text:
    A90A0673.
    PACCAR FINANCIAL SERVICES, LTD. v. JOHNSON.
    (393 SE2d 685)
   Birdsong, Judge.

This case involves a dispute between the holder of a purchase money security interest and an alleged good faith purchaser of a Ken-worth truck.

Appellant/plaintiff brought suit for writ of possession. The trial court ultimately granted a directed verdict to appellee/defendant on the writ of possession claim. The directed verdict was reduced to judgment; appellant appeals this judgment.

On October 17, 1986, a Canadian corporation engaged in a long-haul freight business, known as Mid-Industries, purchased a new Kenworth truck from a Canadian truck dealer known as London Ken-worth for $112,000 Canadian, plus certain financing and related charges making a deferred balance due of $136,652 Canadian. The purchase price would have been approximately $90,000 U. S. Appellant Paccar loaned the bulk of the purchase price to Mid-Industries, and to secure this indebtedness, Mid-Industries executed a conditional sales contract with London Kenworth which contained the security agreement in question and an assignment clause making appellant the assignee of London Kenworth’s interest. The contract was executed and assigned to appellant on October 17, 1986.

In the meantime, a Georgia used truck broker named Murdock learned that Mid-Industries had a Kenworth truck for sale. He contacted agents of Mid-Industries who showed him the vehicle while it was still in the possession of London Kenworth. Later, on October 17, 1986, Murdock bought the truck from Mid-Industries at a motel in Detroit, Michigan, for $56,000 U. S. Murdock subsequently brought the truck to Georgia and sold it on October 22, 1986, to appellee Johnson, another Georgia used truck broker, for $61,000 U. S.

Prior to his purchase of the Kenworth truck, appellee Johnson had learned that Mid-Industries was going to have two trucks for sale. He flew to Detroit only to learn from Murdock that the latter had already purchased the one available truck, a Freightliner, and that Mid-Industries had not yet taken possession of the Kenworth. Johnson bought the Freightliner from Murdock and resold it at a profit. Murdock subsequently called Johnson in Georgia and offered to sell him the Kenworth truck. Murdock gave appellee Johnson a bill of sale signed in blank by Mid-Industries agents either in Canada or in Detroit; the bill of sale was notarized in Georgia.

On October 24, 1986, within ten days of the original transaction, appellant Paccar filed its purchase money security interest in Ontario, Canada. Held:

1. The parties agree that the Personal Property Security, Revised Statutes of Ontario (Canada), 1980, Chapter 375 (“the Act”) governs this case. See generally OCGA § 11-9-103 (3). The Act was introduced in evidence, and is contained in the trial record. The Act, although based on Article 9 of the United States Uniform Commercial Code prepared by the American Law Institute, does not follow it precisely. Report No. 3, Ontario Law Reform Commission on Personal Property Security Legislation, Dept. of the Attorney General, par. 5 (May 28, 1965).

2. Section 30 (1) of the Act (section 31 (1) of the draft act), which is patterned after UCC § 9-307 (1), provides that “[a] purchaser of goods from a seller who sells the goods in the ordinary course of business takes them free from any security interest therein given by his seller even though it is perfected and the purchaser actually knows of it.” (Emphasis supplied.) The trial judge correctly ruled, inter alia, that as appellee Johnson’s seller was Murdock, and as Murdock created no security interests in the truck, appellee is not entitled to avail himself of this provision whether under Georgia or Canadian law. Section 30 (1) on its face excludes protection for remote security interests, that is, it provides protection to the buyer in the ordinary course from a security interest created by the buyer’s seller only and grants no protection against the security interest created by a former owner. Compare Commercial Credit Equip. Corp. v. Bates, 154 Ga. App. 71, 74 (I) (B) (267 SE2d 469); Anderson, 9 Uniform Commercial Code, Secured Transactions, § 9-307:8; see also 79 CJS, Secured Transactions, § 61.

3. The question then arises whether appellee was entitled to prevail under some other provision of Canadian law. Appellee asserts, inter alia, that the trial court reached the right result in its ruling because he is entitled to prevail under the provisions of section 22 (1) (b) of the Act. Section 22 (1) (b) (i) pertinently provides that: “Except as provided in subsection (3), an unperfected security interest is subordinate to . . . the interest of a transferee who is not a secured party to the extent that he gives value without knowledge of the security interest and before it is perfected . . . of . . . goods . . . not in the ordinary course of the business of the transferor and where the transferee receives delivery of the collateral. . . .” (Emphasis supplied.)

At the outset, we note that appellant asserts that section 22 of the Act applies and it is entitled to claim the exception to section 22 (1) (b) found in subsection 22 (3).

Section 9-301 (2) of the UCC, the closest UCC counterpart to section 22 (3) of the Act, pertinently provides that “[i]f the secured party files with respect to a purchase money security interest before or within ten days after the debtor receives possession of the collateral [collateral comes into possession of the debtor], he takes priority over the rights of a transferee in bulk or of a lien creditor which arise between the time the security interest attaches and the time of filing.” (Emphasis supplied.) Anderson, supra at § 9-301; Hawkland, 8 Uniform Commercial Code Series, § 9-301. The Official Code Comment to UCC section 9-301, interprets subsection (2) as follows: “Except to the extent provided in subsection (2), this Article does not permit a secured party to file or take possession after another interest has received priority under subsection (1) and thereby protect himself against the intervening interest. . . . Subsection (2) gives a grace period for perfection by filing as to purchase money security interests only. . . . The grace period runs for ten days after the debtor receives possession of the collateral but operates to cut off only the interests of intervening lien creditors or bulk purchasers.” Anderson, supra at § 9-301:1 (5), p. 24; Hawkland, supra at 9-301, pp. 577-578, 581-582. Accordingly, “[i]f the unperfected creditor has a purchase [money] security interest and files before or not later than the ten days after the debtor receives possession of the goods, he has priority over the rights of the bulk transferee that arose between the time when the security interest attached and the time of filing. Anderson, supra at § 9-301:50, p. 48. Thus, “[s]ubsection 9-301 (2) [UCC] . . . provides for a major exception to the rule of . . . subordination of an unperfected security interest. It sets out a 10-day grace period in which an unperfected security interest may nevertheless take over the rights of certain lien creditors and transferees in bulk.” Hawkland, supra at § 9-301:01, p. 584. “Besides having a purchase money security interest in the collateral, a secured party, in order to qualify for the exception under subsection 9-301 (2), must file a financing statement with respect to the purchase money security interest before or within 10 days after the debtor receives possession of the collateral. . . . Thus, a secured party with a purchase money security interest has a 10-day grace period in which to perfect his security interest.” Hawkland, supra § 9-301:05, p. 596. “Unlike a similar purchase money security interest exception in subsection 9-302 (1) (d) [UCC], the purchase money security interest exception under subsection 9-301 (2) does not need to be in any particular type of collateral. The collateral may, for example, be consumer goods or equipment or any other type of goods. . . .” Hawkland, supra, § 9-301:05, p. 596.

The exception found in subsection 9-301 (2) is a powerful exception because it allows a security interest, that in fact is not perfected until after an intervening property interest has arisen, to claim a priority over that intervening interest. Accordingly, both the UCC and the statutes of this state have limited the exception to an intervening “transferee in bulk or . . . lien creditor.” Compare OCGA § 11-9-301.

Subsection 22 (3) of the Act, however, is broader than § 9-301 (2) of the UCC. Subsection 22 (3) expressly provides that “[a] purchase-money security interest that is registered before or within ten days after the debtor’s possession of the collateral commences has priority over . . . transfers in bulk or otherwise, not in the ordinary course of business, occurring between the security interest’s attaching and its being registered.” (Emphasis supplied.) Thus, section 22 (3) extends its exception to all interim sales of goods made not in the ordinary course of business and not merely to those in bulk. Accordingly, section 22 (3) of the Act is, clearly and unequivocally, on its face materially broader in scope than its counterpart found in section 9-301 (2) of the UCC. Subsection 22 (3) being plain and susceptible of but one natural and reasonable construction, the courts of our state have no authority to place a different construction upon it merely because it does not mirror Georgia law, and the Canadian statute must be construed according to its terms. See Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490).

It was recognized that the Act would cause “a very substantial change in principle with reference to the time that priorities are established.” Report No. 3 of the Ontario Law Reform Commission, supra at par. 22. Moreover, our interpretation is compatible with the basic provision of § 9 of the Act providing that “[e]xcept as otherwise provided by this or any other Act, a security agreement is effective according to its terms between the parties to it and against third parties.”

Although the practical effect of section 22 (3) of the Act is to place a purchase money security interest holder who more likely will be a Canadian or frequently doing business in Canada in an advantageous position over an interim purchaser who may, as in this case, come from the United States, neither does the section 22 (3) preclude a foreign security interest holder from obtaining a priority over a Canadian third-party purchaser. Thus, we cannot say that such a legislative decision is violative of the public policy of this state. In either event, someone’s interests are going to prevail, and the fact that it is the purchase money security interest holder, acting in apparent good faith, who is allowed to prevail over an unsuspecting interim purchaser, primarily is the result of the Ontario legislature weighing respective equities and balancing the need for fostering reliable business practices in their financial community. Accordingly, we have no basis for refusing to apply section 22 (3) of the Act on public policy grounds.

