author: Barnes, Judge.

text:
    A00A1603.
    RANDOLPH v. THE STATE.
    (538 SE2d 139)
   Barnes, Judge.

A jury convicted Glenn Anthony Randolph of aggravated assault, false imprisonment, possession of a gun while committing a crime, and three counts of armed robbery. The trial court sentenced Randolph to serve a total of 30 years, followed by 30 years on probation. He enumerates five errors on appeal, arguing that the trial court erred (1) in failing to merge two of the armed robbery convictions for sentencing purposes; (2) in refusing to charge the jury on impeachment by an inconsistent statement; (3) in denying his motion to suppress the fruits of an illegal search and seizure; (4) in admitting a victim’s identification testimony; and (5) in allowing the state to comment improperly on Randolph’s failure to testify. For the reasons that follow, we affirm in part, vacate in part, and remand for resentencing.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

The evidence at trial established that two men wearing masks robbed an Auto Zone store at gunpoint. One of the men forced the manager to open the store safe and place approximately $1,400 in bills and rolled coins into a plastic bag. Meanwhile, the other robber pistol-whipped a customer, forced employees and customers to drop to the floor, and then made them get up and go into the back of the store, where the first man robbed the manager and a customer of their wallets. The robbers left through the front door, and after a short period of time, two of the Auto Zone employees went out the back door and circled around the building toward the front.

One of the employees saw the robbers leaving with a third man in a brown, four-door Buick. That employee, who testified that he had watched one of the robbers closely the entire time he was in the store, saw the robber pull off his mask as the car drove off. “I looked dead in his face and he looked at me,” he testified. He was 100 percent sure that Randolph was the robber he later identified in a photographic lineup, adding “I’ll never forget [those] eyes in my life.”

A short time later that afternoon, Marietta Police Officer Thomas stopped a green Ford Escort for speeding. The officer testified that he followed the car for about a mile at 65 mph in a 35-mph zone. Once the officer turned his lights on, the Escort driver slowed to 30 or 35 mph. The officer saw a lot of movement among the four people inside, which in his experience indicated that the occupants were trying to conceal something. The car finally stopped, and the driver, who was Randolph, handed the officer his license. Randolph stepped out of the car and consented to Officer Thomas’s request to search it. The officer called for backup because he could not search the car with the other three occupants inside and patted down Randolph to check for weapons. The officer felt two rolls of nickels in Randolph’s pocket and, with Randolph’s permission, removed and examined them. The nickels were shrink-wrapped in plastic, as if they had come from a bank or a store, which Officer Thomas testified was unusual. He returned the coins to Randolph and waited for additional officers to arrive.

When the backup arrived, the other passengers, Antavius Pitts, Sherief Chapman, and Charles Cooks, got out of the car and were separated. When patting down Cooks, one of the officers felt a plastic bulge in his crotch area, and he and Officer Thomas asked Cooks what it was. Cooks insisted several times that he had nothing in his crotch area, but the officers retrieved a brown plastic garbage bag from his pants containing $1,342 cash. Cooks then explained that he had won the money gambling and had not wanted to tell the officers about it because he did not want them to steal his money. The officers seized the money in order to begin condemnation proceedings based on Cooks’s statement that the currency constituted gambling proceeds. Randolph, Pitts, and Chapman denied knowing anything about the money.

Based on the large sum of money and the occupants’ movements inside the car after he activated his blue lights, Officer Thomas suspected the car might contain narcotics. A canine unit arrived and a thorough search uncovered no contraband, but because of several recent armed robberies in the area, Officer Thomas took pictures of the four men. He then gave Randolph a speeding ticket and released him, along with Pitts and Cooks. Chapman was taken into custody pursuant to an unrelated arrest warrant.

A detective testified that he prepared photographic lineups that included pictures of the four men and showed them to the only Auto Zone victim who had seen any of the robbers’ faces. The victim positively identified Randolph at the photo lineup in approximately four seconds, although he could not identify any of the other men.

Cooks testified for the State after pleading guilty to robbery, false imprisonment, and aggravated assault, for which he was sentenced to serve ten years in confinement and ten years on probation. On the morning of the Auto Zone robbery, he testified, Randolph and two other men picked him up in a stolen Buick. Randolph and another man had guns with them. The four men bought and smoked some marijuana, then Randolph said that he, Pitts, and Chapman were going “to go take care of some business,” meaning they were going to get some money. The three men left and returned thirty to forty minutes later, then left again because, as Randolph said, they had not finished their job. When the three men returned the second time, Randolph told Cooks, “Let’s go,” and the four men left in a green Ford Escort. Cooks did not know what happened to the stolen Buick. When the police began signaling the Escort to pull over, Randolph told Cooks to grab the bag of money under his seat and put it in his pants. Cooks admitted that he knew the money was illegal, though he did not know exactly where it came from. He explained that he hid it in his pants because he was trying to look out for his friends and he did not want anyone to go to jail. Once Randolph, Cooks, and Pitts were back on the road after the traffic stop and search, Randolph told Cooks the money had come from the Auto Zone robbery.

1. Randolph argues that his convictions for two of the armed robbery counts should merge and, therefore, the trial court erred in sentencing him separately for those counts. Count 1 accuses Randolph of using a handgun on September 15, 1997, to take from Glenn Jeffries $1,352 belonging to Auto Zone, and Count 5 accuses him of using a handgun on September 15, 1997, to take from Jeffries a wallet belonging to him. The State argues that, because Randolph robbed the victim of Auto Zone’s money at one end of the store, then robbed him of his wallet at the other end of the store, the two incidents were sufficiently separated by time and place as to constitute two separate robberies. We disagree.

Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as a cash drawer. See [OCGA § 16-8-41]. It follows that since there was only one victim, the employee, who was by this single transaction despoiled of his possession of both [his own money and his employer’s money], there was only one robbery.

Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975). No evidence in the record shows that these offenses were committed sequentially. Compare Denson v. State, 212 Ga. App. 883, 884-885 (3) (443 SE2d 300) (1994). When one victim is robbed of more than one item in a single transaction, only one robbery may be charged. Bland v. State, 264 Ga. 610, 612 (4) (449 SE2d 116) (1994). Consequently, the trial court erred in entering a separate judgment of conviction and sentence for armed robbery as alleged in Count 5 of the indictment. That judgment of conviction is vacated, and the trial court is directed to strike the sentence imposed on the fifth count. Snelling v. State, 215 Ga. App. 263, 268 (2) (450 SE2d 299) (1994).

2. Randolph contends the trial court erred in refusing to charge the jury on impeachment by a prior inconsistent statement, namely, Cooks’s first response to the police at the traffic stop, in which he denied having anything down his pants. The evidence showed that Cooks actually did have a plastic bag full of money in his crotch.

The first half of Randolph’s requested jury charge read as follows:

To impeach a witness is to prove the witness is unworthy of belief. A witness may be impeached by: a. Disproving the facts to which the witness testified; b. Proof of general bad character; c. Proof that the witness has been convicted of a crime involving moral turpitude; d. Proof of contradictory statements, previously made by the witness, as to matters relevant to the witness’s testimony and to the case. If it is sought to impeach a witness by “b,” “c,” or “d,” above, proof of the general good character of the witness may be shown. The effect of the evidence is to be determined by the jury.

The second half of Randolph’s impeachment charge dealt with attempting to impeach a witness by proof of contradictory statements previously made. The trial court declined to give the charge because it believed that the contradictory statement had to be an “official statement made and not just something you mouth off at the scene.”

While the trial court was incorrect in concluding that a contradictory statement must be “official” before a witness can be impeached (see Shropshire v. State, 226 Ga. App. 669, 671 (487 SE2d 384) (1997)), we find no error in its refusal to give Randolph’s impeachment charge. The requested charge included all of the methods of impeaching a witness and thus was not specifically tailored to the evidence. “A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” (Citation and punctuation omitted.) Seawright v. State, 172 Ga. App. 517, 518 (6) (323 SE2d 704) (1984). Moreover, the court charged the jury on witness credibility and impeachment generally.

3. Randolph asserts the trial court erred in denying his motion to suppress testimony regarding the rolls of nickels found in his pocket and the photograph taken of him during the traffic stop.

(a) First, regarding the nickels in his pocket, Randolph argues that “no consent [to search] can be deemed voluntary where a police officer is exerting physical force in the intimate regions of a person’s pants pockets and is at the same time asking for consent.” He cites no authority for this proposition, nor does he cite to any testimony showing the officer was “exerting physical force.”

The police officer who stopped Randolph for speeding testified both at the hearing on his motion to suppress and at trial that after asking Randolph to step out of the car, Randolph agreed to allow him to search the car. While waiting for backup to arrive, the officer patted down Randolph for weapons and asked him about a bulge in his front pocket. Randolph told him the bulge was rolls of coins and said he did not object to the officer removing and observing them.

Where the state seeks to justify a warrantless search on grounds of consent, it “has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U. S. 543, 548 (88 SC 1788, 20 LE2d 797) (1968). A valid consent eliminates the need for either probable cause or a search warrant.

