author: Blackburn, Presiding Judge.

text:
    A99A0979.
    CLARK v. THE STATE.
    (520 SE2d 245)
   Blackburn, Presiding Judge.

Alvin Durand Clark appeals his convictions, following a jury trial, for theft by receiving a motor vehicle, forgery in the first degree, and giving a false name to a law enforcement officer. Clark contends that: (1) the evidence was insufficient to support the verdict; (2) the trial court improperly charged the jury on forgery in the first degree; (3) the trial court erred by failing to merge the convictions for forgery in the first degree and giving a false name; (4) the trial court improperly considered his prior criminal record during sentencing; and (5) he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

1.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Clark] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that Sergeant Robert Montgomery pulled Clark over in response to a dispatch describing him as the suspect of an attempt to fraudulently return items he did not purchase to a department store in exchange for a cash refund. Montgomery asked Clark for his driver’s license and proof of insurance, and Clark handed him a rental contract for the vehicle that he was driving and an illegally altered driver’s license. Both the rental agreement and the license purported to have been issued to Samarahlon Josephus Akins. Montgomery then discovered that the vehicle Clark was driving had been reported as stolen from the rental company because it had never been returned. Clark’s proper identification was found on the front seat of the car. This evidence is more than ample to support Clark’s convictions. See Jackson, supra.

2. Clark contends that the trial court erred in its charge to the jury regarding forgery in the first degree because it failed to set forth a definition for the term “writing.”

A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

OCGA § 16-9-1 (a).

In turn, OCGA § 16-9-3 provides that the term “‘writing’ includes, but is not limited to, printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.”

Even assuming that the trial court erred by failing to define “writing,” there was no harm to Clark. Both the driver’s license and the rental agreement clearly fall within the expansive definition of OCGA § 16-9-3, which merely serves to illustrate examples of what may constitute a writing without attempting to set forth a definitive inclusive list.

3. Clark contends that the trial court erred by failing to merge his convictions for giving a false name and forgery in the first degree.

The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.

(Citation omitted.) Taylor v. State, 219 Ga. App. 475, 478 (4) (465 SE2d 473) (1995).

While the charge of giving a false name requires that the fraud be perpetrated against a law enforcement officer, the charge of forgery in the first degree does not. As such, in this case, Clark’s crime of forgery was completed when he used a false name to obtain the rental car he was driving, long before he ever gave the altered license and rental agreement to Sergeant Montgomery. Moreover, we note that a forgery has to involve a writing, while giving a false name does not. Accordingly, the trial court did not err by not merging Clark’s convictions for forgery in the first degree and giving a false name to a law enforcement officer.

4. Clark contends that the trial court improperly considered his prior criminal record during his sentencing. At sentencing, the prosecutor stated:

Your honor, we think that under the circumstances — the totality of the circumstances of this case, that the defendant was engaged in activities involving the use of different names and some sort of scams, we think that a long period of probation is appropriate due to the nature of the activity and the conduct, and we are asking for the period of incarceration based on that and, as the Court has previously heard, with regard to the defendant’s criminal history.

Other than this statement made by the prosecutor, the record does not show that the State offered any evidence of Clark’s past convictions, and there is no evidence that the trial court considered any such convictions. Clark, who was represented by counsel, did not object to the prosecutor’s statement. Inasmuch as this matter was heard by the trial judge and not a jury, who has the knowledge to separate appropriate arguments from inappropriate ones, the error is not fatal. As such, Clark has failed to show error and harm in this regard, and this enumeration of error lacks merit.

Vague references to a defendant’s criminal history, which are not supported by the evidence, are entirely inappropriate. Under the facts of this case, the reference does not require reversal.

5. Clark contends that his trial counsel rendered ineffective assistance by: (1) failing to investigate his case and failing to consider all available defenses prior to trial; (2) failing to object to the State’s general reference to his prior record during sentencing; (3) failing to call him to testify at a motion to suppress hearing; (4) failing to request a jury charge on OCGA § 24-9-85 (b) regarding the false swearing of a witness; (5) failing to request that the charges of giving a false name and forgery in the first degree be merged; and (6) failing to invoke a ruling on a demurrer to the charge of forgery in the first degree.

Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), sets forth the standard for determining whether trial counsel’s performance was so deficient as to deny a defendant effective assistance of counsel under the Sixth Amendment. One asserting such an error must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness [(i.e., that counsel performed deficiently);] and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 418, 419-420 (427 SE2d 787) (1993). Furthermore,

[t]here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

(Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996). “ ‘The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ ” Id.

Clark claims that his counsel’s unpreparedness is shown by said counsel’s request for a continuance of his case. However, the record does not support Clark’s claim that his attorney, who spent approximately 19 hours preparing for trial, failed to appropriately prepare his case. The remainder of Clark’s claims relate to his counsel’s trial strategy and, as such, do not support his contention that his convictions must be reversed. Clark was “entitled to a fair trial but not a perfect one, for there are no perfect trials.” (Punctuation omitted.) Green v. State, 218 Ga. App. 648, 651 (3) (b) (463 SE2d 133) (1995).

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.

Decided June 28, 1999

Reconsideration denied July 21, 1999

Lenzer & Lenzer, Robert W Lenzer, Thomas R Lenzer, for appellant.

Daniel J Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A99A1097.
    GIBBS v. THE STATE.
    (519 SE2d 511)
   Blackburn, Presiding Judge.

Dennis Dewayne Gibbs pled guilty to burglary, false imprisonment, armed robbery, and possession of less than one ounce of marijuana. He subsequently moved for an out-of-time appeal, contending (1) that he received ineffective assistance of counsel and (2) that his guilty plea was not knowing and voluntary because he was incompetent at the time it was given. The trial court denied Gibbs’ motion, and Gibbs appeals, raising the same contentions argued below and further contending that the trial court did not act impartially in denying his motion. For the reasons set forth below, we affirm.

1. (a)

An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken. It is the remedy for a frustrated right of appeal. Accordingly, [Gibbs’] motion for an out-of-time appeal was properly denied unless he had a right to file a timely direct appeal which was frustrated by the ineffective assistance of counsel.
A criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial. However, [Gibbs’] judgments of conviction and sentences were entered after he pled guilty. A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Accordingly, the denial of [Gibbs’] motion for an out-of-time appeal can be reversed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.

Decided June 17, 1999

Reconsideration dismissed July 21, 1999

Dennis D. Gibbs, pro se.

(Citations and punctuation omitted.) Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Gibbs has failed to satisfy this burden because the issues he wishes to raise on appeal cannot be resolved by facts in the record before this Court.

Moreover, we note that, at his guilty plea hearing, Gibbs indicated that he was completely satisfied with the performance of his attorney and that he did not plan to pursue claims of ineffective representation in the future. For all of the preceding reasons, therefore, the trial court did not err in denying Gibbs’ motion for an out-of-time appeal based on claims of ineffective assistance of counsel.

(b) Nor did the trial court err in denying Gibbs’ motion based on his claims that he was incompetent at the time that his guilty plea was made.

Mental competency is a question of fact. [Gibbs has pointed to no evidence in the record] to resolve the question of [his] competence to enter a guilty plea. Therefore, the issue which [Gibbs] seeks to raise in his out-of-time appeal cannot be resolved only by reference to facts contained in the record. Since [Gibbs] had no right to file even a timely notice of appeal from the judgment of conviction entered on this guilty plea, he was not entitled to be informed of a nonexistent “right” to appeal. It follows that the trial court correctly denied [Gibbs’] motion to file an out-of-time appeal in this case.

(Citations, punctuation and emphasis omitted.) Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995).

2. Gibbs complains that the trial court was biased against him; however, his claim is not supported by the record. In essence, he bases his argument on the fact that the trial court did not do as he asked. This enumeration is meritless, and the record shows that the trial court did not abuse its discretion in denying Gibbs’ motion for an out-of-time appeal.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

David McDade, District Attorney, John G. Westrick, Assistant District Attorney, for appellee.


text:
    A99A1352.
    BROWN v. OHIO CASUALTY INSURANCE COMPANY.
    (519 SE2d 726)
   Blackburn, Presiding Judge.

In this declaratory judgment action, Louise Brown appeals from the grant of summary judgment to Ohio Casualty Insurance Company (Ohio Casualty) on her claim for bad faith penalties and insurance proceeds resulting from coverage damage to her residence and personal belongings caused by an act of vandalism. As the policy excludes damage caused intentionally by an insured, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the evidence shows that Brown and her husband, Johnny Mack Brown, were named insureds on a homeowners policy issued by Ohio Casualty, policy number DHO 0840 529. The policy contained an “intentional loss exclusion” which provided in relevant part:

(1) We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. . . . (h) Intentional loss, meaning any loss arising out of any act committed: (1) by or at the direction of an “insured”; and (2) with the intent to cause a loss.