It is uncontroverted in this case that appellant did file the required financial statement within the ten-day period. Neither appellant nor appellee has brought to this court’s attention any Canadian case law dealing with a situation where a purchase money security interest for the sale of inventory goods was registered within the ten-day period. We conclude that such filing would allow appellant to rely upon the benefits of section 22 (3) of the Act, but only if the transfer did not occur in the ordinary course of business.

As to the issue of whether a transfer has occurred in the ordinary course of business, section 22 of the Act appears to adopt the basic requirements of the UCC. For a sale or transfer to be classified as occurring in the ordinary course of business the seller is required to be “in the business of selling goods of that kind.” See Anderson, supra at § 9-307:25, p. 204. The seller must deal in goods of that kind and “the buyer’s belief is immaterial on this issue, although it is relevant to the question of the buyer’s good faith and therefore has bearing on whether the buyer purchased in ordinary course.” Id. at p. 205; see generally 79 CJS, Secured Transactions, § 62.

In the case sub judice, we have a so-called “string transaction.” At least one authority on Canadian security law has concluded that “the Act does not take account of string transactions. ... It is drafted upon an assumption of a single transfer.” McLaren, Secured Transactions & Personal Property in Canada, § 6.02 [2] [b], p. 6-26. McLaren proceeds to suggest at least two alternative methods of interpreting string transactions so that the Act can be satisfactorily applied. Id. One of those methods, which we now partially adopt as being the only one suited to the facts of this case, is to apply the Act to the first transfer transaction between Mid-Industries and Murdock, then treating that result as setting the characterization for the subsequent transfer transaction between Murdock and Johnson. Accordingly, we conclude that the question of whether the sale in question was accomplished in the ordinary course of business, is dependent upon the characterization given to the initial transfer to Murdock after the provisions of the Act have been applied thereto.

During the course of the trial, the court ruled, without subsequent retraction thereof, “that the [appellee]/defendant [Johnson] was a buyer in the ordinary course of business as defined either under Georgia law or Canadian law.” The trial court expressly stated its “finding” was made “as a matter of law.” We find that the trial court erred in so interpreting the applicable Canadian law. “When there is a question of fact as to whether the seller was a dealer in goods of the kind in question at the time of the sale there is an issue of fact as to whether the buyer is a buyer in ordinary course of business. . . .” Anderson, supra at § 9-307:23, p. 202. In the case sub judice, we find that a jury question did exist as to whether Mid-Industries was a dealer in goods of the kind in question at the time of the sale, and as it is the first transfer transaction that characterizes the string transaction, as to this particular element, the trial court erred in its ruling.

Assuming arguendo, that the transaction in this case was accomplished in the ordinary course of business, then the powerful exception contained in section 22 (3) of the Act would provide appellant no protection, and as to appellee Johnson the security interest would remain unperfected as of the time of the sale. For reasons above discussed, the appellee would not be entitled to rely upon section 30 (1) of the Act. The question then becomes whether appellee Johnson, if he qualifies as a good faith purchaser, could prevail over appellant’s unperfected security interest notwithstanding the inapplicability of section 30 (1).

It is asserted, that the Act does not adequately address such situation, thus causing a situation where the first good faith purchaser in a string transaction would be able to claim the benefits of section 30 (1) of the Act, but that subsequent good faith purchasers could not. The trial judge in essence recognized this anomaly and concluded that if section 22 (1) (b) of the Act (subject as we have now said to section 22 (3)) provides benefits to such string purchasers where the sale is not in the ordinary course of business, “then certainly [the same protection] would be given to [string purchasers] who purchased in the ordinary course of business.” With this conclusion of the trial judge we cannot agree. Section 9 of the Act expressly provides that, “[e]xcept as otherwise provided by this or any other Act, a security agreement is effective according to its terms between the parties to it and against third parties.” (Emphasis supplied.) Thus, as the Act is silent in such cases, appellee would be unable to prevail as the conditional sales contract in the case sub judice constituted a valid security agreement within the meaning of section 9 of the Act. See, e.g., section 1 (x) of the Act.

We recognize that this interpretation is harsh as to a good faith string purchaser. But it is better to have an occasional “harsh application of the law than to disrupt thousands of other transactions by injecting uncertainty and by encouraging . . . challenge [to] what would otherwise be clear and fair rules.” White & Summers, 2 Uniform Commercial Code (3d ed.), Weird Cases, § 26-20; compare Tuftco Sales Corp. v. Garrison Carpet Mills, 158 Ga. App. 674, 678 (282 SE2d 159).

As it appears that appellee Johnson would not be entitled to prevail under any circumstances, judgment is reversed and the case remanded to the trial court for appropriate disposition consistent with this opinion.

Decided April 2, 1990

Rehearing denied April 19, 1990

James H. Phillips, McCamy, Phillips, Tuggle & Rollins, R. Kevin Silvey, for appellant.

James A. Meaney III, for appellee.

Judgment reversed and case remanded with direction.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0528.
    HOLBROOK v. FOKES et al.
    (393 SE2d 718)
   Birdsong, Judge.

Arthur Holbrook appeals from a defendants’ verdict in this medical malpractice case. His sole enumeration of error below is that the trial court committed fatal error in giving this so-called “hindsight” charge to the jury: “I further charge you that in a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of the patient’s condition which only later or in hindsight prove [s] to be correct so long as the initial assessment was made in accordance with the reasonable standards of medical care. The concept of negligence does not encompass hindsight.” Held:

Appellant contends the quoted charge is inherent error because, of necessity, most expert opinions on behalf of a plaintiff in medical malpractice cases are based upon an after-the-fact review of records and evidence by plaintiff’s expert, which might always be, and in this case was described by the expert himself as “hindsight.”

We find no error in this charge. It properly instructs the jury that an after-the-fact assessment of facts or evidence cannot be the basis of a negligence claim “so long as the initial assessment was made in accordance with the reasonable standards of medical care. ...” The charge correctly distinguishes between hindsight and foresight, which is the basis for any negligence claim, and thus has been approved in Jones v. Finley, 170 Ga. App. 182 (316 SE2d 533) and Haynes v. Hoffman, 164 Ga. App. 236, 238 (296 SE2d 216), as a proper instruction on foreseeability.

The charge itself does not imply that opinions of experts reviewing medical records after the fact constitute “hindsight.” Rather, it is the plaintiff’s job to ensure the jury is not confused on the point even if the expert stumbles into some admission concerning the point of time at which he or she reviewed the case history. Both the plaintiff’s counsel and the defense counsel made the best they could out of the issue in this case, when the question arose. The defendants’ verdict cannot be laid out as the trial court’s fault where, as here, the charge was correctly given on the basis that negligence can be based only upon a finding of foreseeability in the “initial assessment,” and not “hindsight.”

Decided April 19, 1990.

Cook & Palmour, Bobby Lee Cook, Wade C. Hoyt III, for appellant.

K. Marc Barre, Jr., Long, Weinberg, Ansley & Wheeler, Roger Mills, for appellees.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A0553.
    PACK v. THE STATE.
    (393 SE2d 719)
   Deen, Presiding Judge.

Apparently believing modern television advertising and Brooke Shields’ pronouncement that “nothing comes between me and my Calvins,” the defendant wore a pair of blue jeans to trial which were recognized as missing from the home of one of the victims. The following day, the State tendered the jeans into evidence and the victim identified them as ones taken in the burglary by their size (36-30) and a stain below the right pocket. Appellant was tried and found guilty of five counts of burglary and appeals.

1. The trial court did not err in denying appellant’s motion for a directed verdict of acquittal and a new trial.

The evidence showed that a rash of five residential burglaries occurred in an area close to 1-75 in Dalton, Georgia, between December 17 and 19, 1988. Appellant was arrested approximately two weeks later, and an inventory search of the automobile he was driving revealed fourteen items which were positively identified at trial as taken from residences alleged to have been burglarized in counts 1 and 2 of the indictment. The victims of those burglaries identified the items and the blue jeans at trial.

Recent unexplained possession of stolen goods creates an inference of guilt. This inference plus the in-court identification of the items alleged to be stolen in counts 1 and 2 of the indictment were sufficient to authorize a conviction on these counts. Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983).

A very experienced detective with the Whitfield County Sheriffs Office testified as to all five burglaries and observed that none of the homes was ransacked (unlike the situation in most burglaries); that in each case items of value were left untouched; and that most of these cases involved precious metal such as jewelry, coins, sterling silver flatware, etc. Entry was obtained in most cases by prying open a back door.

Decided April 19, 1990.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

The similarities between these burglaries were sufficient to submit all five counts to the jury, and the court correctly charged the jury on circumstantial evidence. Construing the evidence in favor of the prosecution, we find that there was sufficient evidence for a rational trier of fact to find Pack guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Pack also contends that the lower court erred in permitting the State to admit evidence of his eight prior burglary convictions.

Under Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977), the State must show that appellant was the perpetrator of the independent crimes and there was sufficient similarity between the two offenses that proof of the former tends to prove the latter.

