text:
    A90A1117.
    REDDING v. THE STATE.
    (397 SE2d 34)
   Sognier, Judge.

This is the second appearance of this case before this court. Kenneth Charles Redding was convicted of attempted armed robbery, simple assault, aggravated assault with.intent to rob, obstruction of an officer, and giving a false name to a law enforcement officer, and sentenced on each count. In Redding v. State, 193 Ga. App. 50, 52-53 (4) (386 SE2d 907) (1989), this court reversed the judgment in part and remanded for resentencing on the attempted armed robbery and aggravated assault counts, holding that the two counts merged as a matter of fact, and Redding could not be sentenced on both. Upon remand, the trial court vacated the original sentences on the two counts and resentenced Redding to twenty years on the count of aggravated assault, the maximum sentence on that count. Redding appeals again.

Appellant contends the trial court erred by failing to vacate his conviction for aggravated assault, and by sentencing him on the aggravated assault count rather than on the attempted armed robbery count because the charge of aggravated assault merged into the count of attempted armed robbery, and not vice versa. We agree and again remand to the trial court. In our opinion in appellant’s prior appeal, this court cited Hambrick v. State, 256 Ga. 148 (344 SE2d 639) (1986) as authority for our decision. In Hambrick the Supreme Court set aside five convictions for aggravated assault because they merged in fact with five counts of attempted armed robbery. This court concluded that in appellant’s case, as in Hambrick, “ ‘the same facts were used ... to prove attempted armed robbery and aggravated assault. Therefore, (the conviction) ... of aggravated assault . . . (does) in fact merge with the attempted armed robber (y) and must be set aside.’ ” Redding, supra at 52 (4). Since the aggravated assault charge merged into the attempted armed robbery count, see generally OCGA § 16-1-6 (1), we are constrained to follow Hambrick, supra, and conclude that the trial court erred by failing to vacate the conviction for aggravated assault and by sentencing appellant on the aggravated assault charge rather than on the attempted armed robbery charge. Accordingly, we remand this case to the trial court with direction that the conviction for aggravated assault be set aside and that appellant be sentenced as provided by law on his conviction for attempted armed robbery.

Decided September 4, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Carley, C. J., and McMurray, P. J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A1123.
    ABNER v. THE STATE.
    (397 SE2d 36)
   Pope, Judge.

Defendant Duncan Eric Abner was convicted of burglary of a sporting goods store and four counts of receiving stolen property, including a Cadillac automobile, an Oldsmobile automobile and two shotguns found in the Oldsmobile. Defendant argues the trial court erred in denying his motion for directed verdict on each of the counts charging him with receiving stolen property and erred in denying his motion for mistrial.

1. The evidence showed defendant and his companion, Danny Lee Hunt, were parties to the crime of burglary of a sporting goods store in the early morning hours of June 10, 1988. On that same morning a police officer noticed a Cadillac exiting the parking lot of a shopping mall near the location of the burglary. A black male wearing a distinctive hat was driving the car and a much more heavy set black male was the passenger. The officer was suspicious because the shopping mall had been closed for several hours. He determined that the Cadillac had been reported stolen. A short time later he saw the Cadillac being driven by the heavy set man, who was identified at trial as the defendant, and an Oldsmobile being driven by the person who was originally driving the Cadillac. Investigating officers stopped both cars. They discovered in the trunk of the Oldsmobile a sawed-off shotgun and twenty-four other shotguns which were later identified as property stolen from the sporting goods store. Another stolen shotgun was found under the seat of the car. A search of the Cadillac revealed an instrument which can be used to break into cars, known as a “slim jim,” a registration receipt in the name of the person who testified at trial that he was the owner, and a handwritten note signed by the owner concerning repairs and maintenance work to be done to the car. The owner testified his car was stolen either June 9 or 10, 1988, from the dealership lot where he had left the vehicle for repairs. The record shows the Oldsmobile was also stolen either June 9 or 10 from another dealership lot where the owner had left the car for repairs.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . . .” OCGA § 16-8-7 (a). No evidence was presented from which the jury could infer that defendant was in actual possession or receipt of the Oldsmobile or those two shotguns found in it which were the subject of the counts charging receipt of stolen property. No witness saw the defendant in the Oldsmobile either as passenger or driver. Even under a theory of joint possession with the companion who was driving the Oldsmobile, no evidence was presented to show defendant had knowledge the Oldsmobile was stolen. Knowledge that goods were stolen is an essential element of the offense of receiving stolen property. See Pruiett v. State, 159 Ga. App. 396 (283 SE2d 625) (1981). Therefore, defendant was entitled to directed verdict on the three counts relating to the Oldsmobile and the items found within it.

Defendant was in actual possession of the stolen Cadillac. Unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property but guilt may be inferred from possession in conjunction with other evidence of knowledgé. See James v. State, 150 Ga. App. 357 (1) (258 SE2d 40) (1979). “ ‘[G]uilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. (Cits.)’ Watts v. State, 157 Ga. App. 214 (276 SE2d 884) (1981).” Pruiett v. State, supra at 397. Here the evidence showed the Cadillac contained registration papers in the name of the owner and a note in the owner’s name concerning car repairs. It also contained a theft tool. This would constitute some evidence that the car belonged to someone other than defendant’s companion, who was originally seen driving the car with defendant as a passenger. Since the evidence showed defendant joined with his companion in committing the burglary of the sporting goods store, defendant obviously had reason to know of his companion’s propensity for theft. This knowledge together with the evidence the car belonged to someone else would certainly be circumstances sufficient to excite a suspicion of theft in defendant’s mind. “If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.” Castillo v. State, 166 Ga. App. 817, 819 (305 SE2d 629) (1983). The trial court did not err in denying the motion for directed verdict as to the count charging receipt of stolen property relating to the Cadillac.

2. Defendant’s companion, who pled guilty to the same charges, was called as a witness by the State but refused to take an oath, thereby effectively refusing to testify. Defendant moved for mistrial on the ground that he was necessarily prejudiced by the witness’ lack of cooperation and refusal to comply with or submit to the authority of the court. The court denied defendant’s motion for mistrial but instructed the members of the jury that they should not be influenced by the acts of the witness and that the witness’ behavior should not be held against the defendant. Defendant’s attorney answered in response to the trial court’s inquiry that the instruction was satisfactory and did not renew his motion for mistrial. We hold the trial court did not abuse its discretion in denying the motion for mistrial and giving curative instructions instead. Moreover, defendant waived his right to appeal the denial of the motion by failing to request further instruction or renewing his motion for mistrial. See Chandler v. State, 143 Ga. App. 608 (2) (239 SE2d 158) (1977).

Decided September 4, 1990.

Joseph C. Iannazzone, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Phil Wiley, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    A90A1134.
    PATTERSON v. THE STATE.
    (397 SE2d 38)
   Banke, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. His sole enumeration of error on appeal is directed to the denial of his motion to suppress the cocaine.

The appellant was arrested during the execution of a search warrant for a residence from which an undercover agent had recently purchased cocaine. According to the arresting officer, the appellant was standing on the back porch of the residence when the police units arrived, but immediately upon seeing them he began walking towards a car which was parked on the street. The officer stated that he observed the appellant remove a black object from inside his clothing as he approached the car, and then toss it inside the vehicle as he was opening the door to get in. The officer described the portion of the object which he was able to see protruding from the appellant’s hand as being cylindrical in shape and testified that it appeared to him to be a weapon. He stated that he confronted the appellant as the latter was getting into the car, stopped him from closing the car door completely, looked inside, and saw a black revolver lying on the floorboard. He then ordered the appellant to get out, asked him if he had a permit for the weapon, and arrested him for carrying a concealed weapon when he responded that he did not. The cocaine upon which the appellant’s drug conviction was based was discovered inside his pants pocket during a search of his person conducted incident to this arrest. Held:

Decided September 4, 1990.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, Grover W. Hudgins, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

The appellant contends that his arrest for carrying a concealed weapon was unlawful because he was not advised of his Miranda rights prior to being asked whether he had a permit for the revolver. This contention is without merit. “Carrying a pistol without a license and carrying a concealed weapon are separate offenses even though they grow out of the same [transaction]. [Cit.] A prima facie case is established by proof that the defendant carried a pistol in a public place and he bears the burden of proving he has a valid license. [Cit.]” Jordan v. State, 166 Ga. App. 417, 419 (304 SE2d 522) (1983). Based on the arresting officer’s testimony in this case, the trial court was authorized to conclude that probable cause existed to arrest the appellant on the charge of carrying a concealed weapon even before he was asked whether he had a license to carry the pistol. See generally OCGA § 16-11-126. Accordingly, the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Sognier, Judge.

text:
    A90A1158.
    MOORE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (397 SE2d 127)
   Sognier, Judge.

Elfrem Keith Moore appeals from the trial court’s entry of judgment against him and in favor of his uninsured motorist carrier, State Farm Mutual Automobile Insurance Company, after a jury had returned a verdict awarding Moore damages in his suit against Cecil Adams.

