text:
    74157.
    KEYS v. ENRICHMENT SERVICES PROGRAM, INC.
    (357 SE2d 852)
   Carley, Judge.

Appellant-plaintiff is employed by appellee-defendant. Appellant was apparently transferred from one employment position with appel-lee to another. The transfer resulted in a reduction in appellant’s pay. Based upon her transfer and salary reduction, appellant filed this tort action, alleging in her complaint appellee’s “tortious interference with [her] employment, and [appellee’s] blatant disregard for its personnel regulations.” Appellant sought to recover actual and punitive damages from appellee. Appellee answered appellant’s complaint and raised, among its other defenses, charitable immunity from tort liability. Appellee subsequently moved for summary judgment based upon its charitable immunity defense. The trial court granted summary judgment in favor of appellee and appellant appeals.

Appellant does not dispute appellee’s assertions that it is a charitable nonprofit organization and that it has no liability insurance. Appellant’s primary contention is that summary judgment was erroneously granted because the “administrative negligence” exception to charitable tort immunity has not been negated by appellee and genuine issues of material fact remain with regard to her recovery under that theory. “It . . . appears that it is the rule in Georgia that the funds in trust for charitable purposes are subject to a judgment against a charitable institution for . . . ‘administrative negligence.’ . . .” Morehouse College v. Russell, 219 Ga. 717, 719 (135 SE2d 432) (1964). “Administrative negligence” is defined as the failure of the charity itself to exercise ordinary care in ascertaining the competency of the employees whom it hires. See Morehouse College v. Russell, supra at 718-719. Appellant suggests that appellee may have been administratively negligent in the hiring of those employees who ordered her transfer in violation of appellee’s own personnel regulations.

“Administrative negligence” is not a viable theory of recovery in this case. Appellant’s complaint simply fails to state a claim in tort against appellee, whether for “administrative negligence” or otherwise. Appellant alleges, at most, a breach in the terms of her contract of employment in the form of an unauthorized transfer and a reduction in pay contrary to appellee’s personnel regulations. “[Wjhile the relation of master and servant gives rise to certain duties imposed by law independently of the express terms of the contract, yet for a liability imposed only by the contract of employment, and involving no breach of a legal duty, the remedy is solely an action ex contractu. ‘An action by a servant for a wrongful discharge from his employment is in contract, and an action in tort will not lie unless the discharge was accompanied by wrongful acts amounting to a trespass.’ [Cit.]” Manley v. Exposition Cotton Mills, 47 Ga. App. 496, 497 (1) (170 SE 711) (1933). “ ‘It is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. [Cits.] But in such cases the injury to the plaintiff has been “an independent injury over and above the mere disappointment of plaintiff’s hope to receive [the] contracted-for benefit.” [Cit.] . . . “The duty, for a breach of which an action ex delicto lies, must be a duty imposed by law as to some relationship, general or special, as applied to that class of cases where the alleged duty arises out of a contract. For instance, if one promises to pay another a given sum of money by a named day, the contract creates a duty to pay; but a breach of that duty is not a tort.” ’ ” Tate v. Aetna Cas. &c. Co., 149 Ga. App. 123, 124-125 (253 SE2d 775) (1979). “Any breach of contract must arise from the contract and does not give rise to an action for tort, whether or not such breach was negligent or wilful. [Cits.]” Hudson v. Venture Indus., 147 Ga. App. 31, 33 (2) (248 SE2d 9) (1978), aff'd 243 Ga. 116 (252 SE2d 606) (1979).

Decided May 20, 1987.

James A. Elkins, Jr., for appellant.

James E. Humes II, Clay D. Land, for appellee.

Appellant filed a tort action against appellee. The uncontroverted evidence of record demonstrates that appellee is a charitable organization without liability insurance and is entitled to claim the benefit of charitable tort immunity. Any exception to the principle of charitable tort immunity is irrelevant under the allegations of appellant’s complaint. The trial court did not err in granting appellee’s motion for summary judgment.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74196.
    SMITH v. THE STATE.
    (358 SE2d 678)
   Benham, Judge.

Appellant was convicted of driving under the influence of alcohol and being an habitual violator and was given concurrent sentences of 12 months and five years. His attorney filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). In accordance with Anders, counsel has filed a brief raising a point of law which he considered could arguably support an appeal. We are in agreement with counsel that the point raised, the denial of a motion for directed verdict of acquittal, though persuasively presented, is without any merit. We have therefore granted the motion to withdraw. In addition, we have fully examined the record and transcript to determine independently if there are any meritorious errors of law. We have found none. We are satisfied that the evidence produced at trial was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Barlow v. State, 158 Ga. App. 500 (280 SE2d 899) (1981).

Decided May 20, 1987.

Edwin T. Cotton, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    74292.
    JONES v. PHILLIPS.
    (357 SE2d 853)
   Carley, Judge.

Appellant filed a complaint against appellee alleging that plaintiff was the widower of Claudia Lee Jones, deceased, and that appel-lee, daughter of appellant’s deceased wife, had “wilfully and intentionally caused damage to the tombstone and slab of [appellant’s] deceased wife.” Appellant sought general and exemplary damages and attorney’s fees. The appellee filed an answer admitting the identity and relationship of the parties, but denying the material allegations of the complaint. No affirmative defenses were set forth, nor did the answer contain any additional averments. Other than the pleadings, the record contains only the following: a rule nisi; a copy of interrogatories filed by the appellee; two orders directed to the parties regarding the preparation of a pretrial order; and the final order from which appeal is taken. In its entirety, the order disposing of this case states: “After conferring with counsel and receiving status reports by both, this court has determined that the case should fail as a matter of law. It is therefore ordered and adjudged that the within case be dismissed.”

There is no indication in the order or elsewhere in the record that any evidence was considered. In fact, even the trial court’s order does not express or imply that there was ever a hearing on the merits. Accordingly, the only basis upon which this dismissal order could be predicated would be dismissal for failure to state a claim pursuant to OCGA § 9-11-12 (b), or judgment on the pleadings pursuant to OCGA § 9-11-12 (c). “The CPA abolished ‘issue pleading,’ substituted in lieu thereof ‘notice pleading,’ and directs that ‘all pleadings shall be so construed as to do substantial justice.’ [Cits.] ‘Under the CPA, a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ [Cits.]” Dil- lingham v. Doctors Clinic, 236 Ga. 302 (223 SE2d 625) (1976). See also Sheppard v. Yara Engineering Corp., 248 Ga. 147, 149, 150 (281 SE2d 586) (1981). Because we cannot determine beyond doubt that there is no set of facts which appellant can prove which would entitle him to relief under his complaint, the trial court’s order cannot be construed as properly dismissing the complaint for failure to state a claim upon which relief can be granted. Likewise, a judgment on the pleadings cannot be granted unless the pleadings affirmatively show that no claim in fact exists. Bergen v. Martindale-Hubbell, 176 Ga. App. 745 (337 SE2d 770) (1985). On the record before us, there is no such affirmative showing of the absence of a claim on which relief can be granted. In short, our review of the entire record reveals no viable basis upon which the trial court could dismiss the case. Accordingly, the judgment of the trial court must be reversed.

Decided May 20, 1987

Richard Phillips, for appellant.

J. Kenneth Royal, for appellee.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74227.
    PITTMAN v. THE STATE.
    (357 SE2d 855)
   McMurray, Presiding Judge.

Defendant was tried before a jury for possession of cocaine and commercial gambling. The following evidence, construed most favorably to support the jury’s verdict, was adduced at trial: A confidential informant informed Officer Martin Ursitti, of the Bibb County Sheriff’s Office, that defendant was selling cocaine. On December 17, 1985, pursuant to a search warrant, Officer Ursitti and other law enforcement officers conducted a search of defendant’s parent’s house, where defendant then resided. Officer Ursitti discovered in defendant’s bedroom, “on top of the dresser,” a substance which was identified as cocaine. One hundred seven dollars in cash was found “in the dresser drawer” and a “fully loaded” .357 magnum revolver was discovered “laying on the floor at the head of the bed or right up under the edge of the bed.” On “the headboard of the bed” there “was a two-ounce bottle of Mannitol,” which was “about half full.” (“Mannitol” is a substance which is commonly used as an “additive” to “cut” or dilute cocaine.) Next to the bottle containing “Mannitol,” there were three lottery tickets and $2,000 in cash bound together with a “rubber band.” From this and other evidence adduced at trial, defendant was found guilty of possession of cocaine and not guilty of commercial gambling.

On August 4, 1986, defendant filed a motion for new trial based upon the general grounds and newly discovered evidence. After a hearing, in an order filed November 13, 1986, defendant’s motion for new trial was denied. On December 11, 1986, defendant filed a motion entitled: “MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, A MOTION FOR RECONSIDERATION OF THE DENIAL OF DEFENDANT’S MOTION FOR NEW TRIAL AND AMENDMENT TO THE NEW TRIAL AND AMENDMENT TO THE NEW TRIAL MOTION.” On December 12, 1986, defendant filed a notice of appeal to the Court of Appeals. The trial court did not rule on defendant’s motion filed December 11, 1986. We now consider defendant’s appeal. Held:

1. In his first three enumerations of error defendant asserts the general grounds. In his fourth and fifth enumerations of error defendant contends the trial court erred in denying his motion for directed verdict because evidence presented at trial showed that other persons had “equal access” to his bedroom and that defendant did not sleep in his bedroom the night before the search.

“ ‘ “The totality of the evidence was sufficient to connect the defendant to the possession of the [cocaine] . . . even though the evidence would have authorized a finding that others had equal access to [the controlled substance found in defendant’s bedroom]. (Cits.)” (Cit.)’ Pamplin v. State, 164 Ga. App. 610, 611 (298 SE2d 622) (1982). The jury was authorized to find that [defendant] had at least joint possession of the cocaine. See generally McLeod v. State, 170 Ga. App. 415, 417 (3) (317 SE2d 253) (1984); Anderson v. State, 166 Ga. App. 459, 460 (3) (304 SE2d 550) (1983). A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary. See OCGA § 17-9-1.” Lane v. State, 177 Ga. App. 553 (1), 554 (340 SE2d 228). In the case sub judice, we find the evidence sufficient to authorize the jury’s finding that defendant was guilty beyond a reasonable doubt of the crime, possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ramsay v. State, 175 Ga. App. 97, 99 (7), 100 (332 SE2d 390).

