author: Johnson, Judge.

text:
    A93A1002.
    COOK v. THE STATE.
    (436 SE2d 61)
   Johnson, Judge.

Flint David Cook appeals from his convictions for aggravated assault with intent to rape and battery. He also appeals the sentence imposed on the battery count.

1. In his first enumeration of error, Cook asserts that the trial court erred in denying his motion for a directed verdict of acquittal in that the evidence was insufficient to support a conviction on the charge of aggravated assault with intent to rape. We must look to the evidence the trial court had before it at the time the motion for directed verdict was made.

Jane Moxley testified that she met Cook and co-defendant Pacer Taylor, who is not a party to this appeal, at a bar near her home. Taylor asked Moxley to dance. At first, Moxley refused, but she later agreed to dance with him. When Taylor introduced Moxley to his friend, Cook, Moxley realized that both men were deaf. Communicating through hand signals, she invited Cook, Taylor and another friend to share a marijuana cigarette in her car in the parking lot. After smoking one marijuana cigarette the group returned to the bar, where they all continued to drink and socialize. Sometime later, Moxley agreed to smoke another marijuana cigarette with Taylor and Cook. This time they sat in Taylor’s pickup truck. Because of a disturbance in the parking lot, Taylor started the engine and began to drive out of the lot. Using hand signals, Moxley asked where they were going, and Taylor indicated that they were driving around the block. Instead, Taylor drove onto an interstate highway. Cook placed his hand on Moxley’s leg. Moxley removed his hand, but Cook continued to try to rub Moxley’s legs and put his hands between her legs. She pushed his hands away more and more forcefully, and communicated “no” to him. Cook then began hitting Moxley’s face and head. Moxley became frightened and pulled at the steering wheel in an effort to stop the truck. The truck swerved off the roadway, and came to a stop. Moxley attempted to escape by climbing across Taylor in order to get out of the truck on the driver’s side, but Cook grabbed her hair and started pulling her out of the passenger side. Taylor kicked her toward Cook, and she fell to the ground. Cook continued hitting and slapping her, and tore off her clothing. He tried to force her to perform oral sex on him, but she pushed him away. At this point in the attack, Moxley testified that she believed she passed out. Her next recollection was seeing Cook standing over her zipping his pants. Taylor then got on top of her and attempted to have sexual intercourse with her. She was easily able to push him away, and, wearing only her tennis shoes, she ran onto the highway. A truck driver stopped, picked her up, and took her to a convenience store to call the police.

“The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Owens v. State, 204 Ga. App. 579, 581 (3) (420 SE2d 79) (1992). Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence and all reasonable deductions therefrom sufficient to enable a rational trier of fact to find the elements of aggravated assault with intent to rape beyond a reasonable doubt in accordance with the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying Cook’s motion for a directed verdict of acquittal.

2. Cook asserts that the trial court erred in charging the jury on the offense of aggravated assault, by reading OCGA § 16-5-21 (a) in its entirety, including portions which were inapplicable to the charge as set forth in Cook’s indictment.

“It is generally not error to give an entire Code section in a charge, even though part of the section may be inapplicable to the allegations and the evidence. [Cit.]” Cottingham v. State, 206 Ga. App. 197, 198 (2) (424 SE2d 794) (1992). However, “[i]t is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.” (Citations and punctuation omitted.) Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992). In its charge, the court instructed the jury as follows: “A person commits aggravated assault when he assaults another person with the intent to murder, rape or rob or with a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

In this appeal, Cook ignores the clarification of this charge given to the jury shortly after it began its deliberations, in which the court stated: “Earlier, with regard to aggravated assault, there was too much included, and I want to correct that. A person commits aggravated assault when he assaults another person with intent to rape. . . . Other parts (of the earlier charge) with regard to weapons and that sort of thing are not involved in this case.” This recharge made specific reference to the potentially over-inclusive initial charge and eliminated any reasonable possibility that the jury convicted Cook of the crime in a manner not charged in the indictment. Compare Blige v. State, 208 Ga. App. 851 (432 SE2d 574) (1993).

Decided September 21, 1993.

John H. Tarpley, Melissa M. Nelson, for appellant.

J. Tom Morgan, District Attorney, Stacy Y. Cole, Barbara B. Conroy, Assistant District Attorneys, for appellee.

3. The trial court sentenced Cook to seven years of incarceration to serve four years in connection with the aggravated assault conviction. He received the same sentence, to run concurrent, on the battery charge. The State concedes, and we agree, that the sentence imposed on the misdemeanor battery count exceeds the maximum 12 months imprisonment penalty for misdemeanor offenses. See OCGA §§ 16-5-23.1 and 17-10-3. Accordingly, we must vacate that portion of the trial court’s sentencing order related to the battery conviction only, and remand the case to the trial court for resentencing on the battery count.

Judgment affirmed. Sentence vacated in part and case remanded for resentencing as to the battery count only.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A2383.
    FLOWERS v. THE STATE.
    (436 SE2d 63)
   Andrews, Judge.

This case was originally before this court with the appeals of two co-defendants. Moore v. State, 207 Ga. App. 673 (428 SE2d 678) (1993). The facts are fully set out therein. This case was transferred to the Supreme Court because all three enumerations were constitutional attacks on the sentencing provisions of OCGA § 16-13-30.

These attacks having all been considered and rejected by the Supreme Court, see Hall v. State, 262 Ga. 596 (1) (422 SE2d 533) (1992), the case was transferred back to this court and is affirmed.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

Decided September 21, 1993.

Harrison & Willis, Bennett T. Willis, Jr., for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.


text:
    A93A1051.
    DOYLE DICKERSON TILE COMPANY v. KING et al. PACE CONSTRUCTION CORPORATION v. KING et al.
    A93A1052.
    (436 SE2d 63)
   Andrews, Judge.

King fell and was injured on July 17, 1989, while walking on a sidewalk. She, along with her husband who claimed loss of consortium, filed a premises liability action on September 22, 1989 against Laing Properties, Inc., the manager of the property on which the sidewalk was located. During subsequent discovery, Laing Properties identified Doyle Dickerson Tile Company (Dickerson Tile) as a supplier of materials for the sidewalk, and Pace Construction Corporation (Pace Construction) as the contractor on the sidewalk. On June 28, 1991, shortly before the expiration of the statute of limitation, King filed a motion to add Dickerson Tile and Pace Construction as party defendants along with an amended complaint setting forth additional claims against both defendants for negligent installation and construction of the sidewalk. On August 21, 1991, after the statute of limitation had expired, the trial court granted King’s motion to add both defendants and approved service of the amended complaint. A copy of the amended complaint was served on Pace Construction on September 27, 1991, and on Dickerson Tile on October 1, 1991. Both added defendants subsequently moved for summary judgment claiming the action against them was barred because the statute of limitation expired before they were added as parties. The trial court denied both motions, and we granted these interlocutory appeals.

Under OCGA § 9-11-21, a party may be added by order of the court on the motion of any party at any stage of the action on such terms as are just. See Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (308 SE2d 211) (1983). However, where a new party defendant is added by court order after the expiration of the statute of limitation, the provisions of OCGA § 9-11-15 (c) apply to determine whether or not the addition of the party relates back to the commencement of the action and is considered timely. Cobb v. Stephens, 186 Ga. App. 648 (368 SE2d 341) (1988).

In denying summary judgment, the trial court determined that the requirements of OCGA § 9-11-15 (c) did not apply because although the order adding the new defendants was entered after the expiration of the statute of limitation, King filed the motion to add the defendants pursuant to OCGA § 9-11-21 shortly before the expiration of the statute of limitation. The trial court reasoned that since King could not control the time taken by the court to rule on the motions, it would be unfair not to toll the statute of limitation for the period of time the court had the motion under advisement.

There is no authority for the trial court’s determination that the statute of limitation was tolled on this basis. It was the duty of counsel to obtain a timely ruling on the motion to add defendants. See Watts v. State, 155 Ga. App. 376, 377 (271 SE2d 29) (1980). The motion to add and a supporting brief were filed 19 days prior to the expiration of the statute of limitation along with a “Notice of Motion” also prepared by counsel which stated, “said motion will be set down for hearing before the court on a date and time to be set in accordance with regular court proceedings.” The motion and notice were served only on the existing defendant, Laing Properties. There is no indication in the record that the motion was contested or that a hearing was held on the motion before the trial court. The trial court signed an order granting the motion on August 21, 1991, indicating that the motion had been considered based on King’s brief and the record. There is nothing in the record which indicates the trial court refused any request by counsel to enter an earlier ruling on the motion. King was not prejudiced by any action or inaction by the trial court. The statute of limitation expired prior to the addition of Pace Construction and Dickerson Tile by court order, and OCGA § 9-11-15 (c) applies to determine whether the action was timely commenced against the additional defendants.

In Cobb, supra, we recognized “a requirement that there be a strict adherence to the letter of OCGA § 9-11-15 (c) by the one who would rely upon it as authority for the addition of a new party to an existing action. In A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), this court held that OCGA § 9-11-15 (c) may authorize the addition of a new party defendant and a relation back as to that new defendant, but only if the three elements which are specifically enumerated in that provision have first been satisfied. Those three elements are: (1) That the amendment adding the new defendant arise out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and, (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him.” (Emphasis in original.) Id. at 649-650; Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (380 SE2d 78) (1989). All three elements must be satisfied to invoke the relation-back provisions of OCGA § 9-11-15 (c). A. H. Robins Co., supra.