The Browns had marital difficulties and separated. In May 1995, the Browns entered into a separation agreement in which Johnny Mack Brown agreed to quitclaim his interest in the property at 737 Miquel Drive to Louise Brown. Louise Brown agreed to assume all indebtedness for the home and agreed to make the monthly mortgage payments. Johnny Mack Brown executed a quitclaim deed in May, but it was not filed with the county.

On October 21,1995, Johnny Mack Brown broke into the insured home and inflicted damage to the residence and to some of Brown’s personal property. At the time of the loss, the Browns were not divorced. Both Brown and Johnny Mack Brown were still on the deed to the insured residence. Additionally, both Brown and Johnny Mack Brown were still jointly and severally liable on the mortgage.

On October 24, 1995 the Browns were divorced. On October 30, 1995 the quitclaim deed was filed in DeKalb County by which Johnny Mack Brown relinquished his title to the insured property to Brown.

After the loss, Brown made a claim on the homeowners policy issued by Ohio Casualty. Ohio Casualty filed a declaratory judgment action asking the court to determine whether the intentional loss exclusion barred coverage of the claim. Brown counterclaimed for bad faith penalties pursuant to OCGA § 33-4-6.

1. Brown argues that the trial court erroneously granted summary judgment to Ohio Casualty on her claim for bad faith penalties brought pursuant to OCGA § 33-4-6. As an initial matter, we note that Brown has failed to identify in the notice of appeal the trial court’s order granting summary judgment to Ohio Casualty in the bad faith claim. See OCGA § 5-6-37 (a notice of appeal must contain a concise statement of the judgment or order which entitles the appellant to take an appeal). However, as Brown has listed the judgment in her enumerations of error and argued the matter in her briefs, we will consider her appeal on this matter. OCGA § 5-6-48 (f).

An insurance company is liable for penalties under OCGA § 33-4-6 when it fails to pay a covered loss within 60 days after a demand for payment has been made and there has been a finding that the refusal to pay was in bad faith. The purpose of the section is to penalize insurers that delay payments without good cause. As the section imposes a penalty, it is strictly construed; consequently, a proper demand for payment is essential to recovery. In this sense, a demand for payment must be made when immediate payment is in order.

(Citations omitted.) Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (1) (448 SE2d 275) (1994).

Brown failed to make a demand for payment prior to filing suit. “[A] failure to wait at least 60 days between making demand and filing suit constitutes an absolute bar to recovery of a bad-faith penalty and attorney fees under this statute.” Blue Cross & Blue Shield &c. v. Merrell, 170 Ga. App. 86, 87 (316 SE2d 548) (1984). Brown argues that she submitted a claim for the loss; however, “a proof of loss is not a demand for payment thereof under the plain provisions of the statute. . . . [The] statute requires the insured to make an actual demand on the insurer for payment of her loss 60 days before filing a suit therefor.” Guarantee Reserve Life Ins. Co. v. Norris, 219 Ga. 573, 575 (134 SE2d 774) (1964). The trial court properly granted summary judgment to Ohio Casualty on Brown’s bad faith claim.

2. Brown argues that the trial court erred by granting summary judgment to Ohio Casualty on her coverage claim contending that genuine issues of material facts remain to be decided. Brown argues first that her husband was not an insured on the policy. This argument is meritless as Johnny Mack Brown is a named insured on the policy.

Brown next argues that the policy was not enforceable against her estranged husband because he did not have an insurable interest in the property. See OCGA § 33-24-4 (b). Brown relies on the unfiled quitclaim deed executed in May 1995, although not recorded until after the vandalism took place. “ ‘[I]nsurable’ interest means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” OCGA § 33-24-4 (a). Thus,

[t]itle is not the sole test for determining an insurable interest. . . . The test of insurable interest in property is whether the insured has such a right, title, or interest therein, or relation thereto, that he will be benefited by its preservation and continued existence, or suffer a direct pecuniary loss from its destruction or injury by the peril insured against. This Court has held that, even if one does not have title to property, if he is indebted on such property and the property stands as security for such indebtedness, he has an insurable interest.

(Punctuation omitted.) Integon Gen. Ins. Corp. v. Gibson, 226 Ga. App. 152, 154 (1) (485 SE2d 576) (1997).

Despite relinquishing title to the property to Brown, Johnny Mack Brown retained an insurable interest in the property. At the time of the loss, Johnny Mack Brown, a grantee on the warranty deed, was liable under the mortgage assumption agreement and the security deed. Consequently he had an insurable interest in the property as of the date of the loss. The policy is enforceable as to Johnny Mack Brown.

Brown also disputes that her husband damaged the insured residence, contending there is no evidence he did so. The identity of the person who damaged the property was the subject of a police report filed by Brown at the time of the vandalism and, subsequently, requests for admission served on Brown. Brown gave the police a detailed report describing her estranged husband’s damaging of the property, including what he used to smash windows, what items he took and the direction he took when he fled the home. Yet, when she responded to the requests for admission, Brown could not admit or deny that her estranged husband had caused the damage, asserting that she had not seen the vandal.

On motion pursuant to OCGA § 9-11-36 (a) (3), Ohio Casualty asked the trial court to determine the sufficiency of the answers. The trial court found that Brown’s responses to the requests were evasive and nonresponsive and deemed the requests admitted. Brown did not move to withdraw the admissions. Therefore, Brown has admitted that Johnny Mack Brown intentionally caused the damage for which Brown has made a claim under the policy. Id.

Having determined that Johnny Mack Brown intentionally damaged the property, we consider whether the intentional acts exclusion bars recovery by Brown. Brown contends that, as an innocent co-insured, she should be allowed to recover despite her estranged husband’s acts. Whether Brown can recover under the policy “depends on whether the parties to the contract intended the obligations of the co-insureds to be joint or several.” Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (1) (299 SE2d 561) (1983).

We look to the language of the contract to determine the intent of the parties. The intentional act exclusion excludes any intentional loss committed by “an insured.” We have previously held that the phrase “an insured” creates a joint obligation between co-insureds. Fireman’s Fund Ins. Co. v. Dean, 212 Ga. App. 262 (1) (441 SE2d 436) (1994). Consequently, the exclusion is enforceable against Brown, and the claim is barred. Brown relies on Richards, supra, to support her contention that the obligations under the policy are several. As that case interpreted a different phrase, “the insured,” its interpretation is not applicable, and her reliance is misplaced. See Fireman’s Fund Ins. Co., supra.

Decided June 23, 1999

Reconsideration denied July 21, 1999

James B. Drew, Jr., for appellant.

McPhail & Associates, Jon B. McPhail, Linda H. Ambrose, for appellee.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       Both Brown and Johnny Mack Brown had assumed the mortgage of the sellers of the property.

       Johnny Mack Brown was also named in the declaratory judgment action, but he failed to answer.

       Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from.
      OCGA § 5-6-48 (f).

       Although we rely on Fireman’s Fund Ins. Co., supra, which interpreted the same phrase presented here, that case had a different result due to a conflict with OCGA § 33-32-1 (a). In that case, the court held that OCGA § 33-32-1 (a), which governs standard fire policies, mandated finding several obligations as to each co-insured. Since OCGA § 33-32-1 (a) applies only to fire coverage, there is no conflict in the present case.


text:
    A99A1607.
    MOGHANGARD et al. v. KESHAVARIZ et al.
    (520 SE2d 59)
   Blackburn, Presiding Judge.

In this partnership dispute, Max and Shahrzad Moghangard, appeal from a jury verdict finding them liable to Siamek and Soraya Lamei pursuant to an oral partnership agreement entered by them. On appeal, the Moghangards contend that the trial court erred in denying their motion for new trial on the grounds that the evidence was insufficient to support the verdict against Shahrzad specifically. For the reasons set forth below, we affirm.

“[A] judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Punctuation omitted.) Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990). “In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence.” (Punctuation omitted.) Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 197 (1) (b) (450 SE2d 427) (1994).

Viewed in the light most favorable to the verdict, the record shows that the Moghangards and the Laméis were clothing vendors at the Atlanta Apparel Mart. For economic reasons, the Moghan-gards and the Laméis decided to consolidate their businesses, forming a partnership for a business they named D’Zone. The parties, who had previously conducted their businesses from separate showrooms, began to operate from a single showroom. During the life of the partnership, Shahrzad invested a significant amount of money into the business. Subsequently, the Laméis and the Moghangards decided to dissolve the partnership, and the Laméis orally agreed to purchase the Moghangards’ interest. Following this agreement, the Moghangards locked the Laméis out of the showroom in which they had been working, and the Moghangards demanded additional money for their share in the partnership. The Laméis then sued the Moghangards for damages and conversion, and a jury returned a verdict in their favor.

On appeal, the Moghangards contend that there was no evidence on which the jury could determine that Shahrzad was a partner and could therefore be liable for partnership debts to the Laméis. This contention is misplaced.

