text:
    A91A1607.
    CAMPBELL v. CITIZENS & SOUTHERN NATIONAL BANK.
    (415 SE2d 193)
   Andrews, Judge.

Campbell appeals from the trial court’s order awarding summary judgment to Citizens & Southern National Bank on its action to collect amounts claimed due under two promissory notes.

The bank loaned Campbell $192,777.78 in December 1987, and Campbell executed a note in that amount to the bank with the final payment due on December 31, 1989. (The first note.) In May 1988 Campbell executed another note to the bank in the amount of $75,000 with the full principal amount due on May 25, 1989. (The second note.) In May 1989, Campbell renewed the second note, extending the final due date to March 1, 1990.

The first note evidenced a personal loan to Campbell and was secured by stock pledged as collateral. The second note was the result of Campbell’s agreement to open a $75,000 line of credit at the bank as a favor for a friend. Shortly after executing the second note Campbell executed a document authorizing the bank to disburse the $75,000 to the friend’s automobile business. Campbell claims he agreed to open the credit line and execute the second note after he was assured by a bank loan officer that there was no risk he would be called upon to pay the note because under the business arrangement the bank had with Campbell’s friend the bank would always hold enough car titles as collateral to pay off the note.

In the latter part of 1989, prior to the final payment date on the first note, Campbell tendered the bank full payment on the first note on the condition that the bank release the stock it held as collateral. The bank informed Campbell it would not release the stock on payment of the first note because it was exercising its right under the note to continue holding the stock as collateral for payment of the second note. Campbell refused to make the final payment on the first note without the release of the stock, and subsequently refused to pay the amount due under the second note.

1. Campbell asserts three related defenses to payment on the second note. First, he contends the note was procured by the bank’s fraudulent assurances that he would not be held responsible for payment because collateral in the form of car titles supplied by his friend’s business would be sufficient to pay off the note. Secondly and thirdly, he contends the bank’s failure to maintain sufficient car titles as collateral amounted to failure of a condition precedent to his payment on the note and a failure of consideration.

The record does not disclose any confidential relationship between Campbell and the bank that would excuse Campbell from the requirement that he exercise ordinary diligence in his own behalf. United Fed. Savings &c. Assn. v. Eubank, 180 Ga. App. 402, 403 (349 SE2d 268) (1986). Campbell’s claim that the bank promised to maintain sufficient collateral from his friend’s business to pay off the note, even if true, conflicts with the express written terms of the note which establish Campbell’s personal liability for the note, and make no provision for the bank to maintain the car titles as collateral. Campbell does not claim he was prevented from reading the note before he signed it. One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract. Craft v. Drake, 244 Ga. 406, 408 (260 SE2d 475) (1979); Citizens Bank, Vienna v. Bowen, 169 Ga. App. 896, 897-898 (315 SE2d 437) (1984). Even if the bank made the claimed prior or contemporaneous statements, such statements or agreements cannot be used to vary the terms of a valid written agreement purporting to contain the entire agreement of the parties, nor would the violation of any such alleged oral agreement amount to actionable fraud. Hodge Residential v. Bankers First &c. Loan Assn., 199 Ga. App. 474, 475-476 (405 SE2d 302) (1991). Moreover, where the express terms of the note establish Campbell’s liability, “[t]he oral representations of a bank officer purporting to limit the banks’s right of recourse in the event of a default in the payment of a promissory note will not support a defense of fraud in the procurement of the note.” Citizens Trust Bank v. Tyler, 162 Ga. App. 589 (291 SE2d 95) (1982); South Atlantic Production Credit Assn. v. Gibbs, 257 Ga. 521, 522-523 (361 SE2d 167) (1987). Accordingly, we find no merit in defenses which are based on the contention that the bank failed to maintain car titles as collateral for the second note.

Decided January 31, 1992.

Paul H. Wyatt, for appellant.

Alston & Bird, Ben F. Johnson III, Jennifer B. Moore, for appellee.

2. As to the first note, Campbell claims that when he tendered full payment the bank’s refusal to release the stock it held as collateral was a breach of the bank’s duty under the terms of the note, and resulted in either: (1) the complete discharge of the note obligation, I Dr (2) a setoff against the note obligation equal to the amount the stock has diminished in value since payment was tendered. We find no merit in these defenses. The record reflects that Campbell tendered full payment only on the condition that the bank release the stock. The note provides that, “[t]he undersigned agrees that the Holder shall have a lien upon, security title to and a security interest in the Collateral to secure the payment of this Note and all other [indebtedness or liability of the undersigned to Holder. . . . The surrender of this Note upon payment or otherwise shall not affect the right of the Holder to retain the Collateral for any other liabilities.” Even if Campbell had unconditionally paid the first note in full, under the terms of the so-called future advances clause, the bank was not required to release the stock as long as the second note remained unpaid. Rose City Foods v. Bank of Thomas County, 207 Ga. 477, 481 (62 SE2d 145) (1950); see also OCGA § 11-9-204 (3). The note also contained terms providing that, “no failure of Holder to preserve or protect any right with respect to the Collateral against prior parties, or to do any act with respect to preservation of the Collateral not so requested by the undersigned shall be deemed a failure to exercise reasonable care in the custody or preservation of the Collateral.” Since there is no evidence that Campbell requested the bank to do anything with respect to the collateral other than to release it upon payment of the first note, he is estopped by the terms of the note from asserting the claim that the bank’s actions impaired the collateral. H & H Operations v. West Ga. Nat. Bank of Carrollton, 181 Ga. App. 766 (353 SE2d 633) (1987).

There being no factual disputes with regard to Campbell’s execution of the notes, default thereon, and the amounts due, the trial iourt did not err in granting summary judgment to the bank.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A1638.
    JONES v. THE STATE.
    (415 SE2d 64)
   Pope, Judge.

Defendant was indicted for the rape and aggravated sodomy of his step-daughter and convicted by a jury of both offenses. He appeals his convictions and the denial of his motion for new trial, raising six enumerations of error.

The trial commenced on January 30, 1990, and concluded the afternoon of January 31, in time for the jury to deliberate close to two hours before being excused for the day. The jurors resumed deliberation on February 1 at 9:00 a.m. and at 11:38 a.m. were called into the courtroom for questioning as to the status of their deliberations. In response to the trial court’s instruction to the foreperson to give the vote of the jury by numerical count only, the foreperson responded: “The jury stands six guilty, six not-guilty.” The trial court then queried whether there was any reason to believe that the jury might move in either direction. The foreperson replied: “That’s not a fair question.” The trial court then gave the jury an Allen or “dynamite” charge, and the jury resumed deliberation. At approximately 1:00 p.m. the jury was called back for further questioning, and the foreperson was asked: “This one can be answered either yes or no, has there been any movement?” Upon receiving an affirmative response, the| trial court inquired as to how many had moved, and the foreperson! replied nonresponsively: “Ten guilty.” The jury was sent back to re-j sume deliberations and a guilty verdict was returned at 2:20 p.m. j

1. Defendant first argues the trial court erred in giving the jury an Allen charge and sending the jury back for further deliberation after the foreperson indicated the jury stood six guilty/six not-guilty. “The decision of whether to give a jury in disagreement the ‘Allen charge is generally left in the discretion of the trial judge. [Cits.]’ Thornton v. State, 145 Ga. App. 793, 794 (245 SE2d 22) (1978). See also Barnes v. State, 245 Ga. 609 (5) (266 SE2d 212) (1980). It appearing in this instance that the jury had deliberated no more thar five hours and had not yet indicated that they were hopelessly deadlocked, we find no abuse of discretion in the trial court’s refusal tc declare a mistrial and decision to proceed with the Allen charge Thornton, supra at 795.

2. Defendant next argues the trial court erred in failing to giv« curative instructions to the jury after the foreperson responded to th< trial court’s request for a numerical division of jurors by indicating the number of jurors in favor of conviction had moved from six to ten. “If the court simply seeks to know the numerical division in order to determine some matter for the convenience of the jury or the parties, and the statement as to the number voting guilty or innocent is volunteered by a juror, it has been held that, absent other factors suggestive of prejudicial result, reversal is not mandatory. [Cits.]” Huffaker v. State, 119 Ga. App. 742, 743 (2) (168 SE2d 895) (1969). Defendant having failed to show how he could have been prejudiced by the volunteered information, we hold this enumeration to be without merit. See Tanner v. State, 242 Ga. 437 (2) (249 SE2d 238) (1978).

3. Defendant also argues the trial court committed reversible error the second time the jury was brought back to the courtroom for questioning as to the status of their deliberations. Defendant contends the trial court should have first inquired whether the jury believed additional time would be helpful in reaching a verdict before sending them back a third time for deliberation. We disagree. By virtue of the jury’s movement from six to ten in favor of conviction within the one-hour period since the Allen charge was given, the trial judge was warranted in assuming that additional deliberation time might be helpful in reaching a verdict. See Holt v. State, 192 Ga. App. 708 (2) (385 SE2d 787) (1989). Accordingly, this enumeration is without merit.

4. Defendant argues the trial court erred in ruling the State’s witness, Dr. Francis Elizabeth Kemp, was properly qualified as an expert Sand allowing her to testify that in her opinion the victim showed physical signs of trauma consistent with forcible intrusion in the anus and vaginal area.