Decided September 21, 1993.

Saveli & Williams, Charles M. Dalziel, Jr., Steven R. Thornton, for appellant (case no. A93A1051).

Sullivan, Hall, Booth & Smith, Michael A. Pannier, Eleanor L. Martel, for appellant (case no. A93A1052).

Goldstein & Redic, Dennis M. Redic, Gilbert & Montlick, Fred A. Gilbert, for appellees.

Pace Construction and Dickerson Tile had the burden on summary judgment to demonstrate that at least one of the three requirements of OCGA § 9-11-15 (c) was not satisfied. Both additional defendants filed affidavits stating they were not aware of and had absolutely no notice of the action until they were served with the amended complaint. This shifted the burden to the Kings to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c). See Cobb, supra at 651; Bailey v. Kemper Group, 182 Ga. App. 604, 606-607 (356 SE2d 695) (1987); compare Robinson v. Piggly Wiggly of Calhoun, 193 Ga. App. 675 (388 SE2d 754) (1989). There is nothing in the record which responds to or contradicts the defendants’ affidavits. On the present record, both Pace Construction and Dickerson Tile have demonstrated, as a matter of law, that at least one of the three elements of OCGA § 9-11-15 (c) has not been satisfied, and that the relation-back provisions do not apply.

Since neither of the additional defendants was added to the action prior to the expiration of the statute of limitation, both were entitled to summary judgment, and the trial court erred by denying the summary judgment motions of Pace Construction and Dickerson Tile. Speer, Inc. v. Manis, 164 Ga. App. 460 (297 SE2d 374) (1982).

Judgments reversed.

Pope, C. J., and Birdsong, P. J., concur.

       Pace Construction also moved for and was denied summary judgment on the merits of the negligence claim.

       We need not address the denial of Pace Construction’s other motion for summary judgment on the merits of the claim.


text:
    A93A1136.
    TURNER v. THE STATE.
    (436 SE2d 66)
   Johnson, Judge.

Dexter Tyrone Turner was convicted on one count of sale of cocaine. He appeals his conviction and the denial of his motion for a new trial.

1. Turner alleges that the evidence of identification presented at trial was insufficient to support the conviction. An undercover agent purchased two “rocks” of crack cocaine from a male she described in her report as wearing red tennis shoes, a red T-shirt, and navy and beige short overalls. The agent contacted fellow officers informing them that she was out of the area and described the suspect. The officers went to the scene immediately, identified the suspect based on the description furnished by the agent, and obtained Turner’s name and various other information from him. Within three hours of the sale, the agent picked Turner’s picture out of a six-photo line-up. She also positively identified Turner at trial. Turner and his girl friend testified that he never owned a pair of shorts fitting the description offered by the agent, although both admitted that he had a red T-shirt and red tennis shoes.

As we have frequently held, the jury is the sole and exclusive judge of the credibility of witnesses, and after verdict, a reviewing court must construe the evidence in favor of the judgment rendered. Even where there is considerable evidence in the record to authorize the jury to have found the defendant not guilty, the jury in criminal cases is the arbiter of all conflicts. Having resolved such issues against the defendant, if there is evidence to support the verdict, the trial court does not err in rendering final judgment on the verdict. See Storey v. State, 205 Ga. App. 610, 611 (1) (422 SE2d 879) (1992). The agent positively identified Turner as the perpetrator of the crime charged. The evidence presented at trial was sufficient to authorize the jury to find Turner guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

2. Turner asserts as error the absence from the record on appeal of three photographs of the neighborhood where the crime was committed, which were introduced as evidence at the trial. Turner acknowledges that procedures exist for supplementing the record and admits in his brief that “omission [of these exhibits] is not material” and that the “omission from the record does not infect the validity of the underlying conviction. . . .” Turner concedes that the substance of his appeal is not affected by the absence of the exhibits. Because this alleged error is not supported by argument or citation to authority, we deem it abandoned in accordance with Court of Appeals Rule 15 (c) (2).

3. After this appeal was docketed, but before the submission of briefs, Turner informed his attorney of various facts which raise an ineffective assistance of counsel claim. Where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989); Kinney v. State, 199 Ga. App. 354 (2) (405 SE2d 98) (1991). Although Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991) suggests that such claims be articulated at “the earliest practicable moment” the issue may be raised for the first time in a direct appeal if, as in the instant case, the direct appeal marks the first appearance of new counsel. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991). The State, in its brief, does not challenge Turner’s request. Accordingly, the case is remanded to the trial court for the sole consideration of the issue of ineffective assistance of counsel.

Decided September 21, 1993.

L. Elizabeth Lane, for appellant.

Willis B. Sparks III, District Attorney, Elizabeth K. Bobbit, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

McMurray, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A93A1008.
    HESTERLEE v. THE STATE.
    (436 SE2d 32)
   Blackburn, Judge.

In a fifteen-count indictment, the appellant, Neal Franklin Hesterlee, was charged with six counts of aggravated assault, four counts of armed robbery, two counts of sexual battery, and one count each of burglary, impersonating a police officer, and possession of a firearm by a convicted felon. Three co-defendants were also charged with aggravated assault, armed robbery, burglary, and impersonating an officer. Two of the three co-defendants pled guilty to several of the offenses charged prior to trial. Following a separate trial by jury, Hesterlee was found guilty on all counts and received a total sentence of life in prison plus 35 years. This appeal follows the trial court’s denial of his motion for a new trial.

The evidence produced at trial viewed in the light most favorable to the jury’s verdict shows that Hesterlee and a co-defendant appeared at the front door of a Lake City home under the guise of being police officers at approximately 5:00 p.m. on the afternoon of March 20, 1992. A mother, son, daughter, the daughter’s boyfriend, and a male friend of the son, were in the home when Hesterlee and a co-defendant announced their presence, wielding guns and badges. The men forced their way into the home, shouted that they were police officers, and placed a gun to the son’s head. After the son and his friend fell to the floor in the living room as demanded by the intruders, the men forcefully led the son and his friend into a bedroom with the other victims, and demanded that they provide them with money, drugs, cash, and jewelry, threatening bodily injury if the demands were not met. Another co-defendant subsequently entered the home wielding a gun and joined the two men while the fourth co-defendant remained outside in an automobile parked in the driveway of the home. While the victims were face down on the floor of the bedroom as demanded by the men, the men ransacked the home in search of the desired items. They also tied the son’s hands behind his back with plastic handcuffs often used by law enforcement officials.

Thereafter, Hesterlee, identified by the victims as the leader of the group, removed the daughter’s boyfriend from the bedroom and made specific requests of him for money and drugs. Hesterlee struck the young man in the face twice when the young man could not provide him with any information on the requested items. Hesterlee subsequently removed the daughter from the room, “roughed her up” when she was unable to provide him with information on the items requested, and returned her to the bedroom .with the rest of the victims. After viewing abusive behavior exhibited by the “officers,” the mother repeatedly requested to see a form of identification. In response to the mother’s request, Hesterlee grabbed the mother’s hair and informed her that he was not a cop, but was a psycho, her worst nightmare and threatened to kill her. He subsequently put his hand inside of the mother’s panties and placed a finger inside her rectum.

Hesterlee next removed the daughter from the room again and forcibly led her into another bedroom. Once inside the other bedroom, he removed her clothing from the waist down, touched her vagina, and made obscene comments to her until a co-defendant entered the room and informed him that they needed to leave because of the unexpected arrival of one of the son’s friends. As the friend attempted to enter the home, one of the co-defendants in the automobile parked in the driveway of the home sounded the horn, warning the others of his entry. The friend was greeted at the door by a co-defendant displaying a gun. When he entered the home, this victim was hit, kicked in the face, and pulled across the floor by Hesterlee and a co-defendant.

Hesterlee and his co-defendants took various items from the victims and the home, including money and jewelry. Upon his departure from the home while wielding a gun, he was seen and identified by a passerby. Based upon information received from Hesterlee’s son and a co-defendant, Hesterlee and the other co-defendants were found at a local motel in possession of guns, false police badges, and property belonging to the victims. The police also recovered plastic flex cuffs.

Shortly after their arrest, two of the co-defendants provided the police with written statements implicating Hesterlee as a participant in the robbery. However, at trial, after the men pled guilty to several of the offenses, those co-defendants recanted their previous statements and joined Hesterlee in denying his participation in the venture.

1. Hesterlee contends that a directed verdict of acquittal was warranted on the offenses charged as the evidence produced at trial was insufficient to support the jury’s verdict. We disagree.

In a criminal case, a directed verdict of acquittal is warranted only where there is no conflict in the evidence and the evidence introduced at trial with all reasonable deductions and inferences therefrom demands a verdict of not guilty, the only legal finding possible. Crumbley v. State, 207 Ga. App. 33 (427 SE2d 27) (1993). “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citation and punctuation omitted.) Id. at 34.