The record reveals that appellant brought suit against Adams, Adams’ mother Linda Jackson, and Robert Dorsey to recover damages incurred when, while riding a bicycle, he was struck by a car driven by Adams (then a minor), owned by Dorsey, and insured under a policy issued to Dorsey by Safeway Insurance Company. Appellant served appellee pursuant to OCGA § 33-7-11 (d), and appellee filed an answer in its own name. After initial discovery, Dorsey was voluntarily dismissed and Jackson moved for summary judgment. In Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726) (1989), this court reversed the denial of Jackson’s motion for summary judgment and held that Jackson was not liable to appellant because the record showed clearly that Adams, who did not have a driver’s license, stole the car keys from his mother’s purse while she was in the shower and drove the car although his mother had never given him permission to drive it, and indeed had expressly instructed him not to do so. After the trial court granted summary judgment to Jackson pursuant to this court’s opinion, Safeway, which had been defending the suit under a reservation of rights, instructed the attorney representing Adams (then the sole defendant) to withdraw.

When the case came to trial, appellee moved in limine, pursuant to Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980), to have the trial court determine as a matter of law that, as appellant’s uninsured motorist carrier, it was not responsible to appellant for any damages awarded by the jury up to $15,000 (the limits of the Safeway policy), because the car driven by Adams was not uninsured. Appellee argued that Safeway had not “legally denied coverage” within the meaning of OCGA § 33-7-11 (b) (1) (D) (iii) in that it had not filed a declaratory judgment action to adjudicate coverage in compliance with the procedure set forth in Richmond v. Ga. Farm Bureau &c. Co., 140 Ga. App. 215 (231 SE2d 245) (1976). After a hearing, the trial court granted appellee’s motion, and the case proceeded to trial. The jury returned a verdict in favor of appellant for $130 property damages, $7,500 compensatory damages, and $2,500 punitive damages. Pursuant to the jury’s verdict, the trial court entered judgment for appellant and against Adams. In addition, although Safeway was not a party to this action, the trial court entered judgment for appellee against appellant, specifically finding that the Safeway policy was applicable to the damages awarded appellant and agreeing with appellee that it need not pay appellant for the damages.

Appellant contends the latter ruling was erroneous. We agree and reverse. We need not decide whether Safeway’s failure to file a declaratory judgment action regarding coverage under the liability policy after our holding in Jackson, supra, rendered its actions insufficient under Richmond to satisfy the statute’s requirement of a legal denial of coverage, because the record reveals that the policy issued by appellee does not track the statutory language. Whereas OCGA § 33-7-11 (b) (1) (D) (iii) provides that a vehicle is uninsured only when there is “liability insurance in existence but the insurance company writing the insurance has legally denied coverage under its policy” (emphasis supplied), the State Farm policy omits the word “legally” and requires only that “the insuring company den[y] coverage” in order to trigger uninsured motorist coverage. It is undisputed that Safeway denied coverage on the basis that Adams had used the car without permission, and that it notified appellant, as well as its insureds, of that denial, and thus, in this situation, the plain meaning of the unambiguous provision of the State Farm policy is that uninsured motorist coverage is provided under the policy.

“Under basic principles of contract law it is axiomatic that, as long as the provisions of a given contract are in compliance with the requirements of governing statutes, the parties to the contract may include provisions different from, or more liberal than, those prescribed in the statute or statutes. In the case sub judice we have an instance of just such an exercise of the freedom to contract.” Jones v. Barnes, 170 Ga. App. 762, 764-765 (318 SE2d 164) (1984) (physical precedent only); see also Brown v. Five Points Parking Center, 121 Ga. App. 819, 821-822 (1) (b) (175 SE2d 901) (1970). No innocent persons will be penalized here because the insurer undertook to provide uninsured motorist coverage when the statute did not require it to do so, and accordingly, the policy provision is not void as against public policy. See generally Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

We note that courts in other states, construing identical statutory language, have found the language in the State Farm policy controlling despite the more restrictive statutory language, see, e.g., State Farm Mut. Auto. Ins. Co. v. Talley, 329 S2d 52 (S.Ct. Miss. 1976); Boulnois v. State Farm Mut. Auto. Ins. Co., 286 S2d 264 (Fla. App. 1973), reasoning that the parties were free to contract as to uninsured motorist coverage as they wished, as long as the coverage required by statute was not diminished. Talley, supra at 54; Boulnois, supra at 267.

Therefore, because the language in the State Farm policy provided more liberal uninsured motorist coverage than OCGA § 33-7-11 (b) (1) (D) (iii), when Safeway denied liability coverage, appellee was contractually obligated to proceed as if the vehicle driven by Adams were “uninsured.”

We agree with appellant that Safeway is not estopped from denying coverage. Safeway’s failure to defend Adams in this suit constitutes its waiver of the opportunity to contest Adams’ negligence. It does not, however, constitute a waiver of its right to deny coverage. See McCraney v. Fire &c. Ins. Co. of Conn., 182 Ga. App. 895, 896 (357 SE2d 327) (1987). Accordingly, because Safeway denied coverage, appellee must be responsible for paying the damages awarded appellant in this action (except for the punitive damages, see Roman v. Terrell, 195 Ga. App. 219 (393 SE2d 83) (1990)) cert, denied April 18, 1990, and that portion of the trial court’s judgment which states otherwise must be reversed.

Decided September 4, 1990.

Rand & Ezor, Kenneth I. M. Behrman, Samuel S. Olens, for appellant.

Gary Cooper, for appellee.

Judgment affirmed in part and reversed in part.

Carley, C. J., and McMurray, P. J., concur.


text:
    A90A1164.
    SMITH v. THE STATE.
    (396 SE2d 809)
   Banke, Presiding Judge.

The appellant was convicted of voluntary manslaughter and armed robbery. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in refusing to declare a mistrial after the investigating officer, upon being asked to explain why there had been a month’s delay before an eyewitness to the shooting was shown a photographic display from which she identified the appellant, responded that the witness had been in hiding “in fear of her life.” At the request of the state’s attorney, this testimony was stricken, and the jury was instructed to disregard it. Moreover, the record reveals that the witness in question had previously testified without objection concerning her fear of the appellant, stating, “they were going to kill me if I tell on him.” “ ‘Proof of the same facts by legally admissible evidence renders harmless any admission of inadmissible evidence.’ [Cit.]” Harrell v. State, 192 Ga. App. 876, 877 (386 SE2d 676) (1989). Under the circumstances, the trial court did not abuse its discretion in denying the motion for mistrial.

2. The appellant similarly contends that the trial court should have declared a mistrial in response to a remark made by the state’s attorney during closing argument concerning the witness’ fear of testifying. As requested by appellant’s counsel, the trial court instructed the jury to disregard the objectionable statement, and the appellant did not request further curative instruction or renew his motion for mistrial. “When a motion for mistrial is not renewed after curative instructions by the court, the issue is not preserved for appeal.” Smith v. State, 187 Ga. App. 322 (370 SE2d 185) (1988).

3. The appellant contends that the trial court erred in admitting the murder victim’s high school graduation photograph. The photograph was shown to the eyewitness to confirm her identification of the victim, whose full name was not known to her. It is well settled that “a photograph relevant and material to the issues is not excludable on the ground that it is prejudicial. [Cit.]” Sizemore v. State, 251 Ga. 867 (310 SE2d 227) (1984). See also Scavonne v. State, 193 Ga. App. 603 (388 SE2d 375) (1989). Accordingly, this enumeration of error is without merit.

Decided September 4, 1990.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Joseph F. Buford, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A1203.
    In the Interest of K. P. E. et al., children.
    (397 SE2d 39)
   McMurray, Presiding Judge.

Appellant, the natural mother of K. P. E., C. A. E., T. L. J., R. L. J., and S. R. J., appeals from an order of the Juvenile Court of Lowndes County, Georgia, terminating her parental rights in the children and from the final order of placement entered in the case. Held:

Appellant last had custody of her five children in November and December of 1988. At a hearing before the Juvenile Court of Lowndes County on December 7, 1989, caseworkers presented evidence as to the living conditions of appellant and the services provided to her by various agencies in an attempt to allow reunification of the family. The caseworkers presented evidence of a chronic failure to properly clothe, feed, and house the children and as to filthy and infested living conditions.

While appellant concedes that such conditions existed in 1988, she contends that by the time of the juvenile court hearing she had become a better and more reliable mother. However, the juvenile court found more persuasive the findings of a psychologist who had examined appellant and concluded that she is incapable of functioning as an adequate parent due to her mild retardation and alcohol abuse. The psychologist also opined that appellant’s limited parenting ability was, due to her alcohol abuse, deteriorating rather than improving. Additionally, evidence was presented concerning the impact of the environment created by appellant upon the development of the children.

Decided September 4, 1990.

William D. Edwards, for appellant.

Roger E. Douglas, Charles R. Reddick, Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, for appellee.

“The juvenile court’s termination of appellant’s parental rights must be based upon clear and convincing evidence which supports the following findings: ‘(i) The child is a deprived child . . (ii) The lack of proper parental care or control by (appellant) is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.’ OCGA § 15-11-81 (b) (4) (A). If clear and convincing evidence of these elements exists, the juvenile court must then have given consideration to the best interests of the child before it ordered the termination of appellant’s parental rights. See OCGA § 15-11-81 (a) . . .

“ ‘On review of such a decision (terminating parental rights), the standard is whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights to custody have been lost. (Cit.)’ In the Interest of J. L. Y., 184 Ga. App. 254, 255 (1) (361 SE2d 246) (1987).” In the Interest of J. A. B., 189 Ga. App. 79, 80 (1) (374 SE2d 839). Applying these criteria to the case sub judice we find that they are satisfied. Also, the stipulated summary of evidence and juvenile court’s final order of placement show compliance with OCGA § 15-11-90 (a) and that there was no suitable family member with whom the children could have been placed. The juvenile court did not lack clear and convincing evidence to support the termination of appellant’s parental rights. See also In the Interest of B. J. H., 194 Ga. App. 282 (1) (390 SE2d 427).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    A90A1237.
    KENDALL v. THE STATE.
    (396 SE2d 927)
   Deen, Presiding Judge.

