text:
    A10A2028.
    In the Interest of V. B. L., a child.
    (703 SE2d 127)
   Johnson, Judge.

Donna Smith, the maternal grandmother and legal guardian of V B. L., appeals from a juvenile court order granting a petition filed by Lucius Christian, the child’s biological father, to legitimate the child. Smith claims that the juvenile court erred in (i) applying the wrong standard in determining whether Christian had abandoned his interest in developing a relationship with the child, and (ii) determining that legitimation was appropriate based upon Christian’s fitness as a parent rather than upon a consideration of what was in the best interest of V B. L. Because we find that the juvenile court erred, we reverse the judgment below and remand this case to the juvenile court for proceedings consistent with this opinion.

This Court must review a juvenile court’s ruling on a legitimation petition for abuse of discretion. Here, the undisputed evidence shows that Brandy Smith met Christian while she was visiting Daytona Beach, Florida in 1999. Christian testified that he thought he met Brandy at a bar, that he spent “a couple of hours” with her before they had sexual intercourse, and that “it may have been sun-up or whatever” when they “parted way” the following morning. Christian never learned Brandy’s last name, although he acknowledged that “she might have mentioned it”; and he admitted that her last name was not very important to him at the time. Christian testified that the only thing he knew about Brandy, other than her first name, was that she was from the Dalton area.

V. B. L. was born on May 25, 2000, and Brandy identified Barry Lewis as V B. L.’s biological father even though she was married to Anthony Nance. On March 11, 2003, the juvenile court found that V. B. L. was deprived and granted temporary custody to Donna Smith. On March 2, 2005, the juvenile court found that V B. L.’s parents had failed to support or maintain contact with her, and it extended Smith’s custody of V B. L. for an additional two years. After making similar findings on February 27, 2007 and again on February 6, 2009, the juvenile court granted custody to Smith for additional two-year periods.

On August 31, 2009, Smith filed a motion to terminate the parental rights of Brandy, Lewis, and Nance so that she could adopt V. B. L. At approximately the same time, Brandy contacted Christian through a social networking website. Brandy told Christian that she was “losing her parental rights” to V. B. L. and “requested] his assistance.”

In November 2009, Christian filed a motion to intervene in Smith’s action and to determine the paternity of V. B. L. The juvenile court granted Christian’s motion; and, once DNA testing confirmed that Christian is V. B. L.’s biological father, Christian filed a petition to legitimate. After the juvenile court granted Christian’s petition, Smith filed an application for discretionary appeal, which we granted.

1. Smith claims that the juvenile court applied the wrong standard in determining whether Christian abandoned his interest in developing a relationship with V B. L. Before granting a petition to legitimate,

the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

In In re Baby Girl Eason, the Supreme Court of Georgia recognized “that there exists a continuum” regarding the interests of unwed biological fathers: ranging from those who take on parental duties and form emotional bonds with their child, and those who do not live with the mother or child, never offer to marry the mother, do not support the child, and fail to register as the father with the state. Although not addressed in Eason, another relevant factor affecting placement on the continuum would likely include whether the father’s failure to support and develop a relationship with the child was attributable in some part to actions taken by the mother to impede the father’s ability to learn of the child’s existence.

Here, in considering whether Christian had abandoned his interest in developing a relationship with V B. L., the juvenile court refused to consider Christian’s actions between the time of his 1999 sexual encounter with Brandy and his 2009 discovery that Brandy had given birth to V B. L. This Court considered similar issues in LaBrec v. Davis, which reversed a juvenile court order granting a biological father’s petition to legitimate. In LaBrec, we found that the biological father’s “opportunity interest” in the child commenced “about nine months before [the child’s] birth” even though the mother falsely claimed that another man was the father and that man’s name appeared on the child’s birth certificate. While the LaBrec majority conceded that its decision would have been the same even if it were to “assume, as does the dissent, that the clock did not start ticking on [the biological father’s] ‘opportunity interest’ until [the date he discovered that he was the father,]” the majority also made it clear that a biological father’s actions before such date could also be considered. For example, the Court found that the biological father “offered no evidence to suggest he ever attempted to ascertain whether the unprotected intercourse in which he admittedly engaged with [the mother] had culminated in a pregnancy.”

The holding in LaBrec is consistent with Georgia law. OCGA § 19-8-12 (a), while dealing specifically with adoption law, provides the following findings of the General Assembly:

(4) A biological father who is not the legal father may have an interest in his biological child. This inchoate interest is lost by failure to develop a familial bond with the child and acquires constitutional protection only if the biological father who is not the legal father develops a familial bond with the child;
(5) The subjective intent of a biological father who is not a legal father, whether expressed or otherwise, unsupported by evidence of acts manifesting such intent, shall not preclude a determination that the biological father who is not a legal father has failed to develop a familial bond with the child; and
(6) A man who has engaged in a nonmarital sexual relationship with a woman is deemed to be on notice that a pregnancy and adoption proceeding regarding a child may occur and has a duty to protect his own rights and interests in that child. He is therefore entitled to notice of an adoption proceeding only as provided in this Code section.

Based on these and other findings of the General Assembly, OCGA § 19-8-12 goes on to provide that if a biological father fails to register on the putative father registry, and other conditions exist such as that the man has failed to live with or support the child, the birth mother may surrender her rights and place the child up for adoption without even naming or giving notice to the biological father. Moreover, even when notice to the biological father is required, OCGA § 19-8-12 (c) provides that notice may be given by publication where other forms of notification are not “feasible”; and OCGA § 19-8-12 (f) provides that the rights of a biological father who is not the legal father “shall” be terminated if he fails to take certain action after the notice is published for three weeks. As a result, the statute permits a biological father’s rights to be terminated even in cases in which he has no knowledge of his parentage.

While LaBrec refers to a biological father’s interest as an “opportunity interest,” whereas the General Assembly refers to it as an “inchoate interest” in OCGA § 19-8-12 (a) (4), it is for the trial court to determine the status of such interest based on where Christian’s actions place him under the Eason continuum. Here, the juvenile court determined that Christian had not abandoned his interest in V B. L., but it refused to consider Christian’s actions during the ten-year period before he learned that he was V B. L.’s biological father. We therefore reverse the order of the juvenile court and remand this case for it to determine whether Christian has retained an interest in Y. B. L. by considering his actions not only during the period since he learned of his parentage, but also since the time that he engaged in a nonmarital sexual relationship with Brandy in 1999.

Decided November 3, 2010.

McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, for appellant.

Elinor H. Portivent, Philip F. Woodward, for appellee.

2. Given our holding in Division 1, we decline to address Smith’s alternative claim that the trial court erred in finding that legitimation was appropriate based upon Christian’s fitness as a parent without sufficiently considering what was in the best interest of V. B. L.

Judgment reversed and case remanded.

Miller, C. J., and Phipps, P. J., concur.

        In the Interest of A. A., 293 Ga. App. 471, 476 (4) (667 SE2d 641) (2008).

       (Citation and punctuation omitted.) In the Interest of M. K., 288 Ga. App. 71, 74 (2) (653 SE2d 354) (2007).

       257 Ga. 292, 294-295 (1) (358 SE2d 459) (1987).

       243 Ga. App. 307, 312-313 (2) (534 SE2d 84) (2000). While LaBrec is physical precedent only (see Court of Appeals Rule 33 (a)), it was affirmed by the Supreme Court of Georgia in Davis v. LaBrec, 274 Ga. 5 (549 SE2d 76) (2001).

        LaBrec, supra at 311 (1).

       Id.

       Id. at 310 (1).

       OCGA §§ 19-8-12 (d) (3); 19-8-26 (h) (1) (F).

       OCGA § 19-8-12 (a) (6).

       See LaBrec, supra at 312-313 (2).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A1072.
    EDWARDS v. THE STATE.
    (703 SE2d 130)
   PHIPPS, Presiding Judge.

A jury found Wayne Leslie Edwards guilty of manufacturing methamphetamine, conspiring to possess methamphetamine, and possessing methamphetamine. After merging the counts, the court sentenced Edwards on the possession count. On appeal, Edwards contends that the evidence was insufficient on all three counts. Because he has shown no merit in this contention, we affirm.

