text:
    A94A0335.
    TUGGLE v. THE STATE.
    (440 SE2d 740)
   Birdsong, Presiding Judge.

Clarence Edward Tuggle was convicted of two counts of child molestation of his then four or five-year-old granddaughter H. M. and acquitted of three other child molestation counts. Held:

1. Appellant’s claim of insufficiency of the evidence is without merit. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the two child molestation counts of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts the trial court erred in denying certain defense motions, as he was prejudiced by the introduction of certain similar transaction evidence when notice of such evidence was not included in the State’s USCR 31.3 notice.

(a) In addition to three charges of molesting his granddaughter H. M. (of which appellant was convicted of two), appellant also was charged with two counts of child molestation of another granddaughter K. M., both of which he was found not guilty. K. M. was age 12 at the time of trial. During direct examination by the State, K. M. was asked where she was when appellant touched her in a manner that had made her uncomfortable. K. M. responded “in Alabama.” Appellant made an immediate objection and requested a motion hearing. The trial court, however, elected to reserve its ruling, and examination continued. When the State attempted to renew its questioning, the prosecutor was interrupted by appellant who posed an objection to leading the witness. The court ruled that the State was not leading and instructed the prosecutor to renew the question. Thereafter, the prosecutor instructed the young witness that she did not “want to hear about anything that happened in Alabama, okay?” Appellant immediately responded, “I object and . . . renew my motion.” The trial court overruled the renewal of the motion (which apparently all parties at trial assumed was a motion for mistrial, although not specified on the record as such), and directed the prosecutor to proceed. The appellate standard for review of a denial of a mistrial motion is an abuse of discretion test. Muzquiz v. State, 260 Ga. 547, 548 (5b) (397 SE2d 703).

Although no curative instruction was given immediately following either the reservation of the motion or its subsequent first denial, none was requested by appellant. By failing to request a timely curative instruction, appellant failed to preserve any issue as to the lack of such an instruction after the first denial of his motion. Butts v. State, 193 Ga. App. 824, 828 (2) (389 SE2d 395); compare Oller v. State, 187 Ga. App. 818, 823 (4) (371 SE2d 455). The trial court did not abuse its discretion in initially reserving and then shortly thereafter denying appellant’s motion. After the first denial of his motion, appellant did not timely renew his request for an out-of-court hearing in an attempt to perfect the record by establishing K. M. had revealed that a prior criminal sexual act, in fact, had been committed upon her in Alabama. Error will not be presumed from a silent record. Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281).

Moreover, assuming it reasonably could be inferred that this particular “uncomfortable” touching was criminal in nature, under the totality of the circumstances, which in part are exacerbated by the trial procedure of appellant (see generally Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309); Hollis v. State, 191 Ga. App. 525, 528 (5) (382 SE2d 145)), any error committed was not so grievous as to preclude correction by a subsequent curative instruction. Thus, the trial court would not abuse its discretion, even in this event, by initially denying the motion and, as above-held, appellant has waived any appellate issue as to the failure to give a timely curative instruction following this denial of the motion.

(b) During the examination of law enforcement officer Evans, the motion for mistrial specifically was renewed and denied. As above, we find no abuse of discretion in such ruling. This time, however, appellant did request a curative instruction immediately following the denial of his motion in an out-of-court hearing. The trial court gave a curative instruction to the jury concluding expressly that the jurors “should disregard that which was objected to, and the court is now sustaining that objection.” Examining the curative instruction in its totality (cf. Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), we are satisfied it was not misleading and was sufficient to prevent any prejudicial impact, within the meaning of Allen v. State, 259 Ga. 303 (2) (379 SE2d 513), caused by K. M.’s reference to Alabama as the site of some unidentified form of uncomfortable touching. As appellant failed to object timely to curative instruction content and thereafter failed to renew timely his mistrial motion, he has not preserved any issue pertaining thereto on appeal. See Lyon v. State, 262 Ga. 247, 248 (3a, b) (416 SE2d 523); Leary v. State, 206 Ga. App. 191 (424 SE2d 903); Harris v. State, 202 Ga. App. 618, 620 (3b) (414 SE2d 919); see also Minton v. State, 167 Ga. App. 114 (2) (305 SE2d 812).

(c) Appellant, however, argues that the trial court further committed reversible error when, during the continued examination of Evans, the following colloquy occurred: “[Q]: Did [K. M.] relate . . . any other time when she had been touched by anyone in a way she didn’t like? [A]: Yes. . . . [Q]: Who was it? [A]: It was her papa. [Q]: Did she tell you when and where that took place? [A]: Yes. . . . [Q]: And where was it? [A]: It was in another jurisdiction. [Appellant’s Counsel]: I object. . . . [Court]: I’ll sustain the objection. [Appellant’s Counsel]: I’ll move for a mistrial again. [Court]: All right. I overrule your motion.” No request for curative instruction was timely tendered following this ruling. As above, we find that, under the totality of the circumstances (which included the prior curative instruction to the jury to disregard similar-type of testimony by K. M.), the trial court did not abuse its discretion in denying the mistrial motion. We are satisfied that although this constitutes a reference to some unidentified form of undesirable touching committed, at some unestablished location in a law enforcement jurisdiction other than that of Evans’, it was not so inherently prejudicial in nature as to compel the granting of a mistrial motion and as to be incapable of correction by curative instruction within the meaning of Allen, supra. Once again, as appellant failed to request timely a curative instruction following the denial of a mistrial motion, he has not preserved for appeal any issue pertaining to the failure to give such an instruction. Butts, supra; Oller, supra.

Decided February 4, 1994.

David L. Cannon, for appellant.

Garry T. Moss, District Attorney, Cecelia M. Harris, Assistant District Attorney, for appellee.

(d) Additionally, and equally important, the record reflects that appellant was found not guilty of the charges pending against him regarding his granddaughter, K. M. Clearly and conclusively the evidence at issue did not prejudice appellant in any manner regarding each of the offenses of which he was found not guilty. As to the charges of which he was found guilty for child molestation of granddaughter H. M., the record reveals numerous instances of admissible, similar transaction evidence tending to establish a pattern of sexual abuse by appellant of various female child relatives. Assuming the trial court had abused its discretion by denying appellant’s mistrial motions, we are satisfied beyond a reasonable doubt that the cumulative nature of the oblique references to prior transactions in the general nature of an undesirable touching of K. M. in Alabama did not contribute to appellant’s convictions of the two child molestation charges involving his granddaughter H. M. Thus, any resulting error was harmless. See Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). The questions and answers at issue “could not have shocked the jury given all of the sordid details of this case.” Chastain v. State, 262 Ga. 178, 179 (3) (415 SE2d 629).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A0350.
    MATTHEWS et al. v. DeKALB COUNTY HOSPITAL AUTHORITY.
    (440 SE2d 743)
   Blackburn, Judge.

Appellants appeal the trial court’s order granting the motion for summary judgment of the defendant, DeKalb County Hospital Authority d/b/a DeKalb General Hospital (DeKalb General). Appellants’ three enumerations of error assert essentially the same argument and were not argued separately in appellants’ brief; therefore, they will be addressed together.

The underlying medical malpractice action arose out of the death of Mrs. Carolyn Matthews. On August 10, 1988, Mrs. Matthews arrived unassisted at the emergency room of DeKalb General at approximately 11:25 p.m. The triage nurse obtained Mrs. Matthews’ vital signs, recorded her history, and made an assessment.

Mrs. Matthews’ vital signs, although slightly elevated, were within normal limits and she indicated that she was not presently in pain. Mrs. Matthews stated that after eating, she had experienced a burning pain in her upper chest radiating to her right side that evening and on the previous evening. Mrs. Matthews told the triage nurse that after the pain subsided she needed to have a bowel movement. The triage nurse classified Mrs. Matthews as a category two patient, i.e., a non-life threatening condition. Mrs. Matthews was told that it. would be a long wait as the emergency room was very busy.

The social services representative deposed that he spoke with Mrs. Matthews between six and eight times while she waited to be seen by a doctor. He stated that she was not in any distress while she waited. After Mrs. Matthews had waited approximately four-and-one-half hours, the social services representative explained that the doctor would see her next and that he had an examination room available for her. However, Mrs. Matthews stated that she had waited too long and that she was leaving. The social services representative deposed that he “pleaded” with Mrs. Matthews to stay. Mrs. Matthews stated that she would see her doctor in the morning and she left. Mrs. Matthews did not see her doctor the next day; instead, she went to work. Mrs. Matthews died on August 12, 1988.

1. In order to establish liability in a medical malpractice action, the plaintiff must establish three elements: “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” (Punctuation omitted.) Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 49 (424 SE2d 338) (1992). The trial court’s determination that DeKalb General was entitled to summary judgment due to Mrs. Matthews’ voluntary termination of any relationship between herself and the hospital attacks the establishment of a duty and the proximate cause elements of plaintiff’s action. “To recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury. The requirement of proximate cause constitutes a limit on legal liability; it is a ‘policy decision . . . that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.’ [Cit.]” Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). A court’s determination of whether proximate cause exists, is appropriate in plain and undisputed cases. Id.

Decided February 4, 1994.

Bennett, Callahan & Schloegel, Michael T. Bennett, Robert L. Callahan III, for appellants.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., David V. Johnson, for appellee.