2. Next, defendant contends the trial court erred in failing to grant his motion for new trial based on newly discovered evidence. In support of his motion for new trial filed on August 4, 1986, defendant submitted the affidavit of his brother, Rocky B. Pittman, dated June 12, 1986, and filed September 30, 1986, who deposed in pertinent part, as follows: “I am the brother of [defendant]. On the evening of December 16, 1985 I spent the night in my brother’s bedroom at 2492 Montpelier Avenue. The cocaine which was found in his room belonged to me and I had never shown it to my brother. The reason that I am giving this affidavit is that I did not believe that my brother would be convicted for possession of cocaine which was found in the room because he was never in the room when the cocaine was there, but he was convicted and I simply could not let him take the blame for something that was my responsibility.”

“The standard for granting a new trial on the basis of newly discovered evidence is well established. ‘It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ Emmett v. State, 232 Ga. 110, 117 (205 SE2d 231) (1974); Bell v. State, 227 Ga. 800, 805 (183 SE2d 357) (1971); Burge v. State, 133 Ga. 431, 432 (66 SE 243) (1909); Berry v. State, 10 Ga. 511, 527 (1851); see Code Ann. § 70-204 [now OCGA § 5-5-23]. All six requirements must be complied with to secure a new trial. Offutt v. State, 238 Ga. 454, 455 (233 SE2d 191) (1977); Corn v. State, 142 Ga. App. 798, 799 (237 SE2d 203) (1977).” (Emphasis supplied.) Timberlake v. State, 246 Ga. App. 488, 490 (1), 491 (271 SE2d 792).

In the case sub judice, defendant testified that he did not stay at his parent’s house during the night before the search which revealed the cocaine in his bedroom. Defendant also testified that his brother had access to his bedroom the night before the search. However, upon cross-examination, defendant testified that he did not know if the cocaine belonged to his brother. Defendant also admitted that he did not question his brother before trial concerning the status of the cocaine which was found unconcealed, “on top of the dresser,” in defendant’s bedroom. Under these circumstances, we find the trial court properly denied defendant’s motion for new trial based on the alleged newly discovered evidence because defendant failed to exercise “due diligence” in inquiring of his brother as to the status of the contraband found in defendant’s bedroom. This conclusion is further supported by other evidence adduced at trial showing that defendant was aware prior to trial that his brother had been arrested in Florida for possession of cocaine. Consequently, the trial court did not err in denying defendant’s motion for new trial filed on August 4, 1986.

3. Defendant contends the trial court erred in allowing inadmissible hearsay into evidence at trial. More specifically, defendant complains that Officer Martin Ursitti testified that a confidential informant “told him that the bedroom where the cocaine was found was the Defendant’s bedroom.”

Assuming Officer Ursitti’s testimony was inadmissible hearsay, we find admission of this testimony into evidence harmless because other admissible evidence presented at trial showed that the room where the cocaine was discovered was occupied primarily by defendant. In this regard, defendant testified that he used the room where the cocaine was discovered “consistently to sleep in.” Further, evidence showed that the room in question contained clothing, business papers and other personal items belonging to defendant. “[P]roof of the same facts by legally admissible evidence renders harmless the admission of inadmissible evidence. Davis v. State, 167 Ga. App. 701, 703 (3) (307 SE2d 272) (1983).” Riggins v. State, 179 Ga. App. 179 (2), 180 (345 SE2d 897). This contention is without merit.

4. Defendant’s remaining arguments relate to alleged error based on evidence submitted in support of his motion filed December 11, 1986, entitled: “MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, A MOTION FOR RECONSIDERATION OF THE DENIAL OF DEFENDANT’S MOTION FOR NEW TRIAL AND AMENDMENT TO THE NEW TRIAL AND AMENDMENT TO THE NEW TRIAL MOTION.” This motion was filed after the trial court’s ruling on defendant’s motion for new trial, filed August 4, 1986, and can be characterized only as an extraordinary motion for new trial. OCGA § 5-5-41 (b). Consequently, since the trial court did not consider defendant’s extraordinary motion for new trial, and the evidence filed pursuant thereto, “it must be directed to the trial court in the first instance [for consideration]. See OCGA §§ 5-5-40; 5-5-41; Dick v. State, 248 Ga. 898 (287 SE2d 11) (1982) . . . [Accordingly we will not consider the [issues raised by defendant stemming from his extraordinary motion for new trial] at this time.” Williams v. State, 254 Ga. 6, 9 (2), 9-10 (326 SE2d 444).

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

This case cries out for prompt final disposition. There is pending below an extraordinary motion for new trial based primarily on newly discovered evidence. Although appellant denominates it as a “Motion for Judgment of Acquittal or Alternatively, a Motion for Reconsideration of the Denial of Defendant’s Motion for New Trial and Amendment to the New Trial and Amendment to the New Trial Motion,” it can only be regarded as an extraordinary motion for new trial. OCGA § 5-5-41 (b) provides: “Whenever a motion for a new trial has been made within the 30-day period in any criminal case and overruled . . ., no motion for a new trial from the same verdict or judgment shall be made or received unless the same is an extraordinary motion or case; and only one such extraordinary motion shall be made or allowed.”

The motion thus involves a consideration under OCGA § 5-5-23 of what defendant contends is newly discovered, that is, that the cocaine belonged to his brother, that his brother admits it, giving the details of how it happened to be in the bedroom used by defendant and how defendant did not know of its presence, and that his brother’s girl friend corroborates all of this evidence. This is not necessarily “evidence [which] must have been, or should have been, known to the defendant before [his] trial.” Sapp v. State, 68 Ga. App. 737, 738 (23 SE2d 871) (1943).

At trial the defendant testified that he did not know whose cocaine it was, that it was not his, that he had left the house before the party was over and stayed overnight at his father’s store, that other people were at the party, that they could have gone in the bedroom, and that his father and brother as well as he used the bedroom. No evidence contradicted this, except for circumstantial, inferential evidence that it was his.

The motion was filed one day before the expiration of 30 days from the denial of the motion for new trial, OCGA § 5-6-38, and the next day a notice of appeal was filed. The piecemeal approach to this case has contributed substantially to the time required for finality to be achieved and, what may be more significant, for there to be a ruling on the extraordinary motion. Appellant could have obtained a prompt ruling, and a much earlier appellate review if it had been adverse to him, had he requested a 30-day extension for filing the notice of appeal. OCGA § 5-6-39 (a) (1), (c), and (d). Such an extension would have given the trial court an opportunity to rule on the extraordinary motion with all of its supporting documents.

Piecemeal litigation should be discouraged, not only from the standpoint of efficient court administration but also for the better service of the litigants. If the motion is granted by the trial court, defendant’s new trial will have been delayed unnecessarily for nearly half a year and, if he is acquitted, he will have spent that time in prison unnecessarily. If, on the other hand, the motion is denied, we will undoubtedly have to review the case again on an appeal from the denial.

This is a close case, on its merits, with respect to the sufficiency of the evidence because of the circumstantial nature of all of it, the lack of exclusive control by defendant of the room in which the cocaine was found after his overnight absence, and the access to the room by others during that time and before. Defendant did not have actual possession of the cocaine or of the room at the time the cocaine was found there. Indeed, the evidence is without dispute in this regard and the jury so found. It was debatable whether he had constructive possession of the room during the period the cocaine was in the room, as he had been absent from the house overnight and up to the time that the arresting officers brought him to it the next day.

Decided May 21, 1987.

O. Hale Almand, Jr., Lori L. Chapman, for appellant.

Willis B. Sparks III, District Attorney, Jennie E. Rogers, Assistant District Attorney, for appellee.

“A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” Thomas v. State, 153 Ga. App. 686, 689 (266 SE2d 335) (1980). That is what the jury found beyond a reasonable doubt, that defendant knowingly had the power and intention, at some time when the cocaine was in the room, to exercise dominion or control over it.

I concur fully in Divisions 3 and 4 but only in the judgment with respect to Divisions 1 and 2.


author: Beasley, Judge.

text:
    74285.
    McGINNIS v. THE STATE.
    (358 SE2d 269)
   Beasley, Judge.

Defendant appeals his convictions of criminal attempt to kidnap (count one), OCGA § 16-4-1 and 16-5-40, and criminal trespass (count two), OCGA § 16-7-21 (a).

The victim, after visiting her mother in the hospital and talking with her sister in the parking lot, proceeded to her parked automobile. When she attempted to drive off she discovered one of her tires was flat. Defendant appeared in his truck and offered to help but then claimed he was unable to loosen the lug nuts. He then offered to drive the victim to a service station, which she declined. In his own words, he then “asked her if she wanted to ride around” and the victim replied “no.” According to the victim, as she began to walk past defendant’s truck with the door open he grabbed her arm, turned her around, grabbed her by both breasts, held her and exclaimed: “Bitch, you’re mine.” After a struggle in which “he kind of was pulling backwards and I was pulling this way,” she broke free and proceeded towards a pay phone at the hospital. On the way she met her brother who had seen that her automobile had a flat tire from the hospital room and went downstairs to her aid. Security was informed and the police were called. Meanwhile, defendant departed.

The victim’s brother, though smaller than defendant, easily unscrewed the lug nuts and changed the tire. He and the investigating officer noticed a slash on the tire which was described by the brother and an officer as “cut.” The victim, who had just purchased four new “recap” tires and had them balanced the day before, gave no one permission to cut the tire. The brother noticed the defendant’s truck driving around the parking lot during the day, and a security guard noticed the truck had been in the lot “a couple or three times” over the course of several days before the incident. Defendant testified he was only in town on that day looking for his uncle and had not previously been in the parking lot.

