text:
    A11A0305.
    PERDUE v. ATLANTA BUILDING MAINTENANCE COMPANY, INC. et al.
    (714 SE2d 611)
   MlKELL, Judge.

Mallory Perdue, a teacher who was injured when she slipped and fell on a recently stripped and waxed school hallway, appeals from the trial court’s grant of summary judgment to the Atlanta Building Maintenance Company, Inc. (ABM) and Preferred Facilities Maintenance, Inc., the contractor and subcontractor responsible for the work.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmov-ing party, warrant judgment as a matter of law. Our review is de novo.

It is not disputed that ABM had a contract with the Atlanta Public School System (APS), owner and occupier, to provide custodial services for W T. Jackson Elementary School and other schools. On July 1, 2005, ABM subcontracted the custodial work at W T. Jackson to Preferred Facility Maintenance, operated by Keith Barber. On August 1, 2007, Arthur Bridges of Preferred was at the school completing several days of stripping and re-waxing of the floors. During the morning, Bridges and other Preferred personnel had been moving furniture from the back upstairs hallway back into the classrooms, preparing to do the stripping and waxing of the hallway.

Perdue had gone to her physician for her annual physical, which lasted an hour or an hour and a half. Following this appointment, Perdue went by the school to pick up the $100 teacher gift card, provided by the governor, to buy supplies although the first day she was to report for work was the following week. She went in the front door of the school to the office and picked up her gift card. The prior spring, Perdue had been assigned to a new classroom on the lower level of the school. Before leaving for the summer, Perdue had packed up all her teaching aids in boxes. Upon arriving at the school on August 1, she found these boxes had been moved to her new classroom from her prior classroom on the upper floor of the annex. Perdue worked in her new classroom for an unknown period of time, unpacking the boxes. She then left the school for an unknown period of time, going to a friend’s house and borrowing two books.

Upon returning to the school, Perdue encountered a fellow French teacher, Marian Justice; they visited for a while; Perdue returned to her room and continued working. Justice later came to Perdue’s room and told her she was going back upstairs to their former classroom on the upper floor of the annex to look for some missing items. Perdue and Justice went upstairs and observed workers in the hallway who were moving furniture. According to Perdue, the workers said they had to move all of the furniture out of the hall. The workers helped Justice move a desk to the lower floor, and Perdue and Justice took a rolling cart downstairs by elevator.

Approximately an hour before Perdue’s fall, Bridges encountered Perdue and another woman teacher in the hallway he was preparing to strip and wax. He instructed two other employees to help Perdue and the other woman “with whatever they got to take out of there, because they can’t come back on this floor. And I actually walked them right here to this elevator and told them that.”

Sylivia Graves of Preferred was supervising Bridges and the other workers that day. Because she understood there were to be no teachers in the building that day and she saw teachers in the back of the building, Graves went to the office and spoke to assistant principal Patrice Austin and school secretary Gayle Huber around 11:00 a.m. Graves asked Huber to make an announcement over the intercom to let the teachers know “that all teachers, all staff, must leave the building.” Graves was in Huber’s presence as Huber made the announcement twice.

After having worked a while longer, Perdue collected her things and went up the stairs to leave. She opened the door at the top of the stairs, “walked out into this hall and immediately slipped on the floor.” Perdue saw no sign on the door or in the stairwell. After falling, Perdue saw Bridges coming toward her, slipping on the floor. Perdue told Bridges not to touch her, crawled back onto the landing from which she had come, took off her shoes, and walked back to the office where she obtained assistance for her broken arm.

Perdue said that she “[did not] recall hearing any announcements at all.” She also said that it was possible announcements were made regarding custodial staff or calling someone to the office and that she would tune those out. According to her, “there were no announcements made while I was there to teachers.”

1. Perdue contends that summary judgment to ABM was improper because the exception found in OCGA § 51-2-5 (3) to the statutory rule of no liability for the actions of independent contractors applies.

OCGA § 51-2-5 (3) provides that “[a]n employer [ABM] is liable for the negligence of a contractor [Preferred]: ... [i]f the wrongful act is the violation of a duty imposed by express contract upon the employer [ABM].”

The APS/ABM contract provides that “[w]henever and wherever the vendor’s [ABM] work creates a potential hazard to the public (e.g. slipping or tripping), the vendor shall place appropriate barriers and warning signs to provide and ensure adequate protection.”

Perdue’s negligence claim against ABM fails under OCGA § 51-2-5 (3) because

the contractual duties under which the employer [ABM] would be liable for the acts of the independent contractor [Preferred] cannot be enforced by one not a party to the contract. Even if privity of contract existed, however, [Perdue’s] claims fail because she has neglected to point out an express contractual provision that would cast liability on either [ABM] or [Preferred], OCGA § 51-2-5 (3) has been interpreted as requiring an express obligation by the employer [ABM] to be responsible for the independent contractor’s [Preferred’s] conduct.

Because there is no such express obligation in the APS/ABM contract, the trial court correctly granted summary judgment to ABM on Perdue’s negligence claim.

2. Perdue also contends that the trial court erred in granting summary judgment to Preferred on the ground that the intercom announcement satisfied its duty of ordinary care.

Because Preferred was an independent contractor, except for the language in ABM’s contract with APS discussed in Division 1, Perdue has directed this Court to no basis for imposing on Preferred a duty to post signs or otherwise warn the owner/occupier’s invitees. Perdue acknowledges that OCGA § 51-3-1 imposes no independent duty on a janitorial service to inspect the premises for the safety of the occupier’s invitees. Although Perdue argues here that Preferred had an obligation to use ordinary care in the floor cleaning assignment, there is no allegation below or here that Preferred was performing its task of stripping and waxing the floors negligently. Perdue argues only that Preferred had not exercised ordinary care because she had not been warned of the operation.

Preferred put forth direct evidence from Bridges that he personally advised Perdue and another woman that they could not come back on the floor and escorted them to the elevator. Further, Graves unequivocally stated that she went to the office and stood there while Huber made the announcement over the intercom that Preferred was going to begin work and teachers needed to leave the area. Huber deposed that she did not recall making such an announcement but could not say that she did not make it.

In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.

Decided June 15, 2011

Reconsideration denied July 18, 2011

Divine, Finney & Dorough, Kermit S. Dorough, Jr., for appellant.

Preferred having satisfied its burden by coming forward with direct evidence that it discharged its only duty to Perdue, it was incumbent upon her to come forward with evidence to demonstrate that a material fact issue existed on an essential element of her claim.

Perdue’s evidence, however, is not sufficient for this purpose. As set out above, secretary Huber does not recall making the announcement, but does not dispute that she might have done so. This cannot create an issue of fact in the face of Graves’ unequivocal statement that she did make such an announcement. Further, Perdue cannot recall any such announcement, but neither can she specify the times when she was actually in the building. Her fellow employees, Tamara Guilday, Justice, and Austin also could not establish when they were present in the building and merely had no recollection of whether any announcements were made when they were present. At best, this is mere circumstantial evidence which cannot create an issue of fact in the face of the direct evidence presented by Preferred.

