the automobile on behalf of the driver. He opened the passenger door and observed that defendant was clutching a plastic bag containing a “reasonable amount of green leafy material” that he believed to be marijuana. When the officer asked defendant what he had in his hand, defendant dropped the bag on the floor and said “I don’t have anything. It doesn’t belong to me.” The officer retrieved the bag and examined its contents, “which it did confirm to me to be marijuana.”

The State called a crime scene technician to the stand. She was trained and certified by the State of Georgia with regard to the testing and identification of marijuana. Following her training, the technician performed approximately 50 tests on suspected marijuana plants. The State did not tender the technician as an expert witness. Rather, she was offered as a crime scene technician who was trained and qualified to test marijuana. The technician testified that she conducted three tests on the marijuana that had been found in defendant’s possession — a microscopic analysis, a Duquenois-Levine test and a fast blue salts test — and each test was positive for marijuana.

Defendant testified that the marijuana belonged to the driver of the automobile; that it was not his; and that he never took possession of it. He added that the driver placed the marijuana in a pipe and smoked it; that he was familiar with the odor of marijuana; and that he recognized the substance in question as being marijuana.

In King v. State, 190 Ga. App. 467 (379 SE2d 175), a detective testified that cocaine was found in defendant King’s pants pocket. King did not object to the detective’s testimony and he did not claim that the substance was anything other than cocaine. Nevertheless, on appeal, King asserted that the evidence was insufficient to prove that he was in possession of cocaine because there was no expert testimony identifying the drug and no crime laboratory report. This Court ruled that the evidence was sufficient to support King’s cocaine conviction beyond a reasonable doubt. In so ruling, this Court -pointed out that the identity of a substance need not be established by expert testimony; that the detective was simply relating facts that he observed; that King did not contest the detective’s description of the substance; and that King did not assert that the substance was something other than cocaine. King v. State, 190 Ga. App. 467, 470, supra.

Decided September 18, 1992

Reconsideration denied October 20, 1992.

Stephen T. Maples, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

In the case sub judice, the arresting officer testified without objection that the substance in question was marijuana. The crime scene technician testified that she performed three tests on the substance and each test was positive for marijuana. Defendant testified that he was familiar with the odor of marijuana and he recognized the substance as being marijuana. At no point did defendant claim that the substance was something other than marijuana. Given these facts and the state of the record, we conclude that the evidence was sufficient to enable a rational trier of fact to find defendant guilty of possession of marijuana beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); King v. State, 190 Ga. App. 467, 470, supra. The trial court did not err in failing to grant defendant’s motion for a directed verdict of acquittal.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1892.
    DUNBAR v. THE STATE.
    (424 SE2d 43)
   McMurray, Presiding Judge.

Defendant Dunbar appeals his conviction of the offense of armed robbery. The sole enumeration of error complains of the trial court’s refusal to admit into evidence hearsay testimony concerning a jailhouse statement made by a co-indictee. Field:

Defendant and Meadoux were charged by indictment with the armed robbery and murder of Whitfield, and with an aggravated assault upon Robinson. The State’s evidence shows that Whitfield was a drug dealer, Robinson was Whitfield’s female companion, and that defendant was a purchaser of drugs from Whitfield. Defendant, accompanied by three companions, arrived at Robinson’s and Whitfield’s motel room ostensibly to deliver some money to Whitfield. Defendant’s three companions sat and waited while Whitfield and defendant stepped to the back of the motel room, to the vanity or bathroom area, to conduct their business. Upon the return of Whitfield and defendant, the three individuals who had entered with defendant pulled guns, robbed Whitfield as defendant walked out of the motel room, and then shot Robinson and Whitfield.

Prior to defendant’s trial, co-indictee Meadoux was tried and acquitted. At defendant’s trial defense counsel sought to introduce the testimony of Payne, a former cell mate of Meadoux, that Meadoux told him that it was his original intent to rob both defendant and the man that died, and that at one point during the week he had followed defendant to rob him and decided not to because he was not sure he had anything with him. Defendant submitted that this evidence was admissible as a declaration against the penal interest of Meadoux, as the declaration of a co-conspirator under OCGA § 24-3-5, and under the rule stated in Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738). The State objected to the admission of the offered testimony since it was hearsay not admissible under any exception to the general rule excluding such evidence. The sole issue on appeal is whether the trial court erred in sustaining the State’s objection to the testimony at issue.

“It is the long-standing rule in this state that declarations to third persons against the declarant’s penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at his trial, Lyon v. State, 22 Ga. 399 (1) (1857); Johnson v. State, 188 Ga. 662 (1) (4 SE2d 813) (1939); Bryant v. State, 197 Ga. 641 (9) (30 SE2d 259) (1944), or to procure a new trial on the basis of newly discovered evidence. Herrin v. State, 230 Ga. 476, 478 (197 SE2d 734) (1973). In Lyon v. State, supra, the court reasoned that if such admissions were allowed as evidence upon the trial of the accused, a person could subvert the ends of justice by admitting the crime to others and then absenting himself.” Timberlake v. State, 246 Ga. 488, 490 (1), 492 (271 SE2d 792). While defendant argues that we should follow the example of other states which have rejected or abandoned the reasoning expressed in Lyon, this overlooks the fact such is beyond the authority of this court as we are bound by the decisions of the Georgia Supreme Court.

In Timberlake v. State, 246 Ga. 488, supra, the Georgia Supreme Court rejected the proposition that this reasoning had been undercut by the decisions in Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) and Green v. Georgia, 442 U. S. 95, supra. Furthermore, under the circumstances of this case, defendant’s reliance on Green v. Georgia, 442 U. S. 95, supra, is not well founded since the “unique circumstances” described in Green are not present in the case sub judice, nor has the hearsay rule been “applied mechanistically to defeat the ends of justice.” Id. “[T]his is not a death penalty case and the [S]tate has not relied on the . . . confessions by [Meadoux] to convict him.” Timberlake v. State, supra at 493. See also Isaacs v. State, 259 Ga. 717, 736 (37), 737 (386 SE2d 316); Davis v. State, 255 Ga. 598, 604 (8) (340 SE2d 869); Alderman v. State, 254 Ga. 206, 209 (7) (327 SE2d 168); Davis v. State, 194 Ga. App. 482, 484 (2), 485 (391 SE2d 124); Singleton v. State, 193 Ga. App. 778, 781 (5) (389 SE2d 269).

Decided October 8, 1992

Reconsideration denied October 20, 1992

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, Ronald E. Houser, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Nor is defendant’s reliance upon OCGA § 24-3-5 well placed. Under this statute the declaration of a co-conspirator during the pendency of a criminal project is admissible against all co-conspirators. However, this statute by its terms may only be used against a conspirator and is not a means by which a conspirator may introduce exculpatory evidence. The trial court did not err in sustaining the State’s objection to the hearsay evidence.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A92A0864.
    PARRISH v. THE STATE.
    (424 SE2d 68)
   Andrews, Judge.