In the case sub judice, the evidence produced at trial shows that Hesterlee assailed all of the victims in addition to touching the intimate parts of the mother and daughter during the robbery venture while holding them at gunpoint. Although Hesterlee and two co-defendants testified that Hesterlee did not participate in the criminal venture, this court, as an appellate body, “does not weigh the evidence or determine witness credibility. [Cit.]” Williams v. State, 208 Ga. App. 12, 14 (430 SE2d 157) (1993). “Determinations of witness credibility, weighing the evidence, and resolutions of conflicts presented by the evidence are within the province of the jury. [Cit.]” Madaris v. State, 207 Ga. App. 145, 147 (2) (427 SE2d 110) (1993). Viewing the evidence in the light most favorable to the jury’s verdict, there is ample evidence from which a rational trier of fact could determine the guilt of Hesterlee beyond a reasonable doubt of the offenses charged.

Hesterlee further argues that a directed verdict was warranted because the indictment alleged the use of a model 381 pistol and the evidence produced at trial showed that the weapon used was a model 38C. However, this error in the model of the gun used is not sufficient to constitute a fatal variance which would warrant a directed verdict of acquittal. As we stated in Hechevarria v. State, 202 Ga. App. 502, 503-504 (414 SE2d 723) (1992), where we rejected a similar argument involving a variance in the brand name of a television contained in the indictment and the one found in the defendant’s possession, “[a] variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. Since it does not appear that [Hesterlee] was misled or prejudiced, it was not error for the trial court to deny [his] motion for directed verdict.” (Citations and punctuation omitted.) Moreover, our decision in Ewing v. State, 169 Ga. App. 680, 681 (1) (314 SE2d 695) (1984), relied upon by Hesterlee, does not demand a different result because the description of the gun was an unnecessary fact contained in the indictment which need not be proven.

2. Next, Hesterlee maintains that the trial court erred in denying his motion to dismiss his court-appointed attorney based upon his disappointment in the manner in which the defense was being conducted. Hesterlee asserts that the trial court’s failure to grant this motion resulted in an abridgment of his constitutional right to counsel.

As we recently stated in Mack v. State, 209 Ga. App. 104, 106-107 (2) (432 SE2d 680) (1993), “[a] criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.” (Citations and punctuation omitted.) We find that the trial court did not abuse its discretion in denying this motion.

In his pro se enumeration of error, as asserted below in his motion to dismiss, Hesterlee claims that his trial counsel was ineffective because he failed to adequately prepare for his defense and expressed an intention to withdraw from representation on several occasions. A hearing was held below on Hesterlee’s motion for a new trial at which time this issue was considered before the trial court. However, we find no merit in these contentions.

“The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The mere fact that defendant’s counsel attempted to withdraw from the case . . . does not demonstrate deficient performance.” (Citation and punctuation omitted.) Middlebrooks v. State, 208 Ga. App. 23, 24 (430 SE2d 163) (1993). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Assuming arguendo that counsel’s failure to adequately prepare Hesterlee’s defense was unreasonable, considering the overwhelming evidence of Hesterlee’s guilt of the offenses charged, we cannot say that Hesterlee’s defense was prejudiced as a result of such deficiency, a necessary requirement in a claim of ineffectiveness. Williams v. State, 207 Ga. App. 418 (427 SE2d 787) (1993). Cf. Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990). Accordingly, we must agree with the trial court that Hesterlee was not denied effective assistance of counsel.

3. Lastly, Hesterlee through counsel and pro se asserts that the trial court erred in denying his motion to suppress the victims’ in-court identification of him as the assailant because such testimony was based on the victims’ tainted view of him at a probation revocation hearing. We disagree.

“Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification . . . will be set aside only if the [pre-trial] identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Furthermore, even if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citations and punctuation omitted.) Taylor v. State, 203 Ga. App. 210, 211 (2) (416 SE2d 554) (1992). Likewise, in Foster v. State, 156 Ga. App. 672 (2) (275 SE2d 745) (1980), relied upon by Hesterlee, we recognized that a witness’ in-court identification may be admitted so long as it has an independent origin from an illegal identification procedure. .

Pretermitting the issue of whether the pre-trial identification of Hesterlee at the probation revocation hearing was impermissibly suggestive, inasmuch as the record on appeal does not contain a transcript of such hearing, we find that the trial court did not err in admitting the victims’ in-court identification of Hesterlee. The victims’ in-court identification of Hesterlee was based upon an independent foundation, that is, their visual observation of Hesterlee during the tumultuous incident.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided September 9, 1993

Reconsideration denied September 22, 1993.

Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

       Hesterlee filed his pro se motion to dismiss on September 11, 1992, although it was dated September 8, 1992, one day before the beginning of the three-day jury trial in this case.

       In Huggins v. State, 173 Ga. App. 457 (5) (326 SE2d 821) (1985), we likewise considered pro se enumerations of error on the ineffectiveness of counsel submitted by an appellant although he had been represented on appeal by appointed counsel.


author: McMurray, Presiding Judge.

text:
    A93A1385, A93A1386.
    LAKES et al. v. MARRIOTT CORPORATION et al. (two cases).
    (436 SE2d 36)
   McMurray, Presiding Judge.

Plaintiffs Delores Toni Lakes and Willie K. Lakes brought a slip and fall and loss of consortium case in the Superior Court of Fulton County against Marriott Corporation and two John Does. Pursuant to local rule, the case was sent to arbitration. Following the issuance of an arbitration award in favor of defendants, plaintiffs filed a demand for jury trial with the clerk of court. No such demand was filed with the court administrator as required by the local rule. Thereafter, defendant Marriott moved for the entry of a consent judgment in its favor in accordance with the local rule. Before a judgment was entered, plaintiffs filed a notice of voluntary dismissal without prejudice. Then, plaintiffs filed a renewal action, making virtually the same allegations they made in the original suit. Defendants moved for judgment in each action. Following a hearing, the trial court determined that plaintiffs’ attempted dismissal of the original action was ineffective. Accordingly, the trial court entered judgment for defendants in each case. Plaintiffs appeal. Held:

1. Under the local rule, i.e., sections 16 and 17 of Rule 1000, any party may “ ‘file a demand for trial within thirty (30) days of the filing of the arbitration award with the Court Administrator or his designee who shall make a notation and entry of the date of filing the award and of the trial demand; . . . filing such demand for trial will entitle all parties to a de novo trial. . . .

“ ‘Failure or refusal to file within thirty (30) days a demand for trial by all parties shall constitute a waiver of trial by jury or non-jury and be deemed a consent to the arbitration award; after the expiration of such thirty (30) days without filing of a demand, any party may move for the entry of a consent judgment and dismissal of prejudice based upon the arbitration award. . . .’”

“Rule 1000 expressly provides that the demand for trial be filed with the court administrator or his designee, within 30 days of the filing of the award with the court administrator. Since this was not done, [defendants were] entitled to judgment [in the original action].” Turner v. MARTA, 197 Ga. App. 447 (398 SE2d 794).

2. “The right to dismiss given to the plaintiff by [OCGA § 9-11-41 (a)] cannot be exercised after entry in the trial court of a verdict or judgment for the defendant because the right given to the plaintiff by that section cannot be used to deprive the defendant of victory thus gained. Cooper v. Rosser, 233 Ga. 388 (1) (211 SE2d 303) (1974). This principle also has been applied to attempts to dismiss made by plaintiffs between the time when the court announces judgment and the time judgment actually is entered. Jones v. Burton, 238 Ga. 394, 395 (1) (233 SE2d 367) (1977).” Kilby v. Keener, 249 Ga. 667, 668 (293 SE2d 318). As it is said: “ ‘ “[T]he announcement by a trial judge of a decision that will terminate a civil case, though that decision has not been formally reduced to writing and entered, will preclude the filing of a voluntary dismissal after the announcement but before the judgment is actually entered by the trial judge. Jones v. Burton, 238 Ga. 394, 396 (233 SE2d 367) (1977).’ (Punctuation omitted.) Pizza Ring Enterprises v. Mills Mgt. Sources, 154 Ga. App. 45 (2) (267 SE2d 487) (1980). ‘ “It is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” ’ Groves v. Groves, 250 Ga. 459 (298 SE2d 506) (1983).” Johnson v. Wade, 184 Ga. App. 675, 676 (362 SE2d 469).

Plaintiffs assert they were entitled to dismiss the original action because the trial court did not announce the judgment that it intended to enter before the dismissal was filed. We disagree. Under the local rule, defendants were entitled to the entry of a consent judgment based on the arbitrators’ award because plaintiffs did not file a timely demand for trial with the court administrator. Turner v. MARTA, 197 Ga. App. 447, supra. Thus, the handwriting was on the wall and plaintiffs knew the actual result of their case. Compare C & S Indus. Supply Co. v. Proctor & Gamble Paper Products Co., 199 Ga. App. 197 (404 SE2d 346). It follows that the dismissal notice was not effective and that the trial court did not err in entering judgment in favor of defendants in the original action. Kilby v. Keener, 249 Ga. 667, 668, supra.

3. Because the trial court entered judgment in favor of defendants in the original action, it cannot be said that the trial court erred in entering judgment in favor of defendants in the renewal action. See Morgan v. Dept. of Offender Rehabilitation, 166 Ga. App. 611, 613 (2) (305 SE2d 130) (doctrine of res judicata applies even where earlier judgment was entered summarily or by default).

Judgments affirmed.