Perdue also submitted the affidavits of two other teachers, Joan Hess and Ann Offen, in opposition to Preferred’s motion for summary judgment. Hess’ affidavit only states what she did and did not hear during an undefined period of time while she was in her classroom on the date of Perdue’s fall. Her statement regarding general practices of making announcements and what would have been her response are either not based on personal knowledge or are mere speculation. Offen’s affidavit suffers similar shortcomings.

Therefore, the trial court properly granted summary judgment to Preferred.

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

Talley, French & Kendall, Michael C. Kendall, Kimberly D. Mowbray, D. Todd Markle, for appellees.

       OCGA § 9-11-56; Lau‘s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Pyle v. City of Cedartown, 240 Ga. App. 445, 446 (524 SE2d 7) (1999).

       “The duty imposed upon an owner or occupier of land by OCGA § 51-3-1 is inapplicable to an independent contractor.” (Citations omitted.) Maddox v. Cumberland Distrib. Svcs. of Ga., 236 Ga. App. 170, 171 (1) (511 SE2d 270) (1999).

       (Citations and punctuation omitted.) Kidd v. Dentsply Intl., 278 Ga. App. 346, 350 (2) (629 SE2d 58) (2006). Accord Widner v. Brookins, Inc., 236 Ga. App. 563, 564 (2) (a) (512 SE2d 405) (1999). Cf. Taylor v. AmericasMart Real Estate, 287 Ga. App. 555, 557-558 (1) (a) (651 SE2d 754) (2007) (For a nonparty to have standing to enforce a contract as a third party beneficiary, it must clearly appear that one party to the contract promised another party to the contract that it would render some performance to the nonparty and that both parties to the contract intended that the contract benefit the nonparty.).

       See Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744 (2) (470 SE2d 270) (1996) (no duty on independent janitorial contractor to inspect premises of the occupier for the safety of the occupier’s invitees).

       (Citations and punctuation omitted.) Blue Cross & Blue Shield of Ga. v. Kell, 227 Ga. App. 266, 271 (3) (488 SE2d 735) (1997). Accord Wojcik v. Windmill Lake Apartments, 284 Ga. App. 766, 770 (645 SE2d 1) (2007) (physical precedent only); Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445, 446 (1) (465 SE2d 484) (1995) (physical precedent only); Stockstill v. Prime Foods Systems, 216 Ga. App. 192, 193 (1) (453 SE2d 784) (1995).

       E.g., Blue Cross & Blue Shield of Ga., supra.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A11A0662.
    CHANDLER v. THE STATE.
    (714 SE2d 597)
   Mikell, Judge.

After a jury trial in the Superior Court of Hall County, Zachary Javon Chandler was convicted of two counts of felony forgery He appeals the denial of his motion for new trial contending that the evidence presented at trial was insufficient to support the verdicts; that the trial court erred in allowing his prior conviction to enter as impeachment evidence; that the trial court erred in allowing evidence of other similar crimes tendered by an accomplice to be entered as res gestae evidence; and that the trial court erred in admitting similar transaction evidence. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [Chandler] no longer enjoys a presumption of innocence.” When evaluating sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. “This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.”

So viewed, the record shows that Chandler arranged to meet Aaron Kipp in a Wal-Mart parking lot in Oakwood, where they agreed that Kipp would cash two checks at the Wal-Mart banking center, and that he would receive $200 in exchange for this service. On January 21, 2009, they arrived in separate cars and parked next to each other in the parking lot. Chandler arrived in a truck driven by an individual known as G Money. Kipp got out of his car to speak with Chandler, who handed him two fraudulent checks in the amounts of $199.87 and $751.87, respectively, which were drawn on the bank account of Solution Alternatives (d/b/a Jerry’s Famous Catering) and were made payable to Kipp.

After receiving the checks from Chandler, Kipp went into the Wal-Mart, endorsed the checks, and cashed them at the banking center. Kipp then separated out his $200 fee, and began to walk out of the store when he noticed that Chandler and G Money were in the store as well. He testified, “I saw G Money, and he got a little closer. And then he said, give me Ml the money, including basically what else I had in my pocket. Like everything.” Kipp ran away from G Money into the parking lot and then back into the Wal-Mart store. Chandler and Kipp met up back inside the Wal-Mart and discovered that G Money had taken the keys to Kipp’s car. Kipp gave Chandler all the money from the cashed checks in an attempt to get his car keys back. Kipp then called the police to report an attempted robbery. He was later arrested for his part in the scheme, and pled guilty to forgery. He testified against Chandler at trial.

Wal-Mart’s surveillance video of the incident was played for the jury at trial. It showed the exchange in the parking lot; the two men walking into the store together; Kipp at the check cashing station, with Chandler standing to his left and then walking between check out aisles; G Money’s approach; and G Money chasing Kipp through the parking lot. Andrea Kipp, testifying for the state, identified the parties on the surveillance tape.

1. Chandler challenges the sufficiency of the evidence, arguing that Kipp’s testimony as an accomplice was uncorroborated. As there is corroborating evidence in the record, we disagree.

To sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime or lead to the inference that he is guilty. The necessary corroborating evidence may be circumstantial and it may be slight. The sufficiency of the corroborating evidence is for the trier of fact to decide.

Chandler argues that his conviction must be reversed because the evidence presented merely establishes his presence at the scene of the crime. “Although mere presence at the scene of a crime is not sufficient to convict one of being a party to a crime, criminal intent may be inferred from conduct before, during, and after the commission of the crime.” The Wal-Mart surveillance videotape shows that Chandler was in the parking lot talking to Kipp prior to the check cashing; he accompanied Kipp to the check cashing center in the store; he waited with him there and then chased after him and the money after the crime had been committed. Additionally, the state presented corroborating similar transaction evidence in the form of Andrea Kipp’s testimony that Chandler had attempted to induce her to cash checks for him a few months prior to the incident. Whether Chandler was a party to the crime was a question for the jury, which it chose to resolve against Chandler.

2. Chandler contends that the trial court erred in admitting for impeachment purposes his August 2009 conviction for cocaine possession. This contention is without merit.

At the close of the state’s evidence, the trial court held a hearing pursuant to Quiroz v. State in order to determine the admissibility of the conviction under OCGA § 24-9-84.1 (a) (2), which provides:

For the purpose of attacking the credibility of . . . the defendant, if the defendant testifies: [ejvidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.

Under Quiroz, the trial court is required to make express findings balancing the probity of a prior felony conviction against its prejudicial effect. Factors to be considered in this analysis include “the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility.”