Parrish appeals his conviction by jury of kidnapping, theft by taking and escape, resulting from an escape while incarcerated at the Colquitt County jail. He appeals solely on the general grounds, raising only the legal sufficiency of the evidence. E.g., Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

The evidence showed that Parrish, Hawkins, and Thornton were all prisoners at the jail. Thornton requested medicine from Saunders, the jailer, who was grabbed and picked up by Parrish when he brought it to the cell. Parrish then placed the jailer in the cell, closed the door, and all three left the building. Parrish and Hawkins managed to climb the fence and escape.

There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime, the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Decided October 20, 1992.

William R. Folsom, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1026.
    BIRCHFIELD v. THE STATE.
    (424 SE2d 66)
   Andrews, Judge.

Birchfield appeals his conviction of trafficking in cocaine (possession of 55.7 grams of 19 percent cocaine) and possession of cocaine (possession of 1.8 grams) occurring on March 30, 1990. He was acquitted of sale of cocaine alleged on March 28, 1990.

Viewed in favor of the verdict, the evidence was that, on March 28, 1990, Birchfield drove his vehicle into a parking lot where he met another vehicle driven by undercover officer Woods. In the car with Birchfield were co-defendant Horsley and Broadwater, who was not charged. Horsley got out of Birchfield’s vehicle and into Woods’, where he sold her a half ounce of cocaine. Birchfield had parked his vehicle so that the driver’s window was adjacent to the driver’s window of Woods’ car.

Woods then offered to buy more cocaine on March 30 and Horsley asked Birchfield what he could do with $3,000. Birchfield answered “I can get you three for thirty four.” On March 30, Woods, accompanied by a second undercover agent, went to a pay phone as instructed by Horsley and called him. Horsley and Birchfield then arrived in a vehicle and got out and approached her. Birchfield asked about the second woman and when told she was Woods’ roommate, replied that was alright, he had his gun. The agents then followed the two men to a house where Woods entered with them. Horsley went to a back bedroom and Woods followed. Although Birchfield stopped in the living room to speak to a woman there, when Horsley showed Woods two ounces of cocaine, all they had, Woods looked behind her and saw Birchfield blocking the bedroom door.

Decided October 20, 1992.

Charles R. Sheppard, for appellant.

Woods returned to the car where she got $2,700 and summoned other officers. She returned to the bedroom where Birchfield again stood in the doorway. Birchfield informed her that they could get her three ounces later that evening. Also, Birchfield gave her $10 in change for the purchase.

After the two women left, other officers entered the house, finding Horsley in the bedroom with the cash. Officers then entered a bathroom where Birchfield was sitting on the open commode, fully dressed. The water was running in the commode and there was one small package of cocaine about three inches from Birchfield’s foot.

1. The first enumeration contends the court’s allowing of the playing of the audio tape of the encounter between Woods, Horsley, and Birchfield over his hearsay objection was error as to any part of the conversation in which Birchfield was not involved.

“ ‘The trial judge may admit testimony by co-conspirators before the conspiracy has been proved, provided that such existence is after-wards shown during the trial. (Cit.)’ [Cit.]” Lee v. State, 204 Ga. App. 283 (418 SE2d 809) (1992). Here, the State introduced sufficient circumstantial evidence of a conspiracy between Horsley and Birchfield to sell cocaine so that Horsley’s statements to Woods in furtherance of that conspiracy were admissible. Britt v. State, 202 Ga. App. 689, 690 (2) (415 SE2d 492) (1992).

2. While Birchfield here complains of the giving of a charge by the court concerning consideration of an uncorroborated statement by the accused, he stated below, when asked directly by the court, that he had no objections to the charge.

“ ‘If . . . the trial court asks if there are objections to the charge, defense counsel must either state his objections or reserve the right to object on motion for new trial or on appeal. [Cits.] Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge. (Cit.)’ Rivers v. State, 250 Ga. 303, 309 (298 SE2d 1) (1982).” Bryant v. State, 256 Ga. 273, 274 (1) (347 SE2d 567) (1986).

3. Birchfield also contends that the court erred in denying his motion for directed verdict. We consider the legal sufficiency of the evidence in such a procedural posture, and there being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime, the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Daniel W. Hamilton, Assistant District Attorneys, for appellee.

       Three ounces of cocaine purchased for $3,400.


text:
    A92A1163.
    PENNYMAN v. THE STATE.
    (424 SE2d 64)
   Johnson, Judge.

Phillip Pennyman was convicted of possession of a firearm during the commission of a crime and two counts of armed robbery. His motion for a new trial was denied and he appeals.

1. In Pennyman’s first enumeration, he challenges the sufficiency of the evidence supporting his convictions.

At trial, both of the victims testified that two men robbed them of their jackets and a hat at gunpoint. The victims identified Pennyman as one of the perpetrators. A police officer testified that Pennyman and his accomplice fit the description given him in a radio call requesting a response to the armed robbery. A hat, which was identified by one of the victims as his, along with a rifle were found in the pick-up truck being driven by Pennyman at the time of his arrest. Pennyman admitted at trial that the hat did not belong to him. Reviewing the evidence in the light most favorable to the jury verdict, we conclude that a rational trier of fact could have found Pennyman guilty of armed robbery and possession of a firearm during the commission of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Pennyman contends that the trial court erred in charging the jury on the definition of parties to a crime after the jury had been excused to deliberate because Pennyman was not given an opportunity to argue that law to the jury. This contention is without merit.

During the course of its deliberations, the jury sent the following note to the court: “Does Phillip Pennyman need to be found to have in his possession the gun to be charged with the possession of firearm during the commission of a crime, or does he just need to be found to be involved in the crime in which the firearm was used?” After some discussion with counsel, the court decided to recharge the jury on the definition of possession of a firearm during the commission of a crime and to charge the jury, for the first time, on the law regarding parties to a crime. Pennyman’s attorney objected to the charge on parties to a crime on the ground that it was unsupported by the evidence in the case. His objection was meritless and was, therefore, properly overruled by the trial court. There was no request made to argue the law regarding parties to a crime at that time. However, after the instructions had been given and the jury had returned to its deliberations, Pennyman’s attorney renewed his objection and moved for a mistrial. He based his renewed objection and motion for mistrial on the ground that he was not given an opportunity to present argument regarding the law of parties to a crime. We note that he had never specifically asked the court for such an opportunity.

Decided October 20, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

Pennyman’s remedy under the circumstances was to request the right to argue the law regarding parties to a crime to the jury and elicit a ruling on his request from the trial court. See Miller v. State, 163 Ga. App. 889, 892 (296 SE2d 182) (1982); see also Daniels v. State, 137 Ga. App. 371, 375 (224 SE2d 60) (1976). Having failed to make the request to reargue the law of parties to a crime, Pennyman may not claim that he was denied the opportunity to argue that law. There is nothing in the record to support his contention of error, and therefore there is nothing presented to us for review. Singleton v. State, 198 Ga. App. 539, 540 (402 SE2d 132) (1991). Even if Pennyman’s comment could be construed as a request to make argument regarding parties to a crime and the trial court had denied such a request, such error would be harmless under the particular circumstances of this case. The charge was both complete and accurate, and was supported by the evidence. In addition, the evidence of Pennyman’s guilt was overwhelming and this negates the possibility that the alleged error complained of contributed to his conviction. Greer v. State, 201 Ga. App. 775, 776 (412 SE2d 843) (1991). Accordingly, the judgment of the trial court shall not be disturbed.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1076.
    CARNES v. ADEL STEEL, INC.
    (424 SE2d 902)
   Carley, Presiding Judge.