(Citation omitted.) Dean v. State, 250 Ga. 77, 79-80 (2) (a) (295 SE2d 306) (1982). We must accept the trial court’s ruling at a suppression hearing as to the credibility of an officer’s testimony regarding a defendant’s consent to a search, unless that ruling is clearly erroneous. Id. “Insofar as the trial court’s ruling reflects a resolution of this question of credibility in favor of the State, we find no error [,] as such is supported by the evidence.” Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385) (1990).

(b) Randolph contends that being detained for 45 to 90 minutes after being legally stopped for speeding constituted an illegal seizure. Therefore, Randolph’s photograph taken at the end of that detention, as the fruit of that illegal seizure, should have been suppressed. If the photograph had been suppressed, the witness’s identification stemming from the photo lineup would also have been suppressed.

The United States Supreme Court has adopted a dual inquiry for evaluating the reasonableness of a lengthy investigative stop. United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605) (1985). First, we consider whether the officer’s action was justified at its inception, and second, whether it was “reasonably related in scope to the circumstances which justified the interference in the first place.” Id., citing Terry v. Ohio, 392 U. S. 1, 20 (88 SC 1868, 20 LE2d 889) (1968).

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

Sharpe, supra, 470 U. S. at 686.

[W]e note that [the officer’s] stop of appellant was based on probable cause, as he observed appellant committing a traffic violation and initially stopped and detained him for this reason. The fact that this was a probable cause stop is a significant factor that weighs heavily in the police’s favor.

(Emphasis in original.) Mallarino v. State, 190 Ga. App. 398, 402 (2) (379 SE2d 210) (1989). We concluded in Mallarino that a detention of 33 minutes from the initial stop to the time the defendant signed a consent to search and of an additional hour and a half to the time he was remanded to local police authorities was not unreasonable. Id.

Here, Officer Thomas initially stopped Randolph because he was driving 65 mph in a 35-mph zone. Randolph took a long time to pull over, and the officer saw “a lot” of shoulder movement among the four occupants of the car, which made him suspect that they were trying to conceal something. The occupants gave conflicting reports about where they had been and where they were going. After receiving Randolph’s consent to search the car five minutes after the stop, the officer called for backup to secure the three passengers while he searched. After the backup officers arrived five to ten minutes later, one of them discovered a plastic bulge in Cooks’s crotch during a weapons pat-down. Cooks eventually told them he made the money gambling, an illegal activity, and the police confiscated the funds. Believing illegal narcotics might be present in the car, which had not yet been searched, Officer Thomas requested a canine unit, which arrived ten to fifteen minutes later. Although the dog indicated that it smelled contraband, the officers found no illegal substances. After talking to other detectives about recent armed robberies in the area, Officer Thomas photographed the four men for possible identification by the robbery victims. He then issued a speeding ticket to Randolph, and the men left the scene.

Under these circumstances, we conclude that the length of the investigatory stop was not unreasonable. The trial court did not err in denying Randolph’s motion to suppress his photograph, which led to his subsequent identification by one of the robbery victims. Round-tree v. State, 213 Ga. App. 793, 794 (446 SE2d 204) (1994); Mallarino, supra, 190 Ga. App. at 402.

4. Randolph contends that his identification by the State’s sole eyewitness was tainted by an impermissibly suggestive photo lineup. He asserts that his picture, in the center of the six-photo lineup, was the only one that matched the victim’s description of a light-skinned “similar to Hispanic” male with long hair.

The test employed in such cases “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (3) (378 SE2d 888) (1989). Further, when evaluating the likelihood of misidentification, courts must consider: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’s degree of attention, (c) the accuracy of the witness’s prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the identification. Id. at 260-261.

In this appeal, the victim testified that he had his eye on Randolph the whole time he was in the store; while the robber wore a mask, the victim watched the robber “dead in his eyes the whole time.” Immediately after the robbers left the store through the front door, the victim ran out the back and around the building, where he saw Randolph inside his getaway car taking off his mask. He was 100 percent sure of his identification, testifying that he would never in his lifetime forget Randolph’s eyes. He positively identified Randolph from the photo lineup in “approximately four seconds.”

Considering these factors, we conclude that under the circumstances of this case, we find no substantial likelihood of irreparable misidentification. The trial court did not err in denying Randolph’s motion to suppress the victim’s identification of Randolph as one of the robbers.

5. Finally, Randolph argues that the trial court erred in overruling his objection to a portion of the State’s closing argument, as follows:

[THE STATE]: The rolled nickels in Mr. Randolph’s pocket: haven’t heard any explanation for those. And remember the police officer says: Yeah, that was weird.
[DEFENSE COUNSEL]: Let me interpose an objection to that last comment.
[THE STATE]: Your Honor, I can argue evidence that’s been un-rebutted.
THE COURT: Well, the jury will remember the evidence.

Randolph’s claim of error on appeal, that the State improperly commented on his constitutional right to remain silent, is beyond the scope of the objection made at trial, for which no ground was given. Therefore this issue was not preserved on appeal. Reddin v. State, 223 Ga. App. 148, 153 (6) (476 SE2d 882) (1996).

Judgment affirmed in part and vacated in part with direction.

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

Decided August 8, 2000

Reconsideration denied September 27, 2000

Ruth R Marks, for appellant.

Patrick H. Head, District Attorney, Ann B. Harris, Dana J. Norman, Assistant District Attorneys, for appellee.

       The trial court did not allow the State to present evidence to the jury that the dog indicated the possibility of drugs, because no drugs were found.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A1648.
    McBRIDE v. BROWN.
    (538 SE2d 863)
   Blackburn, Presiding Judge.

In this personal injury action, Jonathan McBride appeals the denial of his motion for summary judgment. He contends that Anthony Keith Brown is judicially estopped from bringing suit against him because Brown failed to list the underlying personal injury action in his previously filed Chapter 13 bankruptcy action. For the reasons set forth below, we affirm.

“In reviewing the grant or denial of summary judgment, a de novo standard of review is applied, and we view the evidence with all reasonable inferences and conclusions in favor of the party opposing the summary judgment.” Tudor v. Ford.

Construed in this light, the record shows that Brown was involved in an accident with McBride on April 25, 1997. On January 30, 1998, Brown petitioned the bankruptcy court for relief under Chapter 13 of the Bankruptcy Code. Brown did not identify the McBride personal injury action as a possible asset in the petition. However, Brown did list a workers’ compensation claim based on the McBride accident in his initial Chapter 13 filing. On March 11,1998, Brown apprised those present at a bankruptcy creditors’ meeting of this personal injury claim as indicated by the trustee’s notes. Brown’s Chapter 13 proceeding was dismissed, however, on June 30, 1998, due to his default on the agreed-upon payment schedule.

Brown then tried to correct his Chapter 13 petition to reflect the personal injury claim as an asset by amendment, filed June 28, 1999. On September 1, 1999, the bankruptcy court denied Brown’s motion to reopen his bankruptcy case, because there was no defect in the procedure or error in the dismissal itself, as required to vacate a dismissal order under Bankruptcy Rule 60. Creditors were not harmed under these circumstances, and Brown did not benefit from his initial nondisclosure, as his bankruptcy action was dismissed. The bankruptcy court did not find that Brown acted in bad faith or that he deliberately attempted to conceal his assets from creditors. Unlike cases where no attempt was made to correct the omission of pertinent information concerning a potential tort claim, the trustee was quickly informed of Brown’s potential personal injury action.

Decided September 6, 2000

Reconsideration denied September 27, 2000

Brennan, Harris & Rominger, Mason White, James D. Kreyenhuhl, for appellant.

Robert S. Kraeuter, for appellee.

Although judicial estoppel applies in situations where a party takes contrary positions in separate legal actions,

[d]istinguishable are those cases where the debtor moved to reopen the bankruptcy proceeding to amend the asset schedule to include the tort claim, for then the proceeds of the claim would have inured to the benefit of the creditors, and the inconsistency of declaring that no such asset existed would have been cured through amendment.

Wolfork v. Tackett. See also Clark v. Perino; Moore v. Bank of Fitzgerald; Johnson v. Trust Co. Bank.

The heart of estoppel dictates that a party “may not assert a position in a judicial proceeding which is inconsistent with a position successfully asserted by it in a prior proceeding.” Wolfork, supra at 633. Therefore, this case is distinguishable from traditional judicial estoppel claims because Brown did make an attempt to remedy the omission through amendment which the bankruptcy court denied, and he did not benefit from the nondisclosure at the expense of his creditors under the facts of this case. Id.

Based on the foregoing, the trial court did not err in denying McBride’s motion for summary judgment.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Tudor v. Ford, 242 Ga. App. 573 (530 SE2d 474) (2000).

        Wolfork v. Tackett, 241 Ga. App. 633, 634 (526 SE2d 436) (1999).

        Clark v. Perino, 235 Ga. App. 444, 445-446 (1) (509 SE2d 707) (1998).

        Moore v. Bank of Fitzgerald, 225 Ga. App. 122 (1) (483 SE2d 135) (1997).

        Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651-652 (478 SE2d 629) (1996).


author: Eldridge, Judge.

text:
    A00A2188.
    McBRIDE v. THE STATE.
    (539 SE2d 201)
   Eldridge, Judge.