In the present case, the trial court ruled that the state could use the prior conviction to impeach Chandler’s testimony, finding that evidence of the prior conviction was “substantially probative” and “more probative than prejudicial.” Chandler argues that the trial court used a more liberal standard than that required by OCGA § 24-9-84.1 (a) (2). We disagree. Even though the trial court did not use the exact language of OCGA § 24-9-84.1 (a) (2), it correctly applied the standard set forth in that Code section and made the express finding required under Quiroz that the probative value of the prior conviction substantially outweighed the prejudicial effect.

3. Chandler next contends that the trial court erred in allowing the state to introduce evidence of other crimes as part of the res gestae. We disagree.

On appellate review of a challenge to the admission of res gestae evidence,

[w]e will not overturn a trial court’s determination that evidence is admissible as part of the res gestae unless that determination is clearly erroneous. The rule in Georgia is that the surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court.

In the case at bar, Kipp testified that about a week prior to the events at issue here, Chandler telephoned Kipp to try to induce Kipp to cash checks for him. On that same day, Chandler, Kipp, an unnamed woman, G Money, and another man went to the Winder Wal-Mart, where the woman received a check from G Money and Chandler. Kipp watched the woman hold the checks in the parking lot, then walk into the Wal-Mart, and leave the store with the money. Kipp testified that Chandler assured him, “[Everything is fine. Everything is real.” Kipp then testified that when “she came out with the money ... I believed him.”

These events constitute “acts and circumstances forming a part or continuation of the main transaction [and] are admissible as res gestae.” In Brewer, statements made as part of the planning phase of a drug deal were held to be admissible as res gestae, even though they were made a week before. Similarly, in the present case, the trial court did not abuse its discretion in admitting Kipp’s statements as res gestae evidence because they showed the planning process for the forgeries in question.

4. Chandler contends that the trial court erred in allowing Andrea Kipp’s testimony to be admitted as similar transaction evidence because it was not similar enough to the charges being tried and because there was no evidence that the checks in that incident were fraudulent. This enumeration fails.

Similar transaction evidence is admissible where the state proves that (1) it is introduced for a proper purpose, (2) sufficient evidence shows that the accused committed the independent offense, and (3) a sufficient connection or similarity exists between the independent offense and the crime charged so that proof of the former tends to prove the latter. The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.

In this case, following a pre-trial hearing, the trial court allowed Andrea Kipp to testify that in November 2008, Chandler picked her up from her home, and in the company of G Money, drove her to a Wal-Mart in Gainesville and asked her to cash two checks in similar amounts to those at issue in the trial. She refused, and Chandler did not ask her again. The trial court held that this prior incident was admissible to prove Chandler’s bent of mind, course of conduct or intent, and instructed the jury to consider such evidence for that purpose alone.

Chandler argues that this incident was not sufficiently similar to the crime charged. However, in assessing the admissibility of similar transaction evidence, the proper focus is on the similarities, rather than the differences, between the prior acts and the current crime. The November 2008 incident was clearly similar to the incident at issue in the present case; both incidents involved Chandler inviting others to Wal-Mart in an attempt to induce them to cash checks there for a portion of the proceeds; both incidents involved checks in similar amounts; and both incidents involved the presence of G Money. Further, the similar transaction occurred in November 2008, just two months before the incident at issue in the present case.

. Chandler next argues that no evidence was presented showing that the checks in the November 2008 similar transaction were forged checks. However, a prior bad act does not have to result in a criminal charge to be admissible; it must merely be relevant to the crime charged in the present case. As this Court has explained,

Decided June 14, 2011

Reconsideration denied July 18, 2011

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

[t]he [sítate need not prove that the conduct resulted in a conviction or criminal charge; although a prosecution may fall short of proving a criminal offense, evidence as to certain conduct may nevertheless be admissible in a trial of another offense if . . . the defendant was the perpetrator of the conduct and the conduct or transaction is similar to or has a logical connection to the offense being tried.

Under these circumstances, the trial court did not abuse its discretion in admitting evidence of the November 2008 similar transaction.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Footnote omitted.) Hillman v. State, 296 Ga. App. 310-311 (674 SE2d 370) (2009).

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

       (Citation omitted.) Benbow v. State, 288 Ga. 192, 193 (702 SE2d 180) (2010).

       Lori Davis, who co-owned Solution Alternatives d/b/a Jerry’s Famous Catering, testified that she did not recognize the two checks at issue, did not know who Kipp was, and did not authorize the checks to be issued to him.

       (Citations and punctuation omitted.) Matthews v. State, 284 Ga. 819-820 (1) (672 SE2d 633) (2009). See also OCGA § 24-4-8.

       (Punctuation and footnote omitted.) Scott v. State, 297 Ga. App. 577, 580 (677 SE2d 755) (2009) (defendant was party to crime where evidence shows that defendant was walking together with a group of men before the robbery, who positioned themselves around victim during robbery and walked away together). See also Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997) (defendant was party to crime of armed robbery based on his physical position during the robbery, and immediate flight with the other robbers).

       See Ward v. State, 304 Ga. App. 517, 524-525 (4) (696 SE2d 471) (2010) (holding that although similar transactions can be used to corroborate accomplice testimony, they cannot be the sole source of corroborating evidence).

        Scott, supra.

       291 Ga. App. 423 (662 SE2d 235) (2008).

       Id.

       (Footnote omitted.) Id. at 428 (4).

       Compare Lawrence v. State, 305 Ga. App. 199, 202-203 (3) (699 SE2d 406) (2010) (trial court applied a too liberal standard where no express finding that evidence of prior conviction was substantially more probative than prejudicial).

       (Footnote omitted.) Toney v. State, 304 Ga. App. 25, 27 (1) (695 SE2d 355) (2010). See also Brewer v. State, 224 Ga. App. 656, 659 (7) (481 SE2d 608) (1997) (“circumstances forming a part of the main transaction are admissible as part of a continuous transaction or as res gestae”) (citations omitted).

       (Footnote and emphasis omitted.) Toney, supra.

        Brewer, supra.

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Cotton v. State, 297 Ga. App. 664, 665 (1) (678 SE2d 128) (2009).

       See Uniform Superior Court Rule 31.3 (B).

        Beck v. State, 291 Ga. App. 702, 703 (662 SE2d 798) (2008); Huff v. State, 248 Ga. App. 233, 235 (546 SE2d 24) (2001).

        Wells v. State, 237 Ga. App. 109, 113-114 (4) (514 SE2d 245) (1999).

       (Citation and punctuation omitted.) Harris v. State, 222 Ga. App. 52, 54 (2) (a) (473 SE2d 232) (1996).


author: McFADDEN, Judge.

text:
    A11A0976.
    BEAUDOIN v. THE STATE.
    (714 SE2d 624)
   McFADDEN, Judge.