When an appellant challenges the sufficiency of the evidence to support his 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 on September 26, 2002, a man drove a red pickup truck to a welding supply company, where he purchased a tank of anhydrous ammonia. Because the substance was commonly used to manufacture methamphetamine, store personnel copied the purchaser’s driver’s license and recorded the color, make and license plate number of the vehicle he was driving. After the purchaser left, store personnel reported to the police the transaction, the purchaser’s driver’s license information, and a description of the truck. Four days later, the same man returned to the welding supply store, driving the same vehicle, and returned the tank.

On that day, undercover law enforcement officers followed the man from the store to 278 Englewood Road in Winder, residential property upon which was situated a mobile home registered to Edwards’s wife. Law enforcement officers traced the tag number of the vehicle being driven by the purchaser to a red pickup truck registered to Edwards’s wife with the Englewood address.

On October 2, 2002, the same man returned to the store in the same pickup truck and purchased another tank of anhydrous ammonia. Again, after the sale, officers followed the pickup to the Englewood address. Meanwhile, a search warrant for the Englewood address had been obtained. And on the evening of October 2, 2002, the warrant was executed by officers from several law enforcement agencies.

At the Englewood address were several structures, including the mobile home, which was the main residence, and a separate garage. Parked near the mobile home was Edwards’s wife’s red pickup truck. The man who had driven it to purchase the tanks of anhydrous ammonia was standing in the open garage and was immediately arrested. Another man standing nearby sprinted into nearby woods, but was quickly apprehended and arrested. Edwards and his wife were handcuffed in front of the mobile home.

Behind the garage, officers discovered several large steel pressurized anhydrous ammonia tanks, one of which was mounted onto a hand truck that had been specially modified to turn the tank upside down so that the liquid ammonia could be easily removed. The valve assembly on that particular tank showed that it had been exposed to anhydrous ammonia. And the surrounding area carried a strong and distinct odor of ammonia. In a storage closet at the back of the garage were cans of muriatic acid and a bottle of “liquid fire.” Also on the property were several garden sprayers, two of which were actively “off-gassing” hydrogen chloride gas.

Inside a red Camaro parked in front of the mobile home were two cans of engine starting fluid, five boxes of Sudafed, numerous small Ziplock baggies, and a plastic Tupperware bowl that contained more than 1,000 tablets of pseudoephedrine.

In other areas of the Englewood property, there were numerous boxes of various brands of nasal decongestants that contained pseudoephedrine, as well as blister packs (the inner silver packaging) that had been removed from boxes of Sudafed tablets, additional garden sprayers, a two-eye electric burner, a one-gallon can of Coleman camping fuel, several one-gallon cans of Royal Oak lighter fluid, and various brands of engine starting fluid.

Several guns were found on the premises. One was found in a dresser drawer in the master bedroom of the mobile home. Atop the dresser in that bedroom was a driver’s license. The name on the driver’s license was “Wayne Leslie Edwards” with a residential address of “278 Englewood Road, Winder.” Atop that same dresser, tucked inside a jewelry box, was a small plastic bag of methamphetamine. Underneath the bed in that room was a lock box. It housed a set of digital scales and recipes for producing either methamphetamine or a similar substance, methcathinone.

While the search was in progress, a black pickup truck arrived with three occupants. A search of that truck cab produced numerous boxes of Sudafed and other brands of nasal decongestant tablets. A search of that truck bed produced 18 empty cans of engine starting fluid, a garden sprayer box, remains of lithium batteries, and 25 empty boxes of Sudafed blister packs.

According to a Georgia Bureau of Investigation agent who had been trained in clandestine methamphetamine laboratory investigation and who had participated in the search at the Englewood address, the search had yielded necessary precursor ingredients, as well as tools commonly used for the manufacture of methamphetamine. Also, a state crime lab chemist and member of the clandestine laboratory response team who had accompanied the law enforcement officers to the Englewood address testified as an expert in clandestine laboratory analysis and methamphetamine manufacturing. He identified some of the items of evidence seized and testified that they either were components of methamphetamine or could be used in the manufacturing of the drug.

Challenging the sufficiency of the evidence, Edwards contends that the state’s case showed merely his presence at the Englewood address. He specifically asserts that the evidence failed to show that he was in possession of the methamphetamine, which was found inside the mobile home, and failed to show that he had any involvement with methamphetamine manufacturing. We disagree.

Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

Here, the evidence allowed for a finding that Edwards lived at the residence, that the mobile home was titled to his wife, that she lived at the Englewood residence, that she was present at the scene, and that the methamphetamine was discovered in the mobile home’s master bedroom. Indeed, Edwards’s wife was also charged with the offense of possession of methamphetamine (as well as the other two counts). Under these circumstances, the state was not required to show that Edwards was in sole or actual possession of the methamphetamine. Rather, the state could establish the element of possession by showing that Edwards was in joint constructive possession of the contraband.

Edwards is correct that evidence of mere presence at the scene of a crime, with nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. But the state did not base its case against Edwards merely upon his presence at the scene. In addition to showing that Edwards lived at the residence in question, the state adduced further evidence that methamphetamine was found in the master bedroom atop the same dresser as a driver’s license bearing Edwards’s name and the Englewood residential address; that stored in a lockbox underneath the bed in that room were recipes for producing methamphetamine or a similar substance, along with digital scales associated with the drug trade; and that Edwards’s residential premises was being used as a clandestine methamphetamine lab.

Decided November 4, 2010.

Donna A. Seagraves, for appellant.

James B. Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

The evidence was sufficient for the jury to find beyond a reasonable doubt that Edwards was guilty of methamphetamine possession, conspiracy to manufacture methamphetamine, and manufacturing methamphetamine. Because Paden v. State and Reid v. State are distinguishable, Edwards’s reliance upon them is unavailing.

Judgment affirmed.

Miller, C. J., and Johnson, J., concur.

       OCGA § 16-13-30 (b) (proscribing unlawful manufacturing, delivering, distributing, dispensing, administering, selling, or possessing with intent to distribute any controlled substance).

       OCGA § 16-13-33 (“Any person who attempts or conspires to commit any offense defined in [Article 2 of Chapter 13 of Title 16 the Official Code of Georgia] shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”).

       OCGA § 16-13-30 (a) (proscribing unlawful purchase, possession, or having under one’s control any controlled substance).

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

        Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009) (citation omitted).

       Id.

       Id. at 94-95 (1) (a).

       See Womble v. State, 290 Ga. App. 768, 770 (2) (660 SE2d 848) (2008).

       See Jackson v. Virginia, supra; Castillo v. State, 288 Ga. App. 828, 830 (655 SE2d 695) (2007) (noting that beyond a defendant’s spatial proximity to drugs, constructive possession may be shown by demonstrating that the defendant knowingly had both power and intention at a given time to exercise control over the substance; power may be inferred from access to the drugs, while intent may be derived from the surrounding circumstances); Kahn v. State, 235 Ga. App. 229, 231 (1) (b) (509 SE2d 137) (1998) (while evidence that the defendant-owner or lessee shared premises with another does not demand a conviction, it may authorize the jury to find that the defendant was in at least joint possession of the contraband); see also Womble, supra at 770-771 (2).

        Jackson v. Virginia, supra; see generally Williamson v. State, 300 Ga. App. 538, 546-548 (5) (685 SE2d 784) (2009) (evidence was sufficient for jury to infer existence of a conspiracy and defendant’s tacit understanding with his wife regarding the sale of methamphetamine from their home); McWhorter v. State, 275 Ga. App. 624, 627 (1) (a) (621 SE2d 571) (2005) (essence of conspiracy is a common design, and conduct which discloses a common design may give rise to inference of conspiracy). In charging conspiracy to possess methamphetamine, the indictment alleged that Edwards, his wife, and several others arrested with them at the Englewood property had done “an overt act to effect the object of the conspiracy, to wit: collected ingredients to manufacture methamphetamine.”

       See Kirby v. State, 275 Ga. App. 216, 217-218 and n. 9 (620 SE2d 459) (2005) (evidence was sufficient to show that defendant was guilty of manufacturing methamphetamine, where defendant leased the house in which methamphetamine manufacturing was taking place, house contained a strong chemical smell that was immediately apparent upon entering the home, and defendant tested positive for methamphetamine in his system; further noting that, although defendant may not have actively participated in the manufacturing process, the evidence authorized the guilty verdict for aiding in the manufacturing by knowingly providing the location); see also Boone v. State, 293 Ga. App. 654, 656-657 (1) (667 SE2d 880) (2008); OCGA § 16-2-20 (concerning parties to a crime).

