author: Ellington, Judge.

text:
    A00A0365.
    A00A0366.
    AZARAT MARKETING GROUP, INC. v. DEPARTMENT OF ADMINISTRATIVE AFFAIRS et al. STATE OF GEORGIA v. AZARAT MARKETING GROUP, INC.
    (537 SE2d 99)
   Ellington, Judge.

Azarat Marketing Group, Inc. (“Azarat”) filed suit against the State of Georgia, the Georgia Department of Administrative Affairs, and the University of Georgia, alleging that the State had breached a contract for the purchase of 36 computers. In Case No. A00A0365, Azarat appeals from an order granting summary judgment to the State. Finding that the trial court erred in allowing the State to assert the affirmative defense of res judicata after suffering a default judgment on the issue of liability, we reverse the trial court’s grant of summary judgment. In Case No. A00A0366, the State appeals the trial court’s denial of its motion to open default. Finding no error, we affirm.

Case No. A00A0365

1. Azarat correctly contends that the trial court erred when it granted summary judgment to the State after the State had suffered a default judgment as to liability.

Azarat filed suit against the State and its entities on August 8, 1997, and served the office of the Governor’s Executive Counsel on the same day. The State failed to timely answer the complaint or open the default as a matter of right. The trial court granted Azarat’s motion for default judgment and denied the State’s motion to open default. The trial court specifically found that the State was “in the position of having admitted each and every material allegation of the plaintiff’s petition except as to the amount of damages alleged. In that state of the record, the State of Georgia is concluded as to its liability. [Cit.]” After conducting discovery, the State moved for summary judgment on the basis of res judicata and the failure of the complaint to state a cause of action.

(a) In its order granting the motion for summary judgment, the trial court found that the State presented evidence of a prior final order from another court on the same issues, so that the instant claim was precluded by the doctrine of res judicata. See OCGA § 9-12-40. Pretermitting the issue of whether, on the summary judgment motion, the trial court failed to consider the evidence presented in the light most favorable to Azarat as nonmovant, the trial court erred in allowing the State to claim res judicata after suffering default judgment. Res judicata is an affirmative defense that must be raised in a timely filed responsive pleading. OCGA § 9-11-8 (c). The State’s failure to assert this affirmative defense in an answer or motion prior to suffering a default judgment acts as a waiver of the defense. Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481-482 (3) (428 SE2d 381) (1993). See also McDade v. McDade, 263 Ga. 456 (1) (435 SE2d 24) (1993).

(b) The trial court also erred in finding that a “general conclusory statement” in the pleadings that there had been a breach of contract fails to state a cause of action sufficient to withstand a motion for summary judgment when there is also “an instrument attached to those pleadings showing that no contract existed which could be breached.” Although it is unclear to which “instrument” the trial court refers, it makes no difference to the analysis in this case.

[A] defendant in default is in the position of having admitted each and every material allegation of the plaintiffs petition except as to the amount of damages alleged. The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.

(Citations and punctuation omitted.) Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985). See also OCGA § 9-11-55 (a). Even so, the State is correct when it points out that

the default operates to admit only the well-pleaded allegations of the complaint and the fair inferences and conclusions of fact to be drawn therefrom. Thus, [the State] is not precluded by operation of the default from showing that no claim existed which could allow [Azarat] to recover.

(Citations and punctuation omitted.) Weldon v. Williams, 170 Ga. App. 589, 591 (3) (317 SE2d 570) (1984). See also Stroud v. Elias, 247 Ga. 191, 194 (2) (275 SE2d 46) (1981); Drug Emporium v. Peaks, 227 Ga. App. 121, 129 (2) (d) (488 SE2d 500) (1997).

In this case, Azarat’s complaint shows that (1) there was an agreement for it to sell the State 36 computers for a total price of $33,984; (2) the computers were delivered as promised; (3) all conditions precedent to Azarat’s right of recovery have occurred; and (4) the State has refused to pay for the computers pursuant to its agreement. These allegations were sufficient to state a cause of action for breach of contract and were deemed admitted by the State’s default. See OCGA §§ 9-11-8 (a) (2); 9-11-55 (a); see also Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990) (all doubts resolved in favor of plaintiff on a motion to dismiss for failure to state a claim).

The exhibits attached to the complaint included copies of the State’s requisition sheet, an invoice, and documents for shipping 36 packages from Azarat to the University of Georgia. While the exhibits may not, by themselves, establish the existence and execution of a contract, they certainly do not establish that no written contract in fact existed. See OCGA § 11-2-201; Harris v. Hine, 232 Ga. 183, 186 (1) (205 SE2d 847) (1974); cf. Stroud v. Elias, 247 Ga. at 194 (2) (exhibit to complaint conclusively showed that the defendant was not liable on the contract). This is particularly true when the evidence is viewed in the light most favorable to Azarat. Lau’s Corp. v. Haskins, 261 Ga. 491. Although the State attempts to portray deposition testimony by an Azarat representative as contradicting the complaint by admitting that no contract existed, the testimony, when viewed in context, does not include such an admission.

The trial court’s determination that there was no contract, based upon an unspecified “instrument” attached to the complaint, was error. The grant of summary judgment to the State must be reversed.

Case No. A00A0366

2. The State claims that the trial court abused its discretion in refusing to open the default on the basis of excusable neglect. See OCGA § 9-11-55 (b). The undisputed facts show that the complaint was filed on August 8, 1997, and a process server hand-delivered the summons and complaint to an attorney in the Governor’s Office of Executive Counsel the same day. According to the Executive Counsel, one of the duties of the office is to accept service of process on behalf of the Governor and the State. An affidavit of service was completed on August 12,1997, and filed with the trial court on August 15, 1997.

The Executive Counsel forwarded the summons and complaint to the State Law Department. Due to miscommunications within the Executive Counsel’s Office and, later; between the Executive Counsel and the Law Department, the Senior Assistant Attorney General responsible for responding to the complaint mistakenly believed that the complaint had not been properly served. Based upon such belief, the Assistant Attorney General decided not to answer the complaint.

Decided July 6, 2000

Reconsideration denied July 20, 2000

Coleman & Dempsey, Robert P. Catlin III, for Azarat Marketing Group, Inc.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Jr., Grace E. Lewis, Senior Assistant Attorneys General, for Department of Administrative Affairs et al.

While the State argues that it exercised diligence in attempting to determine whether service had been perfected, the trial court heard the evidence presented; it could have found excusable neglect, but did not. See Drug Emporium v. Peaks, 227 Ga. App. at 124 (1). This Court finds that the facts of this case do not demand a finding of excusable neglect and that the trial court did not abuse its discretion in denying the State’s motion to open the default. See Coleman v. Superior Ins. Co., 204 Ga. App. 78, 79-80 (418 SE2d 390) (1992).

3. The State’s remaining enumerations were resolved in Division 1, supra.

Judgment affirmed in Case No. A00A0366. Judgment reversed in Case No. A00A0365.

Andrews, P. J., and Ruffin, J., concur.

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

       But see Hardy v. Ga. Baptist Health Care System, 239 Ga. App. 596-597 (1) (521 SE2d 632) (1999) (absent a default, an affirmative defense may be raised by motion or on summary judgment).

       For the same reason, the State’s assertion of sovereign immunity based upon Azarat’s alleged failure to prove the existence of a written contract misses the mark. Further, the cases cited by the State regarding sovereign immunity do not involve default judgments and are, therefore, inapplicable to this case. See, e.g., Bd. of Regents &c. of Ga. v. Tyson, 261 Ga. 368, 369-370 (1) (404 SE2d 557) (1991) (jury trial); Merk v. DeKalb County, 226 Ga. App. 191 (1) (486 SE2d 66) (1997) (summary judgment).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A0382.
    WILLIAMS v. THE STATE.
    (537 SE2d 125)
   Ruffin, Judge.

Roosevelt Williams was convicted of two counts of burglary. On appeal, he contends the evidence was insufficient to support the convictions. He also claims the trial court erroneously denied his motion for mistrial and overruled his objection to the prosecutor’s closing argument. For reasons discussed below, we affirm.

The relevant facts follow. Two homes in Lawrenceville were burglarized on February 19, 1998. Rachel Reese, the owner of the house at 191 Forest Ridge Court, testified that she returned home at about 6:15 p.m. and discovered several items missing, including a stereo, telephone, answering machine, three guns, ammunition, jewelry, a coin collection, a comforter cover, and some pillowcases. It appeared that someone had broken the bottom of a storm window and used a long tool to reach through and unlock the window. Eloy Saenz, who lived at 205 Forest Place, testified that several items were stolen from his house that day, including a Dallas Cowboys jacket, two pairs of pants, and some papers.

Later that night, police responded to a burglar alarm at a nearby church. The police used a search dog to try to track the intruder. The dog picked up a scent behind the church and led its handler, Officer Russell, through a path in the woods toward the Forest Place neighborhood. Russell subsequently led the dog back to the church and had it search the woods for any hidden items with human scent on them. The dog located many of the items stolen from 191 Forest Ridge Court in the woods, about 50 feet from the path it had led Russell on earlier. Russell testified, however, that if the stolen items had the scent of the individual the dog was tracking, the dog would have led him to the items while tracking the individual.