The appellant, Edward Kendall, was tried and convicted of driving under the influence in the Probate Court of Upson County. This appeal follows from the superior court’s affirmance of the probate court.

Decided September 4, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find Kendall guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, the record contains no written waiver by Kendall of his right to be tried by a jury, as required by OCGA § 40-13-23 in order for the probate court to have jurisdiction to dispose of the case, and Kendall’s conviction must therefore be reversed. Rustin v. State, 192 Ga. App. 775 (2) (386 SE2d 535) (1979). See also Sellings v. State, 194 Ga. App. 552 (391 SE2d 36) (1990).

Judgment reversed.

Pope and Beasley, JJ., concur.


text:
    A90A1245.
    FREESE v. THE STATE.
    (396 SE2d 922)
   McMurray, Presiding Judge.

Defendant was indicted for 20 counts of theft by taking. The case was tried before a jury and the evidence showed that defendant was a principal in fraudulent sales transactions which duped victims into giving up thousands of dollars for home solar energy systems which were never delivered or installed.

More specifically, the State proved that defendant was the “President” of “Solcoa Sales and Marketing” (Solcoa), a “high pressure-type” marketing scheme for home solar energy units. Defendant conducted business out of a metropolitan Atlanta office building and commanded Solcoa’s “operations,” directing a sales staff and organizing telephone solicitations and sales seminars.

The victims, in the case sub judice, were attracted to Solcoa sales seminars through promises of “free” vacations and gifts and, during these seminars, Solcoa sales representatives gave the victims false and exaggerated information regarding the function and benefits of home solar energy units. The sales representatives emphasized quick sales and offered some of the victims special one-day pricing to persuade them to make immediate orders for home solar energy units.

The victims ordered home solar energy units during Solcoa sales seminars and they were all required to give security deposit checks to secure the transactions. (A former Solcoa employee testified that down payment checks were immediately taken to the payors’ banks and “‘hammer [ed],’ ” i.e., exchanged for a cashier’s check.) Most of the victims took advantage of on-the-spot financing to fund the transactions and some of the victims obtained financing through outside lenders. However, they all turned the loans proceeds over to Solcoa in exchange for Solcoa’s promise to deliver and install solar energy equipment. These promises were never kept and Solcoa closed its operation in December of 1985. The State’s evidence disclosed that defendant stayed with Solcoa “as long as he could get something out of it[; he] got something like a hundred thousand or something like that, and he took the money and left when it got too hot.”

Defendant was found guilty on 15 counts of the indictment and this appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the trial court erred in failing to grant his motion for mistrial after a State’s witness improperly placed his character in issue. The pertinent portion of the trial transcript reveals the State’s redirect examination of a former Solcoa employee. The testimony was as follows:

“Q. [Defense counsel] asked you about the fact that [defendant] was not on any signature lines of any checking accounts. Was he on any — was his name on anything at Solcoa Sales and Marketing? A. No, sir. Q. And did you ever ask him about that — or anybody about that? A. I asked him about when I was doing the tax forms, trying to get the State tax I.D. number. I asked if I needed it to put it in all three principals’ names. Q. And what did he say? A. He told me, ‘No,’ that because he had a record that they did not do that. Q. All right, ma’am. A. I accepted that. Q. Did he tell you — did he say — in other words, there was a reason for it? A. Yes, sir. Q. That’s all I have. Thank you.”

Defendant declined further cross-examination and this witness was excused. Defense counsel then moved for a mistrial, arguing that the witnesses’ “mention of a record of [defendant] — which is an obvious connotation to a criminal record . . .” impermissibly placed defendant’s character in issue. The trial court denied this motion, but instructed the jury as follows:

“Ladies and gentlemen, during the redirect examination of this last witness, ... in response to a question asked by the District Attorney, she volunteered, ‘He told me, “No, that because he had a record, that they did not do that” — end quote.’ The Court is going to strike that portion only of her answer from the record, and the jury is instructed not to consider that portion of her answer for any purpose whatsoever in the trial.”

The decision of whether statements which impermissibly place a defendant’s character in issue “are so prejudicial as to warrant a mistrial [is for] the discretion of the trial court. See, Bullock v. Bullock, 244 Ga. 538 (1) (261 SE2d 331) (1979); Spraggins v. State, 240 Ga. 759 (2) (243 SE2d 20) (1978); Lynch v. State, 234 Ga. 446, 448 (216 SE2d 307) (1975). [Appellate courts] will look at the relevant circumstances to determine if the trial court abused its discretion in denying the motion for mistrial. See, Bullock v. Bullock, supra, p. 540; Spraggins v. State, supra, p. 762. Some of the factors and circumstances to be reviewed include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. See, 81 AmJur2d 445, Witnesses, § 437; Bullock v. Bullock, supra; Spraggins v. State, supra.” Sable v. State, 250 Ga. 640, 643 (5), 644 (300 SE2d 663).

In the case sub judice, the questioning which prompted the State witness’ response regarding defendant’s “record” was an appropriate expansion of defense counsel’s point on cross-examination that “he [defendant] didn’t have signature power on . . .” Solcoa’s checking accounts. Further, the State did not directly solicit the information regarding defendant’s “record,” nor does it appear that the State anticipated the witness’ response. Under these circumstances, and since the trial court struck the objectional testimony and instructed the jury to disregard it, we find no abuse of discretion in the trial court’s denial of defendant’s motion for mistrial. This enumeration is without merit.

2. Next, defendant contends the trial court erred in “failing to give curative instructions to the jury . . . when witness James Franklin Shuman, III, testified that [defendant] had criminal charges pending in North Carolina and was out on bond thereby improperly placing [his] character in evidence.”

“ ‘The general rule is that on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.’ Brown v. State, 118 Ga. App. 617, 618 (165 SE2d 185). See Willingham v. State, 118 Ga. App. 321, 323 (163 SE2d 317); Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615). However, the admission of evidence, even if erroneous, is not harmful where substantially similar facts are shown either by the defendant ... or by other evidence, unobjected to. Borders v. State, 46 Ga. App. 212 (6) (167 SE 213); Whitley v. State, 188 Ga. 177 (3) (3 SE2d 588).” Waters v. State, 122 Ga. App. 808, 809 (3), 810 (178 SE2d 770).

In the case sub judice, defendant testified that criminal charges were brought against him in North Carolina. Consequently, any error in allowing James Franklin Shuman Ill’s testimony with regard to defendant’s criminal record in North Carolina was harmless.

3. In his third enumeration, defendant contends “[t]he trial court erred in admitting evidence of a purported similar transaction regarding the [defendant’s] prior involvement with Sunward Sales in Texas.”

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. ‘However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.’ Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270).” Oller v. State, 187 Ga. App. 818, 819 (2), 820 (371 SE2d 455).

The relevance of the State’s similar transaction evidence outweighs its prejudicial impact in that it reveals defendant’s elaborate and continuing scheme to defraud consumers through bogus sales operations. Further, both conditions for admission of this evidence are satisfied. The State showed that defendant “was the owner of a marketing company . . .” in Galveston, Texas, known as “Sunward Sales” (Sunward); that Sunward was aimed at marketing resort property “timesharing” units and that Sunward’s representatives employed sales tactics similar to those used by sales representatives at Solcoa. In this vein, customers were attracted to high-pressure sales seminars through solicitations which promised “free” vacations and gifts; customers were given false information regarding the benefits of Sun-ward “timesharing” units; special pricing was offered for quick sales; down payments were taken via check on the day of sale, the proceeds of which were “‘hammer[ed]”’ at the payor’s financial institution; on-the-spot purchase money financing was made available to customers; and, after transactions were completed, purchasers did not receive what defendant’s operators purported to sell. Further, a number of persons associated with defendant at Solcoa were associated with him at Sunward and he was a key operator in both the Texas operation and the Georgia operation. Under these circumstances, the trial court did not err in admitting evidence of defendant’s involvement in the fraudulent sales scheme in Galveston, Texas. This enumeration is without merit.

4. Defendant contends in his final enumeration that “[t]he trial court erred in failing to give [his] request to charge number seventeen regarding renunciation and abandonment of criminal enterprise.”

Defendant cites OCGA § 16-4-5 in support of his seventeenth request to charge. This Code section provides that “[w]hen a person’s conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1 [criminal attempt], it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.” OCGA § 16-4-5 (a). The Supreme Court has held that “[w]here the evidence shows a completed crime, there is no error in refusing to charge on attempt or abandonment of attempt. Smith v. State, 228 Ga. 293 (1) (185 SE2d 381) (1971).” Sanders v. State, 251 Ga. 70, 11 (4) (303 SE2d 13). In the case sub judice, those of the crimes charged and of which defendant was convicted were completed. The evidence revealed that defendant’s operation took the victim’s money and that defendant never intended to make good on promises to deliver home solar energy units. Consequently, the trial court did not err in refusing to give defendant’s seventeenth request to charge.

Decided September 4, 1990.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Car ley, C. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A1276.
    In the Interest of N. N. G., a child.
    (397 SE2d 40)
   Beasley, Judge.

