text:
    A00A1059.
    THE STATE v. REDD.
    (534 SE2d 473)
   Eldridge, Judge.

This is an appeal from the Superior Court of Clinch County’s denial of a motion made by the District Attorney of the Alapaha Judicial Circuit (“DA”) to disqualify private attorney Charles Reddick from the practice of criminal law in the Alapaha Judicial Circuit because, inter alia, Reddick is a part-time district attorney pro tempore (“DA pro tern”) of that circuit. We granted the DA’s interlocutory appeal to address the issue of whether an attorney appointed by a presiding judge as a DA pro tern assigned pursuant to OCGA § 15-18-27 (a) to prosecute criminal acts allegedly committed by a district attorney and/or his staff is precluded from the private practice of criminal law for the duration of the appointment. For the reasons that follow, we answer this question in the negative and affirm the order of the court below.

When events disqualify a district attorney from the prosecution of a case and require the appointment of a DA pro tern, the presiding judge from the applicable circuit may “(1) [a]ppoint a competent attorney of the circuit; (2) [c]ommand the services of a district attorney of any other accessible circuit; or (3) [m]ake a requisition to the Governor for the services of the Attorney General.” OCGA § 15-18-5 (a) (l)-(3).

In this case, pursuant to the requirements of OCGA § 15-18-27 (a), the chief judge of the Alapaha Judicial Circuit was authorized to appoint a DA pro tern after receiving an affidavit alleging indictable acts regarding the misuse of credit cards committed by the Alapaha Circuit’s DA and/or staff and finding probable cause with regard thereto. Accordingly, on August 31, 1999, the chief judge appointed private attorney Reddick as DA pro tern pursuant to OCGA § 15-18-5 (a) (1). In its appointment order, the court specified that Reddick’s appointment as DA pro tern was to be part time; that Reddick’s duties as DA pro tern went solely to the investigation and prosecution of the specific allegations of credit card misuse against the Alapaha DA and/or his staff; and that, prior to representation of a defendant in any criminal matter during the term of his appointment, Reddick must notify the applicable court and a conflict/waiver hearing must be conducted. As a part-time DA pro tern, Reddick is paid on an hourly basis, calculated by taking the DA’s annual salary and dividing it by 2,080 hours.

On September 20, 1999, a six-count indictment was handed down in the Superior Court of Clinch County against appelleedefendant Mark Alan Redd. Redd hired Reddick to represent him in the criminal case. On September 28, 1999, Reddick obtained a conflict waiver from Redd. Thereafter, on October 15, 1999, the DA’s office moved to disqualify Reddick because, inter alia, he is the DA pro tern of the circuit. The trial court denied the motion. Held'.

1. First, the DA contends that a DA pro tern is “automatically disqualified from representing criminal defendants per Georgia law.” The DA argues that under OCGA § 15-18-5 (b), a DA pro tern “is subject to all laws governing district attorneys” and that under OCGA § 15-18-10 (d), no district attorney “shall engage in the private practice of law.” Thus, the DA argues that under OCGA § 15-18-10 (d), Reddick may not represent criminal defendants for the duration of his appointment as DA pro tern. We do not agree.

Contrary to the DA’s assertion, the Code does not contain an unqualified prohibition against a district attorney engaging in the private practice of law. What the statute says is that, “No district attorney receiving an annual salary under this Code section shall engage in the private practice of law.” (Emphasis supplied.) OCGA § 15-18-10 (d). It would appear that the legislature, in its wisdom, anticipated that there would be times when a DA pro tern would be needed for prosecution purposes and that such DA pro tern would necessarily be selected from among the ranks of local, private criminal lawyers, since such lawyers have the expertise in criminal law necessary to competently carry out the duties of a DA pro tern. To cut off the livelihood of the most qualified of these criminal attorneys would make it almost impossible to find a competent private attorney who would accept the position.

In order to secure competent counsel to serve as part-time [district attorneys] it is desirable that they be permitted to supplement their incomes through the private practice of law . . . [since] the disqualification of part-time [district attorneys] and their firms may seriously hamper the trial judge in appointing competent counsel.

Thompson v. State, 254 Ga. 393, 396 (330 SE2d 348) (1985). Further, paragraph (1) of OCGA § 15-18-5 (a), which paragraph allows a presiding judge to appoint a private attorney as a DA pro tern, would be rendered meaningless as a practical matter if such attorney is not permitted to supplement his or her income through the continued private practice of law. The rules of statutory construction preclude such interpretation. See, e.g., State v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260) (1982) (courts must construe statutory language so as not to render it meaningless or mere surplusage).

As such, under the plain language of OCGA § 15-18-10 (d) and the rules governing statutory construction, the ban against the private practice of law applies only to a district attorney who receives an annual salary and does not reach Reddick who, as a part-time DA pro tem with limited duties, is paid on an hourly basis.

2. Next, the DA contends that Reddick is disqualified from the private practice of law because, as a DA pro tem, he is compensated with state funds, and under OCGA § 15-18-21 (a), “[a]ny assistant district attorney, deputy district attorney, or other attorney at law employed by the district attorney who is compensated in whole or in part by state funds shall not engage in the private practice of law.”

However, as in Division 1, supra, the DA’s argument ignores an important element of the statute. Reddick may indeed be compensated with state funds, but he was appointed by the chief judge of the circuit and is clearly not “employed by the district attorney,” whose office Reddick has been assigned to prosecute. Accordingly, OCGA § 15-18-21 (a), which applies to lawyers employed by a district attorney, does not apply to Reddick.

3. Finally, the DA contends that a “conflict of interest” must disqualify Reddick from the representation of criminal defendants while serving as DA pro tem, since he represents the State of Georgia against criminal defendants in one capacity and represents criminal defendants against the State of Georgia in his other capacity. The DA argues that:

Loyalty to the client is the most fundamental rule of our system of justice. Chuck Reddick must be required to elect who he actually represents. “No servant can serve two masters; for either he will hate the one and love the other, or else he will be loyal to the one and despise the other.” Luke 16:13.

The DA misunderstands that the “service” referenced in Luke 16:13 is from the Greek “douleuo,” i.e., the service a slave owes to its master, which reference is of course completely inapplicable in the professional/legal context now before us. In the professional/legal context that is at issue here, we disagree with the DA.

The concept of a “conflict of interest” arises in connection with the attorney-client privilege and, absent an informed waiver, generally precludes an attorney from accepting as clients adverse parties in the same or a related case. See Code of Professional Responsibility, Rule 4-102 (d), Standards 35-38. See Hill v. State, 269 Ga. 23, 24 (2) (494 SE2d 661) (1998); Tilley v. King, 190 Ga. 421, 424-425 (9 SE2d 670) (1940); Reese v. Ga. Power Co., 191 Ga. App. 125, 127 (381 SE2d 110) (1989); State v. Shearson Lehman Bros., Inc., 188 Ga. App. 120, 123 (4) (372 SE2d 276) (1988); Mitchell v. Mitchell, 184 Ga. App. 903 (363 SE2d 159) (1987); Summerlin v. Johnson, 176 Ga. App. 336, 338 (335 SE2d 879) (1985). The danger is two-fold: (1) that confidential information confided to the attorney by one client in the same or related case might be used against the other client, and/or (2) that circumstances might force an attorney to engage in conduct on behalf of one client in the same or related case that will injure the cause of action for his/her other client. Id.; Hill v. State, supra at 24-25. See also Pruitt v. State, 270 Ga. 745, 753 (19) (514 SE2d 639) (1999). In short, an attorney cannot with unfettered zeal simultaneously pursue the claims of one client against his/her other client: the lawyer may consciously or unconsciously fail to aggressively represent one client to prevent harming the other client, or may consciously or unconsciously use knowledge regarding one client in aggressively pressing the other client’s claims.

In this case, however, defendant Redd waived any conflict with regard to Reddick’s representation, and, notably, there is absolutely no contention before this Court that defendant Redd will suffer adverse consequences because Reddick is a part-time DA pro tern. Instead, the DA apparently argues that Reddick should be disqualified as Redd’s defense attorney based on a general, per se “conflict of interest” due solely to Reddick’s status as part-time DA pro tern. In that regard:

(a) The DA does not have standing to seek Reddick’s disqualification on such basis. “The objection that an attorney is disqualified by reason of his representing adverse interest is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.” (Citations and punctuation omitted.) Reese v. Ga. Power Co., supra at 127.

Reddick does not represent and has not represented the DA or his office. They do not enjoy an attorney-client relationship. To the contrary, Reddick’s duties as a part-time DA pro tern involve the prosecution of the DA and/or his staff.

Further, the DA fails to demonstrate how. his prosecution of Redd’s case has been in any way disadvantaged by reason of Red-dick’s status as part-time DA pro tem. Nor can we perceive of any disadvantage. While “[i]t would clearly be improper for an attorney to change roles from the prosecution to the defense (and vice versa) in the same case,” there is no “multiple representation” in this case, since Reddick, does not represent the State in the instant case and plays absolutely no role in the prosecution of Redd. Pruitt v. State, supra at 753; Hill v. State, supra at 24; Frazier v. State, 257 Ga. 690, 693 (9) (362 SE2d 351) (1987); Lamb v. State, 267 Ga. 41, 42-43 (472 SE2d 683) (1996). Compare Cuyler v. Sullivan, supra at 341-342.