The State tendered into evidence Pack’s guilty plea to four counts of burglary of a dwelling house and his guilty plea to four counts of burglary in the second degree. Pack’s counsel admitted that his client had entered pleas to these offenses. Two officers who investigated those burglaries testified as to the absence of ransacking in each case and the similarity between the items stolen in those cases and the instant case. We find that the court correctly admitted the prior burglary convictions as tending to prove intent, bent of mind, and modus operandi. There is no admissibility requirement that the previous offense be identical with the one charged. Meier v. State, 190 Ga. App. 625 (379 SE2d 588) (1989).

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0627.
    SPAULDING v. THE STATE.
    (394 SE2d 111)
   Deen, Presiding Judge.

Richard W. Spaulding brings this appeal from his conviction of DUI, contending that his conviction should be reversed because the State failed to preserve a videotape made at the arrest scene and because the evidence was insufficient to support the conviction.

1. Prior to trial, Spaulding’s attorney filed an omnibus Brady motion and made an objection to the destruction of the videotape prior to the start of trial. He declined, however, the court’s offer of a continuance.

He claims that the destruction of the videotape is a violation of his constitutional right to due process of law. We think not. “[U]nless a criminal defendant can show bad faith on. the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U. S. — (109 SC 333, 102 LE2d 281, 289) (1988). The only evidence about the disposition of the videotape was that of a police officer who testified that videotapes are kept for a certain period of time and then taped over. This evidence does not show that the police acted in bad faith in disposing of the videotape.

2. Two police officers who were present at the arrest scene testified that appellant smelled of intoxicants, was unsteady on his feet, and was argumentative; and opined that his condition made him a less safe driver. A third officer attempted to give him an intoximeter test, but Spaulding was unable to blow into it enough for the instrument to obtain a reading. This officer observed that he had an odor of alcohol about him, had bloodshot eyes, was unsteady on his feet, and had slurred speech. He was also of the opinion that appellant was intoxicated to the extent that he was a less safe driver.

Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the evidence was sufficient for a rational trier of fact to find Spaulding guilty beyond a reasonable doubt. Driggers v. State, 244 Ga. 160 (259 SE2d 133) (1979).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 1 but have reservations regarding Division 2.

The error enumerated is the sufficiency of the evidence. The only particular element attacked on appeal is the alcohol influence evidence, which was adequate. There was scanty evidence, however, that the operation of the van was upon the place alleged in the Uniform Traffic Citation, i.e., “[u]pon the Public Highway and/or Street. . . .” This is a place covered in OCGA § 40-6-3. This location of the act had to be established in order for the act in this case to be a crime, Dockery v. State, 95 Ga. App. 486 (1) (98 SE2d 123) (1957) and Jordan v. State, 212 Ga. 337, 339 (92 SE2d 528) (1956), although place is no longer a material element of the offense, Flanders v. State, 97 Ga. App. 779, 780 (104 SE2d 538) (1958). See Walker v. State, 146 Ga. App. 237, 241-242 (1b) (246 SE2d 206) (1978).

One officer testified: “As I turned off the road, I observed a van pulling out of the driveway at 1804 [Ball Street] with the headlights on . . . The van was pulling towards — it was in the driveway pulling towards Ball Street. As I turned off, it backed back into the driveway and turned the headlights off . . . [Defendant] wanted to argue with me that he was in a driveway after I told him he was under arrest. . . .”

Decided April 19, 1990.

Hackel & Hackel, Thomas M. Hackel, for appellant.

Douglas L. Gibson, Solicitor, for appellee.

The other officer testified: “We observed a van that was just pulling out of a driveway. It got about — almost into the street and backed back up and turned its lights off.”

Defendant denied altogether that he drove “down the driveway” and “back[ed] back up.” When the officers stopped their vehicle, the van was “probably halfway between” the house and the street, defendant said. He also testified that he asked the officers for an opportunity to get a witness before they took him to the station “[b]ecause I hadn’t been on any public road or highway and especially intoxicated at all that day.”

Defendant was not charged with driving while intoxicated in the driveway, although private property is constitutionally included. Cook v. State, 220 Ga. 463 (1) (139 SE2d 383) (1964).

There being direct albeit slight inferential proof that the operation of the van extended to and was on a public street as alleged, rather than only on private property, it was sufficient.


text:
    A90A0758.
    WILLIAMS v. THE STATE.
    (394 SE2d 112)
   Deen, Presiding Judge.

Grayling C. Williams was convicted of possession of cocaine with intent to distribute, possession of a firearm during the commission of a felony, carrying a concealed weapon, and three motor vehicle violations. On appeal, he contends that the trial court erred in denying his motion for a directed verdict of acquittal and excluding certain of his testimony as hearsay, and asserts the general grounds as to the two possession offenses.

1. The evidence showed that appellant was riding a motorcycle with a broken taillight and was stopped by two police officers in a patrol car for having defective equipment. A pill bottle containing crack cocaine was found on the ground near where appellant dismounted from his motorcycle. Both officers testified that they observed him drop something to the ground when he dismounted, but appellant denied any knowledge of the bottle or that he put anything on the ground.

In arguing his first enumeration of error, appellant refers to certain contradictions in the officers’ testimony (whether the patrol car’s “take down bar” was operating, where the defendant was first sighted, whether there were cars parked near an auto parts store, etc.) and claims that his mere presence near the vial of cocaine was not sufficient proof of the crime beyond a reasonable doubt and that the officers’ testimony was so replete with contradictions that their testimony that they saw the defendant drop something to the ground was not credible.

It is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses. King v. State, 157 Ga. App. 733 (278 SE2d 491) (1981); OCGA § 24-9-80. Under OCGA § 17-9-1 (a), a defendant is entitled to a directed verdict of acquittal “[w]hen there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” It is not error for the trial court to deny the motion for a directed verdict if the evidence, when viewed in a light favorable to the prosecution, would enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Wright v. State, 253 Ga. 1, 3 (316 SE2d 445) (1984). The police officers observed appellant throw down the medicine vial containing crack cocaine; he had a fully loaded .25 caliber handgun concealed on his person, and was carrying a $100 bill.

2. During appellant’s testimony, he claimed that he had the $100 bill in his possession because he had pawned a .380 millimeter pistol the previous day for $150. When he was asked why he possessed the pistol knowing he was a convicted felon and not entitled to own or possess a firearm, he replied that he loved guns and had purchased it as a collector’s item. He added, “I asked Chief Gray about it, that the one that I . . .” At this point the State made a hearsay objection which was sustained. Appellant argues that he was about to say that he had checked with the local authorities and that they had given him permission to get a pistol or to offer some other justification for having the pistol. He made, however, no offer of proof as to the substance of the testimony and showed no harmful error as required under Brown v. State, 179 Ga. App. 280, 282 (346 SE2d 85) (1986). Appellant was not charged with any offense in connection with the .25 caliber pistol but was charged with possessing the .380 millimeter gun found in his possession when he was arrested. Moreover, Chief Gray testified on direct examination, and appellant declined to cross-examine him. He did not recall the witness in an attempt to prove that Gray had given him permission to carry a gun.

3. Viewing the evidence as presented at trial in a light most favorable to the jury verdict, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Hendrix v. State, 186 Ga. App. 665 (368 SE2d 181) (1988).

Decided April 19, 1990.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0842.
    BAKER v. THE STATE.
    (394 SE2d 801)
    Decided April 19, 1990.
    C. B. King & Associates, Chevene B. King, Jr., for appellant.

      H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

Appellant Baker a/k/a Smith was convicted on April 12, 1988, on four charges of rape. On May 11, 1988, he filed a motion for new trial, and the motion was denied April 19, 1989. On May 22, 1989, he filed a notice of appeal in the Superior Court of Lowndes County.

Examination of the record indicates that the instant appeal was filed more than the statutorily permissible thirty days after the denial of the motion for new trial. OCGA § 5-6-38 (a). Appellant filed no request for an extension of time. OCGA § 5-6-39. This court therefore has no jurisdiction over the appeal, and it must be dismissed.

Appeal dismissed.

Pope and Beasley, JJ., concur.


text:
    A90A0891.
    WOOD v. THE STATE.
    (393 SE2d 720)
   Deen, Presiding Judge.

Appellant Wood was convicted on three counts of child molestation. The alleged incidents involved two children, Wood’s two-year-old daughter and her playmate, a neighbor’s daughter. As his sole enumeration of error Wood asserts that the applicable statute, OCGA § 24-9-5, as amended, did not become effective in its present form until April 1989, some sixteen months after the occurrence of the alleged instances in December 1987, and that the trial court erred in allegedly failing to make a proper determination of the older child’s credibility and competency. Held:

Decided April 19, 1990.

Cook & Palmour, Kristina C. Connelly, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Susan Sarratt, Assistant District Attorney, for appellee.

OCGA § 24-9-5, as amended, deals with a witness’ credibility rather than only with his or her competency; in its original form the statute speaks only of competency. The record reveals that during the trial the prosecuting attorney asked the neighbor’s daughter (now nearly nine years old) a series of questions, the answers to which clearly demonstrated that she understood both the difference between truth and falsehood and the importance of telling only the truth, thereby complying with the requirements of OCGA § 24-9-5. Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981). The record further reveals that appellant’s counsel failed to question the witness following the examination by the State, or to object at that time on competency grounds, even though the trial court expressly ruled that he would be allowed to examine the witness. Thus counsel’s conduct amounted to a waiver of the right to raise the issue of the witness’ competency on appeal. Brinson v. State, 191 Ga. App. 151 (381 SE2d 292) (1989); Hollis v. State, 191 Ga. App. 525 (382 SE2d 145) (1989).

