author: Smith, Presiding Judge.

text:
    A02A0415.
    DAVIS v. STATE OF GEORGIA.
    (568 SE2d 161)
   Smith, Presiding Judge.

Alphonso Davis appeals after a bench trial from the trial court’s order denying his motion to suppress evidence and granting the State’s forfeiture complaints as to five items of personal property seized when executing a search warrant for Davis’s home and cars. Davis raises ten enumerations of error, none of which we find meritorious. We therefore affirm the trial court’s ruling and judgment.

Construed to support the judgment, the evidence presented showed that Davis was arrested in DeKalb County for trafficking in cocaine after a controlled buy was set up by DeKalb law enforcement officers using a confidential informant. DeKalb County officers had been informed by law enforcement officers in Greene County that a traffic stop there had revealed cocaine, the source of which was an apartment in DeKalb County. The person arrested in the Greene County traffic stop disclosed his source, and during the investigation of this information, DeKalb County officers became aware of Davis through a confidential informant. The informant told the officers that Davis had been delivering a kilo of cocaine to him twice a month for the past two years, described Davis, and informed the officers that Davis usually carried the cocaine “tucked in his pants or in a bag.” The confidential informant stated that although Davis had several addresses, every time Davis made a delivery he came from Cobb County. The informant also told officers that Davis would make these deliveries using one of three vehicles: a green Jeep Cherokee, a red Volvo, or a BMW, and that in the past he had come armed and had displayed the weapon.

At the request of the officers, the informant telephoned Davis to set up the controlled buy, and the officers heard both sides of the conversation. The telephone call took place at about 5:00 p.m. on the evening of October 2, 1999. Davis agreed to deliver the cocaine at 6:30 that evening. The informant had been instructed to try to negotiate the price, but Davis refused to lower the price, stating: ‘You know how I deal. ... I don’t bargain.” During that telephone conversation, Davis told the informant he would be coming from Cobb County. Davis arrived on time, in a green Jeep Cherokee. He left his vehicle, and the DeKalb County officers observed him proceed toward the informant’s apartment building with his left hand “tucked” under his shirt so that it appeared he was holding something. The officers then confronted him, identified themselves, and arrested him. As they did so, “a brick wrapped in tape fell out.” The package later tested positive for cocaine. When the DeKalb officers investigated the Jeep, they found a weapon and some correspondence that showed the Cobb County address. The Jeep was registered to Davis at that address. The DeKalb officers then contacted an investigator with the Cobb County Marietta/Cobb/Smyrna (MCS) narcotics unit and informed its officers what had transpired. A Cobb County investigator then applied for a search warrant for Davis’s Cobb County apartment and the two other vehicles.

The warrant was obtained, and both DeKalb officers and MCS officers participated in executing it. In a bedroom in Davis’s apartment, more than $112,000 in bills of all denominations was found inside one or more Crown Royal bags in a compartment in a television stand. A box of $1 bills was found in a guest room closet. Another gun also was found in the apartment, as were the titles to two of the automobiles. One hundred nineteen grams of cocaine were found in a bag in the glove box of a red Volvo registered to Davis, which was parked outside the apartment. A bulletproof vest and two blank money orders were also found in the Volvo. The officers also observed a silver BMW, which was registered to Davis. After seizing these items, the Cobb County officers initiated the forfeiture proceedings.

At the hearing, Davis was called by the State for cross-examination. He admitted he was the sole resident of the apartment. He invoked his Fifth Amendment privilege against self-incrimination with regard to all questions about the DeKalb County incident and arrest. Although he acknowledged ownership of all three vehicles, he denied any knowledge of the cocaine found in the Volvo and testified he had never dealt with drug dealers. He claimed he intended to use the money orders to pay his rent on the apartment, which was $802 plus “a late charge or something,” and that the pistol found in the apartment belonged to his son, who left it in the closet during a visit to keep it from his children. Although he claimed to have had somewhere between $35,000 and $60,000 income a year between a small business and a pension, the State showed that his tax returns reported annual income ranging from a maximum of approximately $15,000 to as little as a loss of $6,000. He claimed that the cash found in the apartment was his life savings. He stated that he kept it there because he had “had some problems at the bank before” and felt it was safer in his apartment. He also said, however, that he kept the bulletproof vest because he had been robbed several times at his previous home, which he still owned.

1. In five enumerations of error, Davis contends the trial court erred in denying his motion to suppress because the magistrate lacked probable cause to issue the search warrant. He argues that the affidavit in support of the application for the warrant was defective for a number of reasons: It contained mere conclusions; it did not contain any facts that allowed the magistrate to determine the reliability of the confidential informant or the information he provided; it withheld the confidential informant’s “significant criminal history” and evidence that agents promised favors to the informant in exchange for his cooperation; it did not establish a “nexus” between Davis’s acts in DeKalb County and his Cobb County apartment under the “totality of the circumstances” test; and the only verification of facts in the affidavit was that of “innocent details.”

Because Davis does not argue these enumerations separately, we will address them together as well. In doing so, we note that in reviewing a trial court’s ruling on a motion to suppress, we must be guided by three principles. First, the trial court sits as the trier of fact, and the trial court’s findings on conflicting evidence are therefore analogous to a jury’s verdict. The ruling should not be disturbed unless completely unsupported by evidence. Second, the trial court’s decision with regard to credibility must be accepted unless clearly erroneous. Third, we must construe the evidence most strongly in favor of upholding the trial court’s findings. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). In deciding whether probable cause is present to support the issuance of the warrant, the issuing magistrate must make “a practical, common sense decision” as to whether a fair probability exists that contraband or evidence of a crime will be found at a given place, “given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of the person supplying hearsay information.” Turner v. State, 247 Ga. App. 775, 778-779 (4) (544 SE2d 765) (2001). This court must decide whether substantial evidence exists in the record to support issuance of the warrant. Id. The burden of proving the lawfulness of the warrant is on the State. This burden shifts to the movant only after the State has met its burden. In doubtful or marginal cases, the preference accorded to warrants must prevail. Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

In this case, the affidavit did not consist of “mere conclusions.” It recited that a confidential informant had advised an investigator employed by the Sheriff of DeKalb County that he could “set up a drug deal” with Davis for one kilo of cocaine, that Davis lived in a Cobb County apartment, and that he was using that location to store and sell cocaine. The confidential informant also stated to officers that Davis had several other vehicles and identified them as a red Volvo and a BMW. The informant’s information was proved reliable when the controlled buy was arranged and Davis appeared at the buy’s location at the arranged time with a kilo of cocaine. It was further verified by officers, who found correspondence and an insurance card in Davis’s possession indicating a certain address in Smyrna, Cobb County, and checked with the apartment complex management and with a credit bureau, both of which verified the address as Davis’s. In addition, the officers went to the apartment complex and observed both a red Volvo and a silver BMW parked near Davis’s apartment. Both vehicles were registered to Davis.

The controlled buy supervised by law enforcement officers would alone have provided probable cause. Turner, supra at 779 (4). “Even if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable if portions of the tip are sufficiently corroborated. [Cits.]” State v. Wesson, 237 Ga. App. 789, 791 (516 SE2d 826) (1999). Here, officers witnessed the delivery of the cocaine and confirmed the accuracy of many of the informant’s predictions concerning Davis’s behavior. This “sufficiently corroborated” the informant’s information and showed its reliability. See Gordon v. State, 248 Ga. App. 776, 778 (546 SE2d 925) (2001); Huntley v. State, 244 Ga. App. 212, 213 (535 SE2d 270) (2000).

The information in the affidavit also established a “nexus” between the DeKalb County crime and Davis’s Cobb County residence. Even had the officers found nothing at the DeKalb County crime scene tying Davis to the Cobb address, it is undisputed and admitted that Davis was living at the Cobb County apartment. “Under certain circumstances, it is reasonable for a police officer to infer that items will be found in a specific place. No more is required than a fair presumption; the probabilities are with the officer’s conclusion.” (Citations and punctuation omitted.) Huntley, supra at 213. And it is reasonable for an officer to presume that one committing a crime will return to his home after the crime, perhaps leaving incriminating evidence there. McClain v. State, 267 Ga. 378, 388-389 (11) (477 SE2d 814) (1996). Accord DeYoung v. State, 268 Ga. 780, 787-788 (7) (a) (493 SE2d 157) (1997).

Davis also seeks to invalidate the affidavit by alleging misconduct on the part of the affiant. He relies upon Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), to support his allegation that it was misconduct for the officers to have failed to mention in the affidavit that the informant had never himself visited Davis’s Cobb County apartment, had a lengthy prior criminal history, and had made bond on the Greene County charge through the intervention of one of the officers, notwithstanding that he was on probation in Fulton County at the time.

Under Franks, however, the omissions must be material and evidence must be presented that the affiant deliberately misled the magistrate. Not every inaccuracy or omission satisfies these requirements.

There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.

Franks, supra at 171. See Bickley v. State, 227 Ga. App. 413, 414 (1) (a) (489 SE2d 167) (1997) (“for an omission to invalidate a warrant, the defendant must show that the omitted information was material to the determination of probable cause and that it was omitted for the purpose of misleading the magistrate. [Cit.]”).