N. N. G. was found by the juvenile court to have committed an act that brought him within the Designated Felony Act, OCGA § 15-11-37. After denying the child’s motion for new trial, the court entered an order finding that he committed the offense of murder beyond a reasonable doubt, was delinquent, and was in need of treatment or rehabilitation. The order committed N. N. G. to the county’s child treatment center, pending consideration for designated felony sentencing. In a later order the court recited the considerations set forth in OCGA § 15-11-37 (c), some expressly and some by implication. In accordance with OCGA § 15-11-37 (e), it sentenced N. N. G. to eighteen months’ confinement in a youth development center followed by twelve months’ intensive supervision with home visits during confinement.

The enumerations of error are: (1) the judgment is against the weight of the evidence inasmuch as the testimony of the State’s main witness should have been disregarded; (2) the court abused its discretion in denying the motion for new trial; (3) the trial court violated appellant’s procedural due process rights by refusing to hear evidence at the motion hearing; (4) the trial court failed to act in a neutral and detached way during the examination of appellant’s sister; (5) the court failed to make sufficient findings of fact; (6) the court, in violation of OCGA § 15-11-37, failed to allow evidence concerning the nature and circumstances of the offense at the dispositional hearing.

1. The thrust of the first assignment of error is that the testimony of the State’s principal witness should have been disregarded because he was not a credible witness. The weight of the evidence, like the credibility of witnesses, is for the finder of fact, and this court looks only to the sufficiency of the evidence. Helms v. State, 191 Ga. App. 283, 284 (381 SE2d 428) (1989). The evidence here, although conflicting, was sufficient to sustain the judgment.

2. Appellant’s second, third, and sixth enumerations pertain to the court’s denial of the motion for new trial and refusal at the dispositional hearing to hear the testimony which had been the basis for the motion for new trial — that is, that a witness had come forward after trial and stated he had witnessed the shooting and had seen appellant in possession of a gun. At best, the excluded testimony would have been cumulative of evidence admitted at trial. The motion for new trial was therefore properly denied. Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980); White v. State, 180 Ga. App. 185 (348 SE2d 728) (1986).

At the dispositional hearing the court excluded the proffered testimony on the basis that to hear only cumulative testimony would amount to retrying the case, and that the testimony was therefore irrelevant to the issues to be resolved at the dispositional hearing. When the relevancy or competency of evidence is questionable, the proffered evidence should be admitted and its weight left to the jury. Palmer v. State, 186 Ga. App. 892 (369 SE2d 38) (1988). In the instant case, however, there was no doubt that in the circumstances of the case, the proffered evidence would not tend to prove or disprove any material fact at issue and was therefore, by definition, irrelevant. Hanvey v. State, 186 Ga. App. 690 (368 SE2d 357) (1988). Its exclusion was therefore proper.

3. The demeanor of the trial judge during the questioning of appellant’s sister was entirely proper and gave no indication of other than a detached and neutral approach to the issues and to the particular witness.

4. The court’s order of judgment and disposition does not expressly recite all of the criteria set forth in OCGA § 15-11-37 (c). The court had an eight-page “Social History Investigation and Summary for DFA Consideration” prepared by a member of the juvenile court staff expressly to assist it. This report tracked the statutory language and contained ample facts to serve as a sufficient basis for the court’s findings of fact and conclusions. However, this does not suffice because subsection (b) of Section 37 explicitly requires the court to make “written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c) of this Code section as related to the particular juvenile.” That was not done in this case, which must be reversed and remanded for entry of a new dispositional order fully complying with all the mandates of the governing subsection. The staff’s report is not a substitute for the court’s findings.

Decided September 4, 1990.

Jonathan Goldberg, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph J. Drolet, Lyn K. Armstrong, Assistant District Attorneys, for appellee.

Appellant’s reliance on cases construing OCGA § 9-11-52 is misplaced as that statute applies to civil bench trials. The Civil Practice Act does not apply to juvenile courts. Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977).

Judgment reversed and case remanded with direction.

Deen, P. J., and Pope, J., concur.


text:
    A90A1279, A90A1357.
    SANCHEZ v. PACELLA.
    (397 SE2d 42)
   Beasley, Judge.

Pacella sought to adopt the son of his wife and appellant Sanchez in 1988. The facts are set forth in Pacella v. Sanchez, 191 Ga. App. 611 (382 SE2d 371) (1989), and need not be repeated here. The judgment was reversed and the case remanded with direction that the trial court utilize the “proper legal theory” (the legal duty to support one’s child as a parent under OCGA § 19-7-2) in order to “review this case and decide whether the support provided the child by [Sanchez], labeled ‘not sufficient’ by the trial court in its order, is tantamount to [his] having ‘failed significantly’ to provide for the care and support of the child. Should the trial court conclude that [Sanchez] did fail significantly to provide for the child’s care and support, then the trial court must determine whether, despite [Sanchez’] financial shortcomings, adoption is in the best interests of the child.” Id. at 613.

After remand a hearing was held. Sanchez argued that while there might be a “technical defect” in the order in that the trial judge had failed to use the “magic language,” the ruling was correct and should be reinstated. Pacella asserted that if the trial court found that Sanchez had failed significantly for a period of twelve months prior to the filing of the petition to support that child, it could hold that he had no standing to object to the adoption; then the only burden on Pacella would be to show that he was a fit and proper person and that it would be in the best interests of the child to grant the adoption. In response, the trial court stated: “Of course they’ve already reversed me on it because I didn’t go ahead and grant the adoption. So there’s nothing I can do but grant the adoption.” The trial court ruled that Sanchez had failed significantly for a period of a year to support the child and thus had no standing to object to the adoption. The decree of adoption was entered.

Decided September 4, 1990.

Martha C. Christian, for appellant.

Bennett, Wisenbaker, Bennett & Williams, Michael T. Bennett, for appellee.

The ruling of the trial court on remand was clearly premised upon the provisions of OCGA § 19-8-6 (b), which the Supreme Court declared on December 5, 1989 to be unconstitutional. Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989). “In view of the Supreme Court’s invalidation of OCGA § 19-8-6 (b), the trial court’s grant of the adoption petition in the instant case pursuant to that statutory provision must now be reversed.” Moore v. Butler, 195 Ga. App. 1, 2 (392 SE2d 285) (1990).

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1306.
    BWP, INC. v. WOODSON.
    (397 SE2d 43)
   Deen, Presiding Judge.

The appellee, James Woodson, left his car with the appellant for brake repairs, at an estimated cost of $485. The appellant subsequently called Woodson and informed him that the car needed additional repairs, which increased the total repair bill to $1,094.16; Woodson assented to the extra repair, but he claimed that he had understood the mechanic’s statement that the cost of the additional repair would be “five hundred and some odd dollars” to refer to the total repair bill. When Woodson picked up his car, he paid $500 cash and wrote a post-dated check for $594.16; however, he later stopped payment on the check.

The appellant commenced this action seeking to recover the $594.16, and Woodson counterclaimed, seeking damages for fraud. The jury awarded the appellant $94.16 damages, and awarded Wood-son $1,000 damages, $10,000 punitive damages, and $5,035.25 attorney fees. In ruling on the appellant’s motion for new trial, the trial court noted that since Woodson received the benefit of the car repairs, his only actual damage sustained was a fifteen-dollar charge for stopping payment on the check. Pursuant to OCGA § 51-12-12 (b), the trial court then granted the appellant’s motion for new trial as to damages only, provided that (1) the appellant offer to pay actual damages reduced to $15, and punitive damages reduced to $5,000, plus $5,035.25 attorney fees less $94.16 damages to the plaintiff, and (2) the defendant reject that offer. The jury’s verdict was otherwise unchanged. The trial court denied the appellant’s motion for new trial upon the appellant’s refusal to offer payment of damages as reduced by the court. The appellant found the trial court’s resolution unsatisfactory, and this appeal resulted.

Decided September 4, 1990.

Crecelius & Crecelius, Billy W. Crecelius, Jr., for appellant.

Howard, Secret & Howard, James W. Howard, for appellee.

OCGA § 51-12-12 (b) provides that “[i]f the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only, as to any or all parties, or may condition the grant of such a new trial upon any party’s refusal to accept an amount determined by the trial court.” The trial court’s conditioned grant of the appellant’s motion for new trial clearly was authorized by OCGA § 51-12-12 (b), and we find no abuse of discretion in the amount of damages set by the trial court. Compare Story v. Monteith, 176 Ga. App. 853 (338 SE2d 32) (1985), decided before the enactment of OCGA § 51-12-12 (b), wherein this court found an abuse of discretion in the trial court’s denial of a motion for new trial, despite its finding the verdict inconsistent with the preponderance of the evidence.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1310.
    KARAT ENTERPRISES, INC. v. MARRIOTT CORPORATION.
    (397 SE2d 44)
   Beasley, Judge.

Defendant Karat challenges the grant of plaintiff Marriott’s motion for summary judgment.

Marriott sued to recover sums of money paid to Karat by mistake. Karat answered the complaint but did not timely answer or controvert Marriott’s request for admissions and first interrogatories. Among the admissions were that Karat received certain checks, that they were paid in error, that the total amount paid in error by Marriott to Karat was $5,886.18, and that Marriott had demanded that sum from Karat.

Decided September 4, 1990.

Tonya S. Lowe, pro se.

Karl J. Howe, Jr., for appellee.

Marriott moved for summary judgment on the ground that there were no genuine issues of material fact. Over a month later Karat filed answers to the request for admissions and to the first interrogatories, but it filed no motion to withdraw or amend the admissions. After a hearing on the motion for summary judgment, the court found no genuine issues of material fact and entered judgment for Marriott.