Moreover, the instant case is not even remotely related to the single matter in which Reddick does represent the State on a part-time basis. Hill v. State, supra at 24-25. Compare Chapel v. State, 264 Ga. 267 (3) (b) (443 SE2d 271) (1994). Reddick’s limited duties as part-time DA pro tem do not permit him access to any information maintained by the DA or his office which is related to any case being prosecuted by that office, including the instant case. See id.; Pruitt v. State, supra at 753; Hill v. State, supra at 24-25. And there is no evidence — or claim — that information Reddick may have obtained by virtue of his position as part-time DA pro tem can be used to the prejudice of the DA on the prosecution of any of his criminal cases, including this case.

Absent an attorney-client relationship, and with no showing that the DA’s prosecution of Redd is placed at a disadvantage by Reddick’s status as DA pro tem, the DA does not have standing to request disqualification of Reddick based on a “conflict of interest.” Reese v. Ga. Power Co., supra.

(b) The Sixth Amendment guarantee of assistance of counsel comprehends the right to select and to hire one’s own attorney, and, although this constitutional right is not absolute, it mandates a presumption in favor of accepting a criminal defendant’s choice of counsel. Hill v. State, supra at 24.

[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution. The mere fact that the public may perceive some conduct as improper is, without some actual impropriety, insufficient justification for interference with a client’s right to counsel of choice.

Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981); Stinson v. State, 210 Ga. App. 570 (436 SE2d 765) (1993). This becomes even more apparent “when the perceived impropriety is not conduct at all but is, instead, status.” Blumenfeld v. Borenstein, supra at 408; Jones v. Jones, 258 Ga. 353, 354 (369 SE2d 478) (1988). It is for this reason “[t]he case law is clear that counsel may not be disqualified on the basis of an appearance of impropriety alone. [Cit.]” State v. Shearson Lehman Bros., supra at 123. This is because “disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical reasons.” (Punctuation omitted.) Reese v. Ga. Power Co., supra at 127.

Accordingly, in those instances where a criminal defendant is represented by an attorney who is also employed as a part-time prosecuting officer, we have rejected the DA’s claim that an “automatic disqualification” is required because of the appearance of a conflict of interest. See, e.g., Hudson v. State, 250 Ga. 479, 482 (299 SE2d 531) (1983); Thompson v. State, 254 Ga. 393, 396-397 (330 SE2d 348) (1985); O’Melia v. State, 255 Ga. 476, 478-479 (339 SE2d 586) (1986). “[T]he appearance of impropriety, alone, is too slender a reed on which to rest a disqualification order except in the rarest case.” (Citations and punctuation omitted.) Reese v. Ga. Power Co., supra at 127. In that regard, we will not reverse the trial court’s judgment on a motion to disqualify absent a showing that the ruling constituted an abuse of the court’s sound discretion. Stephens v. Ivey, 212 Ga. App. 407, 410 (442 SE2d 248) (1994).

Here, in denying the DA’s motion to disqualify Reddick, the trial court correctly determined that under Georgia law, there is no automatic disqualification due to Reddick’s status as a part-time prosecuting officer with limited duties. Further, the trial court found that “Mr. Reddick is not accused of specific misconduct or specific imputation of wrong doing.” We find nothing in the record before us to refute the trial court’s conclusions. As discussed above, there has been no showing that Reddick’s status as part-time DA pro tern will adversely affect the DA’s ability to prosecute Redd’s case, or any other criminal case. See Duncan v. Cropsey, 210 Ga. App. 814, 815 (437 SE2d 787) (1993). And there is no contention that Reddick’s status as part-time DA pro tern will adversely affect defendant Redd. Thus, we cannot conclude that the trial court abused its discretion in denying the motion to disqualify Reddick based on the appearance of a conflict of interest.

Decided May 3, 2000

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Ellen S. Golden, Assistant District Attorneys, for appellant.

Charles R. Reddick, for appellee.

Kermit N. McManus, District Attorney, Kenneth B. Hodges III, District Attorney, J. David Miller, District Attorney, Keith C. Martin, Solicitor, Leslie C. Abernathy, Solicitor, Carmen Smith, Solicitor, Sheryl B. Jolly, Solicitor, Wensley Hobby, Solicitor, amici curiae.

Judgment affirmed.

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

       We decline to address the merits of the DA’s other claims of error, finding that such claims are settled by explicit statutory provisions which must be addressed legislatively if any change advocated by the DA is to be made. See OCGA § 15-18-63 (c) (“A part-time solicitor-general of the state court and any part-time assistant solicitor-general may engage in the private practice of law.”); § 45-15-30 (“Attorneys at law under independent contract to the Department of Law may engage in the private practice of law even though they may have been appointed or designated either specially or generally as assistant attorneys general or attorneys.”).

       The DA has been joined, as amici curiae, by the District Attorneys’ Association of Georgia and the Solicitors General of Clayton, Forsyth, Fulton, Richmond, and Tattnall Counties (collectively “the prosecution”). We note, however, that the preponderance of the prosecution’s argument (34 pages) goes to the DA’s claim that Reddick should be disqualified from the practice of law because he is a part-time solicitor general. See footnote 1, supra. The prosecution devotes only two pages to the issue of Reddick’s position as DA pro tern assigned to prosecute the DA’s office. With regard thereto, the prosecution asserts that “[i]n his brief, the District Attorney for the Alapaha Judicial Circuit has adequately stated the issue with regard to OCGA § 15-18-10 (d) to a private attorney serving as a District Attorney Pro Tern.”

       The statute provides that a DA pro tem receive “the same compensation from the state at the same rate as the district attorney” during the term of the appointment. OCGA § 15-18-5 (b). In this case, that “same compensation” is broken down on an hourly basis and is paid only for the actual time Reddick spends performing the limited duties of the DA pro tem as outlined in the court’s order of appointment.

       Compare Wheat v. United States, 486 U. S. 153 (108 SC 1692, 100 LE2d 140) (1988); Cuyler v. Sullivan, 446 U. S. 335, 344 (100 SC 1708, 64 LE2d 333) (1980) (finding that despite waiver, defendant’s unwise choice of counsel who had a conflict of interest resulted in a Sixth Amendment violation because of inadequate assistance).

       See Reese v. Ga. Power Co., supra at 130 (Benham, J., dissenting) (“The right to complain about a conflict of interest... is extended to persons who are placed at a disadvantage by reason of a lawyer’s breach of an ethical duty. [Cits.]”) (punctuation omitted).

       In that regard, it appears that the only one who will benefit by Reddick’s disqualification from the practice of law is the Alapaha DA’s Office, which Reddick is assigned to investigate and prosecute. Reddick’s ability to continue in his assignment as DA pro tern would be seriously compromised if his primary livelihood is eliminated, forcing him perhaps to abandon his prosecution of the DA and/or his staff. However, in noting such fact, this Court expresses no opinion with regard to the DA’s motive for moving to disqualify Reddick from the practice of law.


source: Caselaw Access Project

author: POPE, Presiding Judge.

license: Public Domain

text:
    A00A0163.
    VAUGHN v. THE STATE.
    (534 SE2d 513)
   POPE, Presiding Judge.

After a bench trial, Billy Vaughn was convicted of driving under the influence pursuant to OCGA § 40-6-391 (a) (1), driving while his license was suspended, and violating the open container law. He appeals, arguing that the trial court erred by denying his motion to suppress and that the evidence was insufficient to convict for DUI and violating the open container law. For the following reasons, we reject Vaughn’s arguments and affirm.

The evidence shows that on April 4, 1999, the Georgia State Patrol was conducting a roadblock in Spalding County. The officers were checking every vehicle for any kind of violation. Vaughn, who was driving a truck, approached the roadblock, where traffic was backed up for four or five cars. About 50 feet before the roadblock, Vaughn turned left into a driveway. Vaughn got out of his truck and began walking toward a house.

State Trooper Brown testified that, based on his experience, when a person turns off the road immediately before a roadblock, he usually suspects that the person is trying to avoid the roadcheck. Accordingly, Brown called to Vaughn, but Vaughn did not respond. Brown then walked through the yard toward Vaughn and saw that Vaughn was knocking on the door of a house, which appeared to be vacant.

Brown asked Vaughn his name and asked him for his driver’s license. Brown recalled that Vaughn stated that he did not have his license. Vaughn told Brown that his name was “Anthony,” although the name “Billy” was imprinted on his shirt. Vaughn told Brown that the shirt belonged to a relative.

In talking with Vaughn, Brown smelled alcohol on Vaughn’s person. Brown next asked Vaughn if he lived in the house at which he had stopped. Vaughn said that he did not live in the house, but that one of his relatives did. Brown noticed that Vaughn was slurring his speech and that his eyes were red and glassy. Brown and Vaughn then walked back to Vaughn’s truck, and Brown looked in the vehicle where he saw a 12-ounce can of beer and a partially empty 12-pack box of beer.

