text:
    A02A0296.
    ANSARI et al. v. MARY ANNE FROLICK & ASSOCIATES, INC.
    (565 SE2d 600)
   Andrews, Presiding Judge.

Mahnaz and Iradj Ansari and Mandana and Freydoun Fatemi appeal from the trial court’s denial of their motion for new trial after a jury verdict in favor of Mary Anne Frolick & Associates, Inc. (Frolick) on their claim for damages for breach of contract, bad faith, fraud, conspiracy to commit fraud, and tortious interference with contract. The jury found the defendants jointly and severally liable for $87,884 in compensatory damages and found the Ansaris liable for $50,000 in punitive damages and the Fatemis liable for $10,000 in punitive damages. For the reasons which follow, we affirm the judgment of the trial court.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. The listing agent, Elizabeth Marshall, testified that she was a licensed real estate agent employed by Frolick. She and her husband Steve first entered into a listing agreement with the Ansaris in March 1998. The agreement was extended several times and was still in effect when the Marshalls showed the house to Mrs. Fatemi in March or April 1999. The Fatemis were friends and distant relatives of the Ansaris, and Steve Marshall testified that he saw Mrs. Fatemi at the house again at some later date and asked her if she had thought any more about buying the house and she replied, “Maybe.”

There was evidence that the listing agreement was in effect until June 30, 1999. The Marshalls said that Mrs. Ansari told them at that time that she was not renewing the listing agreement because she and her husband had decided not to sell the house.

Frolick introduced evidence of a lease/buy agreement for the house between the Fatemis and Ansaris dated June 24, 1999. Mr. Fatemi admitted that he saw the Marshalls’ “for sale” sign in the Ansaris’ front yard and that he did not call them or notify them of the agreement. Steve Marshall testified that when he discovered the house had been sold, he went to the closing and Mrs. Ansari asked him, “How did you find out about this?”

1. In their first enumeration of error, appellants claim that the verdict awarded damages to an individual not a party to the action and whose licensure was not established as required by law. This enumeration is totally without merit.

OCGA § 43-40-24 provides:

(a) No person shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in this chapter without alleging and proving that he was a licensed broker in Georgia at the time the alleged cause of action arose, (b) No broker shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in this chapter without alleging and proving that any person acting in the broker’s behalf was duly licensed in Georgia at the time the alleged cause of action arose.

The plaintiff in this action was Mary Anne Frolick & Associates. The broker’s license of Mary Anne Frolick was entered into evidence without objection, and appellants do not challenge it on appeal. Elizabeth Marshall also testified that she was a licensed real estate agent and that also was not challenged, either below or on appeal. This was sufficient to satisfy the Code section set out above, and we find no error.

2. Appellants also allege that the rule of witness sequestration was violated when Elizabeth Marshall was allowed to remain in the courtroom for a period of time after she testified. The record shows that appellants never invoked the rule and did not object when she remained after her testimony. Inasmuch as appellants never raised any objection before the trial court, they have waived any alleged error on appeal. Watson v. State, 222 Ga. App. 158, 159 (473 SE2d 262) (1996).

3. Appellants also argue the trial court erred in giving two of plaintiff’s requested charges. First, we note that appellants’ brief does not support this enumeration of error by citing to the charge conference where the court’s determinations were made nor to the charge itself, contrary to the requirements of Court of Appeals Rule 27 (c). Next, it is apparent from the transcript of the charge conference that defense counsel acquiesced in giving one of the requested charges and did not object at the close of the jury charge. As to the other objected-to charge: “The term ‘submitted’ includes showing a home to an individual as a potential purchaser,” appellants do not show this to be an incorrect statement of the law, nor do they point out how it could have confused or misled the jury. Rather, the instruction appears to help clarify an issue before the jury. “Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error.” (Punctuation omitted.) Smaha v. Moore, 193 Ga. App. 23, 24 (387 SE2d 13) (1989).

Appellants also claim that the trial court erred in refusing to give one of their requested charges; but, the trial court found this to be a restatement of one of the other requested charges and defense counsel did not object. This enumeration of error has no merit.

Decided May 20, 2002.

Rowen & Klonoski, Sharon L. Rowen, Scoggins & Goodman, David L. Rusnak, for appellants.

Fowler, Hein & Kreimer, Stanley E. Kreimer, Jr., Donald L. Mize, for appellee.

4. Appellants next argue that the verdict was contradictory and there is no way to interpret it in a way to authorize the jury’s award. We disagree. First, we note that the evidence, as set out above, would authorize the jury to find that the Ansaris and Fatemis conspired to deprive the plaintiff of her commission and supports the award of damages against the defendants jointly and severally. Also, the verdict form consisted of three parts: the first part providing for an award of damages against all defendants, the second section awarding damages against only the Ansaris, and a third section providing for an award against only the Fatemis. Appellants did not object to the form of the verdict at trial. If the form of the verdict was improper, irregular, or incomplete, it was incumbent on appellants to object to it in a timely manner. In light of their failure to do so, any alleged deficiency has been waived. Hadlock v. Anderson, 246 Ga. App. 291 (540 SE2d 282) (2000).

5. In their last enumeration of error, appellants claim that the punitive damages award was improperly based on prejudice and bias against the defendants who are Iranian-born U. S. citizens. Appellants have not pointed us to any statements made to the jury that could be construed as derogatory to Iranian-Americans, and we find none.

Judgment affirmed.

Phipps and Mikell, JJ., concur.

       In addition to the Marshalls’ testimony that the Ansaris verbally agreed to extensions of the listing agreement until that date, there was other evidence before the jury on this issue. For instance, an agent with another company testified that he submitted a contract on the house to the Ansaris in June 1999. When he showed the house to his clients, Elizabeth and Steve Marshall were there with Mrs. Ansari and he submitted the contract to the Marshalls to give to the Ansaris.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A0845.
    DONALDSON v. THE STATE.
    (565 SE2d 486)
   Phipps, Judge.

Raymond Donaldson was convicted of aggravated child molestation and aggravated sexual battery based on charges that he fondled his niece’s vaginal area and penetrated her vagina. The allegations against Donaldson were proven through testimony given by the victim and her mother, as well as the videotape of a pretrial statement by the victim to police. Donaldson’s initial appeal to this court was dismissed because of his trial lawyer’s failure to timely file a brief. On remand, a new attorney appointed to represent Donaldson obtained permission from the trial court to pursue this out-of-time appeal of his convictions. Donaldson challenges the sufficiency of the evidence and the court’s refusal to clear the courtroom during the victim’s testimony, and he claims his trial counsel was ineffective. We find no error and affirm.

Decided April 19, 2002

Keconsideration denied May 21, 2002.

Timothy J. Crouch, for appellant.

Bryant G. Speed II, District Attorney, Fred R. Simpson, Leigh E. Patterson, Jason A. Lewis, Assistant District Attorneys, for appellee.

1. Donaldson charges his trial lawyer with ineffective assistance in, among other things, failing to object to the admission of hearsay statements in the victim’s videotaped police interview relating to allegations that Donaldson molested another child.

We do not reach the question of whether counsel rendered ineffective assistance in failing to object to the evidence at issue, as Donaldson did not raise his ineffective assistance claim by motion for new trial even though he had the opportunity to do so through his current appellate counsel. Instead, Donaldson has raised the claim for the first time on appeal. Consequently, it has been waived.

2. Donaldson challenges the sufficiency of the evidence to support his aggravated sexual battery conviction on the ground that there was no proof that he penetrated the victim’s vagina.

To the contrary, the victim’s statement to police and her trial testimony clearly authorized the jury to find that Donaldson penetrated her vagina with his fingernail.

3. Finally, Donaldson charges the trial court with error in refusing to grant the State’s request that the courtroom be cleared of spectators during the victim’s testimony as required by OCGA § 17-8-54.

Although the court did err in refusing the State’s request, the error is not reversible. We have recognized that “the purpose of this Code section is to protect the interest of the child witness, not the defendant, and failure to follow the statute does not violate the defendant’s rights. [Cit.]” Moreover, Donaldson did not object to the court’s refusal to clear the courtroom.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922) (1991).

        Turner v. State, 245 Ga. App. 294, 297-298 (4) (e) (536 SE2d 814) (2000).


author: Barnes, Judge.

text:
    A02A0018.
    CITY OF SMYRNA v. ADAMS et al.
    (565 SE2d 606)
   Barnes, Judge.

The City of Smyrna appeals the trial court’s order holding that it did not properly annex two parcels of property. For the reasons that follow, we affirm.

On November 20, 2000, and March 19, 2001, Smyrna purported to annex two parcels of land, both abutting South Cobb Drive. Two landowners, William Adams and David C. Cole, petitioned the Superior Court of Cobb County for a declaratory judgment that Smyrna’s attempted annexations were null and void.

Smyrna contends that it properly annexed the parcels under OCGA § 36-36-92 (a), which provides that the city’s governing body “may annex to the existing corporate limits ... all or any portion of unincorporated islands which are contiguous to the existing limits.” “Contiguous area” is defined as an unincorporated area whose external boundary directly abuts the municipal boundary, and an “unincorporated island” is defined as a contiguous area in existence on or before January 1, 1991. OCGA § 36-36-90 (1), (3). In other words, the Code allows cities, under certain circumstances, to annex parcels of unincorporated land that are completely surrounded by the city. Both landowners contend that the annexed parcels did not abut municipal property on or before January 1, 1991, and therefore the city’s governing body did not have authority to annex this land without the approval of a certain percentage of landowners and voters, or by referendum.