In the present case, appellants contend that DeKalb General was negligent in classifying Mrs. Matthews as a category two patient and in not treating her within the four-and-one-half hours she waited. However, Mrs. Matthews left the hospital at a time when the doctor was ready to see her, under her own power, and in no apparent distress. The next day, rather than seeing her personal doctor, Mrs. Matthews went to work. Mrs. Matthews’ voluntary termination of her relationship with the emergency room personnel at DeKalb General effectively severed any causal relationship between DeKalb General’s act of classifying Mrs. Matthews as a category two patient and her death.

2. We find this appeal to be without any arguable merit, and therefore assess against the appellants a penalty of $250 for prosecuting a frivolous appeal, to be imposed by the trial court on remittitur. Rule 26 (b) of the Rules of the Court of Appeals of Georgia; Arnold v. Gwinnett County Bd. of Tax Assessors, 207 Ga. App. 759, 760 (429 SE2d 146) (1993).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0364.
    SANDERS v. THE STATE.
    (440 SE2d 745)
   Blackburn, Judge.

The appellant, Roger Sanders, was convicted of thirteen counts of armed robbery, one count of burglary, one count of aggravated assault,. and possession of a firearm by a convicted felon. He was sentenced to thirteen consecutive life sentences on the armed robbery-convictions, consecutive sentences of twenty years’ imprisonment on the burglary and aggravated assault charges, and five years’ imprisonment for the possession of a firearm charge, also to be served consecutively to the other sentences. This appeal followed.

At 10:45 p.m. on April 25, 1989, a black male, wearing a stocking over his face and carrying a silver pistol, entered the office of the Days Inn motel in Brunswick, Georgia, and ordered the front desk clerk to give him the money from the register. He then ordered the clerk to lie face down on the floor, and left. A video camera installed in the front desk area recorded the event.

Four days before the Days Inn robbery, a man wearing a stocking over his face and brandishing a chrome revolver entered an apartment at the Ramada Inn in Brunswick and ordered the couple who lived there to lie down on the floor. The robber took their money and several pieces of jewelry, including a gold chain and a pumpkin pendant (which were recovered following Sanders’ arrest in July 1989). These victims subsequently viewed the videotape of the Days Inn robbery and identified that robber as the same man who had robbed them.

During the three months after the Days Inn robbery, several other nighttime robberies occurred at various motels in the Brunswick area, involving multiple victims consisting of motel employees or patrons. In each instance, the robber wore a stocking mask, wielded a pistol, and demanded the victims’ money and jewelry. Most of those victims viewed the Days Inn videotape and identified that robber as the same man who had robbed them.

Another incident occurred in the home of a 70-year-old widow. This victim confronted an intruder in her kitchen, who pulled her into the bedroom, started pulling at her clothes, and told her that he wanted sex. When she remarked that her husband would be home soon, he stopped undressing her and grabbed her jewelry and money. Afterwards, he held a gun to her head, shoved her into the bathtub, struck her, and ordered her to lie face down in the tub. This victim also subsequently viewed the Days Inn videotape and recognized that robber as her assailant.

Sanders eventually was arrested in late July 1989 following the robbery of a Ramada Inn, when the desk clerk was able to observe Sanders’ getaway vehicle and tag number. Inside Sanders’ car were the Ramada Inn cash drawer, cash, a loaded revolver, and a black stocking mask. A subsequent search of his residence uncovered ammunition for the revolver, two pairs of surgical gloves, and a large supply of pantyhose. Sanders confessed to this Ramada Inn robbery, and at trial he also confessed to the videotaped Days Inn robbery, but denied any involvement in the other incidents.

1. On appeal, Sanders contends that his trial counsel provided ineffective assistance of counsel by (1) failing to spend sufficient time with him prior to trial; (2) neither interviewing possible witnesses nor having any witness testify on his behalf; (3) failing to prepare him for testifying at trial; (4) failing to make any opening statement; (5) not objecting to the repeated showings of the videotaped robbery; (6) not objecting to a juror who knew one of the victims; and (7) not offering any mitigation evidence. The record fails to substantiate any of those grounds.

At the hearing on his motion for new trial, Sanders testified that before his trial, he met with defense counsel, an investigator,, and an assistant public defender once each, for a total of about two hours. He claimed that his interview with defense counsel only lasted about 15 minutes. Trial counsel had died before the hearing, but the investigator and the assistant public defender contradicted Sanders’ testimony. The investigator stated that he met with Sanders three or four times prior to the trial, and helped devise a defense. The assistant public defender recalled meeting with Sanders at least twice, with trial counsel present on both occasions.

Sanders also claimed that trial counsel failed to interview and call as witnesses three individuals with whom he played softball at the time some of the robberies occurred. However, the investigator testified that Sanders never mentioned anything about softball, and had only provided him with the nickname of a potential witness who could not be located. The assistant public defender likewise remembered no list of alibi witnesses having been provided by Sanders.

Sanders testified at trial and opened the door to his criminal record during cross-examination by noting that he had remained physically fit while in prison. He now blames trial counsel for that damaging testimony by accusing him of not adequately preparing him to testify. However, the record shows that trial counsel and the defense team repeatedly advised Sanders not to testify, but Sanders insisted on doing so. Under these circumstances, trial counsel cannot be la-belled ineffective where the defendant proceeded against counsel’s advice and blundered.

Many of the victims viewed the videotape of the Days Inn robbery during the investigation of the other robberies, and viewed the tape again during the trial. Several victims viewed the tape for the first time during the trial for the purpose of identifying the man who robbed them. Sanders contends that trial counsel was deficient in failing to object to such multiple viewings of the tape in the presence of the jury, because the tape was irrelevant to all of the robberies except the one depicted and placed undue emphasis on that robbery, thereby reinforcing the image of Sanders as an armed robber in the minds of the jury. However, use of the tape was relevant for purposes of identification and connecting Sanders to each incident, and any objection by trial counsel would have been without merit. “Failure to make a meritless objection cannot be evidence of ineffective assistance.” Hayes v. State, 262 Ga. 881, 884-885 (426 SE2d 886) (1993).

Sanders’ contention regarding the failure to make an opening statement, object to the selection of a juror who knew one of the victims, and failing to present mitigation evidence at the sentencing likewise are all without merit. The juror merely indicated that she knew the victim, which is insufficient reason to remove a juror for cause. See Pope v. State, 170 Ga. App. 799 (1) (318 SE2d 223) (1984). Waiver of opening statement is a matter of trial strategy that does not equate to ineffective assistance. Minton v. State, 205 Ga. App. 430 (422 SE2d 300) (1992). With regard to the failure to produce mitigation evidence, Sanders does not even suggest the existence of any, which is not surprising in view of his own admission that he had been in prison 27 out of his 42 years.

In order to demonstrate ineffective assistance of counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. Williams v. State, 207 Ga. App. 418 (427 SE2d 787) (1993). Sanders failed to make either showing, and the trial court properly denied his motion for new trial on that ground.

2. The 70-year-old victim testified that she would never forget the voice of the man who attacked and robbed her, and that the robber depicted in the videotape of the Days Inn robbery had that voice. On cross-examination, defense counsel established that the victim had not heard Sanders’ live voice at that point in the trial. The trial court subsequently asked the victim “You did hear his voice on the tape?” and then clarified by asking “Whoever’s voice it was, you heard that on the tape?” Defense counsel moved for mistrial on the grounds that the trial court’s initial inquiry constituted an improper comment on the evidence under OCGA § 17-8-57. The trial court denied the motion but instructed the jury that when he asked the question, he was only referring to the man’s voice on the tape heard by the victim.

The trial court has the right to propound a question or series of questions to develop the truth of the case. Thomas v. State, 240 Ga. 393, 400 (242 SE2d 1) (1977). Considered in its context, the trial court’s inquiry in no way constituted a comment on the evidence, and the trial court properly denied the motion for mistrial.

3. We also reject Sanders’ contention that the trial court erred in sentencing him on both the aggravated assault and armed robbery convictions involving the 70-year-old victim, because those two offenses merged as a matter of fact. Sanders correctly points out that while aggravated assault is not included in armed robbery as a matter of law, it may be included in that offense as a matter of fact. Hambrick v. State, 256 Ga. 148 (344 SE2d 639) (1986). However, in the instant case, “[t]he evidence established that the armed robbery was completed prior to the aggravated assault so that the crimes are separate as a matter of law. [Cit.]” Smith v. State, 258 Ga. 181, 183 (4) (366 SE2d 763) (1988).

Decided February 4, 1994.

Alan D. Tucker, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.

4. Lastly, Sanders contends that the evidence was insufficient to support his convictions on eight of the charges. However viewed in the light most favorable to the jury’s verdict, the evidence authorized a rational trier of fact to find Sanders guilty beyond a reasonable doubt of all the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0383.
    WORLEY v. PIERCE.
    (440 SE2d 749)
   Blackburn, Judge.

On December 22, 1992, the appellant, Delma Worley, filed this third complaint for damages against the appellee, Cresley John Pierce, a nonresident, arising out of an automobile collision of October 14, 1988. The two previous actions for damages against Pierce were voluntarily dismissed without prejudice by Worley on August 23, 1991, and December 22, 1992, respectively. Pierce timely responded to the instant complaint, asserting several defenses including the expiration of the two-year statute of limitation, and simultaneously moved the court to dismiss the action on this ground.

Based upon the parties’ submission of matters outside the pleadings in support and in opposition of the motion, the trial court, pursuant to OCGA § 9-11-12 (b), converted the motion to one for summary judgment on whether the statute of limitation had been tolled by Pierce’s relocation outside the state shortly after the collision. The parties were provided 30 days in which to submit additional material. The motion was subsequently granted by the trial court and this appeal followed. On appeal, Worley asserts that the trial court erred in granting the motion based upon the expiration of the statute of limitation, and erred in concluding that the affidavit of Worley’s counsel was hearsay and insufficient to support any opposition to the motion. We affirm.