Based on these indications, Brown conducted a field sobriety test which Vaughn failed. Brown testified that he had seen a citation sticking out of Vaughn’s pocket. To determine Vaughn’s name, Brown asked to see the papers and saw that the citation had been issued to “Billy Ray Vaughn.”

Brown then ran Vaughn’s driver’s license and learned that it was suspended. After learning this, Brown arrested Vaughn for DUI and driving on a suspended license. Brown read Vaughn his rights, and Vaughn refused to take the breath test. Brown testified that, in his opinion, Vaughn was a less safe driver because he was under the influence of alcohol.

1. Citing Strawser v. State, 239 Ga. App. 125 (520 SE2d 750) (1999), and Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993), Vaughn claims that the trial court erred by denying his motion to suppress because Brown presented no articulable suspicion to justify continuing retention beyond the initial confrontation. In reviewing a trial court’s denial of a motion to suppress,

the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings of the disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992).

So viewing the evidence here, we reject Vaughn’s arguments. First, regardless of whether Brown had an “articulable suspicion” when he approached Vaughn, there was no requirement that Brown have an “articulable suspicion” before he approached Vaughn to talk with him.

Communications between police and citizens involving no coercion or detention are outside the domain of the Fourth Amendment, and no seizure requiring a reasonable suspicion of unlawful activity. occurs simply because a police officer approaches an individual and asks a few questions.

(Citations omitted.) Rogers v. State, 206 Ga. App. at 656-657 (1).

[E]ven when officers have no basis for suspecting a particular individual of a crime, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search!,] as long as the police do not convey a message that compliance with their request is required. It is clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.

(Citations and punctuation omitted.) Burns v. State, 216 Ga. App. 178, 179-180 (454 SE2d 152) (1995). See also McClain v. State, 226 Ga. App. 714, 715-718 (1) (487 SE2d 471) (1997); State v. Westmoreland, 204 Ga. App. 312-313 (1) (418 SE2d 822) (1992).

In this case, Brown’s initial inquiries to Vaughn did not amount to a “seizure” under the Fourth Amendment. The record shows that the initial meeting between Brown and Vaughn consisted only of Brown asking for identification, asking for Vaughn’s name and asking what Vaughn’s business was at this house. No constitutional rights were impeded by Brown’s initial approach. See McClain, 226 Ga. App. at 716.

After Brown’s initial questioning of Vaughn, he had a reasonable, articulable suspicion that Vaughn was intoxicated. This suspicion was based on the many factors Brown had observed: the fact that Vaughn had turned off the road before the roadblock; the smell of alcohol on Vaughn; his red and glassy eyes; his slurred speech; and the fact that the name he gave was not the name on his shirt. Thus, at this point Brown properly administered the field sobriety test. See State v. Stansbury, 234 Ga. App. 281 (505 SE2d 564) (1998). Only after Vaughn failed the field sobriety test, and after Brown discovered that Vaughn’s driver’s license was suspended, did Brown decide to arrest Vaughn. Moreover, though it is true that Brown did not see Vaughn commit a traffic violation, “[t]here is no requirement that the person actually commit an unsafe act” to violate OCGA § 40-6-391 (a) (1). (Punctuation omitted.) State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990).

Decided May 4, 2000.

Thomas R. Morgan, Jr., for appellant.

Griffin E. Howell III, Solicitor, for appellee.

Because Brown’s initial encounter with Vaughn did not constitute a stop and because Brown developed reasonable, articulable suspicion before seizing Vaughn, the facts of this case differ from those in Strawser v. State, 239 Ga. App. 125, and Jorgensen v. State, 207 Ga. App. 545. See generally Castillo v. State, 232 Ga. App. 354 (502 SE2d 261) (1998).

2. Vaughn also argues that the evidence was insufficient to convict on the DUI charge and the charge for an open container violation. Given the testimony of Trooper Brown, the evidence was sufficient to convict on the open container violation. And, as stated above, there is no requirement that the person actually commit an unsafe act to violate OCGA § 40-6-391 (a) (1). See State v. Smith, 196 Ga. App. at 877. See also Shannon v. State, 205 Ga. App. 831, 833 (4) (424 SE2d 51) (1992). Thus, the evidence was sufficient to convict Vaughn of this offense. Accordingly, this enumeration lacks merit, and we find that a rational trier of fact could find from the evidence adduced at trial proof of Vaughn’s guilt of these offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Smith, P. J., and Miller, J., concur.

       Vaughn raises no arguments here regarding the conviction for driving with a suspended license.


author: Smith, Presiding Judge.

text:
    A00A0205.
    LEE v. FOOD LION.
    (534 SE2d 507)
   Smith, Presiding Judge.

Bessie S. Lee filed a premises liability action against Food Lion, alleging she tripped and fell on a store entrance doormat. The trial court granted Food Lion’s motion for summary judgment, finding “under these circumstances the trier of fact would not be authorized to conclude that defendant could be charged with superior knowledge of the condition which allegedly injured plaintiff.” We agree with the trial court’s determination and affirm.

Lee contends the trial court failed to construe the evidence in her favor and that genuine issues of material fact precluded summary judgment. We find otherwise as to both contentions.

When viewed in the light most favorable to the nonmovant, the evidence showed that on January 23, 1996, just as Lee entered the door into the Food Lion lobby, she suddenly fell. Because Lee had not looked down, she was unable to describe the condition of the mat before she fell. After she fell, she noticed that about an inch of the mat was not completely inside the lobby door. While down on the floor, she noticed the mat was flat and none of its edges were curling or sticking upward. According to Lee, “I can’t tell you what foot got hung in the rug. Only thing that I can tell you, that I fell on the rug; that’s the only thing that I can tell you. I couldn’t tell that — I don’t know how it happened. I mean, I know I got tangled in the rug and fell.”

Food Lion offered evidence that its employees had conducted regular inspections of the entry area. Randy Cameron, the store manager on duty that day, testified that he had inspected the area of the alleged fall about 30 minutes before the incident which occurred about 12:25 p.m. Cameron testified that he did not see any “tears or folds in the mat” or notice any misplacement of the mat at issue. Phyllis Sharpe, an employee, had also inspected the same mat. Sharpe testified that about an hour before the incident when she left the store to make a phone call, she had not observed any defect in the mat. Gary Corbin, a market manager, who was also working on the day of the incident, testified that he inspected the same mat as he left the store for lunch. Corbin testified that when he saw the mat about ten or fifteen minutes before Lee entered, the mat was neither defective nor mispositioned. Sharpe testified that store policy required employees “to maintain a continuous lookout for spills and other hazardous conditions so that immediate corrective action can be taken.” These employees testified that they would have taken immediate remedial action if a defect had been found.

An owner or occupier of land has a statutory duty to keep its approaches and premises in a reasonably safe condition. OCGA § 51-3-1. But an owner or occupier of land is not an insurer of the safety of its invitees. Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). The mere occurrence of an injury does not create a presumption of negligence. Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550) (1994). (Citations omitted.) Robinson v. Kroger Co., 268 Ga. 735, 740 (493 SE2d 403) (1997). The true basis of liability is the owner/occupier’s superior knowledge of the existence of a defective or hazardous condition. Id. at 736; Edwards v. Ingles Market, 234 Ga. App. 66, 67 (506 SE2d 205) (1998). When a defendant’s knowledge of the hazard or defect is equal to or less than that of the plaintiff, then the defendant is entitled to summary judgment as a matter of law. Pierce v. Wendy’s Intl., 233 Ga. App. 227, 230 (2) (504 SE2d 14) (1998); Nicholson v. Pike Nurseries, 229 Ga. App. 540 (494 SE2d 214) (1997).

The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

In this case, the evidence is undisputed that Food Lion lacked actual knowledge of any purported misplacement or mispositioning of the mat, even assuming arguendo that the mat protruded slightly across the threshold as Lee speculated after she fell. Compare Jet Food Stores v. Kicklighter, 226 Ga. App. 552 (1) (487 SE2d 120) (1997) (physical precedent only) (summary judgment foreclosed by store’s knowledge that its mats were susceptible to folding, bunching, rolling, and shifting). No evidence was offered to create a factual issue as to whether the mat itself was defective and created a hidden, camouflaged, or intrinsically unsafe situation. Compare Newell v. Great A & P Tea Co., 222 Ga. App. 884 (476 SE2d 631) (1996) (plaintiff offered evidence that floor mat was in a defective condition with a tear and a curled corner). This case therefore turns on whether constructive knowledge of the alleged hazard could be imputed to Food Lion. Whatley v. Nat. Svc. Indus., 228 Ga. App. 602, 604 (1) (492 SE2d 343) (1997).

Constructive knowledge can be established in two ways. First, constructive knowledge can be demonstrated by showing that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard. Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (b) (512 SE2d 2) (1999). Here, Food Lion’s evidence showed that no employees were present in the lobby area and that the entrance mats were not visible to employees working inside the store. See Super Discount Markets v. Clark, 213 Ga. App. 132, 134 (443 SE2d 876) (1994).