Prior to her expert testimony, Dr. Kemp testified she had been a physician for eight years, was licensed to practice in both California and Kentucky, had made close to 50 pelvic examinations during her experience as a physician, had performed approximately 25 examinations of possible rape victims at Grady Hospital, and was a resident in pediatrics at Emory University at the time she conducted the physical examination of the victim at Grady Hospital.

“Whether a person possesses the qualification as an expert witness rests entirely in the sound discretion of the judge . . . The decision of the judge will not usually be overturned unless the witness factually lacks appropriate credentials or the judge has applied the rong criteria. [Cit.]” (Punctuation omitted.) Hunter v. State, 192 Ga. App. 675, 676 (2) (385 SE2d 764) (1989). See also Hicks v. State, 157 Ga. App. 79 (2) (276 SE2d 129) (1981). We find Dr. Kemp’s qualications were appropriate and adequate, and her testimony to be well ¡within the scope of her expertise. Thus, there was no abuse of discretion in the present case.

5. Defendant next contends the trial court erred in admitting into vidence a copy of a life insurance policy showing defendant purchased a policy insuring the lives of the victim’s mother, victim’s sister and victim (his wife and two step-daughters) in the respective amounts of $100,000, $10,000 and $10,000 and naming himself as primary beneficiary. The State sought to introduce the policy to corroborate the victim’s testimony that defendant had coerced her to submit to his sexual assault by threatening to kill her and her family and collect the life insurance proceeds. These threats included the exact' limits of the insurance policy. ,

Decided January 31, 1992.

Warren A. Sellers, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

“Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has ¡ a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. [Cit.] Evidence of doubtful relevancy or , competency should be admitted and its weight left to the jurors. [Cit.]” Lewis v. State, 158 Ga. App. 586, 587 (1) (281 SE2d 331) (1981). We find no abuse of the trial court’s discretion in the admis-; sion of the insurance policy in this instance.

We also note that earlier in the trial, the victim testified without objection concerning the defendant’s threats to kill her family and collect the proceeds from the policy. Thus, “ ‘even assuming error, it would be harmless inasmuch as the [policy] was merely cumulative of other evidence properly before the jury. (Cits.)’ [Cits.]” Deal v. State, 199 Ga. App. 184, 188 (4) (404 SE2d 343) (1991). See also Brinson v. State, 191 Ga. App. 151 (2) (381 SE2d 292) (1989).

6. Finally, defendant argues the trial court erred in admitting into evidence the testimony of the victim’s mother that after she confronted the defendant with her daughter’s rape and sodomy allega-, tions, the defendant left the home, returned with a shotgun, packed' his belongings, and left for Arkansas. The State sought to admit this evidence to show defendant’s inculpatory reaction to the victim’s accusations. We find this testimony to be relevant and find no abuse of the trial court’s discretion. See Lewis v. State, supra.

Judgment affirmed.

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


text:
    A91A1656. A91A1657.
    DICKEY et al. v. HARDEN. KIRKLAND et al. v. DICKEY et al.
    (414 SE2d 924)
   Pope, Judge.

Plaintiff Evelyn Dickey brought a negligence suit against defendant Mary Harden and defendants Sarah L. Kirkland and David C. Kirkland (the “Kirklands”) alleging that on October 21, 1987, while a passenger in Mary Harden’s vehicle, plaintiff suffered serious injuries when the vehicle was struck by an automobile owned by David C. Kirkland and driven by Sarah Kirkland. In her answer Mary Harden denied liability and raised as a defense the exclusive remedy provisions of the Georgia Workers’ Compensation Act. The Kirklands also denied liability in their answer and raised the affirmative defenses of release, accord and satisfaction, and payment of plaintiff’s claim.

Roger Dickey, the husband of Evelyn Dickey, was joined as a party plaintiff pursuant to OCGA § 9-11-19 in order that his claim for loss of consortium be adjudicated in the same proceeding. After discovery was conducted, Mary Harden and the Kirklands filed motions for summary judgment. In its order dated February 26, 1991, the trial court granted Mary Harden’s motion for summary judgment and denied the Kirklands’ motion for summary judgment. These appeals follow our grant of the plaintiffs’ and Kirklands’ applications for interlocutory review of the trial court’s order.

Case No. A91A1656

Plaintiff Evelyn Dickey and Mary Harden were co-workers at the Statesboro Head Start program and as a condition of employment, were required to attend training courses at nearby Georgia Southern University. These courses were offered during normal working hours, and the co-workers were to receive their regular pay while attending the courses. On October 21, 1987, en route to their first training session, the co-workers were involved in an automobile collision with the Kirklands’ vehicle in which Evelyn Dickey, a passenger in Mary Harden’s vehicle, sustained injuries. The record indicates that Evelyn Dickey received workers’ compensation benefits for an approximate period of two to three months following the accident.

Relying on Floyd v. McFolley, 131 Ga. App. 4 (205 SE2d 29) (1974) and other cases in their brief, the plaintiffs contend that their claims against defendant Mary Harden are not barred by OCGA § 34-9-11. We disagree.

It is well settled under Georgia law that when an injury is sustained during the course of employment as a result of the negligence of a co-worker, the employee’s sole remedy is against the employer pursuant to the provisions of the Georgia Workers’ Compensation Act. OCGA § 34-9-11; Williams v. Thomas, 187 Ga. App. 527, 528 (370 SE2d 773) (1988).

Plaintiffs’ reliance on Floyd is misplaced because Floyd was decided prior to April 1, 1974, the date OCGA § 34-9-11 (formerly Code Ann. § 114-103) was amended by Ga. L. 1974, pp. 1143, 1144, to add that “no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer. ...” (Emphasis supplied.) By virtue of the 1974 amendment, the Georgia Workers’ Compensation Act is now the exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a co-worker. Williams v. Byrd, 242 Ga. 80, 81 (247 SE2d 874) (1978).

Plaintiffs also argue that the acts causing Evelyn Dickey’s injury did not arise out of and in the course of her employment. However, the record clearly indicates that Evelyn Dickey was a passenger in the vehicle of her co-worker en route to a training course that both employees were required to attend as a condition of their continued employment with the Statesboro Head Start program. Plaintiff was being paid regular wages and the course was being given during hours she would have otherwise been working at the Head Start program. Accordingly, there is no doubt in this instance that plaintiff Evelyn Dickey’s injury arose out and in the course of employment. See generally Thorn v. Phillips, 164 Ga. App. 47, 48 (296 SE2d 251) (1982).

Moreover, although the record is unclear as to whether plaintiff affirmatively applied for benefits or her employer voluntarily assumed liability, it is undisputed that plaintiff Evelyn Dickey received workers’ compensation benefits for approximately two to three months following the incident and failed to contest the applicability of the Georgia Workers’ Compensation Act until over two years later when her complaint in this action was filed. Under the circumstances presented here, we find plaintiff estopped from denying coverage by the act. Thorn, 164 Ga. App. at 48. Cf. Associated Hosts of Ga. v. Marley, 184 Ga. App. 352 (2) (361 SE2d 496) (1987).

Plaintiff Roger Dickey’s cause of action for loss of consortium being derivative of that of his wife, he too is barred from bringing this negligence action against his wife’s co-worker. Mann v. Workman, 181 Ga. App. 211 (3) (351 SE2d 680) (1986), aff’d 257 Ga. 70 (354 SE2d 831) (1987). Accordingly, the trial court did not err in granting summary judgment to Mary Harden.

Case No. A91A1657

In December of 1987, approximately two months after the automobile accident, Evelyn Dickey retained attorney W. D. Simpkins III to represent her and pursue her claim against the Kirklands. Simpkins notified State Farm Insurance Company (“State Farm”), the Kirklands’ insurer, as to his representation of Evelyn Dickey and entered into negotiations with State Farm on her behalf. The record is clear that at no time did Evelyn Dickey have any direct contact with the Kirklands or State Farm, nor did she notify either of them as to the existence of any limitation upon the authority of Simpkins to act on her behalf.

In November of 1988, Simpkins entered into an oral and written agreement with State Farm to settle the plaintiffs’ claims against the Kirklands, and within one week, State Farm forwarded to Simpkins a general release (the “Release”) for the Dickeys to execute along with a settlement check payable to the Dickeys in the amount of $5,000. It is undisputed that the Dickeys never authorized Simpkins to accept the settlement of $5,000, never received any of the proceeds therefrom, and were unaware that Simpkins had forged their signatures on the release and check endorsement. Approximately one year later, Evelyn Dickey hired another attorney to represent her interests and this action was brought against the Kirklands and Mary Harden.

Relying on Hynko v. Hilton, 198 Ga. App. 308 (401 SE2d 324) (1991), a case remarkably similar to the case sub judice and also involving attorney Simpkins, the Kirklands contend that the trial court erred in not granting their motion for summary judgment in that plaintiff Evelyn Dickey was bound by the settlement agreement entered into by her attorney. We agree.

