text:
    A12A2052.
    GIBSON v. THE STATE.
    (735 SE2d 290)
   Ellington, Chief Judge.

A Jackson County jury found Ronald Gibson guilty beyond a reasonable doubt of four counts of possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). The trial court sentenced Gibson to five years as to each count, to run concurrently. The record shows that the four counts pertained to only two firearms. Specifically, Counts 3 and 5 of the indictment charged Gibson with possessing a single weapon, a Remington Model 1100 shotgun, on a single day, January 31, 2010. The two alternative counts were based on two different previous felony convictions. Similarly, the record shows that Counts 4 and 6 charged Gibson with possessing a single weapon, an Intrac Arms shotgun, on that same day. Gibson contends that, because the alternative counts concerned possession of a single weapon on a single day, Count 3 merged with Count 5 and Count 4 merged with Count 6. This is correct, as the State concedes.

Decided December 10, 2012.

Donna A. Seagraves, Mary Erickson, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

It is axiomatic that an accused may not be convicted of more than one crime for the same conduct if one crime is included in the other. OCGA § 16-1-7 (a) (1). See Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006) (Georgia courts apply the “required evidence” test to determine whether one crime is included in the other.). OCGA § 16-11-131 (b) provides that “[a]ny person ... who has been convicted of a felony by a court of this state . . . and who . . . possesses . . . any firearm commits a felony[.]”). Although the State was doubly able to prove Gibson’s status as a convicted felon, given his two past felony convictions, Counts 3 and 5 both charged a single offense, that is, one act of being a felon in possession of a Remington Model 1100 shotgun on January 31, 2010. Because Counts 3 and 5 charged a single violation of Georgia law, the offenses merged, and the trial court erred in imposing separate punishment for each count. See Wyman v. State, 278 Ga. 339, 339-340 (1) (602 SE2d 619) (2004) (Georgia law bars separate punishment for offenses that merge as a matter of law or fact.); Hawkins v. State, 302 Ga. App. 84, 86 (2) (690 SE2d 440) (2010) (accord); Warren v. State, 289 Ga. App. 481, 482 (657 SE2d 533) (2008) (A defendant who had two prior felony convictions and who possessed two guns was guilty of two counts of violating OCGA § 16-11-131 (b)). Likewise, Gibson only committed one act of being a felon in possession of an Intrac Arms shotgun on January 31, 2010; thus, Counts 4 and 6 merged.

Accordingly, the judgment is vacated, and this case is remanded for resentencing. Hawkins v. State, 302 Ga. App. at 86 (2).

Judgment vacated and case remanded.

Phipps, P. J., and Dillard, J., concur.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A1097.
    KESLER v. THE STATE.
    (732 SE2d 833)
   BARNES, Presiding Judge.

Kevin Kesler and his co-defendant were indicted for trafficking in cocaine and possession of hydrocodone, a controlled substance. Before trial, the court granted Kesler’s motion in limine to exclude hearsay evidence identifying Kesler as a suspect, specifically ruling that the investigating officers could not testify that they told the confidential informant to call “Kevin.” But the second witness did so anyway, and the trial court granted Kesler’s motion for a mistrial. Kesler then filed a plea in bar, arguing that the State essentially goaded him into moving for a mistrial and therefore could not retry him. The trial court denied the motion, and for the reasons that follow, we affirm.

The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where, at the initial trial, the prosecution failed to introduce sufficient evidence to sustain a conviction. Retrial generally is not prohibited where reversal is due to trial error rather then the sufficiency of the evidence. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to “goad” the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial.

(Citations omitted.) Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997).

In determining whether a prosecutor intended to goad a defendant into moving for a mistrial, the trial court must make a finding of fact by “[inferring the existence or nonexistence of intent from objective facts and circumstances.” Oregon v. Kennedy, 456 U. S. 667, 675 (102 SC 2083, 72 LE2d 416) (1982); State v. Thomas, 275 Ga. 167 (562 SE2d 501) (2002). We will affirm the trial court’s resolution of factual issues “if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.” Id. at 168.

Kesler argues on appeal that retrial should be barred because the prosecutor goaded him into moving for a mistrial, and that the trial court’s findings of fact to the contrary were clearly erroneous. During the trial, the State asked the first officer who testified what he had instructed the informant to do. He responded, “I instructed the Cl to contact a specific individual via telephone to order a specific amount of narcotics to be delivered.” He then testified that the informant set up the buy and the officers staked out the delivery location at an abandoned building on a dirt road. The only vehicle that traveled down the dirt road while the officers were watching was a truck in which Kesler was the passenger, but the driver drove past the meeting site and turned onto a paved road. Officers stopped the truck about a mile from the intersection.

The first officer testified that the call log on one of two cell phones found in the truck showed several calls from the Cl’s phone within the previous two hours. Other officers searching the roadside along the truck’s route of travel discovered bags containing 100 hydrocodone pills and almost two ounces of cocaine.

The State then called a second officer to the stand, and the following exchange occurred:

Q: And you and [the first officer] met with the CL Did [the first officer] instruct the Cl to make any phone calls?
A: Yes.
Q: And what did [the first officer] tell the Cl to do?
A: Told the confidential informant to —
[KESLER]: Objection, your Honor.
A: — call Kevin.
[KESLER]: That’s hearsay. [The first officer] was just on the
stand.
[THE STATE]: He just testified to it. He just testified.
THE COURT: The fact’s already in evidence.
[KESLER]: Well, that’s another reason. It’s hearsay.
THE COURT: He was there. He can state what he observed.
Q: What did you observe [the first agent] tell the Cl to do?
A: To call a person named Kevin.

Kesler objected again and moved for a mistrial, arguing that the trial court had just granted his motion in limine that morning and specifically ruled that the State’s witnesses were not to testify that the Cl was told to call “Kevin.” The crux of his successful motion in limine was to preclude testimony about exactly that type of hearsay identification testimony, he argued. The State responded that the testimony was not evidence of identity, and while the trial court said it “would tend to agree” with that argument, it also noted that it had ruled earlier that morning that the State’s witnesses would not use the name “Kevin” in their testimony. The court agreed with Kesler that a curative instruction would not remove the issue from the jury’s mind and granted the mistrial.

Kesler then filed a plea in bar, arguing that he should not be retried because, by eliciting the prohibited information, the State either intended to cause a mistrial or committed “such a gross and obvious error that it should be equated with an intent to cause a mistrial.” At a hearing on the motion, the officer who caused the mistrial testified that he was not sure if he could use the name, and “never got clarification” about it before he testified, but then admitted that initially he had been instructed not to use the name “Kevin.” He understood that the State was going to go back into the courtroom and ask the trial court to reconsider its ruling, but no one told him the outcome of that request for reconsideration, so he was confused about his instructions. He admitted, however, that no one ever told him to say the name “Kevin.”

During argument the prosecutor explained that when he asked the question, he was “just trying to set up that these calls were made” to explain how the case came about. The trial court had been clear in its ruling, and the prosecutor stated in his place that the witness had been told not to use the name. In hindsight, the prosecutor conceded, the witness should have been briefed on the fact that the court had not changed its mind, but he also argued that there was no reason for the State to desire a mistrial at that point during the second witness’s testimony.

In its order denying the motion, the trial court noted that Kesler did not object when the State asked similar questions of the first officer, who testified that the Cl called a “specific individual.” “Therefore,” the court continued, “the State’s use of the same line of questioning, without objection from [Kesler], shows that there was no intent by the State to goad or force [Kesler] into requesting a mistrial.” Prom having observed the State’s demeanor and the progress of the trial, the court found credible the State’s explanation about the issue.

While Kesler stated without citation in his brief that “the prosecutor unequivocally stated that he specifically intended to elicit the name “Kevin” from [the witness] because, despite the court’s ruling, he did not consider the information to be hearsay,” this assertion is baseless. The prosecutor made no such statement, either at trial or during the motion on Kesler’s plea in bar.

The evidence, as outlined above, supports the trial court’s findings that the State did not intend to goad Kesler into moving for a mistrial. Accordingly, we find no error in the trial court’s denial of Kesler’s plea in bar.

Judgment affirmed.

Adams and McFadden, JJ., concur.

Decided October 3, 2012

Reconsideration denied December ll, 2012

Harvey S. Wasserman, for appellant.

Robert W. Lavender, District Attorney, Adam C. Schroeder, Assistant District Attorney, for appellee.


author: Adams, Judge.

text:
    A12A1148.
    THE STATE v. CLEVELAND.
    (738 SE2d 273)
   Adams, Judge.

The State appeals the trial court’s order granting Antonio Bernard Cleveland’s motion to suppress evidence seized in connection with his arrest for one count of possession of cocaine. We affirm for the reasons set forth below.

In considering a trial court’s grant of a motion to suppress,

the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court’s application of the law to the undisputed facts.