Here, the fact that the informant had never visited Davis’s apartment was not material in light of the fact that the informant’s information was independently verified by law enforcement officers. And Davis has utterly failed to demonstrate that the affiant deliberately misled the magistrate. The record simply does not disclose that the affiant had actual knowledge of the omitted evidence. In fact, a DeKalb County officer testified that although he was aware the informant had a criminal record, he did not know at the time of the arrest that he was on probation in Fulton County. The same officer, who Davis alleged improperly “intervened” to allow the informant to make bond, testified that the informant was given no consideration “at all” for his cooperation and that, in fact, the informant approached the officers after the arrest and informed them that he wished to cooperate. This officer also testified that he told the informant only that he would inform the district attorney’s office of the informant’s cooperation, but that “anything that happens to him from this point on is up to the judge and the prosecutor.” These omissions were not material. Moreover, if any material omissions were made, they could be explained as innocent mistakes.

Robertson v. State, 236 Ga. App. 68 (510 SE2d 914) (1999), relied upon by Davis, is distinguished on its facts. In Robertson, in addition to failing to disclose that the informant had a criminal history, the affidavit did not disclose that the informant told the officer he was enraged at one of the defendants, who had made a sexual advance toward the informant’s girlfriend. In addition, the affiant was aware that the informant was on parole. Id. at 69-70. Those additional factors were not present in this case. The important factor is whether indicia of reliability of an undisclosed informant were presented. In this case, we are satisfied that such indicia were presented. The magistrate did not err in issuing the warrant.

2. In two enumerations, Davis complains that the evidence presented at trial did not support an order of condemnation. Forfeiture cases are civil proceedings, and the State need prove its case only by a preponderance of the evidence. Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). Even circumstantial evidence is sufficient if it authorizes a reasonable inference that the seized property is subject to forfeiture. Jones v. State of Ga., 249 Ga. App. 64, 67-68 (3) (547 SE2d 725) (2001). Once the State establishes a prima facie case, the burden shifts to the respondent to prove his status as an innocent owner by a preponderance of the evidence. Mitchell v. State of Ga.,236 Ga. App. 335, 337 (511 SE2d 880) (1999). We will not reverse the trial court’s findings of fact if any evidence exists to support them. Id. Here, the trial court found that all the items seized “were either used to facilitate violations of the Georgia Controlled Substances Act or were located in close proximity to controlled substances and were proceeds derived from violations of such Act.”

The trial court did not err. Property may be forfeited if it “is, directly or indirectly, used or intended for use in any manner to facilitate a violation of [the Georgia Controlled Substances Act] or any proceeds derived or realized therefrom.” OCGA § 16-13-49 (d) (2). Ample evidence was presented to establish that was the case here. Although Davis complains that the State did not establish that he possessed at least one gram of cocaine, that assertion is belied by the record. A Georgia Bureau of Investigation forensic chemist authenticated records showing that the sample submitted was cocaine, and the laboratory report showed 67.2 grams of the cocaine to have 78 percent purity. In addition, an officer testified that he field tested the cocaine, and by its color, he knew that “it was going to be a good purity.” Evidence showed that Davis was able to supply a kilo of cocaine on very short notice, leading to an inference that he was regularly engaged in the drug trade. Davis’s explanations for the presence of the large amount of cash in his apartment were not reasonable, given the earnings he had reported to the Internal Revenue Service, nor was his explanation for having the bulletproof vest and the gun. He had no explanation for the presence of cocaine in the Volvo. Applying the appropriate standard of review, we have no hesitation in finding that the trial court’s judgment of condemnation is supported by a preponderance of the evidence.

Decided July 2, 2002.

J. Alfred Johnson, for appellant.

Patrick H. Head, District Attorney, William M. Clark, Amy H. McChesney, Assistant District Attorneys, for appellee.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       A complaint for condemnation of a weapon was also filed, but Davis apparently did not appeal the condemnation of this item of personal property. The record shows that four complaints for condemnation were consolidated for trial, that the case was tried before a judge without a jury, and that the trial court did not rule on the motion to suppress until the end of the trial.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0668.
    LIFESTYLE FAMILY, L.P. et al. v. LAWYERS TITLE INSURANCE CORPORATION.
    (568 SE2d 171)
   Mikell, Judge.

In this dispute over real estate brokerage commissions, Lifestyle Family, L.P. and Mansour Properties, LLC (“Lifestyle Mansour”) appeal a judgment entered on a jury verdict in favor of Ben Carter Holdings, Inc. (“Carter”) and a directed verdict entered in favor of Southeastern Partners, Inc. (“Southeastern”). For the reasons that follow, we reverse the judgment for Carter and affirm the directed verdict for Southeastern.

Evidence adduced at trial shows that the underlying transaction began in 1996, when the Eastern Airline Pension Fund (“Eastern”) retained Carter, a brokerage firm, to procure a buyer for a 130-acre parcel of land in Gwinnett County. Stanley B. Ashley, Jr., CCIM, a broker associated with Carter, testified that he represented Eastern. Lifestyle Mansour began negotiating with Ashley to purchase the parcel. Meanwhile, Ashley received an inquiry from David Thomas, CCIM, a broker associated with Southeastern, acting on behalf of a prospective buyer, Unisource Worldwide, Inc. (“Unisource”). Uni-source was interested in acquiring a 30-acre portion of the property known as the Governor’s Lake Tract (“the Tract”). However, Eastern wished to sell the 130-acre parcel as a whole.

On May 17, 1996, Eastern and Lifestyle Mansour reached an agreement for the sale of the parcel for $3.5 million. Ashley testified that prior to finalizing the agreement, he informed Lifestyle Man-sour of Unisource’s interest in purchasing the Tract. According to Ashley, Sam Leveto, Lifestyle Family, L.P.’s principal, “specifically requested that I try to obtain a new offer out of Unisource. . . .”

Ashley further testified that Thomas contacted him and expressed Unisource’s continued interest in the Tract. Ashley conveyed this interest to Leveto, who asked Ashley to solicit a written offer from Unisource. On June 4, 1996, Thomas submitted to Ashley a letter of intent reflecting Unisource’s offer to purchase the Tract for $2.25 million. The letter stated that Southeastern “shall look to the seller to pay a commission of 10% of the purchase price,” which Southeastern and Carter would divide equally. Ashley testified that he faxed the letter to Leveto and arranged a meeting on behalf of Lifestyle Mansour with Unisource and Thomas. Both Ashley and Thomas testified that at the meeting, Lifestyle Mansour expressed an interest in selling the Tract to Unisource but deferred negotiating details until after closing the deal with Eastern. Commissions were not discussed.

The sale of the 130-acre parcel closed on July 10, 1996. Lifestyle Mansour then contacted Thomas and invited him to Leveto’s office to discuss Unisource’s offer. To Thomas’s “great surprise,” Ashley was not present when he arrived. Moreover, Leveto and George Mansour, manager of Mansour Properties, LLC, informed Thomas that Ashley was not involved in the transaction and did not represent them, that they had not agreed to pay him a commission, and that they did not want to work with him. “The indication was that if he was in the deal, they didn’t want to go forward with it,” Thomas testified. In addition, Leveto and Mansour demanded $100,000 an acre, or $3 million, for the Tract, and offered to pay Southeastern a commission of only $80,000.

Thomas wrote Leveto and Mansour a letter memorializing the meeting, expressing shock at the amount of the commission they offered. Thomas also wrote that he notified Ashley that he was dealing directly with Leveto and Mansour and would pay Ashley a referral fee.

Upon receipt of the letter, Ashley arranged another meeting with Mansour and Leveto to discuss the commission issue. Mansour and Leveto were unwilling to pay ten percent. However, Ashley testified, they told him they wanted to think about it over the weekend and would get back to him. According to Ashley, they never did.

Thomas testified that Lifestyle Mansour ultimately agreed to pay him a brokerage commission of $110,000. Thomas signed a proposal, drafted by Mansour, agreeing to accept that sum and to “pay [Carter] their portion of the commission as may be due to them.” Thomas believed that Ashley continued to negotiate with Mansour and Leveto concerning Ashley’s commission.

On August 30, 1996, Lifestyle Mansour executed an agreement to sell the Tract to Unisource for over $3 million. The contract named Southeastern “Broker” and Carter “Referring Broker.” It provided that Lifestyle Mansour would pay Southeastern a brokerage commission of $110,000, Southeastern would hold Lifestyle Mansour harmless from claims of any other brokers, and Southeastern would be responsible for paying Carter “its share of commission as agreed upon” between them. Neither Southeastern nor Carter was a signatory to the agreement.

Thomas testified that he never agreed to hold Lifestyle Mansour harmless from Carter’s commission claims, that Carter did not authorize Thomas to agree to a commission, and that he did not read the commission paragraph. Ashley testified that he did not receive a copy of the agreement until suit was filed.

The sale of the Tract to Unisource closed in March 1997. Thomas testified that he did not attend the closing but was asked to sign the documents at a later date. Thomas executed a “Final and Unconditional Waiver and Release of Lien,” waiving any claims against Lifestyle Mansour and Unisource in exchange for $110,000. This sum, plus an additional $40,499.28 contributed by Lifestyle Mansour, was placed in escrow with Lawyers Title Insurance Corporation pending resolution of the commission issue.