“ ‘The rule that a principal is liable for the contracts of his agent applies even though the agent, in contracting, acts in his own interests and adversely to his principal, where the party with whom the agent contracts has no knowledge of the agent’s derelictions and is not cognizant of any fact charging him with knowledge thereof. . . . The principal, having selected [her] representative and vested him with apparent authority, should be the loser in such case, and not the innocent party who relied thereon. . . .’ [Cits.]” Hynko, supra at 310. Simpkins having apparent authority to enter into a settlement agreement on behalf of Evelyn Dickey, and the Dickeys having failed to communicate to the Kirklands or State Farm the existence of any restrictions upon his authority to act, the Dickeys are bound by Simpkins’ agreement to settle their claims. See also Brumbelow v. Northern Pronane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983); Wilson v. Anderson, 194 Ga. App. 167 (390 SE2d 86) (1990).

Plaintiffs contend that a genuine issue of fact remains as to whether State Farm should have been aware that Simpkins was not acting in furtherance of plaintiffs’ interests when the claim was settled for the amount of $5,000. However, our review of the record fails to support plaintiffs’ assumption that State Farm should be imputed with knowledge of Simpkins’ motives. Rather the evidence indicates that just prior to entering into a settlement of the plaintiffs’ claim, Simpkins had admitted to State Farm’s insurance adjuster that Evelyn Dickey had compromised her claim against the Kirklands for lost wages having apparently quit her job shortly after she returned to work following the accident. When considered along with the fact that Simpkins had only provided documentation of Evelyn Dickey’s medical expenses in the amount of $2,808.77, it would not have been unreasonable for the State Farm adjuster to have believed that the settlement offer of $5,000 had been accepted by plaintiffs.

Decided January 31, 1992.

H. Lehman Franklin, for Dickeys.

Doremus, Jones & Smith, Julian B. Smith, Jr., for Harden.

“ ‘When a motion for summary judgment is made and supported an adverse party may not rest upon the mere allegations or denials of [her] pleading, but [her] response, by affidavits or as otherwise provided . . . must set forth specific facts showing that there is a genuine issue for trial. If [s]he does not so respond, summary judgment, if appropriate, shall be entered against [her].’ [Cit.]” Robinson v. Starr, 197 Ga. App. 440, 443 (398 SE2d 714) (1990). Evelyn Dickey having failed to come forward with evidence sufficient to support her claim that State Farm had reason to be suspicious of Simpkins’ fraudulent motives, the trial court properly granted the Kirklands’ motion for summary judgment. See Hynko v. Hamilton, supra at 309.

We also reject plaintiffs’ argument that attorney Simpkins served as State Farm’s agent for the purpose of securing the signatures of the Dickeys on the release and disbursing the settlement funds, thereby estopping State Farm and the Kirklands from holding plaintiffs bound by the acts of State Farm’s agent. We find no facts upon which an attorney or agency relationship could be said to exist between State Farm and Simpkins under the circumstances presented by this appeal. See generally Bennett v. Miller, 188 Ga. App. 72 (371 SE2d 903) (1988); Simmerson v. Blanks, 149 Ga. App. 478 (1) (254 SE2d 716) (1979).

Plaintiff Roger Dickey’s cause of action for loss of consoruium being derivative of that of his wife, he too is barred from bringing this negligence action against the Kirklands. Stapleton v. Palmore, 250 Ga. 259 (297 SE2d 270) (1982); Hall v. Gardens Svcs., 174 Ga. App. 856, 858 (332 SE2d 3) (1985). Accordingly, the trial court erred in denying the Kirklands’ motion for summary judgment.

Judgment affirmed in Case No. A91A1656. Judgment reversed in Case No. A91A1657.

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

Beckmann & Pinson, Joseph H. Barrow, for Kirklands.


text:
    A91A1801.
    HAMILTON v. THE STATE.
    (415 SE2d 196)
   Pope, Judge.

Defendant Aaron Hamilton was convicted by a jury of selling cocaine. On appeal, he enumerates as error the general grounds.

The evidence, viewed in a light most favorable to the jury verdict, shows that late in the evening on December 29, 1989, Officer Shelley Manning, an undercover officer, drove to the parking lot of the Venezuela Club accompanied by a confidential informant. Defendant approached the officer’s vehicle and sold her $20 worth of crack cocaine. Immediately after the transaction was consummated, the defendant identified himself as “Aaron,” so the undercover officer would know whom to ask for the next time she purchased drugs. Later that evening, officer Manning made handwritten notes describing the defendant’s physical characteristics, and the following day she identified the defendant in a photographic line-up. The officer made an in-court identification of the defendant at trial and never expressed any uncertainty throughout her testimony that the defendant was the individual from whom she had purchased drugs.

Defendant testified at trial that on the evening of December 29, 1989, he was inside the 511 Club when he was asked by the confidential informant to come outside and meet his new girl friend. Defendant left the club, approached Officer Manning’s vehicle parked in the 511 Club’s parking lot, and flirted with the undercover officer for a few minutes. Defendant denied selling drugs to the officer and contended that he must have been misidentified due to confusion resulting from the number of drug arrests the officer had made during a relatively short period of time.

“ ‘(The appellate) court does not weigh the evidence on appeal or resolve conflicts in trial testimony. Rather it is the function of (the appellate) court to examine the evidence in the light most favorable to the verdict and to determine whether any rational trier of fact could have found the (defendant) guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979) . . . .’ [Cits.]” Hicks v. State, 196 Ga. App. 25 (1) (395 SE2d 249) (1990). After a careful review of the record in this case, we find that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of selling cocaine.

Judgment affirmed.

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

Decided January 31, 1992.

Clyde M. Urquhart, ,for appellant.

W. Glenn Thomas, Jr., District Attorney, L. Craig Fraser, C. Keith Higgins, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A91A1860.
    WILLIAMS v. THE STATE.
    (415 SE2d 67)
   Birdsong, Presiding Judge.

Stephen M. Williams appeals his conviction of aggravated assault, armed robbery, and possession of a firearm during the commission of a crime, and the sentence.

About 11:00 p.m. on January 16, 1991, a grocery store was robbed by two black men wearing ski masks. One man, dressed in black or dark clothes, carried a handgun; the, other, dressed in black pants with gold leopard-like spots on the side, carried a shotgun. The men took a money bag containing $2,800-$3,000 and ran from the store. A grocery worker followed and discharged a pistol in an attempt to halt the robbers.

Deputy Sheriff Golden, who was parked talking with another law enforcement officer “not a very far distance” from the store, testified that about 11:00 p.m. he heard shots and about five seconds later he received a radio call of a robbery in progress. About thirty seconds later, he observed, at a distance of about fifteen feet, two black males dressed in dark clothing headed in the same direction toward an alley; one was running and one was walking fast. About five seconds after the men disappeared in the dark, a green Cadillac with a pink top was driven in the same direction as the two men and proceeded into the alley; the Cadillac was traveling very slowly. About 30 seconds later, Golden made a radio call to Officer Little and informed him what he had observed. He saw no other persons walking in the area. Meanwhile Officer Little had arrived at the robbery scene, obtained a description of the suspects, and was leaving the store when he received the call from Deputy Golden. About the same time the radio call came in, Little observed the Cadillac; it was moving very slowly and the driver had his foot on the brake. Little observed two black males coming out of the bushes and jumping into the slow-moving car. Both men were wearing dark clothing. Officer Little followed “behind the car,” and saw one male jump from the car with something long, which might have been a gun, in his hand. This man, who was wearing a dark sweater and black pants with designs on the side, ran into the woods. Officer Little followed the car, which turned into a dead-end, and arrested the two remaining occupants. The driver, Larry Brown, was wearing a white or light colored shirt; the accused who was in the front passenger seat was dressed in a dark-colored jogging suit. The money bag from the store was found on the back floorboard behind the driver’s seat in the Cadillac. The car belonged to Terry Moore who was shortly thereafter arrested a few blocks away wearing black pants with a leopard-like design on the sides and a dark sweater.

The three men were tried jointly; no motion was made to sever. The pretrial statement of each accused, denying complicity in the crimes, was introduced by the State. Moore and Brown testified in their own behalf and denied complicity in the crimes; appellant elected to remain silent. Held:

1. Appellant asserts insufficiency of evidence claiming there exists only evidence of his mere presence with the other defendants sometime after the commission of the crime. 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). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts that legal error was made by the conflict of interest committed by one attorney representing all three defendants at one trial despite inconsistencies in various defenses. Specifically, appellant argues he was denied effective assistance by this procedure. See generally Wilson v. State, 257 Ga. 352 (359 SE2d 661) (whenever a trial court improperly requires joint representation over timely objection, reversal is automatic).

