text:
    A97A1635.
    STONE v. THE STATE.
    (494 SE2d 48)
   Smith, Judge.

Gary Frederick Stone was indicted by a Cobb County grand jury on charges of trafficking in cocaine, OCGA § 16-13-31 (a) (1), possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), possession of less than one ounce of marijuana, OCGA §§ 16-13-30 (j) (1), 16-13-2 (b), possession of more than one ounce of marijuana, OCGA § 16-13-30 (j) (1), possession of a firearm during commission of a crime, OCGA § 16-11-106 (b) (4), and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). The trial court directed a verdict on the charge of possession of cocaine with intent to distribute. The jury acquitted Stone of the charge of possession of more than one ounce of marijuana but convicted him of all remaining charges. Stone’s motion for a new trial was denied, and he appeals, asserting the general grounds and ineffective assistance of counsel. We affirm.

1. Construed in favor of the jury’s verdict, the evidence shows that officers of the Marietta-Cobb-Smyrna narcotics unit received information that a black male named Gary Stone driving a green and gold Astro van would be delivering cocaine to a particular location. The officers set up a surveillance, the van arrived on the scene, and the officers approached it. Another individual, Waller, was driving the van, and Stone was in the rear, along with a quantity of cocaine in plain view. An officer testified that she found a bag containing smaller baggies of suspected cocaine and marijuana in the rear of the van. A loaded .44 revolver was found in a seat pocket within arm’s reach of Stone. Stone had $1,558 on his person.

The officers then obtained a search warrant for Stone’s residence and found a pot on top of the stove containing a milky substance that, in one officer’s experience and knowledge, was used for “cooking crack cocaine.” Another officer testified that the rim of the pot was coated with what appeared to be cocaine residue. The officers also found a shoebox containing uncooked rice, which in the witness’s experience was used for keeping cocaine dry, and some United States currency. Relying on information received from Waller, the officers then located Stone’s girlfriend and obtained her permission to search her apartment. There they found approximately 371 grams of cocaine, 118 grams of marijuana, razor blades, scales, and glass beakers in a cooler in the hall closet, as well as approximately $15,800 in cash in the refrigerator.

(a) In asserting that the trial court erred in denying his motions for directed verdict and for new trial, Stone contends the State “convoluted and mixed” the drugs seized in three separate searches to the point that the chain of custody of the drugs could not be proved. During the testimony of one officer, Stone challenged her to identify the State’s exhibits and match them to the appropriate custody records; she was unable to do so. Stone immediately moved for a directed verdict, on the basis that the State was required to establish a chain of custody for all the drugs from arrest to trial. During the colloquy that followed, the prosecutor stated that some of the drugs apparently had been destroyed or combined in a single exhibit. The trial court denied Stone’s motion as premature, but cautioned the State that the drugs found on the scene must be “linked up” with the chemical analysis before the State rested its case.

The State offers no assistance on this issue in its appellate brief, merely making the conclusory statement that the State placed into evidence “the entire chain of custody,” a statement that is entirely unsupported by citations to the record. A review of the transcript, however, reveals that this assertion is for the most part correct. After the discussion with the court regarding the chain of custody, the State recalled several of the arresting officers. The officer who found the bags in the rear compartment of the van testified that she gave them to an agent in charge of the case. The agent in charge of the case testified that he received the bags from the first officer and prepared a property control form describing the bags and their contents. The agent in charge also testified that he seized other material in plain view in the van; he prepared a second property control form describing this additional material. The agent in charge further testi-fled that he weighed, packaged, labeled, and sealed all the material in manila envelopes and placed them in a locked drop box.

The agent reviewed the official report from the Division of Forensic Sciences, showing the separate items received in the crime laboratory. While initially unable to account for one manila envelope on the report, the agent after refreshing his memory was able to testify that the envelope contained evidence received the day before the incident for which Stone was on trial. The former evidence officer for the narcotics unit testified that he transported the evidence bags, unopened, from the locked drop box to the crime lab. The forensic chemist at the crime lab testified that she received the evidence bags unopened, undamaged, and unaltered. The material in the bags tested positive for cocaine and marijuana.

With respect to the drugs found in the apartment, another officer identified suspected marijuana and cocaine found inside the cooler in the hall closet. He turned those bags over to the agent in charge of collecting evidence. He identified the property sheet listing the suspected cocaine and marijuana. The agent in charge of the case testified that he prepared the property sheet for these two items, weighed, packaged, sealed, and signed the items, and placed them in the locked drop box at the narcotics office. The former evidence officer testified that he also carried these items to the crime lab, and the forensic chemist received the items sealed and unaltered, and they tested positive for cocaine and marijuana.

At trial, however, the agent in charge of the case was unable to account for one bag of marijuana listed on the official report as found in the vehicle by matching it to the exhibits at trial, and the present evidence officer testified that he inadvertently destroyed some of the marijuana in the Stone case after it was returned from the crime lab.

To show a chain of custody adequate to preserve the identity of fungible evidence, the State has the burden of proving with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not foreclose every possibility of tampering, however, and need only show “reasonable assurance” of the identity of the evidence. Quinn v. State, 209 Ga. App. 480, 482 (3) (433 SE2d 592) (1993). The record in this case demonstrates that the chain of custody of the drugs was sufficiently established to support Stone’s convictions.

The only item unaccounted for by the combined testimony of all the investigating officers from arrest to courtroom was the larger amount of marijuana which formed the basis for the felony possession of marijuana charge. But neither the lack of precise recollection on the part of a witness nor the destruction of drugs after testing by the crime lab is fatal to the chain of custody. See generally, e.g., Green v. State, 165 Ga. App. 702 (2) (302 SE2d 604) (1983). The elements of a drug offense may be proved beyond a reasonable doubt by other evidence even if part or most of the drugs themselves have been destroyed. See, e.g., Evans v. State, 176 Ga. App. 818, 822 (2) (338 SE2d 48) (1985) (rational juror could have found that 2,000 pounds of contraband had been discovered when State retained only two pounds); Lang v. State, 165 Ga. App. 576, 579 (4) (302 SE2d 683) (1983) (conviction for trafficking in over 100 pounds of marijuana affirmed when State retained only 100 grams). But we do not reach these issues because the jury acquitted Stone of this charge; he therefore cannot complain that the trial court erred in failing to direct a verdict of acquittal. Columbus v. State, 200 Ga. App. 81, 82 (2) (406 SE2d 576) (1991).

(b) Stone also asserts a fatal variance between the indictment and the evidence at trial. The indictment alleged that he “did unlawfully, knowingly sell, deliver and be in possession of” (emphasis supplied) the drugs. Stone contends that the State was required to prove all three acts as alleged but failed to do so because he was arrested before the sale could be completed. This contention is without merit. If a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form. Gordon v. State, 199 Ga. App. 704, 705 (1) (406 SE2d 110) (1991). There was no fatal variance because the evidence was sufficient to show defendant violated the statute prohibiting trafficking in cocaine in at least one of the ways alleged in the indictment.

2. Stone also contends he was denied effective assistance of counsel. He raises three instances of allegedly ineffective representation on the part of several of the numerous attorneys who acted as his counsel before and during trial. Stone complains of his counsels’ failure to move to sever the charge of possession of a firearm by a convicted felon, to request a limiting instruction on the prior conviction, or to advise Stone that contesting the State’s separate forfeiture proceeding could potentially harm his defense in the criminal trial. But none of the claims raised here was raised in the trial court.

“Defendant through appellate counsel raises a second claim of ineffective assistance of counsel against trial counsel, basing that claim on grounds which are different from those supporting the original claim of ineffective assistance. ... A defendant has an obligation to raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised is deemed waived. [Cit.]” (Footnote omitted.) Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993).

Decided November 3, 1997

Reconsideration denied November 14, 1997

John Matteson, for appellant.

Like Hayes, Stone “asserts no error concerning the trial court’s' ruling on the original claim of ineffective assistance.” (Emphasis omitted.) Id. at n. 2. While Stone filed a short amendment to his motion for new trial alleging a wide variety of failures on the part of his pretrial and trial counsel, he failed to include in that motion any claim that counsel failed to request jury instructions, that counsel failed to advise Stone as to the potential effect of his pleadings in a forfeiture proceeding, or that counsel failed to file a motion to sever the firearms charge. The only allegation that could conceivably pertain to any of these claims was his general assertion of “failure to file pretrial motions.” And while some testimony was elicited at the hearing on Stone’s motion for new trial from his second and his fifth attorney pertaining to the issue of a motion to sever, Stone’s counsel did not present any argument asserting the failure to file a motion to sever at the hearing on the motion for new trial. Stone did not file any further amendment to the motion for new trial, and he never filed any brief in support of the motion.

It is well established that an “appellant cannot now raise and request a ruling on a ground of argument that he did not make below. [Cit.]” Evans v. State, 191 Ga. App. 364, 365 (2) (381 SE2d 760) (1989). Merely eliciting testimony in the course of a hearing, without raising any argument concerning that testimony in a motion, brief, or argument before the trial court, is insufficient to place the trial court on notice as to what is being asserted and the grounds for the assertion. In this case, the absence of any argument or supporting legal authority for Stone’s broad and general motion forced the trial court in effect to guess at Stone’s contentions with regard to the alleged instances of ineffective assistance. Because the allegations of ineffectiveness raised by Stone on appeal differ from those raised below, they are deemed waived. Hayes, supra. See also Jones v. State, 226 Ga. App. 619, 623 (7) (487 SE2d 371) (1997).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Thomas J. Charron, District Attorney, Irvan A. Pearlberg, Andrew J. Saliba, Assistant District Attorneys, for appellee.