Thomas testified that based on Lifestyle Marisour’s request that he try to resolve the matter with Ashley, he offered Ashley 20 percent of the $110,000 commission, or $22,000, as a referral fee. In August 1997, Mansour wrote Thomas a letter urging him to split the commission with Carter because “it is indisputable that [Carter] facilitated and arranged . . . the bringing together of the buyer and the seller which ultimately led to the closing of the property. . . .” By this time, Thomas was aware that Carter claimed it was due a $150,000 commission.

Settlement negotiations failed, and Lawyers Title interpleaded the escrowed funds into court. Lifestyle Mansour filed a cross-claim against Carter, Southeastern, and the funds, asserting theories of fraud, fraudulent inducement, and breach of contract. Carter filed a cross-claim against Lifestyle Mansour and Southeastern, seeking to recover a commission under theories of procuring cause and breach of contract (Count 1), as well as quantum meruit (Count 2). Southeastern filed a cross-claim against Carter, asserting that Carter was not entitled to any portion of Southeastern’s commission. Southeastern also sought recovery of $110,000 of the interpleaded funds. The trial court dismissed Lawyers Title from the action and realigned the parties thusly: Carter as plaintiff, Lifestyle Mansour as defendants, and Southeastern as third-party defendant. The day before trial, Carter and Southeastern reached an agreement to divide any recovery equally.

At the conclusion of the evidence, the trial court directed a verdict for Southeastern in the amount of $110,000. Carter’s claim was submitted to the jury on alternate theories of breach of contract and quantum meruit. The jury returned a verdict in Carter’s favor on the breach of contract claim, awarding $150,000 in damages. The jury also found that no indemnification agreement existed between Southeastern and Lifestyle Mansour. Judgment was entered on the verdict.

Lifestyle Mansour filed a motion for judgment notwithstanding the verdict (“judgment n.o.v.”) against Southeastern and for a new trial against Carter. The trial court denied both motions. This appeal followed.

1. Lifestyle Mansour contends that the trial court should have granted its motion for new trial on the breach of contract claim because there is no evidence that it entered into a contract with Carter to pay a ten percent brokerage commission. We agree.

Although an oral contract for a brokerage commission is valid, such a contract is not complete and enforceable until there is a meeting of the minds as to all essential terms. And although the appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict, a careful review of the transcript in the instant case reveals no evidence of a meeting of the minds between Lifestyle Mansour and Carter as to the amount of the commission. Ashley testified that after receiving the offer from Unisource, he faxed it to Leveto; that the fax expressed the ten percent brokerage commission that Carter and Southeastern anticipated receiving and sharing equally; that Leveto subsequently instructed Ashley to arrange a meeting with Unisource; and that at the meeting, Leveto did not raise an objection to the proposed commission. However, there is no evidence that Lifestyle Mansour agreed to pay that percentage. And although there is evidence that these parties continued to negotiate the commission rate, no agreement was ever reached. For this reason, the verdict is not sustainable.

A case on point is Perimeter Realty v. GAPI, Inc., which involved a suit by two brokers to recover real estate commissions. In that case, there was evidence that the buyer and seller proceeded to negotiate the sale without the brokers after the brokers brought them together. Moreover, the seller never signed the written commission agreement drafted by the brokers and continued to propose a lesser fee. The brokers agreed to share a commission, but the seller proceeded to negotiate the sale directly with the buyer and paid the brokers nothing after the transaction closed. In affirming the denial of summary judgment to the brokers, we held that the evidence did not demonstrate the existence of an enforceable oral agreement because certain essential terms were missing.

Except for the procedural posture, Perimeter Realty v. GAPI, Inc. is squarely on point with the instant case. In this case, the essential term missing from the brokerage agreement is the amount of the commission, and there is no evidence of a meeting of the minds on that issue. Gibbs v. Brown, relied on by Carter in support of its argument that Lifestyle Mansour agreed to pay a ten percent commission, is distinguishable. There, the agent presented evidence that his commission was discussed at various meetings, and it does not appear that the actual percentage was in dispute. The evidence here was that the percentage was hotly disputed. It follows that Gibbs is inapposite.

Moreover, the jury was given a special verdict form from which it was permitted to find either that a contract existed or that Carter should recover in quantum meruit. As the jury found that a contract had been formed, and we find no evidence to sustain the verdict, the trial court’s denial of Lifestyle Mansour’s motion for a new trial must be reversed.

2. Nevertheless, we hold that a retrial is authorized on the theory of quantum meruit. In this regard, we reject Lifestyle Mansour’s argument that the Brokerage Relationships in Real Transactions Act (“BRRETA”) eviscerates a broker’s right to recover commissions under any common law theory except breach of an express contract.

Statutes adopted in derogation of the common law must be strictly construed. “Unless the contrary manifestly appears from the words employed, the language of a [C]ode section should be understood as intending to state the existing law, and not to change it.” The common law “procuring cause” doctrine applies where, as here, there is no express contract governing the conditions under which a commission is to be paid. A broker makes out a prima facie case that he was the procuring cause of a sale “when he shows that negotiations for the sale were set on foot through his efforts, that he performed every service required by his employment which it was possible to perform, and that the failure on his part to personally consummate the trade was due to the interference of the defendant.” BRRETA does not change this concept. Rather, it was enacted to “codify the way relationships actually operate within the real estate industry and to distinguish the ‘limited agency’ relationship in real estate transactions from common law agency.” Moreover, although our appellate courts have not yet addressed this precise issue, the Colorado Court of Appeals has determined that its version of BRRETA was not intended to supplant existing law pertaining to brokerage relationships. Specifically, the court ruled that BRRETA did not eradicate the common law concept of procuring cause because nothing in the statutory scheme addressed the issue. We agree with this reasoning and hold that BRRETA does not preclude recovery under a quantum meruit theory or the procuring cause doctrine.

We also reject Lifestyle Mansour’s argument that Carter is barred from recovering a commission because it acted as a dual agent without disclosing that fact. BRRETA defines a “dual agent” as a broker who “has a client relationship with both seller and buyer ... in the same real estate transaction.” The evidence in this case shows that Carter acted on behalf of Lifestyle Mansour in its transaction with Unisource. The fact that Carter represented Eastern in a separate transaction with Lifestyle Mansour is irrelevant to this issue. Carter did not act as a dual agent.

Finally, we note that the record is replete with evidence warranting a recovery for Carter in quantum meruit. For example, Lifestyle Mansour’s August 1997 letter to Thomas reads in pertinent part:

While Stan Ashley may not have had the exclusive right to list the property, it is indisputable that Mr. Ashley facilitated and arranged for the meeting between the buyer and the seller of the property. ... As far as I’m concerned, both Stan Ashley and yourself facilitated the bringing together of the buyer and the seller which ultimately led to the closing of the property and the payment of the $110,000 commission.

In light of this letter, Lifestyle Mansour would be hard pressed to deny that Carter was a procuring cause of the transaction. Moreover, the purchase agreement between Lifestyle Mansour and Unisource acknowledges Carter as a broker in the transaction. Accordingly, upon retrial, Carter may pursue a quantum meruit claim..

3. Lifestyle Mansour contends that the trial court erred in refusing to give its requested charge no. 14. As the claim must be retried, we will address the enumerated error.

“A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” The first sentence of Lifestyle Mansour’s requested charge states that the “broker’s commissions are not earned until . . . the owner makes an unconditional offer to sell and it is accepted by a purchaser found by [the broker].” This principle has no application to the facts of the case at bar. Here, the owner intentionally excluded the broker from the transaction despite the broker’s attempt to secure a satisfactory offer from the purchaser. Therefore, the trial court did not err in refusing to give the requested charge.

4. Finally, Lifestyle Mansour argues that the trial court erred in directing a verdict for Southeastern on its claim for a $110,000 commission. We disagree.

“A directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict.” In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict.

Lifestyle Mansour claims a conflict in the evidence exists as to whether Southeastern fully performed its contractual obligations in the letter agreement dated August 28, 1996. The letter, which was drafted by Mansour and addressed to Thomas, states in part:

If you secure a contract acceptable to me, I agree to pay [Southeastern] a commission of $110,000 from the proceeds of closing. It is understood you shall pay [Carter] their portion of the comission [sic] as may be due to them. You shall hold harmless Buyer and Seller from any claims from other brokers due to your actions, and we shall hold you harmless from any claims caused by our actions, except [Carter].

Lifestyle Mansour does not dispute that the evidence conclusively demonstrates that Southeastern secured an acceptable contract, for which it was owed a commission of $110,000. Rather, Lifestyle Man-sour claims that because Southeastern did not pay Carter any portion of its commission, a jury issue was created on Lifestyle Man-sour’s breach of contract claim. This argument ignores the fact that the trial court submitted the indemnification claim to the jury.

In directing the verdict, the trial court recounted Mansour’s testimony as follows:

The court: He added he was his broker. He admitted he found him a buyer. He admitted that they negotiated a commission to $110,000, and he admitted that he paid the $110,000. Now, to what extent did he not perform his contract, and the sale closed according to the terms negotiated by Mr. Thomas, along with Unisource, and Mansour and Leveto? So how is there any contest over whether Thomas and Southeastern [are] entitled to this $110,000?
Mr. Hughes: Your Honor, they may — I’ll have to draw a [distinction] here.

Decided July 2, 2002.

Alston & Bird, William H. Hughes, Jr., for appellants.

Sutherland, Asbill & Brennan, Richard L. Robbins, Julianne N. Belaga, Deborah M. Danzig, Foltz & Martin, Kevin H. Hudson, for appellee.