The evidence showed that, although Shahrzad was not privy to the original discussions in which the partnership was proposed, she did play a role in its operations. In response to a question whether she was a partner, Shahrzad answered equivocally: “Me and my husband, it doesn’t make any difference, but I invest money in that business.” When the partnership attempted to incorporate, Shahrzad was listed as the Chief Executive Officer on the business license. In addition, Shahrzad was an authorized signer on D’Zone’s bank account. When asked about this, Shahrzad testified: “Because I invested money towards the business, I wanted to have something to do with it.” A number of checks issued from the partnership were made payable to Shahrzad and were identified as “salary” in the “for” lines. Furthermore, Shahrzad participated in the negotiations for dissolution of the partnership. Finally, Shahrzad assisted D’Zone in selling and distributing its merchandise at road shows.

Based on this evidence, the jury could have determined that Shahrzad was an active partner in the partnership, not merely a passive investor. In addition, there was also some evidence indicating that Shahrzad discussed locking the Laméis out of the showroom with her husband. Therefore, as there was some evidence supporting the jury’s verdict in this case, the trial court did not err in denying the Moghangards’ motion for a new trial.

Although there was also some evidence in the record supporting the Moghangards’ contention that Shahrzad was a passive investor, which the Moghangards argue vehemently, such evidence does not warrant a different result in this case. On appeal, this Court must concentrate on the evidence which supports the verdict, not that evidence which undermines it. Pirkle, supra.

Decided June 28, 1999

Reconsideration denied July 21, 1999

Christopher J. McFadden, for appellants.

Max Moghangard, pro se.

George Robertson, Jr., for appellees.

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.

       Shahrzad also owned a jewelry business along with her brother which was also located in the Atlanta Apparel Mart.

       Although the evidence was disputed, Shahrzad contended that she put at least $40,000, which she characterized as loans, into the business.

       Shahrzad counterclaimed for repayment of the loans she claimed she made to the partnership.

       Although the Moghangards make no similar argument with regard to Max, the evidence of record supports the jury’s verdict against him.

       Shahrzad contended that these checks were repayments for loans she made to the partnership.


author: Smith, Judge.

text:
    A99A0899.
    FORD v. THE STATE.
    (520 SE2d 923)
   Smith, Judge.

Gary Ford was indicted by a Clarke County grand jury on a charge of robbery by intimidation. He was tried by a jury, which found him guilty as charged. His motion for new trial was denied, and he appeals, contending that the evidence was insufficient to support the verdict and that the trial court erred in admitting evidence of a similar transaction. We find no merit in these contentions, and we affirm the judgment.

1. Ford contends the State presented insufficient evidence showing that he was the person who committed the robbery in issue, which was the only contested issue at trial. We do not agree.

The evidence presented at trial showed that a convenience store on North Avenue in Clarke County was robbed at about 10:00 p.m. on January 23,1997, when a man entered the store wearing a dark blue hooded sweatshirt pulled tight around his face. Two clerks were working in the store that night. The man came up to one of the clerks and told her to give him all her money. His hands were inside his shirt, as though holding a weapon to the clerk’s back. He grabbed her arm, took her to the cash register, and instructed her to open it. The clerk complied, and the robber took the money and left. The clerk testified that she looked at the robber’s face when they were at the register, and she recognized the robber as Ford, because they'had lived in the same area when they were younger. The other clerk also testified that she was able to see the robber’s eyes and nose, and both clerks picked Ford from a photo lineup shown to them several days later. The officer who showed the clerks the photo lineup testified that neither woman displayed any hesitation in picking Ford’s picture. Both clerks identified Ford at trial, as well, and the one who recognized Ford testified she was “one hundred percent certain” he was the robber.

Although Ford argues that the identifications were “flawed and problematic” because neither woman had an adequate opportunity to look at the robber’s face, “the accuracy of eyewitness identification is within the exclusive province of the jury. [Cit.]” Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267) (1996). The evidence was sufficient to authorize Ford’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Ford asserts that the trial court erred in admitting evidence of a robbery for which Ford was convicted in 1992.

To make similar transaction evidence admissible, the State must make three affirmative showings: that it is offered for a proper purpose, that sufficient evidence exists that the defendant committed the similar offense, and that sufficient similarities exist between the similar transaction and the charged offense so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). Ford argues that because his defense was alibi and identity was the only contested issue, the trial court erred in admitting similar transaction evidence for the purpose of showing “plan, scheme, bent of mind, course of conduct.”

But even when only the perpetrator’s identity is in issue, the State has a duty to prove every element of its case beyond a reasonable doubt. And here, one element of the charged offense was intimidation. In the charged offense, evidence showed that the robber intimidated the victim by holding his hand under his shirt as though he had a weapon. In the similar transaction, he also intimidated the victim. In that case, he held a baseball bat. The similar transaction therefore shows a scheme, plan, or course of conduct consisting of intimidating victims and robbing them. The first prong of the Williams test was therefore satisfied.

Ford does not challenge the State’s compliance with the second portion of the test since the State introduced a certified copy of Ford’s conviction of the similar transaction. We find no merit in his contention that the offenses were not sufficiently similar to satisfy the third prong of the test. Ford correctly notes that a greater degree of similarity is required when the other crime is introduced to show identity. But as noted, although the similar transaction in this case bore on the issue of identity, it was introduced for the stated purpose of showing Ford’s scheme, plan, and course of conduct.

Moreover, numerous similarities exist between the 1992 robbery and the charged crime. Both robberies were of convenience stores, and both were located on the same street and about one-half mile from Ford’s home. In both crimes, the robber was dressed in a hooded sweatshirt pulled tight about his head. In both, the robber stepped behind the counter and took the cash. Although some differences exist between the two robberies, no requirement exists that they be identical in every way. Davis v. State, 226 Ga. App. 83, 87 (485 SE2d 508) (1997). The trial court did not err in admitting evidence of the prior robbery.

Decided July 21, 1999.

John W. Donnelly, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


author: Barnes, Judge.

text:
    A99A0948.
    WHISENANT v. THE STATE.
    (521 SE2d 204)
   Barnes, Judge.

Randy Whisenant was arrested and charged with violating the Georgia Controlled Substances Act by possessing cocaine. He moved the trial court to suppress the cocaine evidence on the ground that he had been improperly seized before he was searched, and the court denied the motion. Whisenant agreed to a bench trial, stipulating that venue was proper and that the results of crime lab testing showed cocaine residue in a crack pipe taken from his pocket. The trial court found him guilty, and he appeals the denial of his motion to suppress. We affirm.

The arresting officer testified that he was patrolling in his marked police car when he saw Whisenant and another man sitting on a retaining wall in what was known as an “extremely high crime, high drugs” area. He stopped his cruiser because the police had received frequent complaints about strangers in the front yards in the area and asked Whisenant and his companion if they lived there. They answered no, and he asked if they had any identification on them. They again answered no, and he asked if they had “any dope, any guns, anything” on them. Whisenant answered, “I got a shooter in my pocket,” a “shooter” being anything used to smoke crack. The officer got out of his car, patted down Whisenant, and found a clear glass tube with a copper pad in the end. The officer arrested Whise-nant, and subsequent testing revealed that the “shooter” contained cocaine residue.

Since the evidence is uncontroverted and neither party questions the officer’s credibility, we review de novo the trial court’s application of search and seizure law. to the undisputed facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) State v. Jackson, 201 Ga. App. 810, 813 (2) (412 SE2d 593) (1991).

Whisenant argues his encounter with the police officer was a brief “seizure” that fell within the second tier, and that the officer had no reasonable suspicion that warranted his stop and search. The State argues, on the other hand, that this incident was a first-tier citizen-police encounter involving no coercion or detention.

A police officer who questions an individual about his identity is merely conducting a first-tier citizen-police encounter that does not raise Fourth Amendment concerns. Aranda v. State, 226 Ga. App. 157, 158-159 (1) (486 SE2d 379) (1997). Therefore, the issue in this case boils down to whether the officer’s third question, asking Whise-nant if he had “any dope, any guns, anything” on him, constituted a second-tier brief seizure. If it does, then the mere fact that Whise-nant was sitting in a high-crime, high-drug area does not constitute a “reasonable suspicion” that would support a brief seizure. See Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997). If asking the third question does not constitute a seizure, then Whisenant himself provided the probable cause for his subsequent arrest and search (see OCGA § 16-13-32.2), and the trial court properly declined to suppress the evidence.

A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Decided July 21, 1999.

Clarke & Anderson, James S. Anderson, for appellant.

Patrick H. Head, District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) State v. Davis, 206 Ga. App. 238 (424 SE2d 878) (1992).

In Davis, two police officers walked up to three men standing in a “well-known drug area.” In response to a question, Davis said he did not have any drugs and then gave his consent to being searched. We held that “Davis was not seized within the meaning of the Fourth Amendment. Rather, the encounter was simply a communication between the police and Davis involving no coercion or detention and therefore without the compass of the Fourth Amendment.” Id. at 239.

