text:
    A98A1435.
    REYNOLDS v. THE STATE.
    (507 SE2d 814)
   Ruffin, Judge.

A jury found Robert Charles Reynolds guilty of one count of rape and not guilty on a second count of rape. Reynolds appeals, asserting that the trial court improperly denied his motions to sever the two rape charges. For reasons which follow, we affirm.

Victim 1

The evidence at trial showed that on November 27, 1993, the first victim, who was 19 at the time, was at a shopping mall with Kelly Karim, her roommate, when Reynolds, a stranger to both women, approached them and started a conversation. He asked the victim if he could meet her later that evening, to which she answered “yes.”

Later that evening, Karim took the victim to a cafe where Reynolds met them. The victim and Karim planned for Karim to stay and “make sure that everything was okay.” After about 15 to 30 minutes of talking to Reynolds and one of his friends, Karim left when the victim told her “that everything seemed to be okay.” About 15 minutes after Karim’s departure, Reynolds and the victim left the cafe to go to a restaurant.

The victim testified that at the restaurant, where they stayed for about 45 minutes, Reynolds took her hands and pressed them “to see if I was like a weakness or a strongness. I am not quite sure how to explain it.” There was no other physical contact at the restaurant. Upon Reynolds’ suggestion, they left the restaurant to watch television at his parents’ house, where he told the victim he lived. Neither Reynolds nor the victim had any alcoholic beverages at the cafe or the restaurant.

At the house, Reynolds and the victim went to his bedroom to watch television. The victim testified that they both sat on the edge of the bed, because there was no place else to sit. They watched television for a couple of minutes, at which time the victim started feeling uncomfortable about being in his bedroom.

When Reynolds started hugging and kissing the victim, she said “no.” Reynolds then muted the television, turned the stereo up “pretty loud,” and got up to close his bedroom door. He came back to the bed and started forcefully hugging and kissing the victim, who told him she was “not easy” and tried to push him away. Reynolds pushed the victim onto her back, sat on top of her legs, and pinned her arms with his hand, while she yelled “no” and “get the f— off me” and tried to get away. As he held her down, Reynolds took off the victim’s clothes as well as his own. He forcefully turned the victim over onto her stomach and entered her vagina with his penis, while he wrapped his legs around her legs and continued to hold her hands down as she cried and told him to get off. According to the victim, Reynolds told her he finally stopped because she was crying, and “[h]e thought I wanted it.” He did not ejaculate.

Reynolds then took the victim home, telling her she was ungrateful and did not enjoy it. After he dropped her off, she told Karim she had been raped. They called the police, and Karim and the victim’s brother took her to a hospital where a doctor examined her. The victim talked to the police at the hospital and gave them Reynolds’ name and business card.

On the afternoon following the attack, Reynolds called the victim, and she taped the conversation. Reynolds said that he had been dating “crazy kinky girls” who liked that kind of sex and that “I know I hurt you.” When she asked him, “What were you hearing while I was saying stop, please don’t do that,” Reynolds answered, “I don’t know. ... I heard you. I just didn’t know. Oh, God.” Reynolds responded “uh, huh” after the victim told him “[y]ou had me to a point that there was no way that I could move. . . . Absolutely no way.” Reynolds said he “f — d up,” that he was sorry, and that he wanted to “fix it.”

At the time of the incident, the victim was four feet, eleven inches tall and weighed ninety-eight pounds, and she estimated that Reynolds was around five feet ten or eleven inches tall and about one hundred sixty-five pounds.

Reynolds testified that he and the victim were kissing, talking and laughing prior to having sex. He testified both he and the victim took off her clothes, and they kissed and caressed each other. He said he fondled her and she did not resist until he tried to have intercourse with her, at which time she made a noise of discomfort and he stopped immediately. At that point, he said the victim got angry and wanted to be taken home. On cross-examination, however, when asked “[W]as there sex without consent,” Reynolds responded, “That’s not for me to judge.” When the prosecutor asked him, “And she changed her mind just like that (snaps fingers),” Reynolds answered, “It seems to happen that way sometimes for me.”

Victim 2

The second incident occurred on April 3, 1994, about four months after the first incident. The alleged victim of the second incident was Reynolds’ roommate. She was twenty-five years old and weighed one hundred to one hundred five pounds at the time and had been friends with Reynolds for two years before becoming his housemate. They each had their own bedroom in the house, which was owned by Reynolds’ parents, and the victim denied ever having had any sort of sexual contact or romantic relationship with him before the April 3, 1994 incident.

The victim testified that, on the evening of April 3,1994, she and Reynolds were both at home, watching television and smoking marijuana. The victim was lying on her stomach on the couch with her face toward the television while Reynolds was in a recliner at the end of the couch. She testified that she never invited any sort of sexual contact with Reynolds that night. At some point during the evening, she fell asleep, only to be awakened by Reynolds, who jumped on her back, straddled her body by sitting on her legs, locked her arms down, and shook her face into the couch with his hands on her shoulders. The victim was unable to move. When she asked him to get off, he would not.

The victim testified that Reynolds grabbed her by the hair and her pajama top and pulled her into his bedroom, which was about six feet from the couch. He threw her onto his bed on her back, jumped on top of her, put his hand on her shoulders, yanked her pajama bottoms down, wedged one leg between her legs and pushed them apart and put his penis into her vagina against her will. All the while the victim told Reynolds to stop and get off. After a few minutes, Reynolds stopped and got up. He did not ejaculate. After a few minutes of being “dazed,” the victim testified that she went into her own room.

The next day, Reynolds, at his insistence, took the victim to the airport for a trip she had previously planned to New York. She testified she said nothing during the ride, and that “[h]e said he was sorry if he hurt me.” The victim did not call the police about the rape until four or five days after she returned from her trip.

In his sole enumeration of error, Reynolds contends the trial court erroneously denied his pre-trial and post-trial motions to sever the two rape charges. We disagree.

“An abuse of discretion standard applies when reviewing denial of a motion to sever the trial of separate offenses.” Agony v. State, 226 Ga. App. 330 (1) (486 SE2d 625) (1997). “Offenses may be joined for trial when they are based (1) on the same conduct or (2) on a series of acts connected together or (3) on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.” (Citation and punctuation omitted.) Carter v. State, 192 Ga. App. 726, 727 (4) (386 SE2d 389) (1989).

Moreover, “[w]here the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying [the] motion for severance.” (Punctuation omitted.) Weaver v. State, 206 Ga. App. 560, 561 (1) (426 SE2d 41) (1992). Moreover, “[t]he two transactions need not be identical in every respect. [Further,] the rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses.” (Citations omitted.) Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). “In [cases] involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.” (Punctuation omitted.) Franklin v. State, 201 Ga. App. 147, 148 (1) (410 SE2d 451) (1991). “Evidence of an earlier assault on a woman is material to the issue of consent or the lack thereof, and has a direct bearing on appellant’s bent of mind.” (Punctuation omitted.) McBee v. State, 228 Ga. App. 16, 19 (1) (491 SE2d 97) (1997).

The trial court did not err in refusing to sever, since evidence of either incident would have been admissible in the trial of the other. The facts common to both incidents include remarkable similarities. Although the first victim had met Reynolds only the night of the attack, he spent enough time with her to gain her confidence before the rape. The second victim was his own roommate. Both incidents occurred in Reynolds’ bedroom at his parents’ house. According to the testimony of both women, Reynolds pinned them down by sitting on their legs during the assaults. In both instances, as described by the victims, Reynolds continued his assault after the victim told him to stop. Both women testified that Reynolds did not ejaculate. After both incidents, Reynolds apologized to the women and sought to be with them the following day.

Given the similarity of the incidents, evidence of the two attacks tends “to rebut appellant’s claim of consent by establishing that appellant has a propensity to initiate or continue an encounter without a woman’s consent and, in fact, against her explicit request to stop.” McBee, supra. See Sudlow v. State, 140 Ga. App. 146, 147 (230 SE2d 106) (1976) (evidence of previous assault is justifiable rebuttal evidence where defendant admits the transaction but denies the coercive element). Here, both women testified that Reynolds continued to rape them after their repeated pleas for him to “stop” and “get off.” Reynolds himself admitted “[i]t seems to happen that way sometimes for me” when the prosecutor asked him whether the first victim had simply changed her mind during intercourse.

Decided September 30, 1998.

Marcia G. Shein, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The two separate incidents do not need to be identical in order for them to be joined at trial. Lumsden, supra. Rather, Reynolds’ style of sudden and physical attack on small, unsuspecting women who were comfortable in his presence, in his own bedroom, is enough to convince us that the trial court did not abuse its discretion in denying Reynolds’ motions to sever.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A2269.
    LAWRENCE v. THE STATE.
    (507 SE2d 490)
   Beasley, Judge.

Having negotiated a plea agreement of fifteen years to serve six and a $90,000 fine, Renee Lawrence pled guilty to conspiracy to defraud the State (OCGA § 16-10-21 (a)) and Medicaid fraud (OCGA § 49-4-146.1 (b) (2)). A few days later the court conducted a “presentence hearing” to allow the State to make its recommendation and to allow Lawrence to present mitigating or extenuating evidence. When the State recommended the terms of the negotiated plea, the court stated it found the sentence too lenient and it intended to require a substantially longer term than six years to serve.