Whether the city properly annexed these two parcels in 2000 and 2001 depends on the date it annexed South Cobb Drive, which abuts the parcels. If the street was not within the city limits on or before January 1,1991, then the two parcels did not abut city property on or before January 1, 1991, and the purported annexations in 2000 and 2001 are null and void. The landowners contend that the street was not annexed until April 4, 1991, when the General Assembly enacted local legislation amending Smyrna’s city charter to include South Cobb Drive within its boundaries. Smyrna contends that it annexed South Cobb Drive in 1985, as evidenced by the minutes from city council meetings, as well as subsequent official county maps that showed the street was within the city limits.

The minutes of the September 16, 1985 city council meeting show that the council had requested and received approval from the state Department of Transportation to annex seven roads, including South Cobb Drive. A council member read the legal descriptions of the roadways into the record, the council passed a motion validating the signature of Thomas Moreland as owner of the roadways, and set an October 7,1985 date for a public hearing on the issue. At the October 7, 1985 meeting, a councilman read the list of streets to be annexed, and there was no public opposition. The council then passed a motion to annex the roadways. The city had no other evidence to support its contention that it properly annexed South Cobb Drive in 1985, although it did submit subsequent official city and county maps, as well as the city charter, that included South Cobb Drive as part of the city. It also argued that it had maintained, policed, and paid for lighting the road since 1985.

In 1985, there were three methods by which a municipality in Georgia could annex property other than by amendment of its corporate charter by an Act of the General Assembly. These methods were (1) in counties with fewer than 100,000 residents, annexation by 100 percent approval of the landowners of the affected area; (2) annexation by application of the owners of at least 60 percent of the land and 60 percent of the electors of the affected area (the 60 percent method); and (3) annexation by resolution and referendum. See Wall v. Bd. of Elections &c., 242 Ga. 566, 572 (6) (250 SE2d 408) (1978); City of Gainesville v. Hall County Bd. of Ed., 233 Ga. 77, 78 (2) (209 SE2d 637) (1974); OCGA §§ 36-36-21; 36-36-32; 36-36-57.

Because Cobb County had a population of more than 100,000, Smyrna could not annex land in 1985 by application of 100 percent of the landowners. Former OCGA § 36-36-21 (b); Jones v. City of College Park, 223 Ga. 778 (158 SE2d 384) (1967). Further, there is no evidence that Smyrna held a referendum to annex South Cobb Drive.

Thus, the only method the city could have used to annex the street in 1985 would have been the 60 percent method. There is no evidence that it did so. Instead, contemporaneous city council minutes show that the council acted on the presumed authority of the DOT as owner of the street, held a public hearing, and then passed a motion to annex the street. The DOT, however, does not have the authority to give away state land. “The power to dispose of property belonging to the State is vested in the legislature.” Western Union Telegraph Co. v. Western &c. R. Co., 142 Ga. 532, 534 (83 SE 135) (1914); see 1981 Op. Atty. Gen. 37. Because the city failed to properly annex South Cobb Drive in 1985, the property at issue was not a “contiguous area” on or before January 1, 1991.

The city further contends that the trial court erred in allowing the plaintiffs to proceed with a declaratory judgment action; in finding that the landowners had standing to challenge the 1985 annexation of South Cobb Drive; in shifting the burden of proof to the city; and in not considering whether the doctrine of laches prevented them from challenging the 1985 action.

Contrary to the city’s assertions, declaratory judgment is a proper method of challenging the validity of the annexation. OCGA § 36-36-39; City of Fort Oglethorpe v. Boger, 267 Ga. 485 (480 SE2d 186) (1997).

Decided May 21, 2002.

Cochran, Camp & Snipes, Scott A. Cochran, David M. Williams, for appellant.

Meadows, Ichter & Trigg, Michael J. Bowers, G. Grant Brantley, Thomas J. Archer, Mary C. Cooney, for appellees.

The plaintiffs also had standing to bring suit, not only because the Code specifically allows them to sue, but also because if the city annexed their property, they would be obligated to pay city taxes. See Baker v. City of Marietta, 271 Ga. 210 (518 SE2d 879) (1999).

Regarding its argument that the trial court improperly shifted the burden of proof to the city and failed to consider laches, the city confuses the plaintiffs’ cause of action with the city’s defense. In its defense of this action, the city introduced evidence that it had annexed South Cobb Drive, and thus created the unincorporated islands, in 1985. Accordingly, it fell to the city to prove this defense.

While Smyrna contends that allowing a collateral attack on the 1985 annexation would lead to excessive uncertainty, the validity of an annexation may properly be challenged by challenging the validity of the procedure previously used to annex contiguous property. See, e.g., City of Fort Oglethorpe v. Boger, supra, 267 Ga. at 485 (court examined propriety of annexation 11 years earlier).

Finally,

[w]hether laches should apply depends on a consideration of the particular circumstances, including the length of the delay in the claimant’s assertion of rights, the sufficiency of the excuse for the delay, the loss of evidence on disputed matters, the opportunity for the claimant to have acted sooner, and whether the claimant or the adverse party possessed the property during the delay.

Swanson v. Swanson, 269 Ga. 674, 676 (2) (501 SE2d 491) (1998). The landowners’ cause of action in this case ripened when the city annexed their property, not when the city claimed ownership of the road in 1985. Therefore, the doctrine of laches does not apply in this situation.

For these reasons, the trial court did not err in concluding that the city of Smyrna’s purported annexations of these two unincorporated islands were null and void.

Judgment affirmed.

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


author: Smith, Presiding Judge.

text:
    A02A0295.
    FORRESTER v. THE STATE.
    (565 SE2d 825)
   Smith, Presiding Judge.

Corey Forrester was convicted of trafficking in cocaine and criminal solicitation to commit trafficking in cocaine. Following the denial of his motion for new trial, Forrester filed this appeal in which he asserts that the trial court erred by denying his motion in limine and motion for mistrial. He also challenges the sufficiency of the evidence and claims he was denied effective assistance of counsel at trial. Because we find no merit in these contentions, we affirm.

The evidence, on appeal, must be considered in a light most favorable to the verdict, and Forrester no longer enjoys the presumption of innocence. Lawrence v. State, 238 Ga. App. 102 (517 SE2d 822) (1999). When so considered, the evidence established that while working undercover, Investigator Duane Fulcher made arrangements to meet Karteau Jenkins at a specified gas station to purchase five ounces of cocaine for approximately $4,000. Jenkins agreed that each ounce would be individually packaged and that the final price would be $4,050. At the agreed-to time and place, Forrester was driving Jenkins’s blue Cadillac and Jenkins was his passenger. Forrester, whom Fulcher knew by sight, motioned him over to the car, saying, “Come on over, come on over here.” Forrester wanted him “to get into the vehicle and to do the transaction in motion,” but Fulcher refused. When Forrester insisted that “we will do it like this or we are not going to do it at all,” Fulcher balked. Forrester drove off followed by a surveillance team. About five minutes later, Fulcher called Jenkins who suggested they meet nearby at another gas station. Instead, Fulcher proceeded to magistrate court to obtain warrants to arrest both Forrester and Jenkins.

Armed with the warrants, a strike force proceeded to the house that Forrester and Jenkins had left just before the aborted drug transaction. Detective Ubaldo Rios, who had kept the house under surveillance that night, testified that he observed the same blue Cadillac return after about 30 minutes. When the strike force arrived at the house, Jenkins’s car was parked in the driveway. Fulcher, Sergeant Michael Williams, and Detective Rios secured the perimeter of the house. At the back of the house, they could see a black male, whom Fulcher and Williams identified as Forrester, dumping something into the kitchen sink. Williams watched Forrester emptying gallon bags of some type of substance into the sink area while the strike force was beating on the front door. Williams saw Forrester emptying bags into the sink area using a spoon or a fork or some object in his right hand. Fulcher also testified that he could see For-rester handling a plastic bag and dumping something into the sink.

When the strike force gained entry, only two persons were inside the house, Forrester and a woman named Angelia Huff. Rios field tested the white powdered substance in the kitchen sink and determined the powder was cocaine. On the kitchen counter, Rios noticed an off-white residue on some scales and baggies typically used to package cocaine. Inside an open kitchen drawer was an off-white cake-like substance, which Rios testified that he “knew to be crack cocaine.” To Rios, “[i]t was obvious there was . . . destruction of evidence being done at that location.” Detective S. J. Rainey then procured a warrant to search the house.

While executing the search warrant, investigators noted a dish, fork, and spoon with a white powered residue, a glass pot on the stove with a liquid that tested positive for cocaine, two sets of digital scales, and clear plastic bags. Inside the kitchen cabinets, an investigator found several bags of suspected crack cocaine and three individual bags of packages of cocaine. In a kitchen drawer, a bag of powder was found. They also found eight loaded handguns, $10,188 in cash, a bulletproof vest, and walkie-talkies. Although Jenkins’s name appeared on the lease, personal papers belonging to Forrester were found upstairs in the master bedroom, along with the bulletproof vest, four of the guns, and some of the cash. The personal papers were court documents from a criminal case in which Forrester had been the defendant. The papers were admitted in evidence over objection as proof that Forrester was living at that location.

Expert testimony established the purity and weight of the cocaine confiscated at the house. The cocaine in one package seized there weighed 113 grams and had a purity of 86.7 percent. Detective M. T. Lewis, part of the surveillance team at the Texaco, described what he saw and heard while listening to Fulcher, who was wearing a recording device. Lewis testified that “[Forrester and Jenkins] called one of the undercover detectives and said, ‘you come over and get in our car and we will go — we will ride around and do a deal.’ ”

1. Claiming that the State failed to prove that he knowingly possessed the cocaine, Forrester challenges the sufficiency of the evidence as to both convictions. He contends that there was no credible evidence to show that he exercised dominion and control over the cocaine. He points out that Jenkins had equal access to the kitchen, and he argues that the drugs and money found in the master bedroom belonged to Jenkins. He argues that mere presence in the vicinity of contraband without more does not establish possession. See Brookins v. State, 202 Ga. App. 759, 760 (415 SE2d 674) (1992).