Appellee-plaintiff brought suit against appellant-defendant for breach of contract. Appellant answered and counterclaimed against appellee for breach of contract. After a jury trial, a verdict in favor of appellee was returned. Thereafter, the trial court entered judgment on the jury’s verdict and, sua sponte, awarded attorney’s fees to appellee. Appellant appeals.

1. Appellant enumerates the general grounds.

The evidence was not without conflict. However, “[w]e have examined the transcript and find evidence to support the verdict of the jury and the judgment of the [court]. There being some evidence to support the judgment, we must and will affirm. [Cit.]” Franks v. Reese, 151 Ga. App. 670, 672 (261 SE2d 420) (1979).

Decided October 21, 1992.

B. Dean Grindle, Jr., for appellant.

Moser & Aeree, Gary L. Moser, Randall S. Aeree, for appellee.

2. The trial court’s sua sponte award of attorney’s fees was presumably based upon OCGA § 9-15-14 (b). However, the trial court did not make the requisite finding so as to authorize an award thereunder. Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441, 442 (3) (385 SE2d 307) (1989), overruled on other grounds, Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991). Accordingly, that portion of the judgment must be reversed.

Judgment affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


text:
    A92A1377.
    HICKSON v. THE STATE.
    (424 SE2d 68)
   Pope, Judge.

Appellant/defendant John Wesley Hickson appeals his convictions for armed robbery and possession of a firearm during the commission of a crime.

1. We reject defendant’s contention that the evidence was legally insufficient to support his conviction. Viewed in the light most favorable to the verdict, the evidence reveals that on July 17, 1991 at approximately 11:30 p.m., an employee of a Subway Sandwich Shop observed a late model Thunderbird driving by very slowly and later stopping at the restaurant. The employee observed the tag number of the vehicle and that the driver was wearing a cap. A few minutes later, after the employee left the counter area, defendant came into the restaurant, demanded that the employee give him the money from both the cash register and a cabinet area, shot past the employee’s head, then fled. Although the employee did not see the vehicle the robber left in, two men who were across the street from the restaurant at the time of the robbery said they observed a tall man run from the restaurant and leave in a late model Thunderbird or Mercury. The employee reported the robbery to the police. When they arrived, she described the defendant as a tall black man who was wearing a cap, told the policeman she had seen him before, and gave the officer the tag number of the Thunderbird she had observed shortly before the robbery. The next day the employee saw the car she had observed the night before and reported it to the police. She later picked defendant out of a photographic lineup.

Defendant contends the evidence was insufficient because the employee did not have adequate time to observe the defendant, as evidenced by certain inconsistencies in her statements. “ ‘The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness ... for it is the function of the triers of fact to determine to what evidence it gives credence. (Cit.) It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. (Cit.) Rather, on appeal, we indulge every contingency in favor of the verdict. (Cit.)’ Simpson v. State, 193 Ga. App. 439, 440 (2) (388 SE2d 39) (1989).” Nguyen v. State, 201 Ga. App. 132, 133 (410 SE2d 340) (1991). We hold the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses charged.

2. After carefully reviewing the transcript of the trial and the transcript of the hearing on defendant’s motion for new trial, we hold the trial court correctly concluded defendant’s trial counsel was not ineffective.

3. Defendant argues he did not knowingly waive his Miranda rights because he was intoxicated at the time he signed the waiver form. The waiver of rights form given to defendant contained a list of drugs including alcohol, and requested the person signing the form to indicate if he had consumed any of those drugs within the past eight hours. Defendant checked the block that indicated he had consumed alcohol. In the following question, however, he denied being under the influence of any drug (including alcohol) at the time of signing the form. The officer who took defendant’s statement testified that defendant did not appear to be under the influence of alcohol and did not smell of alcohol at the time he signed the form.

The trial court held defendant’s statement to police was voluntary and submitted it to the jury. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a [statement by defendant] will be upheld on appeal. [Cits.]” Crawford v. State, 245 Ga. 89, 90-91 (263 SE2d 131) (1980). We hold, under the facts of this case, the trial court did not err in admitting defendant’s statement. Furthermore, even if the admission of the statement had been error, it would be harmless error in this case since in defendant’s statement he denied committing the offenses with which he was charged.

Decided October 21, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, G. Barksdale Boyd, Assistant District Attorneys, for appellee.

4. In his statement, the defendant described the offenses for which he was tried as not fitting his “M.O.” Defendant argues that portion of the statement should have been excluded because it placed his character in issue. We agree with the trial court’s assessment of the potential for harm caused by this statement. The term “M.O.” has become a term that is not just used in the criminal context, but an expression used to describe normal behavior of a person. It is also likely, as the trial court noted, that some of the jurors would not associate any particular meaning with the term. Furthermore, if the admission of that statement could be considered error, it was at most harmless error since the prosecution agreed not to introduce evidence of defendant’s prior convictions for armed robbery based on that statement, and in fact did not introduce evidence of defendant’s prior convictions for armed robbery.

5. Defendant finally contends the trial court erred in charging the jury it “may take into consideration the fact he is interested in the result of the prosecution.” That charge has been approved as a correct statement of law by our Supreme Court and does not constitute reversible error. Johns v. State, 239 Ga. 681, 684 (4) (238 SE2d 372) (1977).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A92A0768.
    GARCIA v. UNIQUE REALTY & PROPERTY MANAGEMENT COMPANY, INC. et al.
    (424 SE2d 14)
   Sognier, Chief Judge.

Darlena Garcia brought suit against Unique Realty & Property Management Company and its agent Sandra Robertson to recover damages for alleged fraud and breach of fiduciary duty arising from the performance of a residential real estate listing contract. Garcia appeals from the entry of summary judgment for the defendants.

On March 26, 1988, appellant entered into an exclusive listing contract with Unique Realty as broker and Robertson as agent for the sale of a residence owned by appellant. The listing contract provided that appellees would “use [their] best efforts to procure a person ready, willing, and able to purchase the Property at the price and on the terms specified herein” (although no terms and conditions other than the price were set forth in the listing contract). Appellant contends that in contract negotiations the parties also agreed that appellees would present offers only from “pre-qualified potential purchasers” whose income and credit history had been evaluated to determine whether the prospective buyer could obtain a mortgage and make the necessary payments.