We granted defendant Harry Wayne McBride’s application for discretionary review in this drug case involving the failure to use a turn signal under OCGA § 40-6-123. Defendant now appeals the superior court’s denial of his motion to suppress. The only testimony at the suppression hearing was that of the arresting officer, a Liberty County sheriff’s deputy, then “working traffic and DUI’s” on routine traffic patrol. The deputy testified that shortly after midnight on October 17,1998, he was attempting to turn left out of an area convenience store’s parking lot into the northbound lane of the adjacent roadway. At that time, he observed the defendant at an intersection about 25 yards away as he turned right into the roadway’s southbound lane without signaling. In response, the deputy initiated a traffic stop by activating his blue lights; however, the defendant failed to stop immediately, stopping the Nissan pickup he drove over a quarter of a mile farther down the road. When the deputy got to defendant’s vehicle on foot, he found the defendant behind the wheel. A young woman sat in the passenger’s seat. The deputy advised the defendant that he had stopped him for failure to use his turn signal at the intersection and that “[he] was just going to write him a warning citation and check his driver’s license.” The deputy further testified that he questioned the defendant and the 14-year-old female, and each stated they were coming from the home of an individual the deputy personally knew to be involved in drug activity. The deputy described the defendant and his passenger as nervous and indicated that after a backup officer arrived on the scene, he did a free air search of defendant’s pickup using his drug dog. Thereafter, the drug dog alerted on defendant’s door of the vehicle, and the deputy asked for and got the defendant’s oral and written consent to search. On searching the vehicle, the deputy found marijuana and cocaine, resulting in the instant charges against the defendant.

In his single enumeration of error, the defendant contends that the superior court erred in denying his motion to suppress for lack of an articulable suspicion supporting the stop, rendering it pretextual.

We disagree and affirm.

As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. (Cits.) Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996); Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994).

(Punctuation omitted.) Tukes v. State, 236 Ga. App. 77 (1) (511 SE2d 534) (1999). There is here no dispute that defendant turned right without signaling into the southbound lane of the road that the arresting deputy was preparing to turn onto. The vehicles were in close proximity to each other. It was dark, the time being late. While defendant correctly argues that there was no traffic to his rear and, in a literal sense, no oncoming traffic to his front, the circumstances were such that there was real and palpable danger — this given the potential for sudden “oncoming traffic” upon defendant’s failure to use his turn signal in tight quarters, significantly reducing the margin for attendant operator error. We conclude that under these circumstances, defendant’s use of his turn signal was required under OCGA § 40-6-123 (b). Since the deputy observed defendant’s failure to do so, a traffic violation, there was probable cause to stop defendant’s vehicle. Id. Even were the contrary true,

[i]f [an] officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute.

(Punctuation omitted.) State v. Whitfield, 219 Ga. App. 5, 7 (463 SE2d 728) (1995), citing McConnell v. State, 188 Ga. App. 653, 654 (374 SE2d 111) (1988). The record reflects that the arresting deputy acted in good faith in stopping defendant’s vehicle. Consequently, the investigative stop would have been proper in any event.

Further, the superior court specifically found that the traffic stop was not pretextual; that the deputy’s patrol car was in close proximity to that of the defendant; that there was probable cause to stop defendant’s truck for violation of OCGA § 40-6-123 (b); and that the drug dog’s free air alert on the driver’s side door of defendant’s vehicle was proper, as were the oral and written consents to search given by the defendant. “[A] trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” (Citations and punetuation omitted.) Tukes v. State, supra. Because the foregoing findings of the superior court are supported in the record, its denial of defendant’s motion to suppress upon claim of a pretextual traffic stop was not clearly erroneous.

Decided September 12, 2000

Reconsideration denied September 27, 2000

Ray C. Smith, for appellant.

J. Thomas Durden, Jr., District Attorney, Lewis M. Groover, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The defendant is charged with one count of possession of cocaine and one count of possession of marijuana, less than an ounce.

       OCGA § 40-6-123 pertinently provides:
      No person shall. . . change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. ... A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver [following to] the rear in the same direction or.. . approaching from the opposite direction.

      (Emphasis supplied.)


author: Ruffin, Judge.

text:
    A00A0985.
    TRAN v. THE STATE.
    (539 SE2d 862)
   Ruffin, Judge.

Tuyen Minh Tran appeals his convictions of possession of marijuana with intent to distribute and possession of cocaine with intent to distribute. Tran asserts seven enumerations of error, all of which lack merit. We therefore affirm.

Viewed in the light most favorable to the verdict, the record shows that Detective D. J. Rhodes of the DeKalb County Police Department received information from a confidential informant concerning a possible shipment of narcotics to North Carolina from a residence at 850 Ahearn Court in Suwanee, Georgia. On March 27, 1997, Rhodes passed this information on to Detective Dallas Stidd of the Norcross Police Department, who drove out to the residence that day. Stidd saw an Asian male in the yard washing a silver vehicle with a North Carolina license plate. Stidd reported this observation, along with the vehicle’s tag number, to Rhodes, who checked with her informant and then confirmed that “that was the vehicle — that that was the person . . . that the drugs were supposed to be going to in North Carolina.”

Around 8:00 the following morning, Rhodes, Stidd, and other members of a Gwinnett County Drug Task Force set up surveillance at the residence. When the surveillance team arrived, a red car and the silver vehicle from the previous day were at the house, and a white car arrived shortly thereafter. A man later identified as Son To exited the white car and went into the house. To and another man later identified as Tran came out of the house and began loading luggage into the red car. A third man, later identified as Tri Huynh, came out of the house carrying a white plastic bag, which he placed inside the silver car. Tran and Huynh then stood in the yard with walkie-talkies that they appeared to be testing. Detective Rhodes testified that drug couriers commonly use walkie-talkies to communicate with each other on the highway.

Both cars then left the residence. Tran was driving the red car, with To as a passenger, and Huynh was driving the silver car. Both cars were driven to a nearby gas station where they were refueled. The silver car left the gas station first and entered Interstate 85 northbound, then stopped at a nearby rest stop. The red car left the gas station approximately five minutes after the silver car and also entered 1-85 northbound. When the red car passed the rest stop, the silver car pulled out behind it and followed the red car from that point.

Investigator T. G. Bartik, another member of the task force who was following the cars, saw both cars change lanes without using a turn signal. Bartik relayed this information over the police radio. Deputy Paul Corso of the Gwinnett County Sheriff’s Office stopped the silver car, obtained Huynh’s consent to search it, and then led his drug-sniffing dog around it. The dog alerted by scratching the driver’s side door, and Corso reported the alert over the police radio. Corso then opened the car and found a plastic bag behind the driver’s seat that contained five large bags of suspected marijuana, three bags containing a total of 22.3 grams of cocaine, and a walkie-talkie. Corso advised over the police radio that he had found drugs in the silver car.

Meanwhile, the red car exited the interstate and headed toward Winder, Georgia. Stidd, who was tailing the red car, contacted Winder City Police, who pulled the car over. Stidd told Tran and To that they were not under arrest, but were being stopped for a traffic violation. Tran gave Stidd consent to search the car, and Stidd found a pistol belonging to To and a walkie-talkie, but no contraband. At that point, Stidd heard over the police radio that suspected contraband had been found in the silver car, and he read Tran and To their Miranda rights. Stidd asked Tran if he was traveling with any other vehicles, and Tran said no.

Investigator Bartik obtained a search warrant for 850 Ahearn Court, which, he learned, belonged to Tran. Stidd and other officers searched the house and found a safe, which Stidd opened using a key from a key ring that he had found in Tran’s car. Inside the safe were 22.3 grams of cocaine, $1,300 in cash, and six empty $1,000 money wrappers. In a cubbyhole in the master bedroom, police found 98.7 grams of marijuana, a scale, and several duffle bags containing marijuana residue.

Tran and Huynh were charged with one count of possession of marijuana with intent to distribute and one count of trafficking in cocaine. The jury found Tran guilty as charged on the marijuana count and guilty of the lesser included offense of possession of cocaine with intent to distribute.

1. In his first enumeration of error, Tran asserts that the trial court erred in denying his motion to suppress the evidence seized in the search of his car and home. Tran contends that the traffic stop of his car was illegal and pretextual, and that the results of the subsequent searches of his car and home must be suppressed as the “fruit of the poisonous tree.” Specifically, Tran argues that there is no evidence that he committed an illegal lane change or any other traffic violation that would have justified a traffic stop.

It is well settled that police may conduct a brief investigatory stop of a vehicle if they have specific, articulable facts that give rise to a reasonable suspicion of criminal conduct. At the hearing on the motion to suppress, Detective Stidd testified that he decided to have Tran’s car stopped because of “what I observed at 850 Ahearn Court, the dog alert, changing lanes without a blinker, all of those reasons.” Pretermitting whether Tran committed an illegal lane change, we agree with the trial court that the stop was justified for other reasons given by Stidd.

A confidential informant reported that drugs would be delivered to North Carolina from a specific address in Suwanee and later confirmed that the recipient was an Asian male driving a silver car with a North Carolina tag. Although there was no evidence that the informant was reliable, the police were able to corroborate significant details of the tip through surveillance. On the morning of the predicted trip, the police saw Tran and To pack luggage into a red car and saw Huynh place a white shopping bag from inside the house in question into the silver car. The police followed both cars as they left the house, stopped for gas, departed separately for 1-85 northbound (the most logical route to North Carolina), and then joined on the highway and traveled together.