On the contrary, the evidence showed that shortly after the drug transaction foundered, Forrester returned to the house where he was observed disposing of cocaine in the kitchen where cocaine apparently was being processed for packaging, sale, and distribution. At the time that Forrester was seen at the sink, the kitchen contained overwhelming evidence of obvious, ongoing drug activity — liquid cocaine in a pot on the stove, cocaine residue on a cutting board and on the electronic scales, and plastic bags typically used for packaging cocaine. The 113 grams did not include the liquid in the pot or the drugs poured down the kitchen drain. Eight fully loaded guns and over $10,000 in small denominations were found hidden throughout the house. Although the house had been leased in Jenkins’s name, in light of the location of Forrester’s personal papers, Forrester’s apparent exercise of dominion and control over the drugs that he disposed of down the kitchen drain, and his conduct during the aborted , drug deal, the jury could have found the essential elements of the crime of trafficking in cocaine. See Boatwright v. State, 193 Ga. App. 141, 142 (1) (387 SE2d 386) (1989).

Similarly, the record contains evidence to support a conviction for criminal solicitation to commit trafficking. “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). Although Forrester did not personally set up the sale and negotiate the price, it is obvious from the drug agents’ testimony and Forrester’s conduct that he was an active participant in the attempted sale of five ounces of cocaine, an amount consistent with trafficking as defined by quantity in OCGA § 16-13-31 (a) (1) (28 grams or more). At the scheduled time and place, Forrester drove to the transaction and assumed control over the deal when he directed and importuned Fulcher to get in the car to “ride around and do a deal.” This evidence supports a conviction for soliciting to commit trafficking in cocaine. See Roura v. State, 214 Ga. App. 43 (1) (447 SE2d 52) (1994).

2. Forrester contends that the trial court erred in denying his motion in limine to exclude Exhibit 8, a stack of papers found inside a briefcase in the master bedroom. He claims this exhibit contained “unbelievably damaging evidence” and impermissibly injected his character in evidence. He argues that the documents should have been excluded, especially since he offered to stipulate that documents were found at the residence with his name on them. He complains that “the jury was left with no doubt” that he had charges pending in another case and had bonded out of jail.

Although Exhibit 8 included two handwritten pages of notations about rent, gas, and water, the bulk of the 26-page exhibit pertained to a 1998 eight-count indictment against Forrester for several automobile break-ins and theft offenses. Exhibit 8 included police incident reports, bonding documents, and an investigative summary.

At the motion hearing, the State argued that these documents had a highly personal nature and were not the ordinary kind of papers that anyone other than Forrester would keep. In rejecting Forrester’s offer to stipulate that some of his papers were found inside the house, the State argued that it wanted to offer the documents themselves to establish that Forrester “had a strong connection to the house” and was not just a casual visitor. Defense counsel conceded that the information was “certainly probative” but argued that the probative value was outweighed by the prejudicial effect. Finding that the documents were offered for a proper purpose, the trial court refused to exclude them.

Although this exhibit did tend to impugn Forrester’s character,

[e]vidence is not inadmissible simply because it might incidentally reflect on the defendant’s character. [Cit.] Any evidence establishing that a defendant has committed the crimes for which he is being tried will inevitably say something about his character. What is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.

(Punctuation omitted.) Harris v. State, 260 Ga. 860, 865 (6) (401 SE2d 263) (1991). Here, to counter the defense strategy of implicating Jenkins and distancing Forrester from the drug activity at the house, the prosecution wanted to establish Forrester’s connection with the house. See Miller v. State, 163 Ga. App. 889, 890-891 (3) (296 SE2d 182) (1982) (material testimony does not become inadmissible because it incidentally puts a defendant’s character in issue). Although the better practice would have been to redact heavily such an exhibit, we cannot say that the trial court abused its discretion in admitting it. See Keller v. State, 231 Ga. App. 546, 548 (4) (499 SE2d 713) (1998). In any event, in light of the overwhelming evidence of Forrester’s guilt, even if the admission of the exhibit was error, it is highly probable that it did not contribute to the verdict. See Osborne v. State, 193 Ga. App. 276, 277 (3) (387 SE2d 383) (1989).

3. Forrester contends the trial court abused its discretion in denying his motion for mistrial. He claims his character was improperly placed in evidence when Detective Rainey testified that she had seen him before and knew him by the name of “Corey.”

Rainey was asked, “And you then saw Mr. Forrester for the first time as you executed the warrant?” She responded, “No that was not the first time that I had seen him.” Rainey testified that she had seen Forrester before and knew him by the name of “Corey.” No objection was made to these responses. Later, during cross-examination, Rainey was asked, “And so for purposes of the seizure report, you indicated that Mr. Forrester lived at 3900 Springleaf Court; isn’t that right?” Rainey answered, ‘Yes sir. During the course of the investigation, that was the address that I found on him. Not the night that we served the search warrant. Through other investigations I had obtained that address on him.”

Defense counsel sought a mistrial on the basis that the latter testimony placed Forrester’s character in evidence and created an improper inference. The trial court disagreed. Correctly noting that the detective could have known Forrester “in a multitude of ways” that did not necessarily implicate him in criminal activity, the trial court denied the motion. No abuse of discretion has been shown in the trial court’s ruling. See Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

4. Forrester contends that his conviction should be reversed because he was denied effective assistance of counsel. He claims that on three occasions during Detective Rainey’s testimony, his trial lawyer failed to pose the requisite objections.

A trial court’s finding on the issue of ineffectiveness must be upheld unless it is clearly erroneous. McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998). Trial strategy and tactics, however, do not equate with ineffective assistance of counsel. Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998). The decision as to whether to interpose a particular objection is a matter of trial strategy and, as such, ordinarily provides no basis for reversal. Gos-nell v. State, 247 Ga. App. 508, 511 (3) (544 SE2d 477) (2001).

(a) Forrester claims his trial counsel was ineffective in failing to object after Rainey made a comment that he asserts implicated his right to remain silent. The response at issue occurred during cross-examination, when to impugn the caliber of the police investigation, defense counsel posed this series of questions:

DEFENSE COUNSEL: Did you make contact with Mr. For-rester’s uncle?
DETECTIVE RAINEY: Who’s his uncle?
DEFENSE COUNSEL: Did you go to an address on Thompson Mill Road in Lithonia?
DETECTIVE RAINEY: No, I didn’t.
DEFENSE COUNSEL: No. Did you make contact with any of — were you aware of any family members that he had here in the Atlanta area?
DETECTIVE RAINEY: No. Mr. Forrester was not cooperative that night, would not talk to me.

In the context of this questioning, the detective’s answer seems to explain her lack of knowledge about Forrester’s family, a deficiency she attributed to the fact that Forrester did not volunteer any biographical information to her about his relatives. Although Forrester argues otherwise, this testimony does not appear to be a comment on the exercise of the right to remain silent. See Ford v. State, 269 Ga. 139, 141 (3) (498 SE2d 58) (1998) (when considered in context, reporting substance of conversation did not comprise comment on exercise of constitutional right). In any event, in light of the overwhelming evidence of Forrester’s guilt, reversal would not be warranted even had the issue been properly preserved. See Crowder v. State, 237 Ga. App. 312, 315 (2) (513 SE2d 752) (1999).

(b) Forrester claims that his trial counsel failed to object to an unresponsive answer that violated the trial court’s ruling on a motion in limine that excluded similar transaction evidence. Before trial, Forrester successfully moved to exclude information that he had been implicated in three other drug transactions occurring September 28, October 11, and October 18.

During cross-examination, when Rainey was asked, “you knew [Jenkins] was the subject of the investigation, did you not?” she replied, “I was not present with Detective Fulcher when he purchased the narcotics from Karteau Jenkins. I was only present when he purchased it from Mr. Forrester; so I had a name, but I didn’t have a face.” Although the defense and prosecution knew about the other drug deals, including one in which Forrester had sold drugs to Fulcher four days before the date of the indicted offenses, the jury had no way of knowing this information. In the context of Rainey’s testimony that she accompanied Fulcher to make the drug purchase in this case, this ambiguous response would likely appear to be a reference to that aborted transaction and not necessarily to an entirely different drug deal. Even assuming arguendo that defense counsel erred by not moving for a mistrial, Forrester has not shown that there is a reasonable probability that the outcome of his trial would have been different but for that error. See Gordon v. State, 273 Ga. 373, 377 (4) (541 SE2d 376) (2001).

(c) Forrester’s final argument that he was prejudiced by his counsel’s failure to object when the detective told the jury that she had seen him before and knew him as “Corey” was considered and rejected in Division 3.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

Decided May 21, 2002.

Maria Murder-Ashley, for appellant.

J. Tom Morgan, Distrid Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

       One gram is approximately equal to one-twenty-eighth of an ounce; thus, one ounce is the approximate equivalent of 28 grams. See Webster’s New World Dictionary (3rd college ed.).


text:
    A02A0663.
    ROSS v. THE STATE.
    (566 SE2d 47)
   Barnes, Judge.

Matthew Ross III appeals his convictions of cocaine possession with intent to distribute, firearm possession by a convicted felon, and firearm possession in the commission of a felony, contending the trial court erred in denying his motion to suppress evidence seized during a traffic stop. For the reasons that follow, we affirm.

If the evidence presented in a motion to suppress hearing is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). If facts are disputed, the trial court’s findings would be reversed only if clearly erroneous. Id.