(Punctuation omitted.) Groves v. State, 306 Ga. App. 779 (703 SE2d 371) (2010).

Deputy Casey Clark of the Upson County Sheriff’s Department was the only witness at the hearing on the motion to suppress. He testified that on October 22, 2009, he stopped a vehicle after observing that the front seat passenger was not wearing a seat belt. As he approached the car, Clark noticed that Cleveland was a passenger in the back seat of the car and that he appeared to be “unusually nervous.” Clark was aware that Cleveland had previously been arrested for possession of cocaine. Although Clark warned Cleveland not to move around or reach toward the floorboard, Cleveland kept moving his hands, reaching toward the floorboard and moving clothing around in the back seat, prompting Clark to call for backup. After Upson County Sheriff’s Deputy Hollis arrived, Clark gave the driver a warning about the seat belt violation and told her that she was free to leave. The driver then volunteered that there was nothing illegal in the car. At that point, Clark requested and received consent from the driver to search the vehicle.

While Clark and Hollis were talking to the driver, Clark observed Cleveland watching them through the car’s rear window and noticed him reach through to the front of the car. At that point, Clark asked Cleveland to exit the vehicle. Clark conducted a pat-down search of Cleveland, told him to sit down and asked him to remove his shoes. The officer said that it was his practice to ask a suspect to remove his shoes if the suspect had been observed reaching toward his feet. In this instance, his concern was that Cleveland might have a weapon in his shoe, a razor blade or a pocket knife, or might have illegal drugs that he would attempt to hide or destroy. At some point, Hollis told Clark that Cleveland had thrown a bag of something that appeared to be crack cocaine from his right hand and then stepped on it. The officers subsequently recovered the bag, resulting in the charge in this case.

The trial court granted Cleveland’s motion to suppress on the ground that Clark’s pat-down search of Cleveland exceeded the lawful purpose of officer safety because Clark testified that the search was both to look for weapons and to look for drugs. The trial court also found that the officer exceeded the scope of a lawful search by requiring that Cleveland remove his shoes without “first discovering an object that he reasonably believe[d] to feel like a weapon.”

The State argues that the trial court erred in suppressing the evidence recovered during the search of Cleveland because: (1) the pat-down was an objectively reasonable search for weapons even if Clark also subjectively believed that Cleveland might be attempting to conceal drugs; (2) Clark’s request that Cleveland remove his shoes was reasonable based upon his observation that Cleveland had the opportunity to hide a weapon in his shoe; and (3) no evidence existed that the drugs were ever concealed in Cleveland’s shoe as Hollis observed Cleveland dropping the bag from his hand.

Under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), a pat-down search for weapons is authorized “only if the officer has a reasonable belief preparatory to an intended pat-down that the suspect is armed and presents a danger to the officer or others.” (Punctuation and footnote omitted; emphasis in original.) Ramsey v. State, 306 Ga. App. 726, 728 (703 SE2d 339) (2010).

Nevertheless, because concern for officer safety is still present at routine traffic stops, officers involved in any traffic stop may order the driver and any passengers out of the vehicle. For their own safety, officers at routine traffic stops may also perform a limited Terry-type search of the driver or any passenger to discover weapons if the officer has a reasonable basis to believe that the person is armed.

(Citations omitted.) Eaton v. State, 294 Ga. App. 124, 126 (2) (668 SE2d 770) (2008). Here, even construing the evidence most favorably to support the trial court’s order, we conclude that Cleveland’s nervous behavior, which involved ignoring Clark’s directions not to move his hands or reach toward his feet and moving clothing around in the back seat; his actions in reaching toward the front of the car while observing the officers through the rear window; and Clark’s knowledge of Cleveland’s prior drug history, provided a reasonable basis to support a pat-down search for weapons under the Terry standard. See O’Quinn v. State, 303 Ga. App. 657, 659 (695 SE2d 60) (2010) (passenger’s nervous behavior and reaching movements inside the vehicle provided basis for Terry search for weapons); Boyd v. State, 300 Ga. App. 455, 457 (1) (685 SE2d 319) (2009) (officer’s knowledge of defendant’s prior involvement with drugs justified officer’s pat-down in light of “the well-known association of weapons and drugs”).

The fact that Clark also suspected that Cleveland might have contraband on his person does not undercut the objective facts supporting a pat-down to secure officer safety. “The issue [of whether a Terry pat-down search was reasonable] does not turn on the officer’s subjective belief; rather the issue is whether the officer has objectively reasonable grounds to believe or suspect that the person may be armed.” (Citations omitted.) State v. Kipple, 294 Ga. App. 420, 421 (1) (669 SE2d 185) (2008). In this case, Clark had objectively reasonable grounds to conduct a pat-down search of Cleveland, and Clark’s subjective suspicions that Cleveland might also have had drugs do not factor into our analysis. Compare State v. Stephens, 167 Ga. App. 707, 708 (307 SE2d 518) (1983) (affirming suppression of evidence obtained during a pat-down search of car passenger for the stated purpose of searching for weapons and to prevent the destruction of evidence, where the evidence showed “no adequate grounds ... to search appellee for weapons, since [the officer] had no reason to believe that appellee was armed and dangerous”) (emphasis supplied).

Nevertheless, Clark’s search went beyond a mere Terry-authorized pat-down when he directed Cleveland to remove his shoes. Such an intrusion beneath the surface of a suspect’s clothing requires further justification:

A Terry pat-down, unlike a full search, is conducted for the purpose of ensuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer. Under Terry, an officer is authorized to pat down a suspect’s outer clothing. He may intrude beneath the surface in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the “plain feel” doctrine.

(Citation omitted.) Johnson v. State, 297 Ga. App. 847, 848 (678 SE2d 539) (2009). Clark never testified that he felt any object in or around Cleveland’s shoes or that the shoes were of a material or thickness that would have prevented him from detecting a weapon during a pat-down search; thus, the State provided no evidence to justify requiring Cleveland to remove his shoes. Compare Boyd, 300 Ga. App. at 458 (1) (detaining defendant while waiting for a drug dog to perform a sniff test on his shoes supported by reasonable suspicion of further criminal activity where officers were aware defendant was on probation for drug offense; defendant resisted efforts to search below his knees or to look in his shoes; officer testified that he could not feel through the shoe material to determine if anything was inside; and earlier search located a weapon on defendant’s person); Collins v. State, 281 Ga. App. 240, 241 (1) (636 SE2d 32) (2006) (officer’s request that defendant remove shoes following pat-down justified by fact that defendant was in violation of bond, giving officers probable cause to arrest him and search him incident to arrest). Accordingly, we conclude that the trial court correctly found that the search of Cleveland’s shoes was not justified under the facts as presented by the State.

Although in certain instances, when faced with threatening conduct an officer may make an immediate intrusive search to investigate or eliminate a threat to his safety, this was not such a case. The State presented no evidence indicating that Cleveland’s actions amounted to threatening or obstructive conduct. Compare, e.g., Thomas v. State, 231 Ga. App. 173, 174 (498 SE2d 760) (1998) (where as defendant stepped out of car, he kept placing his hand in his pocket and refused to move it, officer justified in forcibly removing defendant’s hand and reaching into pocket to search for a weapon); Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991) (more intrusive search justified where defendant frustrated officer’s attempts at pat-down by turning his body away to prevent officer from touching the outside of his pocket).

Although the State also argues that the cocaine was not discovered as a result of asking Cleveland to remove his shoes, but rather it dropped from his hand, the prosecution failed to raise this argument below, and, in fact, conceded in its briefing to the trial court that the pat-down search and asking Cleveland to remove his shoes “led to [Cleveland] voluntarily throwing [the] drugs.” An argument raised for the first time on appeal in connection with a motion to suppress is not reviewable. Harper v. State, 285 Ga. App. 261, 266 (2) (645 SE2d 741) (2007).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

On Motion for Reconsideration.

In its motion for reconsideration, the State contests our conclusion that it failed to argue below that the drug evidence was admissible because Cleveland dropped them from his hand following the illegal search of his shoes. In support of its motion, the State points to portions of defense briefs and argument anticipating that the State might raise such an issue. Although the State urges us to conclude from the context of these arguments, that “it is clear that the State’s representative was offering to respond to the abandonment issue,” it is equally clear that the State never argued the issue. In fact, the State does not point to any affirmative action by the prosecution presenting this issue to the trial court other than an offhand comment in the State’s brief in connection with its argument that the pat-down search of Cleveland was legal. Without argument or citation on the issue of abandonment, the State merely asserts that “[i]t should be noted, however, that the Defendant did throw the drugs at a point where he was not being touched.”