       But this officer seized only a portion of the material found in the van, and she immediately turned that package over to the agents in charge of the case.

       Stone fired his first attorney. His second attorney withdrew from representation before trial. His third and fourth attorneys were replaced by a fifth attorney whom Stone retained to represent him at trial. A sixth attorney filed Stone’s motion for new trial, and a seventh attorney amended Stone’s motion for new trial to allege ineffective assistance of counsel. This seventh lawyer continues to represent Stone on appeal.

       The trial court treated Stone’s general allegation with regard to pretrial motions as complaining of failure to file a motion to suppress evidence.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A2420.
    MAYES v. THE STATE.
    (494 SE2d 34)
   Johnson, Judge.

A jury found John Mayes guilty of possession of cocaine, aggravated assault and burglary. He appeals from the judgment entered on those convictions.

1. Mayes asserts trial counsel was ineffective for failing to file a timely motion to suppress evidence. Some factual background is necessary to understand this allegation of error. The victim in this case, Bertha Goodroe, was an 87-year-old woman who lived alone. When her caretaker arrived one morning, he rang the doorbell as usual, but got no response. The caretaker went to a neighbor’s house, and the sheriff was called. When the sheriff arrived, they entered the house and found Goodroe on the floor covered with blood and bruises on her leg, ankle, neck and face. A screen door to the house had been cut, and a window on the porch was broken. The house had been ransacked. Goodroe was taken to the hospital for treatment. She never recovered sufficiently to be able to return to her home, and she died less than eight months later.

At about the same time the events described above were taking place, Mayes approached a woman as she was picking strawberries near Goodroe’s house. The woman testified at trial that she had known Mayes since he was very small. Mayes offered to give her $20 to have sex with him. When she refused, he became abusive, calling her names. She noticed he had blood on his shirt and pants and was acting “very strange.” After Mayes left, the woman reported the incident to the police, who stopped him shortly thereafter to question him. The officer testified he saw a bulge in Mayes’ pocket and conducted a pat-down search for weapons. The officer pulled a small Bible out of Mayes’ pocket, and as he did so, a razor blade with white residue on it fell to the ground. Mayes was taken to the jail for further questioning, both about this disorderly conduct incident and about an unrelated burglary which had occurred two nights before. The police asked Mayes if he would consent to giving a urine sample because it seemed like Mayes was “on something.” Mayes agreed to give the sample, after which he was released.

At a hearing on the motion for new trial, trial counsel testified that she did not file a motion to suppress the cocaine found on the razor blade because the police chief told her that Mayes was under arrest at the time the razor blade was found. She concluded that the search incident to the arrest was legal and a motion to suppress would have been without merit. After Mayes was arraigned, she testified, the police chief changed his opinion of the events, maintaining that Mayes had not been under arrest at the time. Counsel then filed a motion to suppress, but it was denied as untimely.

“It is clearly settled that the mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel. . . . For example, it is not deficient to fail to file a motion which is frivolous. Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, [Mayes’] burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.” (Citations and punctuation omitted.) Edwards v. State, 224 Ga. App. 332, 334 (3) (a) (480 SE2d 246) (1997). Here, the cocaine was discovered as a result of an appropriate Terry pat-down frisk for weapons. Therefore, it is unlikely that the cocaine residue on the razor blade would have been suppressed even if trial counsel had known that Mayes was not in custody at the time it was found. It is uncontroverted in the record that Mayes consented to the urine screen. In this case Mayes cannot make the requisite strong showing that the evidence would have been suppressed had counsel made a timely motion to suppress.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Rogers v. State, 210 Ga. App. 164 (2) (435 SE2d 457) (1993). The trial court’s conclusion that Mayes’ trial counsel was not ineffective for failing to file a timely motion to suppress was not clearly erroneous and will not be disturbed.

2. While Mayes was being interviewed and subsequently released, police were investigating the incident giving rise to this case. As a result of information learned during that investigation, Mayes was picked up again some two hours after his release, as a suspect in this case. Mayes gave a custodial statement in which he described his activities the previous day. In the course of his statement he admitted that he had used crack cocaine in the past, but had not used any for approximately one month. On appeal Mayes argues that the trial court erred in allowing his character to be placed into issue by the use of his statement regarding prior drug usage. We disagree. Mayes made the statements regarding his prior cocaine use as part of his explanation of the reasons he would not have committed the offense of possession of cocaine as alleged. The references went to motive, intent and course of conduct, and as such were material and admissible. See Dampier v. State, 245 Ga. 427, 433 (10) (265 SE2d 565) (1980). “Evidence which is otherwise admissible is not rendered inadmissible because it incidentally places the defendant’s character in issue.” (Citations and punctuation omitted.) Thomas v. State, 199 Ga. App. 49, 50 (3) (404 SE2d 315) (1991). See Greer v. State, 199 Ga. App. 106, 107 (1) (403 SE2d 825) (1991).

Decided October 29, 1997

Reconsideration denied November 14, 1997

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Edwin L. Albright, E. Wayne Jernigan, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1288.
    FLY v. THE STATE.
    (494 SE2d 95)
   Judge Harold R. Banke.

Thomas Fly, acting pro se, was convicted of four counts of aggravated stalking. In his pro se appeal, he enumerates ten errors.

This case arose after Fly, then a co-worker of the victim, asked her to purchase theater tickets from him. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). After the victim responded that she lacked the funds, she accepted Fly’s offers to trade a ticket for handicrafts she made and pick her up for dinner prior to the play. This event in November 1991 was their only “date.”

Over the next several months, Fly continued to leave the victim increasingly invasive messages and presents, including a burglar alarm he left on her doorstep with a message that breaking into her home would be easy. It subsequently became apparent that Fly had access to the victim’s computer at her new job. The victim informed her supervisor, who learned that Fly was then working for a subcontractor. When Fly was discharged, he blamed the victim for telling her supervisor. He left the victim a note which said “be aware that you have got about a billion heart beats left . . . and your parents have no more than a few hundred million. . . .” Fly continued calling the victim and began sending numerous letters to the victim’s parents, brother, friends, and her former employer about his feelings for her.

In January 1993, he left her two letters and two $100 bills. One of the letters stated, “I hope you don’t have to die or nearly die to realize that I really cared about you and that maybe it is not in the past tense.” After receiving this, the victim changed her telephone number, but Fly continued to leave her messages at work. The letters he sent made it clear that he was watching her house, going through her trash to obtain the addresses of her friends, and following her. The victim began burning her trash.

After subsequent letters established that Fly had tapped the victim’s phone, she swore out a warrant on eavesdropping charges and obtained a restraining order prohibiting Fly from contacting her. Three months later, Fly began leaving the victim phone messages with quotes from movies. Fly also contacted the victim’s mother, her friends, a co-worker, her minister, and the dean of her law school.

Fly pleaded guilty to the eavesdropping charges. One of the conditions of his probation was to refrain from contacting the victim. After several months, however, Fly sporadically resumed contact, leaving her songs about lies and death.

On June 6, 1994, Fly left several messages on the victim’s voice mail at work. Two of the messages were songs, including “Sympathy for the Devil.”

On June 12,1994, Fly left a message from a movie called “Fright Night” in which a young man is accused of killing a girl. This fright-, ened the victim so much she moved out of her apartment for a month, until Fly was arrested and jailed. During that month, Fly continued to leave her messages and packages and he contacted her friends.

On August 1, 1994, Fly sent the victim’s minister a letter from jail which enclosed a copy of a letter he had sent to the victim’s father. This letter stated in part, “I have nothing but loathing and contempt and revulsion for [the victim] and anyone remotely like her. She is self interested [sic], vengeful, vindictive, and hateful and fundamentally dishonest. She is the only person with whom I have been personally acquainted that I can truly say I hate, and if she is my enemy it is only because she made me her enemy.” On August 19, 1994, the victim received a letter from Fly which included a cartoon and articles with references derogatory to lawyers.

After a hearing, Fly’s probation was reinstated on the condition that he leave the State and refrain from contacting the victim or anyone affiliated with her. Three months later, he left her a message and the victim again changed her phone number. Within a week, Fly left a cassette tape on the hood of her car during the night. Fly was arrested again, but he continued to send letters to the victim and her parents from jail. On May 11, 1995, Fly sent the victim an envelope of clippings with his bitter commentary about lawyers and the evils of the world. Held:

1. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The relevant elements of aggravated stalking are: unconsented-to contact with another for the purpose of harassing and intimidating them in violation of a condition of probation. OCGA § 16-5-91 (a). The term “harassing and intimidating” means “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm” to herself or an immediate family member and serves no legitimate purpose. OCGA § 16-5-90 (a). Overt threats of bodily harm are not required. Id.

The record shows that Fly pleaded guilty to eavesdropping and possession of an eavesdropping device in December 1993. As a condition of his probation, Fly was ordered to refrain from any contact with the victim. The record establishes Fly’s long, escalating history of harassing and intimidating the victim, beginning in 1992, when he tapped her phone, invaded her office computer, and continued his unwelcome contact, evidence sufficient to establish Fly’s intent to harass and intimidate.