The evidence before us in this case shows the police officer stopped to question Whisenant in an “extremely high crime, high drugs” area. The officer was in his police car, separated from Whise-nant by a traffic lane, speaking through an open window. He used a conversational tone of voice, did not draw his weapon, and did not get out of the car until Whisenant said he had a shooter in his pocket. The evidence supports the conclusion that Whisenant was not seized when the police officer questioned him. Accordingly, the trial court did not err in denying Whisenant’s motion to suppress.

State v. Williams, 225 Ga. App. 736 (484 SE2d 775) (1997), cited by Whisenant to support his argument that he was illegally seized, is distinguishable. In Williams, we upheld the trial court’s factual determination that Williams did not voluntarily consent to a search conducted without articulable suspicion or probable cause. Consent is not an issue in this case; the issue is whether Whisenant was “seized” before the search.

Judgment affirmed.

Blackburn, P. J, and Ellington, J., concur.

       While Whisenant’s enumeration of error claims the evidence should have been suppressed due to an illegal stop and search, he does not argue in any detail that the officer’s search subsequent to the questioning violated the Fourth Amendment.


author: Blackburn, Presiding Judge. Eldridge, Judge, Barnes, Judge,

text:
    A99A0174.
    EVANS TIMBER COMPANY, INC. v. CENTRAL OF GEORGIA RAILROAD COMPANY.
    (519 SE2d 706)
   Blackburn, Presiding Judge.

Evans Timber Company, Inc. (Evans Timber) appeals the trial court’s grant of directed verdict to Central of Georgia Railroad Company (Central) on its cross-claim. The trial court found that the Georgia Code of Public Transportation (GCPT), enacted in 1973, preempted the railroad’s common-law duty with regard to the installation of protective devices at grade crossings on public roads. Evans Timber also contends the trial court erred in excluding evidence of other accidents at the crossing. For the reasons set forth below, we affirm.

The relevant facts are not in dispute. Plaintiff Wilbert Brezial filed suit against both Evans Timber and Central for injuries he suffered when the train he was operating struck a truck owned by Evans Timber. The collision occurred at a crossing at grade on a public road. Evans Timber filed a cross-claim against Central alleging that Central was negligent in failing to install warning devices, such as gates, lights or bells, at the grade crossing to warn motorists of approaching trains.

1. At the close of trial of the case, the trial court granted Central’s motion for directed verdict on Evans Timber’s cross-claim finding that the GCPT, OCGA § 32-1-1 et seq., displaced the common-law duty of a railroad to install warning devices at a public road grade crossing. Central argued, and the trial court agreed, that the GCPT delegated responsibility for protective devices at grade crossings to the governmental entity responsible for the road.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

(Punctuation omitted.) McCannon v. McCannon, 231 Ga. App. 601 (1) (499 SE2d 684) (1998).

Prior to the enactment of the GCPT in 1973, Georgia recognized that a railroad could be negligent for the failure to install protective devices at grade crossings on public roads. See Isom v. Schettino, 129 Ga. App. 73 (199 SE2d 89) (1973). Even after the enactment of the GCPT, this court recognized a common-law cause of action against a railroad for the failure to install adequate warning signals. See Southern R. Co. v. Ga. Kraft Co., 188 Ga. App. 623 (5) (373 SE2d 774) (1988); Wall v. Southern R. Co., 196 Ga. App. 483 (396 SE2d 266) (1990); Central of Ga. R. Co. v. Markert, 200 Ga. App. 851 (4) (410 SE2d 437) (1991). However, the Supreme Court’s decision in Kitchen v. CSX Transp., 265 Ga. 206 (1) (453 SE2d 712) (1995) causes us to revisit the application of the GCPT to a railroad’s common-law duty to install protective devices.

In Kitchen, supra, our Supreme Court held that pursuant to OCGA § 32-6-197 (b) CSX had no statutory or common-law duty to install warning devices on a public road on which an overpass had been removed. In reaching its holding, the Court emphasized the purpose and intent of the GCPT.

In 1973, the [GCPT], OCGA § 32-1-1 et seq., Ga. L. 1973, p. 947, § 1, was enacted to revise, classify, consolidate and repeal other laws relating to all public roads and bridges, and to establish new laws relating thereto. Ga. L. 1973, p. 947. The purpose and legislative intent of the GCPT [are] further set out in OCGA § 32-1-2, as follows: to provide a code of statutes for the public roads and other transportation facilities of the state, the counties, and municipalities of Georgia. The legislative intent is to provide an effective legal basis for the organization, administration, and operation of an efficient, modem system of public roads and other modes of transportation.

(Punctuation omitted.) Kitchen, 265 Ga. at 207 (1).

The issue before this court, a railroad’s common-law duty to install protective devices at a grade crossing on a public road, was not directly addressed in Kitchen, which addressed only a duty with respect to overpasses on a public road. However, the Kitchen decision provides insightful guidance as the Supreme Court noted:

OCGA §§ 32-6-50 and 32-6-51 (a) . . . place the exclusive duty in the governmental body to install and maintain traffic control devices on public roads (including railroad crossings), and . . . statutorily prohibit private entities, including railroads, from placing traffic control devices on the public roads. An exception is enumerated with respect to railroad crossings at grade on the state highway system; at such crossings the Department of Transportation [(DOT)] is required to place and maintain traffic control devices on the public road and the railroad is required to erect and maintain a railroad crossbuck sign.

Id. at 208, fa. 6.

As Kitchen recognizes, the scope of the GCPT is broad, encompassing not only the highway system, but also “any transportation facility . . . including but not limited to railroads.” OCGA § 32-1-3 (18). Accord Kitchen, supra. The definition of “public road” is correspondingly broad, including, in part, ferries, overpasses, underpasses, railroad grade crossings, tunnels, signs, signals, markings, or other traffic control devices.

“Public road” means a highway, road, street, avenue, toll road, tollway, drive, detour, or other way open to the public and intended or used for its enjoyment and for the passage of vehicles in any county or municipality of Georgia, including but not limited to the following public rights, structures, sidewalks, facilities, and appurtenances incidental to the construction, maintenance, and enjoyment of such rights of way: (A) Surface, shoulders, and sides; (B) Bridges; (C) Causeways; (D) Viaducts; (E) Ferries; (F) Overpasses; (G) Underpasses; (H) Railroad grade crossings; (I) Tunnels; (J) Signs, signals, markings, or other traffic control devices; (K) Buildings for public equipment and personnel used for or engaged in administration, construction, or maintenance of such ways or research pertaining thereto; (L) Wayside parks; (M) Parking facilities; (N) Drainage ditches; (O) Canals and culverts; (P) Rest areas; (Q) Truck-weighing stations or check points; and (R) Scenic easements and easements of light, air, view, and access.

OCGA § 32-1-3 (24).

The Court in Kitchen recognized that the GCPT delegates comprehensive management and control of public roads exclusively to the governmental entity responsible for the road. See OCGA § 32-6-1 et seq. The GCPT delegates management and control of grade crossings, traffic control devices and signals to the governmental entity because they are part of the public road. Thus, where a public road is a county’s responsibility, that county, exclusively, has the duty to “plan, designate, improve, manage, control, construct, and maintain an adequate county road system.” OCGA § 32-4-41 (1). See Purvis v. Virgil Barber Contractor, 205 Ga. App. 13 (421 SE2d 303) (1992). In addition, the county has the “control of and responsibility for all construction, maintenance, or other work related to the county road system.” Id. at 15 (1).

Likewise, the GCPT delegates responsibility for the installation of protective devices on a public road to the governmental entity.

Whenever, in the judgment of the department in respect to the state highway system, a county in respect to its county road system, or a municipality in respect to its municipal street system, such protection is reasonably necessary for the safety of the traveling public, the department or the county or the municipality may order the protection of a grade crossing by the installation of protective devices.

OCGA § 32-6-200.

“Protective devices” means gates, flashing light signals, and similar devices or combinations thereof, together with necessary appurtenances, to be installed or in operation at any grade crossing and which comply with the safety standards determined by the department as being adequate at that time for the protection of traffic.

OCGA § 32-1-3 (23).

Thus, the governmental entity responsible for the public road orders the installation of protective devices. OCGA § 32-6-200 (a). Prior to installation, the DOT must approve the plans and specifications for any protective devices. Id.; OCGA § 32-1-3. After the protective device has been ordered and approved by the governmental entities, the railroad has a duty to install the device. OCGA § 32-6-200 (a). Contrary to the dissent’s assertion, the statute expressly prohibits a railroad from taking unilateral action and voluntarily installing protective devices: “However, no work leading to the installation of protective devices at a grade crossing on a county or municipal public road system shall commence until and unless the plan and specifications for such device are approved by the department.” (Emphasis supplied.) Id.

This delegation of responsibility was corroborated at trial. The testimony at trial showed that a railroad could not unilaterally install a protective device on a public road. Instead, the appropriate governmental entities first had to order and approve the device. Here, the railroad had not been asked to install a protective device.