Johnson and Blackburn, JJ., concur.

Decided September 9, 1993

Reconsideration denied September 22, 1993

Simmons & Toliver, Joseph H. King, Jr., for appellants.

Gorby & Reeves, Michael J. Gorby, Martha D. Turner, Amanda H. Burri, for appellees.


text:
    A93A1435.
    BENNETT v. STATE OF GEORGIA.
    (436 SE2d 40)
    Decided September 10, 1993
    Reconsideration denied September 22, 1993.
    James L. Bennett, pro se.

      Donnie Dixon, District Attorney, for appellee.
   Blackburn, Judge.

On March 9, 1990, the appellant, James Bennett, was issued a traffic citation for speeding. He moved for a speedy trial pursuant to OCGA § 17-7-170, and on November 30, 1992, because he was not tried within the next regular court term, the trial court dismissed the charge against Bennett. Subsequently, Bennett filed a pro se motion for attorney fees against the State of Georgia, seeking $4,046 as reasonable expenses of his pro se defense of the traffic offense prosecution. This appeal follows the trial court’s denial of that motion.

Bennett sought attorney fees pursuant to OCGA § 15-19-14 (e), which pertains to liens for attorney services provided. He cites no authority for his entitlement to recover expenses of litigation for defending himself in the criminal proceeding other than general references to the due process and equal protection clauses of the United States and the Georgia Constitutions. There is no statutory authority in Georgia that authorizes attorney fees in a criminal action. Cf. Garcia v. Allen, 202 Ga. App. 529 (414 SE2d 742) (1992). We likewise find no basis for such an award under the United States and Georgia Constitutions.

In fact, pursuant to the sovereign immunity preserved in Ga. Const., Art. I, Sec. II, Par. IX (e), the State of Georgia is immune from Bennett’s claim for attorney fees. The trial court thus properly denied Bennett’s motion.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1603.
    MILFORD v. WILSON.
    (436 SE2d 38)
   McMurray, Presiding Judge.

Plaintiff Wilson was injured when struck by a gutter which had partially dislodged and fallen from a commercial building. Plaintiff filed this negligence action against the owners of the building. The building was partially owned by defendant Milford (14 East Broughton Street) and by defendant Kantsiper (12 East Broughton Street). We granted Milford’s application in order to review the denial of his motion for summary judgment. Held'.

There was no ownership in common of any portion of the building. The gutter in question predated either of defendants’ ownership of their respective portions of the building and was secured in part on either portion of the building. The endlap of the gutter located on 12 East Broughton Street dislodged causing a portion of the gutter to bend downward and strike plaintiff. The entire portion of the gutter which fell was attached to 12 East Broughton Street. Although there was some displacement of the gutter at 14 East Broughton Street, this was entirely caused by the collapse of the other end of the system. After the incident in question, the gutter continued to be supported by the endláp on 14 East Broughton Street and by a downspout located at the brick wall between the two sides of the building if not on the 12 East Broughton Street side of the property line.

Defendant’s motion to strike plaintiff’s supplemental brief is denied. In her supplemental brief, plaintiff embraces an issue already argued by defendant Kantsiper, that plaintiff’s deposition testimony contradicts other evidence in the case as to how and where the gutter fell so as to present an issue of fact in regard to whether the portion of the gutter traversing the front of the premises owned by defendant Milford was involved in the event. The issue eventually argued by all of the parties is whether plaintiff’s deposition may be viewed as containing any credible evidence on the question of the manner in which the gutter fell. The testimony upon which plaintiff and defendant Kantsiper rely is at best vague and ambiguous, but more importantly it is accompanied by at least two separate instances in the same deposition where plaintiff disavowed any knowledge in regard to the manner in which the gutter fell. As plaintiff has given no explanation for the contradictory testimony, such must be construed against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680).

In denying the motion for summary judgment, the superior court cites Intl. Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228), and focuses on the question of whether defendants were responsible to maintain the gutter to protect individuals on the public sidewalk. While each defendant had a separate duty to protect those on the adjacent public sidewalk from injury due to defects in their property, there was no joint undertaking with regard to maintenance of the gutter. As illustrated by Wilensky v. Robinson, 203 Ga. 423 (47 SE2d 270), each defendant owned the portion of the gutter on his side of the property and had no property right in the portion of the gutter on the other’s portion of the building. While each defendant owed his neighbor an easement of support there is no suggestion of a breach of this duty by Milford since the gutter fell at the other end only. The superior court’s apparent assumption that both defendants had some sort of joint responsibility for the gutter is not consistent with Wilensky which, while addressing only property rights, must be instructive here. As Milford had no property rights in the other end of the gutter, he had no right, much less a duty, to maintain or repair it. We fail to see how he could be held liable for not doing that which he had no right to do. Milford is entitled to the grant of his motion for summary judgment.

Decided September 9, 1993

Reconsideration denied September 22, 1993

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Sandra G. Kirk, for appellant.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Hermann W. Coolidge, Jr., Kent, Williamson & Brannon, W. 0. Williamson III, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge. Pope, Chief Judge,

text:
    A93A0888.
    VICKERY v. PPG INDUSTRIES, INC.
    (436 SE2d 68)
   Birdsong, Presiding Judge.

After the vehicle driven by appellant-plaintiff Vickery struck a parked trailer owned by appellee-defendant PPG Industries, Inc., Vickery brought this tort action to recover for damages, claiming that the trailer had been negligently and dangerously parked. A jury returned a verdict in favor of PPG. Vickery appeals from the judgment entered on this defense verdict. Held:

1. During PPG’s direct examination of the police officer who investigated the scene, the officer referred to his incident report. Vickery interposed the following oral motion: “In anticipation, I would object to any question . . . asking for an opinion that goes to any ultimate issues in this case.” Counsel for appellee replied, “I’m just asking him what he marked on the report.” The trial court ruled that appellee could not “ask the officer what is the ultimate question to be decided by the jury ... if [you] are planning on doing that and I know you are not.” Appellee then asked the officer what he marked on his incident report. Over appellant’s objection that the answer called for a conclusion, the officer was permitted to describe his form incident report as having space for categories labeled “contributing factors.” Referring to appellant’s vehicle, the officer marked as a contributing factor “misjudged clearance.” For appellee’s parked trailer, no contributing factors were marked. On appeal, appellant enumerates as error the denial of his motion for new trial on the ground that appellee introduced improper opinion evidence on the ultimate issue of negligence in violation of the trial court’s ruling.

(a) There is considerable doubt whether this issue has been properly preserved for appellate review. Ordinarily, where an objection to evidence is raised for the first time in a motion for new trial or before this court, nothing is presented for review. Jackson v. State, 209 Ga. App. 53, 55 (5) (432 SE2d 649) (1993); Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914). Appellant urges that his objection to the officer’s answer was preserved by his motion for new trial, relying upon Reno v. Reno, 249 Ga. 855 (1) (295 SE2d 94). There, the Supreme Court applied the rule of Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (1) (260 SE2d 20) to an oral motion in limine to exclude incompetent testimony and held that, after the grant of such a motion to exclude evidence, in order to preserve the objection for appeal, the movant need not renew his objection at trial when evidence allegedly violating that preliminary ruling is offered. “A motion in limine is a pretrial motion.” (Emphasis supplied.) State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543). The trial court’s ruling on such a pretrial motion has the effect of the pretrial order under OCGA § 9-11-16, which “controls the subsequent course of the action.” Harley-Davidson Motor Co., supra at 286 (1). The rule announced in Harley-Davidson Motor Co., is inapplicable where a motion in limine does not seek a pretrial final ruling on the admissibility of evidence. Felker v. State, 252 Ga. 351, 364 (1e) (314 SE2d 621). See also Leo v. Williams, 207 Ga. App. 321, 324 (428 SE2d 108) (written pretrial motion to exclude evidence of plaintiff’s driving record adequately preserves for review alleged error in the denial thereof and in the admission of such evidence); Seay v. Urban Med. Hosp., 172 Ga. App. 344, 346 (3) (323 SE2d 190) (no contemporaneous objection required to preserve issue for appellate review where pretrial motion in limine is granted at the commencement of trial).

Nevertheless, the stated rule of Reno u. Reno, supra, has recently been applied by this court to preserve for review the alleged violation of the grant of an oral mid-trial motion to exclude evidence, even in the absence of a contemporaneous objection, where the movant asked for a mistrial before the close of the evidence. Scott v. Chapman, 203 Ga. App. 58, 59 (1) (416 SE2d 111), relying upon Seay v. Urban Med. Hosp., supra. We need not determine whether Scott u. Chapman, supra, erroneously characterized the mid-trial oral application for an order as a motion in limine, because there, the motion for mistrial made before the close of the evidence on the basis of an alleged violation of the granted oral mid-trial motion is akin to a timely motion to strike illegal evidence. See Mable v. State, 261 Ga. 379, 381 (1) (405 SE2d 48): “ ‘A motion to rule out testimony illegally admitted even without objection is never too late until the cause is finally submitted to the jury.’ [Cit.]”

Although the record here reveals no pretrial application for an order to determine the admissibility of the alleged opinion evidence and conclusively shows that appellant made no contemporaneous objection to the evidence now alleged to be violative of the grant of his oral mid-trial motion to exclude opinion testimony on the ultimate issue of fact for the jury, we will assume, but do not hold, that this objection was preserved by the grant of his mid-trial motion. Cf. Scott v. Chapman, supra.