Officer D. P. Taylor, who was in his car on Forest Place, testified that he saw a young man, later identified as Edwin Snowden, run across the road and disappear into the darkness near some apartments. Taylor called out to Snowden as he was attempting to go into his house at 56 Forest Place. When Snowden failed to respond, Taylor placed him under arrest. Officer Ashley arrived on the scene and interviewed Snowden’s mother, who asked if any money had been taken in the burglaries. When Ashley said yes, Ms. Snowden went back into the house and brought out her other son Roderick, who told Ashley that he had purchased some coins from Roosevelt Williams. He showed the coins to Ashley, and they were later identified as some of the coins stolen from Reese’s house.

Ashley and other officers went to Williams’ home and spoke with him and his mother. Williams denied selling any coins to Roderick Snowden, and he and his mother consented to a search of the home. As the officers started to search his closet, Williams told them that he collected coins and produced a bag of coins from the closet. Although he told the officers that he did not have any other coins, the officers found a box in the closet which contained a cloth bag filled with coins. The bag had Reese’s husband’s name and address written on it. Reese identified the bag and coins at trial.

Officer Taylor, who had positioned himself behind Williams’ duplex in case someone tried to run away, testified that there was an open hole in the rear wall leading to a crawl space underneath Williams’ apartment. Taylor looked inside the opening and found a long screwdriver just inside the crawl space. Taylor then noticed another hole in the wall, which opened onto the basement of the adjacent unit. Taylor looked inside this hole and saw a blue jacket lying on the ground underneath the opening. Inside the jacket pocket was a pay stub with Saenz’s name on it. Saenz identified the jacket as the one stolen from his house. Officer Ashley testified that the screwdriver found in Williams’ crawl space was long enough to have been used to opén Reese’s window, but that a regular-sized screwdriver would not have been sufficient.

Roderick Snowden testified that he purchased the stolen coins from Williams. Williams, however, denied selling the coins to Snowden. To the contrary, he testified that Snowden sold him the coins that were discovered in his closet by the police. He said Snowden told him that he had found the coins in the woods.

1. On appeal of a criminal conviction, we view the evidence in the light most favorable to support the verdict, and the defendant is no longer entitled to a presumption of innocence. We do not weigh the evidence or determine witness credibility, but simply determine whether the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes charged.

As we have previously noted,

[w]here .a theft ... is proven, the recent unexplained or inadequately explained possession of the stolen property by the defendant creates an inference or presumption of fact sufficient to convict. Whether or not a defendant’s explanation is satisfactory or reasonable is a question for the jury.

The evidence was clearly sufficient to support Williams’ conviction of the burglary of Reese’s home, as Williams was found in possession of coins stolen during the burglary. Although Williams claimed that he purchased the coins from Roderick Snowden, Snowden contradicted this testimony, claiming that he purchased some of the stolen coins from Williams. While Williams contends that his testimony is more credible than Snowden’s, the credibility of witnesses is a matter for the jury, not for this Court. Moreover, the fact that Williams produced a bag of coins for the officers and falsely stated that he had no other coins supports an inference that he was trying to keep the officers from discovering the stolen coins hidden in a box in his closet. The jury could have concluded that Williams’ attempt to deceive the officers showed a consciousness of guilt, thus providing a further basis for believing Snowden instead of Williams.

With respect to the burglary of Saenz’s residence, the jacket stolen during the burglary was not found in Williams’ direct possession, but stuffed through a hole in the adjacent duplex unit. Nevertheless, when the evidence is considered in its totality, we believe the jury was authorized to conclude that Williams was guilty of both burglaries. The burglaries were committed on the same day, in the same general area. In both cases, the burglar gained entry into the house through a window and left the window open after departing. With respect to the Reese burglary, entry was apparently gained through use of a long pry bar. If, as discussed above, the jury believed that Williams committed the burglary, it could reasonably have concluded that he utilized the long screwdriver and disposed of it by hiding it in the crawl space underneath the apartment. The fact that the stolen jacket was found in close proximity to the screwdriver — both were stuffed in adjacent holes in the same wall — strongly suggests that they were hidden by the same person. Although Williams argues that another person could have hidden the jacket, the jury could have found the coincidence of such a hypothesis too extreme to be reasonable, given Williams’ involvement in the Reese burglary. When all of the evidence is considered together, and not in isolation, the jury could conclude that the only reasonable hypothesis was that the same person committed both burglaries, and that person was Williams.

2. Williams contends the trial court erred in denying his motion for mistrial and his motion for new trial based on an improper question by the prosecutor. This contention is without merit.

During Williams’ cross-examination, the prosecutor asked the following:

Q. Did Detective Gentry interview you about these coins?
A. Yes, she did.
Q. Did you tell her about where you had gotten these coins from?

At this point, Williams’ counsel objected that the question improperly commented on Williams’ exercise of his right to remain silent. Because it was 5:00, the court excused the jury for the day and took up the issue with counsel. In making an offer of proof, counsel stated that Williams had been advised of his Miranda rights; that he was asked if he knew anything about the burglaries and replied that he did not; that he was then shown the bag of coins by Detective Gentry; and that he then said he did not want to make a statement. The judge withheld a ruling on the objection and went on to hold a charge conference with the attorneys.

When court reconvened the next morning, Williams’ attorney moved for a mistrial based on the prosecutor’s question. The court refused to grant a mistrial, but informed the jury that the question was improper and instructed it to disregard the question. He asked if any of the jurors could not do so, and none of the jurors responded. Williams’ attorney then renewed his mistrial motion.

The grant or denial of a motion for mistrial is within the sound discretion of the trial court. We will not interfere with the trial court’s exercise of that discretion unless “it is clear that a mistrial is essential to the preservation of the right to a fair trial.” “Improper reference to a defendant’s silence . . . does not automatically require reversal.” In this case, the witness never responded to the prosecutor’s question, so there was no testimony that Williams had previously invoked his right to remain silent. Moreover, the court gave curative instructions and specifically asked whether the jurors could disregard the question. Under these circumstances, the trial court did not abuse its discretion in denying the mistrial motion or in refusing to grant a new trial.

3. During closing argument, the prosecutor argued that

the law allows you to presume that [Williams’] recent possession of these stolen items, from that you can infer his guilt. There has been no reasonable explanation. If you took each one of these things individually, if you say okay, all we found on him was coins, and ignore the jacket, ignore Roderick Snowden’s testimony, ignore this long convenient pry tool that was found in his crawl space, okay, that would be amazing. We probably wouldn’t be here if we had just found. . . .

Williams’ attorney then objected that the argument was “burden shifting,” and that Williams was not in possession of the jacket and screwdriver. The court overruled the objection, stating that counsel has “wide latitude” in closing argument.

Decided July 7, 2000

Reconsideration denied July 21, 2000.

Peevy & Lancaster, Douglas N. Fox, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Frank Ilardi, Assistant District Attorneys, for appellee.

“In closing arguments each side is permitted to make any argument which is reasonably suggested by the evidence.” The prosecutor’s argument was essentially a plea that the jury consider the evidence in its totality, and not in isolation. Although Williams could certainly argue that it was a mere coincidence that the screwdriver was found hidden in his crawl space and the stolen jacket was found hidden in the adjacent apartment, the prosecutor was entitled to urge the jury to consider the totality of the evidence in determining whether Williams was guilty of the offenses charged. Thus, the trial court did not err in overruling Williams’ objection.

Judgment affirmed.

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

        Benson v. State, 233 Ga. App. 58 (1) (503 SE2d 316) (1998). In its appellate brief, the State makes no argument whatsoever as to how the evidence was sufficient to support the convictions, but simply states that “[t]he jury was entitled to choose which witnesses they believed and which witnesses they did not.” We do not believe that this “argument” satisfactorily discharges the State’s duty to file a response brief in all criminal appeals, as required by Court of Appeals Rule 13.

       (Citation omitted.) London v. State, 235 Ga. App. 30, 32 (1) (c) (508 SE2d 247) (1998).

       See Moody v. State, 232 Ga. App. 499, 502 (1) (502 SE2d 323) (1998) (defendant’s actions during search showed consciousness of guilt and intent to exercise control over contraband).

       See Harris v. State, 222 Ga. App. 56, 58 (2) (473 SE2d 229) (1996) (whether hypothesis is reasonable is question for jury).

        Baker v. State, 238 Ga. App. 285, 288 (2) (518 SE2d 455) (1999).

        Dowdy v. State, 209 Ga. App. 95-96 (1) (432 SE2d 827) (1993).

       (Punctuation omitted.) Sims v. State, 213 Ga. App. 151, 152 (2) (444 SE2d 121) (1994).

       Although Williams complains that the curative instructions were not given until the next morning, he did not request curative instructions or move for a mistrial until the next morning. At the time the question was asked, his attorney simply objected to the question, and the trial court ultimately sustained this objection. Thus, Williams contributed to or acquiesced in any delay in giving the curative instructions. Moreover, it is questionable whether the mistrial motion was in fact timely, as it was not made contemporaneously with the objectionable question. See Stephens v. State, 232 Ga. App. 738, 739 (2) (503 SE2d 643) (1998). Nevertheless, it is not necessary to address this issue.

       See Zachery v. State, 158 Ga. App. 448, 449 (2) (280 SE2d 860) (1981) (affirming denial of mistrial motion where objectionable question not answered and curative instructions given).