In this case, the facts are undisputed. A Georgia State Patrol trooper testified that he was patrolling on 1-20 eastbound one evening when he saw Ross’s car ahead of him. The car was weaving from the inside lane to the emergency lane on at least three occasions and changed lanes about four times in the medium-heavy traffic without signaling. The trooper suspected the driver might be impaired, so he initiated a stop. After the trooper activated his lights, Ross drove about a half-mile before stopping, and the trooper saw him reaching back toward the backseat as he slowed and stopped.

The trooper asked Ross for his driver’s license and proof of insurance and radioed the station to have them check the license status, which takes a few minutes. While he waited for the results, he walked up to the car and talked to Ross, who explained that he was tired from driving a long time. In response to a question, Ross said he had no weapons in the car. The trooper observed no evidence of alcoholic impairment, but as he was talking to Ross, he saw the butt of a handgun in the backseat near the area where he had seen Ross reaching, stuck between the back and bottom parts of the seat. The gun looked like a semiautomatic, but the trooper could see only the grip part of the gun.

At this point, the trooper testified, the focus of his investigation changed. He wanted to find out why Ross had lied about having a weapon in the car, and to protect his safety he wanted to get Ross out of the car and away from the gun. He had Ross step out of the car, handcuffed him, patted him down briefly for weapons, and then called for backup so he could safely search the car. The trooper testified that when he felt coins in Ross’s left pocket he thought Ross might have a weapon, so he put his hand in the pocket and pulled out a plastic bag with marijuana residue. At this point, Ross was not free to leave because the traffic stop had not been completed.

Once the deputy sheriff arrived to watch Ross, the trooper retrieved a 9 millimeter semiautomatic handgun from the backseat of the car. The gun was loaded with a round in the chamber. The trooper also tested the tint density of the car’s windows and cited Ross because they were darker than allowed.

As the deputy sheriff watching Ross carried on a casual conversation with him, he noticed a bulge in Ross’s left sock, visible where his pants rode up while seated. He felt the bulge and, suspecting it was caused by illegal narcotics, retrieved four plastic bags containing white powder in them from that sock. He then had Ross remove bis other sock, where he uncovered plastic bags containing what appeared to be crack cocaine. Testing revealed that the substances were cocaine, weighing a total of 5.9 grams. A narcotics investigator testified that the packaging and weight showed an intent to distribute the drugs.

Ross contends the trial court erred in failing to suppress evidence obtained as a result of a warrantless seizure, arguing that the trooper should not have put his hand into Ross’s pocket to pull out the marijuana bag because he did not suspect Ross had a weapon there. He also argues that Ross’s consent to search the car was invalid because he was handcuffed when he gave that consent.

Before considering the pat-down and consent issues, however, we first consider whether the trooper had probable cause to arrest Ross after seeing the partially concealed handgun in the backseat. While OCGA § 16-11-126 (d) permits “transporting a loaded firearm in any private passenger motor vehicle in an open manner and fully exposed to view or in the glove compartment, console, or similar compartment of the vehicle,” a gun half-hidden in the seat is not “fully exposed” and therefore constitutes an illegal concealed weapon.

[T]he law forbidding the carrying of concealed weapons was designed to put those dealing with such persons on notice so that they could govern themselves accordingly. Here, a gun slightly protruding from . . . the seat of a vehicle does not put others on notice and, therefore, is not “fully exposed” within the statute governing such weapons.

Moody v. State, 184 Ga. App. 768, 769 (1) (362 SE2d 499) (1987).

Decided May 21, 2002

Sexton & Morris, Lee Sexton, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

After the trooper saw the gun, he handcuffed Ross. “A person is under arrest if he is not free to leave and a reasonable person in his position would not think that the detention was temporary.” (Citation omitted.) Brantley v. State, 226 Ga. App. 872, 874 (2) (b) (487 SE2d 412) (1997). “Although the officer told defendant he was not under arrest at that time, we conclude that he was; a reasonable suspect, knowing that the officer had found the [gun], would not believe that he was free to leave or that his detention was only going to be temporary.” Id.

Further, Ross’s arrest was lawful. An officer may make a war-rantless arrest and search if, at the time of the arrest, he has probable cause to believe the accused has committed or is committing an offense. Johnson v. State, 258 Ga. 506, 507 (2) (371 SE2d 396) (1988). In this case, at the time of the arrest the trooper knew that Ross had committed traffic violations and had a concealed weapon in his car. This information was sufficient to cause a prudent person to believe defendant had committed or was committing a crime. See Moody v. State, supra, 184 Ga. App. at 769. Thus, Ross’s arrest was authorized, and the trial court did not err in denying Ross’s motion to suppress evidence of the drugs seized during the officers’ subsequent search of Ross incident to that arrest. Ridgeway v. State, 205 Ga. App. 218 (422 SE2d 4) (1992).

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A02A1184.
    THE STATE v. LINDSAY.
    (566 SE2d 41)
   Eldridge, Judge.

The State appeals from the Superior Court of Colquitt County’s grant of former police officer Daniel Lindsay’s motion to suppress allegedly perjurious testimony given by him under oath to a grand jury convened in December 2000 to consider other, separate charges against Lindsay. Because Lindsay, in violation of State law, was not afforded the protections of OCGA § 45-11-4 when making his statement to the grand jury, we affirm the grant of his motion to suppress.

In 1999, while still a police officer and during the performance of his official duties, Lindsay allegedly made false statements and writings and allegedly committed perjury. An indictment was drawn for these offenses. Sometime between the alleged commission of the offenses and the December 2000 presentation of the indictment to the grand jury, Lindsay resigned as a police officer. Thereafter, and prior to the return of a true bill on these charges, Lindsay asked to appear before the grand jury with his lawyer and make a statement as permitted by OCGA § 45-11-4. The district attorney informed Lindsay that the rights afforded by the above-cited Code section did not apply to him because he was no longer a law enforcement officer. The district attorney refused to permit Lindsay to appear before the grand jury in the manner contemplated by OCGA § 45-11-4.

Via letter, Lindsay then asked the grand jury foreman to be allowed to testify. The grand jury determined that it wished to hear from Lindsay and permitted him to do so. The indictment was presented to the grand jury on December 11, 2000 (“December Indictment”). Before Lindsay’s testimony, the district attorney informed him that his testimony would be that of any other witness; that anything he said could be used against him; that he would be subject to cross-examination; and that his attorney could not be present. Accepting these conditions rather than relinquish the opportunity to give a statement to the grand jury, Lindsay testified and was subject to cross-examination. A true bill was returned on the December Indictment. And statements Lindsay made during the course of the State’s cross-examination became the basis for a separate, May 7, 2001 indictment for perjury (“May Indictment”). Thereafter, the State nolle prossed the December Indictment.

Prior to trial on the May Indictment, Lindsay filed a motion to suppress his December 2000 testimony before the grand jury that formed the basis for the May Indictment. Lindsay claimed that such testimony was obtained in violation of State law since he was not afforded the rights outlined in OCGA § 45-11-4. The trial court agreed and suppressed Lindsay’s grand jury testimony. The State appeals. Held:

1. The State contends that (a) the rights provided by OCGA § 45-11-4 do not apply to Lindsay because he was not a police officer at the time he testified before the grand jury about the acts contained in the December Indictment, and (b) even if such rights did apply, Lindsay’s testimony before the grand jury was otherwise “voluntary” and thus a violation of OCGA § 45-11-4 was irrelevant.

Resolution of this case is more complicated than it would appear at first blush and certainly more complex than the arguments of the parties would allow. It involves a necessary, although labyrinthine, tour of recent legislative enactments, in relation to pre-amendment statutory rights and in relation to constitutional considerations, leaving us again to recognize that our General Assembly, even while earnestly laboring through a well-intentioned and well-considered decision-making process, can achieve surprising results.

(a) (i) It is a well-established rule that an appellate court applies the law as it exists at the time its opinion is rendered. In that regard, OCGA § 45-11-4 was amended extensively during the 2001 legislative session, Ga. L. 2001, p. 487, § 3, as a part of the Corruption Prevention Act. The 2001 amendment to OCGA § 45-11-4 contains a subsection (g) which mirrors the language of the pre-amendment 1990 statute and provides in pertinent part that,

The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and . . . [t]he accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation.

Also included in the 2001 amendment, § 3, is a subsection (e) which states that “This Code section shall only apply to a public officer holding office at the time of indictment and not to former office holders.” Subsection (e) is new and contrary to the pre-amendment 1990 Code section, wherein the statute applied to officials “presently or formerly holding such office” and where the 1990 Code section specifically referenced removal of the official “if still in office.” The 2001 amendment to OCGA § 45-11-4 deliberately removed this language. Further, and as applied to this case, the legislature intended that amended Code section 45-11-4 — inclusive of subsection (e) — should be applied to Lindsay’s December 2000 grand jury appearance, because the legislature expressly stated that the amended provisions contained in Ga. L. 2001, p. 487, § 3, “shall apply to crimes committed before, on, and after the effective date of this Act [April 20, 2001] ,”

(ii) OCGA § 45-11-4 is made applicable to peace officers like Lindsay through the specific provisions of OCGA § 17-7-52; Ga. L. 1997, p. 879, § 1, which provisions state that,

Before an indictment against a peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be .afforded the rights provided in Code Section 45-11-4.

OCGA § 17-7-52 was also amended in Ga. L. 2001, p. 487, § 5, as a part of the new Corruption Prevention Act and, as amended, includes the provision that it applies to “a present or former peace officer.” This concept was not included in the pre-amendment 1997 codification cited above. And, notably, we use the older, 1997 Code section because the legislature expressly stated that the 2001 amended Code section 17-7-52; Ga. L. 2001, p. 487, § 5, “shall apply only to crimes committed on or after the effective date of this Act [April 20, 2001].” Thus, the 2001 amended Code section with its reference to “former” peace officers would not apply to Lindsay’s December 2000 grand jury appearance.