(b) The testimony of the officer as to what actions he took in filling out the incident report, after having heard appellant’s admission that the latter had been “too close” to the parked trailer, was not opinion testimony on the ultimate issue of negligence, in violation of the grant of appellant’s motion, and the trial court did not err in denying the motion for new trial brought on this ground.

2. Appellant’s sole remaining enumeration assigns error in the denial of a motion for new trial based on the “cumulative effect of two instances of juror misconduct.”

“ ‘Any error shown upon the record must stand or fall on its own merits and is not aided by the accumulative effect of other claims of error.’ ” Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70). We have examined the instances of alleged juror misconduct and the trial court’s prompt actions to ameliorate any possible prejudice. The two jurors involved individually promised to reach a fair and impartial verdict based solely upon the evidence presented and the poll of all the jurors shows that the verdict of none was impermissibly influenced by the alleged misconduct. This special ground for new trial in a civil action fails to show any prejudicial or harmful error against appellant. See Von Gremp v. Barili, 87 Ga. App. 716, 718 (1) (75 SE2d 264). The trial court did not abuse its discretion in denying a new trial on the ground asserted.

Judgment affirmed.

Pope, C. J., concurs specially. Andrews, J., concurs in judgment only.

Pope, Chief Judge,

concurring specially.

The officer did not simply testify “as to what actions he took in filling out the incident report” as stated in Division 1 (b); rather, he read from the report his opinion that plaintiff misjudged the clearance and that this misjudgment contributed to the accident. In Smith v. Fee, 197 Ga. App. 483 (398 SE2d 801) (1990), we held it was error to allow a police officer to state his opinion regarding whether an act or omission of one of the parties was a contributing cause of an accident, as it was for the jury to consider all the testimony and other evidence and determine what acts or omissions of the parties, if any, contributed to the cause of the plaintiff’s injuries. See also Emory v. Dobson, 206 Ga. App. 482 (426 SE2d 50) (1992). The officer’s opinion in this case was read from his incident report, and the officer’s opinion in Fee was based on his investigation. However, this is not a meaningful distinction and does not change the fact that the challenged testimony invaded the province of the jury. I therefore conclude that admission of the officer’s opinion in this case was error.

Consequently, I must address the question left open by the majority in Division 1 (a): Was this issue properly preserved for appellate review? When defendant began questioning the officer about the portion of the incident report titled “Contributing Factors,” plaintiff objected generally to any question asking for an opinion going to any ultimate issue in the case. This general objection was sustained. Defense counsel then asked the officer what he marked in the “Contributing Factors” section of the report, and plaintiff again objected. The witness responded before the court ruled on this objection, however, and plaintiff did not pursue his objection further. He did not move to strike the officer’s testimony and did not move for mistrial. Nor did he ask for curative instructions, even though this was the type of error which could probably have been cured by a proper jury instruction.

Plaintiff attempts to characterize his initial objection as a motion in limine, as no further action is required to preserve the issue for appellate review when evidence barred by a previously granted motion in limine is offered at trial. See Reno v. Reno, 249 Ga. 855 (295 SE2d 94) (1982). However, plaintiff’s general objection was not a motion in limine — not because it was made during rather than before the trial, see Scott v. Chapman, 203 Ga. App. 58 (1) (416 SE2d 111) (1992), but because it was made in the presence of the jury. “ ‘ “The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. ... It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach.” [Cit.]’ [Cit.]” Reno, supra at 855-856. Accordingly, to “require the successful movant to object when evidence encompassed by the motion in limine is nevertheless offered at trial, would defeat the purpose of the motion in limine, as the movant would be forced, in the presence of the jury, to call special attention to prejudicial evidence which the trial court had previously ordered to be excluded from the jury’s consideration.” Id. at 856. In the instant case, this concern is not present because the initial objection was made in the presence of the jury. Thus, plaintiff should have made a further motion or objection to allow the trial court to correct or cure the error, and his failure to do so precludes reversal on this ground. For these reasons, I agree that the judgment must be affirmed.

Decided September 22, 1993.

Hughes & Gibson, Gilchrist M. Gibson, for appellant.

Shapiro, Fussell, Wedge & Smotherman, Herman L. Fussell, Scott I. Zucker, John W. Greer III, for appellee.

       Although two judges specially concurred in Fee with respect to the writer’s harmless error analysis, all judges on the panel agreed that it was error to admit the officer’s testimony. See Fee, 197 Ga. App. at 484-485.


author: Smith, Judge.

text:
    A93A1063, A93A1064.
    ATLANTA HILTON & TOWERS et al. v. GAITHER; and vice versa.
    (436 SE2d 71)
   Smith, Judge.

In this workers’ compensation case, Carolyn J. Gaither’s claim for benefits for a new accident or change in condition was denied by both the administrative law judge and the Board of Workers’ Compensation. Atlanta Hilton & Towers and Zurich American Insurance Company, the employer and insurer (collectively “Hilton”), appeal from the superior court’s judgment remanding a portion of the case for new findings. Gaither cross-appeals from the superior court’s judgment affirming the remainder of the Board’s award.

The record shows that Gaither had been employed by Hilton since 1988. She had four consecutive slip and fall incidents at Hilton, in July 1988, August 1989, July 1990 and October 1990. In the latter three incidents she reportedly suffered impact or injuries to her head, back and neck. After the August 1989 injury, Gaither was examined and treated by Richard Tyler, M.D. She was released to return to work in September 1989, but “didn’t feel [she] could go back to work.” A friend recommended a chiropractor, Dr. Bateson, who referred her to Ralph D’Auria, M.D. However, Hilton indicated that it would not pay for such treatment.

On July 23, 1990, Gaither again slipped and fell, and was treated by Robert S. Harshman, M.D., on July 30. Dr. Harshman examined her, noting that she “appears to embellish symptoms & movements,” and referred her to Donald S. Bickers, M.D. On August 14, after examining Gaither and reviewing X-rays and a CT scan, Dr. Bickers concluded that there were no objective findings and released Gaither for work without limitation. He also noted her multiple slip and fall claims and observed that “her motivation does not seem to be very great.” Dr. Tyler saw Gaither again on August 15. He concluded that she was “exaggerating her discomfort” and could return to work in a week. On August 22, Dr. Tyler again examined Gaither and found no significant problems. He noted that she returned to his office after the examination, stating that she was in too much pain to resume her work. Dr. Tyler also observed that “[s]he is convinced that she has some sort of neurosurgical problem,” but that in his opinion she was able to perform her normal duty work and all other activities. On September 25, Gaither again sought a second opinion from Dr. D’Auria, the physician who treated her in August 1989, and he concluded that she was totally disabled. However, Hilton required that Gaither return to work.

Hilton’s current benefits administrator, Essie Reeves, testified that she was present on October 29, 1990, when her predecessor, Annette White, received a call from Gaither asking to discuss her benefits from the July slip and fall incident. On cross-examination, Gaither acknowledged that this conversation took place, and that she told White she would not come to the office because she was afraid to walk on the slippery floors. There was no objection to this testimony. Reeves and White agreed to meet Gaither in the cafeteria to discuss her benefits, but before they could leave they received a call saying that Gaither had fallen.

Gaither testified that between 3:30 and 4:00 p.m. on October 29, 1990, she left her work station to get a hamburger, and slipped and fell on the freshly mopped floor. Her account of this fall and her injuries varied. She reported to the physician at Georgia Baptist Hospital that she fell striking her back, but toid Dr. D’Auria that she “slipped and fell in an unrecalled fashion.” At the hearing, however, she testified that she fell on her knees. She reported to the emergency room personnel on several occasions that she did not lose consciousness in the slip and fall incidents, then reported to her treating physician that she lost consciousness and suffered a concussion. Gaither stated on her deposition that there were two eyewitnesses to her fall; before the ALJ she testified that the fall was unwitnessed.

Wes Moulder, a security guard for Hilton at the time of the incident, arrived on the scene within three to four minutes. He testified that the floor was dry and dirty and had not been mopped for some time. Gaither’s clothes were not dirty, torn, or disarranged. Once he learned of her prior neck and back injuries, Moulder immediately summoned an ambulance to transport Gaither to the hospital. He then conducted an investigation into the incident. He was unable to find any eyewitness to Gaither’s fall. Based upon their observations and the investigation, both he and Reeves concluded that the fall was staged. As a result of the investigation, Hilton did not pay any benefits for the October 1990 fall. This failure to pay constitutes the basis of Gaither’s claim for penalties, as stated in Gaither’s fourth enumeration of error.

After the October 1990 incident, it was discovered that approximately $300 was missing from the “cashier’s bank” issued to Gaither for her cash register. Only Gaither had access to her bank. Despite several requests, Gaither never returned to the Hilton to settle her account, and was ultimately terminated because of the unexplained shortage in her bank.

1. In the main appeal, Case No. A93A1063, we reverse the ruling of the superior court remanding the case for further findings on the issue of change in condition for the worse. Hilton correctly asserts that there was ample evidence to support the ALJ’s finding that Gaither failed to show any change in her condition.