        Durden v. State, 250 Ga. 325, 329-330 (6) (297 SE2d 237) (1982).


author: Barnes, Judge.

text:
    A00A0440.
    HESS v. TEXTRON AUTOMOTIVE EXTERIORS, INC.
    (536 SE2d 291)
   Barnes, Judge.

Brian Robert Hess appeals the grant of summary judgment to Textron Automotive Exteriors, Inc. (“Textron”). He contends the trial court erred by granting summary judgment because questions of fact exist on whether Textron had relinquished possession and control of its premises to an independent contractor.

Hess was injured after he fell through a skylight while working for an independent contractor on the roof of one of Textron’s buildings. Hess contends he was on the roof to install wire mesh guards over openings in the roof for air vents. He had completed his work on one of the guards when he stepped to the side and fell through one of the skylights to the top of an interior shed 35 to 40 feet below. The roof was constructed of corrugated sheet metal. Over 300 skylights were in the roof, and the skylights were made from corrugated fiberglass that was the same color as the roof. Consequently, it was difficult, if not impossible, to see the skylights while on the roof because they blended into the rest of the roof. Hess’s doctor testified that Hess suffered severe, permanent injuries to his leg and back. At least two other people fell through the skylights in the years before Hess’s fall, and Textron’s policy was to require anyone going on the roof to sign a paper warning them about the skylights.

After Hess filed suit, Textron answered and moved for summary judgment, contending that it was not liable to Hess because it had surrendered possession and control of the property to Hess’s employer, the independent contractor Corrosion Control Solutions, Inc. (“Control Solutions”). Finding that Textron had surrendered the premises to Control Solutions and that the contract between Textron and Control Solutions placed responsibility for workplace safety on Control Solutions, the trial court granted summary judgment to Tex-tron. Hess now appeals, alleging that the record does not support the trial court’s decision. We agree.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. In this state, when

an owner or occupier of land, by express or implicit invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

OCGA § 51-3-1. Nevertheless, a property owner who surrenders possession and control of the property to an independent contractor is not liable for injuries sustained on the property. Englehart v. OKI America, 209 Ga. App. 151 (1) (433 SE2d 331) (1993). This rule also applies when an owner surrenders possession and control of a portion of the property to an independent contractor. Towles v. Cox, 181 Ga. App. 194, 195 (1) (351 SE2d 718) (1986). Thus, if Textron actually surrendered possession and control of the roof to Control Solutions, it would have owed no duty to Hess and would not be liable for his injuries. McClure v. Equitable &c. Mgmt., 195 Ga. App. 54, 55 (392 SE2d 272) (1990). In these cases, liability depends upon possession and control of the premises (Kraft Gen. Foods v. Maxwell, 219 Ga. App. 211, 212 (1) (a) (464 SE2d 639) (1995)), and possession means having personal charge of or exercising the rights of management or control over the property in question. Towles v. Cox, supra, 181 Ga. App. at 196 (1).

Decided June 26, 2000

Reconsideration denied July 21, 2000

Burge & Wettermark, Van K. McCombs II, for appellant.

Textron supports its contention that it surrendered control of the premises to Control Solutions with a reference to 50 pages of the record. Indeed, this same reference is used to support most of Tex-tron’s factual arguments. Although the points Textron seeks to support may be included somewhere within these 50 pages of record, we have not found them. Instead, we find the record supports the opposite conclusion.

Even though most of Textron’s employees appear to have been absent on the day Hess was injured, Textron’s maintenance crews were on the premises and working on that day. Further, rather than surrendering possession of the premises, the record shows that Tex-tron continued to control the premises by limiting access to the roof from which Hess fell. According to Textron’s manager of maintenance, no one was allowed on the roof unless they were escorted by a Textron employee and signed off through Textron’s procedures.

No written contract existed that described the area in which Control Solutions was to perform its work. Instead, it received oral instructions on the work to be performed; a Textron representative accompanied Control Solutions’ president to the work area and told him what needed to be done. As far as Textron’s manager of maintenance was aware, no one told Control Solutions to work on the roof. Under this evidence, we cannot say, as a matter of law, that Textron surrendered control and possession of the premises to Control Solutions. Because a defendant moving for summary judgment based on an affirmative defense may not rely upon an absence of evidence in the record disproving the affirmative defense, Textron had the burden of proving this defense. Hodge v. SADA Enterprises, 217 Ga. App. 688, 691 (2) (458 SE2d 876) (1995). Based on the record before us and giving Hess the benefit of all reasonable doubts and construing the evidence and all inferences and conclusions therefrom in his favor (Moore v. Goldome Credit Corp., supra, 187 Ga. App. at 595-596), we cannot say that Textron met this burden. Accordingly, the grant of summary judgment to Textron must be reversed.

Judgment reversed.

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

Ellis, Easterlin, Peagler, Gatewood & Skipper, George M. Peagler, Jr., for appellee.


author: Johnson, Chief Judge.

text:
    A00A0965.
    CLARK v. THE STATE.
    (537 SE2d 742)
   Johnson, Chief Judge.

After a bench trial, Kenneth Roy Clark was convicted of possession of marijuana with intent to distribute and possession of marijuana with intent to distribute within 1,000 feet of a public housing project. He challenges the sufficiency of the evidence supporting both convictions, arguing that the state failed to prove that he intended to distribute the marijuana. Having carefully considered the evidence presented at trial, we agree that the evidence was legally insufficient. Therefore, we reverse the judgment of conviction as to possession with intent to distribute marijuana, remand the case and direct the trial court to enter a judgment of conviction on simple possession of marijuana under OCGA § 16-13-30 (j), and reverse the conviction as to possession with intent to distribute within 1,000 feet of a housing project.

On appeal, this Court views the evidence in a light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard set forth in Jackson v. Virginia.

In this case, a police officer was on patrol at 2:00 a.m. when she noticed Clark’s van parked behind a closed restaurant. The officer and her partner parked behind the van and approached it on foot. She walked to the passenger’s side and shined a flashlight into the van. Clark was sitting in the driver’s seat, a second person was in the passenger’s seat, and two other people were in the back of the van. The officer noticed that Clark had a plastic bag on his lap that he was trying to shove into the area between the console and the driver’s seat. She also noticed a cigar on the dashboard. The cigar had been cut open and the tobacco removed. According to the officer, that was “consistent with people getting ready to replace the tobacco with marijuana, [to] make a joint.” As the officers were questioning and attempting to detain Clark and the person in the front passenger’s seat, one of the van’s passengers opened a door and fled.

Police searched the van and found a plastic sandwich bag containing marijuana on the front passenger’s seat. A passenger had been sitting on the bag. They found another plastic bag containing marijuana between the driver’s seat and the console, a plastic bag containing marijuana between the rear seat and the side of the van where one of the passengers had been sitting, five plastic bags of marijuana inside the open console between the driver’s and passenger’s seats, and a cigarette roller and cigarette papers in the rear of the van where the passenger who fled had been sitting. The five sandwich-size bags found inside the console were “quarter bags”; the evidence shows that “quarter bags” are those which are one-quarter filled with marijuana. There was no testimony as to the amounts of marijuana contained in the other three bags. When asked whether the total amount found appeared to be more or less than an ounce, the officer replied, “I’m not really sure. I didn’t weigh it.” On cross-examination, the officer was asked if any cash was found on Clark. She replied, “No sir, I didn’t pat him down.” And when asked if beepers or anything else was found, she responded, “Not that I know of.” The officer, who had not been tendered as an expert, added that she decided to arrest Clark for intent to distribute because “five bags of marijuana to me is a little much for personal use.” The other officer involved in the arrest did not testify at trial, nor did any of the other passengers.

To support a conviction for possession with intent to distribute, the state must prove more than mere possession. Where, as here, a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except that of guilt. Although the evidence here was sufficient to prove possession, and Clark does not dispute that it was, the state failed to produce evidence excluding the reasonable hypothesis that Clark and his companions purchased the marijuana for their own use.

Police found eight sandwich bags containing marijuana in a van occupied by four people; six of the bags weighed a combined total of 1.1 ounces, and the weight of the other bags is unknown. Passengers were sitting on or next to several of the bags. The officer’s opinion that the quantity of drugs recovered seemed to be “a little much for personal use” is entirely consistent with Clark’s testimony that the person who fled was selling the drugs to him and his friends and with the reasonable theory that the van’s occupants intended to keep the marijuana for their own personal use. The fact that the marijuana was divided into separate sandwich-size bags is also consistent with the theory that the man who fled had so packaged the marijuana, and then sold or was in the process of selling the drugs to Clark and his passengers for their own use.

We point out that the state produced no evidence that Clark had scales, guns, cash, drug packaging materials, or a large quantity of marijuana. Nor did the state introduce any evidence of prior drug sales by Clark or any testimony that Clark was observed selling or attempting to sell drugs in this case. This case, in which four people were in possession of eight sandwich-size bags of marijuana, is clearly distinguishable from those cases in which one person alone possesses many individual packages or a large quantity of drugs. And this case is different from those in which the types and quantities of drug paraphernalia found suggest that the possessor intends to distribute rather than use the drugs. From the evidence presented, the trial court was not authorized to find beyond a reasonable doubt that Clark intended to distribute the drugs. Indeed, we note that in reaching its decision following the bench trial, the trial court expressed concerns about whether the state had proved the intent to distribute element of the crimes.