After a jury trial, Gerald Beaudoin was convicted of statutory rape as a lesser included offense of rape, aggravated sexual battery, aggravated child molestation, and two counts of child molestation. He appeals, challenging the sufficiency of the evidence, the refusal to dismiss a juror for cause, the admission of his statements to police, the admission of testimony from a polygraph examiner and the refusal to give a jury charge on simple battery as a lesser included offense. Because there is sufficient evidence to support the jury’s verdict, the prospective juror was unbiased, the statements to police were given freely and voluntarily, there was a stipulation to the admissibility of the polygraph results and there has been no showing that simple battery was a lesser included offense of the indicted crimes, we affirm.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations and punctuation omitted.) McCoy v. State, 278 Ga. App. 492-493 (1) (629 SE2d 493) (2006). So viewed, the evidence shows that Beaudoin befriended the 12-year-old victim. On various occasions, he engaged in sexual contact with her, fondling her breasts and vaginal area, inserting his finger into her vagina, and inserting his penis into her mouth and vagina. The evidence was sufficient to authorize the jury to find Beaudoin guilty beyond a reasonable doubt of the charged offenses. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Falak v. State, 261 Ga. App. 404, 405 (1) (583 SE2d 146) (2003):

To the extent that Beaudoin complains that the trial court erred in denying his motion for a directed verdict of acquittal as to the offense of forcible rape, “this complaint is rendered moot because [Beaudoin] was not found guilty of that offense. [Cit.]” Banta v. State, 282 Ga. 392, 396 (2) (651 SE2d 21) (2007).

2. Beaudoin contends that the trial court erred in failing to dismiss a prospective juror for cause after she initially indicated that she might be biased. Upon questioning, she explained that she was perfectly impartial between the state and the accused, but that she had been a child abuse victim and had a bias “against what the crime is.” She further stated that she did not know Beaudoin, that she had no bias or prejudice against him and that she would decide the case only on the evidence presented.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Unless the juror holds an opinion .regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause; A potential juror’s doubts as to his or her own impartiality or reservations about his or her ability to set aside personal experiences do not [necessarily] require the court to strike the juror, as the judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict. A juror who expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service.

(Citations and punctuation omitted.) Brown v. State, 243 Ga. App. 632, 632-633 (1) (534 SE2d 98) (2000). In this case, because the prospective juror stated that her bias was against the nature of the crime of child molestation, not against Beaudoin, and that she could determine the issues impartially based on the evidence, the trial court did not abuse its discretion in refusing to strike her. See Pearce v. State, 300 Ga. App. 777, 781 (2) (686 SE2d 392) (2009). See also Roberts v. State, 258 Ga. App. 107, 109 (3) (572 SE2d 744) (2002) (prospective juror who had been a child molestation victim was not disqualified from service in case involving child molestation).

3. Beaudoin contends that the trial court erred in denying his Jackson-Denno motion and allowing his statements to police into evidence. At a hearing held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964),

the trial court examines the totality of the circumstances to determine whether a preponderance of the evidence shows that the [statement] was voluntary. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a [statement] will be upheld on appeal.

(Citations and punctuation omitted.) Clark v. State, 309 Ga. App. 749, 751-752 (3) (711 SE2d 339) (2011).

At the Jackson-Denno hearing, Detective Todd Hicks testified that Beaudoin voluntarily came to the police station for an interview, that Beaudoin was not in custody during the interview and was free to leave at any time, that he was not threatened or promised anything, and that he was allowed to leave the station after the interview. During the interview, Beaudoin showed no reluctance in talking to the detective and asked to take a polygraph examination. A polygraph was scheduled, and several days later, Beaudoin voluntarily returned to the station. He was informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), signed a waiver of those rights, signed a consent form for the polygraph, signed a stipulation as to the admissibility of the polygraph results and took the polygraph examination administered by a Georgia Bureau of Investigation agent. Beaudoin also testified, confirming that he had no problems talking to the detective, that he requested the polygraph during the initial interview, that he left the station after that interview, that he voluntarily returned for the polygraph several days later, that he signed the stipulation after the detective had gone over it with him and that he understood the meaning of the stipulation.

Contrary to Beaudoin’s claims, “[t]his evidence supports the trial court’s findings that [the] statements were freely and voluntarily made, under noncustodial circumstances. [Cits.]” Sams v. State, 239 Ga. App. 715, 717 (2) (521 SE2d 848) (1999). See also Jones v. State, 278 Ga. App. 616, 617 (3) (629 SE2d 546) (2006).

4. Beaudoin argues that the trial court erred in allowing the polygraph examiner’s testimony that Beaudoin was deceptive in his answer as to whether he had sex with the victim. “However, upon an express stipulation of the parties that they shall be admissible, the results of a polygraph test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have. And, such stipulation is binding on both parties.” (Citations and punctuation omitted.) Lockett v. State, 258 Ga. App. 178, 180-181 (2) (573 SE2d 437) (2002). Because Beaudoin requested the polygraph examination and expressly stipulated to the admissibility of its results, the trial court did not err in allowing the examiner’s testimony as to those results. See Fatora v. State, 185 Ga. App. 15, 19 (3) (363 SE2d 566) (1987).

Beaudoin’s further challenge to the validity of the stipulation on the ground that he did not have an attorney with him is without merit. “It is not required that the accused have counsel present or act only upon the advice of counsel in order to render a stipulation to the admissibility of the results of a polygraph examination valid and binding upon the accused. [Cit.]” Patterson v. State, 212 Ga. App. 257, 258 (2) (441 SE2d 414) (1994) (physical precedent only). Where, as here, the evidence shows that Beaudoin knew and understood his rights before he waived counsel and stipulated to the admissibility of the polygraph results, the trial court’s determination that the stipulation was valid is not clearly erroneous and will be affirmed. See Van Kleeck v. State, 250 Ga. 551, 553 (3) (299 SE2d 735) (1983); Patterson, supra.

5. Beaudoin asserts that the trial court erred in failing to give a jury charge on simple battery as a lesser included offense. However, he has not indicated in his brief which indicted crime included the lesser offense of simple battery, and he has not cited any evidence in the record that would have supported such a lesser included offense charge, relying solely on a citation to a single page of the trial transcript at which an outcry witness testified about when the victim first told her that she and Beaudoin had had sex. “It is not the function of this court to cull the record on behalf of a party in search of instances of error. [Cit.]” Holowiak v. State, 308 Ga. App. 887 (709 SE2d 39) (2011). Because Beaudoin has failed to show that simple battery was a lesser included offense of the crimes alleged in the narrowly drawn indictment, we find no error. See Neal v. State, 264 Ga. App. 311, 313 (2) (b) (590 SE2d 168) (2003).

Decided June 29, 2011

Reconsideration denied July 18, 2011.

Louis M. Turchiarelli, for appellant.

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

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A11A1424.
    ALEXANDER v. THE STATE.
    (714 SE2d 739)
   McFadden, Judge.

Robert Alexander appeals his conviction of terroristic threats and acts. Alexander argues that the trial court erred by conducting a bench trial when he had not knowingly waived his right to a jury trial. He also argues that the state failed to prove venue. As is well put in the brief of appellee, “The [s]tate has a duty to avoid frivolous arguments and to seek justice and does so here.” The state concedes both points. Our review of the record confirms Alexander’s contentions, and we therefore reverse.