“[T]he term ‘change in condition’ means a change in the wage-earning capacity, physical condition, or status of an employee . . . which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise.” OCGA § 34-9-104 (a) (1). “In cases where a claimant is injured and receives workers’ compensation benefits, but subsequently returns to work and then undergoes a gradual worsening of his condition to the point where [she] is no longer able to perform [her] ordinary work, [she] has undergone a ‘change in condition.’ [Cits.]” Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988). “A ‘change in condition’ claim for additional compensation is predicated upon the claimant’s gradually worsening condition, from the wear and tear of performing [her] usual employment duties and of ordinary life, to the point that [she] can no longer continue to perform [her] ordinary work. (Cits.)” Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 157 (1) (338 SE2d 742) (1985). “Whether an employee’s inability to continue working has been caused by a new accident or a change in condition is a question of fact for the administrative law judge.” Northbrook Property, supra.

Furthermore, “[t]he law is clear that ‘ “(i)f an employee has actually returned to work after having received compensation, and then alleges a further inability to work, then the burden of proof is upon that employee to show that [she] has undergone a change in condition.” ’ [Cits.] While a claimant’s subsequent termination by [her] employer may constitute a change in condition warranting additional benefits, ‘the burden was on appellee to show that, after [her] termination for cause, “[her] inability to secure suitable employment elsewhere was proximately caused by [her] previous accidental injury.” (Cit.)’ [Cit.]” Independent Life &c. Ins. Co. v. Cox, 207 Ga. App. 402, 403 (1) (427 SE2d 862) (1993); see also Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991).

The burden was upon Gaither to show a change in condition for the worse. The ALJ correctly found that she did not meet that burden, and did not show that she had sought work after her termination for other causes and failed to obtain it because of her alleged disability. Gaither presented no evidence of any attempt to seek work or the effect of her alleged disability on any such attempt. Furthermore, as discussed below in connection with the cross-appeal, the medical testimony relied upon by Gaither to support her claim of a change in condition was refuted both directly and indirectly.

The evidence is more than adequate to sustain the ALJ’s conclusion that Gaither failed to carry her burden of proof of a change in condition for the worse, that Gaither has no disability to work, and that she has not had such a disability since she returned to work from the July 1990 accident. The trial court erred in reversing the Board’s decision, and the judgment in Case No. A93A1063 must be reversed.

2. In the cross-appeal, Case No. A93A1064, Gaither contends in two enumerations of error that the ALJ ignored uncontradicted evidence of her injury or change in condition, and therefore should have found in her favor.

On appeal of a workers’ compensation case, the evidence is construed most favorably to the party prevailing before the Board, Impress Communications v. Stanley, 202 Ga. App. 226, 229 (1) (414 SE2d 238) (1991). “In the absence of fraud, the findings of the Board are conclusive and shall not be set aside unless it is found that there is not sufficient competent evidence in the record to warrant the Board’s decision. [Cits.]” Elbert County v. Burnett, 200 Ga. App. 379, 382 (408 SE2d 168) (1991).

Despite Gaither’s contention to the contrary, the finder of fact is not absolutely bound by medical opinion evidence, even though uncontradicted. The Board is not “bound in every way to accept the literal statements of a witness before it, merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts and in still other ways the question of what is the truth may remain an issue of fact, despite uncontradicted evidence in regard thereto. [Cit.]” Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 411 (9) (224 SE2d 65) (1976). The medical records relied upon by Gaither were not uncontroverted. They were contradicted by her own inconsistent reports, the evidence that an accident did not take place, and the examinations performed by other physicians both before and after the October 1990 incident. The emergency room records and physicians’ findings which Gaither contends were ignored were based entirely upon Gaither’s report that an accident had occurred, and Gaither’s subjective complaints of pain or inability to move. Moreover, Gaither’s testimony and medical records contain many internal inconsistencies, such as differing accounts of the manner of her alleged fall, the severity and location of her previous complaints, loss of consciousness, and other relevant facts.

If a finding of fact by the Board is supported by any evidence, it is conclusive and binding upon the superior court and this court. Franks v. Avila, 200 Ga. App. 733, 735 (4) (409 SE2d 564) (1991). There is more than ample evidence to support the award.

3. Gaither next asserts that the ALJ failed to apply the rules of evidence, and based her decision entirely upon “incompetent, irrelevant, inadmissible and entirely speculative testimony without any foundation whatsoever.” This assertion is unsupported by argument or citation of authority, and is therefore deemed abandoned. Court of Appeals Rule 15 (c) (2); Wilkie v. State, 153 Ga. App. 609 (1) (266 SE2d 289) (1980). We are not required to address this issue further. However, to the extent we are able to determine the objections raised by Gaither, we will review briefly the admissibility of the evidence supporting the ALJ’s findings.

Gaither complains in her statement of facts that the ALJ refused to allow counsel to make an objection. Counsel in fact did object, though not in the clearest form, to Hilton’s cross-examination of Gaither on her previous slip and fall accidents, which counsel contended were irrelevant. Hilton is entitled to a thorough and sifting cross-examination of the opposing party. See OCGA § 24-9-64. As the evidence developed in the course of the hearing, Gaither’s other slip and fall accidents clearly were relevant to the issues in this case. Evidence of claimant’s persistent, ongoing efforts to claim disability and her multiple similar slip and fall incidents was relevant to her state of mind, motive and inclination, as well as to Hilton’s contention that the claimant was engaging in a scheme of fraudulent conduct. See, e.g., Collier v. South Carolina Ins. Co., 205 Ga. App. 323, 324 (422 SE2d 52) (1992). As for Gaither’s telephone conversation with the benefits manager almost simultaneous with the purported accident, Gaither herself testified to this conversation and her own statements made in the course of the conversation, without any objection being raised. This objection was therefore waived. Sanchez v. Aaron Van Lines, 160 Ga. App. 173, 174 (2) (286 SE2d 469) (1981); Corbitt v. State, 169 Ga. App. 739, 740 (3) (315 SE2d 25) (1984).

Decided September 22, 1993.

Drew, Eckl & Farnham, John C. Bruffey, Jr., Scott T. Bushnell, for appellants.

G. Clyde Dekle III, for appellee.

Finally, a lay witness may properly testify to his or her opinion, provided that the facts and observations upon which the opinion is based are disclosed to the finder of fact. Dual S. Enterprises v. Webb, 138 Ga. App. 810, 812 (3) (227 SE2d 418) (1976). Both Moulder and Reeves testified to their personal observation of the facts upon which they relied to reach the conclusion that Gaither had staged the October 1990 incident. Furthermore,' their conclusions were relevant to the issue of statutory penalties. The facts witnessed and testified to by Moulder and Reeves explain the conduct of Hilton in refusing to pay benefits for the purported October 1990 accident, which Gaither relies upon to claim statutory penalties. Davis v. Cincinnati Ins. Co., 160 Ga. App. 813, 816 (3) (288 SE2d 233) (1982). The evidence supporting the finding of the ALJ that no new injury occurred, and that Gaither did not sustain a change in condition for the worse on or about October 29, 1990, was clearly admissible.

4. Gaither cites no authority for her contention that she is entitled to penalties and attorney fees. There is no basis in fact or law for such an award in this case. See OCGA § 34-9-108.

5. Pursuant to Court of Appeals Rule 26 (b), we assess against Gaither a frivolous appeal penalty in the amount of $500.

Judgment affirmed in Case No. A93A1064. Judgment reversed in Case No. A93A1063.

Beasley, P. J., and Cooper, J., concur.

       In over 30 unnumbered pages constituting Gaither’s brief and reply brief, there is not a single citation of legal authority, whether statutory or case law.


text:
    A93A1300.
    BOWEN v. THE STATE.
    (436 SE2d 76)
   Johnson, Judge.

Margaret Louise Bowen was asleep in the back seat of Sandra Ellis’ car when it was stopped at 2:00 a.m. for weaving and crossing the centerline. Bowen appeals the denial of her motion to suppress the evidence seized as a result of the search of her purse and her subsequent conviction.

1. Bowen contends that the trial court erred in denying the motion to suppress because the warrantless search of her purse was without her consent and not justified by probable cause. We agree.

At the motion to suppress hearing the arresting officer, Sergeant Billy Boney, initially recounted the sequence of events as follows: “I asked [Ellis] for a consent to search which she willingly gave ... I searched the brown [purse belonging to Ellis] first ... I found a weapon containing seven live rounds and I found two black capsules . . . And I found one marijuana cigarette butt also in that purse. At that point I went to the — when I completed my search I went to the back and I found — in the black pocketbook [Bowen’s] I found a baggie containing marijuana. I found two Marlboro cigarette packs, one containing two plastic bags containing white powder, which at the time I believed to be cocaine. ... At that point I placed everybody in the car under arrest.” During cross-examination Sergeant Boney admitted that the weapon was not found until subsequent searching after everyone in the car had been arrested. At trial, Sergeant Boney admitted on cross-examination that he did not ask for permission to search either of the pocketbooks and that the only evidence of illegal activity he had at the time of the search of the pocketbooks was the traffic offenses. Defense counsel properly reasserted his motion to suppress at trial, and it was again denied.