1. Defendant contends the evidence was insufficient to sustain his conviction for criminal attempt to kidnap.

Kidnapping occurs when one abducts or steals away any person without lawful authority and holds that person against his will. OCGA § 16-5-40 (1). “ ‘The distance the victim is carried is not material. Any carrying away is sufficient.’ ” Brown v. State, 132 Ga. App. 399, 402 (2) (208 SE2d 183) (1974). Accord Haynes v. State, 249 Ga. 119 (1) (288 SE2d 185) (1982). The other element consists of holding the victim against his will. Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983); Padgett v. State, 170 Ga. App. 98, 99 (1) (316 SE2d 523) (1984).

A criminal attempt consists of three elements: 1) an intent to commit the specific crime; 2) performing an overt act towards the crime’s commission; 3) a failure to consummate the crime. Howell v. State, 157 Ga. App. 451, 454 (4) (278 SE2d 43) (1981). The overt act (described as “a substantial step towards the commission of the crime” by OCGA § 16-4-1) “must be such as would be proximately connected with the completed crime.” Fears v. State, 152 Ga. App. 817, 821 (2) (264 SE2d 284) (1979). It must be inexplicable as a lawful act and more than mere preparation. Bell v. State, 118 Ga. App. 291, 292 (163 SE2d 323) (1968).

The victim was grabbed and restrained against her will. This was one of the elements of kidnapping. If there had been asportation the offense would have been consummated. There was evidence from which a jury could find that defendant intended to take the victim away in his truck and was thwarted only by her resistance. Arrington v. State, 48 Ga. App. 64, 68 (171 SE 874) (1933), affirmed a conviction for attempting to kidnap where the perpetrator “made a grab for” the victim but the “grab failed.”

“On appeals from findings of guilty, the presumption of innocence no longer prevails, the fact finders have determined the credibility of witnesses, [and] the fact finders have been convinced beyond reasonable doubt.” Baker v. State, 151 Ga. App. 636 (260 SE2d 759) (1979). The jury is the final arbiter of evidence in conflict, so the verdict will be upheld where discrepancies appear. Herrington v. State, 177 Ga. App. 632 (1) (340 SE2d 637) (1986). In light of these principles, the evidence was sufficient to allow it, as a rational trier of fact, to find defendant guilty beyond a reasonable doubt. Jackson v. Vir ginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant also challenges the sufficiency of evidence to support his conviction for criminal trespass. It was based on the jury’s finding that he damaged property (the automobile tire) of another person (the victim) without her consent and the damage was $500 or less. OCGA § 16-7-21 (a).

The victim testified the tire was hers, and it was introduced into evidence. The facts involving property of another, lack of consent and the monetary amount of the damage were adequately established. See Mallory v. State, 164 Ga. App. 569, 570 (2) (298 SE2d 290) (1982), as to proving value and amount of damage.

Only circumstantial evidence, however, points to defendant as the perpetrator. The proven facts must be inconsistent with innocence to uphold a conviction on circumstantial evidence. Riley v. State, 1 Ga. App. 651 (57 SE 1031) (1907). It is only necessary to exclude reasonable inferences or hypotheses, not every inference, Chambless v. State, 165 Ga. App. 194 (300 SE2d 201) (1983), but a suspicion of guilt is not sufficient, Hall v. State, 155 Ga. App. 211, 212 (270 SE2d 377) (1980), nor is mere presence at the scene. Wright v. State, 147 Ga. App. 111, 112 (248 SE2d 183) (1978).

Here one could conclude that defendant had a motive to cut the tire, that is, to facilitate a scheme to abduct the victim, but it is also possible that he merely took opportunistic advantage of the woman in distress and used that happenstance to initiate his criminal enterprise. There was no evidence that he was around her car earlier so as to have the opportunity to disable the car by cutting the tire before she returned and found a problem necessitating help. There was no evidence that he knew, before her return, that a lone woman would be coming to the car shortly. There was no evidence that he knew her or knew she was there.

Generally questions of reasonableness are for the jury to decide under proper instructions by the court. Smith v. State, 154 Ga. App. 497, 500 (2) (268 SE2d 714) (1980). However, if the circumstances are such that given their strongest intendment a reasonable hypothesis of defendant’s innocence is not excluded then a conviction may not be sustained. Crane v. State, 123 Ga. App. 226, 227 (3) (180 SE2d 289) (1971); Barnett v. State, 153 Ga. App. 430, 432 (4) (265 SE2d 348) (1980). The circumstances here raise a strong suspicion but fail to exclude a reasonable hypothesis consistent with innocence. The conviction for criminal trespass must be reversed.

3. Defendant complains of the admission of a “mug shot” which the victim picked out from over a thousand photographs. The defendant argues that, since in his testimony he admitted being at the scene, proof was not needed to establish his identity. This ground was not advanced at trial and will not be considered. Clark v. State, 180 Ga. App. 280, 282 (2) (348 SE2d 916) (1986).

Decided May 21, 1987.

Walter Van Heiningen, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

Objection was interposed at the close of the state’s evidence, at which time the state had no idea whether defendant would testify or what he would admit. Identity was a crucial issue and it was evident that defendant’s facial appearance had changed due to removal of his mustache and a different hair length. The state had to establish that defendant was indeed the perpetrator, and the photograph would tend to corroborate the victim’s testimony and show her reliability and the accuracy of her identification. When so used, i.e., where relevant and material, a mug shot does not impermissibly place defendant’s character in issue. Ambros v. State, 159 Ga. App. 492, 493 (3) (283 SE2d 706) (1981); Williams v. State, 178 Ga. App. 80, 82 (2) (342 SE2d 18) (1986).

4. Defendant contends that the charge on simple battery failed to explain it was a lesser included offense of criminal attempt to kidnap and this error was exacerbated by the verdict form which provided no space to insert a verdict of battery.

The trial judge instructed the jury on the elements of simple battery and explained a finding of guilt of that offense should be inserted in the form under count one if they believed defendant not guilty of criminal attempt to kidnap but guilty of simple battery. Defendant’s contention lacks merit.

Defendant’s conviction on count one is affirmed, but his conviction on count two, criminal trespass, is reversed.

Judgment affirmed on Count One; judgment reversed on Count Two.

McMurray, P. J., and Sognier, J., concur.


text:
    73920.
    PRESTON v. THE STATE.
    (357 SE2d 825)
   Benham, Judge.

A jury found appellant guilty of theft by receiving stolen property, a 1960 Chevrolet Biscayne.

1. In his first enumeration, appellant asserts as error the trial court’s denial of his motion for a directed verdict of acquittal. The State had presented evidence that appellant was arrested while he sat in the driver’s seat of the 1960 Biscayne which he had attempted to start. A watching police officer, recognizing the car as one reported stolen a week earlier, had disabled the vehicle and surveilled it for two hours, during which time appellant was the only person who approached the automobile. Appellant had neither a key nor other indi-cia of ownership of the vehicle. The State also presented evidence that about a month later, appellant was arrested while driving another automobile reported as stolen.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a). “Possession, as we know it, is the right to exercise power over a corporeal thing . . . .” Cook v. State, 136 Ga. App. 908 (2) (222 SE2d 656) (1975). “[A] person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” Thomas v. State, 153 Ga. App. 686 (2) (266 SE2d 335) (1980). The police officer’s testimony concerning appellant’s entry into the car and attempt to start the vehicle is evidence that appellant possessed or was in control of the automobile.

Appellant also questions the existence of evidence that he possessed the requisite knowledge that the car was stolen. “ ‘Knowledge that the goods are stolen is an essential element of the crime. This guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. [Cits.]’ ‘ “Unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge.” [Cit.]’ ” Pruiett v. State, 159 Ga. App. 396 (1) (283 SE2d 625) (1981). Evidence of appellant’s possession of the recently stolen car, coupled with the fact that appellant did not have any papers evidencing ownership of the car or a key to the vehicle, was sufficient to authorize the jury to infer that appellant knew or should have known of the stolen nature of the car. Inasmuch as we cannot say that there was no conflict in the evidence and that the evidence demanded a verdict of acquittal, the trial court did not err in denying appellant’s motion for directed verdict. OCGA § 17-9-1; Conger v. State, 250 Ga. 867, 870 (301 SE2d 878) (1983).

2. Appellant next protests the admission of evidence of a similar transaction. He contends the evidence was insufficient to establish him as the perpetrator of the separate crime, that the prejudicial impact of the evidence outweighed its relevance, and that Rule 31.3 of the Uniform Rules for the Superior Courts is unconstitutional.

The State presented evidence that approximately five weeks after he was arrested in possession and control of the 1960 Chevrolet Biscayne, appellant was arrested driving a 1978 Audi Fox which had been reported stolen the previous day. Although appellant had given the arresting officer a false name, the officer identified appellant in court as the driver of the stolen Audi. Contrary to appellant’s assertion, the evidence was sufficient to identify him as the perpetrator of the similar offense. The evidence of the similar transaction was admissible, for “[w]here knowledge, motive, intent, good or bad faith, and other matters dependent upon a person’s state of mind are involved as a material element in a particular criminal offense for which the defendant is on trial, and the defendant has engaged in a course of conduct at or about the same time the act in question was committed, and these transactions are such as to illustrate the state of the defendant’s mind on the subject involved, proof of them may be received. [Cits.]” Powell v. State, 171 Ga. App. 876 (3) (321 SE2d 745) (1984). See also Thomas v. State, 176 Ga. App. 53 (2) (335 SE2d 135) (1985).