Specifically, the state concedes that Alexander was entitled to a jury trial because his waiver of that right, made by his attorney at a calendar call when he was not present, was not knowing, intelligent and voluntary. See Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002). Having reviewed the record, we agree with the state that there is no basis to find a proper waiver.

The state also concedes that it failed to prove venue because, although it proved that the incident occurred in the city of Milledge-ville, there was no evidence that the city of Milledgeville is entirely within Baldwin County. Our review of the record confirms this. “[P] roving that a crime took place within a city without also proving that the city is entirely within a county does not establish venue.” Graham v. State, 275 Ga. 290, 293 (2) (565 SE2d 467) (2002).

Decided July 18, 2011.

James W. P Barnes, for appellant.

Fredric D. Bright, District Attorney, Reginald L. Bellury, Assistant District Attorney, for appellee.

For these reasons, Alexander’s conviction must be reversed.

Judgment reversed.

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


author: MCFADDEN, Judge.

text:
    A11A0973.
    HENDRICKS v. DUPREE.
    (714 SE2d 739)
   MCFADDEN, Judge.

J. Allen Hendricks, .the Roads Superintendent of the Clinch County Roads Department, appeals the order denying his motion for summary judgment in Dustin Matthew Dupree’s personal injury action. We agree with Hendricks that he is entitled to summary judgment on the ground of official immunity and thus reverse the trial court.

Dupree was injured when his all terrain vehicle struck a concrete culvert on the shoulder of a county road and overturned. He alleged that Hendricks was liable as Superintendent of the Clinch County Roads Department for failing to maintain the shoulder of the road and for failing to properly train and supervise the employees who cut the grass. He also alleged that the county was liable for negligently designing the road to include the culvert.

Hendricks and the county moved for summary judgment. The trial court granted summary judgment to the county on the ground of sovereign immunity. The court denied Hendricks’s summary judgment motion. Hendricks now appeals pursuant to Board of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009) (collateral order doctrine permits a direct appeal from an interlocutory ruling that determines that governmental actor is not immune from suit on the basis of sovereign immunity).

[O]n appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010).

So viewed, the evidence shows that on May 5, 2007, Dupree was riding an all terrain vehicle on Antioch Church Road. Dupree left the paved roadway and entered the grassy shoulder. He struck a concrete culvert, was thrown from his vehicle, and was seriously injured. The height of the grass on the shoulder made it hard to see the culvert.

The Clinch County Roads Department was responsible for maintaining the shoulder of Antioch Church Road. Hendricks, as Roads Superintendent, would prioritize the crew’s tasks and determine how to allocate the department’s resources. Hendricks and his crew began cutting grass in June of each year and then stopped at the end of September or the first of October. The road crew had not begun cutting grass for the year when Dupree had his accident on May 5. The last time the road crew had cut the grass in that area was October 2006, at the end of the 2006 mowing season.

1. Hendricks argues that he is entitled to summary judgment on the ground of official immunity. Official immunity protects public officers and employees from claims brought against them in their personal capacities when they are sued for discretionary acts taken within the scope of their employment and without actual intent to injure. Wendelken v. JENK LLC, 291 Ga. App. 30, 31 (1) (661 SE2d 152) (2008). In Georgia,

a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Citation and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010). And while the supervision of the execution of ministerial acts is itself ministerial, see Mathis v. Nelson, 79 Ga. App. 639, 642 (2) (54 SE2d 710) (1949), the supervision of discretionary acts is discretionary. See Coffey v. Brooks County, 231 Ga. App. 886, 892 (2) (e) (500 SE2d 341) (1998), reversed in part on other grounds, Rowe v. Coffey, 270 Ga. 715 (515 SE2d 375) (1999).

Dupree argues that although Hendricks had the discretion to decide whether or not to have the grass cut, once he made the decision, his actions in supervising the cutting were ministerial and he is not entitled to immunity. In support, Dupree cites Mathis, supra. In Mathis, the plaintiff was injured when the car in which he was a passenger collided with a tractor that was driving on the wrong side of the road, before dawn, without headlights. The tractor was being used in the maintenance of a county road. The plaintiff named as a defendant the warden of a prison camp, who had responsibility to supervise the maintenance of the road. In ruling that the plaintiffs suit could proceed against the warden, we broadly held that once a decision has been made to engage in the work of keeping the road in repair,

the actual progress of such work by a local government is of a ministerial character, and . . . the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature. Likewise, the supervision and control by the road supervisor of a subordinate who is actually running the road machine are of the same character.

Id. at 642 (2).

On the other hand, in Kennedy v. Mathis, 297 Ga. App. 295 (676 SE2d 746) (2009), we expressly held that the work of cutting back vegetation along a roadway is discretionary. We noted that the defendant road superintendent supervised the crew that directly performed the work; that the county had no written policies for maintaining the roads; and that the road crews would start “at one end of the county and go all the way through the county.” Id. at 297. We concluded that where there is no established policy addressing the timing, manner or method of execution of the task, the act of cutting back vegetation along a roadway is discretionary because it “involve[s] deliberations based on the road crews’ observation of grass and vegetation from different vantage points on the roadways.” Id. at 299 (1).

Here, Hendricks testified that the roads department is responsible for maintaining all county roads and culverts, and mowing beside the county roads. Hendricks’s supervisor, the board of commissioners, does not give orders regarding grass cutting. Instead, Hendricks’s crew would “just start mowing . . . and go around and around in a regular route.” The roads department had no manual directing the work, nor any county policy directing the manner in which the grass was to be cut. There were no requirements as to the height the grass had to be mowed. The roads department did not train employees in cutting the grass, assuming that they naturally could pick up the necessary skills.

Relying on Mathis, Dupree contends that once Hendricks decided to cut the grass along the shoulder of Antioch Church Road, the actual progress of the work was ministerial, and his supervision of the crew members carrying out the ministerial work was likewise ministerial. But Kennedy is more closely on point, and Dupree has not shown any reason to depart from the holding in Kennedy. Here, as in Kennedy, supra, there was no established policy addressing the timing, manner or method of execution of the cutting of the grass. Consequently, as in Kennedy, we conclude that the task at issue was discretionary. Accordingly, Hendricks is immune from Dupree’s action, and the trial court erred in denying his motion for summary judgment.

Decided July 21, 2011.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, for appellant.

Jean E. Johnson, Jr., Willard T. Bullock TV, for appellee.

2. Because we hold that Hendricks is entitled to summary judgment on immunity grounds, we do not reach his argument that the statute of limitation bars Dupree’s negligent supervision and training claim.

Judgment reversed.

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


text:
    A11A1042.
    SMITH v. HALL.
    (714 SE2d 742)
   McFADDEN, Judge.