Thus, we reiterate our conclusion that the State failed to frame the issue for the trial court, and the State certainly failed to obtain a ruling on it. But even if the defense arguments and the State’s isolated comment in a brief could be considered sufficient to have presented the issue for the trial court’s consideration, the record evidence is insufficient to support the State’s position. The State has the burden on a motion to suppress to prove that the search was lawful and the evidence legally obtained. See OCGA § 17-5-30 (b); In the Interest of J. B., 314 Ga. App. 678, 680 (1) (725 SE2d 810) (2012); Walker v. State, 299 Ga. App. 788 (683 SE2d 867) (2009). Here, it cannot be determined whether or not Cleveland’s action in dropping the drugs was sufficiently connected to the illegal search of his shoes to render the drugs “fruit of the poisonous tree.” See Baker v. State, 277 Ga. App. 520, 523 (2) (627 SE2d 145) (2006). The only evidence offered by the State on this point was hearsay testimony from Deputy Clark that Deputy Hollis told him Cleveland had dropped something and stepped on it while he was replacing his right shoe following the illegal search. The State concedes that the drugs were dropped after Cleveland was forced to remove his shoes, although it argues, without further factual support, that the abandonment of the drugs was not caused by the shoe search. Accordingly, the State failed to carry its burden to establish that the seizure of the drugs was lawful, and the trial court’s ruling must be affirmed.

Decided October 5, 2012

Reconsideration denied December ll, 2012.

Scott L. Ballard, District Attorney, Jeremy M. Hayes, Robert W. Smith, Jr., Assistant District Attorneys, for appellant.

Joyce A. Bussey, Monica N. Hamlett, for appellee.

Motion for reconsideration denied.

       The trial court found that Cleveland did not contest the constitutionality of Clark’s asking the driver’s consent to search and thus the court did not reach that issue below. Accordingly, we do not address the issue on appeal.


author: DOYLE, Presiding Judge.

text:
    A12A1376.
    McMEANS v. DEPARTMENT OF TRANSPORTATION.
    (734 SE2d 412)
   DOYLE, Presiding Judge.

Brian K. McMeans appeals the trial court’s order striking his first amendment to his answer responding to a petition for condemnation of real property filed by the Georgia Department of Transportation (“DOT”). McMeans contends that the trial court erred by ruling that his amendment improperly sought to assert a claim for damages arising from a business loss. We agree and reverse.

The record shows that on October 27, 2010, the DOT filed a petition for condemnation of certain property owned by McMeans, and the petition named as defendants McMeans, McMeans Leasing, Inc. (“MLI”), and other parties. On November 12, 2010, McMeans filed an answer admitting “that he is the owner of property loosely described in” the petition and alleging damages of at least $1.3 million.

On December 10, 2010, MLI filed a pleading entitled “Amendment to Answer filed November 12, 2010,” which purported to amend the answer filed by McMeans “to provide that said Answer was for [MLI], a corporation solely owned by Brian K. McMeans.” That pleading alleged that McMeans was the owner of the property, MLI was a leasehold tenant, and MLI would sustain damages for business losses arising from its removal from the property.

Also on December 10, 2010, McMeans filed a pleading entitled “Answer of Brian K. McMeans.” In that pleading, McMeans alleged damages of at least $1.3 million as a result of the lost uses to which he had put the property, and he alleged that the condemnation would cause an interruption in his business income, a loss of business, and damage to his business in addition to the value of the real estate taken.

On February 8, 2011, McMeans filed his “First Amendment to Answer of Brian K. McMeans,” purporting to amend his December 10 answer and add a separate claim for business loss. On March 10, 2011, the DOT filed a motion to strike MLI’s December 10 Amendment to Answer (substituting itself in the first answer filed by McMeans) and McMeans’s February 8 First Amendment to Answer (explicitly adding the business loss claim). After a hearing, the trial court granted the motion and struck both pleadings. MLI filed a direct appeal, which was dismissed on jurisdictional grounds because it did not appeal from a final judgment, and McMeans applied to this Court for interlocutory review, which was granted in this case.

McMeans contends that the trial court erred by striking his First Amendment to Answer on the ground that it improperly sought to include a business loss claim when the business loss was MLI’s, a separate entity.

When bringing a condemnation proceeding under OCGA § 32-3-1 et seq., the condemnor is required to file a petition and declaration of taking, which is self-executing in nature. A condemnee, however, may file within 30 days of service either a petition challenging as improper the declaration or may file within 30 days of service a notice of appeal challenging the amount of compensation offered by the condemnor.

As an initial matter we note that the pleadings filed by the defendants were styled as answers and not notices of appeal. But the DOT does not challenge their function as notices of appeal for purposes of the condemnation statute, the trial court treated them as such, and the pleading nomenclature is not at issue in this appeal.

The rule governing business losses is as follows:

Post-taking business losses can be recovered as a separate element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business. In either event, business losses are recoverable as a separate item only if the property is “unique” and the loss is not remote or speculative.

McMeans argues that, as the alleged owner of the business operating on the property owned by him that will be taken, he is entitled to assert a business loss, and the record shows that his December 10, 2010 answer, which was not the subject of the DOT’s motion to strike and which was not stricken, did in fact allege business losses. So, as a matter of procedure, McMeans already has pleaded a claim for business loss which remains pending at this time.

Nevertheless, in response, relying in large part on Bill Ledford Motors v. Dept. of Transp., and Lil Champ Food Stores v. Dept. of Transp., the DOT argues that McMeans, as the fee owner, “should not be allowed to assert a claim for business loss damages for the business on the subject property owned and operated by a separate party,” MLI. In those cases, this Court held that business losses are distinct elements of damages pleaded separately from regular, real property loss. But neither case addressed a scenario such as this one where the property owner is also alleged to be the owner of the business suffering an alleged loss. DOT’s argument ignores the fact that in this case McMeans is not a landlord merely collecting rent; McMeans also owns and operates the business on his property.

Further, this Court has narrowly interpreted Bill Ledford Motors and Lil Champ Food Stores and clarified that the statutory scheme establishing the pleading procedure for condemnation actions “does not impose upon a party seeking business loss damages any requirement to specifically and separately set forth such a claim in the notice of appeal.” As the Court explained,

there is no prerequisite that a superior court find a specific and separate plea for business loss damages in a party’s notice of appeal before causing an issue to be made and tried by a jury regarding such damages; ... a superior court is authorized to enter an order giving directions on a trial for business loss damages, even where there is no specific and separate claim for such damages in the notice of appeal; and ... at the jury trial thereafter, the party seeking business loss damages may present evidence concerning its interest taken or other evidence of just and adequate compensation.*

Therefore, to the extent that the trial court ruled that McMeans cannot plead a business loss based on his failure to include it earlier, this was error. Likewise, to the extent the court ruled that McMeans cannot plead a loss from the business he owns and operates on the condemned property, it also erred. McMeans’s earlier, unstricken answer alleged that he had put the property to special uses and that he would sustain a business loss from its condemnation. The stricken answer merely elaborated that McMeans owns a business on the property, that he enjoyed the profits therefrom, and that the condemnation would destroy the business. This is sufficient to allege a provable legal claim, and striking the subsequent answer on the ground that the claim fails as a matter of law was premature. Accordingly, the trial court abused its discretion by striking McMeans’s First Amendment to Answer.

Decided November 16, 2012

Reconsideration denied December 11, 2012

Albert B. Wallace, for appellant.

Samuel S. Olens, Attorney General, Power, Jaugstetter & Futch, Warren R. Power, for appellee.

Judgment reversed.

Andrews and Boggs, JJ., concur.

       A related appeal brought by McMeans Leasing, Inc., was dismissed for lack of jurisdiction.

       McMeans also appears to argue that he was not served properly, but the record prepared at his direction from his notice of appeal does not contain returns of service or other evidence showing how or when he was served. Accordingly, any arguments based on improper service fail because “[wjhen a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” (Punctuation omitted.) Baughan v. Alaoui, 240 Ga. App. 661, 663 (1) (524 SE2d 536) (1999).

       This document only appears in the record as an exhibit to the DOT’S motion to strike. But it is undisputed that it was filed, and this appeal does not turn on its proper inclusion in the appellate record.

       (Footnote omitted.) Eagle’s Landing Christian Church v. Henry County, 308 Ga. App. 416, 417 (708 SE2d 23) (2011).

       See, e.g., id. at 417 (an answer can be considered a notice of appeal under OCGA § 32-3-7 when it expresses dissatisfaction with the compensation proposed for the taking).

       (Emphasis supplied.) Dept. of Transp. v. Acree Oil Co., 266 Ga. 336 (1) (467 SE2d 319) (1996).

       225 Ga. App. 548 (484 SE2d 510) (1997).

       230 Ga. App. 715 (498 SE2d 94) (1998).

        See Lil Champ Food Stores, 230 Ga. App. at 718 (4); Bill Ledford Motors, 225 Ga. App. at 549.

       (Emphasis in original.) Dept. of Transp. v. Camvic Corp., 284 Ga. App. 321, 327 (2) (c) (ii) (644 SE2d 171) (2007).

       Id. at 325 (2) (b).