1. “OCGA § 9-2-61 (a) provides for the renewal of actions within six months of their dismissal: ‘When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or, if permitted by the federal rules of civil procedure, in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.’ ” (Emphasis supplied.) Patterson v. Douglas Women’s Center, 258 Ga. 803 (2) (374 SE2d 737) (1989). See also Associated Writers Guild of America v. First Nat. Bank of Atlanta, 195 Ga. App. 820, 821 (2) (395 SE2d 23) (1990).

In the case sub judice, the record shows that Worley voluntarily dismissed both prior actions for damages against Pierce after the natural expiration of the applicable limitation period. However, on September 11, 1991, when Worley refiled the action within six months of his voluntary dismissal of the first action on August 23, 1991, he exercised his one and only opportunity to validly renew the action under OCGA § 9-2-61. This second action stood oil the same footing as to the limitation period as the original action, which was timely filed on November 28, 1989. See Stevens v. Faa’s Florist, 169 Ga. App. 189, 190 (311 SE2d 856) (1983). Thus, when Worley subsequently dismissed his renewal action on December 22, 1992, and refiled the instant action on that date, he was not authorized to do so under the statute. Accordingly, summary judgment in favor of Pierce on his statute of limitation defense was appropriate. First Nat. Bank of Atlanta, supra.

While Worley maintains that the statute of limitation was tolled based upon Pierce’s relocation outside the state shortly after the collision, we conclude otherwise. As this court recognized in Towns v. Brown, 177 Ga. App. 504 (339 SE2d 926) (1986) and Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875 (1) (201 SE2d 628) (1973), both relied upon by Worley, the two-year statute of limitation of OCGA § 9-3-33 is tolled where a defendant has removed himself from the state if such removal makes it impossible to perfect service. In the present case, contrary to Worley’s assertion in his brief, the record not only shows that service upon Pierce was possible under Georgia’s Long-Arm Statute, the record unequivocally shows that service of process was perfected upon Pierce in all three actions.

Decided February 4, 1994.

Mills & Chasteen, Ben B. Mills, J.r., for appellant.

Forbes & Bowman, Morton G. Forbes, for appellee.

2. We further reject Worley’s assertion that the trial court erred in concluding that his counsel’s affidavit was hearsay because, as the trial court correctly concluded, the affidavit was not based upon counsel’s personal knowledge. “ ‘OCGA § 9-11-56 (e) mandates that “(s)upporting and opposing affidavits shall be made on personal knowledge. . . ’ [Cit.]” Brown v. Apollo Indus., 199 Ga. App. 260, 261 (1) (404 SE2d 447) (1991). In the instant action, counsel’s affidavit does not contain an averment or affirmatively show that it was made based upon his personal knowledge of the alleged factual circumstances surrounding any alleged difficulty in obtaining information on Pierce’s whereabouts and in perfecting service upon Pierce. Such a deficient affidavit “may not be considered for that reason alone. [Cit.]” Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 101 (1) (183 SE2d 15) (1971). Under these circumstances, we do not hesitate to conclude that counsel’s affidavit was wholly deficient under the mandates of OCGA § 9-11-56 (e) to create an issue of fact for jury resolution.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       Although Worley asserts three enumerations of error, in his brief, he collectively argues enumerations 1 and 3. Accordingly, those enumerations will be combined for the purpose of this appeal.


author: Pope, Chief Judge.

text:
    A94A0720.
    In the Interest of A. C. J., a child.
    (440 SE2d 751)
   Pope, Chief Judge.

Appellant/mother seeks to appeal the order of the Juvenile Court of Gwinnett County terminating her parental rights with respect to her .minor child, A. C. J.

The Department of Human Resources has filed a motion to dismiss this appeal on the basis that the notice of appeal was' not filed within 30 days of an appealable order or judgment as required by OCGA § 5-6-38. We are constrained to agree and dismiss the appeal.

The record shows that the lower court’s order terminating appellant’s parental rights was signed by the trial judge on June 1, 1993 and filed on June 2, 1993. Appellant filed a motion for reconsideration, challenging the sufficiency of the evidence to support the termination order, on June 29, 1993. The trial court denied the motion on October 25, 1993, and appellant filed her notice of appeal on November 19, 1993.

Decided February 4, 1994.

Lyle K. Porter, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, David E. Clark, for appellee.

It is well established that a motion for reconsideration does not extend the time for filing a notice of appeal. Blackwell v. Sutton, 261 Ga. 284 (404 SE2d 114) (1991). Moreover, although the motion for reconsideration filed in this case requested a new trial, it is also well settled that “a motion for new trial, even when timely filed, will not ‘toll’ the time for filing an appeal in a juvenile court case.” In the Interest of M. A. L., 202 Ga. App. 768, 769 (415 SE2d 649) (1992). Rather, the proper method for challenging an order of the juvenile court is by filing a motion to modify or vacate pursuant to OCGA § 15-11-42, and an order on such a motion is appealable to this court even if the order is rendered more than 30 days from the original order sought to be vacated or modified. In the Interest of C. M., 205 Ga. App. 543, 544 (423 SE2d 280) (1992).

“In determining whether a motion filed within the 30-day statutory appeal period will be treated as a motion to vacate or modify pursuant to OCGA § 15-11-42, this court will look to the substance of the motion, not its nomenclature. [Cit.] Here, the only motion filed within the 30-day statutory appeal period did nothing more than challenge the sufficiency of the evidence [and state that the order was contrary to law and principles of equity and justice]. The motion made no reference to any of the factors which would warrant the vacation or modification of the court’s order under OCGA § 15-11-42. Consequently, the motion in this case cannot be treated as a motion to modify or vacate pursuant to that section.” In the Interest of M. A. L., 202 Ga. App. at 769. Accord In the Interest of C. M., 205 Ga. App. at 544.

It follows from the foregoing that the notice of appeal was not timely filed in this case and we are without jurisdiction to entertain this appeal, which must, therefore, be dismissed.

Appeal dismissed.

McMurray, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A93A1889.
    WILLIAMS v. SOUTHERN GENERAL INSURANCE COMPANY.
    (440 SE2d 753)
   Smith, Judge.

Williams filed an action on a policy of automobile insurance issued to him by Southern General, seeking recovery for collision damage to his vehicle suffered on March 10, 1987. Southern General filed a motion for summary judgment, contending that Williams failed to comply with the provisions of the policy with respect to filing a proof of loss and complying with an appraisal clause. The trial court granted summary judgment in favor of Southern General, and Williams appeals.

Williams admits that he failed to file a sworn statement in proof of loss within 60 days of the loss as required by the policy, which by its terms prevents him from bringing an action without complying with all conditions precedent. Williams contends, however, that the requirement of a proof of loss was waived by Southern General’s conduct in handling the claim.

While Williams does not recall when the first notice of the incident was given to Southern General, it is undisputed that Williams mailed a written repair estimate and photographs of the damaged vehicle to Southern General by April 3, 1987, when they were stamped “received” by the company and assigned a claim number. It is apparent from the record that Southern General’s employees had some difficulty in contacting Williams thereafter. However, as early as August 7, 1987, Williams’s attorney was in correspondence with Southern General’s representatives regarding a settlement. Southern General made an offer in settlement some time before October 29, 1987. On November 11, 1987, Williams’s attorney sent a demand letter to Southern General. Another letter was sent on February 11, 1988, and suit was filed on February 23, 1988. Southern General filed defensive pleadings, and discovery commenced. On May 6, 1988, Southern General’s attorney wrote Williams’s attorney observing that no proof of loss had been filed and enclosing a proof of loss form. The proof of loss was completed by Williams and forwarded to Southern General by his attorney on May 31, 1988.

1. OCGA § 33-24-39 requires that an insurer furnish a proof of loss form upon written request, and it provides that “[f]ailure or refusal to furnish the form upon written request or written notice of a loss shall constitute waiver of the right of the insurer to require proof of loss.” (Emphasis supplied.) This court has found that “a completed inventory sheet. . . amounted to the written notice of a loss specified in OCGA § 33-24-39. [Cits.]” Britt v. Independent Fire Ins. Co., 184 Ga. App. 225, 227 (2) (361 SE2d 226) (1987). The photographs and repair estimates, which included a list of the parts, prices, and labor charges required for the repairs, similarly placed the insurer on notice of the loss. “Under these circumstances we think that, at the very least, a jury question is presented as to whether the insurance company waived the proof of loss requirement by failing or refusing to provide the proof of loss form upon written notice of a loss.” Id.

Moreover, apparent ongoing settlement negotiations by both telephone and letter, without any mention of or demand for a proof of loss, also present a jury issue as to waiver of the policy requirement. See Lynn v. Ga. Farm &c. Co., 189 Ga. App. 209, 210 (1) (375 SE2d 259) (1988).

2. Southern General also sought summary judgment on the basis of Williams’s failure to comply with the appraisal clause of the policy, which requires that a request for appraisal be made within 60 days of submission of the proof of loss. Williams responds that Southern General waived the appraisal clause both by its conduct of negotiations and its wavier of the proof of loss.

Southern General did not invoke the appraisal clause until after this litigation began. The record reveals that in March of 1988, Southern General filed defensive pleadings raising the issues of noncompliance with the appraisal clause and proof of loss requirement, but it did not provide a proof of loss form to Williams until its letter of May 6, 1988. While Southern General suggested appraisal in that letter, written before the proof of loss form was completed by Williams, it did not invoke the appraisal clause until June 30, 1988.