Because the state failed to prove Clark intended to distribute the marijuana, we reverse the conviction entered on the possession with intent to distribute charge brought under OCGA § 16-13-30 (j).

Inasmuch as the evidence was sufficient to support a conviction for the lesser included offense of simple possession, we remand the case with direction that conviction be entered on that offense and Clark be sentenced accordingly. Because the evidence indicates that the marijuana weighed more than an ounce, conviction of felony, versus misdemeanor, possession is authorized. Accordingly, the trial court is directed on remand to enter a conviction for felony possession under OCGA § 16-13-30 (j), inasmuch as it is authorized by the record.

Decided July 21, 2000.

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

At the same time, because OCGA § 16-13-32.5 (b) does not designate simple possession of marijuana within 1,000 feet of a housing project as a prohibited act, no conviction is authorized under that statute. Thus, the conviction based on that statute must be reversed.

Judgments reversed and case remanded with direction.

Smith, P. J., and Phipps, J., concur.

       OCGA § 16-13-30 (j).

       OCGA § 16-13-32.5 (b).

       Id.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Vickers v. State, 241 Ga. App. 452, 453 (527 SE2d 217) (1999).

        Anderson v. State, 225 Ga. App. 727, 728 (484 SE2d 783) (1997).

        Parris v. State, 226 Ga. App. 854, 856 (487 SE2d 690) (1997).

       See, e.g., Ward v. State, 195 Ga. App. 166, 168 (3) (393 SE2d 21) (1990) (evidence sufficient considering large amount of drug paraphernalia, including scales, 50 grams of individually packaged marijuana, guns, and $1,724); Allen v. State, 191 Ga. App. 623 (382 SE2d 690) (1989) (intent to distribute proven where car occupied by two people contained four pounds of marijuana, nine grams of crack cocaine, a handgun, and drug paraphernalia); Holbrook v. State, 177 Ga. App. 318, 321 (2) (339 SE2d 346) (1985) (distribution finding authorized where search revealed ten grams of cocaine, two chunks of hashish, four spoons with white powder residue, one pound of hashish, a container of marijuana, rolling papers, a cocaine analysis field kit, and $10,750 in cash); Allen v. State, 158 Ga. App. 691, 692 (2) (282 SE2d 126) (1981) (eight pounds of marijuana along with the scales upon which the marijuana was found authorized finding of intent to distribute).

       Compare King v. State, 238 Ga. App. 575, 576 (1) (519 SE2d 500) (1999) (evidence sufficient where defendant had prior drug sale conviction, expert testified that marijuana is typically sold in amounts of one to four ounces for personal use, and police recovered thirty-five pounds of marijuana and a book containing a list of initials and numbers).

       See, e.g., Holbrook, supra (paraphernalia included cocaine field-testing kit, cocaine-tainted spoons, rolling papers “and related drug paraphernalia”).

        See Anderson v. State, 215 Ga. App. 426, 427-428 (1) (451 SE2d 103) (1994) (physical precedent only); James v. State, 214 Ga. App. 763, 764-765 (1) (449 SE2d 126) (1994).

        Anderson, 225 Ga. App. at 729; Dyer v. State, 218 Ga. App. 879, 880 (1) (463 SE2d 718) (1995).

       See Smiley v. State, 241 Ga. App. 712, 713 (527 SE2d 585) (2000) (simple possession is lesser included offense of possession with intent to distribute).

        Anderson, 225 Ga. App. at 729; Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989).

       See OCGA § 16-13-2 (b), providing that possession of less than one ounce of marijuana is a misdemeanor. Although there is no testimony indicating the total weight of the marijuana, defense counsel stipulated to the admission into evidence of a Georgia Bureau of Investigation lab report showing that the total weight of six of the eight marijuana-filled bags was 1.1 ounces. Defense counsel stipulated to the report’s admission after the trial court opined that the weight issue might be relevant to the court’s consideration of lesser included offenses.


author: Blackburn, Presiding Judge.

text:
    A00A1033.
    SELF v. THE STATE.
    (537 SE2d 723)
   Blackburn, Presiding Judge.

Following a jury trial, James Self appeals his convictions of six counts of impersonating a police officer and three counts of aggravated assault. Self contends that: (1) the evidence was insufficient to support his convictions; (2) the denial of his motion to suppress his identification in a showup was erroneous; and (3) the denial of his motion to suppress the evidence was erroneous. For the reasons set forth below, we affirm Self’s convictions.

1. We have determined that

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

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewing the evidence, it reveals that, while claiming to be members of the Northeast Georgia Task Force, Self and an accomplice confronted a total of six individuals in two different incidents on the same day. Self held a shotgun and ordered several of the victims to the ground. Self also flashed a wallet badge at some of the victims. During their conversations in front of the victims, Self and his accomplice referred to each other as sergeant and lieutenant.

The first incident took place at approximately 3:00 a.m. on January 27, 1998, when Self and his accomplice went to an apartment occupied by four men. Self and his accomplice entered the residence yelling at the occupants to get on the ground. They identified themselves as police officers and said they were searching for drugs. The victims later discovered that some money and a green buck knife were missing. Officer Higginbotham responded to the victims’ call to police and started his investigation with the description of the suspects.

The second incident took place at approximately 10:30 p.m. on the same day. Self and two accomplices knocked on the victim’s apartment door. They identified themselves as undercover officers and questioned the victim about another individual. The victim’s neighbors came outside and were also questioned by Self and his accomplices, who again identified themselves as police officers. Officer Higginbotham also responded when the second group of victims called to report the incident. These victims gave a similar description of the perpetrators and were also able to give a description of the car the perpetrators were driving.

A few hours after the second incident, the victims called the police again to report that the perpetrators’ car was back in their parking lot. Officer Higginbotham responded and located the vehicle. While he waited for backup to arrive, he determined that the tag on the vehicle was registered to a pickup truck, not a passenger car. Officer Higginbotham recognized that two of the vehicle’s passengers fit the description given to him of the perpetrators. As the suspects exited the car, they were handcuffed and laid on the ground until the scene was secured. After the suspects were placed in separate patrol cars, the victims arrived and identified Self as one of the perpetrators.

(a) Self contends that, because the victims never believed that he was a police officer, the evidence is insufficient to support a conviction of impersonating a police officer. Self’s contention is without merit because the crime of impersonating an officer does not require that the victims actually be misled. The State must only show that Self intended to mislead the victims. OCGA § 16-10-23 provides, in pertinent part, that: “[a] person who falsely holds himself out as a peace officer or other public officer or employee with intent to mislead another into believing that he is actually such officer commits the offense of impersonating an officer.”

In the present case, Self identified himself as a police officer and an undercover officer to six individuals. He carried a gun, flashed a badge, and said he was looking for drugs. There can be no doubt that Self intended to mislead his victims into believing he was a police officer, and it is irrelevant whether his deception was effective. The evidence is sufficient to support Self’s conviction. See Murray v. State, 269 Ga. 871, 874 (4) (505 SE2d 746) (1998) (evidence that accomplice represented to victims that he and the defendant were police officers was sufficient to establish defendant’s guilt of impersonating an officer).

(b) Self contends the evidence is insufficient to support the aggravated assault convictions because the victims realized his gun was not loaded. The victims testified that there were shells in the gun and that Self only had to pump the gun to load a shell into the chamber. Additionally, they also testified that they thought they were going to get shot and that they were afraid.

Under these circumstances, there was sufficient evidence for the jury to conclude that the victims had a reasonable apprehension of receiving immediate, violent injury. See State v. Bolman, 222 Ga. App. 534, 535 (474 SE2d 721) (1996) (presence of deadly weapon “would normally place a victim in reasonable apprehension of being injured violently”).

2. Self contends that the trial court erred in denying his motion to suppress his identification because the on-the-scene showup was too suggestive.

“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.”

State v. Bowen, 231 Ga. App. 95 (498 SE2d 570) (1998).

Additionally,

[t]here is no per se exclusionary rule applied to preindictment confrontations. Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include [(1)] the opportunity of the witness to view the criminal at the time of the crime, [(2)] the witness’ degree of attention, [(3)] the accuracy of the witness’ prior description of the criminal, and [(4)] the level of certainty demonstrated by the witness at the confrontation. (Citations and punctuation omitted.) Flores v. State, 228 Ga. App. 152, 153 (491 SE2d 86) (1997).

Huff v. State, 239 Ga. App. 83, 85 (1) (519 SE2d 263) (1999).

In the present case, the showup identification occurred approximately three and one-half hours after the second incident, and the three people who identified Self were the victims in the second incident. They testified that they talked face-to-face with Self for three to five minutes in conditions that were well lighted. The victims’ outside lights were on by their respective front doors where Self and the victims spoke. For the showup, Self was handcuffed in the back of a patrol car. Separately, each victim looked through the car window, and the officer shined a light into the car. The officer asked if the individual looked familiar to them. The three victims identified Self as one of the individuals who impersonated an officer.

Based on the foregoing,

[t]he trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed. See Hood v. State, 199 Ga. App. 774 (406 SE2d 120) (1991).

Johnson v. State, 209 Ga. App. 632, 634 (2) (434 SE2d 169) (1993).