In addition to the tip, the police saw Tran and Huynh testing walkie-talkies, which are commonly used by drug couriers, in the front yard before leaving the house that morning. And, most importantly, Detective Stidd testified at the hearing on the motion to suppress that, before having the red car stopped, he heard over the police radio that a drug dog had positively alerted to the silver car. Thus, Stidd had strong reason to believe that Tran’s traveling companion, Huynh, was carrying contraband. Under all of these circumstances, we conclude that Stidd had a reasonable suspicion that Tran was engaged in criminal drug activity, thereby justifying the stop of his car. Because the initial stop was valid, Tran’s “fruit of the poisonous tree” argument fails.

2. The warrant authorizing the search of Tran’s residence was issued based on an affidavit by Investigator Bartik, which stated that Detective Rhodes had told Gwinnett County Drug Task Force investigators that “an Asian male would be departing [850 Ahearn Court] in a vehicle with a North Carolina tag, traveling to North Carolina, transporting narcotics.” The affidavit also stated that the police had surveilled the residence and seen an Asian male loading luggage and packages into the vehicle; that police had stopped the vehicle and found marijuana and cocaine inside; and that they believed there was additional marijuana and/or cocaine in the residence. Tran argues that the affidavit was deficient because it was “heavily based upon an informant of unknown reliability.” We disagree.

In reviewing the sufficiency of an affidavit in support of a search warrant, we “simply . . . ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Tran argues that the affidavit contains no information about the reliability of the informant. However, “a showing that an informant and his information are reliable is not limited to proof of the informant’s veracity and the basis of his knowledge. Reliability may be shown by corroboration of the informant’s tip.” As the affidavit stated, police corroborated details of the tip — i.e., they saw an Asian male loading luggage into a car with a North Carolina tag — through surveillance of the residence and they later found drugs in the car. Thus, there was a substantial basis for the magistrate’s finding of probable cause.

3. Just before trial, the State informed the trial court that it could not prove that the suspected marijuana found in Huynh’s car was, in fact, marijuana because the crime lab technician who tested it was unavailable and the State had failed to obtain a retest. Accordingly, the trial court granted defense counsel’s motion in limine to exclude the substance from evidence. Upon request of the prosecutor, the trial court later ruled that, if a proper foundation was laid, the State’s witnesses could refer to the substance because it was part of the res gestae of the offense. Thus, Deputy Corso testified that, upon searching Huynh’s car, he found a plastic bag containing “a green leafy substance, which was suspected marijuana”; Detective Stidd testified that he heard Corso say over the police radio that he found approximately five pounds of “suspected marijuana”; and an employee in the Gwinnett County Police Department’s evidence room stated that she logged into evidence clear baggies containing “green leafy material.”

Although none of the State’s witnesses ever testified that the substance found in the silver car was, in fact, marijuana, Tran contends that these witnesses’ references to the material were unduly prejudicial. It is well settled that

[s] unrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact. . . . Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. In addition, all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.

We have long held that contraband found on a defendant’s person at the time of his arrest is admissible as part of the res gestae, even if the defendant is not charged with a crime in connection with that contraband. Although the substance at issue here was not found on Tran’s person, it was nevertheless part of the “surrounding circumstances” because it was found in the car of his traveling companion; it was inside a bag that had been removed from Tran’s house earlier that day; and its discovery formed the basis for the arrest of Tran. Accordingly, the trial court did not err in allowing witnesses for the State to refer to the substance, regardless of whether the substance had been positively identified as marijuana.

4. During closing argument, Tran’s counsel referred to the suspected marijuana found in Huynh’s car as follows: “Oh, by the way, the green leafy substance: Never been admitted into evidence, not before you. How does that reflect upon the competency of this investigation?” The prosecutor objected, and the trial court ruled that “the door has been opened by counsel for the defendant such that counsel for the State may explain to the jury why the marijuana was not in evidence.” Defense counsel then told the jury that the suspected marijuana “was not admitted into evidence because of a technical error. ... It was not tested in time.” In his closing argument, the prosecutor reiterated that

[defense counsel] stated that it wasn’t submitted because a test was not completed in time. That’s correct. . . . You didn’t get it. You can’t consider it. The officer addressed it as suspected marijuana, and that’s all it is. There’s no proof as to what it is.

Tran argues that the trial court erred in ruling that defense counsel “opened the door.” According to Tran, “the State itself invited defense comments concerning the ‘suspected marijuana’ from the silver car by repeatedly eliciting testimony referring to ‘suspected marijuana’ from the State’s witnesses.” But as we ruled in Division 3, the witnesses’ references to “suspected marijuana” were admissible as part of the res gestae. Thus, the jury already knew that the police found in the silver car a substance they believed to be marijuana. Pretermitting whether Tran waived this argument by first explaining to the jury why the substance was not admitted into evidence, he fails to show that the explanation — which included the statement that the jury could not consider the substance — caused him any harm.

5. Tran argues that the State failed to show with reasonable certainty that the cocaine introduced into evidence was not subjected to tampering. According to Tran, there was “definite evidence of tampering” because the Georgia Bureau of Investigation crime lab technician who identified the substance as cocaine testified that another technician, who was not called to testify, had previously tested it. Over Tran’s chain of custody objection, the trial court admitted the cocaine into evidence.

Although the State had the burden of proving with reasonable certainty that the evidence was the same substance it seized and that there had been no tampering or substitution, the State was not required to call as a witness every person who came into contact with the evidence. The mere fact that more than one technician handled the cocaine does not constitute “definite evidence of tampering.” Rather, this circumstance permits “at most, bare speculation of tampering or substitution.” Accordingly, the trial court properly admitted the evidence, and it was for the jury to determine how much weight to give that evidence.

6. Tran contends that the trial court should have granted his motion for directed verdict because the State proved, at most, that Tran and Huynh had equal access to the contraband. We disagree.

Under the equal access rule, “merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Whether evidence of equal access is sufficient to rebut the inference that the defendant possessed the contraband is a question for the jury under proper instructions.

At trial, Tran denied any knowledge of the contraband found in his home. He testified that he kept a spare key to his safe in a vase in the living room and that both Huynh, who was an overnight guest in his home, and To, who was a frequent visitor, had seen him using the key “numerous times.” Tran also denied any knowledge of the contraband found in the plastic bag in Huynh’s car and denied seeing Huynh remove the bag from his home that morning. The jury, however, was not required to believe Tran’s testimony and was entitled to conclude that the contraband found in his home did belong to Tran and that Tran jointly possessed — or was a party to the possession of — the contraband in Huynh’s car.

Tran’s reliance on Morrison v. State is misplaced. In that case, the defendant and four other adults were present at the defendant’s girlfriend’s house when police searched it and found drugs in the kitchen. There was no evidence linking the defendant to the drugs beyond his mere presence at the house, where he did not live and did not have free access. Accordingly, we held that the evidence did not exclude the reasonable hypothesis that the drugs belonged to any of the other adults at the house. Here, by contrast, ample evidence ties Tran to the contraband. Tran admitted that he owned the house where the drugs were found and that the scales, money, and money wrappers were his. The drugs were not discovered in open areas, but in a locked safe and in a cubbyhole in the master bedroom. The contraband in Huynh’s car was in a white plastic bag that had been removed from Tran’s house earlier that day; Huynh and Tran were traveling together using walkie-talkies; and Tran was not truthful about traveling with Huynh when questioned by police. “Under these circumstances, we find the evidence against [Tran] was sufficient to find [him] guilty of joint constructive possession, or at least as a party to the crime.”

Decided September 27, 2000

Stephen F. Mackie, for appellant.

7. Finally, Tran contends that the trial court erred by failing to give the jury his written request to charge no. 53, that “[a] finding of constructive possession of narcotics cannot rest upon mere spatial proximity to the narcotics, especially where the narcotics are hidden.” Although this charge is a correct statement of the law, the trial court did not err by failing to give it because the jury instructions as a whole adequately covered that principle. Specifically, the court told the jury that the defendant could not be convicted if he had no knowledge of the crime and did not participate or help in its commission; that the defendant’s mere presence at the scene of the crime would not authorize a conviction; and that constructive possession entails the power and intention to exercise authority or control over a thing. “A trial court does not err in failing to give an appropriate request to charge, as written, when its charge as a whole contains the same principles of law set forth in the request.”

Judgment affirmed.

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

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

       The indictment aggregated the cocaine found in Huynh’s car and the cocaine found in Tran’s house, charging that Tran and Huynh possessed 28 grams or more of cocaine.

       Huynh, who was tried separately, was found guilty as charged on both counts. We recently affirmed his convictions. Huynh v. State, 239 Ga. App. 62 (518 SE2d 920) (1999).

        Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987).

       See Gordon v. State, 242 Ga. App. 50, 52 (1) (528 SE2d 838) (2000) (“Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, reliability may be established if the tip is detailed enough to provide some basis for predicting the fiiture behavior of the suspect and those details are corroborated by the observations of police.”).