A request for admissions necessitates a written answer or objection signed by the party or his attorney. Hilton Hotels Corp. v. Withrow Travel Svc., 150 Ga. App. 435 (258 SE2d 59) (1979). Otherwise the request’s subject matter is admitted. Thompson v. Berman, 147 Ga. App. 740 (1) (250 SE2d 190) (1978). The absence of timely answers conclusively establishes, as judicial admissions, the facts referred to in the request. Stone v. Lenox Enterprises, 176 Ga. App. 696, 697 (1) (337 SE2d 451) (1985); Albitus v. Farmers & Merchants Bank, 159 Ga. App. 406, 407 (1) (283 SE2d 632) (1981). The burden is on the one failing to answer to take the initiative and file a motion under OCGA § 9-11-36 (b) to withdraw or amend the admissions. National Bank v. Merritt, 130 Ga. App. 85, 87 (1) (202 SE2d 193) (1973).

Karat’s answers could not be considered because they were filed after the expiration of the statutory time, without permission for late filing, and without a motion to withdraw the admissions occasioned by default. Albitus, supra.

Karat complains that summary judgment was granted because it was not present at the hearing. Its presence is irrelevant, as an entitlement of summary judgment is founded on the record itself, which here included pivotal admissions. Crider v. Pepsi Cola Bottlers, 142 Ga. App. 304 (235 SE2d 683) (1977).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1379.
    JEFFERSON v. THE STATE.
    (397 SE2d 129)
   Deen, Presiding Judge.

Gary Jefferson appeals his convictions of robbery by force and possession of a firearm during the commission of a felony.

1. Appellant contends that there was insufficient evidence for a rational trier of fact to find him guilty of the crimes beyond a reasonable doubt.

The record indicates two instances from which the jury could rationally find the physical force or violence by appellant necessary to support a conviction of robbery by force. The victim, who was a clerk at the convenience store that was robbed, testified that appellant hit her as he jumped across the counter and then he threw her to the end of the counter so he could reach the cash register. In support of the count of possession of a firearm, the victim testified that defendant had a gun placed partially down the back of his pants. Based on this testimony, there was sufficient evidence for a rational trier of fact to find the appellant guilty beyond a reasonable doubt on both counts. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983).

2. At the end of his charge to the jury, the trial court asked counsel if there were any exceptions. Appellant’s counsel excepted to the charge on possession of a firearm during the commission of a felony, because the jury was charged that theft by taking was a felony. Counsel argued that if the jurors found the defendant guilty of theft by taking, they were authorized to find him guilty of possession of a firearm during a crime. When the court realized that the amount of money taken was less than $100, it recharged the jury: “[I]f you find the defendant guilty of robbery by force, then you would be authorized to find defendant guilty of possession of a firearm during the commission of a crime because that would be a felony . . .; [i]f you find the defendant guilty of theft by taking in this case you cannot find him guilty of possession of a firearm during the commission of a crime because the theft by taking in this instance would be a misdemeanor and that crime is not a felony.” Appellant argues that since the trial court mentioned that robbery by force is a felony and theft by taking in this case is a misdemeanor, the jury was allowed, in effect, to determine whether he would be punished for a felony or a misdemeanor, a determination which is outside the province of the jury. We find no merit in this enumeration.

The trial court’s recharge to the jury simply explained why the jury would be authorized to convict the appellant for possession of a firearm during the commission of a crime if they found him guilty of robbery by force and why they could not do so if they found him guilty of the lesser included offense of theft by taking: the reason being that one is a felony and the other a misdemeanor. As the court made no mention of the potential sentences for each respective crime, the mere labeling of the crimes as a felony or misdemeanor was not erroneous, and the recharge by the trial court was proper.

3. In -his final enumeration of error, appellant asserts that the court did not have proper jurisdiction to hear the case because the trial was held at the Woodbine City Hall rather than the Camden County Superior Court, which is also in Woodbine. Alternative locations are lawfully provided by OCGA § 15-6-18. Appellant’s failure to object at trial to the propriety of the forum bars him from raising it for the first time on appeal. Hill v. State, 183 Ga. App. 654 (360 SE2d 4) (1987).

Decided September 4, 1990.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

For the foregoing reasons, the conviction of the lower court is affirmed.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1420.
    SAWYERS v. THE STATE.
    (396 SE2d 926)
   Deen, Presiding Judge.

The appellant, Troy Lee Sawyers, was convicted of burglary and aggravated assault. A co-defendant was convicted of burglary, and this court affirmed that conviction in Smith v. State, 189 Ga. App. 562 (376 SE2d 725) (1988). We must reverse Sawyers’ convictions.

1. On the morning of the trial, Sawyers was present for the selection of the jury. Before the jury was sworn in, however, the trial court took a recess until after lunch, and Sawyers never returned. His attorney’s motion for continuance was denied; the jury was sworn; and the trial proceeded in Sawyers’ absence.

Sawyers contends that he did not waive his constitutional right to be present during the trial, and the trial court’s failure to grant a continuance was error. “Confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial.” Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). However, in Pollard v. State, 175 Ga. App. 269 (333 SE2d 152) (1985), this court adopted a rule that jeopardy must attach before this voluntary waiver principle may be invoked. Since jeopardy attaches in a jury trial when the jury is sworn, Shaw v. State, 239 Ga. 690 (1) (238 SE2d 434) (1977), which had not occurred in the instant case before Sawyers absented himself, Sawyers is entitled to a new trial. Pollard v. State, supra.

2. Sawyers’ remaining enumerations of error are either without merit or not likely to recur upon retrial.

Judgment reversed.

Pope, J., concurs. Beasley, J., concurs in the judgment only.

Decided September 4, 1990.

James A. Meaney III, for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee.


text:
    A90A1439.
    GIGNILLIAT v. THE STATE.
    (397 SE2d 52)
   Banke, Presiding Judge.

The appellant was convicted of burglary. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that he was entitled to a directed verdict of acquittal because the evidence established merely that he had entered a locked building without showing that he had done so with the intent to commit a theft or felony. This contention is without merit. The appellant was apprehended by the police in the bathroom of the building. A windowpane in the front office was broken near the window lock; and a calculator, beeper, answering machine, hammer, flashlight, and screwdriver were found in a bag in that office. The appellant acknowledged that he had entered the premises through the window, but denied any knowledge of the bag or its contents. Reviewing the evidence in the light most favorable to the jury’s verdict, we hold that it was amply sufficient to enable a rational trier of fact to find the appellant guilty of burglary beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in denying his request for a continuance to enable him to establish that he was incompetent to stand trial. On the day of the trial, the appellant requested the appointment of another defense counsel. When the court refused that request, the appellant asserted that he was not competent to stand trial and moved for a continuance to obtain a psychological evaluation. Noting that the appellant had previously been evaluated by a psychologist and found competent to stand trial and further noting that he appeared to be “very alert [and] very aware of what is going on,” the trial court overruled the motion.

“A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. OCGA § 17-8-22.” Lucas v. State, 174 Ga. App. 580 (1) (330 SE2d 792) (1985). We find no abuse of discretion of this case.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Decided September 4, 1990.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael. McDaniel, Assistant District Attorneys, for appellee.


text:
    A90A1449.
    CORA v. WAGNER et al.
    (397 SE2d 46)
   Deen, Presiding Judge.

Appellant Hector R. Cora engaged the services of appellee Wagner et al. (“Wagner”) for landscaping work on his yard. The original contract price was $5,200; with certain agreed-upon changes, the final contract price was $5,340. Cora paid $3,340 of the total amount but declined to pay the balance, alleging that the work had been done in an unprofessional and unsatisfactory manner. Appellees allegedly offered to make needed corrections if appellant would make a list; the list was allegedly never provided. Appellant alleged that he had to hire someone else to correct the defects and deficiencies in Wagner’s work — most notably, that the sprinkler system had been connected to the wrong side of the pressure valve.

After making demand upon appellant for payment, appellees brought an action in the State Court of Gwinnett County, seeking the balance due with interest, plus costs and attorney fees pursuant to OCGA § 13-6-11. Cora counterclaimed for alleged additional expenses plus costs of litigation, including attorney fees. The jury awarded appellees $2,000 representing the balance due, plus $2,500 in attorney fees. Cora then moved for partial judgment notwithstanding the verdict, seeking deletion of attorney fees, or in the alternative for new trial on the general grounds. After denial of both motions Cora made timely filings in this court for both a discretionary and a direct appeal. The application for discretionary appeal was dismissed April 10, 1990, on the ground that the total judgment of $4,500 exceeded the jurisdictional maximum for a discretionary appeal. On the direct appeal sub judice Cora enumerates as error (1) the propriety of awarding attorney fees in a dispute arising ex contractu; (2) the submission of the issue of attorney fees to the jury, allegedly with no evidence to support the award of such fees; and (3) the denial of the motion for partial j.n.o.v. or in the alternative for new trial. Held:

1. In a dispute arising out of a contract, attorney fees are generally not awarded to the prevailing party where there is a bona fide controversy and where litigation costs have not been specially pleaded. In the instant case, according to the record, attorney fees were specially pleaded. Doughty v. Simpson, 190 Ga. App. 718 (380 SE2d 57) (1989). Further, there was evidence that the only issues genuinely in controversy had been conceded by appellant. The record establishes that appellant had agreed to pay the balance due on the contract by leaving in a designated location a check drawn for the amount of the balance due; but that, by his own admission, he had failed to do so. There is also evidence that, again according to appellant’s own admission, he failed to provide appellees, as he had agreed to do, with a list of alleged defects and deficiencies so that appellees might correct them. Appellant having thus conceded the two substantive points in the case — namely, that he owed the balance on the contract and that he frustrated appellees’ attempt to fulfill the contract by remedying any alleged defects or deficiencies in the work — he is estopped to contend that there remained any genuine controversy. Such evidence as that cited, supra, would have authorized the jury to find stubborn litigiousness on appellant’s part. The factfinders may allow attorney fees if they find present in a case any one of three factors: bad faith, stubborn litigiousness, or causing the prevailing party unnecessary trouble and expense. OCGA § 13-6-11; Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (278 SE2d 33) (1981); Harrison v. Ivie, 143 Ga. App. 856 (240 SE2d 224) (1977). This enumeration has no merit.

