text:
    75179.
    STEVANUS v. THE STATE.
    (363 SE2d 322)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of burglary, aggravated assault, kidnapping, two counts of false imprisonment and giving a false name to a law enforcement officer. A jury convicted defendant of all of the charges except kidnapping. He was sentenced to serve 15 years (with 5 years probated) on the aggravated assault and false imprisonment charges, 5 years on the burglary charge and 12 months on the false name charge. All of the sentences were to be concurrent. Following sentencing, defendant moved for a new trial. The trial court denied the motion and this appeal followed.

Viewing the evidence in a light favorable to the verdict, we find the following facts: On December 19, 1986, just before 7:00 a.m., the victims awakened, and suddenly a light was turned on in their bedroom. Looking at the doorway, the husband saw an intruder. He was wearing a ski mask and was pointing a gun directly at the husband. The intruder instructed the victims to lie face down on the bed and place their hands behind their backs. Handcuffs were placed on Mr. Bittinger’s wrists; his wife’s hands were tied with wire. Duct tape was used to cover Mr. Bittinger’s eyes; a red bandanna was used to blindfold his wife.

Mr. Bittinger asked the intruder if he intended to rob them. He said no. Then Mr. Bittinger asked the intruder if he was going to shoot them. He said probably not. Mrs. Bittinger inquired just what the intruder was going to do. He replied: “Well, Scott may have to take a little ride.” (Mr. Bittinger went by the name “Scott.” The victims testified that the intruder had not been given any tips about their names.) Thereafter, the victims engaged the intruder in further conversation. His voice was very familiar to them. He told them that Mr. Bittinger “made someone very angry” and that he was being paid to bring. Mr.-Bittinger to see that “someone.”

In the midst of the ordeal, the intruder placed the husband in the guest room for a period of time. The intruder and the husband continued to talk. During the conversation, the intruder said, “You’uns have a nice car.” When the husband heard that expression, he knew the identity of the intruder “in a flash” — it was Bill Stevanus, the defendant.

Defendant, an Ohio native, was a friend of Mrs. Bittinger’s sister. He met the victims at a wedding in Ohio in June 1986. Shortly thereafter, defendant and Mrs. Bittinger’s sister visited the victims at their home in Woodstock, Georgia. They stayed about one week.

Defendant was a construction worker and jobs were hard to find in Ohio. When defendant expressed an interest in finding a job in Georgia, the victims graciously offered defendant a place to stay until he could get on his feet. In July, defendant took the victims up on their offer. When he arrived in Woodstock, the victims gave defendant a key and put him up in their guest bedroom.

Defendant got a job in Woodstock with a construction crew. After a couple of weeks, Mr. Bittinger suggested that defendant pay something towards room and board and defendant gave the Bittingers $100.

During his stay, defendant conversed with the Bittingers daily. He was a tennis player and he played tennis with Mr. Bittinger on several occasions. He was also a smoker.

Defendant did not have an automobile and he frequently expressed an interest in buying a 1978 Datsun 280Z which the victims were trying to sell. In Mr. Bittinger’s words, defendant was “fixated on that car from day one.” He began every conversation about the Datsun with the expression “You’uns have a nice car.” (“You’uns” is an expression used in certain parts of Ohio and Pennsylvania. It is the equivalent of “y’all.”) Except for the frame, the car was in good condition. It did not have any cracks in the dashboard (the victims kept a towel over the dash); it did not have high mileage. Defendant was not able to meet the victims’ asking price, however, so he did not buy the car.

Defendant ended up staying with the victims for one month. When he left, defendant left the key which the victims had given him. He also left owing $150 in telephone charges.

When he realized that defendant was the intruder, Mr. Bittinger continued the conversation about the “nice car.” He asked which car the intruder was referring to. The intruder replied that he was referring to the “Datsun-Z car.” He said he “noticed there’s no dash cracks and low mileage, 60,000 or so.” Then the intruder went into the bathroom. Using their olfactory senses, the Bittingers could tell that he smoked a cigarette. Returning to Mr. Bittinger, the intruder brought up the subject of tennis.

The intruder remained in the Bittinger’s home for an hour and a half. During that time, he used the telephone frequently. To do so, it was necessary for the intruder to go to another floor in the house because he disconnected the telephone in the victims’ bedroom. On one occasion, while the intruder was using the telephone, Mr. Bittinger stood up and the floor creaked. The intruder yelled, “Scott, Pat, where are you?” He bounded up the stairs to see what was going on. Satisfied that everything was all right, the intruder returned to the telephone. He dialed and, speaking loud enough for the victims to hear, said: “Bill. . . Well, I can’t wait around here all day. I can’t be seen here . . . Well, it’s your money.” He hung up the phone and went back upstairs. Leading Mr. Bittinger back into the master bedroom, the intruder said: “You’re lucky. He changed his mind. I don’t know why, but he changed his mind.”

Approaching Mrs. Bittinger, the intruder stated: “You’uns should put dead-bolts on your doors. It was too easy to break in.” Mrs. Bittinger replied that she had purchased such locks but had not installed them. At that, the intruder laughed. Then he confided that he had a problem. He was going to use the victims’ automobile to take Mr. Bittinger for the “little ride,” but the plan had been changed. He did not have an automobile and, therefore, he had no way of leaving hurriedly. The victims struck a deal with the intruder. They agreed to give him a 20-minute head start before they attempted to escape from their bonds. At that, the intruder made yet another telephone call. When he returned, he loosened the wire on Mrs. Bittinger’s hands, left the key to the handcuffs, and made a swift exit.

Mrs. Bittinger freed herself and called the police. She then unlocked the handcuffs which had been placed on her husband. The police arrived in about a half hour. They found no signs of a forced entry. Fingerprints were taken at the scene but they were not clear, and could not be identified.

Neither victim was able to see the intruder — his face was well covered. But, based on the intruder’s voice, the Bittingers identified him as their former houseguest. A few days later, defendant was arrested by the police. Initially, he informed them that his name was Albert J. Stevanus. The next day, defendant recanted. He told the police that he had given them a false name and that his real name was William Henry Stevanus.

At the trial, the victims made a positive voice identification of defendant. The Bittingers testified that they were familiar with defendant’s voice and the the intruder and defendant were one and the same person. Mr. Bittinger described defendant’s voice as “a medium low voice, monotone.” He also identified defendant on the basis of his laugh, which he described in some detail and characterized as being very distinctive. Held:

Decided November 19, 1987.

David L. Cannon, for appellant.

1. In his first enumeration of error, defendant contends the evidence is insufficient to support his conviction upon the burglary, aggravated assault and false imprisonment counts. In this regard, defendant argues that the identity of the intruder was not established by the evidence. We disagree. The voice identification testimony and the circumstantial evidence were more than sufficient to enable a rational trier of fact to find defendant guilty of the offenses for which he was convicted beyond a reasonable doubt. Shepherd v. State, 173 Ga. App. 499 (1) (326 SE2d 596).

2. Defendant complains that the trial court erred by refusing to strike Mrs. Bittinger’s voice identification testimony. He maintains that this evidence was admitted improperly because a proper foundation for it had not been laid.

The evidence showed that Mrs. Bittinger had ample opportunity to be familiar with defendant’s voice, having conversed with him on numerous occasions. After all, she testified that defendant was a guest in her home for a total of five weeks. She also testified that the intruder’s voice was “very, very familiar.” We think this was a sufficient foundation for the admission of her opinion testimony. Shepherd v. State, 173 Ga. App. 499, 500, 501, supra. The probative value of Mrs. Bittinger’s testimony was a matter for the jury’s consideration. Willingham v. State, 134 Ga. App. 603, 604 (215 SE2d 521); Shepherd v. State, 173 Ga. App. 499, 500, 501, supra.

3. The third assignment of error is wholly without merit.

4. OCGA § 16-5-41 (b) provides that “A person convicted of the offense of false imprisonment shall be punished by imprisonment for not less than one nor more than ten years.” The trial court sentenced defendant to serve 15 years (5 years probated) upon each false imprisonment count. In this respect, the sentence is illegal. “Where a part of a sentence is legal and another part illegal, only that part which is legal can be given effect. King v. State, 103 Ga. App. 272, 277 (3) (119 SE2d 77). Therefore, the case is remanded with direction that appellant be resentenced in accordance with law.” Robinson v. State, 169 Ga. App. 763 (315 SE2d 277).

Judgment affirmed as to the convictions and case remanded with direction as to the sentences.

Sognier and Beasley, JJ., concur.

Rafe Banks III, District Attorney, for appellee.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    75496.
    In the Interest of A. S.
    (363 SE2d 325)
   Deen, Presiding Judge.

Richard Smith and Jan McGinty were married and divorced, with Jan McGinty being awarded custody of their child, A. S. Smith subsequently instigated a proceeding before the juvenile court, seeking removal of the child from McGinty’s household because of deprivation. On May 12, 1986, the juvenile court entered an order of disposition, finding that clear and convincing evidence showed that A. S. had been sexually abused while in McGinty’s custody; the court declined to terminate McGinty’s parental rights, but temporarily transferred custody to the local Department of Family and Children Services (DFCS), which placed the child in temporary foster care with Smith’s aunt and uncle. The order also scheduled another hearing in six months to consider the need to alter any terms of the disposition.

This second hearing actually was held on January 13,1987. A few days before the hearing, Smith filed a petition with the juvenile court seeking permanent custody of the child. At the beginning of the hearing, Smith’s attorney requested that this petition also be addressed at that time, but changed her mind a third of the way through the hearing. At the conclusion of the hearing, the juvenile court indicated that actually it would have to dismiss Smith’s petition for lack of jurisdiction insofar as it sought a change in permanent custody, but would deny it to the extent it merely sought temporary custody of the child. The petition was formally denied on January 16, 1987.