A provision of an insurance policy may be waived by inaction and delay on the part of the insurer. Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 609 (2) (359 SE2d 399) (1987). Whether Southern General waived the appraisal clause by invoking it after litigation had commenced and the vehicle was destroyed presents a jury issue. The appraisal clause cannot be invoked without compliance with its terms, which are to be strictly construed against Southern General, the drafter. Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989). To be valid, the clause requires that a written demand for appraisal be made “within sixty days after receipt of proof of loss by the company.” If proof of loss has been waived, a superfluous proof of loss form submitted after litigation has commenced does not constitute “receipt of proof of loss by the company” within the meaning of the appraisal clause, or revive a clause itself dependent upon a provision of the policy that has already been waived. “If [Southern General] waived the policy provision at all it could not thereafter insist on it for any purpose. [Cits.] If there was indeed a waiver . . . the fact that [Williams] through his attorney thereafter acceded to the request of the company and forwarded proof of loss forms . . . did not reinstate [Southern General’s] right to demand [appraisal].” Napp v. American Cas. Co., 110 Ga. App. 673, 675-676 (2) (139 SE2d 425) (1964).

Decided February 7, 1994.

Mullís, Marshall, Lindley & Powell, Julius A. Powell, Jr., for appellant.

Jones, Cork & Miller, John T. Mitchell, Jr., for appellee.

Southern General has not met its burden of showing that there is no disputed issue of material fact and that it is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). The trial court erred in granting summary judgment in its favor.

Judgment reversed.

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


text:
    A93A1987.
    HATCHER v. HATCHER.
    (440 SE2d 755)
   Smith, Judge.

In this dispute over the exact boundaries of a tract of land subject to a lease agreement between Ernest Hatcher and his nephew J. R. Hatcher, Ernest filed a petition for declaratory judgment and injunctive relief against J. R. Following a bench trial, the trial court entered an order “finding that the lease agreement entered into between the parties on August 5, 1988, comprises the 1.61 acres of land as shown on the plat of survey made by Marvin D. Clements in November of 1992.” Ernest filed this appeal in the Supreme Court, which transferred it to this court without opinion.

1. Boundary disputes are within the jurisdiction of the Court of Appeals. Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991). “Rarely does a boundary-line dispute exist in which equitable relief is not sought, but such relief is incidental to and secondary to the principal issue — the location of the line[s].” Id. at 610.

2. The evidence at trial showed that Ernest owns land in Laurens County. Prior to August 5, 1988, he pointed out a portion of this land to his nephew and told him he could lease it for life. He helped place J. R.’s camper trailer in the approximate center of this tract and dug a drainage line. Thereafter, on August 5, 1988, Ernest asked his attorney, Dale Thompson, to draw up a document leasing the tract to J. R. for life and giving him certain fishing rights in a pond on Ernest’s land. Thompson testified he advised Ernest that a plat was needed. When Ernest refused to have a survey made, Thompson instead drafted the lease from a simple line drawing of the subject tract.

The document recites that Ernest agreed to lease to J. R. “a tract of land fronting 60 yards on Hillbridge Road and extending hack in equal width a depth of 130 yards in Land Lot 50 in the 18th Land District of Laurens County” for life.

J. R. testified he lived on the tract without problems for more than two years after the lease was executed. A well was dug directly behind the camper. In November 1990, he sold the camper and placed a mobile home on the tract. Approximately five months later, Ernest dug a drainage ditch from a field to the pond across the driveway on the leased tract, preventing J. R. from accessing his property by vehicle. When J. R. refused to move the mobile home, Ernest brought this action, alleging the mobile home was encroaching on his land and was not on the leased tract.

Relying on Laurens County Bd. of Ed. v. Stanley, 187 Ga. 389 (200 SE 294) (1938), Ernest argues that the trial court erred in concluding that the lease disclosed with certainty his intention with respect to the quantity and location of the subject tract because the description in the lease was legally insufficient. We do not agree.

“Perfection in legal descriptions of tracts of land is not required. ‘If the premises are so referred to as to indicate . . . (the grantor’s) intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.’ [Cit.] ‘(T)he key to the intention of the grantor must be found in the [document] itself. . . .’ [Cit.]” Wisener v. Gulledge, 251 Ga. 419, 420 (306 SE2d 642) (1983).

Two plats of survey commissioned by Ernest in contemplation of this litigation were introduced into evidence, as well as another plat commissioned by J. R. The two plats commissioned by Ernest show the leased tract extending back from Hillbridge Road at acute angles, with the mobile home and the well being off the leased tract. The plat introduced by J. R., drawn by Marvin D. Clements, shows the leased tract extending back from Hillbridge Road at 90 degree angles; it places the mobile home and the well on the leased tract.

All the plats depict the tract beginning at the same points on Hillbridge Road. Although it is not possible to tell where on Hill-bridge Road the tract is located using only the description in the lease, all the plats show this without dispute. The parties tied the description down to a specified starting point, providing a “key” to the location of the beginning point. Clements testified that if the parties to the lease agree on the starting points, the description is a sufficient one.

Both Clements and Stanley Flanders, who prepared one of the plats for Ernest, testified that when property is described as extending back “in equal width,” it is customarily interpreted as meaning at 90 degree angles. We therefore find no error in the trial court’s conclusion that the lease comprised the tract as shown on the plat prepared by Clements, which shows it extending back from Hillbridge Road at 90 degree angles.

Decided February 7, 1994.

Billy R. Right, for appellant.

H. G. Bozeman, for appellee.

3. Because we affirm the trial court’s decision that the mobile home and well are within the leased tract, the other issues raised in the complaint and counterclaim, which were contingent upon a contrary result, are moot.

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A93A2043.
    LESLIE v. THE STATE.
    (440 SE2d 757)
   Beasley, Presiding Judge.

Appellant was indicted for the forcible rape, child molestation, and statutory rape of a female child on or about October 31, 1992.

The victim testified that on the night in question, appellant came into her room while she was sleeping, pulled his and her pants and underclothes down, laid on top of her, held her hands above her head, and inserted his penis in her vagina. Although appellant admitted going into the victim’s room and pulling her pants down, he denied raping her. Subsequent forensic investigation failed to detect the presence of spermatozoa, seminal fluid, or pubic hair not consistent with the victim’s in her vagina or on her clothing.

The trial court instructed the jury that if from the evidence it was not convinced beyond a reasonable doubt that appellant was guilty of the crimes charged, it would be authorized to consider the lesser included offenses of sexual battery or simple battery and/or criminal attempt. The verdict form listed each of the three lesser-included offenses as options under each of the three indicted crimes.

The jury found appellant guilty of child molestation and not guilty of rape and statutory rape, but as to each of the latter two, guilty of sexual battery, simple battery, and criminal attempt. At sentencing, the trial court merged the lesser included offenses into the child molestation offense and entered judgment and sentence on it.

On appeal, appellant contends that the court erred in not instructing the jury on OCGA §§ 16-1-7 (a) and 16-1-6. In his enumeration of error, he describes this as a failure to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offenses to find him guilty of, if any; and, if this was not error, so that the multiple verdict was proper, then the court erred by not merging the greater offenses into the least serious offense.

When the same conduct of an accused may establish the commission of more than one crime, the state may prosecute for each crime which his conduct established, although defendant may not be convicted and punished for multiple offenses if one crime is included in the other. OCGA § 16-1-7 (a); Green v. State, 170 Ga. App. 594 (2) (317 SE2d 609) (1984); see OCGA § 16-1-6. “Conviction” is not the verdict; it is the judgment on the verdict or guilty plea. OCGA § 16-1-3 (4); Black’s Law Dictionary (4th ed. rev. 1968), p. 403. A charge to the jury, that it is only authorized to consider the lesser offense if the defendant be found not guilty of the greater offense, is a correct statement of the law. Alexander v. State, 247 Ga. 780, 784 (3) (279 SE2d 691) (1981); Moore v. State, 151 Ga. App. 100, 101 (2) (258 SE2d 915) (1979). The lesser included offense merges with the greater. Johnson v. State, 195 Ga. App. 723 (1) (394 SE2d 586) (1990); Green v. State, 170 Ga. App. 594 (2) (317 SE2d 609) (1984). Compare Thomas v. State, 261 Ga. 854 (413 SE2d 196) (1992), involving mutually exclusive crimes.

Consequently, where, as here, the jury by its verdict finds the defendant guilty of multiple offenses arising from the same conduct, the court does not err in convicting and sentencing the defendant for the greater offense after merging the lesser offenses into it.

Appellant relies upon Moreland v. State, 183 Ga. App. 113, 115 (2) (358 SE2d 276) (1987), as authority for requiring a jury charge on OCGA §§ 16-1-6 and 16-1-7; his reliance is misplaced. It is true that the court posited that “a set of circumstances could conceivably arise in which the issue of whether one crime was included in another as a matter of fact would itself be a question of fact to be resolved by the jury. In such a case, a proper charge on OCGA § 16-1-6 (1) would undoubtedly be required.” However, in this case there was no such issue of fact, as the trial court did not err in refusing to charge these two statutes.

Finally, contrary to appellant’s argument, there was no ambiguity in the jury verdict. Thus the rule that defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict, applied in such cases as Lindsey v. State, 262 Ga. 665, 666 (1) (424 SE2d 616) (1993), does not apply.

Judgment affirmed.

Cooper and Smith, JJ., concur.

Decided February 7, 1994.