Decided September 4, 1990.

Jack Menendez, for appellant.

2. The evidence of stubborn litigiousness cited in Division 1, supra, together with the testimony of counsel for each party regarding his charges and expenses, was sufficient to authorize submission of the attorney fees issue to the jury. Moreover, the record shows that both parties requested jury charges on attorney fees with respect to bad faith and stubborn litigiousness; according to the trial transcript the trial court gave the relevant charge in almost the exact language requested by appellant and, further, there was a negative response when the court inquired if there were objections to the jury charge. An alleged error raised for the first time on appeal will not be considered by this court. Ewald v. Security Pacific Credit Corp., 190 Ga. App. 615 (379 SE2d 569) (1989).

3. Review of the record reveals that appellant failed to move for directed verdict at trial and also failed, on motion, to make a prima facie case for the contentions on which he based his motion for judgment n.o.v. or, in the alternative, for new trial. See OCGA §§ 9-11-50 (a), (b); 9-11-60 (c). We find no merit in this enumeration.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Grover C. Bailey, for appellees.


text:
    A90A1475.
    KENNEY v. THE STATE.
    (397 SE2d 131)
   Deen, Presiding Judge.

The appellant, Walter Kenney, was convicted of two counts of armed robbery and possession of a firearm during the commission of a crime. We find no error and affirm the convictions.

On March 20, 1989, a mustachioed man, wearing a trench coat, dark baseball cap, and sunglasses, robbed a tool rental store at gunpoint, and then drove off in a red Pontiac Bonneville. The store owner assisted the police in making a composite drawing of the robber, and later positively identified Kenney in a photo line-up, as well as at trial.

On March 21, 1989, a grocery store was robbed at gunpoint by a man disguised in the same manner as the tool rental store robber. At trial, the grocery store clerk acknowledged that the composite drawing looked like the robber, but she was unable to identify anyone because of the disguise. A customer who entered the grocery store immediately after the robbery observed the robber run to a maroon car parked in an adjoining lot and drive off “flying.”

Kenney’s wife testified against Kenney. She stated that on occasion Kenney had borrowed her mother’s red 1977 Pontiac Bonneville, supposedly to look for employment, and recalled how Kenney had acknowledged committing both robberies. In fact, she was waiting in the car at the time of the grocery store robbery, having driven him there thinking that he was going to buy some dope. She confirmed that at the time, Kenney wore a trench coat, a cap, and sunglasses, and that he had a gun. She had eventually reported the above to the police. At trial both the tool rental store owner and the grocery store customer viewed a photograph of the mother’s Pontiac Bonneville, and stated that it looked like the car used by the robber. Held:

1. During cross-examination of the tool rental store owner, the trial court stopped defense counsel from asking the witness what the investigating police officer recorded in his report. The trial court informed defense counsel that he could ask the witness what he told the police officer, and that he could ask the police officer what he recorded, but that he could not ask the witness what the police officer recorded in the report. Contrary to Kenney’s contention on appeal, this limitation did not infringe upon his right of confrontation. Kenney correctly notes that a witness may refresh his recollection with another’s written instrument, Hollis v. State, 191 Ga. App. 525 (3) (382 SE2d 145) (1989), but that was not what Kenney was attempting to do in this case.

2. At the time of the photo lineup, the tool rental store owner was shown written instructions concerning the procedure. After viewing the photo array and selecting Kenney’s photo, the witness signed the document and indicated his selection. The police officer also signed the document as a witness. The store owner read those instructions at trial, and the document went out with the jury during its deliberations. Kenney contends that the trial court erred in allowing the document to go out with the jury, because it improperly emphasized written over oral testimony.

“In Georgia the ‘continuing witness’ objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.” Tibbs v. Tibbs, 257 Ga. 370, 371 (359 SE2d 674) (1987). This “continuing witness” objection usually concerns testimonial documentary evidence, such as the affidavit in Tibbs, and depositions of interrogatories. See Shedden v. Stiles, 121 Ga. 637 (49 SE 719) (1904). However, the objection has also been applied to unsworn, written dying declarations and written confessions or statements of criminal defendants, on the grounds that such statements are the equivalent of depositions. Strickland v. State, 167 Ga. 452 (145 SE 879) (1928); Royals v. State, 208 Ga. 78 (65 SE2d 158) (1951).

The photo lineup document cannot reasonably be categorized as the functional equivalent of a deposition. This court has previously viewed such lineup documents “not as statements of the witnesses, but rather as tools to explain the photographic lineup display which was shown to the witnesses before trial. . . .” Brewton v. State, 174 Ga. App. 109, 111 (329 SE2d 270) (1985). The trial court did not err in allowing it to go out with the jury.

3. Kenney also contends that the evidence was insufficient to support any conviction stemming from the grocery store robbery, because any such conviction would depend upon the uncorroborated testimony of Kenney’s accomplice wife. Slight evidence from an extraneous source showing a defendant’s criminal act is sufficient corroboration of an accomplice’s testimony. Adams v. State, 191 Ga. App. 16 (3) (381 SE2d 69) (1989). The evidence of Kenney’s committing a similar crime using the same disguise and automobile was sufficient corroboration in this case. The evidence authorized a rational trier of fact to find Kenney guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided September 4, 1990.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A90A1482.
    DEPARTMENT OF HUMAN RESOURCES v. PATTILO.
    (397 SE2d 47)
   Deen, Presiding Judge.

This case previously appeared in this court as Georgia Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990), which this court reversed and remanded with instruction that the trial court make findings of fact to ascertain the reasonableness and excusableness of counsel’s delay in timely filing a trial transcript for purposes of appeal. The Georgia Department of Human Resources brings this appeal from the dismissal of its appeal after the trial court made findings of fact and held that the delay was unreasonable and inexcusable. Held:

The court below found that one of appellant’s counsel telephoned the court reporter in October 1988 requesting preparation of a transcript, and took no further action to assure that it was prepared and filed until after the time for filing had expired. The court further found that the delay was caused by the division of work between two attorneys in the District Attorney’s office who were assigned to the case, and that neither had assumed responsibility to assure the timely filing of a transcript or to request an extension of time. The court concluded that the delay was more unreasonable and inexcusable than in Baker v. Southern R. Co., 192 Ga. App. 444 (385 SE2d 125) (1989), remanded, 260 Ga. 115 (390 SE2d 576) (1990), because of the four-month failure to make any effort to secure a transcript and the assumption that a transcript need not be filed until the case was docketed in this court. In Baker, the transcript was filed 34 days after the expiration of the statutory filing period, and counsel made no attempt to obtain an extension after his secretary’s inquiry determined that the transcript was not fully transcribed because of illness in the court reporter’s family.

Appellant argues that the trial court abused its discretion in dismissing the appeal because several telephone calls were made to the court reporter and counsel received assurances that a transcript was being prepared, and that at no time did counsel intentionally delay the proceedings. Counsel for appellant also maintains that the clerk of court was contacted in writing to assure that the appeal record was complete, and that she relied upon a lack of response as an indication that it was complete.

Decided September 4, 1990.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Bush, Wallace & Craig, Daniel J. Craig, for appellee.

In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion. Johnson v. Clements, 135 Ga. App. 495 (218 SE2d 109) (1975). It is incumbent on appellant to file the transcript “within 30 days after filing of the notice of appeal . . . unless the time is extended as provided in Code Section 5-6-39.” OCGA § 5-6-42. OCGA § 5-6-48 (c) sets forth three criteria for dismissal of the appeal for failure to timely file a transcript: (1) unreasonable delay, which was (2)inexcusable and (3) “caused by such party.” Wagner v. Howell, 257 Ga. 801 (363 SE2d 759) (1988). Unlike Baker v. Southern R. Co., supra, which was remanded to determine if appellant was the cause of the delay, wherein the trial court predicated its conclusion of unreasonable and inexcusable delay upon the failure of Baker to seek an extension, the court in the instant case found that appellant made no effort to discover when the transcript would be timely filed, which was coupled with an assumption by the attorneys in the case that a transcript need not be filed until the case was docketed in this court. The trial court, in essence, found that the delay in filing the transcript was caused by appellant, and we find no abuse of the court’s discretion in dismissing the appeal.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1524.
    MORGAN et al. v. GEORGIA VITRIFIED BRICK & CLAY COMPANY.
    (397 SE2d 49)
   Beasley, Judge.

The plaintiffs Morgan and Gibson sued for damages arising from the defendant’s mining of certain real property. They appeal dismissal of their complaint for failure to state a claim, OCGA § 9-11-12 (b) (6).