3. In his final enumeration of error, Self contends that the trial court erred in denying his motion to suppress evidence obtained in the search of the car. He contends that the stop of the vehicle in which he was a passenger and his arrest were not supported by probable cause thereby causing the subsequent search of the vehicle to be illegal.

Decided July 21, 2000.

Adrian L. Patrick, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

(a) Officer Higginbotham testified he checked the vehicle’s license tag prior to stopping it and determined that the tag belonged to a pickup truck. Therefore, the potential violation of OCGA § 40-2-6 supported the stop of the vehicle. Additionally, “[a]n officer may conduct a brief investigatory stop of a vehicle if that stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Citation and punctuation omitted.) Howard v. State, 233 Ga. App. 861 (505 SE2d 270) (1998). The vehicle in question was described by the victims of a crime, and the police were notified that the vehicle was back at the scene of the crime. The officer located the vehicle within moments of being notified of its whereabouts, and the officer testified as to the unusually slow movements of the vehicle. Under these circumstances, the trial court’s determination that the stop of the vehicle was valid was not clearly erroneous. See Bowen, supra.

(b) Upon approaching the vehicle, the officer was able to identify two of the vehicle’s occupants as fitting the description of the perpetrators. That determination, as well as the identification of the vehicle and the location of the vehicle, supports the trial court’s determination that probable cause existed for Self’s arrest.

Whether the arrest was constitutionally valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [person suspected] had committed or was committing an offense.

(Citation and punctuation omitted.) Mitchell v. State, 200 Ga. App. 146, 147 (1) (407 SE2d 115) (1991). The trial court’s findings were not clearly erroneous, and Self’s motion to suppress was properly denied.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       Aggravated assault occurs where a person commits an act that places another in reasonable apprehension of immediately receiving a violent injury, which is aggravated by the use of a deadly weapon. OCGA §§ 16-5-20 (a) (2); 16-5-21 (a) (2).


text:
    A00A1194.
    CARTER v. THE STATE.
    (537 SE2d 706)
   Johnson, Chief Judge.

Late at night on September 7, 1996, Tonya Davis and Ira Gresham were walking near James Carter’s home when Carter pulled up in a car beside them. Carter and Gresham began arguing, Carter got out of the car, and a fight ensued. Davis tried to intervene, and Carter stabbed both Davis and Gresham with a knife. Carter fled from the scene. Several days later, he was arrested for the stabbings. The day after his arrest, Carter was released from jail on a bond.

Two and a half months later, on the night of November 22, Davis and her friend Dubie Lewis were walking near Carter’s home when Carter again pulled up in a car. Carter got out of the car and walked toward Davis and Lewis. He had a knife and threatened to kill Davis and others because, he said, he was going to jail for the prior stabbings. Carter then grabbed Davis, repeatedly swung and pointed the knife at her, forced her into his car, and then drove around the area while continuing to threaten Davis with the knife. A police officer eventually stopped the car and arrested Carter.

Based on the September stabbings, a two-count indictment charged Carter with aggravated assault against Davis and aggravated assault against Gresham. A separate indictment, based on the November incident, charged Carter with the aggravated assault and kidnapping of Davis. The indictments were tried together before a jury, which found Carter guilty of all charges.

Carter appeals from the convictions. He argues that the evidence is insufficient to support his aggravated assault conviction for the September stabbing of Davis and that the court erred in joining the indictments for a single trial. Because the arguments are without merit, we affirm Carter’s convictions.

1. Carter contends that he had no intent to stab Davis during his fight with Gresham and that he only inadvertently stabbed her when she tried to stop the fight. Thus, he concludes, there is insufficient evidence to support his aggravated assault conviction for stabbing Davis. The contention is unpersuasive for two reasons.

First, contrary to Carter’s claim, the evidence does not mandate a finding that he stabbed Davis inadvertently. The evidence shows that Davis got between Carter and Gresham to break up their fight, that she turned her back to Carter, and that she was facing Gresham when Carter stabbed her in the back. Based on that evidence, the jury could have found that Carter intentionally stabbed Davis.

Second, even if Carter inadvertently stabbed Davis, the jury still could have found him guilty of aggravated assault under the doctrine of transferred intent. Under that doctrine, when an unintended victim is injured because of an unlawful act directed against someone else, the law transfers the original intent from the one against whom it was directed to the one who actually suffered from it. In this case, the jury could have found that Carter’s unlawful intent to stab Gresham was transferred to Davis when he inadvertently stabbed her in the back as she intervened in the fight.

We do not know upon which basis the jury found Carter guilty of aggravated assault for stabbing Davis. But on either basis there was sufficient evidence to support the jury’s finding of guilt beyond a reasonable doubt.

2. Carter complains that the court abused its discretion in joining the indictments for trial. Contrary to the complaint, we find no error in the joinder of the indictments.

Offenses may be joined for trial if they are based on conduct which is so similar that it shows a common scheme, plan, bent of mind, or modus operandi. Here, Carter’s conduct during both the September and November incidents was sufficiently similar to show a common scheme, plan, bent of mind, and modus operandi. Both incidents occurred late at night near Carter’s home. Both times Davis was walking with a male companion when Carter stopped beside them in a car. And in both incidents Carter got out of the car and attacked Davis with a knife. Because Carter’s similar conduct during both incidents evinced his common scheme, plan, bent of mind, and modus operandi, the trial court did not abuse its discretion in joining the indictments for trial.

Moreover, offenses may be joined for trial where they constitute a series of connected acts. In the instant case, Davis testified that during the November incident, Carter threatened to kill her and others because he was going to jail anyway for the September stabbings. Thus, the November attack on Davis was connected to the prior attack, and the court properly exercised its discretion in joining a series of connected acts for trial.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Decided July 21, 2000.

Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

       See Weathers v. State, 160 Ga. App. 581 (1) (287 SE2d 565) (1981).

         Happoldt v. State, 267 Ga. 126, 127 (1) (b) (475 SE2d 627) (1996).

       See Harris v. State, 233 Ga. App. 696, 697-698 (1) (505 SE2d 239) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Smith v. State, 225 Ga. App. 553 (1) (484 SE2d 515) (1997) (physical precedent); Johnson v. State, 213 Ga. App. 194 (1) (444 SE2d 334) (1994).

       See Smith v. State, 199 Ga. App. 410, 411 (2) (405 SE2d 107) (1991).

        Wilcox v. State, 271 Ga. 544, 545-546 (2) (522 SE2d 457) (1999).

       See id. at 546 (2).


author: Phipps, Judge.

text:
    A00A1247.
    GRIMES v. THE STATE.
    (537 SE2d 720)
   Phipps, Judge.

Kenneth Leon Grimes was found guilty of 13 counts of forgery in the first degree. In this appeal, Grimes asserts that the trial court erred in its recharge of the jury and also disputes the sufficiency of the evidence as well as the effectiveness of his trial counsel. After reviewing each of these issues, we affirm.

When viewed in the light most favorable to the verdict, the evidence established that Grimes, along with co-conspirator Denise Dixon, purchased about $200 worth of merchandise from Pep Boys using counterfeit bills. Store clerk Crystal Goodwin noticed that as Grimes and Dixon shopped they both appeared extremely nervous. Goodwin observed that Dixon’s hands were heavily wrapped in bandaging. At the check-out register, Goodwin became more suspicious when Dixon produced a large sum of cash that appeared to have been washed. While at the check-out, Grimes instructed Dixon to be sure to get a receipt. Goodwin set aside the bills in a slot next to the customer service desk. At the end of her shift, Goodwin and her supervisor examined the bills closely and decided they were counterfeit. Pep Boys then contacted the United States Secret Service which began an investigation.

Secret Service Agent Scott Trew determined that the bills at issue were, in fact, counterfeit. He and Secret Service Agent Todd Kennedy interviewed Grimes. Initially, Grimes denied knowing anything about the counterfeit bills. But in a subsequent interview, Grimes admitted having picked up the counterfeit bills for Dixon, his then live-in girlfriend, from a man who had received them in a drug deal. Grimes knew when he obtained the bills that they were counterfeit. In a written statement, Grimes admitted accompanying Dixon to Pep Boys, then later proceeding to a different Pep Boys’ location to procure a cash refund for the merchandise purchased with the counterfeit bills. Agent Kennedy explained that the process Grimes followed is a typical method by which counterfeit bills are placed into circulation and exchanged for genuine currency.

1. Grimes contends that the trial court erred in its recharge to the jury. He claims that the court impermissibly injected its opinion by providing the jury with numerous examples about the distinction between actual and constructive possession.

The jury had asked for a reexplanation of constructive possession. To comply with that request, using the pattern charge, the court gave the legal definitions of actual and constructive possession. The court then provided a few simple examples from everyday life to illustrate the two terms.

When a trial court correctly instructs the jury on the law but an exception is made to a hypothetical illustration offered by way of explanation, unless a showing is made that the illustration confused or misled the jury, this court will not narrowly scrutinize that illustration. Here, no such showing has been made. In any event, since the determinative issue was whether Grimes was a party to the crime, the illustrations on possession could hardly have misled or confused the jury. Contrary to Grimes’s claims, the jury charge as a whole, including the recharge, was correct and not misleading. Nor did the recharge express or intimate any opinion by the trial court concerning any matter.