Second, constructive knowledge may be shown by evidence that the alleged hazard was present for such a length of time that it would have been discovered had the proprietor exercised reasonable care in inspecting the premises. Lovins, supra. But here, Food Lion’s evidence showed that an employee had inspected the lobby area just ten or fifteen minutes before the fall and found no problem with the entrance mats. Even assuming arguendo that the mat was slightly askew, Lee did not sustain her burden of producing some evidence that the alleged hazard existed for a sufficient amount of time that Food Lion could have discovered and corrected it. Summary judgment was properly granted. Stout v. Restaurant Concepts, 227 Ga. App. 41, 43 (2) (487 SE2d 636) (1997); Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 828 (2) (482 SE2d 720) (1997).

Decided May 4, 2000.

Francis L. Morris, Jr., for appellant.

Howard & Whatley, Thomas G. Whatley, Jr., John C. Adams, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Lee apparently surmised that the mat must have been out of position even though she did not notice its placement before she fell. Since no evidence showed that Food Lion had superior knowledge of the alleged hazard, we need not reach the issue of Lee’s reliance on conjecture and speculation as to the actual cause of her fall. See Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (511 SE2d 579) (1999); Head v. Sears Roebuck & Co., 233 Ga. App. 344, 345 (503 SE2d 354) (1998).


author: Andrews, Presiding Judge.

text:
    A00A0223.
    THE STATE v. EASTWOOD.
    (535 SE2d 246)
   Andrews, Presiding Judge.

Cherlyn Eastwood pled guilty and was sentenced on October 28, 1998, on two counts of committing sodomy in violation of OCGA § 16-6-2. After Eastwood moved for reconsideration of the sentences on November 25, 1998, the trial court granted the motion, vacated the sodomy sentences, and declared the sodomy convictions void in light of the Supreme Court of Georgia’s November 23, 1998 decision in Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998), which struck down OCGA § 16-6-2 as unconstitutional insofar as it applied to private, unforced, noncommercial acts of sodomy between consenting persons.

The State appealed the trial court’s order to the Supreme Court claiming that the trial court erred in ruling that the sodomy convictions were unconstitutional and void under Powell v. State. Upon receiving the appeal, the Supreme Court entered the following order:

As this Court previously decided the question on appeal regarding the constitutionality of OCGA § 16-6-2, this appeal is hereby transferred to the Court of Appeals for the application of previously adopted constitutional standards. See Powell v. State, 270 Ga. 327 (1998); see also Zepp v. Mayor & City Council of the City of Athens, 255 Ga. 449 (1986).

We consider the State’s appeal pursuant to this order.

The facts which supported Eastwood’s guilty plea to violating OCGA § 16-6-2 show that Eastwood, a high school teacher, engaged in numerous acts of consensual sodomy with a student attending the school where Eastwood taught. The acts occurred in private between February 1, 1994, when the student was 15 years old, and April 28, 1995, when the student was 17 years old. During this period of time, the law of this State provided that a child under the age of 14 years could not legally consent to these sexual acts. Luke v. State, 222 Ga. App. 203, 205-206 (474 SE2d 49) (1996), overruled on other grounds, Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999). There were no facts showing that the acts were committed with force or against the will of the student. To the contrary, the convictions at issue were based on facts showing that Eastwood engaged in consensual, unforced, private, and noncommercial acts of sodomy with a person legally capable of giving consent.

In Powell v. State, 270 Ga. 327, the Supreme Court held:

that OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons.legally able to consent, manifestly infringes upon a constitutional provision which guarantees to the citizens of Georgia the right of privacy.

(Citation and punctuation omitted.) Id. at 336. Nevertheless, the State contends that in Powell v. State, the Supreme Court did not intend to decriminalize under OCGA § 16-6-2 the acts of sodomy committed in this case by a school teacher with one of her students. In support of this contention, the State makes three arguments. First, the State contends that a student enrolled in a school cannot legally consent to acts of sexual intimacy with the student’s school teacher. Second, the State claims that, by accepting employment with the State as a public school teacher, Eastwood waived her right to privacy in acts of sodomy committed with her student at her home. Third, the State argues that any right to privacy in these acts claimed by Eastwood is outweighed by a compelling State interest to protect students enrolled in schools from predatory sexual behavior by a teacher at the school.

Despite the State’s contentions, nothing in Powell v. State, 270 Ga. 327, could be construed to create an exception whereby the acts of sodomy Eastwood engaged in with her student would remain criminal under OCGA § 16-6-2. The Supreme Court clearly held that the right to privacy guaranteed to citizens by the Georgia Constitution was impermissibly infringed upon by the State’s enactment of OCGA § 16-6-2, to the extent OCGA § 16-6-2 broadly criminalized private, unforced, noncommercial acts of sodomy between consenting persons legally able to give such consent. Id. at 332-336.

Decided May 4, 2000.

Roger G. Queen, District Attorney, for appellant.

James C. Hill, for appellee.

This is not to say, however, that the State cannot enact a criminal statute prohibiting the acts Eastwood engaged in with her student. Where the State demonstrates a compelling interest in prohibiting certain types of sexual conduct, it may impose limitations on the right to privacy by enacting criminal statutes narrowly tailored to prohibit such conduct. Powell v. State, 270 Ga. at 333; Howard v. State, 272 Ga. 242 (527 SE2d 194) (2000).

In Powell v. State, the Supreme Court cited examples of such criminal statutes, including OCGA § 16-6-5.1, which imposes criminal penalties on a person who has sexual contact with a student enrolled in a school when that person has supervisory or disciplinary authority over the student. Id. at 333; Randolph v. State, 269 Ga. 147 (496 SE2d 258) (1998). Accordingly, OCGA § 16-6-5.1 addresses the State’s concern that Eastwood not be insulated from criminal liability by privacy guarantees and was enacted to impose criminal penalties on a teacher for the type of sexual conduct engaged in by Eastwood with her student. In fact, as the State concedes, Eastwood also pled guilty to violating OCGA § 16-6-5.1 and remained subject to the sentence she received pursuant to that criminal statute.

Applying the constitutional standards adopted by the Supreme Court in Powell v. State, 270 Ga. 327, we find that the trial court did not err by voiding Eastwood’s conviction and sentence on two counts of sodomy under OCGA § 16-6-2.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       Effective July 1,1995, the applicable statutes were amended to change the legal age of consent to 16 years. Luke v. State, 222 Ga. App. 203, 206, n. 2 (474 SE2d 49) (1996).


text:
    A00A0326.
    MORRIS v. THE STATE.
    (534 SE2d 509)
   Andrews, Presiding Judge.

Franklin Morris appeals from the judgment entered on the jury’s verdict of guilty of aggravated assault, challenging the sufficiency of the evidence and the court’s upholding of the State’s challenges, pursuant to Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), to two of Morris’ peremptory strikes. Finding the evidence legally sufficient and the challenges properly upheld, we affirm.

1. Considering first the fourth enumeration which challenges the sufficiency of the evidence, viewed in favor of the jury’s verdict, the evidence was that Morris had previously been the boyfriend of Sheila Curtis who, at the time of the assault on March 8, 1999, had been romantically involved with Rose Hampton, the victim, since November 1998.

Hampton worked at a Subway Shop next door to the Herb Shop where Curtis worked. On March 4, 1999, around 11:00 p.m., Hampton was at Curtis’ apartment when Morris unexpectedly arrived. Curtis’ roommate, Willie, let Morris in, and he immediately proceeded to the back of the apartment where Curtis was. After approximately 30 minutes, Hampton left the apartment and went to move her Chevrolet S-10 pickup behind Morris’ green Cadillac in the parking lot so he could not leave. She then saw Morris and Curtis leave the apartment, and Morris accused Hampton of having his car keys.. Hampton denied having the keys but asked Curtis to come with her. Words were exchanged between Morris and Hampton, after which Morris reached in his pocket and pulled out a knife. At that point, Hampton pulled her .380 semiautomatic handgun from her jacket and pointed it at Morris. Hampton said she had carried the gun since January when she became aware of threats made against her by Morris. At that point, Morris, who had run behind parked cars, said that Hampton had the upper hand, but “he’ll get [her] later.” Curtis got in the truck with Hampton, and they left.

On March 8, 1999, Hampton escorted Curtis to her car after work. Curtis’ daughter Tonya had borrowed the car that day and returned it to the shopping center around 6:30 p.m. Tonya Curtis, her four children, and Curtis left in Curtis’ car. Hampton originally got in a car with Willie to go to Tonya Curtis’ house. Hampton, however, saw Morris’ car leave a Texaco station in the shopping center and pull in behind Curtis. Hampton had Willie return her to her truck, and she proceeded to Tonya Curtis’ home on Barbarie Lane.

Curtis was driving toward Decatur when Hampton called and told her Morris was following her. Curtis continued to Decatur where she pulled into a law office parking lot to avoid Morris. Morris continued on, and Curtis and the others went to Curtis’ apartment instead of Tonya Curtis’ home.

Hampton had proceeded to Tonya Curtis’ home where she pulled into the driveway. Curtis’ car was not there, so she began to back out of the driveway. She then noticed Morris’ car coming up Barbarie Lane, a dead-end cul-de-sac. She waited for him to pass and then turned toward the cul-de-sac, where Morris was headed, so he would not be behind her. As Morris made the circle and headed back toward Hampton, their vehicles pulled side by side, and Morris fired three shots at Hampton’s truck. One hit the front of the truck, one hit the driver’s door, and one hit the camper on the truck. Although Hampton felt a “sting,” she was not directly hit by a shot. Morris waited while Hampton went around the circle and drove off when she drove up behind him. During this incident, Hampton did not pull or point her gun at Morris.