(iii) Accordingly, to follow the legislative mandate wherein 2001 amended Code section 45:ll-4 applies to crimes committed “before, on, and after” April 20, 2001, we must apply such amended statute upon review of Lindsay’s rights before the grand jury with regard to the December Indictment. And OCGA § 45-11-4 (e) specifically provides that the rights of that Code section apply only to those who are still officially employed at the time of indictment. Lindsay was not so employed at the time of the December Indictment. Accordingly, the rights of OCGA § 45-11-4 as amended do not apply to him.

Further, the Supreme Court’s holding in Dudley v. State cannot support a contrary view. Dudley was a pre-2001 amendment case interpreting the old, 1990 OCGA § 45-11-4. The Court determined that OCGA § 45-11-4 applied to former peace officers at the time of indictment only because of the language in the old, 1990 Code section which referred to officials “presently or formerly holding such office” and “if still in office.” This language, as we have already noted, has been completely removed in the amendment to § 45-11-4 that the General Assembly has instructed us to apply.

Moreover, the situation is not rescued by the 2001 amendment to OCGA § 17-7-52 referencing “present or former peace officers” because, as we have also noted above, we have been legislatively instructed to apply such Code section only to crimes committed “on or after” April 20, 2001, making it inapplicable to Lindsay’s grand jury appearance on the December Indictment. And the unamended 1997 Code section 17-7-52 that would apply to the December Indictment makes absolutely no reference to “former” peace officers.

(iv) So, there is a dilemma. Clearly, by amending OCGA § 17-7-52 to apply to “former” peace officers, the General Assembly meant to follow the Supreme Court of Georgia’s rationale in Dudley wherein that Court found “a peace officer should not lose such protections [under OCGA § 45-11-4] for the officer’s actions in the performance of duty merely because the officer is no longer employed as such at the time of prosecution.” But, by not making amended Code section 17-7-52’s applicability to “former” officers effective on the same date as amended OCGA § 45-11-4 (e) prohibiting the application of grand jury rights to officials no longer employed, peace officers like Lindsay charged before April 20, 2001, fall into an apparently inadvertent gap created by the linguistic confines of unamended OCGA § 17-7-52 and the specific limitation of amended OCGA § 45-11-4 (e).

(v) Notwithstanding, an appellate court is bound to apply the law as it exists at the time its opinion is rendered, unless application of a new statute violates constitutional principles. Georgia has a constitutional ban on the retrospective application of laws. In that regard, “[although legislation which involves mere procedural or evi-dentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only.” Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.

On its face, unamended OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1, promulgated a series of substantive rights that accrued to Lindsay as a peace officer at the time he was charged with committing the 1999 criminal acts which were the subject of the December Indictment. The substantive rights afforded by the unamended statute have been interpreted to apply even when a peace officer is no longer employed as such at the time of indictment for the alleged criminal acts. The subsequent 2001 amendment of OCGA § 45-11-4; Ga. L. 2001, p. 487, § 3, which precludes its application to officials no longer employed cannot be applied retroactively so as to strip Lindsay of substantive rights previously secured under the pre-amendment statute. Therefore, OCGA § 45-11-4 as amended cannot be constitutionally applied to Lindsay, and we conclude that he should have been afforded the protections of unamended OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1, during his grand jury testimony on the December Indictment.

Accordingly, the State erred in denying Lindsay the rights outlined in unamended OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1. Refusing to permit Lindsay’s attorney to be present during the grand jury proceeding and subjecting Lindsay to the cross-examination which elicited the alleged perjury that formed the basis of the May Indictment violated State law.

(b) The State argues that even if the rights provided in OCGA. § 45-11-4 should have been applied to Lindsay, he “voluntarily” chose to testify in front of the grand jury, with full knowledge that he would be cross-examined and that his attorney would not be allowed to be present. Such “voluntary” decision, the State argues, remedies the abrogation of the rights afforded by OCGA § 45-11-4.

However, we find that denying a party the rights to which he is entitled and which he specifically requests — so that the only remaining decision is to proceed without the protections secured by those rights or not to proceed at all — turns the notion of “voluntary” on its head. Indeed, for the State to force a Hobson’s choice upon a party and then argue to this Court that the subsequent choice made was “voluntary” seems ill-advised. We reject such argument.

We further reject the State’s additional argument that the entry of a nolle prosequi on the December Indictment rendered “moot” any issue with regard to a violation of OCGA § 45-11-4. The State fails to explain any legal basis for this assertion. But, as best we can determine, the implied argument is that, because the acts contained in the December Indictment are the ones about which Lindsay was testifying when the State violated OCGA § 45-11-4, then dismissing the December Indictment will resolve the violation. However, this argument fails to take into account that Lindsay’s allegedly perjurious grand jury testimony obtained in violation of OCGA § 45-11-4 is the subject matter of the May Indictment. Dismissing the December Indictment has no effect on a prosecution under the May Indictment, the subject matter of which was obtained in violation of State law.

2. Following the May Indictment, Lindsay filed a pretrial motion to exclude his grand jury testimony. A motion in limine can be such as to seek to suppress evidence illegally obtained under the Fourth Amendment — or under any other provision of law. In that regard, the failure to afford Lindsay the rights granted to him by OCGA § 45-11-4 violated the laws under which Lindsay’s grand jury testimony should have been obtained. OCGA § 45-11-4 authorizes obtaining a peace officer’s grand jury testimony only after certain rights have been afforded. Two of these rights are that the officer may have his attorney present during his statement to the grand jury and that the officer will not be subject to cross-examination by the State. The record shows that Lindsay clearly requested these rights be afforded to him and was denied such by the State. Thereafter, the allegedly perjurious statements to the grand jury that became the basis for the May Indictment were made while Lindsay was subject to cross-examination in violation of State law. Accordingly, we do not find the trial court’s grant of Lindsay’s motion in limine to exclude his grand jury testimony to be clearly erroneous.

Decided May 21, 2002.

Thurbert E. Baker, Attorney General, Michael E. Hobbs, Deputy Attorney General, Cassandra J. Schansman, Assistant Attorney General, for appellant.

Whelchel, Whelchel & Carlton, Mickey E. Waller, for appellee.

The fact that Lindsay styled his motion as a “Motion to Suppress” as opposed to a “Motion in Limine” does not change this result. “We have long . . . departed that realm of law where runes and sigils supplant reason and substance.” Evidence obtained in violation of State law is subject to exclusion, and a trial court’s ruling thereon is directly appealable. “[I]f a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state.” The State availed itself of its right to a direct appeal in this instance. Finding the contentions contained in such appeal to be meritless, we affirm the trial court’s grant of Lindsay’s motion in limine.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       It is undisputed that Lindsay was in the performance of his official duties as a peace officer when the acts allegedly occurred.

        Hill v. Willis, 224 Ga. 263, 265 (161 SE2d 281) (1968); Houston v. State, 192 Ga. App. 73, 74 (383 SE2d 571) (1989).

       OCGA § 45-11-4, Ga. L. 1990, p. 1969, § 1, states, inter alia,
      The accused shall have the right to appear before the grand jury to make such sworn statement as he shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his counsel to examine the state’s witnesses. The accused and his attorney shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation.

       OCGA § 45-11-4 (g).

       Ga. L. 2001, p. 487, § 3 (e).

       (Emphasis supplied.) OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1.

       (Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (d), uncodified. See State v. Martin, 266 Ga. 244 (1) (466 SE2d 216) (1996).

       OCGA § 17-7-52 (a); Ga. L. 1997, p. 879, § 1.

       Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.
      (Emphasis supplied.) Ga. L. 2001, p. 487, § 5. See also Legislative Headnote Ga. L. 2001, p. 487, wherein the General Assembly specifically amended OCGA § 17-7-52 “so as to include former peace officers.”

       (Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (c).

       (Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (d).

       Ga. L. 2001, p. 487, § 3 (e).

       273 Ga. 466 (542 SE2d 99) (2001).

       (Punctuation, omitted; emphasis supplied.) Id. at 467.

       (Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (c).

        Dudley v. State, supra at 468.

        State v. Martin, supra at 245-246 (3).

       See Ga. Const, of 1983, Art. I, Sec. I, Par. X; Canton Textile Mills v. Lathem, 253 Ga. 102, 105 (1) (317 SE2d 189) (1984).

        Enger v. Erwin, 245 Ga. 753, 754 (267 SE2d 25) (1980).

        Polito v. Holland, 258 Ga. 54, 55 (3) (365 SE2d 273) (1988).

        Dudley v. State, supra at 466 (“the protections of [OCGA § 45-11-4] extend to a peace officer charged with criminal misdeeds in office”).

       Id. at 468.

       OCGA § 1-3-5.

       In deciding this case, we find it unnecessary to reach whether the retrospective application of Ga. L. 2001, p. 487, § 3 will result in future constitutional concerns and therefore make no ruling on this issue. In any event, this Court cannot decide the constitutionality vel non of a statutory provision. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1).

        State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984).

        Anderson v. State, 267 Ga. 116 (1) (475 SE2d 629) (1996).

       See State v. Strickman, supra at 288; State v. Peters, 213 Ga. App. 352, 354 (444 SE2d 609) (1994).

       See Bullard v. State, 242 Ga. App. 843, 845 (3) (530 SE2d 265) (2000).

        Tuggle v. Tuggle, 251 Ga. 845; 846 (2) (310 SE2d 224) (1984).

        State v. Strickman, supra at 288; accord State v. Peters, supra at 354.


text:
    A02A1222.
    In the Interest of J. C., a child.
    (566 SE2d 39)
   Eldridge, Judge.