In the written order entered on February 4, 1987, the juvenile court found that Smith was emotionally unfit to have custody of the child at that time, and ordered him to undergo psychological counseling with a particular psychologist in Savannah. (The court also ordered therapy for the child and McGinty.) The DFCS retained temporary custody of the child. This discretionary appeal by Smith followed. Held:

1. Under OCGA § 15-11-34 (a) (2), upon finding that a child is deprived, the juvenile court may temporarily transfer legal custody from the custodial parent to a suitable individual, a private agency or organization licensed to receive and provide care for a child, or any public agency authorized by law to receive and provide care for a child. In this case, Jan McGinty was the custodial parent under the divorce decree, and the juvenile court’s temporary transfer of custody to the DFCS was only a suspension of that right. Rodgers v. Dept. of Human Resources, 157 Ga. App. 235 (276 SE2d 902) (1981). Such temporary suspension of the right of custody does not automatically vest right of custody in a non-custodial parent whose parental rights remain intact. As indicated above, under OCGA § 15-11-34, in deciding the temporary custodian of a deprived child, the juvenile court has options. In exercising that discretion in this case, the juvenile court kept temporary custody with the DFCS, over Smith as a natural parent, because it considered Smith to be emotionally unfit at that time to be a responsible custodian of the child. It would have been no abuse of discretion, however, to award temporary custody with DFCS even had there been no question of Smith’s emotional stability.

The purpose of the January 1987 hearing was to examine the need for continuing the arrangement implemented under the court’s previous order. Most of the evidence concerned the behaviors of both Smith and McGinty since the previous hearing, which was pertinent to the determination of whether to keep temporary custody with the DFCS. The juvenile court’s consideration of this evidence in no way converted the hearing into another deprivation hearing with Smith as the defendant forced without notice to defend his right to custody, if for no other reason than that Smith had no right to custody in the first place. Smith’s contention that he was deprived of due process thus is either misleading or misguided.

2. Smith also contends that the juvenile court exceeded its authority by ordering specific placement, care, and supervision of the child, and by ordering Smith to submit to psychological counseling with specific psychologists in Savannah. As correctly noted by Smith, once a juvenile court determines that a child is deprived and temporarily transfers custody to the DFCS, “the statute places authority in the department as to ultimate disposition of the child,” and any portions of a court’s order purporting to control disposition of the child are merely exhortatory and not binding on the department. In re R. L. M., 171 Ga. App. 940, 942 (321 SE2d 435) (1984). However, in the instant case the juvenile court merely made recommendations as to placement, care, and supervision of the child, and thus did not exceed its authority.

The propriety of ordering psychological counseling for Smith, with a particular psychologist in Savannah which would necessitate a round trip drive of 100 miles, is more dubious. There is no statutory authorization for such an order other than OCGA § 15-11-57 (a) (8), which provides that, after due notice and opportunity to be heard have been given to the person against whom the order is directed, the juvenile court may require any person “[t]o participate with the child in any counseling or treatment deemed necessary after consideration of employment and other family needs.”

In the instant case, in the order of May 12, 1986, the juvenile court had recommended that Smith seek psychological counseling; the declared purpose of the January 1987 hearing was “to consider comments as to the results of the implementation of this order and the need, if any, to alter any of the terms of this order.” During that hearing, Smith certainly was afforded an opportunity to be heard on this issue. Assuming that the notice and opportunity to be heard requirements of OCGA § 15-11-57 were thus satisfied, and that that statute extends to separate counseling for the parent and child, it is apparent that no reason was shown for requiring such counseling with a particular psychologist 50 miles from the residence and work place of the affected parent. In short, we find that requirement to be unreasonable, and it must be stricken.

Decided November 19, 1987.

Alex L. Zipperer III, Judith M. Heck, for appellant.

John Wright Jones, Millard B. Shepherd, Jr., J. Stephen Lewis, Thomas C. Bordeaux, Jr., Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

3. The minor’s guardian ad litem has moved for dismissal of this appeal pursuant to OCGA § 5-6-48 (c), because of Smith’s delay in preparing and filing the transcript. Such a motion, however, should be addressed to the court below.

Judgment affirmed in part and reversed in part.

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


author: Pope, Judge.

text:
    74983.
    CHATHAM COUNTY HOSPITAL AUTHORITY et al. v. MACK.
    (363 SE2d 264)
   Pope, Judge.

Plaintiff Lachonda Mack, by and through her parents as next friends, sued defendant Chatham County Hospital Authority, and others, for medical malpractice. After extensive discovery had been pursued, defendant hospital authority counterclaimed, pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), to recover damages for abusive litigation as a result of plaintiff’s alleged unnecessary delay in responding to defendant’s motion for summary judgment. Without notice to defendant, plaintiff filed a notice of voluntary dismissal and obtained an ex parte order from the trial court dismissing her complaint against the hospital authority without prejudice. Subsequently, the voluntary dismissal was expanded to include all other defendants. Defendant hospital authority responded with a motion to strike plaintiff’s voluntary dismissal, claiming the dismissal of the complaint would improperly deny defendant of its right to pursue the counterclaim. The trial court denied the motion to strike plaintiff’s voluntary dismissal but expressly ruled that the defendant would be allowed to adjudicate its Yost counterclaim still pending in the action.

Decided November 4, 1987

Rehearing dismissed November 20, 1987.

Anne C. Marscher, Lee C. Mundell, for appellants.

Defendant hospital authority filed with this court an application for interlocutory appeal of the trial court’s denial of its motion to strike plaintiff’s voluntary dismissal, which was denied April 20, 1987. While said application was pending defendant also filed this direct appeal of the same order of the lower court. Plaintiff moved to dismiss the appeal on the ground it is not a proper appeal from a final order due to the pendency of the counterclaim. Plaintiff also requests we impose sanctions and penalties against defendant for bringing an improper appeal. Held:

The Counterclaim remains pending in this action and the trial court expressly ruled that defendant would be allowed to proceed on its Yost counterclaim. “Consequently, the dismissal of the complaint cannot be considered a final judgment within the meaning of OCGA § 5-6-34 (a) (1), and it follows that we are without jurisdiction to entertain a direct appeal from it.” Memorial Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987). In Memorial Med. Center even though the appeal was dismissed for lack of jurisdiction, nevertheless, this court noted that the lower court was incorrect in concluding the defendant could continue to pursue the Yost counterclaim because the counterclaim in that case required termination of the plaintiff’s claim in favor of defendant. In the case now before us the court did not err in concluding the counterclaim could be pursued despite the voluntary dismissal of the plaintiff’s claim. Here, defendant’s Yost claim was brought in response to plaintiff’s alleged abuse of discovery and not to the claim itself. Therefore, a termination of plaintiff’s claim in favor of defendant is not a prerequisite for defendant to prevail on its counterclaim. The appeal is dismissed.

However, we deny plaintiff’s request to impose sanctions and penalties against defendant. When a party is, in good faith, in doubt over whether it is proper to pursue a direct appeal or to apply for leave to file an interlocutory appeal, this court encourages the party to pursue both avenues rather than risk dismissal for failure to pursue the proper procedure for appeal.

Appeal dismissed. Motion for sanctions denied.

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

Don C. Keenan, David S. Bills, for appellee.


author: McMurray, Presiding Judge.

text:
    75000, 75001, 75002.
    FATORA v. THE STATE.
    (363 SE2d 566)
   McMurray, Presiding Judge.

Defendant was indicted for manufacturing marijuana. The evidence adduced at trial, construed most favorably to support the jury’s verdict, was as follows: Defendant and his wife reside on an eight and one-half acre parcel of real property in Towns County, Georgia, “[n]ear the community of Young Harris, about a mile from the city limits.” Defendant and his wife have owned this property for “[a]bout 14 years. ...”

During the morning of August 9, 1984, a Georgia Bureau of Investigation (GBI) “task force” was conducting an aerial observation of the Towns County, Georgia area when they sighted marijuana growing in “a heavily wooded area . . .” on defendant’s property. The aerial observers directed several ground-based law enforcement officers to the marijuana and they discovered three separate concealed gardens consisting of 215 healthy marijuana plants which varied in height from six to fifteen feet. Two of the gardens comprised 30 fully mature marijuana plants and the third garden comprised 185 marijuana plants which were not as mature as the plants found in the smaller gardens. The plants of the larger garden appeared to be “the second crop that year, the second planting.” A fourth area, which also appeared to be a small concealed garden, was discovered on defendant’s property; however, all that remained of this garden were “little sink holes that looked like some kind of plant had been pulled out of the ground.”

A closer inspection of the marijuana found growing on defendant’s property revealed that the gardens had been cultivated so as to produce a “higher quality marijuana” known as “sensemelia.” All of the marijuana gardens were well attended and one of the smaller marijuana gardens was found within 20 yards of a “barn” or “shed” where defendant had stored lawn and garden equipment. Although none of the marijuana gardens were visible from defendant’s house or from the road leading to defendant’s house, all of the marijuana gardens were easily accessible from the road leading to defendant’s house and all of the marijuana gardens were connected by “path[s]” or “trail[s].”

Later in the afternoon on August 9, 1984, Agent Mike Roberts of the Georgia Bureau of Investigation met defendant at his home, advised him of his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), rights and questioned defendant regarding the marijuana found growing on his property. Defendant denied knowledge of the marijuana and suggested that students of a nearby college, who defendant said had visited his property frequently, may have planted the marijuana. Agent Roberts then requested defendant to submit to a polygraph examination and defendant consented.