Hampton immediately drove to the DeKalb police station and made a report around 8:00 p.m. The truck was examined, and three defects which appeared to be bullet holes were found. The driver’s window was shattered, and a spent bullet was removed from the driver’s seat. Hampton also turned over to police, on March 10, two bullet casings which she had found on Barbarie Lane and her .380 handgun for analysis. Police records revealed that a Signal 23 (shots fired) was received from the Barbarie Lane neighborhood at 7:29 p.m.

A firearms expert testified that she had examined the two 9mm cartridges, the lead core found in Hampton’s truck, and the .380 handgun. She opined that the two 9mm cartridges were fired by the same 9mm handgun. The lead core was found to have markings (cannelures) on it which had been pressed into the bullet jacket and had imprinted onto the lead core. According to the expert, .380 bullets do not have cannelures, but some 9mm cartridges do. Also, it is not possible to fire a 9mm cartridge from a .380 handgun.

Two of Curtis’ daughters were contacted by Morris before trial and asked to provide an alibi for him during the time of the shooting, although they had not been with him.

A rational trier of fact could have found Morris guilty of aggravated assault based on this evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Caldwell v. State, 237 Ga. App. 568 (1) (515 SE2d 868) (1999).

2. The first three enumerations all deal with the three-part procedure required by McCollum, supra, regarding challenges to a defendant’s peremptory strikes and are considered together.

(a) The first enumeration, that the trial court erred in finding that the State had made out a prima facie case of racial discrimination by Morris, who is African-American, because he used eight of his ten peremptory strikes on Caucasian jurors, is moot because Morris offered purportedly race-neutral reasons for the strikes and the court ruled on the ultimate question of intentional discrimination. Williams v. State, 236 Ga. App. 190 (1) (511 SE2d 561) (1999); Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).

The cases relied upon by Morris, Collins v. State, 232 Ga. App. 651, 654 (2) (502 SE2d 498) (1998); Smith v. State, 231 Ga. App. 677, 683 (5) (499 SE2d 663) (1998); and Shaw v. State, 201 Ga. App. 438, 439 (1) (411 SE2d 534) (1991), all involved situations where no prima facie showing was made in the trial court, so the trial court did not examine reasons given for the strikes and make a determination regarding purposeful discrimination.

Here, the trial court did fully examine the strikes and make a determination, making the issue of the prima facie showing moot. Drane v. State, 271 Ga. 849, 851, n. 3 (523 SE2d 301) (1999); Odom v. State, 241 Ga. App. 361, 363 (2) (526 SE2d 646) (1999).

(b) Morris next contends that the trial court erred in placing the ultimate burden of persuasion on him, in violation of McCollum, supra.

In the second step of the McCollum challenge, “the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific” explanation for the exercise of its strikes. Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).” Curry v. State, 238 Ga. App. 511, 513 (1) (519 SE2d 269) (1999). If such a reason is given, “the ultimate burden of persuasion regarding motivation rests with, and never shifts from, the opponent of the strike. [Jackson v. State, 265 Ga. 897, 899 (463 SE2d 699) (1995)].” McGlohon v. State, 228 Ga. App. 726, 727 (1) (492 SE2d 715) (1997) (physical precedent only).

Here, the State challenged Morris’ strikes of jurors 3, 7, and 31. The court accepted Morris’ reason for striking juror 3, an Internal Revenue Service agent, as racially neutral and upheld that strike.

Juror 7, according to Morris, was of a conservative bent because she had three older children; had moved to Georgia from Clarksville, Tennessee, a conservative community; and was married to a retired Army man. The court allowed the State to respond, and it was pointed out that she was not in fact married to a retired military man, but to a retired contract painter, and had lived in Tennessee for only a short period of time.

The court then inquired of Morris to further explain his determination that juror 7 was of a conservative bent.

The trial court did not specifically state, in step two, that he accepted the reasons given by Morris as race-neutral and then specifically inquire of the State to show that the explanations were pretexts for discrimination, although he did dó so when inquiring regarding jurors 3 and 31. After Morris’ explanation of his reasons and the State’s response, the court stated that, while having older children could theoretically be race-neutral, it was not a real reason for striking anyone and that others on the jury had similar family situations. Although the record could be clearer regarding juror 7, the record as it stands shows that the trial court did not clearly err in reseating juror 7. Tillman v. State, 240 Ga. App. 78, 79 (1) (522 SE2d 557) (1999); Wilburn v. State, 230 Ga. App. 619, 623 (497 SE2d 380) (1998) (physical precedent only).

(c) Finally, Morris argues that the trial court abused its discretion in determining that the State had met its burden of persuasion. In addition to juror 7, Morris objected to the reseating of juror 31, whose brother-in-law was in law enforcement and who was not familiar with the geographic area involved. The trial court was persuaded by the State’s pointing out that four African-American jurors who had relatives in law enforcement and were not familiar with the area were accepted by Morris.

Decided May 4, 2000.

Peter M. Zeliff, for appellant.

J. Tom Morgan, District Attorney, Maria Murcier-Ashley, Assistant District Attorney, for appellee.

Here, “the state met its burden of showing that [Morris’] proffered reason was a pretext for discrimination by showing that he had failed to strike similarly situated jurors of a different race.” Blair v. State, 267 Ga. 166, 167 (2) (476 SE2d 263) (1996). See also McGlohon, supra.

Judgment affirmed.

Ruffin and Ellington, JJ, concur in the judgment only.


author: Blackburn, Presiding Judge.

text:
    A00A0785.
    CARTWRIGHT v. MIDTOWN HOSPITAL et al.
    (534 SE2d 504)
   Blackburn, Presiding Judge.

We granted Cynthia J. Cartwright’s application for discretionary appeal from the superior court’s order affirming a workers’ compensation ruling which denied her motion to compel an expert witness to provide his Social Security number during his deposition. While we find no error in the trial court’s ruling, we vacate the judgment and remand this case because the superior court lacked jurisdiction to decide the case.

In this case, Midtown Hospital, the employer, hired a physician to review the case and to testify as an expert regarding certain medical issues arising out of Cartwright’s underlying workers’ compensation claim for Hepatitis C infection. During the physician’s deposition, Cartwright requested the expert’s Social Security number, which he refused to divulge. The administrative law judge (ALJ) later denied Cartwright’s motion to compel the production of the expert’s Social Security number. The appellate division affirmed the ALJ’s decision. Thereafter, Cartwright appealed to the Superior Court of Fulton County which affirmed the decision of the Workers’ Compensation Board (Board). Cartwright filed her application for discretionary appeal therefrom.

Upon the grant of Cartwright’s application for discretionary-appeal, we asked the parties to address the issue of the superior court’s jurisdiction to entertain a decision from the full board when no final decision had been entered. This issue has been addressed by several cases which found that only a final award granting or denying compensation was appealable to the superior court.

In Fasher Painting &c. v. Bordelon, 204 Ga. App. 196 (2) (419 SE2d 82) (1992), the ALJ denied a motion to add a party defendant. The Board reversed the ALJ and directed that the party defendant be added. The superior court then reversed the order of the Board. Id. On appeal to this Court, we held that:

OCGA § 34-9-105 (b) expressly provides: Either party to the dispute may, within 20 days from the date of any such final award or within 20 days from the date of any other final order or judgment of the members of the board [,] appeal from the decision in such final award or from any other final decision of the board to the superior court. This statute plainly, clearly, and unambiguously prescribes that only a final award, order, judgment, or decision of the board is subject to appeal to the superior court. Further, the Workers’ Compensation Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation. Conwood Corp. v. Guinn, 190 Ga. App. 595 (379 SE2d 621) [(1989)]. When a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490) [(1988)], overruled on other grounds, Spivey v. Whiddon, 260 Ga. 502 (397 SE2d 117) [(1990)]. The order of the board remanding the claim to the ALJ to add a party was not a final award or other final order or judgment, neither did it grant or deny compensation. The right to judicial review is restricted to the method prescribed by the Workers’ Compensation Act. See, e.g., Macon v. U. S. Fidelity &c. Co., 41 Ga. App. 774 (154 SE 702) [(1930)]. Accordingly, the superior court lacked jurisdiction over this appeal.

(Punctuation omitted; emphasis in original.) Id. at 196-197 (2). Additionally, we have previously determined that “[n]owhere in our workers’ compensation statute is there provision for an interlocutory appeal.” (Punctuation omitted.) GAC, MFG/Processing v. Busbin, 233 Ga. App. 406 (504 SE2d 270) (1998) (superior court without jurisdiction to review Board’s order remanding case to ALJ to receive employer’s evidence). See also Gilman Paper Co. v. Davis, 230 Ga. App. 364 (496 SE2d 469) (1998) (superior court without jurisdiction to review Board’s order reinstating benefits pending a hearing for a final determination).