       216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995) (evidence was insufficient to connect defendant with crack cocaine found at the residence of an admitted crack cocaine user, a home where defendant did not live and did not regularly occupy).

       212 Ga. App. 787, 789 (442 SE2d 852) (1994) (evidence was insufficient to connect defendant-passenger to cocaine found on floorboard of passenger side of a car he did not own; only mere presence at the crime scene was shown).


author: Doyle, Judge.

text:
    A10A1096.
    A & G TRUCKING, INC. et al. v. PITTS et al.
    (703 SE2d 134)
   Doyle, Judge.

Calvin E. J. Pitts, Jr., Makala Pitts, Willie G. Pitts, Akim Ussery,' and the estate of Mack Pitts (collectively “the plaintiffs”) filed a j wrongful death action against A & G Trucking, Inc., and Sarah \ Okoro (collectively “the defendants”) following the death of Mack ¡ Pitts. A DeKalb County jury returned a verdict in favor of the 3 plaintiffs in the amount of $5,470,000. The defendants appeal, , arguing that the trial court abused its discretion by permitting ; plaintiffs’ counsel to cross-examine Okoro regarding her purported 1 employment application with A & G. We discern no abuse of f discretion and affirm.

Viewed in favor of the verdict, the record shows that on June 14, , 2007, Mack Pitts was working as a “spotter” directing dump trucks s at a construction site at the Atlanta airport. Okoro, who was s operating a dump truck owned by A & G, her employer, pulled onto i the construction site where several other trucks were lined up i waiting to dump their loads. According to witnesses, Okoro bypassed I the waiting trucks and positioned her truck to back up without ; waiting for a signal from the spotter as she was required to do. Pitts ¡ “flagged her with the stop signal,” and she stopped momentarily. Pitts turned around and began directing another driver without ; realizing that Okoro had started backing toward him. Several of the ¡ drivers from the other trucks that were lined up began sounding ; their horns to warn Okoro that Pitts was behind her truck, but Okoro responded with an obscene hand gesture and continued reversing “at a good rate of speed.” When Pitts realized that Okoro was backing up toward him, he tried to run out of the path of the truck, but was unable to do so before Okoro struck him. Pitts died as a result of his injuries.

Pitts’s heirs and his estate filed suit against Okoro and A & G Trucking, alleging negligence and negligent hiring, retention, and supervision, and seeking punitive damages. At trial, prior to opening statements, the plaintiffs dismissed their claims for punitive damages and negligent hiring, retention, and supervision.

During the trial, the plaintiffs’ testimony established that immediately before she struck Pitts, Okoro violated multiple safety rules promulgated for the dump truck drivers at the construction site, including, inter alia, that Okoro: entered the field before being signaled to do so by a spotter; failed to remain still after the spotter directed her to stop; backed up without receiving a signal to do so by the spotter; and backed up without ascertaining the location of the spotter. During her testimony, Okoro did not contest that she violated those rules, but testified that her actions on the day of the accident were consistent with her previous actions and experiences during the six years she had made deliveries on the construction site as a driver for A & G and were consistent with the actions of other drivers on the site. Specifically, Okoro testified that she regularly dumped loads of fill dirt without the assistance or presence of a spotter during the course of her employment with A & G.

During cross-examination, Okoro testified that her first truck driving job was with A & G, where she began working in 1999, and that she had never driven a dump truck before then. Plaintiffs’ counsel then announced that he was handing Okoro Exhibit 40, and defense counsel immediately objected. During the ensuing bench conference, defense counsel stated that Exhibit 40 was Okoro’s employment application for A & G, which indicated that Okoro had worked as a truck driver before she worked for A & G. Plaintiffs’ counsel argued that he was entitled to impeach Okoro with the application, which the defendants had produced during discovery, as a prior inconsistent statement. Defense counsel objected, arguing that the statement was irrelevant and therefore inadmissible because the plaintiffs had dismissed their negligent hiring, supervision, and retention claims. The trial court overruled the objection, and plaintiffs’ counsel asked Okoro about the employment application, but ceased questioning when Okoro testified that she had never seen the application and that the signature contained therein was not hers.

In a single enumeration, the defendants argue that the trial court abused its discretion by permitting the plaintiffs to cross-examine Okoro regarding her purported employment application. We 3 disagree.

Decided November 5, 2010.

Downey & Cleveland, Joseph C. Parker, Lauren R. Kruck, for appellants.

Butler, Wooten & Fryhofer, Alan J. Hamilton, Davis, Pickren & Seydel, James P. Sneed, for appellees.

In Georgia, “[a] witness may be impeached by contradictory 7 statements previously made by him as to matters relevant to his • testimony and to the case.” To impeach a witness with a prior r inconsistent statement, a party must demonstrate that (1) the prior i statement contradicts or is inconsistent with the witness’s in-court I testimony; (2) the prior statement is relevant; and (3) the examining ’ attorney has laid the proper foundation with the witness. Here, the 3 defendants argue only that the plaintiffs failed to meet the second 1 requirement — that the statements on the employment application 1 were relevant. But it is for the trial court to determine whether an 1 alleged prior inconsistent statement is relevant, “and absent an 1 abuse of discretion, such exercise of sound discretion will not be ; disturbed.” Here, given Okoro’s previous testimony regarding her : experience as a dump truck driver with A & G and her apparent : defense that her actions on the date of the accident were consistent ; with her experience, the trial court did not abuse its discretion in 1 concluding that statements regarding her truck driving experience ¡ contained within her purported employment application were rel- ■ evant and admissible as prior inconsistent statements. In light of f this holding, we need not address the plaintiffs’ contention that ; Okoro waived this enumeration by failing to make repeated objections or to assert a continuing objection to questions regarding the ¡ application.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       The individual plaintiffs are the minor children of Mack Pitts, the decedent, and their claims are brought through their mothers, Lillian Pitts and Lakeshi Rena Ussery.

       See Ferman v. Bailey, 292 Ga. App. 288, 289 (664 SE2d 286) (2008).

       The plaintiffs do not allege that Okoro intentionally struck Pitts.

       Okoro testified that she drove past Pitts, who was on an embankment, when she entered the construction site; she did not see Pitts signal for her to stop and did not know that Pitts was behind her vehicle when she put her truck in reverse gear.

       Exhibit 40 was not admitted into evidence, and it is apparently not a part of the record on appeal.

       After Okoro testified, the defense presented the testimony of Audrey Smith, one of the principals of A & G. Smith acknowledged that Exhibit 40 - the employment application produced by A & G during discovery in response to the plaintiffs’ request for production of Okoro’s personnel file - was not prepared by Okoro; Okoro’s name was misspelled and the signature contained thereon was not Okoro’s. Smith believed that the company misplaced Okoro’s actual employment application and that the manager in charge of the personnel files was unable to reach Okoro and therefore simply filled out an application for her during a workers’ compensation audit. According to Smith, she was not aware that the application had been falsified until she heard Okoro’s tried testimony.

       OCGA § 24-9-83. See Redfearn v. Huntcliff Homes Assn., 260 Ga. App. 150, 156 (1) (a) (579 SE2d 37) (2003).

       See Duckworth v. State, 268 Ga. 566, 567 (1) (492 SE2d 201) (1997).

        Redfearn, 260 Ga. App. at 156 (1) (a).

       Although it ultimately became clear that the employment application was not prepared by Okoro and, therefore, was not actually a prior inconsistent statement, counsel for both parties believed the application was Okoro’s at the time of the objection.


text:
    A10A1311.
    ROBERTSON v. THE STATE.
    (703 SE2d 343)
   Doyle, Judge.