William Dalton Smith, Jr., appeals the trial court’s order enforcing a settlement agreement with Roxanne Hall, the defendant in Smith’s personal injury action. Smith argues that there was no meeting of the minds because in response to his offer to settle, Hall submitted a counteroffer, not an acceptance. We find that Hall’s response was an acceptance of Smith’s offer to settle, and therefore affirm the trial court.

On July 7, 2010, Smith’s attorney sent a letter to Hall’s attorney submitting a demand for settlement in the amount of $25,000, the limits of Hall’s insurance policy. The letter provided that

[t]his settlement demand is based upon representations that the limits of liability/bodily injury coverage available to [Hall] [are] 24,000/50,000/25,000 and based upon representations that there is no other available insurance to address the allegations of this action. If it is later determined that this is incorrect, this settlement offer will be void.

The letter stated that the offer terminated at 4:00 p.m. on July 14, 2010, and provided that “[a]ny deviation or delay in this acceptance will be considered an automatic rejection of this demand.” Smith’s counsel extended the deadline for Hall to respond, and Hall’s counsel wrote two letters seeking clarification of whether the offer to settle included a release of the claims against Hall and her insurer. Smith did not respond in writing. Nonetheless, by the extended deadline, Hall’s counsel wrote to Smith’s counsel that “[w]e hereby accept your demand for settlement. . . .” Hall’s counsel included a check for $25,000 with the letter. The attorney also included three documents for Smith’s or his attorney’s signature: a release and indemnity agreement; an affidavit of no liens; and an attorney’s certificate of no liens. The letter explained that

[i]t is our understanding that there are no other parties or available insurance policies from which your client could collect any potential judgment for his damages. In light of this fact, the release in this matter is general as it relates to our client and [her insurer]. If there is other insurance available, that we are not aware of, we could discuss the terms of a release and consider a Limited Liability Release which would permit Mr. Smith to pursue his claims to the extent there is other insurance available. Otherwise we will assume that the release is acceptable and that you and your client will execute all of the settlement documents prior to negotiating the settlement check.

(Emphasis in original.) About a week later, Smith’s counsel returned the check and documents to Hall’s counsel on the ground that they were not an acceptance of the July 7 demand but instead were a rejection and counteroffer.

Hall filed a motion to enforce the settlement agreement. The trial court granted the motion, ordering Smith to accept $25,000 from Hall or her insurer, to execute a release of his claims against Hall and her insurer, and to dismiss the lawsuit with prejudice. Smith appeals.

The facts are not in dispute, and our review is de novo. Jones v. Frickey, 274 Ga. App. 398, 400 (618 SE2d 29) (2005), aff'd, Frickey v. Jones, 280 Ga. 573 (630 SE2d 374) (2006).

Smith argues that Hall did not accept the offer to settle because her purported acceptance included a release that sought to release parties other than Hall, and thus attempted to broaden the scope of the method necessary to terminate the lawsuit. Hall counters that her letter constituted an acceptance, and the proposed settlement documents were not a mandatory element. Smith relies on Johnson v. Martin, 142 Ga. App. 311 (235 SE2d 728) (1977), while Hall relies on Herring v. Dunning, 213 Ga. App. 695 (446 SE2d 199) (1994). Both cases involved series of letters between plaintiffs counsel and defense counsel. In Johnson, the court found no settlement while in Herring, the court found a settlement.

In Johnson, the plaintiff, Johnson, sued two defendants, Martin and Ferguson, in her personal injury action. After filing the action, Johnson’s attorney wrote a letter to Martin’s attorney “offering to settle this case for the limits of your policy in the total amount of $10,000.” Johnson, supra at 311. Martin’s attorney responded that he accepted the offer to settle. He enclosed with his letter a release of Johnson’s claims not only against Martin but also against the other defendant, Ferguson. The attorney wrote that “[u]pon the execution and delivery to us of the enclosed dismissal and release, the enclosed draft may be presented for payment. ...” Id. In finding no settlement, we held that, “[c]learly the intent of Martin’s attorney was to qualify his acceptance of the offer by adding as a condition to the agreement the signing of the release by plaintiff.” Id. And that release, which released Johnson’s claims against both defendants as well as “any and all persons,” would bar Johnson from pursuing her claims against Ferguson, even though her settlement proposal was made only to Martin. Therefore, we concluded, there was no contract to settle the case.

In Herring, on the other hand, although the attorneys’ letters “contained no express promise to release or discharge the defendant upon tender of the policy limits,” Herring, supra at 698, the court nonetheless found that “a promise to terminate the controversy or the litigation is a necessary implication to the offer to settle.” Id. (Punctuation omitted.) Therefore, the fact that the correspondence did not resolve how the litigation would end — an essential provision which the court dismissed as “so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it,” id. — was not fatal to the defendant’s attempt to enforce a settlement. The court held that the “fact that [the defendant’s] acceptance of [the plaintiffs] offer to settle suggested one form of terminating the controversy over another [did] not render such acceptance a counteroffer which rejected] the plaintiffs offer,” but instead was “a valid acceptance with the suggested choice for terminating the controversy being merely precatory,” id. at 699, “meaning a recommendation, not a condition.” Frickey, supra at 575. We ruled that from the moment the acceptance was mailed, a contract had been formed, and that although the presentation of a proper release in a form acceptable to the plaintiff might have been a condition of performance, it was not an act necessary to acceptance of the offer to settle for the policy limits.

We find Herring controlling and Johnson distinguishable. Here, like the attorney in Herring, Hall’s attorney unequivocally accepted the offer to settle when he wrote “[w]e hereby accept your demand for settlement. ...” His inclusion of a general release was merely a suggestion of how to terminate the lawsuit, as indicated by his writing that, “[i]f there is other insurance available, that we are not aware of, we could discuss the terms of a release and consider a Limited Liability Release which would permit Mr. Smith to pursue his claims to the extent there is other insurance available.” “[T]he presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant’s performance but it was not an act necessary to acceptance of plaintiffs offer to settle for the policy limits.” (Punctuation omitted.) Moreno v. Strickland, 255 Ga. App. 850, 853-854 (1) (567 SE2d 90) (2002).

Decided July 21, 2011

Kenneth E. Futch, Jr., Becky C. Wilcox, for appellant.

Coleman Talley, George T. Talley, Eric A. Collins, for appellee.

Unlike the attorney in Johnson, Hall did not qualify her acceptance of the offer on Smith’s release of claims against named defendants besides herself; here, there was only one named defendant, Hall, and she was willing to discuss the terms of a release so that Smith could pursue his claims to the extent there was other insurance.

For these reasons, we conclude that the trial court did not err in granting Hall’s motion to enforce the settlement.

Judgment affirmed.

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


text:
    A11A1218.
    O’NEAL v. THE STATE.
    (714 SE2d 744)
   McFADDEN, Judge.

After a bench trial, Jason O’Neal was convicted of possession of oxycodone, possession of marijuana and two child restraint violations. He appeals, challenging the trial court’s denial of his motion to suppress evidence. Because the evidence authorized the trial court’s finding that the search of O’Neal’s motor vehicle was lawful, we affirm.