After the listing contract was extended several times, Robertson presented an offer that appellant accepted. This sales contract provided that the buyers would assume appellant’s existing mortgage and make a down payment of $6,500 and that appellant would finance the balance of the purchase price, with $5,000 due appellant 90 days after closing and the balance of $25,000 due one year later. Before she accepted the offer, appellant discussed the buyers’ financial status with Robertson, who informed appellant that she believed the buyers’ annual income was sufficient to support the payments and that their ability to make a down payment in the amount contemplated by the contract indicated their financial strength. Robertson did explain to appellant that owner financing was necessary because the buyers had lived in Atlanta less than a year and had just started a new business, and that because of these short-term circumstances they likely would not qualify for a new mortgage. The parties disagree whether Robertson assured appellant that if the buyers defaulted on the first mortgage appellant would be notified.

The buyers paid the requisite down payment at closing but were unable to pay the $5,000 installment on time. After negotiations, appellant agreed to allow them an additional 30 days, which they met. However, when appellant contacted the buyers a month before the final payment was due, they informed her they would not be able to make that payment. Upon investigation, she learned that they were in default on the first mortgage and that foreclosure was scheduled to occur in a few weeks. Appellant attended the foreclosure sale with the intention of buying the property but was unable to locate the foreclosure attorney before the sale occurred.

1. In her complaint appellant first alleged that appellees negligently or wilfully misrepresented the financial status and creditworthiness of the buyers and that she relied on their representations to her detriment in deciding to accept the buyers’ offer and extend owner financing. The essential elements of an action for fraud are as follows: “(1) the defendant made the representation; (2) he knew the representation was false at the time; (3) he made it with the intention and purpose of deceiving the plaintiff; (4) the plaintiff reasonably relied upon the representation; (5) the plaintiff sustained the alleged loss and damage as a proximate result of the defendant’s representation.” Morrison v. Hayes, 176 Ga. App. 128, 130 (335 SE2d 596) (1985).

We hold the trial court properly granted summary judgment to appellees on the fraud claim because appellees pierced appellant’s allegations on the essential element of knowingly misrepresenting or failing to disclose the buyers’ financial status and ability to perform the contract. Contrary to appellant’s assertions, appellees did deliver what the listing contract required — a buyer “ready, willing, and able to purchase” the subject property — as the buyers appeared at closing and paid the down payment, executed the documents necessary to assume the first mortgage and create the second, and purchased the property. See Stewart v. Sisk, 29 Ga. App. 17 (1) (114 SE 71) (1922); compare Morrison v. Hayes, supra at 129-130 (2). The representations appellant challenges concerned appellees’ assessment of the buyers’ ability to perform the further requirements of the sales contract after closing. These statements constituted an expression of opinion, which cannot form the basis for a fraud claim. Buckner v. Mallett, 245 Ga. 245-246 (1) (264 SE2d 182) (1980). Appellees likewise cannot be held liable for their failure to foretell accurately the buyers’ future behavior after the closing because there is no evidence appellees knew of or could have predicted in advance any subsequent change in the buyers’ financial condition, the buyers’ later default, or even whether the buyers would make the future payments regardless of their financial ability. See Cobb v. Kennon Realty Svcs., 191 Ga. App. 740-741, 742 (3) (382 SE2d 697) (1989).

2. Appellant also alleged that appellees breached their fiduciary duty owed to appellant. Appellees, as agents, were obligated to exercise toward appellant diligence, loyalty, and absolute good faith, see Clyde Chester Realty Co. v. Stansell, 151 Ga. App. 357, 359 (1) (259 SE2d 639) (1979), and any failure of appellees, as agent, to disclose what should be disclosed to appellant, the principal, “ ‘is as much a fraud in law as an actual affirmative false representation. [Cit.]’ [Cit.]” Sutlive v. Hackney, 164 Ga. App. 740, 742 (297 SE2d 515) (1982). Here, however, there is no evidence appellees knew the buyers subsequently would experience financial difficulties or default on their obligations. Thus, appellees’ lack of knowledge of and inability to predict the buyers’ future performance also precludes appellant’s claim for breach of fiduciary duty, for appellees cannot be held liable for failing to disclose what they did not know and could not have foretold. Compare Scott v. Lumpkin, 153 Ga. App. 17-19 (264 SE2d 514) (1980). Appellees’ duty of diligence and good faith cannot be held to include an obligation to predict accurately or guaranty the future financial condition or performance of a third party. Accordingly, the trial court correctly granted summary judgment to appellees on the claim for breach of fiduciary duty.

3. To the extent that Count 3 of appellant’s complaint can be construed to state a claim for breach of a contractual obligation to investigate the buyers’ financial condition and creditworthiness, appellees likewise are entitled to summary judgment on that claim. The listing contract between the parties is silent as to any such obligation on the part of appellees. This contract being complete on its face, appellant’s parol evidence of additional terms is not admissible to add to or vary from the written contract. OCGA § 13-2-2 (1); see American Cyanamid Co. v. Ring, 248 Ga. 673, 674 (286 SE2d 1) (1982). “All previous negotiations are merged in the subsequent written contract, and an additional obligation can not be grafted thereon by parol testimony.” (Citations and punctuation omitted.) Simmons v. Wooten, 241 Ga. 518, 519 (246 SE2d 639) (1978). Thus, appellees have pierced appellant’s allegations of breach of contract.

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Andrews and Johnson, JJ., concur. McMurray, P. J., Pope, Beasley and Cooper, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that genuine issues of material fact remain on appellant’s allegations of negligent or wilful misrepresentation and breach of fiduciary duty to fully disclose material facts.

“ ‘The relationship of principal and agent is fiduciary in character, and imposes upon the parties the duties of exercising toward each other the utmost good faith. Civil Code, § 4030 (Code, § 37-707) [now OCGA § 23-2-58]. The law implies, as a part of the contract by which every agency arises, that the agent agrees to have an exercise, for and toward his principal, loyalty and absolute good faith. . . . (Citations omitted.) If the agent practices upon the principal any deception (whether intentional or not) whereby the principal is misled and damaged and the agent would reap any benefit, the transaction is fraudulent. . . .’ Williams v. Moore-Grant Co., 3 Ga. App. 756, 759 (60 S. E. 372).” Reisman v. Massey, 84 Ga. App. 796, 799 (1), 800 (67 SE2d 585). Further, when such a confidential relationship “ ‘exists, concealment when there is a duty to disclose, if resulting in injury is itself actionable fraud.’ Scott v. Lumpkin, 153 Ga. App. 17, 19 (264 SE2d 514) (1980).” Moore v. Harry Norman Realtors, 199 Ga. App. 233, 235 (1) (404 SE2d 793).

In the case sub judice, Robertson advised appellant before execution of the sales contract that the buyers were acceptable credit risks for the purposes of owner-financing, but she did not then give appellant material information regarding the buyers’ questionable financial condition. In this vein, Robertson testified that she was aware during the sales negotiations that the buyers owned a house in Washington D. C. and that she did not then view this as favorable financial information, explaining that ownership of other property indicates debt which may impair the buyers’ ability to obtain financing. On the other hand, appellant testified that she knew nothing about the Washington D. C. property until after the buyers purchased her home and after she became a creditor in the buyers’ bankruptcy proceeding. It is my view, that this evidence supports appellant’s claims that appellees breached a fiduciary duty to disclose material information regarding the buyers’ financial status. I also believe that genuine issues of material fact remain on appellant’s claim that appellees negligently or wilfully coerced her into selling her home to unqualified home buyers, disregarding the truth of representations that the buyers were financially stable. Moore v. Harry Norman Realtors, 199 Ga. App. 233, 235 (1), supra; Reisman v. Massey, 84 Ga. App. 796, 799 (1), supra. See Lyle v. Etheridge, 40 Ga. App. 808 (1) (151 SE 531).