Following a jury trial, Antonio Robertson appeals from his convictions for selling cocaine, possessing marijuana, and possessing cocaine, contending that the trial court erred by (1) denying his motion for a mistrial after a witness volunteered a prejudicial hearsay statement from a nontestifying informant, (2) admitting evidence of two prior similar transactions involving drug sales, (3) improperly instructing the jury on proof of possession, and (4) failing to merge the convictions for selling cocaine and possessing cocaine. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that an undercover narcotics officer was accompanied in an unmarked vehicle by a confidential informant to make a controlled drug purchase. As the officer pulled into a convenience store parking lot, the informant spotted Robertson, who was sitting with two other people in a parked car, and recognized Robertson as a local drug dealer. The officer gave the informant, whom he had searched earlier, a $20 bill to attempt to buy a controlled substance from Robertson. As the officer watched, the informant approached Robertson and handed him the $20 bill, and Robertson retrieved a piece of crack cocaine from the center console area of his car and handed it to the informant. The informant returned to the undercover officer’s vehicle and handed the crack cocaine to the officer, who secured it.

The officer and informant left the scene, and Robertson was soon arrested by other officers positioned nearby. The officers found a small bag of marijuana on Robertson’s person and a small bag containing three pieces of crack cocaine in the center ashtray of the vehicle Robertson was driving.

Robertson was charged with the drug offenses, tried by a jury, and found guilty. After his motion for new trial was denied, Robertson filed this appeal.

1. Robertson’s first enumeration focuses on the trial court’s denial of a motion for a mistrial that he made immediately after the undercover officer spontaneously testified that the confidential informant “pointed out to me that he recognized the defendant as a local narcotics distributor.” The trial court sustained Robertson’s objection to the hearsay statement and instructed the jury to disregard the improper testimony. Following a colloquy outside the jury, the trial court denied Robertson’s motion for a mistrial but again instructed the jury to disregard the hearsay statement. Robertson renewed his motion, which was denied, and Robertson now challenges the denial of his motion for a mistrial.

“A trial court has broad discretion in deciding a motion for mistrial, and we will not disturb its ruling absent a manifest abuse of that discretion and a showing that a mistrial was essential to preserve the right to a fair trial.”

A trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

Here, the officer’s hearsay statement that Robertson was a narcotics distributor was in response to the question “What happened in the Quick Serve parking lot?”; there is nothing in the record to suggest that the statement was intentionally elicited by the State. Other properly admitted evidence of similar transactions showed that Robertson had two prior convictions for selling crack cocaine to the same undercover agent involved in this case, essentially rendering the hearsay statement cumulative. Indeed, Robertson himself admitted to having sold cocaine before. Further, the trial court immediately issued a curative instruction to the jury and instructed the witness not to repeat hearsay statements. Under these circumstances, we discern no abuse of the trial court’s discretion in denying Robertson’s motion for a mistrial. “Unless it is apparent that a new trial is essential to the preservation of the right of a fair trial, this court will not interfere with the discretion of the trial court.”

2. Robertson next contends that the trial court erred by admitting evidence of two prior drug-related convictions as similar transactions. We disagree.

To introduce similar transaction evidence, the State must show three things. First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.

Here, the State sought to introduce the evidence of two prior street-level, hand-to-hand crack cocaine sales by Robertson for the purpose of showing identity, motive, intent, bent of mind, and course of conduct. The prior drug sales occurred in the same general neighborhood as the sale in this case, at approximately the same time of day. After a hearing in which the trial court heard argument about the similarity, probative value, purpose, and prejudicial effect of the prior convictions, the trial court allowed the evidence in for the purpose of showing bent of mind and course of conduct. The trial court instructed the jury as to those limited purposes at the time the evidence was admitted and in its charge to the jury at the close of the evidence.

On appeal, Robertson relies on OCGA § 24-9-84.1 (a) (2), which provides that

[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,

In light of this standard, Robertson focuses on the trial court’s order denying his motion for new trial, which stated that “[t]he Court finds, as it did at trial, that the probative value of those similar transactions outweighed their prejudicial effect.” Robertson argues that the trial court failed to make appropriate findings and apply the appropriate test of whether the probative value substantially outweighed the prejudicial effect of admitting the similar transaction evidence.

However, OCGA § 24-9-84.1 (a) (2), by its own terms, applies to the admissibility of prior convictions for the purpose of impeaching a testifying defendant. It does not apply when the prior conviction is admitted as a similar transaction for nonimpeachment purposes. Robertson’s argument conflates the analyses for each purpose, which are treated differently in case law. For example, when a conviction is admitted for impeachment, it is impermissible to use the prior conviction to show a criminal propensity or as substantive evidence of the offense at issue. Likewise, similar transactions are admissible not for impeachment but “for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct.” This Court noted the distinction in Newsome v. State, explaining that

similar transactions are admissible at trial whether or not the defendant testifies, while prior felonies are only admissible as impeachment pursuant to OCGA § 24-9-84.1 (a) (2). And perhaps the addition of a more rigorous standard for admissibility [for impeachment evidence under OCGA § 24-9-84.1 (a) (2)] — requiring the judge to find that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant — is intended to remedy the lack of the pretrial notice and hearing granted to defendants [for similar transaction evidence] by Uniform Superior Court Rule 31.3.

At trial, Robertson denied having any knowledge of the cocaine found in his vehicle or about the sale of cocaine to the informant. Therefore, based on the similarity of the prior crimes with the offense at issue, including the similar hand-to-hand nature of the sale of the same drug, for the same price, at a similar time of day, in the same general area, we discern no abuse of the trial court’s discretion in admitting the evidence of prior drug sales as similar transactions for the purpose of showing Robertson’s bent of mind and course of conduct.

3. Robertson next contends that the trial court erred by improperly instructing the jury on the doctrines of equal access and joint possession of the drugs. However, the record shows that Robertson himself requested the charges on both doctrines and he did not object to them as given. Any error was therefore self-induced and presents no grounds for reversal on appeal.

4. Robertson finally contends that the trial court erred by failing to merge the convictions for possession of cocaine and selling cocaine because the indictment failed to include sufficient detail to distinguish between the cocaine he sold (turned over by the informant) and the cocaine he possessed (found in the car he occupied). He relies on the “actual evidence” test articulated in Dawson v. State, which holds that “[i]f the [Sítate uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” However, “[i]n Drinkard v. Walker, [the Supreme Court of Georgia] disapproved the ‘actual evidence’ test and adopted the ‘required evidence’ test for determining when one offense is included in another under OCGA § 16-1-6 (l).” The “required evidence” test provides that “a single act may constitute an offense which violates more than one statute, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

Nevertheless, the “required evidence” test addresses the culpability of “a single act” and does not apply unless the same conduct of the accused establishes the commission of multiple crimes. Here, the offense of selling cocaine was proven by the evidence of the crack cocaine sale to the confidential informant, and the offense of possessing cocaine was proven by the evidence that Robertson possessed the additional crack cocaine later found in the car he occupied. Two discrete portions of cocaine were used to prove the two discrete offenses. Accordingly, the two counts did not merge.

Decided November 5, 2010.

Jimmonique R. S. Rodgers, for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 16-13-30 (b).

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-13-30 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

        Kirton v. State, 246 Ga. App. 670, 671 (1) (541 SE2d 673) (2000).

       (Punctuation omitted.) Ivey v. State, 284 Ga. App. 232, 234 (644 SE2d 169) (2007).

       (Punctuation omitted.) Pope v. Witter, 205 Ga. App. 101, 102 (2) (421 SE2d 725) (1992). See also Scruggs v. State, 273 Ga. 752, 754 (2) (545 SE2d 888) (2001) (affirming denial of a motion for a mistrial after improper introduction of bad character evidence and emphasizing that “[i]t is up to the trial court to decide whether a mistrial must be granted, as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions”) (punctuation omitted).

       (Citation and punctuation omitted.) Kendrick v. State, 269 Ga. App. 831, 833 (3) (605 SE2d 369) (2004).

       (Emphasis supplied.)

       See, e.g., Pelowski v. State, 306 Ga. App. 41, 42 (1) (701 SE2d 529) (2010) (making a distinction between impeachment and similar transaction purposes).

        See Phillips v. State, 285 Ga. 213, 220 (5) (b) (675 SE2d 1) (2009) (criminal propensity); Tate v. State, 289 Ga. App. 479, 481 (657 SE2d 531) (2008) (substantive evidence). We emphasize that criminal propensity itself is never a proper purpose for admitting prior bad acts of a defendant. See, e.g., Farley v. State, 265 Ga. 622, 630-631 (458 SE2d 643) (1995) (Sears, J., concurring specially).

       (Punctuation omitted.) Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982).