The record reflects that trial was conducted without motion for severance or without objection by trial defense counsel on the grounds of conflict of interest in joint representation of co-defendants, and that following trial a new counsel assumed the duties as appellant’s counsel. On June 27, 1991, this new attorney filed a timely notice of appeal within 30 days of the filing of the orders of final disposition of sentence in this case; however, no motion for new trial was timely filed raising the issue of inadequacy of counsel due to conflict of interest and no evidentiary hearing was requested before the trial court. Under such circumstances, the issue has been waived as it was not raised by appellate counsel at the earliest practicable moment. This case is distinguishable from Johnson v. State, 259 Ga. 428, 430 (383 SE2d 115) where the claim of ineffective assistance was raised only on appeal by new counsel and “there was no opportunity for a hearing before the trial court.” New counsel concedes in the appellant’s brief that: “A particular problem with [appellant’s] position here is that the issue of a conflict was not raised prior to trial. It should not be forgotten that appellant is twenty (20) years of age, has no past record, and presumably no familiarity with the complex legal system, and did not recognize the importance of having individual counsel.” Thus, appellant’s counsel clearly recognized the need for presenting timely the issue of adequacy of counsel to the trial court for adjudication. In this case the record reflects that new counsel had an opportunity to file both a timely motion for new trial and a request for evidentiary hearing (see generally OCGA § 5-5-40 (a)); however, this was not done, and new counsel did not request an extension of time in which to file notice of appeal (OCGA § 5-6-39 (a) (1)) in order that the trial court could be given an opportunity to consider the issue of inadequacy of counsel. Rather, new counsel elected to file notice of appeal on June 27, 1991, within 30 days of the entry of the orders of final disposition as to sentence, and to raise the inadequacy issue for the first time on appeal in an enumeration of error. As counsel has failed to raise the issue of inadequacy of counsel at “the earliest practicable moment,” the issue is waived and it is unnecessary to discuss the merits. See Dawson v. State, 258 Ga. 380 (369 SE2d 897); Thompson v. State, 257 Ga. 386 (359 SE2d 664); Rigenstrup v. State, 197 Ga. App. 176, 180 (3) (398 SE2d 25); Washington v. State, 193 Ga. App. 823 (389 SE2d 407); compare Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922) (holding inter alia that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing), decided February 26, 1991, several months before notice of appeal was filed in this case.

Decided January 31, 1992.

Saliba & Moore, George M. Saliba II, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assis tant District Attorney, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1959.
    CRAWFORD v. THE STATE.
    (415 SE2d 300)
   Birdsong, Presiding Judge.

David Crawford appeals from the judgment of the superior court denying his request for relief from custody under OCGA § 17-7-131. The record shows in 1986 Crawford was found not guilty of murder by reason of insanity and was remanded to the custody of the State Department of Human Resources. In April of 1991, Crawford moved to be released from custody, but after an evidentiary hearing in which the testimony from the mental health professionals was generally favorable to Crawford’s release, the superior court found that Crawford met the criteria for involuntary commitment under Chapters 3 and 4 of Title 37 of the Official Code of Georgia and denied release. Crawford enumerates as error the lower court’s denial of his motion. Held:

Under the law of this state once a person has been found not guilty by reason of insanity and committed to a mental hospital, the presumption of insanity continues during consideration of motions for release. OCGA § 24-4-21; Clark v. State, 245 Ga. 629, 631 (266 SE2d 466). “The superior court, and not mental health professionals, has the responsibility for deciding applications for release under OCGA § 17-7-131. The court may rely on the presumption of continued insanity, and is not bound by the opinions of either lay or expert witnesses. The court also may take judicial notice of the evidence at trial.” (Citation and punctuation omitted.) Butler v. State, 258 Ga. 344, 345 (369 SE2d 252).

Although mental health professionals generally supported Crawford’s release, their recommendations were based on their conclusions that Crawford was no longer a danger to himself or others because Crawford’s mental condition was controlled by medication and that he would continue to take this medication if he were released. Although not entirely accepting of this sudden reversal of earlier recommendations, the trial judge noted that Crawford was under medication at the time he committed the murder, but quit taking it because he decided that he no longer needed it. Further, the trial judge also noted that during the hearing Crawford stated he believed the medication was beneficial, but he did not believe he needed to take the medication to function in society; Crawford also expressed other irrational beliefs about another’s ability to throw “hates” at him. Moreover, having acted upon numerous earlier requests concerning Crawford’s custody, the trial judge was very familiar with Crawford’s mental condition and his case history, and his order denying release is well documented.

Decided January 31, 1992.

Kenneth C. Fuller, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Accordingly, under the circumstances, the record satisfies us that the trial judge did not err by denying Crawford’s release. Jones v. State, 191 Ga. App. 561, 562 (382 SE2d 612).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Carley, Presiding Judge.

text:
    A91A2001.
    KICKLIGHTER v. JONES.
    (415 SE2d 302)
   Carley, Presiding Judge.

Seeking to recover for injuries that she had suffered in an automobile collision, appellant-plaintiff brought suit against appellee-defendant. At the jury trial, appellee successfully moved for a directed verdict at the close of appellant’s evidence. Appellant appeals from the judgment entered by the trial court on its grant of appellee’s motion.

The relevant facts are as follows: The collision occurred as appellant was crossing through an intersection and the side of her automobile was struck by the on-coming automobile that was being operated by appellee. At the intersection, it was appellant who had a stop sign and appellee who had the right-of-way and there is no evidence that, as appellee and appellant approached the intersection, they were not proceeding at a reasonable speed. Accordingly, it is not material that, as appellee was approaching the intersection, she did not slow or stop after seeing that appellant was also approaching the intersection. “A driver having the right of way at an intersection has the right to assume that others will obey the rule of the road and will yield the right of way to him ([cits.]), and he has the right to proceed at a reasonable speed even though he sees another vehicle approaching. [Cit.]” Meeks v. Johnson, 112 Ga. App. 760, 764 (146 SE2d 121) (1965). What would be material is whether appellee had an opportunity to avoid the collision after she saw or should have seen that appellant was entering into the intersection so as to cross appellee’s lane of traffic. “What a driver having the right of way cannot do is ‘test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, he cannot blindly and recklessly proceed without regard to conditions and consequences. [Cit.]’ [Cit.] This is, of course, a corollary of the principle of law that every driver of a motor vehicle must exercise ordinary care in the control, speed and movements of his vehicle to avoid a collision after he sees or by ordinary diligence could have seen that one is threatened by the active negligence of another. [Cit.]” Meeks v. Johnson, supra at 764-765.

Decided January 31, 1992.

John E. Pirkle, for appellant.

Howard, Carswell & Bennett, Kenneth R. Carswell, for appellee.

A review of the record demonstrates that appellant produced no evidence to authorize a finding that, in the exercise of ordinary care, appellee could have avoided the collision after she saw or should have seen that appellant had entered into the intersection and was crossing appellee’s lane of traffic. Accordingly, the trial court correctly granted appellee’s motion for a directed verdict. “ ‘ “Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.” [Cit.] “Where (as here) plaintiff simply fails to prove his case, the direction of a verdict is proper.” [Cit.]’ [Cits.]” Neal v. Miller, 194 Ga. App. 231, 232-233 (390 SE2d 125) (1990).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A2162. A91A2163. A91A2164.
    GOODWIN v. THE STATE. PEREZ v. THE STATE. MATHIS v. THE STATE.
    (415 SE2d 472)
   Carley, Presiding Judge.

Appellants in these companion cases were co-indicted for the offense of aggravated assault on a peace officer. After their motion for discharge and acquittal pursuant to OCGA § 17-7-170 had been denied, they entered guilty pleas. However, it appears that the trial court accepted the guilty pleas with the apparent understanding that appellants could thereafter file the instant appeals and enumerate as error the denial of their OCGA § 17-7-170 motion. See Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991). Since that single issue has been raised in all three of the instant appeals, they are hereby consolidated for appellate disposition in this single opinion.

In urging that their OCGA § 17-7-170 motion was erroneously denied, appellants rely upon a demand for a speedy trial which they filed pro se. However, the record shows that, at the time appellants filed their pro se demand, they were represented by counsel. Accordingly, pretermitting any question regarding the timing of the filing and service of appellants’ pro se demand for a speedy trial, the trial court was clearly authorized to find that that pro se demand was of no legal effect whatsoever. “ ‘(T)he Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel. (Cit.)’ [Cit.] As a result of changes in the Georgia Constitution, a criminal defendant in Georgia ‘ “no longer has the right to represent himself and also be represented by an attorney, i.e., the right to act as co-counsel.” (Cit.)’ [Cit.]” Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (1988). Since appellants filed no viable demand for a speedy trial, it necessarily follows that the trial court correctly denied appellants’ motion for discharge and acquittal pursuant to OCGA § 17-7-170.

Decided January 31, 1992.

Cowart & McCullough, Hugh J. McCullough, for appellant (case no. A91A2162).

Stubbs & Associates, M. Francis Stubbs, for appellant (case no. A91A2163).

Hal T. Peel, for appellant (case no. A91A2164).

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Beasley, Judge.

text:
    A91A2144.
    CARRUTH v. BROWN.
    (415 SE2d 470)
   Beasley, Judge.

Having been denied a new trial, plaintiff Carruth appeals the judgment on the jury verdict in favor of defendant Brown in this suit for personal injuries stemming from Brown’s alleged negligence in a collision with the rear of a vehicle in which Carruth was a passenger. The sole issue is whether or not the trial court erred in allowing defense counsel to elicit evidence of Carruth’s prior guilty pleas to misdemeanor criminal issuance of bad checks. OCGA § 16-9-20 (b) (1).

On the day of trial, Carruth filed a written motion in limine asking that defendant not be permitted to comment on or offer evidence of any of Carruth’s prior traffic convictions, that Carruth was not wearing a seatbelt at the time of the collision, and the reduction of damages based on collateral source. The motion made no mention of the bad check convictions. The question of these convictions was first raised during the hearing on the motion just prior to the start of trial; Carruth’s counsel asked the court to instruct defense counsel not to make reference to the convictions during voir dire. The court reserved ruling after defense counsel stated that it would not be raised during voir dire. Following jury selection, Carruth’s counsel moved that a motion in limine be granted as to both the bad check and traffic convictions coming into evidence in the course of trial. The court denied the motion regarding the bad checks.