       See Jones v. State, 237 Ga. App. 847, 849 (1) (515 SE2d 841) (1999) (officer had reasonable suspicion to conduct field interview of defendant where, among other things, drugs had been found on defendant’s companion).

       The fact that Stidd did not immediately tell Tran and To that the purpose of the stop was to investigate possible drug activity does not change this analysis. Tran has cited no authority, and we have found none, for the proposition that an officer must immediately reveal his true motives to a suspect in a criminal investigation.

        York v. State, 242 Ga. App. 281, 293 (7) (528 SE2d 823) (2000).

       (Footnotes omitted.) Dollar v. State, 242 Ga. App. 511, 513 (1) (a) (529 SE2d 665) (2000).

       See Starks v. State, 240 Ga. App. 346, 347-348 (1) (523 SE2d 397) (1999) (affidavit was sufficient because it contained information that corroborated informant’s tip, as well as other information).

       (Citations and punctuation omitted.) Dean v. State, 211 Ga. App. 28, 31-32 (4) (438 SE2d 380) (1993).

       See Reynolds v. State, 234 Ga. App. 884, 886 (2) (508 SE2d 674) (1998); Maddox v. State, 227 Ga. App. 602, 604 (3) (490 SE2d 174) (1997).

        Lane v. State, 239 Ga. App. 230, 232 (4) (520 SE2d 705) (1999) (“Harm and error must be shown to warrant reversal”).

       See Mathis v. State, 204 Ga. App. 244 (1) (418 SE2d 800) (1992).

       (Punctuation omitted.) Id.

       See Staples v. State, 209 Ga. App. 802, 805-806 (5) (434 SE2d 757) (1993).

       (Punctuation omitted; emphasis in original.) Taylor v. State, 209 Ga. App. 38, 39 (433 SE2d 87) (1993).

        Visser v. State, 237 Ga. App. 798, 800 (2) (516 SE2d 840) (1999).

       See Mathis v. State, 204 Ga. App. 896, 897 (1) (420 SE2d 788) (1992) (“The equal access rule is not properly invoked in regard to persons who are merely visiting, even overnight; thus ‘equal access’ is not merely ‘access.’ ”) (punctuation omitted; emphasis in original).

       220 Ga. App. 151, 152-154 (1) (469 SE2d 686) (1996).

       Id. at 153-154.

       Cf. Taylor, supra (“Generally, the equal access rule applies ‘to areas which are open, notorious and easily accessible to other persons.’ ”).

        Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994).

       See Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997).

       (Punctuation omitted.) Sullivan v. State, 242 Ga. App. 613, 615 (4) (530 SE2d 521) (2000).


author: Andrews, Presiding Judge.

text:
    A00A1183.
    WAL-MART STORES, INC. v. BOARD OF TAX ASSESSORS OF FAYETTE COUNTY.
    (539 SE2d 869)
   Andrews, Presiding Judge.

Wal-Mart Stores, Inc. appeals from the trial court’s order finding it in contempt for refusing to release subpoenaed documents to the Board of Tax Assessors of Fayette County (Board). Because Wal-Mart has failed to point out any error committed by the trial court, we affirm.

This case arose when Wal-Mart refused to turn over certain subpoenaed documents to the Board unless the Board could assure it that Joe Mendola, the Board’s contract auditor, would not have access to these documents. The Board brought a petition for contempt against Wal-Mart, and Wal-Mart answered and counterclaimed for a declaratory judgment. The trial court found Wal-Mart in contempt, and this appeal followed.

1. Wal-Mart argues the trial court erred in holding that the contract, as implemented, between the Board and Mendola & Associates (Mendola) constituted a lawful delegation of governmental authority. OCGA § 48-5-298 (a) provides that each county board of tax assessors may, subject to the approval of the county governing authority, employ people to:

(1) Assist the board in the mapping, platting, cataloging, indexing, and appraising of taxable properties in the county; (2) Make, subject to the approval of the board, reevaluations of taxable property in the county; and (3) Search out and appraise unreturned properties in the county.

We note initially that Wal-Mart never cites to the contract between the Board and Mendola and does not argue that the contract itself is impermissible, but rather that “Mendola’s activities go far beyond mere auditing.” Many of Wal-Mart’s allegations and arguments, however, are unsupported by any citation to the record and, indeed, are not to be found there.

To the extent that Wal-Mart is arguing that the Board does not monitor or control what Mendola does with copies of the records and documents it receives, the Court’s order held that all records submitted by Wal-Mart were to be kept on the Board’s premises, no storage or use of the documents could occur off the premises, and Mendola could not make or retain copies of any of the documents or records.

Wal-Mart points to the deposition testimony of Douglas Stanley, a longtime Board member, in which he states that the Board delegated to Mendola the power to make sure that all property was returned at its fair market value. Although OCGA § 48-5-298 gives the Board power to employ someone to search out unretumed property and assist in appraising taxable properties, Wal-Mart argues that when these powers are multiplied by 25 counties throughout the State, “the potential for abuse is simply irresistible.”

This type of argument is not appropriate here. This Court is a court for the correction of errors of law and does not possess any legislative powers, nor does it perform any legislative functions. See Jacobs v. State, 200 Ga. 440, 445 (37 SE2d 187) (1946). Wal-Mart has pointed to nothing in the record before us that shows that the Board delegated any authority beyond that allowed in OCGA § 48-5-298. See Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454, 455 (469 SE2d 285) (1996). Therefore, this enumeration of error is without merit.

2. Next, Wal-Mart argues that the Board’s contract with Mendola, as implemented, violates public policy. It claims that Mendola is testifying against Wal-Mart in other counties and, therefore, should be prohibited from entering into this contract with Fayette County. Wal-Mart’s authority for this proposition, however, states that when an expert receives confidential information from a client, he is disqualified from using this information in another forum. Although this is an argument that Wal-Mart can make to disqualify Mendola from testifying in these other counties, that issue is not before us in this case, especially in light of the fact that Wal-Mart presents no specific evidence of any instances in which Mendola has violated the confidentiality requirement of OCGA § 48-5-314 (b). Indeed, the only evidence in the record on this issue is Mendola’s deposition testimony that he has not shared with the Board any information he received about Wal-Mart in other counties and does not draw conclusions as to value based on audits conducted for other boards. This is supported by Stanley’s deposition testimony that Mendola had never discussed with the Board any information obtained from audits in other counties. Moreover, as an additional safeguard, there is the trial court’s order prohibiting Mendola from either retaining or making copies of any documents produced by WalMart in this case. There is no merit to this enumeration.

3. In its next enumeration, Wal-Mart argues that the contract between the Board and Mendola violates the confidentiality requirements of OCGA § 48-5-314. Again, Wal-Mart does not state that Mendola has violated the statute in this case but rather makes the sweeping argument that Mendola’s conflicting roles of auditor and advocate require that he breach the confidentiality requirement. Because, as stated in Division 2, there was no evidence of any breach of confidentiality before the trial court, we find no error.

Decided September 27, 2000.

Smith, Gambrell & Russell, Edward K. Smith, William B. Wood, for appellant.

McNally, Fox & Cameron, Dennis A. Davenport, for appellee.

Webb, Tanner & Powell, Steven A. Pickens, amicus curiae.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.


text:
    A00A1619.
    MOORE v. THE STATE.
    (539 SE2d 851)
   Ruffin, Judge.

A jury convicted Jairus Moore of rape, two counts of aggravated sodomy, four counts of aggravated assault, and two counts of possession of a firearm during the commission of a crime. On appeal, Moore asserts multiple enumerations of error. As his assertions lack merit, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, in the early morning of July 27, 1997, a woman met Moore at a party. After the two danced together, Moore invited her outside to see his pickup truck, and she agreed. At the truck, Moore pulled out a gun and ordered the woman to get in. He drove to a dark wooded park where he ordered her to get out. When the woman asked Moore not to “do this” to her, he hit her across the face with the gun.

According to the woman, Moore then forced her to orally sodomize him, and attempted to have both anal and vaginal intercourse with her. Although Moore was unable to penetrate the rectum, he managed to penetrate her vagina despite her struggling. Eventually, the woman was able to break away from Moore, and she ran, naked, into the woods. Moore caught up with her and grabbed her around the neck. The woman fell, and Moore began beating her again as he attempted intercourse with her.

The woman broke away again, ran to a house, and cried for help. Someone inside the house turned on a light, which alerted Moore to the woman’s whereabouts. He charged her, pushing her head through a glass door. He then threatened to kill her, telling her that he would be “right back.” Moore left, and the woman, fearing that he would return with a gun, crawled through the pane of broken glass into the house. The woman testified that she was bleeding from head to toe. Mary Ann Carden, the owner of the house, called 911. The police arrived and took the woman to Grady Hospital, where she was treated for multiple lacerations and bruises.

Later that same morning, Moore drove to the home of his former girlfriend. Moore called his ex-girlfriend on a cell phone and offered to take her to work. She agreed. Rather than taking her to work, however, Moore drove his ex-girlfriend down a dead-end road, stopped the truck, and ordered her out of the truck. She refused, saying she needed to get to work. According to the ex-girlfriend, Moore said, “I am going to take you to work, but before you go to work you’re going to give me some.” Moore then forcibly removed her from the truck and ordered her to pull down her pants. When she refused, he hit her in the back of her head with his fist. Rather than fight Moore, she complied with his demands.