       We reach this conclusion in the narrow context of this litigation, i.e., the striking of a pleading. It may he that McMeans cannot meet his burden at the summary judgment or trial stage, but at this stage of the process, we merely rule that McMeans should be allowed to develop a case as to his business loss (as opposed to his real property loss) to the extent allowable by law. The viability of McMeans’s business loss claim would depend on evidence showing his ownership of the business, the total taking of the business, that the property is unique, and that his claims are not remote or speculative. See Acree Oil Co., 266 Ga. at 336 (1). See also Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (2) (387 SE2d 877) (1990) (“evidence of any business losses which result in a diminution of the value of a condemnee’s business is admissible”).

       See Lil Champ Food Stores, 230 Ga. App. at 718 (4).

       See Acree Oil Co., 266 Ga. at 336 (1).

        See Morgan v. White, 121 Ga. App. 794, 795 (2) (175 SE2d 878) (1970) (“a motion to strike the answer should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense”). See also Rhyne v. Garfield, 236 Ga. 694, 695 (225 SE2d 43) (1976) (“The standard to be applied to a motion to strike [a claim in a pleading] is the same as that on a motion for failure to state a claim upon which relief can be granted.”).

       See Cameron v. Miles, 311 Ga. App. 753, 756 (1) (716 SE2d 831) (2011) (reversing grant of motion to strike because trial court’s order was predicated on legal error); Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816 (640 SE2d 343) (2006) (ruling on motion to strike reviewed for abuse of discretion).


text:
    A12A0797.
    PUBLIC SCHOOL EMPLOYEES’ RETIREMENT SYSTEM OF GEORGIA v. AYERS.
    (734 SE2d 461)
   BARNES, Presiding Judge.

Public School Employees’ Retirement System of Georgia (“the Retirement System”) appeals the trial court’s final order in this case in which it entered a $5,000 judgment for Leroy Ayers. On appeal the Retirement System contends that the trial court erred in denying its motion for summary judgment and motion for a directed verdict. Following our review, we reverse.

The facts show that Ayers’ mother, Esther, retired from her job with the Rome City School System in July 1982. Under her retirement plan, Esther had the following three choices with respect to her retirement benefits:

MAXIMUM MONTHLY BENEFIT: The largest amount possible. Upon my death, the benefit for the month of my death will be paid to my designated living beneficiary, or otherwise to my estate. If I have, at the time of my death received less in benefits than I have in accumulated contributions, the difference will also be paid in the above manner.
OPTION “A”: After my death, a specified portion of my monthly benefit will be paid to my primary beneficiary, if living, for the remainder of his or her life.
OPTION “B”: I am guaranteed a minimum number of monthly payments. Should I die before receiving this number of payments, the balance of the guaranteed payments will be paid to my designated beneficiary.

(Emphasis supplied.) Depending on her selection, Esther would receive varying amounts of monthly retirement benefits. The Monthly Benefits options entitled Esther to the largest benefit of $188.50 monthly during her lifetime, but after her death “no further monthly payments [would] be made to anyone.” Option A provided for a smaller monthly benefit paid at retirement, and a benefit to the “primary beneficiary (if living).” Its provisions entitled Esther to elect that her primary beneficiary receive either the “same” or “half” of the benefit she received. Specifically:

a. Should you wish your beneficiary to receive the same benefit, you would receive $169.08per month forthe remainder of your life, after which your beneficiary (if living) will receive $169.08 per month for life.
b. Should you wish your beneficiary to receive half the benefit you receive, you will receive $178.26 monthly for the remainder of your life, after which your beneficiary (if living) will receive $89.13 per month for life.

Option B provided for either 60, 120, or 180 monthly payments of $185.99, $178.30, or $165.97, and that, should Esther die before receiving the selected number of payments, her “named living beneficiary will receive the remaining monthly payments.” (Emphasis supplied.)

Esther selected provision “a” of Option A, and listed her husband Grover as her “First” beneficiary. She also listed Ayers and his brother as her “Second” beneficiaries. The record includes a letter acknowledging Esther’s selection and explaining that, based on her selection of Option A as her benefit plan, she would receive $184.88 per month for her lifetime and that after her death, her “primary beneficiary, Grover Ayers, will receive 100% of your retirement allowance for his lifetime.” Grover died on May 5, 1991, and Ayers’ brother died on November 1, 1995. Esther later died on March 31, 1999. The Retirement System automatically deposited retirement benefits into her bank account in April, May, and June 1999 in the total amount of $1,064.91. Ayers withdrew these funds from the account.

The Retirement System subsequently sued Ayers to recover the amounts erroneously deposited into Esther’s bank account after her death. Ayers filed an answer and counterclaim, which he later amended, alleging, among other things, that he was entitled to the money as Esther’s sole surviving beneficiary and that the Retirement System had breached the terms of Esther’s retirement plan by refusing to pay continuing benefits to him. The Retirement System moved for summary judgment on Ayers’ counterclaims, which the trial court denied after a hearing. The case was tried by a jury, and at the conclusion of evidence, the Retirement System moved for a directed verdict, which the trial court denied. The jury entered a verdict for Ayers in the amount of $5,000 for damages on his breach of contract counterclaim. The Retirement System filed for discretionary review of the final order, which we granted, and this appeal ensued.

1. The Retirement System contends that the trial court erred in denying its motion for summary judgment and for a directed verdict. We agree.

An appellate court, when

determining whether the trial court erred by denying appellant[’s] motions for a directed verdict . . . must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Citation, punctuation and emphasis omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (1) (392 SE2d 268) (1990).

The retirement plan at issue was statutorily created, and once Esther made contributions toward her retirement, the plan became part of her employment contract. See OCGA § 47-4-1 et seq. (establishing the Public School Employees’ Retirement System); Plymel v. Teachers Retirement System, 281 Ga. 409, 412 (4) (637 SE2d 379) (2006) (“statute or ordinance establishing a retirement plan for government employees becomes a part of an employee’s contract of employment if the employee contributes ... toward the benefits he is to receive, and . . . performs services while the law is in effect”) (punctuation omitted). Thus, this litigation involves the interpretation of a contract, and where the language of a contract is clear, unambiguous, and capable of only one reasonable interpretation, contract construction is a matter of law for the trial court. Homer v. Bd. of Regents &c. of Ga., 272 Ga. App. 683, 686 (613 SE2d 205) (2005); Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 249 (2) (669 SE2d 414) (2008) (no contractual ambiguity exists “where, examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation”). Moreover, in actions for breach of contract, damages are given as compensation for the breach. OCGA § 13-6-1. Thus, the “[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2.

On her retirement application, Esther named Grover as her “First” beneficiary, and the benefits option she selected provided for payment of benefits upon her death only to her primary beneficiary, if living. See also OCGA §§ 47-4-102 (c) (following death of retiree, Option A allowed for payment of retirement benefits to retiree’s “surviving joint annuitant”); 47-4-2 (12) (defining “joint annuitant” as “the person designated to receive benefits payable on the death of a member” under Option A). After Grover died, Esther had no living primary beneficiary authorized to receive retirement benefits upon her death, under the designation in Option A, and thus, contrary to Ayers’ assertion otherwise, his designation as “Second” beneficiary did not authorize him to succeed Grover as the primary beneficiary under that option. Unlike Option B, which provided that any remaining monthly benefits would be paid to the living “designated beneficiary,” Option A clearly provided that the benefits would be paid only to the “primary beneficiary (if living).”

The word “primary,” as defined, means: “First.... First in order of time, or development, or in intention.” Black’s Law Dictionary, 6th Ed., at 1190. Thus, it stands to reason that under the language in Option A, Grover — and no one else — stood to receive Esther’s retirement benefits. Morever, Option A clearly expressed that this entitlement ended upon Grover’s death, as he was the primary beneficiary. Accordingly, when Grover died, neither he nor his estate could recover the payments. Ayers, as a secondary beneficiary, had no claim to the funds under Option A, and thus, no contractual relationship existed between him and the Retirement System such that he could recover for damages from that breach. See OCGA § 47-4-104 (d) (death benefits are “payable as provided for by the option elected”).

Decided November 19, 2012

Reconsideration denied December 12, 2012

Stokes, Lazarus & Carmichael, Thomas V.Keough, for appellant.

Jerome Lee, for appellee.

Under these circumstances, the trial court erred in denying the Retirement Systems’ motion for directed verdict. Accordingly, we remand the case to the trial court for entry of judgment in favor of the Retirement System on its claim.

2. Although the Retirement System also enumerated as error the denial of its motion for summary judgment

if the denial of summary judgment prior to trial will affect the proceedings below after appeal and if it is enumerated as error, OCGA § 5-6-34 (d) requires that we address it. If the verdict is reversed and a new trial is ordered, the summary judgment ruling may affect the proceedings below. But if we reverse the judgment because appellant was entitled to a directed verdict, as in this case, . .. then the case is over, so the earlier denial of summary judgment to appellant will not affect the proceedings below, and is therefore moot.