Cartwright contends that the superior court had jurisdiction to entertain her appeal pursuant to Columbus Foundries v. Moore, 175 Ga. App. 387 (333 SE2d 212) (1985). Therein, this Court held that a decision of the full board granting or denying a change in physicians is appealable to the superior court. Id. at 388. The issue reviewed in Columbus Foundries, however, was not whether such an order of the Board was a final decision, but whether, such an order, being within the sole discretion of the Board, was subject to review of any kind. Id. Our holding was based on a determination that the failure to allow jurisdiction in the superior court over such orders would allow the issue to be unreviewable, implicating due process concerns. Id. at 389. Such is not the case presently before us. Furthermore, a change in physicians is a substantive decision affecting directly the care available to the claimant, and public policy would support direct review of such a decision. Conversely, procedural matters do not directly impact the care available to the claimant and can await the ultimate determination for review.

The Board’s order appealed from, in the present case, is an order on an interlocutory matter, i.e., a discovery dispute. It is not a final order or award granting or denying compensation, and the issues involved herein can be reviewed upon the entry of such an order. Therefore, the superior court was without jurisdiction. The superior court’s judgment affirming the Board’s decision is vacated, and the superior court is directed to dismiss the appeal as premature. See Fasher Painting, supra; GAC, supra; Gilman Paper Co., supra.

Although we do not reach the merits of Cartwright’s appeal, we note that her contention that she has a due process right to obtain an opposing expert’s Social Security number, without explanation or control over its use, is without merit. Discovery matters are limited to issues relevant to the litigation, see OCGA § 9-11-26 (b) (1), and any disputes over the relevancy of discoverable information are within the sound discretion of the trial court. Apple Investment Properties v. Watts, 220 Ga. App. 226, 227 (1) (469 SE2d 356) (1996). Other jurisdictions have allowed the discovery of Social Security numbers of witnesses, but the discovery was subjected to limitations on its use. See NBA Properties v. Untertainment Records LLC, 99 Civ. 2933 (S.D. N.Y. 1999) (discovery of Social Security number allowed but purpose limited to efforts to locate missing person, not for any other purpose); Arnold v. American Nat. Red Cross, 93 Ohio App. 3d 564 (639 NE2d 484) (1994) (trial court directed to fashion a protective order allowing discovery of relevant information yet protecting the legitimate interest of the witness). It is clearly within the trial court’s discretion to address legitimate privacy concerns of witnesses by requiring specific limitations on the use of discoverable information.

Decided May 4, 2000.

Clements & Sweet, John F. Sweet, Kelly A. Benedict, for appellant.

Swift, Currie, McGhee & Hiers, Richard H. Sapp III, Jennifer A. Riddick, for appellees.

Judgment vacated and remanded with direction.

Eldridge and Barnes, JJ, concur.

       Reference to the trial court necessarily includes the ALJ and the Board as workers’ compensation has adopted the Georgia Civil Practice Act for discovery matters. See OCGA § 34-9-102 (d) (1).


text:
    A00A0100.
    PICKERING CORPORATION v. GOODWIN.
    (534 SE2d 518)
   Blackburn, Presiding Judge.

In this slip and fall action, Pickering Corporation appeals, on interlocutory grant, the denial of its motion for summary judgment, contending that it was not negligent as a matter of law where it had less than 90 seconds to remedy the subject hazard prior to Linnie Goodwin’s fall. Because Goodwin cannot establish that Pickering failed to exercise ordinary care or that the incident was foreseeable or within its control, we reverse.

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., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewing the evidence, Stephen James, the manager of Sports Shop located in Hatcher Point Mall, testified by affidavit that, on November 9, 1996, he saw a young person spill water in the common area of the mall. James immediately went to the telephone and called mall security to tell them of the hazard. After making the call, James turned to walk out to the area of the spill. At that moment, he saw Goodwin slip and fall in the area where the water was spilled. Goodwin deposed that, after she fell, she noticed a puddle trail of water down the mall. Additionally, Doris Wright, a mall security guard, testified that she had walked past the entrance to Sports Shop approximately two minutes before Goodwin fell, and, at that time, there was no water in the common area.

The basic test of negligence in a slip and fall premises liability case is whether the plaintiff can show (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it. Hutchins v. J. H. Harvey Co., 240 Ga. App. 582, 584 (1) (524 SE2d 289) (1999); Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997).

In applying this basic test, our Supreme Court in Robinson elaborated upon the duty owed by a proprietor such as Pickering:

One who owns or occupies land and[,] “by express or implied invitation, induces or leads others to come upon his premise for any lawful purpose ... is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters.

(Citations omitted.) Id. at 740. Thus, Robinson did not change the historical holding that, absent some reason to be on notice of the likelihood of a given hazard arising, a proprietor is generally permitted a reasonable time after notice of a hazardous condition to exercise care in correcting such condition. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980); Deloach v. Food Lion, 228 Ga. App. 393, 394-395 (491 SE2d 845) (1997); Jenkins v. Bi-Lo, Inc., 223 Ga. App. 735, 736-737 (479 SE2d 14) (1996); Super Discount Markets v. Clark, 213 Ga. App. 132, 133 (443 SE2d 876) (1994).

It is possible that, based on a prior history of such a number of similar hazardous occurrences or other facts that would put a proprietor on notice of the likelihood of the subject incident occurring, such fact would create a correspondingly higher duty on the proprietor to take appropriate prophylactic measures, i.e., having an attendant on duty to immediately clean up spills or post signs warning customers of the potential danger. Any such evidence would, of course, present a jury question as to the reasonableness of the proprietor’s actions. However, we have no evidence of facts creating such notice in this. case. Under the Georgia law of summary judgment, the nonmovant is not free to rest on its pleadings but must come forward with its evidence to demonstrate the existence of a fact question on any element contended to be fatal to its claim. Here Goodwin has presented no evidence which creates a jury question as to the reasonableness of Pickering’s conduct or its ability to control or foresee the subject incident. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

On the issue of summary adjudication, our Supreme Court has held that the court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. Robinson, supra at 739. Such is the evidence in this case. The undisputed fact is that the spill occurred less than 90 seconds before Goodwin’s fall. Pickering knew of the spill almost immediately, as a result of the call to its mall security office by a person witnessing the spill. Upon completing the telephone call, the witness walked back to the scene of the spill in time to observe Goodwin fall. Under these facts, there is no evidence which creates a jury question as to Pickering’s knowledge of the potential for the subject hazard or its conduct after receiving notice of the hazard. “ £[I]t is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.’ ” Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (511 SE2d 579) (1999).

Under the unusual circumstances of this case, Goodwin cannot establish that Pickering failed to exercise ordinary care in meeting its duty, and there is thus no factual issue requiring jury determination. “A proprietor is not the insurer of an invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which it has superior knowledge.” Gaines v. Ingles Markets, 241 Ga. App. 302, 304 (2) (524 SE2d 766) (1999). The trial court erred in denying Pickering’s motion for summary judgment under the facts of this case.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

Decided May 5, 2000.

Dillard & Bower, Bryant H. Bower, Jr., Rebecca R. Crowley, for appellant.

Kenneth E. Futch, Jr., Teresa G. Bowen, for appellee.


author: Barnes, Judge.

text:
    A00A0243.
    MURRAY v. WEST BUILDING MATERIALS OF GEORGIA.
    (534 SE2d 204)
   Barnes, Judge.

This appeal arises from a personal injury suit filed by Barbara Murray as a result of injuries she received when she fell while descending steps at West Building Materials of Georgia. Murray contends on appeal that the trial court erred by granting summary judgment to West. For reasons that follow, we reverse.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences in favor of the nonmoving party. Maddox v. Southern Engineering, 231 Ga. App. 802 (500 SE2d 591) (1998). Viewed in this light, the record shows that Murray ascended West’s concrete front steps, shopped inside the store, then began descending the steps to leave. She held the right handrail until it ended short of the last step, then let go and stepped down on her right foot. She testified that “the stair got there too quick,” the “pattern” changed, and her foot turned. She heard a snap and saw bone protruding from her ankle under her skin. She stepped off the injured foot, then twisted her left ankle and fell to her knees.

West moved for summary judgment, arguing that it did not have actual or constructive knowledge of any hazardous condition and further arguing that Murray failed to exercise ordinary care on her own behalf. Murray opposed the motion with deposition testimony from George Baird, a structural engineer, who averred that West’s front steps and handrail deviated from the requirements of the applicable building code. The risers of the top four steps were eight inches tall, a quarter-inch more than the maximum allowed height. The fifth step was a quarter-inch shorter than the top four, and the last step was almost three inches shorter than the second-to-last one. Further, the tread width and riser height together fell outside the acceptable limits of the building code. Finally, the handrail beside the steps failed to extend 12 inches past the bottom step, as required, but instead stopped short at the second-to-last step. These defects, the expert concluded, could have caused Murray’s fall. In granting summary judgment to West, the trial court concluded that no genuine issue of material fact existed regarding Murray’s claim.

In Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997), our Supreme Court reiterated that,

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the [owner].

Robinson also lightened the evidentiary load placed upon slip-and-fall plaintiffs opposing a motion for summary judgment by requiring a defendant to produce evidence showing negligence on the part of the plaintiff before the plaintiff is required to produce rebuttal evidence on this issue. Id. at 749.