John 0. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Assistant District Attorneys, for appellee.


text:
    A93A2262.
    HASTINGS v. THE STATE.
    (441 SE2d 83)
   Smith, Judge.

David Mark Hastings pled guilty to a charge of being a habitual violator, OCGA § 40-5-58, and properly reserved the right to appeal the denial of his motion to suppress. See Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991).

In his sole enumeration of error, Hastings contends the trial court erred in denying his motion because the evidence supporting the charge was obtained in an illegal stop and arrest.

The evidence presented at the hearing on the motion to suppress showed that on June 28, 1992, shortly after coming on duty at midnight, Deputy James Reed of the Rabun County Sheriff’s Department was informed of a “lookout” for a possible stolen pickup truck, described as a 1987 blue Ford F-250. The tag number was given. He was informed that the person driving the truck was Hastings, that Hastings had no driver’s license, and that a bench warrant had been issued for Hastings for failure to appear in court. Reed was parked in the Tallulah Falls area of Rabun County less than a mile from the Habersham County line. At about 1:00 a.m., he observed a truck matching the description in the “lookout” pass him. He pulled out after the truck to determine whether it was the one reported stolen. When he was able to observe the license tag number, he confirmed that the truck was the one described in the “lookout” and continued his pursuit. The truck was traveling at or under the speed limit, but Reed observed it weaving across the centerline. After contacting his dispatcher and requesting help from Habersham County, he continued following the truck. He testified that he intended to continue until meeting up with the Habersham County officers, but when the truck turned onto a side road, he was afraid of losing it and felt it necessary to stop the truck. The stop was made more than a mile into Habersham County.

Reed approached the truck and asked the driver, later identified as Hastings, for his driver’s license and proof of insurance. Hastings could produce no license, but offered an insurance card. A passenger was identified. He was asked to step out of the truck, and Reed observed several open containers of beer in the truck. Reed testified that Hastings had glassy, watery eyes and a strong odor of alcohol on his breath and that he stumbled when he got out of the truck. Reed arrested Hastings, handcuffed him, and placed him in the back of his patrol car. Because the Habersham County officers had been alerted, he waited until they arrived before transporting Hastings back to Ra-bun County.

Decided February 7, 1994.

Timothy P. Healy, for appellant.

Michael H. Crawford, District Attorney, George Guest, Assistant District Attorney, for appellee.

1. Hastings first argues that his arrest was illegal because he was arrested in Habersham County by a Rabun County officer who had not personally observed a criminal act in Rabun County. We do not agree.

“Ordinarily, as a matter of legal policy, a peace officer has power of arrest only in the territory of the governmental unit by which he was appointed, but there are exceptions to this rule. [Cit.]” Watkins v. State, 207 Ga. App. 766, 771 (430 SE2d 105) (1993). In City of Winterville v. Strickland, 127 Ga. App. 716, 718-719 (2) (194 SE2d 623) (1972), this court identified two exceptions, holding that former Code Ann. § 92A-509 (substantially identical to current OCGA § 40-13-30), dealing with arrests for traffic offenses, “provides by implication that certain officers (including deputy sheriffs) have arrest powers for these offenses outside their appointed territories. This interpretation is compelled by the statute’s specific territorial restriction of only municipal officers. However, under common law even a municipal officer has power of arrest outside his city limits when a ‘hot pursuit’ situation exists.” Id. at 719. Reed’s pursuit of Hastings therefore was authorized. It follows that Reed also had authority to arrest Hastings when the pursuit was successful. See Horton v. State, 206 Ga. App. 242, 243 (2) (424 SE2d 882) (1992).

2. We likewise do not agree with Hastings that probable cause was lacking for the arrest. Although the truck eventually was determined not to have been stolen, that has no bearing on the validity of the pursuit. When Reed was pursuing Hastings, he was doing so lawfully in response to information that the truck Hastings was driving had been reported stolen. In addition, a bench warrant had been issued for Hastings. Both reasons provided sufficient articulable suspicion for the stop. In addition, once in Habersham County, Reed observed the truck weaving. When the valid stop was made, Reed’s senses provided probable cause for the arrest. See Delong v. State, 185 Ga. App. 314, 315 (363 SE2d 811) (1987).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A93A2473.
    FOUCHE v. THE STATE.
    (440 SE2d 758)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of driving without a license, driving with no insurance and driving with a blood alcohol concentration of .10 grams or more in violation of OCGA § 40-6-391 (a) (4). The trial court entered the following transcript of evidence from recollection pursuant to OCGA § 5-6-41 (g): “About midnight, on September 9, 1992, Brunswick Police Officer Ray Sarro, saw a white male leave a black neighborhood in a car. The officer, over defense objection, described the neighborhood as a high crime area.

“Suspicious upon seeing a white male leaving this black, alleged high crime neighborhood, the Officer followed the car. The Officer had not observed anything illegal at this time.

“After following the car, the Officer testified that he saw the car weave. The Officer stopped the car. Officer Sarro testified that he smelled alcohol on the person he stopped. The driver could not produce a driver license or insurance card. The Officer arrested the driver. The police later identified the driver as [defendant] Billy E. Fouche.

“The Officer testified that Mr. Fouche was extremely drunk. The Officer took Mr. Fouche to the police station where an intoximeter test was administered to the Defendant with a result of .22%. Officer Sarro saw Mr. Fouche converse with Metro Drug Squad Officer at the scene. Officer Sarro did not participate in that conversation.

“Mr. Fouche testified that he had visited a black club looking for a friend. Mr. Fouche told the jury that he had not drunk any alcohol. After leaving the club, Mr. Fouche said that as he drove, a police officer stopped him for no reason. Mr. Fouche denied weaving.

“The Officer arrested Mr. Fouche and took him to the police station. Mr. Fouche alleged that the Officer stopped him without probable cause. Mr. Fouche believed that the Officer stopped him because the Officer saw a white male in a black area.”

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion to suppress, arguing Officer Sarro’s stop of his vehicle was pretextual and therefore illegal. This contention is without merit. Officer Sarro’s testimony that he stopped the vehicle defendant was operating after observing it weave in the road is sufficient to authorize the trial court’s finding that the stop of defendant’s vehicle was not pretextual. McIntosh v. State, 185 Ga. App. 612 (365 SE2d 454).

Decided February 7, 1994.

James A. Yancey, Jr., for appellant.

Richard H. Taylor, Solicitor, for appellee.

2. Defendant raises the sufficiency of the evidence in his second enumeration, arguing that “without the illegally seized evidence, no evidence exists to provide a conviction of Mr. Fouche.” This argument does not support defendant’s enumeration. Nonetheless, the transcript of evidence recorded from recollection pursuant to OCGA § 5-6-41 (g) and exhibits found in the record authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of driving without a license, driving with no insurance and driving with a blood alcohol concentration of .10 grams or more in violation of OCGA § 40-6-391 (a) (4). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Boose v. State, 185 Ga. App. 728 (365 SE2d 534).

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs in judgment only.


author: Birdsong, Presiding Judge.

text:
    A94A0446.
    LEAVER v. THE STATE.
    (440 SE2d 760)
   Birdsong, Presiding Judge.

Stephanie Leaver appeals her judgment of conviction of armed robbery (OCGA § 16-8-41) of Ms. Stark and aggravated assault with intent to rob (OCGA § 16-5-21 (a) (1)) of Ms. Johnson. Held:

1. Appellant asserts the trial court erred in denying her motion for directed verdict as to the armed robbery charge on the grounds of insufficient evidence. Appellant, citing, inter alia, Fitz v. State, 201 Ga. App. 83 (410 SE2d 186) and Muckle v. State, 165 Ga. App. 873 (303 SE2d 54), argues that the circumstantial evidence is insufficient to prove the essential element of “identity.” The proper test when sufficiency of the evidence is challenged by the procedure of a motion for directed verdict of acquittal is the reasonable doubt test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889); accord Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367).

The circumstances surrounding the commission of the aggravated assault with intent to rob were virtually identical to the circumstances surrounding the armed robbery. Further, the aggravated assault offense was consummated within 70 days of the armed robbery offense. Both cases occurred on a Sunday afternoon in the same post office near a day care center where appellant worked, the victims were female and their car keys demanded by a person holding either a gun or a gun that fired blanks, and the perpetrator uttered strikingly similar statements during the commission of these offenses.

Appellant was identified positively as the perpetrator of the aggravated assault offense both at trial and at a pretrial show-up by Ms. Johnson; an independent witness who had walked into the post office when appellant was assaulting Ms. Johnson substantially corroborated this identification. Ms. Johnson testified as to the circumstances surrounding the aggravated assault upon her by appellant.

Ms. Stark testified as to the nearly identical circumstances of the armed robbery committed upon her at the same post office, but she could not positively identify appellant at trial. Although Ms. Stark could not positively identify appellant as the perpetrator of the armed robbery, during her testimony she gave a general description of the female robber. The jury was free to compare Ms. Stark’s in-court description with the visible physical features of appellant. Before trial Ms. Stark initially picked out one picture that looked like the perpetrator, but informed the police that the perpetrator had different length hair. Ms. Stark testified that the female who robbed her was armed with some type of revolver; the gun was not recovered. State’s Exhibit No. 10, a toy gun, was not similar to the gun used by Ms. Stark’s assailant. Detective Legg testified that, when shown a photographic array subsequent to the aggravated assault of Ms. Johnson and before trial, Ms. Stark tentatively identified a photograph of appellant; however, Ms. Stark stated she was only about “half sure” that the photograph was of her assailant.