2. Grimes contends that the evidence was insufficient to support a finding that he participated in the crime of forgery as opposed to merely being present at Pep Boys. He further asserts that the State failed to prove that the counterfeit bills he picked up were the ones used at Pep Boys and that the counterfeit bills turned over to federal agents were those used by Dixon.

Grimes’s argument overlooks two points: that a party to a crime may be held fully culpable for committing it and that a conviction for forgery can hinge on circumstantial evidence. A party to a crime may be prosecuted and convicted for the commission of the offense regardless of whether anyone else was prosecuted. Forgery in the first degree requires uttering or delivering such writing. Proof of uttering is met by evidence that the defendant offered to pass a forged writing to another person, declaring or asserting, directly or indirectly, by words or actions, that it was good. Thus, an intent to defraud, coupled with the possession of an altered writing and delivery thereof, is sufficient to prove forgery in the first degree.

Decided July 21, 2000.

Cindi T. Yeager, for appellant.

Patrick H. Head, District Attorney, Andrew J. Saliba, Maria B. Golick, Assistant District Attorneys, for appellee.

Here, the evidence showed at a minimum that Grimes was a party to the crime of forgery. Grimes admitted that before the Pep Boys venture, he had met a friend of Dixon’s at a prearranged location to obtain the counterfeit bills. While at Pep Boys, Grimes reminded Dixon to get a receipt. Later, using that receipt, Grimes went to another store operated by Pep Boys where he exchanged the merchandise for a cash refund. Construed in a light most favorable to the verdict, this evidence was sufficient to authorize a jury to find Grimes guilty beyond a reasonable doubt of committing forgery.

3. On appeal, Grimes contends, for the first time, that his trial counsel rendered ineffective assistance of counsel.

An ineffectiveness claim must be asserted at the earliest practicable moment and before appeal when the opportunity to raise such claim is available. The failure to do so results in a waiver of that issue. Here, new counsel was appointed in time to file a timely notice of appeal but did so without first filing a motion for new trial or otherwise seeking an evidentiary hearing on any claim of ineffective assistance of trial counsel. As a consequence, this claim is procedurally foreclosed.

Judgment affirmed.

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

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 136 (2nd ed. 1991).

        Nobles v. State, 201 Ga. App. 483, 484 (1) (411 SE2d 294) (1991).

       Id.

        Hall v. State, 239 Ga. 832, 833 (2) (238 SE2d 912) (1977).

       See Bean v. State, 239 Ga. App. 106, 111 (7) (521 SE2d 19) (1999).

       OCGA § 17-8-57.

        Dyous v. State, 195 Ga. App. 99 (2) (392 SE2d 730) (1990).

       OCGA § 16-2-21.

       OCGA § 16-9-1 (a).

        Taylor v. State, 128 Ga. App. 13 (195 SE2d 294) (1973).

        Heard v. State, 181 Ga. App. 803 (2) (354 SE2d 11) (1987).

       See Grant v. State, 227 Ga. App. 243, 245 (488 SE2d 763) (1997) (evidence of acting as an accessory before fact needed to prove defendant was party to crime).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Simpson v. State, 238 Ga. App. 109, 112 (2) (517 SE2d 830) (1999).

        Howard v. State, 233 Ga. App. 724, 729-730 (7) (505 SE2d 768) (1998).

        Luke v. State, 236 Ga. App. 543, 544 (3) (512 SE2d 39) (1999).


text:
    A00A1360.
    PRYER v. THE STATE.
    (537 SE2d 717)
   Johnson, Chief Judge.

Rodney Jerome Pryer appeals from his conviction of armed robbery, burglary, and possession of a firearm during the commission of a felony, all resulting from a home invasion. Pryer contends the evidence was insufficient to support the jury’s verdict and the trial court erred in denying his motion to sever. Because the evidence was sufficient to support the verdict and because Pryer has failed to show actual harm in trying him with his co-defendants, we affirm his conviction.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on December 21, 1994, Frank Watts and Mike Vasser were in Watts’ apartment when both doors were kicked in and six armed men entered. All the men had guns drawn and demanded money. Watts, who was in his kitchen, recognized co-defendant Chris Fortune from the neighborhood and saw Pryer and co-defendant Torri Odim come in behind Fortune. Watts specifically identified Pryer as one of the men who came down the hallway to the kitchen, pointed his gun at Watts and told him to lie down. Watts was positive in his identification of Pryer.

Watts’ 17-year-old daughter Emmanuelle Spears was in the bedroom with her 12-year-old sister and heard the entry. She stepped into the hall and saw Pryer, Odim and Fortune. She recognized Odim and Fortune from the neighborhood. Spears testified that all three men had guns. Spears then locked herself and her sister in the bedroom. They climbed out the window, and Spears called 911. While talking to the police, Spears observed several men flee the apartment.

Responding to the call, Officer Barge noticed a car come out of the apartment complex, then back up behind a tree line where he could not see it. As Barge was turning into the apartment complex, the other car was backing up on the other side of a creek. Barge radioed a description of the car to other officers in the area and told them he believed the driver of the car was trying to hide from him.

When he arrived at Watts’ apartment, Barge found Watts and Vasser very excited and upset. Spears and her sister, also agitated, returned to the apartment, and all four victims began describing the assailants and their clothing. During this conversation, Barge heard over his radio that another officer had spotted and stopped a car matching Barge’s description of the car seen leaving the apartments.

When this officer spotted a vehicle matching the description given by Barge and traveling on the road indicated by Barge, he checked the license plate and discovered the plate was registered to another car. After turning on his blue lights to stop the car for this violation, the officer saw a lot of activity in the car. The car finally pulled over to a stop. There were six men in the car. One ran, taking something with him, before the officer could take them all into custody. The officer found a nine-millimeter handgun, fully loaded and cocked, and a crumpled $50 bill in the vehicle. Four hundred dollars had been taken from Watts in the robbery.

Officer Barge brought Vasser and Spears to the location of the stop. Both identified the five men as the robbers, and Spears called Fortune by name. Watts had stayed at his apartment with his younger daughter, who was very upset. He later went to the police station where he identified the men as the robbers.

At trial, co-defendants Alvin McDowell and Karien Hodges testified that Pryer participated in the robbery and had a gun. Pryer testified that he was in the car but never got out of the car. According to his testimony, he and one of the co-defendants left Odim and parked the car to smoke crack cocaine. He denied owning a gun or knowing anything about the home invasion. He further testified that he was not wearing any of the clothing described by the victims. He points to a number of discrepancies in both the victims’ testimony and his co-defendants’ testimony.

The issue of which version of these events to believe was for the jury, which resolved the credibility issue in favor of the state. This court does not weigh the evidence or determine witness credibility; we only determine the sufficiency of the evidence. The evidence was sufficient under Jackson v. Virginia.

2. Pryer next claims the trial court erred in denying his motion to sever his trial from Odim’s. It is well established that the decision whether to grant a motion to sever in a nondeath penalty case is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. We find no such abuse in this case.

The burden is on Pryer to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice and a denial of due process in the absence of severance. Pryer failed to make such a showing. The record clearly demonstrates that Pryer and Odim were jointly indicted for the same offenses, which involved the same witnesses, and the evidence indicated that they acted in concert in committing the home invasion.

Pryer claims evidence admitted to convict Odim harmed him. Specifically, he alleges that “his conviction was the result of identification testimony impermissibly bolstered or confused with Spears’ testimony concerning her familiarity and identification of co-defendants. . . .” Pryer also claims that Odim’s reputation as “Triggerman” and his affinity for firearms led to the jury’s determination that Pryer had a gun in light of the conflicting evidence that Pryer did not possess a gun. These arguments lack merit. While the victims recognized Odim from the neighborhood and while there was evidence that Odim was nicknamed “Triggerman,” this testimony did not harm Pryer. The victims also positively identified Pryer as one of the gunmen who entered the apartment, and his co-defendants testified that Pryer was involved in the home invasion and had a gun. In addition, contrary to Pryer’s assertion, the evidence did not show that his participation in the home invasion was any less strong than Odim’s.

Decided July 21, 2000.

Morriss, Lober & Dobson, Bruce F. Morriss, Daniel Shim, for appellant.

Pryer also asserts he was harmed due to the existence of antagonistic defenses. The mere fact that a co-defendant’s defenses are antagonistic is insufficient to warrant separate trials. A showing of harm is necessary. Pryer has made no such showing. His complaint on appeal that he was not able to introduce evidence that he only had $14.15 in his possession at the time of his arrest does not show the requisite harm. At trial, Pryer’s counsel joined in the objection to this evidence and joined the motion to exclude this evidence regarding whether money was actually taken from Pryer and his co-defendants and in what amount. One cannot complain of a trial court’s ruling which the party’s own trial tactics or conduct procured or aided in causing. The fact that Pryer alleged he did not have much money in his possession at the time of his arrest does not exculpate him from the offenses. The victims positively identified Pryer, and his co-defendants testified that Pryer participated in the home invasion. Pryer has failed to show how any defense used by Odim was antagonistic to his own defense so as to amount to a denial of due process.

Under the circumstances, we find no showing of actual prejudice, no denial of due process, and no abuse of discretion by the trial judge in denying the motion to sever.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

       OCGA § 24-9-80.

        Odim v. State, 228 Ga. App. 158, 159 (1) (491 SE2d 218) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Odim, supra.