       289 Ga. App. 590 (657 SE2d 540) (2008).

       (Emphasis in original.) Id. at 594 (2).

       See Morrison v. State, 300 Ga. App. 405, 408 (685 SE2d 413) (2009).

       See Gresham v. State, 239 Ga. App. 280, 281 (521 SE2d 207) (1999) (self-induced error in requesting a particular charge provides no basis for reversal); Bailey v. State, 203 Ga. App. 133, 138 (4) (416 SE2d 151) (1992) (same). Robertson does not pursue an ineffective assistance of counsel claim on appeal.

       203 Ga. App. 146, 147 (2) (416 SE2d 125) (1992).

       281 Ga. 211 (636 SE2d 530) (2006).

       (Punctuation omitted.) Linson v. State, 287 Ga. 881, 885 (4) (700 SE2d 394) (2010).

       (Punctuation omitted; emphasis supplied.) Waits v. State, 282 Ga. 1, 4 (2) (644 SE2d 127) (2007).

       See id. at 4-5.

       See Rogers v. State, 298 Ga. App. 895, 897 (2) (681 SE2d 693) (2009) (conviction for possession of methamphetamine with intent to distribute did not merge with conviction for sale of methamphetamine because different quantities were used to prove each offense); Ransom v. State, 298 Ga. App. 360, 361 (1) (680 SE2d 200) (2009) (“If the underlying facts show that one crime was completed prior to the second crime, there is no merger.”) (punctuation omitted); Metts v. State, 297 Ga. App. 330, 336 (4) (677 SE2d 377) (2009) (because the offenses could be sustained by separate conduct, separate convictions were appropriate). Any argument that the indictment here lacked sufficient specificity is an attack on.the form of the indictment, which must be challenged by a special demurrer filed prior to the not guilty plea. See id. at 335 (3).


text:
    A10A1432.
    RAMSEY v. THE STATE.
    (703 SE2d 339)
   Doyle, Judge.

Damian Ramsey appeals from the trial court’s denial of his motion to suppress evidence of marijuana discovered during a pat-down search of his person after the traffic stop of a vehicle in which he was riding. The trial court granted Ramsey a certificate of immediate review, and this Court granted his application for interlocutory appeal. We now affirm for the following reasons.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

Here, the only witness to testify at the suppression hearing was Corporal Jason Smith of the Twiggs County Sheriffs Department. According to Smith’s testimony, he was patrolling a section of 1-16 when he noticed a vehicle with what appeared to be illegally tinted windows. Upon stopping the car, Smith “made contact with the driver through the passenger side window and advised him [about] the reason why I had pulled him over.” Smith immediately “detected a strong odor of burning marijuana.” He asked the driver, who is not a party to this appeal, to exit and proceed to the rear of the vehicle, where Smith handcuffed the driver for safety purposes. The driver explained that “they had smoked marijuana in the vehicle earlier that day,” and thereafter, Smith called his partner to assist with the stop.

Smith then testified that upon his partner’s arrival,

I got [Ramsey] out of the vehicle. He got the back seat passenger out of the vehicle[,] and we patted them down for weapons[,] [a]t which time I felt a bulge in his watch pocket, if you’re familiar with what a watch pocket is. It’s most of the time on your right side above your right pocket. . . . It’s a little, small pocket. I felt a bulge in it. A lot of time when we feel a bulge . . . any time during a stop like this particular one with the odor of narcotic coming from the vehicle[,] there’s been several occasions where I’ve found that folks that use narcotics[,] that’s where they place it is in this watch pocket. I had reasonable suspicion to believe that this was marijuana that he had in this watch pocket. ... As I reached in the pocket to pull it out[,] it was a clear baggy containing marijuana. At [this] time[,] the passenger was placed under arrest.

Smith testified that the back seat passenger was also arrested because “[h]e was unfamiliar whether he was a convicted felon or not. The driver had stated to me during my interview with him that there was a handgun locked up in the glove box.”

On cross-examination, Smith testified that he never located any drug paraphernalia or marijuana cigarettes, and he could not say where the odor of burning marijuana had been emanating from other than “inside of the car.” Smith also testified that he had placed the driver in handcuffs prior to learning that there was a handgun in the vehicle. Smith explained that placing an individual in handcuffs is “something. . . I’ve always done. My sergeant has always done it. I’ve always done it. Any time there’s an odor of a narcotic in the vehicle[,] I immediately take them out of the car and place them in handcuffs and call for backup.” Smith testified that he did not read the driver his Miranda rights prior to placing him in handcuffs or questioning him.

Smith continued that the search of Ramsey was “based on the odor of [burning] marijuana coming from the vehicle,” but later explained that “[i]t was a pat down for weapons until [he] found the bulge in [Ramsey’s] pocket.” Smith recognized that the bulge “didn’t feel like a weapon... it felt like a narcotic” and, in his experience, Smith was reasonably certain he would find narcotics in the pocket. Smith clarified that initially he was only patting Ramsey down for weapons, but then he felt the bulge in his pocket; Smith articulated that the risk Ramsey posed to him was based on the fact that there were three occupants in the vehicle at the beginning of the stop, and he smelled the odor of narcotics. Smith testified that at the time he removed Ramsey from the vehicle (after the other officer had arrived), Smith did not “do anything that caused [Smith] to fear for [his] safety.” Smith never discovered any burnt marijuana or smoking implements from the vehicle or the persons of the three men.

Ramsey moved to suppress the marijuana discovered in his watch pocket during the search, which motion was denied by the trial court after a hearing. On appeal, Ramsey’s single enumeration of error is that the trial court erred by denying his motion to suppress the evidence of marijuana discovered during the pat-down search. We disagree.

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.

Moreover, “[a]n officer who has lawfully detained a citizen is authorized to conduct a Terry pat-down for weapons 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.” With regard to Terry pat-downs of automobile passengers, this Court has recently reiterated that to search the passenger, the officer must have a reasonable suspicion that the individual himself poses a threat to the officer, and it is insufficient to justify a pat-down of each occupant on the situation itself. It is inappropriate that a pat-down be conducted as a matter of routine or policy.

Ramsey first argues that the trial court erred by denying the motion to suppress because Smith did not have a reasonable articulable suspicion to pat down Ramsey’s person. In this instance, despite the fact that Smith testified at the time he asked Ramsey to step from the car to be searched, Ramsey did nothing to make Smith fear for his safety, and despite Smith’s lengthy testimony regarding his habitual use of handcuffing individuals and employing pat-down searches in certain instances, the trial court’s denial of the motion was supported with regard to this issue. Ramsey was the front seat passenger in a vehicle in which the driver admitted a weapon was contained in the glovebox. Moreover, Smith had detected the scent of burning marijuana upon approaching the vehicle. Smith’s credibility was for the trial court to determine, and taken together, those facts support the trial court’s denial of the motion to suppress with regard to the issue of whether Smith was authorized to conduct the pat-down search of Ramsey.

Ramsey also contends that Smith exceeded the permissible scope of the pat-down when the officer intruded into his pocket. We disagree.

Decided November 5, 2010.

Catherine S. Bernard, Wendell R. Adams, for appellant.

Louie C. Fraser, District Attorney, LaShonda C. Harris, Assistant District Attorney, for appellee.

Under the plain feel doctrine, if, during a lawful pat-down search, an officer feels an object whose contours or mass makes it immediately identifiable as contraband, that officer can seize the item. Thus, for evidence to be admissible under the plain feel doctrine, the searching officer must express a degree of certainty in identifying the item. This is so because a pat-down search is conducted solely for the purpose of [ejnsuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial.

Here, Smith testified that the bulge in Ramsey’s watch pocket “felt like a narcotic,” and in his experience, contraband sometimes was hidden in the watch pocket by other individuals. Although Smith did not testify concerning the specifics of this particular bulge’s “contour or mass [that] ma[de] its identity as contraband immediately apparent,” we find no abuse of discretion in the trial court’s denial of the motion to dismiss based on Smith’s testimony on cross-examination that the item felt like contraband. Accordingly, we affirm the trial court’s denial of Ramsey’s motion to suppress.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       (Punctuation omitted.) Milby v. State, 256 Ga. App. 429 (569 SE2d 256) (2002).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Punctuation omitted.) Johnson v. State, 297 Ga. App. 847, 848 (678 SE2d 539) (2009).