(Emphasis omitted.) Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994).

Judgment reversed.

Adams and McFadden, JJ., concur.

       Under OCGA § 5-6-35 (a) (6), “[a]ppeals in all actions for damages in which the judgment is $10,000.00 or less” must proceed by discretionary application. We granted the application in this case, resulting in this appeal.

       The Retirement System’s claim for “money had and received” alleged that it was entitled to the principal sum of $1,064.91 plus prejudgment interest at the rate of 7 percent per annum and post-judgment interest on the principal sum pursuant to OCGA § 7-4-12.


author: PHIPPS, Presiding Judge.

text:
    A12A0965.
    HOLDER v. THE STATE.
    (736 SE2d 449)
   PHIPPS, Presiding Judge.

Walter James Holder was convicted of burglary, four counts of kidnapping, four counts of armed robbery, and possession of a firearm during the commission of a felony. On appeal, Holder contends that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in its charge to the jury; and (3) he received ineffective assistance of trial counsel. Because we find that the evidence was insufficient to support the conviction on one of the kidnapping counts, we reverse that conviction. We affirm the convictions on the remaining counts.

1. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that for about two weeks before March 28, 2005, Holder had discussions with Antoine Strickland and Douglas Taylor about robbing Justin Patterson; it was rumored that Patterson had been showing off large amounts of money. Strickland and Taylor lived together. On March 28, 2005, Strickland picked up Holder and brought him back to his and Taylor’s residence. From there, Strickland called Patterson and arranged a meeting at a gas station to conduct a marijuana sale. But the true purpose of the meeting was to determine where Patterson lived.

Holder (by himself) drove Taylor’s vehicle and met Patterson and Eric Gillespie at the gas station. Patterson walked over to the vehicle Holder drove, and conducted the drug transaction; afterwards, Patterson and Gillespie went back to Gillespie’s residence, and Holder followed them there, went inside with them, and smoked marijuana with them. Ten minutes later, Holder left and went back and indicated to Taylor that he had learned where Patterson would be that night. Holder, Strickland, Taylor, and a fourth individual went shopping for bandanas and duct tape; they already had a pistol, and, while they were out they also acquired a shotgun.

After Holder had left Gillespie’s residence, the following individuals remained at the residence: Gillespie, Patterson, Roneisa Brown (Gillespie’s girlfriend), and Stephanie Johnson (Patterson’s girlfriend). Brown had fallen asleep in a bedroom; Patterson and Johnson were in another bedroom. Gillespie, who had gone to bed, got back up, and while he was in the living room, he noticed someone walk by a window. The door was then kicked open, and a masked assailant put a shotgun to Gillespie’s head.

Four masked assailants entered the residence; they wore bandanas over their faces. Gillespie was made to sit down on a chair in the living room; his head was duct-taped, and his hands were taped together. A gun was held to his neck at all times. An assailant armed with a gun forced Brown out of the bedroom where she had been sleeping and to the living room, where he began taping Brown’s face. Two armed assailants moved Patterson from a bedroom to the living room; they duct-taped his hands, feet, and head. The assailants moved Johnson from the bedroom to the living room, where they duct-taped her hands, legs, and eyes.

Once all of the victims were restrained in the living room, the assailants ransacked the house. They took money and/or property from all four victims. They took Brown’s purse and money, but later returned them to her.

Patterson testified that one of the assailants wore a distinctive shirt that looked like the one Holder was wearing when Patterson had met him (Holder) at the gas station earlier that evening. The next day a law enforcement officer recovered a similar shirt during a search of Strickland’s residence (which was where the assailants had gone after the crimes).

Strickland and Taylor testified that Holder had entered the residence and had participated in the planning and commission of the crimes. Holder’s mother testified, however, that on March 28, 2005, Holder resided at her home, and he did not leave the house that evening.

(a) Holder contends that there was insufficient evidence of asportation to support the four kidnapping convictions. Citing Garza v. State, he argues that the movement of the victims did not establish asportation.

Garza was decided after the crimes were committed in this case and after Holder was convicted, but while the case was pending appeal. Thus, according to the “pipeline” rule, Garza applies to this case.

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” To support a kidnapping conviction, the state must show that an unlawful movement, or asportation, of the victim has occurred against his or her will.

Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met: “(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.”* However, in cases where the Garza standard is applicable, the Supreme Court of Georgia has not required the satisfaction of all four factors to establish that asportation occurred.

Under Garza,11

even when the movement is of minimal duration and occurs before or during the commission of other offenses, asportation has been satisfied where the movement is not an inherent part of any other offense, and the movement creates an additional danger to the victims by enhancing the control of the perpetrators.

As to the kidnapping counts concerning Patterson, Johnson, and Brown, those individuals were removed from bedrooms of the residence and taken to the living room where they were restrained with duct tape. The movement of those individuals from bedrooms to the living room was not an inherent part of the crimes of burglary, armed robbery, or possession of a firearm during the commission of a felony, because moving them was not necessary to effect the completion of any of those crimes. Also, moving those individuals from one room to another placed them in greater danger because the asssailants’ control over them was enhanced.

Accordingly, contrary to Holder’s contention, the evidence was sufficient to establish the asportation element of the kidnapping convictions of Patterson, Johnson, and Brown. Holder’s convictions for kidnapping those individuals are affirmed.

(b) Applying the four-factor Garza test to Holder’s conviction for kidnapping Gillespie, however, we find the evidence was insufficient to establish the asportation element.

The duration of the movement was minimal. Gillespie was in the living room of his residence when the assailants entered and made Gillespie sit down in the living room. The movement was incidental to the burglary and armed robbery crimes. In Garza, the Supreme Court of Georgia expressly rejected a previous standard under which movement “designed to better carry out the criminal activity” was sufficient to sustain a kidnapping conviction. Here, the movement of Gillespie into the chair was not a necessary element of the burglary or armed robbery crimes, but it allowed the assailants to exercise control during the conduct of the burglary and armed robberies, and therefore, was an inherent part of those crimes. Finally, the movement did not enhance significantly the risk Gillespie already faced as a victim of burglary and armed robbery. Therefore, the movement was not “in the nature of the evil the kidnapping statute was originally intended to address.” As the movement did not establish asportation under the Garza test, Holder’s conviction for kidnapping Gillespie is reversed.

(c) Holder contends that the evidence was insufficient to support the conviction for armed robbery of Brown because one of the assailants returned to Brown her purse and money. We disagree.

Aperson commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. Under the armed robbery statute, “the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion.” “It is not required that the property taken be permanently appropriated.”

In Bramblett v. State, the defendant kidnapped the victim and told her to drive her car to an automatic teller machine and to withdraw money for him. Nothing in the opinion suggests that the defendant ever actually touched the money; indeed the facts as recited indicate otherwise, because the robbery was foiled when the defendant left the vehicle for a short time and the victim drove away with her money. This court held that, even though the victim escaped with her money, the defendant had forced her to give him the money withdrawn from the automatic teller, and this constituted a taking. Here, Brown’s purse was taken forcibly, by use of a gun, while she was immobilized with duct tape. Complete dominion of her property was transferred from her to the robbers, which was sufficient asportation to meet the statutory criterion.

(d) Holder contends that the evidence was insufficient to support his convictions because the accomplice testimony of Strickland and Taylor was not sufficiently corroborated. We disagree.

A defendant may not be convicted of a felony solely on the testimony of an accomplice; the accomplice’s testimony “must be supported by [some] independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime and leading to the inference that he is guilty.” However, a defendant may be convicted on the testimony of an accomplice even though the only corroboration of the testimony is the testimony of another accomplice.

[T]he sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to [the] crime, even if it is circumstantial, it is legally sufficient. The corroboration need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged.

Strickland, one of the accomplices who entered the residence, testified that Holder entered the residence with him and participated in the crimes. Taylor testified that he did not enter the residence, but that Holder did, and that Holder participated in planning the crimes. According to Taylor, it was Holder who, after completing a drug transaction with Patterson, found out where Patterson would be staying that night in order to carry out the plan to rob Patterson. Patterson and Gillespie, who were victims of the crimes, identified Holder as the individual involved in the drug transaction with Patterson before the robbery, and who had followed them back to Gillespie’s residence and smoked marijuana with them. Patterson and Gillespie’s testimony thus corroborated Taylor’s testimony that the plan was for Holder to determine where Patterson lived.

Furthermore, Strickland and Taylor’s roommate placed Holder with Taylor, Strickland, and the other accomplices on the night of the crimes. Strickland’s testimony that he and his accomplices wore bandanas to cover their faces was corroborated by the testimony of Patterson and Johnson. And when law enforcement officers executed a search warrant at the residence where Strickland and Taylor resided, they recovered, among other things, bandanas that appeared to be new and a shirt bearing the design Patterson described on the shirts worn by Holder and one of the masked assailants.