The court: They may be entitled to —.
Mr. Hughes: Subject to a right [of] set off.
The court: We don’t have set off. We have indemnification. . . . Whether or not it’s valid, that has nothing to do with whether he’s supposed to be paid [$110,000].

The construction of a contract is a question of law for the trial court, and our review of the court’s interpretation is de novo. Southeastern’s obligation to pay Carter such “portion of the commission as may be due to them” was not a condition precedent to the formation of the contract, and Southeastern’s entitlement to a commission was not contingent upon it. Rather, that clause related to Southeastern’s agreement to hold Lifestyle Mansour harmless from any of Carter’s commission claims, and this issue was submitted for jury resolution. There was no error.

5. The remainder of Lifestyle Mansour’s enumerated errors are rendered moot by our holding in Division 1.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Phipps, J., concur.

       Certified Commercial Investment Member.

       See Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 589 (1) (a) (533 SE2d 136) (2000). Moreover, prior to its amendment in 2000, the Brokerage Relationships in Real Estate Transactions Act, OCGA § 10-6A-1 et seq., defined a “brokerage engagement” as an “express written or oral contract wherein the client promises to pay the real estate broker a valuable consideration ... in consideration of the broker producing a. . . buyer. . . ready, able, and willing to . . . buy . . . the property.” Ga. L. 1993, p. 378. OCGA § 10-6A-3 (4) was amended in 2000 to require such contracts to be in writing.

       Under OCGA § 13-3-1, the plaintiff in a breach of contract action has the burden of proving three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms. Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991); see also OCGA § 13-3-2; Clark v. Schwartz, 210 Ga. App. 678, 679 (436 SE2d 759) (1993).

        BM&J Contractors v. Liberty County Bd. of Ed., 226 Ga. App. 110, 111 (485 SE2d 262) (1997).

       Cf. American Global Dev. Group v. Sasser & Weatherford, Inc., 249 Ga. App. 479, 482-483 (3) (548 SE2d 465) (2001).

       Supra.

       Id. at 589.

       154 Ga. App. 611 (269 SE2d 102) (1980).

       Id. at 612 (1).

        DeKalb County v. Post Apt. Homes, 234 Ga. App. 409, 410 (1) (506 SE2d 899) (1998).

       (Citation and punctuation omitted.) Bd. of Assessors &c. v. McCoy Grain Exchange, 234 Ga. App. 98, 100 (505 SE2d 832) (1998).

       OCGA § 10-6-32 provides that the “broker’s commissions are earned when, during the agency, he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.”

        B&R Realty v. Carroll, 245 Ga. App. 44, 45 (2) (a) (537 SE2d 183) (2000).

       (Citation omitted.) Perimeter Realty v. GAPI, Inc., supra at 596 (11).

       See Sullivan, Brokerage Relationships in Real Estate Transactions: Provide Codification of the Relationships Between Real Estate Brokers and Consumers of Brokerage Services, 10 Ga. St. U. L. Rev. 23 (1993).

        Telluride Real Estate Co. v. Penthouse Affiliates, 996 P2d 151 (Colo. App. 1999).

       Id. at 154 (II).

       To recover under a quantum meruit theory, a broker must demonstrate: (1) . . . performance as agent of services valuable to the defendants; (2) either at the request of the defendants or knowingly accepted by [them]; (3) the defendants’ receipt of which without compensating [the broker] would be unjust; (4). . . expectation of compensation at the time of the rendition of the services; (5) and that [the broker was] the procuring cause of the completed transaction.

        Perimeter Realty v. GAPI, Inc., supra at 596 (11).

       OCGA § 10-6A-3 (10).

       (Citations and punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267) (1991).

        Morgan v. Siegal, 135 Ga. App. 559, 560 (1) (218 SE2d 280) (1975).

        Grier v. Brogdon, 234 Ga. App. 79 (1) (505 SE2d 512) (1998); OCGA § 9-11-50 (a).

        Brandon v. Clark, 235 Ga. App. 614 (1) (510 SE2d 153) (1998).

        Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000).

       See OCGA § 13-3-4; see generally Sheridan v. Crown Capital Corp., 251 Ga. App. 314, 318-319 (2) (554 SE2d 296) (2001) (discussing conditions precedent and subsequent).


author: Ruffin, Judge.

text:
    A02A0684.
    GARLAND v. THE STATE.
    (568 SE2d 540)
   Ruffin, Judge.

A jury found Kevin Brett Garland guilty of driving under the influence with an unlawful alcohol concentration and speeding. Garland appeals, asserting that the trial court erred in failing to grant a continuance, in making several evidentiary rulings, and in limiting his closing argument. For reasons that follow, we affirm.

Viewed in favor of the jury’s verdict, the evidence at trial showed that Officer J. W. Moody stopped Garland, who was driving over 85 mph in a 65-mph zone. After approaching Garland’s car, Moody smelled alcohol on his breath. Upon questioning, Garland told Moody that he had consumed two beers that evening. As part of his field sobriety evaluation, Moody administered an alco-sensor test on Garland’s breath, which tested positive for alcohol.

Based on his opinion that Garland was under the influence to the extent that it was less safe to drive, Moody arrested Garland and read him an implied consent warning. After driving Garland to the police station, Moody tested Garland’s blood alcohol concentration using an Intoxilyzer 5000. Moody conducted two tests within four minutes, and each time the results measured 0.104 grams. Garland was subsequently charged with the offenses at issue here.

1. Garland asserts that the trial court erred in denying his motion to continue the trial so that he could obtain a document that was unavailable in court that morning, but was introduced into evidence at a previous hearing. The record shows that, when he moved for the continuance, Garland explained that the document was a “computer-aided dispatch [that contained] about a three-hour block of radio logs.” He informed the court that it was introduced at a previous motions hearing, that the court reporter kept it, and that he “need[ed] to have that evidence to proceed in [the] case.” It appears that the court reporter was visiting her sick mother in New York, and Garland first learned that the document was unavailable on the morning of trial. On appeal, Garland argues that the trial court erred in denying a continuance under these circumstances. We disagree.

The trial court had discretion in ruling on Garland’s motion for continuance. Even if Garland was surprised that the dispatch logs were unavailable on the morning of trial, he has not demonstrated how those logs would have benefitted his defense. And where such a benefit is not shown to exist, we will not conclude that a continuance was necessary. Accordingly, we find no abuse of discretion.

2. Garland next asserts that the trial court erred in denying his motion in limine to suppress the Intoxilyzer 5000 results based on a purportedly confusing implied consent warning. Specifically, Garland contends that, when Officer Moody was conducting the alcosensor test, he erroneously informed Garland that the legal blood alcohol limit in Georgia was 0.08 grams and that, according to the alco-sensor, he was “ ‘just above the legal limit.’ ” Although Garland acknowledges that Moody informed him of the correct legal limit of 0.10 grams when he read the informed consent warning, he argues that the disparity left him confused about his legal rights.

We reject Garland’s argument for two reasons. First, while it appears that Officer Moody’s erroneous statement was recorded by a videotape, neither the actual videotape nor a transcript of it is included in the appellate record. Thus, to support this assertion, Garland cites the Court to the transcript of the motions hearing during which his trial counsel repeated Moody’s alleged misrepresentation. Counsel’s statement, however, is not evidence. Thus, Garland has not shown by the record that the trial court erred in denying his motion.

Second, even if Garland had presented actual evidence of Moody’s statement, we addressed a similar contention in Maurer v. State and concluded that “any understatement of the legal limit did not change the substance of the notice in any way harmful to [the defendant].” Thus, we find no error.

3. In a related enumeration, Garland asserts that the trial court erred in precluding him from testifying about Officer Moody’s erroneous statement concerning the 0.08 blood alcohol level and the alcosensor results. Again, we find no error.

“Alco-sensor results are not used as evidence of the amount of alcohol or drug in a person’s blood. Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” Accordingly, the results are inadmissible to show the blood alcohol level revealed by the test. Although Garland contends that he wanted to use Officer Moody’s statement about the results to prove that Moody intentionally misled him, the evidence also would have shown that the alco-sensor revealed Garland was “just above” 0.08 and, therefore, implicitly below the 0.10 legal limit. The trial court did not err in excluding this testimony.

4. Garland next asserts that the trial court erred in precluding him from entering into evidence a police department log containing the results of his Intoxilyzer 5000 tests. The log reveals that Moody took two breath samples from Garland, and each one measured 0.104 grams. The log further shows that Moody tested another subject shortly after Garland, and both those samples measured 0.18 grams. In addition to these two subjects, the log contains the outcome of a quarterly inspection on the machine and the results of tests conducted by Moody and other officers on another twelve individuals. Outside the jury’s presence, Garland proffered that the log would

be the foundation for [his] expert’s testimony because the two samples are .104 and .104. It’s a contamination issue. It further shows Officer Moody’s propensity not to change mouthpieces, because right after [Garland’s] it’s a .180, .180. . . . [M]y expert’s testimony is going to be that it is impossible ... to have alcohol across a three-minute period be stable. Alcohol peaks and goes down.

The trial court found that the test results from other individuals were irrelevant and denied Garland’s request to introduce the log into evidence. We find no error.