Both the State and Lawrence urged the court to accept the six-year recommendation. The court asked whether Lawrence had anything else to present, including evidence. When Lawrence responded affirmatively, the court told her to “go ahead and present your evidence and call your witnesses or whatever you want to do.” After Lawrence produced several character witnesses, the court explained its opinion of the case and the various interests involved and pronounced the maximum sentence of 15 years to serve.

1. Lawrence moved to withdraw the guilty plea on the ground that in rejecting the plea agreement, the court did not follow the requirements of State v. Germany , later codified in Uniform Superior Court Rule (“USCR”) 33.10. “If the trial court intends to reject the plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement; (2) the trial court intends to reject the plea agreement presently before it; (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced.”

Lawrence contended the court did not inform her that she had an opportunity to withdraw her guilty plea as a matter of right. Following an evidentiary hearing on the issue, the court stated that under the totality of the circumstances, it had substantially complied with this requirement because (i) it gave her the opportunity to present evidence and call witnesses or “whatever you want to do,” and (ii) her counsel had discussed with her, prior to the hearing, her right to withdraw the plea. It denied the motion.

“What is at stake for an accused facing . . . imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought, and forestalls the spin-off of collateral proceedings that seek to probe murky memories.”

The steps to be taken in rejecting a plea agreement are not optional. “[T]he trial court shall, on the record, inform the defendant personally ... (4) that the defendant may then withdraw his or her guilty plea as a matter of right.” Failure to so inform the defendant mandates a reversal of the conviction. As stated in Sanders v. State, “[although appellant did acknowledge his awareness that the trial court was not bound by the state’s recommendation, at no time was he informed of his right to withdraw his plea prior to imposition of the sentence. To the contrary, the trial court stated that it would not follow the recommendation, announced the sentence, then refused to allow appellant to withdraw his plea. Under these circumstances the trial court erred in refusing to allow appellant to withdraw his plea of guilty. [Cits.]”

Stating that the defendant may present whatever mitigation she wishes is insufficient; the court must specifically inform defendant, when rejecting the sentence agreed upon by the State and defendant, that she has a right to withdraw her plea. Stapp v. State held that not even the prosecutor asking defendant whether he still wants to plead guilty suffices. Because the court, which has a broad discretion to fashion an appropriate sentence, is wholly free to fix terms other than those the parties jointly desire, the defendant who shall serve the sentence can insist on a trial. To effect this right, defendant must be given an opportunity to invoke it.

This case exemplifies the need for the bright line test. Although the court indicated it intended to reject the plea agreement, it then informed Lawrence’s counsel he could present mitigating evidence, which he reasonably took to mean the court had not yet reached a final decision on rejecting the plea but was open to persuasion. Not until the 15-year sentence was directly imposed did counsel realize the rejection of the plea agreement was final. Such ambiguity would not have occurred if the court had followed the steps mandated by Germany and USCR 33.10 and expressly informed Lawrence, personally and on the record, that she at that point could withdraw her guilty plea as a matter of right.

An explicit statement is needed, not a veiled reference. Being informed by her attorney before the hearing that she had a right to withdraw the plea if the judge rejected the recommendation does not show she understood the time had come to make that decision and interrupt the proceeding. The undisputed testimony was that the attorney, who believed the plea agreement might still be accepted, did not discuss withdrawing the plea with her during the hearing. As soon as the sentence was announced, her attorney approached the bench and asked to withdraw the plea but was denied.

The consequences are too severe to allow vague statements or implication to supplant the definitive requirements articulated by the Supreme Court of Georgia and court rules. The court erred in denying Lawrence’s motion.

2. The decision in Division 1 moots the other enumerations of error.

Judgment reversed.

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

Decided October 1, 1998.

John W. Greer III, for appellant.

Thurbert E. Baker, Attorney General, Elizabeth D. Redisch, Assistant Attorney General, Cheryl F. Custer, District Attorney, Samuel W. Lengen, Assistant District Attorney, for appellee.

       246 Ga. 455, 456 (1) (271 SE2d 851) (1980).

       USCR 33.10; see Germany, 246 Ga. at 456 (1).

       (Citations omitted.) Boykin v. Alabama, 395 U. S. 238, 243-244 (89 SC 1709, 23 LE2d 274) (1969).

        Germany, 246 Ga. at 456.

        Stapp v. State, 249 Ga. 289, 292 (2) (290 SE2d 439) (1982); Fuller v. State, 159 Ga. App. 512, 513 (1) (284 SE2d 29) (1981).

       169 Ga. App. 125 (1) (312 SE2d 160) (1983).

       See also Hamm v. Weldon, 252 Ga. 213, 215 (312 SE2d 335) (1984) (Hill, C. J., dissenting) (“[t]he transcript of the guilty plea proceedings shows that the sentencing court did not, before pronouncing sentence, inform the defendant of his right, at that point in the proceedings, to withdraw the plea”; conviction should be reversed) (majority held no plea agreement was ever reached).

       249 Ga. at 292 (2).

       Compare Moore v. State, 225 Ga. App. 860 (1) (485 SE2d 552) (1997) (look to record as a whole to determine if steps of USCR 33.8 followed in assessing voluntariness of plea).

       246 Ga. 455.

       See Boykin, supra, 395 U. S. at 243-244.


author: Eldridge, Judge.

text:
    A98A2166.
    HEATH v. WHEELER et al.
    (507 SE2d 508)
   Eldridge, Judge.

Beatrice Alston Wheeler, individually, and Glenn C. Goodwin, as executor of the estate of Sarah Alston Goodwin, who died March 1, 1994 (“plaintiffs”) sued Johnny Chris Heath, Sr., executor of the estate of Cecil Will Alston, deceased (“defendant”) for their promised share of their father’s estate plus interest. Such debt was evidenced by promissory notes dated January 1983, from their brother, Cecil Will Alston, administrator of the estate of Cecil C. Alston, their father. Under the will of Cecil C. Alston, probated in solemn form, the residuary estate was left equally to his three children: Sarah Alston Goodwin, Beatrice Alston Wheeler, and Cecil Will Alston. Besides land, the estate of Cecil C. Alston had as its primary asset a debt owed by Cecil Will Alston to his father of $35,670. As executor personally indebted to the estate on a pre-existing note, Cecil Will Alston did not pay off the note and cancel the note as satisfied; he allowed the debt to continue. For Cecil Will Alston as the executor of the estate of Cecil C. Alston to distribute the debt owed by him to his father’s estate, Cecil Will Alston acknowledged his individual debt to each of his sisters and individually and as executor promised to pay each of them $11,890, plus interest to settle the Estate of Cecil C. Alston, which was a partial assignment of the debt with new evidence of indebtedness given to each sister. Cecil Will Alston received his one-third share of the asset, i.e., his debt to his father, by forgiveness of $11,890 of the debt. Cecil Will Alston executed and delivered to his sisters written evidence of his personal obligation owed to the estate. At the conclusion of the administration of their father’s estate and again in January 1983, Alston promised to pay each of them $11,890 plus interest; interest but no principal was paid by Alston until his death on November 10, 1992. The promissory notes contained no due date. Subsequent to the execution of these notes, Cecil Will Alston paid interest on the notes through 1992 and sent his sisters IRS forms 1099 for the interest he paid them each year.

On July 5,1983, Beatrice Alston Wheeler cashed a $7,000 certificate of deposit and loaned her brother, Cecil Will Alston, the money to purchase a tractor, and Alston gave Wheeler a promissory note for $7,000 with interest at ten percent and no maturity date, which remains unpaid and has accrued interest since November 2, 1992. Alston paid the interest on the note through December 31, 1992. Some 14 personal checks from Cecil Will Alston to his sisters were introduced, as well as IRS forms 1099, for the years 1986, 1987, 1988, and 1992.

The plaintiffs demanded payment on January 12, 1994. The defendant answered timely. The parties filed cross-motions for summary judgment. The trial court granted summary judgment for the plaintiffs and denied summary judgment for the defendant. Defendant timely filed his notice of appeal.

Cecil Will Alston’s widow acknowledged the debts and that they had not been paid. The executor of the estate of Cecil Will Alston, his stepson, was unable to personally deny that such debt was owed.

1. The first enumeration of error is that the trial court erred in granting summary judgment to the plaintiffs on Count 1 “because the ‘notes’ dated January, 1983, were executed by Cecil Will Alston as ‘Executor of the Estate of Cecil C. Alston,’ and neither Cecil Will Alston nor the Estate of Cecil Will Alston was or is personally liable for such ‘notes.’ ” We do not agree.

The notes were given by Cecil Will Alston, the executor of the estate of Cecil C. Alston, as a partial distribution of the assets of the estate in final settlement and as such were evidence of the indebtedness of the estate for such uncollected funds, as well as a partial assignment of Cecil Will Alston’s personal debt to Cecil C. Alston. Since the personal debt of Cecil Will Alston to the estate of Cecil C. Alston was the principal asset, Cecil Will Alston personally canceled, substituted, and indebted himself individually to the plaintiffs on two new personal notes to evidence their shares of his individual debt to the estate that he had canceled. Thus, Cecil Will Alston made the distribution of the assets of the estate, consisting of his personal debt to the estate, his personal debt to his sisters in his representative capacity as executor as well as individually. However, the notes that he was distributing were his personal debt, the primary asset of the estate. Therefore, to divide his debt to the estate three ways, he made out two new personal notes for his personal debt, which he delivered to his sisters and canceled his prior note held by the estate, which thus satisfied his share of the estate.