       (Punctuation omitted; emphasis supplied.) Perez v. State, 284 Ga. App. 212, 216 (3) (a) (643 SE2d 792) (2007).

       See Molina v. State, 304 Ga. App. 93, 97-98 (695 SE2d 656) (2010).

       See id. at 98; see also, e.g., Edgell v. State, 253 Ga. App. 775, 777-778 (560 SE2d 532) (2002) (reversing denial of a motion to suppress because the pat-down was not supported with reasonable suspicion that defendant was armed or dangerous and was instead performed as an automatic and habitual practice by the officer); State v. Banks, 223 Ga. App. 838, 840 (479 SE2d 168) (1996) (physical precedent only) (reversing denial of motion to suppress evidence gathered during a pat-down search of individuals loitering outside an apartment building on the basis that nothing in the record showed that they were armed and dangerous). Compare with State v. Cannon, 253 Ga. App. 445, 447-448 (559 SE2d 76) (2002) (reversing grant of motion to suppress on the basis that probable cause to search the defendant’s person existed at the time of the traffic stop based on a number of factors including, but not limited to, the smell of and admission of use of marijuana, the defendant’s uncooperative behavior during the pat-down, and the defendant’s known previous involvement in the drug trade).

       See, e.g., Brown v. State, 283 Ga. App. 250, 253-254 (641 SE2d 551) (2006) (officer authorized to conduct pat-down when confronting “a group of individuals [after] undisputably deteet[ing] the odor of burning marijuana”); Bailey v. State, 283 Ga. App. 365, 368-369 (2) (641 SE2d 548) (2006) (credibility of officer’s testimony that he was capable of smelling marijuana smoke emanating from a vehicle was a matter for the trial court); Cannon, 253 Ga. App. at 447-448 (admitted drug use and occupant known to be involved in the drug trade warrants pat-down search for safety). Although Ramsey maintains that Smith failed to support his ability to identify the smell of marijuana with testimony of his training and experience with the smell, Smith testified that he had worked at the sheriffs department for over four years and had previously encountered individuals in possession of narcotics. Thus, the trial court was authorized to believe Smith’s testimony that he smelled burning marijuana. See Bailey, 283 Ga. App. at 368-369 (2).

       (Punctuation omitted.) Mason v. State, 285 Ga. App. 596, 597 (647 SE2d 308) (2007).

        State v. Henderson, 263 Ga. App. 880, 883-885 (589 SE2d 647) (2003) (collecting cases concerning plain feel doctrine).


text:
    A10A1510.
    MUNDY MILL DEVELOPMENT, LLC et al. v. ACR PROPERTY SERVICES, L.P.
    (703 SE2d 137)
   Doyle, Judge.

Mundy Mill Development, LLC, REL Properties, Inc., and Robert E. Lanier (collectively “Mundy Mill”) appeal from the Hall County Superior Court’s order approving and confirming a foreclosure sale by ACR Property Services, LP (“ACR”). Because the trial court’s confirmation order was supported by competent evidence, we affirm.

Value on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

A trial court cannot confirm a foreclosure sale unless it is “satisfied that the property so sold brought its true market value. True market value is the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so.”

The record shows that on August 29, 2007, Mundy Mill Development, LLC, executed a security deed in favor of Haven Trust Bank to secure repayment of a promissory note in the amount of $5,375,000. The deed granted Haven Trust a first priority security interest in a 40.1-acre parcel of unimproved property located in Hall County, Georgia. Thereafter, the Federal Deposit Insurance Company (“the FDIC”) was appointed receiver of Haven Trust Bank following the bank’s failure.

Following Mundy Mill’s failure to pay the obligation when it matured on January 5, 2009, the FDIC transferred the security deed to ACR on June 5, 2009. ACR foreclosed on the property on September 1, 2009, and sold it at auction to ACR and High Trust Bank as unequal tenants in common for $3,910,000. ACR then applied to the Hall County Superior Court for confirmation of the sale pursuant to OCGA § 44-14-161.

Because the parties stipulated that the foreclosure sale was proper, the only issue before the trial court at the confirmation hearing was whether the property was sold at true market value. Following the evidentiary hearing, the trial court approved and confirmed the foreclosure sale in all respects. Mundy Mill appeals, arguing that the trial court erred by finding that the foreclosure sale price reflected true market value and was reasonable under current market conditions.

At the evidentiary hearing, the experts for both parties agreed that the subject property is zoned for 460 apartments, and both experts testified in terms of a per apartment price, using a sales comparison approach. ACR’s expert, M. Donald Poole, opined that the property was worth $8,000 per unit, for a total price of $3,680,000. In his appraisal, Mundy Mill’s expert, Clayton M. Weibel, valued the property at $9,000 per unit, for a total of $4,140,000.

At the hearing, Richard Warren Deriso, the vice president of both Mundy Mill and REL Properties, testified that an entity named Prime Interest made multiple offers to purchase 17 of the 40.1 acres of the subject property prior to the foreclosure. Prime Interest offered to pay $8,750 per unit for 17 acres in March 2009. Mundy Mill felt that the offer was “well below the value of the property” and rejected it. Then, in April 2009, Prime Interest increased its offer to $9,650 per unit for the 17-acre tract. According to Deriso, Mundy Mill verbally accepted the April offer, but was unable to sell the property at that time because the FDIC had begun the process of transferring the deed to ACR and would not accept bids for the property. Deriso testified that a representative from ACR then approached Mundy Mill and “leaned on [them] very hard” to get an offer for a short sale. Mundy Mill went back to Prime Interest and explained that ACR had acquired the note and had Mundy Mill “under the gun” to sell the property quickly. Prime Interest responded with an offer of $8,000 per unit for the 17-acre tract in June 2009.

Poole testified that he was advised about the June 2009 offer of $8,000 per unit at the time he appraised the property, and he was under the impression that the offer was acceptable to the owners. Poole was also aware that the offer was only for a portion of the property and that the lender would not approve a sale for a portion of the property. According to Poole, “that factored strongly into [his] consideration, was that there was actually a meeting of the minds at $8,000 a unit for a portion of the site.” Poole was not aware that Prime Interest had also made offers of $8,750 and $9,650 for the 17-acre site. Poole was not asked, however, whether such knowledge would have changed his opinion regarding the true market value of the property.

Mundy Mill’s expert, Weibel, testified that he was unaware of any of the offers from Prime Interest when he appraised the property. Weibel further testified during direct examination as follows:

Q: Does [knowledge of the $9,650 offer] affect your value in any way from the $9,000 that you stated in your appraisal?
A: Yes. I think my understanding since my appraisal was completed is that was an offer made by a legitimate buyer and accepted by the property owner, which signifies to me a meeting of the minds so that I think that warrants serious consideration that the value may actually be more in line with the $9,650 offer.
Q: In any event, though, your appraisal value is $9,000 per unit?
A: Correct.

Weibel further explained that the $8,000 from Prime Interest was a quick sale and that, in his opinion, quick sale prices are “not reflective of market value.”

On appeal, Mundy Mill argues that the trial court erred by finding that the foreclosure sale price of $3,910,000 reflected the true market value of the property. Instead, Mundy Mill claims that the foreclosure price was improperly based on the quick sale value of the property. Mundy Mill relies upon Gutherie v. Ford Equip. Leasing Co., in which we held that the trial court erred by confirming a foreclosure sale based solely upon “evidence of the ‘quick sale’ value of the subject property because such a valuation does not reflect the price that would be obtained in a sale under the usual market conditions.” Gutherie does not require reversal of the instant case, nor does Cartersville Developers v. Ga. Bank & Trust, upon which Mundy Mill also relies. Here, unlike in Gutherie and Cartersville Developers, the expert’s opinion was not based solely on the quick sale value. Instead, Poole explained that the $8,000 offer was one of several factors in his fair market value determination, along with his analysis of six comparable sales, discussions with other brokers and developers, and a “land residual approach” that he used. And Mundy Mill’s expert conceded that Poole’s 25 percent market condition adjustment was reasonable, which, if applied to the comparable sales he relied upon in his appraisal, would result in a true market value of $8,000 to $8,529 per unit.

Decided November 5, 2010.

Whelchel, Dunlap, Jarrad & Walker, Madeline S. Wirt, Bethany S. Magnus, for appellants.