Once out of the truck, Moore forced his second victim to orally sodomize him several times and attempted to have intercourse with her several times before ejaculating. The woman told Moore, “If you’re going to rape me, just go on and rape me, whatever you’re going to do, just hurry up so I can go to work. I need to work.” Moore told her to “shut up” and hit her in the back of the head. The last time she told him to hurry, he hit her across the face with the back of his hand.

Moore then took his second victim to work. During the ride there, she asked Moore what he would do “if somebody would have did your mama like that?” Moore pointed a gun at her head and said, “If they did, bitch, I’d kill them like I’ll kill you.”

With respect to his first victim, Moore was charged with rape, two counts of aggravated sodomy, kidnapping, two counts of aggravated assault, and possession of a firearm during the commission of a crime. The jury convicted him of all counts except for one count of aggravated sodomy and kidnapping. With respect to his second victim, Moore was charged with rape, one count of aggravated sodomy, two counts of aggravated assault, and possession of a firearm during the commission of a crime. The jury acquitted him of the rape charge, but convicted him of the remaining charges.

1. In his first enumeration of error, Moore challenges the sufficiency of the evidence supporting his convictions for aggravated sodomy against his first victim. By failing to provide any argument with respect to his other convictions, Moore has abandoned any argument that the evidence was insufficient to support those convictions.

With respect to Moore’s conviction for aggravated sodomy, he provides no legal authority whatsoever. His only argument is to point to his own, self-serving testimony that the woman performed consensual oral sex. Although Moore’s testimony conflicted with his victim’s on the issue of consent, such conflicts “are a matter of credibility for the jury’s resolution.”

2. Moore contends that the State failed to prove venue beyond a reasonable doubt with respect to the crimes committed against his second victim. Venue, as a jurisdictional fact, must be proven beyond a reasonable doubt. “It is a question to be decided by the jury whose decision will not be set aside if there is any evidence to support it.” Although the second victim could not find the exact location where the offenses took place, she testified unequivocally that they “happened in DeKalb” County. Accordingly, the jury was authorized to find that the State proved venue, and we will not disturb its finding on appeal.

3. Moore asserts that two of the aggravated assault counts in the indictment are deficient because they do not contain all of the essential elements of the crime, namely that hands were used as deadly weapons. Moore cites the Supreme Court case of Smith v. Hardrick for the proposition that, when an aggravated assault charge is predicated upon the use of hands, the indictment must expressly allege that hands were used as deadly weapons.

A defendant may challenge an indictment by filing either a special or a general demurrer. A special demurrer raises objections to the form of the indictment, and failure to file such a demurrer waives any challenge to form. A general demurrer, on the other hand, challenges the very validity of the indictment and may be raised at any time. It may not, however, be raised in any proceeding. If a challenge to the validity of an indictment has not been made before the trial court, the proper method for such a challenge is through habeas corpus proceedings.

Even assuming that Moore could challenge the validity of the indictment on direct appeal, we see no fatal flaw in the indictment. The true test of validity “is found in the answer to the question: Can the defendant admit the charge as made and still be innocent?” Here, the indictments charge Moore with making an assault “with his hands and fists, objects which when used offensively . . . were likely to result in serious bodily injury.” Under OCGA § 16-5-21, a person is guilty of aggravated assault when he assaults another “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Thus, although the indictment does not specify that Moore’s hands were being used as “deadly weapons,” Moore could not admit the allegations contained therein and still be innocent of the crime charged.

4. Moore asserts that the trial court abused its discretion in denying his motion to sever. We disagree. “Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar character.” But a trial court may join offenses for trial if the offenses “are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan.” Here, although there were two victims, the crimes against them occurred mere hours apart, in the same general area, and in the same general manner. Accordingly, the offenses constituted a single “crime spree,” and the trial court did not err in refusing to sever them.

5. In seven enumerations of error, Moore asserts that the trial court erred in admitting the victims’ prior consistent statements because the evidence improperly bolstered their testimony. With respect to five of the challenged statements, Moore failed to object and, thus, waived any error. With respect to the one remaining statement, in which the investigating officer testified as to what the first victim told him, defense counsel objected, but only on hearsay grounds. Accordingly, we will not address whether the testimony improperly bolstered her testimony as this argument was not presented to or ruled upon by the trial court.

6. In two enumerations of error, Moore maintains that the trial court erred in admitting improper expert testimony. Again, Moore failed to object to any of the allegedly improper testimony and, accordingly, has waived error, if any.

7. Moore also contends that the trial court erred in allowing the State to question him in such way as to shift the burden of proof. Moore elected to take the stand and testify in his own defense. He testified that, although he did own a gun, it did not look like the gun described by the victims. On cross-examination, the prosecutor asked Moore why he did not bring the gun with him to court to show the jurors. Moore asserts that this question was “improper” because he did not bear any burden to prove his innocence. Moore’s assertion lacks merit. “The State, like any other party, has the right to conduct a thorough and sifting cross-examination and to pursue the specifics of a topic [Moore] introduced.” Accordingly, the State was entitled to ask him why he did not bring his gun to court.

8. In three enumerations of error, Moore contends that the trial court erred in instructing the jury. As a general matter, a criminal defendant is

required to present written requests for any desired jury instructions. OCGA § 5-5-24 (b). He is relieved of this duty only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

Here, the record contains no such written requests. Moreover, Moore neither objected to any jury instruction nor reserved the right to object at a later time. Thus, we are precluded from reviewing any alleged error on appeal except to determine whether such error was harmful as a matter of law.

(a) Moore asserts that the trial court erred in failing to instruct the jury on the “controlling defense” in the rape case involving the first victim. In this State, it is well settled “that the failure to give a charge on a defendant’s sole defense in a criminal case, even without a request, constitutes reversible error if there is some evidence to support the charge.” Although the trial court instructed the jury as to consent, which was Moore’s defense in the rape case involving his second victim, Moore contends that the court erred in providing no instruction on his defense in the first rape case, which was to deny having intercourse.

Moore essentially argues that the elements of the crime were not satisfied — that he did not have carnal knowledge of his victim. Initially, we question whether this constitutes a defense. Moreover, even if it may be considered a defense, the trial court properly instructed the jury.

“It is a fundamental rule that jury instructions must be considered as a whole in determining whether the charge contained error.” Here, the trial court instructed the jury that Moore was innocent until proven guilty, and that he could not “be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt.” The court also instructed the jury on the elements of rape, including the element of carnal knowledge. As the trial court instructed the jury on the applicable legal principles, we cannot conclude that the charge was harmful as a matter of law.

(b) Moore also contends that the trial court erred in failing to instruct the jury on the lesser included offense of sexual battery. However, “[a] trial judge never errs in failing to instruct the jury on a lesser-included offense where there is no written request to so charge.”

(c) Moore maintains that the trial court erred in failing to instruct the jury on the use of hands as a deadly weapon in an aggravated assault charge. Again, “[Moore’s] failure to request this charge in writing [eviscerates] his argument.”

9. Moore contends that he received ineffective assistance of counsel from his trial attorney. In order to establish a claim of ineffective assistance, Moore

must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Prejudice exists where there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. We will affirm a trial court’s finding that counsel was effective unless it is clearly erroneous.

(a) First, Moore argues that his trial counsel was ineffective in that he was unfamiliar with the law of severance and was unable to provide authority for his position. However, as discussed above, Moore was not entitled to a severance. Thus, his attorney’s knowledge of the subject matter, or alleged lack thereof, could not have affected the result reached. Accordingly, this claim of error presents no basis for reversal.

(b) Second, Moore asserts that his attorney was deficient in failing to have the court reporter transcribe the voir dire, opening statements, and closing arguments. However, Moore does not show how the transcription of these events would have benefitted him, and his failure to demonstrate harm is fatal to his claim.

(c) Third, Moore contends that his attorney was ineffective in failing to request an in camera hearing under the rape shield statute, which he contends would have allowed his attorney “an opportunity to go into detail about the relationship that Mr. Moore had with [his ex-girlfriend], and would have provided evidence on the issues of intent and consensual sex with [her].” Not only was such evidence introduced, but Moore was acquitted of raping his ex-girlfriend. Thus, we fail to see how Moore was harmed by his attorney’s failure to elicit more “detail” about the relationship.

(d) Fourth, Moore maintains that his attorney rendered ineffective assistance in failing to object to the “burden shifting” question asked by the prosecutor. As noted in Division 7, however, the prosecutor’s question was not improper. Accordingly, Moore’s attorney was not ineffective in failing to object.

10. Finally, Moore argues that he received ineffective assistance from the attorney who handled his motion for new trial, and he requests that we remand the case to the trial court for a hearing. However, as we are able to reach the merits of this claim, we will do so in the interest of judicial economy.

As with claims of ineffective assistance of trial counsel, the test for ineffective assistance of counsel at a motion for new trial is a two-part test. The defendant must show both that the attorney’s performance was deficient and that the deficient performance prejudiced him. Here, Moore fails to show prejudice.