The remaining elements of Count 1 were established by the victim’s testimony that she received several telephone messages from Fly on June 6, 1994. The victim characterized these messages as “mean” and “threatening” in part because they implied that Fly was inescapable. Testimony of Fly’s prior contacts and the evidence of Fly’s conviction, joined with proof that Fly sent the victim an August 15, 1994, letter from jail which included, inter alia, a cartoon depicting an aspiring lawyer as a walking piece of feces, was sufficient to justify the verdict on Count 3. Testimony that Fly sent the victim a May 11, 1995 package of articles which included a cartoon on which Fly wrote, “I wonder why you lieyer [sic] sh..s (pardon the redundancy) consider bugging a phone such a horrendous crime!” was sufficient to warrant jury consideration of Count 4. On another article in this package about a proposed exhibit at the Smithsonian which purportedly would have depicted Japan as a victim in World War II, Fly wrote racial epithets in reference to the judge who sentenced him on the eavesdropping case and sarcastically congratulated the victim on her great victory at Pearl Harbor, presumably a reference to her taking an aggressive stance while assuming the role of victim.

In isolation, none of the cartoons, clippings, or comments which provide the basis for Counts 3 and 4 would elicit reasonable fear of death or bodily harm. However, viewed in the context of Fly’s lengthy history of unhealthy, unremitting, and increasingly hostile communication with the victim, her friends, and acquaintances, we believe the issue of the reasonableness of the victim’s fear presented a jury question. See Hall v. State, 226 Ga. App. 380, 383 (b) (487 SE2d 41) (1997) (analyzing sufficiency of evidence of reasonable fear in the context of the parties’ prior dealings).

2. Fly’s contentions that the aggravated stalking statute is unconstitutionally vague and over broad are foreclosed by Johnson v. State, 264 Ga. 590, 592 (1) (449 SE2d 94) (1994). As to Fly’s inference that his First Amendment rights were somehow abridged by his prosecution, “[c]onduct found to be in violation of the law is not among the ‘constitutionally protected’ freedoms. [Cit.]” Adkins v. State, 221 Ga. App. 460 (471 SE2d 896) (1996). Notwithstanding Fly’s argument to the contrary, the stalking statute is not “content-based,” speech-restrictive legislation. In light of the evidence, a reasonable person would consider Fly’s contact with the victim harassing and intimidating.

3. We reject Fly’s claim that, while exercising his right to self-representation, he was denied due process by such events as the denial of bond and an inability, due to the conditions of his incarceration, to adequately prepare for trial. Even when insisting on the right to self-representation, the right to effective assistance of counsel does not entitle a defendant to bail. Reedman v. State, 193 Ga. App. 688, 689 (1) (388 SE2d 763) (1989). The record refutes Fly’s claim that he was denied the right to prepare for trial. See Myron v. State, 248 Ga. 120, 121 (3) (281 SE2d 600) (1981). It demonstrates that the trial court appointed Fly “stand-by counsel,” assured his access to the jail’s law library, granted his requests for ear plugs, specialized writing tools, office equipment and access to a copier. Notwithstanding Fly’s contention to the contrary, the trial court’s denial of his request for a personal computer did not rise to the level of a constitutional violation. See id. The record also establishes that Fly knew of the noisy and constrained conditions at the jail when he insisted on representing himself, although he may not have known of the complications involved transporting him to the courthouse to await trial. Id. Assuming, arguendo, that the conditions Fly faced created an error of constitutional magnitude, we are satisfied, in light of the overwhelming evidence against him, that any error was harmless. Ross v. State, 195 Ga. App. 624, 627 (4) (394 SE2d 418) (1990).

4. Admission of testimony regarding Fly’s conduct prior to the offenses and the enactment of the aggravated stalking statute was not error. Indeed, such evidence was vital to establish the elements of intent and the purpose of harassing and intimidating. Because the indictment addressed conduct which occurred after OCGA § 16-5-91 was enacted, this case lies beyond the ambit of the prohibitions against ex post facto prosecutions. See Logan v. State, 212 Ga. App. 734, 736 (1) (b) (442 SE2d 883) (1994).

Decided November 14, 1997

Thomas Fly, pro se.

J. Tom Morgan, District Attorney, Anne Long, Desiree S. Peagler, Assistant District Attorneys, for appellee.

5. The trial court did not err in determining that the history of prior contact between the parties did not constitute similar transaction evidence, but showed motive and intent. See McTaggert v. State, 225 Ga. App. 359, 365 (2) (483 SE2d 898) (1997). Moreover, notwithstanding that ruling, the record reveals that the court in effect conducted a hearing in which the State satisfied the requisites of USCR 31.3 (B). Id. Thus, the error, if any, was harmless. Ross, 195 Ga. App. at 627 (4).

6. The trial court did not abuse its discretion in excluding evidence from Fly’s eavesdropping case of tape recordings of conversations he tapped on the victim’s telephone. Martin v. Williams, 215 Ga. App. 649, 651 (3) (451 SE2d 822) (1994). Notwithstanding Fly’s argument to the contrary, we fail to see its relevance to his defense. Compare id.; see Court of Appeals Rule 27 (c) (3) (i) (requiring citations to the record).

7. The trial court did not abuse its discretion by refusing Fly funds for an investigator and expert witnesses. Wilson v. State, 250 Ga. 630, 633-634 (2) (b) (300 SE2d 640) (1983). Fly offered no credible reason for needing an investigator. His failure to assert an insanity defense or claim he was guilty but mentally ill undermine his assertion that a psychological expert was needed. Id. The only truly disputed factual issue here was whether Fly’s contact with the victim was for the purpose of harassment or intimidation. See Welch v. State, 237 Ga. 665, 672 (8) (229 SE2d 390) (1976). Under these circumstances, we fail to see the necessity of an investigator or a psychological expert. Further, in light of the elements of the offense and the overwhelming evidence against Fly, we find the exclusion of purported expert testimony that he was non-violent harmless beyond a reasonable doubt. See McKinney v. State, 218 Ga. App. 633, 635 (3) (463 SE2d 136) (1995).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       The minister testified that in total Ply had sent him over 200 letters and other materials.

       The indictment originally charged six counts of aggravated stalking. Counts 4 and 5 were dismissed before trial. The court then converted the original Count 6 to Count 4.


text:
    A97A1773.
    BOONE v. THE STATE.
    (494 SE2d 100)
   Judge Harold R. Banke.

A jury convicted Henry E. Boone of weaving on the roadway, speeding, fleeing and attempting to elude a police officer, driving with a suspended license, reckless driving, obstruction of an officer, robbery by sudden snatching, possession of a firearm by a convicted felon, and possession of marijuana with intent to distribute. The trial court sentenced Boone as a recidivist. On appeal, Boone enumerates seven errors.

The evidence, when viewed in a light to support the verdict, showed that while deputy sheriff Charles Harrod was on patrol, he observed a vehicle weaving. Believing that the driver might be under the influence, Harrod activated his blue lights and pulled behind Boone. Instead of stopping, Boone accelerated, proceeding onto the interstate where he forced two cars off the road. Boone’s speed at times exceeded 110 mph. After Boone exited the interstate, he continued speeding and failed to heed a four-way stop. Eventually, Boone turned, slammed on his brakes, leaped from his car and began running. Drawing his weapon, Harrod chased Boone on foot, yelling for him to stop. Instead of submitting to arrest, Boone suddenly turned and tackled Harrod. A violent struggle over the handgun ensued and during the fray Boone was wounded in his left shoulder. Boone managed to obtain control over the gun and escaped. Two days later, in need of medical attention, Boone turned himself in. Police recovered the stolen weapon from a vacant house trailer.

Within ten to twelve feet of the site of the struggle, investigators recovered a sandwich bag containing marijuana. A drug agent testified that the marijuana had been packaged in three separate bags consistent with drugs packaged for sale and not personal use. At the time of the chase, Boone was on probation for the offense of possession of marijuana with intent to distribute and his license was under suspension. While in custody, Boone provided varying incriminating versions of events. Held:

1. Boone contends that he was deprived of his right to a speedy trial which he asserted only under the Sixth Amendment of the federal Constitution. Because nothing in Boone’s speedy trial demand refers to the Georgia Constitution or OCGA § 17-7-170, his claim is reviewed under the factors outlined in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) to determine whether the trial court abused its discretion in failing to grant the demand. Burns v. State, 265 Ga. 763, 764 (462 SE2d 622) (1995). Barker requires a four factor analysis of: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. Perry v. Mitchell, 253 Ga. 593, 594 (322 SE2d 273) (1984).

Boone was indicted in July 1995, filed his demand in August 1995, and was tried in August 1996. Inasmuch as Boone was incarcerated for a parole violation, he cannot show that his incarceration was attributable to an effort by the State to delay his trial. Nothing in the record indicates that the State attempted to delay the trial or that Boone sustained prejudice. Nor was the length of delay between the August 1995 demand and the time of trial excessive. Daughenbaugh v. State, 225 Ga. App. 7, 9 (482 SE2d 517) (1997) (applying federal standard to speedy trial demand asserted under federal constitution). Moreover, in light of the overwhelming evidence of Boone’s guilt as attested to by the deputy involved in the chase and its aftermath, and the videotape which captured most of the activity, it is difficult to see how the delay could have impaired Boone’s defense. Daughenbaugh, 225 Ga. App. at 10.

2. Boone contends that the trial court erred in failing to grant his motion to appoint a psychiatrist to evaluate his competency to stand trial. Prior to trial, when afforded an opportunity to argue all motions, Boone apparently elected to abandon this issue. At no time prior to or during the trial did Boone argue that he suffered from any disability or mental problems. Under these circumstances, the issue was not preserved for review. Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987) (error not raised in trial court not subject to appeal); Dupree v. State, 206 Ga. App. 4 (1) (a) (424 SE2d 316) (1992).

3. The trial court did not err in denying Boone’s motions for directed verdict as to the offenses of robbery by sudden snatching and possession of a firearm by a convicted felon.