The Juvenile Court of Cherokee County adjudicated J. C. a delinquent upon single counts of aggravated assault with the intent to commit rape (OCGA § 16-5-21), simple battery (OCGA § 16-5-23), cruelty to children in the first degree (OCGA § 16-5-70), and sexual battery (OCGA § 16-6-22.1). On this, the juvenile court committed J. C. to the Department of Juvenile Justice for care, supervision, and planning under OCGA § 49-4A-8. In addition to challenging the sufficiency of the evidence supporting the four designated felony acts underlying his adjudication as a delinquent, J. C. appeals contending that the juvenile court erred in denying his motion for directed verdict or dismissal as to the offense of aggravated assault with the intent to commit rape and in not merging the cruelty to children and sexual battery counts therewith upon adjudicating him a delinquent. Finding these claims of error to be without merit, we affirm. Held:

The evidence shows that after school on October 3, 2001, the victim, then age seventeen, went to J. C.’s home looking for two friends. The friends not there when the victim arrived, J. C. let her in to await their arrival and returned to the kitchen where he was making hot dogs. As he did so, the victim took a seat at one end of the living room couch. When J. C. returned, he walked to where the victim sat, reached down, and twisted her breast. The victim pushed J. C. away and told him to stop. J. C. continued to advance. At first, he held the victim down by her arms. Then he sat on her as he removed her t-shirt and bra. Finally, he forced her onto her back, hitting her in the face and splitting her lip. This accomplished, J. C. forcibly kissed the victim, licked and sucked her breasts, bruising her hands, arms, and breasts, while with a free hand placed on the wind pants the victim wore, he rubbed her vagina underneath.

Although the victim fought back physically, J. C. released her only to answer the telephone. In the two to three minutes that followed, the victim managed to get her clothes back on, and one of the friends for whom she had been waiting arrived at the front door. Again J. C. opened the door, the victim crying attempted rape as he did so. On this, J. C. pushed the victim from the house and closed the door, locking it behind her. The victim lost her balance on the front steps and fell to the sidewalk. Scared, crying, and shaking, she then drove to a nearby Amoco station where she found the other friend she had waited for. Once more she cried attempted rape. Approximately 20 minutes had elapsed to this point. The victim thereafter sought counsel of a third friend. After doing so, she reported the events of the late afternoon to the Canton Police Department. It was just after 10:00 p.m. The record otherwise reflects that the victim later was forced to withdraw from school in that she repeatedly broke out in hives while there.

1. After reviewing the evidence in the light most favorable to the verdict, In the Interest of E. D. F, 243 Ga. App. 68 (1) (532 SE2d 424) (2000); In the Interest of B. J. G, 234 Ga. App. 285 (1) (506 SE2d 449) (1998), we conclude that the evidence was sufficient to authorize the juvenile court to adjudicate J. C. a delinquent as to all the charges against him. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Hardy v. State, 240 Ga. App. 115, 122 (8) (522 SE2d 704) (1999) (evidence showing victim held against her will and that perpetrator attempted to remove or did remove some underclothing sufficient to support conviction for assault with intent to commit rape); see also Eberhart v. State, 241 Ga. App. 164, 166 (2) (526 SE2d 361) (1999) (whether simple battery is of an insulting and provoking nature a question for the jury); Johnson v. State, 239 Ga. App. 886, 887-888 (2) (522 SE2d 478) (1999) (whether cruelty to children is inflicted with malice a jury question); Thompson v. State, 245 Ga. App. 396, 398 (3) (537 SE2d 807) (2000) (sexual battery complete upon intentional contact with the intimate parts of another).

2. Since an appellate court reviewing a trial court’s denial of a motion for directed verdict applies the “sufficiency of the evidence” test of Jackson v. Virginia, supra, the juvenile court did not err in denying J. C.’s motion for directed verdict of acquittal or dismissal as to the aggravated assault with intent to commit rape charge against him. Mayes v. State, 274 Ga. 308 (553 SE2d 621) (2001); Jordan v. State, 272 Ga. 395 (1) (530 SE2d 192) (2000); Hardy v. State, supra.

3. Neither did the juvenile court err in not merging the offenses of cruelty to children and sexual battery with the offense of aggravated assault with the intent to rape. In this regard, the juvenile court was authorized to adjudicate J. C. a delinquent for aggravated assault with intent to rape upon the evidence as showing that he removed the victim’s t-shirt and brassiere against her will. Hardy v. State, supra. The evidence beyond that point, as above, demonstrates that the cruelty to children and sexual battery counts were supported by separate facts, i.e., the cruelty to children offense as supported by evidence showing that the victim “after the fact” was scared, crying, shaking, and subject to hives causing her to withdraw from school, see Ranalli v. State, 197 Ga. App. 360, 364 (2) (398 SE2d 420) (1990), and the sexual battery offense as supported by evidence that J. C. touched the victim’s breasts and vaginal area after striking her in the face, forcing her onto her back on the sofa. See Touchton v. State, 210 Ga. App. 700 (1) (437 SE2d 370) (1993). “Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all of the facts used to prove the other.” (Citations and punctuation omitted.) Seidenfaden v. State, 249 Ga. App. 314, 319 (4) (547 SE2d 578) (2001); Isaacs v. State, 213 Ga. App. 379, 380 (1) (444 SE2d 409) (1994).

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

Decided May 21, 2002.

Cannon & Cannon, David L. Cannon, Jr., for appellant.

Garry T. Moss, District Attorney, Wallace W. Rogers, Jr., Assistant District Attorney, for appellee.

       See OCGA § 15-11-2 (6) (A) (delinquent act defined).

       OCGA § 9-11-50 (a) provides that:
      “[A] motion for a directed verdict may be made at the close of the evidence offered by an opponent or at the close of the case.” There is no statutory requirement that a motion for directed verdict be renewed at the end of trial. Furthermore, OCGA § 5-6-36 (b) provides: “A motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict.”

        GLW Intl. Corp. v. Yao, 243 Ga. App. 38, 41 (2) (532 SE2d 151) (2000).


text:
    A02A1462.
    TUCCI v. THE STATE.
    (565 SE2d 831)
   Eldridge, Judge.

After a bench trial in the City Court of Atlanta, Laura Tucci was found guilty of leaving the scene of an accident, which charge arose when Tucci, driving a rental car on the I-85/I-75 connector near Butler Street, failed to see another vehicle traveling in her “blind spot”; Tucci attempted to change lanes, hitting the bumper of the other vehicle before the driver thereof used the car horn. She appeals on additional facts as follows.

After hearing the horn of the other vehicle, Tucci swerved back into her lane. The driver of the damaged vehicle pulled beside Tucci and motioned for her to pull over. The driver testified that Tucci “looked at me and she said, I’m sorry, and she kept driving.” The driver pulled over and contacted the police.

When Tucci arrived at her destination, she observed damage to her rental vehicle from the encounter on I-85/I-75. Two days later, Tucci telephoned an officer in the Hit and Run Department of the Atlanta Police Bureau, because “she wanted to find out what to do.” The officer instructed Tucci to come to his office and, when she did so, issued her a citation for leaving the scene of an accident.

Tucci subsequently entered a plea of “not guilty.” At the bottom of the plea form, Tucci waived her right to a jury trial. In addition, Tucci affirmed under oath that she was “willing to proceed without a lawyer and I understand that I am waiving my right to have a lawyer represent me.”

At trial, the facts as related above were not in dispute. Tucci admitted the act as testified to by the victim and the facts as described by the officer from Hit and Run. Her sole defense was lack of knowledge, i.e., criminal intent. She testified

My plea of not guilty is due to — as I understand the law, I am not guilty of the charge due to the fact that I was unaware that I was actually committing that charge. I had come over uneven pavement. That area was under construction. ... I checked my rearview and my side mirrors and was unaware of the blind spot of the vehicle because it was not my vehicle. . . . When I came over the uneven pavement, not knowing at all that there was anybody alongside of me, my tires — I heard her beep her horn. Again, I thought I had nearly missed her. So I changed back into the lane I had come from. I did see her pull up along to the right side of me. I took my eyes off the road for just a second. I know you can’t really do that traveling at that speed on 85 in heavy traffic. I saw that she motioned something. I couldn’t tell what she was saying or what her motion was. I did, of course, turn to say sorry and kept proceeding forward. ... I did not at all know that our bumpers had touched. . . . [A]s soon as I realized that once I arrived at the airport and had picked up my friend, we were walking towards the car and saw that there had been damage. I did everything I could that day before leaving Atlanta to try to find out what it was I was supposed to do that I had not done.

The trial court concluded that Tucci was guilty as charged, finding, “Miss, if there is any question, I think you should stop. You admitted, by your own testimony, there was a question that you had cut quickly from one lane to the other. This lady said she attempted to stop you, and you just wouldn’t stop. You should have stopped if you had any question about this at all.” Held:

1. Tucci claims that the record does not show she knowingly and voluntarily waived her right to counsel and proceeded to trial pro se. A review of the record requires us to agree with her assertion.

A defendant entering a guilty plea or going to trial on an offense which carries a penalty of imprisonment has a constitutional right to counsel that can be waived only by voluntary and knowing action. Thus, there is a two-prong requirement to establish waiver. When pro se representation at trial is at issue, no “magic language” need be used in order for a waiver of counsel to be valid, and the trial court does not have to ask any particular questions. “The record need only reflect that the accused was [made] aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.”

Here, the plea form initialed by Tucci under oath stated only that she was willing to proceed without a lawyer and that she was waiving such right. While this satisfies the “voluntary” requirement for waiver, it does not address the “knowing” prong in a pro se representation at trial context. To that end, there is absolutely nothing in the form, or in the record as a whole, to reflect that Tucci was made aware of the dangers of proceeding pro se at trial. Accordingly, a valid waiver of counsel was not established in this case.