In order to show prejudice, “a defendant must establish that, but for the inadequate performance of counsel, there is a reasonable probability that the result would have been different.” Here, Moore does not argue that he was prejudiced, but merely asserts that his attorney asked questions normally asked by the State, thus making the prosecution’s case. He does not, however, point to any particular question that prejudiced him, much less demonstrate how the question “made the prosecution’s case.” Indeed, in reviewing those portions of the transcript to which Moore cites, the attorney only asked background questions of Moore’s trial attorney. We fail to see how the result would have been different had the attorney not asked these innocuous questions. Accordingly, Moore has not met his burden of establishing prejudice, and his convictions are affirmed.

Decided September 27, 2000

Timothy W. Hoffman, for appellant.

Jairus Moore, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, John H. Petrey, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       See Vick v. State, 237 Ga. App. 762, 763 (1) (516 SE2d 815) (1999).

       See Bluain v. State, 242 Ga. App. 125, 129 (1) (529 SE2d 155) (2000).

        Hayes v. State, 244 Ga. App. 12 (1) (534 SE2d 577) (2000).

        Carswell v. State, 244 Ga. App. 516, 518 (1) (534 SE2d 568) (2000).

       266 Ga. 54 (464 SE2d 198) (1995).

        McKay v. State, 234 Ga. App. 556, 558 (2) (507 SE2d 484) (1998).

       Id. at 559.

       Id. at 558.

       Id. at 559-560.

       Id.

       (Punctuation omitted.) Dennard v. State, 243 Ga. App. 868, 870 (534 SE2d 182) (2000).

       (Punctuation omitted; emphasis in original.) Byrd v. State, 236 Ga. App. 485, 487 (4) (512 SE2d 372) (1999).

       (Punctuation omitted.) Jones v. State, 226 Ga. App. 428, 431 (2) (487 SE2d 62) (1997).

       Id.

       See Davitt v. State, 232 Ga. App. 427 (1) (502 SE2d 300) (1998).

       See Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361) (1995).

       See Davitt, supra.

        Mitchell v. State, 242 Ga. App. 177, 181 (4) (a) (529 SE2d 169) (2000).

       See Singleton v. State, 240 Ga. App. 240, 241 (6) (522 SE2d 734) (1999).

       (Punctuation omitted.) Camphor v. State, 272 Ga. 408, 414 (6) (b) (529 SE2d 121) (2000).

       See Hart v. State, 238 Ga. App. 325, 326 (2) (517 SE2d 790) (1999).

        Parker v. State, 230 Ga. App. 578, 579 (2) (497 SE2d 62) (1998).

       (Punctuation omitted.) York v. State, 242 Ga. App. 281, 291 (5) (c) (528 SE2d 823) (2000).

       (Punctuation omitted.) Rowland v. State, 228 Ga. App. 66, 67-68 (1) (491 SE2d 119) (1997).

        Price v. State, 237 Ga. App. 54, 56 (3) (513 SE2d 40) (1999).

       (Punctuation and footnotes omitted.) Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 93) (2000).

       See Shelley v. State, 239 Ga. App. 841, 843 (4) (521 SE2d 855) (1999).

       See Washington v. State, 238 Ga. App. 561, 562 (2) (a) (519 SE2d 234) (1999).

       See Singleton, supra.

       See Green v. State, 242 Ga. App. 868, 872 (5) (a) (532 SE2d 111) (2000) (failure of counsel to make meritless objection not evidence of ineffective assistance).

       See Hayes v. State, 262 Ga. 881, 883 (3) (426 SE2d 886) (1993).

       Id.

       Id.; see also Watson, supra.

        Hayes, supra.


text:
    A00A1718.
    LEWIS v. THE STATE.
    (539 SE2d 859)
   Ruffin, Judge.

Lonas Edward Lewis was convicted of driving under the influence of alcohol. On appeal, he contends that the trial court erred in denying his motion to suppress and in allowing a prosecution witness to testify. For reasons which follow, we affirm.

1. Lewis argues that the trial court erred in denying his motion to suppress the results of a blood test due to the alleged failure of the police to timely read him his implied consent rights. However, Lewis did not make such motion or raise any objection on this ground until after the evidence had already been admitted and the State had rested its case. Accordingly, such motion was untimely, and the trial court did not err in denying it.

2. Lewis contends that the trial court erred in allowing the testimony of Officer Jose Del Valle, the officer who read the implied consent notice and supervised the drawing of Lewis’ blood, because he had not been identified as a witness in response to Lewis’ written demand. Lewis contends that exclusion was required by OCGA § 17-16-21, and that the trial court lacked discretion to allow Del Valle to testify absent a showing that the desired testimony was newly discovered by the prosecutor. However, Lewis did not file his demand for a list of witnesses prior to arraignment, as required by OCGA § 17-16-21. “Where the record does not show that any demand for a list of witnesses was filed prior to arraignment, the trial court does not err in permitting an unlisted witness to testify over objection.” We also note that, although Del Valle was not specifically identified as a witness, the State in response to Lewis’ demand produced a copy of the Uniform Traffic Citation, which indicated that Del Valle was the officer who administered the blood test. Moreover, the trial court said that it would give Lewis’ attorney “as much time as you need” to interview Del Valle prior to his testimony. “Under the foregoing circumstances, it is clear to us that the admission of the testimony of this witness was not in contravention of [OCGA § 17-16-21], or otherwise error.”

Decided September 27, 2000.

John J. Pilcher II, for appellant.

Michael J. Moses, Solicitor, for appellee.

Judgment affirmed.

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

       See Whittington v. State, 184 Ga. App. 282, 285 (3) (361 SE2d 211) (1987) (“ ‘it is too late to urge objections to the admission of evidence after it has been admitted without objection’”); Aldridge v. State, 237 Ga. App. 209, 212 (2) (515 SE2d 397) (1999) (objection to implied consent notice waived because defendant failed to file motion in limine or raise timely objection).

       (Punctuation omitted.) Satterfield v. State, 228 Ga. App. 89, 90 (491 SE2d 189) (1997). See also Tyus v. State, 196 Ga. App. 857, 858 (3) (397 SE2d 194) (1990).

        State v. McBride, 258 Ga. 321, 322 (368 SE2d 758) (1988). See also Tyus, supra.


author: Phipps, Judge.

text:
    A00A2330.
    A00A2331.
    McCARLEY et al. v. McCARLEY. JOHNSON v. McCARLEY.
    (539 SE2d 871)
   Phipps, Judge.

In her capacity as executrix of Earl McCarley’s estate, his second wife sought to probate his will. Three of McCarley’s natural children by his first marriage filed a caveat, which the probate court denied. The children appealed to superior court. In successive order, the appeal was dismissed, the executrix died, and the successor co-executors named in the will filed an OCGA § 9-15-14 motion for an award of attorney fees and litigation expenses against the caveators and their attorney, Johnson.

The caveators and counsel moved to dismiss the motion because the co-executors had never been substituted as parties in this litigation. The superior court denied the motion to dismiss on the ground that there was a substitution of the parties by operation of law. After the court entered an order awarding fees and expenses against the caveators and their attorney, applications for discretionary appeal were filed and granted. Case No. A00A2330 is the caveators’ appeal. Case No. A00A2331 is the attorney’s appeal. We conclude that the superior court erred in denying appellants’ motion to dismiss and, therefore, reverse.

Decided September 27, 2000.

John D. Rasnick, for appellants (case no. A00A2330).

Donald W. Johnson, pro se (case no. A00A2331).

Willis, McKenzie & Long, Charles J. Willis, for appellee.

With certain exceptions not applicable here, an estate is not a legal entity which can be a party to legal proceedings. An action by or against an estate must be brought or defended by the legal representative of the estate. Where the estate’s representative dies during the pendency of the litigation, the successor representative must be substituted as a party. Substitution of parties does not occur by operation of law but must be effected under OCGA § 9-11-25, which requires notice to the parties and a hearing. A hearing is required because there may be issues concerning whether the claim has survived or whether the person or persons claiming to be legal representatives actually occupy such status. But even where there is no confusion as to such issues, substitution still is required. Until the substitution is made, the proceedings are void as to the deceased party. For these reasons, the motions to dismiss should have been granted.

Judgment reversed in both cases.

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

        Orange County Trust Co. v. Estate of Abe Takowsky, 119 Ga. App. 366 (1) (166 SE2d 913) (1969); see Estate of Alberta Norton v. Hinds, 182 Ga. App. 35 (354 SE2d 663) (1987).

        Takowsky, supra; Norton, supra.

       See Stephenson v. Ingram, 239 Ga. App. 892 (522 SE2d 500) (1999).

        Northside Corp. v. Mosby, 214 Ga. App. 806 (449 SE2d 6) (1994).

       See Stephenson, supra.

        Omark Indus. v. Alewine, 164 Ga. App. 397 (298 SE2d 259) (1982).


text:
    A00A1721.
    KLINE v. ATLANTA GAS LIGHT COMPANY.
    (538 SE2d 93)
   Ruffin, Judge.