Decided September 23, 1992

Reconsideration denied October 22, 1992.

Churchill & Ferguson, Anthony M. Thomasson, for appellant.

Moss, Clifford, Moss & Rothenberg, Robert A. Moss, Joel Y. Moss, for appellees.

I am authorized to state that Judge Pope and Judge Beasley join in this dissent.


author: Beasley, Judge.

text:
    A92A0808.
    ISO-GRAPHICS, INC. v. EVANS.
    (424 SE2d 24)
   Beasley, Judge.

The issue in this workers’ compensation case is whether the claimant/employee’s injury arose out of and in the course of her employment. The employer was granted a discretionary appeal from the superior court’s reversal of an award by the State Board of Workers’ Compensation and the court’s adoption of the ALJ’s award instead, for the claimant/employee.

Evans was employed by Iso-Graphics, Inc. for eight years. She worked in a manufacturing position as an assembler of personal computer boards. On August 24, 1989, she was injured in a collision while driving her car during business hours to pick up Chris, a fellow employee, who was the son of her employer’s president. He was twenty-two years of age, had been employed by the company for two months following a period of part-time employment, and worked in sales. Chris was taking his car to an automobile repair shop and leaving it there. The ALJ awarded benefits after finding that “[Evans] was instructed by the son of the owner/president to pick him up where his personal car was being repaired for company business and to bring him back to work, that such act was a benefit to the employer as it allowed the son’s car to be repaired for the employer’s business use, that it allowed the son to return to his work, that this service was not a personal favor or of any benefit to [Evans], and that the act was performed during the employer’s regular work hours.” The ALJ concluded that the injury arose out of and in the course of Evans’ employment and was compensable.

The Board disagreed with these findings of fact upon its de novo review of the evidence. It found that “the incident occurred while the employee was on a purely personal errand to do a favor for the son of the president of the company who was without authority to otherwise control the employee’s work activities.” The Board denied benefits.

The superior court adopted the ALJ’s award because the court found from the evidence that the incident was not the result of a personal favor requested by the son, Evans derived no personal benefit performing the task, all benefit was for the employer, Evans’ acting at the son’s request was under the belief that the son was furthering his father’s business needs, and Evans reasonably believed that she was performing an activity beneficial to her employer.

The superior court exceeded its authority in substituting its own findings of fact for those of the Board. It was bound by the Board’s findings, OCGA § 34-9-105 (c). As to the facts, it could reverse the Board only if there was “not sufficient competent evidence in the record to warrant the members making the decision.” OCGA § 34-9-105 (c) (4). Franks v. Avila, 200 Ga. App. 733, 735 (4) (409 SE2d 564) (1991). See also Thomas v. Helen’s Roofing Co., 199 Ga. App. 161, 162 (1) (404 SE2d 331) (1991). Whether Evans was on a personal mission for the co-employee or rather on a work-related trip was a question of fact, not one of law. The evidence was in dispute.

There was evidence that the employer’s son did not use his car for the employer’s business, that the son did not work in the same area as Evans, that he had no authority over her, that he asked but did not direct her to pick him up after inquiring about her own workload, that she was never told by her superior, the president of the employer, to answer to the son, that she left her work, that she never sought mileage for the trip, and that the group health insurance forms she submitted stated that the injuries were not work-related.

This comprised sufficient competent evidence for the Board’s findings of fact and the decision that the incident did not arise out of and in the course of Evans’ employment. That being the case, the court was obliged to affirm the award. See the nine principles which govern the appellate courts’ review. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410-411 (224 SE2d 65) (1976). See also Lavine v. American Ins. Co., 179 Ga. App. 898, 900 (348 SE2d 114) (1986).

Decided October 2, 1992

Reconsideration denied October 22, 1992.

Nicholas E. Bakatsas, for appellant.

Burdine & Brown, Thomas F. Brown II, Beverly L. Cohen, for appellee.

The evidence supported the finding that the trip out of the employer’s business was, instead, a deviation from the employer’s business. See Ansa Mufflers Corp. v. Law, 192 Ga. App. 45 (383 SE2d 574) (1989). Even if it were found that Evans made it convenient for the co-employee, who was on his own personal errand, to return to his work more quickly, this fact did not compel the conclusion that her participation in the project arose out of, or was in the course of, her employment.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1438.
    STARNES v. THE STATE.
    (424 SE2d 4)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of rape, attempted rape, incest, cruelty to children, and four counts of aggravated sodomy. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The victim was, in each instance, appellant’s own daughter. The various crimes had occurred either in 1984, when appellant’s daughter was 11, or in 1988, when she was 15. The State sought to introduce evidence that appellant had previously committed similar offenses. That evidence showed the following: In 1955, appellant had begun sexually abusing his sister when she was five and she was thereafter subjected to his acts of sexual abuse until 1961, when she reached the age of eleven. In 1959, he had begun sexually abusing another of his sisters when she was five and she was thereafter subjected to his acts of sexual abuse until 1967, when she reached the age of thirteen. In 1961, appellant had begun sexually abusing yet another of his sisters when she was four and she was thereafter subjected to his acts of sexual abuse until 1977, when she reached the age of sixteen. Although the extreme acts of sexual abuse which underlay the instant prosecution occurred in 1984 and 1988, appellant had actually begun sexually abusing his daughter in 1978, when she was five or six. Over objection, the trial court admitted this evidence of appellant’s prior acts of sexual abuse. Citing Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), appellant enumerates this evidentiary ruling as error.

At issue in Gilstrap were eight prior incidents of child molestation. Although very similar in nature, each of those prior eight incidents had allegedly occurred during only certain isolated periods of time within the more than thirty years which preceded commission of the acts for which the defendant was being tried. The Supreme Court did not broadly hold that none of the eight prior incidents was admissible. Instead, it merely held: “Where ‘similar transaction’ evidence has been admissible otherwise, lapses of time of 11 years ([cit.]) and of 19 years ([cit.]) have not demanded that the evidence was inadmissible. It should be clear, however, that an event 31 years in the past is too remote.” (Emphasis supplied.) Gilstrap v. State, supra at 799 (1b). Accordingly, when the State seeks introduction of an accused’s commission of a series of similar but otherwise isolated prior crimes, those isolated events in the series which occurred no more than 19 years previously are not necessarily inadmissible for remoteness. However, those events which occurred more than 31 years previously are necessarily inadmissible for that reason.