As a fiduciary, Cecil Will Alston, the executor of the estate of Cecil C. Alston, had the fiduciary duty to pay his personal debt to his father’s estate prior to the settlement of the estate, and he breached such duty by not paying off the debt and distributing the principal to his sisters. Ray v. Andrews, 46 Ga. App. 676, 678 (2) (168 SE 906) (1933); accord Henson v. Jones, 66 Ga. App. 22 (16 SE2d 886) (1941). However, Alston obtained the consent of the heirs, his sisters, to accept his new personal notes in lieu of his being required to satisfy his prior personal debt to the estate, so that he became personally liable on the new notes, which amounted to a partial assignment of his prior personal debt. When Cecil Will Alston got his sisters to take this “paper,” he closed the estate without collecting his underlying debt, and the estate had no further assets for him to administer. The only reason to keep the estate open would be to collect his debt, which he had now deferred and made payable to his sisters. The estate, if it was indebted on the notes, had nothing with which to satisfy the notes unless Cecil Will Alston paid off his earlier debt to the estate. Therefore, the notes given by Cecil Will Alston were not the debts of the estate, but were evidence of his personal debts now payable to his sisters, instead of payable to the estate. It was the intent of all parties that Cecil Will Alston’s new notes to the sisters be substituted for his debt to the estate and their share of the assets of the estate, i.e., Cecil Will Alston’s debt. Thus, the evidence clearly established Cecil Will Alston’s personal debt, and the description after the signature on the notes of Alston does not excuse him from such personal liability. See OCGA § 11-3-402 (b) (2) (formerly OCGA § 11-3-403); Glisson v. E. A. Weil & Co., 117 Ga. 842 (45 SE 221) (1903); Yeomans v. Coleman &c. Drug Co., 167 Ga. App. 646 (307 SE2d 121) (1983).

The parol evidence clearly established the intent of the parties, i.e., that Cecil Will Alston personally intended to become indebted to the plaintiffs. See Seamon v. Acree, 142 Ga. App. 662 (236 SE2d 688) (1977); accord Talmadge v. Respess, 224 Ga. App. 768, 770 (2) (482 SE2d 709) (1997); Cooley v. Dickerson & Swift Entertainment, 177 Ga. App. 855 (341 SE2d 504) (1986); Casey v. Carrollton Ford Co., 152 Ga. App. 105 (262 SE2d 255) (1979).

2. The second enumeration of error is that “[t]he trial court erred in granting summary judgment to [plaintiffs] as to Count I of [plaintiffs’] Complaint because the ‘notes’ which form the basis of Count I of [plaintiffs’] complaint were signed January, 1983, and [plaintiffs] did not file suit to collect the ‘notes’ until September 9, 1994, and therefore, the statute of limitations had expired.” We do not agree.

OCGA § 9-3-112 provides that “[a] payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.” Thus, the annual payment of interest from 1987 until Alston’s death in 1992 acted as a renewal of the promise to pay even if the statute of limitation would have run but for such payments. See Siefferman v. Peppers, 159 Ga. App. 688 (285 SE2d 61) (1981); accord Middlebrooks v. Cabaniss, 193 Ga. 764 (20 SE2d 10) (1942); Nat. City Bank &c. v. First Nat. Bank &c., 193 Ga. 477, 481 (2) (19 SE2d 19) (1942); Garrett v. Lincoln Cemetery, 148 Ga. App. 744 (252 SE2d 650) (1979); Hudson v. Sadtler, 100 Ga. App. 232 (110 SE2d 706) (1959).

OCGA § 9-3-110 provides that “[a] new promise, in order to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right of action not yet barred, shall be in writing, either in the party’s own handwriting or subscribed by him or someone authorized by him.” “A distinct admission of a present subsisting debt is such an acknowledgment as will take a case out of the statute of limitations. It is not necessary that the party should express himself willing and liable to pay. This would be an express promise. A promise is implied from an acknowledgment that a particular debt is still due. [Cit.]” (Punctuation omitted.) Nat. City Bank &c. v. First Nat. Bank &c., supra at 484. The clear evidence of the debt still being due was the checks paying interest, as well as the IRS forms 1099. The statement of Cecil Will Alston’s widow regarding the debt also corroborated that Alston, himself, still considered the debt due and payable.

3. The third enumeration of error is that the trial court erred in granting summary judgment to Wheeler on Count 2, “because [plaintiff] is neither the payee nor the holder in due course of said ‘note’ and said ‘note’ is, therefore, unenforceable by [plaintiff].” We do not agree.

While Alston prepared the note on a Bank of Dawson form note, the parties intended that the note be paid to Wheeler, and the bank employee who prepared the note testified to such intent. Alston delivered the note to Wheeler and paid interest on the note from July 5, 1983, until December 31, 1992.

Under OCGA § 13-2-3, it is for the trial court to determine the intent of the parties. From the evidence, it is clear that Alston received $7,000 from Wheeler and, in return, Alston promised to pay the loan at ten percent per year to Wheeler. Since this was an action between Wheeler as payee and Alston as the payor, then it did not matter that the note was not negotiable, because it was a contract to pay the loan. See Nelson v. Nelson, 176 Ga. App. 107 (335 SE2d 411) (1985).

4. The fourth enumeration of error is that the trial court erred “when, in considering the parties’ cross motions for summary judgment, the trial court only considered the pleadings of the parties before it granted [plaintiffs’] motion for summary judgment.” We do not agree.

Whether or not the trial court erred in not considering the depositions on file in this case in the trial court, upon de novo review, this Court considers the grant of summary judgment on the entire record, which included such depositions and pleadings. See Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997); Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996). Thus, upon review of the entire record, we find that the trial court did not err in granting summary judgment on Counts 1 and 2. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided October 2, 1998

Ellis, Easterlin, Peagler, Gatewood & Skipper, James M. Skipper, Jr., for appellant.

Donaldson, Hall, Martin & Bell, C. Truitt Martin, Jr., Bowles & Bowles, Jesse G. Bowles III, for appellees.

Judgment affirmed.

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


author: ELDRIDGE, Judge.

text:
    A98A2170.
    WARD v. THE STATE.
    (507 SE2d 506)
   ELDRIDGE, Judge.

On July 11, 1997, defendant Jamie Vincent Ward took $5,000 from his grandfather’s wallet while his grandfather was hospitalized in the Chatuge Regional Hospital. Ward used approximately $4,500 of the money to purchase a 1987 Camaro automobile. In order to cover up the crime, he burned his grandfather’s trailer to the ground on July 18, 1997. Following his arrest, he confessed to his participation in the crimes to Investigator Wayne White of the Georgia Bureau of Investigation; he later recanted the portion regarding the arson. Such confession was read to the jury during Ward’s trial. The jury convicted Ward of theft by taking and arson in the first degree. He was sentenced to twenty years, ten to serve. He appeals the conviction.

1. In his first enumeration of error, Ward claims that his motion to suppress his allegedly involuntary confession was improperly denied by the trial court. We disagree.

During pre-trial hearings (and also at trial), Investigator White testified that he had questioned Ward in his initial investigation, gave Ward Miranda warnings when Ward became a suspect, and obtained a Miranda waiver prior to Ward’s arrest. Ward’s statement was written down by Investigator White. In the statement, Ward freely and voluntarily confessed, without threat or hope of benefit, to stealing $5,000 in cash from his grandfather’s wallet and burning down the trailer. However, after admitting that he had burned the trailer, Ward recanted that part of the confession, and Investigator White documented the recantation. Ward subsequently read and signed the statement without threat or promise. Investigator White testified that he had not made threats or promises to Ward in order to secure his confession or cooperation with the investigation.

The trial court also heard defense allegations that, according to Ward, Investigator White had threatened Ward with immediate incarceration if he did not sign the confession. In addition, Ward asserted that Investigator White told him that this was a “family matter” and promised him that he would let Ward’s family “handle this amongst themselves.” The defense also presented evidence that Investigator White allegedly had used various threats of incarceration or promises of favorable treatment to secure confessions from other individuals, whose subsequent convictions were unrelated to this crime. Investigator White specifically denied such coercive tactics as to these or any other individuals.

After hearing evidence and arguments of counsel, the trial court stated that “it comes down to a question of credibility, and I choose to believe the testimony of Agent White concerning the circumstances of these statements. Therefore, I find by a preponderance of the evidence that [at the time he made the confession,] defendant Ward was not under any intimidation, fear of punishment, hope of reward, and the defendant Ward made his statement freely and voluntarily.” Such determinations regarding the facts and witness credibility are entirely within the purview of the trial court and will not be disturbed unless such determinations are clearly erroneous. OCGA § 24-3-50; Gober v. State, 264 Ga. 226, 228 (443 SE2d 616) (1994); O’Neal v. State, 228 Ga. App. 162 (491 SE2d 216) (1997); Morrow v. State, 226 Ga. App. 833 (487 SE2d 669) (1997); see also Marks v. State, 210 Ga. App. 281, 283 (2) (435 SE2d 703) (1993). After reviewing the record in this case, we find that there was no error in the admission of the statement.