Appellant suggests that Rule 31.3 of the Uniform Rules for the Superior Courts is an unconstitutional judicial usurpation of a legislative function. The rule in question provides that evidence of only those similar transactions or occurrences specifically approved by the trial court is admissible at trial unless certain other conditions exist, and requires the State to inform defense counsel of its intent to seek judicial permission to enter evidence of similar transactions. Appellant, however, has in no way shown the harm he suffered from the application of Rule 31.3 to his case. “Only one who has been harmed is in a position to complain. [Cit.]” Farley v. State, 145 Ga. App. 98, 100 (243 SE2d 322) (1978).

3. At the conclusion of the presentation of his evidence, appellant sought and was denied a mistrial on the grounds that the State had injected the issue of appellant’s character into the trial and had presented evidence of a separate dissimilar crime by showing that appellant had given a false name to the officer who arrested him in possession of the stolen Audi. The testimony which was the basis for appellant’s motion was elicited during the State’s presentation of its case as well as on cross-examination of appellant. No objection was made. “ ‘(A) mistrial will not lie where evidence is admitted without objection [cit.], and a motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely. [Cits.]”’ Flynn v. State, 255 Ga. 415 (6a) (339 SE2d 259) (1986).

4. During its deliberations, the jury sought additional guidance from the trial court concerning the definitions of “possession” and “should have known.” Over appellant’s objection, the trial court responded by giving dictionary definitions of possession: “Actual holding or occupancy with or without rightful ownership” and “Actual possession exists where the thing is in the immediate occupancy of the party.” Appellant contends the recharge was an erroneous statement of law because, if he had been in legal possession of the car, he was not guilty of a crime.

We have previously discussed the definition of “possession” (see Division 1 of this opinion) and do not find the trial court’s recharge to be at odds with what was said in that discussion. Whether or not one has rightful ownership to an object, one possesses it when one actually holds or occupies the object. It is guilty knowledge, i.e., that one knew or should have known the stolen nature of the object, that makes its possession illegal. In conjunction with the recharge on possession, the trial court repeated the statutory definition of theft by receiving stolen property, as well as its charges on knowledge, burden of proof and reasonable doubt; and urged the jury to give the words “their ordinary significance.” We see no harm or error in the trial court’s recharge.

5. Appellant next contends that the trial court’s charge on intent was impermissibly burden-shifting and did not meet the requirements of due process as defined by the U. S. Supreme Court in Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979); and Francis v. Franklin, 471 U. S. _ (105 SC 1965, 85 LE2d 344) (1985). The trial court’s instruction was virtually identical to that which withstood a similar attack in Beal v. State, 255 Ga. 446 (3) (339 SE2d 581) (1986).

6. Using the language of OCGA § 24-4-6, the trial court instructed the jury on returning a verdict based upon circumstantial evidence. Appellant contends error was committed because the trial court failed to inform the jury, despite appellant’s request, that “the defendant’s explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted.” See Elam v. State, 125 Ga. App. 427 (2) (187 SE2d 920) (1972). “Appellant’s suggested additional charge on circumstantial evidence, while a correct statement of the law, was not required here since the state’s case was based not solely on circumstantial evidence, but on direct evidence as well[: the testimony of the officer who saw appellant exercise possession and control over the stolen car].” Brown v. State, 251 Ga. 598 (4) (308 SE2d 182) (1983).

7. Lastly, appellant argues that OCGA § 16-8-12 (a) (4) (A) mandates a misdemeanor sentence for theft by receiving a motor vehicle, the value of which is not shown. The statute permits the imposition of felony punishment “if the property which was the subject of the theft was a motor vehicle or was a motor vehicle part or component which exceeded $100.00 in value . . .” Appellant maintains that the statute requires proof that a motor vehicle’s value exceeds $100 before felony punishment may be handed down. We disagree. We read the statute as permitting felony punishment for the theft of a motor vehicle, regardless of value, and requiring evidence of value exceeding $100 only where a motor vehicle part or component was the subject of the theft. Our reading of the statute comports with OCGA § 16-8-18, which defines as a felony the entry of a person into a motor vehicle with intent to commit a theft. If the entry into the motor vehicle with the intent to steal is a felony, the actual theft of the car (as defined in OCGA §§ 16-8-2 through 16-8-9 and as punished in OCGA § 16-8-12) should be no less.

Decided May 11, 1987

Rehearing denied May 22, 1987

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Elizabeth MacNamara, James Richter, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    74103.
    THE STATE v. PRESTIA.
    (357 SE2d 829)
   Pope, Judge.

The State brings this appeal from the trial court’s August 15, 1986 order granting defendant’s motion for acquittal pursuant to OCGA § 17-7-170 (b).

1. In its first challenge to the trial court’s order, the State argues the letter filed by defendant in which his demand for trial pursuant to OCGA § 17-7-170 was stated was insufficient to perfect defendant’s statutory demand for speedy trial. Specifically, the State relies on Rule 36.3 of the Uniform Rules, which provides that documents or pleadings presented for filing must set out “the exact nature of the pleading or the type of complaint.”

The record shows that on February 20, 1986 defendant’s attorney filed a letter with the Clerk of the State Court of Cobb County which, in addition to notifying the clerk of counsel’s representation of defendant, also contained a general Brady motion, a demand for copies of all warrants, accusations or indictments pending against the defendant, a list of all witnesses and “trial by jury at this or the next succeeding term of court pursuant to OCGA § 17-7-170.”

“In State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982), we held that to invoke the extreme sanction of acquittal, a demand for trial must be couched in language which may reasonably be construed as referencing the provisions of OCGA § 17-7-170 (former Code § 27-1901).” Edwards v. State, 177 Ga. App. 557 (340 SE2d 229) (1986). Thus, under Adamczyk, supra, and its progeny, a demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial. See, e.g., Edwards v. State, supra at 557; Malpass v. State, 173 Ga. App. 690 (1) (327 SE2d 753) (1985); Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984). However, in Adamczyk we also held “[t]his ruling does not affect our previous rulings regarding placing the demand on the minutes of the court or delivery of the demand to certain officials; nor is any particular form required so long as the demand can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170].” (Emphasis supplied.) Adamczyk, supra at 290.

In Ferris v. State, supra, we again considered whether defendant’s demand for speedy trial, which was also contained in a letter filed with the clerk of court, was sufficient to invoke the sanction of acquittal. In that case we found that defendant’s demand clearly sought a speedy trial, but nevertheless found the demand insufficient because it did not identify the charges pending against the defendant by name, date, term of court, or case number and thus could not “reasonably be construed as sufficient to put the authorities on notice of a defendant’s intention to invoke the extreme sanction of former Code § 27-1901 (now OCGA § 17-7-170, . . .).” Id. at 731. Again, however, we imposed no requirement that a demand for a speedy trial be presented in any particular form.

Applying these considerations to the case sub judice, we note first that defendant’s letter contained both a specific request to be tried “at this or the next succeeding term of court” and a specific reference to OCGA § 17-7-170. Moreover, defendant’s letter clearly referenced the charges pending against him and the term of court during which defendant was scheduled to appear. Hence, we find that under the guidelines enunciated in both Adamczyk and Ferris defendant’s demand for speedy trial was clearly sufficient to invoke the extreme sanction of acquittal as provided in OCGA § 17-7-170.

2. The State also challenges the trial court’s finding that jurors were impaneled and qualified during the February 1986 term of court (when defendant’s demand was made) and argues defendant failed to carry his burden of showing that jurors were qualified and impaneled during that term as is necessary to trigger the provisions of OCGA § 17-7-170. See State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978).

The record shows that during the hearing on defendant’s motion for acquittal, Ms. Janice Brice, the chief deputy clerk of the State Court of Cobb County testified, inter alia, that to her knowledge jurors were impaneled each and every month to try cases in the State Court of Cobb County. Thus, we cannot agree with the State’s conclusion that the defendant failed to carry his burden in this regard. Moreover, in the absence of clear and convincing evidence to the contrary, we will not on appeal disturb the trial court’s finding that qualified jurors were impaneled to try defendant during the term in which the demand was filed. Waller v. State, 251 Ga. 124 (303 SE2d 437) (1983); Wilson v. State, 156 Ga. App. 53 (274 SE2d 95) (1980); see generally Smith v. State, 174 Ga. App. 647 (2) (331 SE2d 14) (1985). Accordingly, we find the trial court did not err in granting defendant’s motion for acquittal.

Decided May 11, 1987

Rehearing denied May 22, 1987

Patrick H. Head, Solicitor, Amy H. McChesney, Melodie H. Clayton, Assistant Solicitors, for appellant.

Alan C. Manheim, for appellee.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    74166.
    WILKERSON v. THE STATE.
    (357 SE2d 814)
   Birdsong, Chief Judge.

James Wilkerson, the defendant, was indicted for the murder of his wife, but was convicted of voluntary manslaughter. Wilkerson testified that his wife was suicidal and had attempted to divorce him. At her insistence, he had borrowed large sums of money to pay off her debts and for her to use in purchasing Christmas gifts. He said she wanted him to borrow more money as she had not purchased gifts for her parents or sister. He refused and an argument ensued. She is said to have stated “if she couldn’t have a Christmas, that nobody was. She was going to put the kids in the car and take them off and have a wreck and kill all three of them.” Wilkerson intervened and he said his wife obtained a butcher knife and attempted to cut him. He used a diaper box to absorb the knife thrusts. He said she got a .357 magnum revolver from the bedroom and he wrestled with her. She had the knife in her right hand and the gun in her left hand. He wrestled her to the floor. She was twisting and turning, and “the gun went off . . . I didn’t have the gun in my hand.” When the police and medical personnel arrived, they saw Mrs. Wilkerson lying by the bed, just inside the bedroom. “There was a knife laying by her right hand and a gun laying by her right hand.” A box of diapers was present and it had holes in it which could have been caused by a knife. Swabbings taken of the right and left hands of the defendant and the deceased were negative as to gunshot residue. The defendant appeals his conviction of voluntary manslaughter. Held:

1. One of the police officers testified that when he talked to the defendant that afternoon he was told three different versions by the defendant, i.e.: “She was trying to stab me with a knife. I took it away from her. She got the gun and shot herself in the head.” “She had the knife in her right hand and the gun in her left hand. We were on the floor. I had her pinned down, but she turned the gun toward herself and fired.” “She was depressed because we did not have any money to buy Christmas presents, so she sat on the bed and shot herself.” On cross-examination, defendant’s counsel introduced what the officer had testified to at the preliminary hearing as to what the defendant had told him: “I asked him, I said, ‘Was your wife right or left-handed?’ And he said, ‘She had the knife in one hand and her gun in the left hand and she shot herself in the head when we were on the ground. . . .’” “[H]e told me again, he said he was on top of her, had her pinned to the floor and then she managed to twist her hand back towards herself and shot herself with the weapon.” The officer conceded he had so testified. Admittedly, the officer’s recollection at the preliminary hearing following the incident was much more favorable to the defendant than his version at the trial six months thereafter. The district attorney then offered in evidence the entire transcript of the preliminary hearing. Upon objection, the evidence was excluded, the district attorney reprimanded, and the jury instructed to disregard. Defendant’s motion for mistrial was denied. The denial of the motion for mistrial is enumerated as error.