After proper foundation has been laid, similar transaction evidence may be admitted' for numerous legitimate purposes, including that of identity. See generally Williams v. State, 261 Ga. 640 (409 SE2d 649); compare Mincey v. State, 257 Ga. 500, 505 (7) (360 SE2d 578) where “the State’s case being based largely upon circumstantial evidence, the evidence of similar crimes was necessary for the purpose of showing identity and course of conduct.” Likewise, the evidence of the circumstances surrounding the commission of the extremely similar aggravated assault offense upon Ms. Johnson, although independently admissible to prove the averments in the aggravated assault charge, was admissible as relevantly bearing on the identity of appellant as the perpetrator of the previous armed robbery of Ms. Stark. The weight to be given this evidence, when coupled with other evidence above discussed, was within the sole province of the jury. The jury found appellant guilty of both offenses.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Applying the standard of Jackson v. Virginia, supra, as we must (Wilburn, supra; Daras, supra), and reviewing the transcript in a light most favorable to the jury’s verdict, we conclude the record reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of both offenses of which convicted. The trial court did not err in denying the motion for directed verdict. Compare Cox v. State, 205 Ga. App. 375 (1) (422 SE2d 68).

Decided February 7, 1994.

Abbi S. Taylor, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

2. Appellant, relying, inter alia, on State v. Alvarado, 260 Ga. 563 (397 SE2d 550), asserts the trial court erred in denying her request for a lesser included offense charge of robbery to the armed robbery count. Ms. Stark testified that she does not know whether the assailant’s gun was pointed directly at her. Her assailant approached, saying she did not want to hurt Ms. Stark; “in her left hand she had a gun and her right hand was extended and she was saying, give me your car keys.” When the assailant repeated the demand, she was holding the gun in her left hand, “and she especially was calling my attention to it because it was an up and down motion. She said, I don’t want to hurt you. Give me your car keys.” Ms. Stark was looking at the gun, as her assailant “repeated her demand . . . waving the gun.” She does not know whether the assailant’s gun was real or a fake, and she was not prepared to find out. Ms. Stark probably would not have given up her car keys if her assailant had not had the gun.

The lesser offense of robbery was not reasonably raised by the evidence. Rather, the evidence establishes either that appellant committed the crime of armed robbery or no crime at all upon Ms. Stark. “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229); see Hambrick v. State, 174 Ga. App. 444 (2) (330 SE2d 383). Appellant’s second enumeration of error also is without merit.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A1903.
    VEAL v. THE STATE.
    (440 SE2d 762)
   Cooper, Judge.

Appellant was convicted of the offense of false report of a crime. He appeals from the judgment of conviction and sentence, enumerating as error that there was a fatal variance between the allegations set forth in the accusation and the evidence presented at trial.

Viewed in a light favorable to the prosecution, the evidence shows that appellant brought his sister, Mary Ware, and her children to a family gathering at an Atlanta park. Appellant had been drinking, and he and Mrs. Ware got into an argument. In the course of the argument, appellant said to Mrs. Ware, “If you want to go home, you take your own ass home.” Mrs. Ware went to appellant’s van, and finding the key in the ignition, left the park in the van. Appellant silently watched the van leave the park, walked to a public telephone and reported to the Atlanta Police that his van had been stolen. Appellant testified that he did not know who took his van but silently observed the van being driven away without asking any of his relatives if any of them had seen who took the van.

As a result of appellant’s report, the van was entered into the Georgia criminal investigation computer network and was recovered by the Riverdale Police Department at Mrs. Ware’s Riverdale home. The case was referred to Detective D. B. Partridge of the Atlanta Police Department Auto Theft Division for investigation. A statement was obtained from Mrs. Ware in which she indicated that she had come to the park with appellant; that appellant became intoxicated; that appellant knew that she had possession of the van because he told her to take the van and leave; that the keys were in the van; that she had previously driven the van on many occasions; and that appellant became upset because she refused to come back to the park and pick him up in his intoxicated state.. Detective Partridge also interviewed appellant and testified that based on appellant’s responses, he got the impression that appellant had been intoxicated, could not drive and gave Mrs. Ware permission to leave with the van. Detective Partridge concluded that appellant knew or should have known who had possession of his vehicle when he called the Atlanta Police Department to report it stolen. Detective Partridge also revealed that after appellant’s initial call to the Atlanta Police Department, appellant called the Riverdale Police Department and dispatched them to Mrs. Ware’s residence to recover the vehicle. The interview concluded with appellant’s arrest for making a false report of an auto theft.

The accusation charging appellant with giving a false report alleged that appellant “willfully and knowingly [gave] a false report of a crime to D. B. Partridge, a law enforcement officer of said State, in that he, said accused, did report that a 1987 Chevrolet van had been stolen, when in truth and in fact, the aforesaid vehicle had not been stolen.” Appellant contends there was no evidence that he reported a crime to Detective Partridge as alleged in the accusation; that Detective Partridge took no part in receiving the initial complaint; and that the actual report was taken by someone other than Detective Partridge; therefore, the evidence did not support the finding of guilt.

Decided February 8, 1994.

Paul McGee, for appellant.

Paul L. Howard, Jr., Solicitor, Scott E. Heffington, Deborah Espy, Assistant Solicitors, for appellee.

OCGA § 16-10-26 provides that “[a] person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor.” Although the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant gave a false report of a crime, our review of the transcript does not reveal actual testimony that appellant specifically gave a report to Detective Partridge, as alleged in the accusation. In fact, when pressed on cross-examination, Detective Partridge testified that appellant did not make any statement to him at all. However, “ ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ [Cit.] The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. [Cit.] Unless the variance subjects defendant to one of these dangers it is not fatal. [Cit.] . . . The true inquiry is whether there has been such a variance as to ‘affect the substantial rights’ of the accused. [Cits.]” (Indention omitted.) Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991). OCGA § 16-10-26 proscribes false reporting of a crime “to any law enforcement officer or agency of this state.” It is undisputed that appellant reported a stolen van to the Atlanta Police Department. Therefore, there was no fatal variance where Atlanta Police Detective Partridge was named in the accusation and the evidence showed that the false report was made to another Atlanta police official. Appellant was “sufficiently informed of the [charge] against him so that he could prepare a defense. Moreover, there was no danger that [appellant] would be prosecuted again for the same offense.” (Footnote omitted.) Battles v. State, 262 Ga. 415, 417-418 (5) (420 SE2d 303) (1992). See also Watkins v. State, 207 Ga. App. 766 (1b) (430 SE2d 105) (1993).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Johnson, Judge.

text:
    A94A0109.
    BYRD v. THE STATE.
    (440 SE2d 764)
   Johnson, Judge.

Eddie Byrd was tried before a jury and convicted of one count of sale of cocaine. He appeals from his conviction, asserting two related enumerations of error.

1. Byrd contends that the trial court erred in refusing to charge the jury on his sole defense of entrapment. “In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Under the majority view (which is followed in Georgia), the predisposition of the defendant toward crime is the key element of the defense.” (Citations and punctuation omitted.) Oswell v. State, 208 Ga. App. 883 (1) (432 SE2d 586) (1993). As was the case in Os-well, there is no evidence in this case of the second or third elements of entrapment.

A civilian informant working for the Calhoun Police Department was fitted with a wire which allowed the transmission, interception and recording of his conversations. He was provided with $60 of city funds with which to purchase cocaine. The agent went to an area of town known as the “Wall,” where he hoped to buy drugs. Byrd was not there, but the informant asked for him by his nickname, “Easy B.” The tape, played at trial, indicates that Byrd arrived on the scene shortly after the agent’s arrival and sold him four pieces of crack cocaine. Byrd then told the agent who to ask for if he was not on the street when the agent wanted to buy more. The informant placed the cocaine in a cigarette pack which he put into his shirt pocket and left the scene, meeting with police to deliver the drugs and recording device.

“There is no entrapment where the agent merely furnishes an opportunity to a defendant who is ready to commit the offense. . . . [Ajbsent other circumstances, it is generally held that where an [agent] simply makes a request, as to purchase contraband, and there is ready compliance, the defense of entrapment is not available.” (Citations and punctuation omitted.) Adams v. State, 207 Ga. App. 119, 120 (1) (427 SE2d 90) (1993). See also Clayton v. State, 197 Ga. App. 616 (398 SE2d 723) (1990). Not only is there no evidence that Byrd was not predisposed to committing the crime of sale of cocaine, Byrd appeared ready and willing to sell the cocaine to the agent. There is simply no evidence in the record that the agent used undue persuasion, incitement, or deceitful means in order to effect the transaction. Byrd did not present any evidence in the case and nothing in the State’s case raises the issue of entrapment. The trial court did not err in refusing to charge the jury on that theory.

Decided February 8, 1994.

Scott J. Forster, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

2. There being insufficient evidence to warrant a jury instruction on entrapment, it was not error for the trial court to prevent counsel from presenting argument on that issue during closing remarks. “The trial court has the right and duty to govern the scope of argument by counsel both prior to and after the presentation of evidence. The proper range of comment by counsel is a matter within the discretion of the trial court.” (Citation and punctuation omitted.) Osborne v. State, 177 Ga. App. 408, 409 (339 SE2d 627) (1985). A review of the evidence presented in this case gives us no reason to interfere with that discretion.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A0122.
    VEST v. THE STATE.
    (440 SE2d 765)
   Johnson, Judge.

Jack Vest appeals from his convictions of two counts of aggravated child molestation and one count of child molestation.