Without question, the common-law duty of the railroad, except with respect to initiating and authorizing the installation of protective devices at a railroad crossing, remains in effect. The dissent’s premise that the GCPT reaffirmed the common-law duty of a railroad to maintain safe grade crossings ignores the limitations on the railroad’s duties under the plain language of the statute. The dissent relies on OCGA § 32-6-190, which places a duty on a railroad to maintain grade crossings and protective devices after installation. OCGA §§ 32-6-190; 32-6-200 (b) (3). The GCPT defines “maintenance” as “the preservation of a public road, including repairs and resurfacing not amounting to construction as defined in this Code section.” OCGA § 32-1-3 (15). “Construction” is defined, in relevant part, as: “the paving, striping, restriping, modifying for safety purposes, grading, widening, relocation, reconstruction, or other major improvement of a substantial portion of an existing public road together with all activities incident to any of the foregoing.” OCGA § 32-1-3 (6). Under the statute, maintenance does not include installation of protective devices on a public road crossing.

The GCPT precludes a common-law cause of action against a railroad for the failure to install adequate protective devices at a grade crossing on a public road where the railroad has not been requested to do so by the appropriate governmental entity. See CSX Transp. v. Trism Specialized Carriers, 9 FSupp.2d 1374 (1998) (holding that the GCPT supersedes a common-law cause of action for the failure to install adequate warning devices and signals at a grade crossing). We expressly overrule Southern R. Co. v. Ga. Kraft Co., supra, which did not consider the effect of the GCPT and which relied upon Wright v. Dilbeck, 122 Ga. App. 214 (16) (176 SE2d 715) (1970), a case decided prior to the enactment of the GCPT. Central of Ga. R. Co. v. Markert, supra, cited by the dissent, relied upon Southern R. Co. v. Ga. Kraft Co. However, Central of Ga. R. Co. is distinguishable from the present case as it addressed a grade crossing on a private road, a situation outside the scope of the GCPT.

Wall v. Southern R. Co. , supra, cited by the dissent, is also distinguishable. In that case, automatic signaling devices were already installed, and the question was whether additional precautions, such as a flagman, were needed under the particular facts of that case. The court based a common-law duty of the railroad not on the failure to install protective devices but, rather, on other conduct by the railroad.

The maintaining of cars on sidetracks so as to obstruct the view of persons entering the crossing may be considered by the jury as a separate act of negligence contributing to the injury although other acts of negligence might be alleged in regard to the speed of the train, failure to signal and to provide flagmen, etc. . . . Moreover, the mere presence of safety precautions such as automatic signalling devices neither renders the railroad free from negligence as a matter of law, nor relieves it from adopting such other measures as public safety and common prudence dictate.

(Citations and punctuation omitted.) Id. at 484.

Similarly, under our holding today a railroad is not free from liability as a matter of law. The legislature has simply provided that a railroad cannot be liable for the failure to install a protective device on a public grade crossing where the railroad has not been requested to do so. A railroad may still be liable for other negligent conduct, such as the failure to maintain a working crossing arm or obstructing vision at a crossing. This is precisely the analysis undertaken by our Supreme Court in Kitchen, supra at 209 (2), when it considered whether other conduct by CSX, besides the failure to install warning signals, created a common-law duty.

Evans Timber relies upon CSX Transp. v. Easterwood, 507 U. S. 658 (113 SC 1732, 123 LE2d 387) (1993), in support of its contention that its common-law claim is not preempted by the GCPT. However, that reliance is misplaced. Easterwood held that the Railroad-Highway Crossing section of the chapter on Federal Aid Highways did not preempt state law explicitly or implicitly and that, consequently, federal law did not preempt a common-law claim, to the extent one existed under Georgia law. The Court then relied on Southern R. Co. v. Ga. Kraft Co., supra, as a basis for the common-law claim.

Unlike the federal regulations at issue in Easterwood, the comprehensive and pervasive legislation of the GCPT demonstrates the General Assembly’s intent to preempt the common-law duty of the railroad to install protective devices at public grade crossings. “When interpreting a statute we are required to look for the intent of the legislature and construe statutes to effectuate that intent.” (Punctuation omitted.) G.I.R. Systems v. Lance, 219 Ga. App. 829, 832 (3) (466 SE2d 597) (1995). In the present case, the legislative intent to change the existing common law is manifest. The GCPT expressly repealed and replaced previous statutes, including those cited by Evans and amici curiae. Ga. L. 1973, pp. 1174-1190, § 2. Moreover, the GCPT differs significantly from those previous statutes by including railroads within the scope of the GCPT, and. grade crossings and signals within the definition of public road, and by delegating responsibility for the installation of protective devices. “The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole.” (Punctuation omitted.) Bennett Elec. Co. v. Spears, 188 Ga. App. 502, 503 (373 SE2d 286) (1988).

The legislature clearly delegated responsibility for the public road, including traffic control devices, warning signals, and protective devices, to the governmental entities and removed any such responsibility from private parties. The trial court correctly granted Central’s motion for directed verdict on Evans Timber’s cross-claim.

2. In its second enumeration of error, Evans Timber contends the trial court erred by excluding evidence of other accidents at the crossing. Because Evans Timber has failed to support this error with citation to the record showing that the evidence was proffered at trial and the error preserved, this error is deemed abandoned. Diffley v. Marshall’s at East Lake, 227 Ga. App. 343 (489 SE2d 123) (1997) (the court will not cull the record on behalf of a party).

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J, Andrews, Smith, Ruffin, JJ., and Senior Appellate Judge Harold R. Banke concur. Eldridge and Barnes, JJ., concur in part and dissent in part.

Eldridge, Judge,

concurring in part and dissenting in part.

I concur with the majority as to Division 2, but I must respectfully dissent to Division 1 from this radical change in the law regarding the common law duty of railroads to install warning devices at public road grade crossings. The GCPT did not preempt or abolish railroads’ common law liability for the failure to install a protective device on a public grade crossing where the railroad has not been requested to do so by a governmental entity. To the contrary, GCPT reaffirmed the common law duty of railroads to maintain safe grade crossings; OCGA § 32-6-190 restates such duty:

[a]ny railroad whose track or tracks cross a public road at grade shall have a duty to maintain such grade crossing in such condition as to permit the safe and convenient passage of public traffic. Such duty of maintenance shall include that portion of the public road lying between the track or tracks and two feet beyond the ends of the crossties on each side of such crossings.

(Emphasis supplied.) See also Easterwood v. CSX Transp., 933 F2d 1548 (11th Cir. 1991), aff’d, 507 U. S. 658 (113 SC 1732, 123 LE2d 387) (1993).

Kitchen v. CSX Transp., 265 Ga. 206, 207 (453 SE2d 712) (1995) dealt with a county road that previously had a bridge crossing a railroad and that was closed by county action so that there no longer was a railroad crossing, which county action relieved the railroad of its common law duty to maintain the bridge and approaches. Kitchen did not hold that a common law duty for railroads as to crossings at overpasses had been abolished by statute; the opinion held that the particular facts and circumstances of that case gave rise to no common law duty.

Assuming arguendo that Nashville, Chattanooga [&c. R. Co. v. Cook, 177 Ga. 196 (170 SE 28) (1933)], imposes a common law duty of care which survived the GCPT, we do not construe it to impose an obligation on CSXT to erect signs or barriers to warn drivers of the hazard created by the terminus of County Road 77. . . . The hazard alleged here, i.e., the abrupt terminus of the public road without adequate warnings, was situated on the public road, and was neither created nor maintained by CSXT. . . . CSXT breached no common law duty of care owed to appellants in that it neither created nor maintained an artificial condition which gave rise to Kitchen’s injuries.

Id. at 209-210.

OCGA § 32-6-200 only gives the power and authority to DOT, a county, or a municipality to mandate the installation and maintenance by the railroad of protective devices at grade crossings over the objection of railroads; nowhere does the statute expressly or impliedly prohibit the railroad from voluntarily taking such action as a common law duty in the exercise of ordinary care to make the crossing safe. Since the purpose of OCGA § 32-6-200 is to empower governmental entities to force railroads to install and maintain safety devices at unsafe grade crossings, then the General Assembly did not intend to prohibit the railroad from voluntarily undertaking such safety measure. The General Assembly did not intend to lessen safety devices at dangerous crossings but to increase such measures beyond what railroads already had undertaken. The General Assembly was aware that railroads were reluctant to incur the cost of such measures voluntarily or to recognize for liability purposes that the crossing was extremely dangerous. The General Assembly intended to provide the governmental entities the power to compel railroads to undertake such action to correct the dangers to cure the existing evil. OCGA § 1-3-1; McGuire v. McGuire, 228 Ga. 782, 785 (187 SE2d 859) (1972).

The language of OCGA § 32-6-200 (a) does not prohibit the railroad from undertaking on its own judgment to install a protective device without prior judgment by the DOT, county, or municipality that it is necessary; the Act merely requires that DOT give final approval of any plan and specification for a protective device before the installation. DOT’s exercise of veto power over action by the railroad, county, or municipality is different from a prohibition of the railroad from seeking DOT’s permission to install a protective device.