2. Ward also complains that a remark by Investigator White regarding the fact that Ward had previously been in prison deprived him of a fair trial and mandates reversal of his conviction. The remark was made in response to cross-examination regarding the circumstances of Investigator White’s initial questioning of Ward; defense counsel asked the investigator if he had threatened to take Ward to prison if he did not cooperate with the investigation. Investigator White denied such threat and responded that “We talked of prison because [Ward] had just recently gotten out of Alto prison, I don’t remember, a few days or a few weeks. . . .” Defense counsel objected, and the trial court instructed the jury to disregard Investigator White’s statement. Defense counsel did not renew or preserve his objection or move for a mistrial following the curative instruction. Accordingly, Ward cannot complain about the remark on appeal. Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981); see also Harris v. State, 190 Ga. App. 343, 346 (378 SE2d 912) (1989); Tarver v. State, 186 Ga. App. 905, 906 (2) (368 SE2d 828) (1988).

Decided October 2, 1998.

David B. Gunter, for appellant.

Darrell E. Wilson, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

3. Finally, there is no evidence in the record to support Ward’s remaining contention that he was “paraded” in front of the jury while wearing chains and shackles. Accordingly, it is without merit.

Judgment'affirmed.

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

        Miranda v. Arizona, 384 U. S. 436, 476 (86 SC 1602, 16 LE2d 694) (1966).


author: Judge Harold R. Banke.

text:
    A98A1148, A98A1149.
    RUSSELL et al. v. LAWRENCE; and vice versa.
    (507 SE2d 161)
   Judge Harold R. Banke.

Emerson Russell and Angela Russell sued Marie Lawrence to assert entitlement to ten horses. The Russells appeal the summary judgment granted to Lawrence.

Marie Lawrence and her aunt, Tommie Jordan, jointly operated a horse business known as Cheval Farms. Unbeknownst to Lawrence, Jordan registered the horses with national horse associations solely in her own name. In the summer of 1994, after their business relationship deteriorated, Jordan sued to evict Lawrence, who then counterclaimed for the ownership of certain horses and equipment. In October 1994, the trial court issued a temporary order giving interim custody of eight horses to Jordan and eight horses to Lawrence. The order provided, “Plaintiff [Jordan] shall retain the following horses which are in dispute: [eight by name] any and all other horses in which the [sic] both parties have any claimed mutual and/ or possible interest.” The order directed both parties to maintain the horses in an unaltered state unless both parties agreed to a change in writing.

During the pendency of that lawsuit but before the temporary order dividing the horses, Jordan signed a 90-day promissory note in the amount of $10,200 on September 18, 1995, in favor of the Russells. The Russells filed a UCC-1 financing statement which listed ten horses and a tractor as collateral. A few months later, the Russells offered to purchase Cheval Farms for $318,000 from Jordan. This purchase offer agreement included the realty, certain horses, as well as “all horses and equipment as described in UCC-1 from Tommie D. Jordan to Emerson E. Russell.” Shortly thereafter, the Russells bought Cheval Farms from Jordan for the full $318,000, even though Jordan had not repaid the 90-day note.

The litigation between Jordan and Lawrence resulted in a split jury verdict with five horses being awarded to Jordan ¿nd ten to Lawrence. Lawrence gained possession of her horses from the Russells by levy on the judgment. Four days after the verdict, the Russells brought the instant action against Lawrence claiming they had superior title to all of the horses that the jury determined belonged to Lawrence. They asserted that they were “bona fide purchasers of the horses” and that they obtained good title to the horses under the UCC by “virtue of foreclosure.”

It is undisputed that no actual foreclosure under the UCC occurred. Emerson Russell testified, without contradiction, that when he paid $318,000 for the farm, stock, and equipment, he “wiped clean” the outstanding loan balance of $10,558.45 owed by Jordan. Russell admitted that he knew about a lawsuit between Jordan and Lawrence and testified that he told Jordan, “Get the thing settled before we close.” A few days later, Jordan allegedly informed Russell that she and Lawrence had settled the case.

The trial court granted summary judgment to Lawrence after finding as a matter of law that the “counterclaim filed by Defendant Lawrence in 94CV27,928 seeking an interest in the horses and equipment constituted a statutory Lis Pendens notice under OCGA § 23-1-18 so that the interest that the Defendant Lawrence got through the jury verdict and judgment in the Catoosa County lawsuit defeats any claim that the Plaintiffs above [the Russells] have to the horses and equipment under the security interest and transfer from Jordan to the Plaintiffs.” The trial court also granted summary judgment to the Russells on Lawrence’s claim for damages for stubborn litigiousness. The Russells appeal, and Lawrence cross-appeals. Held:

Case No. A98A1148

The Russells contend that the trial court erred in ruling that a pending lawsuit which sought an interest in personalty could act as a statutory lis pendens to defeat a subsequent sale of that personalty from a person with voidable title to a good faith purchaser for value. They claim that a lis pendens is solely for the protection of real property. We agree but, nevertheless, affirm the judgment below on other grounds. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (judgment right for any reason will be affirmed).

The general notice of equity or a claim that arises by operation of OCGA § 23-1-18 protects innocent purchasers of real property involved in pending litigation. Patent Scaffolding Co. v. Byers, 220 Ga. 426, 433 (139 SE2d 332) (1964). Hence, that statute did not apply here. Compare Puryear v. Deakins, 258 Ga. 618, 619 (373 SE2d 15) (1988).

The Russells essentially assert their entitlement to the horses on two distinct grounds: as the collateral for a secured transaction under the UCC and under the terms of the real estate sales contract. But a security interest in collateral does not attach unless the debtor has rights in that collateral. OCGA § 11-9-203 (1) (c). Southwest Ga. Production Credit Assn. v. James, 180 Ga. App. 795, 797 (350 SE2d 786) (1986). Inasmuch as the collateral at issue belonged to Lawrence, not Jordan, Jordan had no interest therein to transfer to the Russells. First Nat. Bank &c. v. Smithloff, 119 Ga. App. 284, 290 (5) (167 SE2d 190) (1969). “One cannot encumber another [person’s] property in the absence of consent, estoppel, or some other special rule. [Cit.]” Id.

The Russells contend that they acquired title to the horses when they purchased the farm. They argue that as good faith purchasers for value, they obtained buyers’ rights under OCGA § 11-2-403 (1) because Jordan held voidable title at the time of the transfer and Jordan could act as an agent for Lawrence. We disagree.

The Russells’ agency argument requires disregarding the court order directing Jordan to “retain” the horses “in an unaltered state” unless she obtained the written consent of Lawrence. Compare Benton v. Duvall Livestock Marketing, 201 Ga. App. 430, 431 (1) (411 SE2d 307) (1991). Although the sales agreement specifically included the horses listed on the UCC-1 filing, Jordan had no legal right to sell what she did not own. Moreover, the Russells offer no applicable authority to show that by merely registering the horses with national associations, Jordan obtained voidable title to the horses. Compare Charles Evans BMW v. Williams, 196 Ga. App. 230, 232 (2) (395 SE2d 650) (1990) (good faith purchaser for value must show observance of reasonable commercial standards in the trade).

The judgment of the superior court in the earlier case, once entered into evidence, was conclusive as to the ownership of the horses. McGraw v. Smith, 232 Ga. App. 513, 514 (502 SE2d 347) (1998). Thus, the judgment which Lawrence obtained operated as an estoppel against the Russells in this case. Tootle v. Player, 225 Ga. 431, 432 (2) (169 SE2d 340) (1969). See Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 535 (3) (478 SE2d 601) (1996) (estoppel by judgment prevents relitigation in a subsequent suit of a matter previously adjudicated). Plainly, the Russells sued the wrong party.

Decided September 14, 1998

Reconsideration denied October 5, 1998

Renzo S. Wiggins, for appellants.

David T. Blackburn, for appellee.

Case No. A98A1149

In a cross-appeal, Lawrence contends that the trial court erred in granting partial summary judgment to the Russells on the issue of stubborn litigiousness. We agree and reverse. Lawrence counterclaimed for the loss of use of two horses retained by the Russells, interference with her development of an equestrian riding, boarding and breeding business, and for causing her unnecessary trouble in obtaining the registration papers for the horses awarded to her by judgment. Inasmuch as Lawrence asserted a viable independent counterclaim, she is not foreclosed from recovering the expenses of litigation under OCGA § 13-6-11. Glenn v. Fourteen West Realty, 169 Ga. App. 549, 551 (2) (313 SE2d 730) (1984). Because questions of bad faith, stubborn litigiousness, and causing unnecessary trouble are matters for jury determination, we reverse. Tab Sales v. D & D Distrib., 153 Ga. App. 779, 780 (2) (266 SE2d 558) (1980).

Judgment affirmed in Case No. A98A1148. Judgment reversed in Case No. A98A1149.

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

       The financing statement did not list the horses by name but by their breed and purported registration numbers.


author: Andrews, Chief Judge.

text:
    A98A1187.
    SOUTHERN GENERAL INSURANCE COMPANY v. ALFORD et al.
    (507 SE2d 179)
   Andrews, Chief Judge.

Southern General Insurance Company (Southern General) appeals from the trial court’s determination that it must pay claims arising out of an accident involving a trailer owned by Southern General’s insured, John McLucas. Because we hold that the tractor pulling the trailer was not a “hired automobile” tinder McLucas’s policy, we reverse the judgment of the trial court.

The underlying facts in this case are undisputed. On the day of the accident, Don Harris was driving his own tractor and pulling a trailer belonging to John McLucas. Harris was hauling timber cut by McLucas for delivery to Mill Creek Timber. Harris had parked the tractor-trailer rig and left it unattended when it rolled into a building, killing Lisa Alford.