1. Vest contends that the State failed to prove that two of the offenses occurred in Whitfield County, where he was tried, and therefore venue was not established beyond a reasonable doubt. Vest’s ten-year-old stepdaughter told her fourth-grade teacher that she had been sexually abused. The teacher immediately related the information to the principal of the elementary school she attended in Whitfield County, who arranged for a representative of the Whitfield County Department of Family & Children Services and the sheriff’s department to come to the school to talk to the child. The child related events which she said had occurred the previous afternoon. While her mother went to the store to buy grass seed, her stepfather told her to sit in a chair in the kitchen and perform oral sodomy on him while he watched for his wife out the window. Vest does not dispute the propriety of venue in Whitfield County with respect to that offense. The victim also described an incident which had occurred the previous year when Vest had come into her room while she was asleep, pulled down her pajamas and performed sodomy on her. Another event, which had also occurred while she was in the third grade, occurred when Vest drove her to cheer leading practice at the school. Rather than taking the usual route, he indicated that he knew of a short cut. They stopped in a wooded area at the end of a road where Vest ordered the girl to perform sodomy on him. She also testified that sometimes her mouth would become too sore to continue and that Vest would then have her rub his penis “up and down” with her hands.

The sheriff testified that all of these events took place in Whitfield County. The victim, however, in response to the question: “Wasn’t there a conversation about two months before this [event in the kitchen] about Jack not being your father?” replied, “Yes sir, we was moving out of Chatsworth and she mentioned — and she asked me if — if I knew that Jack wasn’t my real father. . . .” Chatsworth is not in Whitfield County. While testifying for the defense, the girl’s mother stated that they lived in Whitfield County for almost two years. Vest testified that he had lived at his present address for about a year and a half.

“When the evidence as to venue is conflicting, the State must prove venue as a jurisdictional fact beyond a reasonable doubt.” (Citations and punctuation omitted.) Loyd v. State, 202 Ga. App. 1, 3 (2) (413 SE2d 222) (1991). The evidence presented was sufficient to permit the jury to find beyond a reasonable doubt that venue of all the charges brought against Vest was in Whitfield County. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Vest’s assertion that the trial court erred in refusing to give his proffered charge regarding merger of offenses is without merit. “A person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). “A person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” (Emphasis supplied.) OCGA § 16-6-4 (c).

Vest was indicted for child molestation based on manual masturbation which he instructed his stepdaughter to perform on him. The charges of aggravated child molestation resulted from distinct events, one in which the child performed oral sodomy on Vest and on another occasion, his having placed his mouth on the child’s vagina. “An act of sodomy against a child is aggravated sodomy. [Cit.] Child molestation and aggravated sodomy are legally distinct, and when, as here, the indictment for each offense is based on separate and distinct acts, the offenses do not merge. [Cit.]” Howard v. State, 200 Ga. App. 188, 191 (5) (407 SE2d 769) (1991). See also Pressley v. State, 197 Ga. App. 270 (1) (398 SE2d 268) (1990). The trial court did not err in refusing to charge on merger of the two, separate offenses.

Decided February 8, 1994.

Little & Adams, Sam F. Little, for appellant.

Jack O. Partain III, District Attorney, Robert B. Richbourg, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A93A2022.
    BROWN v. MIDDLE GEORGIA HOSPITAL, INC.
    (440 SE2d 687)
   Andrews, Judge.

Appellant John Brown, as surviving spouse of Cotis Brown, filed a medical malpractice action against Middle Georgia Hospital on July 1, 1992. The complaint alleged that Mrs. Brown was admitted to the hospital on July 11, 1990 and that she died September 13, 1990. An original notarized affidavit of Dr. Harvey Jones was filed contemporaneously with the complaint pursuant to OCGA § 9-11-9.1. Brown voluntarily dismissed the action without prejudice on July 28, 1992.

Brown refiled the complaint, pursuant to OCGA § 9-2-61, on January 27, 1993. Attached to the renewed complaint was a facsimile copy of the affidavit of Patricia Zack, R.N. No reference was made to the prior affidavit in the renewal action. On February 8, 1993, Brown filed a motion requesting the court to consider the filing of a facsimile copy of the affidavit an inadvertent error. The motion requested that the court find that the affidavit of Ms. Zack was timely filed. The trial court granted that motion on February 8, 1993, finding that through inadvertent error, a notarized expert affidavit was not filed with the complaint.

On February 26, 1993, Middle Georgia Hospital filed its answer to the complaint. Contemporaneously therewith, the hospital filed a motion to strike the affidavit and to dismiss the complaint. After a hearing on the matter, on May 4, 1993, the trial court dismissed the complaint with prejudice. In doing so, the court found that the facsimile copy of the affidavit filed was insufficient because it did not contain an original signature of the affiant and an original jurat. The court also determined that the failure to file a sufficient affidavit was not the result of a “mistake” so as to constitute an amendable defect, and that the statute of limitation had expired.

1. In his first enumeration of error, Brown claims that the trial court erred in dismissing his renewed complaint since the facsimile copy of the affidavit was sufficient. Brown also argues that the trial court erred in finding that his failure to file an original affidavit did not constitute an amendable defect. We note at the outset that in reviewing the trial court’s action on this issue, the trial court is allowed broad discretion. “[I]n the absence of legal error, the sole question for determination is whether there is any evidence to authorize and support that exercise of discretion.” (Citation and punctuation omitted.) Archie v. Scott, 190 Ga. App. 145, 146 (2) (378 SE2d 182) (1989). The court’s discretion is not disturbed absent manifest abuse. Brake v. Mintz, 193 Ga. App. 662 (388 SE2d 715) (1989).

With regard to whether a facsimile copy may be filed with the complaint, we turn to Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (2) (419 SE2d 36) (1992) for guidance. In that case, we noted that “[ajlthough the statute contemplates that the original affidavit of the expert should be filed, our decision in Gooden v. Ga. Baptist &c., 198 Ga. App. 407 (1) (401 SE2d 602) (1991) does not prohibit trial courts when justice so requires from considering facsimiles of affidavits that are available during the statutory period. See Emory Clinic v. Wyatt, 200 Ga. App. 184 (3) (407 SE2d 135) (1991); Reid v. Brazil, 193 Ga. App. 1 (2) (387 SE2d 1) (1989).” Waldroup, supra at 258. In Waldroup, “[b]ecause the record supports the plaintiffs’ contention that the Sargent affidavit was available during the statutory grace period, the Georgia Supreme Court’s decision in St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (1) (b) (377 SE2d 847) (1989) requires that plaintiffs be allowed to amend their complaint.” Waldroup, supra at 258.

Thus, the resolution of whether a facsimile copy of an affidavit may be filed with the complaint is determined by whether the failure to file the proper affidavit in the first place constitutes an “amendable defect.” In this regard, OCGA § 9-11-9.1 (f) provides: “[i]f a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” (Emphasis supplied.)

In support of his motion to set aside the dismissal in this case, Brown’s counsel filed an affidavit. With regard to her alleged mistake, she avowed that: “inadvertent error prevented me from being able to file the original expert affidavit of plaintiff’s first expert . . . with plaintiff’s renewed complaint. Specifically, I stated that I was informed by Ms. Sheppard that because an emergency arose at the hospital where she worked which prevented her from being able to personally mail her affidavit, she asked her mother to mail the affidavit. Forgetting that there was a time difference between Georgia and Tennessee, the affidavit was not mailed in time. Due to time constraints, and because I was not certain that I could rely on my first expert, I contacted my second expert, Ms. Patricia Zack, R.N. and requested that she fax to my office a copy of her original affidavit. Ms. Zack’s facsimile affidavit and plaintiff’s renewed complaint was timely filed with the court on January 27, 1993.”

We find no error in the trial court’s rejection of Brown’s contention that the failure to file the affidavit was an amendable defect within the meaning of the statute. There was no evidence that there was an affidavit in counsel’s possession at the time of the filing of the lawsuit. In fact, it appears that counsel did not have the affidavit in her possession, but had only a promise from the expert that she was sending the affidavit by mail. Brown’s argument that the first expert’s mother’s failure to timely mail the affidavit constituted a “mistake” which would permit an amendment stretches the meaning of “mistake” beyond the intention of the statute. See generally Gooden, supra; Austin v. Greenberg Farrow Architects, 201 Ga. App. 448, 450 (411 SE2d 346) (1991). Brown did not move to allow the affidavit until 11 days after the complaint was filed and the statute of limitation had expired, and in light of the fact that there was no evidence of mistake in the sense intended by the statute, we find no error. Compare generally Piedmont Hosp. v. Draper, 205 Ga. App. 160, 162 (421 SE2d 543) (1992).

The fact that a different affidavit was filed with the original complaint does not change the result. There was no reference to the former affidavit in the refiled complaint. No reference was made to that affidavit in plaintiff’s February 8 motion to allow the filing. Brown’s counsel referred only summarily to that affidavit in response to defendant’s motion to dismiss the complaint. In fact, the present record did not even contain a copy of the prior affidavit until Brown filed the motion for reconsideration and to set aside judgment on May 14, 1993. The fact that the former affidavit was not the basis for Brown’s argument distinguishes this case from Nease, supra; Bell v. Figueredo, 259 Ga. 321 (381 SE2d 29) (1989); and Hosp. Auth. of Fulton County v. McDaniel, 192 Ga. App. 398 (385 SE2d 8) (1989). In the instant case, Brown’s choice to file the affidavit of another expert was intentional and deliberate. Thus, unlike the situations in Nease, Bell, and McDaniel, supra, the instant facts do not present a case of oversight since the affidavit in Brown’s possession was not one he intended to file.

Accordingly, we find no manifest abuse of discretion in the trial court’s decision to dismiss the complaint.