For evidence to be relevant, it

must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded. This rule favors the admission of any relevant evidence, no matter how slight its probative value, and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. But the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

The log at issue here clearly contained irrelevant information. The test results of the other subjects would not show that Moody failed to change mouthpieces when he tested Garland or that Garland’s two samples were cross-contaminated. Thus, the trial court did not abuse its discretion in excluding the log.

Moreover, it is unclear how the trial court’s ruling prejudiced Garland. His Intoxilyzer 5000 test results had already been admitted into evidence, and that exhibit, as well as Moody’s testimony, clearly showed that both samples measured 0.104 grams. Thus, to the extent that Garland wanted to use the identical results reflected in the log as the basis for his expert’s testimony concerning cross-contamination, the evidence was already before the jury. Likewise, the State had introduced a certificate of inspection revealing that the quarterly inspection, mentioned in the log, was conducted and that the machine was “in good working order.” Considering this evidence, introduction of the log “would have been largely cumulative, and a trial court does not abuse its discretion in excluding cumulative evidence.” Accordingly, we find no error.

5. Garland asserts that the trial court erred in allowing the State to use hearsay testimony to lay a foundation under OCGA § 40-6-392 (a) (1) for the introduction of the Intoxilyzer 5000 breath test results. The Code section requires in part that, before a breath test can be considered valid, it must

have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.

In this case, the prosecutor attempted to lay the foundation by asking Officer Moody whether the testing method he used was “approved by the Division of Forensic Sciences (‘DFS’) and the Georgia Bureau of Investigation.” Garland objected to the inquiry, arguing that any such approval would have been in writing from the DFS and that Moody’s response would, therefore, necessarily constitute hearsay and violate the best evidence rule. The trial court overruled Garland’s objection, and he now asserts that ruling as error.

Pretermitting whether Moody was competent to testify that the Intoxilyzer 5000 was approved by the DFS, we find that the State satisfied the foundational requirement with other evidence. Moody testified that he was trained to operate the Intoxilyzer 5000 and that he had. a permit from the DFS to operate it. The permit, which was entered into evidence, shows that Moody was certified by the DFS “to perform chemical analyses of breath specimens pursuant to the Uniform Act Regulating Traffic on Highways [and the authorization is] . . . applicable to analyses utilizing [an] Intoxilyzer Model 5000.” This evidence satisfies the foundational requirement at issue.

Decided July 2, 2002

McDonald & Cody, Douglas W. McDonald, Jr., for appellant.

6. Finally, Garland asserts that the trial court erred in precluding him from commenting about an uncalled witness during closing argument. The record shows that, during his argument, Garland’s counsel asked the jury: “Where is Trooper Thackett? She’s got to be available.” The trial judge interrupted counsel, stating: “I think I ruled on that pre-trial.” Without further comment, counsel continued his closing with a different argument.

With no citation to the record, Garland contends on appeal that “Thackett was the area supervisor that signs the certificates of inspection for the breath test machine. Since she signed the certificate on the accuracy of this particular machine, she had knowledge of material and relevant facts for the jury to hear.” Thus, Garland contends, the trial court should have allowed him to comment on Thackett’s absence.

Pretermitting the question of error, we concluded that Garland has not preserved the issue for appeal. Although the trial court speculated that it had “ruled on that pre-trial,” we do not know from the court’s statement what “that” issue is. Furthermore, while it appears that the trial court had earlier denied Garland’s request to instruct the jury on “uncalled available witnesses,” Garland has not pointed to any ruling by the court relating to his closing argument. More importantly, Garland has not shown that he ever contested such a ruling, and the record reveals that he offered no protest following the court’s brief statement during his argument.

“No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” Accordingly, this assertion presents nothing for review.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Assistant Solicitor-General, for appellee.

       The jury acquitted Garland of driving under the influence to the extent that it was less safe to drive and failure to maintain lane.

       See Martin v. State, 268 Ga. 682, 683 (2) (492 SE2d 225) (1997).

       See id. at 684; Johnson v. State, 255 Ga. 703, 704 (2) (342 SE2d 312) (1986).

       See Martin, supra; Johnson, supra.

       When Garland committed the offense on January 22, 2000, the legal blood alcohol limit was under 0.10 grams. Effective July 1, 2001, the legislature lowered the limit to less than 0.08 grams. See Ga. L. 2001, p. 208, § 1-5.

        See Anthony v. State, 213 Ga. App. 303, 305 (2) (444 SE2d 393) (1994).

       See id.

       240 Ga. App. 145, 147 (2) (525 SE2d 104) (1999).

       (Citation and punctuation omitted.) Porche v. State, 217 Ga. App. 325-326 (1) (457 SE2d 578) (1995).

       See id. at 326.

       See id.

       (Citations and punctuation omitted.) Knapp v. State, 229 Ga. App. 175, 177 (2) (493 SE2d 583) (1997).

       See id.

        Billings v. State, 251 Ga. App. 432, 435 (3) (558 SE2d 10) (2001).

       OCGA § 40-6-392 (a) (1) (A).

       See Willoughby v. State, 153 Ga. App. 434, 436 (1) (265 SE2d 352) (1980) (concluding that “officer’s testimony, which was objected to, was not competent to establish whether the equipment was approved by the Director of the State Crime Laboratory”).

       See Conner v. State, 205 Ga. App. 564, 565-566 (2) (422 SE2d 872) (1992); Page v. State, 202 Ga. App. 828, 830 (2) (415 SE2d 487) (1992); Fowler v. State, 200 Ga. App. 505 (1) (408 SE2d 449) (1991).

       (Citation and punctuation omitted.) Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530) (1989). See also Copeland v. State, 248 Ga. App. 346, 348 (1) (546 SE2d 351) (2001); Leatherwood v. State, 212 Ga. App. 342-343 (1) (b) (441 SE2d 813) (1994).


author: Pope, Presiding Judge.

text:
    A02A0820.
    McDONALD v. THE STATE.
    (568 SE2d 546)
   Pope, Presiding Judge.

Talmadge McDonald was convicted of one count of aggravated stalking in Clarke County.

At trial, evidence was presented that McDonald was married to Laurie McDonald in December 1999. On December 16, 2000, the couple separated and McDonald moved out of Ms. McDonald’s Oglethorpe County home. He returned on December 19, 2000, and spent the night. In the morning, he tied Ms. McDonald to her bed while she slept. When she woke up, she found that he had also taped her mouth closed. He tried to force her to drink lye. He then drank lye, threatened to kill himself and passed out.

Ms. McDonald freed herself and called the police. She then got a temporary restraining order in Oglethorpe County against McDonald; a copy of the order was served on him on December 28, 2000. The order prohibited McDonald from harassing or intimidating contact with Ms. McDonald.

Ms. McDonald testified that on January 5, 2001, she went to pay a bill in Clarke County. As she parked her car McDonald banged on her window and said that he wanted to talk to her. He told her to roll down her window, and he became enraged when she would not talk to him. He threatened her and kicked at her car as she drove away. Ms. McDonald was unable to get out of her car to attend to her business, and she called the police to report the incident. A warrant in Clarke Comity was then issued for McDonald’s arrest. The charges in this case stem only from this incident — the other incidents occurred in Oglethorpe County.

At trial, Ms. McDonald testified about the Clarke County incident in the parking lot. She was also allowed to testify about the basis for the temporary protective order and her prior difficulties with McDonald in Oglethorpe County. She then testified about difficulties with McDonald in the days after the January 5 Clarke County incident. These later incidents also occurred in Oglethorpe Comity. She testified that after the incident in the parking lot, McDonald left threatening messages every day on her answering machine telling her that he was going to kill her and that he was going to burn her house down with her in it. She testified that he left many of these messages every day. She testified that on January 10, McDonald broke into her house and “took her away.” She referred to the incident as when McDonald had kidnapped her. Ms. McDonald’s testimony concerning this subsequent event was brief, and during the direct examination defense counsel did not object. Furthermore, during defense counsel’s cross-examination of Ms. McDonald, he asked her more details regarding the January 10 incident. Defense counsel elicited information from her that McDonald took her out of town during the incident and that he did not return her to town until January 12.

The State introduced into evidence a certified copy of the protective order which was served on McDonald. The State did not attempt to introduce any evidence of the criminal charges against McDonald arising from the Oglethorpe County incidents.

McDonald did not testify at trial, but his statement to police about the Clarke County incident was read to the jury in which he said that he had simply wanted to talk to Ms. McDonald on the incident date. He denied kicking her car and denied any threatening intent. The tape was turned off before McDonald discussed the January 10 event.

1. In his first enumeration of error, McDonald claims that the trial court was required to hold a hearing on the admissibility of prior and subsequent difficulties between the victim and the defendant. A few weeks before trial the State provided McDonald with notice of its intent to present evidence of the prior and subsequent difficulties with Ms. McDonald. In response to this notice, the court issued a rule nisi indicating that it would hold a hearing regarding the prior and subsequent difficulties at trial.

Before trial began, a bench conference was conducted at which the attorneys presented to the court their concerns regarding evidence of the Oglethorpe County incidents. The prosecutor explained to the court the timetable regarding McDonald’s crimes: she stated that a temporary protective order was issued and served on McDonald on December 28 and that all of the ensuing events — both the Clarke County and Oglethorpe County incidents — occurred in the following ten days. Accordingly, argued the prosecutor, all of the actions about which Ms. McDonald planned to testify were part of the res gestae and of a continuing course of conduct. She also stated that the actions showed McDonald’s state of mind. McDonald’s attorney objected to the evidence because he did not think it was relevant. McDonald’s attorney stated that his concerns about the relevancy were the reason he thought they were going to have a hearing outside of the jury’s presence. The court stated that it would strike any testimony that was not relevant, and then defense counsel acquiesced. There was no further mention of a hearing during this conference.