“The common-law rule is still of force and effect in this State, except where it has been changed by express statutory enactment or by necessary implication. [Cits.]” Robeson v. Intl. Indem. Co., 248 Ga. 306, 307 (1) (282 SE2d 896) (1981). Statutes in derogation of common law must be strictly construed and never extended beyond plain and explicit terms. Duncan v. Entrekin, 211 Ga. 311, 312 (85 SE2d 771) (1955); see also Fayette County v. Seagraves, 245 Ga. 196, 197-198 (264 SE2d 13) (1980). Thus, preemption of the common law should not occur from such uncertain implications read into the statute.

The caption of GCPT is silent as to the abolition of common law duties of railroads at grade crossings as a purpose of the Act. Ga. L. 1973, pp. 947-958. The caption does state the purpose of the Act as “providing for maintenance of grade crossings . . . providing the authority of the Department, a county or a municipality to order the installation of protective devices and providing for the division of the costs of acquisition and installation.” Id. at 955. Prior to the Act, the governmental entities were unable to compel railroads to erect such safety devices.

This Court, in Central of Ga. R. Co. v. Markert, 200 Ga. App. 851, 853-854 (4) (410 SE2d 437) (1991), held that a common law duty existed at private railroad grade crossings:

[w]ith respect to persons rightfully using a private crossing, the duty of the railroad company is similar to its duty as to users of public crossings, and as to them, it must exercise reasonable or ordinary care, commensurate with the danger of the particular situation. Accordingly, [railroads] would have no less of a common law duty with regard to a private crossing than they would have with regard to a public crossing.

(Citation and punctuation omitted.) Id. at 853-854. If the General Assembly intended to preempt the field and to avoid an equal protection issue, then it would have done so uniformly. In the dicta of such opinion, such common law duty was implied to exist both in public and private railroad grade crossings. Id. at 854.

In Wall v. Southern R. Co., 196 Ga. App. 483, 485 (1) (396 SE2d 266) (1990), this Court held that having functioning safety devices at a railroad grade crossing did not absolve the railroad of the common law duty to exercise ordinary care, i.e., have a flagman present. Thus, the common law duty survived the GCPT; otherwise, how could the common law duty arise where the GCPT safety device had been installed and was functioning?

Finally, Southern R. Co. v. Kraft, 188 Ga. App. 623, 624 (5) (373 SE2d 774) (1988), was a full court opinion which rejected the argument that DOT must decide what warnings or safety devices were to be used at a crossing and held that railroads had a common law duty as to safety devices at grade crossings.

The majority would find that the General Assembly through the GCPT selectively abolished common law duties of railroads at public grade crossings for installing protective devices without governmental direction but not for other purposes, creating an equal protection issue.

Decided June 22, 1999

Reconsideration denied July 22, 1999

Jones, Cork & Miller, Carr G. Dodson, Thomas W. Joyce, for appellant.

Hall, Bloch, Garland & Meyer, John S. Stewart, for appellee.

Cathey & Strain, Dennis T. Cathey, James E. Staples, Jr., Black-wood, Matthews & Steel, John D. Steel, John B. Briggs, Lamar, Archer & Cofrin, Robert C. Lamar, David W. Davenport, Casey, Gil-son & Williams, Matthew D. Williams, Glenn C. Tornillo, James E Grubiak, amici curiae.

I am authorized to state that Judge Barnes joins in this opinion.

Barnes, Judge,

concurring in part and dissenting in part.

While I am in full agreement with Judge Eldridge’s opinion, I write separately to point out that I am troubled by the fact that since this 1972 statute was passed, this issue has arisen numerous times in trial and appellate courts and has been addressed as elaborated on more fully above, without reaching the result that the majority reaches.


author: Ruffin, Judge.

text:
    A99A0245.
    J. M. HUBER CORPORATION v. GEORGIA MARBLE COMPANY.
    (520 SE2d 296)
   Ruffin, Judge.

This is a dispute over who has the marble and mineral rights to certain property in Pickens County. The trial court granted the motion to dismiss of defendant Georgia Marble Company (Georgia Marble) and denied the motion for summary judgment of plaintiff J. M. Huber Corporation (Huber). Huber appeals both rulings. Georgia Marble has filed a motion to dismiss the appeal as moot. For reasons which follow, we affirm in part and reverse in part the ruling of the trial court, and we deny Georgia Marble’s motion to dismiss the appeal.

The relevant undisputed facts are as follows. Benjamin M. Cow-art died in 1911 and bequeathed to his four children all of his real property in fee simple, including Land Lot 124 and part of Land Lot 125 in Pickens County, which are the subject of this litigation. With respect to the “marble and mineral interests” on those two lots, however, Cowart’s will contained the following restriction:

that said marble and mineral interests in said [property] be held in common and be not sold by my said childre[n] nor by my executors during the life of my said children or either of them, but my executors shall have the right, power and authority to rent or lease said marble and mineral interests for a term of years for such reasonable rental or royalty as to my said executors may seem to the best interest of my said legatees and thier [sic] children born to them in lawful wedlock.

In 1922, Cowart’s children executed warranty deeds conveying the property in question to Georgia Marble Finishing Works, predecessor to Georgia Marble. The warranty deeds state that the Cowart children grant “all of [our] right, title and interest” to the property to Georgia Marble in fee simple, but the deeds also provide that the conveyance is “made subject to the rights of the Executors of Benj. M. Cowart to lease or rent the marble and mineral interest [in the property in question], as provided in the said will of Benjamin M. Cow-art.” Also in 1922, the executors of Cowart’s estate (two of his children) leased the marble and mineral interests in the property to Georgia Marble for a period of 25 years, with an option to renew the lease for an additional 25 years.

On January 2, 1997, all of the heirs of Cowart’s children (the Cowart heirs) entered into an agreement leasing the marble and mineral interests in the property to Huber for a period of 99 years. This lease granted Huber

all of the Lessor’s right, title and interest in and to all marble, limestone and other calcite minerals (“Marble”) in, upon or under the [property in issue], together with all other rights, powers and privileges of the Lessor to the mining and removal of the Marble from the Land. . . .

The lease also provided that Huber had the right to use the property “for the mining operations described . . . and for uses incidental thereto.”

Huber began mining the property, accessing it underground by coming in sideways from an adjoining parcel owned by a Huber affiliate. Huber then determined that it needed access to the surface of the property to conduct core drilling operations. Huber contacted Georgia Marble to make arrangements, but Georgia Marble refused to grant surface access to Huber and claimed that it — and not Huber — owned the marble and mineral rights on the property. Georgia Marble takes the position that it owns all of the property pursuant to the 1922 warranty deeds from Cowart’s children, and that the Cowart heirs have no marble or mineral interests in the land that could be leased to Huber. Huber contends that the 1922 deeds did not convey the marble and mineral rights and that those rights passed to the Cowart heirs, who validly leased them to Huber.

Huber sued Georgia Marble seeking a declaratory judgment that Huber had the right to

enter upon the Property, prospect the Property, and extract and remove the Minerals from the Property, including the rights of ingress, egress and possession of the surface, conducting testing, drilling and mining operations, the creation, grading, maintenance and use of access roads and clearing of trees, all as necessary to the use and enjoyment of the estate conveyed.

Huber sought summary judgment on the ground that the undisputed facts required judgment in its favor. Georgia Marble filed a motion to dismiss, arguing that Huber was not entitled to a declaratory judgment because it had already begun mining the property. Georgia Marble also filed a motion to join the Cowart heirs as necessary and indispensable parties. The trial court entered an order granting Georgia Marble’s motion to dismiss and finding that the Cowart heirs were indispensable parties. The trial court summarily denied Huber’s motion for summary judgment, without reaching the merits of Huber’s claim. On appeal, Huber challenges all three of these rulings.

1. We first address whether this was an appropriate case for declaratory judgment. Georgia law authorizes declaratory judgments “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” OCGA § 9-4-1. To obtain a declaratory judgment,

[t]he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.

(Punctuation omitted.) Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 485 (1) (484 SE2d 302) (1997). Disputes concerning ownership of or right of access to land are classic candidates for resolution via declaratory judgment. See Bond v. Ray, 83 Ga. App. 817, 819 (1) (65 SE2d 30) (1951) (title dispute “presented] the most nearly perfect basis for the application of declaratory-judgment jurisdiction that has come to our attention”); Larkin v. Laster, 254 Ga. 716 (334 SE2d 158) (1985) (dispute as to whether defendant’s mineral interests had been terminated by adverse possession was resolved by declaratory judgment). Thus, declaratory judgment would appear to be an ideal vehicle for resolving the instant dispute.