Alford’s estate and others (Alford) sued McLucas as owner of the trailer involved in the accident. Southern General argued there was no coverage under McLucas’s policy. Although it is clear that Harris’s tractor was not a vehicle listed as insured under McLucas’s policy and also that the policy excluded coverage where tractor and trailer were separately owned, Alford argued that the tractor was covered under the policy as a “hired automobile.” The trial court agreed and granted Alford’s motion for summary judgment. This appeal followed.

Initially, we note that on appeal from the grant of a motion for summary judgment, this Court conducts a de novo review of the record. Further, the ordinary rules of contract construction govern when construing the provisions of an insurance policy, and this contractual interpretation is a question of law for the court. OCGA § 13-2-1; American Motorists Ins. Co. v. Nat. Union Fire Ins. Co., 227 Ga. App. 321, 322 (489 SE2d 36) (1997).

Turning to the policy at issue, we see that McLucas’s policy defined “hired automobiles” as follows: “ ‘hired automobile’ means an automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured, provided such automobile is not owned by or registered in the name of (a) a partner or executive officer of the named insured or (b) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile.”

The question then becomes whether Harris’s tractor was used “under contract in behalf of, or loaned to” McLucas. There is no argument that Harris “loaned” his tractor to McLucas, and Alford cites us to no authority for his contention that the tractor was being used “under contract in behalf of” McLucas. We find no Georgia case law on point but note that there are numerous federal cases and cases from other states interpreting this type of provision.

One federal case applying Georgia law holds that a truck belonging to a hauler who hauled aluminum dross for the named insured was not a “hired automobile” under the named insured’s policy because the hauler was an independent contractor who “contracted to perform certain work for [the named insured] according to his own means and methods, free from control by [the named insured] of the details connected with the performance of the work.” Kelly v. Phoenix Assurance Co. of New York, 225 FSupp. 562, 565 (2) (D. Md. 1964). Also, in Canal Ins. Co. v. Liberty Mut. Ins. Co., 395 FSupp. 962 (N. D. Ga. 1975), also construing Georgia law, the court found that the logging truck was not a “hired automobile” because there was no separate hiring contract. The agreement between the truck owner and the named insured was a service contract calling for the hauler to supply his own truck and did not provide for hiring the truck. Id. at 974. See also Sprow v. Hartford Ins. Co., 594 F2d 418, 422 (5th Cir. 1979) (for a vehicle to constitute a hired automobile, there must be a separate contract by which the vehicle is leased or hired to the named insured for his exclusive use or control).

In other cases involving a vehicle used to perform hauling services for the named insured, the courts considered whether the named insured was in control of the vehicle (or had a right of control over the vehicle) at the time of the accident or whether the named insured had entered into a written lease agreement with the hauler. 5 ALR4th 636, 644-645. See also Chicago Ins. Co. v. Farm Bureau Mut. Ins. Co. &c., 929 F2d 372 (8th Cir. 1991) (trucking company’s truck used to haul grain for named insured not “hired automobile” where trucking company was acting as an independent contractor); American Cas. Co. of Reading &c. v. Denmark Foods, 224 F2d 461 (4th Cir. 1955) (truck used to transport cucumbers for named insured was not “hired automobile” when truck owner paid his own driver who was not supervised by the insured); Indem. Ins. Co. &c. v. Pacific Clay Products Co., 91 Cal. Rptr. 452 (1970) (truck used to haul pipe to construction site was not “hired automobile” under named insured’s policy because there was no contract and truck was not “loaned” to named insured where the truck remained at all times in the custody of its owner’s employee and where even though the named insured was supervising the loading of the truck at the time of the accident, this did not involve control over the truck or possession or custody of the truck); Sampay v. Morton Salt Co., 482 S2d 752 (La. App. 1986) (not a “hired automobile” if there is no separate contract by which the vehicle is hired or leased to the named insured for his exclusive use or control). Compare Wolverine Ins. Co. v. State Auto. Mut. Ins. Co. &c., 415 F2d 1182 (6th Cir. 1969) (even though equipment hauler who provided trailer for hauling was an independent contractor, an employee of the named insured was directing the driver where to place his equipment at the time of the accident, and therefore the named insured was in control of the trailer, thus making it a “hired automobile”); Bituminous Cas. Corp. v. Travelers Ins. Co., 122 FSupp. 197 (Minn. D. C. 1954) (truck furnished and operated by trucking company to haul lime from named insured’s quarry was “hired automobile” of named insured because the court determined there was a joint venture between named insured and trucking company such that the truck was being used under contract in behalf of the named insured); Continental Cas. Co. v. Zurich Ins. Co., 366 P2d 455 (Cal. 1961) (truck hired by independent logging company to haul timber for named insured fit definition of “hired automobile” under policy); Woodrich Constr. Co. v. Indem. Ins. Co. &c., 89 NW2d 412 (Minn. 1958) (hired automobile where trucks and drivers furnished to contractor under contract with subcontractor).

In addition, looking at cases involving independent contractors and a similar definition of “hired automobile,” we note that courts have held the vehicle in question was “not a ‘hired automobile’ because the vehicle [was] being used ‘in behalf of’ the independent contractor and not the insured, even though it was used in furtherance of the primary contract between the insured and the contractor.” (Citations omitted.) Fisher v. Tyler, 394 A2d 1199, 1203 (Md. App. 1978).

Here, the record shows that Harris and McLucas had a verbal agreement under which Harris would haul timber for McLucas. Harris hauled timber under this agreement for only three or four days before the accident occurred. In doing the hauling, Harris pulled either McLucas’s trailer or his own trailer that he rented from Mill Creek Timber. At McLucas’s request, Mill Creek paid Harris directly for the hauling and issued a separate check to McLucas for the cutting and loading. It is clear from the record, and indeed, Alford does not dispute, that Harris was acting as an independent contractor when hauling the logs. He ran his own company, owned his own tractor, paid for oil, gas and maintenance of the tractor, and set his own schedule.

Therefore, applying the case law discussed above, we hold that the tractor owned and driven by Don Harris was not a “hired automobile” covered under John McLucas’s insurance policy. Harris was an independent contractor who agreed to haul logs for McLucas. McLucas and Harris had no agreement concerning the hiring of Harris’s tractor. Not only did McLucas have no lease agreement with Harris, McLucas was never in control of the tractor and never had a right of control over Harris’s tractor. Moreover, Harris was using the tractor for his own benefit not McLucas’s. Mill Creek paid Harris for the weight of the timber he hauled and the number of miles he hauled it, and this amount was separate from the amount paid McLucas for cutting and loading the timber.

Therefore, because we hold Harris’s tractor does not fit the definition of “hired automobile” under McLucas’s policy, there is no coverage under the policy. The trial court erred in granting Alford’s motion for summary judgment and in denying Southern General’s motion for summary judgment.

Decided September 16, 1998

Reconsideration denied October 5, 1998

Hawkins & Parnell, Michael J. Goldman, Debra L. Dewar, for appellant.

Tisinger, Tisinger, Vance & Greer, David H. Tisinger, for appellees.

Judgment reversed.

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

       Decisions of federal courts are not binding authority on this Court, but their reasoning is persuasive. Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (458 SE2d 95) (1995).


text:
    A98A1223.
    WILSON WELDING SERVICE v. PARTEE.
    (507 SE2d 168)
   Beasley, Judge.

Wilson Welding Service (Wilson) appeals the determination of damages arising from a default judgment entered in its favor. It contends the court improperly awarded it damages for breach of contract rather than for fraud and that the award should have included punitive damages.

Wilson filed suit against Charles M. Partee on an open account and also claimed Partee was stubbornly litigious. Partee was served but defaulted. Wilson amended its complaint to include a third count for fraud and sought special and punitive damages and attorney fees. Wilson served Partee with the amendment in accordance with OCGA § 9-11-5 (b), and again Partee did not respond.

Because Partee was in default, the court held a bench trial solely on the issue of damages at which Partee appeared pro se. At the outset, Wilson announced it was proceeding on Count 3 alone. The court entered judgment awarding Wilson all the special damages it sought together with attorney fees “for having to pursue this debt on a commercial account,” and pre-judgment interest. The court also stated “The Defendant did contest Plaintiff’s claim for punitive damages on the grounds of inceptive fraud. . . . As to Plaintiff’s claim of fraud, this Court does not find evidence sufficient to prove fraud on the part of Defendant. Therefore, this Court finds against the Plaintiff on its claim for punitive damages. . . .”

Wilson enumerates three errors: (1) the court improperly based the award on its original claim of open account rather than its fraud claim; (2) it improperly concluded there was insufficient evidence of fraud because in a default the allegations of the complaint are deemed admitted; and (3) it erred by failing to award punitive damages. The fourth enumeration of error is not supported by argument or citation of authority and is deemed abandoned. Court of Appeals Rule 27 (c).

The measure of damages in an action for fraud is the actual loss sustained. The damages in a fraudulent inducement claim may be similar if not identical to the damages in a breach of contract claim arising out of the same events. It may be inferred from the wording of the findings of fact and conclusions of law and the transcript of the trial that the court awarded the principal, pre-judgment interest and attorney fees as damages for Wilson’s tort claim. “Assuming . . . the [findings of fact and conclusions of law were] ambiguous and susceptible of two constructions, one of which would uphold the judgment of the trial court and one which would not, that construction which would uphold both the verdict and judgment is to be applied.”