On September 4, 1984, defendant signed a stipulation to the effect that the results of his polygraph test would be admissible in evidence at trial. He then submitted to the polygraph examination and the results showed that defendant “was being deceptive . . .” as to his lack of knowledge of the marijuana found growing on his property. Two days after the polygraph examination, defendant was arrested and charged with violating Georgia’s Controlled Substances Act.

From the evidence described above, and from other evidence adduced at trial, defendant was found guilty of manufacturing marijuana. After the denial of his motion for new trial, defendant filed a notice of appeal and two identical documents entitled, “NOTICE OF APPEAL FROM ORDER TERMINATING APPEAL BOND.” As a result, the appeal from defendant’s conviction was docketed in this court as Case Number 75000 and separate appeals were docketed from defendant’s other filings as Case Numbers 75001 and 75002.

We have examined the records with regard to Case Numbers 75001 and 75002 and find that the issues raised therein were addressed by this court in an order entered on April 29, 1987, in Case Numbers 73771 and 74190. Consequently, since there remain no unresolved issues in these appeals, Case Numbers 75001 and 75002 are hereby dismissed. We now consider Case Number 75000. Held:

1. Defendant contends in his first enumeration of error that the trial court erred in failing to grant his motion for a directed verdict of acquittal because the evidence was insufficient to connect him to the marijuana found growing on his property.

“ ‘A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Mitchell v. State, 150 Ga. App. 44, 46-47 (256 SE2d 652). Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. See Mason v. State, 146 Ga. App. 557 (4) (247 SE2d 118).’ Morris v. State, 161 Ga. App. 141, 143 (288 SE2d 102) (1982).” Shreve v. State, 172 Ga. App. 190, 191 (322 SE2d 362). In the case sub judice, the evidence showing that two “crops” of mature marijuana were being cultivated on property where defendant and his wife alone reside was sufficient to sustain the rebuttable presumption that defendant was the owner of the marijuana. Hendrixson v. State, 167 Ga. App. 517, 519 (5) (306 SE2d 350). Considering this presumption in light of other evidence showing the size of defendant’s property, the number of marijuana gardens found on defendant’s property, the proximity of the marijuana gardens from defendant’s house and from the road leading to defendant’s house and the results of defendant’s polygraph examination, we find that it is not a reasonable hypothesis that defendant was completely unaware of the marijuana being manufactured on his property. See OCGA § 24-4-6; Goode v. State, 130 Ga. App. 791 (2) (204 SE2d 526); Quarles v. State, 142 Ga. App. 394 (2) (236 SE2d 139); Rothfuss v. State, 160 Ga. App. 863, 865 (2) (288 SE2d 579); and Meeks v. State, 178 Ga. App. 9, 13 (4) (341 SE2d 880). Compare Ivey v. State, 226 Ga. 821 (4) (177 SE2d 702); Prescott v. State, 164 Ga. App. 671, 673 (2) (297 SE2d 362); Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) and Shreve v. State, 172 Ga. App. 190, supra. See Smith v. State, 245 Ga. 205 (2), 207 (264 SE2d 15), where the Supreme Court held “that the testimony that appellant lied during his polygraph test [was] sufficient independent evidence to corroborate the accomplice’s testimony as to appellant’s involvement in the crime.”

Defendant attempts to shift ownership of the marijuana from himself by asserting the “equal access” rule. In this regard, defendant testified at trial that he had not been in the area where the marijuana was found “that year” and that “hunters” and “young people [came] in and out of [the area] frequently.”

Although defendant’s testimony supports a conclusion that others may have trespassed upon his property and planted the marijuana, there was no evidence that others did perform any type of cultivation on defendant’s land. Further, “‘(w)hile this “equal access” rule may be applicable with reference to the loose, portable quantities of contraband found inside the house, it is not properly applicable to the marijuana plants growing outside, which require a period of months to grow, mature, and be harvested.’ Goode v. State, 130 Ga. App. 791 (2) (204 SE2d 526). See also Heaton v. State, 139 Ga. App. 83, 84 (227 SE2d 854).” Hendrixson v. State, 167 Ga. App. 517, 519 (4), supra. Consequently, since the equal access rule is not applicable in the case sub judice, we find that there was sufficient evidence presented from which a rational trier of fact could find defendant guilty beyond a reasonable doubt of the crime, manufacturing marijuana. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hendrixson v. State, 167 Ga. App. 517, 519 (4), supra.

2. In his second enumeration of error, defendant argues for the first time on appeal that the stipulation he executed, permitting the results of his polygraph test into evidence, is “defective” and will not support a basis for the admission of the results of his polygraph test at trial because it was executed “prior to the filing of [criminal] charges against [him] . . .” and because he was “unrepresented at the time he signed the stipulation.. . .” See State v. Craft, 99 Wis.2d 128 (298 NW2d 530).

“ ‘(O)ne is limited in his appeal to grounds of objection which he properly presented to the trial court; he cannot make them for the first time on appeal. Abrams v. State, 223 Ga. 216 (9) (154 SE2d 443).’ H. W. Ivey Construction Co. v. Transamerica Ins. Co., 119 Ga. App. 794, 795 (2) (168 SE2d 855). Grounds which may be considered on appeal are limited to those which were urged before the trial court. Kitchens v. State, 228 Ga. 624 (1) (187 SE2d 268); Newberry v. State, 126 Ga. App. 81, 82 (189 SE2d 891).” Harrison v. Lawhorne, 130 Ga. App. 314, 318 (5) (203 SE2d 292). Consequently, the issues raised in this enumeration of error will not be considered by this court. Morris v. State, 179 Ga. App. 228, 229 (3) (345 SE2d 686).

3. Next, defendant contends the trial court erred in failing to grant his motion to suppress the results of his polygraph examination because he did not “knowingly, intelligently or willfully consent or agree to the admission of the test results as evidence as required by Georgia law.” Defendant argues that he did not “freely” and “voluntarily” submit to the polygraph examination because he thought it was a condition of his employment.

The evidence at the motion to suppress hearing showed that before submitting to the polygraph examination defendant was fully advised of his right to an attorney, his right to remain silent and not submit to the polygraph examination and his right to terminate the polygraph examination at any time he desired. Defendant was also advised that the results of the polygraph test may be adverse to his interest and could be “used against [him] in a court of law.” Notwithstanding these warnings, defendant waived his rights and submitted to the polygraph examination. Earlier, defendant executed a document entitled, “STIPULATION” wherein he acknowledged that he was not required to submit to the polygraph examination and he agreed to submit to the examination and that the results of the test would be admissible at trial.

Although defendant testified that it was his “impression” that the polygraph examination was a condition of his employment, he affirmed on cross-examination that no person had threatened him with the loss of his job if he refused to submit to a polygraph examination. Defendant acknowledged on cross-examination that he was aware that if the results of his polygraph examination were adverse “there would probably be heavier consequences than the job.” Finally, defendant executed a document after submitting to the polygraph examination wherein he affirmed “that during the entire time I was well-treated, submitted myself freely to the examination knowing that I could stop any time I so desired by merely saying that I wished to stop or that I wished to consult an attorney. I remained of my own free will, knowing that I could leave this room at any time I so desired, and that there were no threats, promises, or any harm done to me during the entire period I have been here, either in connection with the examination or the signing of this consent.”

“ ‘(U)pon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.’ State v. Chambers, 240 Ga. 76 (239 SE2d 324). In a motion to suppress or exclude a polygraph examination, as in a Jackson-Denno hearing, the trial judge is the trier of fact and resolves any and all issues of truthfulness, credibility, and conflicts in the evidence. His decision will not be disturbed in the absence of obvious error. Cf. State v. Swift, 232 Ga. 535, 536 (207 SE2d 459); Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689).” Williams v. State, 148 Ga. App. 55, 56 (2) (250 SE2d 848); Dein v. Mossman, 244 Ga. 866, 870 (3) (262 SE2d 83). In the case sub judice, we find no abuse of discretion or obvious error. The stipulation entered into between defendant and the State amply demonstrates that defendant fully and without reservation agreed to undergo a polygraph examination, the results of which would “be admissible into evidence through testimony of the operator in this case [, ‘The State of Georgia v. Joseph Fatora, . . . charge of V.G.C.S.A.,’] or any other case where the same testimony is relevant provided that this stipulation in no way restricts the right of the defense or the state to cross-examination of said operator on the results of such tests. ...” Consequently, the results of defendant’s polygraph test were not erroneously admitted into evidence pursuant to this stipulation. See Baxter v. State, 159 Ga. App. 632, 633 (3) (284 SE2d 649).

4. In his final enumeration of error, defendant argues that the results of his polygraph examination should have been excluded from evidence at trial because “[t]he [State’s polygraph] examiner was unskilled and the [defendant] was nervous [during the examination].”

“Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. Rouse v. Fussell, 106 Ga. App. 259 (4) (126 SE2d 830). Generally nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession; and special knowledge involving a particular subject may be derived from experience as well as study and mental application. Carter v. Marble Products Inc., 179 Ga. App. 122 (1) (175 SE2d 480); Frazier v. State, 138 Ga. App. 640, 645 (227 SE2d 284).” Dennis v. State, 158 Ga. App. 142, 143 (3) (279 SE2d 275). In the case sub judice, the evidence showed that the State’s polygraph examiner was a “polygraph intern . . . working under a trained, licensed polygraph examiner . . .’’at the time he administered defendant’s polygraph test. This witness testified that he “had run approximately 50 polygraphs at the time [he] ran the test on [defendant]” and, since administering defendant’s polygraph test, he testified that he had conducted “almost 300 polygraphs . . .” and had been licensed as a polygraph examiner by the “State Board of Polygraph Examiners.” Under these circumstances, we cannot say that the trial court erred in allowing the State’s polygraph examiner to testify as an expert and give his opinion as to the results of the test he administered to defendant. See Tate v. State, 142 Ga. App. 487 (1) (236 SE2d 173).