“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315). We have found no harmful error. There was only a tender of evidence, promptly rejected, the district attorney was specifically reprimanded, and the jury instructed to totally disregard the offer. There was no abuse of discretion. Truitt v. State, 168 Ga. App. 616, 617 (309 SE2d 895).

2. The trial court properly rejected defendant’s requested charge on the “two theories” defense. In essence, such a charge is usually worded as follows: That if the facts in evidence present two theories, one of guilt and the other consistent with innocence, then justice and humanity of the law compel the acceptance of the theory which is consistent with innocence.

“The requested charge was taken from Davis v. State, 13 Ga. App. 142 (1) (78 SE 866). . . . Jackson v. State, 13 Ga. App. 147 (1) (78 SE 867), issued the same date, distinguished the rule of Davis, supra, and cases which distinguished it continue to this day. [Cits.] . . . This decision was thoroughly discussed and discredited in Nolen v. State, 124 Ga. App. 593, 594 (184 SE2d 674) and relegated to a role in cases ‘dependent solely upon circumstantial evidence.’ [Cits.]” Booker v. State, 156 Ga. App. 40, 42 (274 SE2d 84), rev’d on other grounds, 247 Ga. 74 (274 SE2d 334), aff’d 157 Ga. App. 872 (278 SE2d 745). The instant case is not dependent solely upon circumstantial evidence. Therefore, the charge was not adjusted to the evidence and was inappropriate.

Decided May 1, 1987

Rehearing denied May 22, 1987

Glyndon C. Pruitt, for appellant.

Thomas C. Lawler III, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

3. The trial court did not err in refusing to give a requested charge on “self-defense.” The defendant testified that the firing of the weapon was accidental. The court properly charged that a person could not be found guilty of any offense committed by misfortune or accident, if it satisfactorily appeared there was no criminal scheme or undertaking, intention, or criminal negligence. OCGA § 16-2-2. The defenses of self-defense and accident are inconsistent. Fields v. State, 167 Ga. App. 816, 818 (307 SE2d 712). The defendant claimed he did not have possession of the weapon when it fired. Hence, it cannot be said he used it in self-defense. This enumeration is without merit.

Judgment affirmed.

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


text:
    74183.
    DULL v. THE STATE.
    (358 SE2d 256)
   Birdsong, Chief Judge.

Wayne Edward Dull was convicted of two counts of driving under the influence of an alcoholic beverage and sentenced. He brings this appeal enumerating a single error. Held:

Dull was arrested by two police officers after being stopped for erratic driving and being observed to be apparently under the influence of alcohol. The first officer testified at great length as to the physical surroundings of the place of arrest, the make of the car driven by Dull, and the observations of Dull’s personal and physical condition that led the officer to conclude Dull was intoxicated. Two separate intoximeter tests were conducted, one showing a positive reaction for presence of alcohol and the other indicating a blood alcohol level of .20. The second officer testified substantially to the same facts but not in as great detail. The second officer stated from the stand that he had a general recollection of the incident but had had to refresh his memory of the incident from a written report prepared by the witness shortly after the arrest.

On cross-examination, the officer identified the incident report as the one he had prepared and conceded the report had refreshed his memory. He also was asked to (and did) read to the jury certain portions of the report that someone had highlighted with a yellow ink marker. After the reading of the highlighted portion at the request of the defense, the State remarked: “Your Honor, I would stipulate to the incident report into the — the evidence. ... I have no problem with the jury seeing that entire report. [Defense Counsel]: I don’t have any problem with that either, Judge. The Court: Are y’all asking that it be submitted into the evidence? [Defense Counsel]: I’m not asking, Judge. It’s his case. If he wants to put it in, he can put it in. I — we don’t have any objection to it. The Court: Well, it would — I mean, whose exhibit would it go in as. . . . [State]: The State would tender State’s Exhibit 4 into evidence. The Court: And is there objection? [Defense Counsel]: No, Your Honor. We — we would like to be able to call [the first police officer] back to the stand to find out when it was written and things of this nature. . . . My position is, before we admit it into evidence, I’d like to know when it was written and some other — I’d like to cross-examine the writer ... on certain matters.” After the witness had been subjected to further examination and cross-examination and retired from the stand, the State re-tendered Exhibit 4. “The Court: Objection? [Defense Counsel]: No objection, Your Honor. That’s the police report, right? [State]: Yes. The Court: State’s Exhibit 4 is admitted without objection.”

After the completion of all evidence, arguments of counsel, the charge of the court, and the post-charge objections, the trial court conferred with counsel as to the evidence to be sent to the jury. For the first time, counsel for Dull objected to State’s Exhibit 4 being sent out with the jury in that it would constitute a continuing testimony by the police officer, placing undue emphasis upon that testimony to the material prejudice of the defendant. At that point the court stated: “I thought the purpose of that being offered was that you [DC] sought to impeach the officer by saying that all that he recalls was what was yellow lined, and that’s the only reason it came in. [DC] Yes, Your Honor.” The court stated at that point: “Number 4 being sent to the jury. I am, however, going to send it to the jury over the defendant’s objection because the reason it was admitted into evidence was part of the defendant’s impeachment of the officer. So, I’m going to allow it for them to have it for that benefit for impeachment.”

It is clear from the proceedings before the court that Dull, while conceding that he had consumed some alcoholic beverages during the evening before his arrest, contended he was not intoxicated. He offered eyewitness testimony that he did not appear intoxicated to other persons and had not consumed enough alcohol to have become intoxicated. He sought to show on cross-examination that the officers probably were mistaken and had no recollection of the incident independent of the report. Extensive examination was conducted as to the memory of the preparer of the report and the expertise of the officer who performed the intoximeter test. Thus the apparent theory of the defense was that if the officers had no independent memory of the incident but relied on the underlined portions of the report, the jury might place greater weight upon the recollection of the defense witnesses to the state of intoxication rather than the refreshed recollection of the arresting officers. In substance when the report was identified at the request of the defense, Dull conceded he had no objection to the admissibility of the report or to the jury viewing it. As a matter of trial tactics, it would appear that the impeachment process was consistent with the defense offered by Dull.

Decided May 7, 1987

Rehearing denied May 22, 1987

Larry W. Yarbrough, for appellant.

Patrick H. Head, Solicitor, Phillip Goldstein, Melodie Clayton, Assistant Solicitors, for appellee.

It has been held that it is not error and certainly not reversible error to admit an item of documentary evidence that is consistent with the theory of the defense. See Vinyard v. State, 177 Ga. App. 188, 189 (338 SE2d 766); Heard v. State, 169 Ga. App. 609 (314 SE2d 451).

We also are concerned with the question of waiver. Counsel for Dull affirmatively stated he had no objection to the document being admitted nor to its being viewed by the jury. Later when the document was re-tendered by the State, Dull again voiced no objection to the document’s admission into evidence nor did he seek to limit its use. In short, appellant himself focused attention on this document, voiced no objection to its admissibility, sought to use it in his defense, and even agreed that the jury could view it. We deem it to be impermissible for counsel actively to pursue a course of conduct, and then when the State’s representative pursues and the trial court permits the proposed action, seek to assert that course of action was materially prejudicial. If error, this was induced error. Drake v. State, 142 Ga. App. 14, 16 (234 SE2d 825).

Judgment affirmed.

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


text:
    74218.
    GALLAHER et al. v. TEEPLE et al.
    (357 SE2d 808)
   Birdsong, Chief Judge.

Appellants Clyde Gallaher, William Heitmann, Gerald Crockett and James Wilharm, Aldermen of the Town of Thunderbolt appeal from a jury verdict in favor of appellees, plaintiffs below, Charles Teeple, Jr. and Teeple’s Seafood, Inc. Teeple’s Seafood is a combination restaurant, bar, and retail seafood outlet. Mrs. Nell Teeple is the president and sole stockholder of Teeple’s, Inc. Her husband, Charlie Teeple, Jr., is the manager of Teeple’s.

The Drug Squad of the Chatham County Police Department was investigating allegations made by an informant to a member of the Drug Squad that he had made a purchase of cocaine at Teeple’s on June 1, 1984, and on August 19, 1984, had been present in a room over Teeple’s restaurant when two kilos of cocaine were being “cut.” The following day an undercover officer made a purchase of three ounces of cocaine from a Teeple’s employee, while two other Teeple’s employees were said to have acted as lookouts. Other persons were observed smoking marijuana “away from the back door” of Teeple’s. Another individual who was present in the restaurant offered to sell 16 pounds of marijuana to the undercover police. Three Teeple’s employees and the individual offering marijuana for sale were arrested. One employee admitted making 15 sales of cocaine “out of the back of the restaurant in a period of one month.”