It is the trial court which decides whether a witness is competent, OCGA § 24-9-7, and when the witness is a child, this is a matter within the court’s sound discretion. Hill v. State, 251 Ga. 430 (306 SE2d 653) (1983). Compare Hester v. State, 187 Ga. App. 873 (371 SE2d 684) (1988), wherein the trial court found competent a nine-year-old who answered a series of questions similar to those posed in the instant case. See also Akers v. State, 179 Ga. App. 529 (346 SE2d 861) (1986).

We find no merit in appellant’s enumeration.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0940.
    PHILLIPS et al. v. PERMANENT GENERAL CLAIMS SERVICE et al.
    (393 SE2d 721)
    Decided April 19, 1990.

      James R. Jester, for appellants.
   Deen, Presiding Judge.

The appellants, Betty Phillips and Herbert Edwards, were injured in an automobile collision involving the automobile owned and driven by Edwards, and commenced this action to recover PIP benefits from the Tennessee insurers that issued a policy of insurance covering Edwards’ car. At the time the policy was issued, Edwards was a Tennessee resident, but at the time of the automobile collision he was living and working in Georgia. The appellees were never informed of this change of residence. The appellees defended on the basis that because none of the appellees was authorized to transact insurance in Georgia and none had done so, the appellees were not required to provide PIP benefits under OCGA § 33-34-1 et seq. This appeal follows from the trial court’s denial of the appellants’ motion for summary judgment and grant of the appellees’ motion for summary judgment. Held:

Under OCGA § 33-34-3 (a) (2), all insurers authorized to transact business or transacting business in Georgia must include in automobile liability insurance policies the minimum no-fault coverages. OCGA § 33-34-3 (a) (3) provides that “[njothing contained in this Code section shall be deemed to prohibit a nonadmitted insurer not otherwise required by paragraph (2) of this subsection to provide the minimum benefits ... for its insured motorists who are involved in motor vehicle accidents in this state. ...” Under these two Code sections, an insurer not authorized to transact insurance in Georgia and not transacting insurance in Georgia may, but is not required to, provide PIP benefits.

The appellants misplace their reliance upon Freeman v. Ryder Truck Lines, 244 Ga. 80, 82 (259 SE2d 36) (1979), in which the Supreme Court held that “a vehicle registered in another state is nevertheless subject to the provisions of our no-fault Act, at least where its own no-fault law is not applicable,” as that case involved the obligation imposed by OCGA § 33-34-4 on an owner of a vehicle operated in this state to obtain insurance, and not the duty of foreign insurers not transacting insurance in Georgia. Accordingly, the trial court properly granted summary judgment for the appellees.

Judgment affirmed.

Pope and Beasley, JJ., concur.

McClain & Merritt, William S. Sutton, for appellees.


text:
    A90A0196.
    HASTY v. THE STATE.
    (394 SE2d 800)
    Decided April 5, 1990
    Rehearing denied April 20, 1990.

      B. Clark Jones, for appellant.

      Patrick H. Head, Solicitor, Cindi L. Teelon, Beverly M. Hartung, Assistant Solicitors, for appellee.
   Deen, Presiding Judge.

The appellant, Jeremy Hasty, was convicted of underage possession of alcohol. There is no transcript of the trial or stipulation of the evidence, but Hasty asserts that he was arrested after being required to submit to an alcosensor test in a McDonald’s parking lot, even though he had not been driving the car he was in. Hasty represented himself at all stages of the trial proceedings, and filed a motion to suppress the evidence. On appeal, he contends that the trial court failed to address that motion.

In the absence of a transcript, we cannot consider enumerations of error concerning the evidence or proceedings at trial. Dean v. State, 188 Ga. App. 128 (372 SE2d 286) (1988). Accordingly, we must assume that the motion to suppress received a proper disposition during the trial.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    A90A0466.
    MITCHELL v. HEAD et al.
    (394 SE2d 114)
   Beasley, Judge.

Plaintiff-seller Mitchell d/b/a Mitchell, Mitchell & Associates, Inc., appeals the grant of summary judgment to Mr. and Mrs. Head, the purchasers in this dispute about the price of a home.

The Heads entered into a contract to buy the real property from Mitchell. The written contract contained a sales price of $85,250 and a provision stating that it constituted the sole and entire agreement between the parties, that no modification would be binding unless attached to the contract and signed by all parties, and that no representation, promise, or inducement not included in the contract would be binding on the parties. The settlement agreement at closing reflected the same sales price.

Following closing, Mitchell, in her business capacity, filed a “Complaint for Breach of Contract” against the Heads. She alleged they had contacted her about building a house for $110,000 and because of certain circumstances, including the fact that $85,250 was the maximum allowed by the lender, the contract and closing documents stated such amount but the parties had a separate oral agreement for the balance of $24,740 which was inadvertently not reduced to writing. The Heads answered, denying the existence of the oral agreement and any obligation greater than $85,250. They counterclaimed for damages from latent defects and faulty workmanship.

Mitchell amended her suit to assert that when the deal was made, defendants had no intention of paying the agreed price of $110,000 and so had fraudulently induced her to contract. She did not seek to rescind the written sales agreement but rather to enforce the oral one.

The trial court granted summary judgment to the Heads on plaintiff Mitchell’s claim.

“Any contract for sale of lands, or any interest in, or concerning lands” must be in writing and signed. OCGA § 13-5-30 (4); Alsobrook v. Taylor, 181 Ga. 10 (2) (181 SE 182) (1935). The alleged oral agreement was not actionable under the Statute of Frauds, OCGA § 13-5-30. Appellant did not demonstrate in rebuttal to defendants’ showing on summary judgment that there was such detrimental reliance on this alleged oral agreement so as to negate a Statute of Frauds defense. Compare Scott v. Lumpkin, 153 Ga. App. 17 (264 SE2d 514) (1980).

The alleged oral agreement as a parol variance or modification of the written sales contract does not rescue appellant. There is a merger clause, and appellant has elected not to rescind the contract. “ ‘[T]wo actions are equally available to one who was fraudulently induced by misrepresentations into entering a contract. The defrauded party can “affirm the contract and sue in contract for breach or he (can) seek to rescind the contract and sue in tort for alleged fraud and deceit. (Cits.)” However, depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery.’ (Cit.) This result obtains because ‘ “[w]here the [allegedly defrauded party] affirms a contract which contains a merger or disclaimer provision and retains the [benefits], he is es-topped from asserting that he relied upon the [other party’s] misrepresentation and his action for fraud must fail.” ’ [Cits.]” Ouseley v. Foss, 188 Ga. App. 766, 768 (I) (374 SE2d 534) (1988).

Decided April 20, 1990.

H. Pierre, Jr., for appellant.

Floyd, Jones & Ware, Serena L. Sparks, R. David Ware, for appellees.

Even if appellant could retain the benefits of the written contract and pursue the claim for fraud in the inducement, defendants pierced such allegations of fraud and appellant made no showing that at the time of the alleged oral agreement, defendants had no intention to perform. “[A]ctionable fraud cannot be based merely on statements referring to future events, or merely promissory of future acts. [Cits.]” Scott, supra at 20 (2).

Summary judgment to defendants was proper.

Although not enumerated as error, appellant argues insufficient notice of the summary judgment hearing. An enumeration may not be expanded by argument in the brief. Central Nat. Ins. Co. &c. v. Dixon, 188 Ga. App. 680, 681 (2) (373 SE2d 849) (1988).

Judgment affirmed.

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


text:
    A90A0783.
    COBB v. THE STATE.
    (393 SE2d 723)
   Deen, Presiding Judge.

Appellant Cobb was convicted of aggravated assault by shooting a pistol at random and striking a fourteen-year-old Columbus youth in the shoulder. Appellant testified that at the time of the shooting he was en route to his sister’s apartment to spend the night and was carrying a pistol in his high-top shoe because the sister had informed him that she had recently had “peeping Tom” incidents. According to appellant, as he walked along the street he was confronted by some 25 or 30 members of a gang from a nearby apartment complex with which his sister’s complex had been engaged in gang warfare. He further testified that when a gang member suddenly pointed to him, he turned and ran. Before he could get away, however, he was knocked to the ground by someone wielding a baseball bat. He thereupon retrieved his gun from his shoe, shot twice purportedly over the heads of the crowd, and then ran away, going into hiding for several months before surrendering to Columbus, Georgia police.

Despite the fact that neither the bullet nor a suspect weapon was ever found, Cobb was charged with aggravated assault upon the fourteen-year-old boy. At trial he contended (a) that it was not his bullet which struck the boy, but one fired by an alleged unknown assailant as the “third shot” which two witnesses testified to having heard; and (b) that the shooting was justifiable because it was done in self-defense. A jury found Cobb guilty as charged, and he received a 15-year sentence, from which judgment and sentence he appeals. Held:

1. Appellant enumerates as error the general grounds; the trial court’s denial of his motion for directed verdict; the trial court’s allegedly confusing and inadequate jury instruction on self-defense; and allegedly improper statements of law made by the State in its closing argument.