Unlike Gilstrap, the instant case does not concern prior acts which, although very similar in nature, had allegedly occurred at only certain isolated times within an extended period which preceded commission of the acts for which appellant was being tried. The State’s evidence showed that, commencing in 1955, appellant began a pattern whereby he would subject his young sisters to sexual abuse until they reached puberty and that his conduct in that regard had continued until 1977, which was about the time that he then began sexually abusing his own young daughter. Thus, the evidence shows appellant’s almost continuous course of identical conduct over the entire 29-year period immediately preceding the 1984 acts of sexual abuse against the victim in the instant case and the 33-year period immediately preceding the 1988 acts of sexual abuse against her.

Accordingly, Gilstrap is factually distinguishable and Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985), which was cited with apparent approval in Gilstrap, is controlling. “Obviously many years are going to elapse between the time . . . acts [of sexual abuse] occur with [appellant’s young sisters] and the time such acts occur with his [own daughter]. Under such circumstances, we do not believe the lapse of time between the independent crimes and the offenses charged is a determinative factor which would make such evidence inadmissible. [Cit.] The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. [Cits.]” Cooper v. State, supra at 255-256 (1). It follows that here, as in Cooper, the evidence was properly admitted as relevant to show appellant’s plan, scheme, bent of mind and course of conduct, whereby he would subject his young female relatives to his acts of sexual abuse. See also Ortiz v. State, 188 Ga. App. 532, 536 (5) (374 SE2d 92) (1988); Copeland v. State, 160 Ga. App. 786, 787 (4) (287 SE2d 120) (1982).

2. The indictment alleged appellant’s commission of cruelty to children in that he caused “cruel and excessive physical and mental pain [to the victim] by sodomizing her and having sexual intercourse with her. . . .” The evidence showed that, appellant had committed acts which authorized his four convictions for aggravated sodomy and his conviction for rape. Appellant urges that, under these circumstances, the cruelty to children count merged into his aggravated sodomy and rape convictions.

This contention is without merit. The conviction for cruelty to children is supported by the additional evidence that appellant’s daughter had experienced pain as the result of the act of sexual intercourse to which she had been forced to submit. Ranalli v. State, 197 Ga. App. 360, 363 (2b) (398 SE2d 420) (1990).

3. The incest count did, however, merge into the rape conviction. Ramsey v. State, 145 Ga. App. 60, 64 (10) (243 SE2d 555) (1978), rev’d as to sentence only, 241 Ga. 426 (246 SE2d 190) (1978). Accordingly, the trial court erred in entering a separate judgment of conviction and sentence on the jury’s verdict of guilt as to the incest count.

This error is not rendered harmless by the fact that the trial court imposed concurrent rather than consecutive sentencing for the incest conviction. OCGA § 16-1-7 (a) (1) authorizes a multiple prosecution for all crimes that may be established by an accused’s conduct, but that statute also specifically prohibits multiple convictions for included crimes. Under the facts of this case, appellant’s incest with his daughter is an included crime in his act of raping her. It follows that appellant’s separate conviction for incest and any sentence whatsoever imposed thereon must be reversed.

4. The trial court erred in charging the jury that the statute of limitations for attempted rape is seven years. The statute of limitations is seven years for rape, but is four years for attempted rape. OCGA § 17-3-1- (b, c).

The error was, however, harmless. The only factual dispute was whether an attempted rape had ever occurred. If it did, it was undisputed that it had occurred within the applicable four-year statute of limitations. Under these circumstances, the erroneous charge could not have resulted in the return of an unauthorized guilty verdict as to attempted rape. “[T]he evidence as to this element of the crime was undisputed and the jury could not have been misled or confused to the harm of [appellant]. [Cit.]” Bennett v. State, 130 Ga. App. 510, 511 (5) (203 SE2d 755) (1973).

Decided September 8, 1992

Reconsideration denied October 22, 1992.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.

5. The judgment of conviction and sentence for incest is reversed. The judgments of conviction and sentences for the remaining offenses are affirmed.

Judgments affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


text:
    A92A0781.
    CARTER v. THE STATE.
    (424 SE2d 81)
   Andrews, Judge.

Carter was tried and convicted of theft by taking and theft by deception and appeals.

Evidence adduced at trial was that Carter rented a house from a couple, the Manzones, who owned a horse-drawn wagon. Carter expressed interest in the wagon, and, in 1989, the Manzones agreed that Carter could take it to his property and restore it for them. The Manzones testified that they did not give the wagon to Carter. Nevertheless, Carter claimed that he understood that the couple was giving him the wagon. In March 1990, Carter sold the wagon to Stan Parker for $800.

At trial after a hearing regarding the evidence, the State introduced the testimony of Tommy Brown and Trenton Parker regarding other crimes. Brown testified that Carter was an acquaintance of his in 1984. At that time, Brown owned a broken plow, which Carter volunteered to fix. Brown agreed to let Carter repair the plow; Carter took it and never returned it to Brown. Brown also testified that Carter took money from him for an investment plan involving cattle. Carter did not return, Brown filed a complaint, and in August 1984, Carter was charged with theft by taking and theft by conversion and he pled guilty.

The State also produced the testimony of Trenton Parker who had hired Carter as a caretaker in 1984. Parker testified that he had entrusted his property to Carter and travelled during that year. Parker returned to his property and found that Carter had stolen cattle, 40 trees and certain farm equipment and he filed a complaint against Carter. Carter was charged with theft by taking, theft by conversion, theft by deception, and livestock theft and pled guilty to those charges on February 12, 1987.

In his sole enumeration of error, Carter claims that the trial court erred in allowing the State to introduce evidence of similar transactions. Carter filed a motion in limine regarding the transactions and the trial court reserved ruling on the motion until trial. At the point during the trial at which the State attempted to introduce the evidence, the trial court held another hearing on the prior offenses and ruled that the evidence was admissible. Carter argues that this decision was erroneous since the prior offenses were too distant in time to show motive or intent in the instant case, that the prior offense involving Trenton Parker was not similar to the instant charges and that there was no finding by the trial court of an appropriate purpose for the evidence.

“[Bjefore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Citations and punctuation omitted.) Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

These criteria were met here. There was no dispute that Carter committed the prior offenses and his identity was not an issue in the instant case. Secondly, the trial court’s finding that the independent crimes were sufficiently similar to allow the evidence was proper. Carter’s argument that the crime involving Trenton Parker was dissimilar to the instant charges is without merit. The prior offenses all involved victims who were acquainted with Carter, had personal property in plain view on their land, which they in some fashion entrusted to Carter, and which Carter took. “There is no requirement that the other transaction must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citations and punctuation omitted.) Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129) (1992).

Decided October 22, 1992.

J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, for appellee.

Carter contends that the trial court did not determine that the prior offenses were offered for an appropriate purpose. This argument is without merit since the court found that the relevance of the evidence outweighed any prejudicial impact. This determination was proper in that the state made the proper showing that the other crimes had substantial relevance for showing state of mind, intent, motive and plan, and were properly allowed for these appropriate purposes. See Aaron v. State, 195 Ga. App. 339 (393 SE2d 698) (1990). Furthermore, the State properly presented the evidence to the jury and the jury was instructed that the evidence of the other crimes was introduced for the limited purpose of establishing the mental state, identity, or intent of the defendant as it related to the charge of theft by taking and theft by deception.