The bad check evidence was introduced on cross-examination of Carruth. Defense counsel commented that Carruth’s attorney had asked Carruth about Carruth being nervous in the courtroom and then counsel asked, “This is not your first time in a courtroom, is it?” Carruth replied that it was not and agreed that he had been in a courtroom several times, some of them relating to his having written a series of bad checks. Carruth affirmed that he had pled guilty to the charges and received certain fines. There was no further cross-examination regarding the convictions. On redirect, Carruth elaborated about the circumstances of writing the bad checks (marital difficulties causing bank account shortages) and about the misdemeanor nature of the charges.

Appellant contends, relying on Mingo v. State, 195 Ga. App. 438 (394 SE2d 104) (1990), that a misdemeanor bad check conviction is not a crime involving moral turpitude and thus, evidence of it could not be admitted for impeachment purposes. He urges that the evidence improperly placed his character in issue and that its prejudicial impact outweighed its probative value.

Appellant also asserts that the fact of the convictions should have been shown by “recorded evidence,” i.e., certified copies, but that question is not reached because appellant failed to raise it below. “Issues never raised at trial will not be considered for the first time on appeal. [Cit.]” Hammond v. Paul, 249 Ga. 241, 242 (1) (290 SE2d 54) (1982).

“In Georgia, a witness in a civil case may always be impeached by proof of a conviction for a felony or other crime involving moral turpitude. [Cit.]” Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984). See also Tilley v. Page, 181 Ga. App. 98, 100 (4) (351 SE2d 464) (1986); State v. Byrd, 255 Ga. 665, 666 (341 SE2d 455) (1986). Despite a trend to liberalize allowance of such evidence, see Tilley, supra at 100 (4), there is no authorization for impeachment by conviction of a misdemeanor not involving moral turpitude. The threshold question, then, is whether or not as a matter of law misdemeanor issuance of bad checks is a crime of moral turpitude.

Mingo, cited by appellant, does not address the question. In that case, the contention was that the trial court erred in refusing to admit for impeachment purposes, certified copies of the victim’s guilty pleas to charges of issuing bad checks. Mingo proposed to introduce such evidence by recalling the victim after the State rested. The trial court ruled the evidence improper for impeachment purposes and that the offenses did not involve moral turpitude. This Court did not reach this question, ruling instead that, having made no attempt to raise the issue on cross-examination of the witness, Mingo sought to recall the witness as his own for purposes of impeachment, which was not permissible absent a showing of entrapment. It was held not to have been abuse of the trial court’s discretion to refuse permission to recall the State’s witness and introduce evidence impeaching her.

Huff v. Anderson, 212 Ga. 32, 34 (2) (90 SE2d 329) (1955), applied the definition of moral turpitude found in Holloway v. Holloway, 126 Ga. 459, 460 (55 SE 191) (1906): “ ‘Turpitude in its ordinary sense involves the idea of inherent baseness or vileness, shameful wickedness, depravity. [Cit.] In its legal sense it includes everything done contrary to justice, honesty, modesty, or good morals. [Cits.] The word “moral,” which so often precedes the word turpitude, does not seem to add anything to the meaning of the term, other than that emphasis which often results from a tautological expression. All crimes embraced within the Roman’s conception of the crimen falsi involve turpitude; but it is not safe to declare that such crimes only involve turpitude.’ ‘ “Moral turpitude” is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ [Cit.]” Huff at 34 (2). Based on such definition, it was concluded that the offenses of obtaining money from another by fraud or false pretenses or larceny after trust were “crimes malum in se, involving moral turpitude.”

Lewis v. State, 148 Ga. App. 16, 17 (1) (251 SE2d 18) (1978), also applied the legal definition of moral turpitude found in Huff and cited federal case law and rules of evidence, reaching the conclusion that “ ‘a crime involving dishonesty ... is considered to be one involving moral turpitude.’ ” In affirming Lewis on certiorari, the Supreme Court discussed the definition and scope of moral turpitude and determined that, disregarding punishment, the relevant inquiry regarding classification is whether or not the offense is “contrary to justice, honesty, modesty, good morals or man’s duty to man.” Lewis v. State, 243 Ga. 443, 446 (254 SE2d 830) (1979).

The offense of criminal issuance of a bad check is committed when a person “makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” OCGA § 16-9-20 (a). The heart of the crime, whether its commission is a felony or a misdemeanor, is dishonesty and thus involves moral turpitude. Compare Hall v. Hall, 261 Ga. 188 (402 SE2d 726) (1991). Consequently, evidence of pleas of guilty to its commission as a misdemeanor may be considered by a jury for the purpose of impeachment of a witness. See OCGA § 24-9-84.

Decided January 21, 1992

Reconsideration denied February 3, 1992

Brian D. Lockerbie, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., for appellee.

The trial court did not err in refusing to suppress the objected-to cross-examination attempt to impeach Carruth on the basis that the bad check convictions did not involve moral turpitude.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1475.
    SHIELDS v. THE STATE.
    (415 SE2d 478)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of burglary. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. After a pre-trial hearing, the trial court ruled that four of appellant’s prior burglary convictions would be admissible as similar transactions. Thereafter, appellant sought to voir dire the potential jurors concerning what their reaction would be to the State’s introduction of the prior burglary convictions. The trial court’s refusal to allow appellant to do so is enumerated as error.

OCGA § 15-12-133 “outlines the permissible scope of voir dire. [Cit.] Voir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. [Cit.] However, no question should require a response from a juror which might amount to a prejudgment of the case. [Cit.] Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the ‘control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.’ [Cit.] Hypothetical voir dire questions are not per se improper, [cit.], but a trial judge should be cautious in allowing counsel to propound questions which ask the juror to assume that certain facts will be proven. Such questions tend to improperly influence jurors. [Cit.]” Waters v. State, 248 Ga. 355, 363 (3) (283 SE2d 238) (1981).

“[N] either the defendant nor the [S]tate has the right simply to outline the evidence and then ask a prospective juror his opinion of that evidence.” Blankenship v. State, 258 Ga. 43, 45 (6) (365 SE2d 265) (1988). See also Jenkins v. State, 157 Ga. App. 310, 313 (3) (277 SE2d 304) (1981) (no abuse of discretion where inquiry “could only be answered in the light of the evidence yet to be presented at trial”). Accordingly, there was no abuse of discretion in the trial court’s refusal to allow appellant, in effect, to question the prospective jurors regarding their opinions as to evidence that the trial court had ruled to be admissible at trial. Likewise, there was no abuse of discretion in the refusal to allow appellant to question the prospective jurors whether they would follow the trial court’s limiting instructions as to their consideration of that evidence. Appellant “was not entitled to ask whether the jury would be able to follow the instructions of the trial court ([cit.]). . . .” Head v. State, 160 Ga. App. 4, 6 (6) (285 SE2d 735) (1981). See also Wallace v. State, 248 Ga. 255, 259 (2) (282 SE2d 325) (1981); Smith v. State, 238 Ga. 146, 149 (5) (231 SE2d 757) (1977).

2. Appellant never objected to the admission of his prior convictions on the ground that the State had failed to show that they were sufficiently “similar” to the crime with which he was charged in the instant case. Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991). Likewise, appellant never objected to timing of the State’s introduction of the prior convictions. Compare Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991). Instead, appellant objected only that two of his four prior convictions, having occurred 11 years before, were so “remote” as to be more prejudicial than relevant.

“While lapse of time is an important factor to be weighed when considering the admissibility of evidence of independent crimes, it is not wholly determinative. [Cit.] This is especially true where there are similar . . . intervening crimes which occur periodically over a span of time as is the case here.” Chastain v. State, 260 Ga. 789, 791 (3) (400 SE2d 329) (1991). Appellant’s incarceration pursuant to the eight-year-old and four-year-old convictions, the admission of which has not been challenged on appeal, circumscribed his “ability to commit similar offenses during much of the [11]-year period. [Cit.]” Anderson v. State, 183 Ga. App. 669, 671 (1) (359 SE2d 688) (1987). There was no error in the admission of appellant’s 11-year-old convictions over the objection that they were too “remote.” See Gilstrap v. State, supra at 799 (lb) (holding that 31 years is too remote, but recognizing that 11 years is not).

3. Appellant enumerates as error the trial court’s giving of the following charge: “The presence of valuables inside the premises can support an inference of intent to commit a theft. Whether or not you draw such an inference is left up tp you.”

This “instruction states a legally correct principle of the law and there was sufficient evidence presented at trial to authorize the giving of the instruction in this case. [Cits.]” Prothro v. State, 186 Ga. App. 836, 837 (2) (368 SE2d 793) (1988). “ ‘(W)here there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. (Cit.)’ [Cit.]” Day v. State, 197 Ga. App. 875, 876 (2) (399 SE2d 741) (1990).

4. Shortly before trial, the State gave appellant notice of its intent to prosecute him as a recidivist under OCGA § 17-10-7. Appellant’s contention that this notice was not timely is controlled adversely to him by Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985).

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I respectfully dissent as to Division 2, although I concur in Divisions 1 and 3.

Although the appellate courts have allowed prior incidents of 11 years distance from the crime on trial to be introduced, they recognize that time span is a factor to take into account in weighing the probative value of the evidence of the incident against the prejudice created by revealing these prior incidents to the jury, which is to try only the present case. “The general rule is that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial.” Hicks v. State, 232 Ga. 393, 397 (207 SE2d 30) (1974).