Mayor James Petrea of Thunderbolt notified Mrs. Teeple to close her business. Appellees petitioned the Town for a hearing and on August 28 a hearing was held before the Town Council. Major Freeman, head of the Drug Squad of Chatham County, testified about the drug activities at Teeple’s, and expressed his opinion that there was no way the Teeples could not have known about the drug sales, because there was so “much traffic that was going on in and out of the back door. They should have known what was going on.” The issue was tabled until the next regular meeting of the Council. At the next meeting, the Council voted 4-3 to revoke Teeple’s licenses. Alderman Crockett testified that only the restaurant and bar licenses were revoked. At the time this incident occurred, Charlie Teeple was operating the retail seafood outlet in another building. Teeple testified that on the day that he was closed by the Mayor, he was in the process of moving his retail seafood operation back into the restaurant building. However, the testimony of the appellant stands unrefuted that the Council did not revoke the license of Teeple to retail seafood.

Teeple filed an action in Chatham Superior Court for an injunction against the Town Council. On Sunday, September 16, 1984, appellants Gallaher, Heitmann, Crockett, Wilharm, and several other people were gathered in a local restaurant, discussing the injunction action filed against the Council. The aldermen decided to examine police records to see how much, and what kind of, trouble the police had with Teeple’s. They had the Chief of Police admit them to the jail where the records were kept and they examined the police records for 1980 to 1984 on Teeple’s and other similar establishments. A summation of Teeple’s police calls was prepared and presented to the City Attorney for his use in the injunction action filed by Teeple. A breakdown of the major type of calls revealed: fights 34, disorderly person 26, burglar alarm 14, drunks 12, noisy party 11, accidents 10, larceny 10, hit and run 5, other traffic violation 4, person with gun 4, discharge of firearms 2, drunk driving 2, and lesser numbers of other violations. At the injunction trial, Aldermen Heitmann and Crockett testified for the Town about why they made the police calls list, how they made it, who made it, and where the evidence came from. One of the standards used by the Council on issues of revocation of licenses was the number of police calls during the preceding year. The summary lists of police calls were not released to anyone except the City Attorney, nor were they discussed with anyone else. The Superior Court directed the Council not to interfere with the “business activity of Plaintiffs” in the operation of the restaurant and the seafood outlet, and took under advisement the alcoholic beverage, license until a later date, at which time the court directed Teeple’s bar be permitted to reopen.

Following the issuance of the court order, appellants received a call from the Assistant City Attorney, who wanted to explain the court’s order to them. Appellants gathered at City Hall. That meeting was not attended by the Mayor or two other Town Aldermen. As they left the meeting, the Aldermen were confronted by TV and newspaper reporters. Alderman Crockett was reported as stating: “We are going to pursue the closing of Teeple’s right over again. It’s a nuisance. It’s just plain a nuisance to the City of Thunderbolt.” At that same time, Alderman Gallaher is quoted as saying: “I think we will pursue whatever avenue we have to close it. During the past six or seven years, our police have had three or four calls a month there. I felt our community doesn’t need it. I thought we did the proper thing. The people of this community don’t need something like this.” On September 13, 1984, Alderman Gallaher is quoted by a WSAV reporter: “We have had nothing but trouble with Teeple’s for the past several years out there. Different things — they have had a killing down there, they have had fights down there, they have had numerous things and I feel it’s not an asset to this community to start with.”

Charles Teeple and Teeple’s Seafood then filed this action, alleging, in essence, slander to the personal reputation of Teeple, “false and misleading information” against another in reference to his business, and for damages suffered because of the improper closing of the restaurant, bar, and retail seafood outlet.

The jury found for appellees on the slander against Teeple, but only against appellants Gallaher and Crockett. No general damages were found, but punitive damages in the amount of $1,500 each were assessed against Gallaher and Crockett. The jury also found for ap-pellees on the issue of tortious interference with a business interest against all four appellants, and assessed against each appellant — $6,000 in special damages, $3,500 general damages, and $4,500 punitive damages. The jury found for appellants on the issue of malicious acts by public officials against the appellees, and for appellant Wilharm on the issue of “slander” against appellees. The trial court directed the jury to return a verdict in favor of Mayor Petrea. Appellants appeal from judgment entered on the jury verdict. Held:

1. Appellants contend the jury verdict for punitive damages cannot be sustained where no actual damages were awarded. This issue was first raised in the trial court in appellant’s post-trial motion for judgment notwithstanding verdict, or in the alternative, a new trial. Appellees argue that under OCGA § 9-11-50 (b), á motion for directed verdict is a condition precedent to consideration of a claim of error in a motion for judgment n.o.v. Appellees are correct. Sun v. Bush, 179 Ga. App. 80, 81 (345 SE2d 85); Batson v. First Nat. Bank, 170 Ga. App. 803 (2) (318 SE2d 227). Where an issue is not raised in a motion for directed verdict, it is not error to deny a motion for judgment n.o.v. Whitman v. Burden, 155 Ga. App. 67 (1) (270 SE2d 235). However, we will examine the merits of the claim of error because of the denial of the requested alternative remedy, new trial.

Appellees’ complaint sought “punitive damages ... to deter this type of conduct in the future.” Where there are “aggravating circumstances . . . the jury may give additional damages to deter the wrongdoer from repeating the trespass. . . .” (Emphasis supplied.) OCGA § 51-12-5. Hence, punitive damages are “additional damages” to compensatory damages. Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (216 SE2d 776). An award of punitive damages will not lie when no other damages are recovered as to that injury. Haugabrook v. Taylor, 225 Ga. 317, 318 (168 SE2d 162); Foster v. Sikes, 202 Ga. 122, 126 (42 SE2d 441); Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 323 (297 SE2d 292); Public Fin. Corp. v. Cooper, 149 Ga. App. 42, 45 (253 SE2d 435). The trial court erred in failing to grant a new trial as to this issue.

2. Appellants claim they were entitled to judgment notwithstanding the verdict on appellees’ claim of malicious interference with business. We agree. There were numbers of allegations in appellees’ complaint as bases for recovery of damages for tortious interference with appellees’ business — (a) appellants’ votes in the Town Council to revoke their licenses (described as “illegal action of the Defendants”), (b) “false and misleading” information taken from the police files which “was presented to the court and to the public” to justify appellants’ actions, further described as “oppressive and unauthorized,” and “was done with malice, solely for the purpose of causing damage and injury to Plaintiffs . . . (c) that appellants Gallaher, Heitmann, Crockett and Wilharm “secretly 'met on several occasions in preparation for the presentation of false and misleading information concerning the operation of Plaintiffs’ businesses, specifically presenting information to the court and the press” that Teeple’s had been the object of numerous police calls involving serious and violent crimes, and (d) such “false and misleading information” was presented “to the court and to the press” with regard “to Plaintiffs’ business and livelihood, was done with malice, solely for the purpose of causing damage and injury to Plaintiffs. . .

Appellants filed a motion in limine which included, inter alia, a request that the court prohibit appellees, their counsel and witnesses, from testifying or characterizing “any statement made by any Defendant in Court as slanderous or defamatory.” (Emphasis supplied.) In discussion of this motion in court, appellees’ counsel agreed they would not “characterize any other statements [of appellants] other than those three [made to the TV and newspaper media] as slanderous . . . beyond that we object.” The court ruled: “I deny your motion as far as that’s concerned.”

During trial, this issue arose again on cross-examination of appellant Heitmann. Appellants’ counsel objected: “This Court has already ruled that these men cannot be held liable for anything that was introduced into Court at that hearing, that the act of introducing that material is not any kind of violation for which they can be held liable.” Appellees’ counsel responded: “That’s incorrect, Your Honor. The Court has ruled that as far as the issue of slander, any statements made and [sic] in Court proceedings would not be a proper basis of slander. However, we have the other theory, and that’s the . . . interference with business. We plan to prove this entire conspiracy of the idea to pull these records and present them in Court and so they were picked up in public and the press and making statements about them afterwards.” The court ruled that plaintiffs’ counsel “can inquire as to what they did with it. That has nothing to do with the evidence in Court. Now, he’s asking him now what he did with them [the statistics on police calls to Teeple’s] after he compiled them. I’ll permit him to testify to that.” During trial, appellants Heitmann and Crockett were examined about their role in preparing the composite list of police calls to Teeple’s and about their testimony in court in the action for the injunction.

During the period investigated, from 1980 to 1984, the number of police calls to Teeple’s had drastically declined from 1980 to 1984. Although there were 179 calls for the entire period, only 17 were received in 1983 and only 5 for 1984. Appellees’ counsel argued to the jury: “But that wasn’t the way it was presented to [the injunction] Court. . . they had the City Attorney present that list to Court, and let Mr. Crockett and Mr. Heitmann testify about that list in Court. . . .” Appellees’ counsel argued that such actions by appellants constituted “interference with business. Tortious . . . [appellants] had them [the police calls] present in Court, and they talked about it, and talked about, and talked about it . . . and they knew that what they presented would interfere with the business.” Hence, counsel for appellees, in the complaint, in argument to the court and the jury, argued that the conduct and testimony of appellants in court, in the action on the injunction, provided a basis for recovery of damages on their claim for tortious interference with business.

Decided April 29, 1987

Rehearing dismissed May 22, 1987.

There is no evidence of record that appellants procured the introduction in evidence of the police calls to Teeple’s. They presented such evidence to the City Attorney. Appellant Crockett testified: “I read off the list when I was asked by Judge Cheatham some questions and [in response to] some questions [from appellees’ counsel].” Such testimony and evidence was presented in defense of appellees’ action for an injunction and was absolutely privileged. Rimes v. Weathers, 244 Ga. 875 (1) (262 SE2d 145); Dennis v. Adcock, 138 Ga. App. 425, 429 (4) (226 SE2d 292); Horton v. Tingle, 113 Ga. App. 512, 513 (149 SE2d 185); Veazy v. Blair, 86 Ga. App. 721, 726 (72 SE2d 481). “ ‘No actionable liability attaches to a witness for any statement in his testimony (no matter how false or malicious it may be), unless the witness, without being asked, volunteers a false and malicious defamatory statement which is not pertinent. . . . The answers of a witness in direct response to questions by counsel ... are absolutely privileged.’ ” Horton, supra at 515. The trial court erred in refusing to give appellants’ requested charge that statements made by a witness in court proceedings, responsive to questions, are absolutely privileged and cannot form the basis for a cause of action for the tort of malicious interference with business. We cannot say as a matter of law, that the verdict of the jury for damages on the alleged tort of malicious interference with appellees’ business, was not predicated in part on appellant’s testimony in court on the action for an injunction, as alleged in the complaint and argued for by appellees’ counsel.