With regard to punitive damages, it is true that Partee was in default as to the fraud claim. Parties already in default have 30 days from the date a complaint is amended to file an answer before becoming in default on the amendment. Further, all well-pled claims including those supporting liability for punitive damages are deemed admitted and supported by evidence, and punitive damages may be awarded in a case of default judgment.

But the determination of liability for punitive damages and the amount of punitive damages are two separate issues. Only liability for punitive damages results from the default; that is, Partee was subject to such an award. The amount of this type of damages is based on the enlightened conscience of the jury, or in this case, the court. An award of punitive damages will not be disturbed on appeal unless it is “so excessive or inadequate as to shock the judicial conscience” to the degree that a judgment entered thereon constitutes an error of law.

Here the trial court did not find any significant amount of fraud. It was within the trial court’s authority to award no punitive damages despite the fact that the default judgment established liability for them in that the fraud, which was admitted as a matter of law, was deemed de minimis.

Decided September 15, 1998

Reconsideration denied October 5, 1998

Robert P. Wilson, for appellant.

Charles M. Partee, pro se.

Judgment affirmed.

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

        Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 291 (4) (431 SE2d 115) (1993); Kimball v. Perrier, 229 Ga. App. 30, 32 (492 SE2d 913) (1997).

       See, e.g., West v. Nodvin, 196 Ga. App. 825, 831 (4) (397 SE2d 567) (1990) (award of principal and interest consistent with fraudulent inducement claim).

       Id.

       See Teamsters Local 515 v. Roadbuilders, Inc., of Tenn., 249 Ga. 418, 420 (1) (291 SE2d 698) (1982). The party in default must be served with the amendment in accordance with OCGA § 9-11-5 (b).

        Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993); OCGA § 9-11-55 (a).

       OCGA § 51-12-5.1; see generally Webster v. Boyett, 269 Ga. 191, 192-194 (496 SE2d 459) (1998).

        Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 764 (5) (b) (386 SE2d 120) (1989).

       (Citations and punctuation omitted.) Clarke v. Cotton, 207 Ga. App. 883-884 (1) (429 SE2d 291) (1993).


text:
    A98A1270.
    GATEFIELD CORPORATION et al. v. GWINNETT COUNTY.
    (507 SE2d 164)
   Judge Harold R. Banke.

Gwinnett County (“County”) filed a petition for condemnation before a special master under OCGA § 22-2-100 et seq. to acquire certain property for a permanent sewage easement and a temporary construction easement on property owned by Gatefield Corporation (“Gatefield”). A special master conducted a hearing to ascertain the value of the property. Gatefield’s appraiser testified that he valued the damages for the taking at $96,675, significantly more than the County’s expert. The superior court entered judgment vesting title to the easements in the County and awarded $4,925, the amount of compensation determined by the special master. Gatefield appealed the amount of the award and sought a jury trial.

After the entry of the judgment on the special master’s award, the surveyor informed the County that the plats and legal descriptions pleaded in the petition, relied upon by the special master, and incorporated into the judgment, were in error. The surveyor had misidentified the land lot corner that was the beginning point of the survey. More than four months after the judgment, due to that error, the County moved the court to set aside the judgment, dismiss its petition, and restore all property interests to Gatefield.

At the hearing on the County’s motion, the County explained that it did not want this property because the misdescribed property did not correspond with its sewer plans. Gatefield countered, “[t]hey wanted this piece of property, they condemned it, they’ve got it and now they’re stuck.” Gatefield pointed out that as a condemnee, it could not obtain attorney fees in a petition to condemn land and that it had expended $3,500 on an appraisal. Nevertheless, the court granted the County’s motion to set aside, and Gatefield appeals. Held:

1. Gatefield contends that the trial court erred in setting aside the judgment based on a mistake of fact under OCGA § 9-11-60 (d) (2). Northeast Atlanta Surety Co. v. State of Ga., 197 Ga. App. 399, 400 (398 SE2d 435) (1990). We agree.

Relief under OCGA § 9-11-60 (d) (2) may be granted only where the grounds are “ ‘unmixed with the negligence or fault of the movant.’ ” Aycock v. Hughes, 189 Ga. App. 838 (1) (377 SE2d 689) (1989); Northeast Atlanta Surety, 197 Ga. App. at 401. This is not such a case. The mistake at issue was due to the negligence or fault arising from a surveying error by the County’s surveyor. See Aycock, 189 Ga. App. 838 (1).

2. Gatefield asserts that the court erred in granting the County’s motion to set aside the judgment of condemnation. It claims that the County had no right to abandon the condemnation proceedings and could not relieve itself of liability to pay the award. Thomas v. Central of Ga. R. Co., 169 Ga. 269, 271-272 (149 SE 884) (1929).

Upon payment of an award into the court and the entry of the judgment of condemnation, title to the property vested in the County under OCGA § 22-2-111. After the vesting of the title in the condemnor, an amendment to alter the quantum of the property taken is not permissible. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 364-365 (11) (227 SE2d 362) (1976); accord Taylor v. Ga. Power Co., 129 Ga. App. 89, 90-91 (198 SE2d 701) (1973). Thus, the County could not correct its mistake by amendment.

Nor could the County simply dismiss its petition, as it conceded at the motion hearing. Housing Auth. &c. of Atlanta v. Mercer, 123 Ga. App. 38, 42 (179 SE2d 275) (1970). Here, as in Mercer, “[t]o allow a dismissal under such circumstances would allow the placing of the condemnee at great disadvantage without any remedy.” Id. Gatefield incurred the expense of retaining counsel, hiring an appraiser, attending hearings, and the like. Yet, it has been held that in such circumstances, a condemnee has no right to bring another suit for reimbursement. See Towler v. State Hwy. Dept., 100 Ga. App. 374, 375 (3) (111 SE2d 154) (1959).

Where no exceptions to the findings of a special master are filed, as here, the condemnee waives the right to further litigate non-value issues, Styers v. Atlanta Gas Light Co., 263 Ga. 856, 857 (1) (439 SE2d 640) (1994). A special master award and judgment thereon, unexcepted to and unappealed from, are res judicata as to all non-value issues. Beck v. Cobb County, 180 Ga. App. 808, 811 (350 SE2d 818) (1986). After the superior court entered the judgment under OCGA § 22-2-112, the only issue which Gatefield could contest was the value of the property taken. Taylor v. Taylor County, 231 Ga. 209 (200 SE2d 887) (1973). See Simmons v. Webster County, 225 Ga. App. 830, 833 (1) (485 SE2d 501) (1997).

Thus, Gatefield had no procedural mechanism under the Special Master Act with which to assert entitlement to its expenses, notwithstanding the County’s statement in its brief that Gatefield could bring a claim for damages. After the trial court set aside the judgment, no action remained pending. As a matter of law, the County was not entitled to amend or dismiss its petition. Wrege v. Cobb County, 186 Ga. App. 512, 514 (1) (367 SE2d 817) (1988) (if condemnor elects to use the Special Master Act, it is bound by the provisions of that law). Nor was the County entitled to have the judgment set aside based on a mistake under OCGA § 9-11-60 (d) (2). Yet, to reverse the judgment below and compel the County to retain title to property it neither wants nor needs would be inimical to the public interest.

Decided September 14, 1998

Reconsideration denied October 5, 1998

Harrison & Harrison, Gresham H. Harrison, for appellants.

Karen G. Thomas, Robert L. Martin, for appellee.

OCGA § 5-6-8 empowers an appellate court to “make such order and to give such direction as to the final disposition of the case by the lower court as may be consistent with the law and justice of the case.” Dept. of Transp. v. Davison Investment Co., 267 Ga. 568 (1) (481 SE2d 522) (1997). Therefore, we affirm the judgment of the trial court on condition that, within 20 days of the receipt of the remittitur, the trial court conduct a hearing to determine the actual and necessary expenses incurred by Gatefield as a result of the County’s error. Peace Officers’ Annuity &c. v. Blocker, 135 Ga. App. 822, 825 (219 SE2d 456) (1975) (this Court has both inherent and express powers to prevent unjust results). See Crawford v. Crump, 223 Ga. App. 119, 123 (2) (476 SE2d 855) (1996). Unless Gatefield is reimbursed the amount authorized by the evidence, we reverse. See Marist Society of Ga. v. City of Atlanta, 212 Ga. 115, 117-118 (2) (90 SE2d 564) (1955) (where condemnor sought to set aside judgment, it was required to pay all expenses and damages incurred by condemnee).

Judgment affirmed on condition; otherwise reversed.

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


author: Smith, Judge.

text:
    A98A1545.
    DUNN v. THE STATE.
    (507 SE2d 170)
   Smith, Judge.

Phillip Dunn was charged by accusation with one count of battery, OCGA § 16-5-23.1 (a), and two counts of simple battery, OCGA § 16-5-23 (a). He represented himself at trial; a jury acquitted him of battery but found him guilty on both counts of simple battery. His motion for new trial was denied, and he appeals pro se, enumerating four alleged errors. We find no error and affirm.

1. We first note that two of Dunn’s enumerations of error cannot be considered because of Dunn’s failure to follow the procedures for preparation of a transcript from recollection pursuant to OCGA § 5-6-41 (g), (i).