Decided November 5, 1987

Rehearing denied November 20, 1987

John A. Nuckolls, for appellant.

Michael Crawford, District Attorney, for appellee.

“[B]y cross-examination [defense] counsel may show any vagueness of the electronic indications or any subjectiveness of the examiner’s interpretations, as well as exploring conditions other than the subject’s untruthfulness which could have produced such responses.” State v. Chambers, 240 Ga. 76, 77, supra. In the case sub judice, we have examined the trial transcript and find that defendant’s attorney thoroughly cross-examined the State’s expert polygraph examiner, effectively stressing his weaknesses and testing the vitality of his opinion. Moreover, the defendant’s attorney called an expert polygraph examiner who testified that he had examined defendant’s polygraph test results and concluded that defendant’s “chart is inconclusive. It does not show deception.” Under these circumstances, we find that the trial court properly allowed “the jury to decide what weight should be given this evidence.” State v. Chambers, 240 Ga. 76, 80, supra. This enumeration of error is without merit.

Judgment affirmed in Case No. 75000. Appeals dismissed in Case Nos. 75001 and 75002.

Sognier and Beasley, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75127.
    GALLETTA et al. v. HILLCREST ABBEY WEST, INC.
    (363 SE2d 265)
   Birdsong, Chief Judge.

This is a suit for fraud in the sale of a cemetery plot and for desecration of a grave. The appellants purchased a plot from the appellee in 1982 for interment of their infant daughter. In 1983, the appellee began construction of a mausoleum or “feature crypt” in the section where appellants’ daughter was buried. Appellants objected vehemently to placement of a mausoleum near the child’s grave. The appellants filed suit, contending it had been represented to them that a statue of a religious figure or similar feature would be erected on the then-existing base in the section where their daughter was buried, and that they bought the plot upon that representation. The appellants also sued for desecration of the child’s grave, caused by an 80,000 pound concrete truck being driven over the grave so as to crush the child’s casket, and the placement of building material on the grave, so that appellants could not now be sure where the grave is.

At trial, the court directed a verdict for the defendant cemetery, on the basis that appellants had not rescinded the contract by offering to restore the plot to the cemetery, and that the issue of desecration was not set out in the pre-trial order and the appellants’ handwritten motion to amend the pretrial order on the third day of trial came too late.

The trial court denied appellants’ motion for new trial on December 3, 1986. Appellants filed a notice of appeal on December 23. On January 28, six days after the date for filing the transcript as required by OCGA § 5-6-42, appellants moved for an extension of time to file the transcript, but this was outside the time allowed by OCGA § 5-6-39 (d) for such a motion. On January 30, the appellee filed an “Emergency Motion to Dismiss” the appeal, which was granted. Held:

1. The trial court found the appellants, though notified in September 1986 of the cost of the transcript and that the transcript was ready, failed to pay the costs and thus caused inexcusable and unreasonable delay in filing the transcript. Although appellants deny having received such notice, the trial court did not abuse its discretion and fact-finding powers in finding otherwise and in finding the delay to be inexcusable.

However, the threshold question whether the delay was unreasonable is a separate matter, and refers principally to the length and effect of the delay. OCGA § 5-6-48 (c). See Young v. Climatrol &c. Distrib. Corp., 237 Ga. 53, 55 (226 SE2d 737). As to this question the determination of the trial court is a matter of legal discretion and is subject to review by the appellate courts. Id.

The time requirements of OCGA § 5-6-42 for filing the transcript are not jurisdictional, but are merely a means of avoiding delay so the case can be presented on the earliest possible calendar in the appellate courts. Green v. Weaver, 161 Ga. App. 295, 296 (291 SE2d 247). OCGA § 5-6-30 provides that the appellate practice article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case except as may be specifically referred to in the article. The section requiring filing of the transcript within 30 days (§ 5-6-42) is specifically designed to facilitate an appellate decision on the merits at the earliest possible date. Green, supra. Since it is not a jurisdictional requirement, the demand for punctuality should not be so strict as to defeat the very purpose of the requirement by preventing an appeal altogether, unless the delay is unreasonable so as to affect the appeal itself. See Gilland v. Leathers, 141 Ga. App. 680 (234 SE2d 338). Thus the policy of the law is to avoid a dismissal of the appeal and reach the merits of the case where it is reasonable to do so. Corbin v. First Nat. Bank, 151 Ga. App. 33 (258 SE2d 697).

The date the transcript was to have been filed in this case was January 22. When the trial court dismissed the appeal on February 3, upon the appellee’s “emergency” motion to dismiss, the transcript was thus eleven days late. It was filed February 3. There is no intimation that the appellee suffered any prejudice by this 11-day delay. The appeal was not stale; justice was not delayed nor had any inequity resulted, nor was there any intermediate change in conditions. See Hornsby v. Rodriquez, 116 Ga. App. 234 (156 SE2d 830). There is no indication the 11-day delay in filing the transcript prevented the placement of the case on the earliest possible calendar in this court (Green, supra) or delayed the docketing of the appeal and the hearing of the case in this court. See American Oil Co. v. McCluskey, 116 Ga. App. 706, 708-709 (158 SE2d 431). The record from the clerk below was in fact not docketed in this court until May 26, three and one-half months after the transcript was filed. Under these circumstances, it is difficult to conclude appellants’ 11-day delay in paying for and filing the transcript, however inexcusable, was so unreasonable as to utterly remove their right of appeal.

The appellee contends this case is similar to In re G. W. H., 168 Ga. App. 845 (310 SE2d 573). However, in that case the delay in filing the transcript was more than four months; obviously this delayed the docketing necessarily, and appellant was found responsible for that unreasonable and inexcusable delay of the filing of the transcript. In this case the delay in filing the transcript was 11 days and did not discernibly delay the docketing of the record in this court. (In re G. W. H., in dictum, ascribes to the appellant the duty to file the record under OCGA §§ 5-6-41 and 5-6-42; in fact, this is the clerk’s duty (OCGA § 5-6-43 (a)), and the appeal may be dismissed under OCGA § 5-6-48 (c) for unreasonable delay in filing the record only when such delay is caused by appellant’s failure to pay costs within 20 days of notice by registered or certified mail.)

The trial court further erred in dismissing this appeal under an error of law. The trial court stated in its finding of unreasonable delay that the transcript could have been filed in September 1986 when the reporter completed it, and that the case “languished . . . without benefit of a transcript” until the trial court denied appellant’s motion for new trial on December 3. Thus, “[f]rom the date the transcript was ready for filing to the date the court ruled on the motion [for new trial] without a transcript, the [appellants] had a period exceeding two months within which they should have filed the transcript. This in itself is inexcusable and unreasonable delay.” The trial court therefore adjudged the 11-day delay in filing of the transcript within 30 days of the notice of appeal to be unreasonable because appellants failed to file the transcript in September, three months before the notice of appeal was filed. This was error. The appellant had no obligation to file the transcript until his motion for new trial was disposed of. Whitton v. State, 174 Ga. App. 634, 635-636 (331 SE2d 10). The discretion granted in OCGA § 5-6-48 to the trial court to dismiss an appeal for unreasonable and inexcusable delay in filing the transcript within 30 days of notice of appeal cannot hark back to whether in the trial court’s estimation the appellant should have filed the transcript for consideration of a motion for new trial or at some other earlier point. There is no mandatory requirement to file a transcript for motion for new trial (see OCGA § 5-5-40), and the failure to do so or the failure to pay for and file the transcript as soon as it is ready (in this case, September) has no controlling bearing on the question of unreasonable delay in filing the transcript after notice of appeal as required by OCGA § 5-6-42.

We therefore conclude the trial court erred in dismissing this appeal.

2. The trial court did not err in directing a verdict for the appellee on the fraud issue. The record clearly shows the appellants did not rescind the contract, that is, did not restore or offer to restore their benefit of the contract to the appellee. OCGA § 13-4-60. The reason for the rescission requirement is well expressed in Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 729-732 (16 SE2d 176). See also Brown v. Techdata Corp., 238 Ga. 622, 625-627 (234 SE2d 787); City Dodge v. Gardner, 232 Ga. 766 (208 SE2d 794).

The decision in Rountree v. Davis, 90 Ga. App. 223 (82 SE2d 716) does not require a different result; it was founded upon the peculiar facts in that case, which were that the plaintiff no longer had the property to tender back, and in any case is against the grain of the law. Similarly, the decision in National Old Line Ins. Co. v. Lane, 172 Ga. App. 519 (323 SE2d 707) was based upon the more pertinent fact that the subject property was worthless and therefore the plaintiff did not retain an unconscionable benefit while suing for fraud in the inducement.

The appellants contend the cemetery plot is worthless to them; but it obviously would have some value to the appellee and therefore the appellants could not sue for fraud while retaining the benefit of the contract. And, while it seems that as a matter of fairness the appellants should not have had to disinter their child’s body and rebury it in order to plead that they were damaged by the appellee’s fraud, still the rescission statute and the cases (see Brown v. Techdata, supra) do not require actual restoration but only a tender, which would have been very appropriate in this case. Appellants did not do this, and thus the trial court did not err in directing a verdict for the appellee on the fraud issue.