On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.

Here, in addition to Poole’s testimony regarding the bases for his opinion and Weibel’s concession regarding value, the trial court heard and considered Deriso’s testimony regarding all three of the offers by Prime Interest (for a portion of the 40.1-acre site), as well as Weibel’s testimony about how the higher offers would increase his appraisal value. Thus, the fact that the foreclosure sale was the same as the quick sale value does not require reversal in this case, nor does the fact that the experts were not informed about the two higher offers (for only a portion of 40.1-acre site) before they completed their appraisals.

[B]ecause the appraiser’s opinion was not based on sheer speculation, we will not second guess any methodology utilized to reach the opinion. The superior court had sufficient data in evidence upon which it could apply its own knowledge and ideas so as to derive its own opinion as to the market value of the property at the time of the sale.

Accordingly, Mundy Mill’s challenge is without merit.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Schreeder, Wheeler & Flint, Debbie A. Wilson, David B. Carpenter, for appellee.

       (Punctuation omitted.) Greenwood Homes v. Regions Bank, 302 Ga. App. 591, 592 (692 SE2d 42) (2010).

       (Punctuation omitted.) Id. at 593 (1) (a). See OCGA § 44-14-161 (b).

       REL Properties, Inc., and Robert E. Lanier personally guaranteed the obligation.

       ACR had a 77.982 percent undivided interest, and High Trust Bank had a 22.018 percent undivided interest in the property.

       Both experts adjusted the prices of comparable sales in 2008 downward to account for market conditions. Mundy Mill’s expert reduced the 2008 comparables by 15 percent, while ACR’s expert reduced them by 25 percent.

       Mundy Mill had listed the property for sale with a broker.

       206 Ga. App. 258, 261 (1) (424 SE2d 889) (1992).

       Id. at 261 (1).

       292 Ga. App. 375 (664 SE2d 783) (2008).

       Poole testified that the land residual approach involves making a determination regarding true market value based on an amount that a developer would be willing to pay for undeveloped property, taking into consideration the development costs of the final completed project, that would allow the developer to earn “a minimal return on his investment.” According to Poole, his land residual analysis of the subject property resulted in a value of $7,500 to $8,000 per unit.

       (Punctuation omitted.) Blue Marlin Dev. v. Branch Banking &c. Co., 302 Ga. App. 120, 122 (1) (690 SE2d 252) (2010).

       (Punctuation omitted.) REL & Assocs. v. Fed. Deposit Ins. Corp., 304 Ga. App. 33, 35 (1) (b) (695 SE2d 370) (2010).

       See id.; Greenwood Homes, 302 Ga. App. at 596 (3); Blue Marlin, 302 Ga. App. at 122 (1); Statesboro Blues Dev. v. Farmers &c. Bank, 301 Ga. App. 851, 853-854 (690 SE2d 205) (2010).


author: SMITH, Presiding Judge.

text:
    A10A0902.
    ABRAHAM v. HANNAH.
    (702 SE2d 904)
   SMITH, Presiding Judge.

In this discretionary appeal, Mark Abraham appeals pro se from the trial court’s order entering judgment in favor of Janell Hannah in the amount of $1,575. Abraham asserts, in part, that the trial court entered this judgment after holding a hearing without giving him notice.

1. The record shows that on September 11, 2008, a jury returned a verdict in Abraham’s favor in the amount of $850 for medical expenses. On October 10, 2008, Hannah filed a motion for judgment under OCGA § 9-11-68 (b) based upon a previous offer of judgment letter in the amount of $2,500 sent to Abraham’s former counsel. It appears from the record before us that Abraham’s counsel moved to withdraw on October 20, 2008, and the trial court issued an order approving this withdrawal on October 28, 2008.

On January 21, 2009, the trial court issued an order stating:

This matter came on for hearing ... on November 25, 2008 on Defendant’s Motion for Judgment. The jury having returned a verdict in the amount of $850 in favor of Plaintiff, and it further appearing to the Court that Defendant made a previous Offer of Judgment in the amount of $2500, the Court finds that Defendant have judgment for attorney’s fees and expenses against Plaintiff in the amount of $2,425. The Court therefore enters final judgment in favor of Defendant Janelle Hannah in the net amount of $1,575, and the Clerk is directed to enter final judgment in that amount on the docket of the court.

The record maintained by the trial court clerk’s office does not document that notice was provided to Abraham of the November 25, 2008 hearing. Hannah’s brief acknowledges that a hearing was held and appellant did not appear, but it contains no argument that appellant received notice of the hearing. As a result, we must vacate the trial court’s order, and remand this case to the trial court to give notice and hold another hearing. See Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699, 701 (2) (240 SE2d 171) (1977) (holding “both parties should be notified of [a] hearing with an opportunity of attending and voicing any objection that may be properly registered [Cits.]).

Decided November 9, 2010.

Mark Abraham, pro se.

Bridges, Ormond & DeMetz, Frederick A. Johnson, Sharon E. Andrews, Jacob S. Eby, for appellee.

2. Abraham’s remaining enumerations of error are rendered moot by our holding in Division 1.

Judgment vacated and case remanded with direction.

Mikell and Adams, JJ., concur.


author: ANDREWS, Presiding Judge.

text:
    A10A1607.
    RAMCKE et al. v. GEORGIA POWER COMPANY et al.
    (703 SE2d 13)
   ANDREWS, Presiding Judge.

Robert A. Podorsky died as a result of injuries he suffered when he was struck by construction machinery while working as an invitee of a contractor hired by Georgia Power Company to perform work on a construction project at Plant Bowen, a Georgia Power-owned facility. Edna Ramcke, individually and as administratrix of Podorsky’s estate, sued Georgia Power, Southern Company Services, Inc., and The Southern Company alleging that they were liable for Podorsky’s wrongful death, pain and suffering, and other damages because, as owners or occupiers of the Plant Bowen premises, they negligently failed to comply with a duty imposed by OCGA § 51-3-1 to keep the project premises safe for invitees. The claims proceeded to a jury trial at which the trial court granted a directed verdict in favor of all three defendants. Ramcke appeals, and for the following reasons, we affirm.

“[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (508 SE2d 646) (1998); OCGA § 9-11-50 (a). It follows that, where there is no evidence to support an essential element of the nonmovant’s claim, no factual issue exists for the jury and a directed verdict is appropriate. Parsells v. Orkin Exterminating Co., 178 Ga. App. 51, 52 (342 SE2d 13) (1986). Construing the evidence presented in favor of Ramcke’s claims, all three defendants were entitled to a directed verdict because the evidence showed that an independent contractor with control of the project premises had the duty to keep the premises safe for its invitees, and the defendants had no such duty.

Georgia Power, a subsidiary of The Southern Company, owned the Plant Bowen premises and entered into a contract stating that Brad Cole Construction Company was hired as an independent contractor to perform grading and site preparation services on a project located on a portion of the plant. Southern Company Services, another subsidiary of The Southern Company, engineered and designed the project, drafted the contract between Georgia Power and Brad Cole, and was responsible for ensuring that Brad Cole performed in accordance with the contract. Brad Cole subcontracted for Contour Engineering to perform soil density testing on the project, and Podorsky was working for Contour as a geologist performing a soil density test on the project premises when he was struck by a Brad Cole soil compacting machine operated by a Brad Cole employee.

Although Georgia Power owned the project premises and entered into the contract hiring Brad Cole to perform the work on the project, Ramcke’s premises liability claim alleged that Southern Company Services and The Southern Company also occupied the project premises because all the defendants acted together in a joint venture, or as alter egos or agents of one another, to enforce the contract and to direct and control the work on the project. Thus, Ramcke claimed that all three defendants were liable under OCGA § 51-3-1 to keep the project premises safe because they owned or occupied the project premises and directed and controlled the work. She also claimed that all three defendants were third-party tortfeasors which, unlike Brad Cole and Contour, were not employers liable for compensation benefits to the injured employee, and were therefore not entitled to immunity from suit under the Workers’ Compensation Act (OCGA § 34-9-1 et seq.).

1. Ramcke claims the trial court erred by ruling that Southern Company Services was entitled to a directed verdict in its favor on the basis that it was a statutory employer under OCGA § 34-9-8, and was therefore entitled to workers’ compensation immunity from suit under OCGA § 34-9-11.