(a) The pertinent elements of the crime of robbery by sudden snatching are: with intent to commit theft, taking the property of another from his person, by sudden snatching. OCGA § 16-8-40 (a) (3). Although Boone urges that the State failed to prove that he had the requisite intent to commit theft because he merely procured the gun to defend himself, the State’s evidence established otherwise. After Boone managed to snatch away the personal weapon belonging to Harrod, he then left the area with it and placed it in a house trailer. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to sustain the denial of the motion for directed verdict. See Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996) (trial court’s denial of directed verdict reviewed by sufficiency standard).

(b) Although Boone claims that his prior felony conviction is void because he entered a guilty plea without benefit of counsel, the record indisputably demonstrates that a defense attorney’s signature appears on the plea agreement form directly above Boone’s signature. In light of the trial evidence that Boone stole a gun from the officer’s person, a rational trier of fact could have found Boone guilty beyond a reasonable doubt of the offense of possession of a firearm by a convicted felon in violation of OCGA § 16-11-131 (b).

Decided November 14, 1997.

Jack W. Carter, for appellant.

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

4. The trial court did not err by not charging on the lesser included offense of possession of marijuana. Although the State requested the charge on the lesser included offense, Boone objected and the trial court denied the State’s request. A party cannot submit to a ruling or acquiesce to it (or, as here, solicit it), then complain about the ruling on appeal. Whisnant v. State, 178 Ga. App. 742, 744 (2) (344 SE2d 536) (1986).

5. Since Boone’s prior felony conviction was not void, the trial court did not err in sentencing him as a recidivist.

6. The trial court properly sentenced Boone for the offense of possession of a firearm by a convicted felon, notwithstanding his contention that his prior felony conviction was void.

7. The trial court did not err in sentencing Boone for the separate crimes of weaving on the roadway, speeding, and reckless driving. The elements of the offense of reckless driving are: driving a vehicle in reckless disregard for the safety of others. Here, Boone committed the act of reckless driving when while driving his vehicle, he forced two other cars off the interstate. Neither speeding nor weaving on the roadway was included in the reckless driving offense as a matter of fact. OCGA § 16-1-6 (1). See Dawson v. State, 203 Ga. App. 146, 147-148 (2) (416 SE2d 125) (1992).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

       Boone obtained appointed counsel on August 3, 1995. Inexplicably, despite having counsel, another demand for speedy trial was filed by Boone, pro se, on September 12,1995. That pro se demand was filed under OCGA § 17-7-170.


text:
    A97A1778.
    ADAMS v. THE STATE.
    (494 SE2d 92)
   Judge Harold R. Banke.

Joanna Adams was convicted of trafficking in cocaine. On appeal, Adams enumerates four errors.

The evidence, when viewed in a light to support the verdict, showed that based on information that Adams’ co-defendant, Janet Medina, was using and selling drugs, Agent James Perry initiated an undercover investigation at Babe’s, a strip club, which was Medina’s place of business. As Agent Perry negotiated a cocaine transaction with Medina, Adams introduced herself. Shortly thereafter, Agent Perry and Medina set up a drug deal for the next day in Carroll County. Both Medina and Adams met Agent Perry at the designated time and place. When Medina took the agent’s cash and left to retrieve the cocaine from her supplier, Adams remained with him and they discussed the drug deal that was underway. After Medina returned with an insufficient amount of cocaine, Medina again left, while Adams remained in the car with Agent Perry to discuss the transaction and the problems that were occurring.

Nine days after the Carroll County deal, Agent Perry attempted to obtain more cocaine from Medina. Medina informed him that she did not know anyone who could provide the desired quantity but Adams did. At the agent’s behest, Adams contacted Rene Rocamora, and arranged a meeting time and place to which Rocamora was to bring the cocaine. Rocamora arrived early and concealed a plastic baggy containing 111.7 grams (approximately four ounces) of 52 percent cocaine behind a trash dumpster. Adams assured Rocamora that she had seen the buyer’s money. Adams attempted, without success, to persuade the agent to depart with Rocamora to another location to finalize the transaction. An audiotape confirmed that Adams pointed out Rocamora to Agent Perry, that Adams had the agent count the money in front of her, and that Adams , acted at all times as the intermediary in the drug deal. After the transaction was consummated, Medina, Rocamora and Adams were immediately arrested. While in custody, Adams provided a voluntary taped statement in which she admitted that she paged Rocamora and arranged the cocaine sale. Both Medina and Rocamora pleaded guilty and testified against Adams. Medina testified that she and Adams planned to split $500 from the deal. Held:

1. Adams contends that the trial court erred in denying her motion in limine to exclude evidence of her involvement in the Carroll County drug deal. She also claims that the trial court failed to take proper curative measures to limit the prejudice after the State exceeded the bounds of the trial court’s partial exclusion. Prior to trial, the State indicated that it had no desire to have evidence of Adams’ Carroll County drug conviction admitted. Nevertheless, because the State anticipated that Adams’ defense would likely be “mere presence,” the State sought and obtained the court’s permission to elicit testimony that Adams had been a witness to the Carroll County deal and knew Medina as a drug seller and Agent Perry as a drug buyer.

Adams contends that on two occasions, the State deliberately elicited testimony from Agent Perry that exceeded the court’s limitations. In the first instance, the State asked him to “[t]ell the jury what happened there.” In narrative form, he testified that outside of Adams’ presence, Medina told him that Adams would remain with him while she left to obtain more cocaine. After Adams objected, the court instructed the jury to disregard the answer as being hearsay. Notwithstanding Adams’ claim, the response did not impermissibly ascribe an active role to her. In fact, the jury could have concluded that Adams was merely present and had been an unwitting pawn in Medina’s plan. Nor was the statement so flagrantly prejudicial that it rendered the curative instruction ineffective. Young v. State, 217 Ga. App. 575 (1) (458 SE2d 391) (1995). Under these circumstances, the trial court did not abuse its discretion in denying Adams’ motion for mistrial. Id.

In the second instance, Agent Perry testified that while he and Adams awaited Medina’s return, Adams reassured him that “everything would be okay, that Medina had done this before and the supplier was straight up, the drugs would be good, there would be no problem with the deal.” Adams’ failure to object to this testimony precludes appellate review. Jacobson v. State, 201 Ga. App. 749, 752 (4) (412 SE2d 859) (1991).

2. The trial court did not improperly restrict Adams’ cross-examination of her co-defendant. Medina had pleaded guilty to the Carroll County drug charge and also to the trafficking charge in this case. During cross-examination, Medina admitted that she had been arrested and prosecuted for selling cocaine to Agent Perry in Carroll County. At this point, the State objected to further questioning of Medina regarding her Carroll County conviction and sentence unless certified copies were properly tendered. Because the State properly asserted a “best evidence” rule objection that the prior conviction be proved by a certified copy of Medina’s conviction, the trial court did not err in restricting defense questioning in that regard. See McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995). In any event, on cross-examination, Adams’ counsel was able to explore Medina’s motives for cooperating with the State in this case and Medina’s hope to receive a light sentence. Even assuming for the sake of argument only that the trial court erred in limiting the cross-examination, in light of the overwhelming evidence of Adams’ guilt, including her own inculpatory admissions, it is highly probable that the error did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Decided November 14, 1997.

Jill L. Anderson, Monica T. Myles, Virginia W. Tinkler, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, Christie E. Draper, Assistant District Attorneys, for appellee.

3. The trial court did not err in denying Adams’ requested charge on criminal solicitation as a lesser included offense. “A person commits the .offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.” OCGA § 16-4-7 (a). Here, in light of the evidence that Adams paged Rocamora to set up the time and location of the deal, traveled to the scene of the impending drug deal which she had personally arranged, verified the amount of the purchase money, spoke with the supplier, and acted as a facilitator in the transaction, Adams’ involvement exceeded the use of mere language. Norris v. State, 176 Ga. App. 164, 168 (6) (335 SE2d 611) (1985); see State v. Davis, 246 Ga. 761, 762-763 (272 SE2d 721) (1980) (criminal solicitation statute embraces only language which creates a clear and present danger that a felony will be committed). Under these facts, criminal solicitation was not a lesser included offense in the crime of trafficking in cocaine as a matter of law or fact. Davis, 246 Ga. at 762-763 (2).

4. There was no fatal variance between the trial court’s instruction and the language of the indictment. Although the court charged that the trafficking offense occurs when a person “knowingly sells or delivers” cocaine, the indictment set forth the commission as to “knowingly séll and deliver.” However, when it charged the jury, the trial court instructed the jury to review the indictment for the exact statement of the charge. Moreover, where a person is charged in an indictment with a crime in two ways by using the conjunctive “and” but where the statute contains “or” if it is proven that the defendant violated the statute in either way he may be convicted. Jones v. State, 75 Ga. App. 610, 614-615 (4) (44 SE2d 174) (1947). See Lubiano v. State, 192 Ga. App. 272, 274 (1) (a) (384 SE2d 410) (1989).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Adams had two opportunities to object to this testimony and did not. Following Adams’ motion for mistrial, outside the jury’s presence, the trial court had the agent state what his testimony would be. His statement included Adams’ reassurances. Adams made no objection. When the jury returned, the agent testified without objection about Adams’ reassurances.


text:
    A97A1785.
    CARTWRIGHT v. THE STATE.
    (494 SE2d 99)
    Decided November 14, 1997.

      Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.
   Judge Harold R. Banke.

After a bench trial in state court, Christopher Cartwright was convicted of nine counts of theft by deception. In his sole enumeration of error, Cartwright challenges the state court’s jurisdiction.