Thus the negative reflection on character, which prior convictions darkly cast on a defendant and which present him to the jury not merely as a defendant but as a criminal, render them inadmissible unless they are relevant to an issue before the jury. They must meet other threshold hurdles as well, but we are not concerned with those' here. See Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991); Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

The issue in this burglary case was whether defendant intended to commit a theft when he broke into the Vocational Rehabilitation Center. He presented no evidence, and his defense was that at most he committed criminal trespass, which does not require such an intent. The court charged the elements of both crimes (OCGA §§ 16-7-1 (a) and 16-7-21 (a) and (b) (1)), so it was up to the jury to decide whether defendant committed the felony or the misdemeanor or neither.

The two burglaries over a decade earlier resulted in pleas of guilty, which the later crimes did not. They constituted formal admissions to the court that defendant had entered two other commercial establishments with intent to commit thefts. In the form petitions to enter guilty pleas, which bear appellant’s signatures, appellant acknowledged that he knew that the maximum punishment for each offense was 20 years and that, if he was then serving another sentence, the sentence in each of the two new crimes could be imposed to follow that sentence.

Appellant specifically but unsuccessfully objected to these petitions because of the irrelevancy and prejudice which much of this material introduced. From it the jury could infer that he was already serving a sentence when he pleaded guilty in 1978. Since the sentences on those two burglaries were not in evidence and the third burglary occurred less than two-and-one-half years later, the jury could also infer that defendant either received very short sentences for those crimes or was released before his sentences expired. The knowledge of these guilty pleas, along with the inferences deducible from them, were highly inflammatory when the jury was deliberating on whether defendant had committed the fifth burglary.

The remoteness of the two 1978 burglaries becomes a particularly significant factor weighing against admission when it is considered that evidence of two later burglaries was admitted (also over objection, although this is not pursued on appeal). They were admitted for the very same purpose of showing, as the court instructed the jury, “the defendant’s state of mind” or “mental state or intent” with respect to the incident on trial. They increased the ingredient of prejudice on the one side of the scale without adding significantly to the issue of intent on the other side of the scale. Besides, there was evidence of intent in the circumstances of the break-in on trial. Valuable property was contained in the building, and defendant had rifled a desk drawer before he exited the premises with his injured hand, leaving a trail of blood behind.

The introduction of the four earlier convictions consumed a large portion of the entire trial. Two of the five witnesses were called to describe the two later burglaries, and the many documents introduced as to all four of them comprised the entirety of the exhibits except for some photographs of the burglarized premises. Thus the former convictions were not incidental to defendant’s trial and the probative value of these two early burglaries was minimal, whereas their prejudice was great.

Decided February 3, 1992.

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

The jury could have convicted this appellant of criminal trespass because he was apprehended when he emerged from the building without any burglary tools, without having taken anything, and smelling strongly of an alcoholic beverage. Consequently, I cannot conclude as a matter of law that, despite the strength of the circumstantial evidence of intent and thus of burglary, it is highly probable that the admission of the prior convictions did not contribute to the jury’s verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).


text:
    A91A1481.
    GARDINER v. McDANIEL.
    (415 SE2d 303)
   Carley, Presiding Judge.

Appellee-plaintiff and appellant-defendant were shareholders in a close corporation of which appellee was a director and appellant was the president. In ostensible consideration of the purchase of all of appellee’s shares of stock, appellant executed a promissory note in favor of appellee. When appellant defaulted on this note, appellee brought the instant action to recover the accelerated unpaid balance. In his answer, appellant denied any personal liability, alleging, among his other defenses, that the note had been fraudulently misrepresented to him as being a corporate rather than a personal obligation. After discovery, appellee moved for summary judgment. Appellant appeals from the trial court’s grant of this motion.

1. “ ‘One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. (Cits.) Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar [a defense] based on fraud. (Cits.)’ [Cits.]” Moran v. NAV Svcs., 189 Ga. App. 825, 826-827 (3) (377 SE2d 909) (1989). The fraud alleged by appellant consists merely of misrepresentations as to the contents of the note. Appellant does not contend that, prior to his execution of the note, he was prevented from reading it to verify its contents. The only contention is that the fiduciary duty owed by appellee, as a corporate director, relieved appellant, as a corporate shareholder, of the obligation to exercise ordinary diligence to verify the terms of the note that he signed.

Decided February 3, 1992.

Alfred L. King, Jr., for appellant.

McGinn, Webb & Warner, Richard P. Lindsey, for appellee.

As a corporate director, appellee owed a fiduciary duty as to appellant’s shares of stock. Oliver v. Oliver, 118 Ga. 362 (4) (45 SE 232) (1903). In the instant underlying transaction, however, appellee was simply selling his shares of stock and he was not acting in his capacity as a corporate director. “[I]n these circumstances, the transaction as between the contracting parties would be merely a personal transaction between individuals.” Biggs v. McBrayer, 174 Ga. 244, 245 (3) (162 SE 787) (1932). “The vendor and vendee of property are not, by virtue of such fact, placed in a confidential relationship to each other, but on the contrary are presumed to be dealing at arm’s length. [Cit.]” Lewis v. Alderman, 117 Ga. App. 855 (2) (162 SE2d 440) (1968). Moreover, the alleged fraud did not relate to the intrinsic value of the shares of stock themselves, but to whether the express terms of the note evidenced a personal rather than corporate obligation.

Under the evidence of record, there was no special relationship of trust or confidence between the parties, and no genuine issue of material fact remains as to whether appellant was relieved of the duty to exercise due diligence in his own behalf. Construing the evidence most favorably for appellant, the instant case nevertheless comes within the general rule that “he who can read must read[.]” Rhodes v. Perimeter Properties, 187 Ga. App. 55, 56 (369 SE2d 332) (1988). It follows that the trial court correctly granted summary judgment in favor of appellee with respect to appellant’s personal liability on the note that he signed.

2. Appellee’s motion for an assessment of ten percent damages for a frivolous appeal, pursuant to OCGA § 5-6-6, is denied. Prattes v. Southeast Ceramics, 132 Ga. App. 584, 586 (3) (208 SE2d 600) (1974).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Andrews, Judge.

text:
    A91A1594.
    SMITH v. THE STATE.
    (415 SE2d 481)
   Andrews, Judge.

After being indicted for conspiracy to sell and distribute cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30), Smith was convicted by a jury of conspiracy to unlawfully sell a non-controlled substance in violation of OCGA § 16-13-30.1. Smith claims his conviction cannot stand because he was not charged with a violation of OCGA § 16-13-30.1 in the indictment, nor was it a lesser included offense of the offense charged in the indictment.

Viewing the evidence in a light most favorable to the conviction (Gurlaskie v. State, 196 Ga. App. 794-795 (397 SE2d 66) (1990)), evidence showed that Ward met with Smith and arranged to buy cocaine. Smith and Bell delivered a bag to Ward containing a white powdery substance which Ward believed to be cocaine, but which Smith and Bell knew to be lidocaine. Lidocaine is not a controlled substance as defined in the Georgia Controlled Substances Act, though it is listed as a dangerous drug under the Dangerous Drug Act. OCGA § 16-13-70 et seq. The state crime lab report, which was returned prior to Smith’s indictment, showed the substance to be lidocaine. Although Smith testified that he never agreed to sell cocaine to Ward, evidence showed that Ward gave money to Smith for the purchase of cocaine; that Smith contacted Bell about the purchase; and, that Smith and Bell delivered the lidocaine to Ward.

The trial judge charged the jury with respect to conspiracy to sell or distribute cocaine as charged in the indictment. The court then charged the jury OCGA § 16-13-30.1 relating to the unlawful sale or distribution of a non-controlled substance with the express or implied representation that the substance is a controlled substance, adding that if the jury did not find Smith guilty of the indicted offense “then you may consider whether or not he committed the lesser included offense of conspiracy to unlawfully sell a non-controlled substance.” The jury returned a verdict of “guilty of conspiracy unlawfully to sell a non-controlled substance.”

“It is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.” (Punctuation and citations omitted.) Evans v. State, 252 Ga. 312, 320-321 (314 SE2d 421) (1984). Here the offense for which Smith was convicted was not included in the indicted offense, nor was it otherwise embraced within the language of the indictment. A conviction for conspiracy to sell or distribute cocaine requires different proof than the offense of unlawfully selling a non-controlled substance while representing it to be a controlled substance. See Tabb v. State, 250 Ga. 317, 318-320 (297 SE2d 227) (1982) (separate charges brought against defendant for possession of different Schedule II controlled substances were not offenses included within each other under OCGA § 16-1-6).

Decided February 3, 1992.

John W. Sherrod, for appellant.

William. A. Foster III, District Attorney, Donald N. Wilson, George C. Turner, Jr., Assistant District Attorneys, for appellee.

The trial court’s instructions on the unlawful sale of a non-controlled substance allowed the jury to convict Smith of a crime materially different from that charged in the indictment. Although giving instructions with respect to uncharged offenses may not always be reversible error where the trial court also gives a limiting instruction that correctly confines the jury to consideration of the offense as charged in the indictment, there was no limiting instruction given in this case, and the verdict form confirms that the jury did in fact convict Smith of the uncharged crime. Walker v. State, 146 Ga. App. 237, 244-246 (246 SE2d 206) (1978).