When Ms. McDonald testified regarding the January 10 kidnapping incident, McDonald’s defense counsel did not object, nor did he request a hearing outside the jury’s presence. Furthermore, as stated above, defense counsel elicited more information from the victim regarding the January 10 incident during his cross-examination of her.

At the conclusion of the trial, the court instructed the jury that “evidence of an independent occurrence which is immediately related in time and place to the charge being tried has been admitted for your consideration. It is for you the jury to determine whether it is or is not part of a single continuous transaction.” With respect to prior difficulties between McDonald and the victim, the court charged that the evidence had been admitted for the sole purpose of showing “the state of feeling between the defendant and the alleged victim and the bent of mind, intent, motive and course of conduct on the part of the defendant.”

McDonald, citing Wall v. State, 269 Ga. 506 (500 SE2d 904) (1998), argues that the court erred by failing to hold a hearing on the prior and subsequent difficulties between McDonald and his estranged wife. Nevertheless, given the specific facts of this case we find no reversible error.

With respect to the prior acts:

it is not necessary for the trial court to conduct a pre-trial hearing . . . before evidence of prior difficulties between the victim and the defendant is admissible since evidence of a defendant’s prior acts toward the victim is admissible because the prior acts are evidence of the relationship between the two and may show the defendant’s motive, intent, and bent of mind in committing the act for which he is being tried. Wall v. State, 269 Ga. [at 506 (2)]. Accordingly, the admission of the evidence was not error. Pye v. State, 269 Ga. 779 (7) (505 SE2d 4) (1998).

Graham v. State, 274 Ga. 696, 698 (2) (558 SE2d 395) (2002).

Similarly, we find no reversible error in the court’s failure to hold a hearing on the subsequent difficulties. First, we note that McDonald failed to object to the court’s failure to hold a hearing and thus has failed to preserve this argument for our review. See generally Jones v. State, 272 Ga. 884, 887 (4) (536 SE2d 511) (2000). Moreover, even assuming arguendo that such a hearing was required, the court’s failure to hold one was at most harmless error in light of the overwhelming evidence supporting the conviction. “In other words, in light of the overwhelming evidence of [McDonald’s] guilt, it is highly probable that the admission of the evidence in question did not contribute to the verdict. [Cit.]” Crosby v. State, 240 Ga. App. 84, 85 (1) (522 SE2d 571) (1999).

Decided July 2, 2002.

John W. Donnelly, for appellant.

Kenneth W. Mauldin, District Attorney, Anna E. Watkins, Assistant District Attorney, for appellee.

2. McDonald also argues that the trial court erred in admitting evidence of the other acts because they were not relevant to the crimes for which he was being tried. He also argues that the other crimes were also unduly prejudicial.

We note that McDonald did not object on the basis of undue prejudice at trial and thus has waived this objection here. See Lathan v. State, 241 Ga. App. 750, 752 (3) (a) (526 SE2d 350) (1999). Similarly, we reject McDonald’s argument that the evidence was not relevant. See Wall v. State, 269 Ga. at 506 (2).

Judgment affirmed.

Ruffin and Barnes, JJ., concur.


author: Ellington, Judge.

text:
    A02A1103.
    RICHARDSON v. THE STATE.
    (568 SE2d 548)
   Ellington, Judge.

A Carroll County jury convicted Terry Wayne Richardson of kidnapping with bodily injury, OCGA § 16-5-40, and rape, OCGA § 16-6-1. Following the grant of an out-of-time appeal, Richardson appeals his conviction, contending the trial court violated his right to confront the witnesses against him and improperly admitted evidence of bad character. Richardson also challenges the constitutionality of the mandatory life sentence imposed for the kidnapping with bodily injury conviction. For the following reasons, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence showed the following: On November 29, 1995, the day after breaking up with her boyfriend, the victim set out on a six- to seven-mile walk to the man’s residence to return his “starter” jacket and to retrieve some of her belongings. Along the way, the victim accepted a ride from Richardson, who was a stranger to her. As he drove, Richardson put his hand on the victim’s leg and asked what he was going to get in return for the ride. Richardson ignored the victim’s request to let her out when they neared her destination. Richardson drove to a remote wooded area and demanded sex in return for the ride. Richardson briefly choked the victim. In fear for her life, the victim submitted to intercourse. During the assault, the jacket was stained with menstrual blood and semen. The victim left the area on foot and accepted a ride from a passerby. After arriving at her original destination, the victim reported the crime. Richardson initially denied any involvement with the victim; at trial, however, he admitted the intercourse but testified that it was consensual.

1. Richardson contends the trial court violated his right to confront the State’s witnesses by preventing him from cross-examining the victim about her relationship with her ex-boyfriend. In granting the State’s motion in limine to exclude any evidence about the victim’s relationship with her ex-boyfriend, the trial court relied on Georgia’s rape shield law.

Georgia’s rape shield statute deems inadmissible evidence relating to the victim’s “past sexual behavior” such as evidence of her “marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.” OCGA § 24-2-3 (a). The purpose of the rape shield law is to protect the complaining witness from intrusive inquiries into her history of sexual activity with persons other than the defendant, inquiries which could only be intended to support the inference that the victim consented to intercourse with the defendant. Johnson v. State, 245 Ga. App. 690, 692 (538 SE2d 766) (2000); Hicks v. State, 222 Ga. App. 828, 829 (476 SE2d 101) (1996); Ford v. State, 189 Ga. App. 395, 396 (376 SE2d 418) (1988). See Spohn, The Rape Reform Movement: The Traditional Common Law and Rape Law Reforms, 39 Jurimetrics J. 119, 126-129 (1999).

Richardson contends the rape shield law did not apply in this case because he did not seek to introduce evidence of the victim’s sexual history in order to argue that she consented to the sexual act. Rather, Richardson contends, he sought to elicit evidence to support his argument that the victim, after consenting to the sexual act, had a motive to lie about her consent. Specifically, Richardson wanted to show that, at the time of the offense, the victim wanted to rekindle an exclusive romantic relationship with her ex-boyfriend and therefore fabricated the rape story to explain the presence of semen and blood on the boyfriend’s jacket.

We recognize that the Sixth Amendment, as interpreted by the United States Supreme Court, guarantees defendants in rape cases the right to cross-examine the victim to expose a motive to fabricate the rape charge. Olden v. Kentucky, 488 U. S. 227, 232-233 (109 SC-480, 102 LE2d 513) (1988). In Olden v. Kentucky, the defendant claimed he and the victim had engaged in consensual sexual acts, after which he drove the victim to her paramour’s house. The defendant argued that the victim “concocted the rape story to protect her relationship with [her paramour] who would have grown suspicious upon seeing her disembark from [the defendant’s] car.” Id. at 230. The trial court excluded evidence that the victim at the time of trial was living with a man with whom she had been romantically involved at the time of the alleged rape. Id. at 229-230. The Supreme Court ruled that the trial court had violated the defendant’s right to confrontation because the evidence would have supported the defense theory that the victim had a motive to falsify the rape charge. Id. at 232-233. We recently summarized the holding in Olden v. Kentucky as follows:

When the defense to a charge of sexual assault is built upon a theory that the alleged victim lied in accusing him in order to protect her relationship with another man, it is easily seen that evidence of the victim’s relationship or cohabitation with that other man is a crucial fact for the jury’s consideration. It supports the defense theory by placing before the jury a strong motivation for the victim to lie.

Murray v. State, 219 Ga. App. 405, 407 (465 SE2d 515) (1995). Of course, such evidence is admissible only if it passes the ordinary relevancy and probative value balancing tests. Id. See Price, Constitutional Law — Sex, Lies and Rape Shield Statutes: The Constitutionality of Interpreting Rape Shield Statutes to Exclude Evidence Relating to the Victim’s Motive to Fabricate, 18 W. New Eng. L. Rev. 541, 575-576 (1996).

In this case, the trial court determined that evidence about the victim’s relationship with her ex-boyfriend failed the relevancy test. The trial court concluded the victim could have taken a variety of measures to prevent her ex-boyfriend from learning of her sexual encounter with Richardson, and, therefore, Richardson’s attempt to tie in the evidence of the victim’s relationship was speculative. We agree. For evidence of a woman’s relationship with one man to be probative of her alleged motive to fabricate a rape charge against another man with whom the woman had consensual sex, it must appear that the woman needed to explain the consensual sex. See Olden v. Kentucky, 488 U. S. at 230 (victim’s paramour saw victim getting out of the defendant’s car late at night); Murray v. State, 219 Ga. App. at 407 (victim’s boyfriend heard the defendant in the victim’s residence). In other words, evidence of the woman’s relationship would be probative of her motive to lie only if the woman could not conceal the relationship-damaging sexual conduct with the defendant.