3. The trial court erred in disallowing appellants’ amendment to the pretrial order on the third day of trial so as to include the claim for desecration of the grave stated in the plaintiffs’ complaint. By that time, the issue of evidence of desecration had been introduced throughout the trial without any objection being made that it had been excluded from the pretrial order. OCGA § 9-11-16, which provides that the pretrial order “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice,” must be applied in light of the mandatory provisions of OCGA § 9-11-15 (b). Carreras v. Austell Box Board Corp., 154 Ga. App. 135, 137-138 (267 SE2d 792). That code section provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, “they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment.” (Emphasis supplied.) This rule of law re the mandatory amendment of a pretrial order (as a pleading) applies in principle even more emphatically when, as in this case, an issue which is raised by the pleadings and is tried by express or implied consent is sought to be preserved by amendment of the pretrial order. The pretrial order is, after all, a functionary of the CPA designed to judiciously reach the merits of the case. OCGA § 9-11-16 (b) provides that a pretrial order controls the course of the action “unless modified at the trial to prevent manifest injustice.” (Emphasis supplied.) The refusal of this pretrial amendment to conform the pretrial order to the issues actually raised by the pleadings and entered at trial without objection, i.e., tried by implied consent, operated contrary to OCGA § 9-11-15 (b) and to the spirit of the Act that cases be decided on their merits and that decisions based on other considerations be avoided. See Ambler v. Archer, 230 Ga. 281, 288 (196 SE2d 858).

The appellee urges that this issue was not tried by its implied consent because in a motion in limine, appellee objected to any evidence relating to people walking on graves or building material being present on graves. However, in that motion appellee sought to exclude the evidence because the cemetery rules and regulations gave it the right of ingress and egress and the evidence was “not relevant to any issue in the case.” The trial court denied this motion, thereby establishing at that point the appellants’ right to raise the issue as relevant to the case. In fact, the appellee cemetery in the pretrial order gave, as a contention in the case, the assertion that the deed of interment “does not prohibit the defendant [cemetery] from intrusion over the . . . grave for maintenance and other necessary useful activity.” This statement can only indicate the appellee knew and expected such “intrusion” to be an issue in the case. At no time did the appellee ever, on grounds that the issue had been eliminated from the trial by its omission from the pretrial order, object to the evidence of desecration. On the third day of trial when the appellants thought to offer an amendment, not a word was said against it by the appellee. For all that appears in the record, appellee’s only “surprise” came when the trial court refused the amendment and directed a verdict for the appellee on the desecration issue. In truth, the appellee never has, until appeal, contended the issue was removed from the case by its omission from the pretrial order. See Hagger v. State, 179 Ga. App. 16 (345 SE2d 118); Dobbs v. Titan Properties, 178 Ga. App. 389, 392 (343 SE2d 419); Gurin v. Gen. Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830).

The appellee’s contention on appeal that it thought the evidence was admitted only to prove damages for the fraud of representing that a religious statue or other such feature without present intention to perform, is not logical and is unsupported by any indication in the record.

We conclude the issue of desecration raised in the pleadings, though omitted from the pretrial order, was in fact admitted by the trial court, and the later denial of appellants’ proffered amendment to the pretrial order was therefore without force, since the failure to amend as to issues in fact tried does not affect the results of trial, under OCGA § 9-11-15 (b); that moreover the appellee never until this appeal raised a specific objection to the trial of the issue based on its omission from the pretrial order; and that the appellee never exhibited any “surprise” and in any case the appellee cannot claim it was surprised by the actual trial of this issue since it never made any objection to it for having been left out of the pretrial order.

Therefore, the denial of appellant’s proffered amendment to the pretrial order and direction of a verdict for the appellee on the issue of desecration were error, the issue having been raised in the pleadings, admitted by the trial court, tried in fact, and never objected to by the appellee on grounds it had been eliminated by the pretrial order.

4. It follows that the trial court erred in dismissing the appeal, and erred in granting a directed verdict on the issue of desecration on grounds it had been eliminated from the case by the pretrial order, and therefore erred in denying appellants’ motion for new trial on that ground. But the trial court did not err in granting a directed verdict on the issue of fraud in the sale of the cemetery plot and denying a new trial on that ground.

Judgment affirmed in part and reversed in part.

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

On Motion for Rehearing.

The appellee cemetery says it is “extremely surprised” at the holding in Division 3, inasmuch as evidence of desecration of the grave was never given, and inasmuch as the Gallettas in court said their only issue was fraud and never informed anybody they were claiming desecration.

The appellee makes many misstatements of fact. The desecration issue was raised by evidence no fewer than six times during the plaintiffs’ presentation, including by cross-examination of the cemetery’s president, who admitted that an 80,000 pound concrete truck would probably crush a vault. The matter of desecration occupies some 34 pages of trial transcript, at least. Furthermore, the cemetery in its appeal brief conceded that after the trial court denied its motion in limine to keep out evidence of people walking on graves and building material being placed on graves, “the Gallettas offered such evidence.”

It is misleading for the appellee cemetery to contend as fact that in 25 transcript pages of discussion about “plaintiffs’ theories,” the plaintiffs never “informed the court . . . that their theory . . . was actually desecration. . . . The appellant never mentioned or even hinted at the issue of desecration during this argument [which] centered on whether the appellants’ [sic] had proved rescission and fraud.” If appellee’s counsel had realized that desecration was an issue, he would have certainly addressed it in his argument on the appellee’s motion for directed verdict.

Having made an issue of desecration in the pleadings, having won the right to admit evidence of it, and having admitted the evidence without pertinent objection, this was all the informing plaintiffs needed to do to pursue their claim for desecration. This “surprise” appellee professes on appeal appears nowhere in the record below, not even when the plaintiffs offered their pre-trial amendment; but having instead sat mutely observing the plaintiffs put the issue in evidence, the appellee is bound to know it better than anybody, and cannot possibly claim surprise.

The discussion appellee refers to, where plaintiffs allegedly made a “judicial admission” that they were claiming only fraud, occurred during the hour of argument on appellee’s motion for directed verdict based solely on the fraud count. The point was whether plaintiffs had, or had made, a claim for fraud or a claim for breach of contract (since they had not rescinded the contract). The plaintiffs stated their claim was for fraud; this was the only thing discussed because this was the only ground upon which the appellee had moved for directed verdict. It was not up to plaintiffs to hint or mention grave desecration during this argument about fraud and rescission. Desecration was raised in the pleadings and in the evidence many times; if the appellee believed, as it now claims, that nevertheless the plaintiffs had waived or abandoned the issue by having omitted to put it in the pre-trial order, then it was up to the appellee to object to it and move for directed verdict on the desecration issue.

Decided November 4, 1987

Rehearing denied November 20, 1987

Stephen R. Yekel, for appellants.

Stanley M. Karsman, David R. Smith, for appellee.

It appears the appellee was so taken up with the fraud issue that it failed to notice when desecration evidence was offered, which may be why it failed to object. But then, if when the plaintiff-appellants first raised evidence of desecration, the appellee had objected on grounds the issue was not in the pre-trial order, the plaintiffs, having put it in their complaint, would have moved to correct that oversight, and clearly there would have been no reason then not to conform the pretrial order under § 9-11-16. By thus seizing the tricky advantage of not objecting, the appellee is bound by its effect, which was to allow the issue to be tried, which under the mandatory provisions of OCGA § 9-11-15 (b) would have operated to conform the pre-trial order even if the issue never had been raised in the complaint.

The remainder of the appellee’s motion merely repeats the questions already decided in the opinion, and disputes the case authority in a manner similar to its description of the proceedings.

Motion for rehearing denied.


author: Banke, Presiding Judge.

text:
    75306, 75307.
    LEADER NATIONAL INSURANCE COMPANY v. MARTIN; and vice versa.
    (363 SE2d 281)
   Banke, Presiding Judge.

Martin sued Leader National Insurance Company seeking to recover optional personal injury protection (“no-fault”) benefits allegedly due him pursuant to a policy of motor vehicle accident insurance issued to his wife and, in addition, to recover a statutory bad-faith penalty and attorney fees based on Leader’s delay in paying the claim. Leader denied liability, contending that there had been no election of optional coverage by Martin’s wife and that the statute of limitations had run on the claim.

Prior to the trial of the case, the trial court granted partial summary judgment to Martin on the issues of whether there had been a valid rejection of optional coverage by the named insured and whether, due to the absence of such a rejection, Martin was entitled to assert a claim for maximum optional benefits in the amount of $45,000. Also, the trial court denied a motion for summary judgment filed by Leader on the basis of its statute of limitation defense, ruling that a material factual dispute existed on the issue of whether Martin had experienced mental incapacity resulting in the tolling of the limitation period. However, the trial court did grant partial summary judgment to Leader with respect to Martin’s claim for a bad-faith penalty and attorney fees. As a result of these rulings, only two issues remained to be tried: (1) Whether Martin had in fact suffered from mental incapacity resulting in the tolling of the statute of limitation, and (2) whether and to what extent he had suffered compensable losses.

On December 5, 1986, four days before the commencement of the trial of these remaining issues, Leader filed a motion for reconsideration of the partial summary judgment which had been awarded to Martin on the optional coverage issue. This motion for reconsideration was predicated on the alleged discovery of certain new evidence purporting to establish that Leader had mailed timely written notices to its Georgia policyholders, including Martin’s wife, advising them of the availability of optional no-fault coverage and seeking an election or rejection of such coverage from them. The motion for reconsideration was denied, and the subsequent trial of the case terminated in a directed verdict in Martin’s favor with respect to the two remaining issues. On the basis of this directed verdict, and of the prior grant of partial summary judgment to Martin on the optional coverage issue, the trial court entered a final judgment in Martin’s favor on December 11, 1986, awarding him $45,000 in optional benefits, plus prejudgment interest in the amount of $9,601.84.