Carter’s argument that the almost six-year interval between the crimes was sufficient to exclude the evidence of the earlier crimes is without merit. “Mere lapse of time between the earlier [crimes] and the offense for which appellant was on trial does not render the evidence automatically inadmissible. Instead, lapse of time is a factor to consider when balancing the probative value of the evidence against its potentially prejudicial effect.” Aaron, supra at 340. Here, the trial court’s decision that the probative value of the evidence outweighed its prejudicial effect despite the six-year interval was not erroneous. See Foster v. State, 190 Ga. App. 686, 687 (1) (379 SE2d 634) (1989); Campbell v. State, 234 Ga. 130 (214 SE2d 656) (1975); compare Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986).

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Cooper, Judge.

text:
    A92A1036.
    RESTINA v. CRAWFORD.
    (424 SE2d 79)
   Cooper, Judge.

In a negligence action brought by appellant against appellee the jury returned a verdict in favor of appellant for $75,000. Appellant moved the court for an order determining whether appellant was entitled to interest on the verdict pursuant to OCGA § 51-12-14. Following a hearing, the trial judge entered an order ruling that appellant was not entitled to interest and this appeal followed.

The trial judge found that pursuant to an agreement made before trial, appellant was entitled to a setoff of the verdict in the amount of $1,000 for medical payments paid by appellee to appellant; that appellant made a settlement demand on appellee for $75,000; that appellant’s demand complied with the notice requirements of the Unliquidated Damages Interest Act, OCGA § 51-12-14; and that the total judgment to be paid by appellee is $74,030, which included $30 filing costs. OCGA § 51-12-14 (a) provides that where the claimant gives the requisite notice of a settlement demand, “the claimant shall be entitled to recéive interest on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” Subsection (d) of § 51-12-14 provides that “[i]nterest shall be made a part of the judgment upon presentation of evidence to the satisfaction of the court that this Code section has been complied with and that the verdict of the jury ... is equal to or exceeds the amount claimed in the notice.” Appellant contends that he is entitled to interest because he complied with the notice requirements and the jury returned a verdict equal to his settlement demand. Appellee maintains that the trial court correctly denied appellant’s request for interest because the amount of the judgment entered on the verdict was in an amount less than the amount of appellant’s settlement demand. Since the amount of the judgment entered in this case was less than the amount of the jury verdict, a conflict arises because subsection (a) refers to the “amount of the judgment” and subsection (d) refers to the “amount of the verdict.” Appellant argues that the legislature intended to use the word “verdict” instead of “judgment” in subsection (a), and appellee asserts that the legislature intended for the judgment to be the operative amount and that the word “verdict” should be construed to mean “corrected verdict” or the judgment which is entered after the appropriate setoffs.

“It is elementary that ‘(i)n all interpretations of statutes, the courts shall look diligently for the intention of the [legislature].’ OCGA § 1-3-1.” Roman v. Terrell, 195 Ga. App. 219, 221 (3) (393 SE2d 83) (1990). The legislative intent is determined from a consideration of the entire statute. “ ‘The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole. . . . Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another. ... If they cannot be so reconciled the one which best conforms to the legislative intent must stand. . . .’ [Cit.]” Board of Trustees v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980). “The Unliquidated Damages [Interest] Act makes available to an injured party a coercive tool to offset injury and financial loss by encouraging a tortfeasor to make amends for his injurious conduct by making immediate payment short of litigation. If the tortfeasor does not take advantage of the opportunity to make his victim whole, the statute imposes a penalty, in effect, by authorizing the victim of the tort to collect damages in the form of interest from the time of the injury until the time the unliquidated damages become certain by verdict of the jury. As we view the intent of the statute, that award of interest from the time of injury to the date of judgment fulfills the purpose of the statute.” Williams v. Runion, 173 Ga. App. 54, 60 (5) (325 SE2d 441) (1984).

Decided October 22, 1992.

Kirkland & Street, Anthony Kirkland, for appellant.

Irwin, Bladen, Baker & Russell, Jennie E. Rogers, for appellee.

Based on legislative intent, we conclude that where a judgment is less than the verdict due to setoffs for payments already received by victims from tortfeasors, OCGA § 51-12-14 should be construed to entitle a plaintiff to interest only if the amount of the post-setoff judgment is equal to or exceeds the amount of the settlement demand. Although we have found no cases directly on point, this conclusion is supported by Bullman v. Tenneco Oil Co., 197 Ga. App. 408 (398 SE2d 311) (1990). In Bullman, the jury’s verdict of $400,000 was offset by a $7,000 settlement with one of the defendants prior to trial, and a judgment was entered in favor of plaintiff for $393,000. This court, in determining whether plaintiff was entitled to interest because the amount of the judgment exceeded her individual settlement demands against the various defendants, considered the amount of the judgment rather than the pre-setoff verdict to be the operative amount. This case illustrates that this court has considered the amount of the judgment to be the operative amount in determining whether interest should be allowed. Consequently, we find no error in the trial court’s ruling that appellant was not entitled to interest pursuant to OCGA § 51-12-14.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1223.
    HANCOCK v. THE STATE.
    (424 SE2d 77)
   Cooper, Judge.

Appellant appeals the revocation of his probation, raising as his sole enumeration of error the denial of his motion to suppress cocaine found during a search of his person and vehicle.

In 1989 appellant pled guilty to violating the Georgia Controlled Substances Act and was sentenced to five years, to be served on probation. One of the special conditions of his probation (“Special Condition #5”) provided as follows:

“Probationer shall submit to a search of his person, houses, papers and/or effects as those terms of the fourth amendment of the United States Constitution are defined by the court, any time of the day or night, with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer and specifically consents to the use of anything seized as evidence in a proceeding to revoke this order of probation.”

In April 1991, law enforcement officers who had been investigating appellant’s drug-related activities stopped appellant. With appellant’s consent, they searched his vehicle but found nothing. One of the officers frisked appellant and pulled off appellant’s cap, under which was 56.6 grams of cocaine in two cellophane bags. At the probation revocation hearing appellant moved to suppress the fruit of the warrantless search. The trial court denied the motion based on Special Condition #5 and revoked the remainder of appellant’s probation.

While acknowledging that conditions of probation requiring consent to searches without probable cause are valid as a general matter, appellant argues that the search in this case was illegal despite Special Condition #5 because it was conducted by law enforcement officers without the involvement of a probation supervisor. Special Condition #5 specifically states, however, that the request to search may be “by a probation supervisor or any law enforcement officer.” Upholding as constitutional an identical condition of probation, the Eleventh Circuit refused to limit searches allowable under the condition to those conducted by probation supervisors. See Owens v. Kelley, 681 F2d 1362 (11th Cir. 1982). In addition, this court refused to rule that only probation officers are allowed to request urinalysis tests from probationers under an analogous condition of probation requiring consent to random drug testing upon request of any probation supervisor or law enforcement officer. Green v. State, 194 Ga. App. 343 (2) (390 SE2d 285), aff’d 260 Ga. 625 (398 SE2d 360) (1990). Similarly, the lack of a probation officer’s involvement in this case does not render Special Condition #5 inapplicable or the search illegal.