With respect to the first prong, Murray presented evidence that the steps were constructed in 1995 and had been used continuously since then. This evidence, combined with the expert testimony, is sufficient for a factfinder to infer that the steps were a hazardous condition of which West had actual or constructive knowledge. Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791 (504 SE2d 198) (1998). Therefore, for purposes of summary judgment, plaintiff has satisfied the first prong of the Robinson test. Id. at 792.

With respect to the second prong, Murray’s lack of knowledge of the hazard, Robinson held that a plaintiff’s evidentiary burden on this issue does not arise “until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed [herself] to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson, supra, 268 Ga. at 749. Moreover, our analysis of this issue must be guided by Robinson’s directive that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication.” Id. at 748.

West claims that Murray’s negligence is established as a matter of law by the fact that she had previously negotiated the steps without difficulty. West relies on pre-Robinson cases holding that “when a person has successfully negotiated an allegedly dangerous condition on a previous occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom.” See, e.g., Dickman v. South City Mgmt., 229 Ga. App. 289, 291 (494 SE2d 64) (1997) (physical precedent only). However, this rule has no application in the present case. The danger allegedly posed by the steps resulted from a combination of the steps’ lack of uniformity, their excessive combined height and width, and the too-short handrail compounding the first two irregularities. We cannot say “as a matter of law that an individual using the [steps] would have appreciated the danger posed by the combination of these elements.” Flournoy v. Hosp. Auth. of Houston County, supra, 232 Ga. App. at 793; see also Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812 (318 SE2d 235) (1984).

Decided May 5, 2000.

Sweat & Giese, David R. Sweat, Thomas C. Shanahan, for appellant.

Hall, Booth, Smith & Slover, Karl M. Braun, Jason P. King, for appellee.

Similarly, in Aggeles v. Theater of the Stars, 235 Ga. App. 57, 58 (507 SE2d 856) (1998) (physical precedent only), we held the plaintiff did not have actual knowledge of the hazard posed by a handrail when she had previously ascended the staircase and fell while descending the staircase.

West cites Mechanical Equip. Co. v. Hoose, 241 Ga. App. 412 (523 SE2d 575) (1999) and Hannah v. Hampton Auto Parts, 234 Ga. App. 392 (506 SE2d 910) (1998) to support its argument that it was entitled to summary judgment here. However, those cases are distinguishable, as both plaintiffs had successfully traversed many times the steps on which they fell. Murray, on the other hand, had ascended West’s steps only one time and fell on her first descent.

Accordingly, the trial court erred in granting summary judgment to West.

Judgment reversed.

Eldridge, J., concurs. Blackburn, P. J., concurs in the judgment only.


text:
    A00A1090.
    HOWARD v. THE STATE.
    (534 SE2d 202)
   Barnes, Judge.

After a jury convicted Michael B. Howard of the offense of possession of cocaine, the trial court sentenced Howard as a recidivist. In his only enumeration of error, Howard contests the denial of a challenge made under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), in which he contested the State’s exercise of its peremptory strikes. Finding no error in the trial court’s ruling, we affirm.

After the State struck two African-American prospective jurors, Howard asserted a Batson challenge, alleging that the strikes were racially motivated. The prosecutor disagreed, pointing out that he did not exercise three of his six peremptory challenges and, of the three he used, only two were against African-American prospective jurors. After noting that the defendant had exercised 11 of 12 strikes against Caucasian prospective jurors, the trial court voiced doubt about the viability of Howard’s Batson motion, observing, “I question whether there’s a prima facie case even been made, but I’m going to let [the State] go ahead and put it on the record to satisfy [defense counsel].” The prosecutor then explained that he struck one African-American panel member because she refused to continue deliberating during a previous rape trial that ended in a hung jury. As to the second prospective juror, the prosecutor explained that, during voir dire, a police sergeant advised him that this person lived in an area of “extremely high cocaine traffic” in which the police had recently instituted an ongoing crack-down on illegal drugs. The prosecutor stated that during another trial involving a similar drug prosecution, he had encountered hostility from jurors living in “high cocaine traffic areas” in which police were conducting enhanced law enforcement activity. According to the prosecutor, during deliberations, one juror had insisted that police had planted cocaine on her son, and another juror claimed that he had been stopped and harassed by police about cocaine. In light of his negative personal experience with the earlier drug prosecution, and since Howard was charged with cocaine possession, the prosecutor thought it unwise to seat this person as a juror on a case involving cocaine. No evidence indicated that this prospective juror lived in a predominately or exclusively African-American neighborhood.

After listening to the proffered reasons, the trial court found the State had offered race-neutral reasons for both strikes. The court found no evidence of any discriminatory intent in the State’s strikes and no evidence of pretext in the State’s explanations. The court denied Howard’s Batson challenge, and Howard appeals.

When a party alleges a Batson violation and presents a prima facie case, the proponent of the strike must offer racially neutral, legitimate, and nondiscriminatory reasons for the use of its peremptory challenge. See Williams v. State, 271 Ga. 323, 325 (2) (519 SE2d 232) (1999). Although the justification for a strike need not rise to the level of a challenge for cause, it must be race-neutral and cannot be pretextual. Lewis v. State, 264 Ga. 101, 103 (440 SE2d 664) (1994). A strike may be based on mistake, ignorance, or idiosyncracy, provided that the reason for the strike is neutral. Gamble v. State, 257 Ga. 325, 326 (2) (357 SE2d 792) (1987).

The opponent of a peremptory strike has the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the strike. Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). During a Batson hearing, the trial court sits as the finder of fact, and the court’s findings as to whether the opponent of the strike carried its burden of persuasion are “entitled to great deference.” Id. Further, unless a trial court’s ruling on a Batson motion is clearly erroneous, that ruling must be affirmed. Pye v. State, 269 Ga. 779, 780 (1) (505 SE2d 4) (1998); Dennis v. State, 238 Ga. App. 343, 346 (5) (518 SE2d 745) (1999).

Decided May 5, 2000.

Elizabeth M. Grant, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Striking a panel member solely on the basis of residence in a particular neighborhood combined with a stereotypical belief is an improper reason for exercising a peremptory strike. Congdon v. State, 262 Ga. 683, 685 (424 SE2d 630) (1993). But here, the State did not exercise the strike because of racial stereotyping. Rather, the prosecutor justified the strike because he knew that the panel member lived in an area where police were currently marshaling their efforts against illegal drugs, and he had experienced unfavorable results with previous jurors in similar circumstances. See Higginbotham v. State, 207 Ga. App. 424, 425 (3) (428 SE2d 592) (1993); Smith v. State, 264 Ga. 449, 450 (1) (448 SE2d 179) (1994) (exercise of peremptory strikes against residents of public housing project plagued by gang-related activity upheld in trial of defendant for gang-related crimes).

Having reviewed the transcript and considered the trial court’s findings with great deference, we cannot say the ruling was clearly erroneous. Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996). The denial of the defendant’s challenge was not error. Id.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A00A1169.
    WALKER et al. v. CRANE et al.
    (534 SE2d 520)
   Eldridge, Judge.

E. H. and Donna Walker owned a 1983 International Tractor truck and a Phelan Low Boy trailer, which were stolen on November 8, 1994. They sued Steve C. Treske, as the Administrator of the Estate of Amber Charles Crane, Sr., d/b/a Crane Boys Wrecker Service, for hauling the truck and trailer into his wrecker yard without notifying either them or the police. The issue raised is whether a wrecker service which pulls and stores a vehicle in good faith belief that the owner is known can be liable for conversion. The answer is no. Pretermitting that there was no conversion, the defendant has shown on motion that the Walkers cannot prove damages.

In November 1994, prior to Thanksgiving, three males took the truck and trailer to Dillard L. Gabriel’s business at 4085 Thurmond Road, Forest Park, and tried to sell it to him, but they did not have a title, which they said was in Alabama. Gabriel told them to get the title, and they asked to leave the truck and trailer. He allowed them to leave it at a different location on Highway 19/41. After the truck had been there approximately one month, Gabriel had Crane Boys Wrecker haul the truck and trailer to their wrecker yard. We find that the defendant acted in good faith in handling and storing the vehicle without notice and that there was no evidence to show that the defendant was the proximate cause of the physical damage to the truck or any other recoverable damages.

The evidence was that, at the time that the truck came into the possession of Crane Boys Wrecker, the dash had been ripped out, mirrors had been broken or torn off, and the radio was missing. The evidence was that the truck remained behind a security fence with security dogs and the Cranes lived on the premises so that no one could get in to steal from the vehicles.

While Crane had the vehicle from early December 1994 until his death on January 5, 1995, he believed that Gabriel was waiting to buy the truck as soon as Gabriel got the title from Alabama. Not believing that the vehicle was stolen or that the owner was unknown, Crane did not include the vehicle on the list of vehicles submitted to the Clayton County Police Department. After Crane’s death, in April or early May 1995, the estate located the owner of the vehicle and returned the vehicle and trailer to the Walkers.

The Walkers argue two issues in their enumerations of error that are reciprocal issues governed by the same law, i.e., that the trial court erred in granting summary judgment to the Crane Estate and in denying summary judgment to them. We affirm.