This case arose after Cartwright moved in with the victim, a disabled man surviving solely on social security. Over a three week period, Cartwright paid the victim for food and services with nine checks which were returned for insufficient funds. None of the checks was written for an amount exceeding $280. Held:

Cartwright contends that the state court lacked jurisdiction over his case because theft by deception is “automatically” a felony. This argument is foreclosed by Royster v. State, 226 Ga. App. 737 (487 SE2d 491) (1997), in which we rejected this argument.

State courts have jurisdiction over “the trial of criminal cases below the grade of felony.” OCGA § 15-7-4 (a) (1). The Code defines felonies in pertinent part as crimes punishable by imprisonment for more than 12 months. OCGA § 16-1-3 (5). “[A]ny crime other than a felony” is a misdemeanor. OCGA § 16-1-3 (9).

Whether a crime is classified as a misdemeanor or a felony with the option of misdemeanor punishment depends on the specific language of the statute under which the defendant is charged. See Williams v. State, 222 Ga. App. 698, 699 (1) (475 SE2d 667) (1996). Violations of OCGA § 16-8-3, under which Cartwright was charged, “shall be punished as for a misdemeanor except:. . . [i]f the property which was the subject of the theft exceeded $500.00 in value. . . .” OCGA § 16-8-12 (a) (1). Under the circumstances of this case, where none of the checks exceeded $280, the trial court lacked discretion to impose anything other than a misdemeanor sentence. Compare Bass v. State, 169 Ga. App. 520 (313 SE2d 776) (1984); Andrews v. State, 130 Ga. App. 2, 3 (202 SE2d 246) (1973). Accordingly, we find jurisdiction in the state court permissible.

Mack v. Ricketts, 236 Ga. 86 (222 SE2d 337) (1976) does not require a different result. As we observed in Royster, “Mack involved neither jurisdictional nor due process issues, but was ‘narrowly’ decided on a claim of error asserting, in essence, a variance between the allegata and probata.” Royster, 226 Ga. App. at 738-739. We therefore affirm.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Louis J. Kirby, Solicitor, for appellee.


author: Beasley, Judge.

text:
    A97A1399.
    GRINDLE v. CHASTAIN et al.
    (493 SE2d 714)
   Beasley, Judge.

This is a case to remove an obstruction from a private way. See OCGA § 44-9-59. A prior decision affirmed the trial court’s denial of Robert Grindle’s motion for judgment notwithstanding the mistrial (“Grindle F). Since the decision is unreported, it establishes the law of the case for the parties but does not constitute precedent. OCGA § 9-11-60 (h); Court of Appeals Rule 33 (b). Upon retrial, the jury found against Grindle, who now claims the court erred in failing to grant a directed verdict, in excluding certain evidence, and in failing to give all his requested jury charges. The appeal is from the judgment and from the order dismissing Grindle’s motion for new trial. Because the obstruction (primarily a gate and fence) has been removed, some of these assertions of error are moot. Those which are not moot are without merit.

Factual Background

D. W. Lunceford, Jr. bought a tract of land along the Chestatee River in 1967. Included in the tract was a stretch of the river known as Grindle Shoals, a natural beach and pool area near cascading water. A dirt road running through the tract provided pedestrian and vehicle access to this area from the public highway.

In 1978, Lunceford began to subdivide the property and sell lots along the river to various individuals, including Grindle and Mr. and Mrs. Whitley. The road to Grindle Shoals passed through all the lots sold, including the Whitley and Grindle lots, which were two of the lots closest to the shoals. The 1978 Whitley deed referenced an entrance road which crossed the lot, and the 1979 Grindle deed stated: “There are two permanent access roads which are the entrance to and which cross this lot.” Deeds to other lot purchasers contained similar language, while other deeds explicitly granted easements “for ingress and egress along the existing roadways.” Lunceford testified he and Grindle had an express understanding at the time he sold the property to Grindle and for the next ten plus years that Lunceford’s family and any lot owners in the future would have an easement to use the road traversing Grindle’s lot to access Grindle Shoals.

In 1979, Lunceford had a plat made of the property, which contained the notation: “All interior roads are private with a 40 foot easement reserved along the center line.” The road at issue was shown. In 1980, Lunceford issued new deeds to the Whitleys and Grindle, correcting the amount of acreage conveyed and referencing the plat. In 1984, Lunceford publicized Grindle Shoals as a “common use area” for all those owning property in the Grindle Shoals subdivision and set forth rules of conduct governing its use.

Substantial evidence demonstrated that the road to Grindle Shoals existed at the time Lunceford purchased the property, existed for the next 11 years before he sold lots to the Whitleys and Grindle, existed when he sold lots to the Whitleys and Grindle, and has since existed continuously. Over the years, Lunceford has paid Grindle in excess of $8,000 to maintain the road.

To keep non-property owners from using Grindle Shoals, a gate was erected near the subdivision’s entrance. It was later moved further into the subdivision and eventually ended up at the Grindle property line. Based on the common understanding that property owners in the subdivision had access to Grindle Shoals through the road, Grindle gave property owners keys to the lock on the gate and posted a sign warning: ‘You are trespassing unless accompanied by a property owner.” For years the property owners used the road for access to Grindle Shoals.

In 1990, the Whitleys abruptly erected a gate at their property line to prevent anyone, including property owners, from using the road. Shortly thereafter, Grindle changed the lock on the gate on his adjacent property and similarly refused access to everyone.

Procedural History

The other property owners filed a petition in the probate court against Grindle and the Whitleys to remove an obstruction from a private way. See OCGA § 44-9-59 (a). The probate court found plaintiffs had failed to establish the existence of a private way.

Plaintiffs appealed the probate court’s determination to the superior court, OCGA § 5-3-2, which tried before a jury the issues of easement by express grant and by adverse possession. The jury found against plaintiffs on the issue of right-of-way by adverse possession and returned a verdict against the Whitleys on the issue of right-of-way by express grant. The Whitleys’ obstruction was then removed. Because the jury was unable to reach a verdict as to Grin-dle, the court declared a mistrial and ordered a retrial as to Grindle only. The court denied Grindle’s motion for judgment notwithstanding the mistrial, which was affirmed in Grindle I.

At retrial, the parties introduced substantially the same evidence as presented at the first trial. The jury found Lunceford had retained the right to use the road through Grindle’s lot, and the court entered judgment that the five remaining plaintiffs (who had received their lots from Lunceford) had obtained the right to cross Grindle’s land and that he was to remove the obstructions. Grindle immediately moved for a new trial, and a month later sought super-sedeas pending disposition of the motion. In seeking supersedeas, which the court denied, Grindle conceded he had removed the obstruction “under protest” that same day. Plaintiffs moved to dismiss the new trial motion on procedural and mootness grounds, the court granted it, and this appeal followed. Grindle sought no superse-deas bond.

1. The plaintiffs claim the appeal is entirely moot because Grin-dle failed to obtain supersedeas and the obstruction has already been removed. See Padgett v. Cowart, 232 Ga. 633 (208 SE2d 455) (1974). They are partially correct.

To prevent the appeal of a mandatory injunction from becoming moot, “it is necessary for the appealing party to obtain a supersedeas. If a supersedeas is not obtained, then the ordered action takes place as ordered, and the appeal becomes moot.” Padgett, supra at 634. But Radio Webs v. Tele-Media Corp., 249 Ga. 598, 604-605 (2) (292 SE2d 712) (1982), held the “seeking or obtaining of supersedeas is not always determinative of the party’s right to pursue an appeal; to rule otherwise would be to place an intolerable burden of emergency action on the superior courts and on this court merely as a formality to preserve the right to appeal. . . . [W]e will proceed case by case and not require its pursuance in every case.”

The primary criterion in making this determination is whether the “appellant would derive [any] benefit” from the appeal. Howard v. Smith, 226 Ga. 850, 851 (178 SE2d 159) (1970); see Essuon v. Raynor, 231 Ga. 297, 298 (2) (201 SE2d 416) (1973) (appeal only moot as to injunctive relief, not as to damages). On this criterion, four of Grin-dle’s enumerations of error are moot; two pertain to the exclusion of evidence and two pertain to the failure to give jury charges. Grindle seeks a new trial to correct these alleged errors, but it would be futile because the plaintiffs’ petition sought removal of an obstruction, which is now gone. That purpose of the action has been accomplished, and Grindle’s interests in that matter are not at further risk. The basis for the action has evaporated, and there is no relief to which plaintiffs on retrial would be entitled.

However, the judgment also found that an easement by grant existed across Grindle’s property. In his remaining two enumerations of error, Grindle argues that the jury verdict was contrary to the evidence and the law and that the court should have entered a directed verdict in his favor. Were Grindle to prevail on these points, he could benefit from a reversal of the judgment and the entry of a new judgment that there is no easement across his property. He could then construct a new barricade or otherwise seek to prevent plaintiffs from traversing his property. To this extent, the appeal is not moot.

2. Grindle I expressly addressed the sufficiency of the evidence when denial of Grindle’s motion for judgment notwithstanding the mistrial was affirmed. “A motion for judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. In applying this test, the evidence must be construed in favor of the party opposing the motion for judgment notwithstanding mistrial.” (Citations and punctuation omitted.) Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605, 606 (1) (436 SE2d 708) (1993).