The pleadings establish that T. L. Morgan and Gibson owned approximately 1.49 acres of land in Richmond County concerning which a 1943 federal court order awarded to defendant company the rights to “take all deposits of kaolin, shale and other underlying minerals,” to “explore and exploit such deposits,” and to “use the surface . . . for that purpose together with the right of ingress and egress.” In actively mining the property, defendant excavated portions of the top soil and overburden away from the land and removed kaolin and other minerals, with resulting depressions and irregular terrain.

Plaintiffs alleged that the property left in such condition had a present market value of $100, but that had defendant not “wrongfully altered the surface and terrain of the property and removed the top soil and the overburden ... so as to destroy the value of the property,” the present market value would have been $27,500, total damages being $490,000.

The trial court concluded that state law regarding implicit rights of a fee simple mineral rights owner were clear and as stated in Brooke v. Dellinger, 193 Ga. 66 (17 SE2d 178) (1941). It reasoned that under Brooke plaintiffs’ complaint did not assert a cause of action but merely alleged that defendant should be liable for actions which were inherent and implicit in its mineral rights.

1. “ ‘When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, “the . . . rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” [Cits.]’ [Cit.]” Storm Systems v. Kidd, 157 Ga. App. 527, 528 (3) (278 SE2d 109) (1981); OCGA § 9-11-12 (b) (6). Wilson’s and Gibson’s complaint should not have been dismissed.

Brooke, supra at 67 (headnote 2), as quoted by the trial court, provides that “[w]here the owners of . . . minerals and mineral rights in conducting their mining operations removed soil, dirt, and timber away from the tract of land as to which such minerals and mineral rights were conveyed, the owner of the surface could not recover damages for such removal, in the absence of any averment to show that the mining operations were conducted in a negligent or improper manner, or that the acts complained of were not reasonably necessary to obtain the minerals conveyed.” Here, the complaint expressly alleged that defendant had “wrongfully altered” the mined terrain, “creating deep ditches, steep cliffs and rough terrain thereby completely changing the surface and terrain. ...” Tacit in such averments is the claim that defendant’s actions were not reasonably necessary to the conduct of the mining operations.

Secondly, while “[i]t is established law in this state that a grant of minerals conveys, by implication, the rights of ingress and egress, and possession of the surface necessary to the use and enjoyment of the estate conveyed, [cit.] [t]his right is, of course, counterbalanced by the right of the surface owner to subjacent support of his land. [Cit.]” Slade v. Rudman Resources, 237 Ga. 848, 849 (230 SE2d 284) (1976). As to the surface owner, “the excavation and removal of dirt . . . is a tort, unless authorized by a contract.” Sheppard v. Yara Engineering Corp., 248 Ga. 147, 149 (281 SE2d 586) (1981). The pleadings put at issue whether the court decree granting defendant the mineral rights permitted the removal of top soil or overburden from the land. Resolution of this issue and of whether tortious conduct occurred became matters of evidence and proof; these precluded dismissal for failure to state a claim.

Decided September 4, 1990.

Jolles & Slaby, Isaac S. Jolles, for appellants.

Dye, Miller, Tucker & Everitt, A. Zachery Everitt, for appellee.

2. The decision in Division 1 makes it unnecessary to address appellants’ other enumeration of error.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1528.
    THE STATE v. SCOGGINS.
    (397 SE2d 50)
   Deen, Presiding Judge.

On October 18, 1989, appellee Scoggins was charged by accusation with simple battery, OCGA § 16-5-23. His trial began April 25, 1990, but after the close of the evidence and before the case was submitted to the jury, the trial judge sua sponte entered an order dismissing the charges and declaring the case “a nullity because the State failed to attach an affidavit to the accusation as is required . . . [by] OCGA § 17-7-71.” The State moved for expedited appeal, and we granted the motion May 22, 1990.

The cited statute provides as follows: “In all misdemeanor cases in superior, state, or county courts, the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court. The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.” According to the record, defendant/ appellee in the instant case had not been arrested prior to the filing of the accusation, and the State was not seeking to use the accusation as the basis for seeking issuance of an arrest warrant.

Decided September 4, 1990.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellant.

Greene & Davis, H. Darrell Greene, for appellee.

Scrutiny of the cases cited by the trial court in its order indicates that these cases do not support the court ruling below. Bickley v. State, 243 Ga. 488 (255 SE2d 31) (1979), was decided under Ga. Code Ann. § 27-704, now OCGA § 17-7-70. The same is true of Martin v. State, 139 Ga. App. 8 (228 SE2d 15) (1976). Both of these cases were decided before the enactment of OCGA § 17-7-71 in 1980. In Shults v. State, 195 Ga. App. 525 (394 SE2d 573) (1990), this court noted: “Since 1980 an accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.” See also Military Circle Pet Center No. 94 v. State, 181 Ga. App. 657 (353 SE2d 555) (1987), which is cited in the trial court’s order but which actually provides no support for the court’s ruling.

We find that the trial court erred as a matter of law in holding that the applicable statute requires that an affidavit accompany the accusation in the fact situation of the instant case.

Judgment reversed.

Pope and Beasley, JJ., concur.


text:
    A90A1637.
    AULD v. WEAVER.
    (397 SE2d 51)
   Beasley, Judge.

Defendant-attorney Auld appeals the judgment entered on a jury verdict in favor of plaintiff Weaver in this suit to recover monies, punitive damages, and expenses of litigation. The jury rendered its verdict on August 10, 1989, Appellant filed both a motion for new trial and a notice of appeal on September 5. Judgment on the verdict was entered on September 21. On October 2, appellant filed a second notice of appeal, from the judgment, and dismissed the first, which had in effect been from the verdict because there was no judgment when it was filed. The motion for new trial was denied on May 10, 1990. Appellee moves to dismiss the appeal on the basis that it was filed during pendency of the motion for new trial and unaccompanied by a certificate of immediate review.

“ ‘ “A notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.” ’ [Cit.]” Booker v. Amdur, 186 Ga. App. 276 (367 SE2d 94) (1988). Inasmuch as the operative notice of appeal was not filed within thirty days of the disposition of appellant’s motion for new trial, OCGA § 5-6-38 (a), the appeal must be dismissed. OCGA § 5-6-48 (b); Booker, supra. Compare Shirley v. State, 188 Ga. App. 357 (1) (373 SE2d 257) (1988) which discusses the rule that premature filing is not a ground of dismissal in criminal defendant appeals. As to civil appeals, “[t]he appeal is not brought to maturity or perfected by the subsequent overruling of the motion for new trial. [Cits.]” Home Ins. Co. v. Fort Valley Mills, 132 Ga. App. 15, 16 (207 SE2d 590) (1974).

Decided September 4, 1990.

Germano & Kimmey, Don E. Germano, for appellant.

Kirby G. Bailey, for appellee.

Appeal dismissed.

Deen, P. J., and Pope, J., concur.


author: Birdsong, Judge.

text:
    A90A0967, A90A0968.
    GOODMAN et al. v. INDEPENDENT LIFE & ACCIDENT INSURANCE COMPANY et al. (two cases).
    (397 SE2d 56)
   Birdsong, Judge.

Appellants pro se, Gene Nelson Goodman and his son Gene Terence Goodman, appeal the Ware County Superior Court’s grant of separate summary judgments to their deceased mother’s widower, appellee Ocie Williams, and to Independent Life & Accident Insurance Company (“Independent Life”). Ocie Williams and Independent Life were sued by appellants, Mildred Goodman Williams’ son and grandson on November 29, 1989, for conspiracy and other legal injuries, based upon the Ware Probate Court’s grant of year’s support to widower Ocie Williams on April 3, 1989. The award consists, apparently, of household furnishings and clothes valued at about $300 and $300 in moneys, and a refund of $3.45 by Independent Life to Ocie Williams for overpayment of life insurance premiums.

The basis of the appellants’ complaints is that on December 7, 1988, appellants filed a petition to probate a 1978 will and testament of Mildred Goodman Williams, which named them as sole beneficiaries of her estate. Evidently there is a dispute concerning the validity of this will, the nature of which dispute is not contained or reflected in the record before us. On February 20, 1989, Ocie Williams filed an application for year’s support which, after rule nisi issued, was granted in April 1989. Upon this award, Independent Life paid to Ocie Williams the $3.45 for premium overpayment. Appellants’ suit contends they are the sole beneficiaries and that Ocie Williams was entitled to nothing. The trial court granted summary judgment to both defendants. Held:

1. Appellants timely appealed both grants of summary, judgment after the rendition of the second summary judgment made to Ocie Williams, for the earlier judgment to Independent Life, although appealable, was not final until the entire case was disposed. See Culwell v. Lomas &c. Co., 242 Ga. 242 (248 SE2d 641); Insurance Co. of North America v. Fowler, 148 Ga. App. 509 (251 SE2d 594).

2. The superior court did not err in granting summary judgment to the defendants upon this lawsuit. The record shows unequivocally that a will of Mildred Goodman Williams has not been probated and that, if there is a dispute, it has not been resolved by the probate court. Appellees contend that inasmuch as the probate or administration was not complete, the suit in superior court was premature, citing generally Allen v. Stephens, 102 Ga. 596 (29 SE 443); Baker v. Tillman, 84 Ga. 401 (11 SE 355). However, OCGA § 53-5-21 gives a right to appeal an award of year’s support to the superior court, as with “any decision made by the probate court, except an order appointing a temporary administrator” (emphasis supplied) (OCGA § 5-3-2); clearly, this allows appeal of such decision even if the estate is not fully probated or administered. Tilley v. King, 193 Ga. 602 (19 SE2d 281). See Cubine v. Cubine, 69 Ga. App. 656 (26 SE2d 462).