In ruling on a motion to suppress, the trial judge sits as the trier of fact, having the sole province of determining the credibility of witnesses and resolving conflicts or inconsistencies in the evidence. Pattman v. State, 208 Ga. App. 770, 772 (431 SE2d 706) (1993). On appeal, we construe the evidence in a light favorable to upholding the trial court’s findings and we must adopt such findings on disputed facts and credibility unless they are clearly erroneous. Quick v. State, 279 Ga. App. 835, 836 (632 SE2d 742) (2006).

So construed, the evidence shows that on April 29, 2010, Deputy Skinner of the Richmond County Sheriffs Office was on patrol when he saw O’Neal driving his pickup truck with an unrestrained child in the back seat. Deputy Skinner stopped O’Neal for the child restraint violation and discovered that there were actually two unrestrained minors in the truck. Suspecting that O’Neal was under the influence of drugs or alcohol because he seemed disoriented and acted as though he did not know where he was, Deputy Skinner asked O’Neal to step out of the vehicle in order to administer field sobriety tests. As O’Neal got out of his truck, the deputy asked him for permission to search the truck, but O’Neal refused.

In the meantime, another officer, Deputy Jones, had arrived at the scene. As Deputy Skinner began to run a check on O’Neal’s driver’s license, Deputy Jones approached O’Neal and asked to conduct a pat-down. O’Neal then aggressively grabbed Deputy Jones’ arm, at which point the deputies took O’Neal into custody. Thereafter, without any questioning by the officers, O’Neal stated that he was in possession of marijuana and had two marijuana pipes in his truck. The deputies searched the truck and found marijuana and oxycodone in the vehicle.

1. The initial traffic stop was authorized by the deputy’s observation of a child restraint violation. See Clark v. State, 305 Ga. App. 699, 700 (1) (700 SE2d 682) (2010). O’Neal argues that the subsequent pat-down of him was not authorized because the deputies did not have a reasonable suspicion that he was armed, and thus the search of his truck was tainted by the illegal pat-down. However, O’Neal’s argument is fundamentally flawed, because regardless of whether a pat-down was authorized, no pat-down actually occurred. As recounted above, the uncontradicted testimony at the suppression hearing plainly established that before any pat-down took place, O’Neal aggressively grabbed the deputy’s arm, at which point he was arrested. Thus, contrary to O’Neal’s claim, “[w]e need not determine whether [reasonable suspicion] existed at this point, because no [pat-down] had yet occurred[.]” State v. Lentsch, 252 Ga. App. 655, 658 (2) (556 SE2d 248) (2001), overruled on other grounds, Handschuh v. State, 270 Ga. App. 676 (607 SE2d 899) (2004). Moreover, even if an unlawful pat-down had occurred “such that, under Georgia law, [O’Neal] was entitled to resist, an arrestee is never justified in assaulting an arresting officer unless the officer has assaulted him first. In this case, no evidence showed that the arresting officer assaulted [O’Neal] first.” (Citations and punctuation omitted.) Meadows v. State, 303 Ga. App. 40, 43 (1) (692 SE2d 708) (2010). Accordingly, O’Neal has failed to show that the trial court erred in denying the motion to suppress on this basis.

Decided July 21, 2011.

David R. Brunk, for appellant.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. O’Neal contends that the trial court erred in finding that his custodial statements were not made in response to questions by the deputies. Again, O’Neal’s contention is belied by the record. Deputy Skinner gave uncontradicted testimony at the suppression hearing that O’Neal’s statements regarding the marijuana and pipes were not in response to any questioning by the deputies. Because there is evidence to support the trial court’s finding, it will not be disturbed on appeal. See Gonzalez v. State, 299 Ga. App. 777, 778 (1) (683 SE2d 878) (2009) (this court will not disturb trial court findings if any evidence supports them).

3. O’Neal claims that the trial court erred in finding that the warrantless search of his truck was lawful absent any showing of exigent circumstances. The claim is without merit.

Under the automobile exception to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant. Because there is no exigency requirement in this context, the warrantless search of an automobile will be upheld so long as there was probable cause to suspect it contained contraband, even if the driver was arrested and handcuffed and the keys were taken from him before the car was searched.

(Citations and punctuation omitted.) Sarden v. State, 305 Ga. App. 587, 589 (699 SE2d 880) (2010). In this case, O’Neal’s statements that he possessed marijuana and had marijuana pipes in the truck gave the officers probable cause to suspect that the vehicle contained contraband, and therefore the search of the vehicle was lawful.

Judgment affirmed.

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


author: BARNES, Presiding Judge.

text:
    A11A0005.
    COKER v. MOEMEKA.
    (714 SE2d 642)
   BARNES, Presiding Judge.

The trial court in this custody case found the child’s mother in contempt and changed custody from the mother to the father. The court also ordered that any visitation by the mother must be “supervised, described, and by court order,” and terminated the father’s obligation to pay the mother child support. Because the mother was not properly served, and because the trial court improperly combined a contempt motion with a change of custody motion, we reverse.

Norbert Moemeka initiated these proceedings against Befaithful Coker on June 10, 2009, with a pleading titled “emergency petition to restrain mother from moving child out of state for the second time; to modify visitation; to modify child support; and offer of father to take child should mother wish to go to school in another state.” In the pleading, Moemeka alleged that Coker’s house had burned down and he did not know her current address, although she had directed him to continue mailing his child support payments to her at the old address. He further alleged that he was not being allowed to visit their minor child, and that Coker had told him that she and the child were going to move out of state. He sought to have Coker restrained from moving out of state and requested that he be awarded physical custody of the child if she did so. He also sought Coker’s current address and wanted his child support re-evaluated. The record includes a certificate of service verifying that Moemeka mailed a copy of the pleading to Coker at Doe Trot Trail in Douglasville, Georgia.

The record contains a “Douglas County Sheriffs Office Civil Process Activity Report” dated July 2, 2009; under “Final Status” is hand-written “house burnt [sic] down.” On August 18, 2009, Moe-meka moved for an order for service by publication, averring in an attached affidavit signed by his counsel that “diligent search has been made,” that the petitioner attempted service at the only address he had, and that he had checked “telephone information and directories.” On August 21, 2009, the trial court signed an order for service by publication, and on September 23, 2009, the superior court clerk filed a notice of publication to Coker. The notice states that on June 10, 2009, Moemeka “filed suit against you for Contempt of Court regarding visitation and the whereabouts of [h]is legitimized son,” and directed Coker to file an answer in writing within 60 days of the date of the order of publication. In a letter to the clerk included in the record, Moemeka’s counsel asked the clerk to forward a stamped copy of the order for publication and the notice of publication to the county’s newspaper of record.