         Dixon v. State, 268 Ga. 81, 83 (2) (485 SE2d 480) (1997).

        Butler v. State, 270 Ga. 441, 446 (4) (511 SE2d 180) (1999); Dixon, supra.

        Hall v. State, 143 Ga. App. 706 (1) (240 SE2d 125) (1977).

        Dixon, supra.

        Davis v. State, 266 Ga. 801, 802 (3) (471 SE2d 191) (1996).

        Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).

        Butler, supra at 447.


text:
    A00A1457.
    FLYNN v. THE STATE.
    (537 SE2d 752)
    Decided July 21, 2000.

      Emmett J. Arnold IV, for appellant.
   Johnson, Chief Judge.

Glenn Flynn was convicted of cocaine trafficking. He appeals, arguing that there is insufficient evidence that he knowingly possessed the cocaine found hidden in his luggage. The argument is without merit.

At trial, the state presented evidence that Flynn, a citizen of Great Britain, arrived at the Atlanta airport on a flight from Jamaica. Flynn picked up his bag from a baggage carousel and headed toward the airport exit. A customs inspector approached Flynn, who told the inspector that he was visiting a cousin. When Flynn could not give the name, address or telephone number of the cousin, the inspector decided to search Flynn’s bag. In the bag, the inspector found two pairs of shoes which had hollowed-out soles containing packages of white powder. The powder weighed more than 1,000 grams and had a purity of 67 percent cocaine.

Flynn testified that he knew the shoes were in his bag but denied knowing that they contained cocaine. He claimed that the shoes belonged to an acquaintance in Jamaica and that he had agreed to deliver the shoes to the acquaintance’s brother in Florida.

Flynn’s testimony that he did not know the cocaine was in his bag does not mandate a finding of insufficient evidence that he knowingly possessed the cocaine. Rather, whether or not to believe such testimony was a question for the jury. Based on all the evidence, the jury was authorized to resolve that question against Flynn and to find him guilty beyond a reasonable doubt of trafficking in cocaine.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

       See Straite v. State, 238 Ga. App. 420, 421 (1) (518 SE2d 914) (1999).

       See Fulton v. State, 192 Ga. App. 693, 695 (2) (385 SE2d 777) (1989) (sufficient evidence where defendant denied knowledge of cocaine found in his bag); Hamilton v. State, 185 Ga. App. 749 (1) (365 SE2d 542) (1988) (sufficient evidence where defendant denied knowing that substance he put in his car trunk was cocaine).


text:
    A00A1506.
    NAVICKY v. THE STATE.
    (537 SE2d 740)
   Phipps, Judge.

An indictment was returned charging Steven Navicky and Roberto Martinez with unlawful possession of cocaine and unlawful possession of marijuana. Following a bench trial, Navicky was convicted on both counts. This is his out-of-time appeal. He contends that the trial court erred in denying his motion to suppress the illegal drugs and that the evidence is insufficient to support the convictions. Finding no merit in these contentions, we affirm.

Evidence introduced at both the hearing on the motion to suppress and at the bench trial showed the following. At approximately 8:40 p.m. on May 28, 1996, Gwinnett County Police Officer Adams was patrolling the southbound lanes of Interstate 85 when he observed a van being driven so slowly that all other vehicles were passing it. Navicky was the driver, and Martinez was the front seat passenger. The van was owned by Navicky’s mother.

After Officer Adams began following the vehicle, he noticed that the headlights and taillights were on but the light which is supposed to illuminate the license plate was not working. Officer Adams then stopped the vehicle and summoned Navicky to the rear where he pointed out the defective light. When asked about the passenger in the van, Navicky informed the officer that he had just picked up Martinez at a restaurant and that they were en route to a friend’s house. Approximately five minutes after initiating the stop, the officer completed a driver’s license and vehicle registration check, returned the documentation to Navicky, and asked for consent to search the van. Navicky readily agreed. Martinez was then removed from the van. While Officer Adams conducted the search, Navicky and Martinez were placed in the patrol car of another officer who had arrived on the scene.

In the center console, he found a black glove. Inside the glove, he found three bags containing marijuana. Underneath the bags, he discovered a wadded-up paper towel. Inside the towel he found two bags of cocaine. He discovered another bag of cocaine inside a drink holder that was lodged between the driver’s seat and the driver’s door. Altogether, the six bags contained 26.9 grams of marijuana and two grams of cocaine.

1. Navicky contends that the trial court erred in denying his motion to suppress because the traffic stop was unlawful in that the officer observed no traffic violation.

This contention ignores OCGA § 40-8-23 (d). It provides:

Either a taillight or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear. Any taillight or taillights, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted.

(Emphasis supplied.)

When the officer initiated the traffic stop, the van’s headlights and taillights were on, but the tag light was not working. Therefore, the officer did observe a traffic violation. “ ‘It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense. (Cit.)’ [Cit.]” “ ‘[W]hen an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop. . . .’ ”

2. Navicky contends the trial court erred in denying his motion to suppress because his consent to the search was invalid.

There is no merit in this contention. Having effected a valid traffic stop, the officer was authorized to request consent to search the automobile. “The stop did not exceed the bounds of a brief investigative detention, so [Navicky’s] consent to search was not the product of an illegal detention. The evidence supports the court’s finding that his consent was freely and voluntarily given. [Cits.]”

3. Finally, Navicky challenges the sufficiency of the evidence to support his convictions based on the argument that the evidence does not adequately exclude the possibility that the drugs belonged to Martinez. We cannot agree.

Officer Adams testified that while questioning Navicky, he continually observed Martinez as a safety precaution. He testified that Martinez did not make the kind of movements that would have been required for him to have secreted the drugs in the various locations where they were found. Moreover, a presumption arises that a person in control of an automobile possesses contraband found therein. In addition, the law recognizes that possession may be actual or constructive, sole or joint. Viewing the evidence in the light most favorable to the prosecution, and resolving all reasonable inferences and issues of weight and credibility in favor of the convictions, we find the evidence sufficient.

Decided July 21, 2000.

Ronnie K. Batchelor, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Compare Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996) (physical precedent only); Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988).

        Taylor v. State, 230 Ga. App. 749, 750 (1) (a) (498 SE2d 113) (1998).

       Id. at 750-751 (1) (b) (noting that the Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996) test for determining whether a traffic stop is pretextual supplants the test set forth in Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987)).

        Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996).

        Taylor v. State, supra at 751 (1) (c); compare, e.g., Simmons v. State, 223 Ga. App. 781 (479 SE2d 123) (1996), and Smith v. State, 216 Ga. App. 453 (454 SE2d 635) (1995) (involving nonconsensual searches).

        Smith v. State, 240 Ga. App. 150, 152 (2) (522 SE2d 744) (1999).

        Price v. State, 240 Ga. App. 37, 38 (1) (522 SE2d 543) (1999).

        Richardson v. State, 239 Ga. App. 345 (521 SE2d 239) (1999).


author: ELDRIDGE, Judge.

text:
    A00A1790.
    KAPLAN et al. v. PULTE HOME CORPORATION et al.
    (537 SE2d 727)
   ELDRIDGE, Judge.

William Kaplan was an independent contractor working as a subcontractor for Kitchen & Bathworld, Inc. d/b/a Diversified Cabinet Distributors, a subcontractor of Pulte Home Corporation, the builder and developer of the subdivision where Kaplan was injured on the job. On December 28, 1995, Kaplan returned to the new home in Roswell to complete a pre-closing cabinet job. In preparation for closing that house and others, Pulte had its independent contractor’s subcontractor, America’s Best, Inc., pressure wash and hose down the garage and concrete driveways to wash away construction debris and mud from these homes. The temperature was below freezing and caused black ice to form on the driveways. Kaplan fell on the black ice in the driveway and was injured; he collected workers’ compensation for his injuries. Kaplan sued Pulte for his injuries. The trial court granted summary judgment to Pulte under two theories of defense: statutory employer’s workers’ compensation immunity and lack of superior knowledge by the owner. We do not agree and reverse.

1. The threshold issue is whether or not under the facts and circumstances of this case Pulte is entitled to the statutory employer’s immunity. We find that it was not.

Under OCGA § 34-9-11 (a), the statute provides in pertinent part that:

[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law . . . ; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits.

Pulte does not come under any of the three express exceptions to an employee’s right to sue a third party. It was not an employee of the same employer; it was neither an insurer nor a person who provided workers’ compensation benefits under a contract with the employer; nor was it a “construction design professional.” Warden v. Hoar Constr. Co., 269 Ga. 715, 716 (1) (507 SE2d 428) (1998). Thus, the only possible exception to tort liability for Pulte must come as a statutory employer. Id. at 716. See also OCGA § 34-9-8.