Bowen relies on State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991). In Corley, we affirmed the grant of a motion to suppress evidence when a bag belonging to a passenger was searched without consent and with no probable cause. “It is apparent beyond doubt that society is prepared to accept as reasonable that both vehicle owners and their authorized passengers may carry bags and parcels with them into the automobile; it is further our view that society is prepared to recognize a right of privacy in the contents of those closed packages and ’bags, which legitimate passengers and vehicle owners carry with them into the vehicle at least to the extent of vesting the passenger or owner with lawful authority to assert a violation of Fourth Amendment rights due to an illegal search or seizure of those objects.” Corley at 323. As in Corley, the passenger “never gave permission to search, [she] was not under arrest, the [drugs were] not in plain view, and [she] had a reasonable expectation of privacy in the searched premises.” Id. at 321. “[I]n order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.” (Citations, punctuation, and emphasis omitted.) Rogers v. State, 206 Ga. App. 654, 660 (4) (426 SE2d 209) (1992). Bowen clearly did not consent to the search of her personal property, and there was no probable cause for her detention. The burden is on the State to establish that the search did not exceed the scope of any consent given. Amato v. State, 193 Ga. App. 459, 460 (2) (388 SE2d 54) (1989). See also Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992) (discussion of scope of consent). The State did not meet its burden of proving that Bowen’s purse was within the scope of Ellis’ consent to a search of her car.

Decided September 22, 1993.

Groover & Childs, Denmark Groover, Jr., Duke R. Groover, for appellant.

Willis B. Sparks III, District Attorney, Pamela Y. White-Colbert, Thomas J. Matthews, Assistant District Attorneys, for appellee.

This court is bound to review a trial court’s ruling on a motion to suppress most favorably to uphold its findings and will not disturb its findings unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639) (1990); State v. Combs, 191 Ga. App. 625, 627 (382 SE2d 691) (1989). In this case, because Sergeant Boney admitted that the search of Bowen’s purse was without consent, without probable cause and was not incident to a legal arrest, the renewed motion to suppress should have been granted.

2. In view of our decision in Division 1, we need not address Bowen’s remaining enumeration of error.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author: Johnson, Judge. Blackburn, Judge,

text:
    A93A1308.
    GAFFORD v. DUNCAN et al.
    (436 SE2d 78)
   Johnson, Judge.

Robert Gafford was employed as a mechanic by Rockdale Pipeline, Inc. Paul Duncan, Rockdale’s president and principal owner, allowed Gafford to use a company pickup truck solely for work purposes. One night after work, Gafford used the truck to commit the criminal offense of aggravated assault against his wife, Billie Faye Gafford. The incident began as a high-speed chase, with Gafford repeatedly ramming the truck into the car driven by his wife. Eventually Gafford forced his wife’s car into a ditch where it flipped over, landing on its top and injuring her. Robert Gafford was convicted of aggravated assault and sentenced to serve time in prison. Billie Faye Gafford filed a lawsuit against Duncan and Rockdale, alleging, among other things, that they had negligently entrusted the company truck to Gafford. The trial court granted summary judgment to Duncan and Rockdale on all claims. She appeals, contending only that the court erred in granting summary judgment to Duncan and Rockdale on the negligent entrustment claim.

“Under the theory of negligent entrustment, liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the (negligence) of the driver on account of his incompetency and recklessness.” (Emphasis supplied; citations and punctuation omitted.) Barnes v. Johnson, 194 Ga. App. 568, 569 (1) (390 SE2d 921) (1990); Young v. Wooldridge, 187 Ga. App. 661, 663-664 (2) (371 SE2d 100) (1988). For purposes of this appeal, even if we assume, without deciding, that Duncan and Rockdale acted negligently in allowing Robert Gafford to drive the company vehicle, Billie Faye Gafford’s claim of negligent entrustment must fail because their negligence was not the proximate cause of her injuries.

“Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury and thus superseding any negligence of the defendant; if the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent conduct, the legal, causal connection between that conduct and injury is not broken. However, one is not ordinarily charged with the duty of anticipating acts mala per se.” (Citations and punctuation omitted.) Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983). Billie Faye Gafford argues that the appellees should have foreseen the intervening criminal acts of her husband because they knew that he had previously driven under the influence of alcohol and had physically- abused her. We find this argument unpersuasive. Even if Duncan and Rockdale knew the facts alleged by Billie Faye Gafford, they could only be expected to foresee that Gafford might again drive under the influence of alcohol or abuse his wife. Such knowledge, however, does not impose upon the appellees the duty of anticipating that Gafford would use the company vehicle after working hours for a high-speed chase and to commit an aggravated assault; such criminal use of the pickup truck simply was not a reasonably foreseeable consequence of giving Gafford access to the truck exclusively for work purposes. Robert Gafford’s unforeseeable criminal acts were the proximate cause of Billie Faye Gafford’s injuries and supersede any negligence of Duncan and Rockdale. The trial court did not err in granting summary judgment to Duncan and Rockdale as to the claim of negligent entrustment.

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs specially.

Decided September 22, 1993.

Strauss & Walker, John T. Strauss, for appellant.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, John K. Train IV, for appellees.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion’s affirmance of the trial court’s grant of summary judgment for the defendants in this case. However, I disapprove of the majority’s application of the doctrine of intervening criminal acts of a third party to the theory of negligent entrustment.

The doctrine of independent, intervening criminal acts of a third party as a superseding cause of an injury has never before been applied to cases involving negligent entrustment of motor vehicles in Georgia, and with good reason. Infusion of this doctrine into the law of negligent entrustment is unnecessary; at best, it would duplicate the analysis presently employed in negligent entrustment cases, and at worst, it could confuse the determination of proximate cause.

As noted by the majority, under the theory of negligent entrustment, liability is predicated upon the owner lending his vehicle to another with actual knowledge of the latter’s incompetence or habitual recklessness, and that negligent lending must subsequently concur with the driver’s incompetence or reckless driving. Barnes v. Johnson, 194 Ga. App. 568 (390 SE2d 921) (1990). In the instant case, the only risk associated with Gafford’s driving possibly known to the defendants was that of driving under the influence. The defendants’ act of providing Gafford with a company car thus in no way “concurred” with his intentional use of the vehicle as a deadly weapon to commit an aggravated assault. For that reason, the trial court properly granted summary judgment for the defendants.


text:
    A93A1360.
    MURRAY v. REESE.
    (436 SE2d 79)
   Johnson, Judge.

Hertize C. Reese was appointed executor of the estate of his sister, Isabelle Irvin following her death in 1983. Two parcels of land were the only assets of the estate. One parcel, left to Reese, was conveyed out of the estate. The other, left to the decedent’s son, Wilton Irvin, remained in the estate until it was sold for unpaid taxes in 1988. The right to redeem expired in February 1990, and two months later the property was conveyed to Estella Murray, a Connecticut resident. The notice of bar of redemption was filed in the land records in June 1991.

According to the terms of the will, funeral expenses and other debts were to be paid out of the estate, but since there were no liquid assets, Reese paid his sister’s funeral expenses, some $3,000, with personal funds. In May 1992, nine years after Irvin’s death, Reese brought this action against Murray and the property seeking to recover the $3,000 he had paid for funeral expenses and now claims was a loan to the estate. Murray filed a motion to dismiss for lack of personal jurisdiction which the trial court denied. We granted Murray’s application for interlocutory review.

1. We will first address a motion to dismiss the appeal filed by Reese asserting that the appeal is premature. In her application for interlocutory review Murray presented a certificate of immediate review which stated that an order had been filed denying her motion to dismiss. In fact, a written order had not been filed. The trial court, after this court granted Murray’s application for interlocutory review, entered a nunc pro tunc order to cure this deficiency in the record. Reese has now filed a motion to dismiss the appeal as premature relying on Blackstone v. State, 131 Ga. App. 666 (206 SE2d 553) (1974). It is clear from the certificate of immediate review that the trial court believed that an order had been entered in the case. “[T]he modern trend is toward relaxation of hypertechnical constructions which prevent appellate courts from reaching the merits of an appeal when notice came too early rather than too late. . . . The rule now is that if the notice is sufficient to advise the opposing party that an appeal is being taken from a specific judgment, and if no prejudice will result to the appellee in allowing the appeal, then the appeal should not be dismissed merely because the notice was premature.” Kenerly v. Yancey, 144 Ga. App. 295, 296 (1) (241 SE2d 28) (1977). The filing of a notice of appeal does not divest the trial court of complete jurisdiction. Strickland v. State, 258 Ga. 764, 765 (1) (373 SE2d 736) (1988) citing Waters v. State, 174 Ga. App. 438, 439 (330 SE2d 177) (1985). The entry of the nunc pro tunc order was nothing more than a housekeeping measure correcting a deficiency in the record. It is clear that neither party has been prejudiced by the entry of the order nunc pro tunc. The motion to dismiss the appeal is denied.