Under that Code section, when a trial is not reported, the parties may agree on a transcript from recollection. “In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.” OCGA § 5-6-41 (g). Alternatively, the parties may agree on a stipulation of the case approved by the trial court. OCGA § 5-6-41 (i). Dunn’s attempts to prepare and file a unilateral account of the proceedings below do not conform to the requirements of this Code section. As this Court has already noted in ruling on Dunn’s motion seeking to order the State to prepare a transcript, the trial court has no independent recollection of the trial, and no transcript is available.

“In the absence of a transcript, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s findings.” (Citations and punctuation omitted.) Cwiek v. State, 220 Ga. App. 36 (1) (467 SE2d 608) (1996). We therefore cannot consider Dunn’s assertion of the general grounds or his contention that the trial court failed to furnish him with the accusation and list of witnesses.

2. Relying on the provisions of OCGA § 17-4-41 (a), Dunn contends that the affidavit in support of his arrest was insufficient. But that Code section requires only that the affidavit “shall include, as nearly as practicable, the following facts: (1) The offense, including the time, date, place of occurrence, against whom the offense was committed, and a statement describing the offense; and (2) The county in which the offense was committed.” The affidavit executed by the arresting officer states that Dunn “at 5:46 p.m. hours on the 27 day of Nov., 1996, at 2205 Redan Cove, DeKalb County, Ga., did commit the criminal offense of simple battery, for that defendant intentionally caused physical harm to [the named victim] by choking and hitting with fists.” This affidavit satisfied the requirements of OCGA § 17-4-41 (a), and this enumeration of error is without merit.

Decided September 15, 1998

Reconsideration denied October 5, 1998

Phillip Dunn, pro se.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Pilar Gigante, Assistant Solicitors, for appellee.

3. Finally, Dunn enumerates as error the denial of his rights to counsel and trial by jury, contending he was forced to trial without counsel. In the absence of a transcript or other “extrinsic evidence,” we would ordinarily vacate the conviction and sentence and remand this matter for an evidentiary hearing to determine if Dunn waived his right to counsel. Copeland v. State, 224 Ga. App. 402, 403 (480 SE2d 623) (1997). But here the trial judge has already testified by affidavit in connection with the motion for preparation of a transcript. The trial judge, relying on his standard procedure for handling arraignments as well as notations he made on his arraignment and trial calendars, stated that Dunn was fully advised of his rights and that he waived counsel voluntarily and elected to proceed pro se. Based on this extrinsic evidence, “we find that the trial court made a finding that appellant validly chose to proceed pro se after he was made aware of his right to counsel and of the dangers of proceeding without counsel.” Graham v. State, 172 Ga. App. 660, 661 (1) (324 SE2d 518) (1984).

Judgment affirmed.

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

       We note, as pointed out by the State, that under OCGA § 17-7-71 (a) an accusation need not be supported by an affidavit if the defendant has already been arrested, as in this case.


author: Blackburn, Judge.

text:
    A98A1867.
    LAMBROPOULOUS v. THE STATE.
    (507 SE2d 225)
   Blackburn, Judge.

Theofilos Lambropoulous appeals his conviction by a jury of driving under the influence, see OCGA § 40-6-391 (a) (1). Lambropoulous contends that the trial court erred in denying his motion to suppress the State-administered chemical test.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Sprinkles v. State, 227 Ga. App. 112 (1) (488 SE2d 492) (1997).

1. In his first enumeration of error, Lambropoulous contends that he was not properly advised of his implied consent rights. However, Lambropoulous failed to raise this issue in the trial court. In fact, in his motion to suppress, Lambropoulous alleged that he was advised of his implied consent rights pursuant to OCGA § 40-6-392 (a) (4). The trial court also specifically found in its order on Lambropoulous’ motion for new trial that this issue was not timely raised.

Decided September 21, 1998

Reconsideration denied October 5, 1998

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

“[Lambropoulous’] attempt to raise on appeal arguments which were not raised during the motion to suppress or at trial will not be considered.” (Punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609, 611 (4) (458 SE2d 382) (1995) (enumeration regarding failure to receive proper implied consent warning not considered because not timely raised); see also Smith v. State, 204 Ga. App. 576, 577 (2) (a) (420 SE2d 29) (1992) (“it is well established that grounds not raised by objection below may not be raised for the first time on appeal”).

2. In his second enumeration of error, Lambropoulous asserts that he was denied his right to an independent test from qualified personnel of his own choosing pursuant to OCGA § 40-5-67.1 (b) (2).

“The transcript of the suppression hearing is not included in the appellate record. Inasmuch as factual and credibility determinations made by the trial court at a suppression hearing must be upheld by the appellate court unless shown to be clearly erroneous, and the absence of the transcript from the record makes that showing impossible, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s denial of the motion to suppress.” (Citation and punctuation omitted.) Jones v. State, 213 Ga. App. 11, 13 (2) (444 SE2d 89) (1994).

Moreover, the evidence introduced at trial reveals that after Lambropoulous requested an additional test, he was taken to Gwinnett Medical Center, which was the nearest hospital, where his blood was drawn and tested. Additionally, in its order on Lambropoulous’ motion to suppress, the trial court determined that Lambropoulous did not object to being taken to Gwinnett Medical Center and did not request a specific doctor or request to make arrangements for a specific doctor. In the absence of Lambropoulous’ request for specific personnel to perform the independent test, “the officer’s action in taking [Lambropoulous] to the nearest hospital, and the departmental policy behind it, were reasonable.” McDaniel v. State, 218 Ga. App. 555 (462 SE2d 446) (1995).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Gerald. N. Blaney, Jr., Solicitor, Michael K. Biglow, Assistant Solicitor, for appellee.


text:
    A98A2038.
    ZEIGLER v. CLOWHITE COMPANY et al.
    (507 SE2d 182)
   Blackburn, Judge.

Wanda Gayle Zeigler appeals the trial court’s grant of summary judgment to the defendants, Clo White Company and Coastal Chemical Company, in the underlying products liability action. Because issues of fact remain for jury determination, we reverse.

“It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).” (Citation and punctuation omitted.) Anderson v. Svc. Merchandise Co., 230 Ga. App. 551 (496 SE2d 743) (1998). “Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Zeller v. Home Fed. Savings &c. of Atlanta, 220 Ga. App. 843 (471 SE2d 1) (1996).

Viewed in the light most favorable to Zeigler, the facts reveal that Zeigler used the defendants’ product, lemon-scented Clo White bleach, as a cleaning solution to wash the exterior wooden wall of a friend’s house. She diluted the bleach with water and Surf washing powder, creating sudsy water as recommended on the product’s label. She did not follow the instructions on the product’s label precisely with regard to the exact quantity of bleach added to the sudsy water. She wore rubber gloves which extended halfway to her elbow, goggles, and a cap. As she worked, some of the cleaning solution trickled down her arm and onto her body. Zeigler rinsed her body and clothes with running water while working. After working between one and one-half to two hours, Zeigler noticed that her arms were burning. Since using the bleach, Zeigler alleges that she has suffered from serious health problems including respiratory arrests, burns to her skin, injury to her throat, and damage to her vocal chords and larynx.

Zeigler brought the underlying action alleging that the defendants were strictly liable in tort for the injuries she incurred as a result of her use of their product. Zeigler further alleged that the lemon-scented bleach was neither merchantable nor reasonably suited for its intended use, and that the defendants failed to warn her that the lemon scent of the product masked the toxic nature of the bleach.

1. Zeigler’s cause of action sounding in strict product liability is based on OCGA § 51-1-11 (b) (1) which provides that “[t]he manufacturer of any personal property sold as new property . . . shall be liable in tort, irrespective of privity, to any natural person who may use . . . the property and who suffers injury to his person . . . because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The Supreme Court of Georgia has previously held that “[a] product that is ‘not merchantable and reasonably suited to the use intended’ is ‘defective.’ ” Stiltjes v. Ridco Exterminating Co., 256 Ga. 255, 256 (347 SE2d 568) (1986). Therefore, we must determine whether issues of fact remain as to whether CloWhite’s lemon-scented bleach was defective.

Zeigler contends that evidence of a defect in CloWhite’s lemon-scented bleach is found in the Material Safety Data Sheet (MSDS) prepared for the lemon-scent additive used in the bleach which warns that the scent is incompatible with strong oxidizing agents. A defect is further evidenced by CloWhite’s bleach label which describes the bleach as a “strong oxidizer.” Dr. Warren Woodford, a chemist, averred that the combination of the lemon-scent additive, the bleach, the water, and the Surf washing powder created terpene scent vapors which, when inhaled, produced symptoms of poisoning. Defendants argue that Zeigler assumed the risk of any injury from the open and obvious nature of CloWhite’s bleach.

In Banks v. ICI Americas, 264 Ga. 732, 735 (450 SE2d 671) (1994), the Court “adopted a ‘risk-utility’ analysis to be used in evaluating design defect cases, ‘whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product.’ Banks, supra at 734 (1).” Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170, 172 (501 SE2d 556) (1998). Almost simultaneously, this Court and the Supreme Court of Georgia held that under a risk utility analysis, an open and obvious danger did not preclude an action against the manufacturer of a product because such factor was “but one factor to be considered in determining whether a product is defective.” Id. See also Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443, 445 (500 SE2d 570) (1998) (“[t]he open and obvious nature of the danger in a product is logically only one of many factors which affect the product’s risk and, therefore, making that single factor dispositive is not consistent with this Court’s mandate in Banks that the product’s risk must be weighed against its utility”).

Based on the foregoing, the trial court erred in granting summary judgment to the defendants on Zeigler’s claim of strict product liability.