In another letter to the trial court filed on December 10, 2009, Moemeka confirmed that the court was going to hear the case on January 12, 2010 and stated he would be “submitting additional requests for Change of Custody, and/or Modification of Child Support” that week. On December 16, 2009, Moemeka filed a “motion to request change of custody and/or modification of child support and petition for contempt for withholding child contrary to court order,” with a certificate of service showing that Coker was served by mailing the document to the Doe Trot Trail address, which was Coker’s burned-out house. The motion included a copy of the Douglas County Superior Court order filed in October 2004 which granted joint legal custody to both parents, physical custody to Coker, and detailed visitation to Moemeka.

On January 19, 2010, the trial court signed an order indicating that Coker had been served by publication and did not appear at a hearing on January 12, 2010. The order stated that during the hearing Moemeka “presented contempt issues regarding the Custody and Visitation Order of 2004,” and showed that “the actual parenting practices by the Mother were shown not to be in the best interest of the child.” The trial court then ordered that “sole custody, both physical and legal, be bestowed on the [f]ather,” that any visitation by Coker had to be “supervised and by court order,” and that Moemeka’s child support payments to Coker be stopped.

Moemeka retrieved his son shortly thereafter from his school in Florida, and Coker moved to vacate the January 2010 order, contending it was void because she was never served with Moemeka’s December 2009 motion for a change of custody, and because the change of custody request had been improperly added to the contempt proceeding instead of raised as a separate action. Additionally, she argued, the record included no affidavits establishing proper publication of the notice of Moemeka’s initial June 2009 petition, and the notice that was published in the legal newspaper mischar-acterized the initial petition as a suit “for Contempt of Court regarding visitation and the whereabouts of [h]is legitimized son.” The published notice said nothing about a custody hearing.

The parties were scheduled for a hearing on February 23, 2010, and entered into a consent agreement on that day setting forth a temporary visitation schedule. Another hearing was apparently set for April 13, 2010, but the record does not disclose whether the court held one or not. On June 3, 2010, the trial court entered an order that was an exact duplicate of the January 19, 2010 order, finding Coker in contempt and changing custody, visitation, and support. The court made no reference to Coker’s arguments regarding service or the improper combination of a contempt and custody action.

Coker, who appears pro se on appeal, argues that the trial court’s order granting custody to Moemeka should be reversed because Moemeka improperly added the custody issue to his contempt petition and because she was not served properly. We agree, for both reasons.

1. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” (Citation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

In a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action. McCall v. McCall, 246 Ga. App. 770, 772 (1) (542 SE2d 168) (2000). Accordingly, the trial court erred in considering both issues in the same action and in awarding custody to Moemeka. See Hammontree v. Hammontree, 186 Ga. App. 819, 821 (368 SE2d 576) (1988).

2. Coker also contends that she was not served properly and was therefore denied due process. We agree that the trial court erred in granting Moemeka’s motion to serve Coker by publication, and that the notice that was published failed to give Coker notice that Moemeka was seeking to change custody as well.

(a) “Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Footnote omitted.) Saxton v. Davis, 262 Ga. App. 72, 73 (1) (584 SE2d 683) (2003).

Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.

Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983). While the quantum of evidence required to establish the exercise of due diligence may vary from case to case, “at a minimum, the decision whether due diligence has been exercised cannot be left to the movant for publication service. Instead, it is the duty of the courts to determine whether the movant has exercised due diligence in pursuing every reasonably available channel of information.” (Citation omitted.) Pierce v. Pierce, 270 Ga. 416, 418 (511 SE2d 157) (1999). And while the trial court makes the initial decision about the legality of notice, “the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate.” Id.

In this case, the affidavit supporting Moemeka’s motion for service by publication, which was submitted by Moemeka’s counsel, merely states that the sheriff unsuccessfully attempted service at Coker’s last known address and that the petitioner tried to find Coker by “checking telephone information and directories.” In his June 2009 verified petition, Moemeka said Coker told him to continue sending his child support payments to her former address even though the residence at that location had burned, and also told him that she was going to move out of state. His counsel indicated in letters to the clerk of court in July and December 2009 that Moemeka had Coker’s cell phone number, and that despite Coker’s directions to Moemeka to continue mailing his support checks to her former address, counsel was holding them because Moemeka “does not wish to leave checks in a mailbox at a burned[-]out house.” Moemeka did not then indicate that letters mailed to the former address had been returned instead of forwarded. In fact, Moemeka served his December 2009 motion for a chánge of custody by mailing a copy of it to Coker at the former address.

After the trial court issued its January 2010 order changing custody, Coker moved to vacate the order, arguing that not only did Moemeka fail to give her notice of the proceedings by mail at her former address, but that by September 2009, she had given him her new post office box address in Florida. In his response to Coker’s motion to vacate, Moemeka included an e-mail message from Coker dated August 2009, in which she asserts that her former mailing address remained valid. While Moemeka filed an addendum to his response brief in May 2010 showing that an envelope addressed to Coker at her former address had been returned as undeliverable, the envelope was returned in April 2010, which establishes nothing about the validity of the address from June through December 2009.

Moemeka himself thus established in the record that he had Coker’s cell phone number, e-mail address, and mailing address. Further, according to Coker, on February 12, 2010, Moemeka removed the child from school in Florida and took him to Georgia without telling her or letting the child speak to her beforehand, which indicates that the whereabouts of the child were not entirely unknown. While Moemeka may not have had Coker’s physical address, he had several means of communicating with her, which had not been exhausted before the trial court granted his request for service by publication. Under the facts and record, Moemeka’s search for Coker was legally inadequate, and the trial court erred in issuing the order granting service by publication. See Pierce, 270 Ga. at 418; Taylor v. Padgett, 300 Ga. App. 314, 317-318 (1) (684 SE2d 434) (2009).

It follows that the trial court also erred in entering the finding of contempt and custody award when it lacked personal jurisdiction over Coker due to insufficient service of process.

Decided July 1, 2011

Reconsideration denied July 22, 2011.

Befaithful Coker, pro se.

Elizabeth J. Nunnelley, for appellee.

(b) Finally, even if the trial court had properly ordered service by publication, and Moemeka’s custody action were properly before the court, the notice published in the legal newspaper failed to indicate that Moemeka had filed a custody action. OCGA § 9-11-4 (f) (1) (C) provides that when the court orders service by publication, the published notice shall contain the name of the parties, the court, “the character of the action,” the date the action was filed, the date of the order for service by publication, and a notice commanding that the party to be served must answer within 60 days of the order. The notice published in this case, which was only introduced into the record by Coker with her motion to vacate the custody and contempt order, states that Moemeka filed suit against Coker “for Contempt of Court regarding visitation and the whereabouts of [h]is legitimized son.” Because the notice refers only to the initial contempt petition, it does not give Coker even constructive notice that Moemeka sought a change of custody.

For the reasons set forth above, we reverse the superior court’s order granting Moemeka legal and physical custody of the minor child and finding Coker in contempt.

Judgment reversed.

Adams and Blackwell, JJ., concur.