2. Georgia’s Long-Arm Statute, OCGA § 9-10-91 (4) states: “A court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he owns, uses, or possesses any real property situated within this state.” Reese also relies on Hart v. DeLowe Partners, Ltd., 147 Ga. App. 715 (250 SE2d 169) (1978), in support of his argument that there is a basis for asserting personal jurisdiction in Georgia in this case. A careful reading of Hart, however, reveals that it stands for the opposite proposition. The Hart case was a suit on a note executed in connection with the purchase of real estate in Georgia. It was the participation in a real estate transaction in this state which formed the basis for finding that personal jurisdiction existed over the non-resident defendants, not merely the fact that they had previously owned real property in the state. “[M]ere fact of title ownership of realty in Georgia will not support the exercise of personal jurisdiction. Jurisdiction must be predicated on the existence of ties among the defendants, this state, and the litigation, so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. [Cit.]” Id. at 717 (2) (C). In the instant case the only connection between the property owned by Murray and the claim asserted by Reese is that it was once an asset in an estate for which Reese served as executor. This tenuous connection would not give rise to the exercise of personal jurisdiction over a non-resident owner of real estate because the claim does not satisfy the requirement of OCGA § 9-10-91 that the claim arise out of the ownership of the property.

Reese argues that debts charged upon lands by a will attach and follow the land into the hands of all persons, and the value of the real property received would be more than sufficient to pay the debt allegedly owed. However, for the debt of an estate to be a charge upon a particular piece of real estate, the will must specifically identify the real property so burdened. In Blanchard v. Gilmore, 208 Ga. 846, 849 (69 SE2d 753) (1952), the court held that general provisions regarding payment of debts of the estate are not specific enough to create a charge upon any particular piece of real estate. See also Harvey v. Greenfield, 186 Ga. 192 (197 SE 276) (1938), in which the Georgia Supreme Court held that the charge upon land will follow unless the land was sold for the purpose of paying debts (i.e., taxes) of the testator. Any inchoate lien of the estate against the parcel for payment of funeral expenses, if any such lien ever existed, was extinguished upon the filing of the bar of redemption. See Forrester v. Lowe, 192 Ga. 469, 476 (15 SE2d 719) (1941).

As executor of the estate, Reese was in the best position to ensure that any amounts he “loaned” to the estate were repaid. Not having taken any steps to protect his claim, we can only assume that payment of his sister’s funeral expenses was gratuitously rendered. See Stafford v. Stafford, 198 Ga. App. 450, 452 (402 SE2d 71) (1991). The fact that the parcel was once part of the estate does not create sufficient contacts to submit Murray, as owner of the parcel, to the personal jurisdiction of this state. The trial court erred in denying her motion to dismiss.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Decided September 22, 1993.

Calhoun & Associates, Gregory V. Sapp, for appellant.

Rebecca C. Benton, for appellee.


text:
    A93A1657.
    STEVENS v. THE STATE.
    (436 SE2d 82)
   Johnson, Judge.

In a single indictment Robert Louis Stevens was charged with a single count of sale of cocaine. A co-indictee, Donald Lewis, was charged with sale as well as possession with intent to distribute cocaine. The two were jointly tried. In this appeal, Stevens appeals his conviction, his sentence and the denial of his motion for a new trial.

1. Stevens asserts in three separate enumerations of error that the verdict was contrary to law, contrary to the evidence and strongly against the weight of the evidence. Stevens combined these enumerations for purposes of argument, and they will likewise be treated together here as a challenge to the sufficiency of the evidence. Construing the evidence presented at trial to support the jury’s verdict the evidence presented at trial showed the following: Stevens waved and whistled at an unmarked police vehicle in which investigator Drawdy and a female off-duty dispatcher assisting in the undercover operation were riding. Drawdy asked Stevens whether he “had it going on,” and Stevens replied that he did. Stevens was concerned about the presence of several marked police cars in the area and directed Drawdy to move to the next block. When Stevens approached Drawdy the second time, he was still concerned about the presence of the police cars and told Drawdy to move to yet another location, which he did. When Stevens approached the car for the third time he asked what Drawdy wanted, and Drawdy told him he was looking for a “20 piece,” referring to a quantity of “crack” cocaine. Stevens said he had to get his man and that it would be a few minutes. Drawdy drove around the block and saw Stevens flag down another car. Donald Lewis, the co-defendant in the case, got out and Lewis and Stevens approached Drawdy’s car. Stevens stood to the side as Lewis sold the cocaine to Drawdy.

Stevens contends that because no evidence was presented that he personally conducted the sale, his mere presence at the scene of a crime is insufficient to support a conviction. The jury was instructed regarding parties to a crime, OCGA § 16-2-20, and we find the evidence presented at trial more than sufficient to have authorized the jury to find Stevens guilty of being a party to the sale of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Wimberly v. State, 205 Ga. App. 818, 819 (1) (423 SE2d 728) (1992).

2. Stevens asserts that the trial court erred in refusing to sever the trial of his case from that of the co-defendant. We do not agree. “The grant or denial of a motion to sever is within the discretion of the trial court and absent an abuse of discretion, denial of a motion to sever is not grounds for reversal. . . . [T]he burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citations and punctuation omitted.) Freeman v. State, 205 Ga. App. 112 (421 SE2d 308) (1992).

Stevens argues that he did not present evidence at trial, but because Lewis did, he was denied the right to open and close during closing argument. In Robinson v. State, 164 Ga. App. 652 (297 SE2d 751) (1982), this court noted that losing the right to open and close during closing arguments does not require severance and does not “clearly show prejudice amounting to a denial of due process.” Id. at 656 (4).

Further, the facts showed criminal conduct, involving the same place of occurrence, the same undercover agents, and the same transaction. Such evidence, in the absence of a showing of prejudice, warranted a common trial. See Anderson v. State, 207 Ga. App. 717 (1) (429 SE2d 128) (1993). No prejudice having been shown, the trial court did not abuse its discretion in refusing to grant Stevens’ request for a separate trial.

3. Stevens next argues that the trial court impermissibly commented on the evidence in response to an objection interposed by the State during the defense’s cross-examination of Drawdy. We have carefully examined the transcript at the point cited by Stevens. We find no error in the court’s response to the objection or the trial judge’s attempt to distinguish for the jury conclusions of fact and conclusions of law.

4. Stevens asserts that the sentencing provision contained in OCGA § 17-10-7 violates the Eighth and Fourteenth Amendments to the United States Constitution. The Georgia Supreme Court held in Yearby v. State, 259 Ga. 461 (385 SE2d 414) (1989) that an appellant is without standing to contest the validity of OCGA § 17-10-7 until such time as he claimed a right of parole, and the statute was asserted against him as a bar. Accordingly, this complaint is premature.

5. Stevens also argues that he was improperly sentenced under OCGA § 17-10-7 instead of OCGA § 16-13-30 (d) because the latter is a more recent expression of the Georgia legislature’s will. This novel argument, that a subsequent law implicitly repeals an earlier law, is unsupported in the record with either argument or citation of authority and is therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

Decided September 22, 1993.

James V. Pleasants, for appellant.

W. Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

6. Finally, Stevens asserts that he was ineffectively and inadequately represented at trial. This issue was raised and argued at Stevens’ motion for a new trial. The trial court heard evidence and concluded in a detailed order that Stevens’ trial counsel was not ineffective. “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. ... A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (1991), rev’d on other grounds 261 Ga. 386 (405 SE2d 482) (1991). We have reviewed the transcripts of the trial and the motion for a new trial and find that the trial court did not err in its assessment of the performance of trial counsel.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A0889.
    WILLIAMS v. THE STATE.
    (436 SE2d 228)
   Johnson, Judge.

Tommie Lee Williams was convicted of aggravated assault after beating his wife with a wooden board and a metal carpenter’s level.

1. In his first enumeration of error, Williams asserts that the trial court erred in denying his motion for directed verdict of acquittal in that the State’s evidence was insufficient to support a conviction. The victim, Sandra Lynn Williams, testified that after she had come home from work, she and her husband had a few drinks and began to argue. She testified that Williams became violent and began beating her with his fists, a wooden board and a metal carpenter’s level. Williams refused to drive his wife to the hospital, but after stopping profuse bleeding from her face, Ms. Williams drove there herself. The doctor who treated Ms. Williams testified that she had sustained severe trauma injuries consistent with being hit with a blunt, flat object. He used photographs taken of the injuries at the hospital to describe bruises “from her head to literally her legs.” Her nose was broken in two places and she had lacerations on her face and hands some of which required sutures. He concluded his testimony noting that it was one of the worst cases he had ever seen and that had any of the blows landed differently, it could have been fatal. Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence and all reasonable deductions therefrom sufficient to enable a rational trier of fact to find the elements of aggravated assault beyond a reasonable doubt in accordance with the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Owens v. State, 204 Ga. App. 579, 581 (3) (420 SE2d 79) (1992). The trial court did not err in denying Williams’ motion for a directed verdict of acquittal.

Decided September 13, 1993

Reconsideration denied September 23, 1993

Sonya J. Calhoun, Terry T. Everett, for appellant.

Edward D. Lukemire, District Attorney, A. Robert Tawse, Jr., Assistant District Attorney, for appellee.

2. The jury was given instructions on aggravated assault, the offense upon which Williams was indicted, and the lesser included offense of battery. After deliberations had begun, the jury requested a recharge on battery. The court repeated the charges on both offenses, which Williams asserts was error. “It is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry. . . .” Heflin v. State, 204 Ga. App. 161, 163 (2) (418 SE2d 770) (1992). We find that the trial court did not abuse its discretion in recharging the jury on all of the offenses upon which Williams could be found guilty.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.