Judgment reversed.

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

David R. Smith, for appellants.

James 0. Wilson, Jr., for appellees.


author: Banke, Presiding Judge.

text:
    74397.
    CARR v. THE STATE.
    (357 SE2d 816)
   Banke, Presiding Judge.

Franklin Carr brings this appeal from his conviction of rape. Held:

1. The defendant first asserts that his character was improperly placed into evidence when the victim, on direct examination, recounted certain statements the defendant had made to her during her ordeal. It is well settled that evidence of what was said to the victim during the continuing course of the crime is admissible, even though it may show other criminal conduct on the part of the defendant. Ellis v. State, 176 Ga. App. 384, 386 (336 SE2d 281) (1985). Accordingly, we find no error.

2. The defendant avers that the trial court erred in charging the jury on “similar acts.” The reference to similar acts was made in the context of a charge on flight. “Contrary to appellant’s contention, this was not a charge on similar acts but a charge on flight, and the phrase ‘similar acts’ appears in the pattern criminal jury instruction on flight and has been approved by our Supreme Court. [Cits.]” Chase v. State, 179 Ga. App. 71, 72 (345 SE2d 149) (1986). This enumeration of error is consequently without merit.

3. The defendant next enumerates as error the failure of the trial court, without request, to charge the jury concerning the effect of prior inconsistent statements made by the victim. Pretermitting whether the victim actually made any prior inconsistent statements, OCGA § 5-5-24 (b) places a duty on the defendant to request jury instructions. The defendant is relieved of this duty only “in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.” Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973). The omission complained of by the defendant herein does not fall into this category; consequently, since he did not request the charge in question, he cannot complain. See Sosebee v. State, 169 Ga. App. 370, 372 (6) (312 SE2d 853) (1983).

4. In his fourth enumeration of error, the defendant claims the trial court impermissibly allowed into evidence a prior consistent statement made by the victim. At trial, the defendant read into the record, for the purpose of impeachment, a portion of the victim’s testimony from an earlier commitment hearing. The state claimed the testimony had been taken out of context, and the trial court granted the state’s request to read into evidence the portions of the victim’s testimony which immediately preceded and followed that which had been read by the defendant. We find no abuse of discretion. Indeed, the prior testimony would have been admissible even in the absence of the defendant’s actions in such regard. Where the veracity of a witness is at issue, and that witness is present at trial, under oath and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). In this case, the victim’s veracity was clearly placed in issue by the defendant. “Thus, the Cuzzort standards were met.” Patterson v. State, 180 Ga. App. 194, 195 (348 SE2d 578) (1986).

Decided May 5, 1987

Rehearing denied May 22, 1987

Griffin E. Howell III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74461.
    VUONG v. THE STATE.
    (357 SE2d 818)
   Banke, Presiding Judge.

To Ha Vuong was indicted and tried for murder but was convicted of voluntary manslaughter. The evidence showed that while working as a waiter at the Bamboo Luau Restaurant Vuong had an altercation with the victim over the quality of the service he (Vuong) had earlier rendered to him. Following this altercation, Vuong left the booth at which the victim was seated; however, he returned a few minutes later wielding a knife and fatally stabbed him. The victim was unarmed at the time. Held:

1. Vuong first enumerates as error the trial court’s refusal to allow testimony concerning prior violent acts committed by the victim against third persons. This evidence was offered for the purpose of explaining Vuong’s conduct and demonstrating that he was in reasonable fear for his own safety. While the trial court allowed evidence of the victim’s violent reputation in the community pursuant to OCGA § 24-2-2, it did not allow evidence of specific acts of violence committed by the victim against third persons because Vuong was unable to show that he had personal knowledge of any such acts. We find no error. Although “in some instances it would be unfair to the defendant not to allow him to show the jury that because of prior acts of violence between the defendant and the victim, he reasonably acted in self-defense . . . , this rule does not apply to acts of the deceased against third persons. (Cits.)” Lee v. State, 256 Ga. 410, 411-412 (349 SE2d 711) (1986).

Decided May 5, 1987

Rehearing denied May 22, 1987

Steven A. Westby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Chris Jensen, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

2. In his next enumeration of error, Vuong contends the trial court erred in refusing to correct two statements made by the district attorney in his closing argument which misrepresented the evidence. These statements were to the effect that Vuong had never seen the victim with a gun and that the struggle between the victim and Vuong had taken place entirely outside the booth in the restaurant. We conclude that such misstatements were “unlikely to have a strong impact on the jury’s independent evaluation of the evidence,” Ford v. State, 255 Ga. 81, 91 (335 SE2d 567) (1985), coming as they did at a point where the jury had heard the evidence and was in a position to recognize a misstatement when made. See Hampton v. State, 250 Ga. 805 (4), 807 (301 SE2d 274) (1983). Thus, we hold that the trial court’s failure to take remedial efforts to correct these misstatements or to grant Vuong’s motion for mistrial in response to them did not constitute reversible error under the circumstances.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    73646.
    NATIONAL UNION FIRE INSURANCE COMPANY v. JOHNSON.
    (357 SE2d 859)
   Pope, Judge.

The question presented by this appeal is whether uninsured motorist coverage was properly rejected by Frito-Lay, Inc., the named insured, on the automobile liability policy issued to it by National Union Fire Insurance Company. Plaintiff Johnson, an employee of the named insured, contends a 1984 letter from the insured to the issuing agent expressing a “desire to reject uninsured motorist coverage” in the middle of the policy term is not effective as an actual rejection of such coverage. Plaintiff further argues an issue for the jury is raised as to the effective date of a subsequent written endorsement to the policy rejecting uninsured motorist coverage for the 1985 policy year. One of the copies of that endorsement which was produced during discovery was undated; another copy was dated March 29, 1985, just one day prior to the accident which forms the basis of plaintiffs complaint. Plaintiff argues, without citation to authority, that a mid-term rejection made on March 29, 1985 would not immediately cancel uninsured motorist coverage for the pending policy term which commenced January 1, 1985.

Decided May 22, 1987.

Gene A. Major, Mark D. Belcher, for appellant.

J. Blair Craig, James E. Hardy, for appellee.

We find the June 12, 1984 letter from the insured instructing the issuing agent to make immediate changes to the automobile liability policy served as an effective rejection of uninsured motorist coverage. Such notice complies with the only statutory requirement for rejection of uninsured motorist coverage, namely, that such rejection be in writing. OCGA § 33-7-11 (a) (3); see also Blalock v. Southern Ins. Co., 180 Ga. App. 319 (349 SE2d 32) (1986); Whatley v. Universal Security Ins. Co., 177 Ga. App. 424 (339 SE2d 398) (1986). If the legislature had intended any further formal requisites for the rejection of uninsured motorist benefits, we must presume it would have specified them. Cf. OCGA § 33-34-5 (b). Once the insured makes a rejection of uninsured motorist coverage, the coverage need not be provided in a renewal policy issued to the insured by the same insurer. OCGA § 33-7-11 (a) (3). Thus, since the insured in this case made a proper rejection of uninsured motorist coverage in 1984, it was not necessary for the insured to again reject such coverage when the policy was renewed. Nevertheless, the insured reiterated its rejection of uninsured motorist coverage by endorsement to the policy during the term in which the collision in question occurred. It is not necessary for us to determine whether an issue of fact was created as to the effective date of the endorsement rejecting coverage by reason of the differences between the two copies of the documents since coverage had been rejected earlier and no further rejection was necessary.

Judgment reversed.

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


text:
    73737.
    SCOTT v. HUSSMANN REFRIGERATION, INC.
    (357 SE2d 860)
   Benham, Judge.

Appellant, both individually and doing business as Scott Food Store Equipment Company, entered into a distributorship agreement with appellee Hussmann Refrigeration, Inc., with Scott contracting to be a distributor of appellee’s merchandise. As part of the arrangement, appellant signed a promissory note and security agreement, which provided that repayment of the amount borrowed was to be made in part from proceeds appellant would generate by selling ap-pellee’s merchandise to third parties. When appellant defaulted on the contract, appellee sought to enforce its security agreement by repossessing and selling some of the collateral. Appellee subsequently sued appellant for the resulting deficiency and for various repurchased contracts and open accounts. Appellant counterclaimed, alleging appellee breached the contract. At trial, appellant moved for a directed verdict on appellee’s claims, and was granted a partial directed verdict on the claims involving repossession and sale of certain collateral. The jury returned a verdict in appellee’s favor on the remaining claims, and appellant filed this appeal after his motion for new trial on the main claims was denied. We affirm.

1. Appellant’s first enumeration is that the trial court should have granted his motion for a directed verdict against appellee in its entirety since all of appellee’s claims for deficiency judgment were barred, and the remaining claims were more than offset by credits appellee had given on appellant’s accounts. We disagree. There was evidence that some of appellee’s claims did not involve repossession and sale of collateral and so did not violate the notice provision of OCGA § 11-9-504. It was incumbent upon the jury to determine the extent to which those claims were offset by the credits to appellant’s account. “If there be any evidence to support the verdict, denial of the motion [for directed verdict] is proper. [Cit.]” Maloy v. Planter’s Whse. &c. Co., 142 Ga. App. 69 (2) (234 SE2d 807) (1977). The trial court did not err in ruling as it did.