The superior court granted summary judgment to the defendants apparently upon the grounds they raised, to wit, that the will had not been fully probated; or, at best, upon the grounds that the appellants had not shown by any record or evidence that the probate court erred in granting year’s support. The right to year’s support by a widower is a vested right, superior to any encumbrances or debts or other legal entitlement of or to the estate, including bequests to legatees under a testate deceased; it is thus so as a matter of public policy and is a favored creature of the law, intended to protect the widow or widower and minor child and children even if the award overrides a testamentary bequest to another, which in any case would take effect only after all debts paid. OCGA § 53-5-2; Burch v. Harrell, 57 Ga. App. 514 (196 SE 205); see Rimes v. Graham, 199 Ga. 406 (34 SE2d 443); Beddingfield v. Old Nat. Bank &c. Co., 175 Ga. 172 (165 SE 61); Clark v. Clark, 62 Ga. App. 738 (9 SE2d 710). There is nothing in this record to show error on the part of the probate court in setting aside the award to the widower in this estate, including the refund to him of $3.45 overpaid premium by the insurance company. We presume, however, that the matter will remit to the probate court for determination of what has not been adjudicated upon the appellants’ petition for probate. That is, the widower having been entitled to a year’s support, the question remains whether there is anything left to devise to the appellants under the will which they seek to probate, and as to which we do not see evidence of caveat or contradiction; this should include their questions as to whether there is a valid insurance policy and who are the beneficiaries of it, and whether there is any other property not taken up by the year’s support.

Decided September 6, 1990.

Gene N. Goodman, pro se.

J. Floyd Thomas, Frank B. McDonald, Jr., for appellees.

Judgments affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1093.
    THE STATE v. DAVIS.
    (397 SE2d 58)
   Birdsong, Judge.

At the calendar call of the criminal case against John James Davis on July 14, 1989, both State and defendant announced ready; but three days later, before any jury was drawn, the State moved to nolle prosequi the case. The trial court granted the prosecutor’s request.

Three weeks later, however, the State notified the defendant it would put the case back on the trial calendar for October. The defendant filed a Motion to Dismiss the Indictment, contending the case had been terminated when it was “nol prossed.”

The trial court at the motion hearing determined that the State had entered a nolle prosequi of defendant’s case on July 17, 1989, having previously announced “ready,” and was seeking now to “unfairly prejudice the [defendant and usurp the integrity of this [cjourt’s administration of its cases.” Thereupon, in January 1990, the trial court formally entered a nolle prosequi upon the indictment nunc pro tunc, and dismissed it.

The State appeals, contending, in effect, the nolle prosequi was not good because it never was reduced to a written order, and the trial court’s act of entering it nunc pro tunc was ineffective to stop the State from trying the defendant. Held:

The State advises this court, and it appears in the hearing transcript, that in a similar case previously the trial court had ruled that after much research, it had determined the State can nolle prosequi a case at any time and remove the nolle prosequi and renew the prosecution at any time, but had expressed disturbance at the State’s actions as “trifling with the court,” and threatened to hold the State in contempt at the next such occurrence. The State implies the dismissal in this case is but the enactment of that threat.

Decided September 6, 1990.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellant.

We find, however, that the trial court was correct. When the trial court granted the nolle prosequi at the State’s request on July 17, 1989, the nolle prosequi was “entered” (OCGA § 17-8-3); since the trial court is a court of record, we must presume the nolle prosequi was recorded in the court record for that day. Statham v. State, 41 Ga. 507. In any case, the trial court’s consent to enter the nolle prosequi was conclusive as to its validity. Lascelles v. State, 90 Ga. 347 (16 SE 945), aff’d 148 U. S. 537 (13 SC 687, 37 LE 549). The trial court’s nunc pro tunc “entry” of the nolle prosequi on the indictment was probably superfluous, but correct.

When the nolle prosequi was entered on July 17, 1989, the prosecution was at an end, and all the incidents to it came to an end (Lamp v. Smith, 56 Ga. 589), including most obviously the right of the State to try the defendant upon the indictment. When the State thought over the matter, it could have reindicted the defendant within six months (Earlywine v. Strickland, 145 Ga. App. 626 (244 SE2d 118)); but evidently it did not do so. Instead, it attempted to place on the calendar a case it had called dead and had not revived. The trial court found the defendant’s rights were prejudiced and, prima facie, they were; the trial court found the State’s apparent habit of doing this sort of thing usurped the integrity of the trial court’s administration of its cases, and with this we cannot quarrel. Certainly it rendered every nolle prosequi a meaningless gesture. The indicted offense was serious but we are not responsible for the State’s failure after its nolle prosequi of the indictment to act formally to reindict or reaccuse the defendant if it wanted to prosecute him. Moreover, the State could still have reindicted the defendant within six months of the nolle prosequi, but when the defendant objected to the procedure, it chose to pursue instead an imagined right to nolle prosequi defendants upon an indictment and try them nevertheless. No such right exists. Fortunatély for the State, this defendant remains incarcerated for other offenses; but in any event, upon the law itself, we find no difficulty in holding this prosecution was ended when the State, with the trial court’s consent, entered the nolle prosequi.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Steven E. Lister, for appellee.


text:
    A90A1127.
    WILSON v. THE STATE.
    (397 SE2d 59)
   Birdsong, Judge.

Willie L. Wilson appeals his conviction for sodomy. He asserts the general grounds, and also contends that the trial court erred by allowing him to represent himself and that he was denied the effective assistance of counsel. Held,-.

1. Wilson’s first two enumerations of error assert that the verdict is contrary to the evidence and justice, and that the verdict is against the weight of the evidence. The record shows that the victim unhesitatingly identified Wilson as the person who sexually assaulted him, the victim’s testimony was corroborated by fresh complaint, by items found at the scene of the crime, by physical injuries to the victim, and by the testimony of other witnesses. Although Wilson denied committing the offense, it is the jury’s function to weigh the evidence and to judge credibility. Appellate courts only determine whether the evidence is sufficient for a reasonable trier of fact to have rationally found proof of guilt beyond a reasonable doubt. Banks v. State, 185 Ga. App. 851, 853 (366 SE2d 228). Viewing the evidence in the light most favorable to the verdict (Watts v. State, 186 Ga. App. 358 (366 SE2d 849)), there was “ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that [Wilson] was guilty of [sodomy].” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, Wilson’s first and second enumerations of error are without merit.

2. Wilson’s third enumeration of error contends that the trial court erred by not properly advising Wilson of the “perils and pitfalls” of representing himself, by failing to specifically find that Wilson “validly” chose to represent himself, and find that Wilson “knowingly and intelligently” chose to represent himself after he had been informed of his right to counsel. Review of the record shows that counsel was appointed to represent Wilson, but at the start of the trial Wilson notified the court that he wanted another counsel appointed because he was dissatisfied with his appointed counsel. When the trial court refused to appoint other counsel, Wilson elected to represent himself. The record also shows that before permitting Wilson to represent himself the trial court advised Wilson that the trial court could not help Wilson try his case; that the defense would be entirely up to Wilson; that Wilson was going to have to follow the rules of court, follow the law of evidence; and conduct an orderly trial. Moreover, the trial court directed appointed counsel to remain in court and be available to assist and advise Wilson if he wanted assistance.

Decided September 6, 1990.

Gary E. Byrd, Robert G. Jones III, for appellant.

Douglas C. Pullen, District Attorney, Lew S. Barrow, Assistant District Attorney, for appellee.

The failure to make affirmative findings in the exact language of Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) is not reversible error (Singleton v. State, 176 Ga. App. 733 (337 SE2d 350)), and each case must be decided on “its own peculiar facts and circumstance.” Callahan v. State, 175 Ga. App. 303, 304 (333 SE2d 179). The record shows that Wilson chose to represent himself after he had been made aware of his right to counsel, had counsel appointed, and fired his appointed counsel. Further, the record shows that the trial court advised Wilson of the dangers associated with representing himself. See Callahan v. State, supra. Accordingly, there was no error. Evans v. State, 192 Ga. App. 832, 833 (386 SE2d 712); Williams v. State, 192 Ga. App. 317, 318 (384 SE2d 877). Compare Black v. State, 194 Ga. App. 660 (391 SE2d 432).

3. Wilson also alleges that he was denied the effective assistance of counsel because his appointed counsel did not subpoena certain defense witnesses before he was discharged. Review of the transcript shows that these witnesses were police officers to whom the victim allegedly complained, but according to Wilson only after the victim was questioned about shoplifting.

We cannot consider this issue since Wilson was apparently aware of this matter before he fired his . appointed counsel, yet he announced ready for trial, apparently made no effort to secure these witnesses, and made no request for a continuance to secure these witnesses before the trial began. Indeed, even when this matter was brought to the attention of the trial court, Wilson did not request a delay until the witnesses could be subpoenaed, and apparently did not attempt to secure the witnesses. Further, the record shows that after raising the failure of appointed counsel to subpoena the witnesses, Wilson acquiesced in the trial court’s direction, to question the witnesses on the stand and not to argue about what some other witness would testify. Thereafter Wilson never again raised the subject of the missing witnesses. Under these circumstances, Wilson waived any issue concerning his appointed counsel’s failure to subpoena these witnesses (Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536)). Moreover, by his conduct, Wilson induced any error by his failure to bring the matter to the attention of the trial court before the trial began. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864). Accordingly, this enumeration of error is also without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.