Holder asserts that the credibility of Strickland and Taylor was highly at issue, and that Taylor’s testimony conflicted with the testimony of the victims. But “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” The evidence was sufficient to enable a rational trier of fact to find Holder guilty beyond a reasonable doubt of the crimes for which he was convicted (except for kidnapping Gillespie as discussed in Division 1 (b)).

2. Holder claims that the trial court committed several errors in its charge to the jury. But we see no basis for reversal.

(a) Holder contends that the trial court erred in charging the jury that the asportation element of the offense of kidnapping could be supported by evidence of only the slightest movement, rather than by evidence of the Garza factors. This was a correct statement of law at the time the crimes were committed and at the time of Holder’s trial, although it did not comport with Garza, which was decided after Holder was convicted.

Holder correctly asserts that the rule set forth in Garza must be applied retroactively to his case, thereby entitling him to a jury instruction consistent with that rule. We must therefore determine whether the court’s failure to charge the jury according to the Garza rule on asportation was harmless or whether it constituted reversible error. “Because this case concerns nonconstitutional error, we apply the highly probable test, and we ask whether it is highly probable that the error did not contribute to the judgment.”

Because, as explained in Division 1 (a), the evidence demonstrated that asportation, as set out in Garza, occurred as to Patterson, Johnson, and Brown, “it is highly probable that the error of the trial court in not instructing the jury to consider the asportation element of kidnapping using the Garza test did not contribute to the judgment of guilt.” Therefore, Holder has presented no ground for reversal on the kidnapping counts concerning those individuals. As we reversed the conviction for kidnapping Gillespie, we do not address Holder’s complaint about the jury instruction as to that conviction.

(b) Holder contends that the trial court erred in failing to instruct the jury that identity is an element of every crime that must be proven by the state beyond a reasonable doubt.

Jury charges must be “correct statements of the law and, as a whole, . . . not mislead a jury of ordinary intelligence. It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.”

Here, the trial court charged the jury, among other things, regarding alibi as a defense; that the presence of the defendant at the scene of the crime alleged or the defendant’s involvement in the alleged crime is an essential element of the crime set forth in the indictment; and that the burden of proof rests upon the state to prove such beyond a reasonable doubt.

The court also charged that the defendant is presumed innocent until proven guilty; that the burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt; that no person shall be convicted of any crime unless and until each element of the crime as charged is proved beyond a reasonable doubt; that there is no burden of proof upon the defendant whatsoever; that facts and circumstances that merely place upon the defendant a grave suspicion of the crimes charged are not sufficient to authorize a conviction of the defendant; that accomplice testimony alone is not sufficient to warrant a conviction; and that the testimony of one accomplice may be supported by the testimony of another accomplice. The charge as a whole instructed the jurors that they must find beyond a reasonable doubt that Holder committed the offenses charged in the indictment.

(c) Holder contends that the trial court erred by failing to include in its jury instructions on burglary and armed robbery a definition of the word “theft.”

However, Holder did not request a definition of “theft,” and “[i]n the absence of [a] request, the court’s failure to define the meaning of terms used in the charge is not ordinarily ground for reversal.” Furthermore, “the word ‘theft’ is not... a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another’s property to the taker’s use.”

Thus, it was unlikely that the jury was not able to understand the trial court’s charge that “[a] person commits the offense of burglary when without authority, that person enters any building or dwelling house of another or into any room or any part of it with the intent to commit a theft,” or the charge that “a person commits armed robbery when with intent to commit a theft that person takes property of another from the person or the immediate presence of another by use of an offensive weapon or by any replica, article or device having the appearance of such a weapon.” Accordingly, the trial court did not err by failing to define the term theft.

(d) Holder contends that the trial court erred by instructing the jury, in response to its question, that it could not consider the maximum possible sentence Strickland avoided by making a deal with the state to testify against Holder.

During jury deliberations, the jury sent a note to the court asking, “Is it possible for us to learn what Antoine Strickland’s sentence would have been before the deal?” The court responded, “You will remember my charge to you that you will not consider punishment in any shape, form or fashion.”

First, the maximum possible sentence for Strickland was not placed in evidence for the jury’s consideration. Second, trial counsel did not obj ect to the trial court’s response to the jury question, thereby waiving this issue for appeal.

3. Holder contends that he received ineffective assistance of trial counsel because counsel: (a) failed to object to the trial court’s omission of the definition of the word “theft” as part of the burglary and armed robbery charges; and (b) failed to cross-examine Strickland and Taylor about the maximum possible sentences they avoided by making a deal with the prosecution and testifying against him.

In order to prevail on... a claim of the ineffective assistance of counsel pursuant to Strickland v. Washington, [] a criminal defendant must demonstrate that his counsel’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different; on appeal, this [c]ourt is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but is to independently apply the legal principles to the facts.

“There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and we will affirm the trial court’s decision unless it is clearly erroneous.”

(a) Holder contends that his attorney erred by failing to object to the trial court’s failure to define the word “theft” as part of the burglary and armed robbery charges. We disagree.

The pattern jury instructions for armed robbery and burglary do not include the definition of theft. And, as discussed above, the word theft is not a technical word of art, but rather a word of general broad connotation; thus, it is unlikely the jury was not able to understand the use of the word theft in the charges given for burglary and armed robbery. The trial court’s charge was not erroneous for failing to define theft. Accordingly, Holder has failed to show that his trial counsel performed deficiently in failing to object on that basis.

(b) Holder contends that his attorney erred by failing to cross-examine Strickland and Taylor about the maximum possible sentences they avoided by making a deal with the prosecution and testifying against Holder.

The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel. Even though counsel is permitted to cross-examine thoroughly a testifying co-defendant about the terms of Ms plea agreement, it does not necessarily follow that counsel is ineffective for failing to do so.

As to Taylor, the jury was informed during the state’s direct examination of Taylor that he was offered immunity to testify. Defense counsel questioned Taylor on cross-examination, and solicited testimony from Taylor that, based on the immunity offer, the state said it would forego prosecuting Taylor. Holder essentially argues that he was prejudiced by his trial counsel’s failure to ask Taylor more probing questions. However,

decisions regarding whether and how to conduct cross-examinations and what evidence to introduce are matters of trial strategy and tactics and are within the exclusive province of counsel after consultation with the client. Such tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.

“As trial counsel obtained testimony from [Taylor] that he had substantial motivation to testify against [Holder], we cannot say that his failure to ask about specific effects of the plea deal was patently unreasonable.”

As to Strickland, the jury was made aware of the circumstances under which he had testified against Holder: after he pled guilty to charges and was sentenced for his involvement in the incident, and after he talked with the prosecutor and with his attorney when he had refused to answer questions at trial that would incriminate Holder. When the state called Strickland to testify, after answering a few preliminary questions —• identifying himself as an individual charged with the crimes committed in this case, confirming that he had entered a plea of guilty to the crimes, affirming that he had received a 20-year sentence, and affirming that he was not the only individual who had entered the residence — Strickland was asked who, besides himself, had participated in the commission of the crimes; he refused to answer that or any more questions.

The court excused the jury from the courtroom. Strickland’s attorney was called to advise Strickland. Thereafter, the jury was reseated and the state resumed its examination of Strickland. This time, Strickland implicated Holder in the commission of the crimes. On cross-examination, Strickland affirmed that he previously did not want to testify against Holder but had done so after having talked to the prosecutor and to his attorney during the court’s recess. Thus, the evidence revealed to the jury Strickland’s motivation to testify against Holder, and we cannot say that trial counsel’s failure to ask Strickland about specific effects of any plea deal was patently unreasonable.

Decided November 27, 2012

Reconsideration denied December 12, 2012

Harvey S. Wasserman, for appellant.

Robert W. Lavender, District Attorney, Leon Jourolmon, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 16-7-1 (a) (We apply the 2010 version of OCGA § 16-7-1, in effect at the time of the crime; OCGA § 16-7-1 was amended, “effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.. . .”; Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1).

       OCGA § 16-5-40 (a).

       OCGA § 16-8-41 (a).

       OCGA § 16-11-106 (b).

        Jackson v. Virginia, 443 U. S. 307,319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (citation and emphasis omitted).

       A fifth individual joined the group at some point.

       284 Ga. 696 (670 SE2d 73) (2008).

        Hammond, v. State, 289 Ga. 142, 143-144 (710 SE2d 124) (2011) (following Garza, the legislature amended the kidnapping provision in OCGA § 16-5-40 to clarify the asportation requirement, but the amendment applies only to crimes committed on or after July 1, 2009); Patterson v. State, 312 Ga. App. 793, 795 (1) (720 SE2d 278) (2011).

       OCGA § 16-5-40 (a).

        Ellis v. State, 282 Ga. App. 17, 20 (1) (637 SE2d 729) (2006).

        Garza, supra at 702 (1).