2. Zeigler also alleges that the defendants failed to adequately warn her of the danger of inhalation of the bleach, especially considering that the odor-masking effect of the lemon scent additive. Although CloWhite’s label contains warnings regarding the dangers of direct contact between its product and the user’s eyes, clothes, or skin, it does not warn against inhalation of the product’s fumes. The warning label on CloWhite’s regular bleach is identical to the one used on the lemon-scented bleach.

“In failure to warn cases, the duty to warn arises whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product. [Cits.] An actual or constructive knowledge requirement is consonant with Georgia tort law in general, see, e.g., [cit.]; Kemp v. Rouse-Atlanta, 207 Ga. App. 876 (429 SE2d 264) (1993) (negligent hiring and/or retention), and is in accord with the position taken by foreign jurisdictions and legal treatises. [Cits.]; Restatement (2d) of Torts, § 402A, Comment j (seller is required to give warning ‘if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge’ of the danger).” Chrysler Corp. v. Batten, 264 Ga. 723, 724-725 (450 SE2d 208) (1994). “Whether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner.” (Citation and punctuation omitted.) Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993).

In the present case, Zeigler contends that Ck)White had the duty to warn of dangers associated with inhalation of its product, especially considering the fact that the lemon scent masked the normally noxious odor of the bleach. Zeigler established that the MSDS prepared on CloWhite’s bleach warned against inhalation but such warning was never placed on the product label. Defendants’ contention that the MSDS referred only to large quantities creates a jury issue as to whether a warning was required. Additionally, Dr. Huggins deposed that “normally [product] labels are a condensed version of the MSDS sheet.” Yet, CloWhite’s product label did not warn against the dangers listed on the MSDS for its bleach. Therefore, the trial court erred in granting defendants’ motion for summary judgment on Zeigler’s failure to warn cause of action.

3. The trial court also granted the defendants’ motion for summary judgment on Zeigler’s claim for punitive damages. Pursuant to OCGA § 51-12-5.1 (b), “[pjunitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

Decided September 16, 1998

Reconsideration denied October 5, 1998

Davis, Gregory, Christy, Forehand & Maniklal, Hardy Gregory, Jr., David A. Forehand, Jr., James G. Tunison, Jr., for appellant.

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellees.

Construing the facts in favor of Zeigler, the non-movant, they show that CloWhite put a lemon scent into its bleach which masked the otherwise noxious odor of the bleach. CloWhite’s failure to warn consumers of the danger of inhaling the fumes they had masked must be considered in light of the fact that CloWhite also intentionally reduced the consumer’s revulsion to the natural product by adding the lemon scent. CloWhite also possessed information which warned against mixing the lemon scent with strong oxidizers. CloWhite’s decision not to include on its label a warning against inhaling the fumes of the product was made despite warnings of this danger contained in their MSDS. Again, in reviewing the evidence in favor of the non-movant, CloWhite was aware of the above dangers and added the lemon scent, which enhanced the danger of inhalation of its fumes, yet failed to warn the user of such dangers. A jury could infer a conscious disregard for the safety of others, sufficient to support Zeigler’s claim for punitive damages. Therefore, the trial court erred in granting summary judgment on Zeigler’s claim for punitive damages.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1629.
    HELLER v. THE STATE.
    (507 SE2d 518)
   Smith, Judge.

James Heller was charged by accusation in Cobb County with DUI, speeding, and failure to maintain lane. A jury found him guilty on all counts. He appeals from the judgment of conviction and sentence entered thereon. We find no error, and we affirm.

1. Heller first contends that the implied consent warnings, given to him as directed by OCGA § 40-5-67.1 (b) (2), were misleading and coercive in that they failed to inform him of the privilege against self-incrimination granted by Art. I, Sec. I, Par. XVI of the Georgia Constitution of 1983 and OCGA § 24-9-20. This is patently without merit. The Supreme Court of Georgia has held that this privilege is not violated either by the admission into evidence of the results of the State-administered blood test following the reading of implied consent warnings, Fantasia v. State, 268 Ga. 512, 513-514 (2) (491 SE2d 318) (1997), or by the admission of evidence showing that the defendant refused to take such a test after the implied consent warnings were administered. Keenan v. State, 263 Ga. 569, 571-572 (2) (436 SE2d 475) (1993). It follows, therefore, that the warnings themselves need not inform of such a privilege.

2. Heller next complains of the admission of the arresting officer’s testimony regarding Heller’s “sway,” as compared to that of a normal, sober person. He appears to argue that the officer’s testimony was inadmissible, either because an insufficient foundation was laid to show that the officer was qualified to testify as to the sway of a “normal” person, or because the officer’s testimony referred to field sobriety tests, which constitute nonscientific evidence in violation of State v. Pastorini, 222 Ga. App. 316 (474 SE2d 122) (1996). Under either argument, Heller is incorrect.

(a) Heller is correct that the arresting officer, Michael Bowman of the Cobb County Police Department, had no “medical training” that would lay a foundation for his testimony that Heller’s “sway was more defined than the give or take of two inches that a normal person has.” Bowman was not qualified as an expert. But even expert testimony may be based upon foundation other than “medical training”; it may be based upon observation, experience, and training. Bacon v. State, 225 Ga. App. 326, 329 (483 SE2d 894) (1997). Bowman certainly had such experience and training. He testified that he was assigned to the Cobb County DUI Task Force when he stopped Heller. He had attended five different training sessions on investigating DUI cases, totaling 112 hours. He was a member of the task force for three and one-half years and made several hundred DUI stops. In addition, he attended several training programs comprising many hours on DUI field sobriety testing, including a 40-hour course designed to teach instructors how to teach officers to do field sobriety testing. This provided more than sufficient foundation for Bowman’s testimony.

(b) Pastorini, supra, actually supports the admission of the officer’s testimony. In Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982), the Supreme Court set forth the test for determining “whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.” Id. at 524. Although nonscientific evidence should not be presented to the jury in the guise of science, in Pastorini, supra, this Court held that “sobriety tests such as the ‘walk and turn’ and the ‘one leg stand,’ both of which demonstrate a suspect’s dexterity and ability to follow directions, do not constitute scientific procedures. [Cit.] And, testimony from an officer about a suspect’s inability to complete such dexterity tests does not amount to testimony regarding scientific procedures, but instead amounts to testimony as to behavioral observations on the officer’s part. [Cit.] Therefore, these two tests and any testimony concerning their administration are not subject to the standard set out in Harperi, supra].” Pastorini, supra at 318-319 (2). We find no error.

3. Heller contends that Bowman’s testimony regarding the results of the alco-sensor test violated Turrentine v. State, 176 Ga. App. 145 (335 SE2d 630) (1985).

Turrentine teaches that the alco-sensor “is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of” DUI. Id. at 146. It is not used to determine the amount of alcohol in a person’s blood, id., and it is impermissible to testify to the results of an alco-sensor test giving a numeric reading as to the amount of alcohol in the person’s blood. But Bowman did not testily to a numeric reading on the alco-sensor test. He clearly identified the test as an initial screening measure that gives a positive/negative result. He testified that two alco-sensor tests were given. Between the first and second alco-sensor tests, Bowman had Heller perform the field sobriety tests.

After describing the field sobriety evaluations, Bowman testified that a second alco-sensor test was done, “trying to give the driver every benefit of the doubt.” He testified that “[t]he results on the alcosensor were positive, which indicated possible impairment to the extent that he was a less than safe —.” At that point, Heller objected and requested a mistrial, interrupting Bowman’s testimony. The trial court disagreed with Heller’s statement that Bowman had testified impermissibly and stated, “I heard him say that he had a positive alcosensor result, which again indicated to him that the driver might possibly be impaired. I see nothing wrong with that testimony.”

We agree with the trial court. The jury was never told that the alco-sensor measured the amount of alcohol in Heller’s blood, or even that a numeric reading could be obtained from an alco-sensor. Bowman’s testimony did not violate Turrentine.

4. Heller characterizes certain statements in the State’s closing argument as improper “golden rule” arguments. “In a classic ‘golden rule’ argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. [Cit.] However, any argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.” Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989).

Decided October 5, 1998.

J. Guy Sharpe, Jr., for appellant.

Barry E. Morgan, Solicitor, Lawton W. Scott, Assistant Solicitor, for appellee.

In this case, in closing argument the prosecutor stated, before being interrupted by Heller’s objection: “I’m going to ask you this question. If you were out late working, if you were out late with family —.” The trial court cautioned the State to rephrase its argument, and the State continued: “Seeing what you see here now, do you think he was less safe? Do you want to expose the people of Cobb County to the risk that he presented . . . southbound on US 41?” This time, Heller’s objection was overruled.

This is not a “golden rule” argument. This Court has held that asking jurors to put themselves as passengers in the car the accused was driving while he was impaired was not impermissible because “[t]here had been no passengers in fact.” Gray v. State, 222 Ga. App. 626, 633 (5) (476 SE2d 12) (1996). The same reasoning applies here. It is arguable that the trial court need not have limited the first line of argument; the jurors were not actually out driving on the night Heller was stopped. And the second line of argument is clearly permissible. The State did not ask the jurors to view the facts from any perspective except their own. They were asked to judge Heller by what they had seen and heard at trial. The mere fact that they were all citizens of Cobb County does not, as Heller contends, make this a “golden rule” argument.

Judgment affirmed.

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