On January 9, 1987, Leader filed a document entitled “Motion for New Trial or, in the Alternative, Motion to Set Aside Judgment.” In this motion, Leader asserted that the trial court had erred in excluding from consideration the alleged newly discovered evidence which had been the subject of its previous motion for reconsideration of the partial summary judgment awarded to Martin on the optional coverage issue. In addition, Leader also asserted the discovery, subsequent to the trial, of certain other “new and material evidence” which would have produced a different verdict in the case. This latter evidence consisted, however, merely of additional testimony relating to the optional coverage issue, offered by the same witness on whose affidavit the pretrial motion for reconsideration had been based.

On February 12, 1987, Leader filed an amendment to its post-trial motion to assert, for the first time, that the evidence introduced at the trial had not authorized the direction of a verdict in Martin’s favor with respect to either of the two issues being tried. The trial court subsequently denied Leader’s post-trial motion, as amended, from which order Leader filed the present appeal. Martin has cross-appealed, enumerating as error the trial court’s grant of partial summary judgment to Leader with respect to his claim for a bad-faith penalty and attorney fees. Additionally, Martin has filed a motion to dismiss the main appeal on the ground that Leader’s original post-trial motion did not constitute a valid motion for new trial and was consequently ineffective to extend the time for filing an appeal. Held,-,

1. Leader’s original “Motion for New Trial or, in the Alternative, Motion to Set Aside Judgment” quite clearly did not address anything which had occurred during the trial of the case, nor did it allege the discovery of any new evidence which could be considered relevant to either of the two issues which were the subject of that trial. “ ‘ “Objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.” ’ ” Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24) (1981).

Where a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal. Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986). Because Leader’s original “motion for new trial or, in the alternative, motion to set aside judgment” was not directed towards any alleged defect in the trial or the resultant verdict but was directed entirely towards a summary judgment ruling which had been made by the court prior to trial, we hold that it had no validity as a motion for new trial, with the result that it was ineffective to extend the time for filing an appeal. Furthermore, since the 30-day period for filing a motion for new trial had already expired by the time Leader amended the motion to attack the validity of the directed verdict, the amendment itself cannot be considered a timely motion for new trial, with the result that it, too, was ineffective to extend the time for filing an appeal. Accord Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972) (where the appeal was nevertheless allowed on the basis of the original motion for new trial, which was held to be defective not because it constituted an improper procedural vehicle for obtaining review of the trial court’s action but merely because it was filed prematurely).

Decided November 5, 1987

Rehearing denied November 20, 1987.

James S. Strawinski, for appellant.

Douglas F. Aholt, David E. Allman, for appellee.

2. Assuming arguendo that Leader’s alternative motion to set aside the judgment qualified as a motion to set aside filed pursuant to OCGA § 9-11-60 (d), any appeal therefrom would be subject to the application procedures set forth in OCGA § 5-6-35 (b). See OCGA § 5-6-35 (a) (8); Jaraysi v. Southern Bell &c. Co., 176 Ga. App. 105 (335 SE2d 463) (1985). As Leader did not file an application for discretionary appeal, and as it neither filed a timely direct appeal from the final judgment entered in the case on December 11, 1986, nor filed a valid and timely motion for new trial, it follows that Martin’s motion to dismiss Leader’s appeal must be granted.

3. There being no valid main appeal, we are also without jurisdiction to entertain the cross-appeal, “which must derive its life from the main appeal, already dismissed. . . .” Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 497 (268 SE2d 733) (1980).

Appeals dismissed.

Carley and Benham, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, the appellant misconstrues our holding in this case as being “that if a party’s initial motion for new trial is deniable [then] the motion will not be amendable, nor will it toll the time for filing a notice of appeal.” What we have instead held is that a “motion for new trial” will not be effective to extend the time for filing an appeal unless it in fact raises some objection to the conduct of the trial or otherwise seeks to overturn the jury’s verdict in the case. See generally OCGA §§ 5-5-20 through 5-5-25. Where, as in the present case, the motion is directed towards a summary judgment ruling issued by the court prior to the commencement of the trial, then it is actually a motion for reconsideration or motion to set aside rather than a motion for new trial; and it has repeatedly been held that such motions do not extend the time for filing an appeal. See Austin v. Carter, 248 Ga. 775, 776 (285 SE2d 542) (1982).

       Additionally, an examination of the supporting affidavits submitted with the motion reveals that the source of the alleged “new and material evidence” was the same witness who had provided the affidavit in support of the pre-trial motion for reconsideration. Consequently, it is evident on the face of the motion that the evidence in question was available to Leader prior to trial. See Wood v. Jones, 175 Ga. App. 534 (3) (334 SE2d 9) (1985).


author: Carley, Judge.

text:
    74481.
    LITTLEJOHN v. THE STATE.
    (363 SE2d 327)
   Carley, Judge.

Appellant was tried before a jury and was found guilty of criminal trespass. In his notice of appeal as amended, appellant states that he is appealing from the guilty verdict that was returned by the jury and from the “sentencing” of the trial court.

We have conducted a careful review of the entire record in this case, including the supplemental record provided by the clerk of the trial court pursuant to our order. We have found neither a written judgment nor a written sentence entered by the trial court on the jury verdict. “The verdict of a jury, whether resulting from direction or from deliberation, is not an ‘appealable judgment.’ [Cit.]. . . . The verdict itself is not a judgment or a ruling, and hence does not fall within the provision of [OCGA § 5-6-34 (a)] that ‘Appeals may be taken to the Supreme Court and [the] Court of Appeals from [. . .] judgments and rulings of the superior courts. . . .’” (Emphasis in original.) Teppenpaw v. Blalock, 121 Ga. App. 320, 321 (2) (173 SE2d 442) (1970), aff’d 226 Ga. 619 (176 SE2d 711) (1970). “ ‘(A)ppeals from the lower courts may be taken only from final judgments except in certain enumerated instances. [Cits.] The language used (in OCGA § 5-6-34 (a) (1)) is that the judgment is final “where the [case] is no longer pending in the court below. . .” ’ [Cit.] ‘Further, before an appeal may be made, the judgment appealed from must be in writing, and not verbal. [Cits.]’ [Cit.]” Crolley v. State, 182 Ga. App. 2, 3 (1) (354 SE2d 864) (1987).

A review of the transcript indicates that the trial court may have intended to grant appellant first offender status. “[I]t is clear that OCGA § 42-8-64 is intended to provide a defendant a direct appeal from his conviction upon the imposition of first-offender status (a ‘sentence’ if you will), notwithstanding the absence of a formal and final ‘adjudication of guilt.’ [Cits.]” Dean v. State, 177 Ga. App. 123, 124 (1) (338 SE2d 711) (1985). In this record, however, there is no written document which has been signed by the trial court and which purports to impose first offender status upon appellant. See Uniform State Court Rule 39.7. “ ‘[B]efore an appeal may be made, the judgment appealed from must be in writing, and not verbal. [Cits.]’ [Cit.] Therefore, the instant criminal proceedings against appellant [would] obviously [be] ‘pending’ in the trial court until such time as his [first offender] sentence [is] entered in writing and [becomes] ‘final.’ ” (Emphasis supplied.) Crolley v. State, supra at 3 (1).

If appellant has consented to first offender treatment, the trial court should enter a written order wherein such status is imposed upon him. If appellant has not consented to first offender treatment, the trial court should enter a written judgment of conviction and sentence as in any other criminal case. Until the trial court undertakes to accomplish one or the other, this case is still pending before it. It follows that this court lacks jurisdiction to entertain appellant’s appeal at this time. Compare Gillen v. Bostick, 234 Ga. 308, 309 (1) (215 SE2d 676) (1975) and LeGallienne v. State, 180 Ga. App. 108, 110 (3) (348 SE2d 471) (1986), holding that prematurely filed notices of appeal are sufficient to confer appellate jurisdiction over those cases wherein final orders have actually been entered. After the entry of a final order in this case, appellant, if dissatisfied, may pursue whatever post-judgment remedies are available to him. In any event, the notice of appeal that appellant previously filed is not sufficient to confer jurisdiction upon this court and, if such jurisdiction is ever to be conferred, it must be by virtue of a notice of appeal timely filed by appellant after the entry of a final judgment in this case.

Decided November 20, 1987.

Charles Littlejohn, pro se.

James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellee.

Appeal dismissed.

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


author: Sognier, Judge. Carley, Judge, Beasley, Judge,

text:
    74579.
    ROMAN v. THE STATE.
    (363 SE2d 329)
   Sognier, Judge.

Appellant was convicted of aggravated sodomy and child molestation, and he appeals.

1. Appellant contends the trial court erred by allowing the State to present evidence of two similar offenses or occurrences because the State did not notify appellant of its intention to present such evidence at least ten days prior to trial, as required by Rule 31.1, Uniform Superior Court Rules. 253 Ga. 853. At a hearing on appellant’s objection to the presentation of such evidence it was established that the prosecution notified appellant eight days prior to trial that it intended to present evidence of a prior conviction of appellant in 1979 for the offense of enticing a child for indecent purposes. Four days prior to trial the State gave appellant an amended notice that included an incident in 1985 similar to the offenses charged here.