        Hammond, supra at 144 (2).

        Onumah v. State, 313 Ga. App. 269, 270 (2) (721 SE2d 115) (2011) (citation and punctuation omitted).

       See Patterson, supra at 794-795 (1) (evidence was sufficient to establish asportation element of kidnapping convictions where moving victims from bedroom to kitchen was not an inherent part of the crimes because such movement was not necessary to effect the completion of burglary, armed robbery or aggravated assault; also, by moving them from their rooms, they were placed in greater danger because the defendant and his accomplice’s control over them was enhanced); Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (element of asportation was established where, although movement of victims from one room to another within a duplex was of minimal duration, such movement occurred after the offense of armed robbery had been completed and thus, was not an inherent part of the armed robbery; moreover, the movement created an additional danger to the victims by enhancing the control of the gunmen over them); Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (element of asportation was established where, although movement of victim from one room to another within a hotel room was of minimal duration, it created an additional danger to victim by enhancing defendant’s control over her; moreover, aggravated assault was completed when defendant pointed gun at victim and grabbed her, rendering his subsequent movement of her into the bathroom independent of that crime).

        Patterson, supra; Henderson, supra; Williams, supra.

       See Kirt v. State, 309 Ga. App. 227 (709 SE2d 840) (2011) (pushing girl back into bathroom stall of which she was coming out insufficient evidence of asportation); Goolsby v. State, 311 Ga. App. 650, 652-653 (1) (b) (718 SE2d 9) (2011) (forcing victim back a few steps to her couch insufficient evidence of asportation).

        Garza at 701 (1).

       See Goolsby, supra; Williams v. State, 304 Ga. App. 787, 790 (1) (697 SE2d 911) (2010).

       See Goolsby, supra at 654 (1) (b); Williams, supra, 304 Ga. App. at 790 (1); Grimes v. State, 297 Ga. App. 720, 722 (678 SE2d 167) (2009).

        Garza, supra at 702 (1).

       OCGA § 16-8-41 (a).

        Sanders v. State, 242 Ga. App. 487, 491-492 (3) (530 SE2d 203) (2000) (citation and punctuation omitted) (evidence of armed robbery sufficient where victim testified that when defendant pointed a gun at her, she froze and defendant ran out of the store dropping cigarettes he had taken).

        Bramblett v. State, 191 Ga. App. 238 (1) (381 SE2d 530) (1989) (citation and punctuation omitted); Peoples v. State, 184 Ga. App. 439 (1) (361 SE2d 848) (1987).

       Supra.

       Id. at 238-239.

       Id. at 239 (1).

       See Sanders, supra; Bramblett, supra.

       See Goldsby v. State, 273 Ga. App. 523, 530 (7) (615 SE2d 592) (2005) (punctuation and footnote omitted).

        Guyton v. State, 281 Ga. 789, 791 (1) (642 SE2d 67) (2007).

        Millsap v. State, 275 Ga. App. 732, 734 (1) (621 SE2d 837) (2005) (punctuation and footnotes omitted).

       See Handley v. State, 289 Ga. 786-787 (1) (716 SE2d 176) (2011) (citation and punctuation omitted).

       See id.

        Hammond, supra at 143-144 (1).

       Division 1 (a), supra.

       See Hammond, supra at 144 (2); Sipplen v. State, 312 Ga. App. 342, 345 (2) (718 SE2d 571) (2011).

        Hammond, supra; Sipplen, supra.

        Sipplen, supra (citation and punctuation omitted).

       Supra.

       Hammond, supra at 145 (2); Sipplen, supra.

        Hammond, supra; Sipplen, supra.

        Williamson v. State, 308 Ga. App. 473, 478 (2) (708 SE2d 57) (2011) (citations and punctuation omitted).

        See Sullivan v. State, 242 Ga. App. 613, 615 (4) (530 SE2d 521) (2000) (trial court’s failure to give written charge that state must prove identity beyond a reasonable doubt not error because the trial court instructed the jury regarding the general principle of law that the jurors must find beyond a reasonable doubt that the defendant committed the offenses charged in the indictment).

        Black v. State, 167 Ga. App. 204, 207 (6) (305 SE2d 837) (1983) (citation and punctuation omitted).

        Sharp v. State, 192 Ga. App. 353, 354-355 (2) (b) (385 SE2d 23) (1989) (citation and punctuation omitted).

       See Sharp, supra at 355 (2) (b).

        Adcock v. State, 279 Ga. App. 473, 474 (3) (631 SE2d 494) (2006); Quintana-Camporredondo v. State, 275 Ga. App. 859, 860 (1) (622 SE2d 66) (2005) (generally, an appellant’s failure to object to the trial court’s reply to the jury’s questions waives any claim of error relating thereto).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012) (citation omitted).

        Daugherty v. State, 291 Ga. App. 541, 544 (3) (662 SE2d 318) (2008) (punctuation and footnote omitted).

        Bonner v. State, 308 Ga. App. 827, 828 (1) (a) (709 SE2d 358) (2011) (punctuation and footnotes omitted).

        Serrate v. State, 268 Ga. App. 276, 278 (2) (c) (601 SE2d 766) (2004) (punctuation and footnotes omitted).

        Daugherty, supra at 544 (3) (a) (footnote omitted); Serrate, supra.

       Daugherty, supra at 544 (3); Serrate, supra.


text:
    A12A0974, A12A0975.
    ANKERICH et al. v. SAVKO; and vice versa.
    (734 SE2d 805)
   BARNES, Presiding Judge.

Melanie Savko sued Kay Ankerich, a Hart County deputy sheriff, and Mike Cleveland, Sheriff of Hart County (hereinafter collectively “Ankerich”), in their official capacities to recover damages for injuries she sustained when she was involved in an automobile collision at an intersection where Ankerich was directing traffic. She also served State Farm Mutual Automobile Insurance Company and Nationwide Mutual Fire Insurance Company with the complaint as her uninsured/underinsured motorist carriers.

In Case No. A12A0974, after the grant of Ankerich’s application for interlocutory review, she appeals the trial court’s denial of her motion for summary judgment, and in Case No. A12A0975, Savko cross-appeals the denial of her partial motions for summary judgment against Ankerich, State Farm, and Nationwide. The primary issue on appeal is whether Ankerich was “using” her patrol car such that the county’s purchase of automobile liability insurance constituted a waiver of the county’s sovereign immunity and by extension, Ankerich’s official immunity. Upon our review, and holding that the trial court erred in finding that the patrol vehicle was in “use” as contemplated by OCGA § 33-24-51 (b), we reverse the trial court’s denial of Ankerich’s motion for summary judgment as to the issue of the waiver of sovereign immunity in Case No. A12A0974, and affirm the trial court’s denial of Savko’s motions for summary judgment in Case No. A12A0975.

Summary judgment is appropriate if the pleadings and the undisputed evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, the appellate courts conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party. Alston & Bird v. Mellon Ventures II, 307 Ga. App. 640 (706 SE2d 652) (2010).

So viewed, the record shows that Ankerich was directing traffic at an intersection near North Hart Elementary School in Hart County at approximately 7:30 a.m. She parked her patrol car on the side of Highway 77 with the blue lights activated. There were flashing lights in the front and rear of the patrol car. Ankerich stood in the middle of the intersection approximately 18 feet from her patrol car, wearing reflective gloves and a reflective vest. Her purpose was to direct northbound and southbound traffic on Highway 77 so that school buses could proceed through the intersection of Kelly Road and Highway 77 to the elementary school. At one point, she signaled the school bus driver to proceed through the intersection. Ankerich did not see that Savko’s car was also approaching the intersection on Highway 77, and Savko’s vehicle collided with the school bus. Savko brought suit against Ankerich and Sheriff Cleveland, under the respondeat superior doctrine, alleging, among other things, that Ankerich was negligent in the performance of her duties. State Farm and Nationwide were served with a copy of the complaint as the uninsured/underinsured motorist carriers.

Savko moved for partial summary judgment against Ankerich on the issue of whether sovereign immunity was waived to the extent of the county’s liability insurance because she was injured as a result of Ankerich’s use of the patrol vehicle. She also moved for summary judgment against Nationwide and State Farm, arguing that she had uninsured/underinsured motorist coverage in effect and available as a result of injuries caused by Ankerich’s use of an underinsured motor vehicle. In her motion against Nationwide, Savko further maintained that she was entitled to summary judgment on whether her uninsured motorist coverage policy limits were equal to her liability coverage limit of $50,000, because she had not designated on her policy either a rejection of coverage or an election of a lesser or greater amount of coverage. Ankerich later filed a responsive motion for summary judgment on the issue of whether there had been a waiver of sovereign immunity.