Generally, the acceptance of workers’ compensation benefits from the employer or its insurer triggers the bar of OCGA § 34-9-11 because such benefits are provided by an employer to the employee. Mann v. Workman, 181 Ga. App. 211, 212-213 (1) (351 SE2d 680) (1986), aff'd, 257 Ga. 70 (354 SE2d 831) (1987). However, under the facts of this case, Kaplan was an independent contractor-sole proprietor within the meaning of OCGA § 34-9-2 (e) and had no employer, only a principal. RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990). Further, Kaplan’s independent contractor’s contract with the subcontractor Kitchen & Bathworld compelled him to provide for himself and to pay for his own workers’ compensation coverage under OCGA § 34-9-2.2 as a sole proprietor treated as his own employee. See generally Sherwin-Williams Co. v. Escuadra, 224 Ga. App. 894, 896 (482 SE2d 505) (1997); Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 704-705 (409 SE2d 254) (1991). The sole proprietor must make an election to be treated as his own employee, give proper notice to his insurer of his election, and pay an additional premium for his own workers’ compensation coverage, which makes his workers’ compensation coverage a matter of contract to obtain workers’ compensation coverage. See generally OCGA § 34-9-2.2; Sherwin-Williams Co. v. Escuadra, supra at 896; Subsequent Injury Trust Fund v. Lumley Drywall, supra at 705. Thus, in accepting workers’ compensation benefits, Kaplan received what amounted to his own pre-paid benefits that he provided for himself as a sole proprietor electing to be treated as his own employee. Neither Kitchen & Bathworld nor Pulte provided workers’ compensation benefits to him, nor would either be liable to do so unless his own insurer failed to pay. See RBF Holding Co. v. Williamson, supra; Sherwin-Williams Co. v. Escuadra, supra at 896.

For purposes of OCGA § 34-9-8 (a), Kaplan was not the employee of either Pulte or Kitchen & Bathworld, because he was an independent contractor-sole proprietor of the subcontractor and not an employee of the subcontractor or even a subcontractor of the principal or general contractor. See OCGA § 34-9-2 (e); RBF Holding Co. v. Williamson, supra; Warner v. Hoar Constr. Co., supra at 716. An independent contractor is not entitled to workers’ compensation benefits from his principal. RBF Holding Co. v. Williamson, supra. As an independent contractor-sole proprietor, Kaplan was not an employee of anyone and not entitled to workers’ compensation benefits from anyone else other than himself, since he made the proper election with notice and premium payment. See Sherwin-Williams Co. v. Escuadra, supra at 896.

A principal [and] intermediate [Pulte], or subcontractor [Kitchen & Bathworld] shall be liable for compensation to any employee [(not Kaplan as an independent contractor-sole proprietor)] injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer [(none)].

OCGA § 34-9-8 (a).

As an independent contractor-sole proprietor of the subcontractor, Kaplan does not come within either the facts or law, regarding statutory employer’s immunity, because he is neither an independent subcontractor of the principal contractor nor an employee of a subcontractor; Kaplan had no employer. See OCGA § 34-9-8; Wright Assoc. v. Rieder, 247 Ga. 496, 498-499 (1) (277 SE2d 41) (1981). See also Warden v. Hoar Constr. Co., supra at 718 (Carley, J., concurring specially).

In dicta unnecessary to the holding, Sherwin-Williams Co. v. Escuadra, supra at 896, stated:

where a subcontractor has obtained workers’ compensation coverage for his employees and has properly notified his insurer of his election to be treated as an employee, he should also be treated as an employee for purposes of OCGA § 34-9-8 during the period his election is effective.

In this case, Kaplan was not a subcontractor of Pulte, and his election to protect himself under OCGA § 34-9-2.2 should not be treated as a forfeiture of his common law rights when OCGA § 34-9-11 (a) does not mandate such loss of the right to sue a third party tortfeasor and when OCGA § 34-9-8 affords him no benefits or protection. Long v. Marvin M. Black Co., 250 Ga. 621, 623 (300 SE2d 150) (1983); see Warden v. Hoar Constr. Co., supra at 718-719. If after electing to come under OCGA § 34-9-2.2; after giving proper notice to the insurer and paying the additional premium for his additional coverage; and after the insurer fails or refuses to pay benefits, then, and only then, should OCGA § 34-9-8 come into effect to provide him benefits from the statutory employer, Pulte, as suggested in Sherwin-Williams Co. v. Escuadra, supra at 896. However, when there is no quid pro quo through potential liability for workers’ compensation payments by Pulte, there is no reason to relieve it of tort liability. Long v. Marvin M. Black Co., supra at 623; see also Warden v. Hoar Constr. Co., supra at 716. Kaplan would lose common law rights without a corresponding benefit merely because he paid for his own workers’ compensation benefits as a matter of contract. See generally Long v. Marvin M. Black Co., supra at 623 (employee of the general contractor is not an employee of the “same employer” under the language of the act); Beers Constr. Co. v. Doyle, 230 Ga. App. 593, 594 (496 SE2d 921) (1998) (statutory employer limited to the express language of the act and no quid pro quo for immunity).

2. Kaplan contends that the trial court erred in granting summary judgment on the issue of superior knowledge. We agree.

The evidence showed that on December 26, 1995, Pulte ordered the independent contractor, America’s Best, to come and use pressure hoses to wash down the garages and driveways of three houses in the immediate area where Kaplan fell, as well as the house on Lot 123 E, where he fell. Black ice formed on the driveway, which caused a dangerous condition. Further, Pulte’s employees were in the immediate vicinity doing walk-through inspections and punch list work, and they had to unlock the doors of the house on Lot 123 E before 8:00 a.m. that day for Kaplan. Pulte’s practice was to salt and sand any icy driveway.

There was no direct evidence that prior to Kaplan’s fall the driveway was hosed down on December 28, 1995, by America’s Best. However, the work in the immediate area on that day and the prior two days on other houses created a reasonable inference that work was done or begun on Lot 123 E on that day, prior to Kaplan’s fall, because the driveway was covered with a sheet of ice and there had been no rain or snow. An invoice indicated that washing on Lot 123 E was completed on December 29, 1995. This gives rise to a reasonable inference favorable to Kaplan that the washing began on December 28 but was completed on the 29th as indicated by the invoice; the invoice did not state that the work began and was completed on the 29th. In fact, Robin Still of America’s Best had no actual knowledge of when work was begun or finished on any of the four houses; she testified as to what the records stated was supposed to occur or usually occurred, and not what did occur. All she testified to in her affidavit was what the invoices showed on their face and not when the work was actually done; she gave her opinion and interpretation as to when the work was completed as shown by the strike-through on the work orders. Such records showed that work on Lot 123 E was scheduled to be done on December 26, 1995, and was listed as not completed on December 26 through 28, 1995. The records showed that there were four driveways washed between December 26 and 29, 1995. However, the computer work order indicated that on December 27, 28, and 29, America’s Best’s employee Terry was scheduled to wash Lot 123 E, which was struck off on the 29th as completed. However, the work sheet dated December 27 showed employee Kendall was assigned the same work on Lot 123 E, which was struck off as completed with a notation of December 28. This conflict in the records created a material issue of fact as to when the work was begun and completed for jury determination.

The reasonable inference arose that either Pulte’s employees or a subcontractor washed down Lot 123 E at sometime prior to Kaplan’s fall, because this house was under Pulte’s exclusive control and Pulte ordered such washing be done with knowledge of the consequences in freezing weather. Also, the records gave rise to the inference that the pressure wash was begun by one employee, Kendall, on December 27 and 28 but was either completed or redone by another employee, Terry, on the 29th and that the pressure washing occurred prior to Kaplan’s fall. Any other inferences as to when the pressure washing occurred would be a negative inference against Kaplan, the respondent, which the trial court was not permitted to draw. OCGA § 9-11-56 (e). See also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981). Further, Michael Thompson, a Pulte employee, testified that he watered the grass of the houses ready to close on occasion but does not remember this date. The trial court erred in failing to give Kaplan such favorable inference.

Under OCGA § 51-3-1, Pulte has a nondelegable duty to.keep the premises and approaches safe and was liable for the acts or omissions of its independent contractors in this regard. Towles v. Cox, 181 Ga. App. 194, 196 (1) (351 SE2d 718) (1986). Thus, Pulte was vicariously liable for the acts and omissions of America’s Best in hosing down the driveway in freezing weather without sanding and salting to prevent the formation of ice, for failing to warn of the presence of ice, which it knew or should have known would form, and for failure to warn of the dangerous condition. See generally Feggans v. Kroger Co., 223 Ga. App. 47, 50-51 (1) (476 SE2d 822) (1996); Towles v. Cox, supra at 196. The knowledge of acts and omissions of America’s Best, which was active negligence, is imputed to Pulte as its knowledge as principal. Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 442 (1) (491 SE2d 881) (1997).

Decided July 21, 2000.

Fred J. Rushing, Jr., for appellants.

Wilson, Brock & Irby, Richard W. Wilson, Jr., James S. Teague, Jr., for appellees.

Further, on December 26, Pulte ordered America’s Best to wash down the four driveways for closing in freezing weather, which was dangerous conduct; however, in the exercise of ordinary care Pulte knew or should have known that water freezes below 32°F; that ice would form; that invitees would enter the premises before closing; and that Pulte had not provided for warning signs, salt, or sand to be put out to avoid the danger that it had created. Thus, Pulte had knowledge of what it ordered done, the consequences, and what precautions it did not take. Bruno’s Food Stores v. Taylor, supra at 443.

There clearly exists a jury issue as to the existence in Pulte of superior knowledge from its actual, constructive, and imputed knowledge of the dangerous condition caused by its acts and omissions. Kaplan testified that he had no knowledge of the black ice.

Judgment reversed.

Barnes, J., concurs. Blackburn, P. J., concurs in judgment only.