Rule 31.1, supra, provides that notice of the State’s intention to present evidence of similar transactions or occurrences shall be given and filed at least ten days before trial “unless the time is shortened or lengthened by the judge.” At the hearing on appellant’s objection the prosecuting attorney stated that in regard to appellant’s conviction in 1979, he had directed his secretary to mail the notice to appellant and file a copy of it in court in sufficient time to meet the ten-day requirement, but she apparently did not do so. Further, the prosecuting attorney and appellant’s counsel had discussed the State’s intention to introduce such evidence prior to the actual mailing of the notice. After hearing arguments on this issue from both parties, the trial court ruled it would shorten the required time of notice to eight days under the authority set forth in Rule 31.1. We find no error in that ruling, since appellant’s counsel was aware of the State’s intention to present evidence of the prior conviction before counsel received the State’s formal, written notice. Reducing the time period for notice is a matter within the court’s discretion which will not be disturbed by this court absent abuse of that discretion. Hall v. State, 181 Ga. App. 92, 93 (1) (b) (351 SE2d 236) (1986). We find no abuse of discretion here.

As to evidence of the similar occurrence in 1985, the prosecuting attorney did not learn of such evidence until four days prior to trial. The defense counsel was present in the prosecuting attorney’s office when the report was received, and appellant’s counsel actually read the report before the prosecuting attorney read it. Thus, evidence of the State’s intention to present such evidence was given to appellant as soon as the State learned of the incident. Further, at the hearing the State agreed to a continuance, if necessary, to allow appellant time to interview witnesses who would testify about the similar occurrence. Under such circumstances we find no error in overruling appellant’s objection to the presentation of such evidence. Common sense dictates that the State cannot give notice of its intention to introduce evidence ten days prior to trial when it is not aware of the existence of such evidence until four days prior to trial.

In regard to appellant’s complaint that the court did not hold a hearing on the issue of notice prior to the date of trial, it was brought out at that hearing that at an earlier motion hearing several days prior to trial, appellant’s counsel agreed to take up the issue of notice of evidence of similar offenses at a hearing on the day trial commenced. Further, there is nothing in Rule 31.2, Uniform Superior Court Rules, 253 Ga. 853-854, which requires the judge to hold a hearing prior to the date scheduled for trial. Nolan v. State, 183 Ga. App. 52, 53 (2) (357 SE2d 873) (1987). In fact, the rule provides that the hearing will be held at a time designated by the judge. The hearing was held prior to the presentation of any evidence, outside the presence of the jury, and thus, there was no error. Nolan, supra at 54.

2. Appellant asserts error in allowing Detective Scott Cosper to testify as to a statement appellant made to him (Cosper) because the State did not comply with the requirements of OCGA § 17-7-210. That statute provides that at least ten days prior to trial the defendant shall be entitled to have a copy of any statement made by him while in police custody; if the statement is oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant’s statement. Further, if the statement is oral, no relevant and material (incriminating or inculpatory) portion of the statement may be used against the defendant unless a summary of it has been previously furnished to him. Appellant made a timely, written request for copies of all written statements made by him while in custody, and a summary of all oral statements made by him while in custody. At a Jackson-Denno hearing (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908)), it was established that appellant made two statements, one to Cosper when he first came to the sheriffs office for questioning, and a second statement to Sheriff Earl Lee about twelve hours later. Both statements were tape-recorded, but the recording of appellant’s initial statement to Cosper was lost. Therefore, the State gave appellant a verbatim transcript of his statement to Lee, and a brief summary of the incriminating portion of his statement to Cos-per.

Appellant does not dispute the fact that the statements were provided at least ten days prior to trial, but argues that the testimony of Cosper as to appellant’s statement to him (Cosper) was inadmissible because appellant did not know that the summary and the verbatim transcript provided related to two different statements. This argument is without merit.

There is nothing in OCGA § 17-7-210 which requires the State to inform a defendant of the name of the person to whom he made a statement while in custody, and appellant has cited no authority to support his argument that failure to do so renders the statement inadmissible. Cosper’s name was on the list of witnesses provided appellant, and he was well aware that he had made two statements, one to Cosper and one to Lee. The purpose of the statute is to inform the defendant in writing of all relevant and material portions of his own statements that the State intends to use to his disadvantage. White v. State, 253 Ga. 106, 109 (2) (317 SE2d 196) (1984). In White the State gave the defendant one summary of statements to two different officers, and the court held that the purpose of the statute was satisfied because the defendant was notified of the substance of the statements) the State anticipated using against him. Appellant here was also advised of the substance of the statements to be used against him, and thus, the purpose of the statute was satisfied. Accordingly, we find no error in allowing Cosper to testify as to the statement made to him by appellant.

3. Appellant contends the trial court erred by denying his request to charge on aggravated child molestation, which appellant argues was a lesser included offense under the facts of this case. We do not agree. The State presented evidence that appellant committed aggravated anal sodomy on the victim, his ten-year-old grandson, by holding his arms behind his back and forcing himself upon the victim. Appellant testified and repudiated his confessions to attempting to commit sodomy and child molestation, and swore that he did not molest his grandson at all. Where the evidence shows either the completed offenses as charged, or no offense at all, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grade of the offense. Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547) (1981). See also Hambrick v. State, 174 Ga. App. 444, 447 (2) (330 SE2d 383) (1985). Hence, the trial court did not err by denying appellant’s request to charge on aggravated child molestation.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Carley, J., concurs specially. Beasley, J., concurs in part and dissents in part.

Carley, Judge,

concurring specially.

I concur fully in Divisions 1 and 2 of the majority opinion. With regard to Division 3, I agree that there was no error in failing to give the appellant’s request to charge on aggravated child molestation. However, the failure to give the charge was not error simply because aggravated child molestation requires proof that the victim was under the age of 14, an element not required in the offense of aggravated sodomy. Accordingly, aggravated child molestation is not a lesser included offense of aggravated sodomy. Hill v. State, 246 Ga. 402, 405 (III) (271 SE2d 802) (1980). There was no error in failing to give the requested charge.

I am authorized to state that Judge Beasley joins in this special concurrence.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to Divisions 1 and 2 of the majority opinion and concur with Judge Carley insofar as Division 3 is concerned.

1. There were two violations of USCR 31.1, and with respect to at least the latter one involving the four-day notice, it should be held that there was an abuse of discretion in shortening the time from ten days and thereby paving the way for introduction of the evidence of an alleged February 1985 incident.

In considering the admission of evidence of similar incidents, the underlying principle which must be served is the fundamental one “in our system of jurisprudence, intended to protect the individual who is charged with crime, and to insure him of a fair and impartial trial before an unbiased jury, that the general character of the defendant and his conduct in other transactions is irrelevant unless the defendant chooses to put his character in issue.” Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615) (1952); OCGA § 24-2-2. Exceptions have been developed, however, so that for example proof of a separate crime, which is similar and logically connected with the crime on trial, and relevant to an issue, is admissible even when defendant does not put his character at issue. Bacon, supra; Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) (1986); Hill v. State, 183 Ga. App. 404 (1) (359 SE2d 190) (1987); DeVane v. State, 183 Ga. App. 60, 63 (2) (b) (357 SE2d 819) (1987) (grant of certiorari vacated October 26, 1987).

Because of the devastating practical effect on defendant’s defense, and in obedience to the fundamental principle recited above, the law by way of USCR 31.1 has accommodated the interests of the state and the defendant by requiring the state, when it intends to introduce such exceptional evidence, to give the defendant ten days notice in advance of trial. This specified period of time allows the defendant an opportunity to object ahead to the introduction of the damaging evidence and, if his objection fails, to prepare his defense with that impediment in tow. It also allows him an opportunity to investigate the truth of the alleged prior crime or incident, as well as its legal efficacy in the event it resulted in conviction. See DeVane, supra at 62 (2) (a).

Since the effective date of the rule on July 1, 1985, there have been at least a dozen appellate cases involving its application. Several of them call into review the exercise of the trial court’s discretion in shortening the ten-day advance notice which is allowed by the rule. See DeVane v. State, supra; Richardson v. State, 182 Ga. App. 661, 662 (2) (356 SE2d 725) (1987); Durham v. State, 181 Ga. App. 155, 156 (2) (351 SE2d 683) (1986); Hall v. State, 181 Ga. App. 92 (1) (351 SE2d 236) (1986); Stewart v. State, 180 Ga. App. 266 (2) (349 SE2d 18) (1986). Thus it appears that it has added to the problems which arise in criminal trials.

In exercising the discretion given to shorten the ten-day requirement, the court must consider whether the purposes of the rule have been served so that non-compliance can be excused. Relevant factors would be the nature of the evidence (whether a straightforward documented conviction or an unconvicted prior incident), the defendant’s need for the ten-day period, the reasons for the state’s failure, and the relative degree of impact which the evidence will have, such as whether it is simply another one of many convictions already noticed.

Notice of intent to introduce a 1979 incident of “enticing a (female) child for indecent purposes,” of which defendant was convicted, was given and filed only seven days before trial was set, but the state did not at that point ask the court to shorten the time or reset the trial.

The nature of the evidence was a conviction which defendant did not contest. Counsel indicated he had no time to investigate it because the public defender’s office for which he worked had thirteen cases on the court’s trial calendar, but he asserted no need for the full period. He had reviewed that record in the district attorney’s office ten days before trial, and the conviction was one from the same court. Although the state offered no reasonable excuse for the tardiness despite its being responsible for the untimely work of its clerical employees, and although the prior conviction of a sex offense involving a child would have a significant impact on the jury’s determination in this case, it would be beyond the bounds of appellate review to classify the trial court’s ruling as an abuse of discretion.