As to the first assignment of error, we find no error of law. We further find that there was sufficient competent evidence, both direct and circumstantial, to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It is well settled that the appellate court assesses only the sufficiency of the evidence, not its weight. McClendon v. State, 187 Ga. App. 666 (371 SE2d 139) (1988). We therefore find the first enumeration without merit.

2. A directed verdict of acquittal is proper only when “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’. . . .” OCGA § 17-9-1. Although there were certain discrepancies in the evidence and a portion of it was circumstantial rather than direct, the quantum of evidence in defendant/appellant’s favor fell far short of that necessary to “demand” a verdict of acquittal. See Division 1, supra. As for the circumstantial evidence, a conviction on circumstantial evidence alone is authorized when “the proved facts [are] consistent with the hypothesis of guilt, but . . . exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6; Parks v. State, 202 Ga. 84 (42 SE2d 103) (1947). “The term ‘hypothesis’ as used in [OCGA § 24-4-6] refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act. ...” Hunter v. State, 91 Ga. App. 136, 138 (85 SE2d 90) (1954); McGee v. State, 159 Ga. App. 763 (285 SE2d 224) (1981). In the instant case, as previously noted, the bullet and gun were never recovered (appellant testified that after the shooting the weapon mysteriously disappeared from the spot in his sister’s apartment where he customarily kept it); moreover, the person alleged by appellant to have been the mysterious assailant who fired the purported third shot was never formally investigated by police officers or summoned as a witness by either the defense or the prosecution.

Furthermore, when there is direct evidence as well as circumstantial, the stringent standard of OCGA § 24-4-6 does not apply. Ridley v. State, 232 Ga. 646 (208 SE2d 466) (1974). Where, as here, there is direct evidence pointing to the same conclusion as the circumstantial evidence, the verdict will not be disturbed on appeal. Coney v. State, 101 Ga. 582 (28 SE 918) (1897). Appellant’s third enumeration is also without merit.

Decided April 23, 1990.

James A. Messner, for appellant.

Douglas C. Pullen, District Attorney, J. C. Bernard, Assistant District Attorney, for appellee.

3. Our reading of the trial transcript reveals no error in the trial court’s instruction on self-defense or, contrary to appellant’s assertion, anything that would be confusing to the jurors. Moreover, we find nothing erroneous or improper in the prosecutor’s closing remarks, as alleged. Appellant’s second and fourth enumerations have no merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0925.
    SAENZ et al. v. ANDRUS.
    (393 SE2d 724)
   Birdsong, Judge.

Appellants/plaintiffs, Beatrice Saenz and her son, Felix, appeal from the ruling of the superior court granting summary judgment to appellee/defendant, Evy Andrus.

Appellant Felix was playing at the home of appellee with appellee’s son, Shane, and another boy. Shane and Felix began throwing a knife, which Shane had gotten from a drawer, into the wall. Subsequently, Shane obtained a butcher knife from the counter and threw it in the direction of Felix to scare him. The knife stuck in the side of Felix’ head. Felix was subsequently hospitalized and underwent surgery.

The record reflects that appellee worked in the day and did not arrive home until about 6:00 p.m. each evening. The day of the incident, school was let out early, and the boys arrived at the apartment about noon. There were no adults in the house, and the butcher knife was on the kitchen counter.

Previously, Shane had on several occasions been throwing a pocket-type knife at the living room wall; appellee was aware of this and had instructed him to stop. Appellee had taken one pocketknife from her son, and had instructed him not to use any knife without permission except at mealtime. Appellee testified, by way of deposition, that she had no knowledge of any previous incidents where her son had injured or fought with other children. However, appellee also testified that before they moved to Lawrenceville, her son had shown “aggressive tendencies” towards other boys in the “PE classes and in recess.” Shane testified he had been involved in one fight with a boy in his home and that his mother was informed, but the date of this incident is not clearly established in the record. Appellee had instructed her son not to allow other children in the house; and to her knowledge he had not violated this rule, although a year earlier there was one incident where other children were in the house. Held:

1. “ ‘(O)n summary judgment, the movant has the burden of showing “there is no genuine issue as to any material fact and that [movant] is entitled to a judgment as a matter of law.” [Cit.] When, as in the instant case, the movant is the defendant, [movant] has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.’ [Cit.] In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. In Georgia, unless the common law is changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship; “when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467). “Where injury is caused by an instrumentality made accessible to the child by the parent, which if used properly is reasonably safe but which becomes a dangerous instrumentality when not properly handled, the question becomes one of ordinary negligence. Whether or not the parent exercised ordinary care to anticipate and guard against such misuse is thus frequently a jury question as in other negligence cases. . . . Although recovery is permitted where through parental negligence a child is permitted access to an instrumentality which, if not properly used, is foreseeably likely to cause injury to a third person, this does not make the parent liable for an injury negligently inflicted by a child where there is no dangerous proclivity known to the former and no reason to anticipate the injury which in fact occurred.” (Emphasis supplied.) Id. at 151-152.

“ ‘In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child’s use of the instrumentality.’ ” (Emphasis supplied.) Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726); Salter v. Roan, 161 Ga. App. 227 (1) (291 SE2d 46); see Assurance Co. of America v. Bell, 108 Ga. App. 766 (4) (134 SE2d 540). “ ‘Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party.’ ” (Emphasis supplied.) Jackson, supra at 329.

In the case sub judice, appellee neither furnished nor expressly permitted her son access to the butcher knife, notwithstanding that the knife was left on the counter where access thereto could be had. “In those cases in which the parent did not furnish the dangerous instrumentality [but through negligence allowed access thereto] to the child, the standard for imposing liability upon a parent ... is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. See, e.g., Dent v. Smith, 172 Ga. App. 90 (322 SE2d 100). . . .” (Emphasis supplied.) Jackson, supra at 330. If such knowledge cannot be shown on the part of appellee, then liability cannot attach to her, as a “parent is not an insurer that the child will not harm another.” Assurance Co., supra at 774.

In the case sub judice, although appellee was on notice of her son’s propensity to throw pocketknives against the wall of her house, she was not on notice that her son had any propensity whatsoever to throw any type of knife at or near another human being. “Since [appellee/defendant] had no reason to anticipate that [her] son would take the [family butcher knife] and [throw it at or near another human being], [s]he had no duty to guard against it.” (Emphasis supplied.) Salter, supra at 228; Dent, supra at 93. Further, “[a] mother is not negligent in simply failing to keep a constant and unremitting watch and restraint over her children.” Hatch v. O’Neill, 133 Ga. App. 624, 625 (212 SE2d 11); accord Salter, supra at 228; Muse v. Ozment, 152 Ga. App. 896, 898 (264 SE2d 328).

3. Examining the issue before us in light of attendant facts and the principles of law discussed in Divisions 1 and 2, above, we conclude that the trial court did not err in granting summary judgment to appellee/defendant. “The summary judgment law does not require the defendant to show that no issue of fact remains, but rather [that] no genuine issue of material fact remains [cit.]; and while there may be some ‘shadowy semblance of an issue’ [cit.], the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Emphasis deleted.) McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795). Compare Dunaway v. Kaylor, 127 Ga. App. 586 (194 SE2d 264) (defendant’s son stabbed plaintiff with icepick) and Gilbert v. Floyd, 119 Ga. App. 670 (168 SE2d 607) (defendant’s son stabbed plaintiff with butcher knife). We will not reverse the correct decision of the trial court regardless of the reason given therefor. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673); Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

Decided April 23, 1990.

Wynn Pelham, for appellants.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Julie L. Ginden, for appellee.

Judgment affirmed.

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


text:
    A90A0190.
    WALTERS v. THE STATE.
    (394 SE2d 105)
   Beasley, Judge.

Walters appeals his conviction of OCGA § 40-6-391 (a) (4), driving with .12 grams or more of alcohol concentration.

1. Defendant contends his motion to quash the accusation was erroneously denied. The motion was on two grounds, that the accusation failed to fully inform him of the charges and that it charged no crime, OCGA § 40-6-391 (b) having impliedly repealed OCGA § 40-6-391 (a) (4).

The latter contention has been decided adversely to defendant by Proo v. State, 192 Ga. App. 169 (384 SE2d 197) (1989).

The Uniform Traffic Citation, under which defendant was tried, alleged that on a day and time certain he did “unlawfully operate vehicle . . . while under the influence of alcohol and/or drugs (DUI) . . . in violation of Section 40-6-391 (a) (4).” It also reflected that a breath test was given and “Results .32 grams %” was recorded on the citation as required by Georgia Bureau of Investigation Rule 92-3-.06 (11).

The motion to quash claimed it was vague and ambiguous, depriving defendant of his federal Fifth, Sixth and Fourteenth Amendment rights and unidentified rights under two provisions of the Georgia Bill of Rights. These were not adequately raised below and will not be considered here. Harbin v. State, 193 Ga. App. 248, 249 (1) (387 SE2d 367) (1989). As to each being an independent and possibly broader ground than the statute (OCGA § 17-7-71 (c)) and case law invoked, they were waived. It is not shown how any of these constitutional provisions was violated or why the charge failed to pass constitutional muster. The same goes for other instances attempted in this appeal.