The admission of evidence at trial is within the discretion of the trial court. Although each party is entitled to a thorough and sifting cross-examination, that right is not unfettered. The trial court may, in its discretion, restrict the scope of cross-examination to the relevant issues. The court’s discretion will not be interfered with on appeal unless an abuse is present. The court’s conclusion that the evidence sought to be admitted was not relevant to the issues in this case falls within the reasonable exercise of the court’s discretion and we find no abuse. This questioning was properly prohibited.

Murray v. State, 219 Ga. App. at 407.

2. Richardson contends the trial court denied his right to confront the witnesses against him because the trial court denied his request to stand behind the jury box even though the layout of the courtroom prevented him from seeing witnesses as they testified. But the right of confrontation does not require that the defendant be able to see witnesses as they testify.

The primary object of the confrontation clause is a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling [the witness] to stand face to face with the jury in order that they may look at him, and judge his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

(Citations, punctuation and emphasis omitted.) Ortiz v. State, 188 Ga. App. 532, 533-534 (2) (374 SE2d 92) (1988). “The right of confrontation is provided not for the idle purpose of gazing upon the witness or of being gazed upon by him,” but, rather to allow the accused to cross-examine the witness in court and in full view of the trier of fact. (Citations, punctuation and emphasis omitted.) Id. at 535 (2).

In this case, Richardson’s counsel had the opportunity to and did thoroughly cross-examine the State’s witnesses who were in full view of the jury. Richardson’s attorney moved around the courtroom so that he could see the witnesses more clearly. The trial court did not violate Richardson’s right to confront the witnesses. Ortiz v. State, 188 Ga. App. at 535 (2). See also Price v. State, 223 Ga. App. 185, 187-188 (6) (477 SE2d 353) (1996) (dicta).

3. Richardson contends the trial court abused its discretion in allowing evidence that he possessed a handgun when arrested on a bench warrant 18 months after the offense.

“Circumstances surrounding an arrest are often admissible as part of the res gestae, because the arrest was contemporaneous or closely related in time to the offense and bore a logical relation to the offense.” (Citation and punctuation omitted.) Shelton v. State, 252 Ga. App. 444, 447-448 (3) (556 SE2d 540) (2001). See Gober v. State, 249 Ga. App. 168, 173-174 (6) (547 SE2d 656) (2001) (evidence that the defendant was in lawful possession of a gun when arrested immediately after the crime was admissible as part of the res gestae regardless of whether the evidence incidentally showed the commission of another crime, put the defendant’s character at issue, or was prejudicial). Such evidence, however, is not “automatically relevant.” Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000). “Rather, such evidence is subject to the same standard of relevancy and materiality applicable to other evidence” and is inadmissible “whére the evidence is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant.” Id. Here, it appears evidence Richardson had a gun when arrested 18 months after the offense was irrelevant because the arrest was not closely related in time to the offense and bore no logical relation to the offense. Shelton v. State, 252 Ga. App. at 447-448 (3). Cf. Gober v. State, 249 Ga. App. at 173-174 (6) (arrest immediately followed offense).

Contrary to Richardson’s argument, however, lawful possession of a gun does not, by itself, impute bad character. Gomillion v. State, 236 Ga. App. 14, 17 (3) (b) (512 SE2d 640) (1999). Assuming for the sake of argument that the evidence of the gun was evidence of bad character in this case, we find no reasonable probability that the results of the trial would have differed if the evidence of the gun had been excluded. Accordingly, admission of the irrelevant evidence was, at most, harmless error. Benford v. State, 272 Ga. at 350 (3); Shelton v. State, 252 Ga. App. at 447-448 (3).

4. Richardson contends the mandatory life sentence for kidnapping with bodily injury constitutes cruel and unusual punishment. This Court has found the mandatory life sentence for kidnapping with bodily injury constitutional. Green v. State, 193 Ga. App. 894, 896 (2) (389 SE2d 358) (1989); Albert v. State, 180 Ga. App. 779, 787 (10) (350 SE2d 490) (1986). This enumeration lacks merit.

Decided July 2, 2002

Gary P. Bunch, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Anne C. Allen, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       Initially, Richardson appealed from the denial of his motion for new trial. Richardson’s motion for new trial was not timely filed, however; therefore, the filing was void and did not extend the time for Richardson to file his notice of appeal. Porter v. State, 271 Ga. 498 (521 SE2d 566) (1999). Accordingly, we dismissed Richardson’s first appeal. Richardson initiated the current appeal from the trial court’s grant of his motion for an out-of-time appeal.

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

       But see Griffin v. State, 224 Ga. App. 225, 228 (2) (480 SE2d 608) (1997) (evidence of the victim’s romantic relationship with a prosecutor who was removed from the case was inadmissible under the rape shield law); Green v. State, 221 Ga. App. 436 (472 SE2d 1) (1996) (rape shield law prohibited questioning the 13-year-old victim about consensual sexual activity to support inference that she fabricated the rape charge because she was afraid she was pregnant and wanted to conceal her sexual activity from her parents).

       See also LaTesta, Rape Shield Statutes and the Admissibility of Evidence Tending to Show a Motive to Fabricate, 46 Clev. St. L. Rev. 489, 507-510 (1998) (advocating amendment of federal and state rape shield laws, in accord with Olden v. Kentucky, to include an exception for evidence relating to the victim’s motivation to falsify the rape charge).


text:
    A01A0527.
    BOLDEN v. THE STATE.
    (568 SE2d 588)
    Decided July 3, 2002.

      Gerard B. Kleinrock, for appellant.

      J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.
   Mikell, Judge.

In Bolden v. State, 250 Ga. App. 825 (552 SE2d 533) (2001), wé affirmed the trial court’s order revoking Cordie Bolden’s probation, holding that the court was entitled to consider her nolo contendere plea for the limited purpose of resentencing her under the first offender provisions of OCGA § 42-8-60. On certiorari, the Supreme Court reversed our decision. Bolden v. State, 275 Ga. 180 (563 SE2d 858) (2002). The Supreme Court held that under OCGA § 17-7-95 (c), a nolo contendere plea may not be used to establish that a defendant violated the terms of her probation. Accordingly, our prior opinion is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Blackburn, C. J., Pope, P. J, Andrews, P. J., Johnson, P. J., Eldridge and Miller, JJ, concur.


author: Johnson, Presiding Judge.

text:
    A02A0074.
    DRYVIT SYSTEMS, INC. v. STEIN. STEIN v. DRYVIT SYSTEMS, INC. et al.
    A02A0075.
    (568 SE2d 569)
   Johnson, Presiding Judge.

In 1992, George Stein entered into a contract to buy a new home to be built with synthetic stucco cladding manufactured by Dryvit Systems, Inc. Construction of the home was completed in May 1993, and Stein closed on the house. In October 1997, Stein filed a class action lawsuit against Dryvit and others, alleging that the synthetic stucco cladding is defective and has damaged his home. Stein seeks recovery under theories of breach of express warranty, negligence and negligent misrepresentation.

Stein moved the trial court for class certification, while Dryvit moved for summary judgment. The trial court denied Dryvit’s summary judgment motion and denied Stein’s class certification motion. We granted both Dryvit’s and Stein’s applications for interlocutory appeal from the trial court’s rulings. We reverse the trial court’s denial of Dryvit’s motion for summary judgment, and we affirm the trial court’s denial of Stein’s motion for class certification.

Case No. A02A0074

1. Dryvit correctly asserts that it is entitled to summary judgment on Stein’s breach of express warranty claim because Stein failed to comply with the mandatory notice provision contained in the Dryvit warranty. Under the warranty, Dryvit states that its materials will be free from defects, and if not, Dryvit will repair or replace any defective materials during a five-year period. But before Dryvit becomes obligated to repair defects, the warranty requires the owner to give Dryvit written notice of such defects so it can determine their cause. The warranty provides:

Dryvit shall not have any obligations under this warranty unless the owner notifies Dryvit Systems, Inc.; One Energy Way; P.O. Box 1014; West Warwick, RI 02893; ATTN: Warranty Services; in writing, within thirty (30) days of the alleged defects. Dryvit shall be allowed a reasonable period of time, authorization to remove samples, and to perform any testing Dryvit deems necessary to investigate and determine the cause of the defect. The Owner shall provide and cause any temporary repairs to be accomplished in a timely manner to prevent further damage to the structure or contents of the building until the cause of the defect is determined and permanent repair recommendations may. be made.

It is undisputed that Stein never notified Dryvit in writing, or otherwise, of any alleged defects covered by the warranty. Where notice to the manufacturer within a specified time is a condition precedent to recovery on a breach of warranty claim, the notice must be given as prescribed. Because there are no genuine issues of material fact that Stein failed to notify Dryvit in writing within 30 days of the alleged defects, Dryvit has no obligations under the warranty and is entitled to summary judgment on the breach of express warranty claim. The trial court’s denial of summary judgment to Dryvit on that claim is therefore reversed.

2. Dryvit is also entitled to summary judgment on Stein’s negligence and negligent misrepresentation claims because they are barred by the applicable four-year statute of limitation. Tort actions for damage to realty must be brought within four years of substantial completion of the property. This rule applies even if Stein had no knowledge of any alleged defects until after the substantial completion of his house.

In the instant case, Stein’s house was completed in May 1993. He filed this lawsuit more than four years later in October 1997. Because he filed suit beyond the four-year period, his tort claims for negligence and negligent misrepresentation are barred, and the trial court’s denial of summary judgment to Dryvit on those claims is reversed.