The trial court denied both motions for summary judgment on the immunity issue. It held that sovereign immunity was dependent on whether Ankerich was “using” the patrol car when Savko was injured, and that the issue of “use” was for a jury to determine. The trial court also denied Savko’s motions for partial summary judgment against State Farm and Nationwide upon finding that the results were dependent on the same issue of the “ ‘use’ of the patrol vehicle as a covered vehicle.” Further, the trial court denied summary judgment to Savko against Nationwide on the issue of the amount of her uninsured/underinsured coverage. Finally, the trial court found that there was a question as to whether Savko was covered under the Nationwide policy. The trial court certified for immediate review the denial of the motions for summary judgment, and we granted Ankerich’s application for interlocutory review. This appeal and cross-appeal ensued.

Case No. A12A0974

1. Ankerich contends that the trial court erred in denying her motion for summary judgment, arguing that because she was not “using” her patrol car at the time of the accident, the county did not waive its immunity by purchasing motor vehicle liability insurance pursuant to OCGA § 33-24-51.

Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity. A lawsuit against a [deputy] sheriff in [her] official capacity is considered a suit against the county, and the [deputy] sheriff is entitled to assert any defense or immunity that the county could assert, including sovereign immunity. The question, then, is whether the sovereign immunity of [Hart] County has been waived with respect to the claim asserted against [Ankerich] in this case.

(Citations omitted.) Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011).

Ankerich contends that Hart County did not waive its sovereign immunity under OCGA § 33-24-51 (a), which provides in relevant part:

A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county. . . .

(Emphasis supplied.) OCGA § 36-92-2 (b) only grants a waiver of sovereign immunity “for a loss arising out of claims for the negligent use of a covered motor vehicle ... to the extent and in the manner provided in this chapter____” (Emphasis supplied.) Thus, to establish a waiver of sovereign immunity, Savko is required to prove not only the existence and extent of insurance coverage but also that the negligent use of the county vehicle was both the cause in fact and the proximate cause of her injury. Rampell v. Williams, 217 Ga. App. 292, 293-294 (2) (457 SE2d 224) (1995). “The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county’s negligence, unless the negligence of its ‘officer, agent, servant, attorney, or employee’ arises from the use of a motor vehicle. [Cits.]” Simmons v. Coweta County, 229 Ga. App. 550, 552 (494 SE2d 362) (1997).

This point addresses the issue of causation in relation to a county’s liability for the negligent use of a motor vehicle. In that regard, the plaintiff in this tort action, as in any tort action, must prove causation and damages. With respect to causation, to recover damages in a tort action, a plaintiff must prove that the defendant’s [active] misuse of a county vehicle was both the cause in fact and the proximate cause of the injury.

(Punctuation and footnote omitted.) Tittle v. Corso, 256 Ga. App. 859, 864 (2) (569 SE2d 873) (2002).

While acknowledging that “whether an event arises from the ‘use’ of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive,” we have nonetheless held that “use” of a vehicle in this context means “whether the injury originated from, had its origin in, grew out of, or flowed from the use of the motor vehicle as a vehicle.” (Punctuation omitted.) Gish v. Thomas, 302 Ga. App. 854, 861 (2) (691 SE2d 900) (2010).

In Gish, a deputy sheriff was transporting a suicidal prisoner from magistrate court back to jail. The deputy left the prisoner alone in the patrol car for a few minutes with his loaded service revolver on the front seat. Id. at 857. The prisoner grabbed the gun and shot and killed himself. Id. His family sued the county, but we held that the county had not waived sovereign immunity through the purchase of liability insurance because when the suicide occurred, the patrol car “was essentially being used as a holding cell and did not relate to the use of the patrol car as a vehicle.” Id. at 861 (2).

We reached a similar conclusion in Williams v. Whitfield County, 289 Ga. App. 301 (656 SE2d 584) (2008). There, a motorist who was involved in a collision at the intersection of two county roads alleged that the county had negligently failed to warn motorists of the closure of one of the roads. Id. The motorist argued that the county had waived its sovereign immunity by placing a large excavator, which was covered under the county’s liability policy, on the roadside. Id. at 302. We held that the county had not waived its immunity because the excavator was not being used as a motor vehicle at the time of the collision, but was instead “merely present as a static physical mass.” (Punctuation omitted.) Id. at 305.

The facts in Saylor v. Troup County, 225 Ga. App. 489 (484 SE2d 298) (1997), are also similar. There, a prison inmate on work detail was injured by a swing blade attached to a vise on a county van parked on the side of the road. We held that the van was not in “use” for sovereign immunity purposes because it was “inoperative, [and] parked off the roadway with its engine not engaged” at the time of the accident. Id. at 490.

Likewise in Tittle, supra, 256 Ga. App. at 859, a motorist sued a sheriff’s deputy, as well as the sheriff’s department, alleging that the deputy pulled up in his patrol car and assaulted him while he was having car trouble on a dark night. We held that the county’s purchase of liability insurance to cover the deputy’s patrol car did not constitute a waiver of sovereign immunity because the car was not in “use” at the time of the incident. Id. at 864 (2). This Court rej ected the motorist’s argument that his injury arose from the use of the car because “the headlights and spotlight were used to illuminate the area and because [the deputy] placed [the motorist] against the hood of the car.” Id. We concluded, instead, that the patrol car was only remotely related to the deputy’s alleged tortious conduct. Id.

Ankerich contends that sovereign immunity was not waived because the patrol car was not being “used” within the meaning of OCGA § 33-24-51 (a) at the time of the accident. At the time of the collision with Savko’s vehicle, Ankerich’s patrol car was parked approximately 18 feet from where she stood in the intersection to direct traffic. Even though its blue lights were activated, we have held that utilization of a car’s lights for illumination purposes does not constitute “use” in the context of sovereign immunity. See Tittle, 256 Ga. App. at 859. Even if it can be argued that the vehicle was used as an ancillary prop to assist Ankerich with her duties in directing traffic, even the utilization of a vehicle as a physical barrier to alert motorists to be cautious does not constitute “use.” See Williams, 289 Ga. App. at 301. Under these circumstances, the car was not in “use,” and the county’s purchase of liability insurance for it did not waive sovereign immunity. Accordingly, the trial court erred in denying Ankerich’s motion for summary judgment on the basis of sovereign immunity.

Case No. A12A0975

2. Savko asserts that the trial court erred in denying her motion for partial summary judgment because Ankerich was “using” the patrol car as an integral part of the equipment she used to direct traffic.

Because of our holding in Division 1 regarding the “use” of the patrol vehicle, we affirm the trial court’s denial of Savko’s motion for summary judgment against Ankerich. Although the trial court erred in its determination that sovereign immunity had not been waived, summary judgment right for any reason will be affirmed. Hot Shot Express v. Assicurazioni Generali, 252 Ga. App. 372, 373 (556 SE2d 475) (2001).

3. Savko also contends that the trial court erred in denying her motions for partial summary judgment against State Farm and Nationwide, her UM carriers. Pursuant to her UM coverage, Nationwide was obligated to compensate Savko for damages she was legally entitled to recover from the owner or operator of an uninsured motor vehicle which are “due to you by law . . . arising out of the . . . ownership... maintenance; or... use of the uninsured motor vehicle,” and State Farm was liable for damages Savko was “legally entitled to collect . . . arising out of the operation, maintenance or use of an uninsured motor vehicle.” Savko maintains that her injuries were caused by the use of Ankerich’s patrol car so as to trigger the UM coverage in her policies with State Farm and Nationwide.

While only a “slight causal connection” between the damages and the use of the vehicle is required, Abercrombie v. Ga. Farm Bureau Mutual Ins. Co., 216 Ga. App. 602, 604 (454 SE2d 813) (1995), this broad interpretation does not extend the definition of use “to something distinctly remote.” (Punctuation omitted.) Kinzy v. Farmers Ins. Exchange, 293 Ga. App. 509, 510 (1) (667 SE2d 673) (2008). “Ultimately, Georgia law requires a causal connection between the use of the vehicle and the injury sustained.” (Citations and punctuation omitted.) Id. In the circumstances present here and explained in Division 1, Ankerich’s patrol car was not in “use” at the time of the collision and the county’s purchase of liability insurance did not waive sovereign immunity.

Decided November 28, 2012

Reconsideration denied December 12, 2012

Begnaud & Marshall, Andrew H. Marshall, Walter J. Gordon, Sr., for appellants.

Hudson, Montgomery & Kalivoda, Kenneth Kalivoda, David R. Montgomery, for appellee.

Thus, as Savko’s UM coverage was not triggered by the use of Ankerich’s patrol car, the trial court did not err in denying summary judgment to Savko in her claim for coverage under her UM policies with State Farm and Nationwide.

Judgment affirmed in Case No. A12A0975. Judgment reversed in Case No. A12A0974.

Adams and McFadden, JJ., concur.

       A “covered motor vehicle” is any motor vehicle owned, leased or rented by the county, OCGA § 36-92-1 (2), and the parties do not dispute that the patrol car at issue in this case was a “covered motor vehicle.”