Referring to the deed language and to the disputed evidence as to whether the road in question existed at the time of the deed to Grindle, Grindle I held the court did not err in refusing to direct a verdict or in refusing to grant judgment notwithstanding the mistrial. This ruling became the law of the case, OCGA § 9-11-60, ánd binding in all subsequent proceedings. The rule would be inapplicable only if the evidence at the second trial was “materially different” from the evidence at the first trial. Harrison v. Dorsey, 184 Ga. App. 870, 872 (1) (363 SE2d 151) (1987); see Ogletree v. Navistar Intl. Transp. Corp., 227 Ga. App. 11, 14-16 (488 SE2d 97) (1997).

The evidence at the second trial was substantially the same. Grindle’s deeds and disputed testimony as to the intent of the parties and as to whether the road existed were introduced at both trials. Thus, Grindle Fs ruling that such evidence was sufficient to withstand a directed verdict motion applies to preclude a directed verdict the second time around, too. Moreover, the evidence set forth above does support the jury’s verdict. “ ‘[I]f there is any evidence to sustain the verdict of the jury, an appellate court will not disturb it.’ [Cit.]” Asbury v. Ga. World Congress Center, 212 Ga. App. 628, 631 (2) (442 SE2d 822) (1994).

Grindle’s argument that the jury verdict was contrary to law similarly fails. Citing Farris Constr. Co. v. 3032 Briarcliff Rd. Assoc., 247 Ga. 578, 579 (277 SE2d 673) (1981) (implied reservation of easements not recognized under Georgia law), he contends the deeds were unambiguous and created no easement as a matter of law. Grin-dle made these same arguments in his appellate brief in Grindle I; they were rejected. The law of the case rule settles the question.

Decided October 22, 1997

Reconsideration denied November 17, 1997

B. Dean Grindle, Jr., for appellant.

Carey, Jarrard & Walker, Jack M. Carey, for appellees.

Even if the rule did not apply, the language of Grindle’s deeds referring to the road is sufficiently ambiguous to create a jury question whether the parties intended to create an easement. See OCGA § 44-5-39 (grantee bound by covenants contained in deed); Cole v. Thrasher, 246 Ga. 683, 684 (272 SE2d 696) (1980) (look to entire deed for intent of parties). Grindle’s argument that only the first deed, not the corrective deed, should be considered is unavailing. The first deed refers to the existence of permanent access roads crossing the lot, and three paragraphs later it refers to access to the shoals area. This language is ambiguous as to whether Lunceford retained a right to use the road across the lot to access the shoals, and the rules of construction do not resolve the ambiguity.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       There appears to be some question whether OCGA § 44-9-59 allows a superior court to consider easements by grant as the basis for granting a petition to remove an obstruction. See Mitchell v. Mitchell, 220 Ga. App. 682, 684 (3) (469 SE2d 540) (1996) (“relief under OCGA § 44-9-59 may be provided only when the private way arose by prescription”); Clark v. Anderson, 52 Ga. App. 500 (2) (183 SE 852) (1936). But no party raises this issue on appeal.


author: McMurray, Presiding Judge.

text:
    A97A1485.
    HOMLER et al. v. MALAS et al.
    (494 SE2d 18)
   McMurray, Presiding Judge.

Plaintiffs Robert Homier and Barbara Homier filed this breach of contract action against defendant Mohannad Malas. The complaint alleges that defendant Malas agreed to buy and plaintiffs agreed to sell a single family residence, that the agreement was conditioned on defendant obtaining a loan to finance the purchase, and that defendant breached the agreement by failing to diligently pursue in good faith his applications for a loan. The plaintiffs seek damages for the alleged breach of contract, and also expenses of litigation pursuant to OCGA § 13-6-11 and disbursement of $25,000 earnest money paid by defendant and held by the real estate agent who effected the sale, defendant Harry Norman Realtors. Defendant Malas answered denying plaintiffs’ claims, and via counterclaim and cross-claim against defendant Harry Norman Realtors sought return of the earnest money. The defendant broker, Harry Norman Realtors, interpleaded the earnest money into the registry of the trial court and sought attorney fees for having to interplead.

Defendant Malas moved for summary judgment on the ground that the contract sought to be enforced is too vague and indefinite to be enforced in that the terms of the loan to be obtained by defendant under the terms of the financing contingency are not sufficiently identified. Summary judgment was granted in favor of defendant Malas both as to plaintiffs’ claims and as to defendant’s counterclaim seeking return of the earnest money. Attorney fees of $807.50 were awarded to defendant Harry Norman Realtors and the balance of the earnest money was ordered disbursed to defendant. Plaintiffs appeal. Held:

The document executed by the parties was created using a pre-printed contract. The form included a number of blank spaces for insertion of various information. With regard to the loan contingency provisions there were blank spaces for certain terms of the loan to be obtained by the buyer. Blank spaces were completed to indicate that the agreement was conditioned on the buyer “obtaining” a loan in the principal amount of 80 percent of the purchase price to be paid in monthly installments over a term of no less than 30 years. (Although not germane to our decision of the case, we note that the pre-printed contingency clause had been altered by striking a portion of a provision that the agreement was conditional on buyer’s “ability to obtain” a loan as described and substituting the word “obtaining.”) Two spaces where interest rates could have been provided, as well as a third space where a monthly payment amount could have been provided and from which an interest rate could be calculated, were left blank.

The appellate courts of Georgia have consistently held that such a contract is too vague and indefinite to be enforced since the failure to specify at what rate the buyer is to obtain a mortgage loan causes a failure of a condition precedent to the enforceability of the contract. Bonner v. Jordan, 218 Ga. 129 (126 SE2d 613); Morgan v. Hemphill, 214 Ga. 555 (105 SE2d 580); Scott v. Lewis, 112 Ga. App. 195 (144 SE2d 460); Scarborough v. Novak, 92 Ga. App. 488 (88 SE2d 800); Williams v. Gottlieb, 90 Ga. App. 438 (1) (83 SE2d 245). While plaintiffs assert that there was no need to specify the interest rate of the loan to be obtained by defendant Malas because third-party financing, such as contemplated in the loan contingency executed by the parties, invokes a less stringent requirement to state the specific terms of the anticipated loan, the absence of any authority approving of the omission of such an essential loan term as the interest rate must be noted. Plaintiffs cite Walker v. Anderson, 131 Ga. App. 596 (206 SE2d 833), in which the interest rate was not omitted but incorporated by reference to the “prevailing interest rate” and this Court held that a loan contingency anticipating a third-party loan was enforceable under this less stringent standard even though it did not state a payment schedule for the loan such as would be necessary in the case of a deferred-payment-to-seller clause. It must be noted that variations in the payment schedule would be a matter between the lender and the buyer which would not affect a buyer’s obligations to a seller. In contrast, the interest rate is an essential term necessary to enable the courts to enforce the contract between buyer and seller.

Contrary to plaintiffs’ assertion, Barto v. Hicks, 124 Ga. App. 472, 474 (184 SE2d 188), like Walker v. Anderson, 131 Ga. App. 596, supra, is not a case in which there is a failure to specify the interest rate of the anticipated loan. Instead, the interest rate in Barto was specified by reference to the readily ascertainable “current prevailing rate.” There is nothing in the document at issue in the present case which amounts to a reference to any source from which an interest rate for the loan which defendant Malas was to seek may be determined.

Butts v. Atlanta Fed. Sav. &c. Assn., 152 Ga. App. 40 (262 SE2d 230), involves issues which arise when a person signs a writing containing blanks which are then filled in by the other party. In the case sub judice, the blanks which could have provided an interest rate for the loan to be obtained by defendant Malas were never filled in so this authority has no relevance to the facts of the case sub judice.

Plaintiffs argue at some length that Hawk v. Daugherty, 148 Ga. App. 371 (251 SE2d 390) involves facts similar to those in the case sub judice. Yet, that case may be easily distinguished on the facts in that it did not involve a loan contingency, that is, “the statement as to the loan . . . does not involve the purchaser’s obligation as to the seller.” Id. at 372.

Plaintiffs cite Tipton v. Harden, 128 Ga. App. 517 (197 SE2d 746) as a case in which “the financing contingency did not specify an interest rate, yet the contract was held to be valid and enforceable.” While some reference is made in that opinion to a contention before the lower court concerning the enforceability of the contract, that issue is not discussed in the holding of the opinion. Under these circumstances, the cited case provides no support to plaintiffs’ position.

Finally, the plaintiffs’ reliance upon Brack v. Brownlee, 246 Ga. 818 (273 SE2d 390) is misplaced. As noted in Denton v. Hogge, 208 Ga. App. 734 (2) (431 SE2d 728), the issue of mutuality of obligation discussed in Brack is a separate matter from the defense of vagueness and indefiniteness involved in the case sub judice.

The superior court did not err in granting summary judgment in favor of defendant Malas on plaintiffs’ claims. It follows that the grant of summary judgment in favor of defendant Malas on his counterclaim seeking the return of the earnest money was proper. Denton v. Hogge, 208 Ga. App. 734 (2), supra. Plaintiffs have expressly withdrawn their third enumeration of error seeking reversal of the award of attorney fees to defendant Harry Norman Realtors.

Decided October 22, 1997

Reconsideration denied November 17, 1997

Raiford, Dixon & Thackston, Tyler C. Dixon, Troy G. Rubes, for appellants.

W. Courtney Lafon, Steven G. Hall, Sami O. Malas, for appellees.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1609.
    WRIGHT v. GOSS.
    (494 SE2d 23)
   Beasley, Judge.

Goss filed an application in the Probate Court of Fulton County for letters of administration on the estate of his brother, who died in 1995. Goss averred that the decedent was unmarried. Wright filed a caveat, contending she was the decedent’s common law spouse and was entitled to administer his estate. She also asserted that the court was without jurisdiction, because she and decedent were residents of Clayton County at the time of his death. The court granted Goss’ motion for summary judgment on both grounds of the caveat.