Although the trial court found no workers’ compensation immunity in favor of Georgia Power, the court reasoned that, because evidence showed Southern Company Services administered the contract on behalf of Georgia Power to ensure that Brad Cole complied with the contract specifications, Southern Company Services became the “defacto general contractor over the job,” and a statutory employer entitled to workers’ compensation immunity. We find no basis in the record for this ruling. Since Georgia Power undertook no contractual obligation to perform work on the project for another, but merely hired Brad Cole to perform the project work, Georgia Power was not a statutory employer liable for compensation to the injured employee under OCGA § 34-9-8, and had no immunity from suit under OCGA § 34-9-11. Yoho v. Ringier of America, Inc., 263 Ga. 338, 339-342 (434 SE2d 57) (1993); compare Holton v. Ga. Power Co., 228 Ga. App. 135, 136-137 (491 SE2d 207) (1997). There was evidence to support the trial court’s finding that Southern Company Services acted on behalf of Georgia Power on the project premises to ensure Brad Cole’s compliance with the terms of the contract. In so doing, Southern Company Services, like Georgia Power, undertook no contractual obligation to perform work on the project for another, so Southern Company Services was not a statutory employer under OCGA § 34-9-8 and had no immunity from suit on this basis under OCGA § 34-9-11. Yoho, 263 Ga. at 339-342.

2. We find no error in the trial court’s ruling that The Southern Company was entitled to a directed verdict on the premises liability claim on the basis that there was no evidence that it owned or occupied the project premises, and because it was not liable for alleged negligent actions with respect to the premises taken by its corporate subsidiaries, Georgia Power and Southern Company Services.

The trial court correctly found there was no evidence that The Southern Company occupied the project premises or otherwise exercised control over work on the project. To ensure that work on the project did not pose a security risk to the Plant Bowen facility, the contract between Georgia Power and Brad Cole required Brad Cole employees given access to the facility to submit to criminal background checks pursuant to guidelines established by The Southern Company and subject to audit by The Southern Company. But there was no evidence that The Southern Company occupied the project premises pursuant to these contract provisions, or that these provisions otherwise gave The Southern Company the right to control the time or manner of the project work.

Because Georgia Power and Southern Company Services are corporate subsidiaries which maintain legal identities apart from their parent corporation, the general rule is that the parent corporation, The Southern Company, is not liable for their alleged negligence. Enduracare Therapy Mgmt. v. Drake, 298 Ga. App. 809, 812-815 (681 SE2d 168) (2009).

Nevertheless, Georgia law recognizes that as a parent corporation, [The Southern Company] could be liable for any negligence on the part of [its corporate subsidiaries] under any one of three intertwined theories: (1) piercing the corporate veil; (2) apparent or ostensible agency; or (3) joint venture. Kissun v. Humana, Inc., 267 Ga. 419, 420 (479 SE2d 751) (1997).

Matson v. Noble Investment Group, 288 Ga. App. 650, 658 (655 SE2d 275) (2007). Ramcke points to no evidence sufficient to pierce the corporate veil between The Southern Company and its subsidiaries, and to no evidence sufficient to show that The Southern Company participated in a joint venture with its subsidiaries or acted as their agent or alter ego.

3. Although there was evidence that Georgia Power and Southern Company Services (acting as Georgia Power’s agent) owned the project premises or had employees or agents on the premises, the trial court did not err by directing a verdict in their favor.

Where a property owner or occupier surrenders temporary possession and control of the property to an independent contractor to perform work on the property, the owner/occupier is generally not liable under OCGA § 51-3-1 for injuries sustained on the property by the contractor’s invitees due to unsafe working conditions on the premises which the owner/occupier had no right to control. Grey v. Milliken & Co., 245 Ga. App. 804 (539 SE2d 186) (2000); Englehart v. OKI America, 209 Ga. App. 151 (433 SE2d 331) (1993), disapproved in part on other grounds, Baker v. Harcon, 303 Ga. App. 749, 755 (694 SE2d 673) (2010). Under these circumstances, the general rule is that the independent contractor has the duty to keep the work premises safe, and the owner/occupier has no such duty. Braswell v. Walton, 208 Ga. App. 610, 612 (431 SE2d 417) (1993); United States v. Aretz, 248 Ga. 19, 24-25 (280 SE2d 345) (1981). An exception to the general rule is recognized where the owner/occupier hires a contractor to perform work on the premises and “retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create a relation of master and servant or so that an injury results which is traceable to [the owner/ occupier’s] interference. OCGA § 51-2-5 (5).” Grey, 245 Ga. App. at 804.

The contract by which Georgia Power hired Brad Cole to perform the project work stated that Brad Cole agreed to furnish all labor, materials, and supervision on the project in accordance with the project specifications; that Brad Cole worked as an independent contractor directing and controlling the project work; and that Georgia Power had no right to direct or control the project work. The contract also provided that Southern Company Services may act as Georgia Power’s agent in administrative matters under the contract. Although there was evidence that Georgia Power, acting through Southern Company Services, exercised the right to require that Brad Cole comply with the contract provisions, there is no evidence that any of these provisions gave these defendants the right to direct or control the time and manner of the work, or that any defendant assumed such control. The fact that the contract provided that Georgia Power could inspect the work to ensure compliance with contract terms, or even stop the work if it was not in compliance, did not amount to a right to control the time or manner of the work. Englehart, 209 Ga. App. at 152. Similarly, provisions in the contract allowing Georgia Power to modify work specifications in exchange for an equitable adjustment in the contract price provided a means to modify the work to be performed under the contract, but not a right to control the time or manner of the work done pursuant to the modification. A Brad Cole worksite foreman testified that he took no direction from Georgia Power or Southern Company Services as to how or when to do the work, and that it was Brad Cole’s responsibility to hire qualified equipment operators and to ensure that Podorsky was protected from being hit by equipment when he was performing soil tests. Southern Company Services representatives at the project premises also testified that Brad Cole had complete control over the project premises; that they did not tell Brad Cole how or when to do the work, but were only concerned with seeing that the work was done according to the contract, including compliance with the work safety plan that the contract required Brad Cole to devise.

The record shows that Georgia Power and Southern Company Services surrendered possession and control of the project premises to Brad Cole to perform the work as an independent contractor; that none of the defendants interfered with Brad Cole’s status as an independent contractor; and that Brad Cole had the duty to keep the project premises safe for its invitees, including Podorsky. On this record, there is no evidence that any defendant had a duty under OCGA § 51-3-1 to keep the project premises safe for Podorsky.

4. Because none of the evidence that Ramcke claims was erroneously excluded from the trial was relevant to the issue of whether the defendants had a duty under OCGA § 51-3-1 to keep the project premises safe, these claims are moot.

Decided October 18, 2010

Reconsideration denied November 10,2010

Strain & Rutledge, John M. Strain, Genevieve L. Frazier, for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Hawkins, Parnell, Thackston & Young, Warner S. Fox, Christopher S. Keith, for appellees.

Judgment affirmed.

Ellington and Doyle, JJ., concur.

       The contract between Georgia Power and Brad Cole specifically provided that “Southern Company Services, Inc. may act as [Georgia Power’s] agent for soliciting bids and for certain administrative matters under the Contract.”

       Although the trial court granted a directed verdict in favor of Southern Company Services for an incorrect reason (see Division 1, supra), we affirm under the right for any reason rule. See City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).


text:
    A08A1243.
    DOLLAR et al. v. GRAMMENS et al.
    (702 SE2d 791)
    Decided November 10, 2010.

      Holland, Schaeffer, Roddenbery & Blitch, James D. Blitch IV, for appellants.

      Harben, Hartley & Hawkins, Phillip L. Hartley, Martha M. Pearson, Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Wayne S. Melnick, for appellees.
   PHIPPS, Presiding Judge.

In Grammens v. Dollar, the Supreme Court of Georgia reversed Division 1 of this court’s opinion in Dollar v. Grammens. Accordingly, we vacate Division 1 of our earlier opinion and adopt the opinion of the Supreme Court as our own in its stead. The remainder of our earlier opinion remains unchanged.

Judgment affirmed.

Barnes, P. J., and Johnson, J., concur.

       287 Ga. 618 (697 SE2d 775) (2010).

       294 Ga. App. 888 (670 SE2d 555) (2008).