2. Appellant claims that the trial court should have directed a verdict in his favor on the promissory note. The note provided that appellant was to make payments to appellee from proceeds of appellant’s refrigeration and other equipment sales. Citing Wilson v. Morrison, 29 Ga. 269 (1859), appellant argues that the note required payment from a particular source, and that since payment from that source was impossible, the note was rendered uncollectible and a directed verdict was proper. We disagree. Appellant’s brief does not cite anything in the record to show that payment from the source in question has been rendered impossible, and so his contention is unsupported. It appears that the only reason appellant could not pay back the debt from the source mentioned in the promissory note was that he no longer worked for appellee and so was not in a position to make future sales. This reason is insufficient to excuse appellant’s repayment of the debt he incurred. “[I]mpossibility of performance of a contract covenant personal to the promissor does not excuse nonperformance. [Cit.]” Phillips v. Marcin, 162 Ga. App. 202, 204 (290 SE2d 546) (1982). Moreover, Wilson, supra, is inapplicable to the case before us, as the note in question allows appellee to declare the amount of the unpaid balance of the loan due and payable upon the occurrence of any event of default as set forth in the accompanying security agreement. The record indicates that appellant did default, and therefore remained liable for the unpaid balance, whether he sold any merchandise or not. The trial court did not err in failing to direct a verdict in appellant’s favor on this issue.

Decided May 22, 1987.

Alfred N. Corriere, for appellant.

Stanley M. Lefco, for appellee.

3. Appellant complains that the trial court’s charge was confusing because it instructed the jury concerning the requirements of a commercially reasonable sale even though the trial court had directed a verdict in appellant’s favor regarding certain deficiency claims. Since the record shows that appellant requested that the trial court give the instruction, appellant cannot now complain that it was given in error, whether it was confusing or not. Carroll v. Hayes, 98 Ga. App. 450 (2) (105 SE2d 755) (1958).

Judgment affirmed.

Banke, P. J., and Corley, J., concur.


text:
    73817.
    LEWIS v. THE STATE.
    (357 SE2d 862)
   Birdsong, Chief Judge.

Johnnie C. Lewis was convicted of two counts of statutory rape upon his 12-year-old stepdaughter. He was sentenced to two concurrent 6-year periods of incarceration. Lewis brings this appeal enumerating a single error. Held:

Lewis does not dispute the sufficiency of the evidence to warrant or support the conviction. His contention of error is based upon the admission into evidence of an oral confession which he contends was not disclosed to him in response to a timely demand for disclosure during discovery under the provisions of OCGA § 17-7-210. An examination of the record reveals that Lewis was arrested for the acts of misconduct and taken to the local jail. There he was advised of his Miranda rights and that his stepdaughter had accused him of two separate acts of statutory rape. When first confronted with the accusation by the chief of police, Lewis denied any misconduct, but when told that the stepdaughter enumerated in detail two separate acts, Lewis agreed to recount his recollection of the acts. These recount-ings, we observe parenthetically, are remarkably similar to the memory of the victim as to the respective acts. Lewis was asked if he wished to write out the statement or have the officer write the statement as Lewis verbally recounted it. Lewis elected to have the officer write down the conversation. In doing so, the officer wrote the confession in the third person rather than in the first person, thus clearly reflecting upon the face of the two documents (one each for each act) that the officer was summarizing what was being stated by Lewis. A witness was present at this interrogation.

In response to the OCGA § 17-7-210 demand, the State afforded Lewis a copy of the two statements prepared by the police chief and a summary of the statement of the witness to the interrogation, giving her version of her recollection of Lewis’ statements. No written summary of the chief’s testimony concerning Lewis’ statements was given to Lewis in response to the demand.

Lewis now contends that though he was afforded copies of his written statements, he was not given a copy of the oral statement as mandated by the discovery statute. Thus he contends he <was not placed on notice that there was an oral statement or that the State intended to use such a statement. It is also relevant to observe that apparently because of a discrepancy as to date, there was a possibility that a Miranda warning did not precede the taking of the written statements or that a promise of reward was involved in the taking of the written statements, the trial court ruled the two written statements would not be presented to the jury. Nevertheless, the trial court found the oral statements to be voluntary and consistent with Miranda protections and authorized the officer to recount the contents of the oral statements.

Contrary to Lewis’ contention, it is clear that the two written statements furnished by the State in response to the discovery motion could have had no effect other than to show that Lewis did not personally prepare a written statement in his own handwriting or language. The statements furnished being stated in the third person manifestly indicated that the officer was listening to an oral statement and the written statements could only reflect an oral statement. Had the State sought to introduce evidence of an admission or confession substantially different than the one reflected in the police chiefs in-court testimony and confirmed in the two written documents given to Lewis prior to trial, this objection may well have more merit.

The purpose of the discovery statute (OCGA § 17-7-210) is to inform the defendant in writing of all relevant and material portions of his own statement that the State may rely upon to the defendant’s disadvantage. White v. State, 253 Ga. 106, 109 (317 SE2d 196). Here even though there was no direct reference by the State that Lewis made an oral statement to the officer and that the State intended to rely solely on the oral statement, it is clear the purpose of the disclosure statute was satisfied, as Lewis was fully notified by the State of the substance of the oral statement the State indeed did use in the trial of the case. See McCarty v. State, 161 Ga. App. 444, 445 (288 SE2d 249). Moreover, Lewis himself conceded in his brief that the oral statement he made to the chief of police was the basis of the two written statements, copies of which he was furnished. Under the facts of this case, we are satisfied there has been a substantial compliance with the requirements of the discovery statute. Tyson v. State, 165 Ga. App. 22, 23 (1) (299 SE2d 69). There was no error in the admission of the oral statement.

Decided May 22, 1987.

Donald W. Osborne, for appellant.

Edwin T. Cotton, District Attorney, for appellee.

Judgment affirmed.

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


text:
    73962.
    CRUMP v. THE STATE.
    (357 SE2d 863)
   Beasley, Judge.

Defendant appeals his conviction of two counts of child molestation (OCGA § 16-6-4) on the general grounds, citing OCGA §§ 5-5-20 and 5-5-21, which apply to motions for new trial. No motion for new trial was made in this case. Defendant urges the novel approach that this court should directly sit in judgment of whether a new trial should be granted on the general grounds. The reasons given for this proposed bypass are that trial courts rarely grant new trials, thus frustrating legislative intent; that this court has the same resources with which to make such a decision; and that when this court reviews a trial court’s denial of new trial it is hampered by the very narrow “abuse” rule which would obviously not apply if this court considered a new trial initially. The approach is fraught with impediments.

First, the legislature has given the discretion for new trial based on the general grounds to the “presiding” judge. OCGA §§ 5-5-20 and 5-5-21. Second, this court cannot observe and hear the witnesses and thus cannot discern their credibility or weigh the evidence, as can the trial judge as the “thirteenth juror.” Barnes v. State, 175 Ga. App. 621, 623 (1) (334 SE2d 205) (1985), rev’d in part on other grounds, 255 Ga. 396 (339 SE2d 229) (1986). Third, this court could not avoid the “abuse” rule, because it is exclusively a court of review of claimed trial court errors. Frymyer v. State, 179 Ga. App. 391, 393 (3) (346 SE2d 573) (1986). Where the trial court has not been asked to rule, there is nothing to review. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985).

Thus, this court cannot entertain what amounts to an original motion for new trial. None having been made below, whether or not the general grounds warrant a new trial is not before us. Daniel v. State, 180 Ga. App. 687, 688 (1) (350 SE2d 49) (1986). However, as Daniel regards it, the question of the sufficiency of the evidence is appropriate for our consideration. Daniel, supra., Div. 2.

Defendant asserts that the “any evidence” standard for appellate review should be replaced by the “beyond a reasonable doubt standard,” in considering sufficiency of the evidence. The latter having been the constitutionally mandated standard of review under the federal constitution since Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); e.g., Syms v. State, 175 Ga. App. 179 (332 SE2d 689) (1985), see Daniel v. State, supra, we examine the evidence under it.

We view the evidence in a light most favorable to the jury’s verdict. Hudgins v. State, 125 Ga. App. 576, 577 (188 SE2d 430) (1972). Defendant was charged with molesting his two granddaughters, Tiffany, age 5, and Sharonda, age 11 months. The mothers of the two children, the daughters of defendant, both testified. Tiffany’s mother stated that on the weekend of April 4-6, 1986, she left her daughter with her parents. Sharonda was also staying there. The next weekend, the two girls were left alone with defendant while the daughters took their mother to the store. That night, while bathing Tiffany, her mother noticed her vagina was red and the child complained that it burned.

Tiffany told her mother that defendant had “put his thing in her tutu” and in Sharonda’s while she and Sharonda were staying with him. Both children were then examined by the mothers; Sharonda’s genital area was also irritated. The children were then taken to a medical emergency center where a doctor found tears and healing ulcers in both children’s vaginas. The doctor testified that the tears were consistent with sexual molestation. Tiffany’s testimony was placed in evidence through her mother, with the only objection being that the defense counsel doubted the reliability of it. The court fully complied with OCGA § 24-3-16.

One of defendant’s daughters, Tiffany’s mother, testified she had been sexually abused by defendant when she was five years old. Her sister testified defendant had threatened to sexually abuse her.

Defendant testified that the incidents did not take place and offered that a neighbor child had abused the children.

The weight of the evidence and the credibility of the witnesses are questions for the factfinder. OCGA § 24-9-80; King v. State, 178 Ga. App. 343 (1) (343 SE2d 401) (1986). Here the jury chose to believe the mothers of the children and the 5-year-old child. Upon application of the proper test, the evidence supports the verdict. See Bell v. State, 180 Ga. App. 170 (1) (348 SE2d 712) (1986).

Decided May 22, 1987.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, for appellee.

Defendant filed a handwritten notice of appeal which contains in it allegations of ineffective trial counsel. Although not argued in the brief submitted by new appointed appellate counsel, we note that the matter is not ripe for consideration by this court, not having been considered by the court below. Lynn v. State, 181 Ga. App. 461, 462 (1) (352 SE2d 641) (1987).

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.