Goss presented various documents in which decedent had identified himself as a Fulton County resident: decedent’s driver’s license, voter registration card, tax returns, and applications for loans made by him and Wright on property jointly owned by them in Clayton County. In the loan applications, both the decedent and Wright represented themselves as unmarried. In other documents (income tax returns, earnings statements, an automobile insurance application, and medical records) Wright also represented herself as unmarried. Decedent’s relatives, co-workers, neighbors and friends testified by affidavit that he never stated he was married and had always resided with his parents in Fulton County. Most affiants testified they saw him there on a regular basis. His mother and a neighbor testified he was there every night.

In her deposition, Wright testified that she and Goss had purchased the property in Clayton County as a residence years earlier and that he spent four nights a week there and the remainder of his time taking care of his ill parents. She further testified that Goss kept a few items of clothing at the residence and that their joint savings account statement was mailed to them there. According to Wright, she and Goss held themselves out as being married by his registering them as husband and wife at a motel they frequented, by her introducing him to neighbors as her husband, by wedding rings they bought for each other and wore, and by their representing themselves to her children as married. In two affidavits, neighbors testified they saw Goss at the parties’ Clayton County residence virtually every day.

1. “ ‘ “On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. (Cits.)” (Cit.)’ [Cit.] ‘In granting such motions, we must remain mindful of the jury’s role in the process to resolve any and all conflicts in the evidence. “It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. . . .” (Cit.)’ [Cit.]” Radford v. Reeves Constr. Co., 226 Ga. App. 214, 215 (486 SE2d 81) (1997).

“When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common-law marriage existed.” Baynes v. Baynes, 219 Ga. App. 848, 849 (1) (467 SE2d 195) (1996). “In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. See OCGA § 19-3-1; [cit.]” Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 777-778 (10) (403 SE2d 235) (1991). “When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. [Cit.] In the case of a common law marriage, ‘This may be done by . . . such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the fáctum of marriage. The evidence in each case is for the jury.’ [Cit.]” Brown v. Brown, 234 Ga. 300, 302 (215 SE2d 671) (1975). “ ‘ “The . . . fact of cohabitation is treated as essential, if not the main factor in establishing in this State a common-law marriage.” ’ [Cit.]” O’Neal, supra at 778 (10). Of particular import is that “such legal relationship cannot be partial or periodic,” Baynes, supra, and that the three requirements must coexist. Brown v. Brown, supra at 301.

The concept of a conflict in the evidence should not be confused with the concept that parties cannot be married only periodically. Both, of course, are valid legal concepts. The latter would mean that if the factfinder finds as true that the parties sometimes held themselves out as not married when that was convenient or served their purposes and at other times held themselves out as married, then the factfinder would be compelled to conclude that the party who has the burden to prove a common law marriage existed would fail because the evidence conclusively shows that one element is disproved: that the parties agreed to live together as husband and wife. Ga. Osteopathic Hosp., supra. It would be unlawful to agree to do that only periodically. Either you agree to be married, and married you are all the time, or you do not, in which case you are not married at all. See Baynes, supra at 849 (1).

In this case, there is conflict in the evidence. Some witnesses say the parties held themselves out as married, and others say they held themselves out as not married. Obviously, no one can testify as to what they did at all times. That is, the nature of the question requires limited-time evidence. That is not to say that the marriage-proponent has failed as a matter of law to prove a common law marriage.

If the factfinder believes that the evidence of non-marriage either was non-conclusive (such as that Goss never told his friends or family and spent all or most nights with his elderly parents) or was not credible, and the factfinder believes the marriage-proponent’s evidence, then the factfinder could find that a common law marriage existed.

It is not true that if there is any undisputed evidence that they held themselves out as unmarried (loan applications, tax returns, etc.), then as a matter of law that precludes the element that they must agree to live together as husband and wife. A person might say on government and business documents that he or she is single, in order to reduce taxes or obtain welfare or for some other personal purpose such as not wanting certain persons to know they are married, and actually be common law married. The only elements of common law marriage are capacity to contract (which was missing in Long v. Marino, 212 Ga. App. 113 (441 SE2d 475) (1994), but is present here in that there is no contrary evidence or suggestion), intention to live together as husband and wife (which there is some evidence of here in the Clayton house situation), and consummation of the agreement (which there is evidence of here).

Decided October 23, 1997

Reconsideration denied November 17, 1997

James L. Ford, Sr., Christopher G. Moorman, for appellant.

Therefore, the question of whether a common law marriage existed is for the jury.

2. “The judge of the probate court can grant administration only on the estate of a person who was: (1) A resident at the time of his death of the county where the application is made. . . .” OCGA § 15-9-31.

One’s legal residence for the purposes of this statute is the same as his domicile. Cf. Hungerford, v. Spalding, 183 Ga. 547 (189 SE 2) (1936) (equating residence with domicile under OCGA § 53-3-1 (b), which gives jurisdiction to probate the will to the judge of the probate court of the county of the testator’s residence at the time of death); see also Sorrells v. Sorrells, 247 Ga. 9, 11 (3) (274 SE2d 314) (1981) (one’s legal residence for the purpose of being sued in this state (see Ga. Const, of 1983, Art. VI, Sec. II, Par. VI) is generally the same county as his or her domicile); Worrell v. Worrell, 242 Ga. 44, 45 (1) (247 SE2d 847) (1978) (the term “resident” in OCGA § 19-5-2, relating to divorce actions, means “domiciliary”).

“ A man may have several residences, but only one place of domicile. There must be a concurrence of actual residence, and the intention to remain, to acquire a domicile. . . . “Domicile,” unlike “residence,” means a permanent place of abode[,]. . . whereas “residence” is not necessarily permanent, and may be at some place other than the place of domicile.’ ” Davis v. Holt, 105 Ga. App. 125, 129 (1) (a) (123 SE2d 686) (1961). “The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state.” OCGA § 19-2-1 (a). “The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence.” OCGA § 19-2-1 (b).

In this case, there is conflicting evidence on the question of the decedent’s domicile at the time of his death. A finding that he and Wright entered into a common law marriage would support the conclusion that he was a domiciliary of Clayton County. Conversely, a finding that no such marriage existed would lead to the conclusion that he was a domiciliary of Fulton County. The court thus erred in granting Goss’ motion for summary judgment on this ground of the caveat.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

Barron & Barron, George L. Barron, Jr., Garlan L. Barron, for appellee.

       In 1996, the General Assembly enacted OCGA § 19-3-1.1 which provides that “[n]o common-law marriage shall be entered into in this state on or after January 1,1997.” However, “[o]therwise valid common-law marriages entered into prior to January 1, 1997” are not affected and continue to be recognized.


text:
    A97A1753.
    ROWELL v. THE STATE.
    (494 SE2d 5)
   Judge Harold R. Banke.

In a bench trial, James A. Rowell was convicted of driving with an unlawful concentration of alcohol and driving on the wrong side of the road. Enumerating three errors, Rowell appeals.

Subject to certain specified grounds in his motions to suppress and in limine, Rowell agreed to stipulate that the arresting officer, M. J. Cofield, would have testified that he initiated a traffic stop after observing Rowell’s vehicle cross the centerline. Rowell further stipulated that: he received his implied consent rights, registered a reading of .20 on the Intoxilyzer 5000, and that the machine had been calibrated and inspected according to normal State procedures. Rowell specifically agreed that the test on the Intoxilyzer 5000 had been performed according to written procedures of the Implied Consent Division of the Division of Forensic Sciences of the Georgia Bureau of Investigation (“DFS”/“GBI”). He also stipulated that the machine had been inspected and calibrated according to guidelines developed and issued by the Implied Consent Division. Based on these stipulated facts, the trial court adjudicated Rowell guilty. Held:

1. (a) Rowell contends that the trial court erred in admitting the results of his breath test conducted on an Intoxilyzer 5000 machine because the State failed to establish that his test was conducted according to “methods approved” by the DFS as required by OCGA § 40-6-392 and the Georgia Administrative Procedure Act (“APA”), OCGA § 50-13-1 et seq. Rowell claims that the current DFS regulations are defective because they do not contain the specific procedures to be employed in the testing of subjects on the Intoxilyzer 5000, including the operation and calibration of the machines and specifications on the training and qualifications of the operators. He claims that the “methods” used to test him are not contained in the GBI’s published administrative regulations. He contends that the failure to publish these regulations fails to comport with OCGA § 40-6-392 (a) (1) which requires the methods be approved by DFS. Rowell argues that the State’s failure to comply with the procedural requirements of the APA deprived him of due process.

In enacting the APA, the legislature specifically provided that the APA did not “create any substantive rights” and denoted its requirements as procedural. OCGA § 50-13-22. Moreover, the legislature mandated that substantial compliance with any statutory requirement (such as the APA here), especially on the part of public officers, “shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” OCGA § 1-3-1 (c).

In a recent case, we interpreted the application of APA procedures to the testing of the Intoxilyzer 5000 machine. Corner v. State, 223 Ga. App. 353, 354 (477 SE2d 593) (1996) (where agency rules had been promulgated in substantial compliance with APA, test results were valid). See State v. Holton, 173 Ga. App. 241, 246 (326 SE2d 235) (1985) (application of APA to implied consent rules); Williams v. State, 224 Ga. App. 368, 370 (4) (481 SE2d 535) (1997). Here, Rowell advances an argument similar to that advocated in Corner, but as applied to the testing of subjects rather than to the testing of the machine.