Alleging that he was stopped numerous times in the several months prior to the search which produced the evidence in question here, appellant further contends that the search was illegal because it was conducted in bad faith, for purposes of harassment. See Luke v. State, 178 Ga. App. 614, 616 (2) (344 SE2d 452) (1986). There is undisputed testimony in the record, however, that the officers conducting the challenged search were acting on information from a confidential informant whose information was corroborated on many different points. “Although the [search] at issue in the present case was not made as a routine incident of the probation supervision process ... , it is apparent without dispute from the record that it was prompted by a good-faith suspicion, arising from routine police investigative work, that the appellant was dealing in drugs, rather than by a desire to harass him.” Green, supra at 344.

Decided October 22, 1992.

Bagby, Bagby & Henley, T. Lee Henley, Barbara J. Gale, for appellant.

Darrell E. Wilson, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Nor do we find appellant’s argument that the search improperly furthered law enforcement rather than probationary purposes persuasive. “[T]he two essential purposes of probation in Georgia, as elsewhere are the rehabilitation of the probationer, and the protection of society. [Cits.] . . . The search condition advances the probationary purpose of protecting society by enhancing the ability of law enforcement officers to detect any unlawful narcotics activities that [the probationer] may be engaged in.” (Emphasis supplied.) Owens, supra at 1366-1367. Thus, “[s]ince the essential task of law enforcement is the protection of society,” id. at 1367, and the protection of society is an essential purpose of probation, appellant’s argument sets up a false dichotomy: the purposes of law enforcement and probation are not mutually exclusive and will often, as they do here, overlap. Accordingly, the trial court did not err in denying appellant’s motion to suppress and revoking his probation.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1235.
    BREWER v. TRUST COMPANY BANK.
    (424 SE2d 74)
   Cooper, Judge.

Appellee financed appellant’s purchase of a vehicle, with the vehicle serving as collateral for the loan. Appellee brought this action for a deficiency judgment after repossession and sale of the vehicle. On appeal, appellant challenges the trial court’s grant of summary judgment for appellee, contending that genuine issues of material fact remain for trial.

We view the facts in the light most favorable to the appellant as the non-moving party on a motion for summary judgment. In April 1990, appellee financed appellant’s purchase of a vehicle, appellant had previously been leasing. Appellant gave appellee a promissory note secured by the vehicle. Throughout the period of the lease and from the time of the purchase until March of 1991, appellant made her monthly payments in a regular and timely manner. In March 1991, however, appellant lost her job and, knowing she would not be able to make the payments on the vehicle, voluntarily transferred possession of the collateral to appellee. She thought appellee accepted the collateral in full satisfaction of its claim. Although there is in the record a copy of a letter to appellant, sent by certified mail to the proper address, informing appellant that the vehicle would be sold after a specified date and that she would be responsible for any deficiency, appellant states in her affidavit that she does not recall receiving this notice. The vehicle was sold by an auction house well established in the business of selling vehicles, but a deficiency remained.

1. In her first enumeration of error, appellant contends summary judgment was improper because a question of fact exists as to whether there was an accord and satisfaction when she voluntarily transferred possession of the vehicle to appellee. An accord and satisfaction must be supported by consideration, however, see OCGA §§ 13-4-102; 13-4-103, and “ ‘[a]n agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another.’ [Cit.]” Barnes v. Reliable Tractor Co., 117 Ga. App. 777, 778 (161 SE2d 918) (1968); see also Ghitter v. Edge, 118 Ga. App. 750, 754 (4) (165 SE2d 598) (1968). Because appellant was already legally obligated to surrender possession of the collateral upon default and appellee was legally entitled to take possession of the collateral, there could be no accord and satisfaction in this case even if we assume that appellant delivered the vehicle on the express condition that the delivery extinguish the debt. See Hall v. Bank South, 186 Ga. App. 860 (368 SE2d 810) (1988); Barnes, supra. Thus, the trial court correctly ruled that no issue of material fact remained with respect to appellant’s defense of accord and satisfaction.

2. Appellant also argues that summary judgment should not have been granted because questions of fact remain regarding appellee’s compliance with the statutory provision requiring that the debtor be notified of the intended disposition of the collateral. Subsection three of OCGA § 11-9-504 requires that “. . . reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor. . . .” (Emphasis supplied.) Appellant states in her affidavit that she does not recall receiving notice from appellee that the vehicle was to be sold after a certain date. Yet appellee has put in the record a copy of a letter sent to appellant at her proper address, by certified mail, providing appellant with the requisite notice prior to the sale. “ ‘[T]he requirement involved is one of the creditor giving the debtor reasonable notification as distinguished from the debtor receiving such notification.’ [Cit.]” Friddell v. Rawlins, 160 Ga. App. 44, 46 (2) (285 SE2d 779) (1981). Because the pertinent notification issue in this case is not whether appellant received or saw the notice but whether appellee properly sent it, appellant’s statement in her affidavit that she does not recall seeing the notice does not suffice to create a question of fact on the issue of appellee’s compliance with the notification requirement in light of appellee’s documentation showing that the notice was properly sent.

3. Lastly, appellant contends that the trial court erred in rejecting on summary judgment her challenge of the commercial reasonableness of the sale and the adequacy of the price for which appellee sold the collateral. With this contention we agree. “Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. The secured party must also prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt. If this proof is not forthcoming, it is presumed that the value of the goods is equal to the amount of the debt. [Cit.]” Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338) (1981). Appellee established that the sale was conducted in a reasonable manner through affidavit testimony that the vehicle was sold by an auction house well established in the business of selling vehicles and handling a large volume of repossessed vehicles. See McMillan v. Bank South, 188 Ga. App. 355, 356 (2) (373 SE2d 61) (1988). However, appellee presented no proof of the fair and reasonable value of the collateral other than the sale price the collateral brought. Even if the sale is conducted in a commercially reasonable manner, proof of the sale price is not sufficient to overcome the presumption against appellee that the value of the collateral equals the debt on it. See, e.g., Farmers Bank v. Hubbard, 247 Ga. 431 (276 SE2d 622) (1981); McMillan, supra at 356; Zohbe v. First Nat. Bank, 162 Ga. App. 604, 605 (1) (292 SE2d 444) (1982). “Appellee has failed to prove the value of the [collateral] at the time of the sale and that the value at that time did not equal the debt. Therefore, appellee has failed to establish that there is no genuine issue of material fact and the trial court’s granting of summary judgment was in error.” Harrison v. Massey &c. Credit Corp., 175 Ga. App. 752, 754 (1) (334 SE2d 352) (1985); accord Bennett v. Bank of the South, 168 Ga. App. 536 (309 SE2d 682) (1983); Davis v. Ford Motor Credit Co., 164 Ga. App. 137, 138 (1) (296 SE2d 431) (1982).

Decided October 22, 1992.

Jack F. Witcher, Maryellen S. Mitchell, for appellant.

Stokes, Lazarus & Carmichael, Karl M. Terrell, Richard J. Joseph, for appellee.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.