The citation adequately informed defendant of the nature of the charge and is not subject to the objections raised. OCGA §§ 40-13-1; 40-13-24; 17-7-71; State v. Military Circle Pet Center &c., 257 Ga. 388 (360 SE2d 248) (1987); Evans v. State, 168 Ga. App. 716 (310 SE2d 3) (1983).

2. The court withheld ruling on defendant’s motion to suppress the results of the intoximeter test until the results were tendered. During the State’s opening statement, mention was made of the results and defendant moved for mistrial, because there were “motions pending as to that test.”

The court denied the motion on several grounds, including that if the motion to suppress were granted during trial or the State otherwise failed to get the results introduced, defendant would be entitled to a directed verdict. The court immediately instructed the jurors that the opening statements were not evidence and they were to base their decision only on the evidence from witnesses or exhibits.

The results were properly admitted, as discussed below, rendering harmless any error in refusing mistrial. Moreover, defendant failed to renew his motion for mistrial after the curative instructions were given, waiving any error. Burce v. State, 146 Ga. App. 383 (246 SE2d 412) (1978).

3. Defendant’s Notice to Produce before trial included a request for “radio log.” When the deputy sheriff who administered the intoximeter test testified, defendant requested the log. The deputy had not brought it with him. Defendant contended production was required by the notice.

The document did not have to be produced, not being the type material “ ‘reasonably expected to be found in the “custody” of the solicitor preparing the case. . . .’ [Cit.]” Calloway v. State, 191 Ga. App. 383, 384 (2) (381 SE2d 598) (1989).

4. (a) Defendant moved to suppress the intoximeter results, contending that the test was performed “on a device that is not properly approved by the Division of Forensic Sciences of the [GBI]” as required by OCGA § 40-6-392 (a) (1). Only the statutory and other constitutional grounds were contained in defendant’s motion and used as the basis for objection to the evidence at trial, waiving the constitutional grounds cited here, albeit not argued. Harbin, supra.

The deputy testified that the State periodically tested the machine and a log was kept in the Sheriff’s office. Such tests are required to be made periodically. Georgia Bureau of Investigation Rule 92-3-.06 (8) (a). The officer’s certificate of authorization to administer the Intoximeter 3000 test was admitted without objection. The motion and objection were properly overruled. Calloway v. State, 191 Ga. App. supra at 384 (1).

(b) Defendant also alleges error in the court’s refusal to allow him to present evidence that an “expert,” whose qualifications were otherwise unstated, had tested the Intoximeter 3000 the day prior to the trial in March 1989. He ingested acetone and registered .05 percent, proving the inaccuracy of the machine.

Even assuming this was a qualified expert, such evidence is not relevant. Blanos v. State, 192 Ga. App. 835 (386 SE2d 714) (1989). Testing of the machine nearly five months after the charged incident “would not prove that the machine gave an inaccurate reading for defendant since the original test’s condition, including defendant’s own physical condition, could not have been duplicated. See Kuptz v. State, 179 Ga. App. 150, 152 (9) (345 SE2d 670) [physical precedent].” Blanos, supra.

The federal Sixth Amendment argument regarding confrontation of the machine was not presented below and will not be considered. Such an argument was rejected in Kuptz, supra.

5. The sole basis for defendant’s motion for directed verdict was failure of proof of the intoximeter results. That ground is not argued here; the one argued was not made below, leaving nothing to consider.

To the extent insufficiency of the evidence of defendant’s driving the car is alleged, it was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Napier v. State, 184 Ga. App. 770, 772 (2) (362 SE2d 501) (1987); Stephens v. State, 127 Ga. App. 416, 421 (4) (193 SE2d 870) (1972).

6. The court’s admission of the Intoximeter 3000 printout and allowing the jury to see it were not error. The objection was that the printout was cumulative of the officer’s testimony and was a scientific report which should not go out under Strickland v. State, 167 Ga. 452, 460 (6) (145 SE 879) (1928), and Craig v. State, 130 Ga. App. 689 (204 SE2d 307) (1974). Other objections argued here but not presented below will not be considered.

Cumulativeness does not provide a mandate for reversal. Dawson v. State, 258 Ga. 416, 417 (2) (369 SE2d 760) (1988).

Strickland stands only for the proposition that a dying declaration, after the contents have been read into evidence, may not go out with the jury because it allows the witness to speak to the jury more than once. That did not occur here. A computer generated analysis of breath, made admissible pursuant to OCGA § 40-6-392 (a) upon showing a proper foundation, was properly admitted into evidence. The analysis, referred to by the statute, was “created” by the machine and not by the trooper who was trained in the use of the machine and the administration of the test. See Noles v. State, 164 Ga. App. 191, 193 (2) (296 SE2d 768) (1982); Graham v. State, 154 Ga. App. 198, 199 (267 SE2d 842) (1980); cf. Thompson v. State, 175 Ga. App. 645, 649 (4) (334 SE2d 312) (1985).

Decided April 13, 1990

Rehearing denied April 24, 1990

Virgil L. Brown & Associates, Virgil L. Brown, Lindsey & Jacobs, Tamara Jacobs, for appellant.

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.

Craig does not aid defendant. It states that an objection similar to the one made here, that the report would cause the jury to give undue weight to the witness’ testimony with which no quarrel was made, was “no more than a general one, such as that evidence is prejudicial or inflammatory, and it shows no error.” Craig at 691.

7. The jury was originally charged that the State had to prove defendant operated a vehicle “while having a concentration in his blood of .32 grams percent. . . .” The State requested that the jury be recharged in the language of the statute, i.e., .12 percent or more, as referenced on the citation. Defendant objected on the ground that the citation “charges .32” and the State had to prove it if they charged it.

The citation, quoted in Division 1, does not include the test results as part of the charging portion. The results were added to the citation after the charge was made and defendant was arrested and tested. Such recordation is required by Rule 92-3-.06 (11) and is part of the administrative process. Thompson, supra at 647 (2) (c).

Secondly, the recharge did not harm defendant, because the State’s evidence either proved .32 or it proved nothing. There was no contrary evidence.

Finally, even if the accusation and proof differed in this respect, it would not be fatal. Dobbs v. State, 235 Ga. 800, 801 (3) (221 SE2d 576) (1976); DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801) (1969); Hancock v. State, 188 Ga. App. 870, 871 (374 SE2d 757) (1988); Clark v. State, 178 Ga. App. 47 (341 SE2d 909) (1986).

8. Defendant demands a mistrial because defendant was tried by an assistant solicitor not properly sworn at the time of the trial.

There was no such motion. The ground was improperly presented in a Motion for Arrest of Judgment. OCGA §§ 17-9-61; 17-9-63; 17-7-113.

The allegation was made in the motion for new trial, which was denied and of which there is no transcript. Factual statements made in defendant’s brief concerning this issue will not be considered. McKinney v. State, 192 Ga. App. 6, 7 (2) (383 SE2d 608) (1989). There being an insufficient record concerning this issue, it must be assumed that the trial court properly denied the motion.

Judgment affirmed.

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


text:
    A90A0267.
    MINGO v. THE STATE.
    (394 SE2d 104)
    Decided April 10, 1990
    Rehearing denied April 24, 1990.

      Landau, Davis & Farkas, Thomas G. Ledford, for appellant.

      Britt R. Priddy, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.
   Beasley, Judge.

Defendant appeals his convictions of kidnapping, OCGA § 16-5-40; robbery, OCGA § 16-8-40; and rape, OCGA § 16-6-1.

1. Defendant contends the trial court erred in refusing to admit, for purposes of impeachment, certified copies of the victim’s guilty pleas to charges of issuing bad checks.

After the State rested, defendant proposed to recall the victim to question her pursuant to offering the copies of guilty pleas. Defendant stated they would show the victim was guilty of offenses involving moral turpitude so as to impeach her testimony and impugn her credibility. The trial court ruled the evidence improper for impeachment purposes and that the offenses did not involve moral turpitude.

Defendant did not request that the witness be called for purposes of further cross-examination. He had made no attempt to raise the issue when the witness was cross-examined. In effect, he was recalling the witness as his own for purposes of impeachment. There being no showing of entrapment, this is not permitted. OCGA § 24-9-81; Eberhart v. State, 121 Ga. App. 663, 664 (3) (175 SE2d 73) (1970). It was not an abuse of discretion to refuse permission to recall the State’s witness and introduce evidence impeaching her.

2. Defendant complains of the sufficiency of evidence to sustain his conviction. The matters he raises concerning credibility of witnesses are for the jury, under proper instructions from the trial court, and not for the appellate court. Roberts v. State, 259 Ga. 441, 442 (1) (383 SE2d 872) (1989). He did not establish his alibi or the victim’s non-credibility as a matter of law.

A rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of the crimes charged.

Judgment affirmed.

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


text:
    A90A0315.
    MUSGROVE v. THE STATE.
    (393 SE2d 704)
    Decided April 11, 1990
    Rehearing denied April 24, 1990

      Kenneth W. Musgrove, for appellant.