This Court recognizes and appreciates the tremendous case loads in the courts below, especially in those courts dealing with traffic offenses and other misdemeanors where sheer volume may make waiver forms not only attractive but necessary. However, our precedent has made it abundantly clear that, as far as pro se defendants who go to trial are concerned, waiver forms which permit only the conclusion that a defendant has knowingly and voluntarily chosen to waive counsel in the entry of a plea (guilty or not guilty) are simply insufficient; such forms must also include information by which this Court can determine that the “knowing” prong has also been satisfied when a defendant goes to trial pro se, i.e., that such defendants have been made aware of the dangers of pro se trial representation. That is not to say that forms — with hopefully a follow-up affirmation by the court on the record just prior to trial (jury or bench) — may not indeed provide the evidentiary basis from which a valid waiver may be determined in a pro se representation at trial context. But the form used here was a standard “knowing and voluntary” plea form and, as in so many jurisdictions where a pro se defendant opts for a trial, not a guilty plea,

[t]he form does not go far enough. In order for the State to use a pretrial waiver form to show that a defendant has intelligently elected to represent himself [at trial] after being advised of his right to counsel and the “dangers” of waiver, the form should outline those pertinent dangers: such as (1) the possibility of a jail sentence; (2) the rules of evidence will be enforced; (3) strategic decisions with regard to voir dire and the striking of jurors must be made by defendant; (4) strategic decisions as to the calling of witnesses and/or the right to testify must be made by defendant; and (5) issues must be properly preserved and transcribed in order to raise them on appeal. [In other words, a] proper waiver form should contain the warnings, themselves, not just conclusions. Also, ideally, the form should be signed by the defendant and by the trial court.

In addition, a simple statement of possible defenses, i.e., justification, alibi, misidentification, and reliance on the presumption of innocence, should be included.

In sum, we would urge evaluation of the forms used in light of the two-prong showing that must be made in order to establish a valid waiver of counsel by a pro se defendant who opts for trial. Questions contained in forms and routinely asked prior to the entry of a guilty plea in order to satisfy the “knowing and voluntary” constitutional standard may just as easily be developed to ensure constitutional compliance in situations such as the instant one. Clearly, reversal based on an insufficient form is not conducive to the orderly administration of justice.

2. Moreover, we cannot find harmless error under the facts of this case. The record shows that Tucci had telephone logs documenting her attempts to contact the police immediately after she discovered the damage to her vehicle; apparently, however, Tucci did not know how to introduce such into evidence for consideration by the trial court. In addition, immediately after becoming aware of the accident, it appears that Tucci approached a police officer in order to ask what steps she should take to rectify the situation; Tucci had this officer’s name, but apparently was unaware of her ability to subpoena him. This additional evidence would have gone to establish Tucci’s sole defense of lack of knowledge, i.e., the criminal intent necessary to sustain conviction pursuant to OCGA § 40-6-270 (c) (1). Accordingly, we cannot say that the error did not contribute to the judgment as per the standard of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Judgment reversed.

Smith, P. J., and Ellington, J., concur.

Decided May 21, 2002.

Tara D. Dickerson, for appellant.

Joseph J. Drolet, Solicitor-General, Andrea D. McGee, Assistant Solicitor-General, for appellee.

       We reject the appellee’s attempt to reframe the issue into one of entitlement to court-appointed counsel for one not sentenced to actual prison time. Whether or not - after the fact — one was entitled to court-appointed counsel in no way relieves the State from showing a pre-trial waiver of counsel that passes constitutional muster. See Kirkland v. State, 202 Ga. App. 356, 357 (414 SE2d 502) (1991). Even the indigent may be able to obtain a trial attorney, whether through family aid, pro bono legal contacts, or otherwise.

        Braswell v. State, 240 Ga. App. 510 (1) (523 SE2d 904) (1999).

       (Citation omitted; emphasis in original.) Brooks v. State, 243 Ga. App. 246, 248 (1) (a) (532 SE2d 763) (2000); Simpson v. State, 238 Ga. App. 109, 112 (517 SE2d 830) (1999). Accord Wayne v. State, 269 Ga. 36, 38 (495 SE2d 34) (1998).

       (Citations and emphasis omitted.) Brooks v. State, supra at 249 (1) (a) (i), n. 1.

       See Hamilton v. State, 233 Ga. App. 463, 467 (1) (b) (504 SE2d 236) (1998).

       See id. at 464, n. 1; Woods v. State, 235 Ga. App. 894, 895-896 (510 SE2d 848) (1999); Rutledge v. State, 224 Ga. App. 666, 669 (3) (482 SE2d 403) (1997); Cook v. State, 227 Ga. App. 674 (490 SE2d 181) (1997). See also Moore v. State, 250 Ga. App. 75, 77 (550 SE2d 667) (2001); Spears v. State, 247 Ga. App. 626 (545 SE2d 36) (2001).

       In a separate enumeration of error, Tucci claims that the trial court, by concluding Tucci should have stopped if she had “any question” about what had occurred, failed to determine that she acted with the requisite criminal intent under OCGA § 40-6-270 (c) (1), i.e., that she knowingly left the scene of the accident. The resolution of this claim is unnecessary for the disposition of this appeal. However, we note that a more explicit finding of criminal intent would have negated this issue.


author: Blackburn, Chief Judge.

text:
    A02A0504.
    SAMS v. VIDEO DISPLAY CORPORATION et al.
    (566 SE2d 28)
   Blackburn, Chief Judge.

In this action regarding the posthumous election to exercise a stock option, Gary M. Sams, in his capacity as administrator of the estate of A. J. Kenerleber (Estate), appeals the trial court’s grant of summary judgment to Video Display Corporation (VDC) and its Chief Executive Officer, Ronald D. Ordway, contending that: (1) following Kenerleber’s death, the 90-day time period for exercising the stock option was tolled until an administrator had been appointed to represent the Estate; (2) Sams, as administrator of the Estate, had standing to bring a claim against Ordway for negligently misrepresenting the term of the stock option period to Kenerleber’s surviving widow and son; (3) a question of fact remains as to whether the Estate should be awarded attorney fees pursuant to OCGA § 13-6-11; and (4) the Estate’s motion for summary judgment should have been considered timely filed. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that, on June 28, 1995, Kenerleber entered into a stock option agreement with his employer, VDC. Pursuant to this agreement, Kenerleber had an option to purchase 50,000 shares of VDC stock for $2 per share. Prior to exercising this option, Kenerleber died intestate on May 27, 1998, survived by his widow, a son, and a daughter. Shortly after her husband’s death, Kenerleber’s widow met with Ordway, who mistakenly informed her that her husband’s stock option could be exercised at any time within one year of his death. Kenerleber’s son also testified that Ordway provided him with the same information.

In actuality, however, Kenerleber’s stock plan had a 90-day exercise clause. The agreement provides, in pertinent part:

Each option shall state the date upon which it is granted. No option shall be exercisable either in whole or in part prior to one (1) year from the date it is granted. Each option shall be exercisable during such period as is provided under the terms of the grant, but in no event shall an option be exercisable after the expiration of ten (10) years from the date of grant. Except as otherwise provided in case of disability or death, no option shall be exercisable after an optionee ceases to be employed by the Company; provided, however, that the Committee shall have the right to extend the exercise period for a period of not in excess of three (3) months following the date of termination of an optionee’s employment. . . . If an optionee dies while in the employ of the Company or a subsidiary and shall not have fully exercised options granted pursuant to the Plan, such options may be exercised in whole or in part at any time within three (3) months after the optionee’s death, by the executors or administrators of the optionee’s estate or by any person or persons who shall have acquired the options directly from the optionee by bequest or inheritance, subject to the condition that no option shall be exercisable after the expiration of ten (10) years from the date it is granted.

Following Kenerleber’s death, his beneficiaries began feuding over who should be appointed as representative of the Estate, and, as a result, a representative was not promptly appointed. Less than a year after Kenerleber’s death, the beneficiaries finally agreed to have an independent administrator appointed. Sams was appointed to the position on April 14, 1999.

On May 17, 1999, Sams sent a letter to VDC attempting to exercise the stock option. VDC refused to comply, pointing out that the 90-day term for exercising the stock option had expired. Sams subsequently brought this lawsuit, and the trial court granted summary judgment to VDC and Ordway. At the same time, the trial court refused to consider a motion for summary judgment brought by Sams. Sams now appeals these rulings.

1. Sams contends that, prior to the time that he was appointed as administrator of the estate, the 90-day exercise provision of the stock option agreement was tolled pursuant to Buffalo Ins. Co. v. Steinberg, We cannot agree.

In Buffalo Ins., the insured under a policy covering fire damage to her property could not be located following a fire.

The evidence showed that the insured had not been heard from in three or four years at the time of the fire; that the agent who issued the policy reported the fire to the General Adjustment Bureau, Inc., which was designated by the insurer to handle their losses; that the agent was not able to locate the insured; that the insurer refused to settle the loss until the insured was located; and that the policy was in full force at the time of the fire.

Id. at 368. The insurance policy provided that proof of loss had to be filed within 60 days after the loss occurred and any suit regarding the loss had to be brought within 12 months.

At the time of the loss, the property was mortgaged, and the mortgagee, who had rights to the insurance proceeds, contacted an agent of the insurance company, who told the mortgagee: “You keep on trying to find [the insured] and when you find her, get her to sign the Proof of Loss and let us know so that we can make our vouchers payable to you and [the insured].” Sometime later, the insured, who was never found, was declared dead, and the mortgagee was appointed as conservator of her estate. The mortgagee then brought suit against the insurance company for the proceeds, but the insurance company maintained that it was not liable because the suit had not been brought within one year from the date of the loss.