Georgia Marble contends, however, that Huber is not entitled to a declaratory judgment because it has already begun mining the property and therefore cannot claim uncertainty as to its future actions. The law is well established that a party may not seek a declaratory judgment merely to confirm the propriety of actions it already has taken. Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 671 (1) (507 SE2d 525) (1998); Cotton v. Bank South, N.A., 212 Ga. App. 1, 3-4 (3) (a) (440 SE2d 704) (1994). Rather, declaratory judgment is available only where “a legal judgment is sought that would control or direct future action” (Punctuation omitted; emphasis supplied.) Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17 (413 SE2d 450) (1992). Contrary to Georgia Marble’s assertions, Huber’s requested relief is a declaration of future rights, not a ratification of past conduct. Huber seeks a declaratory judgment that it has the right to enter the property and engage in various activities related to its mining operations. Although Huber has begun subsurface mining operations, it is undisputed that Huber has not conducted any activity on the surface of the property and that Georgia Marble has ordered Huber not to enter the property. Thus, a declaratory judgment would have the effect of “guidfing] and protecting] [Huber] with regard to some future act.” (Punctuation omitted.) Adams, supra. That a declaratory judgment would have the incidental effect of approving the mining activity in which Huber already has engaged does not change this analysis. Accordingly, the trial court erred in dismissing the action on this basis.

2. Georgia Marble has filed a motion to dismiss Huber’s appeal as moot. Approximately two months after Huber filed this appeal, Georgia Marble filed a complaint against Huber in the Superior Court of Pickens County seeking damages and injunctive relief for Huber’s alleged trespass on Georgia Marble’s land and conversion of minerals belonging to Georgia Marble. Georgia Marble contends that this second lawsuit will resolve the issues raised in Huber’s declaratory judgment action. Accordingly, Georgia Marble maintains that this appeal should be dismissed. We disagree.

A case is moot “when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights.” Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998). “If an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot.” (Punctuation omitted.) McWhor- ter v. Green, 221 Ga. App. 590, 591 (472 SE2d 135) (1996). The issue ' presented here — who has the marble and mineral rights to the property in question — clearly is not abstract, as Huber actively seeks to mine the property and Georgia Marble actively seeks to prevent Huber from doing so. Moreover, Huber would benefit by reversal of the case, as the trial court would then determine the rights of the parties with respect to the property.

Georgia Marble’s filing of a separate lawsuit against Huber presenting the same issue does not change our analysis. The only information before this Court about Georgia Marble’s lawsuit is a copy of the complaint. We cannot assume that any final order has been issued in that litigation which would moot Huber’s declaratory judgment action. See Contestabile v. Business Dev. Corp. of Ga., 259 Ga. 783, 784 (2) (387 SE2d 137) (1990) (refusing to find mootness in the absence of adequate record). Moreover, we note that two lawsuits presenting the same issue may be pending simultaneously, and the first to reach judgment may create a res judicata effect. Atlanta J’s, Inc. v. Houston Foods, 237 Ga. App. 415 (514 SE2d 216) (1999). Finally, a dismissal of this appeal would effectively permit Georgia Marble to stall the litigation of the ownership of the marble and mineral rights by waiting a year and then filing a lawsuit of its own. The claims in Georgia Marble’s complaint could have been brought as counterclaims in the declaratory judgment action.

Georgia Marble contends that our decision in Merrills v. Horace Mann Ins. Co., 214 Ga. App. 142 (447 SE2d 112) (1994), requires the dismissal of this case. In Merrills, an insurance company filed a declaratory judgment action in Georgia seeking a determination of its maximum liability after the insured and her family suffered a single vehicle accident. Following the commencement of the insurer’s action, the insured’s family sued her and the insurance company in another state, seeking recovery for personal injuries. We held that the declaratory judgment action should be dismissed because the coverage issues would be resolved in the pending personal injury action. Id. at 143. Our decision was grounded in a concern that a ruling in the declaratory judgment action would merely be an advisory opinion and an opportunity for the insurance company to “test the viability of its defenses” in the pending liability action. Id.

Merrills does not control this case. Contrary to Georgia Marble’s suggestion, Merrills does not stand for the sweeping proposition that a declaratory judgment action always becomes moot after the filing of a suit for damages related to the same dispute. In fact, in appropriate circumstances, we have approved the granting of an injunction to restrain the prosecution of a subsequently filed suit for damages. See Jahncke Svc. v. Dept. of Transp., 137 Ga. App. 179 (223 SE2d 228) (1976). Moreover, the rationale for our ruling in Merrills — the avoidance of advisory opinions ■— is not present in this case, which involves an actual dispute over Huber’s right to enter the property in question. Dismissing Huber’s action would contravene the purpose of the declaratory judgment statute, which is “to give additional protection to persons who may become involved in an actual justiciable controversy, in that they differ between themselves as to what their rights are.” Shippen v. Folsom, 200 Ga. 58, 68 (1) (35 SE2d 915) (1945). Under the circumstances, we are unable to conclude that Huber’s appeal is moot.

3. Georgia Marble filed a motion in the trial court seeking join-der of the Cowart heirs as necessary parties to the declaratory judgment action. In its order dismissing the case, the trial court found that the Cowart heirs needed to be joined before complete relief could be granted. We find that the Cowart heirs are necessary parties who should be joined if feasible.

Pursuant to OCGA § 9-11-19 (a) (2),

[a] person who is subject to service of process shall be joined as a party in the action if. . . [h]e claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . (A) [a]s a practical matter impair or impede his ability to protect that interest; or (B) [l]eave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of his claimed interest.

Here, both the Cowart heirs and Georgia Marble assert ownership of the marble and mineral rights on the property. The Cowart heirs clearly have “an interest relating to the subject of the action.” Resolution of Huber’s asserted right to enter upon and mine the property requires a determination of whether the Cowart heirs or Georgia Marble owns the marble and mineral rights. A ruling in favor of Georgia Marble could impair the Cowart heirs’ practical ability to realize the value of their asserted marble and mineral rights by leasing those rights. Moreover, a judgment in favor of Georgia Marble in this case, prohibiting Huber from entering or mining the property, could be followed by a'judgment against Georgia Marble in a subsequent suit by the Cowart heirs to determine ownership of the land. Such a result would create inconsistent obligations on the part of Georgia Marble. For these reasons, we conclude that the Cowart heirs are necessary parties to this litigation. See Virginia Highland Assoc. v. Allen, 174 Ga. App. 706, 707-708 (2) (330 SE2d 892) (1985) (subtenant was necessary party in dispossessory action alleging default by original tenants); Coe v. Greenville Credit &c. Co., 164 Ga. App. 521, 522 (2) (298 SE2d 36) (1982) (assignee of security deed was necessary and indispensable party in action to cancel security interests as usurious); First Nat. Bank of DeKalb County v. Centennial Equities Corp., 245 Ga. 121, 123-124 (263 SE2d 155) (1980). On remand, these parties should be joined if feasible.

Decided July 7, 1999

Reconsideration denied July 22, 1999.

Kilpatrick Stockton, Thomas C. Harney, Mark A. Shaffer, David E. Ralston, for appellant.

Phears & Moldovan, H. Wayne Phears, Victor L. Moldovan, Richard E. Harris, Landrum & Landrum, Phillip M. Landrum, Jr., for appellee.

4. In light of our decision in Division 3 that the Cowart heirs should be joined as necessary parties to this action, a ruling on Georgia Marble’s motion for summary judgment would be premature. Therefore, we decline to address the merits of Huber’s final enumeration of error. We do, however, instruct the trial court that on remand, Huber should be given the opportunity to renew its motion after the joinder of the Cowart heirs. See generally Howard v. McFarland, 233 Ga. App. 286 (503 SE2d 900) (1998).

Judgment affirmed in part, reversed in part, and remanded with instructions.

McMurray, P. J., and Andrews, P. J, concur.

       In. fact, those claims may have been compulsory counterclaims. See Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357, 360-361 (203 SE2d 304) (1973) (insured’s claims against insurer for attorney fees and bad faith were compulsory counterclaims to insurer’s action for declaratory judgment as to its liability under terms of policy).

       In its order, the trial court, without analysis, declared that the Cowart heirs were “indispensable,” a term used in OCGA § 9-11-19 (b). The question of whether a party is indispensable, however, should be addressed only after it has been determined that the party is necessary and cannot be joined. See OCGA § 9-11-19 (b); Glover v. Allstate Ins. Co., 229 Ga. App. 235, 236 (1) (493 SE2d 612) (1997). Huber represents that the Cowart heirs could be joined if necessary. For the purpose of this appeal, we address only the question of whether the Cowart heirs are necessary parties. If on remand it appears that the Cowart heirs cannot be joined, then the trial court will need to consider whether they are indispensable, applying the factors listed in OCGA § 9-11-19 (b).


text:
    A99A0423.
    PAZ v. THE STATE.
    (521 SE2d 362)
   Barnes, Judge.

Jorge Paz appeals his conviction of two counts of aggravated assault. In Count 1, the jury found him guilty of aggravated assault for throwing a kitchen knife at his girlfriend, Tracy Benton, and striking Benton in the thigh with the knife. The jury also found Paz guilty of Count 2, aggravated assault with a gun. Again, Benton was the victim of the assault, but a third party was also directly involved in the incident. Paz contends the trial court erred by denying his motion for mistrial and by refusing to charge the jury on the lesser included offense of reckless conduct as to Count 2. Paz also alleges the evidence is insufficient to sustain his conviction of aggravated assault. We disagree and affirm.