Case No. A02A0075

3. In light of our holdings above, Stein’s challenge to the trial court’s denial of his motion for class certification is without merit. Because Stein himself has no valid claims against Dryvit, he cannot claim membership in, and is not eligible to represent, the purported class. It follows that the trial court did not err in refusing to grant Stein’s motion for class action certification.

Judgment reversed in Case No. A02A0074. Judgment affirmed in Case No. A02A0075.

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

Decided July 3, 2002.

Womble, Carlyle, Sandridge & Rice, R. Wayne Bond, Joel G. Pieper, Moore, Ingram, Johnson & Steele, Robert D. Ingram, Jeffrey A. Daxe, for Dryvit Systems, Inc. et al.

Dupree, Johnson, Poole & King, Hylton B. Dupree, Jr., Michael S. Kimbrough, Sims, Moss, Kline & Davis, Raymond L. Moss, for Stein.

       Stein’s complaint also claimed breach of implied warranty, but he has expressly abandoned that claim in both the trial court and this court. In his response to Dryvit’s motion for summary judgment, he stated that he does not rely upon an implied warranty theory for recovery in this action, and that his complaint does not set forth any facts or allegations that would support an implied warranty theory. Likewise, in his appellate brief he reiterates that he does not rely upon any breach of implied warranty claim. Because Stein has abandoned that claim, we review the trial court’s rulings based only on the viable causes of action. See Ekstedt v. Charter Med. Corp., 192 Ga. App. 248 (1) (384 SE2d 276) (1989).

        Watson v. Knox Metal Products, 98 Ga. App. 435, 437 (3) (105 SE2d 904) (1958).

       See generally Frick Co. v. Smith, 70 Ga. App. 118, 123-125 (1) (27 SE2d 795) (1943). Compare Stimson v. George Laycock, Inc., 247 Ga. App. 1, 4-5 (2) (542 SE2d 121) (2000) (summary judgment not appropriate because there were issues of fact as to whether home buyer gave written notice as required by warranty).

       OCGA § 9-3-30 (a); Mitchell v. Contractors Specialty Supply, 247 Ga. App. 628, 629 (544 SE2d 533) (2001).

        Mitchell, supra.

       See Williams v. Cox Enterprises, 159 Ga. App. 333, 336 (5) (283 SE2d 367) (1981).

       See Cotton v. Med-Cor Health &c., 221 Ga. App. 609, 612 (2) (472 SE2d 92) (1996).


text:
    A02A0446.
    TROTTER v. THE STATE.
    (568 SE2d 571)
   Johnson, Presiding Judge.

A judge, sitting without a jury, found Howard Trotter guilty of driving under the influence of alcohol to the extent that it was less safe to drive, driving without proof of insurance, and driving with a suspended license. Trotter appeals from the convictions and the denial of his motion to suppress evidence. He enumerates as error the trial court’s finding that police had probable cause to administer a breath test, and the trial court’s admission of the breath test results when the state failed to lay a proper foundation. We affirm his convictions.

Viewed in a light most favorable to the verdict, the evidence shows that the Hapeville Police Department received a call from the Atlanta Police Department regarding a possible hit and run accident in the City of Atlanta. The Atlanta dispatcher reported that the suspect was driving a 1984 Toyota Camry and was being followed to Hapeville by the driver of a wrecker truck. A Hapeville police officer received a description of the vehicle and was told that the wrecker was blocking the suspect’s car in a driveway on Old Jonesboro Road. The officer arrived at the address and saw the Toyota blocked in the driveway by the wrecker.

The officer went to the Toyota “to check on [the driver], make sure he was okay.” He noticed that the car had suffered extensive damage to the front end, and that it was still smoldering. The officer opened the car door to speak to the driver, Trotter, and noticed that he was incoherent, could not respond, had blood on his mouth, and that a freshly lit cigarette also had blood on it. The officer radioed for medical assistance.

The officer detected an odor of alcohol coming from inside the vehicle. He asked Trotter for his license, proof of insurance, and keys to the car. Trotter handed the officer the keys, one of which was a Toyota key. Trotter produced no license or proof of insurance. The officer asked Trotter to get out of the car. As he got out, Trotter grabbed the door frame to secure his balance. The officer helped Trotter get out by grabbing his arm and pulling him toward the back of the car. A second officer arrived on the scene and moved Trotter to a nearby area for field sobriety tests.

The first officer interviewed the passenger in the wrecker, who said she witnessed the accident and followed the vehicle involved. The pa-ssenger said that Trotter had been driving the vehicle at the time of the accident.

As the second officer administered the field sobriety tests, he noticed a strong odor of alcohol coming from Trotter and saw that Trotter had a lip injury. Trotter’s face was flushed, his eyes were watery, bloodshot, and glassy, and his speech was slurred. The officer also noted the damage to the car’s front end. The officer administered several sobriety tests, all of which Trotter failed. Both officers watched Trotter in his attempts to perform the tests, and both concluded that Trotter was under the influence of alcohol. At that time, Trotter was placed under arrest and read the implied consent notice. Trotter agreed to have his breath tested.

The officer who performed the two breath tests testified about such matters as his training and certification, the procedure employed, and the machine used, but he could not recall the results of Trotter’s tests. One of the arresting officers testified that he observed the tests being conducted and received a printout of the results; according to the officer, the Intoxilyzer 5000 showed Trotter had a blood alcohol content of 0.233 on one test, and 0.240 on the other. He had noted the lower reading on the citation.

At trial, Trotter testified that he was visiting his cousin at the Old Jonesboro Road address, that he had not driven at all that day, and that he was standing near the porch, not sitting in his car, when police arrived. He admitted that he had been drinking that day.

1. Trotter contends that the trial court erred in holding that police had probable cause to administer a breath test when no articulable suspicion of criminal conduct existed. His argument is twofold: (a) officers were not authorized to administer a breath test since they lacked probable cause to believe that he was driving the car; and (b) officers lacked articulable suspicion to approach and detain him based only upon a witness’ report that he had been driving.

The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility. Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely. It is not necessary for the officer to actually see the suspect driving for there to be probable cause to make a DUI arrest. Here, the officer saw Trotter sitting behind the wheel of the car, after being told by the dispatcher that the car in which Trotter was sitting had just been involved in a hit and run accident. The officer saw blood on Trotter’s mouth and on a freshly lit cigarette. As advised by the dispatcher, the vehicle was being blocked in the driveway by the wrecker that had followed the car from the scene of the hit and run accident, and the vehicle matched the description given by the dispatcher. The car had extensive front-end damage, and its engine was still smoldering. Trotter smelled of alcohol, was incoherent, had the keys to the car, and was unable to pass sobriety tests. Clearly, at the time Trotter took the breath test, police had probable cause to believe he had been driving a vehicle while under the influence of alcohol.

Furthermore, contrary to Trotter’s claim, the officer’s initial approach and detention of Trotter as he sat in his cousin’s driveway were supported by reasonable suspicion. An officer may conduct a limited investigative inquiry of an automobile and its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. And, although an officer may know nothing about the reliability of the person who reported the offense, her reliability may be established if the details are corroborated by the observations of the police.

In this case, the information provided by the dispatcher, combined with the officer’s own observations of the vehicle, provided a basis for the officer to make a limited inquiry of Trotter as he sat in the driveway. This enumeration, therefore, has no merit.

2. Trotter argues that the trial court erred in allowing the admission of the breath test results when the state failed to lay a proper foundation. He points out that the state failed to introduce a printout from the breath testing machine showing the results and urges that the arresting officer’s testimony as to what the results showed at the time of the test is insufficient. We need not reach the merits of this argument because, even if we assume that the trial court erred in admitting the testimony regarding the test results, reversal would not be warranted.

Decided July 3,2002.

Robert Kenner, Jr., for appellant.

Carmen D. Smith, Solicitor-General, Milton C. Barwick, Jody L. Peskin, Assistant Solicitors-General, for appellee.

The accusation charged Trotter with driving a vehicle while under the influence of alcohol to the extent that it was less safe for him to drive; it did not charge Trotter with having a blood alcohol concentration of 0.08 grams or more. As the trial court announced in rendering its decision, Trotter was found guilty of the “less safe” charge. The breath test results which Trotter challenges were merely cumulative of other evidence of his less safe state, including his appearance, odor of alcohol, incoherence, inability to exit the car unassisted, and failure to pass field sobriety tests. As such, the admission of the breath test results was harmless.

Judgment affirmed.

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

       See Fairbanks v. State, 244 Ga. App. 123, 124-125 (1) (534 SE2d 529) (2000).

        Waggoner v. State, 228 Ga. App. 148, 150 (2) (491 SE2d 88) (1997).

       See Lufburrow v. State, 206 Ga. App. 250-251 (2) (425 SE2d 368) (1992) (physical precedent only); Napier v. State, 184 Ga. App. 770, 771-772 (1) (362 SE2d 501) (1987).

       See Napier, supra.

       See Jenkins v. State, 201 Ga. App. 654, 656 (2) (413 SE2d 460) (1991).

        Easterlin v. State, 216 Ga. App. 112, 113 (452 SE2d 801) (1995).

       See id. at 114.

       See OCGA § 40-6-391 (a) (5).

       See Mooney v. State, 221 Ga. App. 420, 425 (3) (471 SE2d 904) (1996) (physical precedent only).