On these facts, we held:

While admittedly the contractual period limiting the bringing of an action is valid, it must not be held to be unconscionably inflexible. Accordingly, where, as here, there was no one competent to bring the action for the insured until appointment by the court, the limitation may be found by the jury to have been postponed for the period required to accomplish the appointment, plus a reasonable period in which to bring the suit. To hold otherwise would violate the long established precept of the law that forfeitures are not to be favored against innocent and helpless victims of unfortunate circumstances. Under the factual situation of the present case, we hold that the bringing of the action by the conservator of the estate of the insured was not barred, as a matter of law, by the twelve-month provision for bringing the action on the policy of insurance nor by the failure to file proof of loss within sixty days after the loss. The circumstances could be found by the jury to show reasonable diligence in efforts to locate the insured, after which the plaintiff was appointed her conservator and he thereupon, without unreasonable delay, filed proofs of loss, demand upon the company, and then brought the action to recover under the policy.

Buffalo Ins., supra at 372 (1).

Even if we were to accept Sams’ argument that this case applies to the forfeiture of rights under contracts generally, not just insurance contracts, it would not support Sams’ case. As pointed out in Buffalo Ins., the rule of law developed therein was designed to help innocent and helpless victims who, through no fault of their own, were unable to comply with the terms of the contract by any means. That is not the situation here. It is undisputed that the beneficiaries of the Estate had access to the stock agreement plan. In fact, Kenerleber’s widow was an optionee under the very same plan. Had the beneficiaries merely read it, they would have realized that the stock option was set to terminate three months after Kenerleber’s death. Rather than preventing any administrator from being appointed due to their familial quarrels, the beneficiaries could have requested a temporary administrator for the purpose of exercising the option. They chose not to do so.

Unlike the mortgagee in Buffalo Ins., the beneficiaries here were neither innocent nor helpless. At all times, they had the power to uncover the information which would have obviated the problems about which they now complain. As such, it cannot be said that the failure to exercise the option in this case was not due to any neglect on the part of the beneficiary. Pilgrim Health &c. Ins. Co. v. Chism.

2. Sams contends that, as administrator of the Estate, he had standing to bring a claim against Ordway for giving mistaken information to Kenerleber’s widow and son about the termination provision of the stock option agreement. We disagree.

Decided May 8, 2002

Reconsideration denied May 22, 2002

It is undisputed that, at the time that these misrepresentations were made, Sams had not been appointed administrator of the Estate. The misrepresentations were made solely to Kenerleber’s widow and, allegedly, his son. Neither the widow nor the son was the representative of the Estate. In addition, Sams testified that at no time were these misrepresentations ever made to him. Based on these facts, the trial court properly concluded that Sams lacked standing to bring a negligent misrepresentation claim against Ordway. See, e.g., Skipper Sams, Inc. v. Roswell-Holcomb Assoc.

Sams’ argument that this ruling allows individuals to lie with immunity to beneficiaries prior to appointment of an estate representative with immunity is groundless. Although the estate may not have a claim for misrepresentation, the beneficiary may still be able to bring suit in his or her own right.

3. Sams contends that the trial court erred by finding, on summary judgment, that the Estate was not entitled to attorney fees pursuant to OCGA § 13-6-11 as a matter of law. OCGA § 13-6-11 provides: “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” As the trial court found, there is no evidence in this case that VDC or Ordway has acted in such a way subjecting them to OCGA § 13-6-11. As set forth in the analysis above, it is clear that an actual, justiciable controversy existed in this case. The trial court correctly granted summary judgment to VDC and Ordway on this issue.

4. Finally, Sams argues that the trial court improperly refused to consider the Estate’s motion for partial summary judgment. The only issue raised in that motion regarded whether the stock option termination provision was tolled prior to the appointment of an administrator for the Estate. Pursuant to our holding in Division 1, this enumeration of error has been rendered moot.

Judgment affirmed.

Johnson, R J., and Miller, J., concur.

Craig M. Frankel, for appellant.

Gary P. Bunch, for appellees.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Kenerleber’s widow was also an employee of VDC, and she had a stock option plan identical to her husband’s plan.

       Ordway based his answer on the terms of VDC’s most recent stock plan. Kenerleber’s option, however, was entered into under a prior plan.

        Buffalo Ins. Co. v. Steinberg, 105 Ga. App. 366 (124 SE2d 681) (1962).

        Pilgrim Health &c. Ins. Co. v. Chism, 49 Ga. App. 121, hn. 2, 123 (174 SE 212) (1934).

         Skipper Sams, Inc. v. Roswell-Holcomb Assoc., 247 Ga. App. 237 (543 SE2d 765) (2000).


author: Johnson, Presiding Judge.

text:
    A02A0032.
    REDDINGS v. THE STATE.
    (565 SE2d 850)
   Johnson, Presiding Judge.

A jury found Michael Reddings guilty of entering an automobile and obstruction of an officer with violence. Reddings appeals, alleging the state failed to prove venue, there was a fatal variance in one count of the indictment and the evidence at trial, and there was insufficient evidence to find him guilty of obstruction of a law enforcement officer with violence. Because each of these enumerations of error lacks merit, we affirm Reddings’ convictions.

Viewed in a light most favorable to support the verdict, the evidence shows that Brunswick police received a telephone call reporting a male breaking the windows of cars in the parking lot of the Howard Johnson motel on Highway 17. Upon arrival, an officer saw Reddings sitting inside a Cadillac with a broken window. Recognizing Reddings, the officer asked Reddings why he was inside the car. Red-dings got out of the Cadillac, walked to his Bonneville, and tried to drive away, speeding through the parking lot without giving the officer any explanation. After crashing into an officer’s patrol car, Reddings jumped out of his car and ran across Highway 17.

Officers caught Reddings and attempted to handcuff him, but he struggled wildly. Reddings stated, “this guy owes me money” and said that some man still had his gold chain. While resisting arrest, Red-dings kicked an officer attempting to hold his legs. At trial, Reddings denied that he kicked anybody, but testified that he apologized after being told he had kicked an officer.

The owner of the Cadillac testified that he did not give Reddings permission to break the rear window and enter his car. However, evidence at trial showed that the Cadillac owner was in possession of a gold chain necklace that Reddings had given to him as collateral for a loan. Although Reddings had not repaid the Cadillac owner for the loan, Reddings testified that he felt he was entitled to break into the Cadillac and find the necklace.

1. In his first enumeration of error, Reddings contends that the state failed to prove venue beyond a reasonable doubt. The record, however, shows that venue was proven beyond a reasonable doubt. During the trial, an officer detailed Reddings’ rapid drive through the Howard Johnson parking lot. The officer was then asked, “Is this in Glynn County?” and the officer responded, “Yes, ma’am.” Reddings’ contention that the pronoun “this” did not clearly refer to the Howard Johnson motel is belied from a review of the record. Clearly, the motel and its surroundings are the only possible antecedent for the pronoun “this.” This enumeration of error lacks merit.

2. Reddings asserts there was a fatal variance between Count 5 of the indictment and the evidence adduced at trial. While we find that a variance did occur, this variance was not fatal to the state’s case.

Count 5 of the indictment alleged that Reddings violently obstructed the officer by kicking the officer in the shins. However, the state concedes that the evidence at trial showed that the officer had been kicked in the thigh. Reddings claims that the words shin and thigh are not sufficiently alike and, therefore, he was not definitely advised of the charge against him and is not protected against future prosecution for the same offense. We disagree.

“The true inquiry is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.” Here, we do not find the difference between a shin and a thigh to be a fatal variance affecting Red-dings’ substantial rights. Reddings knew he was being charged with kicking a police officer in the leg. We cannot conceive that the discrepancy caused Reddings such surprise that it affected his trial strategy and preparation.

Likewise, the difference between a shin and a thigh in this case does not expose Reddings to future prosecution for the same offense. It is well established that if several crimes arising from the same conduct are known to the proper prosecuting officer at the time prosecution is commenced and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. Kicking the officer in the shins arises from the same conduct as kicking the officer in the thigh. Moreover, the action of obstruction of a law enforcement officer with violence arises out of the same conduct as all the other counts of the indictment which were disposed of at trial. Because no substantial rights of Reddings were affected, the variance was not fatal to the state’s case.

3. Reddings next contends that the evidence is insufficient to support his conviction of felony obstruction of a law enforcement officer. We disagree.

To commit the offense of felony obstruction of an officer, a person must knowingly and wilfully resist, obstruct, or oppose any law enforcement officer in the lawful discharge of his official duties, by either offering to do violence to or doing violence to the officer. In the present case, Reddings argues that while he did attempt to elude police officers and did struggle against the officers, he did not know the officer he kicked was behind him and he did not intentionally kick the officer. The state, however, presented evidence that showed Reddings knew what he was doing when he kicked the officer.

Decided May 22, 2002.

Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee.

On appeal, this Court determines evidence sufficiency; we do not weigh the evidence or determine witness credibility. Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Reddings guilty of each element of the charged offense beyond a reasonable doubt. The jury, in assessing the weight of evidence against Reddings and in assessing his credibility, chose not to believe Reddings’ testimony. This credibility determination rightfully belongs to the jury. The evidence was sufficient to enable a rational trier of fact to find Reddings guilty beyond a reasonable doubt of felony obstruction.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       (Citation and punctuation omitted.) Mathis v. State, 194 Ga. App. 498, 499 (2) (391 SE2d 130) (1990).

       OCGA § 16-1-7 (b); Smith v. State, 190 Ga. App. 246 (378 SE2d 493) (1989).

       OCGA § 16-10-24 (b).

        Shaw v. State, 247 Ga. App. 867, 869 (2) (545 SE2d 399) (2001).

        Arnold v. State, 249 Ga. App. 156 (1) (545 SE2d 312) (2001).

       See Cook v. State, 235 Ga. App. 104, 105 (1) (508 SE2d 473) (1998).