1. Although Paz contends the trial court erred by denying his motion for mistrial, we cannot consider this issue on appeal. Paz moved for a mistrial after the State questioned its expert witness about a prior battery charge. As Paz failed to renew his motion for mistrial after the trial court gave the jury curative instructions, he failed to preserve this issue for appellate review. Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981).

2. Paz also contends the trial court erred in refusing to charge reckless conduct as a lesser included offense of the aggravated assault with a gun charge. At trial, Paz requested a jury instruction on the lesser included offense of reckless conduct on both charges of aggravated assault. The court granted the request as to the charge concerning the knife, but denied the request as to the charge concerning the gun.

Reckless conduct occurs when a person
causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

OCGA § 16-5-60 (b). The distinguishing difference between a charge of aggravated assault and one of reckless conduct is that in a case of aggravated assault, the attempted or completed injury to the victim is the intended consequence of the defendant’s act, whereas with reckless conduct, the threatened or actual injury to the victim is a product of the defendant’s criminal negligence. Compare Shaw v. State, 238 Ga. App. 757 (519 SE2d 486) (1999).

As to Count 2, the evidence at trial showed that after Paz and a friend, “Mario,” located Benton at her friend’s house, Mario grabbed her and pointed the gun at her head while demanding she return money she had taken from Paz. Paz, who was intoxicated at the time, told Mario to “shoot her.” Mario fired the gun twice in the bedroom, and Benton relinquished her money, keys, and drugs to the men. Although she feared being shot in the back, Benton ran down the hall and locked herself in the bathroom. Two more shots were fired into the bathroom door, but missed Benton.

Paz contends that because he was intoxicated at the time and neither possessed the weapon nor reasonably knew of Mario’s intention to shoot Benton, he was entitled to a charge of reckless conduct because he possessed a lesser degree of culpability and a lesser degree of intent. The evidence showed, however, that Paz acted in concert with Mario: he ordered Mario to shoot Benton, and due to Paz’s actions, Benton was put in fear of receiving violent injury. Moreover, Paz produced no evidence that the threatened injury to Benton was the result of his criminal negligence and, thus, produced no evidence to support the lesser charge of reckless conduct. “Where the evidence shows either the completed offense, as averred, or no offense, such evidence will not support a verdict for one of the lesser [included offenses].” James v. State, 210 Ga. App. 454, 455 (436 SE2d 565) (1993). The trial court was justified in refusing to give the charge on reckless conduct as to this count.

3. Paz also contends the evidence presented at trial was insufficient for a rational trier of fact to find him guilty of aggravated assault beyond a reasonable doubt because the evidence presented at trial was conflicting and contradictory, and serious doubt existed as to his guilt. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict. Further, Paz no longer enjoys the presumption of innocence. The appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Resolving conflicts and contradictions is a function of the jury. Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996).

Viewed in the light most favorable to the verdict, the evidence shows Paz threw a knife at Benton and cut her thigh and later participated in the assault upon her with the gun. Even though Benton stated before trial that she received the cut to her thigh by sitting on the knife, she testified at trial that Paz threw the knife in her direction and it hit her in her thigh. Benton’s trial testimony was supported by an emergency medical technician’s testimony that because of the location of the cut, Benton’s initial version was contrary to the law of physics. Moreover, an expert on battered woman’s syndrome explained at trial that fear of Paz was connected to Benton’s reluctance to blame him for her injury. As to the second incident, witnesses at the scene heard the threats and the gunshots. The jury was properly charged on expert testimony, resolving conflicts in the testimony, the burden of proof, and reasonable doubt.

Decided June 28, 1999

Reconsideration dismissed July 22, 1999.

Jerome C. McKee, for appellant.

Jorge Paz, pro se.

J. Tom Morgan, District Attorney, Sheila A. Connors, Robert M. Coker, Assistant District Attorneys, for appellee.

Accordingly, review of all the evidence in the light most favorable to the verdict reveals sufficient evidence from which any trier of fact could find beyond a reasonable doubt that Paz was guilty of aggravated assault with a knife and a gun. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A99A1516.
    GRESHAM v. THE STATE.
    (521 SE2d 207)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of trafficking in cocaine (Count 1), for selling more than 28 grams of cocaine. The trial court directed a verdict of not guilty as to possession of a firearm during the commission of a crime (Count 2). The trial court denied defendant’s motion for new trial, and this appeal followed. In his sole enumeration of error, defendant contends that “[t]he trial court committed reversible error by charging the entire trafficking statute when the Defendant was only charged with selling 28 grams or more of cocaine.” Defendant argues that the jury could have convicted on the basis of possession because there was evidence that he kept a part of the cocaine he gave to the undercover Georgia Bureau of Investigation agent involved in the transaction. Held:

Decided July 22, 1999.

James L. Moss, Jr., for appellant.

Robert W. Lavender, District Attorney, Leon Jourolmon, Assistant District Attorney, for appellee.

The record discloses that defendant requested the trafficking in cocaine charge given by the trial court which he now complains of. “‘Thus, error, if any, was self-induced, and provides no basis for reversal. Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).’ Fitzgerald v. State, 193 Ga. App. 76, 77 (7), 78 [(386 SE2d 914)].” Knight v. State, 216 Ga. App. 200, 202-203 (3) (453 SE2d 798). Moreover, in conjunction with this charge, the trial court also gave a contemporaneous limiting instruction. Specifically, the trial court immediately instructed the jury that they were limited to finding the defendant guilty for violating the statute only “as alleged in count one of the indictment,” after having read Count 1 of the indictment to the jury. While defendant points to “evidence” upon which the jury could have convicted him of possession of cocaine, our review of such evidence indicates that it is consistent only with a single sale of 28 grams of cocaine as alleged in Count 1 of the indictment.

We are not unmindful that reversible error results upon the existence of a reasonable possibility that the jury might have convicted the defendant of a crime in a manner not alleged by indictment. Ferguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909); see also Childs v. State, 257 Ga. 243, 252-253 (17) (357 SE2d 48); Pettway v. State, 204 Ga. App. 804 (420 SE2d 619). “[I]f a jury charge recites the entire statutory definition of a crime and the indictment does not, the deviation may violate due process unless a limiting instruction is given.” Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556). In the case sub judice, the trial court properly limited the jury’s consideration of the evidence to Count 1 of the indictment. Viewing the trial court’s charge as a whole, Bridges v. State, 268 Ga. 700, 703 (2) (b) (492 SE2d 877), we conclude that there was here no reasonable possibility that the jury could have convicted the defendant for any offense not alleged. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       The trial court did not charge the entire trafficking statute. Rather the trial court charged the jury on the alternative methods by which trafficking in cocaine may be committed under OCGA § 16-13-31 (a) (1) as these were set out by defendant’s Request to Charge No. 20. Defendant’s Request to Charge No. 20 pertinently provided:
      Any person who knowingly sells, delivers, or brings into this state, or who is knowingly in possession of, 28 grams or more of cocaine, or of any mixture with a purity of 10 percent or more of cocaine, commits the offense of trafficking in cocaine.


author: McMURRAY, Presiding Judge.

text:
    A99A1596.
    UNDERWOOD et al. v. LANIER HOME CENTER, INC. et al.
    (521 SE2d 207)
    Decided July 22, 1999.

      Edmund A. Waller, for appellants.

      John D. Burroughs, for appellees.
   McMURRAY, Presiding Judge.

Greg Underwood and Roberta Arlene Underwood filed this direct appeal from the trial court’s January 5, 1999 order granting Lanier Home Center, Inc.’s, d/b/a Gateway Homes, and James O. Norton’s (“defendants”) motion for partial summary judgment. On January 25, 1999, the Underwoods filed a motion which, although styled as a motion for new trial and to set aside, sought reconsideration of the trial court’s earlier January 5,1999 partial summary judgment order. The trial court therefore treated this motion as one for reconsideration of its prior January 5, 1999 partial summary judgment order and denied it in an order entered on February 17, 1999. The Under-woods filed a notice of appeal on February 18, 1999, more than 30 days after entry of the January 5, 1999 order granting partial summary judgment in defendants’ favor.

Under OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days after entry of the appealable judgment, which in this case was the trial court’s January 5, 1999 order. The filing of a motion for reconsideration does not extend the time for filing a notice of appeal. See Simmons v. State, 228 Ga. App. 470 (491 SE2d 908). The time requirement of OCGA § 5-6-38 (a) is jurisdictional, and because of the Underwoods’ failure to file a timely notice of appeal, this appeal must be dismissed for lack of jurisdiction. Thompkins v. State, 157 Ga. App. 203, 204 (276 SE2d 885).

Appeal dismissed.

Andrews, P. J., and Ruffin, J., concur.