The state contends that since Smith presented evidence at trial that the substance passed off to the buyer was lidocaine, he was not surprised or harmed by any variance between the indicted offense and the proof which supported his conviction. In De Palma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969), the court adopted the rule that a variance between the allegations and proof is fatal to a conviction when it deprives the accused of “ ‘obvious requirements (1) that [he] shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ ” (Citations omitted.) As we noted in Nesmith v. State, 183 Ga. App. 529, 530-531 (359 SE2d 421) (1987), the De Palma decision did not alter the longstanding rule reiterated in Walker, supra at 241-242, that while it is not necessary to prove allegations in an indictment that are immaterial or surplusage, the state must prove all material allegations in an indictment which describe the offense or the particular manner in which the offense was committed. Since the jury instruction given by the trial judge resulted in Smith’s conviction on a charge not brought in the indictment, this is the type of fatal variance found in Walker, supra, and the conviction must be reversed.

We need not address the remaining enumerations of error.

Judgment reversed.

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


text:
    A91A2063.
    WATSON v. THE STATE.
    Decided February 3, 1992.

      Moore & Dodgen, Andrew C. Dodgen, for appellant.

      Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.
    (415 SE2d 306)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of voluntary manslaughter. On July 20, 1990, the trial court entered its judgment of conviction and sentence on the jury’s guilty verdict. Within 30 days thereafter, neither a motion for new trial nor a notice of appeal was filed. On May 14, 1991, however, the trial court entered an order which purported to extend the time for appellant to file a notice of appeal until June 15, 1991. On June 21, 1991, a similar order was entered, purporting to extend the time for appellant to file a notice of appeal until July 15, 1991. The instant case is before us pursuant to a notice of appeal which was filed by appellant on July 15, 1991.

“ < “rphg pr0per and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” [Cit.]’ [Cit.]” (Emphasis in original.) Sharpe v. State, 198 Ga. App. 381, 382 (1) (401 SE2d 586) (1991). “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . .” OCGA § 5-6-38 (a). “Since [no] motion for new trial was . . . filed within 30 days of the judgment as required by OCGA § 5-5-40 (a), the time for appeal was not extended under OCGA § 5-6-38 (a). No extension [of time for filing the notice of appeal] could be given [after 30 days], as it is prohibited by OCGA § 5-6-39 (b). No motion for an out-of-time appeal was made.” Walker v. State, 197 Ga. App. 265 (398 SE2d 217) (1990).

If appellant is to secure direct appellate review, he must file a timely notice of appeal after obtaining a proper written order from the trial court which grants him an out-of-time appeal. See Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). This court has no jurisdiction to consider the merits of the issues raised, and the appeal is accordingly dismissed. Clay v. State, 194 Ga. App. 354 (391 SE2d 143) (1990).

Appeal dismissed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A2088.
    BLAXTON et al. v. CLEMENS.
    (415 SE2d 304)
   Pope, Judge.

This action arises out of the sale of a house. Plaintiff/appellee James A. Clemens sold the house to defendants/appellants the Blaxtons. At closing, the Blaxtons gave Clemens a promissory note for $4,000 for a portion of the purchase price. When the Blaxtons defaulted on the note, Clemens brought an action to collect the amount due. The Blaxtons counterclaimed for damages, alleging Clemens had fraudulently concealed certain latent and patent defects from them at the time of the sale. The trial court granted a directed verdict in favor of Clemens on the note and the jury returned a verdict in favor of Clemens on the counterclaim. The Blaxtons appeal.

1. The counterclaim alleged several specific defects in the house which were allegedly known to Clemens but concealed at the time of sale. Neither the counterclaim nor the pre-trial order made any allegation, however, of any defect in the construction of the fireplace. Nevertheless, testimony was presented without objection at several points during the trial concerning such alleged defect. In fact, on cross-examination the attorney for Clemens elicited several statements from more than one witness about the claim that the fireplace was defectively constructed. Finally, however, when the Blaxtons’ attorney questioned a contractor who had made several repairs to the house concerning his observations and opinions about the fireplace, Clemens’ attorney objected on the ground that the allegedly defective fireplace was not properly an issue in the case.

After a bench conference, the trial judge instructed the jury that the fireplace was not an issue in the case. He went on to state: “[I]n Georgia we have the law of caveat emptor, which means that the purchaser has the duty to inspect the house to discover whatever defects are observable. And then, of course, there’s the law of fraudulent concealment and I’ll explain all that to you, and fraudulent inducement, which may enter into this case. But that is the reason why the . . . [Blaxtons] could not recover for any defect in the fireplace.” The Blaxtons first argue the trial court erred in instructing the jury on the doctrine of caveat emptor because it was an incomplete statement of the law and constituted an improper comment on the evidence. The Blaxtons are correct in arguing that their allegations of fraudulent concealment, if believed by the jury, establish an exception to the general rule of caveat emptor. See Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977). See also Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) (1982). However, we do not agree that the instruction given is reversible error. The trial court acknowledged the law of fraudulent concealment and indicated a further instruction would be given in that regard. The trial transcript shows the trial court did, in fact, give the jury an adequate charge on the law of fraudulent concealment at the close of the evidence. Thus, the trial court’s instruction to the jury, when taken as a whole, was accurate and not incomplete. See, e.g., Jordan v. Santa Fe Engineering, 198 Ga. App. 600 (2a) (402 SE2d 304) (1991). We disagree that the instruction given at the time the testimony was excluded was an improper comment by the judge on the evidence in the case.

2. The Blaxtons also argue the trial judge erred in sustaining the objection to the testimony about the fireplace because testimony had already been admitted without objection concerning the allegedly defective fireplace. Thus, they argue, the evidence had the effect of amending the pleadings and placing the allegations concerning the fireplace at issue in the case. During the bench conference concerning the objection, however, the Blaxtons’ attorney conceded that he did not oppose the exclusion of the evidence about the fireplace but objected only to the judge’s instruction concerning the doctrine of caveat emptor. Thus, the Blaxtons acquiesced in the exclusion of the evidence and may not now complain that the ruling was in error. “No matter how erroneous the ruling might have been (and we express no opinion on this question), a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. [Cit.]” Upshaw v. Cooper, 127 Ga. App. 690, 692 (194 SE2d 618) (1972).

3. The trial judge granted Clemens’ motion in limine prohibiting the parties from presenting evidence of the financial worth of the parties. The Blaxtons argue the trial court erred in permitting Clemens to violate his own motion in limine by permitting his attorney to question Mr. Blaxton concerning his family’s income. The transcript shows, however, that on direct examination Mr. Blaxton testified he was financially unable to make the necessary repairs to the roof of the house to correct the alleged defect in the roof. Thus, the questions propounded to Mr. Blaxton on cross-examination concerning his financial ability to make necessary repairs to his house were properly allowed to impeach the earlier testimony. Since mitigation of damages is properly an issue in a claim for damages from tortious misconduct (see OCGA § 51-12-11), and since the issue of financial ability was first raised by Mr. Blaxton, we find no reversible error in permitting such cross-examination.

Judgment affirmed.

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

Decided February 3, 1992.

Cheney & Cheney, Curtis V. Cheney, Jr., Sharon G. Cheney, for appellants.

Stubbs & Associates, M. Francis Stubbs, for appellee.


author: Sognier, Chief Judge.

text:
    A91A2156.
    STUBBS v. THE STATE.
    (415 SE2d 486)
   Sognier, Chief Judge.

James Daniel Stubbs appeals from his conviction for child molestation.

In his sole enumeration of error, appellant contends the trial court erred by admitting evidence of similar transactions when notice of intent to introduce such evidence was not properly served upon appellant. We do not agree. USCR 31.3 (B) requires that the prosecutor serve such written notice upon defense counsel. Although appellant is correct that OCGA § 17-1-1 (b) (2) provides that delivery may be made in three ways, none of which was used by the prosecutor in this case, that subsection is inapplicable in this case. Subsection (b) (1) of that statute provides that “[s]ervice upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address,” (emphasis supplied) which the certificate of service included in the record shows the prosecutor certified had been done in this case.

Although appellant’s counsel indicated to the court that he had not received the mailed notice, OCGA § 17-1-1 (b) (3) provides that “[s]ervice by mail shall be deemed complete upon mailing.” The language of the statute thus unambiguously supports the trial court’s ruling here. We note as well that, although we have found no cases interpreting OCGA § 17-1-1 (b) (3), in construing the predecessor statute to OCGA § 9-11-5 (b), the civil counterpart of OCGA § 17-1-1 (b) containing identical service provisions, the Supreme Court has found that service by mail as provided in the statute provides notice which is “reasonably calculated to inform parties of matters affecting their interests. There is no constitutional requirement beyond this.” Allen v. Bd. of Tax Assessors, 247 Ga. 568, 569 (277 SE2d 660) (1981). Consequently, where it is undisputed that service is properly made in accordance with the statutory provisions, “actual notice is not required,” id., and it is immaterial that the notice was not received. In this case, no evidence was proffered to rebut the prima facie evidence of proper service presented by the certificate of service, see OCGA § 17-1-1 (e) (2), and we hold the trial court did not err by allowing into evidence the similar transactions covered by the notice.