      Willis B. Sparks III, District Attorney, Howard Z. Simms, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

The appellant, Hubert Musgrove, drove his van over approximately 61 red tip photenias planted by an adjoining property owner on some county property that separated Musgrove’s property from a lake. Musgrove pleaded guilty to charges of habitual violator and criminal damage to property, second degree, and he was sentenced to four years’ probation on each count, a $750 fine, $1,524 restitution, and a $5 monthly probation fee. Subsequently, Musgrove moved to withdraw his guilty plea with regard to the criminal damage to property charge, and this appeal follows the trial court’s denial of that motion.

The trial court’s ruling on a motion to withdraw a guilty plea filed after pronouncement of the sentence will not be disturbed on appeal absent an abuse of discretion. DeLapuente v. State, 182 Ga. App. 808 (357 SE2d 155) (1987). A review of the transcript of the hearing on the guilty plea shows that Musgrove knowingly and voluntarily entered that plea. He acknowledged his awareness of his options and the consequences of pleading guilty. He further indicated that he had not been coerced or offered anything in exchange for the plea. Musgrove’s claim on appeal that he chose to plead guilty only because the prosecutor had indicated during plea negotiations that he would recommend imprisonment, rather than probation, if the matter proceeded to trial and resulted in Musgrove’s conviction, provides no basis for requiring the withdrawal of his guilty plea. Cf. Skomer v. State, 183 Ga. App. 308 (358 SE2d 886) (1987). We also find no abuse of discretion in the trial court’s rejection of Musgrove’s claim that the guilty plea should be withdrawn so that he could litigate a defense that the red tip photenias legally belonged to the county and not the adjoining property owner who planted them.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0678.
    BOATRIGHT v. THE STATE.
    (393 SE2d 707)
   Deen, Presiding Judge.

The appellant, Franklin Boatright, was convicted of two counts of selling cocaine, one count of trafficking in cocaine, and one count of criminal attempt to violate the Georgia Controlled Substances Act. All of the sales and the attempted sale were made to an undercover special agent with the GBI.

On July 28, 1988, Boatright was introduced to the undercover agent by an individual known to Boatright as Joe Smith, who was a confidential informant for the GBI. Smith had accompanied the agent to Boatright’s house, and had obtained from Boatright one-half ounce of cocaine in exchange for $600. Smith had been searched by GBI agents for any drugs prior to the transaction with Boatright. The following day, the GBI agent had the informant telephone Boatright to set up another meeting between Boatright and the agent, and then took the informant to the bus station, where he caught a bus to Wisconsin. This informant was not present at trial, and the State would not reveal his identity.

Later that day, Boatright met with the undercover agent alone and sold her another one-half ounce of cocaine for $600. The agent tape-recorded the entire transaction. Boatright gave the agent instructions on how to call him at home to order more cocaine. On August 10, 1988, the agent contacted Boatright and purchased another one and one-half ounces of cocaine for $1,800. On August 23, 1988, the agent contacted Boatright and placed an order for 8 ounces of cocaine, which Boatright was to deliver to her at a fastfood restaurant in a neighboring county. Boatright met the agent as arranged but told her he had hidden the cocaine. Boatright then led her to a churchyard back across the county line, where other agents converged on the scene and arrested him. At trial, Boatright admitted to having made the sales, but claimed thát he was merely acting as a “middleman” for Joe Smith, in exchange for one-half of the sales proceeds. Held:

1. Boatright contends that the trial court erred in refusing to require the State to disclose the identity of and produce the confidential informant. This court has held in a number of recent cases that disclosure of the identity of a confidential informant was mandated where the informant was a witness or participant whose testimony would be the only testimony available to amplify or contradict that of the police officer or the defendant. Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988); Ponder v. State, 191 Ga. App. 346 (381 SE2d 534) (1989); Jones v. State, 192 Ga. App. 186 (384 SE2d 273) (1989). Boatright, however, fails the balancing test in the instant case, because even if the testimony of the informant had been made available and corroborated Boatright’s explanation, it would not have exculpated Boatright. By his own admission, Boatright acted at least as a “middleman” in the string of drug sales, motivated by a need for money to pay medical bills for his cancer-stricken wife. The record clearly demonstrates no harm in the non-disclosure of the informant’s identity.

Decided April 12, 1990

Rehearing denied April 24, 1990

Kenneth E. Futch, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

2. The prosecutor asked one of the arresting GBI agents whether Boatright had chosen not to make any statement during questioning. Defense counsel objected immediately; the trial court sustained the objection; and that was the end of it until the following day when defense counsel moved for mistrial after the State rested. Under these circumstances, the motion for mistrial was untimely, and thus properly denied. Franks v. State, 188 Ga. App. 263 (372 SE2d 831) (1988).

3. Although Boatright testified freely that as a result of his conversations with Joe Smith, he agreed to be Smith’s “middleman” for drug transactions, the trial court would not allow Boatright to recount the exact conversations he had with Smith. Boatright’s contention that these specific conversations were admissible as part of the res gestae is without merit. Concerning his contention that the conversations were admissible under OCGA § 24-3-2 to explain Boatright’s conduct or motive, since Boatright’s admitted motive was to make money, the exclusion of the testimony about his conversations with Joe Smith could not have been harmful in any event.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0738.
    FUNDERBURK v. THE STATE.
    (393 SE2d 727)
   Birdsong, Judge.

Appellant, Ricky Paul Funderburk, appeals his judgment of conviction and sentence for burglary.

The victim’s home was burglarized and certain blank checks stolen. Appellant cashed two of these checks within hours of the burglary. Appellant testified that he had been at the victim’s house the day of the incident, because a third party had shown him the checks and appellant had obtained possession of the checks to return them to the victim.

Appellant’s grandmother testified that she was in the car while appellant was at the victim’s home; that appellant went towards the victim’s house; that appellant was gone for eight to twelve minutes; that she did not know whether appellant entered the victim’s house or not; and that appellant said he had not seen the victim but had observed the victim’s car in the yard.

Appellant had previously been employed by the victim, and knew the layout of the house and was familiar with the vicinity where the checkbook was kept.

Appellant made two pretrial statements which conflicted with his trial testimony regarding how he had come into possession of the checks. Held:

1. Appellant asserts that the trial court erred in holding, at the Jackson-Denno hearing, that appellant’s two pretrial statements were voluntarily made. We disagree.

“A trial court’s findings as to factual determinations and credibility relating to the admissibility of [an appellant’s pretrial statement] will be upheld on appeal unless clearly erroneous.” Terry v. State, 259 Ga. 165 (2) (377 SE2d 837). Examining all relevant evidence contained in the record (Stapleton v. State, 235 Ga. 513 (1) (220 SE2d 269)), we are satisfied the trial court’s ruling was not clearly erroneous.

2. On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant is no longer shielded by a presumption of innocence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849); Lance v. State, 191 Ga. App. 701 (2) (382 SE2d 726). An appellate court does not weigh the evidence or judge witness credibility, rather it determines evidence sufficiency. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530).

“[Although the evidence of recent, unexplained [or unsatisfactorily explained] possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary, the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable-doubt standard applied in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” (Emphasis supplied.) Williams v. State, 252 Ga. 7, 9 (310 SE2d 528). “Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. [Cits.] Whether a defendant’s explanation of possession is satisfactory is a question for the jury [cits.]; so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.” Collins v. State, 176 Ga. App. 634, 636 (337 SE2d 415). In the case sub judice, “[t]he verdict reflects the jury’s dissatisfaction with [appellant’s] explanation. . . .” Jackson v. State, 159 Ga. App. 287, 288 (1) (283 SE2d 353).

Decided April 24, 1990.

Joseph W. Jones, Jr., for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of burglary as convicted. Jackson v. Virginia, supra. See generally Hurston v. State, 189 Ga. App. 748 (1) (377 SE2d 519).

3. Appellant asserts that the trial court erred in denying his motion for directed verdict. We disagree. In this case, the evidence is in conflict within the meaning of Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311), and the posture of the evidence of record does not demand a verdict of acquittal as a matter of law. Id.; OCGA § 17-9-1 (see Division 2, above).

Judgment affirmed.

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


text:
    A90A0853.
    VAL PREDA MOTORS v. NATIONAL UNIFORM SERVICE.
    (393 SE2d 728)
   Birdsong, Judge.

Peter Val Preda d/b/a Val Preda Motors (“Val Preda”) appeals from the grant of summary judgment to National Uniform Service (“National”). The record shows that National filed suit to recover sums allegedly owed under a contract. Val Preda, pro se, answered denying “all the allegations” in the complaint. Thereafter, National moved for summary judgment and supported its motion with the contract and the affidavit of its general manager. The affidavit stated, from National’s business records and the manager’s personal knowledge, Val Preda had defaulted on the contract and refused to make the payments owed. The business records mentioned, however, were not attached to the affidavit.

Val Preda’s brief in opposition to the motion contended that genuine issues of material fact remained which barred a grant of summary judgment. Val Preda’s brief was supported by his affidavit stating he had returned all of National’s uniforms and there was no balance due National.

Decided April 24, 1990.

Peter Val Preda, pro se.

Krause & Hirons, Wayne A. Krause, Allen R. Hirons, for appellee.