Decided January 25, 1994

Reconsideration denied February 9, 1994

Karen K. Daniels, for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, Lisa M. Edwards, for appellee.

2. Brown claims that the trial court erred by granting the hospital’s motion to dismiss the complaint with prejudice after first granting the motion to accept his expert affidavit as timely filed. Brown argues that the February 8 order allowing amendment was an order which was appealable and that appellee’s failure to move the court to set aside that judgment and failure to file a notice of appeal renders the order at issue here void. Brown cites no authority to support this proposition and the enumeration is without merit. The February 8 order was not a final, appealable order and the trial court had the authority to set such order aside after Middle Georgia Hospital filed its responsive pleadings.

Judgment affirmed.

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


text:
    A93A2140.
    A93A2141.
    THOMPSON v. THE STATE. CHANCELLOR v. THE STATE.
    (440 SE2d 670)
   Birdsong, Presiding Judge.

Robert E. Thompson and Wilbur Gill Chancellor were indicted and tried with two other defendants for violation of the Georgia Racketeering Influenced & Corrupt Organizations Act (RICO), and fifty-four counts of theft by taking, theft by deception, and theft by conversion. The scheme involved an “assumption business” called Southern Financial Services (SFS), in which the defendants acquired vehicles from persons having trouble making their payments, assumed responsibility for the payments, and resold the vehicle. SFS advertised its services in newspapers. The consigned vehicles were sold to “buyers” who, typically, made a down payment of around $1,000 and substantial monthly payments for two or three months; the vehicle was then repossessed by the lienholder, who had never been paid. Typically the buyer lost the vehicle, his down payment and all monthly payments; the owner lost the car, his equity, and a deficiency judgment to the lienholder. Some of the cars were on leases and would be resold without disclosure to the lessor or to the buyer. Defendants most often required cash payments of the money which was ostensibly to be paid to the lienholder; this cash was divided by defendants, including Thompson and Chancellor, or deposited in SFS’s account and then paid to them. The business was set up by a joint venture, limited partnership agreement between appellants Thompson and Chancellor and the two co-defendants. The secretary of the business testified that Thompson directed her in her job, and that both Thompson and Chancellor were engaged in the “assumption” activities; both would pocket the money paid by buyers. Even after a search warrant was served on SFS, Thompson took possession of payments and none was forwarded to any lienholder. Chancellor’s name was filled in as payee on at least one of the down payment checks from buyers. Chancellor also went to locations to recover a car consigned by a person, assisted in rushing them through an “assumption” contract, and told them that SFS would assume the payments on the car. On one occasion a Thunderbird ended up in the possession of Chancellor’s stepdaughter or her friend, without the lienholder being paid the three payments due after Chancellor took the car, and despite Chancellor’s assurance to the owner that the first payment had been made. One owner, who was told by Chancellor that SFS had been in business 17 years, asked that the payments be sent to her so that she could ensure that they went to the lienholder. She got one check from SFS, but Thompson told her SFS did not have any money and that she would have to wait her turn. SFS later sent her a bad check, which SFS finally paid in cash. One owner was told his truck would remain with SFS for 90 days, but he learned that Chancellor was driving it. Chancellor called this owner and told him they would deal independently of SFS and that Chancellor would make the payments to the lienholder. Payments were not made and the owner found Chancellor’s telephone disconnected. Another owner, in financial straits because of his son’s illness, called SFS after seeing its advertisement; he left his car with SFS upon promises that SFS would make the payments, find a buyer and pay off the loan. Thompson was identified as a “co-partner” to the owner. After this owner received two delinquency notices from the lienholder, he learned Thompson had driven his car about 5,000 miles. The owner was unable to make up the delinquent payments and lost his car. There was evidence of several dozen vehicles handled in this manner, with variations on the theme.

Both Thompson and Chancellor testified that they were merely employees of the other two defendants, that they were caught up in a scam of which they had no knowledge, and that all money they received was commission for selling cars.

The jury returned guilty verdicts as to both appellants as to Count 1 (the RICO count) and as to the counts alleging theft by taking, deception, and conversion. The trial court struck the convictions for theft by taking, deception, and conversion, holding that they merged into the RICO violation. Thompson and Chancellor enumerate identical errors below. Held:

1. (a) Appellants contend the evidence was insufficient to support the verdict for RICO violations because the jury in finding each appellant guilty of one RICO count did not indicate that it found at least two predicate acts on which it based its guilty verdict; Martin v. State, 189 Ga. App. 483 (376 SE2d 888), cited by appellants, does not require the jury to state that it has found a defendant guilty of two predicate acts or to state what those predicate acts were. Appellants do not cite to us any objection made at trial to the form of the verdict. Moreover, the form of the verdict was not error.

The jury was charged as to the definitions pertinent to RICO violations, and was instructed that in order to convict either appellant of a RICO violation, it must find each appellant guilty of at least two predicate acts. There is no basis for the assertion that the jury merely inferred appellants’ guilt of RICO violations from the finding of guilt as to the theft counts. The jury separately found each appellant guilty of one RICO count and of the theft counts. We have reviewed the evidence and we find that it is sufficient to enable a rational trier of fact to find each appellant guilty of one count of RICO violation under OCGA § 16-14-1 et seq. as alleged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

(b) Appellants contend the evidence was insufficient to support a finding of a predicate act based on theft by taking (OCGA § 16-8-2), theft by conversion (OCGA § 16-8-4), or theft by deception (OCGA § 16-8-3). As to theft by taking, appellants contend that no person was “deprived” of property “without justification” (OCGA § 16-8-1), because all “buyers” knew the money paid for down payments was not a monthly payment to be forwarded to the lienholder, but was SFS’s fee; and the down payments were commissions which appellants earned with no intent to deprive anybody of property. As to theft by conversion, appellants contend nothing in the agreements prevented them from getting a commission, that they did not have fraudulent intent and did not “knowingly” convert the property of anyone to their own use in violation of the agreements. See, cited Baker v. State, 131 Ga. App. 48, 49 (205 SE2d 79). As for theft by deception, they contend the State did not prove they knowingly made representations by deceitful means or artful practice, for there was no evidence they failed to disclose to buyers that they were “assuming” payments.

These arguments overlook the fact that the appellants were not convicted of taking commissions for the sales of cars consigned for assumption, or for some other lawful act. They were convicted for taking monies in assumption transactions while actually failing to assume the payments for the vehicles, and actually failing to pay the lienholders. There was ample evidence supporting findings of at least two predicate acts of theft by taking, conversion or deception.

(c) Appellants contend that it is not a crime, as asserted in the indictments for theft by deception, to fail to disclose that the existing lienholder had not given consent to a transfer of the vehicle. See McNeil v. State, 159 Ga. App. 441 (2) (283 SE2d 658). We find it unnecessary to address any possible defects in the language of those counts for the removal of the convictions for theft by deception leaves numerous predicate acts of theft by taking and theft by conversion, so that the RICO convictions are not unsupported. Bethune v. State, 198 Ga. App. 490 (1) (402 SE2d 276).

(d) Appellants contend they did not have the requisite knowledge of the criminal element of “enterprise” to sustain their RICO convictions. None of the provisions of the RICO Act, however, requires that each defendant in an enterprise have full knowledge of all facets and elements of the enterprise and all its members or actors. See OCGA § 16-14-4. An “enterprise” is not a criminal act in itself; it is a description of the entities involved in the RICO violations, and may include entities involved in illicit as well as licit activities. OCGA § 16-14-3 (6). It is the racketeering activity, i.e., the pattern of racketeering (“predicate acts”) which is illegal (OCGA § 16-14-4 (a)), not the “enterprise,” although the enterprise may be proved by the same evidence which proves a pattern of racketeering. See Martin v. State, supra.

2. The trial court did not err in denying appellants’ motion for new trial on grounds that the State admitted tainted testimony. Appellants contend, in a vague fashion, that one alleged victim produced an “assumption” agreement which had been altered, and that because appellants’ attorney gave the State a copy of the altered document, the State knew the agreement had been altered when it produced this witness and introduced his agreement. However, appellants fail to apprise us in their briefs in what manner any such document was “altered” and how such alteration was material to proof of any criminal act or to their defenses. Moreover, appellants could have introduced the document which they now allege is the correct agreement, but declined to do so. Further, the trial court struck the count relating to this witness and struck his testimony, alleviating any possible error in the admission of an allegedly altered document. Finally, although appellants contend this witness’ testimony was the only testimony showing “conclusively” that appellants took large sums of money from the victims and failed to live up to the bargain, this is untrue, as there was ample testimony by other victims from which at least two predicate acts could “conclusively” be found by the jury under Jackson v. Virginia, supra.

3. Appellants contend the trial court erred in confusingly in-strutting the jury that it was not bound to return the same verdict on each count as to each defendant but that “the exception” to this is that, in order to find a defendant guilty of the RICO, count, the jury must find that defendant engaged in, or aided and abetted, at least two predicate acts beyond a reasonable doubt. This charge made it clear that in order to find a defendant guilty of the RICO count, the jury must find that each defendant committed at least two predicate acts. As a whole, the charge correctly charged the law and did not confuse the jury even though a portion of it was not as clear and precise as could be desired. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 384 (277 SE2d 753).

Decided January 11, 1994

Reconsideration dismissed February 1, 1994

Reconsideration denied February 9, 1994

F. Robert Raley, for appellants.

Charles H. Weston, District Attorney, Kimberly S. Shumate, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Judgments affirmed.

Pope, C. J., and Andrews, J., concur.