The issue presented is whether the payee of a money order is liable for conversion if, after negotiating the instrument, the payee learns that the money order was issued in the wrong amount. We hold that the payee is not liable under these circumstances.

The complaint alleges that on August 28, 1995, Helen Williams purchased a money order from the U. S. Postal Service. Although Williams only tendered $37.68, postal employee Kathy Kline erroneously issued the money order in the amount of $376.80. The money order was payable to Atlanta Gas Light Company. Williams forwarded the money order to Atlanta Gas Light, which credited $17.96 toward Williams’ gas bill and the remaining $358.84 toward the balance due on an installment contract between Williams and Atlanta Gas Light.

Several months later, the U. S. Postal Service apparently discovered Kline’s mistake, and it required Kline to pay it $339.12, which was the amount overpaid. Kline then contacted Williams, who allegedly assigned to Kline any right to recover the overpayment from Atlanta Gas Light.

In March 1996, Atlanta Gas Light learned of the alleged error when Kline requested that the company pay her the $339.12. Atlanta Gas Light refused, and Kline filed suit against both Williams and Atlanta Gas Light for conversion. Atlanta Gas Light moved for summary judgment, arguing that it could not be held liable for conversion because it was authorized to apply the overpayment to the outstanding balance on Williams’ contract. The trial court granted summary judgment, and this appeal ensued.

As this Court recently stated,

[conversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to [her] rights. The very essence of conversion is that the act of dominion is wrongfully asserted. Thus, if a party has a right to assert ownership, the act of dominion is not wrongful and does not constitute conversion.

As the money order represented money owned by the U. S. Postal Service, it is unclear whether Kline is a proper plaintiff to bring a conversion claim. Neither party addresses this issue, however, and it was not a basis for the trial court’s ruling. Even assuming that Kline is a proper plaintiff, she has no claim for conversion because Atlanta Gas Light did not wrongfully assert dominion over the money order.

A money order is a negotiable instrument. As such, it is governed by OCGA § 11-3-101 et seq. OCGA § 11-3-418 provides limited remedies for payment made by mistake, which is the situation here as Kline “mistakenly” issued the money order for the wrong amount, and Williams then gave the instrument to Atlanta Gas Light, allegedly without noticing the error. Under OCGA § 11-3-418 (c), however, the remedies “may not be asserted against a person who took the instrument in good faith and for value or who in good faith changed position in reliance on the payment or acceptance.”

Decided August 2, 2000

Reconsideration denied September 28,2000.

Talbot & Rowe, Thomas W. Talbot, for appellant.

Chambless, Higdon & Carson, John J. Makowski, Jon C. Wolfe, for appellee.

In this case, Atlanta Gas Light received a money order that was regular on its face, and it negotiated the instrument. The record does not suggest — nor does Kline contend — that the company was acting in bad faith in doing so. Atlanta Gas Light then credited Williams’ account, which it was authorized to do under the terms of the installment contract. By accepting the money order as payment for Williams’ outstanding debt, Atlanta Gas Light took the instrument for value. Thus, OCGA § 11-3-418 (c) governs the situation, and neither the U. S. Postal Service nor Kline has a remedy against Atlanta Gas Light for having negotiated the instrument. Thus, Atlanta Gas Light did not act wrongfully in refusing to return the money. Accordingly, the trial court properly granted Atlanta Gas Light’s motion for summary judgment.

Judgment affirmed.

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

       Williams never responded to the complaint, and she is not a party to this appeal.

       (Punctuation and footnotes omitted.) Kilburn v. Patrick, 241 Ga. App. 214, 216 (1) (525 SE2d 108) (1999).

       See Clover Cable of Ohio v. Heywood, 260 Ga. 341, 345 (6) (392 SE2d 855) (1990) (in a conversion claim, “the plaintiff must be the true owner of the property with title thereto”).

       See OCGA § 11-3-104 (a).

       Although this provision does not limit the remedies available through OCGA § 11-3-417 or § 11-4-407, neither of those Code sections applies.

       See Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 343 (3) (a) (514 SE2d 684) (1999) (checks accepted as payment for antecedent debt accepted for value).


text:
    A00A0997.
    ATLANTIC COAST CABLE, INC. et al. v. MALLORY et al.
    (540 SE2d 206)
   Barnes, Judge.

Atlantic Coast Cable, Inc. and Richard R. Wilbanks (collectively “ACC”) sued Peter A. Mallory and Leonard Gregory Watts, seeking to pierce the corporate veil of Questar, Inc. and obtain a judgment against Mallory and Watts personally for debts owed by the corporation. ACC presented evidence to a jury regarding the work ACC had performed for Questar in 1988 and 1989, laying and maintaining cable for a new cable system outside LaGrange. In a previous suit involving this debt, Questar consented to an entry of judgment against it for $200,000. The jury found for the plaintiffs and against both defendants in the amount of $227,143.71.

After first moving unsuccessfully for a directed verdict, Mallory and Watts moved for a judgment notwithstanding the verdict, which the trial court granted. ACC appeals, asserting that the trial court erred in granting the defendants’ motion. For the reasons that follow, we reverse.

1.
The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.

(Citation and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 326 (1) (414 SE2d 312) (1991). “A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citation and punctuation omitted; emphasis in original.) MARTA v. Mehretab, 224 Ga. App. 263, 266 (2) (480 SE2d 310) (1997).

2. To affirm the trial court’s grant of a judgment n.o.v., we must find no evidence showing abuse of the corporate form.

Although great caution should be exercised in disregarding or going behind the corporate entity, it may be done where the evidence shows that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice.

(Citation and punctuation omitted.) Pope v. Professional Funding Corp., 221 Ga. App. 552, 553 (1) (472 SE2d 116) (1996). When the issue is litigated, as it was here, the decision is generally entrusted to the jury. Id.

To pierce the corporate veil and hold an individual liable for corporate debts on the ground that the corporation was a mere alter ego of the individual, the plaintiff must show that the individual defendants abused the corporate form. Amason v. Whitehead, 186 Ga. App. 320, 322 (367 SE2d 107) (1988).

[I]t must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and that to adhere to the doctrine of corporate entity would promote injustice or protect fraud.

(Citation and punctuation omitted.) Marett v. Professional Ins. Careers, 201 Ga. App. 178, 180-181 (1) (b) (410 SE2d 373) (1991).

With regard to Mallory, ACC presented evidence at trial that Questar paid Mallory a total of $330,000 between May and August 1989, while ACC’s invoices to Questar went unpaid. Mallory personally paid third parties to buy franchise rights on Questar’s behalf, and his personal account was debited $16,042 for a wire transfer to a third party on Questar’s behalf.

Mallory testified that the $330,000 from Questar constituted loan repayments. However, the only documentation of these “loans” was checks or account debits from his personal account to Questar, Watts, or to third parties on Questar’s behalf that totaled only $311,372. Mallory, who was president of Bank of Troup County from 1986 to 1989 or 1990, did not have any formal loan documents with Questar.

With regard to Watts, ACC presented evidence that he received a $200,000 check from Questar in August 1989, which he used to buy a 30-day certificate of deposit in his own name. He testified that this money was not a loan repayment, but did not explain what this money was for. After 30 days, he returned the funds to the corporate account. Watts paid personal income tax on the interest he earned on the $200,000.

“The corporate veil may be pierced where the parties themselves have disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661) (1987). Here, ACC presented evidence that Mallory paid corporate debts to third parties from his personal account and wrote checks to Watts, not to the corporation. Watts took corporate money, bought a CD in his name, and kept the interest the corporate money earned.

Decided September 28, 2000.

Andersen, Davidson & Tate, William M. Ray II, Christopher R. Stovall, for appellants.

Andre, Blausten & Green, S. Wade Malone, Kenneth D. Teal, Hoke J. Thomas, Jr., for appellees.

Furthermore, Mallory testified that he ceased acting as Ques-tar’s president in 1989, long before Questar entered into its sales contract with McDonald Corporation or paid him $330,000. However, ACC then presented evidence that Mallory had signed numerous documents as Questar’s president in 1989, after the time he claimed he was no longer president. The jury was entitled to consider this evidence in evaluating the credibility of Mallory’s testimony that the $330,000 consisted entirely of loan repayments.

As the evidence for Mallory and Watts was not plain, palpable, and indisputable, some evidence supported the jury verdict, and all of the evidence did not demand a verdict for Mallory and Watts, the trial court erred in granting the judgment n.o.v. and setting aside the jury verdict. Bryant v. Colvin, 160 Ga. App. 442, 445 (287 SE2d 238) (1981).

Judgment reversed.

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

       Checks from Questar to Mallory:
      5/15/89 $ 80,000 7/11/89 $100,000
      6/8/89 100,000 8/11/89 50,000

       Checks from Mallory to others:
      7/14/88 Greg Watts $ 2,330 12/8/88 Questar $30,000
      7/28/88 Greg Watts 5,000 12/28/88 John Weeks Ent. (debit) 16,042
      8/23/88 Questar 40,000 1/17/89 Wayne Lee 10,000
      9/12/88 Questar 10,000 1/17/89 T. A. Cox 10,000
      10/11/88 Questar 40,000 1/24/89 Questar 35,000
      11/23/88 Questar 113,000