Neither party having requested a hearing on the motion, the trial court considered the matters of record, found that “there [were] no disputes as to genuine issues of material fact,” and granted summary judgment to National. Val Preda appeals, contending that summary judgment was erroneously granted because genuine issues remained for trial. Held:

1. National’s motion to dismiss the appeal because Val Preda was six days late in filing his brief and enumerations of error is denied. OCGA § 5-6-48 (b).

2. Although National’s affidavit referred to certain business records purportedly supporting its motion, the records were not attached to the affidavit and, therefore, the references to the business records cannot be used to support the motion. OCGA § 9-11-56 (e); Henry v. Polar Rock Dev. Corp., 143 Ga. App. 189, 190 (237 SE2d 667).

Val Preda’s affidavit, a matter of record in this case, denied he owed any money to National. Viewed either as a statement of fact or of opinion, the denial is sufficient to defeat National’s motion. Ginn v. Morgan, 225 Ga. 192, 193 (167 SE2d 393). Thus, unless National established this denial was of no legal consequence, a genuine issue of material fact remained for trial. National made no such showing, and the record merely shows a claim for money by National and a denial that money was owed by Val Preda. Under the circumstances, the trial court’s finding that no genuine issues remained is not supported by the record and cannot be sustained. Beaulieu of America v. L. T. Dennard & Co., 253 Ga. 21, 22 (315 SE2d 889). Accordingly, National failed to meet the burden established in OCGA § 9-11-56 (c), and the grant of summary judgment must be reversed.

3. In the absence of a request under Superior Court Rule 6.3, the trial court did not err by deciding the motion without oral argument. Jacobsen v. Muller, 181 Ga. App. 382, 383 (352 SE2d 604).

Judgment reversed.

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


text:
    A90A0544.
    HEAD v. THE STATE.
    (393 SE2d 730)
   Birdsong, Judge.

Marion Edward Head appeals his conviction for trafficking in cocaine. The evidence showed that on December 3, 1988, Officer Liber, on patrol in Atlanta, saw one man standing outside a truck handing money to the driver. When Officer Liber stopped, he saw the driver (appellant) stuff something into the truck’s seat. When appellant stepped out of the truck at Officer Liber’s request, Liber saw on the truck seat a plastic bag containing white powder. In the crack of the seat were small pouches containing white powder. The powder proved to be cocaine, of a total weight of 26 grams. Appellant had $433 on his person. Held:

1. Appellant contends it was error to allow evidence of his prior drug conviction as a similar transaction (see Hicks v. State, 232 Ga. 393 (207 SE2d 30)), because that evidence tended only to show a general propensity rather than to prove an issue in this case.

This argument is without merit. The evidence complained of showed that about a year earlier, the same officer had arrested appellant about a block away from where he was caught in this case, and on that occasion saw appellant throw to the ground what later proved to be packets of cocaine. The cocaine was similarly packaged as in this case, and appellant had considerably more money on his person ($1,800-2,000) and less cocaine, indicating he was further along in his sales then than he was when apprehended this time.

This evidence, without doubt, contains sufficient similarities to the evidence of cocaine trafficking in this case, to show course of conduct and bent of mind (Hattaway v. State, 191 Ga. App. 812, 813 (383 SE2d 140)), so much so that proof of the former tends to prove the latter; and, there is no dispute that appellant was the person previously convicted of cocaine trafficking. Barnes v. State, 191 Ga. App. 424 (1) (382 SE2d 164). This evidence was not only highly similar, but highly relevant to the instant question. Felker v. State, 252 Ga. 351, 359 (1) (a) (314 SE2d 621).

2. In testifying, appellant volunteered that he tried to flee in the prior similar transaction case because he was on parole. The prosecutor then was allowed to cross-examine appellant for what crime he had been on parole.

Appellant contends this was error, under Jones v. State, 257 Ga. 753 (363 SE2d 529), because he did not thus put his own character in evidence; and that the error was prejudicial because the paroled offense, credit card theft, was so completely different from the crime alleged here as to prove nothing except bad character.

Appellant has misinterpreted Jones v. State. That decision held the State could not cross-examine as to defendant’s entire criminal record merely because one offense, or some offenses, had been admitted. The Supreme Court in Jones at p. 760, fn. 10, specifically noted that “the defendant’s testimony concerning his parole opened the door to cross-examination as to the conviction for which he was on parole.” (Emphasis supplied.)

Decided April 25, 1990.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Moreover, the gist of appellant’s theory here is that the State could not in any case elicit evidence of bad character which would be “dark poison” to his presumption of innocence for this crime. This theory misses the mark. Georgia law is well established that, subject to certain rules, the State may indeed bring evidence of the defendant’s “bad character,” if the defendant first puts his character in issue. OCGA § 24-9-20 (b); Jones at 754. Thus, there is no prohibition on eliciting otherwise admissible evidence of an offense which is different from the criminal act charged, merely because it shows a general “bad character” not directly relevant to prove the crime charged. The trial court did not err in permitting the State to ask what crime appellant had been paroled from, once appellant had interjected the fact.

Judgment affirmed.

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


text:
    A90A0848.
    ROGERS v. THE STATE.
    (394 SE2d 116)
   Birdsong, Judge.

Appellant, James Ora Rogers, appeals from the order of the superior court denying his motion for new trial on the grounds of ineffective assistance of counsel.

In Rogers v. State, 191 Ga. App. 855 (383 SE2d 331), this court affirmed the judgment of appellant’s conviction of aggravated assault (assault with intent to rape) and sentence, and remanded the case to the trial court for a hearing and appropriate findings concerning only the issue of ineffective assistance of counsel. At the conclusion of the hearing on the issue of ineffective assistance, counsel for appellant moved for a new trial, and the trial court denied that motion without making any specific findings; however, inherent in the trial court’s ruling was a finding of no reversible error due to ineffective assistance of counsel. Held:

1. We take judicial notice of the record and transcript, pertaining to appellant, James Ora Rogers, in the case of Rogers v. State, 191 Ga. App. 855, supra, which is on file in this court. Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 213 (2) (367 SE2d 43); see Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107).

2. Appellant asserts that the trial court committed prejudicial error in holding that appellant did not suffer ineffective assistance of counsel at trial.

In Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), the United States Supreme Court devised a two-step test to apply in the resolution of certain ineffective assistance of counsel claims, such as those before us.

Under the Strickland test, “ ‘ “ ‘[t]o establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cits.]’” “The complaining defendant must make both showings. His failure ‘to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.’ [Cit.] A reviewing court need not ‘address both components if the defendant makes an insufficient showing on one,’ (cit.), nor must the components be addressed in any particular order. (Cit.)” ’ ” (Emphasis supplied.) Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339); see Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642).

Pretermitting the question whether appellant’s trial defense counsel was deficient within the meaning of Strickland is the question whether there exists a reasonable probability that the outcome of appellant’s case would have been different but for the performance of that counsel. Thompson, supra. Examining both the record and hearing transcript in the case sub judice and the record and transcript of case no. A89A0256 in their totality, we find that there exists no reasonable probability that the outcome of appellant’s case would have been different within the meaning of Strickland, Thompson, and Young. In particular we note that none of the experts could testify that, at the time of the alleged act, appellant either was laboring under any delusional compulsion which overmastered his will to resist committing the crime, or that he lacked the mental capacity to distinguish right from wrong in relation to such act. See generally OCGA §§ 16-3-2; 16-3-3. The effect of this self-imposed limitation, by the experts, as to the scope of their testimony is relevant to the disposition of this issue, as “ ‘[schizophrenia is a psychosis, but a psychosis is not the equivalent of insanity. . . .’” Wilson v. State, 257 Ga. 444, 449 (11) (f) (359 SE2d 891). The mere showing that a person suffers from schizophrenia or some other psychosis does not establish legal insanity. Nelms v. State, 255 Ga. 473, 475 (2) (340 SE2d 1); Tarver v. State, 186 Ga. App. 905 (1) (368 SE2d 828).

Moreover, none of appellant’s experts has testified that, at the time of trial, appellant could not intelligently participate in his own defense or that he could not understand the nature of the charges against him. See generally OCGA § 17-7-130; Echols v. State, 149 Ga. App. 620 (255 SE2d 92).

We also note that appellant conducted an active defense based on the legitimate theory that he had not assaulted the victim and that any touching of the victim had been consensual. Further, when asked at trial whether he had ever been treated for any mental problem other than a “spelling problem,” appellant testified “[n]o, sir.” Thus, the transcript of appellant’s trial reflects that a definite trial strategy was being employed by the defense. “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Cit.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, supra at 689. Considering the posture of the evidence before us in this light, we find it all the more certain that appellant’s enumeration of error is without merit.

3. Appellant asserts that he suffered ineffective assistance of counsel on appeal as his appellate counsel improperly framed enumeration of error no. 1, during the appeal of case no. A89A0256, resulting in this court’s refusal to address the issue of sufficiency of the evidence. See generally Rogers v. State, 191 Ga. App. 855, supra. In the interests of judicial economy we elect to render this enumeration of error moot by reviewing the record and trial transcript of case no. A89A0256 for legal sufficiency.

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 25, 1990.

McGuire, Cook & Martin, David A. Cook, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

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