Decided February 3, 1992.

Hal T. Peel, for appellant.

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

Judgment affirmed.

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


text:
    A91A2184.
    TAYLOR v. THE STATE.
    (415 SE2d 483)
   Beasley, Judge.

Following the denial of his amended motion for new trial, Taylor appeals his convictions for rape, OCGA § 16-6-1 (a), aggravated sodomy, OCGA § 16-6-2 (a), aggravated assault with a butcher knife, OCGA § 16-5-21 (a) (2), aggravated assault by beating with hands and fists, OCGA § 16-5-21 (a) (2), and possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act, OCGA § 16-13-2 (b). He was sentenced as a habitual offender, OCGA § 17-10-7. Taylor was also indicted for one count of armed robbery, OCGA § 16-8-41 (a) but a nolle prosequi was entered following the State’s motion to dismiss this charge. All charges and convictions stem from the early morning break-in and attack at a 70-year-old widow’s home, over a period of at least four hours.

The sole question raised in the appeal is the existence of the factual merger aspect of double jeopardy. OCGA §§ 16-1-7 (a) (1) and 16-1-6 (1). See also Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. Appellant contends that both aggravated assault charges merged as a matter of fact with the rape and aggravated sodomy, precluding additional sentences for the assaults. Alternatively, he urges that only the knife assault was separately punishable and that the fist assault was in the sex crimes. In denying a new trial, the court specifically rejected factual merger after finding that appellant “used violence above and beyond that necessary to effectuate the rape and aggravated sodomy.”

The evidence construed in favor of the verdict showed the following. At approximately 1:15 a.m. on August 6, 1989, the victim was home alone watching television in her bedroom. The doors and windows of her house had been locked. The woman heard a noise over and above that made by the air conditioner and went into the front living room to investigate. She saw the appellant standing there. He had broken in through the living room window.

The woman asked appellant, whom she had never seen before, who he was and what he wanted. Appellant responded, “G_dd — n mother f_, get naked. I’m going to f_you,” and hit the woman on the head with his fists. He threatened to kill her, and he hit her repeatedly in the face with his fists.

The victim was dragged into the bedroom by pulling her by her arm and hair. Several clumps of hair were pulled out of her head. A gold chain was jerked off her neck. Appellant forced her to disrobe and kneel naked on the floor. He forced her to have vaginal and anal intercourse and to perform oral sex on him. She bled both orally and vaginally.

Appellant took the victim into the kitchen, where he took mayonnaise out of the refrigerator and picked up a knife. As appellant started toward the victim to cut her, she attempted to grab the knife, push appellant against the wall and/or grab him around the neck. She believed appellant was going to kill her, which he had continually threatened to do. She was unable to grab his neck because, she said, it was “so greasy and sweaty.”

During the struggle, the knife lacerated the victim’s hand. Appellant hit her again, pulled her by her hair, and pushed her over into a bathtub. The victim begged appellant to help her out of the bathtub. He responded that he was not going to leave and that he was going to kill her. At one point, appellant rummaged through a closet demanding to know where a gun was located, even though the victim told him she did not have a gun.

Appellant told the woman he was going to drink her blood. When the victim asked to go to the bathroom, appellant replied that there was no need for that because he was going to drink her urine. Appellant inserted the mayonnaise and some hair grease he found in a drawer into her vagina and performed oral sex on her. He bit her on the eyelids and on the breasts.

Appellant found some whisky, poured a teacup full, spit in it, and told her to drink it. When his head was turned, she poured it out but appellant refilled it. She took some in her bleeding mouth but spit it out because of the pain.

He finally allowed her to go to the bathroom. When she returned to the bedroom, appellant passed out on the bed. The victim fled naked and bleeding to a neighbor’s home and the police were summoned. They found appellant still asleep on the bed. His trousers were unzipped and his genitalia exposed.

The evidence authorized the finding that there were two separate assaults, one committed with appellant’s fists and one committed with a knife wielded by appellant. Both constituted gratuitous physical violence which was distinguished from the forced sex acts. See Watson v. State, 178 Ga. App. 778, 780 (2) (344 SE2d 667) (1986) (physical precedent); Sylvester v. State, 168 Ga. App. 718 (2) (310 SE2d 284) (1983); Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978). As in Hughes v. State, 239 Ga. 393, 397 (3) (236 SE2d 829) (1977), “the evidence required to convict [Taylor] of aggravated assault was unnecessary to prove the rape.” The assaults even occurred in different locations in the house and to different parts of her body, than the sex crimes. They did not have to follow the sex acts in time in order to be additionally punishable crimes.

Decided February 3, 1992.

J. Robert Daniel, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Thomas J. Matthews, Assistant District Attorneys, for appellee.

It was not error to sentence appellant separately and additionally on the jury’s findings of guilt for the aggravated assaults, as there was no factual merger of offenses as a matter of law. The evidence of the two assaults, one with fists, and one with a knife, was not necessary to prove the rape, so there was no violation of OCGA §§ 16-1-6 (1) and 16-1-7 (a) (1).

Judgments affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A2220.
    MORRIS v. THE STATE.
    (415 SE2d 485)
   Sognier, Chief Judge.

James Richard Morris was convicted of the offense of cruelty to children, OCGA § 16-5-70 (b), and he appeals.

OCGA § 16-5-70 (b) provides that “[a]ny person commits the offense of cruelty to children when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Appellant contends the evidence was insufficient to support his conviction because the State failed to meet its burden of proof on both the causation and the malicious intent elements of the crime, and the evidence was circumstantial and did not exclude every reasonable hypothesis other than his guilt. We do not agree.

The State presented evidence at trial showing that the victim, the two-and-one-half-year-old son of the woman with whom appellant was living, was brought to University Hospital in Augusta on August 19, 1985, with bruises on his face, back, extremities, and buttocks. Appellant conceded at trial that the injuries occurred when he was alone with the victim while the child’s mother was working, but insisted that the injuries had occurred in several falls. He attributed the facial bruises to the child’s fall over a toy box and the bruises on the child’s buttocks to an incident in which both he and the victim fell down a hillside.

Decided February 3, 1992.

Fleming, Blanchard & Bonner, James G. Blanchard, Jr., for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Two physicians who examined and treated the child testified that although some of the bruises could have been accidental, the facial and buttocks bruises were inconsistent with appellant’s explanations. Dr. Reggie Pilcher testified that the facial bruises, consisting of three parallel marks on the cheek, were characteristic of a “classic hand print” made by striking a hand on the cheek and that the bruises on the victim’s buttocks could only have been caused “[b]y someone or something spreading the buttocks apart and applying blunt trauma to the perineum and anus.”

To warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been conimitted by someone else. “Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.” (Citations and punctuation omitted.) Smith v. State, 197 Ga. App. 609, 611 (398 SE2d 858) (1990). Even when the defendant is the sole eyewitness, the defendant’s explanation may be rejected by the jury where that explanation is inconsistent with other direct and circumstantial evidence. Terry v. State, 243 Ga. 11, 12-13 (1) (252 SE2d 429) (1979). In the case sub judice, the jury was authorized to believe the testimony of the doctors rather than that of appellant regarding the nature of the injuries, and that testimony would support an inference of malice. Moreover, given that appellant admitted he was the only one present when the injuries occurred, the jury would have been authorized to infer as well that appellant caused the injuries. Accordingly, we find the evidence sufficient to have authorized the jury to find appellant guilty of cruelty to children under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Martin v. State, 190 Ga. App. 486-487 (1) (379 SE2d 170) (1989).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A90A1299.
    YARBRAY v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    Decided February 4, 1992.

      Ford & Haley, James L. Ford, for appellant.

      Jones, Day, Reavis & Pogue, John F. Wymer III, Deborah A. Sudbury, for appellee.
    (416 SE2d 578)
   McMurray, Presiding Judge.

In Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703 (409 SE2d 835), the Supreme Court affirmed in part and reversed in part the judgment of this Court in Yarbray v. Southern Bell Tel. &c. Co., 197 Ga. App. 846 (399 SE2d 718). Accordingly, our prior judgment is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and reversed in part.

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


text:
    A92A0846.
    HEUER INDUSTRIALS, INC. v. CRUM.
    Decided February 4, 1992.

      Donaldson & Bell, George P. Donaldson III, for appellant.
    (415 SE2d 307)
   Andrews, Judge.

Crum sued Heuer Industrials, Inc., in a dispute over the terms of a real estate sales contract, and obtained a judgment for damages in the amount of $3,289.70, from which Heuer Industrials filed this direct appeal on January 28, 1992.

Prior to July 1, 1991, a direct appeal could be brought in actions for damages in which the judgment exceeded $2,500. See former OCGA § 5-6-35 (a) (6). For appeals filed on or after July 1, 1991, OCGA § 5-6-35 (a) (6) was amended to reflect that “[a]ppeals in all actions for damages in which the judgment is $10,000.00 or less” must be taken by the application procedures set forth within the Code section. Accordingly, this direct appeal must be dismissed for failure to comply with the discretionary application procedures of OCGA § 5-6-35. Covrig v. Campbell, 187 Ga. App. 39, 40 (369 SE2d 293) (1988).

Appeal dismissed.

Birdsong, P. J., and Beasley, J., concur.

Bowles & Bowles, Jesse G. Bowles III, for appellee.