1. Under OCGA § 40-11-1 (1) (A), both Gabriel and Crane believed in good faith that the men in possession of the truck and trailer either were the owners or had lawful possession and had left the vehicle on Gabriel’s property for 30 days without reclaiming it. The conditions of Ga. L. 1993, p. 772, § 1 (OCGA § 40-11-2 (b) in 1994) read:

Any person who removes a motor vehicle from private property at the request of the property owner or stores such vehicle shall, if the owner of the vehicle is unknown, notify in writing a local law enforcement agency of the location of the vehicle, the manufacturer’s vehicle identification number, license number, model, year, and make of the vehicle within 72 hours of the removal of such vehicle and shall seek from the local law enforcement agency the identity and address of the last known registered owner of such vehicle, the owner of the vehicle as recorded on the title, and any security interest holder or lienholder and any information indicating that such vehicle is a stolen motor vehicle. The local law enforcement agency shall furnish such information to the person removing such vehicle within 72 hours after receipt of such request.

(Emphasis supplied.) Thus, the plain and unambiguous language of the applicable statute at that time was that such duty did not apply when the owner or purported owner was known. Under OCGA § 1-3-1 (c), substantial compliance with statutory requirements shall be deemed sufficient.

Therefore, a good faith belief that the truck and trailer were left on Gabriel’s property by the known owner exempts Crane from compliance, even though such persons actually stole the vehicle. Ga. L. 1998, pp. 1305, 1306, § 1, amended OCGA § 40-11-2 (b) by substituting the phrase “if the owner of the vehicle or some person acting for the owner is not present,” so that the notification process now must be followed, even when the owner is known but not present. This change indicates that the General Assembly wished to give the statute a narrower exception but would still include in such exception a present purported owner, if the wrecker service could in good faith rely upon such representations.

2. The Walkers seek damages for the vandalism of their truck and for conversion. However, the evidence shows that any vandalism to the truck had occurred prior to Crane’s possession and that while in his possession no vandalism occurred. The Walkers introduced no evidence to create a factual dispute as to this. See OCGA § 9-11-56 (e). Further, after the defendant on summary judgment showed that the Walkers could not establish at trial the fair market value of the damaged truck at the time of the alleged conversion, the Walkers failed to come forward with some evidence to create a factual issue as to damages at trial. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Further, the truck and trailer were returned to the Walkers in May 1995. They introduced no evidence to show that they were entitled to any damages where the allegedly converted property was returned to the owner. See Lau’s Corp. v. Haskins, supra. In an action for conversion under OCGA § 44-12-151, the Walkers could: (1) receive an alternative verdict for the property or its value at the time of conversion; (2) demand a verdict for the damages alone; or (3) obtain the return of the property alone and any loss of hire and diminution in value. By the return of the property, the Walkers were precluded from the recovery of damages other than loss of hire and diminution in value between conversion and return of the property. OCGA § 44-12-152; Campbell v. Bausch, 195 Ga. App. 791, 792 (1) (395 SE2d 267) (1990).

The Walkers can recover only the highest fair market value of the property after conversion and prior to trial; therefore, the Walkers had to be able to prove fair market value of the property when it came into Crane’s possession in December 1994 in a damaged state, which Crane proved that they could not show. OCGA § 44-12-152; Woodham v. Cash, 15 Ga. App. 674, 676 (84 SE 142) (1915). However, loss of hire and diminution in value combined cannot exceed the fair market value of the personalty. Firestone Tire &c. Co. v. Jackson Transp. Co., 126 Ga. App. 471, 476-478 (2) (191 SE2d 110) (1972); see also Ga. R. &c. Co. v. Wallace & Co., 122 Ga. 547, 551-552 (4) (50 SE 478) (1905); Atlanta Cotton-Seed Oil Mills Co. v. Coffey, 80 Ga. 145, 150 (5) (4 SE 759) (1887). While Mr. Walker testified that, as of the theft on November 8, 1994, the fair market value of the truck was $13,000 and trailer $6,000, totaling $19,000, and upon return the property brought only $10,700, there was no evidence of value of the property in December 1994 when the property came into Crane’s possession and after the vandalism by the thieves, which would have reduced the fair market value. Absent such evidence of the fair market value in December 1994, summary judgment was appropriate, because the undisputed evidence of the defendant does not create a disputed issue of fact as to damages at the time of the alleged conversion. See Sykes v. Sin, 229 Ga. App. 155, 156-158 (1) (493 SE2d 571) (1997); Doughty v. Simpson, 190 Ga. App. 718, 722 (3) (380 SE2d 57) (1989). Further, the fair market value and the loss of hire both cannot be recovered. Hayes v. O’Shield Buick, 94 Ga. App. 177, 181-182 (3) (94 SE2d 44) (1956).

The Walkers could not recover for loss of profits caused by the inability to take jobs when there was no means to transport the equipment because, generally, expected profits of a commercial business are too uncertain and speculative to afford a basis for damages. Palmer v. Atlantic Ice &c. Corp., 178 Ga. 405, hn. 2 (173 SE 424) (1934); Norris v. Pig’n Whistle Sandwich Shop, 79 Ga. App. 369, 373 (1) (53 SE2d 718) (1949). The exception to such rule has not been shown in this case where the type of business and history of profits make the calculation of profits reasonably ascertainable. Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 313-314 (4) (271 SE2d 227) (1980).

Judgment affirmed.

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

Decided May 5, 2000.

Zachary & Segraves, Rick S. Sexton, for appellants.

Stephen E. Boswell, for appellees.


text:
    A00A1181.
    BROWN v. THE STATE.
    (534 SE2d 206)
   Barnes, Judge.

Bobby Leroy Brown was convicted of the offense of possession of cocaine with intent to distribute. His sole enumeration of error contends the evidence was insufficient to sustain the verdict. We find otherwise and affirm.

The State’s evidence showed that three members of the Athens-Clarke County Drug Task Force, working undercover in the early afternoon, stopped at an intersection in an area of reportedly intense drug activity. After watching Brown openly engage in an apparent drug transaction, the agent driving the undercover vehicle approached Brown and said he needed a “twenty,” meaning $20 worth of crack cocaine. Brown walked over to the vehicle and inquired about the other men inside the van. Apparently satisfied with the agent’s explanation of “just a couple drunks,” Brown then displayed a large wad of cash. Brown informed him that he “didn’t sell twenties, that he only sold one hundreds.” After the agent borrowed some money from the two other officers, Brown asked him to drive around the block and come back.

After doing so, the agent was approached by Ricky Peek who instructed him to drive around the block yet again. When the agents returned, Brown and Peek were standing together, and Brown motioned them to drive into a parking lot behind an apartment complex. While pulling into the lot, the agent saw Brown hand two items to Peek. When Peek offered to sell him two small pieces of crack cocaine, the agent rejected the deal, telling Peek that he would not pay $100 for two $10 pieces of crack. At that point, Brown walked up to the agent and said, “Look, you take it or leave it.” Brown fled as soon as the drug agents identified themselves, but Peek was arrested on the spot. Police chased Brown without success but, acting on a tip, found Brown hiding inside a nearby house, pretending to be asleep. In court, the three investigators identified Brown as the person brokering the cocaine deal.

In challenging the sufficiency of the evidence, Brown urges that the evidence merely established that he was present at the apartment complex but did not prove he had cocaine in his possession or that he sold any crack to the undercover agents. He argues that the State failed to prove the origin of the cash he had and points out that the only cocaine recovered was found on Peek, his co-defendant. He further claims that a defense witness provided “credible, unimpeached testimony” concerning the origin of the money in his possession.

Decided May 5, 2000.

Adrienne R. McFall, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Brown no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). Nor does this court weigh the evidence or determine witness credibility. Brown v. State, 229 Ga. App. 87, 91 (4) (493 SE2d 230) (1997).

Here, according to the officers’ testimony, Brown said he sold cocaine in large quantities, displayed a large amount of cash, ordered the agent to drive his vehicle around the block, supplied Peek with two items immediately before Peek offered to sell two small pieces of crack, and when the drug deal stalled, Brown walked up and issued his “take it or leave it” ultimatum. See Lawrence v. State, 227 Ga. App. 70, 72 (3) (487 SE2d 608) (1997) (aiding and abetting in the sale of cocaine makes one a party to the crime).

Further, consistent with Brown’s inculpatory remark that he was selling only “hundreds,” Brown possessed $612 in cash, comprised of five $100, one $50, three $20, and two $1 bills. Also, Brown immediately fled when the officers identified themselves. See Hogans v. State, 251 Ga. 242 (1) (304 SE2d 699) (1983) (jury may consider whether flight constitutes some evidence of guilt). Moreover, possession of a large amount of currency in certain denominations, as here, may help to establish an intent to distribute. Houston v. State, 180 Ga. App. 267, 268 (3) (b) (349 SE2d 228) (1986). Plainly, this evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), for a jury to find beyond a reasonable doubt that Brown was a party to the crime and committed the offense of possession of cocaine with intent to distribute. See Jones v. State, 225 Ga. App. 673, 674 (1) (484 SE2d 702) (1997).

Judgment affirmed.

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