It is undisputed that Rowell was tested according to methods approved by the GBI. In fact, Rowell stipulated that the operator had been certified as required by Rule 92-3-.06 (6) of the Rules of the GBI and that his test had been performed in accordance with Rule 92-3-.02 (2). Rowell offered not a shred of evidence that more rules or different rules were necessary to obtain accurate intoximeter results. Having offered no witnesses to challenge the testing, calibration, and operation of the machine at issue or to contest the qualifications of its operators, Rowell has not shown any harm which would justify the exclusion of the evidence. Compare State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143) (1996) (State’s failure to produce statutorily mandated inspection certificate barred admission of test results). Further, after Rowell was duly read his implied consent rights, as he conceded, he could have requested his own independent test.

As an allegedly aggrieved individual, Rowell had an available administrative remedy and could have contested the validity of the rules or procedures at issue by filing an action for a declaratory judgment. OCGA § 50-13-10. See also OCGA § 50-13-19. Even assuming arguendo that the DFS regulations at issue did not substantially comply with the APA’s procedures, Rowell failed to offer any authority which expressly provides that such noncompliance would invalidate testing results. See OCGA § 1-3-1 (c).

(b) Rowell further asserts that the State failed to establish through admissible evidence that the machine “was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order” as required by OCGA § 40-6-392 (a) (1) (A). The State’s evidence showed the machine successfully completed State testing and certification ten days before Rowell’s test and three months previously. See Williams, 224 Ga. App. at 368. Rowell offered no evidence that the. State’s testing procedures were defective or flawed, instead contending that the methods had not been validly enacted in compliance with the APA. Under the circumstances, we are unable to find that the trial court abused its discretion in admitting the certificates of inspection. Williams, 224 Ga. App. at 369-370 (2).

Decided October 14, 1997

Reconsideration denied November 17, 1997

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn,

2. We reject Rowell’s contention that the trial court erred in admitting two exhibits documenting the machine’s certification and inspection. Rowell objected to the admission of the certificates on the basis that (1) inspections of the machine on dates other than the date of his testing had no probative value, (2) the certificates contained conclusions and hearsay, and (3) the admission of the certificates without testimonial foundation denied his right of confrontation and cross-examination. Notwithstanding Rowell’s proposition to the contrary, certification and inspection of a machine need not occur on the same day as the testing. Blanos v. State, 192 Ga. App. 835, 836 (1) (386 SE2d 714) (1989).

In Brown v. State, 268 Ga. 76, 77 (485 SE2d 486) (1997), the Supreme Court determined that State certification documents in compliance with OCGA § 40-6-392 (f) were admissible as business records and did not trigger a confrontation clause issue unlike sworn certified copies of drug analyses. Compare Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996). Thus, the trial court properly rejected Rowell’s hearsay and Sixth Amendment arguments.

3. Rowell contends that the evidence was insufficient to sustain the verdict. As we determined above, the trial court did not abuse its discretion in admitting the stipulated evidence that Rowell obtained a test result of .20 on the Intoxilyzer 5000. In light of this evidence, a rational trier of fact could have found Rowell guilty of the offense of driving with an unlawful alcohol concentration within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley and Smith, JJ, concur.

Bentley C. Adams III, Larkin M. Lee, for appellant.

John H. Cranford, Solicitor, for appellee.

       In objecting to the admission of the certificates, Rowell did not claim that the State failed to lay the requisite foundation for business records admitted under OCGA § 24-3-14. See Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995) (failure to state what proper foundation should be is insufficient and presents nothing for consideration on appeal). Instead, Rowell asserted the same argument which the Supreme Court rejected in Brown, that the certificates contained “conclusions” by persons not subject to cross-examination. Brown, 268 Ga. at 79. Compare Daniel v. State, 227 Ga. App. 92, 93 (475 SE2d 610) (1997) (State’s failure to satisfy the requirements of OCGA § 24-3-14 for the admission of business records rendered inadmissible the certificates tendered under OCGA § 40-6-392).


author: Pope, Presiding Judge.

text:
    A97A0860.
    JOHNSON v. THE STATE.
    (493 SE2d 926)
   Pope, Presiding Judge.

Defendant Howard Johnson appeals his sentence of life without parole under OCGA § 17-10-7 (b) (2), arguing that the application of this Code section in his case violates the prohibition against ex post facto application of statutes. The offense for which he is being sentenced occurred after the effective date of this Code section, however. Accordingly, ex post facto considerations do not prohibit application of OCGA § 17-10-7 (b) (2), and we affirm defendant’s sentence.

In 1986, defendant was convicted of armed robbery (seven counts). Effective January 1, 1995, OCGA § 17-10-7, a recidivist statute, was amended to provide that anyone convicted of a serious violent felony who has previously been convicted of a serious violent felony must be sentenced to life without parole if he is not sentenced to death. In October 1995, the court found defendant guilty of committing an armed robbery on April 11, 1995, and sentenced him to life without parole.

Defendant contends his sentence violates the prohibition against ex post facto application of statutes because his previous conviction of a serious violent felony occurred before January 1, 1995, the effective date of the amendment. The Supreme Court of Georgia has held, however, that the prohibition against ex post facto laws is not implicated in this type of situation because the defendant is being punished for the new crime only. See Fowler v. State, 235 Ga. 535 (221 SE2d 9) (1975). Defendants sentenced under recidivist statutes “ ‘are not punished a second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt andjustifi.es heavier penalties when they are again convicted.’ [Cit.]” Id. at 536. Thus, even if the previous offense occurred before the effective date of the statute, application of the statute is not ex post facto if the offense for which the defendant is being sentenced occurred after the effective date. Id. See also Landers v. State, 250 Ga. 501, 504 (4) (299 SE2d 707) (1983); Solomon v. State, 247 Ga. 27, 32 (7) (277 SE2d 1) (1981); Lloyd v. State, 226 Ga. App. 401, 403 (5) (487 SE2d 44) (1997); Cofer v. Crowell, 146 Ga. App. 639 (247 SE2d 152) (1978).

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

Decided November 17, 1997.

Randolph E. Wynn, for appellant.

Charles H. Weston, District Attorney, Laura D. Hogue, Graham A. Thorpe, Assistant District Attorneys, for appellee.


text:
    A97A0931.
    DADE COUNTY et al. v. ELDRIDGE.
    (494 SE2d 106)
   Pope, Presiding Judge.

In 1991, a mass appraisal of all the residential property in Dade County, Georgia was conducted. During that appraisal, Janice Eldridge’s property was assessed at $221,500. In 1995, Dade County’s Chief Appraiser, Diane Burnette, reassessed Eldridge’s property at $340,430, which resulted in a significant increase in the taxes on the property. Eldridge appealed the reassessment to the Dade County Board of Tax Assessors, who voted to turn the matter over to the Board of Tax Equalization, which in turn affirmed the reassessment. Subsequently, Eldridge appealed the Board of Equalization’s ruling to the superior court. Thereafter, Eldridge filed a summary judgment motion, which the superior court granted. Dade County and both the Board of Tax Assessors and the Board of Equalization appeal. Concluding that summary judgment was proper, we affirm.

In this State, a key tenet of property tax law is that all taxes must be fairly apportioned, or equalized, among taxpayers. In this regard, OCGA § 48-5-306 (a) provides that: “The board [of tax assessors] shall see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as nearly as possible only his proportionate share of taxes.” In accordance with the above, the tax assessor must use the same standard or system to determine and fix the taxable value of all property of the same class so that the taxation of all property within that class will be uniform. See Champion Papers v. Williams, 221 Ga. 345 (144 SE2d 514) (1965); Colvard v. Ridley, 218 Ga. 490 (128 SE2d 732) (1962). Accordingly, it is illegal for a taxing authority simply to pick and choose particular pieces of property to assess and reassess without regard to uniformity, proportionality and equalization among properties of the same class.

In this case, the record shows that while riding through the county, Burnette came across Eldridge’s property and, in looking at Eldridge’s house, concluded that the house had been wrongly assessed. The only evidence as to how Burnette originally arrived at this conclusion is found in her statement that she did not believe she could buy the house for its 1991 assessed value. And while Burnette, Dade County and both Boards contend that the reassessment of Eldridge’s property was part of a continuing review process of all property within the county, they presented no substantive evidence to support such a proposition in response to Eldridge’s claim that her property had been subjected to piecemeal or spot reappraisal. They also failed to present specific evidence sufficient to support the contention that mistakes were made in assessing Eldridge’s property in 1991. Additionally, there is no evidence of record of any specific property within Dade County receiving treatment similar to that given Eldridge’s property. Nor is there substantive evidence that any comparison ever was made between Eldridge’s property and similar properties in determining whether a reassessment was appropriate or what any such reassessment should be.

Decided November 17, 1997.

Herbert E. Franklin, Jr., District Attorney, for appellants.

Samples, Jennings & Pineda, Michael S. Pineda, for appellee.

In light of the above, we agree with the superior court’s determination that there was no issue of fact regarding Eldridge’s claim that the reappraisal of her property was no more than a piecemeal or spot reappraisal without any apparent regard to uniformity and equalization between taxpayers with like properties. “[Pjiecemeal or spot reappraisals of this sort, following at a later time after a general appraisal of residential property throughout the jurisdiction, which result[ ] in a significant increase in taxes without [apparent] regard to any equalization between taxpayers, [are] contrary to the statutory [law of this State] and void.” Thorpe v. Benham, 161 Ga. App. 116 (1) (289 SE2d 275) (1982). Consequently, we hold that the superior court’s grant of summary judgment to Eldridge in this case was proper.

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.