The second notice was given and filed only four days before trial, with a weekend intervening, and again no shortening or continuance was sought by the state when it provided this tardy notice. Here the circumstances were not as borderline as they were in respect to the prior conviction.

The evidence was not a conclusive conviction of which defendant would already be aware, but rather an unindicted accusation that a year-and-a-half earlier, defendant had molested a six-year-old boy. Defendant and defense counsel did not even know about the accusation until apprised of it in the district attorney’s office on that Thursday before Monday’s trial. Counsel had very little opportunity, if any, to investigate it. When he objected at trial and asked that the incident be excluded from introduction, the court said it would allow time to interview the two witnesses, that is, the mother and the young boy, when they reported in the morning pursuant to the state’s subpoenas. Counsel implored the court to grant two days for investigation, recognizing that the witnesses likely would decline interview. The court acknowledged this problem but refused the continuance and instead delayed for half an hour the morning starting time.

The reason given by the state for the notice so close to trial was that it was unaware of the alleged incident until Deputy Sheriff Cos-per apprised the district attorney of it that same day. While it is true that the state cannot give notice of what it does not know, this information was within the direct knowledge of the state’s law enforcement arm, the very investigative department used by this district attorney. Not only that, it was the arresting officer, who was on the state’s witness list filed October 24, who reported it to the district attorney. It had been reported to him by the child’s mother in August.

Such knowledge should be imputed to the state, the same as applies to knowledge of defendant’s statements, else OCGA § 17-7-210 is violated. Talley v. State, 251 Ga. 42 (302 SE2d 355) (1983); Ludy v. State, 177 Ga. App. 767 (1) (341 SE2d 224) (1986). USCR 31 does not even contain an exception for newly discovered evidence, as is provided in OCGA § 17-7-210 (e). For an illustration of the latter, see Satterfield v. State, 256 Ga. 593, 600 (12) (351 SE2d 625) (1987); moreover, it is not clear in that case that the witness who had knowledge of the statement was a law enforcement officer; if he was, he was not an officer of this state. Yet even a statement to one other than an officer is subject to the timely disclosure requirement of OCGA § 17-7-210. Walraven v. State, 250 Ga. 401, 405 (2) (297 SE2d 278) (1982). Compare Ledesma v. State, 251 Ga. 487, 489 (5) (306 SE2d 629) (1983), where deeming the statement to an officer as newly discovered evidence was based in part on its being relevant only in rebuttal and, in addition, neither inculpatory nor exculpatory in and of itself.

A like exclusion is mandated by OCGA § 17-7-211 for written scientific reports. Luck v. State, 163 Ga. App. 657, 658 (2) (295 SE2d 584) (1982); Law v. State, 251 Ga. 525, 528 (2) (307 SE2d 904) (1983).

To allow shortening of time in the circumstances of this case is to allow Rule 31 to become a virtual nullity. The state can wait until the last minute to ascertain defendant’s prior record or earlier incidents and then when it finds some which it wishes to introduce at trial, say “I just found out.” That emasculates the rule, disserves its purpose, hampers and handicaps defendant in the preparation and presentation of his defense, and rewards the state for ignoring the ten-day rule.

The evidence was undeniably prejudicial. The mother testified that her son, at her urging when she first suspected it one-and-a-half years after the incident, described to her certain acts which defendant allegedly engaged in while the child was being cared for by defendant’s family. The child drew pictures to explain it to his mother and father, which drawings were submitted to Deputy Cosper in August and admitted in evidence. The child, a friend of the victim allegedly attacked on August 1, also testified, with his mother present, describing that defendant had done substantially the same thing to him.

Yet defendant had no opportunity to learn in advance the details or circumstances of this alleged prior act nor to investigate the truth of it. For one thing, he was able to speak with the mother for only a minute or two before trial. Counsel was impossibly handicapped in cross-examination of both witnesses, in refuting the charge, in preparing the defense, and in challenging the similarity, logical connection, relevancy, and other aspects of its admissibility.

This tableau compels a conclusion that defendant was deprived of fair and adequate notice and so of a fair trial in terms of what is required by Georgia law. Disallowing the evidence altogether would not have been mandated, as the court could have granted a continuance. As recognized by the Supreme Court in Robinson v. State, 257 Ga. 194, 195 (1) (357 SE2d 74) (1987), the court must give defendant “ample opportunity to construct a defense against the testimony as to similar crimes and transactions.”

2. The facts relating to the pretrial delivery of defendant’s statements and their significance to defendant’s trial preparation also compels departure from the opinion.

In response to the request for all statements made by defendant while in custody, the state produced a three-sentence “Synopsis of Defendant’s Statement” followed by “NOTE: Tape available thru D.A.’s Office.” Defense counsel communicated with the district attorney’s office about this and understood it to relate to the statement to Sheriff Lee. He was even given a transcript of the tape, in further response to the discovery demand. There is no indication that he knew of the earlier statement to arresting officer Cosper or that he was put on notice of it by the state.

He went to the district attorney’s office and listened to the tape of Lee’s interview and detected that the portion allegedly admitting that defendant fondled the child’s genitals was objectionable because just prior to that, defendant had indicated a desire for an attorney. Armed with this bar to evidence of child molestation as charged in count two, defendant went to trial and successfully objected to that portion of the statement. That left only the child’s vague and noncommittal testimony on the subject, which never quite reached evidence of a touching of his genitals.

The state, in its planning, decided to use Deputy Cosper’s testimony regarding the statement made earlier to him, when it realized the existence of an impediment to introduction of the post-request portion of defendant’s statement to Sheriff Lee. It did not advise defendant of this in advance, nor did it give any indication whatsoever that the synopsis and the tape listed in the response to discovery demand were meant to cover two separate statements. Whether this was intended to begin with, when the response was drafted, or whether the decision to use two statements came afterward, is not clear but does not control. What does is that defendant was not apprised that there were two separate statements, and that he was notified of only one.

The fact that the short synopsis fit both, which fact persuaded the trial court that no harm was done, is beside the point. What defendant came to trial with was the well-founded opinion that the statement contained in the taped and transcribed interview with Sheriff Lee, which was synopsized by “Defendant admitted fondling grandson,” was inadmissible. He was not informed that there was an earlier statement to this same effect which did not have the attorney-request obstruction.

OCGA § 17-7-210 makes it the obligation of the State to provide the statements. The purpose and the objective is to inform the defendant, as the opinion aptly states, citing White v. State, 253 Ga. 106, 109 (2) (317 SE2d 196) (1984). The law was not complied with here, to defendant’s prejudice. He should not have to guess at what the state means in its response nor to divine that when it says “statement” it means two statements. And the fact that Cosper’s name was on the list of witnesses was no notice of the statement to him; Cosper was the arresting officer, so his name would likely appear as to that aspect of the case.

Decided November 20, 1987.

Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

The imperfections in this trial, which resulted in sentences of life imprisonment and fifteen years concurrent, require a new trial.


text:
    75312.
    HUGHES v. THE STATE.
    (363 SE2d 336)
   Pope, Judge.

Jeffrey Scott Hughes brings this appeal from his conviction and sentence of armed robbery and possession of cocaine. Held:

At the request of the jury, the trial court recharged them as to the crimes of robbery and of armed robbery as defined by the Code, OCGA §§ 16-8-40 (a) and 16-8-41 (a). A juror then inquired: “Does the handgun have to actually be in view and pointed at the victim?” After some discussion with the juror and with counsel, the trial court determined that the point of inquiry was whether the weapon had to be visible in order for the alleged conduct to be armed robbery as opposed to robbery by intimidation. The trial court charged “that the weapon does not have to be visible as far as being in the hand of or shown to the victim by the accused” in order to convict him of armed robbery. Defendant’s sole enumeration of error challenges the correctness of this charge.

“OCGA § 16-8-41 (a) provides, in relevant part, that ‘(a) person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.’ ‘This section clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person.’ Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974). . . . [U]nder OCGA § 16-8-41 an armed robbery is committed if the weapon has been used as an instrument of constructive, as well as actual, force. [Cits.] ‘When the Code speaks of force, it means actual violence; and when it speaks of intimidation, it still means force; not actual and direct, but exerted upon the person robbed, by operating upon his fears — the fear of injury to his person, or property, or character.’ [Cit.]” (Indention omitted.) Maddox v. State, 174 Ga. App. 728, 729-730 (330 SE2d 911) (1985); Cook v. State, 179 Ga. App. 610 (1) (347 SE2d 664) (1986); Doby v. State, 173 Ga. App. 348 (1) (326 SE2d 506) (1985). It is thus apparent that the legislature intended OCGA § 16-8-41 to encompass armed robbers who have concealed offensive weapons in their pockets or under wraps or other devices.

Decided November 20, 1987.

B. J. Smith, for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Barbara Conroy, Assistant District Attorneys, for appellee.

In light of the foregoing principles, we find persuasive the holding of the Illinois Appellate Court for the Fifth District in People v. Coleman, 128 Ill.App.3d 538 (2) (470 NE2d 1277) (1984): “The presence of a weapon during commission of a robbery, necessary to a conviction for armed robbery, may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred.” (Citations omitted.) Id. at 545. It follows that the cited charge was correct and accurate as an abstract statement of the law and thus provides no basis for reversal in this case. See Builders Homes of Ga. v. Wallace Pump &c. Co., 128 Ga. App. 779 (5) (197 SE2d 839) (1973); see also Wilcher v. State, 230 Ga. 294 (5) (196 SE2d 864) (1973).

Judgment affirmed.

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